Tying up historical loose ends: The Nationality and Borders Bill (UK)

Helena Wray (University of Exeter)

The nationality provisions in the Nationality and Borders Bill, currently progressing through the UK Parliament, are, with one exception, broadly progressive as they aim to rectify historic injustices and discrimination. This contrasts with other parts of the Bill, particularly the refugee related clauses, which have been widely condemned for reducing protection including in ways that may breach international law (for example, here). This blog post explains the background to and effects of the nationality clauses.

At the time of writing, the Bill has received preliminary approval from the House of Commons and is undergoing close examination by a parliamentary committee, which may propose amendments to be voted on by the House. It will then pass to the House of Lords for similar scrutiny. It is possible therefore that some of the provisions discussed here will be amended before the Bill becomes law.

The tangled history of British nationality law and its modern day consequences

Several factors mean the historical complexities of British nationality law continue to cause problems. The first is that for many decades, nationality has not equated with an unconditional right to live in the UK. Instead, as the UK’s empire shrank, a confusing array of statuses and rights emerged. Former subjects might obtain full British citizenship, a citizenship that did not allow them to live in the UK, or no citizenship at all despite residing lawfully in the UK (more information here). The second is that, historically, nationality law was riddled with inequalities and discrimination on grounds that included gender, marital status, legitimacy and, unofficially, race. Some of these have been remedied through legislation but gaps remain. A third factor is the abolition of jus soli for those born after 1 January 1983 who must now provide evidence of their parents’ or grandparents’ historical status in order to establish their own. Fourthly, where rights exist in law, they may be difficult to exercise because of cost (applications cost up to £1,330 each), problems in gathering evidence, or stringent good character requirements. Children born in the UK without citizenship can often register from the age of ten but carers may be ignorant of the right or unable to fund the application during minority, or adolescents may fail the good character test through often minor criminality. Finally, establishing status has become critical to living in the UK under the immigration hostile environment. The Windrush scandal and well-publicised deportations demonstrate how, without satisfactory evidence of status, access to services, accommodation and health care can be refused, and individuals detained or sent to countries they do not know or barely remember.

The interaction of these factors has led to media reports and legal challenges by individuals who are ‘as British as the union jack’ but are without formal citizenship. The Windrush scandal and cruel deportation practices are only the most egregious examples of an immigration system designed to make life as painful as possible for those without the necessary documents. The Bill’s new clauses aim to tie up the loose ends on nationality law in ways that will benefit a few of those affected.

What the new clauses will achieve

Four groups are covered by the new clauses. The first are individuals who would have been entitled to British Overseas Territories Citizenship (BOTC) by descent were it not for historic discrimination. BOTC is the citizenship status created by the British Nationality Act 1981 for those whose connection to the UK was via a dependent territory. Unlike British citizenship, also created under the 1981 Act, it did not permit entry to the UK. Modes of acquisition were the same as for British citizenship but were not updated when issues of discrimination arose. Clauses in the Bill provide a right to register to individuals who would have inherited BOTC status were it not for historic discrimination. It applies to those whose mother had BOTC but could not transmit it to her child, and to those with an unmarried BOTC father, who also could not pass on his nationality. Once BOTC has been obtained in this way, a further application for registration as a British citizen may be made, bringing beneficiaries into line with the majority of BOTCs who became British citizens automatically in 2002. There is no good character requirement.

The second group to benefit are those who would have acquired British citizenship through their father, except that their mother was legally married to another person at the time of birth and, under the 1981 Act, the husband of a married woman is treated as the father for citizenship purposes. In such cases, an application to register a child as a British citizen will now be possible and there is no good character requirement. This follows a legal challenge by the daughter of British father and Pakistani mother. The mother was, despite her committed relationship with the father, still married to a Pakistani citizen. The failure to permit the child to have her father’s nationality was incompatible with arts 8 (respect for family life) and 14 (non-discrimination in enjoyment of rights) ECHR.

The third group of beneficiaries are adults who missed out on acquiring BOTC or British citizenship because of other historical legislative unfairness, public maladministration or other exceptional circumstances. This broad route will enable remaining gaps to be remedied as they come to light. The clause is welcome as it should avoid the need for further piecemeal legislation and the inclusion of public maladministration will make it of interest, for example, to children who grew up in care where the authorities did not secure their British citizenship while they were minors. There are, however, some limitations; the unfairness, maladministration or exceptional circumstances must exist ‘in the opinion of the Secretary of State’, good character is relevant, and historical unfairness must relate to gender or marital status, so that discrimination by race and ethnicity are excluded.

The fourth set of beneficiaries are individuals wrongly prevented under the Windrush scandal from returning to the UKafter travelling abroad and have now been given permission to re-enter. However, they cannot currently naturalise or register as British citizens because they do not meet the residence requirement for naturalisation as they were not in the UK on the day that fell five years before the date of application because of their wrongful exclusion. Unlike other residence requirements, this criterion cannot currently be waived. The Bill will permit the Secretary of State to overlook the criterion.

The final group affected do not fare so well. Stateless children under the age of 18 will no longer be able to register as British citizens if they are entitled to the nationality of either parent and it is reasonable that steps be taken to acquire that nationality. Once they have reached 18, there will still be an unconditional right to register by the age of 22, which, the government will presumably argue, keeps the UK compliant with its obligations under art 1 of the 1961 Convention on the Reduction on Statelessness. The new conditions for those under 18 will make life more difficult for an already deeply disadvantaged group. Although they will still have access to other routes for registration, these are less accommodating. The motivation is reported concern that parents deliberately refrain from taking steps to acquire an alternative nationality for their child preferring British citizenship, a reasonable decision as the child was born and is growing up in the UK. In any event, making children suffer the disadvantages of statelessness because of their parents’ alleged failings seems to be inconsistent with making their interests a primary consideration, as required by the Convention on the Rights of the Child (although the ‘reasonableness’ test will no doubt be argued to provide sufficient mitigation).

What are clauses like these doing in a Bill like this?

With the exception of the statelessness provisions, the nationality provisions in the Bill are positive. Reading them engenders an unexpected if faint glow at odds with the miserable chill that comes with perusing the rest. In fact, many of the changes were forced on the government by court decisions such as Romein, K (A Child) and Johnson, and the limitations outlined above suggest a wish to keep concessions minimal, while benefiting from the moral capital that comes from having made them. The government will be keen to distance itself from the effects of the Windrush scandal in particular, given widespread criticism of its handling of the scandal and its aftermath. Having the discretion to register individuals who have suffered injustice or unfairness and waiving the residence requirement in selected cases enables them to head off future legal challenges and adverse publicity. Improving access to BOTC will result in only a handful of new British citizens, particularly as a double registration process, with double the fees, will be required. In pre-emptively avoiding own goals involving a small number of sympathetic cases, the government will be better able to maintain a harsh and divisive stand on the hostile environment, asylum and deportation. By bundling the positive clauses in with more exclusionary proposals, the government can also trap its political opponents. When they oppose the Bill, they can be accused of letting down Windrush and other victims.