The Committee has been undertaking legislative scrutiny of the Nationality and Borders Bill. This Report focusses solely on Part 1 (Nationality) of the Bill, focussing, in particular, on (i) addressing historic discrimination in British nationality law; (ii) the approach taken to people lacking full capacity; (iii) the exercise of discretion in special cases; (iv) fees; (v) the good character requirement; and (vi) the rights of stateless children. Work scrutinising the other parts of the Bill is ongoing.
Part 1 (Nationality) of the Bill amends the British Nationality Act 1981 (BNA). The majority of the provisions in this part of the Bill are positive from a human rights and anti-discrimination perspective, in that they remove pre-existing discrimination in nationality law that can also affect the right to family life (Article 14 as read with Article 8 of the European Convention on Human Rights (ECHR)). There are some elements that would benefit from further clarification or amendment which we outline below, for example where they may have a negative impact on the rights of the child and in particular on children born in the UK who are stateless. We also acknowledge that the clauses in this part of the Bill have provoked significant interest in particular from people interested in acquiring British citizenship/British overseas territories citizenship by descent, including those whose ancestors had links to the British Indian Ocean Territory.
Clauses 1–7 aim to address or remove historical discrimination in British nationality law, as identified in the Committee’s previous work in 2018 and 2019. These clauses are broadly positive from a human rights perspective.
The Committee has previously expressed its concern about good character being required in cases resolving previous discrimination and in cases concerning children. Requiring good character in cases resolving prior discrimination can risk perpetuating the effects of discrimination for those previously discriminated against. Further, it is difficult to see how the good character requirement is in the best interests of the child. This is relevant both as a broader point, but also to some of the new clauses which would require good character and risk perpetuating discrimination in doing so.
It is unclear whether any fees might be charged for an application for British nationality under some of the new clauses. Fees (especially if they are set at unaffordable or excessive rates) can be a barrier to people accessing their right to British nationality. This is especially problematic where such fees are being charged to correct historical discrimination or for children to access their right to nationality.
It is not clear why the provision in section 44A BNA (relevant to clause 7) that the Secretary of State “may” waive the requirement for an applicant to be of full capacity if she thinks it in the applicant’s best interest is discretionary. Surely if it is in the best interests of an applicant who is not of full capacity, then the Secretary of State “should” waive that requirement if she thinks it is in the applicant’s best interests, so as not to unfairly disadvantage those lacking full capacity.
It is unclear how the discretion in clause 7 (new sections 4L and 4H BNA) for the Secretary of State to register a person as a British citizen in special circumstances, will be exercised. That information will be crucial to help inform potential applicants of their options and chances of success. We recommend that the Home Secretary should issue guidance to clarify how she will exercise her discretion.
More significantly, we have concerns that clause 9, which is about stateless children, is not in the best interests of the child and therefore it is doubtful whether it complies with Article 3 of the UN Convention on the Rights of the Child. It is also difficult to see how it complies with the obligation to grant stateless children born in the UK British nationality, in line with Article 1 of the 1961 UN Statelessness Convention. We consider that an amendment to this clause is necessary—preferably to delete clause 9. Alternatively, at a minimum, the clause would need amendment firstly to ensure that it complies with the rights of the child so that the best interests of the child are central to the decision-making and secondly to ensure that British citizenship is only withheld where the nationality of a parent is available to the child immediately, without any legal or administrative obstacles, in compliance with the UK’s obligations under the UN Statelessness Convention.