Monthly Archives: May 2021

Proposed Changes To Nationality Law

Proposed Changes To Nationality Law

In March 2021, the British Government published its New Plan for Immigration (the Plan) and called for consultation (which is now closed). According to the Government, the Plans objectives are to:

  • Increase fairness and effectiveness within the immigration system to allow those seeking genuine asylum to be afforded better protection and support.
  • Deter illegal entry into the UK by making the business model used by human traffickers unsustainable.
  • Remove illegal migrants more easily.

Although the objectives concern asylum seekers, there are also proposed changes to nationality law. These are contained in Chapter Three of the Plan. Below is a breakdown of the Government’s proposals.

Ending Anomalies in the British Nationality Provisions

Although a child of a British Citizen could pass on their British Citizenship to their children, mothers were prevented from doing so until 1 January 1983. And until 1 July 2006, children born to British unmarried men could not acquire British nationality through their father. Provisions to rectify this were introduced for British citizens; however, they were not applied to children of British Overseas Territories Citizens (BOTC). Under the Plan, eligible children of BOTCs will be able to get British Citizenship and BOTC.

Furthermore, children entitled to British Citizenship through their biological father (while their mother was married to someone else at the time of their birth) will be able to register for British Citizenship, rather than rely on a discretionary immigration route. In addition, a discretionary adult registration route will be introduced allowing the Home Secretary to grant British Citizenship where there are compelling circumstances. The residence requirements may also be waived in cases where an unfair outcome would be achieved if discretion was not allowed (more on this below)

Finally, although genuinely stateless children will be able to acquire British Citizenship if they are born in the UK, have lived here for five years, and have never had another nationality, children of parents that fail to register their child in their own (the parents) nationality when they are legally able to do so will not be given British Citizenship. This proposal is concerning as it involves a child suffering the consequences of a parental or in the case where the child has been taken into care, a local authority’s decision. The consequences of statelessness are severe ; therefore, this proposed change is particularly harsh.

Support for the Windrush generation

When the Immigration Act 1971 (the 1971 Act) came into force, most of the Windrush generation did not qualify for the right of abode. However, if they lived in the UK on 1 January 1973, they would have acquired Indefinite Leave to Remain (ILR).

Not only were no documents or records concerning members of the Windrush generation touched by the change kept by the Home Office, the people affected were not given anything to show that they had been granted ILR. Many who went abroad were subsequently denied entry into the UK upon return.

Following the exposure of the Windrush scandal in 2018, those who had been forced to live abroad due to being denied re-entry were allowed to apply to come back to Britain as a Returned Resident and claim ILR immediately. However, they were not granted immediate entitlement to British Citizenship.

Because there is a requirement under the British Nationality Act 1981 that anyone applying for British Citizenship must have been in the UK on the date that falls exactly five years before their application was made, members of the Windrush generation who were effectively exiled now have to wait for five years upon returning to the UK for citizenship.

The Plan proposes that:

“We will also introduce further flexibility to waive residence requirements for naturalisation in exceptional cases. This will help individuals, including members of the Windrush Generation (who were not able to meet the residence requirements to qualify for British Citizenship through no fault of their own), to obtain British citizenship more quickly.”

This change will right an historic injustice for a generation of people who were forced to leave their home country and then, upon return, have thus far been denied the right to citizenship.

Final words

These proposed changes to British nationality law will affect many people. If any of the above situations apply to you or a member of your family, please seek expert legal advice immediately.

If you have questions about any of the points mentioned above, please phone our office on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.

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