Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality Contents

1Introduction

1.The Nationality and Borders Bill (“NBB”) covers wide-ranging matters including (i) nationality (Part 1); (ii) treatment of refugees and asylum seekers (Part 2); (iii) enforcement of immigration law (Part 3); (iv) modern slavery (Part 4); and miscellaneous provisions (Part 5) such as age assessments for children, many of which were initially introduced only as holding provisions. This Report focusses solely on the nationality provisions in Part 1 of the Bill. Our scrutiny of other aspects of the Bill is ongoing.

2.The nationality provisions amend the British Nationality Act 1981 (hereafter “BNA”) and include:

a)Changes to correct historical discrimination preventing mothers transmitting British overseas territories citizenship to their children (clause 1).

b)Changes to correct historical discrimination preventing unmarried fathers from transmitting British overseas territories citizenship to their children (clause 2).

c)Changes to allow those now able to obtain British overseas territories citizenship to obtain related British citizenship (clause 3).

d)Changes to allow for a child to be registered as a British overseas territories citizen (by descent) whilst that child is a minor (rather than solely within 12 months of birth) (clause 4).

e)Changes to disapply the historical requirement to register a child’s birth at the local consulate when deciding British nationality applications for people who had not at that time been able to acquire British nationality due to discrimination either due to their mother being British or their father being unmarried (clause 5).

f)Changes to allow a natural father to pass on British citizenship to his child where the mother was married to someone else (clause 6).

g)Changes to allow the Secretary of State the discretion to grant British citizenship/British overseas territories citizenship to adults where they would have had that citizenship but for historical unfairness, an act or omission of a public authority, or other exceptional circumstances (clause 7).

h)Provision allowing the Home Secretary the discretion to waive requirements for a person to be present in the territory for a nationalisation application (clause 8).

i)Changes preventing stateless children born in the UK from acquiring British nationality unless the Home Secretary is satisfied that the child is unable to acquire another nationality (clause 9).

3.Nationality law can engage a number of human rights, including:

a)The right to family life (Article 8 ECHR).1

b)Freedom from discrimination in the enjoyment of other human rights (Article 14 ECHR).2

c)The obligation upon the State to make the best interests of the child a primary consideration (Article 3, UN Convention on the Rights of the Child (UNCRC)).3

d)The right of a child to nationality and identity (Articles 7 and 8, UNCRC).4

e)Obligations to reduce statelessness, including the obligation on a State to grant its nationality to a person born in its territory who would otherwise be stateless (Article 1, UN Convention on the Reduction of Statelessness 1961 (UN Statelessness Convention)).5

4.Part 1 (Nationality) of the Bill generally contains provisions that are positive from a human rights and anti-discrimination perspective, as well as some elements that would benefit from further clarification or potentially amendment, for example to ensure that the best interests of the child and the UK’s obligations under the UN Statelessness Convention are borne in mind when dealing with nationality applications from stateless children born in the UK.

5.On 26 July 2021, we published a call for written evidence for individuals and organisations to respond to the questions in the Terms of Reference, to which we received 61 submissions. Alongside this, we also published an online survey, promoted on our website and through our social media account, so we could hear a wider range of views on the human rights implications of the Bill. Our survey closed on 17 September 2021 and we received 84 responses to the survey. We have also heard oral evidence on the Bill. We are grateful to all those who have contributed in this way to our understanding of the Bill and the wider context in which it will operate.

6.We asked, in our call for evidence, whether there were any other human rights concerns in British nationality law that were not adequately addressed in the Nationality and Borders Bill. Evidence and information we received highlighted the following:

a)The Bill does little to address issues relating to the British citizenship rights of children born in the UK and growing up here.6

b)There are practical challenges to children acquiring nationality where (some) fathers are unwilling to provide evidence, which can be a barrier to children realising their right to British nationality in practice.

c)Concerns that the policy and practice of the Home Secretary in recognising British nationality do not adequately recognise the importance of citizenship rights, including concerns that the Home Secretary will refuse or fail “to confirm people’s citizenship rights from information known or available to her (including where she is the source of that information, such as confirming that she has naturalised or registered a child applicant’s parent)”.7

d)The absence of legal aid for children seeking to have their nationality status determined can also be a barrier to children accessing their rights, such as a right to British nationality.8 This can be a particular problem for looked after children or other children who would need support in making their British nationality claim. In previous Parliaments, the Joint Committee on Human Rights has raised concerns about the level of support provided to looked after children in accessing British nationality.9 A lack of access to legal support and legal aid can additionally be a barrier for people trying to correct historical discrimination in their access to British nationality.

e)Suggestions were made to introduce reforms to allow for broader discretion so that people with a strong connection to the UK can qualify for naturalisation, in particular to allow care leavers who have grown up in the UK to naturalise.10

f)There continue to be concerns at the disproportionate levels of some fees for applications for entitlements to British nationality, as the Committee has raised in its previous work.11

g)Concerns were raised about the situation of people with ‘residual’ British nationality, who do not have a right of abode in the UK, with accompanying calls for the UK to grant “citizenship and the right of abode in the UK to all British nationals, which would allow the UK to withdraw its reservation to Article 12(4) of the ICCPR and to ratify ECHR Protocol 4”.12

h)A number of those submitting evidence in relation to this Part of the Bill supported the campaign for people of Chaggosian descent to be treated as a special category for the purposes of obtaining British nationality by descent, so that 2nd, 3rd or 4th generation people with a connection to the British Indian Ocean Territory (BIOT) could access British overseas territories citizenship (and therefore also British citizenship).13

i)Some raised the situation of East African Asians whose parents had British Protected Person passports and who may have faced discrimination in (not) obtaining that nationality by descent.14

j)Concerns have also been raised in relation to the children of British Overseas Citizens otherwise than by descent, where those children were born between 1 January 1983 and 31 December 1987, specifically those of Somali ethnicity with links to the former Colony of Aden.15

k)Some have suggested the need for ongoing review and scrutiny to ensure no further areas of discrimination remain in British nationality law.16

l)Some have raised concerns about the practical difficulties of applying for citizenship, including procedural requirements concerning biometrics and ceremonies which can be excessively expensive or difficult to attend, especially when people may live far from the local Embassy.17 Alternative options (where possible) would help to mitigate some of these difficulties, for example, conducting ceremonies via zoom.

m)Some submissions mentioned the importance of Home Office staff treating people with respect and humanity, and, given the passage of time before resolving such discrimination, assistance with locating previous documentation.18

n)Some call for wider reforms to British nationality law to enable people to obtain British citizenship (or British overseas territories citizenship) by descent from a grandparent (and not only from a parent) – as at present, citizenship by descent can only pass down one generation, rather than two (or more).19

o)Some have called for the UK’s Ancestry visa programme to be extended to apply to those whose grandparents were born in a UK overseas territory (and not only the UK itself), as they feel this discriminates against them unfairly.20

7.The Committee in previous Parliaments has considered some of these issues in its work and we acknowledge the issues raised in the course of scrutiny of the Nationality and Borders Bill. Whilst we do not have time to undertake full and detailed scrutiny of all the points raised in evidence whilst scrutinising this Bill for human rights compatibility, we recognise the impact that many of these issues continue to have for those affected.

1 See for example the High Court judgment in R (Williams) v Secretary of State for the Home Department [2015] EWHC 1268 (Admin), where the court held: “I consider there is now overwhelming force in the proposition that nationality is a vital element of an individual’s fundamental identity, attracting the protection of article 8. Nationality has an intrinsic importance. I am not talking here about having citizenship of some country rather than being stateless… I am talking of the nationality of a particular country…” [at paragraph 86]. See also, Genovese v Malta, ECHR, 2011 (Application No. 53124/09) which related to a person who was refused nationality by descent due to his illegitimate status; and Suolita Keita v Hungary, ECHR, 2018 (Application No. 42321/15), which related to the regularisation of status of a stateless person

2 See, for example, K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin), or Advocate General for Scotland v Romein [2018] UKSC 6. See also, Genovese v Malta, ECHR, 2011 (Application No. 53124/09).

3 Article 3(1) UNCRC provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

4 Article 7 UNCRC provides: “(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. (2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless”.
Article 8 UNCRC provides: “(1) States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. (2) Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity”.

5 Article 1(1) of the UN Statelessness Convention provides: “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted: (a) at birth, by operation of law, or (b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.”

6 See Refugee and Migrant Children’s Consortium (NBB0047): “These reforms do not adequately address other anomalies affecting children. They do not address children born to European parents in the UK between 2000 and 2006, who lost out on becoming British automatically due to the definition of ‘settled’ at this time.”; and Joint Committee on Human Rights, Twentieth Report of Session 2017–19, Good Character Requirements: Draft British Nationality Act 1981 (Remedial) Order 2019 - Second Report, HC 1943 / HL Paper 397, para 21–30 where the Committee expressed concerns at the application of the good character requirement to children born in the UK and who had lived their whole lives in the UK

7 Project for the Registration of Children as British Citizens and Amnesty International (NBB0039)

8 Project for the Registration of Children as British Citizens and Amnesty International (NBB0039)

9 See Joint Committee on Human Rights, Twentieth Report of Session 2017–19, Good Character Requirements: Draft British Nationality Act 1981 (Remedial) Order 2019 - Second Report, HC 1943 / HL Paper 397, para 41–43, and in particular the recommendation at paragraph 42: “Local authorities should ensure that children in their care with an entitlement to British citizenship (whether or not they have another citizenship) should be registered as British to ensure they maintain their status and rights upon leaving care.” See also paragraph 56 of that Report in relation to EU national children in care post-Brexit: “…local authorities should actively take steps to ensure that applications are submitted for all looked after children in their care with a right to British nationality—including those who are EU nationals and who may face bureaucratic hurdles post-Brexit if steps are not taken now to clarify their status and their right to British nationality.”

10 See, for example, Refugee and Migrant Children’s Consortium (NBB0047): “The reforms could also be improved by giving a wider discretion in adult naturalisation cases, to allow for a range of circumstances. There should be a broader discretion that allows people with a strong connection to the UK to qualify for naturalisation. For example, it should allow a care leaver who has grown up in the UK and has obtained settled status under the EU settlement scheme to naturalise even if they do not meet all the requirements”. See also We Belong (NBB0057): “We Belong recommends that there is a shorter, five-year route to permanent status, in the Nationality and Borders Bill, for young people and children who have lived in the UK for more than half their lives ensuring stability for all children and young people with strong ties to the UK.”

11 See Chapter 3 of this report and, for example, Refugee and Migrant Children’s Consortium (NBB0047)

12 GlobalBritons (NBB0026): “It is estimated that there are currently more than 1,000 de facto stateless British nationals stuck in limbo in the UK, unable to live and work legally in the UK and unable to be deported anywhere else…. we are disappointed that no specific provisions have been included in the published Bill that deal with historical discrimination faced by residual British nationals and the de facto statelessness suffered by some.”

13 See, for example, British Overseas Territories Citizenship Campaign (NBB0014); Rosy Leveque (NBB0015); David Louis Victoire (NBB0018); and Francois Pascal (NBB0032), who set out the call clearly for those of Chagossian descent to be British overseas territories citizens as well as British citizens.

14 See, for example, Koosh Gadhvi (NBB0010), in relation to East African Asians and those with British Protected Person passports.

15 Aden and Co Solicitors (NBB0031): “In order to correct this historical injustice it is suggested that amendments are made to the Nationality and Borders Bill to allow for the discretionary registration of the children of BOCs otherwise than by descent, where those children were born between 1 January 1983 and 31 December 1987”

16 British Overseas Territories Citizenship Campaign (NBB0014); Similar recommendations were also made in Joint Committee on Human Rights, Fifth Report of Session 2017–19, Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, HC 926 / HL Paper 146, para 80–87

17 British Overseas Territories Citizenship Campaign (NBB0014); and Project for the Registration of Children as British Citizens and Amnesty International (NBB0039)

18 See also the Committee’s previous work on the Windrush Generation: Joint Committee on Human Rights, Sixth Report of Session 2017–19, Windrush generation detention, HC 1034 / HL Paper 160; and the recommendations in Home Office, Windrush Lessons Learned Review (March 2020)

19 British Overseas Territories Citizenship Campaign (NBB0014); and Shelly Omarie Duberry (NBB0017). The Committee raised related concerns where a parent had died before discrimination was addressed, thus preventing a person from acquiring British nationality in Joint Committee on Human Rights, Fifth Report of Session 2017–19, Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, HC 926 / HL Paper 146, para 70–72

20 Shelly Omarie Duberry (NBB0017)




Published: 9 November 2021 Site information    Accessibility statement