Introduction

Notwithstanding the effort that has been made to eliminate the prejudice and discrimination in British nationality law against persons born out of wedlock, many persons so treated remain shut out from access to British nationality. In the parts of the law where the prejudice and discrimination remain, the persons born out of wedlock are treated as illegitimate unless subsequently legitimated by the subsequent marriage of their parents to each other. Where the prejudice and discrimination remain, such persons lack a remedy by way of provision for a route, on application, to registration in the relevant class of British nationality.

Where provision has been made to overcome the prejudice and discrimination in the law against persons born out of wedlock, it is to the benefit of persons who would be British citizens today but for such treatment. Although the discrimination in the law against those who would be British citizens today but for being deemed illegitimate has not been wholly eliminated, instances of continuing prejudice are few.

Of greater import is the want of provision for persons who would be British overseas territories citizens (BOTCs), British Overseas citizens (BOCs), British Nationals (Overseas) (BN(O)s), British subjects (BSs), or British protected persons (BPPs) today but for the discrimination and prejudice in British nationality law against those persons deemed to be illegitimate. No legislative amendments to cater for them.

The first step to eliminating prejudice

Prior to July 2006, those born out of wedlock were ill-used in British nationality law: The relationship of father and child was taken to exist only between a man and any legitimate child born to him, see section 50(9) of the British Nationality Act 1981 (‘the 1981 Act’) as enacted. The effect was to preclude the automatic acquisition of any class of British nationality and, in certain cases, registration on application in any of the classes of British nationality. No similar rule regulated whether the relationship between mother and child existed.

Considering the relationship between father and child, as regards a child born in a British overseas territory (such as the Cayman Islands, the Falkland Islands, or the British Virgin Islands), where the child’s father was able to transmit nationality by virtue of being settled in that territory or by virtue of being a British overseas territories citizen (BOTC), the child so born did not acquire British overseas territories citizenship unless born legitimate (sections 15(1) and 50(9) of the 1981 Act) or unless subsequently legitimated by the marriage of her parents to each other (section 47 of the 1981 Act).

For persons born on or after 1 July 2006, where reliance is placed on the relationship between father and child, the discriminatory and prejudicial treatment of those born illegitimate is removed, subject to satisfactory proof of paternity, see section 9 of the Nationality, Immigration and Asylum Act 2002, amending section 50 of the 1981 Act, and see also the British Nationality (Proof of Paternity) Regulations 2006. The effect of the reform as regards persons born illegitimate on or after 1 July 2006 is to preclude discrimination and prejudice against them in the acquisition of British nationality law, with the benefit of the amendment applying to the acquisition of any of the six classes of British nationality (British citizenship, British overseas territories citizenship, British Overseas citizenship, British National (Overseas) status, British Subject status, and British Protected Person status) in issue in a given case.

The second step to eliminating prejudice

However, the Nationality, Immigration and Asylum Act 2002 made no provision to rectify the prejudice suffered by those born out of wedlock prior to July 2006. Prejudice and discrimination against those born illegitimate is to be found not only in the un-amended 1981 Act in force prior to 1 July 2006, but also in legislation regulating the acquisition of British nationality in earlier periods, such as the British Nationality Act 1948 and the British Nationality and Status of Aliens Act 1914. Those born out of wedlock prior to 1 July 2006 needed to await further legislative innovation.

Some progress was made in 2014. The ability to apply for registration as a British citizen, so as to rectify the prejudice suffered by being born out of wedlock, was introduced into the 1981 Act by the Immigration Act 2014: see sections 4E to 4J of the 1981 Act, in force from 6 April 2015. These provisions do not cater for all those prejudiced by the discrimination occasioned by earlier British nationality legislation as regards the acquisition of British citizenship Nor do they provide a route to registration for persons shut out by reason of illegitimacy from the acquisition of British overseas territories citizenship, British Overseas citizenship, British National (Overseas) status, British Subject status or British protected person status. To that extent there is unfinished business in making good the harm caused by the prejudice occasioned by legislative discrimination against those born out of wedlock.

Remaining prejudice against persons deemed to be ‘illegitimate’

The United Kingdom Parliament is the sole authority with power to legislate in respect of British nationality. It has left British nationality law un-changed as regards persons who would be British overseas territories citizens (BOTCs), British Overseas citizens (BOCs), British Nationals (Overseas) (BN(O)s), British Subjects (BSs), or British protected persons (BPPs) today but for the discrimination and prejudice in British nationality law against those persons deemed to be illegitimate. Parliament’s inactivity has ensured continuing legislative discrimination and prejudice.

The problem illustrated

As regards persons born before 1 July 2006, numerous problems remain. By way of illustration, what follows are some examples (many others could be given) of continuing problems in each class of British nationality other than British citizenship.

A person born out of wedlock in 1970 in the United States, to a father who was a Citizen of the United Kingdom and Colonies (‘CUKC’) (the principal form of British nationality from 1 January 1949 to 31 December 1982) by virtue of birth in the colony of the Turks and Caicos Islands and a mother who was a U.S. citizen, would be a British overseas territories citizen (BOTC) (and indeed a British citizen too, see below) today but for the prejudice in British nationality law against persons born illegitimate.

A person born out of wedlock in 1982 in Kenya, to a father who was a CUKC (by virtue of birth in Kenya when it was a British colony) and a mother who was a Kenyan citizen, would be a British Overseas citizen (BOC) today but for the prejudice in British nationality law against persons born illegitimate.

A person born of out of wedlock in 1990 in China, to a Hong Kong-born father who was a British Dependent Territories citizen and a mother who was a Chinese national, would have lost the opportunity to register as a British National (Overseas) (BN(O)) (NB registration in this class is not possible from 1 July 1997), on account of the prejudice in British nationality law against persons born illegitimate.

A person born out of wedlock in 1998 in Hong Kong, born stateless, to a father who was a British National (Overseas) (BN(O)) and a mother whose country of nationality does not confer its nationality by descent in the maternal line, would be a British Overseas citizen (BOC) today but for the prejudice in British nationality law against persons born illegitimate.

A person born out of wedlock in 2005 in India but now residing in the UK, born and remaining stateless, to a father who was a British Subject (BS) and a mother whose country of nationality does not confer its nationality in the maternal line, is unable to apply for registration as a British Subject (BS) on account of the prejudice in British nationality law against persons born illegitimate.

A person born out of wedlock in January 2006 in the UK, born and remaining stateless, to a father who was a British protected person (BPP) and a mother whose country of nationality does not confer its nationality in the maternal line, would be a BPP today but for the prejudice in British nationality law against persons born illegitimate.

A further problem: access to British citizenship for persons shut out from British overseas territories citizenship

There is also a particular problem as regards BOTCs and access to British citizenship. There are many persons connected to British overseas territories who would be British citizens today were it not for the prejudice demonstrated in British nationality law against persons born out of wedlock.

The amendments to the 1981 Act, made by the Immigration Act 2014, do not provide access to British citizenship for such persons. As noted, those amendments to the 1981 Act only benefit those who were able to show that they would have become British citizens rather than those who would have become BOTCs (or members of another class of British nationality).

There are persons shut out from British citizenship because they are also shut out from prior acquisition of British overseas territories citizenship by virtue of the discrimination and prejudice in British nationality law against persons born illegitimate.

For example a person who was born before 1983 outside of the UK and all British colonies (such as Montserrat), born illegitimate, would have become a CUKC by descent by virtue of birth to a father who was himself born in a British colony but for her being born illegitimate. She is shut out from being a British citizen today, as:

• She was not a CUKC by virtue of a connection to a colony and so on commencement of the 1981 Act on 1 January 1983 she was not reclassified as a British Dependent Territory Citizen (‘BDTC’); and
• (Following the rebranding of BDTCs as BOTCs on 26 February 2002),

• Accordingly, she was not a BOTC on 21 May 2002, being the date when the British Overseas Territories Act 2002 (‘the 2002 Act’) by operation of law conferred on a BOTC an additional status as a British citizen.

The steps taken by the Immigration Act 2014 to remove the prejudice and discrimination occasioned by illegitimacy, by providing a route to make application for registration in order to become British citizens, does nothing for those who are prejudiced on grounds of illegitimacy from acquiring British overseas territories citizenship prior to moving on to acquire British citizenship. In the result, prejudice on the grounds of illegitimacy continues to affect those who were shut out from becoming BOTCs.

Citizenship of the United Kingdom and Colonies could only pass by descent in the paternal line to persons born legitimate, see sections 5 and 30(2) of the British Nationality Act 1948. Nothing in the 1981 Act corrects that position as regards a person shut out from acquiring British nationality by descent from a father born in a colony. Furthermore, there is no provision made for such persons so born out of wedlock to acquire British citizenship.

As a result of the Immigration Act 2014 there is a section 4H inserted into the 1981 Act. It provides for a route to registration as a British citizen for CUKCs unable to become British citizens at the commencement of the 1981 Act on 1 January 1983. This does not assist a person shut out from acquiring British nationality by descent from a father born in a colony because (i) she was not a CUKC as a result of the prejudice and discrimination against her as a person born illegitimate, and (ii) but for that discrimination she would have become a British Dependent Territories citizen at commencement of the 1981 Act.

Nor is assistance provided by Section 4I of the 1981 Act (also inserted by the Immigration Act 2014), which makes provision for an ‘other person’ unable to become a British citizen at commencement of the 1981 Act on 1 January 1983. Although a person shut out from acquiring British nationality by descent from a father born in a colony qualifies under the definition of ‘eligible non-British national’, nonetheless a condition of applying for registration as a British citizen under Section 4I is that had the applicant’s mother been married to the applicant’s natural father at the time of that persons birth, that person would have been a CUKC immediately before commencement, and critically, would have automatically have become a British citizen at commencement by operation of any provision of the 1981 Act. A person shut out from acquiring British nationality by descent from a father born in a colony would not have become a British citizen at commencement of the 1981 Act on 1 January 1983 had her mother been married to her father at the time of the birth; she would have become a BDTC as her connection was with a colony rather than the UK itself.

Thus in result, there is no provision in the 1981 Act to rescue such a person from the ignominy heaped upon her by being shut out by virtue of illegitimacy from becoming a BDTC at commencement of the 1981 Act on 1 January 1983 (and thereafter benefitting from the 2002 Act to become a British citizen). Had she been a BOTC (as BDTCs were rebranded from 26 February 2002) she would have benefitted from the provision in section 3 of the 2002 Act, in force 21 May 2002, for BOTCs to acquire an additional status as British citizens.

To recap, as regards a person born before 1983 outside of the UK and all British colonies (such as Montserrat), born illegitimate, who would have become a CUKC by descent by virtue of birth to a father who was himself born in a British colony but for her being born illegitimate, the following legislative trail shows the continuing discrimination and prejudice in the law. Has she been a CUKC by virtue of a connection with a colony, on commencement of the 1981 Act on 1 January 1983 by virtue of section 23 of that Act, she would have been reclassified as a BDTC (later rebranded as a BOTC). As a BOTC she would have benefited from the provision in section 3 of the 2002, in force 21 May 2002, which provided for BOTCs to acquire additional status as British citizens. The provisions of section 23 of the 1981 Act and section 3 of the 2002 Act are automatic: each confers a status by operation of law. The only reason she cannot take advantage of them is because she does not benefit from section 5 of the 1948 Act (providing for acquisition of CUKC status by descent) because her father was not married to her mother at the time of her birth (and she was not thereafter legitimated by marriage of her parents).

The continuing prejudice and discrimination against such persons requires correction. The problem described above extends to persons born outside the UK and all British colonies prior to 1983, where born illegitimate to fathers who were born within a British colony. However, there are other examples of prejudice and discrimination against persons born out of wedlock. For instance, a person born in 1985 in the United States, born illegitimate, to a father who was a BDTC by virtue of birth in a British Dependent Territory and a mother who was a U.S. citizen, would not have a acquired British Dependent Territories citizenship at birth. Thereafter, in the absence of an application for her registration as a BDTC, and following the rebranding of BDTCs as BOTCs on 26 February 2002, she would not have benefitted from the provision made in the 2002 Act to confer British citizenship on BOTCs on 21 May 2002.

Conclusion

It is plain that Parliament has taken steps to remove the prejudice occasioned to those born out of wedlock as regards persons who would be British citizens today or who would have beeen able to become British citizens but for that prejudice. However, no equivalent provision has been made for persons who would have become BOTCs, BOCs, BN(O)s, BSs or BPPs but for the fact that they were born out of wedlock.

One explanation for this may be a reticence on the part of the UK Government to legislate for innovations in British nationality Law that will apply to the British overseas territories without first consulting them. However, it is the UK Parliament that legislates for the nationality law of the British overseas territories and not the territories themselves and the answer to this objection is that the territories ought to be consulted forthwith. Further, such an explanation does not justify failure to take action in respect of BOCs, BN(O)s, BS, and BPPs, as these are persons associated with territories formerly under British control and there is no other authority with whom to consult.

There is no reason why discrimination and prejudice on the grounds of illegitimacy should be maintained in respect of those whose access to British nationality would be as BOTCs, BOCs, BN(O)s, BS, or BPPs whilst removing such discrimination and prejudice from those whose access to British nationality would be as British citizens.

Public policy clearly inclines to removing the remained vestiges of discrimination and prejudice in British nationality law against persons born out of wedlock. There is no reason therefore why such steps ought not to be taken. The case for action to bring forward further amendments to the 1981 Act is compelling.