Written evidence from Sable International (NBB0022)
Sable International Citizenship and Immigration is an organisation registered with the Office of the Immigration Services Commissioner in the UK to represent those requiring assistance with UK visas and citizenship issues. The firm’s clients range from the NHS in the UK to a private individual requiring help.
Our evidence relates to whether the reforms in the Bill adequately address any remaining areas of unjustified discrimination in British nationality law.
This evidence specifically surrounds the operation of the proposed section 4L of the British Nationality Act 1981.
It is our understanding that the purpose of incorporating section 4L into the British Nationality Act 1981 is to remove various historical anomalies and areas of unfairness in British nationality law in respect of, amongst other things, those who cannot acquire British Nationality due to gender discrimination in the earlier and present law.
We are concerned that the existing wording of Section 4L may not achieve this goal entirely.
Subsection (1) of Section 4L reads as follows;
(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British citizen
(a) historical legislative unfairness,
(b) an act or omission of a public authority, or
(c) exceptional circumstances relating to P
With this subsection we see that the clause is designed to relate not only to those who would have had a claim to citizenship by operation of law but also to those who would have been able to have to become a British Citizen. The latter clause appears to allow those who could have applied for citizenship in the past (i.e. those who would have had to have made a formal application for citizenship rather than simply becoming a citizen automatically) to qualify.
Subsection (2) of section 4L reads as follows;
(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies or a British citizen, if an Act of Parliament or subordinate legislation (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person’s nationality status—
(a) treated males and females equally…..
Our concern lies with the word ‘includes’ in the first sentence of subsection (2) and it’s interpretation. Is the word ‘includes’ to be interpretated as to mean that the following text is to enlarge upon the meaning of subsection (1) or is it equivalent to ‘means and includes’ thereby creating an exhaustive explanation of the meaning of subsection (1)? If the latter applies, we would submit that Section 4L will not have the effect of removing all the various historical anomalies and areas of unfairness in British nationality law but only some.
For example, Section 10 of the British Nationality Act 1981 presently allows a person who renounced British Nationality in the past to resume British Citizenship now where the subject has various qualifying connections to the UK. One such qualifying connection is where the subject’s father (but not his mother) was born in the UK. It is unlikely that any sensible person would argue that the subject here is in any less way connected to the UK if his mother was born in the UK as opposed to his father being born in the UK. If subsection (2) is interpreted as to give an exhaustive list of circumstances where ‘P’ could qualify now, an application made by the subject of this example would fail because he would not have become, or ceased to be a British Subject or Citizen of the UK and Colonies due to gender discrimination in the law. Instead he was (and is) prevented from becoming a British Citizen through a formal application to the Home Office.
It is therefore imperative for the Home Office to clarify how the word ‘includes’ in subsection (2) is to be interpreted or to perhaps consider the addition of the words ‘or would have able to become’ after ‘would have become’ in subsection (2) which would equally remedy the potential mischief in the Bill.
Again, this point relies upon the word ‘includes’ being interpreted to mean that subsection (2) gives an exhaustive list to those who qualify. The subsection in it’s existing form allows a person to qualify where ‘an Act of Parliament or subordinate legislation’ treated males and females equally.
In order to achieve the perceived aim of removing various historical anomalies and areas of unfairness in British nationality law it is sometimes necessary to consider more than one Act of Parliament.
For example, a person born in the former Protectorate of Northern Rhodesia whose mother was born in the UK presently cannot acquire British Citizenship by descent or through the existing channel of section 4c of the British Nationality Act 1981. This is due primarily to the British Nationality Act 1948 not permitting citizenship to be passed in the female line by descent. However, even if the British Nationality Act 1948 had allowed for British Nationality to be passed by descent, the subject here would have lost British Nationality with operation of the Zambia Independence Act because only those whose fathers (but not their mothers) were born in the UK were exempt from the automatic loss of British Nationality at the time.
It is therefore again imperative for the Home Office to clarify how the word ‘includes’ in subsection (2) is to be interpreted or to perhaps consider substituting the words ‘Act of Parliament or subordinate legislation’ with ‘An Act or Acts of Parliament and/or subordinate legislation’ in subsection (2) which would equally remedy this potential further mischief in the Bill.