Article by Adrian Berry, Barrister of Garden Court Chambers, London (12 September 2021)
Adrian points out another area that the Nationality and Borders Bill could be used to correct and out of sync issue in the British nationality Act 1981. Let's hope the Home Office, MP's and Ministers take note, and see this bill the chance via amendments to put right things that cause others much pain and anxiety.
Adoption and British Nationality Law: The Need to Amend
Introduction British nationality law is out of kilter with adoption law in England and Wales. In those countries an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.
A Slip Obviously, this is a slip. This adoption law was enacted some 20 years after the relevant nationality law and apparently, the inconsistency it created was overlooked. It has never been suggested that adoption law and British nationality law should be out-of-step where a court in England or Wales authorises a person to be adopted by a British citizen parent. The stated problem is not merely theoretical. There are real victims, including a university graduate who was 18 but not yet 19 when adopted by her aunt (after her mother died of cancer) and who will have no basis on which to enjoy family life in the UK with her new adoptive mother once her student status has ended. The problem needs correcting.
An Uncontroversial Amendment Needs to be Made At the time of writing, the Nationality and Borders Bill (Bill 141 2021-2022) is before the UK House of Commons. It is the perfect vehicle to make this correction. The correction is not controversial or on an issue that divides legislators on party lines. Rightly, it should command support across the House of Commons.
The Effect of the Amendment The amendment would bring British nationality law into line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19 and the adoptive parent is a British citizen, British citizenship is conferred automatically on the person adopted. Note that no adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 when the adoption order is made, and not yet 19.
The Case Against It is no answer to the problem to say that an 18-year old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed section 4L of the British Nationality Act 1981 (found in clause 7 of the Nationality and Borders Bill).
The problem relates to those persons should be treated as British citizens automatically from the date of their adoption by a British citizen. That is what Parliament intended. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is a risk that such an application may be overlooked, or may be refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated.
The Solution The sole solution is to make the simple amendment proposed and to align British nationality law with adoption law. The Position under section 47(9) of the Adoption and Children Act 2002 (9) An adoption order may not be made in relation to a person who has attained the age of 19 years. The Existing Position under s 1(5) of the British Nationality Act 1981 (5) Where—
( a ) any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory makes an order authorising the adoption of a minor who is not a British citizen; or
(b) a minor who is not a British citizen is adopted under a Convention adoption, that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be effected under the law of a country or territory outside the United Kingdom. (italic emphasis supplied) The Proposed Amendment 7A Acquisition of British citizenship by adoption
The British Nationality Act 1981 is amended as follows.
In section 1 (Acquisition by birth or adoption.), in subsection (5)(a), for “minor” substitute “person”.
In section 1 (Acquisition by birth or adoption.), in subsection (5), for “that minor shall” substitute “ that person or minor (as the case may be) shall”.
The Result of Amendment: The British Nationality Act 1981 Revised (5) Where—
(a) any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory makes an order authorising the adoption of a person who is not a British citizen; or
(b) a minor who is not a British citizen is adopted under a Convention adoption, that person or minor (as the case may be) shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be effected under the law of a country or territory outside the United Kingdom.
(italic emphasis supplied)