Register Child As British Or Apply For Child Settlement?

[7by7]

I have been in conversation with a member who, for reasons which I understand, does not wish to be identified at this time.

As I am unable to fully answer his questions he has given me permission to start this topic in the hope that those more knowledgeable may be able to do so.

The circumstances are as follows.

He is British otherwise than by descent.

Nine years ago he had a daughter with a Thai woman to whom he was not, and never has been, married. He is named as the daughter's father on the Thai birth certificate.

As the child was born before 1st July 2006 and as he was not, and never has been, married to the mother; the child is not currently British.

The mother has been in prison for the last two years and the girl has been in his care in Thailand. She is, though, due for release in August.

He has lost his job in Thailand and so has to return to the UK and wants to bring the child with him.

He is in the process of obtaining sole custody through the Thai courts, and though the courts have recognised that he is the legal father, the process has been delayed due to incompetent lawyers. He has fired these and employed new ones.

The questions.

He can apply to the Home Office in the UK to register the child as British and assuming this is successful he can obtain a British passport for her.

But can this be done from Thailand? I think so, but would like confirmation.

Registration can take a long time, as can the subsequent passport application.

So would he be better off applying for a child settlement visa for her?

If he did, what do people think his chances of success would be?

One factor to consider, of course, is that if she had a British passport she would not need a UK visa and he would not need to show sole responsibility nor meet the financial requirement.

He is also concerned that whether she had a British passport or a settlement visa, the Thai authorities may not allow her out of Thailand without the mother's permission; even though he will, hopefully, have sole custody. Any thoughts on that?

[7by7]

Anyone?

[MANICMINER]

You say the child is not currently british, but the child is British at birth, because he did not get his citizenship by descent and it is no longer a requirement for the parents to be married. The child's British citizenship is not dependent on the mother. At the worst, they may ask for additional documentation, such as a DNA test, as i believe they do at the U.S embassy for U.S citizenship. This can be done cheaply at any hospital, so is not a problem. Your biggest problem is the Thai passport, as the child cannot leave the country without it. The application for the thai passport requires the mother's signature, as he does not have sole custody. Also, at the airport, they often ask for birth certificate/ letter from mother. if he does not have these, they may want to speak to the mother. so if she objects, they will not let him on the plane.

[beano2274]

I thought that he would have to have sole custody first, then apply for a passport, but not sure that it can be British as the father is not British by Birth, and nationality cannot be passed to a child.

If he adopted the child then I believe that the child could obtain a British passport, but this is a complicated and long way to do it.

[7by7]

Manicminer,

He is named on the child's birth certificate as the father and this is acceptable to the Home Office; no need for DNA tests.

Prior to 1st July 2006 British mothers could pass their citizenship to their children born abroad regardless of the nationality of the father and whether or not they were married to the father.

But British fathers could only do so if they were married to the mother at the time of the birth.

This, unjust in my opinion, rule was changed with effect from 1st July 2006 and children born abroad to British fathers and a foreign mother are now automatically British whether the parents are married or not; provided the father is British otherwise than by descent.

But the rule change was not retrospective, so does not effect the status of children born before it came into effect.

The child in this case was born before 1st July 2006 and the father was not, and never has been, married to the mother. Therefore she is not automatically British. Though as said, he can apply to register her as such.

But thanks for the information regarding the child's Thai passport and the difficulties he may encounter when leaving Thailand with her.

Would this still be the case if he had sole custody issued by a Thai court?

Beano,

The father is British otherwise than by descent. Therefore, had he been married to the mother at the time of the birth or had she been born on or after 1st July 2006 the girl would automatically be British.

[MANICMINER]

Manicminer,

He is named on the child's birth certificate as the father and this is acceptable to the Home Office; no need for DNA tests.

Prior to 1st July 2006 British mothers could pass their citizenship to their children born abroad regardless of the nationality of the father and whether or not they were married to the father.

But British fathers could only do so if they were married to the mother at the time of the birth.

This, unjust in my opinion, rule was changed with effect from 1st July 2006 and children born abroad to British fathers and a foreign mother are now automatically British whether the parents are married or not; provided the father is British otherwise than by descent.

But the rule change was not retrospective, so does not effect the status of children born before it came into effect.

The child in this case was born before 1st July 2006 and the father was not, and never has been, married to the mother. Therefore she is not automatically British. Though as said, he can apply to register her as such.

But thanks for the information regarding the child's Thai passport and the difficulties he may encounter when leaving Thailand with her.

Would this still be the case if he had sole custody issued by a Thai court?

Beano,

The father is British otherwise than by descent. Therefore, had he been married to the mother at the time of the birth or had she been born on or after 1st July 2006 the girl would automatically be British.

Apologies, i thought the rule changed long before 2006. So i think he will have to go through the registration process. I believe he can get the Thai passport, if he has sole custody, and he can then show those documents at the airport. I have a daughter myself, so am really feeling for the guy - must be at wits end with all the hoops he has to jump through. hope he has enough funds to stay in thailand, because it could take a long time. please keep us updated.

[7by7]

Thanks for the info on sole custody.

[bobrussell]

Home Office guidance makes it clear that under almost all circumstances children born before July 2006 will be treated in the same way as those born after that date.

The UKBA page is:

http://www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/children/britishcitizen/borntobritishfather/

Specifically:

We will normally register any child born before 1 July 2006 to a father who is a British citizen father under section 3(1) if the requirements below are met:

we are satisfied about the paternity of the child; and

we have the consent of all those with parental responsibility; and

we are satisfied that if the parents were married:

- the child would have an automatic claim to British citizenship; or

- the child would have an entitlement to registration under sections 1(3), 3(2) or sections 3(5) of the British Nationality Act 1981; or

- we would normally have registered the child under section 3(1); and

if the child is over 10 year of age, they are of good character.

I cannot see any reason for an application to be made for a settlement visa as the child already seems to fit these criteria. It will need to be documented properly but should not be a problem. The extra cost alone would seem wasteful! Settlement visas are not usually processed that quickly either!

One of my nephews was born under the old rules and the other after!

They might still accept the application if a good case could be presented to indicate the mother was unfit to take responsibility (even partial!). Clearly this is not a judgement for forum members!!

Unless things have changed the application is made through the British Embassy in Thailand.

If issued with a British passport there might be a problem leaving Thailand without a stamped arrival landing card.

[7by7]

Valid point, Bob, but I am concerned by

we have the consent of all those with parental responsibility

although, presumably, once he has sole custody this wont be an issue as he would be the only one with parental responsibility.

Thanks for confirming that he can submit the application in Thailand via the embassy.

[lonexpat]

Thanks to everyone for their replies,they've been most helpful. I will be meeting a lawyer today with regards to sole custody.When that is completed I will go to the British Embassy.Although I have the money for both my concern was the finances for staying in Thailand. Yesterday I received a phone call offering me a teaching job . For the first time in months there seems to be light at the end of the tunnel. Thank you, 7by7,and for everyone's help with this matter. It's been deeply appreciated.