Child whose mother isn’t married to her father is being unlawfully denied citizenship

The Home Office has dropped its appeal against a judgment that children whose mothers are married to someone other than their fathers are being unlawfully discriminated against by British nationality legislation.

In July 2018, the High Court ruled that part of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case was K (A Child) v Secretary of State for the Home Department.

The provision in question was section 50(9A). It states that:

For the purposes of this Act, a child’s father is –

(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child…

This can prevent a child’s biological father from being recognised as the child’s legal father for the purpose of passing on his British citizenship. In K’s case, the Home Office tore up her British passport, saying that she wasn’t legally a citizen, even though she could prove that her biological father was British. The effect of section 50(9A) was that her mother’s estranged partner, to whom she was still married, was treated as her father — denying K citizenship.

The High Court found that:

the scheme of section 50(9A) of the BNA 1981 as the Defendant currently reads and applies it breaches the Claimant’s right under Article 14 ECHR read with Article 8, to enjoy equal access to the ability to acquire her biological father’s nationality which she would enjoy if her mother had not been married to a man other than her biological father at the time of her birth.

The Home Office initially appealed. But Law Lane Solicitors, representing K, now say that the appeal has been abandoned.

The government is expected to take remedial action to change the law. That was what happened after the Supreme Court made a declaration of incompatibility about a different element of nationality law in Johnson. But this could take some time: Johnson was handed down in October 2016, and the resulting remedial order not made until July 2019.

What can children caught by section 50(9A) do in the meantime? They can apply for registration as British at the Home Office’s discretion, but this costs over £1,000 and involves a good character test.

There’s a decent argument that such a fee would be unlawful: the Home Office has already conceded in Williams that the power to charge a nationality or immigration fee may not be exercised incompatibly with the European Convention on Human Rights (see paragraph 30). Victims of the Windrush scandal did not have to pay for citizenship: the Home Secretary could do the same for children currently being denied citizenship unlawfully.

Challenging the good character test in such cases would be more complicated, as unlike the fee it is required by primary legislation. All the same, families where a child is being denied automatic citizenship because their mother has remarried should seek advice on their options.

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