K (a child) v SSHD [2018] EWCH 1834 (Admin)

This case concerned paternity of a child for the purposes of acquiring British citizenship. K’s passport was withdrawn and she was informed that she was not ‘British’ even though she could prove by DNA that her father is British. Section 50(9A) of the British Nationality Act 1981 says that if a woman is married at the time of a child’s birth, for the purposes of British nationality law, her husband will be deemed to be the father, even if there is irrefutable proof that another man is the biological father.

On K’s application for judicial review, the Administrative Court declared that section 50(9A) of the British Nationality Act 1981 (the BNA) is incompatible with Article 14 ECHR, read with Article 8 ECHR because it discriminates unlawfully against children whose mothers are married to a man other than the child’s father when the child is born. An affected child will not be entitled to British nationality through the biological father but could apply to be registered at the ‘discretion’ of the Home Secretary, at a fee currently of over a thousand pounds (£1012) and, if aged over 10 years subject to a requirement to be of ‘good character’. The judge concluded that although ‘certainty’ under the law was a legitimate aim, the aims did not justify such a fee nor the risks associated with the discretion whether to grant citizenship rather than a right to claim it as the child of a British citizen.

The Secretary of State appealed. Permission was granted on the basis that it was arguable that the judge had failed to consider the wider impact of her conclusions on, for example, children born through surrogacy.  However, the appeal was later withdrawn with the effect that the declaration made by the court below remains in place

Alex Burrett acted for K in the High Court instructed by Hina Kargar of Lawlane solcitors


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