News and updates | Wesley Gryk Solicitors LLP

International Surrogacy and US Birthright Citizenship

7th August 2025 By Sofia Bassani

This blog was originally posted on 7 August 2025. It was most recently updated on 17 September 2026.

This historic blog post focussed on President Trump’s challenge to birthright citizenship. As we explain below, On 30 June 2026, the Supreme Court ruled that children born in the US will continue to be US citizens at birth, and that President Trump cannot limit this right.

However, on 6 August 2026, President Trump signed two new executive orders which could restrict the issue of US passports (and even entry to the USA to the parents). At present, our clients’ children born of surrogacy in the USA are still receiving US passports but we are monitoring this closely. We have met with UK Visas and HM Passport Office to put in place contingency plans for if the situation changes.

At Wesley Gryk Solicitors, we are experts in UK immigration and nationality law. However, in this blog, I am branching out and looking at the issue of birthright citizenship in the USA because it could potentially impact upon a number of our clients.

A background

The Fourteenth Amendment of the American Constitution states that all persons born on American soil are citizens of the United States. On his first day as President, Donald Trump signed an executive order which would end this birthright citizenship.

The birthright citizenship battle has already taken many twists and turns. The executive order was almost immediately challenged in the courts, with injunctions preventing the order from taking effect anywhere in the US. The issue made its way to the Supreme Court who, on 27 June, overturned the nationwide injunctions, determining that the judges who had made them had overreached their authority. More recently, on 10 July, a New Hampshire judge categorized babies who would be affected by the order as a ‘class’ and issued a class-action lawsuit, which once again stopped the order from taking effect. This new nationwide injunction has not yet been challenged.

What does this mean now for children born in the US through surrogacy arrangements?

Our firm has the privilege of regularly assisting couples who would like to expand their families through surrogacy in the US. These children are US citizens upon birth and rely on their American passports to travel home. Parents are now understandably worried that the executive order will close this option down.

We are not experts in US law, but we are monitoring the situation closely. At the moment, nothing significant has changed and babies born through surrogacy in the US have continued to be born as American citizens and issued with American passports.

What would happen if the birthright citizenship changes came into effect?

It is yet to be seen whether this will directly impact children born to surrogates. Our colleagues in the USA cannot say exactly which children will be affected. If it does have any impact, it is important to remember that there are solutions in British immigration and nationality law so we will very likely be able to assist even if the US citizenship laws do change (though some scenarios may be more problematic than others).

We anticipate that the biggest difference for most will be the length of time that parents may have to stay in the US after their child is born. Where babies could previously use their American passports to travel home, parents may now have to wait in the US while a British passport or a visa is issued. With our friends at NGA law, we are already in contact with the nationality section of UK Visas and His Majesty’s Passport Office. They are aware of the issue and ready to assist if necessary.

What does the future look like?

There is still no clear answer to what the situation will be for children born following a surrogacy arrangement in the US in a few years’ or even a few months’ time. In their determination, the Supreme Court did not rule on the merits of the order itself. Therefore, a decision still needs to be made on whether the order is unconstitutional, and a date for this hearing has not yet been set.

We will continue to monitor, and we would be happy to advise any commissioning parents who are worried about the situation.

Updates since original blog post

On 30 June 2026, the Supreme Court ruled that children born in the US will continue to be US citizens at birth, and that President Trump cannot limit this right.

However, despite the Supreme Court ruling, on 6 August 2026 President Trump once again tried to limit birthright citizenship by signing two new executive orders. These orders could impact parents using America for their international surrogacy arrangements. We are monitoring this and will provide updates on this blog post.

If you would like further advice on how this may affect you, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com to arrange a consultation with one of our team.

Change to the continuous residence requirement for settled status under the EU Settlement Scheme

14th July 2025 By Katie Dilger

A welcome change is being introduced to the continuous residence requirement for settled status under the EU Settlement Scheme. The change takes effect on 16 July 2025.

The EU Settlement Scheme allows qualifying EEA nationals and their family members to continue living in the United Kingdom post-Brexit. Broadly, under the Scheme individuals who have completed a continuous period of five years of residence are granted settled status (indefinite leave). Those with a shorter period of continuous residence are granted pre-settled status (limited leave).

Under the rules in place since the Scheme’s inception, continuous residence is broken if a person’s absences exceed six months in any rolling 12-month period. Absences longer than six months within a 12-month period are disregarded only in very limited circumstances.

As the Home Office has recognised [1], this strict definition of continuous residence has resulted in numerous EU citizens and their family members inadvertently breaking their continuous residence in the United Kingdom.

From 16 July 2025, the continuous residence requirement will therefore include a concession for those who have exceeded the current absence limit. Going forward, continuous residence will not be broken by absences of up to 30 months (2.5 years) in total within the five years prior to the date of the application.

As a result of these changes, many EEA nationals and their family members who were otherwise ineligible may find themselves able to meet the rules for settled status.

If you would like further advice on how the changes to the continuous residence requirement will affect you, or you wish to make an application for settled status, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com to arrange a consultation with one of our team.

References

[1] https://www.gov.uk/government/publications/statement-of-changes-to-/e-immigration-rules-hc-836-24-june-2025/explanatory-memorandum-to-the-statement-of-changes-to-the-immigration-rules-hc-836-24-june-2025-accessible

Proposals in the Immigration White Paper on Settlement in the UK

20th June 2025 By Caroline Asken

Last month, the UK government published a white paper titled ‘Restoring control over the immigration system’, which set out a series of proposed changes to the UK immigration system.

It is important to note that none of these proposed changes have yet been implemented, nor any details provided of proposed changes to the UK immigration rules. It is not clear when and whether the proposed changes will come into force, and the UK government has said they will first be consulting with stakeholders on some of the changes. We will only be in a position to advise fully on the proposed changes in the white paper once the proposed changes to the Immigration Rules are published.

In the meantime, many of our clients are understandably concerned that it may take longer than expected, and be more difficult, to obtain indefinite leave to remain (also known as settlement).

The white paper proposes to reform the route to settlement– by increasing the standard settlement qualifying period from five to ten years and introducing an ‘earned settlement’ model to reflect the principle that settlement should be earned through the long-term contribution a person brings to the UK economy and society. It further proposes to increase the English language requirement for the majority of settlement routes from level B1 to level B2 competency.

While we do not yet know exactly who the proposed increases in time to settlement will apply to, the white paper does though confirm the intention to maintain the current timeframes for obtaining indefinite leave to remain in at least the following immigration routes:

Settlement for partners of British citizens

Provided they meet the standard eligibility criteria in full, partners of British citizens should still be able to apply for indefinite leave after five years’ lawful residence in the UK under the partner route.

Settlement for victims of domestic violence and abuse

The current pathways to indefinite leave to remain for victims of domestic violence and abuse will be maintained.

We are keeping abreast of any changes to the UK Immigration Rules and accompanying guidance, and can advise in full how they may impact you and your family once the government introduces them.

Should you want advice on your eligibility for indefinite leave to remain or need assistance with your indefinite leave application, you can get in contact with us on 020 7401 6887 or by email at contact@gryklaw.com to arrange a consultation with one of our team.

Child ILR applications

1st May 2025 By Maria Bateson

The recent CPH judgment could have important implications for children (under 18s) who are eligible for indefinite leave to remain (‘ILR’) but cannot afford the high application fee (recently raised to £3,029).

Home Office fees have been increasing significantly over recent years and, as a result, have become unaffordable for many families. While it is possible to apply for a fee waiver if you cannot afford the fees for a limited leave to remain application, this is not available for indefinite leave applications. However, in CPH, the Home Office acknowledged the possibility of applicants being considered for grants of indefinite leave ‘outside of the Rules’ without a fee being paid.

CPH is a child who was born in the UK and had resided here continuously for more than seven years. As such, as long as it could be shown that it would not be reasonable for the child to leave the UK and there were no suitability issues, CPH qualified for indefinite leave under the rules set out in Appendix Private Life. However, although CPH had been granted a fee waiver for a leave to remain application, (because none was available for indefinite leave) his application for ILR was rejected on the basis that he had not paid the correct fee. It was also considered – and refused – outside of the Rules on a discretionary basis, taking into account the restrictive guidance contained in Family Policy: Family life (as a partner or parent) and exceptional circumstances (‘the Family Policy’), which allows for exceptional grants of indefinite leave outside of the Rules.

CPH’s representatives challenged the Home Office decision as well as the legislative and policy framework. Section 55 of the Borders, Citizenship and Immigration Act 2009 (‘s55’) sets out that the functions of the Secretary of State must be discharged with regard to the need to safeguard and promote the welfare of children in the UK. It imposes a duty to treat the best interests of the child as a primary consideration in, for instance, immigration decision-making or related guidance. Decision-makers must also demonstrate that the best interest of the child has been balanced against any countervailing priorities in reaching a decision. CPH was successful in arguing that the decision was unlawful because the Home Office had failed to properly consider the s55 duty to safeguard and promote the welfare of children, and that the Family Policy guidance itself was unlawful because it did not comply with the s55 duty.

The Home Office has sought to appeal the judgment but, if the decision is upheld at appeal, they will need to revise its Family Policy guidance on grants of indefinite leave outside of the Rules and make a new decision for CPH. Alternatively, we would hope the Home Office also considers implementing a fee waiver policy for indefinite leave applications, thereby reducing the need for complex consideration of straightforward cases outside of the Rules.

This judgment also serves as a reminder that the best interests of the child is a mandatory and primary consideration that must be adequately applied in all immigration decisions affecting children, and highlights that “in many (if not most) cases, a grant of ILR is more likely to serve the best interests of a child than a grant of limited leave to remain”.

Changes to the Good Character Guidance for Nationality Applications

4th April 2025 By Jennifer Aitken

On 10 February 2025, changes were made to the Good Character requirement guidance for applications for British citizenship. Good character is a requirement for naturalisation and for many types of application for registration as a British citizen. The policy changes prevent people from obtaining British citizenship if they entered the UK illegally. The amendments were not anticipated and came in with immediate effect for all applications made on or after 10 February 2025, irrespective of when the individual entered the UK.

The guidance now states:

1. 1. “Any person applying for citizenship from 10 February 2025, who previously entered the UK illegally will normally be refused, regardless of the time that has passed since the illegal entry took place. …
  2. A person who applies for citizenship from 10 February 2025 who has previously arrived without a required valid entry clearance or electronic travel authorisation, having made a dangerous journey will normally be refused citizenship.
  3. A dangerous journey includes, but is not limited to, travelling by small boat or concealed in a vehicle or other conveyance. It does not include, for example, arrival as a passenger with a commercial airline.”

It is expected that the change will affect many people, particularly refugees who may have entered illegally when fleeing their country of origin. Previous Good Character guidance instructed caseworkers to consider Article 31 of the Refugee Convention when assessing whether to refuse an application on the basis that a person had entered illegally in the previous 10 years. Article 31 provides that States “shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … , enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

Concerns about various aspects of the new policy have been raised since its introduction in February, particularly the impact on those who entered the UK as children. On 31 March 2025, Baroness Lister of Burtersett, received a written answer (HL 5846) to a question regarding the application of the policy to children. This states:

1. 1. “When assessing good character, it is normally appropriate to disregard immigration breaches if it is accepted this was outside of the applicant’s control. Given illegal entry is normally considered outside a child’s control, most children would not be held accountable for their immigration breach. The 10 February 2025 amendments to the good character policy did not alter this position.”

While some comfort, the written answer leaves open the possibility that a person could still be held accountable for an illegal entry as a child.

If you are concerned about how the policy might affect you and would like advice and assistance with making either a naturalisation or registration application, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.