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Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

The United Kingdom has a robust system of laws relating to immigration and citizenship and it actively enforces these laws.  It has recently moved to a points-based migration system to help retain talented migrants in the country.  Entry through many of the points-based system options provides a path to citizenship, if a continuous residence requirement is met. 

The UK Border Agency is responsible for policing the borders around the UK, and works to ensure that those entering the UK do so with proper authorization.  Illegal immigration continues to occur despite the relatively robust border controls that exist and the hefty civil penalties that individuals who hire illegal immigrants face.  There are a number of criminal offenses that specifically apply to individuals in the country illegally, including entering the country without due authorization, overstaying visas, breaching conditions attached to visas, and assisting illegal immigrants.  Illegal immigrants caught in the UK face deportation and/or criminal prosecution.

Immigration rules enable certain children unlawfully resident in the UK and adults who have resided unlawfully in the country for long periods of time to regularize their status, if continuous residence and other requirements are met.

I. Introduction

The United Kingdom of Great Britain and Northern Ireland (UK) is the collective name of four countries: England, Wales, Scotland, and Northern Ireland.  The four separate countries were united under a single Parliament in London, known as the Parliament at Westminster, through a series of Acts of Union.  The United Kingdom recently has undergone a period of devolution with the creation of a Scottish Parliament, a Welsh Assembly, and a Northern Ireland Assembly (currently suspended) that can legislate in certain areas.  Citizenship and nationality[1] are not devolved areas, however, and remain the responsibility of the Parliament at Westminster.  The Secretary of State for the Home Department (a member of the British executive branch) and his department, commonly referred to as the Home Office, has responsibility for immigration and nationality issues.  

Since 1891 it has been established at common law that “no alien has any right to enter [what is now the UK] except by leave of the Crown.”[2]  The Aliens Restriction Act 1914,[3] the Aliens Restriction (Amending) Act 1919,[4] and Rules and Orders made under these Acts[5] gave the common law a statutory basis and formed the restrictions on immigration for much of the twentieth century.  The statutory regime governing immigration in the UK is currently contained in the Immigration Act 1971[6] and the Immigration Rules[7] made under it.  The Immigration Rules are not legislation or regulations per se, but are published as House of Commons Papers and are considered to be part of the law.[8]    

Section 3 of the Immigration Act requires individuals who are neither British or Commonwealth citizens with the right of abode in the UK, nor members of the European Economic Area, to obtain leave to enter the UK from an immigration officer upon their arrival. 

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II.  Illegal Immigration

The UK government varies between calling individuals present in the country without authorization “illegal immigrants” and “irregular migrants.”[9]  In June 2017, the former head of immigration enforcement at the Home Office was reported as estimating that there were more than 1.2 million illegal immigrants living in Britain, stating that most of those were individuals who entered the country legally but overstayed the period of time they were granted leave to remain.[10] 

The UK has a considerable amount of legislation designed to both make it difficult for illegal immigrants to remain in the UK and to facilitate their removal, while complying with its obligations under the European Convention on Human Rights.  Part 3 of the Immigration Act provides for a number of criminal offenses that apply to both illegal immigrants and those who aid them.  They are extensive and include the offenses of illegally entering the country;[11] entering the country by deception; overstaying visas; and violating the terms of a visa, such as by working if this is not authorized.[12]  Assisting unlawful entry into the UK,[13] employing an illegal immigrant, and renting private accommodation[14] to an illegal immigrant are all criminal offenses.[15]  Recent legislation now prohibits illegal immigrants from having a UK driver’s license and opening bank accounts in the UK.[16]

The Migration Observatory at the University of Oxford describes the UK as having three methods of dealing with illegal immigrants:

  • administrative action and removal by the UK Border Agency;
  • deportation for individuals and their children whose removal the Secretary of State considers conducive to the public good;[17] or
  • assisting voluntary departure.[18]

While the legal framework applicable to illegal immigrants is strict, certain exceptions can be made for children who were born in the UK, as well as adults present illegally in the UK for a long period of time, as discussed below.

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III.  Pathways to Legal Residence and Citizenship for Illegal Immigrants

A.    Children

In 2012, Oxford University estimated that 120,000 undocumented children were resident in the UK.  It believed that 65,000 of these children were born in the UK, which does not provide for birthright citizenship.[19]  In 2008, the UK withdrew a reservation to the UN Convention on the Rights of the Child that had restricted the application of the convention with respect to children subject to immigration control.[20]  In 2009, section 55 of the Borders, Citizenship and Immigration Act was enacted, which placed a duty on the Home Office to safeguard and promote the welfare of children as it exercises its functions to enable the UK to comply with the provisions of the Convention.  Thus, the best interest of the child is now a guiding principle that must be followed in making any immigration decisions relating to a child.[21]  Failing to follow this principle could render any decision made unlawful.[22]  

As described below, the Immigration Rules enable certain children unlawfully resident in the UK and those who have resided unlawfully for long periods of time to regularize their status and either grant them citizenship, or put them on a pathway toward obtaining citizenship.  

1.  Children Born in the UK and Unlawfully Resident for the First Ten Years of Their Life

As noted, citizenship is not automatically granted to babies born in the UK.  British citizenship is only granted to babies if their birth father or mother is a British citizen or settled in the UK. The UK follows the principle of jus sanguinis, which provides that the nationality of a child is the same as his or her parents.  The British Nationality Act 1981 allows children born in the UK on or after January 1, 1983, to parents who were not British citizens or lawfully settled in the country to register to become British citizens.[23]  Children are eligible for citizenship if they are ten years of age or older and have lived in the UK, lawfully or otherwise, for the first ten years of their life, spending no more than ninety days outside the UK each year.[24] 

This citizenship is available to any child born in the UK and does not end at the age of majority (eighteen years of age), provided the applicant meets the criteria of being born in the UK and continuously residing there for the first ten years of life.  To register, the family must complete an application and pay £749 (approximately US$1,000).[25]  Provided all the criteria are met and the child is of good character, the application will be granted, and the child will become a British citizen with all the benefits that brings.

2.  Children Born in the UK and Unlawfully Resident for Seven Years or More

Children under the age of eighteen who were born in the UK on or after January 1, 1983; who have lived in the UK for seven years or more; and for whom returning home would be unreasonable may apply for leave to remain on the grounds of the right to respect for private life, a legal concept provided for by article 8 of the European Convention on Human Rights.[26]  When considering whether returning the child to his/her home country is unreasonable, the Home Office considers the following:

1.      Whether there would be a significant risk to the child’s health
2.      Whether the child would be leaving the UK with their parents
3.      The extent of wider family ties in the UK
4.      Whether the child is likely to be able to reintegrate readily into life in another country:

a.      including whether they or their speak, read and write the language
b.      whether they or their parents have social or familial ties there
c.      if they are entitled to citizenship
d.      whether they have visited the country for more than a few weeks
e.      whether they have any cultural ties to the country of origin.[27]

There is no guarantee that an application for discretionary leave to remain will be approved; if approved, leave to remain is for a period of two-and-a-half years, after which it may be renewed.  A service fee of £500 (approximately US$600) for the National Health Service must be paid at the same time as a £649 (approximately US$850) application fee.  The child will not be eligible for benefits upon attaining eighteen years of age.  After ten years of continuous residence in this status, the individual is entitled to apply for citizenship.

3.  Individuals Between the Ages of Eighteen and Twenty-Four Brought to the UK as a Child

Individuals who are between eighteen and twenty-four years of age, and who have resided unlawfully in the UK for more than half of their lives, are another category of persons eligible to apply for leave to remain on the grounds of private life.  There is no guarantee the application will be granted; if granted, leave to remain will be for a period of two-and-a-half years, after which it may be renewed.  After ten years of continuous residence in this status, the individual may apply for citizenship.[28]

4.  Implementation

A report issued in 2015 noted that there had been a low number of applications under these rules, with 1,560 applications of leave to remain for children being granted between 2012 and 2015, and, during the same period, 1,585 children were granted settlement on a discretionary basis or a long period of residence.  The report ascribed these low numbers to the complexity of laws in the area, a lack of knowledge, a lack of free legal advice and representation, and the high cost of application fees.[29]

B.  Adults

Individuals who have lived in the UK unlawfully, or have a mix of lawful and unlawful residence, for twenty years or more may apply for leave to remain on the grounds of private life.[30]  If the application is successful, the individual will be granted leave to remain for two-and-a-half years, and this is renewable.  Once the individual has lived in the UK continuously with leave under these provisions for ten years, he or she may apply for indefinite leave to remain.[31]  

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IV.  Conclusion

The provisions outlined in Part III, above cannot be considered in isolation from the UK's general immigration law and enforcement efforts.  As noted, the UK has robust provisions designed to prevent illegal immigrants from remaining in the UK.  Legal aid to help unlawful immigrants secure access to legal advice has been cut; the policy of deport first, appeal later is fully implemented; and illegal immigrants’ access to basic services is severely restricted, which not only makes it difficult for them to live in the UK, but also makes it difficult for them to provide evidence showing the period of time they have lived in the UK illegally.[32]

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Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
September 2017


[1] “Nationality” refers to the status of those individuals who are British citizens, British subjects with the right of abode in the United Kingdom and thus outside the scope of the United Kingdom’s immigration control, and citizens of British Overseas Territories.  In this report, the term “citizenship” is used to include nationality.  These terms are commonly interchanged.  Nationality has been defined as a person’s international identity that demonstrates they belong to a state, as evidenced by a passport.  Citizenship has been considered to be more “a matter of law determined by the facts of a person’s date and place of birth, those of their parents and the application of the provisions of the relevant legislation,” and concerns with the rights, duties, and opportunities that a person has within a state, such as voting rights, military service, and access to healthcare.  Laurie Fransman, Fransman’s British Nationality Law 12 (2d ed. 1998).

[2] Musgrove v. Chun Teeong Toy, [1891] A.C. 272, followed in Schmidt v. Home Office, [1969] 2 Ch. 149.

[3] Aliens Restriction Act, 1914, 4 & 5 Geo. 5, c. 12.  

[4] Aliens Restriction (Amendment) Act, 1919, c. 92, http://www.legislation.gov.uk/ukpga/Geo5/9-10/92/data.pdf, archived at http://perma.cc/95WC-LYK4.

[5] Aliens Order, (1920) Stat R. & O. 448, as amended.

[7] Immigration Rules, Home Office, https://www.gov.uk/guidance/immigration-rules (last updated Aug. 10, 2017), archived at http://perma.cc/7J5G-HWK7; R v. Chief Immigration Officer, Heathrow Airport, ex. p. Salamat Bibi, [1976] 3 All ER 843 (CA) (per Roskill, L.J.: “these rules are [not administrative practice and are] just as much delegated legislation as any other form of rule making activity . . . [and] to my mind, are just as much a part of the law of England as the 1971 Act itself.”).

[8] Immigration Rules, supra note 7.

[9] See, e.g., Home Office, Guidance: Code of Practice on Illegal Immigrants and Private Rented Accommodation (May 25, 2016), https://www.gov.uk/government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-and-private-rented-accommodation-for-tenancies-starting-on-or-after-1-february-2016, archived at https://perma.cc/533G-P58A; Long-Term International Migration – Frequently Asked Questions and Background Notes, Office for National Statistics (Aug. 24, 2017), https://www.ons.gov.uk/people populationandcommunity/populationandmigration/internationalmigration/methodologies/longterminternationalmigrationfrequentlyaskedquestionsandbackgroundnotes, archived at https://perma.cc/2Y43-JFJA; Legal Guidance: Immigration, Crown Prosecution Service, http://www.cps.gov.uk/legal/h_to_k/immigration/ (last visited Sept. 12, 2017), archived at https://perma.cc/C3T2-44RY.

[10] Kate McCann, Hundreds of Thousands of Illegal Immigrants Drop off Radar in the UK Every Year According to Secret Figures, The Telegraph (London) (June 16, 2017), http://www.telegraph.co.uk/news/2017/06/15/hundreds-thousands-illegal-immigrants-drop-radar-uk-every-year/, archived at https://perma.cc/B3NC-CPE7 (scroll down for text); Irregular Migration in the UK: Definitions, Pathways and Scale, The Migration Observatory at the University of Oxford (July 11, 2011), http://www.migrationobservatory.ox.ac.uk/resources/briefings/irregular-migration-in-the-uk-definitions-pathways-and-scale/, archived at https://perma.cc/4WTX-BBG8.

[11] Immigration Act 1971, c. 77, § 24.

[12] Id. § 24(1)(i), (ii).

[13] Id. § 25.

[14] Immigration Act 2014, c. 22, § 22, http://www.legislation.gov.uk/ukpga/2014/22, archived at https://perma.cc/9GD8-FAECSee also Guidance: Code of Practice on Illegal Immigrants and Private Rented Accommodation, Home Office and UK Visas and Immigration (updated May 25, 2016), https://www.gov.uk/ government/publications/right-to-rent-landlords-code-of-practice/code-of-practice-on-illegal-immigrants-and-private-rented-accommodation-for-tenancies-starting-on-or-after-1-february-2016, archived at https://perma.cc/PU5T-4ZK6

[15] Immigration, Asylum and Nationality Act 2006, c. 13, § 15, http://www.legislation.gov.uk/ukpga/2006/ 13/section/15, archived at https://perma.cc/UHM5-BNDC.

[16] Immigration Act 2014, c. 22, §§ 40, 46.

[17] Id. pt. III, § 24(1)(i)–(ii).

[18] Deportations, Removals and Voluntary Departures from the UK, The Migration Observatory at the University of Oxford (July 19, 2016), http://www.migrationobservatory.ox.ac.uk/resources/briefings/ deportations-removals-and-voluntary-departures-from-the-uk/, archived at https://perma.cc/ZC92-6Q9LSee also Legal Guidance: Immigration, Crown Prosecution Service, http://www.cps.gov.uk/legal/h_to_k/immigration/ (last visited Sept. 13, 2017), archived at https://perma.cc/C3T2-44RY.   

[19] Coram Children’s Legal Centre, This Is My Home: Securing Permanent Status for Long-term Resident Children and Young People in the UK (June 2017), at 1, http://www.childrenslegalcentre.com/wp-content/uploads/2017/06/Thisismyhome_ExecSummary.pdf, archived at https://perma.cc/GF2Q-8TF3

[20] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3, available at https://treaties.un.org/ doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-11.en.pdf, archived at https://perma.cc/SU9V-FWRJ.

[21] Borders, Citizenship and Immigration Act 2009, c. 11, § 55, http://www.legislation.gov.uk/ukpga/2009/11, archived at https://perma.cc/S4CJ-XGJU.  

[22] Coram Children’s Legal Centre, Securing Permanent Status: Existing Legal Routes for Children and Young People Without Leave to Remain in the UK 3 (June 2017), available at http://cdn.basw.co.uk/ upload/basw_85040-5.pdf, archived at https://perma.cc/52P5-ABHB.

[23] Borders, Citizenship and Immigration Act 2009, c. 11, ss. 42(5), 58

[24] British Nationality Act 1981, c. 61, § 1(4), https://www.legislation.gov.uk/ukpga/1981/61/part/I, archived at https://perma.cc/VF7X-3556.

[26] Immigration Rules ¶ 276ADE, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-7-other-categories, archived athttps://perma.cc/K3WB-TJ8LEuropean Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222, available at http://www.echr.coe.int/Documents/Convention_ENG.pdf, archived at https://perma.cc/TEK3-MLMF.  The European Convention on Human Rights was incorporated into the national legislation of the United Kingdom by the Human Rights Act 1998, c. 42, https://www.legislation.gov.uk/ukpga/1998/42, archived at https://perma.cc/7R9Z-Q95V.

[27] Coram Children’s Legal Centre, Securing Permanent Status, supra note 22, at 19 (citing Home Office, IDI Family Migration, App. FM, § 1.0b, Aug. 2015, p. 57), available at http://cdn.basw.co.uk/upload/basw_85040-5.pdf, archived at https://perma.cc/52P5-ABHB.

[29] Coram Children’s Legal Centre, This Is My Home, supra note 19, Executive Summary. 

[30] Immigration Rules ¶ 276ADE, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-7-other-categories, archived athttps://perma.cc/K3WB-TJ8L.  For applications made prior to this date, the old rule of fourteen years of continuous unlawful residence must be followed.

[31] Id.

[32] Immigration Act: Overview, Home Office and UK Visas and Immigration (updated July 16, 2017), https://www.gov.uk/government/publications/immigration-bill-2015-overarching-documents/immigration-bill-201516-overview-factsheet, archived at https://perma.cc/N9UT-8XS3.