A law preventing men from passing on British citizenship to their biological offspring where the child’s mother is married to someone else may now be reconsidered in light of a government decision to drop its appeal against a landmark ruling made last summer.

The original case of K [2018] EWHC 1834 (Admin) involved a challenge to the definition of who is treated as a child’s father for the purposes of acquiring British citizenship.

K was a young girl born in the UK to a British father and Pakistani mother. She was issued with a British passport shortly after birth. But the Passport Office later withdrew the document after discovering that her mother was still married to a Pakistani citizen – even though she had fled her abusive husband years before the girl was born.

British nationality law and “fatherhood”

The problem was the strict wording of section 50(9A) of the British Nationality Act 1981. This defines a child’s father as “the husband, at the time of the child’s birth, of the woman who gives birth to the child”, irrespective of any genetic connection.

This contrasts with the position of an unmarried mother, where the biological father can be accepted as the child’s parent for citizenship purposes.

This matters because section 1(1) of the same Act says that children born in the UK are only British at birth if one of their parents is British or has settled status (i.e. living in the UK with a permanent right to reside).

As a result, British-born K was not technically British, as her legal “parents” were two Pakistani citizens: her mother, who did not yet have settled status in the UK, and the mother’s estranged husband.

The situation only came to light when K’s mother applied for the right to stay in the country based on her relationship with K and K’s father. At that point, the Home Office noticed the mother had mentioned her abusive ex in an earlier asylum claim. The Passport Office was notified of this estranged husband and duly withdrew the girl’s passport on the basis both her parents were both foreign nationals.

The judge in K was extremely sympathetic to the family’s plight. She considered that the effect of section 50(9A) was discriminatory and incompatible with human rights law. But based on the current wording of the Act, the Passport Office’s action had not been unlawful. Instead, the judge made a “declaration of incompatibility”, which is meant to prompt the government to change the law.

Discretionary citizenship applications

The judge also said that in the interests of certainty, it was right for such children to have to go through an application process to be granted citizenship, rather than this being acquired automatically at birth. But she felt there were problems with the current process, involving an application under section 3(1) of the 1981 Act.

Section 3(1) allows the Home Office to register children as British if it “thinks fit” and provided they are of good character. This is supplemented by guidance directing caseworkers to register such children “where there is compelling evidence that someone other than the mother’s husband is the child’s natural father”.

The judge felt this was an unsatisfactory solution, as a decision on whether to grant citizenship in such circumstances should not be discretionary. Other species of registration are a legal right: the family has to apply, but the application must be granted if the child meets the criteria.

Despite this, the Home Office initially decided to appeal the decision. It argued that to change section 50(9A) of the Act would have broader repercussions in other areas — in surrogacy cases, for example. 

The Home Office was granted permission to challenge this decision but has now withdrawn its appeal. It is not clear what steps the department intends to take next.

What now for families in this unusual situation?

This is one in a series of challenges involving discrimination in nationality law — for example, against citizenship passing down through the female line or in cases of so-called “illegitimacy” — and inadequate government efforts to correct these.

Such cases often raise some of the following issues, all of which are relevant to section 3(1) citizenship applications:

1. The astronomical cost of making the application, currently £1,012 for certain child citizenship applications
2. The fact that applicants must be of “good character” if they are over the age of ten
3. The fact that certain applications must be made before the person turns 18

It is certainly arguable that the application fee is already unlawful in cases such as K’s. The Home Office has previously conceded in the case of Williams [2017] EWCA Civ 98 that any immigration or nationality fee should only be charged if it is compatible with human rights law.

While the good character requirement has recently been done away with for certain citizenship applications rectifying historic discrimination, it remains in force for applications under section 3(1). The wide-ranging nature of that particular section means the government is unlikely to abolish the good character requirement any time soon.

As such, the only real remedy would be amending the 1981 Act itself to give people born in such circumstances an entitlement to register as British, regardless of character or age.

It is possible this was the government’s intention in withdrawing the appeal. But it may also be out of a desire to avoid the issue of citizenship fees being raised again before the Court of Appeal, which K’s legal team had vowed to do.

Whatever the motivation, for now, the situation remains unchanged for children in this situation. At present, the only solution is an application under section 3(1) requiring payment of a fee and, if relevant, the submission of good character arguments.

In the future, some kind of change is inevitable, but what form that might take and how many more legal challenges will be required before then is impossible to tell. The only certainty for now is that given the current political unrest, any change remains a long way off — leaving children paying the cost.

This article has been updated to replace an earlier version published on 11 November 2019 by CJ McKinney.