Windrush scandal exposes what may lie ahead for children born in the UK growing up without citizenship

Solange Valdez-Symonds, PRCBC and Steve Valdez-Symonds, Amnesty International UK
/ 6 mins read

Last year, we wrote about the many barriers to stateless children born in the UK exercising their right to register as British citizens. Those barriers include lack of awareness, evidential demands, a prohibitive fee and the absence of legal aid provision.

The relevance of Windrush

Nearly twelve months on, the Windrush scandal has more clearly exposed just how important it is that children, their parents and carers, are made aware and enabled to exercise their rights to register as British.

Officials and others have blighted the lives of many of the Windrush Generation and their descendants by refusing, over several months and years, to recognise their right to live in the UK. This terrible episode highlights both the importance of being able to prove one’s status and the precarious nature of being subject to immigration powers.

It is, therefore, a further scandal that Government continues to permit such significant barriers to children registering entitlements to British citizenship in the wake of all that must now be clear about the consequences of their growing up in the UK without citizenship.

There are further reasons why registration of citizenship is so important in the case of stateless children. They have no other nationality to fall back on. Yet these children stand to lose their right to register, at least on the basis of their statelessness under paragraph 3 of Schedule 2 to the British Nationality Act 1981, on reaching 22 years of age.

UN Convention on the reduction of Statelessness

Section 36 and Schedule 2 to the 1981 Act make provisions for reducing statelessness. As the title and content of both the section and Schedule indicate, these provisions are intended to give effect in domestic law to the UK’s obligations under the 1961 UN Convention on the reduction of Statelessness.

Article 1 of the Convention provides a signatory State with a choice. It may provide for nationality to be granted at birth by operation of law to a stateless person born in its territory. This was, of course, the position in UK law which applied jus soli up until the commencement of the British Nationality Act 1981 on 1 January 1983.

Alternatively, the State must provide a person born stateless on its territory the right to apply for its nationality. In this case – subject to certain specified conditions which the State is permitted to apply – the granting of nationality to an applicant is mandatory. Article 1(b) includes:

Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.

At least some of the barriers to the registration of stateless children as British citizens may, therefore, be challenged as contrary to international law as adopted by the 1981 Act. Such a challenge seems especially strong in relation to the registration fee, currently £1,012 for a child or £1,206 for an adult (under 22 years of age), most of which is profit to the Home Office over and above its administrative costs.

Last year, the High Court confirmed in MK v Secretary of State for the Home Department [2017] EWHC 1365 (Admin) that statelessness meant no more than being without a nationality. Still, to show statelessness it is necessary to show the young person does not have any of the nationalities of her or his parents. The court made helpful observations on the need for some flexibility as regards evidential demands.

Children of EU citizens among those who are stateless

The significance of registration is only likely to affect more children and young people when the UK leaves the European Union. EU citizens have for many years been free to enter the UK. Many have done so and settled here. Children born in the UK to a parent with permanent residence are born British. However, some parents may not have acquired documentation to affirm their permanent residence and some EU citizens may be yet to acquire that status.

Subject to the nationality laws of a child’s parents’ country of nationality, a child born to an EU citizen who does not have permanent residence may be born stateless. Other children may have a nationality – whether as British citizens or nationals of the country of their parents’ nationality – yet be unable to establish this.

The legal complexities may be exacerbated where a parent has multiple nationalities or is a national of a non-EU country.

This may all be especially problematic for children who are separated, more so if estranged, from one or both parents. Children in care and children whose parents have separated due to domestic violence are among those at particular risk of being unable to establish the nationality of their parents.

Statelessness across generations

Problems inevitably pass on from one generation to the next because someone who grows up with uncertain nationality is thereby effectively unable to pass on nationality to her or his child.

The consequences of not being able to establish citizenship have been cruelly exposed by what has happened to many of the Windrush Generation. People have lost jobs and homes, been refused access to healthcare and social assistance, and been detained to be removed from the country altogether.

People, and their descendants, who are or appear to be stateless are at risk of the very same consequences. For someone born in the UK, often growing up with no reason to think they are not British citizens just like their schoolmates and friends, discovering otherwise can be very distressing, constituting a challenge to a young person’s very identity.

The importance, therefore, that Government, local authorities, legal advisers and others should be giving to ensuring that stateless children and indeed other children born in the UK are enabled to exercise their right to register as British citizens cannot be overstated.

The longer time passes, without the right being exercised, the greater the risk the young person’s life will be damaged – whether because she or he is deprived of some social or public good such as the right to work or access university on home student fees; or because she or he is subject to immigration powers like detention and removal from the country.

Other rights of registration

As we have previously highlighted, paragraph 3 of Schedule 2 to the 1981 Act is not the only nationality provision that may be relevant to someone born stateless in the UK.

Section 1(4) of the 1981 Act, in particular, applies to any child born in the UK who lives here for the first 10 years of her or his life. Importantly, once the entitlement to register under section 1(4) is acquired it continues throughout the person’s life subject only to a good character requirement.

Section 1(4) is in some ways more accessible than paragraph 3 of Schedule 2. There is no need to establish statelessness. The legal and evidential difficulties in establishing the nationality of parents and the nationality laws of the countries of parents’ nationality do not, therefore, apply.

However, registration under paragraph 3 of Schedule 2 comes with no good character requirement and a child or young person may be registered after a period of five years in the UK.

As with all entitlements to register, it is ordinarily in the child’s best interests to register as soon as possible. Delay only prolongs the period during which the child is at potential risk of being subject to immigration powers and increases the chance the child will have difficulties in being able to evidence matters such as past presence in the UK.

Of course, not every stateless child in the UK will have been born here. In the case of a stateless child, who was born elsewhere, there may be strong grounds for registration under section 3(1) of the 1981 Act. Section 3(1) only applies to children. It is a matter for the Home Secretary’s discretion but intended to provide a means by which children can acquire British citizenship where their future clearly lies in the UK.

Since a child who is stateless will by that fact face evident barriers to relocating, growing up and living elsewhere, there would ordinarily be strong grounds for registering the child as British under section 3(1) – particularly where the child has lived for any significant period of time in the UK.

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