Historical injustice for persons born out of wedlock and their right to British Citizenship still lingers on

This article concerns only one of several historical injustices in British nationality law. For decades, it discriminated against people born out of wedlock to British fathers by not allowing those fathers to pass on their nationality to their child.

On 1 January 1983, the British Nationality Act 1981 took effect. From that time, British nationality law no longer recognised jus soli – the right to the nationality of a state merely by having been born within its territory. Instead, the 1981 Act sought to restrict British citizenship to those with a particular tie to the country.

From the 1981 Act’s commencement, people acquire British citizenship at birth if they are born in the UK to a parent who is either British or settled. Someone born outside the UK to a British parent also acquires British citizenship at birth (referred to as acquisition by descent) if that parent had not themselves acquired British citizenship by descent.

Originally, the 1981 Act did not permit a British father to pass on his citizenship to his child in this way if he was not married to the child’s mother. However, if the father and mother subsequently married, section 47 of the Act would take effect treating the child (whether or not she or he was still under 18 years) as having been British from birth.

Charles was born before 1 July 2006 in the UK. His father was settled, but not married to Charles’ mother who was without permission to be in the UK. Had his parents been married, Charles would have been born British. Before becoming a teenager, he committed an offence for which he was given a prison sentence. Years later, the Secretary of State detained him and began deportation proceedings.

Over the years, there have been changes to policy and legislation intended to correct the injustice by which many children – like Charles – were denied British citizenship because they were born out of wedlock. While these changes will have benefited ever more people, even now the injustice remains far from fully resolved. In part, this results from inadequacies in the legal provisions intended to correct that injustice; in part, from practical obstacles to people exercising their rights under those provisions. Charles is one of those for whom the injustice is still unresolved.

The first of these changes was made in policy around the time of wider changes to UK law made by the Family Law Reform Act 1987 concerning birth outside marriage. The Secretary of State adopted a policy to exercise her discretionary power under section 3(1) of the 1981 Act to register a child as British in circumstances where the child would have been born British but for the child’s father and mother not being married. However, this required a paid application (here) to be made by the child before she or he turned 18.

The second change was made by the commencement, in 2006, of section 9 of the Nationality, Immigration and Asylum Act 2002 substituting sections 50(9A) and (9B) of the 1981 Act. This change empowered the Secretary of State to make regulations for determining a person not otherwise treated as a child’s father for the purposes of the 1981 Act to be so treated.

Under these powers, the Secretary of State made the British Nationality (Proof of Paternity) Regulations 2006, SI 2006/1496. The regulations took effect on 1 July 2006. Where the father was named on the child’s birth certificate issued within one year of the child’s birth, his paternity would be recognised for the purposes of the 1981 Act. Alternatively, this would be recognised where the Secretary of State was satisfied he was the child’s father on the basis of DNA, a court order or any evidence the Secretary of State considered relevant.

In September 2015, the British Nationality (Proof of Paternity) (Amendment) Regulations 2015, SI 2015/1615 amended the 2006 regulations. It was also made explicit that the 2006 regulations concerned only natural fathers. The key change, from 10 September 2015, was to treat a birth certificate merely as evidence to which the Secretary of State may have regard in determining the child’s father. It was also made explicit that the 2006 regulations concerned only natural fathers.

The changes made by policy and regulations left many injustices unaddressed. For example, the situation of people born out of wedlock before 1 July 2006 to British fathers was not addressed by the 2006 regulations. While they might benefit from the policy previously introduced, they (their parents or carers) would need to know of the policy and make a paid application to be registered under section 3(1) of the 1981 Act – which in any case would remain at the discretion of the Secretary of State. Once they reached adulthood, this opportunity would be lost.

Moreover, the injustice spanned generations. So many children born to those originally affected by it, were themselves denied the British citizenship that would have been theirs by virtue of being born to a British parent.

The third change sought to address the injustice done to people born out of wedlock before 1 July 2006. It did not, however, resolve circumstances where the original injustice had been passed on to further generations.

This change was made by the commencement on 6 April 2015 of section 65 of the Immigration Act 2014 inserting sections 4E to 4J in the 1981 Act. These sections provide a right to register as a British citizen to people who either would have been born British or would have been entitled to register as British had their British father been married to their mother at the time of their birth. Charles falls within the ambit of one of the sections inserted by the 2014 Act (section 4G).

However, it is left to the individual to correct the injustice done to her or him. She or he must register, and to do this she or he must know of the right to do so. There may also be significant evidential barriers (here) facing someone who wishes to register – including where evidence from the father to confirm status or paternity is not available (such as where the father is dead or estranged); or the Home Office fails or refuses to confirm the British citizenship of the person’s father (or settled status in some cases).

Unlike registration of citizenship in other circumstances, there is no fee for someone to register as British under sections 4E to 4J – save that someone who is an adult at the time of the decision to register them will have to pay the ceremony fee (currently £80).

Another barrier facing some of those who may wish to register is the requirement in section 41A of the 1981 Act that anyone 10 years or older seeking to register as British be of good character (here). For those who were denied citizenship by being born out of wedlock, this constitutes a new injustice since character was and remains an irrelevant consideration in acquisition of citizenship by birth. Charles continues to be denied British citizenship by reason of this good character provision.

The Supreme Court in R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56 declared the legislation applying the good character requirement to registration under sections 4E to 4J to be incompatible with Article 14 of the European Convention on Human Rights. The requirement unjustly discriminates against persons born out of wedlock.

Although Mr Johnson’s circumstances related specifically to registration under section 4G (just like Charles), Lady Hale giving the judgment of the court expressly identified each of the relevant sections providing a right to registration. The court exercised its power under section 4 of the Human Rights Act 1998 to declare paragraph 70 of schedule 9 to the Immigration Act 2014 to be incompatible. That paragraph had amended section 41A of the 1981 Act to include registration under sections 4E to 4J within the good character requirement.

A court’s declaration of incompatibility does not, however, overturn the effect of the offending legislation. The Secretary of State has informed PRCBC of her intention to correct paragraph 70 by the remedial order process provided by schedule 2 to the Human Rights Act 1998. This remains outstanding despite the declaration in Mr Johnson’s case having been made in October 2016.

A remedial order is also outstanding for the purpose of removing the good character requirement from registration under section 4C of the 1981 Act. Section 4C is intended to correct another example of historical injustice in British nationality law by which, before 1983, British mothers had not been allowed to pass on their citizenship to their children born outside the UK.

This article refers to children ‘born out of wedlock’, which is apt in the cases of those born in the UK. While it is also likely apt for the great majority of cases of those born outside the UK, the technical if somewhat offensive term ‘illegitimate’ is more precise since the question of whether someone was or was not born illegitimate was to be determined by the laws of the territory in which the father was domiciled.

The authors would like to thank Pauline Gooderson, PRCBC vice chairperson, for her contribution to this article.
Solange is solicitor and director of the Project for the Registration of Children as British Citizens (PRCBC) and Steve is refugee and migrant rights programme director at Amnesty International UK


About Solange Valdez-Symonds and Steve Valdez-Symonds

Solange is solicitor and director of the Project for the Registration of Children as British Citizens (PRCBC) and Steve is refugee and migrant rights programme director at Amnesty International UK

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