The Nationality and Borders Bill was introduced in the House of Commons on 6 July 2021. Part 1 concerns British nationality law and seeks to amend the British Nationality Act 1981.
With one critical exception concerning stateless children, the Bill is generally good news as regards British nationality law. However, the exception risks putting the UK in breach of its international treaty commitments.
The principal problem in the British nationality provisions
The principal problem with the British nationality law provisions of the Bill comes with the proposed changes to the provision made for stateless children in clause 9. The change will leave certain children stateless and in doing so runs contrary to the UK’s obligations under the 1961 UN Convention on the Reduction of Statelessness.
Paragraph 3 of Schedule 2 to the British Nationality Act 1981 provides for a stateless child born in the UK or a British overseas territory to be registered as a British citizen or British overseas territories citizen (BOTC) (as the case may be). Among other things, there is a requirement that the applicant has always been stateless and that they have been in the UK or British overseas territory for 5 years. The applicant must be under 22 years of age.
The proposed change operates as follows: Clause 9 of the Bill adds a provision for those aged 5-17 that the Secretary of State is satisfied that the child applicant is unable to acquire another nationality. It provides that a person is able to acquire a nationality where (i) that nationality is the same as one of the parents; (ii) the person has been entitled to acquire that status since birth; and (iii) in all the circumstances, it is reasonable to expect them (or someone acting on their behalf) to take steps to acquire that nationality (clause 9 inserting a new paragraph 3A into Schedule 2 to the British Nationality Act 1981).
The problem with the provision is that it allows the Secretary of State to keep a child born in the UK without a nationality stateless from the age of 5 onwards, when in fact, the 1961 Convention—which the British Nationality Act 1981 purports to implement—simply requires that the applicant is stateless and not that they cannot reasonably acquire another nationality. The only circumstances where conferral of British citizenship could be withheld under the 1961 Convention is where the nationality of a parent was available to the child immediately, without any legal or administrative hurdles, and could not be refused by the state concerned, see for example paragraphs 24 to 26 of the UNHCR ‘Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness’. As drafted, the Bill does not provide for such safeguards but allows impermissible latitude to the Secretary of State to refuse an application (“…in all the circumstances, it is reasonable to expect the person (or someone acting on their behalf) to take the steps….”).
The UK is bound by the 1961 Convention. It is obliged to apply it in good faith (as Article 26 of the 1969 Vienna Convention on the Law of Treaties requires). There is no provision in the 1961 Convention that allows for such a wide condition to be imposed. The 1961 Convention specifies that statelessness alone is sufficient. In doing so, it removes the temptation for decision-makers to form their own judgments about how easy it would be for a UK-born stateless child to acquire the nationality of one of their parents under the law of their (foreign) country, subject to the exception (as set out above), where a parent’s nationality can be obtained immediately. The 1961 Convention is child protection-focused and a rule to transpose and implement it in domestic law should be drafted consistently with the requirements to have children’s “best interests” in mind; see article 3 of the 1989 UN Convention on the Rights of the Child in that regard.
The 1961 Convention protects stateless children by obliging the state of birth to provide access to its nationality. Under the Convention, a state may require an application and a 5-year period of presence (as the UK does). Where such requirements are imposed, a child may cease being stateless as early as 5 years old. For many children, the new clause will perpetuate their statelessness as they will have no immediate entitlement to a parent’s nationality but the Secretary of State’s judgment will shut them out from British citizenship. The effective operation of a key provision of the 1961 Convention will be impossible for many stateless children if clause 9 is implemented. Where the Secretary of State refuses an application using the impermissible latitude for which the clause provides, the UK will breach its international treaty commitments accordingly.
How to fix the problem?
The clause in question should be removed or revised to be compliant with the 1961 Convention. There is no ‘vice’ (as the Government contends, see the Explanatory Notes to the Nationality and Borders Bill, paras 137-138) where parents have chosen not to register their child’s birth in their home country (so that the child thereby acquires its nationality) so as to facilitate the child registering as a British citizen under the British Nationality Act 1981, save where the right to acquire home state nationality is not taken and there is an immediate entitlement to a parent’s nationality, without hurdles or obstacles, which cannot be refused on a discretionary basis. Further, any assessment of that question should be an objective question, where a court or tribunal may assess the question in turn; it should not be a subjective question for the Secretary of State alone to evaluate in all the circumstances. The 1961 Convention focuses on protecting the stateless child. Parliament ought not to legislate to enable breaches of that commitment in UK domestic law.