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Out-of-wedlock children struggle to prove their identity in immigration

Written by
Naga Kandiah and Samir Pasha
Date of Publication:
25 July 2022

Identity of one's self is important in almost every aspect of one's life. And this is also the case when it comes to trying to prove your identity in the legal sphere, namely, immigration. This pursuit of identity has been problematic for those children born out of wedlock in countries such as Jamaica, where giving birth to a child out of wedlock still attracts scorn and ostracism and subsequently struggle to prove their paternity for immigration purposes.

Domestic legal hurdles

It is believed that Jamaica arguably has the most churches per square mile than any other country in the world. Unsurprisingly, religion has a heavy influence on its societal norms, culture and informs legislative policies. The Legitimation Act 1909, which states that only children who are born in marriage or whose parents subsequently marry are legitimate, illustrates this. In 1976, Jamaica passed the Status of Children to remove some legal difficulties pertaining to children born out of wedlock. Paragraph 7 of the Act states that the relationship between a father and children will only be recognised if the father and mother of the child were married, or; a paternity test had been admitted during the lifetime of the father. If the father had died then the child could only petition to the Court to make a declaration of paternity if it was satisfied that such a relationship existed.

However, the Act has made it clear that even an acknowledgement of paternity as set out in the provisions does not have any effect on a person's domicile, meaning for the purposes of applying for immigration in other countries the child cannot rely on mere paternity to establish domicile.

The scale on which this impacts individuals can be seen in historic trends. The taboo and fear of ostracism has been strongly reflected in the entries of father's name on birth certificates in Jamaica, where between 1955 - 1988 almost half of birth records did not include father's names. This trend has been declining however, with 1989 - 2006 becoming 35%, and since 2007 to 22%. Nevertheless, up until 2017 there are still almost 1.6 million children who do not have a father's name displayed on their birth certificates. These incomplete registrations have had a tangible impact on subsequent immigration applications.

Impact on immigration applications in the UK

In the UK, the Home Office continues to deny citizenship or status based on a requirement to prove paternity. Section 47 of the British Nationality Act 1981 provides that a child born before 2006 will be made legitimate by the subsequent marriage of his parents, for children born before 1983, the British Nationality Act 1981 contains a similar provision. For those born after 2006, section 47 is replaced by section 9 of the Nationality, Immigration and Asylum Act 2002. For the purposes of immigration and nationality matters, the father is either the husband of the woman who gives birth to the child, the father named on the birth certificate or a person who can prove paternity, through DNA testing for example. This does not provide adequate consideration for applicants who either do not know their fathers or their fathers died.

For individuals whose parents were not married at the time of their birth and whose fathers were not named on the birth certificate, the only alternative may be to produce DNA evidence. Where a parent is not present or is deceased, the task of proving paternity is nearly impossible. This is especially an issue among citizens of Caribbean descent, such as those from Jamaica with incomplete birth certificates who are trying to prove their entitlement to settlement and/or citizenship as descendants of the Windrush generation.

Many residents in the UK are therefore excluded from obtaining either indefinite leave to remain or citizenship as they are unable to trace and confirm their father's identity. Until reforms are implemented to provide consideration for individuals who cannot prove paternity a sizeable number of individuals from certain communities will continue to be barred from obtaining citizenship status.