Fundamental Changes to British Nationality Law (part 3 of 3)
This article is part of the ‘Fundamental Changes to British Nationality Law’ series, which provides a detailed summary of the most recent changes to British nationality law.
Part 1 covers:
Fundamental Changes to British Nationality Law (Introduction)
An Overview of Part 1 (Nationality) of the Nationality and Borders Act 2022
A Brief History of British Nationality Law
Part 2 covers:
A New Right to Register as a BOTC
The Chagos Islands/British Indian Ocean Territory
BOTC’s Right to Register as British Citizens
Acquiring British Citizenship not Through a Biological Father
This part covers:
A Discretionary Power to Register Adults
Power to Waive Requirements for Naturalisation Applications
Deprivation of Citizenship Status
Citizenship: Stateless Minors
This is part 3 of 3.
A Discretionary Power to Register Adults
Section 3 (1) of the British Nationality Act 1981 confirmed that:
‘if while a person is a minor an application is made for his registration as a British citizen, the Secretary of State may, if he thinks fit, cause him to be registered as such a citizen.’
Section 8 of the new Act amended the above section. It expanded the Secretary of State’s discretionary power to register adults under certain circumstances. For example, where in the decision-maker’s opinion, a person would have been or would have become a British citizen and/or a BOTC had it not been for:
- “historical legislative unfairness”;
- “an act or omission of a public authority”; or “exceptional circumstances relating to” this person.
This section was introduced to tackle the problem in Windrush cases where often the Secretary of State was herself the cause of the applicant’s absences from the UK.
Power to Waive Requirements for Naturalisation Applications
Section 9 and Schedule 1 of the new Act give the Secretary of State unprecedented power to waive the physical presence requirement.
What is the Physical Presence Requirement?
According to Schedule 1(2)(a) of the British Nationality Act 1981, the applicant needs to prove that they were in the United Kingdom at the beginning of the period of five years ending with the date of the application.
For example, suppose someone came to the UK as a skilled worker in 2015, got their Indefinite Leave to Remain in 2021 and intends to apply for British citizenship on 1 September 2022. In that case, they need to prove that they were physically present in the UK on 1 September 2017 (- 5 years). Spouses of British citizens will need to deduct 3 years from this date: 1 September 2019 (- 3 years).
Section 9 allows the decision-makers to waive these requirements when considering registration applications under:
- section 4 of that Act (acquisition of British citizenship by registration: British overseas territories citizens etc),
- section 6 of that Act (acquisition of British citizenship by naturalisation), or
- section 18 of that Act (acquisition of British overseas territories citizenship by naturalisation).
Deprivation of Citizenship Status
Section 10 of the 2022 Act inserts a new subsection into section 40 of the British Nationality Act 1981.
Since 2006 the Secretary of State could deprive any Citizenship of its citizenship if she could prove that this deprivation is conducive to the public good.
When is a Person’s Presence in the UK not Conducive to the Public Good?
According to the Home Office, a person’s presence may be non-conducive to the public good for various reasons. For example, because of their criminal identity or travel history.
Also, when a person:
- is a threat to national security. This includes involvement in terrorism and membership in proscribed organisations;
- has engaged in extremism or other unacceptable;
- is associated with individuals involved in terrorism, extremism, war crimes or criminality
- cannot travel because they are the subject of an international travel ban which the United Nations (UN) Security Council or the European Union (EU), or an immigration designation (travel ban) made under the Sanctions and Anti-Money Laundering Act 2018 imposed on them.
Deprivation Without Notice
According to section 10 of the 2022, which inserted several subsections into section 40 of the 1983 Act, the Secretary of State may deprive a person of their British citizenship without giving them notice. She can do so when she does not have the information needed to give notice. Also, when she reasonably considers it necessary not to give notice, in the interests of national security, relations with another country, or otherwise in the public interest.
In this case, the Secretary of State will need to make an application to the Special Immigration Appeals Commission. The Special Immigration Appeals Commission will need to apply judicial review principles and determine whether the view of the Secretary of State is ‘obviously flawed’. Once such a deprivation order is made, the Secretary of State is under the obligation for a period of time to continue to review the order and whether to give notice to the individual.
Before Making a Deprivation Order
The newly created section 40(5) of the 1983 Act imposes notice requirements that must be met before the Secretary of State can make an order:
(5) Before making an order under this section in respect of a person, the Secretary of State must give the person written notice specifying—
(a) that the Secretary of State has decided to make an order
(b) the reasons for the order, and
(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).
Citizenship: Stateless Minors
Final Section 11 deals with stateless minors.
Before the 2022 Act came into force, Schedule 2(3) of the British Nationality Act 1981 confirmed that if a person is born in the UK, then they are entitled to be registered if they are under 22. This is provided they can prove that they have always been stateless and were in the UK over the last five years.
Section 10 limits this previous rule to those between 18 and 22. It also requires that a child aged 5 to 17 will not qualify for registration if they could reasonably acquire another nationality.
The 2022 Act has inserted the provision because foreign national parents with children born in the UK often decided not to make applications for their child to acquire their nationality. Instead, they registered them as British citizens under Schedule 2(3) of the British Nationality Act 1981.
For example, in 2015, there were only 10 applications under Schedule 2(3) of the British Nationality Act 1981. In 2021 the number grew to over 1,000 a year.