We frequently assist parents with the immigration and nationality matters which arise when children are born following international surrogacy arrangements. The majority of our clients are British citizens, though we also assist parents of other nationalities and with differing immigration status.

With British citizen parents, the child is sometimes born a British citizen. This is the case where the surrogate mother is unmarried and (one of) the intended parent(s) is a British citizen “otherwise than by descent” and is the biological father of the child.

In other circumstances, the child is not born British and we frequently apply to register those children as British citizens under section 3(1) of the British Nationality Act 1981 (though there are other nationality and immigration law solutions available). These registration applications are discretionary but the Home Office will, in our experience, always register a child as British if the situation fits within the Home Office’s own guidance.

In the past, one source of frustration with the guidance was the requirements for registration applications relying upon the citizenship of a British citizen mother (whether or not she has a biological link) or on the citizenship of a British citizen non-biological father. The guidance used to require an order from a court in the jurisdiction in which the child was born stating that the British citizen was treated in law as the child’s parent. The Home Office had confirmed that such orders needed to be issued post-birth. It was unclear how strict the Home Office were in applying this, but in order for parents bring themselves within the guidance, they needed to obtain such a post-birth order. This could delay matters and increase costs.

We had asked the Home Office on previous occasions to remove the requirement but it remained. Our most recent request, though, has met with success. The Home Office has now removed the requirement for a post-birth order in these cases. The guidance now states that the application needs to include: –

• a legal document confirming that (s)he has been recognised as the child’s mother/father within the jurisdiction of the child’s birth, such as a court order or being named on the birth certificate and
• evidence that the surrogate mother consented to the arrangement after the birth (this is not needed if a post-birth order has been obtained) – this should be dated at least 6 weeks after the birth

The guidance no longer requires a court order – a birth certificate is sufficient – and this is a welcome change.

The only negative to the new guidance is that the surrogate mother’s consent has to be signed after six weeks. This is the position when applying for parental orders through the Family Courts, but it has not been requested before in British Citizenship registration applications. However, the possible delay this could cause has been alleviated by the Home Office agreeing that such consents can be sent on later to be added to an application. Therefore, when applying on this basis, the application can be submitted as soon as it is ready and the six-week consent sent later.

We stress that this guidance relates to applications relying upon the citizenship of a British citizen mother (whether or not she has a biological link) or on the citizenship of a British citizen non-biological father. There is no requirement for the consent to be signed after six weeks when registering on the basis of a British citizen biological father.

This may appear a small change but it will reduce the amount of time some parents need to remain abroad. Families are usually very keen to return to the UK as soon as possible so any reduction in delay is very welcome.

 

Barry O’Leary is the author of the ‘International Surrogacy and British Nationality and Immigration Law chapter in “Surrogacy: Law, Practice and Policy in England and Wales.”

Described as “the Rolls-Royce of immigration and asylum,” Barry O’Leary is highly valued for his successes with family, partnership, international surrogacy and sexual identity cases. An interviewee says: “He’s a very experienced solicitor who does fantastic work across the board.” – Chambers 2020

“Barry O’Leary is experienced in applications based on partnership and family and in relation to international surrogacy arrangements, while he also handles asylum and human rights claims based on sexual identity.” – Legal 500 2020

 

10 May 2018 sees the official launch of the LexisNexis publication ‘Surrogacy, Law, Practice and Policy in England and Wales’ . The book is an essential guide for those advising on surrogacy law.

The book is edited by Ruth Cabeza of Field Court Chambers and she has been ably assisted by fellow barristers from her chambers and Lillian Odze of the Cafcass High Court Team.

I am the author of the chapter ‘International Surrogacy and British Nationality and Immigration Law’.

The book is an important step towards informing both advisors and parents as to the British nationality and immigration law issues that arise in international surrogacy cases. Given the restriction on commercial surrogacy arrangements in the UK, UK-based commissioning parents frequently enter into international surrogacy agreements which lead to the birth of their children abroad. The birth of a child outside the UK inevitably leads to questions concerning British nationality and immigration law.

The fact that there is any nationality or immigration issue at all can come as something of a shock to many commissioning parents. Those who are British from birth have often not come into contact with the British nationality and immigration system before and understandably assume that their child will be born British whatever the circumstances.

Furthermore, British nationality law will often be at odds with the law in which the child will be born. In that country, the British commissioning parents may be the legal parents at the date of birth and named on the birth certificate. This does not mean that they will be the parents for the purposes of British nationality law.

Commissioning parents are well-advised to consider the immigration and nationality matters in advance. Ideally, they should take immigration and nationality law advice before entering into the surrogacy agreement. That said, there is an immigration and nationality law solution to most situations and parents who obtain advice during the pregnancy can usually prepare in time for the birth. We can, of course, also give initial advice after the birth but parents are well-advised not to leave obtaining advice until then.

In my chapter, I have set out the different circumstances that can arise and the immigration and nationality law solutions. The aim is to have these issues more widely known. Of course, we remain happy to advise parents on their particular case.

 

I spoke with John Humphrys on the Today Programme on Radio 4 this morning. The interview is here at 1:16:05: https://www.bbc.co.uk/radio/player/b09zt3fj.

On behalf of the Law Society, I raised the Data Protection Bill, currently making its way through Parliament, and the clear link with the ‘Windrush cases’. In those cases, the Home Office has apologised because individuals who have been in the UK lawfully for many years have been treated as if they had no status at all. This is clearly a scandal.

However, if the Data Protection Bill is passed in its current form, it will increase the chance of such injustices happening again in the future, and to a much wider group of individuals.

The main purpose of the Data Protection Bill is to strengthen individuals’ data protection rights but it contains an ‘immigration control exemption’ which means that the Home Office can ignore data protection rights if they think such rights will ‘undermine immigration control’.

There are a number of concerns with this part of the Bill (explained in detail in Liberty’s briefing below) but we are most concerned with the impact on Subject Access Requests (SARs), that is the right to see what information the Home Office holds about an individual.

We often make SARs to the Home Office for the release of our clients’ files because these files can provide crucial information. The Home Office cannot be relied upon to provide this information without a SAR, and the Home Office often does not act in accordance with its own records when making life-changing decisions. As the Windrush cases show, the Home Office frequently make serious mistakes.

The immigration control exemption means the Home Office will be able to refuse SARs and withhold information. This will remove an important tool in holding the Home Office to account when they ignore or misrepresent facts, it will fundamentally undermine access to justice and the effective operation of the rule of law in the UK.

We have gathered examples from many immigration lawyers to show when SARs are crucial. These examples have been used in the Parliamentary briefings by the Immigration Law Practitioners Association, The Law Society, and The Bar Council (see below). The examples bring home forcefully how important SARs are.
In response, the Home Office has stated:

“It is wrong to say that the proposed narrow exemption in the Data Protection bill is an attempt to deny people access to their data. People will still be able to request data as they can now and will be met in all cases except where we to do so could undermine our immigration control. They will have the right to complain to the information commissioner if they disagree with any use of the immigration exemption and we would always want to assist those whose claims are in question.”

This is simply not good enough. The exemption is not narrow; there is no definition of ‘undermine immigration control’ and the Bill gives the Home Office wide-ranging powers to ignore data protection rights. Furthermore, access will be all in their power. If the Home Office make a mistake and say an individual is unlawfully present when they are not, that individual will not have access to the information required to show a mistake had been made because the Home Office can legally deny that access on the basis of ‘immigration control’.

The right to complain against denial of access is of no comfort. Such complaints can take many months to be resolved, meaning the individual may have been removed or deported from the UK or may have been denied access to essential services, such as health care. Also, such complaints may well be unsuccessful as this Bill will make lawful the denial of access to information. The Information Commissioner’s hands may be tied.

If the government has learned anything from the Windrush cases, it must remove this exemption from the Bill. If they do not, they have learned nothing.

If individual MPs vote for this bill in in its current form, then despite their professed disgust at the Windrush cases, they will be complicit in future injustices.

 

 

Links:

https://www.libertyhumanrights.org.uk/sites/default/files/Liberty%27s%20Briefing%20on%20the%20Data%20%20Protection%20Bill%202017%20for%20Second%20Reading%20in%20the%20House%20of%20Commons.pdf

http://www.ilpa.org.uk/resources.php/34023/ilpa-briefing-for-second-reading-of-the-data-protection-bill-2017-in-the-house-of-commons-2-march-20

https://publications.parliament.uk/pa/cm201719/cmpublic/DataProtection/memo/dpb20.pdf

https://www.barcouncil.org.uk/media/641717/180228_immigration_control_exemption_hoc_2r_briefing_data_protection_bill_bar_council.pdf

 

As immigration lawyers, we frequently need to make subject access requests to the Home Office for the release of our clients’ files. These files often provide crucial information about our clients’ immigration histories. We cannot rely on the Home Office to provide this information without such a request, and they frequently do not check their own records properly when making life-changing decisions.

 

We are, therefore, very concerned about the immigration control exemption in the Data Protection Bill. Schedule 2 of the Bill sets out exemptions from the General Data Protection Regulation (GDPR). Paragraph 4 states:

 

Immigration

 

4 (1) The listed GDPR provisions do not apply to personal data processed for any

of the following purposes—

(a) the maintenance of effective immigration control, or

(b) the investigation or detection of activities that would undermine the

maintenance of effective immigration control,

to the extent that the application of those provisions would be likely to

prejudice any of the matters mentioned in paragraphs (a) and (b).

 

We believe that the Home Office will use this provision to limit our access to Home Office files through subject access requests. The Information Commissioner has published reports on the Bill, and this paragraph acknowledges this issue:

 

“20. The majority of data protection complaints to the Information Commissioner about the Home Office relate to requests for access to personal data to UK Visas and Immigration, mostly by solicitors acting on behalf of those seeking asylum. This exemption could potentially render personal data unobtainable to the data subject and this could be detrimental to individuals who are appealing asylum decisions for example. If the exemption is applied, individuals will not be able to access their personal data to identify any factual inaccuracies and it will mean that the system lacks transparency and is fundamentally unfair.”

 

We have put a call out for examples of when crucial information has been discovered through subject access requests. We have had a very good response so far. One example concerns a client who the Home Office denied was a British Citizen and detained for 17 months. When his lawyers applied for the Home Office file through a subject access request, they discovered that the evidence that the client was British had been held by the Home Office all along.

 

Solicitors need the facts in order to represent their clients. This exemption could deny access to justice, reduce our ability to best represent our clients, and allow the Home Office to misrepresent facts without us having the means to be able to hold them to account. If you have further examples of the importance of subject access requests, please send them to barry@gryklaw.com.