Who’s Your Daddy?

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice. 20 September 2022

We acted on behalf of a minor who was born in Nigeria in 2016, in an application for his first British passport under section 2(1)(a) of the British Nationality Act 1981.  His father, who was married to his mother, is a dual British and Nigerian national and naturalised as a British citizen under section 6(1) of the British Nationality Act on 6th April 2011 before his son’s birth.  The couple married in 2006 in Nigeria and had two other children who did not acquire British citizenship by descent given that the father was not yet British at the time of their birth.  The application was submitted with the necessary evidence for the application to succeed.

We then received a letter requesting further evidence. We were asked to provide the mother’s original birth certificate, a selection of evidence showing that the mother and father were together at the time of the child’s conception and that they continued to be in a family relationship, for example, flight tickets, utility bills, landline and mobile phones, and also provide evidence that the father provides financial support and was in regular communication with the mother and children.  From the outset, we submitted a copy of the father’s Nigerian passport showing that he was in Nigeria at the time of the child’s conception and also showing his entry to Nigeria at the relevant time. We provided then evidence of money transfers, evidence of maintaining contact by phone and family photographs, as well as the mother’s anti-natal records, records from the hospital, and evidence from the mother confirming that she agreed to the Passport being issued to the child.

To our surprise we were requested to provide even further evidence! On 20th July 2022, it was requested that again we would have to demonstrate that the mother was in the same country as the father, provide ultrasound scans and confirmation of names and dates of birth of any other child.  At that stage we were not amused, given that we had provided sufficient evidence to address the concerns. However, we submitted all the further evidence again for the sake of completeness.

We were concerned that the application might be refused and therefore we suggested that the father took a DNA test to prove paternity of the child once and for all. On 12th September 2020 the DNA test result confirmed that indeed he was the father and that evidence was sent to the Home Office.  Nevertheless, our client was asked to attend an interview in August 2022 after we had provided the DNA which is conclusive evidence of paternity.  The reasons for this interview remain a mystery, but the passport application has been successful and the child will now be issued with a British passport.  This case begs the question why our client has to jump through such hoops to be able to prove that this is his child, the product of his marriage. Is it possible that there is an element of classifying or distinguishing certain populations according to the country of origin to meet certain thresholds, which would not be expected from others?

Another complex case we have been successful with was that of a woman who was born in Liberia in 1970 to a British father (who was born in the UK himself in 1926 and who died in the UK).  Her mother was a Liberian citizen.  She was adopted shortly after her birth by another British citizen and his wife. The adoption was registered with the Superintendent’s Office in Liberia and with the British Embassy.  The applicant came to the UK as a baby with her adoptive mother and she was included on the mother’s British passport. She remained in the UK before returning to Liberia in 1980.  She recalled that she had a British passport in the late 70s and in September 2017 she made an application for a British passport.  The HMPO records show that her previous British passport was issued before the computer system came into place and therefore it was accepted that she previously was issued with a British passport.

On 13th June 2018 she made an application under the Windrush Scheme which was refused as she was not eligible for consideration under the scheme given that neither her natural nor her adoptive parents were Commonwealth nationals as defined by the Windrush Scheme who were settled in the UK before 1st January 1973. In addition, the letter said that the HMPO had no record that she had ever been issued with a British passport and that her adoption abroad would not have provided her with any form of British citizenship status under the British Nationality Act 1948.  This letter obviously contradicted the letter from HMPO in September 2017 in which it was confirmed that she was indeed previously issued with a British passport. We asked the Home Office to reconsider its own records. Given that she was born prior to the commencement of the British Nationality Act 1981, she made an application for registration as a British citizen under section 41 of the same Act.  This provision ensures that those who would have become British citizens automatically before 1st July 2006 if their parents had been married, now have an opportunity to become British citizens by registration.

We stated that she satisfied that requirement because her biological parents were married at the time of her birth, and although we had a birth certificate of her biological father, her birth certificate was not issued within one year of the birth, and therefore it was open to the Home Office in principle not to accept it. We argued that it should be accepted as ‘other evidence’ which is sufficient to establish paternity when assessed together with an Affidavit provided by the applicant’s adoptive father.  She could not obtain DNA because her biological father had passed away. The Home Office has written to us requesting further proof of paternity after a delay of over two years from the date we submitted the original application. To our delight we have managed to locate her half-brother who was happy to provide a DNA sample. Given that he could show a biological relationship between our client and himself, and that he was issued a British passport in the past, once that was provided her application was successful.