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

2Changes to correct historical discrimination in British nationality law

Addressing historical discrimination in British nationality law

8.This chapter considers clauses 1–7 which address historical discrimination in British nationality law.

9.Clause 1 addresses pre-existing discrimination in British nationality law that prevents mothers from passing on British overseas territories citizenship to their children. In 1983 this discrimination was corrected in relation to passing on British citizenship and this amendment would make similar changes in relation to passing on British overseas territories citizenship. We are aware that this sort of discrimination continues to affect people.21

10.Clause 2 addresses pre-existing discrimination in British nationality law preventing unmarried fathers from transmitting British overseas territories citizenship to their children. Before 2006, British unmarried fathers could not pass on their citizenship to their children. Since 2006, this discrimination has been corrected in relation to passing on British citizenship and this clause that amends the BNA would make similar changes in relation to passing on British overseas territories citizenship.

11.Clause 3 introduces changes to allow those now able to obtain British overseas territories citizenship to obtain related British citizenship. This is a welcome amendment following on from the above amendments to address pre-existing discrimination in nationality law.

12.The Joint Committee on Human Rights (“JCHR”) made calls for the changes reflected in clauses 1, 2 and 3 to be made in order to remove the discrimination identified in its Reports “Good Character Requirements: Draft British Nationality Act 1981 (Remedial) Order 2019 – Second Report”22 and “Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018” where we said:

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.23

13.Clause 4 introduces 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). We consider this clause to be a sensible amendment aligning the rules for registering British overseas territories citizenship of a child by descent, with those for British citizenship.

14.Clause 5 introduces 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. This amendment addresses anomalies in British nationality law which meant that even though pre-existing discrimination in nationality law had been addressed in theory, the impossibility of registering one’s birth in the past meant that the person was still unable to acquire nationality and so was still feeling the effects of that discrimination. Clause 5 therefore addresses the judgment in the case Advocate General for Scotland v Romein,24 which found the requirement for registration at a consulate in the past to perpetuate this discrimination in British nationality law. The JCHR made calls for these changes to be made in its Report “Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018”, therefore we welcome this clause.25

15.Clause 6 introduces changes to allow a natural father to pass on British citizenship to his child where the mother was married to someone else, by:

a)Removing a cut-off date of being born before 2006 in order to access certain remedial registration routes for children who were the victims of discrimination due to their mother being married to someone other than their father (clause 6(2));

b)Creating a registration route for a child whose father was a member of the British Armed Forces but was not the man that the child’s mother was married to (Clause 6(3) and (4)).

16.There is a complicated history to attempts to remedy the discrimination at issue in clause 6.26 In 2006 the BNA was amended so that a child could have its father’s nationality also where the father was not married to the mother. These 2006 amendments also provided for “remedial registration routes” (section 4F-4I BNA) so that children who were the victims of this discrimination prior to 2006 could register for British citizenship. However, this did not apply where the mother was married to someone else—so children who fell into this category could seek to apply for discretionary nationality but had no entitlement to nationality. This led to the declaration of incompatibility made in the case K (A Child) v Secretary of State for the Home Department [2018]27 in which the Court found that that the definition of “father” in British nationality law (which did not include an entitlement for a child to have the nationality of its natural father if the mother was married to another man, instead relying on discretion) was discriminatory and contrary to Article 14 (principle of non-discrimination) as read with Article 8 (right to family life) ECHR. We therefore welcome that clause 6 addresses this discrimination.

17.Clause 7 introduces 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 legislative unfairness (which is defined non-exhaustively), an act or omission of a public authority, or other exceptional circumstances. The existence of this clause can therefore help to address unforeseen issues with discrimination in British nationality law. It could also help to soften harsh cut-off deadlines for applications, which can otherwise lead to unfair results, especially for children whose parents (or carers if they are in care) may not have supported the child in making an application in respect of an entitlement to British nationality in time. It is therefore a helpful amendment from an anti-discrimination perspective. However, we note concerns raised by some that it may not be wide enough to assist all groups who have suffered from exceptional or historic discrimination;28 concerns at the impact of the potential imposition of fees in respect of applications under clause 7;29 and concerns that a discretionary power is an inappropriate remedy for rectifying identified historical unfairness.30

18.We welcome the changes introduced by clauses 1, 2, 3, 4, 5, 6 and 7 to remove areas of historical discrimination in British nationality law.

Drafting for equal treatment (clause 1)

19.Clause 1 addresses pre-existing discrimination in British nationality law that prevents mothers from passing on British overseas territories citizenship to their children. Clause 1 provides for the parents in such cases to be “treated equally” in terms of their ability to pass on British overseas territories citizenship to their children, which could mean equally well or equally badly. The way that clause 1 is drafted is not the same as for section 4C (3A) and (3B) BNA (which addressed the same discrimination in respect of British citizenship). Section 4C (3A) and (3B) BNA talks about reading the provision that discriminated against a parent as if it provided for acquiring citizenship by descent “in the same terms as” the provision relating to the parent that wasn’t discriminated against. We understand that the change in drafting to the formulation used in clause 1 was intended to simplify the drafting. However, concerns have been raised that the term “had P’s parents been treated equally” is “on its face unclear”.31 It therefore seems prudent for the drafting in clause 1 to make clear that the intention is to treat those who have been subject to historical discrimination due to their mothers being unable to transmit British overseas territories citizenship, in the same way as those who were not subject to such discrimination having had British overseas territories citizenship transmitted by their fathers.

20.We recommend that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of clause 1.

Acting in the best interests of people lacking full capacity (clause 7)

21.Clause 7 introduces 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 or other exceptional circumstances. Clause 7 specifies that it applies to adults “of full age and capacity”.32 Requiring a person to be “of full capacity” in order to benefit from these provisions would seem potentially to discriminate against people who do not have full capacity. However, this needs to be read with section 44A BNA,33 which provides that where full capacity is required, this may be waived if that is in the applicant’s best interests. This is obviously welcome. However, it is not immediately obvious why those lacking full capacity should not always have the requirement for full capacity waived if it is in their best interests.

22.Those lacking full capacity should always have the requirement for full capacity waived if it is in their best interests to do so. We propose an amendment to section 44A BNA so that the Secretary of State “should” waive the requirement for a person to have full capacity if it is in the applicant’s best interests, so as not to unfairly disadvantage those lacking full capacity.

Guidance concerning discretion (clause 7)

23.It is not clear how the Home Secretary might exercise her discretion in clause 7 to grant British citizenship/British overseas territories citizenship to adults where they would have had that citizenship but for historical unfairness or other exceptional circumstances. There are concerns that this lack of clarity as to how she might exercise her discretion could deter some people from making an application (particularly if applications are likely to be costly).34

24.The Home Secretary should make clear how the discretion in clause 7 (new sections 4L and 4H BNA) will be exercised, for example by issuing guidance.

21 See, for example, Shelley Joubert (NBB0013)

22 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, paragraphs 44–47 and especially the recommendation at paragraph 47: “It is clear that the provisions of the British Nationality Act 1981 relating to British Overseas Territories Citizenship contain the same discrimination that is the object of the British Nationality Act 1981 (Remedial) Order 2019 and therefore that these provisions are not compatible with Convention rights. The Home Office and the Foreign and Commonwealth Office … should take action to consult and actively seek to remedy this human rights violation as swiftly as possible...”

23 See 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 73–79 and especially the recommendation at paragraph 79

24 Advocate General for Scotland v Romein [2018] UKSC 6

25 See 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 65–69, and in particular the recommendation at para 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.”

26 See Home Office, European Convention on Human Rights Memorandum, para 41–47

27 K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin)

28 GlobalBritons (NBB0026): “While we welcome the new discretion of the Secretary of State (inserted by clause 7) to register persons of full age as British citizens, we do not feel that it is wide enough to assist residual British nationals except in exceptional individual circumstances.”

29 Project for the Registration of Children as British Citizens and Amnesty International (NBB0039): “there are concerns about the accessibility of this new remedy, including by reason of fees. This is especially so because the clause cannot spell out in advance to what historical legislative unfairness, act or omission or exceptional circumstances it will apply. An applicant is far more likely to be deterred by a large and above-cost (possibly any) fee, for example, if the applicant cannot know in advance that the application will be successful. Yet, for the clause to be effective, it is necessary that persons, who have suffered or do suffer relevant historical legislative unfairness, acts or omissions by public authorities or exceptional circumstances, are encouraged to come forward and apply to be registered. It will equally be important that the basis of successful applications are clearly and publicly identified so that others may then be encouraged to apply to be registered.”

30 Project for the Registration of Children as British Citizens and Amnesty International (NBB0039): “the appropriate remedy for historical legislative unfairness is not a discretion lying with the Secretary of State. Clause 7 is welcome for providing an immediate opportunity of remedy for an applicant who identifies such unfairness. However, where that unfairness has become identified, it is insufficient for its remedy to be left to Clause 7. Historical legislative unfairness must be corrected on the face of the legislation. Anything less will be likely to exclude victims of the unfairness from the remedy because the unfairness will remain on the face of the legislation”.

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

32 Clause 7(2) (new section 4L(1) BNA) and clause 7(3) (new section 4H(1) BNA).

33 Section 44A BNA specifies: “Where a provision of this Act requires an applicant to be of full capacity, the Secretary of State may waive the requirement in respect of a specified applicant if he thinks it in the applicant’s best interests.”

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




Published: 9 November 2021 Site information    Accessibility statement