|Part of the British Nationality Act 1981 found incompatible with Human Rights law
In the opening lines of K(A Child) V Secretary of the State for the Home Department(2018), it was 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 High Court in a recent judicial review decision, 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. The child has a British father and a Pakistani’s mother.
Initially the child was granted a British passport in 2014 but in 2017 the passport was revoked because the mother was still married to her husband who she fled from back in Pakistan. Section 50(9A) states that the child’s father is the husband, at the time of the child’s birth of the woman who gives birth to the child. Therefore the actual father cannot pass his citizenship to the child.
Section 3(1) of the 1981 Act does permit the secretary of the state to exercise their discretion in allowing the child to register for British citizenship where they see it fits. The court was asked to find that section 50(9A) was discriminatory under Article 14 ECHR. In order to engage Article 14 the test was to demonstrate there was a difference in treatment.
Helen Mountfield QC sitting as a deputy High court judge found that the law does not secure equal treatment that would be acquired by the child’s natural father’s citizenship. There is a clear difference in children born to mothers who are unmarried and those that are married.
In the evolving societal norms and structures of family life, the British Nationality Act 1981 has some catching up to do and where a child is born to a mother married to someone else, the Home Office has to consider beyond section 50(9A) of who the parent of the child is. It may well be the husband of the mother of the child but where this is not the case, the Home Office will now need to consider objective evidence, probably paternity tests, to demonstrate the actual father of the child. The Home Office can no longer considers these cases totally without merit.
This area of law has always been a grey area and dependent on the decision maker one may or may not succeed in their case. At least now there is more structure to these types of cases and children born to fathers who are not the husbands of their mother will not be denied their right to British citizenship. My only concern would be where the natural father is no longer present in the child’s life and a paternity test cannot be secured.