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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

Discrimination in British nationality law

06 June 2018 Iain Halliday Blog

As regular readers of this blog will be aware, British nationality law has, historically, discriminated against women and those born out of wedlock. See our previous post here for a discussion of the various vagaries of British nationality law in the context of the Shane Ridge case which was reported in the media towards the end of last summer.

Those who have been disadvantaged by this historic discrimination can apply for registration as a British citizen. However, despite attempts to remedy discrimination, some anomalies have remained. One such anomaly is the good character requirement.

The Home Office currently impose a good character requirement on anyone making a registration application who is over the age of 10. The courts have held that this additional hurdle is unlawful as, had there not been any discrimination, the right to citizenship would have been automatic and there would have been no need to meet any good character requirement. The Government recently introduced a remedial order seeking to amend the British Nationality Act 1981 to address the court’s concerns regarding the good character requirement. Last week the Joint Committee on Human Rights issued a detailed report examining this remedial order.

The report endorses the use of the remedial order process (§38) however criticises the continued imposition of a good character requirement on some children over the age of 10 applying for registration on the basis that their parents were not married at the time of their birth. The report notes that:

“Given these individuals have been discriminated against it should not be for them to prove what they would have done had they not been discriminated against - rather the Home Office should seek, as best as possible, to remove that discrimination and the impacts of that discrimination... We do not consider it justified or proportionate to require children who have been discriminated against, additionally to have to prove good character when they are now finally entitled to apply following the removal of that discrimination” (§52-53)

The report also recommends that the good character requirement is removed for stateless children (§60). The Committee also raises concern over the possibility that a person who has previously been refused and needs to re-apply once the good character requirement has been removed may need to pay a second application fee and recommends that the Home Office should take steps to ensure this does not happen (§61-64).  

The Supreme Court’s decision in the McGill & Co case Advocate General for Scotland v Romein also gets a mention in the report. For commentary on the decision see our previous post here published on the day the judgement was handed down. The report recommends that British nationality legislation is amended to take into account the decision in Romein (at the moment only the Home Office’s guidance and forms have changed – see our previous post regarding the change to the guidance here)(§69) and notes that it is:

“unclear whether there are other situations where a similar reading might be required in order to achieve a just and non-discriminatory result. We are concerned that the Home Secretary is not actively seeking to remove all discriminatory provisions from the Statute book” (§66)

An example of another situation where a similar reading might be required would be where a person was unable to register their birth with the British Consulate because their parents were not married at the time of their birth. This issue is yet to be addressed by either the Home Office or the courts. It is refreshing to see a Parliamentary Committee exploring the wider implications of the judgement in Romein.

Finally, the report highlights other provisions of the British Nationality Act 1981 which are potentially discriminatory (§81), and criticises the “unacceptable” discrimination which persists for those with different types of British nationality. The Committee recommends that historic discrimination is remedied for all types of nationality (§79) and that that the Home Office undertake a consultation with a view to bringing forward legislation to remedy and remove all existing discrimination (§82). There is also a recommendation to make British nationality law more accessible and easier to navigate (a recurring theme in immigration and nationality law – see Colin Yeo’s post on the Free Movement blog here for a discussion on the complexity of the immigration rules).

The report provides a detailed and comprehensive review of the various discriminatory effects of British nationality law. It often surprises clients to learn that their status depends on the gender and marital status of their parents. It is hoped that the Committee’s recommendations are accepted and that this type of discrimination will be a thing of the past.

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