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Government must do more to end discrimination in British nationality law, report finds

Government must do more to end discrimination in British nationality law, report finds

Government proposals aimed at stamping out discrimination in British nationality law are welcome but do not go far enough, a parliamentary committee said today. A new report by the Joint Committee on Human Rights argues that discrimination on the grounds of a parent’s gender or marital status will persist in the various types of not-quite-British nationality — such as British Overseas Territories Citizenship — and possibly other areas of citizenship law.

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Passing on British citizenship to children was, historically, more difficult for unmarried couples or women. Various amendments to the British Nationality Act 1981 attempted to make up for this past discrimination by allowing people who would have been born British citizens but for the discriminatory state of the law to register as British. Sections 4C, 4F, 4G, 4H and 4I of the British Nationality Act 1981 now address this issue — but they do not grant citizenship automatically. Those applying for registration still have to satisfy the Home Office that they are of good character.

Imposing a good character requirement in such circumstances was declared incompatible with the Human Rights Act 1998 in the Supreme Court cases of Johnson and Bangs. The draft British Nationality Act 1981 (Remedial) Order 2018 is meant to put that incompatibility right by amending the relevant parts of section 4 still further to remove the good character element entirely.

Enter the human rights committee, which is required to examine all remedial orders introduced to bring primary legislation into line with human rights standards. Its report

welcomes the Government’s action in proposing the draft Order to remedy the incompatibility in the British Nationality Act 1981 with the Convention rights to private and family life and to non-discrimination, and to make the necessary consequential amendments that follow from those changes.

But, it found, discrimination persists in other areas of British nationality law. In particular, the committee said that it is

unacceptable that discrimination in acquiring British nationality persists (including for British Overseas Territories Citizenship), depending on whether a person’s father or mother was a British Overseas Territories Citizen, or whether or not their parents were married. This type of discrimination in the BNA should be remedied for all types of British nationality and we recommend that the Home Secretary take urgent steps to bring forward legislation to do so.

It also pointed to possible discrimination in different sections of the 1981 Act that are said to:

  • assume that a person’s parents must be (or must at some point have been) in a marriage or civil partnership
  • provide that the relevant “qualifying connection” with the UK (or a British overseas territory) needs to be with the person’s father or his father’s father
  • only apply to people whose mothers were British
  • only apply to a “wife” of a British citizen and would therefore seem to discriminate against husbands of British nationals
  • only apply to people whose fathers (and not mothers) were serving in the armed forces, Crown service or in an EU institution

The Joint Committee on Human Rights is made made up of MPs and peers and chaired by Labour’s Harriet Harman. Its full report on the Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018 is now online, as is a summary.

The government expects the remedial order to be passed in “early 2019”. Decisions on applications for registration as British under sections 4C, 4F, 4G, 4H and 4I where the only sticking point is good character are on hold until then.

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