New Plan for Immigration: the proposed changes to nationality law

The New Plan for Immigration Policy Statement of March 2021 (the New Plan) contains proposals to make significant changes to immigration and nationality law and policy. This article addresses the proposals set out in Chapter 3, which concern changes to British nationality law, in the hope of enabling affected people and organisations to respond constructively to the consultation. The consultation closes on 6 May 2021.

Many of the proposals in this area are welcome, particularly those affecting British Overseas Territories Citizens and the Windrush Generation. Some others are far more troubling. Of particular concern is the proposal to introduce new and more onerous requirements for children born in the UK as stateless to register as British citizens.

1.  British Overseas Territories Citizenship

Mothers who could not pass on their citizenship

Historically, a mother was unable to pass on her Citizenship of the UK and Colonies (CUKC status) by descent if her child was born outside of the UK. The long-term effect of this was that when the British Nationality Act 1981 (the 1981 Act) came into force, children of CUKC fathers who had the right of abode became British Citizens whereas children of CUKC mothers may have been unable to acquire the right of abode and unable to acquire British citizenship.

Section 4C was added into the 1981 Act in 2003 to provide a registration route for people who had missed out on British citizenship because they had been unable to inherit their mother’s nationality.

However, the same legislation had also prevented mothers who held British Overseas Territories Citizenship (BOTC) from passing on their status and section 4C was of no assistance to them as it only provided a route to British citizenship. To date, the gender discrimination remains in this area and has not only prevented children from inheriting BOTC status but has also meant that they were unable to benefit from the commencement of section 3 of the British Overseas Territories Act 2002, when all BOTCs who held that nationality on 21 May 2002 automatically (and in addition their BOTC status) acquired British citizenship.

Fathers who could not pass on their citizenship

Up until 2006, British nationality law specifically discriminated against the children of unmarried parents. The 1981 Act (as enacted) provided at section 50(9) that:

“the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him”

A child whose parents married after their birth could be “legitimated” (under section 47 of the 1981 Act) but the children of unmarried parents were prevented from automatically acquiring the British citizenship of their fathers. This definition applied to fathers who were British citizens as well as to fathers who were BOTCs.

In 2006, section 9 of the Nationality, Immigration and Asylum Act 2002 came into force. This section amended the definition of “father” within the 1981 Act by introducing section 50(9A).

From this point onwards, where a father was not married to the mother of the child (and the mother was not married to somebody else) a child born on or after 1 July 2006 would automatically acquire British Citizenship or BOTC status as if their parents had been married.

At this time, no retrospective provisions were introduced for children born prior to 1 July 2006 whose parents were unmarried. They remained unable to make a claim or application for citizenship in reliance on the citizenship of their fathers.

The Immigration Act 2014 took a further step towards rectifying the issue for those born prior to 1 July 2006 with the introduction of sections 4E to 4J of the 1981 Act, which came into force on 6 April 2015. These provisions permitted the children of unmarried fathers to apply to register as British citizens if, had their fathers been married to their mothers, they would otherwise have qualified for British Citizenship.

This amendment, however, applied strictly to those who would otherwise have qualified for British citizenship. It did not assist those who had missed out on acquiring other kinds of British nationality, such as the children of fathers who were BOTCs.

Those who had been prevented by discrimination since birth from becoming BOTCs were further prejudiced because they would also have been unable to benefit from the commencement of section 3 of the British Overseas Territories Act 2002, when all BOTCs who held that nationality on 21 May 2002 automatically acquired British citizenship.

Proposed change

What is being proposed is a similar route for the children of BOTC mothers as has been provided within section 4C of the 1981 Act for the children of British citizens. It also appears that the intention is to give those who are eligible the retrospective benefit of section 3 of the British Overseas Territories Act 2002 by enabling them to become BOTCs and British citizens.

If the process introduced is similar to the process for applicants under section 4C then the only fee payable should be a ceremony fee but it is also likely that the nationality granted will be BOTC by descent and British Citizenship by descent so as to avoid putting applicants in a better position than if there had been no discrimination.

In terms of the children of unmarried fathers, it again appears that the intention is to introduce the equivalent of sections 4E to 4J of the 1981 Act for BOTCs who will further be eligible to become British citizens as well as BOTCs.

2.  Children of fathers who are not the husband of their mothers

For children born to fathers who were not married to their mothers, the person who is deemed to be a  father for nationality purposes has not automatically followed biology.

Under section 50(9A) of the 1981 Act a child’s father is legally deemed to be the husband of the woman who gives birth to the child and only where she has no husband will section 50(9A)(c) come into play so that the child’s father will be deemed to be the person who can provide evidence of paternity (i.e. by being named as the father on a birth certificate or by producing a DNA test or court order).

The case of K (A Child) v SSHD [2018] EWHC 1834 (Admin) illustrated the problem with this approach. The case concerned a child born in the UK. Her birth was registered and her birth certificate showed her father as SK and her mother as MT. SK was not disputed to be K’s biological father and SK and MT were in a committed relationship and continued to live together. SK was a British Citizen. MT was, however, still legally married to RS who was a Pakistani national.

Applying section 50(9A), no matter how clear it was that SK was K’s father in all biological, emotional and practical terms, and that RS was entirely uninvolved with K, it was RS and not SK who was deemed to be K’s father for nationality purposes. Because K’s mother did not have British citizenship or ILR when K was born, and because SK was not deemed to be her father, K could not claim to be a British citizen by birth in reliance on SK’s nationality under section 1(1) of the 1981 Act.

Following a challenge by K by way of judicial review, it was found that the relevant provisions breached K’s human rights and, as section 50(9A) was incapable of being read compatibly with the ECHR, a declaration of incompatibility was made under s.4(2) of the Human Rights Act 1998.

In May 2020, as a result of the decision in K (A Child), the Secretary of State created a new procedure for such children to register as British citizens (still requiring payment of a significant fee and subject to the good character test). However, the underlying law remained unchanged and this policy was merely an expression of how discretion would be exercised in these cases under section 3(1) of the 1981 Act.

Proposed change

The proposed change looks likely to be an amendment to the underlying legislation in order to create a specific registration route for children whose mothers were married (or in a civil partnership) but not to the child’s biological fathers when the child was born.

It seems unlikely that there will be any change to the definition of “father” within section 50(9A) and these children will continue to be unable to acquire British citizenship automatically at birth.

3.  Discretionary adult registration route

Whilst section 3 of the 1981 Act already provides for discretionary registration for any child born anywhere in the world as British citizens, there is no equivalent provision for adults.

Proposed change

The proposal is to introduce a new discretionary adult registration route. It is hoped that this additional discretion will enable the Secretary of State, in appropriate cases to take a pragmatic approach that prevents a person from having their lives upended when there is no public interest in that course of action.

4.  Naturalisation for Windrush victims

When the Immigration Act 1971 (the 1971 Act) came into force, most of the Windrush generation did not qualify for the right of abode. Instead, in accordance with section 1(2) of the 1971 Act, if they were present and settled in the UK on 1 January 1973, they would have acquired ILR.

No records or lists were kept of people who obtained ILR upon the commencement of the 1971 Act, however, and no documents were provided to the people affected to enable them to prove their status in the UK. As a result of this, when some of these individuals travelled abroad they were wrongly refused re-entry to UK and therefore spent many years abroad involuntarily.

In May 2018, the Windrush Scheme provided a route for people to obtain documentation to evidence their status in the UK and a fast-track (and free) route to British citizenship for those who could meet the requirements. Those who had been stranded abroad were able to apply to come back to the UK as Returning Residents and would be entitled to take up their ILR on return. What it did not provide them with, was any immediate entitlement to British citizenship.

A person can apply to naturalise as a British Citizen, and the Secretary of State may grant a certificate of naturalisation under section 6(1) of the British Nationality Act 1981, if they meet all of the requirements set out in Schedule 1 of the 1981 Act which includes a requirement that the applicant must have been in the UK on the date that falls precisely five years before the date of application (the five-year requirement).

Whilst paragraph 2 of Schedule 1 to the 1981 Act gives the Secretary of State the power to waive many of the requirements, it does not provide any discretion to waive the five-year requirement except for people who are or have been members of the armed forces.

For those people who have been wrongly prevented from re-entering the UK, the Secretary of State is currently unable to allow them to naturalise as British citizens until they have been back in the UK for a period of five years regardless of the reason why they were not present in the UK and the historical injustice they have suffered.

Proposed change

The proposed change is to give the Secretary of State the power to waive the residence requirements, including the five-year requirement, where people have been unable to return to the UK through no fault of their own.

The precise nature of the amendment and the circumstances in which the power will be exercised are not yet known, however it would be very welcome if this power were used to grant British citizenship to those Returning Residents who have returned under Windrush Scheme.

It is hoped that this amendment will not be restrictive and will also assist a wider range of people who have compelling reasons why they cannot meet the residence requirement where it would still be just to grant them naturalisation at an earlier stage.

5.  Registration of stateless children

The New Plan identifies the problem that it seeks to address as follows:

“We will also take the opportunity to close a nationality provision loophole which was intended to help those who are genuinely stateless. Under current nationality law a child can acquire British Citizenship under statelessness provisions where they were born in the UK, have lived here for 5 years and have never had another nationality. Recently we have seen an increasing number of parents choosing not to register their child by their own nationality despite being able to do so. In 2015, 10 statelessness applications were received, but this has now grown to over 1,000 per year.”

This is a particularly troubling element of the proposed changes. The impact of statelessness on a child can be severe and it is rarely going to be the child who is making the decisions about what application to make (or not to make as the case may be). A child will almost always be the victim of the decisions made by its parents or by a local authority looking after a child and the child should on no account be penalised for those decisions.

The existing route for the registration of stateless children born in the UK is set out within paragraph 3 of Schedule 2 to the 1981 Act and it currently only requires that the child has always been stateless, is under the age of 22 and has been in the UK for at least five years when the application is made.

When referring to alleged abuse, the Secretary of State clearly has in mind a particular group of parents whose children are born stateless in the UK but who could choose to try to register their child to obtain their parents’ nationality. This set of circumstances is well illustrated by the case of R (MK (A Child) v SSHD [2017] EWHC 1365 (Admin). The Claimant in MK was a child who had been born in the UK whilst her parents were both nationals of India. A child born outside of India will not acquire Indian citizenship unless the birth is registered at an Indian consulate. If registration is attempted after the child’s first birthday then it requires the Indian government to exercise discretion. The High Court in MK determined that such children are stateless and entitled to be registered as British citizens regardless of their ability to apply for a different nationality.

Even within MK it was identified by the High Court that this route could be open to abuse, however, the justification given for the proposed change in the law is premised solely on an increase in the number of applications being made. Whilst it is clear from the figures that there has been an increase in applications to register stateless children, there is no published evidence to show that there has been any increase in abuse of this route and that any change in the law is therefore necessary or proportionate.

According to the European Network on Statelessness, it is relevant to note that many children already struggle to receive appropriate advice about registering under these provisions.

Proposed change

It is anticipated that the proposal will involve bringing nationality law into line with existing immigration rules for stateless children who are seeking limited leave to remain in the UK. The requirements for limited leave to remain as a stateless person are set out at paragraph 403 of the Immigration Rules and include a requirement for children to provide evidence that they have attempted to register their birth with the relevant authorities but have been unable to do so (and that they have not been able to obtain an alternative nationality).

The immigration rules have clearly been out of step with nationality law for some time as it has been far less onerous for stateless children born in the UK to register as British Citizens than it has been for them to apply for limited leave to remain in the UK.

One difficulty with a proposal to amend nationality law to bring it in line with the immigration rules is that the intended target of the change will not be the only group affected. The existing provisions also assist the stateless British Rohingya community, children of Kuwaiti and Syrian refugee women (and stateless or unknown fathers) and LGBT+ families. The additional requirements are likely to have far wider implications than intended.

It is also entirely unclear how an amendment of the kind proposed will be compliant with the UK’s international obligations as a signatory to the 1954 UN Convention Relating to the Status of Stateless Persons and the 1961 UN Convention on the Reduction of Statelessness.

The 1961 Convention permits a contracting state to require a stateless person born in its territory to make an application before it grants nationality but the requirements that a contracting state can impose on such applicants are specifically limited within the Convention and there is nothing within the Convention that permits a contracting state to impose a requirement that a child must have exhausted all other routes to acquiring an alternative nationality before an applicant can apply for citizenship. It therefore appears that the new proposal will put the UK in breach of international law.

It is expected that such applications will become too onerous. The existing process is already perceived to be complicated and prohibitively expensive and adding further requirements is likely to exacerbate this. The burden of proof is likely to be on the child and the standard is likely to be on the balance of probabilities, despite this already being out of step with authority from the European Court of Human Rights.

It will be very important for there to be flexible evidential requirements in relation to the new element because, if there is an expectation that parents will obtain documentary evidence from the authorities of third countries, there will need to be allowances made for those cases where it may be impossible to obtain documents of a particular type.

Parents must already wait for a period of 5 years before they can register their children as British under the registration provisions and if their immigration status in the UK is in doubt then the child will be exposed to the hostile environment during this time.

Any amendment to these provisions must have regard to the best interests of the child as a primary consideration. The importance of citizenship has been well recognised by the courts and by the Secretary of State and will impact on a child’s identity, integration, sense of belonging and basic access to employment, education, health services and other benefits to which they should be entitled.

In the absence of evidence of significant abuse of the existing system, it is unclear how the proposed amendment can be justified or assessed as proportionate when its intention is to make it more difficult for stateless children (as recognised by the Secretary of State) to register as British citizens.