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

Conclusions and recommendations

1.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.

The issue that the proposed draft Order addresses

2.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. (Paragraph 5)

Procedural Requirements

3.Overall, we are satisfied that there are compelling reasons to proceed by Remedial Order and that this is a valid use of the remedial power. (Paragraph 38)

4.More specifically, Committee considers that the non-urgent procedure strikes a reasonable balance between the competing considerations of the need to avoid undue delay in remedying the incompatibility with human rights standards and the need to afford a proper opportunity for parliamentary scrutiny of changes to primary legislation. Further, we welcome some of the explanations that the Home Office has given as to the intended treatment of those affected pending the entry into force of those amendments and we encourage the Home Office to minimise the impact of this discrimination on those people in any of its decision-making. (Paragraph 39)

5.As we describe later in this report, other discriminatory provisions appear to remain on the face of British nationality legislation. It would be beneficial for the Home Secretary to introduce a Bill of wider scope to remove all remaining discrimination in British nationality law—and which could consolidate and bring clarity to the existing law. We recommend that the Government bring forward the necessary legislation to remedy this remaining discrimination at the first available opportunity. (Paragraph 40)

Requirement for good character for children under section 4F

6.The wider issue of the application of the good character requirement to children in the context of seeking British nationality is something which requires further consideration. (Paragraph 48)

7.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. (Paragraph 53)

8.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. (Paragraph 57)

9.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. (Paragraph 60)

Fees Applicable for a re-application following removal of the discrimination

10.People who have been refused British nationality because of discrimination should not have to pay an application fee a second time to reapply once that discrimination is removed. We recommend that the Home Office take steps to ensure that those previously discriminated against do not have to pay the application fee when reapplying under section 4F (e.g. by making a consequential amendment to the Immigration and Nationality (Fees) Regulations 2018). (Paragraph 64)

Other Matters Arising

11.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. (Paragraph 69)

12.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. (Paragraph 72)

13.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. (Paragraph 79)

14.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. (Paragraph 82)

15.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. (Paragraph 85)

Published: 31 May 2018