Amanda Weston QC of Garden Court Chambers, leading Alex Burrett of 1 Pump Court Chambers and instructed by Hina Kargar of Law Lane Solicitors, represented the child ‘K’.
The Secretary of State has withdrawn her appeal against the decision of the Administrative court in R(ota K, a child by her litigation friend) v SSHD [2018] EWHC 1834 (Admin).
The case concerned paternity of a child for the purposes of acquiring British citizenship. K’s passport was withdrawn and she was informed that she was not ‘British’ even though she could prove by DNA that her father is British. Section 50(9A) of the British Nationality Act 1981 says that if a woman is married at the time of a child’s birth, for the purposes of British nationality law, her husband will be deemed to be the father, even if there is irrefutable proof that another man is the biological father.
On K’s application for judicial review, the Administrative Court declared that section 50(9A) of the British Nationality Act 1981 (the BNA) is incompatible with Article 14 ECHR, read with Article 8 ECHR because it discriminates unlawfully against children whose mothers are married to a man other than the child’s father when the child is born. An affected child will not be entitled to British nationality through the biological father but could apply to be registered at the ‘discretion’ of the Home Secretary, at a fee currently of over a thousand pounds (£1012) and, if aged over 10 years subject to a requirement to be of ‘good character’. The judge concluded that although ‘certainty’ under the law was a legitimate aim, the aims did not justify such a fee nor the risks associated with the discretion whether to grant citizenship rather than a right to claim it as the child of a British citizen.
The Secretary of State appealed. Permission was granted on the basis that it was arguable that the judge had failed to consider the wider impact of her conclusions on, for example, children born through surrogacy. However, the appeal was later withdrawn with the effect that the declaration made by the court below remains in place. The question is – what next for children who have been discriminated against in this way?
In Johnson [2016] UKSC 56, the Supreme Court declared that a provision of the BNA which imposed the ‘good character’ requirement on children required to register as British solely as a consequence of their mother’s marital status as the time of the birth was similarly incompatible with Article 14 taken with Article 8 as it was discriminatory. In making the declaration the court observed [38]:
“… where a person has not automatically acquired citizenship at birth, it is reasonable to expect him to apply for it, even if he is entitled to be registered if he does so. This avoids the risk of inconvenient results and provides everyone with clarity and certainty. But it is not reasonable to impose the additional hurdle of a good character test upon persons who would, but for their parents’ marital status, have automatically acquired citizenship at birth, as this produces the discriminatory result that a person will be deprived of citizenship status because of an accident of birth which is no fault of his.”
As a consequence of the court’s declaration, the Home Secretary placed a remedial order before parliament. Any remedial process necessarily takes some time (although in this case much time has been lost as a consequence of the Home Secretary’s withdrawn appeal) and indeed the Secretary of State has a wide discretion whether to take remedial steps by way of a remedial order or draft amended legislation or indeed may elect to do nothing. So, what are affected children to do in the mean time?
Next steps
Children who may be caught by s 50(9A), for instance by the denial of passports or citizenship are advised to seek expert advice. There are good grounds to argue that the Secretary of State cannot lawfully charge the £1012 fee for registration in such cases. The issue of the ‘good character’ requirement is somewhat more complex.
K’s legal team would like to express their thanks to all those who contributed case studies for submission by the Interveners, JCWI and for the helpful written submissions made by JCWI’s legal team of Karon Monaghan QC, Matrix Chambers, leading Victoria Laughton of 1 Pump Court instructed by Nicola Burgess of JCWI.
Amanda Weston QC is a member of the Garden Court Chambers Administrative and Public Law Team.
