Amendment Proposal for Section 65 of the Immigration Act 2014

[HCJNL]

I have drafted the letter below. All comments and suggestions will be gratefully received!

---Draft Letter to MPs and Stakeholders---

Dear [Recipient's Name],

Subject: Amendment Proposal for Section 65 of the Immigration Act 2014

I am writing to bring to your attention a significant issue concerning the retrospective application of British nationality law, particularly affecting children born to British fathers who were unmarried at the time of their birth. This issue has personally impacted my family, and I believe it is crucial to amend the legislation to correct this historical injustice.

Personal Story
I am a British citizen by descent, born in Zimbabwe. My daughters, [Daughter's Name] (born in 1989) and [Daughter's Name] (born in 1992), were unable to be registered as British citizens under Section 3(2) of the British Nationality Act 1981 due to my unmarried status at the time of their births. In 2006, the law changed to allow unmarried fathers to pass on their citizenship, but this change was not retroactive.

It was not until Section 65 of the Immigration Act 2014 took effect in 2015 that the law retroactively allowed children born to unmarried British fathers to register for citizenship. However, this only applied to children who were still under 18 at that time. My daughters, unfortunately, were over 18 by then, and thus excluded from this provision. In contrast, my son, born in 2010, was successfully registered as a British citizen under Section 3(2).

Proposed Amendment
To address this disparity and rectify the historical injustice, I propose an amendment to Section 65 of the Immigration Act 2014 to remove the age limitation. The suggested amendment is as follows:

Amendment to Section 4F of the British Nationality Act 1981:

Current Wording:
"Section 4F (1) A person qualifies for registration under this section if—
(a) the person was born before 1 July 2006;
(b) the person’s mother was not married to the person’s natural father at the time of the birth; and
(c) had the person’s mother been married to the person’s natural father at the time of the birth, the person would have been entitled to registration as a British citizen under section 1(3), 3(2), 3(5) or paragraphs 4 or 5 of Schedule 2."

Proposed Wording:
"Section 4F (1) A person qualifies for registration under this section if—
(a) the person was born before 1 July 2006;
(b) the person’s mother was not married to the person’s natural father at the time of the birth; and
(c) had the person’s mother been married to the person’s natural father at the time of the birth, the person would have been entitled to registration as a British citizen under section 1(3), 3(2), 3(5) or paragraphs 4 or 5 of Schedule 2. Persons will not be required to be aged under 18 when they apply for registration under this section 4F."

Rationale
The proposed amendment aims to correct the ongoing discrimination against individuals born to unmarried British fathers before 1 July 2006. By removing the age limitation, we can ensure that all individuals who were unfairly excluded from citizenship due to the marital status of their parents are given the opportunity to claim their rightful nationality.

Call to Action
I urge you to support this amendment and advocate for its adoption in Parliament. This change is essential to ensure fairness and justice for all individuals affected by the historical discrimination in British nationality law.

Thank you for considering my proposal. I am available to discuss this matter further and provide any additional information required.

Yours sincerely,

[Your Name]
[Your Contact Information]

[HCJNL]

I have received a reply, via someone who forwarded my email on my behalf, from the Nationality Policy Team at the Home Office, dated 5 June 2024

Thank you for your e-mail. I hope that all is well with you.

As [My name] points out, the change to the law made in 2006 was not made retrospective. However, the policy guidance in force in 2006 stated the following:

“Unlike mothers, fathers could not transmit British citizenship or the benefits of their settled status to any illegitimate children born before 1 July 2006.(s.50(9) of the British Nationality Act 1981).

Section 1 of the Family Law Reform Act 1987, which came into force on 4 April 1988, did away with most distinctions between legitimate and illegitimate children. It did not, however, alter the citizenship position.

Section 9 of the Nationality, Immigration and Asylum Act 2002 amended the 1981 Act to allow fathers to transmit citizenship to their illegitimate children born on or after 1 July 2006 provided there is satisfactory evidence of paternity. But the changes do not apply in respect of anyone born before that date.

However, in accordance with the spirit of the 1987 Act (and the changes introduced by the 2002 Act), we may normally register the illegitimate minor child, born before 1 July 2006, of a British citizen or “settled” father if the criteria at a-c. (and, if appropriate, d.) below are all satisfied:

a. We are satisfied about the paternity of the child; and

b. We have the consent of all those with parental responsibility; and

c. We are satisfied that, had the child been born to the father legitimately:

i. the child would have had an automatic claim to British citizenship under s.1(1) or s.2(1) of the British Nationality Act 1981; or

ii. the child would have had an entitlement to registration under either s.1(3), s.3(2) or s.3(5); or

iii. we would normally have registered under s.3(1); and, if appropriate

d. There is no reason to refuse on character grounds. “

As such, Mr [My name] may have been able to register his children before they were aged 18, but I appreciate that he may not have been aware of this policy.

One of the measures introduced in the Nationality and Borders Act 2022 was section 4L of the British Nationality Act 1981. It is a registration route for people to become a British citizen in special circumstances. In introducing the provision, we were conscious that there were a small number of people who had missed out on citizenship, but for a variety of reasons, and so we aimed to create a general provision, rather than amending legislation to cater for each individual scenario.

Section 4L allows the Secretary of State to grant British citizenship to an adult applicant if, in the Secretary of State’s opinion, the person would have been, or would have been able to become, a British citizen, had it not been for:

historical unfairness in the law, or
an act or omission of a public authority, or
other exceptional circumstances relating to the person’s case.

This section allows for the grant of British citizenship to a person who does not meet the existing naturalisation or registration requirements and is intended to benefit those who would have qualified for automatic acquisition of citizenship or who would have met the naturalisation or registration requirements but for, for example, unfairness in historical legislation.

This is something that [My names]’s children may be able to benefit from, if they can show that they were unable to register as British citizens because their parents were not married at the relevant time.