Concept of Illegitimacy Abolished in British Nationality Law on 1 July 2006

On 1st July 2006 the concept of illegitimacy will no longer exist in British nationality law.

Under the British Nationality Act 1981, a father could only pass British citizenship automatically to his child if he was married to the child's mother at the time of the child's birth. If he was not married to the mother at the time of birth, the child is referred to as 'illegitimate'. If British nationality is not passed down to the child by the mother, then the child had to apply to the Home Office to be 'registered' as a British citizen.

Section 9 of the Nationality, Immigration and Asylum Act 2002 removes the word 'illegitimate' from the British Nationality Act 1981. Section 9 defines a child's father (for nationality purposes) as the husband of the mother at birth, or a person treated by law as the father in fertilisation cases, or where neither of these apply a person who satisfies 'prescribed requirements'. The prescribed requirements refer to regulations that the Secretary of State is authorised to make under section 9B.

However section 9 will only come into force on 1 July 2006. On the same date the 'prescribed regulations' will be introduced in the form of the British Nationality (Proof of Paternity) Regulations 2006.

In those Regulations, proof of paternity for the purposes of nationality is restricted to (a) the person must be named as the father of the child in a birth certificate issued within one year of the date of the child's birth; or (b) the person must satisfy the Secretary of State that he is the father of the child.

The second way of proving paternity therefore is very wide and allows the Secretary of State to consider anything as proof of paternity. However it is envisaged that DNA testing will be the main method of proving paternity in cases not covered by (a).

The Parliamentary Under-Secretary of State, Department of Constitutional Affairs, Baroness Ashton of Upholland stated in the House of Lords that by section 9 the government were 'seeking to remove the present distinctions in nationality law between legitimate and illegitimate children, by redefining "father"'.

The affect of the legislation is that from 1 July 2006 a child born to parents who are not married, will automatically acquire British citizenship if the father would pass down citizenship if married to the mother. The child will no longer need to apply to become British.

If you require advice on this or any other UK immigration and nationality issue, please do not hesitate to contact one of our specialist lawyers and advisors.