Our previous statement focused on issues within the Nationality and Borders Bill, as they relate to access to justice and the rule of the law. In this statement, we address several nationality law aspects of the Bill. As a priority, we are urging peers to amend inconsistencies in nationality law, and support the inclusion of further clauses to address fairness, discrimination, and the best interests of children.
Inconsistencies
We highlight two nationality law inconsistencies that should be rectified by amendments to the Bill, which we believe should enjoy cross-party support.
First, British nationality law is out of kilter with adoption law. In England and Wales, an adoption order may be made where a child has reached the age of 18 but is not yet 19. In Scotland, an adoption order may be made in respect of a person over the age of 18, as long as the application was made when the person was under the age of 18. However, an adoption order only confers British citizenship automatically where the person adopted is under 18 on the day it was made. A small number of young people may be unnecessarily disadvantaged. It is axiomatic that a young person who is adopted should be able to automatically acquire the British nationality of their adopted parent. Our amendment to rectify this has been tabled by Lord Russell of Liverpool, with the support of Baroness Hamwee. Read our Nationality Adoption Amendment briefing.
Second, the Bill rightly seeks to correct injustice faced by people who would be British Overseas Territories citizens (BOTCs) or British citizens, but for historic unfairness in the law, an act or omission of a public authority, or other exceptional circumstances. However, the Bill does nothing for people who would be British Overseas citizens (BOCs) but for similar injustices, including past unfairness such as sex discrimination and discrimination against those born to unmarried parents. This is wrong. As a result of British overseas expansion and later decolonisation, there are pockets of BOCs around the world, for example, in Kenya, Malaysia, South Africa, Sierra Leone and Yemen. Those who would be BOCs, but for such circumstances, should not be excluded from the proposed remedy for British citizens and BOTCs. All these classes of British nationals were Citizens of the UK and Colonies prior to the British Nationality Act 1981, all suffered from these problems, and all deserve the same approach to registration. In a society committed to equal treatment and non-discrimination, this should not be controversial. Our amendment to address this injustice has been tabled by Baroness Hamwee. Read our British Overseas Citizen Amendment briefing.
BOTC for Chagossian Children
ILPA supports the amendment tabled by Baroness Lister (Amendment No.11) which seeks to amend the British Nationality Act 1981 to allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory, who was a citizen of the United Kingdom and Colonies, to register as a British Overseas Territories citizen. They would also be entitled to register as a British citizen at the same time. The application must be submitted within 5 years of the section coming into force, or in the case of a minor born before the date of coming into force, before they reach 23 years of age. No charge or fee may be imposed for registration. It is right that a registration route be introduced to rectify injustices in relation to citizenship entitlement resulting from the exclusion of Chagossians from the British Indian Ocean Territory in the 1960s and 1970s. The children of those excluded were born outside British territory and were British only by descent; the grandchildren of those excluded were not British at all.
Adult Children of BN(O)s
ILPA has prepared a briefing to cover the manner in which the new Clause tabled by Lord Alton for ‘British National (Overseas) visas: eligibility’ can be implemented in the Immigration Rules to ensure that in their first application, the adult child of a British National (Overseas) (‘BN(O)’) can apply on the BN(O) Household Member route separately from their BN(O) parent and is not subject to a requirement to be normally living with their BN(O) parent. Read our BN(O) Eligibility Amendment briefing.
Deprivation of Citizenship
ILPA strongly opposes Clause 9 of the Nationality and Borders Bill, which seeks to allow the Secretary of State to deprive a person of their citizenship in secret i.e. without giving them notice that this has been done. The proposed grounds for dispensing with notice are very wide (including in the interests of national security, the relationship between the United Kingdom and another country, or otherwise in the public interest); open to subjectivity on the basis of what ‘appears’ to the Secretary of State to be the case; and they lack any safeguards.
A person cannot take note, exercise a right of appeal, or instruct representatives to challenge a decision, if they are not informed. We are also concerned that if Clause 9 passes it will disproportionately affect those eligible to hold multiple nationalities and will have a disproportionate impact on persons of certain racial and ethnic backgrounds. Clause 9 offends against the common law, international legal standards, and the United Kingdom’s human rights commitments. It should not stand part of the Bill. Read our briefing on Clause 9.
Children
Clause 10 of the Bill proposes to limit the ability of some stateless children born in the UK to register as British citizens, in a manner contrary to the 1961 UN Convention on the Reduction of Statelessness, by withholding citizenship where the Home Secretary is satisfied it was reasonable to expect a child to take steps to acquire another nationality. ILPA is deeply concerned that, for many children, the new clause will perpetuate their statelessness.
ILPA supports the insertion of a new clause ‘Registration as a British citizen or British overseas territories citizen: fees’ tabled by Baroness Lister to remove fees that exceed administrative costs, for registration of citizenship, and the removal of fees for registering children who are in the care of local authorities or who are unable to afford the fee (Amendment No.13). In Project for the Registration of Children as British Citizens & Anor, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2021] EWCA Civ 193 the Court of Appeal held that the fee of £1,012 for children to apply for registration as British citizens was unlawful as it is contrary to the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to consider the best interests of children.