41.Section 4F allows for certain applications for British nationality to be made by people who would have been granted British nationality under section 1(3), 3(2), 3(5) BNA, or paragraph 4 or 5 of Schedule 2 to the BNA, had their parents been married. The underlying entitlements to British nationality vary. Section 1(3) applies to a child born in the UK whose parent has since settled in the UK or become a British citizen. Section 3(2) BNA applies to a child with certain links to the UK whose parent is a British citizen by descent and whose grandparent is a British citizen (not by descent). Section 3(5) applies to a child who is in the UK for a certain period of time and whose parent is a British citizen by descent (and where parental consent is given for the British citizenship application). Paragraphs 4 and paragraph 5 of the Schedule 2 relate to stateless persons.
42.The proposed Remedial Order has deliberately reinstated the good character requirement for applications under section 4F where the underlying entitlement to British citizenship requires good character—i.e. as concerns sections 1(3), 3(2) and 3(5) of the BNA.
43.Many of the submissions questioned the requirement for children to prove good character in relation to applications under section 4F. Some highlighted specific discriminatory consequences that arose from the requirement for these children to prove good character. We have therefore considered these points in turn below.
44.We understand the explanation given by the Home Office as to the distinction now being drawn between requiring good character under section 4F where the underlying registration provision is section 1(3), 3(2) or 3(5) of the BNA (which require good character to be shown) and not requiring good character under section 4F where the underlying registration provision is paragraph 4 or 5 of Schedule 2 to the BNA (which do not require good character to be shown). In essence, the distinction made between the different provisions of section 4F therefore merely reflects and follows through from the requirements of those underlying provisions.
45.However, it is not immediately clear what justification there is for requiring good character for children (over the age of 10) making these applications under section 1(3), 3(2) or 3(5) of the Act. In the letter from the Chair to the Home Secretary dated 18 April 2018, we asked for an explanation as to the policy justification for requiring good character for children applying under section 1(3), 3(2) or 3(5) of the British Nationality Act 1981 (and therefore for those applying under the related provisions on section 4F). In the response of 4 May 2018, the Immigration Minister stated “The good character requirement applies to any child aged 10 and over, in line with the age of criminal responsibility”.
46.We cannot immediately see that this answers the question as to why children should need to show good character to access their nationality, for example so that a child (of, say, 10 or 11) can have the same nationality as its parent. The situation is exacerbated by the seeming impossibility of granting a child nationality under these provisions if they cannot show good character as there seems to be little-to-no flexibility around the character of children. This seems to conflict with the obligation to have regard to the best interests of the child and the rights of the child in general.
47.In particular, we note that section 55 of the Borders, Citizenship and Immigration Act 2009 places a duty on the Home Secretary to safeguard and promote the welfare of children in matters relating to asylum, immigration and nationality.
49.Section 4F seeks to remove discrimination against children whose parents are not married. Had those children been able to apply when they were under 10, they would not need additionally to prove the good character requirement. However, for those children that were over 10 by the time this provision was introduced (or by the time their parents applied under this provision), those children would need to prove good character.
50.We note that but for the discrimination that section 4F seeks to remove, the children now needing to show good character when applying under section 4F would have been able to apply for British citizenship under section 1(3), 3(2) or 3(5) of the BNA when they were under 10 (and therefore would not have needed to prove good character). Whereas if they can only apply when they are over 10, then they have to prove good character. This creates obvious difficulties especially for those who were over 10 when section 4F was introduced. It risks perpetuating the original discrimination. This could mean that children who would have been able to apply and be entitled to British citizenship but for the discrimination, are then prevented from subsequently becoming a British Citizen because they are then over the age of 10 (and required to prove good character, which they might not have) when the discriminatory provisions were removed by section 4F. Analysed in this way, this would seem to be analogous to the situation in Johnson and David Fenton Bangs and therefore risks being found to be discriminatory contrary to Article 14 of the ECHR as read with Article 8 of the ECHR.
51.In the letter from the Chair to the Home Secretary dated 18 April 2018, we asked the Home Secretary to explain this apparent discrimination and what she intended to do about it. In the letter dated 4 May 2018, the Immigration Minister stated:
“Following the Supreme Court’s declaration of incompatibility and during the process of drafting the Remedial Order, we considered carefully the points raised by the Committee. However, we decided that we should maintain the good character requirement for persons aged 10 and over for the following reasons:
a) the registration routes in section 4F are themselves subject to the good character requirement;
b) there is little basis for a reliable finding about when a 4F applicant would have applied and whether this would have been on an earlier date when they would not have been impacted by the good character requirement;
c) it would not be right now to put a 4F applicant aged 10 or over in a better position than a child whose parents were married;
d) if we placed the onus on a 4F applicant aged 10 or over to prove the date on which they would have hypothetically made an application, this would very likely be based on the applicant’s assertion rather than evidence and there was therefore scope for dishonesty and fraud. We considered that the practical difficulties of making a reliable finding and in establishing the necessary hypothetical facts in relation to these applications meant that this category could not reasonably be remedied.”
52.We are grateful for the Immigration Minister’s considered response on this point and we can understand in particular that this could place such applicants in a different position than those applying under section 1(3), 3(2) or 3(5) of the British Nationality Act 1981. However, we consider the argument around knowing whether/when a person would have applied when under the age of 10 (points (b) and (d) in the letter) to be particularly weak. Given these individuals have been discriminated against it should not be for them to prove what they would have done had they not been discriminated against—rather the Home Office should seek, as best as possible, to remove that discrimination and the impacts of that discrimination. In relation to point (c) in the letter, we doubt that removing the good character requirement for people who were unfairly precluded from applying when they were under 10 would be unfair to those whose parents were married—as that category were able to apply when they were under 10 as they did not face discrimination.
53.Had children been allowed to apply for citizenship when they were under the age of 10, they would not have needed to prove good character. We do not consider it justified or proportionate to require children who have been discriminated against, additionally to have to prove good character when they are now finally entitled to apply following the removal of that discrimination. In our view, there is a risk that this constitutes unjustified discrimination contrary to Article 14 of the ECHR, as read with Article 8 of the ECHR. We would therefore recommend that the Home Secretary consider taking the necessary steps to eliminate such discrimination.
54.Similarly, there could be adults who would have been able to apply for British citizenship under the section 1(3), 3(2) or 3(5) routes of the BNA, had section 4F been introduced when they were still minors. However, as those provisions only allow for minors to apply, then they are no longer entitled to apply for British citizenship since they were already adults by the time that section 4F was introduced and the original discrimination was addressed. This would seem to create a situation rather analogous to that of Johnson. It therefore would seem to risk incompatibility with human rights law and specifically Article 14 of the ECHR, as read with Article 8 ECHR.
55.We asked the Home Secretary to explain this apparent discrimination and what she intended to do about it. The Minister for Immigration replied:
“In respect of the position in relation to adults, an individual can only apply under section 4F if they are a minor because all the relevant referenced routes, namely sections 1(3), 3(2) and 3(5), are all routes for minors to apply for citizenship. Section 4F does not apply to adults. Furthermore, the position of adults in relation to section 4F does not relate to the good character requirement which is the subject of the Remedial Order.”
56.Whilst we can understand the technical argument that sections 1(3), 3(2) and 3(5) are only available to children, we note that this does not resolve the continuing effects of the discrimination felt by those who were barred, by discriminatory provisions, from applying when children.
57.We consider that those who should have been entitled to apply for British citizenship under limbs (1)(b)(i), (ii) or (iii) of section 4F BNA as children should now be able to apply as adults in order to remove this discrimination, and the ongoing impacts of this discrimination, properly. Otherwise, this provision could risk being discriminatory contrary to Article 14 of the ECHR, as read with Article 8 of the ECHR, which would risk further successful litigation against the Government and thus a further declaration of incompatibility in respect of the BNA. We therefore recommend that the Home Secretary address this discrimination.
58.One result of the provisions relating to section 4F is that stateless persons applying under limb (iv) or (v) of section 4F(1)(b) BNA do not need to show good character, but stateless children applying under limb (ii) of section 4F(1)(b) BNA do need to show good character. The rationale for the distinction in relation to the different categories of stateless persons covered by section 4F is not immediately clear to us (even though we understand that 4F is rather parasitic on the underlying provisions). In particular, our concern is that section 3(2) (to which limb (ii) cross-refers) relates to stateless children (who do need to show good character under that provision) and paragraphs 4 and 5 of Schedule 2 (to which limb (iv) and (v) refers) relate to stateless persons (who do not need to show good character). We find this difficult to reconcile with the best interests of the child and with the rights of the child in general.
59.We asked for an explanation as to the policy justification for requiring stateless children to prove good character in an application made pursuant to section 3(2) of the BNA, where other nationality applications made by stateless persons under paragraph 4 or 5 of Schedule 2 to the BNA do not require a stateless person to prove good character. The Immigration Minister replied:
“Prior to 2009, section 3(2) applications had to be made within 12 months of the child’s birth. Section 3(2) was extended by the Borders, Citizenship and Immigration Act 2009 so a registration could take place at any time up to the child’s 18th birthday. In removing the 12-month cut-off date for applications under 3(2), and thus permitting applications from those aged 10 and over, it was right that we included a requirement for the person to be of good character in line with other provisions for registration and naturalisation.
Section 3(2) is not principally a provision which affects stateless children. Its main beneficiaries are those whose parents are a British citizen by descent, and the parent lived in the UK for a period of three years at any time before the child’s birth. Section 3(2) is not specifically aimed at those who are stateless, but it does remove some of the requirements where the child is stateless namely the requirements for the parent in question to be a British citizen. The fact that stateless minors can apply under this section, does not mean that it is a ‘statelessness provision’; in theory, stateless children could apply under any of the provisions–1(3), 1(4), 3(1) and 3(5), all of which have a good character requirement.”
60.In order to remove the discrimination highlighted above, we recommend that the Home Secretary should remove the requirement for stateless children to prove good character in applications made under section 3(2) BNA, and in related applications made under section 4F; children should not be treated less fairly than other stateless persons.
31 Whilst good character should not necessarily be the same as not of bad character, it can be inflexible in practice. It is often difficult to get a proper individualised assessment and there is often little flexibility in the way this is applied. The only real issue in proof arises if there is some evidence of bad character (e.g. a criminal conviction) and there is a judgement to be made as to whether this conviction is sufficiently serious when balanced with other behaviour (e.g. in school, studies, work, family life) to make a determination that a person is of good or bad character.
32 Borders, Citizenship and Immigration Act 2009, .
33 This was considered by the Supreme Court in ZH (Tanzania) (FC) v Secretary of State for the Home Department  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).
Published: 31 May 2018