Correcting historic discrimination in the acquisition of British citizenship
22 March 2018
On 16th March 2018, the Joint Committee on Human Rights initiated the process of scrutinising and reporting on the British Nationality Act 1981 (Remedial) Order 2018. The proposed remedial order follows the making of two declarations of incompatibility, first by the Supreme Court and then by the High Court, in two cases brought by foreign national offenders against the Home Office. The focus of each declaration was historic discrimination in the British Nationality Act 1981, and predecessor legislation, which caused the claimants in each case to lose out on acquiring British citizenship by operation of law at the point of their birth.
In the first case, R (Johnson) v Secretary of State for the Home Department  UKSC 56, the claimant was born in Jamaica in 1985 to a Jamaican mother and British father who were not married. He moved to the UK aged four. Because his mother and father were not married, under the law then in force he was not born British. Had his mother and father been married, he would have been born British. Mr Johnson could have applied to be registered as British under provisions intended to address the historic discrimination contained in the British Nationality Act 1981, but once he turned 16 only if he could demonstrate that he was of ’good character’.
Between 2003 and 2008, Mr Johnson was convicted of serious criminal offences, culminating in a conviction for manslaughter, which rendered him ineligible to be registered as British. The Home Secretary initiated deportation action. In response, Mr Johnson argued that he was not a British citizen – and therefore immune to deportation action – only because of historic discrimination on the basis of his birth out of wedlock.
Agreeing with the claimant, the Supreme Court ruled that what had to be justified was the current discriminatory effect of the law, that very weighty reasons would be required to justify discrimination on the basis of birth out of wedlock and that no sufficient justification had been advanced by the Home Secretary. Accordingly, a declaration of incompatibility was made and Mr Johnson’s deportation halted.
The second case, R (Bangs) v Secretary of State for the Home Department, concerned a similar issue. Mr Bangs was born in the USA before 1983 to a British mother and an American father. He came to the UK aged 11 and was granted indefinite leave to enter on arrival. Under the law then in force, only men could pass on their British citizenship while outside the UK. Had his father been British instead of his mother, Mr Bangs would have been born British. Instead, given that his mother was British and his father American, Mr Bangs did not acquire British citizenship at birth. As with Mr Johnson, Mr Bangs could have applied to be registered as British but only if he could demonstrate that he was of good character.
Between 1983 and 1990, Mr Bangs was convicted of a series of offences, culminating in two convictions for murder on 26 March 1993. As a result of those convictions, Mr Bangs was rendered ineligible to be registered as British. After a significant period of delay, the Home Secretary initiated deportation action. In response, Mr Bangs argued, in line with Johnson, that he was not a British citizen only because of historic gender discrimination written into the British Nationality Act 1948.
The Home Secretary agreed with Mr Bangs’ analysis. Accordingly, a declaration of incompatibility was made by the High Court by consent and Mr Bangs’ deportation was halted.
The impact of the remedial order will be to prevent applicants for citizenship in a similar position to Mr Johnson and Mr Bangs being refused on the basis of a criminal conviction. The change will recognise that an applicant who is not British only because of laws that at the time of their birth were framed in a discriminatory manner ought to be able to be placed in the same position he or she would have been in had that discrimination not occurred.
It is unclear how many applicants this change will affect. The notes to the remedial order suggest that 16 cases were put on hold following the decision in Johnson, but it is likely that there are more cases out there. A solicitor advising a client in similar circumstances, who perhaps faces deportation action, should keep in mind the possibility of applying to register that client as British under the new route once the remedial order is laid before Parliament and takes effect.