For children born to fathers who were not married to their mothers, the legal position of who their father is, has not always followed common sense.
Under s.1(1) of the British Nationality Act 1981 (“the 1981 Act”), a child born in the UK, who had a mother or father who was either British or had Indefinite Leave to Remain in the UK, would be born a British Citizen.
Under s.50(9A) of the 1981 Act a child’s father is deemed by the Act to be:
"(a) the husband, at the time of the child's birth, of the woman who gives birth to the child;" or
(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or
(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or
(c) where none of the paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to paternity."
In terms of (c), the British Nationality (Proof of Paternity) Regulations 2006 set out the prescribed requirements so that proof of paternity could include being named as the father on a birth certificate (if it was issued within one year of the child’s birth), or by producing a DNA test or court order.
The problem with these provisions is that section (c) would only become relevant if the child’s mother was not married at the time of the child’s birth. If the mother was married, section (a) would apply, and the child’s father would be deemed to be the mother’s husband, even if there was biological evidence or a birth certificate to indicate that that wasn’t the case.
If neither the child’s mother nor her husband were British Citizens or had Indefinite Leave to Remain when the child was born in the UK, then the child would not be born a British Citizen and this would remain the case for nationality law purposes even if her biological father had been a British Citizen or had Indefinite Leave to Remain at the relevant time.
The case of K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin) was heard in July 2018. The case concerned a child born in the UK. Her birth was registered showing her father as SK and her mother as MT. SK was not disputed to be K’s biological father and SK and MT were in a committed relationship and were continuing to live together. SK was a British Citizen. MT was, however, still legally married to RS who was a Pakistani national.
Under s.50(9A), no matter how clear it was that SK was K’s father in all biological, emotional and practical terms, and that RS was entirely uninvolved with K, it was RS and not SK who was deemed to be K’s father for nationality purposes.
Because K’s mother did not have British Citizenship and did not have indefinite leave to remain, and because SK was not deemed to be her father, K could not claim to be a British Citizen by birth under s.1(1) of the 1981 Act.
The Home Office declined to treat K as a British Citizen, once it found out about MT’s marriage to RS, and revoked K’s passport. This decision was challenged by way of judicial review on the basis that s.50(9A) could only be compatible with Article 8 (the right to private and family life), when taken in conjunction with Article 14 (the right not to be subject to discrimination), if the definition of the father being automatically the husband of the mother of a child, was treated as only a starting point and a presumption which could be rebutted with evidence in appropriate cases.
Helen Mountfield QC hearing the case found that:
“There is a contrast between the treatment, in law, of a child whose mother is not married to anyone at the time of its birth, ... and a child whose mother is married at the time of its birth... The law does not therefore 'secure' equal enjoyment of the right to acquire one's natural father's citizenship to children whose mothers are married and unmarried at the time of their birth, and since this is a matter within the ambit of Article 8 ECHR, there is therefore a breach of Article 14 unless the Secretary of State provides proportionate justification for this failure to secure equal enjoyment.”
It was accepted that the need for “legal certainty and clarity as to whom the law treats as parents” was a legitimate aim but that the provisions under the 1981 Act were “not the least restrictive means of achieving” that aim.
She concluded that:
“In my judgment, this distinction between two different classes of children discriminates between them on grounds of status... This distinction is not rationally explained or proportionately justified”
Upon finding that these provisions breached K’s rights under Article 8 when read with Article 14, she also considered that s.50(9A) was incapable of being read compatible with the ECHR and she therefore made a declaration of incompatibility under s.4(2) of the Human Rights Act 1998.
Although the Home Office initially sought and was granted permission to appeal to the Court of Appeal against this judgment, they withdrew that appeal in November 2019 and the declaration therefore stands.
The legislation itself has not been amended and for a while the only remedy continued to be for applications to made to register such children on a discretionary basis under s.3(1) of the 1981 Act. This was a route which had already been considered inadequate by Helen Mountford QC.
The cost of making such an application was also prohibitively expensive at £1,012.
New Procedure
In May 2020, the Home Office introduced Form UKF (M) which is a specific form to complete for someone wanting to make an:
“Application for registration as a British citizen by a person born on or after 1 July 2006 to a British father where the mother was married to someone other than the natural father”
The accompanying guidance provides that you can apply under this route if you have never been British but at the time of your birth you:
"would have become a British citizen automatically if your mother had not been married to someone other than your natural (biological) father"
Rather oddly, registration in this manner, where neither the child’s mother nor her husband were British at the time of the child’s birth, will give the child British Citizenship “otherwise than by descent” and the child would not therefore be restricted from transmitting that citizenship down a generation if they were to have a child born abroad, which is a situation where a British Citizen “by descent” would be unable to do so.
The fee for registration as a child under this new procedure continues to be £1,012, unless an application for a waiver is successful. This may well form the basis of future challenges.
It is also worth noting that according to the guidance, any child aged 10 or over will be subject to a good character test and registration is not therefore automatic.
However, in the case of Johnson [2016] UKSC 56 the Supreme Court declared that:
“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.”
Although the context of that case was different and the good character requirement was not deemed to be unlawful in all registration cases, it may well be that in this context also, the continued imposition of a good character requirement is also incompatible with the ECHR.