Remaining Gender Discrimination in British Citizenship Law

Prior to 1983 British nationality law provided for the acquisition of British nationality by descent from a father but not from a mother and for acquisition of British nationality generally in the paternal line rather than the maternal line. For those born from 1983 onwards this prejudicial practice has been eliminated. Further, for persons born prior to 1983 the British Nationality Act 1981 (the 1981 Act) now provides a process for a person born to a female Citizen of the United Kingdom and Colonies (CUKC) or British subject, on application, to register as a British citizen by entitlement, where that person would have acquired British nationality by descent or automatic reclassification prior to 1983 but for gender discrimination. Sadly a problem remains.

Summary of the problem

The problem today is that there are people born outside the UK prior to 1983 who would have been British citizens today if they had had a paternal grandfather born in the UK, or who would have been able to become British citizens by registration today if they had had a maternal grandfather born in the UK, instead of a paternal grandmother or maternal grandmother so born. This is gender discrimination by reference to the gender of the grandparent.

The problem in outline is as follows:

  • prior to 1983, the transmission of British nationality by descent to those born outside the UK and Colonies (under s 5 of the British Nationality Act 1948) (prior to 1949 outside His Majesty’s dominions, see British subject status by descent under the British Nationality and Status of Aliens Act 1914, s 1) was via the paternal line but not the maternal line (additionally, even in the paternal line, a child had to be born legitimate – or be subsequently legitimated – for transmission of nationality to occur);
  • prior to 1983 transmission of nationality by descent in the paternal line occurred automatically to the first generation born in foreign countries, and, in certain cases automatically and in certain cases conditionally, to the second generation so born and to further generations so born;
  • thus, for example, transmission of nationality by descent was possible and indeed occurred, where a person born outside the UK and Colonies (or, pre-1949, His Majesty’s dominions) whose father was also so born, had a paternal grandfather born in the UK (transmission to the second generation in the paternal line);
  • as transmission of nationality to those born outside the UK and Colonies (or, pre-1949, His Majesty’s dominions) was not possible in the maternal line, transmission was not possible via a mother born in the UK (i.e. to the first generation) or via a mother born outside the UK and Colonies to a father born in the UK (i.e. to the second generation); however, subsequently, provision to eliminate the continuing effect of such discrimination has been made by providing a route to registration as a British citizen under s 4C of the 1981 Act;
  • as transmission of nationality to those born outside the UK and Colonies was not possible in the maternal line, transmission was not possible via a paternal grandmother born in the UK, or via a maternal grandmother so born; the effect such gender discrimination has yet to be eliminated;
  • further, in the era of decolonisation after the Second World War, the question for nationality purposes of who ‘belonged’ to the UK, as opposed to a colony or former colony, was answered in UK immigration law through the statutory concept of the right of abode. British nationals/CUKCs who had a relevant link to the UK via a parent (first generation) or a grandparent (second generation), regardless of whether that parent of grandparent was male or female), were recognised as having a right of abode in the UK;
  • On commencement of the1981 Act on 1 January 1983, those CUKCs with a right of abode, including those who had such a right as a result of a relevant link to the UK via a grandparent (i.e. two generations back) were re-classified as British citizens. Those persons born overseas who may have such a relevant link via a grandparent (i.e. two generations back) but who lacked CUKC status prior to 1983, because such status only transmitted in the paternal line, were not made British citizens. Thus the pre-1983 discrimination in the transmission of nationality was reflected in and preserved by the allocation of British citizenship on commencement of the 1981 Act;
  • For persons born outside the UK and Falkland Islands from 1983 (and born outside the qualifying territories – i.e. the British overseas territories other than the Sovereign Base Areas in Cyprus – from 21 May 2002), transmission of British citizenship may occur through both the paternal and the maternal line, see s 2(1) of the 1981 Act.

 

There is no justification for any continuing prejudice arising as a result of the gender discrimination in the pre-1983 law, not least when steps have been taken to rectify the position so that there is access to registration as a British citizen under s 4C of the 1981 Act to put (i) those born prior to 1983 in a foreign country to a mother born in the UK are on the same footing as those so born to a father born in the UK, and to put (ii) those born prior to 1983 in a foreign country to a mother born in a foreign country whose own father was born in the UK are on the same footing as those so born to a father born in a foreign country whose own father was born in the UK.

There is continuing prejudice arising from the effect of gender discrimination in the pre-1983 law that registration as a British citizen as provided in s 4C of the British Nationality Act 1981 does not eliminate. This is an unresolved matter. The effect of gender discrimination in the pre-1983 law has been reduced but not eliminated. This is inconsistent with universal human rights standards found in the 1979 UN Convention on the Elimination of Discrimination against Women.

Winners and losers in the current arrangements

Who wins and who loses at present?

  • Given that British nationality law prior to 1983 transmitted via the paternal line to the second generation and beyond to those born in foreign countries;
  • Given that there was gender discrimination in the pre-1983 law as regards transmission of British nationality;
  • Given the legislative policy marker set by s 2 of the Immigration Act 1971 (prior to 1983) whereby CUKCs born overseas with a relevant link to the UK via a grandparent had the right of abode in the UK and may be said to belong to the UK, and given that such persons were re-classified as British citizens in 1983 on commencement of the British Nationality Act 1981; and
  • Given the reduction of the prejudicial effect of pre-1983 gender discrimination in British nationality law, effected by the introduction and modification of s 4C of the 1981 Act, provided a route to registration as a British citizen for those born to mothers who were British nationals;

the winners are:

  • persons born prior to 1983 in a foreign country to fathers born in the UK (1st generation paternal line), such persons automatically acquired British nationality at birth and are British citizens today;
  • persons born prior to 1983 in a foreign country, to a father born in a foreign country, where the paternal grandfather was born in the UK (2nd generation paternal line), such persons acquired British nationality at birth (e.g. where born in a country where His Majesty exercised jurisdiction over British subjects) or could and did acquire British nationality (by registration of the birth at a British consulate); such persons are British citizen today;
  • persons born prior to 1983 in a foreign country, to mothers born in the UK (1st generation maternal line), such persons have access today to registration as a British citizen under s 4C of the 1981 Act; and
  • persons born prior to 1983 in a foreign country, to mothers also born in a foreign country but where the maternal grandfather was born in the UK so the mother has British nationality (2nd generation born outside the UK, via a mother – so maternal line – but with a maternal grandfather), such persons have access today to registration as a British citizen under s 4C of the 1981 Act;

the losers are:

  • persons born prior to 1983 in a foreign country, where the paternal grandmother was born in the UK but the father was born in a foreign country and did not acquire British nationality, (2nd generation born outside the UK, via a father – so paternal line – but with a paternal grandmother), such persons have no access to British citizenship; and
  • persons born prior to 1983 in a foreign country, where the maternal grandmother was born in the UK but the mother was born in a foreign country and did not acquire British nationality (2nd generation born outside the UK – so maternal line – but with a maternal grandmother), such persons have no access to British citizenship.
    Conclusion

The solution is to amend s 4C of the British Nationality Act 1981 to eliminate the remaining prejudice occasioned by gender discrimination in the pre-1983 law.

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