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

Annex: Correspondence

Letter from the Chair of the Committee to the Home Secretary regarding the British Nationality Act 1981 (Remedial) Order 2018, dated 18 April 2018

Dear Amber

The British Nationality Act 1981 (Remedial) Order 2018

The Joint Committee on Human Rights is scrutinising the proposal for a draft British Nationality Act (Remedial) Order 2018, which would remove the good character requirement from registration pursuant to sections 4C and 4G to 4I of the British Nationality Act 1981 (“the Act”). This proposal 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] UKSC 56. The Supreme Court found that the Act was incompatible with Article 14 read with Article 8 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. Furthermore, a consent Order and accompanying declaration of incompatibility were made in similar terms in the case of R (on the application of David Fenton Bangs) v Secretary of State for the Home Department, in relation to the application of the good character requirement to registration pursuant to section 4C of the Act to individuals that would, had their mother been able to pass on nationality in the same manner as a British father, have automatically acquired citizenship at birth.

I am writing to draw your attention to the Committee’s call for evidence in relation to this proposed remedial Order. We would welcome any evidence you may wish to submit in relation to this Order. In addition to general issues, we would be grateful if you could provide us, by 2nd May, with some further information on particular aspects relating to:

The use of a Remedial Order

We are grateful for the information provided by the Home Office as part of the “required information” (paragraph 3 of Schedule 2 to the Human Rights Act 1998). In particular, we welcome the views expressed at how “the Government takes discrimination seriously and is of the view that instances of [discrimination] should be remedied swiftly”. We note that the Home Office view is that “the legislative programme as currently foreseen offers no prospect of a suitable primary legislative vehicle in which these changes could be included”.

We would be grateful for further explanation and/or clarification as to why the changes envisaged would not fall within the scope of the legislation announced in the Queen’s Speech to establish “new national policies on immigration”.

The use of the non-urgent procedure.

Whilst much of the information provided by the Home Office is helpful in relation to the use of the non-urgent procedure, the Committee notes that it has previously called on Departments to include within this information some consideration of, and information as to, the impact on the individuals concerned. For example, paragraph 50 of the first Report on the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Remedial) Order 2010 provides that “full information on the ongoing impact of a violation subject to a proposal for a remedial Order [ … ] should always be included with the required information prepared”.

It would be useful to have an explanation from the Home Office as to the impact of the current violation on the individuals concerned.

Payment of Fees

We note the reference in the required information explaining that no application fee is charged for these applications “with the exception of applications made under 4F”. We further note the undertaking that “applicants who have previously been refused on character grounds will have the opportunity to reapply when the good character requirement is removed”. However, it is not clear to us if applicants who have previously been refused on character grounds under 4F would need to pay an application fee for such a reapplication (having previously paid an application fee for the original 4F application).

We would be grateful for a clarification as to whether applicants who have previously been refused on character grounds under 4F would need to pay an application fee for a reapplication following this change to the requirements.

Applications under section 4F

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 British Nationality Act 1981 (and therefore where the underlying provisions 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 British Nationality Act 1981 (and therefore where the underlying provisions do not require good character to be shown). However, it would be helpful to have a rationale or policy justification for requiring good character for children making these applications.

What is 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?

In particular, we note that but for the discrimination that section 4F seeks to remove, children would have been able to apply for British Citizenship under section 1(3), 3(2) or 3(5) of the Act 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 that were over 10 when section 4F was introduced and would seem to perpetuate the original discrimination. This could mean that a child who would have been able to apply and be entitled to British Citizenship but for the discrimination, is then prevented from subsequently becoming a British Citizen because they are then over the age of 10 (and required to prove good character) when the discriminatory provisions were removed by section 4F. Similarly, there could be adults who would have been able to apply for British Citizenship under section 1(3), 3(2) or 3(5) of the British Nationality Act 1981 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 because they were already adults by the time that section 4F was introduced and the original discrimination addressed.

Does the Home Secretary agree that such individuals continue to be discriminated against by the current British Nationality Law provisions? If so, what does the Home Secretary intend to do about this?

Treatment of applications by stateless persons

The rationale for the distinction in relation to the different categories under section 4F is not immediately clear to us–in particular insofar as section 3(2) relates to stateless children (who do need to show good character) and paragraphs 4 and 5 of Schedule 2 also relate to stateless persons (but who do not need to show good character).

What is the policy justification for requiring stateless children to prove good character in an application made pursuant to section 3(2) of the British Nationality Act 1981, where other nationality applications made by stateless persons under paragraph 4 or 5 of Schedule 2 to the British Nationality Act 1981 do not require a stateless person to prove good character?

Requirement to be registered at a consulate

We are aware of the recent Supreme Court judgment in The Advocate General for Scotland v Romein [2018] UKSC 6. This case concerned a rather peculiar outcome of section 4C of the British Nationality Act 1981, 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–including that she should had 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) is “to treat the registration condition in section 5(1)(b) 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. It is also unclear whether there are similar situations where a similar reading might be required in order to achieve a just and non-discriminatory result.

Does the Home Secretary agree 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? Is this Home Secretary 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? If so, how does the Home Secretary intend to deal with such situations?

Applications by persons whose relevant parent has since died

There will be some persons whose parent could have benefited from the provisions in the remedial order (and who therefore themselves should be entitled to British Citizenship) but for the discriminatory provisions. However, where that parent has since died, that parent will not be able to apply under the provisions of the British Nationality Act 1981, as amended–probably meaning that the child of that parent themselves will be deprived of the ability to apply for British Citizenship, due to the continuing effects of the discriminatory provisions.

Does the Home Secretary agree that this (presumably unintended) discriminatory consequence is of concern? If so, how does the Home Secretary intend to accommodate applications for British Citizenship from such individuals?

British Overseas Territories Citizenship

The changes introduced by sections 4C and 4F–4I of the British Nationality Act 1981 (and being amended by this 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. The European Convention on Human Rights (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 Dhelekia, Turks and Caicos Islands). Therefore, the discrimination under Article 8 ECHR as read with Article 14 ECHR is relevant unlawful discrimination, also when applied to citizenship provisions affecting these overseas territories. It is for the Westminster Parliament to legislate for BOTC nationality rules–however the discriminatory provisions in the British Nationality Act still exist in relation to BOTC citizenship.

What does the Home Secretary intend to do to remedy this discrimination (discrimination as between women and men, and also discrimination based on marital status) on the face of the British Nationality Act 1981 in respect of British Overseas Territories Citizenship?

Other potentially discriminatory provisions in British Nationality Law

We note that a number of provisions of British Nationality Law would appear, at face value, to suggest other areas of Nationality Law could contain potentially unlawful discrimination and it would be useful to have an assessment and explanation from the Home Office as to whether such discrimination does in fact persist (complete with a reasoned explanation for each instance). For example–

Certain references in the Act seem to assume that a person’s parents must be (or must at some point have been) in a marriage or civil partnership, therefore potentially introducing discrimination based on the marital status of that person’s parents and creating potential difficulties for single parent households. See section 3(6) and section 17(6) of the Act. Similarly, other provisions requiring the consent of both parents (unless one has died) do not seem to adequately accommodate the situation of single parent families–section 4G(3) of the Act is on such example. The same would seem to be the case for paragraph 6 of Schedule 2 to the British Nationality (General) Regulations 2003.

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 Act.

Similarly, there is a lack of clarity as to the reading of section 4C of the Act, 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?

Some provisions only apply to people whose mothers were British (e.g. section 11(2) of the Act).

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 Act. It would also be helpful to have confirmation from the Home Secretary that the Act does not contain discrimination as between those who are married and those who are in civil partnerships.

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 Act.

We would be grateful for an assessment and explanation from the Home Office as to whether any such discrimination does in fact persist in British Nationality Law (including addressing each of the above examples), complete with a reasoned explanation for each instance.

Response from the Minister of State for Immigration to the Chair of the Committee, dated 4 May 2018

Dear Harriet,

The British Nationality Act 1981 (Remedial) Order 2018

1)Thank you for your letter of 18 April to the Home Secretary about the British Nationality Act 1981 (Remedial Order) 2018. I have noted the Committee’s call for evidence and there are no further submissions I wish to make with respect to the Order. I have set out responses to your questions below.

The use of a Remedial Order

We would be grateful for further explanation and/or clarification as to why the changes envisaged would not fall within the scope of the legislation announced in the Queen’s Speech to establish “new national policies on immigration.”

2)The Government takes its obligations in relation to the European Convention of Human Rights seriously and is committed to remedying the incompatibility identified at the earliest opportunity. Given the courts’ decisions last year in the case of Johnson and the application of David Fenton Bangs, we did not want to risk any further delay.

The use of the non-urgent procedure

It would be useful to have an explanation from the Home Office as to the impact of the current violation on the individuals concerned.

3)The impact of the incompatibility means that certain individuals who the courts have identified have a right to British citizenship are not able to make an application to do so until the legislation is amended. The continuing incompatibility will mean that they are unable to obtain a British passport and the benefits which are gained from British citizenship. Where we have been made aware of individuals affected by the incompatibility who do not have an immigration status we have taken action to put them in a comparable position by granting indefinite leave to remain. This will ensure that they can work in the UK and are able to access public funds. For individuals who are overseas the impact may be on their ability to come to the UK. Where we are made aware of individuals affected, we will consider their individual circumstances on a case-by-case basis.

Payment of Fees

We would be grateful for a clarification as to whether applicants who have previously been refused on character grounds under 4F would need to pay an application fee for a reapplication following this change to the requirements.

4)Individuals will be charged a fee for any application made under section 4F of the British Nationality Act 1981. Section 4F remains a registration route for British citizenship and in accordance with Schedule 8 of the Immigration and Nationality (Fees) Regulations 2018 a fee is required. This applies where an applicant submits a second application under the same registration route.

Applications under section 4F

What is 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?

5)The good character requirement applies to any child aged 10 and over, in line with the age of criminal responsibility.

[Minors and adults caught by the good character requirement under 4F] Does the Home Secretary agree that such individuals continue to be discriminated against by the current British Nationality Law provisions? If so, what does the Home Secretary intend to do about this?

6)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:

  1. the registration routes in section 4F are themselves subject to the good character requirement;
  2. 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;
  3. 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;
  4. 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.

7)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.

Treatment of applications by stateless persons

What is the policy justification for requiring stateless children to prove good character in an application made pursuant to section 3(2) of the British Nationality Act 1981, where other nationality applications made by the stateless persons under paragraph 4 or 5 of Schedule 2 to the British Nationality Act 1981 do not require a stateless person to be of good character?

8)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.

9)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.

Requirement to be registered at a consulate

Does the Home Secretary agree 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 provision? Is this Home Secretary 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? If so, how does the Home Secretary intend to deal with such situations?

10)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.

11)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. However, if the Committee has any concerns I would be happy to consider these.

Applications by persons whose relevant parent has since died

Does the Home Secretary agree that this (presumably unintended) discriminatory consequence is of concern? If so, how does the Home Secretary intend to accommodate applications for British Citizenship from such individuals?

12)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.

British Overseas Territories Citizenship

What does the Home Secretary intend to do to remedy this discrimination (discrimination as between women and men, and also discrimination based on marital status) on the face of the British Nationality Act 1981 in respect of British Overseas Territories Citizenship?

13)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.

Other potentially discriminatory provisions in British Nationality Law

We would be grateful for an assessment and explanation from the Home Office as to whether any such discrimination does in fact persist in British Nationality Law (including addressing each of the above examples), complete with a reasoned explanation for each instance.

14)Finally, thank you for the further points you have noted in relation to other provisions in the British Nationality Act 1981. I have asked my officials to consider these issues and I will write again to the Committee with a substantial response by the end of May.

Rt Hon Caroline Nokes MP, Minister of State for Immigration





Published: 31 May 2018