Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018 Contents

5Other Matters Arising

Impossibility of the requirement to register a birth at a consulate in the past

65.In The Advocate General for Scotland v Romein [2018] UKSC 6, the Supreme Court considered the rather peculiar outcome of section 4C of the BNA, in that Ms Romein was required to fulfil all of the statutory conditions as if the discrimination had not been in place at the time of her birth. This included the requirement that she should have been registered at a consulate within one year of her birth, even though any consulate would have refused to register her at such a time as only her mother (and not her father) was British. The Supreme Court held that the only way in which effect can be given to section 4C(3) BNA is “to treat the registration condition in section 5(1)(b) [of the British Nationality Act 1948] as being inapplicable in cases where citizenship is claimed by descent from a mother”. This means we now have a situation where it is not clear on the face of the Statute (without being aware of this judgment) whether an individual can satisfy these conditions.

66.It is also unclear whether there are other situations where a similar reading might be required in order to achieve a just and non-discriminatory result. We are concerned that the Home Secretary is not actively seeking to remove all discriminatory provisions from the Statute book.

67.We asked whether the Home Secretary agreed that it would be preferable to clarify on the face of the Statute that certain requirements in the underlying entitlement to British citizenship do not need to be met if it is impossible (or very difficult) for those subject to the original discrimination to meet those requirements due to the original discriminatory provisions. We also asked whether the Home Secretary was aware of any other provisions (other than section 5(1)(b) of the British Nationality Act 1948, which was the subject of the judgment in The Advocate General for Scotland v Romein [2018] UKSC 6) where there are conditions that are impossible (or very difficult) for those subject to the original discrimination to meet, due to the original discriminatory provisions. The Immigration Minister told us:

“In response to the Romein judgment, application forms and guidance have been amended. These amendments make clear that those applying to register under section 4C(3) on the basis of citizenship by descent from their mother, are not required to have registered, or attempted to register, the birth. The guidance which accompanies the application form ‘UK(M)’ and the guidance for caseworkers, both available on GOV.UK, have made the requirements clear and we are not aware of anyone experiencing difficulties.

Nor am I aware of any other conditions contained within nationality provisions which would be unduly difficult, or impossible, for those subject to the original discrimination to meet.”

68.We are grateful for the reassurance from the Immigration Minister that the guidance makes clear the obligations on applicants and also that she is not aware of any other conditions that could make it unduly difficult or impossible for applicants subject to prior discrimination. Nonetheless we consider it important to ensure that the legislation is clear.

69.We recommend that the Home Secretary take steps to address and remove examples of apparent discrimination that continue on the face of British nationality legislation, such as that identified in the case of The Advocate General for Scotland v Romein [2018] UKSC 6.

Application by a person whose parent has since died

70.There will be some persons whose parent could have benefited from the provisions in the proposed Remedial Order remedying the discrimination which that parent has faced (and who therefore themselves should be entitled to British citizenship by descent through that parent). If that parent has since died, that parent will not be able to apply under the provisions of the BNA, as amended by the proposed Remedial Order–most likely meaning that the child of that parent themselves will be deprived of the ability to apply for British citizenship, meaning that there are continuing effects of the discriminatory provisions.

71.We asked if the Home Secretary agrees that this (presumably unintended) discriminatory consequence is of concern, and how the Home Secretary intends to accommodate applications for British Citizenship from such individuals. The Immigration Minister replied in the letter of 4 May 2018:

“There was no intention to discriminate against those whose parents may have benefited from the Remedial Order but have since died. However, although we cannot assume that those parents would have registered as British, and that in turn they would have gone on to register their child. I have asked my officials to consider this issue further with the aim of providing a recommendation to the Committee by the end of May.”

72.We are pleased with the confirmation from the Immigration Minister that there is no intention to discriminate against those whose parents may have benefited from these amendments but have since died. We recommend that the Home Secretary consider how best to accommodate British nationality applications from individuals who would have been entitled to British citizenship had their (now deceased) parent been able to apply under section 4C, 4F, 4G, 4H or 4I BNA, as amended by the proposed Remedial Order. We look forward to receiving the recommendations and solutions as to how best to address this issue from the Immigration Minister by the end of May, as indicated in her letter.

Discrimination and British Overseas Territories Citizenship

73.The changes introduced by sections 4C and 4F–4I of the BNA (and being amended by this proposed Remedial Order) only relate to British citizenship and not to any of the other types of nationality covered by the British Nationality Act—in particular British Overseas Territories Citizenship (“BOTC”).

74.The ECHR extends to the British Overseas Territories (Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, St Helena, Ascension and Tristan da Cunha, South Georgia and South Sandwich Islands, Sovereign Base Areas of Akrotiri and Dhekelia, and the Turks and Caicos Islands). Therefore, the discrimination under Article 8 ECHR as read with Article 14 ECHR is also relevant unlawful discrimination when applied to citizenship provisions affecting these overseas territories.

75.It is for the Westminster Parliament to legislate for BOTC nationality rules and this is therefore within our remit. We note that the original discriminatory provisions in the BNA still exist in relation to BOTC citizenship. It is difficult to see why the situation is remedied for children of British mothers (but not BOTC mothers) and children of British fathers who were not married to their mothers (but not BOTC fathers who were not married to their mothers) - especially given that the provisions according both types of nationality are dealt with in similar terms in the same piece of legislation—the BNA. Such discrimination should not be allowed to persist. As one person contributing evidence to our inquiry put it, “we have an unequal situation affecting the same category of people under the same nationality law”.

76.Furthermore, because people discriminated against in this way would be unable to obtain BOTC citizenship, they would therefore also be unable to obtain British citizenship through the operation of section 3 of the British Overseas Territories Act 2002, which granted those with BOTC citizenship (other than through the Sovereign Base Areas in Cyprus) automatic additional status as British citizens.

77.The same discriminatory provisions as between obtaining British nationality by descent from a British mother as compared to a British father, and depending on the marital status of one’s parents, would also seem to remain for the other types of British nationality—British Overseas Citizens, British Nationals (Overseas), British Subjects and British Protected Persons.

78.In the letter from the Chair to the Home Secretary dated 18 April 2018, we asked the Home Secretary what she intended to do to remedy this discrimination (discrimination as between women and men, and also discrimination based on marital status) on the face of the BNA in respect of British Overseas Territories Citizenship. The Immigration Minister replied:

“The section 4 provisions, introduced to eliminate historical discrimination, and which are the subject of the Remedial Order, apply to persons entitled to be registered as British citizens only. Section 41A(2) sets out that the good character requirement applies to applications for registrations made by persons aged 10 and over for British Overseas Territories Citizenship (BOTC). In respect of these registrations, the sections it refers to are 15(3) or (4), 17(1) or (5), 22(1) or (2), or 24. Any amendments to persons entitled to be registered as BOTCs will require consultation with the Overseas Territories and this is now on our agenda. I am grateful to the Committee for bringing this to my attention. I will ask my officials to consider this for the next draft of the Remedial Order in consultation with representatives in the BOTCs.”

79.We consider 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. We welcome the Immigration Minister’s undertaking, in response to our letter, to pursue work to remove this discrimination with regard to British Overseas Territories Citizenship and we look forward to receiving updates on the progress of that work to eliminate this discrimination.

Other potentially discriminatory provisions in British Nationality Law

80.We note that a number of provisions of British nationality legislation would appear, at face value, to suggest other areas of British nationality law could potentially contain unjustifiable discriminatory provisions. We asked the Home Office for an assessment and explanation in general as to whether such discrimination does in fact persist in British nationality law, as well as a reasoned explanation for the Home Office’s view in respect of the specific instances raised in that letter. In her letter of 4 May 2018 the Immigration Minister undertook to give us a substantial response on these issues by the end of May.

81.We particularly note the following issues of concern that, at face value, would seem to indicate that discriminatory provisions remain on the face of British nationality law:

  1. Certain references in the BNA seem to assume that a person’s parents must be (or must at some point have been) in a marriage or civil partnership. This would seem to introduce discrimination based on the marital status of that person’s parents and create potential difficulties for single parent households. Section 3(6) and section 17(6) of the BNA are two such examples. Similarly, other provisions requiring the consent of both parents (unless one has died) do not seem to accommodate adequately the situation of single parent families (e.g. section 4G(3) of the BNA). The same would seem to be the case for paragraph 6 of Schedule 2 to the British Nationality (General) Regulations 2003.
  2. Certain provisions 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. Similarly, other provisions refer to descent in “the male line”. Such provisions therefore introduce discrimination as between those who have a British father (or paternal grandfather) and those who have a British mother (or grandmother or maternal grandfather). Such provisions include section 10(4), section 11(3), section 22(4), section 23(3)(b) and 23(5), and Schedule 8, paragraph 3(1)(b) of the BNA.
  3. Similarly, there is a lack of clarity as to the reading of section 4C of the BNA, when read with section 5(1) of the 1948 British Nationality Act. Can section 5(1) of the 1948 Act be read to substitute “mother” for “father” in that section, and therefore to remove discrimination between those whose maternal grandmothers were born in the UK and those whose maternal grandfathers were born in the UK? Or is there persisting discrimination in this respect?
  4. Some provisions only apply to people whose mothers were British (e.g. section 11(2) BNA).
  5. Certain provisions only apply to a “wife” of a British citizen and would therefore seem to discriminate against husbands of British nationals. For example, section 14(1)(b)(iii) and (iv) and 14(1)(e), section 23(1)(c), section 25(1)(e) and 25(1)(f) and section 30(b) of the BNA. We also sought confirmation from the Home Secretary that the BNA does not contain discrimination as between those who are married and those who are in civil partnerships.
  6. Certain provisions only apply to people whose fathers (and not mothers) were serving in the armed forces, Crown service or in an EU institution. For example, section 14(2) or section 25(2) of the BNA.

82.We therefore recommend that the Home Secretary undertake a consultation with a view to bringing forward legislation to remedy and remove all existing (or apparent) discrimination in British nationality law, including the points raised in paragraph 81 of this Report.

Complexity and Accessibility of British Nationality Law

83.In undertaking this work, the sheer complexity of the legislative framework of British nationality law is apparent. In part this is because the relevant Acts have been amended so many times that it is not easy to understand what law is current and what is not. In part this is because the multiple Acts cross refer to each other, making it difficult to read (without access to specialist resources). In part it is because certain provisions have to be read in light of particular case law (often giving interpretations that might not be apparent to those seeking to apply for nationality).

84.This means that it would be near impossible for an individual, without legal advice, to navigate this area of law and to understand their rights. Given the reduction in legal aid over recent years, there is a real risk that individuals will simply be denied meaningful access to their rights and access to justice because the law is inaccessible to non-specialists.

85.We recommend that the Home Secretary address the inaccessibility of British nationality law and the difficulty of navigating it in its current state. The Home Secretary should introduce a consolidating piece of legislation to help individuals seeking to use and apply these statutes. The Law Commission should consider whether it could undertake a project to clarify and consolidate British nationality law and to remove the remaining discrimination in this field.

Published: 31 May 2018