42.The 1961 UN Convention on the Reduction of Statelessness (“the Statelessness Convention”) provides, at its Article 1:
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….
43.Prior to the entry into force of the British Nationality Act 1981 all children born in the UK were British citizens (a rule often known as ‘jus soli’). The BNA dispensed with this rule which meant that specific provision was needed in the BNA to ensure that children born in the UK who would otherwise be stateless would be granted British citizenship. As the evidence from the Project for the Registration of Children as British Citizens and Amnesty International explains:
Previously, the UK met its obligations by conferring British nationality at birth on all persons born on its soil. Paragraph 3 of Schedule 2 to the British Nationality Act 1981 was introduced expressly to continue to fulfil the UK’s obligations once British nationality law no longer applied jus soli.
44.Clause 9 amends Schedule 2 to the BNA to introduce new requirements for the registration of a stateless child (aged 5–17). In effect it could make it more difficult for stateless children to acquire British nationality, by specifying that stateless children (i.e. children with no nationality) born in the UK are not entitled to British nationality unless the Home Secretary is satisfied that the child is unable to acquire another nationality (new paragraphs 3A(1) and (2) of Schedule 2 BNA). Importantly, this only applies where a child has a right (as opposed to a discretionary access) to another nationality (see new paragraph 3A(3) of Schedule 2 BNA).
45.It goes without saying that this clause has the potential to impact negatively on children, and in particular stateless children. This provision will effectively mean that a child born in the UK will have to prove that it (or more realistically its parents, or carers in the case of a looked after child) could not reasonably have acquired another nationality for that child. This may be particularly difficult for children who do not have significant support or do not have access to the relevant documents (for example, if they are the children of refugees and the documents are lost or the Home Office holds the parents’ passports, it may not be possible for them to apply for nationality).
46.Importantly the entitlement provisions for stateless children remain the same for 18–22 year olds, which is the minimum requirement possible under the UN Statelessness Convention 1961. This means that children in the UK who remain stateless throughout childhood and into early adulthood can seek to apply for British nationality under Schedule 2 BNA (para 3) upon becoming adults. This provides some sort of comfort that once stateless children reach adulthood, they may cease to be stateless, although it is difficult to understand why a child born in the UK should remain stateless until adulthood—or how that would be in the best interests of that child.
47.For context, it is also worth being aware that children born in the UK and who have lived in the UK for 10 years have an entitlement to British nationality under section 1(4) BNA, which would indicate that most stateless children born in the UK can use this route instead of needing to rely on the amended statelessness provisions in Schedule 2 BNA to acquire a nationality.
48.Clause 9 raises a number of concerns from a human rights perspective:
49.First, there are concerns that there is little to no evidence that parents are wilfully causing their children’s statelessness, which seems to be the policy rationale for this provision.
50.Secondly, Article 3(1) UNCRC provides: “In all actions concerning children …the best interests of the child shall be a primary consideration.” It is difficult to see how the new requirements in clause 9, not to grant British citizenship to a stateless child born in the UK unless the child can prove it (or more realistically its parent or carer) could not reasonably have acquired another nationality, comply with the best interests of the child test in Article 3 UNCRC.
51.Clause 9 effectively risks punishing the child for a perceived failure on the part of its carer/parent and therefore risks perpetuating a child’s statelessness, often through no fault of its own but rather due to the actions of parents or carers or due to difficulty in obtaining another nationality. As PRCBC and Amnesty International said in their evidence:
it is not in the best interests of children (Article 3, 1989 UN Convention on the Rights of the Child) growing up in this country to be left stateless. The provisions of Article 7 and 8 of the 1989 Convention emphasise the especial importance of nationality to children and their identity. The children are all born here. They have neither responsibility for nor influence over their condition of statelessness. However, the impact of growing up without the citizenship shared by their peers in this country will be alienating and profound.
52.We doubt that the best interests of child (Article 3 UNCRC) have been adequately borne in mind in developing this clause. Whilst section 55 of the Borders Citizenship and Immigration Act 2009 Act provides that the functions of the Secretary of State in relation to nationality, must be discharged having regard to the need to safeguard and promote the welfare of children in the UK, it is not clear how clause 9 itself reflects the best interests of the child – nor how the Secretary of State can ensure the best interests of the child in giving effect to clause 9.
53.Thirdly, 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.” It is difficult to see how Article 7 UNCRC is given full effect through clause 9 to the extent that it would, in some cases, risk substantially delaying when a child might acquire a nationality.
54.Fourthly, Article 1(1) UN Statelessness Convention 1961 provides “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless”. It does not make any further requirements that the person’s parent did not exhaust all avenues to seek to apply for citizenship of another State. This clause risks moving away from the intention behind the 1961 UN Statelessness Convention to require a State to grant nationality to children born in that State who are otherwise stateless. As the European Network on Statelessness said in their evidence:
“The 1961 Convention requires only that the applicant is stateless and not that they cannot reasonably acquire another nationality. The only circumstances where conferral of British citizenship could be withheld under the 1961 Convention is where the nationality of a parent was available to the child immediately, without any legal or administrative hurdles, and could not be refused by the State concerned. The 1961 Convention therefore removes the temptation for decision-makers to form their own judgments about how easy it would be for a stateless child to acquire the nationality of one of their parents under the law of their (foreign) country. According to international law, it is for each State to determine under its own law who are its nationals, and any question as to whether a person possesses the nationality of a particular State must be determined in accordance with the law of that State. It is therefore not for the Secretary of State to determine where a child can acquire the nationality of another country, and providing such powers risks leaving many stateless children in limbo and unable to acquire a nationality throughout their entire childhood.”
55.Finally, there is uncertainty as to what will meet the threshold of “in all the circumstances, it is reasonable to expect the person (or someone acting on their behalf) to take the steps which would enable the person to acquire the nationality in question”.
57.It is difficult to see how clause 9 complies with the UK’s obligations under both the 1961 UN Stateless Convention and the UN Convention on the Rights of the Child. Clause 9 should be amended—preferably to delete the clause altogether.
58.At a minimum two amendments should be made to clause 9(4). Firstly, to ensure that the best interests of the child are more central to decision-making, by adding into new paragraph 3A, sub-paragraph (2) of Schedule 2 BNA “(d) in all the circumstances, it would be in the best interests of the child for it to acquire the nationality in question”. Secondly, to ensure that, in line with the 1961 UN Statelessness Convention, British citizenship is only withheld where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles, by inserting into new paragraph 3A, sub-paragraph (2)(b) of Schedule 2 BNA, after “birth”, “without any legal or administrative obstacles”.
44 Project for the Registration of Children as British Citizens and Amnesty International ()
45 For the purposes of new paragraph 3A(2) of Schedule 2 BNA, that other nationality is the nationality of one of their parents, that the child has been entitled to acquire since birth, and in all the circumstances, it is reasonable to expect the child to take steps which would enable the child to acquire that other nationality
46 Article 1(2)(a) Statelessness Convention 1961. See also Home Office, , para 79–81 which briefly explain that the HO considers this provision to be compatible with the Statelessness Conventions
47 See Home Office, , para 137. However, no data on this is provided in the Explanatory Notes.
48 Project for the Registration of Children as British Citizens and Amnesty International ()
49 European Network on Statelessness ()
50 See clause 9, which relates to section 3A(2)(c) BNA