The Independent and the Telegraph are reporting on the upsetting case of a little boy, born in Leeds, who is being denied re-entry to the UK because the Home Office has revoked his British passport. Mohamed Bangoura, aged six, was staying with relatives in Belgium over the summer and “marched away from the plane home by police officers”. His Guinean mother, Hawa Keita, who cannot leave the UK to be with him due to her own immigration complications, says that she never received the Home Office letter informing her that it no longer considers Mohamed to be British.

People asked for their reaction to the latest Home Office immigration atrocity often reach, in their outrage, for a readily available description. So we see this case being described as another example of the “hostile environment” in action. For what it is worth, this is a separate issue from the set of policies known officially as the “compliant environment”. As I lay out in this briefing, the hostile/complaint environment is about ensuring that migrants who cannot prove their right to be in the UK are unable to access essential services, such as the NHS.

Mohamed’s case is, legally speaking, very different. This is a problem of nationality law. The starting point is that being born in the UK does not automatically make a child British. At least one of the child’s parents must also be British, or “settled” in the UK: section 1(1) of the British Nationality Act 1981. Mohamed’s mother, by the sound of things, has only limited leave to remain in the UK (so not settled, which means having indefinite leave to remain or some other permanent right to live here). So the little boy could only gain an automatic entitlement to British citizenship through his father.

The journalists tell us that Mohamed’s biological father is indeed British. But Ms Keita is still married to a different man, back in Guinea. Although they are estranged and in the process of getting divorced, British nationality law does not care. Section 50A(9) of the British Nationality Act 1981 defines “father” as the husband of the child’s mother. Only if the mother is not married can the biological father be the “father” (see sub-section c):

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, or

(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or

(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or

(c) where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to proof of paternity.

As neither the mother nor the legal “father” were settled in the UK at the time of Mohamed’s birth, the little boy has no automatic legal entitlement to British citizenship. There is no mechanism to override the legal definition of “father” in favour of the real father, who as a British citizen would have been able to pass on that citizenship to his son.

Thread > 1. Upsetting case but not caused by hostile environment. It is because of discriminatory definition of “father” in the British Nationality Act 1981 for children born after 1 July 2006. https://t.co/k3d7S6Ljef

— Colin Yeo (@ColinYeo1) September 6, 2018

Incidentally, the revocation of Mohamed’s passport after it has been issued, which may strike readers as a particularly unfair aspect of this situation, is standard practice. Over 1,000 children born in the UK to eastern European parents who, it transpired, were not settled at the time have had the same thing happen to them only recently. In legal terms, it is possible because a passport is not British citizenship. It is a travel document which British citizens can obtain — provided they can prove that they are British. No underlying British citizenship, no right to a passport.

If the law on legal paternity seems discriminatory and anachronistic, that’s because it is. In fact, the High Court recently granted a declaration that Section 50A(9) is incompatible with Article 8 of the European Convention on Human Rights. The circumstances of that case were very similar, if less urgent: a little girl was unable to inherit British citizenship from her father because her mother was still married to another man. 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.

Because of the way human rights legislation works, that declaration does not change the law. In Ireland or the United States, a law that is unconstitutional is simply struck down. A declaration of incompatibility with human rights just tells Parliament that the law should be changed. It usually is changed eventually, but that takes time even if the authorities were inclined to hurry.

That is not the end of the matter. Being born British is not the only route to citizenship. Children (and adults in some circumstances) can be “registered” as British citizens if they meet certain criteria. The registration process is pretty much tailor-made for situations like this, where a child has close ties to the UK but has not picked up citizenship automatically. Indeed, Home Office guidance on registration says as follows:

Where a child’s mother is married at the time of the birth, her husband (and no other man) is regarded as the father of any child born to her on or after 1 July 2006. However, you will normally register the child under section 3(1) where there is compelling evidence that someone other than the mother’s husband is the child’s natural father…

So why did the Home Office not point this child and mother in the direction of the registration process? Because immigration officials generally will not lift a finger to positively help anyone. Officials obstruct and refuse but never assist.

Registration is in any case not a perfect solution. It involves putting together an application to the Home Office and paying an outrageous fee of over £1,000. The applications only cost the Home Office £372 to process, meaning they make money from families exercising their right to register. The scale of the fees is a major barrier and not what Parliament intended when it ended the right of all children born on UK soil to become British.