Nationality and Citizenship in UK Law

Although nationality is not a "trump card" it is of particular importance in assessing the best interests of any child. The UNCRC recognises the right of every child to be registered and acquire a nationality (Article 7) and to preserve her identity, including her nationality (Article 8).

This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them.

But what we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the State passing the legislation can lay its hands and, in addition, deprive them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the Courts of this country ought to refuse to recognise it as a law at all.

It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.

The discretion is wide enough to enable the court, if justice so requires, to make no order against the other party to the transaction or the person to whom the preference was given. In particular, if a foreign element is involved the court will need to be satisfied that, in respect of the relief sought against him, the defendant is sufficiently connected with England for it to be just and proper to make the order against him despite the foreign element.

Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another.

The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. All must depend on a fair assessment of the relevant facts.