On 29 March 2023, the Law Commission published its proposals for surrogacy law reform in the UK.  This followed their research and discussions going back to 2018.  I was involved in those discussions on behalf of the Law Society.  I know that the Law Commission were committed to hearing responses from many different viewpoints and balancing those responses. They took their responsibilities very seriously.

While the Law Commission’s proposals are a positive step for those who are able to arrange a surrogacy in the UK, they are more limited for those who enter into international surrogacy arrangements.

The Law Commission have proposed a new pathway which would replace the current parental orders, but international surrogacy arrangements would be excluded from that pathway and parental orders would still need to be obtained. On the positive side, the Law Commission has proposed:

 

• Improvements to the speed and efficiency of existing nationality and immigration processes;
• An amendment to British nationality law so that more children would be born automatically British;
• The introduction of clearer guidance;
• Updating the current ‘outside the rules’ visa policy and bringing it within the Immigration Rules.

 

It should be stressed that these are just proposals and it is up to the government to decide whether to adopt any or all of the Law Commission’s recommendations. We await a response from the government.

 

For now, we continue as before and we are, of course, happy to advise on any immigration nationality issues relating to international surrogacy agreements.

If a child is born in the United Kingdom and lives here until they turn 10 years old, they may have an entitlement to register for British citizenship. However, if they are born outside of the United Kingdom and move here as a child, they have no entitlement to citizenship, even if they, too, live here for 10 years. Fortunately, the Home Office recently updated their citizenship guidance meaning that children in this situation have a much better chance of registering as British citizens.

Section 3(1) of the British Nationality Act 1981 (BNA 1981) states that ‘if while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen’. This means that the Home Office can exercise a wide discretion to register children as British citizens. They have published detailed guidance setting out the circumstances in which they will do so.

On 19 July 2022, the Home Office updated its guidance relating to the registration of children as British citizens under Section 3(1) of the BNA 1981, specifically for those who were not born here but have lived in the United Kingdom for more than 10 years. The reason for this change is to recognise that 10 years “constitutes a significant period of residence for a child to demonstrate a strong connection with the UK”, irrespective of whether they were born here.

Children who have lived in the United Kingdom for more than 10 years

Children born abroad who have lived in the United Kingdom for more than 10 years will now “normally” be granted British citizenship under Section 3(1) of the BNA 1981 provided they meet all the relevant parts of the guidance as follows:

• They are in the UK lawfully;
• Their parents have regularised their own status;
• Where necessary, both parents consent to registration or any objections by the non-applying parent are ill-founded; and
• There is no reason to refuse on character grounds

Previously, the guidance stated that they would only grant British citizenship to a child in this scenario if they were an older teenager (16 years old and above) who had spent most of their life in the UK, on the basis that those were exceptional circumstances. This is a significant change which means many more children are likely to have successful British citizenship applications.

What if the child does not meet the criteria in the guidance?

There will still be children who have lived in the United Kingdom for more than 10 years, but cannot meet those criteria, for example because the child and/or their parents do not have lawful immigration status.

In this scenario, it is always open to those children to apply for registration at the Home Office’s discretion. However, as before, they will be expected to provide evidence of exceptional circumstances why they should be granted British citizenship, such as their length of residence, connection to the United Kingdom and proof that their future lies here.

The Home Office must always treat the best interests of the child as a primary consideration. These cases will be considered on their own merits. Therefore, immigration advisers should not be deterred from making these applications even if the child’s circumstances are not perfectly in line with this guidance. They must, however, ensure that these applications are well evidenced.

We have a lot of experience assisting children to register as British citizens. If you require advice in relation to this updated guidance, we would be happy to help. Please contact us on 0207 401 6887 or via email on contact@gryklaw.com.

 

For Pride month, the US Presidential Scholars Foundation & Alumni Association project ‘Scholar Perspectives on Societal Change: Sexuality, Gender, and Identity’ published an essay by our founder, Wesley Gryk. In that essay, Wesley recounts his very personal experience of being a gay man during more than half a century of what have been unprecedented historical positive changes in societal attitudes in some parts of the world. He cautions that the impact of such changes may often depend on the personal circumstances of the individual concerned and, in particular, warns against complacency, given that large swathes of the globe remain unaffected by such progress and, further, that such progress which has been achieved could easily be erased.

Read the essay here:

Wesley Gryk 2022 — Presidential Scholars Foundation