The plight of a six-year-old British-born boy stranded in Belgium has recently hit the headlines but the legal background of the story may be a little confusing to the uninitiated.
Mohamed Bangoura has been stuck in Belgium since 26 August, when he was refused permission to board a plane back home to the UK following a three-week holiday with family friends.
The Home Office claimed it had revoked Mohamed’s British passport earlier this year but his mother told The Telegraph she had never received the revocation letter, pointing out she would hardly have sent her son to Belgium had she been aware of the situation.
A campaign has now been launched to reunite Mohamed with his mother, Hawa Keita, and try to secure his return for the start of the school year. Ms Keita is a Guinean national, whose own passport is currently with the Home Office for her visa renewal, and so she is unable to travel to Belgium.
The question that many might be wondering is whether the Home Office made a mistake in issuing the passport in the first place and, if they did, how this could have happened.
The legal background
There are a number of ways children can acquire British passports. Some children are deemed British automatically at birth in which case parents can simply apply for a passport.
In other situations, a parent may be able to register a child as British. Some children have a right to be registered as British, while in other cases the Home Office can “exercise discretion”, i.e. register a child as British because of the particular circumstances of the case. Once a child is registered, the parent can then apply for a British passport for that child.
I suspect the vast majority of British passports issued to children in the UK are on the basis of section 1(1) of the British Nationality Act 1981. This says a child born in the UK is automatically British if at least one parent is a British citizen or has settled status (i.e. the right to remain in the UK permanently) at the time of birth.
This appears to be the basis upon which Mohamed obtained his passport. Although his mother is a Guinean citizen with a time-restricted visa, his father is a British citizen, who had the right to stay permanently in the UK at the time his son was born.
However, the catch comes in the form of section 50(9A) of the 1981 Act. This frequently crops up in surrogacy cases but gets little attention at other times. This sets out the legal definition of a child’s father as being “the husband, at the time of the child’s birth, of the woman who gives birth to the child”.
Mohamed Bangour’s situation
In the present case, it seems Ms Keita was still married to a man other than Mohamed’s father at the time she gave birth. They had been estranged for many years and Mohamed’s biological father was listed on the birth certificate but this makes no difference from a legal perspective.
A British passport form does not ask whether the mother was married to someone other than the child’s father at the time of birth, and so there was no reason the issue would have come to light at the time of application. The Home Office has apparently become aware of the full circumstances since, although it is not clear how.
Mohamed’s plight is particularly distressing because he is stranded outside the UK and separated from his mother.
However, he is not the first child to have a British passport revoked for this reason.
A case this summer challenged the revocation of the British passport of a four-year-old girl born in the UK to a cohabiting Pakistani mother and British father. The husband of the girl’s mother was a Pakistani national living abroad, from whom she had been separated for many years.
The judge in that case was extremely sympathetic to the family’s plight and considered the effect of section 50(9A) was discriminatory and incompatible with human rights law. She made a “Declaration of Incompatibility”, which is meant to prompt the government to change the law.
She suggested that a temporary stopgap would be for the Home Office to “exercise discretion” to register such children as British but considered this was not a satisfactory long-term solution. She also made no mention of the extortionate cost of such applications – £1012 compared to £49 for a passport.
The judge indicated that a number of other cases were pending on the same legal point but had yet to be decided. As such, the girl in that case and Mohamed are far from the only ones affected.
This means it is now up to the UK government to take urgent action. Its first step has to be to secure Mohamed’s return home. Its next step has to be swift action to end a situation in which children are discriminated against simply because of the marital status of their parents.
For advice on making a visa, immigration or nationality application or in relation to immigration matters more widely, please contact Karma or another member of our Immigration Team on 020 7631 4141 or email email@example.com.