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Fee waiver for children denied British citizenship by discredited paternity law

Fee waiver for children denied British citizenship by discredited paternity law

The Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2020 (SI 2020 No. 294) come into force on 6 April 2020. They introduce a handful of fee tweaks, with the most significant changes being for children whose natural father is a man other than the man married to the woman who gave birth to the child.

Come again?

Karma Hickman has already covered this issue brilliantly, but I’ll recap briefly. For the purposes of nationality law, a father is defined by section 50(9A) of the British Nationality Act 1981 as the husband or male civil partner, at the time of the child’s birth, of the woman who gives birth to the child.

This is problematic where a British father has a child with a woman who is still married to another person. In such cases, even if there is clear evidence that the child’s father is the British man, nationality law does not allow for the other man married to the mother to be displaced.

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This can result in children being denied British citizenship that they would otherwise have inherited from their natural father.

As a result, section 50(9A) has been declared incompatible with human rights law.

The Home Office’s solution has been to accept discretionary applications for a child to be registered as British under section 3(1) of the 1981 Act, accompanied by evidence about the identity of the true natural father. That’s all very well — but up until now, such applications have carried a hefty £1,012 fee.

Waiving the registration fee in paternity cases

And that’s where these new regulations come in. As of 6 April, that fee may now be waived in cases where the child would have automatically become a British citizen had the natural father been married to the mother.

The explanatory memorandum confirms that this fee waiver is a temporary measure while the government considers what to do about section 50(9A).

The full wording of the waiver provision is:

6.—(1) The Secretary of State may waive the fee specified in 19.3.1 in respect of an application for registration as a British citizen made—

(a) under section 3(1) of the 1981 Act,

(b) in respect of a child born on or after 1st July 2006, and

(c) on the grounds in sub-paragraph (2).

(2) The grounds are that—

(a) at the time of the child’s birth, the woman who gave birth to the child (“the child’s mother”) was married to, or in a civil partnership with, a man other than the child’s natural father,

(b) no person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008,

(c) no person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, and

(d) the child would have automatically become a British citizen at birth by the operation of any provision of the 1981 Act if the child’s mother had been married to, or in a civil partnership with, the child’s natural father at the time of the child’s birth (irrespective of whether the child’s mother and natural father could actually have been married to, or in a civil partnership with, each other at that time).

(3) The reference in sub-paragraph (2)(d) to automatically becoming a British citizen at birth is to be construed in accordance with section 4J(4) of the 1981 Act.

One thing that immediately jumps out is the word “may” which I’ve emphasised in bold above. This fee waiver is discretionary, not mandatory. We will need to wait for guidance on when officials would refuse to waive the fee.

The only reason I can think of for making it discretionary would be to operate it in line with other fee waiver policies which require destitution, imminent destitution, or some other exceptional circumstances. The explanatory notes seem to suggest that all applicants will benefit from the waiver, but let’s see what the guidance says.

Repeat section 4F applications by stateless people not of good character

The regulations introduce a further fee concession which is very niche indeed. They allow free-of-charge reapplication for stateless people who had applied, prior to 25 July 2019, for registration under section 4F of the 1981 Act and had been refused on good character grounds.

Such applications are made on the basis that the stateless applicant would have been entitled to be registered as a British citizen if their mother had been married to their natural father at the time of their birth.

What is the significance of 25 July 2019? That is the date on which the British Nationality Act 1981 (Remedial) Order 2019 came into force. It removed the good character requirement from routes where applicants were born to an unmarried British father before 1 July 2006 or to a British mother before 1 January 1983.

As of 6 April 2020:

No fee is payable in respect of an application for registration as a British citizen under the 1981 Act where—

(a) the application is made under section 4F of that Act;

(b) the relevant registration provision (within the meaning given by section 4F(2) of that Act) is paragraph 4 or 5 of Schedule 2 to that Act; and

(c) the applicant made an application falling within paragraphs (a) and (b) before 25th July 2019 but it was refused because the Secretary of State was not satisfied that the applicant was of good character.

There are unlikely to be very many people in this situation, but the saving for anyone who does tick all of those boxes will be £1,126 for adults or £1,012 for children.

By contrast to the paternity scenario discussed above, this is an exception to the requirement to pay a fee, rather than a fee waiver. There is no discretion to charge a fee.

Other changes

The regulations also take the fee for the Tier 1 (Graduate Entrepreneur) route off the books entirely, as that route has been closed to new applicants since 31 July 2019. The fee for providing premium services to Tier 2 and 5 sponsors for a period of three months has also been removed, as that service was withdrawn on 8 April 2019.

Other fee changes relate to the replacement of the Entrepreneur and Graduate Entrepreneur routes with the Start-Up and Innovator routes in the Isle of Man; fee exceptions for family permit applications under Appendix EU in the Isle of Man; and to the Work Permit scheme in the Bailiwick of Guernsey.

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John Vassiliou is a partner at McGill & Co, a Scottish law firm specialising in immigration and nationality.

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