British citizenship for children born to unmarried British fathers

Prior to 01 July 2006, children born to a British father and non-British mother were unable to acquire British citizenship from their father if their parents were unmarried at the time of the child's birth (and did not subsequently marry before the child's 18th birthday in order to 'legitimise' the child).  This aspect of the law was very much a relic of the past and inherently discriminatory on the basis that the same child would have been able to acquire British citizenship had its mother been the British citizen rather than its father, or had the child's parents been married.  From 01 July 2006 the British Nationality Act 1981 was amended to correct this, but the amendment did not have retrospective effect.  Provision was however made for children born before 01 July 2006 to apply for registration as British citizens (this can be done on Form UKF).  

On 19 October 2016, the U.K. Supreme Court issued a very welcome ruling  in the case of R (on the application of Johnson) (Appellant) v Secretary of State for the Home Department (Respondent) [2016] UKSC 56.    Unfortunately the Court did not go so far as to say that all children in such a situation should now automatically be considered to be British citizens, however the Court did say that:

'... it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.'  

In the Court's unanimous decision, prepared by Lady Hale, a declaration of incompatibility with the European Convention on Human Rights pursuant to section 4 of the Human Rights Act 1998 was issued in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014, which inserts into section 41A of the British Nationality Act 1981 the requirement to be of good character for all applications from various categories of people who would automatically have become UK citizens had their parents been married to one another at their birth. 

As a consequence, all applicants seeking to register as British citizens on the basis of birth to an unmarried father now no longer have to satisfy the requirement to be of good character.  Whilst this is a minor change, it is a step in the right direction and it will be interesting to see how the Home Office's registration process is adapted to this.

One issue that strikes me as arising out of this judgment is whether it could be said that the requirement to demonstrate good character in applications for registration under section 4C of the British Nationality Act 1981 (i.e. applications for registration on Form UKM) is also unlawful.  Form UKM allows certain persons born before 1983 to British mothers to be registered as British citizens where the person was born before 1 January 1983 and would have become a citizen of the United Kingdom and Colonies by descent if women had been able to pass on citizenship to their children in the same way as men at the time of the person's birth.  In my view this also ought to be an area where the good character test is considered unlawful, though perhaps this will be explored in future cases.