Summary
It cannot be right in principle that entitlement to British nationality still varies according to whether it is one’s mother or one’s father who is British, or whether one’s parents are married or not. Entitlements to British nationality vary depending on when and where one was born, and one’s links to the UK. Historically, British nationality law only allowed a legitimate child to acquire nationality by descent and only through the male line. It therefore discriminated against those born to British mothers and those whose British fathers were not married to their mothers. The law has been changed at various times to reduce this discrimination, but, despite this, some discriminatory provisions remain on the statute book. This Remedial Order aims, to an extent, to eradicate that discrimination. In particular, it deals with the right of a child of a British parent to become a British citizen by descent from their British parent—irrespective of whether it is their mother or their father who is British; and irrespective of whether their parents are married or not. The rights of a child of unmarried parents should be equal to those of a child of a married couple. The rights of a child of a British mother should be equal to the rights of a child of a British father.
Section 4C of the British Nationality Act 1981 (“BNA”) was introduced to address the discrimination against people whose mothers, rather than their fathers, were British citizens. Sections 4F–4I of the BNA were introduced to address discrimination against people whose parents were not married. However, some anomalies have remained. Therefore, these categories of people still face discrimination in some circumstances, as compared to children of married parents, or children whose father, rather than mother, is British. One example is the requirement for them to prove good character—a requirement that does not apply to those acquiring British nationality by descent as a legitimate child of a British father.
This proposal for a British Nationality Act 1981 (Remedial) Order 2018 is the Government’s response to the Declaration of Incompatibility made by the Supreme Court in the case of Johnson v Secretary of State for the Home Department [2016].1 The Supreme Court found that the BNA was incompatible with Article 14 (principle of non-discrimination) read with Article 8 (right to private and family life) of the European Convention on Human Rights (ECHR) in that it imposed a good character requirement on individuals who would, but for their parents’ marital status, have automatically acquired citizenship at birth. The Supreme Court made a Declaration of Incompatibility accordingly.
A further Declaration of Incompatibility was made (with Government consent) in similar terms in R (on the application of David Fenton Bangs) v Secretary of State for the Home Department. This was in relation to the application of the good character requirement to registration pursuant to section 4C of the BNA to individuals who would, had their British mother been able to pass on nationality in the same manner as a British father, have automatically acquired citizenship at birth.
The purpose of the proposed draft British Nationality Act 1981 (Remedial) Order 2018 is to remedy these incompatibilities with ECHR rights (and therefore this discrimination), by removing the good character requirement from registrations pursuant to sections 4C and 4G to 4I of the BNA, as well as some registrations pursuant to section 4F of the BNA.
The power to amend statute by delegated legislation is unusual and circumscribed. The Committee considers that the procedural requirements of the Human Rights Act 1998 (“HRA”) have been met in this case. The reasons for using a remedial order rather than a Bill are sufficiently “compelling reasons”. Further, remedying the incompatibility by way of a non-urgent order, rather than an urgent order, strikes a reasonable balance between the need to avoid undue delay before remedying the incompatibility and the need to allow proper opportunity for parliamentary scrutiny.
The Committee notes that in most of these cases, there is no fee for an application for British citizenship. However, those who made an application under section 4F of the BNA will have had to have paid a fee. We recommend that the Home Secretary ensure that individuals whose earlier applications were rejected because of this discrimination will not need to pay a fee twice.
The proposed Remedial Order still partially retains the good character requirement for some applications under section 4F of the BNA. The Committee raises particular concerns relating to the continued (partial) application of the good character requirement to applications made by children under section 4F. The Committee considers that there are significant problems with the way this is applied to children.
In the course of our scrutiny of this proposed Remedial Order we raised a number of related areas with the Home Secretary where it appeared British Nationality law could still be discriminatory. The Immigration Minister’s response included a commitment to consider these matters and to respond substantively by the end of May. In particular, we welcome the assurance that the discrimination concerning British Overseas Territories Citizenship, and the need for consultation with the Overseas Territories, is now on the Department’s agenda and that they are working to remedy this. We look forward to further information.
The Committee welcomes the Government’s decision to use the remedial order process in this case and to take active steps to remedy this discrimination. The Government should address the points we make about ensuring fees are not paid twice by people previously discriminated against under section 4F applications. We recommend that the Government then lay the draft order before both Houses. In the report we also raise a number of significant concerns about other related areas of discrimination in British nationality law, and invite the Home Secretary to make sure such discrimination is rapidly ended.
1 Johnson v Secretary of State for the Home Department [2016] UKSC 56.
Published: 31 May 2018