Government proposes remedial order to address Johnson v Secretary of State for the Home Department [2016] UKSC 56
Parliament's Joint Committee on Human Rights yesterday published a report examining the Government's proposed Remedial Order amending the British Nationality Act 1981 to address its historic discrimation following the Declaration of Incompatibility made by the Supreme Court in the case of Johnson v Secretary of State for the Home Department [2016] UKSC 56. The amendment would allow the child of a British parent to become a British citizen by descent from their British parent irrespective of whether it is their mother or their father who is British, and irrespective of whether their parents are married or not.
Image credit: UK GovernmentYou can read the Committee's 43-page report here.
In the report, the Joint Committee on Human Rights says the Government should take rapid steps to end unfair discrimination when it comes to British nationality law.
The report states: "It cannot be right in principle that entitlement to British nationality still varies according to whether it is one's mother or one's father who is British, or whether one's parents are married or not. Entitlements to British nationality vary depending on when and where one was born, and one's links to the UK. Historically, British nationality law only allowed a legitimate child to acquire nationality by descent and only through the male line. It therefore discriminated against those born to British mothers and those whose British fathers were not married to their mothers. The law has been changed at various times to reduce this discrimination, but, despite this, some discriminatory provisions remain on the statute book."
The Committee welcomed the Government's decision to use the remedial order process to take active steps to remedy the discrimination identified in the British Nationality Act 1981 by the Supreme Court in the case of Johnson v Secretary of State for the Home Department.
The report says the Government's proposed British Nationality Act 1981 (Remedial) Order 2018 "aims, to an extent, to eradicate that discrimination. In particular, it deals with the right of a child of a British parent to become a British citizen by descent from their British parent—irrespective of whether it is their mother or their father who is British; and irrespective of whether their parents are married or not. The rights of a child of unmarried parents should be equal to those of a child of a married couple. The rights of a child of a British mother should be equal to the rights of a child of a British father."
However, the Joint Committee on Human Rights found that other discriminatory provisions appear to remain on the face of British nationality legislation and it recommends that these should also be addressed.
"It would be beneficial for the Home Secretary to introduce a Bill of wider scope to remove all remaining discrimination in British nationality law—and which could consolidate and bring clarity to the existing law. We recommend that the Government bring forward the necessary legislation to remedy this remaining discrimination at the first available opportunity," the Committee said.
The Committee also raised concerns over the "sheer complexity" of British nationality law, and found the relevant Acts "have been amended so many times that it is not easy to understand what law is current and what is not."
The report stated: "In part this is because the multiple Acts cross refer to each other, making it difficult to read (without access to specialist resources). In part it is because certain provisions have to be read in light of particular case law (often giving interpretations that might not be apparent to those seeking to apply for nationality).
"This means that it would be near impossible for an individual, without legal advice, to navigate this area of law and to understand their rights. Given the reduction in legal aid over recent years, there is a real risk that individuals will simply be denied meaningful access to their rights and access to justice because the law is inaccessible to non-specialists."
The Joint Committee on Human Rights recommends that the Home Secretary address the inaccessibility of British nationality law, including by introducing a consolidating piece of legislation to help individuals seeking to use and apply the statutes.