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Briefing: the Nationality and Borders Bill, Part 1 (citizenship reforms)
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Briefing: the Nationality and Borders Bill, Part 1 (citizenship reforms)

We covered the nationality portion of the New Plan for Immigration in an earlier article. Many of those proposals, largely concerning British Overseas Territories citizens and the Windrush generation, were notably less cruel and unusual than the other aspects of the New Plan, and might even have been described as welcome and long overdue. But how does Part 1 of the Nationality and Borders Bill stack up against what was promised?

What you’ll find below is an explanation of each issue that the Secretary of State is targeting for change followed by a summary of how she’s gone about it in the Bill, clause by clause. Realistically it may be a little hard to follow unless you already have some familiarity with British nationality law (members can consult Free Movement’s training course) but that is partly because many of the changes are quite niche and, while important, will not affect most people seeking citizenship.

British Overseas Territories citizenship

Issue: historical inability of mothers to transmit citizenship

Historically, a mother was unable to pass on her Citizenship of the UK and Colonies (CUKC status) by descent if her child was born outside of the UK. The long-term effect of this was that when the British Nationality Act 1981 came into force, children of CUKC fathers who had the right of abode became British citizens whereas children of CUKC mothers may have been unable to. To address this, section 4C was added into the 1981 Act in 2003. This provided a registration route for people who had missed out on British citizenship because they had been unable to inherit their mother’s nationality.

The same issue prevented mothers who held British Overseas Territories citizenship (BOTC) from passing on their status to children born outside the British Overseas Territory in question. Section 4C was of no assistance to them as it only provided a route to British citizenship. As a result, gender discrimination remains. It has not only prevented children from inheriting BOTC status, but has also meant that they were unable to benefit from the commencement of section 3 of the British Overseas Territories Act 2002, when all BOTCs who held that nationality on 21 May 2002 automatically (and in addition to their BOTC status) acquired British citizenship.

Proposed solution: clause 1

As anticipated in the New Plan, a person who, if their mother had been treated equally to their father, would automatically have been born or could have registered as a British Overseas Territories citizen by descent, will now be entitled to register as one. This will be possible under a newly inserted section 17A to the 1981 Act.

There will be no need to have registered the child’s birth at a consulate (which makes sense because they wouldn’t have been able to do that at the time anyway).

The person must be able to show that their particular connection to a British Overseas Territory would have entitled them to CUKC status under the British Nationality Act 1948, that they would have obtained British Dependent Territories Citizenship under the 1981 Act, and that they would have become a British Overseas Territories Citizen under the British Overseas Territories Act 2002. In other words, that they would have continued to hold this entitlement throughout and wouldn’t have lost it when their mother’s country of origin gained independence (for instance).

The good character requirement is not relevant to applications under this section.

Under clause 3 (explained in more detail below) a person who registers as a BOTC under this section will then also be entitled to register as a British citizen.

Issue: fathers who could not pass on their citizenship

Up until 2006, British nationality law specifically discriminated against the children of unmarried parents. The 1981 Act (as enacted) provided at section 50(9) that:

the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him.

A child whose parents married after their birth could be “legitimated” (under section 47 of the 1981 Act) but the children of unmarried parents were prevented from automatically acquiring the British citizenship of their father. This applied to fathers who were British citizens as well as to fathers who were BOTCs.

To address this, section 9 of the Nationality, Immigration and Asylum Act 2002 came into force on 1 July 2006. From this point onwards, where a father was not married to the mother of the child (and the mother was not married to somebody else) a child would automatically acquire British citizenship or BOTC status as if their parents had been married.

No retrospective provisions were introduced for children born prior to 1 July 2006 whose parents were unmarried. They remained unable to make a claim or application for citizenship in reliance on their father’s citizenship.

The Immigration Act 2014 took a further step towards rectifying the issue for those born prior to 1 July 2006 with the introduction of sections 4E to 4J of the 1981 Act. These provisions permitted the children of unmarried fathers to apply to register as British citizens if, had their fathers been married to their mothers, they would otherwise have qualified for British citizenship.

This amendment, however, did not assist those who had missed out on acquiring other kinds of British nationality short of British citizenship — such as the children of BOTC fathers.

Proposed solution: clause 2

Clause 2 introduces new section 17B-17G of the 1981 Act with the clear intention of righting this historical wrong. 

A person’s nationality will be able to be considered for the first time with reference to their “natural father”. This is defined as a person who satisfies “the requirements as to proof of paternity that are prescribed under section 50(9B)”.

Clause 2 covers a wide range of people, including those born both inside and outside a British Overseas Territory, who but for this discrimination would have been automatically born with or been entitled to register for BOTC status. It should apply retrospectively, not only to those born after a certain date.

There are additional provisions for affected people who are still minors and for people otherwise born stateless. 

Also worth noting is a change to section 17 of the 1981 Act, which covers registration of children for BOTC status. Section 17(2) currently provides that such a registration application has to be made within 12 months of the child’s birth unless — see section 17(4) — there are “special circumstances”. This is now being done away with by clause 4(1) and such applications can now be made at any time whilst the person is a minor. 

The good character requirement will not be applied to most of the registration routes created by this clause; only certain applications under the new section 17C.

Gaps in the proposed legislation are not immediately apparent but this clause is particularly cumbersome; more combing over the coming weeks may throw up issues. Watch this space!

Clause 3: British citizenship for BOTCs

Those now entitled to register as a BOTC under the new provisions (or would have benefited from these provisions if they had not obtained BOTC status by another route) will, with some limited exceptions, also be entitled to register as a British citizen. This is being made possible under a new section 4K of the 1981 Act, inserted by clause 3.

Unfortunately such people can’t jump straight to British citizenship: they will have to successfully register as a BOTC first. But there is nothing to suggest that the British citizenship application couldn’t immediately follow registration.

The rule appears to be that where a person has obtained BOTC status by descent, when making an application under section 4K they will also obtain British citizenship by descent.

Again, only some of those who have obtained BOTC status under the new provisions will have the good character requirement applied to them when they make their onward application for British citizenship.

British citizenship

Issue: children of fathers who are not the husband of their mothers

Who is deemed to be a child’s father for nationality law purposes has not automatically followed biology. 

Under section 50(9A) of the 1981 Act, a child’s father is legally deemed to be the husband of the woman who gives birth to the child. Only where she has no husband will section 50(9A)(c) come into play, so that the child’s father will be deemed to be the person who can provide evidence of paternity (i.e. by being named on the birth certificate or by producing a DNA test or court order).

The case of K (A Child) v SSHD [2018] EWHC 1834 (Admin) illustrated the problem with this approach. K was a child born in the UK. Her birth certificate showed her father as SK and her mother as MT. SK, a British citizen, was indisputedly K’s biological natural father and in a committed relationship with MT.  MT was, however, still legally married to RS who was a Pakistani national.

Applying section 50(9A), it did not matter that SK was K’s father in all biological, emotional and practical terms, and that RS was entirely uninvolved with K. It was RS, and not SK, who was deemed to be K’s father for nationality purposes. As a result, K could not inherit SK’s British citizenship.

Following a judicial review challenge, the High Court found that this breached K’s human rights and declared section 50(9A) incompatible with the Human Rights Act 1998. Following this decision, in May 2020 the Secretary of State created a new procedure for such children to register as British citizens (still requiring payment of a significant fee and subject to the good character test). However, the underlying law remained unchanged. This registration policy was merely an expression of how discretion would be exercised in these cases under section 3(1) of the 1981 Act.

Propsed solution: clause 6

As predicted, there will be no amendment to section 50(9A) of the 1981 Act. Children born in these circumstances — where it is their natural father and not their mother’s husband from whom they wish to inherit British citizenship — will remain unable to obtain British citizenship automatically at birth. They will still be required to make an application to register.

The main amendment proposed is to remove the time limit in the existing section 4E. This currently limits registration options to those born before 1 July 2006 only. The clause 6 amendment would mean that a child in a similar position to K will be able to apply to register under section 4F as though her natural father had been the one married to her mother at the time of her birth.

Children in this position but where the natural father was a member of the armed forces will be able to apply for British citizenship under section 4D of the 1981 Act.

The other change within this clause is to update the 1981 Act to reflect the latest legislation on assisted reproduction. In particular, it incorporates the definitions of “father” contained in the Human Fertilisation and Embryology Act 2008.

Discretionary adult registration

Issue: lack of fallback registration route for over-18s

Whilst section 3 of the 1981 Act already provides for discretionary registration as a British citizen for any child born anywhere in the world, there is no equivalent provision for adults.

Proposed solution: clause 7

Clause 7 introduces a new section 4L into the 1981 Act, introducing a discretionary route for registration as an adult.

Such discretion will be exercised where “in the Secretary of State’s opinion” that person would have become or been able to become a British citizen were it not for:

  1. Historical legislative unfairness,
  2. An act or omission of a public authority, or
  3. Exceptional circumstances relating to [that person].

“Historical legislative unfairness” is defined to specifically include unequal treatment of males and females, children of unmarried couples, and children of mothers married to someone other than the natural father of the child. Discrimination on the basis of race and ethnicity are both notably absent from this list, but it is not definitive, and there is potential for arguments down the line about what counts as historical legislative unfairness. 

Many will be relieved by the specific inclusion of (b). There have been concerns that local authorities responsible for children who become entitled to British citizenship whilst under their care are not always making the necessary applications on behalf of those children. Quite apart from those cases where the child’s entitlement to citizenship simply isn’t understood, there are times where it isn’t deemed to be in the child’s best interests to make such an application and so it isn’t always included in a care plan. By the time the child is an adult and able to make their own decisions, it has been too late. A person who might have become British becomes subject to the hostile environment and even deportation instead. Section 4L(b) will ensure that a child who grows up in care will not entirely lose the opportunity to register as British once they become an adult. 

That said, this discretionary route will still be far inferior to the absolute entitlement to be registered as a British citizen that a child born in the UK has once they are ten years old. 

Whilst this is a refreshingly broad route which will enable the Secretary of State to take account of all manner of unfairness and circumstances specific to the applicant, what is concerning is the reference to the “Secretary of State’s opinion” and the ability of an applicant to mount a challenge against it. Is the Secretary of State entitled to hold an irrational, disproportionate or unreasonable opinion? It may be that that is what she is going for, given that this is a discretionary route.

Concerns will be no doubt also be raised by the fact that the Secretary of State will, under this new route, take into account whether the applicant is of good character.

Whilst section 4L caters for British citizenship specifically, a new section 17H is also proposed to provide a discretionary BOTC route along the same lines. 

Naturalisation for Windrush victims

Issue: inflexible residence requirement

When the Immigration Act 1971 came into force, most of the Windrush generation did not qualify for the right of abode. Instead, if they were present and settled in the UK on 1 January 1973, they would have acquired indefinite leave to remain in accordance with section 1(2).

No records or lists were kept of people who obtained indefinite leave to remain upon the commencement of the 1971 Act, however. No documents were provided to the people affected to enable them to prove their status in the UK. As a result, some people travelled who abroad were wrongly refused re-entry to UK and spent many years abroad involuntarily.

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The Windrush Scheme launched in May 2018 allowed such people to obtain documentation. Those stranded abroad were able to apply to come back to the UK as returning residents and would be entitled to take up their indefinite leave to remain upon return. What it did not provide them with was any immediate entitlement to British citizenship.

Someone applying to naturalise as a British citizen must meet all of the requirements set out in Schedule 1 of the 1981 Act. This includes a requirement that the applicant must have been physically in the UK on the date that falls precisely five years before the date of application (the five-year requirement). Whilst paragraph 2 of Schedule 1 allows the Secretary of State to waive many of the requirements, it does not provide any discretion to waive the five-year requirement (except for people who are or have been members of the armed forces).

For those people who have been wrongly prevented from re-entering the UK, the Secretary of State is currently unable to allow them to naturalise as British citizens until they have been back in the UK for a period of five years — regardless of the reason why they were not present in the UK and the historical injustice they have suffered.

Proposed solution: clause 8

Quite straightforwardly, clause 8 “allows the Secretary of State to waive the requirement that the person must have been in the United Kingdom or a relevant territory at the start of the relevant period”. This applies to applications to register or naturalise as a BOTC, as well as to naturalise as a British citizen.

So people who have been forced to remain outside of the UK through no fault of their own, including members of the Windrush generation who were wrongly excluded for long periods of time, will now no longer have to wait five years after re-entering the UK before they can apply for British citizenship.

Registration of stateless children

Issue: alleged abuse of statelessness route to citizenship

The New Plan identified the problem that it sought to address as follows:

We will also take the opportunity to close a nationality provision loophole which was intended to help those who are genuinely stateless. Under current nationality law a child can acquire British Citizenship under statelessness provisions where they were born in the UK, have lived here for 5 years and have never had another nationality. Recently we have seen an increasing number of parents choosing not to register their child by their own nationality despite being able to do so. In 2015, 10 statelessness applications were received, but this has now grown to over 1,000 per year.

This is a particularly troubling element of the proposed changes. The impact of statelessness on a child can be severe. A child will almost always be the victim of the decisions made by its parents or the local authority, and the should on no account be penalised for those decisions.

The existing route for the registration of stateless children born in the UK is set out within paragraph 3 of Schedule 2 to the 1981 Act. It currently only requires that the child has always been stateless, is under the age of 22 and has been in the UK for at least five years.

When referring to alleged abuse, the Secretary of State clearly has in mind a particular group of parents whose children are born stateless in the UK but who could try to register their child so that he or she obtains their parents’ nationality. This set of circumstances is well illustrated by the case of R (MK (A Child)) [2017] EWHC 1365 (Admin). MK was born in the UK to Indian parents. A child born outside of India will not acquire Indian citizenship unless the birth is registered at an Indian consulate. If registration is attempted after the child’s first birthday then it requires the Indian government to exercise discretion. The High Court in MK determined that such children are stateless and entitled to be registered as British citizens regardless of their ability to apply for a different nationality.

The High Court did identify that this route could be open to abuse. But the sole justification for the proposed change in the law is an increase in the number of applications. Whilst it is clear from the figures that there has been an increase in applications to register stateless children, there is no published evidence to show that there has been any increase in abuse of this route, and that any change in the law is therefore necessary or proportionate.

Many children already struggle to receive appropriate advice about registering under these provisions.

Proposed solution: clause 9

The existing provisions will remain in place, but only for those aged 18 to 22. Children will have to produce additional evidence. It is therefore only a person who has been born in the UK and lived here for the entirety of their childhood as a stateless person who will be able to register as British (subject to the residence requirements) without having to jump through exta hoops.

These are being introduced by way of a new paragraph 3A in Schedule 2 of the 1981 Act. Paragraph 3A is applicable to children born stateless in the UK and aged between five and 17. (There has never been provision for an application under this Schedule to be made until a child reaches the age of five so there is no change there.) What has changed is that under the new paragraph 3A(1)(d), a stateless child will only be registered as a British citizen if “the Secretary of State is satisfied that the person is unable to acquire another nationality”.

These provisions do not exactly mirror those found in paragraph 403 of the Immigration Rules but the motivation is clearly the same. 

A child is deemed to be able to acquire another nationality if:

  1. the nationality is the same as that of one of the person’s parents,
  2. the person has been entitled to acquire the nationality since birth, and
  3. in all the circumstances, it is reasonable to expect the person (or someone acting on their behalf) to take the steps which would enable the person to acquire the nationality in question.

It is accepted at section 3A(3) that a person is not entitled to another nationality if “acquisition is conditional on the exercise of discretion on the part of the country or territory in question”. This softens the blow considerably, at least in some cases.

For a stateless child of Indian parents, for example, if registration is attempted after the child’s first birthday then it requires the Indian government to exercise discretion. Such a child will not therefore be somebody who “has been entitled to acquire the nationality since birth”. Not all countries will have the same rules, so the impact of these new requirements will vary wildly depending on the nationality of the child’s parents.

I remain concerned that the additional requirements are likely to have far wider implications than intended.

It also remains unclear how this amendment will be compliant with the UK’s international obligations.

The 1961 Convention permits a contracting state to require a stateless person to apply before they can be granted nationality, but the requirements that a contracting state can impose on such applicants are specifically limited. The relevant question under this part of the Convention is only whether “the person concerned has always been stateless”. There is nothing in the Convention that permits consideration of a person’s entitlement to acquire an alternative nationality, or whether it is reasonable to expect them (or a person on their behalf) to take certain steps towards it.

It therefore appears that the new Bill, if passed, will put the UK in breach of international law.

Stateless applications are expected to become more onerous. The existing process is already perceived to be complicated and prohibitively expensive. Adding further requirements is likely to exacerbate this. The burden of proof is likely to be on the child and the standard is likely to be on the balance of probabilities, despite this already being out of step with authority from the European Court of Human Rights.

It is not yet known how flexible the evidential requirements will be. If parents are expected to obtain documentary evidence from third countries, there will need to be allowances made where that proves impossible.

The fact that there has been no change to the five-year requirement is also concerning. Parents must still wait until their child turns five before they can be registered as British. During that time, the children may be without permission to remain and exposed, directly and indirectly, to the hostile environment.

It is unclear how these provisions have had regard to the best interests of the child as a primary consideration. The importance of citizenship has been well recognised by the courts and by the government. Lacking citizenship will impact on a child’s identity, integration, sense of belonging and basic access to employment, education, health services and other benefits to which they should be entitled.

In the absence of evidence of significant abuse of the existing system, it is unclear how the proposed amendment can be justified or assessed as proportionate when its intention is to make it more difficult for stateless children (as recognised by the Secretary of State) to register as British citizens.

Conclusion

With the exception of the amendments to registration for stateless children, these are important and long-awaited changes with the potential to fix generations of discrimination. It is incredibly disappointing that the reforms have been mashed up with the abhorrent and objectionable proposals contained in the rest of the Bill, when they could have been passed in a standalone piece of legislation that all sides of both Houses might have agreed on. Those who fight the Bill as a whole will no doubt be accused of seeking to delay justice for the Windrush generation and countless others.

Our coverage of the Bill resumes on Wednesday with Part 3 (criminal offences), followed by Part 2 (asylum) by the end of the week.

Emma Harris is a barrister at Goldsmith Chambers specialising in immigration, asylum, nationality and public law.

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