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