A Child with No Nation: The Indian Stateless

A person is stateless when they do not have a country of nationality and no government takes responsibility for them. Being stateless has serious repercussions as it impacts on the legal rights of the person – for instance, a stateless person lacks legal residence, right to vote, the right of return to their country, right to travel and cannot access consular protection from anywhere.

This situation is particularly more complicated in case of Indian children born abroad to parents who have an illegal status in the UK. Or Indian children who are born abroad to Indian parents who fail to register the birth of their child with the Indian consulate within one year of the child’s birth as required under the Citizenship Act 1955 (as amended).

Under both these scenarios, the Indian child will be rendered stateless, i.e., without nationality of either India or the UK which will jeopardize your child’s legal rights and access to the same.

Perhaps the key to resolving your child’s predicament of non-belonging and stateless lies with the recent landmark decision in The Queen on the application of MK (a child be her litigation friend CAE) v SSHD (“MK”) which has firmed up the precedence best interest of the child.

The MK case significant in so far as it confirms that under the British Nationality Act 1981 (“the 1981 Act”), a person born in the United Kingdom may be registered as a British citizen.

Perhaps the facts of the MK case might resonate with yours and it is worth recalling them briefly here: MK was born in the UK in November 2010 to parents of Indian nationality who were overstayers in the UK. Upon the birth of MK, her parents made several failed attempts to register her birth with the Indian High Commission in the UK.

This case went on to be an 18-month long legal battle and the Court finally agreed to the stateless status of MK due to the inability of being registered with Indian authorities and subsequently allowed her to register as a British Citizen.

Therefore, a child born on or after 3rd December 2004, to Indian parents outside, who has not been registered with the Indian authorities, is deemed stateless and is entitled to be registered as a British Citizen.

The judgement is particularly in line with the Article 7 of the UNCRC (concerning birth registration, name, nationality and care) which protects the importance of the child to be registered at birth and the nationality rights that ensue with registration.

The potential effects of the MK decision are massive, especially transformative for the lives of several children born to parents who have an illegal status in the UK or have failed to register their child’s birth and the children run the risk of being rendered stateless.

This could possibly hold the key for regularising the clandestine status of Indian parents who have established a private and family life and enjoy a genuine parental relationship with a qualifying child.

In such a scenario, the parent will be granted leave on being the primary carer of the said child. Crucial here is the test of a genuine parental relationship the onus of establishing which is upon the parents.

Genuine parental relationship can be demonstrated through evidences and questions to crucial answers pertaining to the nature of relationship with the child, the extent of care and involvement in the child’s life and the willingness to care in future, living arrangements of the child and the overall contribution of the parents in their child’s life.

It is very important to establish the relationship of dependency of the child on the parent and that the parental relationship is of a subsisting nature and not a recent one established in the view of resolving their immigration status.

Further, this relationship must be supported with a range documents like school letters, letters from the GP, Redbook for your child, a personal statement written by the child if the child is able to express her views and letters of support from friends, family, teachers and child minders of the child to demonstrate and confirm that the parents are deeply and extensively involved in the child’s life and deserve to remain in the UK on the basis of their child.

REFUSAL
However, it must be borne in mind that a failure or inability to register your child does not always automatically mean that your child will be granted a British Citizenship. There are certain circumstances where your application can be refused and it is crucial to be aware of them:

• If you fail to prove that there is a genuine and subsisting parental relationship with your child;
• If the child could otherwise stay with another parent or alternative primary carer in the UK or in the EU;
• If there is criminality involved which means that keeping the primary carer in the UK is a threat for national security or not conducive to public good;
• If the parents have a very poor immigration history, such as where the person has repeatedly and deliberately breached the Immigration Rules.

CONCLUSION
The MK case has been a landmark case in recognising and protecting the social, cultural and linguistic ties that a child builds with the UK. The case has furthered our understanding of the best interests of the child to another level whereby unregistered children can have direct access to British Citizenship and all that follows. As parents, it is crucial that your child does not pay the price for your illegal status. If you have a child that is born in the UK and you have been unable to register their birth with your embassy, you must take the steps to register them as British Citizen. Stateless makes the non-belonging have material consequences whereby the child will be grow up without a nation.

If you need a U.K immigration lawyer and need assistance with any aspect of UK immigration law whether from inside the U.K or from overseas, contact Aschfords Law in Harrow, London. We also provide legal advice and assistance in respect of Family Law, Wills & Probate, Litigation, Landlord & Tenant. Please contact us today on +44 (0) 7582932830