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16 November 2018

A remedy for historic discrimination in nationality law

3 mins

A pending Remedial Order to amend sections 4C, 4F, 4G, 4H, and 4I of the British Nationality Act 1981 attempts to address the discrimination of the British Nationality Acts of 1948 and 1981.

9 November 2018 marked twenty years since the passing of the Human Rights Act 1998. It seems fitting that on that anniversary, the processes set up by that Act to fortify and protect human rights are having a practical effect. Currently, a Remedial Order to amend the British Nationality Act is making its progress through Parliament to amend the law which has discriminated against children born before 1983 to British mothers, or before 2006 to unmarried parents.

The Human Rights Act allows ministers to amend legislation found to be incompatible with the European Convention of Human Rights using Remedial Orders. Draft Remedial Orders are considered by the Joint Committee of Human Rights, and need to be approved by both Houses of Parliament to change the law.

The British Nationality Act 1948 specified that only the children of British fathers could be British by descent. Section 4C of the British Nationality Act 1981, inserted in 2003 by the Nationality, Immigration and Asylum Act 2002, attempted to address this historic injustice, and from 2003 people born to British mothers before 1983 have been eligible to register to be British by descent.

Children of unmarried parents have historically also been at a disadvantage when it comes to acquiring citizenship by descent. The Immigration Act 2014 added section 4F-4I to the British Nationality Act 1981, opening up the possibility to register a claim to British citizenship by descent to the children born before July 2006 to unmarried parents, one of whom were British. 

The above amendments were a step in the right direction, but the individuals who could benefit were still subject to the requirement to be ‘of good character’ by virtue of section 41A of the British Nationality Act 1981 if they were aged 10 or above. Given that the law was changed in 2003 for children born before 1983 to British mothers, this would have applied to all the potential applicants under that section.   

Good character was not a requirement for citizenship by descent for children of British fathers or married parents. As reported by the Joint Committee of Human Rights:

This  led  to  a  system  whereby  for  many  British  nationality  applications,  those  who  had originally suffered discrimination needed to comply with the additional hurdle of proving good character, while those who had not been discriminated against did not need to prove good character.

The proposed Remedial Order is a welcome amendment and should become law in early 2019.  It is hoped that it will be publicised and widely reported, so that the people who could benefit from it are able to assert their claims.

Bindmans is acting for an individual who is impacted by these changes, and who otherwise would face deportation. The application can be lodged now, and will be held until the Remedial Order comes into force.

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