We have been granted permission to intervene before the Court of Appeal in The Secretary of State for the Home Department v K (a Child). This is the Secretary of State’s appeal against the High Court judgment, which held that section 50 (9A) of the British Nationality Act 1981 (‘BNA 1981’) is discriminatory and therefore incompatible with human rights obligations under Article 14 ECHR, as read together with Article 8.

Section 50 (9A) of the BNA 1981 states that if a woman is married at the time she gives birth to a child in the UK, for the purposes of British nationality law, her husband will be deemed to be the father of the child. This will be the case even if there is irrefutable proof that another man is the biological father, and even if the mother is separated from her husband at the time of the child’s birth. This child will not be entitled to British nationality through the biological father (unlike children of unmarried parents), but could make a paid, discretionary application under section 3(1) of the BNA 1981.

The Secretary of State is appealing the High Court decision, arguing that section 50(9A) of the BNA is not discriminatory, as the discretion under section 3(1) is sufficient to meet human rights obligations. In our intervention, we hope to show that this is not the case, and that depriving UK-born children of citizenship on this basis (or requiring them to go through additional hurdles and financial strain by making a discretionary application) places undue burden on children and families and is indeed discriminatory.

We are therefore requesting your help in gathering as many examples as possible of the following

1. Any cases where a child (or indeed an adult) has had a British passport refused or revoked on the basis of s. 50 (9A) of the BNA 1981. Please provide detail as to

i. Any detriment caused;

ii. Whether an application for discretionary registration was made under section 3(1) BNA 1981

iii. Was the application successful?

iv. If it was not made, why not?

2. Any cases where an application for discretionary registration was made under section 3(1) BNA 1981 where the biological father is British but the mother was married to someone else at the time of birth. Please provide detail as to the outcome of the application;

3. Any cases which do not fall into one of the above categories but where prejudice or detriment was caused to a child as a result of section 50(9A) BNA 1981.

The Court of Appeal hearing is due to be held on 5 or 6 November 2019, however our submissions and evidence have to be lodged before that date. We would be grateful if you could provide as many examples as possible by 17:00 on Monday 9 September.

Please email [email protected], quoting “evidence for intervention” in the header. Please provide the case name, reference number, and as much information as possible addressing the above points. If you are able to share any documents, we would be grateful. Information can be provided on a confidential basis, if the individual/client prefers.