1Introduction
The Issue that the proposed draft Order addresses
1.This proposed Remedial Order concerns 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.
2.As concerns nationality by descent, British nationality law historically only allowed for this for legitimate children and only through the male line. This therefore discriminated against those born to British mothers and those whose British fathers were not married to their mothers. Attempts have been made to remedy this. In particular, section 4C of the 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, meaning that some children whose mother, rather than father, is British, or whose parents were unmarried, continue to be discriminated against. One such example is the requirement for them to prove good character (a requirement that did not apply to those acquiring British nationality by descent as a legitimate child of a British father).
3.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.2 The Supreme Court found that the BNA was incompatible with Article 14 read with Article 8 of the 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 consent Order and accompanying Declaration of Incompatibility were made in similar terms in the case of David Fenton Bangs,3 in relation to the application of the good character requirement to registration pursuant to section 4C of the BNA to individuals that 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.
4.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.
5.The Committee 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.
Role of the Joint Committee on Human Rights
6.The Human Rights Act 1998 (HRA) provides that where a court has found legislation to be incompatible with a European Convention on Human Rights 1950 (ECHR) right, Ministers may correct that incompatibility through a “Remedial Order”, and may use such an Order to amend primary legislation.4 There are special provisions to ensure that this power is not used inappropriately. In the non-urgent procedure, a proposal for a draft has to be laid before Parliament for 60 days, during which representations may be made. If the Government decides to proceed, it will then lay a draft Order, accompanied by a statement responding to the representations and explaining what changes, if any, have been made to the draft in consequence. In order to be made, the draft Order must be approved by each House of Parliament, a further 60 days after laying.5
7.A proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, together with the required information,6 was laid before both Houses on 15 March 2018.
8.The Standing Orders of the Joint Committee on Human Rights (JCHR) require us to report to each House our recommendation as to whether a draft Order in the same terms as the proposal should be laid before Parliament, and we may also report on any matter arising from our consideration of the proposal.7 The Committee reports on the technical compliance of any remedial order with the HRA and notes whether the special attention of each House should be drawn to the Order on any of the grounds specified in the Standing Orders relating to the Joint Committee on Statutory Instruments (JCSI).
9.We issued a call for evidence on the Government’s proposal8 on 16 March 2018 and received six written submissions. We are grateful to all those who responded to our call for evidence or drew our attention to other relevant information. A list of those who contributed is included at the back of this Report and all written submissions we received can be found on our website.9 We have also been in contact with officials from the Home Office who have been helpful throughout. Further, on 18 April 2018, the Chair wrote a letter to the Home Secretary seeking further clarifications as to certain elements relating to the proposed British Nationality Act 1981 (Remedial) Order 2018, as well as to related points of potential discrimination in British nationality law. On 4 May 2018 Caroline Nokes MP, the Minister for Immigration, replied to the Chair by letter.10
Matters for consideration
10.In order to consider the proposed order adequately, the Committee generally asks:
- Have the conditions for using the remedial order process (section 10 and Schedule 2 HRA) been met?
- Are there “compelling” reasons for the Government to remedy the incompatibility by remedial order?
- Is the procedure adopted (non-urgent or urgent) appropriate?
- Has the Government produced the required information and effectively responded to other requests for information from the Committee?
- Does the proposed order remedy the incompatibility with Convention rights and is it appropriate? For example, is any additional provision contained in the proposed order appropriate and intra vires—and does the proposed order omit additional provisions which it should have contained?
- Are the criteria of technical propriety applied by the JCSI satisfied?
11.The relevant grounds on which the JCSI can draw a statutory instrument to the special attention of each House are:11
- that it imposes a charge on the public revenues or requires payments to be made to a public authority;
- that there appears to have been unjustifiable delay in the publication or laying of the Order before Parliament;
- that there appears to be a doubt whether it is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made;
- that for any special reason its form or purport calls for elucidation;
- that its drafting appears to be defective; or
- on any other ground which does not impinge on its merits or the policy behind it.
British Nationality Legislation & Legislative History
12.British nationality law has evolved over the years, from the original focus on allegiance to the Monarch under common law (principally through being born within the Crown’s territories), to developments in the 1700s and 1800s additionally contemplating the possibility for naturalisation as British, or nationality by descent (through the male line). It was during this period that increasingly complex rules tended to treat women differently from men—a woman’s right to nationality tended to rely on her husband’s nationality, and a woman was not able to pass on her nationality to her child. Similarly, rules developed so that nationality by descent through the male line could only be passed on to legitimate heirs.12 These discriminatory approaches to nationality law—and especially to nationality by descent—continued into the British Nationality Act 1948 and its successor, the British Nationality Act 1981.
13.Current rules governing the acquisition of British nationality are found in the British Nationality Act 1981 (“BNA”), which creates different categories of British nationality—British Citizenship (for those with a close link to the UK), British Overseas Territories Citizenship, British Overseas Citizenship, British Nationals (Overseas), British Subjects, and British Protected Persons. The proposed British Nationality Act 1981 (Remedial) Order 2018 focusses only on provisions relating to British Citizenship, although later in the Report we note that similar concerns around discrimination may well apply to the provisions relating to other categories of British nationality.
14.The BNA has been amended many times. In particular, section 4C BNA was added by the Nationality, Immigration and Asylum Act 200213 (and then amended by the Borders, Citizenship and Immigration Act 2009)14 in order to remedy discrimination whereby only men (and not women) could pass on British citizenship by descent. Sections 4F–4I BNA were added by the Immigration Act 201415 in order to remedy discrimination as between children whose parents were married and those whose parents were not married.
15.Section 41A BNA16 provides that certain applications for British nationality made by a person aged 10 years or older must be accompanied by proof of good character. In particular, section 41A means that all applications for British citizenship under the provisions of sections 4C and 4F–4I (that sought to remove underlying discrimination in British nationality legislation) need to be accompanied by proof of good character. This was the case even though, for many of the underlying rights to British nationality (had there not been the discrimination), that right was either automatic (so no application was needed, let alone proof of good character), or that underlying right or application process did not require proof of good character (see section entitled “Automatic entitlement, entitlement upon registration, discretion following application” at paragraphs 23–25). This led to a system whereby for many British nationality applications, those who had originally suffered discrimination needed to comply with the additional hurdle of proving good character, while those who had not been discriminated against did not need to prove good character.
16.Good character is not defined in the BNA, but rather in a Home Office policy document “Good Character: Nationality Policy Guidance”.17 The Courts have ruled that Home Office decision-makers, when undertaking a good character assessment, should make an overall assessment as to the character of the applicant, including taking into account evidence of positive good character. However, the guidance principally focuses the minds of Home Office decision-makers on when to refuse on grounds of bad character.
17.The proposed draft British Nationality Act 1981 (Remedial) Order 2018 is focussed on those discriminatory provisions, especially on the extent that good character is required for applications under sections 4C and 4F–4I BNA, where proof of good character is not required for acquisition of British nationality by those who did not suffer the discrimination.
Litigation history
18.In Johnson,18 the Supreme Court found that it was incompatible with Article 14 (principle of non-discrimination), as read with Article 8 (right to private and family life) of the ECHR to impose a good character requirement on individuals who would, but for their parents’ marital status, have automatically acquired British citizenship at birth.
19.This is supported by ECHR case law which has recognised that citizenship, though not a free-standing right, can be a part of a person’s social identity, which is a part of their private life under Article 8 ECHR. Furthermore, birth out of wedlock is a “status” for the purposes of discrimination contrary to Article 14 ECHR, see Marckx v Belgium (1979).19 In particular, in Genovese v Malta (2011)20 the European Court of Human Rights held that if a State recognises citizenship by descent, then it must be recognised without discrimination.
20.In Johnson, the Supreme Court went on to issue a Declaration of Incompatibility in relation to paragraph 70 of Schedule 9 to the Immigration Act 2014, which inserted into section 41A(1) of the BNA, a reference to sections 4F - 4I BNA. These sections relate to various categories of people who would automatically have become UK citizens (or in the case of applications under 4F, people who would have been entitled to be registered as UK citizens) had their parents been married to one another at their birth. As Lady Hale said, “it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.”21
21.In the case of David Fenton Bangs,22 the Home Secretary agreed to the making of a declaration of incompatibility, by way of a consent order, in relation to the application of the good character requirement to registration pursuant to section 4C BNA (which provides a registration route for persons who would have automatically become UK citizens at birth had their mothers been able to pass on their citizenship). This consent order was approved by the Administrative Court on 4 July 2017. Its accompanying declaration of incompatibility provided that “section 47(1) of the Borders, Citizenship and Immigration Act 2009 is incompatible with Article 14, read with Article 8, of the [ECHR], in so far as it introduces [section 41A into the BNA, which applies] a “good character” requirement to applications for registration under section 4C of the [BNA]”.
22.It is worth noting that in addition to the requirements of domestic legislation and the ECHR which were considered in the above litigation, certain UN Conventions that the UK has ratified could also be engaged here. Article 9 of the UN Convention on the Elimination of All Forms of Discrimination against Women 197923 requires States to give women equal rights with men to acquire, change or retain their nationality, and also equal rights with men with respect to the nationality of their children. This would therefore be relevant in the case of David Fenton Bangs. Article 7 of the UN Convention on the Rights of the Child 198924 provides for the right of a child to acquire nationality—and this right must be applied without discrimination as to sex or any other status, such as the type of family that the child comes from (Article 2 of the UN Convention on the Rights of the Child). Finally, Article 3 of the UN Convention on the Rights of the Child requires that all decisions relating to a child are taken in the “best interests of the child”. To that extent it is also worth noting that section 55 of the Borders, Citizenship and Immigration Act 200925 places a duty on the Home Secretary to safeguard and promote the welfare of children in matters relating to asylum, immigration and nationality.26 This means that the Home Secretary should consider very carefully the impact of the good character requirement on children and should ensure that the best interests of the child are indeed paramount in cases relating to nationality applications by children.
Automatic entitlement, entitlement upon registration, or discretion following application
23.There are different references in the relevant documents to an “automatic” entitlement to British citizenship, an entitlement following registration, or alternatively a discretionary power of the Home Secretary to grant a person British citizenship upon an application. This reflects the different types of entitlement to British nationality. An “automatic” entitlement to British citizenship tends to be reserved for cases where the individual concerned has such a clear and obvious link to the UK (e.g. by birth in the UK to British parents) that automatic citizenship is reasonable and sensible. Others with less of a nexus to the UK might be entitled to British citizenship upon application (so would have a right to citizenship but only if an application is submitted), and others might have a right to apply (where it is within the discretion of the Home Secretary whether to grant British nationality).
24.At first reading these distinctions between automatic British nationality, an entitlement to British nationality and a discretionary power to grant British nationality following an application, might seem to have the potential to produce unfair and arbitrary results. In particular, those applying under sections 4C, 4F, 4G, 4H or 4I BNA need to go through the bureaucracy of submitting an application rather than benefitting from automatic British nationality (which some of them would have, had there not been the original discrimination). Moreover, evidence to the Committee highlighted that there could be other hurdles and impacts on an individual associated with needing to apply and complete the citizenship process (e.g. getting statements from family members and other proof) as compared to those merely acquiring British citizenship automatically.
25.However, as is clearly explained in paragraphs 38 and 39 of the judgment in Johnson, there could be good reasons for that distinction, particularly where a person has not automatically acquired citizenship at birth and “where a person has not automatically acquired citizenship at birth, it is reasonable to expect him to apply for it, even if he is entitled to be registered if he does so”.27 To provide otherwise could mean that one automatically imposed British citizenship on a person who did not want it, and who might, as a result, lose their existing nationality (where, for example, their country of other nationality did not recognise dual citizenship). As their Lordships note in Johnson, requiring applications for those entitled to British citizenship, but who did not automatically acquire British citizenship at birth, “avoids the risk of inconvenient results and provides everyone with clarity and certainty”.28
2 R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56.
3 R (on the application of David Fenton Bangs) v Secretary of State for the Home Department.
4 See Human Rights Act 1998, section 10 & schedule 2
5 There is also an urgent procedure, in which the Minister may lay a made order, but there is a period of 120 days (divided in two 60 day periods) during which representations may be made and responded to. In both cases, each House of Parliament must then approve the Order if it is the have effect (or continuing effect in the case of the urgent procedure).
6 “Required information” means (a) an explanation of the incompatibility which the (proposed) order seeks to remove, including particulars of the relevant declaration, finding or order; and (b) a statement of the reasons for proceeding by way of remedial order and for making an order in those terms (See Human Rights Act 1998, Schedule 2, paragraph 5).
7 House of Commons, Standing Orders, Public Business 2017, HC 4, 152(B), and The Standing Orders of The House of Lords relating to Public Business 2016, HL Paper 3, 72(c).
8 Home Office, Incompatibility under the Human Rights Act 1998: A remedial order to amend the good character requirement at section 41A(1) of the British Nationality Act 1981, March 2018.
9 www.parliament.uk/jchr
10 See Annex, which contains both letters.
11 House of Commons, Standing Orders No. 151(1)(B).
13 Nationality, Immigration and Asylum Act 2002, c. 41, section 13(1).
14 Borders, Citizenship and Immigration Act 2009, c. 11, section 45 and Schedule 1, Part 2.
15 Immigration Act 2014 c. 22, section 65.
16 Section 41A BNA was added by the Borders, Citizenship and Immigration Act 2009 (c. 11, section 47(1)) and was amended by the Immigration Act 2014 (c. 22, Schedule 9, paragraph 70(3))).
17 Home Office, Good Character: Nationality Policy Guidance, 27 July 2018
18 R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56.
19 Marckx v Belgium (1979) 2 EHRR 330.
20 Genovese v Malta (2011) 58 EHRR 25.
21 [2016] UKSC 56, para 38.
22 R (on the application of David Fenton Bangs) v Secretary of State for the Home Department.
23 UN Treaty Series, vol. 1249, p.13.
24 UN Treaty Series, vol. 1577, p. 3.
26 This was considered by the Supreme Court in ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4, in which Lady Hale set out how the ‘spirit’ of Article 3 of the UN Convention on the Rights of the Child is translated into national law in s.55 of the Borders, Citizenship and Immigration Act 2009 (and s. 11 Children Act).
27 R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56, at paragraph 39.
28 R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56, at paragraph 39.
Published: 31 May 2018