Children born outside UK to British parents in same-sex couples left ‘stateless’

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Children born outside the UK to a British parent in a same-sex relationship are being left stateless by the Home Office, the Guardian has learned.

British nationals and their EU spouses say they have been told by the department that children born abroad to a British parent who was also born outside the UK are not eligible for British citizenship. If the UK is unwilling to issue documentation, this has the added effect of leaving some children stateless in cases of EU countries that don’t recognise two mothers.

Couples say they have been left in limbo for many years, unable to leave the country where their child was born because they cannot obtain a passport or other identity documents for them.

“While UK nationality laws don’t explicitly discriminate against LGBTIQ+ parents, it’s the implementation in practice and the lack of regulation for children who may be stateless that creates these situations,” said Patricia Cabral, legal policy coordinator at the European Network on Statelessness, who called for safeguards.

A landmark case currently awaiting a decision from the Bulgarian courts heard a three-year-old girl, born in Spain to a British and a Bulgarian mother, has been left stateless since she was born three years ago.

Jane, the child’s British mother, was born in Gibraltar and moved to the UK when she was two weeks old. As she acquired British citizenship by descent, she has been unable to pass on citizenship to her daughter. The Home Office has repeatedly refused to issue the child with a passport.

“We were shocked that our daughter was denied a UK passport,” said Jane. “We knew we would have challenges getting her Bulgarian citizenship, but we didn’t expect that from the UK. We never thought our child would end up with no documents, stateless.”

After their case was refused in the Bulgarian courts, with the authorities there saying they do not recognise non-conventional families, the mothers brought litigation to the European court of justice, where it was decided it was in Sara’s best interests to be issued with a Bulgarian passport.

On 22 November, the family had a final hearing and are waiting for a decision from the Bulgarian courts on whether the government will comply with the EU court’s judgment.

“It is hard to watch our friends with young children travel and visit family and friends in other countries when we know we can’t,” Jane said. “We have relatives who are elderly who have not yet met Sara – and we fear that, if we aren’t able to travel with her soon, they never will. The thought of that is so heartbreaking.”

Greek national Eleni Maravelia and her British wife, Kate McArdle, have been living in Spain since 2005. When their daughter was born in 2013, they were not yet married or in a civil partnership. The Spanish birth certificate, which included the names of both mothers, was not recognised in the UK, leaving their child stateless for a year. Their daughter’s birth was later registered in Greece, where there are no laws permitting same-sex couples to have children.

“To this day and even though we got married, my wife is not considered the mother of our daughter in the UK,” Maravelia said. “In both the UK and Greece, our child has only one recognised parent. We were told by a lawyer that the only solution would be for my wife to apply for adoption, but we can only do that if we decide to move back to the UK.”

When their daughter was three months old, she was diagnosed with neuroblastoma, a rare type of cancer which primarily affects babies and young children. While she was undergoing chemotherapy, the couple were told they could not have a UK passport for their daughter, leaving her stateless.

“I cannot believe that a country so advanced in LGBTIQ and children’s rights like the UK doesn’t automatically recognise a family from abroad and, more importantly, a child’s right to have their parents,” Maravelia said. “I hope the UK and other countries outside the EU realise that there are children who lose their parents every time their family crosses a border – it is unacceptable. This is not an LGBT issue, this is a children’s issue.”

Last week the European Commission adopted a legislative proposal, stating that parenthood established in an EU member state should be recognised in all the other member states. If enshrined in law, all EU nations will be required to implement the policy. Since the UK left the EU, the proposal will not affect families where one parent is a British citizen.

Arpi Avetisyan, head of litigation for the International Lesbian, Gay, Bisexual, Trans and Intersex Association (Ilga) said: “We know that there are at least eight couples involving a British partner that have lost family rights when crossing borders – but the cases reported are only the tip of the iceberg. All children from LGBTI parents in the UK are at risk when they travel to a country where they ‘lose’ one or both parents.”

The Home Office is understood to be examining issues that have arisen as a result of legislation where a second female parent is recognised as a child’s parent for nationality purposes.

Referring to McArdle and Maravelia’s case, a government spokesperson said: “We urge the family to make a nationality application, so we can assess the case properly.”