Written evidence from European Network on Statelessness (NBB0050)

Introduction

This submission by the European Network on Statelessness (ENS) soley concerns Clause 9 (Stateless Minors) of Part 1 (Nationality) of the Nationality & Borders Bill (NBB).

ENS is a civil society alliance with over 170 members in 41 European countries, including 44 organisations and individual associate members based in the UK. We are committed to ending statelessness and ensuring that everyone living in Europe without a nationality can access the rights to which they are entitled under international law. We undertake law and policy development, information and awareness-raising, and training and capacity building on statelessness and nationality rights across Europe, including regularly advising governments on law and policy reform to prevent and reduce statelessness.

We are currently working with our UK members to better understand the causes of childhood statelessness, the children affected, the consequences for them and their families, and what action could be taken to help prevent and reduce childhood statelessness in the UK. Our report “Invisible Kids: Childhood statelessness in the UK” presents the evidence base on childhood statelessness in the UK and we would strongly recommend it to Committee members as a vital source of information to inform discussions around Clause 9 NBB.

We have serious concerns that the changes proposed in Clause 9 NBB will lead to an increase in childhood statelessness in the UK, unnecessarily leaving more children in limbo, exposed to the detrimental impacts of growing up without a nationality.

Existing law

The British Nationality Act 1981 (BNA) contains a vital safeguard (Schedule 2 Paragraph 3) to prevent children born in the UK from growing up without a nationality. This provision is in line with international law and its purpose is to ensure that a child born stateless in the UK, who has lived in the UK for at least five years, and who has always been stateless, may register as a British citizen up to the age of 22.[1]

The change proposed in Clause 9

Clause 9 NBB inserts a new Paragraph 3A into Schedule 2 of the BNA for stateless children aged 5-17, requiring that the Secretary of State be “satisfied” that the child is unable to acquire another nationality before they may be permitted to register as a British citizen. It considers that a child is able to acquire a nationality where (i) that nationality is the same as one of the parents; (ii) the person has been entitled to acquire that nationality since birth; and (iii) in all the circumstances, it is reasonable to expect them (or someone acting on their behalf) to take steps to acquire that nationality.

What is wrong with Clause 9?

It is unethical and puts children’s rights in jeopardy

Clause 9 unnecessarily restricts what is a vital safeguard intended to protect the rights and best interests of a small group of marginalised children born in the UK. For those affected, statelessness can mean problems accessing rights and services, denied opportunities, unfulfilled potential and a sense of never quite belonging. As worded, the new provision would effectively give the Secretary of State wide discretion to prevent a stateless child born in the UK from acquiring British citizenship, perpetuating their statelessness.

The UK Government has provided no evidence to justify restricting children’s rights in this way. In fact, we have evidenced how stateless children and young people born in the UK already face significant barriers to acquiring British citizenship under existing law, with significant detrimental impact on their wellbeing.[2] Children and young people our members and UK partners work with have described how their inability to acquire British citizenship leaves them feeling alienated and excluded. The following are extracts from witness statements provided by young people to the Project for the Registration of Children as British Citizens.[3]

If adopted, Clause 9 will exacerbate already existing challenges, leading to further exclusion, alientation, and marginalisation of children and young people in the UK.

It is not in line with international law

The UK is bound by the 1961 UN Convention on the Reduction of Statelessness (1961 Convention) and the 1989 UN Convention on the Rights of the Child (CRC). The 1961 Convention seeks to prevent childhood statelessness by obliging the State of birth to provide access to its nationality where a child would otherwise be stateless. It is child protection-focused and should be interpreted in light of the CRC.[4] In transposing the 1961 Convention into domestic law, State parties must draft laws that are consistent with the requirement to have children’s ‘best interests’ as a primary consideration and to respect the child’s right to acquire a nationality enshrined in the CRC.[5]

The 1961 Convention requires only that the applicant is stateless and not that they cannot reasonably acquire another nationality. The only circumstances where conferral of British citizenship could be withheld under the 1961 Convention is where the nationality of a parent was available to the child immediately, without any legal or administrative hurdles, and could not be refused by the State concerned.[6] The 1961 Convention therefore removes the temptation for decision-makers to form their own judgements about how easy it would be for a stateless child to acquire the nationality of one of their parents under the law of their (foreign) country. According to international law, it is for each State to determine under its own law who are its nationals, and any question as to whether a person possesses the nationality of a particular State must be determined in accordance with the law of that State.[7] It is therefore not for the Secretary of State to determine whether a child can acquire the nationality of another country, and providing such powers risks leaving many stateless children in limbo and unable to acquire a nationality throughout their entire childhood.

As drafted, Clause 9 undermines these safeguards, allowing impermissible latitude to the Secretary of State to refuse an application (“...in all the circumstances, it is reasonable to expect the person (or someone acting on their behalf) to take the steps....”). There is no provision in the 1961 Convention that allows for such a wide condition to be imposed.

For many children, this change will perpetuate their statelessness as they will have no immediate entitlement to a parent’s nationality, but the Secretary of State’s judgement will shut them out from British citizenship. Where the Secretary of State refuses an application using the impermissible latitude which Clause 9 provides, the UK will be in breach of its international treaty commitments.

What is the solution?

Clause 9 must be omitted from the NBB

The 1961 Convention focuses on protecting the stateless child and preventing childhood statelessness, and the UK Government has provided no evidence of any problem that needs addressing through Clause 9 that would justify departing from the safeguards established by the convention. The UK Parliament must not legislate to enable breaches of that commitment and the principle of the best interests of the child in UK domestic law.

17/09/2021