Briefing: the Nationality and Borders Act’s effect on Nationality Law

The controversial Nationality and Borders Act, which has been criticised by everyone ranging from the UNHCR to faith groups to NGO’s in the field, became law on 28 April 2022. We look at the major changes in law, and what they mean for the UK immigration system.
The Act makes significant changes to Nationality law as well as Asylum law. Last week we looked at the main changes for asylum seekers and refugees; today, we consider the Act’s effects on Nationality law.

The stated overarching ambition of the Act when it comes to nationality is to provide some form of correction or redress on certain issues of legislative unfairness that have persisted throughout history in British law. Nationality law in the UK is widely known to contain gaps and issues, but these were not high up on the political agenda until exceptional cases like the Windrush scandal forced nationality back into public consciousness.

Because the Windrush generation never received any paperwork proving their legal status in the UK, they not only had difficulties accessing public funds, proving their right to work and avoiding deportation, but they also encountered problems when applying for naturalisation further down the line, since they cannot easily prove their past residency in the UK.

The Nationality and Borders Act includes a number of provisions intended to rectify such situations. Firstly, section 1 and 2 rectifies the historical inability of mothers and unmarried fathers to transmit citizenship, respectively. Building on the British Nationality Act 1981, s.1 thus creates a registration route for adult children of British Overseas Territories citizens (BOTC) mothers to acquire British Overseas Territories citizenship. Section 3-5 further widen the registration rights for BOTC and their children who were previously overlooked. Section 6 and 7 amend existing nationality law to entitle individuals who were previously unable to acquire British citizenship because their mother was married to someone other than their biological British citizen father at the time of their birth.

The old law, under the 1981 Immigration Act, provided recognised a “father” only as “the mother’s husband.” A 2006 updated definition broadened the concept of “father,” but had a cut-off date after which individuals were no longer entitled to apply or registration. The 2022 Act rectifies this.  Section 8 then grans the Secretary of State a discretionary power to give British citizenship and/or BOTC  to individuals who would have been or would have became a citizen had it not been for historical unfairness in the law, an act or omission of a public authority, or other exceptional circumstances.

Section 9 allows the Secretary of State to waive certain requirements ordinarily required to get citizenship, such as proof that the applicant has been present in the UK (or British overseas territory) at the start of the applicable residential qualifying period in special cases; these include cases like the Windrush applicants. It will also benefit those with Settled Status or indefinite leave to remain under the EU Settlement Scheme who were exercising pre-Brexit EU rights of free movement as students or self-sufficient persons but who lacked comprehensive sickness insurance (CSI) and were thus unknowingly in breach of immigration laws at the time.

On deprivation of citizenship and statelessness, the Act also amends existing law. Since 2006, the test for the Secretary o State to decide whether someone os to be deprived of their citizenship is whether it would be conducive to the public good to do so. Now, section 10 of the 2022 Act allows the Secretary of State to deprive a person of citizenship without providing them written notice  of the decision. The person need not be made aware, if giving notice is not possible or if there are reasons for not notifying them. This provision has been subject of much debate, nationally and internationally.

Internationally, the UNHCR explicitly flagging the risks of statelessness if individuals are to be deprived of nationality without notice; under the 1961 Convention on the Reduction of Statelessness, as well as under the International Covenant of Civil and Political Rights, to which the United Kingdom is party, the UK has a duty not to arbitrarily deprive individuals of their nationality. Nationally, the House of Lords opposed its insertion, but the House of Commons insisted on a revised version, which now has become law. The revised version allows the person in respect of whom the order is made may appeal the decision in the First Tier Tribunal, where the Secretary of State has made a deprivation order without notice. Additionally, a layer of judicial oversight has been inserted: the Secretary of State must apply to the Special Immigration Appeals Commission (SIAC), which in turn must determine  whether the view of the Secretary of State is ‘obviously flawed.’

Furthermore, section 10 of the Act discusses statelessness and stateless minors. Currently, the British Nationality Act 1981 provides that if a person is born in the UK, then they are entitled to be registered if they are and always have been stateless, are under 22 years old, and were in the UK over the preceding five years. Section 10 limits this provision, amending the law so that in addition to the existing requirements for stateless children (aged 5 to 17) to be registered as British citizens or BOTC, the Secretary of State must also satisfy him/herself that the child cannot reasonably acquire another nationality. A case which has received widespread media attention which has played a significant political role in the statelessness arena is the case of Shamima Begum, the ISIS bride. Ms. Begum was born and raised in the UK with British citizenship, so the clause does not exactly apply to her situation, as she was not a stateless person trying to register, yet her case remains relevant. Ms. Begum was only made stateless after the Secretary of State deprived her of her British citizenship. But one of the arguments put forward by the Secretary of State was that Ms. Begum was not actually stateless because she could acquire Pakistani nationality by descent; the likelihood of her being able to acquire another nationality was used as a justification to remove her British one. This argument was squashed in the courts. The same logic is used here in section 10; and just like with Ms. Begum, this section runs contrary to the UK’s obligation under the 1961 Convention on the Reduction of Statelessness.