Hi

I wonder if someone could help please.

My 7 year old nephew has been living here in the UK with his Filipina mum since Nov 2010 whilst his dad (my British born brother) is also here in a nursing home suffering from brain damage. Mum and son have unmarried partner and child settlement visas that will expire at the end of next year. My brother is named on my nephew’s birth certificate that was issued in the Philippines and although they separated 8 years ago, he is still legally married to his former wife in Philippines.

We would like to pursue British Citizenship by descent/ British passport for my nephew and according to the UKBA website the following applies:

A child will have an entitlement to be registered under section 3(2) of the British Nationality Act 1981 if:
 they were born outside the United Kingdom; or
 they were born after 21 May 2002 outside any of the British overseas territories; and
 they were born to parents, one or both of whom are British citizens by descent; and
 the parent who is British by descent was born to a parent (the child's grandparent) who was a British citizen otherwise than by descent (or would have been but for their death); and
 the parent who is British by descent lived in the United Kingdom at any time before the child's birth for a continuous period of three years*; and
 during the period they were living in the United Kingdom the parent was not absent for more than 270 days; and
 the application is made before the child's 18th birthday.
* The requirement for the parent to have lived in the United Kingdom for a three year period does not apply if the child was born stateless.

A child registered as a British citizen under this section will become a British citizen by descent. They will be unable to pass British citizenship on automatically to any of their children born outside the United Kingdom.

A child registered under section 3(5) of the British Nationality Act 1981 will become a British citizen otherwise than by descent and will be able to pass British citizenship on automatically to any of their children born outside the United Kingdom. If there is a possibility the child may return to live in the United Kingdom before they reach the age of 15, you should consider whether it would be in their best interests to apply under section 3(5) at a later date.

On completing an application form for British Citizenship by descent, my ‘sister-in-law’ contacted the Nationality Checking Service and was told that the mother must have Indefinite Leave to Remain before any application can be considered. I don’t understand this statement, and wonder if there is some confusion regarding British Citizenship vs British passport applications ( especially since it appears that numerous British Passport applications for children are being made by non UK residents to British Embassies abroad).

I’ve tried searching the forums and although I have found some posts involving applications for children, the position is still unclear. Please can someone clarify?

Thank you
Rosie