It is said to be a wise child who knows his own father. It might be thought, having read the facts of this case, that it is an even wiser child who knows who is deemed to be her father for the purposes of the British Nationality Act 1981…

The opening lines of K (A Child) v Secretary of State for the Home Department [2018] EWHC 1834 (Admin) ring true in today’s world of complicated social structures and even more complex law. In this recent judicial review decision, the High Court found that section 50(9A) of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case concerned a child who was unable to inherit British citizenship from her father because her mother was still married to another man.

K is a child with a British father and a Pakistani mother. Her mother came to the UK fleeing from her then husband RS back in Pakistan. At the time of K’s birth she was still married to RS.

K was initially granted a British passport in October 2014. In June 2017 the passport was revoked on the basis that her mother was still married to RS and thus section 50(9A) applied:

For the purposes of this Act, a child’s father is –

(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child…

In other words, K’s biological father could not be treated as her father for nationality purposes, meaning that she had no right to British citizenship.

The law on acquiring of British nationality by birth

A child can obtain British nationality at birth if one of the parents is a British citizen (section 1(1) of the British Nationality Act 1981).

The key question is who can be considered a “parent” for this purpose. The definition of parent has changed with time in order for the law to be in line with scientific developments and changes in social policy. As this case illustrates, the law still has some catching up to do when it comes to modern relationships and family structures.

Paragraph 33 of the decision summaries the Secretary of State’s policy in dealing with a child who was not legitimate:

…a child who was not legitimate would nonetheless be registered as a British citizen if:

1. The applicant was a child living in the United Kingdom; and

2. His father was a British citizen; and

3. The Secretary of State was satisfied as to paternity; and

4. If the child was aged 16 or over, he was of good character.

Although it is not stated in the policy, this was presumably also only the case if the child’s mother was not married to someone else, because of the form of section 50(9) of the BNA 1981 which was then in force, and which would have construed a child born within marriage as a child of that marriage.

The categories of acquiring nationality are helpfully summarised as paragraph 38:

The persons who can claim British nationality at birth as of right under the terms of section 1(1)(a) of the BNA 1981, on an ordinary reading of this Act are therefore:

1. the child of the woman who gave birth to them; and

2. the child of the husband of the woman who gave birth to them; or

3. the child of a deemed father or female co-parent of the child under the legislation dealing with IVF (as to which see paragraphs 42-52 below); or

4. if there is no father (or female co-parent) under that legislation, a person who satisfies prescribed requirements as to proof of paternity.

Those not entitled to citizenship as of right may invite the Secretary of State to exercise a discretion under section 3(1) of the 1981 Act to confer British nationality upon them. The Secretary of State need only register him or her as a British citizen “if he sees fit”, subject to ordinary principles of administrative law.

It was accepted that this was a wide discretionary power available to the Secretary of State.

Incompatibility with Article 8

The court was asked to find that Section 50(9A) was discriminatory under Article 14 ECHR. It was accepted that in order to engage Article 14 the test was a difference in treatment, not “less favourable” treatment.

Here there was a difference in treatment. A child whose mother is not married to anyone at the time of its birth is deemed the child of the biological father. But a child whose mother is married at the time of its birth is deemed to be the child of that husband, even if the child is proven not to be the husband’s. That was the core issue in this case.

Helen Mountfield QC, sitting as a deputy High Court judge, found that

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.

She also held that there would be a clear detriment to K if she was not granted her father’s nationality as a right. K would be deprived of her link to the UK and a relationship with her father, as well as suffering various practical difficulties.

Since the difference in treatment could not be justified:

I find that the scheme of section 50(9A) of the BNA 1981 as the Defendant currently reads and applies it breaches the Claimant’s right under Article 14 ECHR read with Article 8, to enjoy equal access to the ability to acquire her biological father’s nationality which she would enjoy if her mother had not been married to a man other than her biological father at the time of her birth.

The fact that section 3 of the 1981 Act existed was insufficient as an alternative. Section 3 was only a discretionary remedy not an automatic access to a right to nationality. As accepted by the Secretary of State, this was a wide discretionary power allowing the decision-maker to take into account various factors such as a child’s character, father’s character, relationship with the child. This was a much higher evidential basis than the mere proof of paternity required under section 1.

What happens now?

The court has stated that it is reasonable to presume that a child born within a marriage is a child of that marriage. If a child is born to a father who is not married to the mother, it is legitimate for the Home Office to require proof of paternity in order to rebut the presumption that the mother’s husband at the time of birth is the father. The proof may take the form of having the father named on the birth certificate, DNA evidence or a court order. This will require an application process.

Home Office criticised over indiscriminate “totally without merit” applications

Ms Mountfield QC also critiqued the Home Office’s standard line of requesting cases to be considered totally without merit. She cautioned the Secretary of State against making such requests “as a matter of course”, especially where a case has a wider public importance and does cross the arguability threshold.