JOINT

Share your expertise: British Nationality Act 1981 (Remedial) Order 2018

16 March 2018

The Joint Committee on Human Rights will examine a Government proposal on the British Nationality Act 1981 (Remedial) Order 2018 before both Houses of Parliament. 

What are Remedial orders?

Remedial orders are "fast-track" legislation made under the Human Rights Act 1998 to remove an incompatibility with Convention rights in primary legislation identified by either domestic courts or the European Court of Human Rights. 

This is a "non-urgent" remedial order, which means it will only take effect after its approval by both Houses of Parliament.

The issue

The purpose of the Government's proposal is to remove the incompatibility of section 41A of the British Nationality Act (BNA) 1981 with Convention rights. 

Section 41A of the BNA currently imposes a good character requirement for certain British nationality applications from those born overseas to a British parent. 

This discriminates by providing more lenient conditions for those born to a British father, than a British mother; and more lenient conditions to those born to married parents as compared with unmarried parents. 

In particular, section 41A of the BNA provides that an application for registration as a British citizen made under certain provisions in that Act, by a person aged 10 years of older, must not be granted unless the Secretary of State is satisfied that the applicant is of good character.  

The proposed British nationality Act 1981 (Remedial) Order 2018 therefore removes the good character requirement from registration pursuant to section 4C and 4G to 4I of the BNA, as well as from registration pursuant to section 4F of the BNA, in particular cases.

The Government considers that there are compelling reasons to amend the BNA by remedial order made under the power in section 10 of the Human Rights Act 1998 to take remedial action.

Legal background

This proposed remedial Order follows the cases of Johnson v Secretary of State for the Home Department [2016] UKSC 56 and R (on the application of David Fenton Bangs) v Secretary of State for the Home Department.

In Johnson v Secretary of State for the Home Department [2016], the Supreme Court found that it was incompatible with the right to non-discrimination, read with the right to private and family life, to impose a good character requirement on individuals who would, but for their parents' marital status, have automatically acquired citizenship at birth. 

The Supreme Court therefore issued a declaration of incompatibility. InR (on the application of David Fenton Bangs) v Secretary of State for the Home Department, the Secretary of State for the Home Department agreed to the making of a declaration of incompatibility, by way of consent order, in relation to the application of the good character requirement to registration for persons who would have automatically become UK citizens at birth had their mothers been able to pass on their citizenship (in the same manner as fathers). 

The Administrative Court approved the consent order containing the declaration of incompatibility on 4 July 2017.

Send us your views

The Joint Committee on Human Rights is required by its terms of reference to report to Parliament on any remedial order made under the Human Rights Act. 

The Committee will report on the draft proposal for a Remedial Order within 60 days of its publication.

The JCHR invites submissions of no more than 1,500 words from interested groups and individuals, including:

  • Whether the remedial order removes the incompatibility with Convention rights identified by the courts
  • Whether there are "compelling reasons" to use the remedial order process
  • Whether the non-urgent procedure is appropriate.

Please use the written submission form to submit your views.

Submissions should reach the Committee by 16 April 2018.

Further information

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