The law that precludes a child from obtaining British citizenship from her biological British father in cases where her mother is married to someone else

There now may be a re-evaluation in the law in this area as a result of a government’s decision to drop its appeal against a landmark ruling made in the case of K [2018] EWHC 1834 (Admin).

Brief background to the case

Born in the UK, K’s biological parents were of British and Pakistan nationalities. She was then issued with a British passport shortly after she was born. However, the Passport Office later found that the child’s mother was still married to a Pakistani citizen and consequently have drawn back the child’s British Passport. In reality, the child’s mother had left her abusive husband several years before the child was born.

The law in this area

According to Section 50(9A) of the British Nationality Act 1981, a child’s father is defined as the husband of the woman who gives birth to the child at the time of the child’s birth, regardless of any biological relations. However, if the woman is unmarried, the biological father can be recognised as the child’s father for citizenship purposes.

These definitions are crucial when it comes to determination of a child’s nationality at birth. According to Section 1(1) of the British Nationality Act 1981, children born in the UK are only British citizens at birth if at time of birth, one of their parents is British or has ‘settled status’ in the UK.

Issues in K’s case

Due to the facts that K’s mother was still legally married to her Pakistani husband at the time of birth of K and that K’s mother did not yet have settled status in the UK- K was not technically British at birth.

Judge’s comments

The judge in K considered that the effect of Section 50(9A) of the Act was discriminatory and incompatible with human rights law. Despite this, pursuant to the wording of the Act, the Passport Office’s action had not been unlawful. The judge had then made a “declaration of incompatibility”, which intends to convey a cue to the government to revise the law in this area.

Furthermore, the judge thinks that the discretionary route for citizenship application under Section 3(1) of the 1981 Act is problematic for cases like K. Section 3(1) permits the Home Office to register children as British citizens if it “thinks fit” and provided they are of good character. A supplementing guidance states that caseworkers are to register such children “where there is compelling evidence that someone other than the mother’s husband is the child’s natural father”. The judge is of the opinion that this route was an unsatisfactory solution, as the determination upon a grant of citizenship in such circumstances should not be discretionary; it should be a legal right.

Regardless of this, the Home Office at first decided to appeal the decision and propounded that to change the Section 50(9A) of the Act would have consequences in other areas such as in surrogacy cases. They were granted permission to appeal but has now withdrawn its appeal.

It is unclear what moves the department plan to take next but hopefully this could be sign for change.