Chapter 3 Updates - September 2021

Nationality, citizenship and the right of abode

Deprivation of citizenship

In October 2020, the High Court refused Shamima Begum’s application for judicial review of the decision to deprive her of British citizenship (Begum v Secretary of State for the Home Department [2020] EWHC 74 (Admin)).

In February 2021, Shamima Begum’s success in the Court of Appeal was reversed in the Supreme Court (Begum, R. (on the application of) v Special Immigration Appeals Commission & Anor [2021] UKSC 7). She was therefore not allowed to return to the UK in order to pursue her appeal against deprivation of British citizenship.

On 18 March 2021, C3, C4 and C7 won their appeals to the SIAC against the SSHD’s deprivation of their British citizenship. They had travelled to Syria and were alleged to be a threat to Britain’s national security. The SIAC debated Bangladeshi nationality law and held that they were not Bangladeshi nationals, and so the deprivation had left them stateless, contrary to section 40(4) of the BNA 1981. The Secretary of State therefore had had no power to make the deprivation.

Registration of child as citizen: fee level

In February 2021, the Court of Appeal confirmed that the fee of £1,012 to register a child as a citizen was unlawful 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.

Windrush: good character requirement

In R (Howard) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin), the Home Secretary’s insistence on rigid application of the good character requirement to members of the Windrush generation seeking to naturalise was declared Wednesbury unreasonable. Regrettably Mr Howard, who was born in Jamaica in 1956 and came to the UK in 1960, died during the proceedings. He had been a CUKC by birth under the BNA 1948, but lost that status when he automatically became a Jamaican citizen on Jamaican independence in 1962. He could have registered as a CUKC because of his UK residence, but no application was made. Under section 1(3) of the Immigration Act 1971, he obtained indefinite leave to remain in the UK, but not the right of abode. The status of CUKC disappeared after the BNA 1981, but Mr Howard did not register as a British citizen, and the right to do so expired at the end of 1987. In 2012, under the “hostile environment”, his employer checked his right to work, which Mr Howard could not prove. He applied for a No Time Limit endorsement in 2014, which would have been proof of indefinite leave to remain, but he was unable to supply a document showing residence in the UK for every year tracking back to 1960. However, following a statement by Home Secretary Amber Rudd in 2018, he applied again, successfully. He was then refused naturalisation as a British citizen on three occasions, relating to convictions resulting in probation orders, fines and a suspended sentence. Naturalisation was eventually granted in October 2019, shortly before Mr Howard’s death. His family continued his discrimination claim, based on Article 14 read with Article 8 of the ECHR, with membership of the Windrush generation being an “other status” for the purpose of Article 14, but the discrimination claim failed. It was held that the good character requirement is a legitimate objective set out in primary legislation with reasonable justification, and can be pursued proportionately.

Naturalisation for EU nationals

From October 2020, the period during which comprehensive sickness insurance or a European health insurance card issued by an EU country had to have been held in order to satisfy good character requirements on an application for a grant of citizenship was increased from five to ten years. This generally affected only EEA and Swiss nationals who had been students or self-sufficient. There is a discretion to waive the requirement, but it is not necessarily exercised. It does not affect a person with a document that certifies permanent residence under EU law, unless they did not have insurance during a period before permanent residence and within ten years of the application for naturalisation.

Statelessness: process

In December 2020, the UNHCR released an audit report on the Home Office’s procedure for deciding statelessness applications. The process for implementing obligations under the Convention relating to the Status of Stateless Persons 1954 dates from 2013. A challenge to evidential requirements in AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234 was won by the Home Office, despite the intervention of the UNHCR on the side of AS, and the UNHCR continued to find that evidential requirements as to proving statelessness were too strict. The UNHCR audit also found that evidence from the detention process was often not used, despite its showing that the country was actively refusing to document the applicant. The Home Office claimed that many applicants did have a passport and were abusing the statelessness system. The UNHCR praised efforts made to investigate foreign citizenship laws, but deprecated the failure to prepare general information to assist with applications. The UNHCR also recommended that statelessness applicants should be interviewed, similarly to asylum applicants, that legal aid should be generally available, and that there should be a right of appeal to the First-tier Tribunal rather than just an administrative review procedure which can be challenged only by judicial review.

Nationality and Borders Bill

In March 2021 a consultation opened on what later became a new Nationality and Borders Bill.

Clause 1 proposes a new section 17A for the 1981 Act, to deal with the position of a person who would have been born as, or able to register as, a British Overseas Territories citizen by descent through their mother had mothers been treated equally to fathers. The new section will enable a person who, if their mother had been treated equally to their father, would have been born as, or could have registered as, a British Overseas Territories citizen by descent, to register as one. The person will have to show that their connection to a BOT would have entitled them to CUKC status under the BNA 1948, that they would have obtained BDTC under the 1981 Act, and that they would have become a BOTC under the BOTA 2002, and that their entitled would have continued throughout. There is no good character requirement. Such a person who registers as a BOTC can then go on to register as a British citizen.

The right of a child to acquire British nationality through an unmarried or “natural” father is inserted by clause 2 as a new section 17B-17G of the 1981 Act. Previous provisions left a gap for certain children. A “natural father” is proved by the requirements prescribed at section 50(9B). This applies retrospectively to anyone, whenever born.

Applications to register children for BOTC status under section 17 of the 1981 Act currently have to be made within 12 months of the child’s birth unless there are “special circumstances”, but that will be extended so that applications can be made at any time whilst the child is a minor.

Good character will be required only for certain applications under the new section 17C.

A new section 4K of the 1981 Act, inserted by clause 3, will allow those who register as a BOTC under the new provisions (or who could have done that, but have obtained BOTC status by another route) to go on to register as a British citizen by descent. Good character will not generally be required.

Children whose mother was married to someone other than their father at the time of their birth and who need to inherit British nationality through their natural father will still have to register to obtain citizenship. A process for this under section 3(1) of the Act was made available in May 2020 after a child in such a position was held to have had her human rights breached. However, the time limit in section 4E of the 1981 Act will be removed by clause 6 to include children born before 1 July 2006 so that such children can register under section 4F or apply for citizenship under section 4D if their natural father was a member of the armed forces. The definition of “father” is also updated to include that in the Human Fertilisation and Embryology Act 2008.

Clause 7 will introduce discretionary registration as a British citizen for adults through a new section 4L in the 1981 Act. The Secretary of State’s discretion will be exercised under that section to right the effects of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances relating to that person. The first provision refers generally to those who could not inherit British nationality because of rules treating inheritance through mothers and fathers differently or where parents were not married or a mother was married to someone who was not the child’s father. The second provision will provide a route particularly for those who grew up in local authority care and had no registration application made for them when they were a child, though it is still discretionary rather than an entitlement, and carries a good character requirement. A new section 17H will make the same provision in relation to discretionary registration as a BOTC. No records or lists were kept of people who obtained indefinite leave to remain upon the commencement of the 1971 Act, however. No documents were provided to the people affected to enable them to prove their status in the UK. As a result, some people who travelled abroad were wrongly refused re-entry to UK and spent many years abroad involuntarily.

A persistent problem in dealing with the issue of statelessness is whether a person who can, or may be able to, apply for a nationality is stateless. Current law provides that a child born in the UK and who has lived here for five years without ever acquiring another nationality can register as a British citizen up to the age of 22. Case law established that a child who could apply for another nationality was still stateless (R (MK (A Child)) [2017] EWHC 1365 (Admin)). Clause 9 will make the current application route available only to those aged 18-22 who were born in the UK and have lived here all their life. Others, born stateless in the UK and aged between 5 and 17, will have to comply with a new paragraph 3A of Schedule 2 of the 1981 Act and will have to satisfy the Secretary of State that they are unable to acquire another nationality. They will be expected to try to obtain the nationality of either parent, but if that acquisition is conditional on the exercise of discretion, it will not be deemed that the child can obtain it.

Right of abode: proof of paternity

Huson v Secretary of State for the Home Department (Entry Clearance Officer) (Rev 1) [2021] EWHC 885 (Admin) is unusual for being a case about the certification of the right of abode. Amiral Huson was the youngest son of the second wife in a polygamous marriage, whose father fought to have his right of abode recognised despite a series of refusals. The right of abode was certified on judicial review.

Children in care: application for British citizenship

In Y (Children In Care: Change of Nationality) [2020] EWCA Civ 1038, the Court of Appeal dealt with a contested application about two Indian children in long-term foster care. The local authority, relying on the wording of section 33 of the Children Act 1989, said it did not need court permission to apply for a grant of British citizenship for the children. The parents resisted, for reasons including that it would deprive them of their Indian nationality and affect their succession rights and ability to own land in India. The Court held that the local authority could apply for a grant of citizenship to the children only with leave of the High Court.

Passports for children: parental consent and welfare of the child

In GA & Ors, R (on the application of) v Secretary of State for the Home Department [2021] EWHC 868 (Admin), a British citizen with three children born abroad returned to Britain to escape her abusive husband, leaving the children with grandparents. A fourth child was born to her in Britain. She applied for British passports for the children, but the Passport Office would only issue one for the fourth child. For the others, it required the written consent of the father. Passports are issued under the Royal prerogative. Decisions can be challenged on public law grounds. The Foreign Office and the Court were concerned that the removal of the children by their mother would constitute child abduction contrary to the Hague Convention. However, the father had admitted causing the mother bodily harm after an arrest, and that he had consented to her taking the children overseas, but the Passport Office would not accept it because it did not specify consent to passports being issued. They considered that the mother did not have parental responsibility, because of the law of the country in which the children were born, and therefore their policy required consent from the father. The Court held that, if that was the case, the results were manifestly contrary to public policy and the Passport Office could not apply that law, so the passports were to be issued.

Hong Kong BNO: visas to move to the UK

The worsening political situation in Hong Kong led to the British government making good on arrangements put in place when it was returned to China after the hundred-year lease to Britain expired in 1997. Two migration routes into Britain for those with British National (Overseas) status were announced in January 2021. BNO citizens under the Hong Kong (British Nationality) Order 1986 were specified as the main applicants. This excluded those born after 1997 and some born during 1997. There were also extensive rules for family members and a fairly basic financial requirement. The scheme is much less onerous than that under which British nationals may bring in a partner, although a TB test and good characters are required. Visas are for 2.5 or 5 years. A person may switch into the BNO route to settlement from another route and carry the accumulated time spent over (para 62.1). Applicants may work in employment or self-employment, or may study, but they may not have recourse to public funds. However, they may use the NHS and state education system.

Citizenship obtained by fraud

Mr Laci came to the UK in 1989, claiming to be a 14-year-old Kosovar, when he was in reality a 16-year-old Albanian. He was refused asylum but granted indefinite leave to remain in 2004 and British citizenship in 2005. In 2009 he was informed that the Secretary of State was considering depriving him of his British citizenship because it had been obtained by fraud, and he replied asking for discretion because, amongst other things, he had been young and afraid, and following the directions of agents when he had first made the false claims. Mr Laci worked as a payroll officer for the London Borough of Islington, married, bought a flat, renewed his British passport and had children. In 2018, the Home Office wrote again saying it was considering depriving him of his citizenship, and after some correspondence, in June 2018 gave him formal notice, against which he appealed. The First Tier Tribunal regarded the delay as giving rise to a valid claim to stay under Article 8 ECHR. The Upper Tribunal found that to be an error of law and dismissed Mr Laci’s appeal against the Home Office. The Court of Appeal in Laci v Secretary of State for the Home Department [2021] EWCA Civ 769, however, regarded the delay as so exceptional as to make a finding that Mr Laci could retain his British citizenship, also recommending that the Home Office should ensure that all tribunals and courts were appraised of the latest case-law, since the Home Office is involved in every case and so is always up to date.

Further reading

Alison Harvey “Windrush: learning about history, learning from history” https://www.freemovement.org.uk/windrush-learning-about-history-learning-from-history/