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Nationality And Borders Act 2022

Contents

Commentary on provisions of Act

Part 1: Nationality

Chapter 1: British Overseas Territories citizenship

Persons subject to immigration control: referral or assessment by local authority etc.

Section 1: Historical inability of mothers to transmit citizenship
  1. Overview: This section creates a registration route for the adult children of British Overseas Territories Citizen (BOTC) mothers to acquire British Overseas Territories citizenship
  2. Background: Before 1 January 1983 children could not acquire British nationality through their mother. While registration provisions have since been introduced to rectify this issue for the children of British citizens (section 4C of the British Nationality Act 1981), this was not changed for children of BOTCs.
  3. Subsection 1 inserts new section 17A into the British Nationality Act 1981 ("the 1981 Act"). This enables a person to be registered as a BOTC if they meet three conditions. These are that, had women been able to pass on citizenship in the same way as men: they would have been a citizen of the UK and colonies immediately prior to the introduction of the 1981 Act; they would have become a British dependent territories citizen under section 23(1)(b) or (c) of that Act; and they would have become a BOTC under section 2 of the British Overseas Territories Act 2002. The intention of these conditions is that a person who would have become a BOTC automatically, had women been able to pass on citizenship in the same way as men before 1983, will be able to register. Section 17A(4) of this provision removes the need for a person’s birth to have been registered under section 5 of the British Nationality Act 1948 had that provision benefited children of mothers. This change reflects the decision in the case of the Advocate General for Scotland v Romein.
  4. Subsection 2 provides that a person registered as a BOTC under new section 17A is a BOTC "by descent". A BOTC by descent cannot usually pass on their nationality to a person born outside of an overseas territory.
Section 2: Historical inability of unmarried fathers to transmit citizenship
  1. Overview: This section creates a registration route for the adult children of unmarried British Overseas Territories citizen (BOTC) fathers to acquire British Overseas Territories citizenship.
  2. Background: Before 1 July 2006 children born to British unmarried fathers could not acquire British nationality through their father. While registration provisions have since been introduced to rectify this issue for the children of British citizens (sections 4E to 4I of the British Nationality Act 1981), this was not changed for children of BOTCs.
  3. Subsection 1 inserts new sections 17B to 17G into the British Nationality Act 1981 ("the 1981 Act") to provide for registration as a BOTC for persons born before 1 July 2006 to a BOTC father, where their parents were unmarried at the time of their birth. In particular, the provisions provide an entitlement to be registered for those who would have become a BOTC automatically had their parents been married at the time of their birth and for those who would currently have an entitlement to registration were it not for the fact that their parents were not married at the time of their birth.
  4. Section 17B stipulates the general conditions to be met that the person’s parents were not married to each other at the time of their birth; that, in cases of assisted reproduction, no other person was treated as the person’s father; and that the person has never previously been a BOTC or a British Dependent Territories citizen.
  5. Section 17C entitles a person to be registered as a BOTC if the person meets the general conditions and would be entitled to be registered as a BOTC under the specified registration provisions of the 1981 Act had the person’s mother been married to the person’s natural father at the time of his or her birth. Section 17C(4) provides a power for the Secretary of State to waive the need for parental consent if the person would have been able to register under section 17(5) of the 1981 Act, had their parents been married.
  6. Section 17D entitles a person to be registered as a BOTC if the person meets the general conditions in section 17B and if, at any time after commencement of the 1981 Act, the person would automatically have become a BOTC at birth under the 1981 Act, had the person’s mother been married to the person’s natural father at the time of the person’s birth. Section 17D(3) requires that both parents provide consent for a child under 18 to make an application for registration. Section 17D(4) allows the preceding subsection to be read as a reference to either the person’s mother or natural father where the person’s father or mother has died on or before the date of the application, and section 17D(5) allows the Home Secretary to waive consent in the circumstances of a particular case.
  7. Section 17E entitles a person to be registered as a BOTC if the person meets the general conditions in section 17B; was a citizen of the United Kingdom and Colonies immediately before commencement of the 1981 Act; and would automatically have become a British dependent territories citizen and then a BOTC under the 1981 Act had the person’s mother been married to the person’s natural father at the time of the person’s birth.
  8. Section 17F entitles a person to be registered as a BOTC if the person meets the general conditions in 17B; is an eligible former British national (defined at section 17F(3)) or an eligible non-British national (defined at section 17F(4)); and would have automatically become a BOTC under the 1981 Act had the person’s mother been married to the person’s natural father at the time of the person’s birth.
  9. Section 17G contains supplementary provisions, including to stipulate that a person’s "natural father" is someone who satisfies the requirements as to proof of paternity (prescribed in regulations under section 50(9B) of the 1981 Act).
  10. Section 17G(3) stipulates which people registered as a BOTC under this registration route are BOTCs "by descent" and section 17G(4) stipulates which people applying for BOTC under the section 17C route must meet the good character requirements of section 41A.
Section 3: Provisions for Chagos Islanders to acquire British Nationality
  1. Overview: This section allows direct descendants of Chagos Islanders, to make an application to be registered as both British Overseas Territories citizens (BOTCs). The application must be submitted within five years of commencement or in the case of minors or those born within five years of commencement, before they reach the age of 23. Applicants who meet the requirements to be registered as a BOTC under this section will also qualify for British citizenship under section 4K.
  2. Background: Since 1971 those born on the British Indian Ocean Territory (BIOT) have been unable to reside there and by 1973 all residents of the BIOT had been relocated outside of British territory. While the first generation born outside British territory acquired British nationality by descent from their parents, subsequent generations have been unable to acquire British nationality through their link to BIOT due to the limitation on British nationality being passed on beyond the first generation born outside UK territory.
  3. This section inserts new section 17H into the British Nationality Act 1981 ("the 1981 Act") to provide for registration as a BOTC for anyone who is directly descended from a person who was born in the British Indian Ocean Territory ("BIOT").
  4. Section 17H entitles a person to be registered as a BOTC, if they are the direct descendant of a person who was a Citizen of the UK and Colonies because they were born in the BIOT; and they have never been a BOTC or a British Dependent Territories citizen. Section 17H(2) requires an application under this section to be made within a specified timeframe. The timeframe for a person over the age of 18 on the date this section is commenced is five-year period beginning with the commencement date. The timeframe for a person under the age of 18 on the date of commencement or for a person born within five years of the commencement date is before they reach the age of 23. Section 17H(3) defines "commencement date" as the date section 17H comes into force.
Section 4: Sections 1 and 2: related British citizenship
  1. Overview: This section creates a registration route as a British citizen for people who have registered as a BOTC under the new routes introduced by sections 1, 2 and 3.
  2. Background: In 2002 all those with BOTC status additionally became British citizens by virtue of section 3 of the British Overseas Territories Act 2002 ("the 2002 Act"). Those who were unable to become BOTCs, due to the fact that women could not pass on citizenship, or because their parents were not married, were also unable to become British citizens under the 2002 Act.
  3. Subsection 1 inserts new section 4K of the British Nationality Act 1981 ("the 1981 Act"). This enables a person to be registered as a British citizen if they are registered as a BOTC under sections 17A, 17C, 17D, 17E, 17F or 17H (introduced by sections 1, 2 and 3) or would be entitled to be registered as a BOTC under any of those sections, but for the fact that they have already become a BOTC under a different provision. This provision does not apply to BOTCs who acquired or would have acquired that status solely through the Sovereign Base Areas of Akrotiri and Dhekelia (a British Overseas Territory on the island of Cyprus), as these BOTCs did not benefit from section 3 of the 2002 Act (subsection 4K(2)). This provision also amends section 14 of the 1981 Act, to specify which persons registered as British citizens under this provision hold that status by descent (subsection 4K(3)). Those who acquire BOTC status on the basis that they would have qualified for registration as a BOTC, rather than automatically, had their parents been married will need to meet a good character requirement if there was one for the relevant registration provision (section 4K(4)).
  4. Subsection 2 stipulates which people registered as a British citizen under this registration route are British citizens "by descent".
  5. Subsection 3 stipulates which people applying for British citizenship under this provision must meet the good character requirements of section 41A.
Section 5: Period for registration of person born outside the British Overseas Territories
  1. Overview: This section amends subsection 17(2) of the British Nationality Act 1981 ("the 1981 Act") to remove the requirement that an application for the registration of a child as a British Overseas Territories citizen (BOTC) must be made within 12 months of the birth.
  2. Background: Subsection 17(2) provides a registration route for a child whose parent is a BOTC "by descent" (see paragraph 83 for meaning of "by descent") and had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application under this route must be made within 12 months of the child’s birth. The parallel provision for British citizens (subsection 3(2)) was amended in 2009, replacing the requirement for the application to be made within 12 months of the child’s birth (or within six years at the Secretary of State’s discretion) with a requirement for the application to be made while the child is a minor. This provision amends the BOTC registration route in the same way.
  3. Subsection 1 amends subsection 17(2) of the 1981 Act by removing the requirement for the application to be made within 12 months of the birth and replacing it with a requirement for the application to be made while the child is a minor. The second part of that subsection removes subsection (4) of section 17, which provided for the registration period to be extended from 12 months to six years, as this is no longer needed.
  4. Subsection 2, as a consequence, amends subsection 41A(2) of the 1981 Act to include subsection 17(2) in the list of provisions which have a good character requirement.

British Citizenship

Section 6: Disapplication of historical registration requirements
  1. Overview: This section amends sections 4C and 4I of the British Nationality Act 1981 ("the 1981 Act"), so that the requirement for a person’s birth to have been registered within 12 months at a British consulate is to be ignored when assessing whether they would have become a citizen of the UK and Colonies under the British Nationality Act 1948 ("the 1948 Act"), had women and unmarried fathers been able to pass on citizenship at the time of their birth.
  2. Background: Under the 1948 Act, citizenship could normally only be passed on for one generation to children born outside of the UK and Colonies. However, paragraph 5(1)(b) of the 1948 Act permitted it to be passed on to a further generation if the child was born in a foreign country and their birth was registered within a year at a British consulate. The child of a British mother or unmarried British father could not be registered, because they were unable to pass on citizenship at that time. This section amends the 1981 Act, so that applications under section 4C (British mothers) and section 4I (unmarried fathers) will not be refused solely because the requirement to register the birth within a year has not been met. This reflects the decision in the case of the Advocate General for Scotland v Romein.
  3. Subsection 1 amends section 4C of the 1981 Act so that the requirement in paragraph 5(1)(b) of the 1948 Act, to register a person’s birth at a United Kingdom consulate, does not apply.
  4. Subsection 2 amends section 4I so that the requirement in paragraph 5(1)(b) of the 1948 Act, that a person’s birth is registered at a United Kingdom consulate, does not apply.
Section 7: Citizenship where mother married to someone other than natural father
  1. Overview: This section amends the British Nationality Act 1981 ("the 1981 Act") to provide an entitlement to British citizenship for individuals who were previously unable to acquire it because their mother was married to someone other than their biological British citizen father at the time of their birth. This addresses the decision in the case of K (A child) v Secretary of State for the Home Department, which found that, in these circumstances, the definition of father in the 1981 Act was incompatible with Article 8 (read with Article 14) of the European Convention on Human Rights.
  2. Background: Subsection 50(9A) of the 1981 Act defines who is a "father" for the purposes of determining the nationality of the child. "Father" is either: the husband (or male civil partner) of the child’s mother at the time of the child’s birth, or the person treated as the father in IVF cases. If neither of those situations apply, the father is someone who can provide proof of paternity. This means that where the child’s mother is married to someone other than the child’s natural father, her husband is the child’s father for nationality purposes, even if not biologically related to the child.
  3. The above definition of "father" came into force on 1 July 2006. Before then, "father" was only defined as the husband of the child’s mother. Therefore, where the child’s biological parents were unmarried, the child could not take on the father’s British Citizenship.
  4. Remedial registration routes were subsequently inserted into the 1981 Act to allow the children of unmarried fathers born prior to 1 July 2006 to register as British citizens. These provisions are set out at sections 4E – 4J of the 1981 Act.
  5. This section is intended to create an entitlement to British citizenship for children born on or after 1 July 2006 who did not become British because their mother was married to someone other than their natural father. By removing the 1 July 2006 cut-off date for registration under sections 4F – 4I, they will be able to apply.
  6. Section 4D of the 1981 Act provides a registration route for children who were born outside of the UK and qualifying British Overseas Territories to members of the British armed forces, serving outside the UK and qualifying territories. Currently, a child does not qualify under this provision where their mother was married to someone other than their biological father at the time of the child’s birth. This will also be remedied by this section.
  7. Subsection 1 removes the 1 July 2006 date applicable to the remedial registration routes set out at 4F-4I, thereby providing those born on or after 1 July 2006 with an entitlement to British citizenship. Removing the date brings the later introduced Human Fertilisation and Embryology Act 2008 into scope. This subsection therefore inserts a reference to the 2008 Act.
  8. Subsection 2 adds section 4D to the list of instances where a person may be entitled to be registered as a British citizen (section 4F of the 1981 Act). This enables a child of a member of the British Armed Forces to make an application to register as a British citizen despite their mother being married to someone other than their biological father at the time of their birth.
  9. Subsection 3, as a consequence, amends section 41A(1A) of the 1981 Act to include section 4D in the list of registration provisions under section 4F which have a good character requirement.

Powers of the Secretary of State relating to citizenship etc.

Section 8: Citizenship: registration in special case
  1. Overview : This section creates new registration provisions which allow the Secretary of State to grant British citizenship and/or British overseas territories citizenship to adult applicants if, in the Secretary of State’s opinion, the person would have been or would have become a British citizen and/or a British overseas territories citizen ("BOTC") had it not been for: historical unfairness in the law; an act or omission of a public authority; or other exceptional circumstances relating to the person’s case.  
  2. Background :  The Secretary of State already has a power to register minors as British citizens by discretion under section 3(1) of the 1981 Act. No such power exists to grant citizenship by discretion to adults.   
  3. This section allows for the grant of British citizenship and/or British overseas territories citizenship to a person who does not meet the existing naturalisation or registration requirements and is intended to benefit those who would have qualified for automatic acquisition of citizenship or who would have met the naturalisation or registration requirements, were it not because of, for example, unintended consequences caused by historical legislation or the result of the act or omission of a public body.  
  4. Subsections 2 and 3 insert new sections 4L and 17H creating registration provisions which allow certain adults to be registered as British citizens and/or BOTCs. Under these provisions, British citizenship and/or British overseas territories citizenship may be granted where in the Secretary of State’s opinion, the person could have been or become a British citizen and/or BOTC but for past unfairness in the law (including where men and women were unable to pass on citizenship equally, and unmarried fathers could not pass on citizenship), an act or failure to act by a public authority, or exceptional circumstances relating to the person’s case. Sections 4L(4) and 17H(4) allow the Secretary of State to take into account whether the applicant is of good character where applicable.  
Section 9: Requirements for naturalisation etc.
  1. Overview: This section enables the Secretary of State to waiver a requirement for naturalisation as a British citizen under section 6, naturalisation as a British Overseas Territories citizen under section 18 and registration as a British citizen under section 4 of the British Nationality Act 1981 ("the 1981 Act"), namely to have been present in the UK (or British Overseas Territory) at the start of the applicable residential qualifying period.
  2. Background: Section 6 of the 1981 Act gives the Home Secretary the power to grant a certificate of naturalisation to an adult. The requirements for naturalisation are set out at Schedule 1 to the 1981 Act. There is a requirement to complete a period of either three or five years’ residence in the UK (or a British Overseas Territory) before an application can be made (this is the residential qualifying period). The individual must have been present in the UK (or British Overseas Territory) at the beginning of the residential qualifying period.
  3. Section 4 of the 1981 Act, a provision for registration of British nationals as British citizens, has residence requirements which mirror those for naturalisation and so will be amended in line. Similar provisions exist for naturalisation as a British Overseas Territories citizen, at section 18 of the 1981 Act.
  4. The rationale behind these requirements is that an individual must be able to demonstrate a sustained connection with the UK (or British Overseas Territory), although absences up to a specified number of days are permitted by the legislation.
  5. The Secretary of State has the power to waive the requirement relating to the maximum number of days absence and to treat this requirement as fulfilled in the special circumstances of a particular case (set out at paragraphs 2 and 6 of Schedule 1 to the 1981 Act for British citizenship and BOTC, respectively, and in section 4(4) for registration).
  6. There is currently no power to waive the requirement to have been present in the UK at the start of the qualifying period (except in relation to applications for naturalisation as British citizens from current or former members of the armed forces). This presents a barrier in otherwise deserving cases.
  7. This section amends the 1981 Act to allow the Secretary of State to waive the requirement that the individual must have been present in the UK or relevant territory at the start of the qualifying period in the special circumstances of a particular case. This waiver will be introduced in relation to the requirements to naturalise as British citizen under section 6 of the 1981 Act, naturalise as a British Overseas Territories citizen under section 18 of that Act, or register as a British citizen under section 4 of that Act.
  8. Subsection 1 sets out that Schedule 1 amends the 1981 Act to allow this requirement to be waived for sections 4, 6 and 18.
  9. Subsection 2 removes provisions in the Borders, Citizenship and Immigration Act 2009, which have never been commenced and are no longer required.
  10. Subsection 3 removes the section of the Citizenship (Armed Forces) Act 2014 which amends section 39 of the Borders, Citizenship and Immigration Act 2009, relating to the uncommenced earned citizenship provisions.
Section 10 – Notice of a decision to Deprive a person of British Citizenship
  1. Overview: This section amends section 40 of the British Nationality Act 1981 ("the 1981 Act") to allow a decision to deprive a person of British citizenship to be made in the absence of contact with the person and to ensure that the associated deprivation order is valid. This section also ensures that any deprivation order made before subsections (2) to (4) of section 10 come into force remains valid where the person was not notified of the decision to deprive in accordance with section 40(5) of the 1981 Act. This section also confirms that those affected by the new provisions still have a right of appeal against the decision to deprive them of citizenship. This is necessary following the High Court judgment in D4 v Secretary of State for the Home Department [2021] EWHC 2179 in relation to regulation 10(4) of the British Nationality (General) Regulations 2003 (S.I. 2003/548). Regulation 10(4) provides that notice of a deprivation decision is deemed to have been given in certain circumstances when it is placed on a person’s Home Office file. The judgment found regulation 10(4) to be ultra vires s.40(5) and s.41(1) of the 1981 Act and therefore void and of no effect. As a consequence, the Court declared the deprivation order made in that case to be null and void.
  2. Background: The aim of this section is to provide a means of depriving a person of their British citizenship where it is not possible to give, or there are reasons for not giving, prior notice of the deprivation decision, as specified in subsection (2). This is necessary to ensure that deprivation powers can be used effectively in all appropriate circumstances including, for example, where a person is no longer contactable by the Home Office. The aim of section 10 is also to ensure that deprivation orders made before subsections (2) to (4) come into force remain valid and cannot be declared null and void. It might otherwise be possible for a person to effectively have their British citizenship reinstated and, if overseas, travel back to the UK. The implications of this would be significant, particularly in cases where a decision to deprive a person of citizenship has been made on the basis that the person poses a threat to national security.
  3. Subsection 1 defines "the 1981 Act" as meaning the British Nationality Act 1981.
  4. Subsection 2 inserts new sections 40(5A) to 40(5E) into the 1981 Act. New section 40(5A) disapplies the requirement to give notice of the decision to deprive, in specified circumstances. These specified circumstances are: where the Secretary of State does not have the information needed to be able to give notice and where the Secretary of State reasonably considers it necessary in the interests of: national security, the investigation or prosecution of organised or serious crime, preventing or reducing a risk to the safety of any person or the relationship between the UK and another country, that notice should not be given. New section 40(5B) clarifies that references to giving notice are to giving notice in accordance with whichever regulations are in force at the relevant time. New sections 40(5C) and 40(5D) create an obligation for the Secretary of State to give notice, under the same terms as in section 40(5), if a person in respect of whom a deprivation order has been made subsequently makes contact with the Home Office. New section 40(5E) inserts a new Schedule 4A in the 1981 Act which provides that the Special Immigration Appeals Commission considers decisions by the Secretary of State not to give notice of deprivation or late notice after a deprivation order has already been made.
  5. Subsection 3 inserts a new section 40A(1) into the 1981 Act. The effect of this amendment is to preserve the right of appeal in section 40A of the 1981 Act for those who are not given notice of a decision to deprive them of British citizenship under section 40(5). Subsection 3 also inserts a new subsection 2A into section 40A of the 1981 Act which clarifies that the timescales for lodging an appeal against a deprivation notice do not start until a notice is given.
  6. Subsection 4 inserts Schedule 2 of this Act into the 1981 Act as a new Schedule 4A.
  7. Subsection 5 removes regulation 10(4) of the British Nationality (General) Regulations 2003 (S.I. 2003/548) which provides that notice of a deprivation decision is deemed to have been given in certain circumstances when it is placed on the person’s Home Office file.
  8. Subsection 6 provides that a deprivation order made before subsections (2) to (5) come into force remains valid where the person was not notified of the decision to deprive in accordance with section 40(5).
  9. Subsection 7 defines the term "pre-commencement deprivation order" used in this section as an order made before subsections (2) to (5) of this section are commenced.
  10. Subsection 8 provides that a person has a right of appeal against a decision to deprive them of their citizenship where subsection (6) applies to the deprivation order made in relation to them.

Registration of stateless minors

Section 11: Citizenship: stateless minors
  1. Overview: This section amends Schedule 2 to the British Nationality Act 1981 ("the 1981 Act") to introduce a new requirement for the registration of a stateless child (aged 5 to 17) as a British citizen or a British Overseas Territories citizen (BOTC) and maintains the existing requirements in relation to those aged 18 to 22.
  2. Background: Provisions for reducing statelessness within the nationality framework are set out at section 36 and Schedule 2 of the 1981 Act. Specifically, paragraph 3 of Schedule 2 to the 1981 Act provides for a stateless child born in the UK or an overseas territory to be registered as a British citizen or BOTC. The conditions which apply to this provision include, amongst others, a residential requirement and a requirement that the individual has always been stateless.
  3. There have been cases where parents have chosen not to register their child’s birth, which would have acquired their own nationality for their child, which means that the child can register as a British citizen under the statelessness provisions.
  4. This section ensures applicants are unable to take advantage of the statelessness provisions by choosing not to acquire their own nationality for their child. This is achieved by adding a requirement that the Secretary of State be satisfied that the child cannot reasonably acquire another nationality.
  5. Subsection 1 notes that the section amends Schedule 2 to the 1981 Act.
  6. Subsections 2 and 3 amend the age requirements at paragraph 3 of Schedule 2 to the 1981 Act, from having to be aged under 22, to having to be aged between 18 and 22.
  7. Subsection 4 inserts new paragraph 3A into Schedule 2. This provision applies to those aged between 5 and 17 and mirrors the registration provision at paragraph 3 (as described above), with an additional requirement that the Secretary of State be satisfied that the child cannot reasonably acquire another nationality. Paragraph 3A(2) provides that a person is able to acquire a nationality where: that nationality is the same as one of the parents’; the person has been entitled to acquire that status since birth; and in all the circumstances, it is reasonable to expect them (or someone acting on their behalf) to take steps to acquire that nationality.

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