Written evidence from Amnesty International UK and Project for the Registration of Children as British Citizens (NBB0039)

Introduction

1. This joint submission is solely concerned with the nationality provisions in Part 1 of the Bill. We provide responses to two of the questions identified in the Committee’s call for evidence. Before doing so, we also provide:

1. some short background to the provisions in the British Nationality Act 1981 with which the Bill is concerned; and

2. a short analysis of the connection between rights to British nationality in UK domestic law and the UK’s human rights obligations.

Background on the British Nationality Act 1981

2. The passing of the British Nationality Act 1981 was a seminal moment in the history of British nationality law. It created both British citizenship and British overseas territories citizenship (originally called British dependent territories citizenship). It ended, at least into the future, the discrimination against women that had meant that British nationality could not be derived from mothers in circumstances where it could be derived from fathers. It also ended the application of jus soli, so that birth on UK soil would in future no longer in itself be sufficient for a person to acquire a British nationality.

3. A key principle underpinning the Act is that persons ‘connected’ to the UK should be British citizens and persons ‘connected’ to the territories retained by the UK should be British overseas territories citizens. Connection is not defined. Rather it is elaborated by the various rights of acquisition provided for by the Act. These are of four types. Acquisition by birth, adoption or commencement of the Act are each automatic. The fourth type of acquisition by right is by registration. Registration is importantly the means by which people, whose connection to the UK or territories is acknowledged by the Act but who have not automatically acquired citizenship, are enabled by right to secure citizenship in recognition of their connection.

4. With the ending of jus soli, it was necessary for Parliament to reappraise how the UK would continue to fulfil its obligations under the 1961 UN Convention on Reduction of Statelessness, particularly Acticle 1. Previously, the UK met its obligations by conferring British nationality at birth on all persons born on its soil. Paragraph 3 of Schedule 2 to the British Nationality Act 1981 was introduced expressly to continue to fulfil the UK’s obligations once British nationality law no longer applied jus soli.

5. Since the passage of the British Nationality Act 1981, it has been acknowledged that the Act was insufficient to address the historical injustice by which women had been discriminated against in British nationality law. Discrimination in that law against children born out of wedlock has also been acknowledged. Important provisions of this Bill are to make good some of the provisions relating to British citizenship to correct these discriminations; and to ensure that that British overseas territories citizenship is put on an equal footing in correcting these discriminations.

Rights to British nationality and human rights

6. Rights to British nationality concern significant human rights – both directly in consequence of the vital nature to a person’s identity, security and standing of being recognised with citizenship; and indirectly in consequence of the impact of being excluded from or deprived of citizenship, which includes being made liable to various powers of the State to exclude, deprive, detain and expel a person.

7. We briefly explain this further by reference to rights to British citizenship; and particularly by reference to the experience of children with these rights:

1. As found by the High Court in R (PRCBC & Ors) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin), on the basis of “a mass of evidence”, the impact upon a child, who identifies as British, of being prevented from exercising a right to register as a British citizen is to make that child “feel alienated, excluded, isolated, “second-best”, insecure and not fully assimilated into the culture and social fabric of the UK.”[1] This was in relation to an unaffordable fee of £1,012 charged for a child to exercise the right to register as a British citizen. However, the impact results from the fact of being prevented from exercising the right not the particular nature (in that case, the fee) of the barrier to its exercise.

2. This is not compatible with any of the following:

1. The obligation upon the State to make the best interests of the child a primary consideration – Article 3, UN Convention on the Rights of the Child (whether considered in itself or in relation to other articles of the Convention).[2]

2. The child’s right to nationality and identity – Articles 7 and 8, UN Convention on the Rights of the Child. As the findings of the High Court make clear, there is an integral connection between identity and nationality; and Article 8 expressly acknowledges that connection.

3. The child’s right to respect for private life – Article 8, European Convention on Human Rights. This is clearly articulated in the judgment of the High Court in R (Williams) v Secretary of State for the Home Department [2015] EWHC 1268 (Admin), where the court held:

“I consider there is now overwhelming force in the proposition that nationality is a vital element of an individual’s fundamental identity, attracting the protection of article 8. Nationality has an intrinsic importance. I am not talking here about having citizenship of some country rather than being stateless… I am talking of the nationality of a particular country…”[3]

Do these reforms adequately address any remaining areas of unjustified discrimination in British nationality law?

8. No. There are three aspects to this.

1. There are some matters concerning Clauses 1 to 7, which if not adequately addressed, will mean that these are themselves insufficient to address the unjustified discrimination they are intended to remedy.

2. There are various matters in British nationality law concerning unjustified discrimination, which remain outstanding.

3. There is unjustified discrimination in the availability and accessibility of rights under British nationality law, which need to be addressed.

9. As regards Clauses 1 to 7, there are broadly three concerns:

1. The use of the term “had P’s parents been treated equally” in Clause 1 is on its face unclear.

2. The policy and practice of the Secretary of State concerning the administration of her function of confirmation or registration of citizenship too often indicates an unwillingness to recognise the importance of rights to citizenship and her implicit duty to give effect to those rights. Examples include the following:

1. demands for evidence where the Secretary of State is already in possession of sufficient evidence (from her own records, other Government records or from an applicant) to substantiate the person’s right to citizenship; and

2. procedural requirements concerning biometrics and ceremonies with which a person cannot comply at all or without excessive cost or disruption.

3. Clause 7 raises the prospect that discrimination or other injustice, which may be identified in the future, may be remedied by exercise of a new discretionary power of registration of an adult. This is, on its face, very welcome. However, there are two sets of concerns:

1. Firstly, there are concerns about the accessibility of this new remedy, including by reason of fees. This is especially so because the clause cannot spell out in advance to what historical legislative unfairness, act or omission or exceptional circumstances it will apply. An applicant is far more likely to be deterred by a large and above-cost (possibly any) fee, for example, if the applicant cannot know in advance that the application will be successful. Yet, for the clause to be effective, it is necessary that persons, who have suffered or do suffer relevant historical legislative unfairness, acts or omissions by public authorities or exceptional circumstances, are encouraged to come forward and apply to be registered. It will equally be important that the basis of successful applications are clearly and publicly identified so that others may then be encouraged to apply to be registered.

2. Secondly, the appropriate remedy for historical legislative unfairness is not a discretion lying with the Secretary of State. Clause 7 is welcome for providing an immediate opportunity of remedy for an applicant who identifies such unfairness. However, where that unfairness has become identified, it is insufficient for its remedy to be left to Clause 7. Historical legislative unfairness must be corrected on the face of the legislation. Anything less will be likely to exclude victims of the unfairness from the remedy because the unfairness will remain on the face of the legislation.

10. As regards other outstanding unjustified discrimination, the treatment of the Chagossians stands out. We anticipate that others will draw attention to their circumstances and other outstanding injustices.

11. As regards the availability and accessibility of existing rights, we focus on British citizenship. We anticipate that our concerns have wider application; and, in any event, we merely provide a summary of our concerns. PRCBC has addressed the Committee on some of these previously and has elsewhere drawn attention to our concerns more broadly.[4] In summary, the Secretary of State’s policy and practice pays insufficient regard to the nature and importance of statutory rights to British citizenship, particularly in relation to rights to be registered as a British citizen. She maintains barriers by her policy and practice to the exercise of these rights. These include (but are not limited to):

1. lack of awareness of these rights, which is compounded by a failure of the State to take steps to raise awareness or facilitate access to these rights;

2. absence of legal aid for advice and assistance in relation to these rights;

3. application of a good character requirement to children from the age of 10 years;

4. charging of fees far in excess of the cost to her of exercising her function of registration;

5. refusal or failure to confirm people’s citizenship rights from information known or available to her (including where she is the source of that information, such as confirming that she has naturalised or registered a child applicant’s parent);

6. wrongful treatment of citizenship rights of registration as akin to or related to her immigration powers (this has several harmful impacts one of which has been demonstrated in the justifications the Secretary of State has advanced for the fees she charges to register a child as a British citizen).[5]

Is the Bill otherwise compliant with international human rights law?

12. No. We solely address the matter of Clause 9.

13. Clause 9 is intended to disentitle some stateless children born and growing up in the UK from their existing statutory right to British citizenship.[6] The existing statutory right was introduced to fulfil the UK’s international obligations under the 1961 UN Convention on the Reduction of Statelessness.

14. Clause 9 seeks to impose an additional requirement concerning a need to demonstrate inability to acquire the nationality of another country. The hurdles to a child establishing statelessness are already significant. This additional requirement will add to these and effectively, therefore, leave them stateless.

15. In the negotiations that led to the 1961 Convention, a primary consideration was how to best encourage States to take up the Convention and so make its aim of reducing statelessness effective. It was recognised that, among the international community, there were many competing conceptions as to how nationality of a State ought to be acquired.The UK’s representative expressly recognised these difficulties at an early stage of the discussions.[7] It is clear that the Convention has not had the impact that was wanted or is needed. In 2014, the current UN Secretary General, then UN High Commissioner for Refugees, announed a goal of ending what he described as “the scourage of statelessness” by 2024.[8] For the UK to seek to limit the effect of its legislative provisions towards achieving that goal is a profoundly harmful message to other States from whom action is vitally needed in this area.

16. Moreover, it is not in the best interests of children (Article 3, 1989 UN Convention on the Rights of the Child) growing up in this country to be left stateless. The provisions of Article 7 and 8 of the 1989 Convention emphasise the especial importance of nationality to children and their identity.[9] The children are all born here. They have neither responsibility for nor influence over their condition of statelessness. However, the impact of growing up without the citizenship shared by their peers in this country will be alienating and profound.

17. The Bill’s Human Rights Memorandum merely asserts that the Home Office “has carefully considered the best interests of the child throughout the formulation of all the policy given effect in this Bill”;[10] and asserts the clause is “reasonable” and the department “is satisfied that this is compatible with” its international law obligations.[11] Insofar as that constitutes any explanation for Ministers’ conclusions, it is threadbare. It involves neither any visible assessment of what are the best interests of children nor any evaluation of those interests against any countervailing considerations that may or may not be relevant. Not only is this manifestly inadequate justification for a legislative change that may leave children in a profoundly alienating condition of statelessness in the UK – where they were born, are developing an identity and connection alongside their peers – but it is further exposure of the department’s failure to properly consider or apply children’s best interests in its citizenship, or indeed, other functions.

17/09/2021