End to historical discrimination in nationality law welcome but Nationality bill may fail to protect rights of stateless children
9 November 2021
As part of ongoing legislative scrutiny of the Nationality and Borders Bill, the Joint Committee on Human Rights has published a report assessing the human rights implications of Part 1 of the bill which concerns nationality.
This section of the draft legislation includes provisions affecting the rights of children born in the UK who are stateless, addresses historic discrimination over who can obtain citizenship, and provides the Home Secretary with the discretion to grant citizenship to address unfairness in certain cases. These provisions also impact on the approach taken to people lacking full capacity, application fees and the good character requirement.
The Joint Committee welcomes those aspects of the Bill that seek to end discrimination in nationality law in existing legislation. British nationality law prevented mothers and unmarried fathers from transferring British overseas territory citizenship to their children and this would end. The Joint Committee finds that this would be in accordance with the right to family life under section 8 of the European Convention on Human Rights (ECHR), as read with the prohibition on discrimination in Article 14 ECHR, which are incorporated into domestic law through the Human Rights Act.
However, other provisions of the Bill may not comply with the UK’s human rights obligations. In respect of children born in the UK who are stateless, the Joint Committee raises significant concerns that the Bill fails to give adequate effect to the rights of the child and as well as duties to act to prevent statelessness for those children born in the UK who are stateless, in contravention of UN conventions. It calls for the legislation to be amended so that the rights of the child are central to decision making and so that citizenship is only withheld in cases where the nationality of the parent is available to the child immediately, without any legal or administrative hurdles.
The Joint Committee finds that it is unclear whether fees will be charged for applications for British nationality under the new clauses addressing discrimination. It calls on the Government to ensure that fees do not act as a barrier to people accessing their right to British nationality. It raises concerns at the imposition of fees (and in particular excessive fees) for applications from children, or applications addressing previous discrimination.
Additional concerns are raised about the use of ‘good character’ as a basis for decision making in nationality cases, especially when applied to children. It calls for greater clarity on how such discretion will be exercised in practice. The Joint Committee further adds that requiring a person who has suffered unlawful discrimination to prove good character in order to remedy that prior unlawful discrimination, would itself be unlawful discrimination contrary to the European Convention on Human Rights. It calls on the Government to remove such provisions from the British nationality law and the Bill.
Publishing the report, the Chair of the Joint Committee on Human Rights, Rt Hon Harriet Harman MP said:
“The nationality clauses of this legislation take a welcome step in addressing discrimination in British nationality law, including by removing needless barriers that have prevented people obtaining British overseas territories citizenship through a parent simply because they were unmarried or female.
“But the Government must do more to ensure rights are fully protected in British nationality law, in particular recognising its obligations to stateless children which the Bill does not fully do as it stands. The ‘good character’ test should not be applied to children or where it would lead to additional discrimination and the Government must also ensure that fees do not recreate barriers that it had otherwise have removed by addressing historic discrimination.
“Our scrutiny of the remaining clauses of this Bill will continue over the coming weeks and months.”