Blog post by Cynthia Orchard (ENS Individual member) and Nina Murray (Head of Policy & Research at the European Network on Statelessness), and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration. This post was originally published on ENS, available here.
Following an online consultation on its “New Plan for Immigration”, the UK Government needs to ensure that any proposed amendment to the statelessness provision in British Nationality law does not make it more difficult for children born stateless in the UK to acquire British citizenship.
People who provide advice and support to migrants and refugees in the UK tell us that many of those they work with still think that the UK has ‘birthright citizenship’. This is a little surprising, because, in fact, the UK hasn’t had birthright citizenship since the British Nationality Act 1981 (BNA) came into force.
Birthright citizenship (also called ‘jus soli’ citizenship) means that any child born on the territory of a country is automatically a citizen of that country (like in the USA, Canada, and many other countries in the Americas, for example). Not having birthright citizenship means that only some children born in a country are automatically citizens.
There are two main groups of children born in the UK who automatically acquire British citizenship at birth: 1) children who have a parent who is a British citizen; and 2) children who have a parent who is ‘settled’ in the UK – which means they have been granted ‘settled status’ or ‘indefinite leave to remain’. Other children born in the UK, including children born stateless to parents who do not have indefinite leave to remain, may become eligible to register as British citizens at age five or ten (or when their parents become ‘settled’), and they must pay the Home Office fee of over £1,000 when they apply (no reductions, no exemptions).
The Home Office held an online consultation about its ‘New Plan for Immigration’ from 24 March to 6 May 2021. UK civil society has expressed many and varied concerns about the proposals, including that some of them are really not new – they have been tried before, and did not work – some are confusing, and some, if implemented, will have tragic consequences. The plan is not ‘for immigration’, but rather decidedly against it.
The European Network on Statelessness submitted a response to the consultation on one issue raised in the proposals relating to British citizenship applications by stateless children. At present, the British Nationality Act 1981 (Sch. 2, Para. 3) permits a stateless child who was born in the UK to apply for British citizenship if they:
- Are and always have been stateless; and
- Are under twenty-two years of age on the date of the application; and
- Have been present in the UK or a British overseas territory for the preceding five years (and not absent for more than a specified number of days during that time).
The Home Office’s policy statement introducing the ‘New Plan for Immigration’ consultation says that (p.16):
‘Recently we have seen an increasing number of parents choosing not to register their child by their own nationality despite being able to do so… We will now stop this route from being abused by tightening the requirements and actions parents are required to follow before their children are able to benefit from statelessness provisions.’
This language is unhelpful and provocative. The Home Office provides no evidence to back up its claims of ‘an increasing number of parents choosing not to register their child’ nor its allegations of ‘abuse’. The statement indicates that the Home Office is focusing on the actions (or inaction) of parents as the rationale for proposing to amend a vital safeguard in British citizenship law to prevent and reduce childhood statelessness, rather than considering the best interests of the stateless children concerned.
Although Home Office statistics indicate that there was an increase in the number of stateless children’s applications for British citizenship from 2016 to 2018 (but decreasing since 2019), the Home Office has not published any information which indicates that they have properly examined: the reasons for the rise in such applications; the backgrounds of the children concerned; any barriers that may exist to the relevant children being able to acquire the nationality of another country; or whether, in cases where the children concerned could have acquired a nationality other than British, there may have been good reasons for not wanting to do so. UNHCR Guidelines and UK caselaw indicate that any such ‘good reasons’ and children’s views and best interests (as well as other relevant factors) must be considered when deciding on a stateless child’s application for nationality of the country in which they were born.
Nationality laws are extremely complex. Conflicts and discrimination in nationality laws around the world are some of the main causes of statelessness globally. Many children born to migrant or refugee parents in the UK, as in other countries, face significant barriers to acquiring a nationality. There can be very real and complex barriers to registering a child with the authorities of a parent’s country of nationality. If parents are asylum-seekers or refugees, for example, they simply cannot approach their country’s embassy because they fear persecution. Sometimes parents lack the documentation to prove their children are nationals of their country, including in cases of domestic abuse, where for example, a mother has custody of a child but cannot approach the father for documents relating to the nationality of the child. Sometimes children are in care and parents are absent, uncooperative, or unable to produce the evidence required for those with responsibility for the children to facilitate registration. Often there is a time-limit by which children must be registered to acquire their parents’ nationality, or a requirement that a child must have lived in the relevant country for a specific period of time. Sometimes parents or guardians just don’t know about these requirements and assume the child is British or a national of a parent’s country of origin.
Our response to the consultation reminds the UK Government of its many international, regional, and domestic legal obligations to consider the best interests of every child in every decision made about their lives. Children should not suffer because of the (alleged) actions of their parents or guardians, or due to restrictive rules intended to punish the actions of adults. The UK is bound by international conventions that require it to take steps to reduce and prevent statelessness and ensure that every child acquires a legal identity and nationality as soon as possible after birth. We will urge the UK Government to refocus its attention on its duties to stateless children born in this country, who should be granted British citizenship as early as possible in life (and ideally automatically at birth), so that they can have the security and belonging which is linked to the legal bond of citizenship.
The current BNA provision relating to stateless children is in line with international law. It does not need amending. It exists in law as a safeguard to prevent and reduce statelessness, a commitment that the UK and the global community have signed up to and which the UK should be proud to put into practice. We recommend that, prior to seeking to amend the provisions of the BNA relating to stateless children, the Government should undertake a comprehensive impact assessment of any possible amendment on stateless children and commission an in-depth study of childhood statelessness. We also recommend that the Home Office should refocus its attentions on the changes it can make to facilitate access to British citizenship for stateless children in the UK, drawing on good practice from neighbouring countries in Europe and elsewhere. For example, it could address the exceptionally high fees for children to register as British citizens compared to other countries. It could re-introduce birthright citizenship or reduce the requirement for a child born stateless in the UK to remain stateless for five years before becoming eligible to register as British. In several other European countries, such as Spain, France, Belgium, and Italy, the comparable provisions are automatic at birth. The UK could also provide legal aid to all financially eligible children (including those who remain with their parents) seeking to acquire British citizenship, and they could ensure that the nationality status of children in care is proactively resolved as early as possible.
Many children who are born in and/or grow up in the UK already feel British. Many of them assume they are British citizens. The Home Office could be spending its time and energy doing things that actually help children and promote their best interests rather than seeking to add restrictions that could result in more children being unnecessarily excluded and marginalised.
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