What do the children denied the right to nationality through their British parents tell us about citizenship?

Michaela Benson [MB]: Welcome to “Who do we think we are?”, a podcast exploring some of the forgotten stories of British citizenship. I am your host, Michaela Benson, a sociologist specialising in citizenship, migration and belonging, and professor in public sociology at Lancaster University. Join me over the course of the series as I debunk the taken-for-granted understandings of citizenship and explore how thinking differently about citizenship helps us to make sense of some of the most pressing issues of our times.

Tabitha Sprague [TS]: My half sister was able to have citizenship through her dad because she was born in marriage, but I wasn't. So I remember thinking, why should I have to suffer because of the way I was born? I couldn't have citizenship through our father, but she could.

MB: That was my guest on today's show, Tabitha Sprague, who joined me online to discuss her journey to secure British citizenship. She is based in New York and is in her late 40s. And as she'll explain in more detail, she started to look into British Nationality legislation when she realised that there was something just not quite right about the fact that although she was born to a British citizen father, she wasn't eligible for British citizenship. And this led her to campaign for changes to British Nationality legislation, which took years to realise.

I was introduced to Tabitha by Dave Varney and Trent Miller. Dave and Trent run the British Overseas Territory citizenship campaign, and I hope we're going to be hearing from them in a future episode. But what really sparked my interest was that they could not say enough about how Tabitha had paved the way for them to push for changes to remove the remaining discrimination within nationality law, that meant that Trent and others like him were not eligible for British Nationality because they were born out of wedlock—outside of British territories—to British Overseas Territory citizen fathers. And that's all over a little bit of a mouthful, I know. But we'll be exploring that history in a little bit more detail in Episode 10. But it's the backstory to this—the history to this—that I'll be exploring today in my conversation with Tabitha.

It wasn't until 2014, and the success of Tabitha is campaign that the children born overseas to unmarried British citizen fathers were able to register as British citizens. And we'll be hearing more from Tabitha about that campaign for citizenship equality and her personal connection to it very shortly.

We're heading in a slightly different direction in today's episode as we consider gender discrimination, and what I'm going to refer to here as the normative understandings of what parental relationships should look like, that continue to be at work in British Nationality legislation. Now, gender discrimination and citizenship is a huge topic. And I'm really only going to be able to go into the headlines. So please do bear with me a little bit.

I'm also going to look at some of the provisions in the Nationality and Borders Bill. If you remember from our last episode, I promised you a series of episodes that looked at the Nationality and Borders Bill; and this episode looks at something that has been slightly overlooked in a lot of the reporting: the provisions that are supposed to be introduced through Clause 1. And these are the clauses that relate specifically to the children of British Overseas Territory citizens, and some of the injustices they faced as they try to claim their status in British nationality law.

We're going to be hearing from George about a recent case that I think confounds belief that this is 2021. And it's quite a complicated case: is the child born to a lesbian couple in Spain—a country where birthright citizenship is not permitted—and this is a child who was unable to inherit the status of their British parents who was born in Gibraltar or their Bulgarian parent for a variety of reasons. And George is going to unpack that in a lot more detail than I'm able to refer to it here.

And we'll be hearing more from Tabitha about her campaign to make sure that others like her born overseas to unmarried British fathers could register for British Nationality, and those who helped her along the way.

One of the things that I've really loved about developing this podcast series is how, in doing the research for it, I found myself being taken into unexpected directions. And this is certainly true of my conversation with Tabitha. It left me with lots of questions. And well, one element of this is the relationship between gender and citizenship. What became clear to me is how this story is further complicated by geography. It links back to political decolonization and how that process shaped nationality legislation. But it also demonstrates the fallout from these changes for Britain's overseas populations. So, bear with me as I trace the contours of the story.

And I'm actually going to start with something very recent: the Nationality and Borders Bill. You'll remember that we talked about Clause 9 of this controversial bill in our episode on citizenship deprivation, where we were joined by Zainab Naqvi. But what has received less attention are the nationality provisions considered in Part One of the bill, which seek to amend so-called "nationality anomalies" were some children born outside the UK and its overseas territories, to parents with British Nationality, continue to be ineligible for citizenship by registration.

Part One includes introducing minor amendments to legislation to address the historic inability of British mothers to transmit their citizenship to their children and of unmarried fathers to pass on their status to children born outside the UK and its overseas territories. Both of these issues shed light on the inequalities within nationality legislation in ways that I think might surprise you.

The first of these makes visible that, to this day, there are those who—born to British mothers before the enactment of the British Nationality Act of 1981—were ineligible for British citizenship or nationality. Let's unpack that a little. Why is it significant that they were born to British mothers? Well, believe it or not, it wasn't until the BNA 1981 that legislation was put in place to enable mothers to pass on their citizenship to their children. I have to admit to being pretty surprised about this myself. So surprised, in fact, that I've gone back time and again to check that I'm right. But it's true. It's only in my lifetime that measures have been taken to address gender inequality in Britain's nationality legislation. But as the amendments proposed in the Nationality and Borders Bill show, these earlier provisions did not extend far enough for those with a maternal history that should have made them eligible for British Overseas Territory citizenship to inherit this status.

The second provision that I want to refer to is a provision that makes visible how normative assumptions about parental relationships are institutionalised internationality legislation. We'll be hearing from Tabitha about how until 2014, those born to unmarried British fathers whose mothers were not British, and born outside the UK and its territories found themselves ineligible for British citizenship. And while changes were brought in through the Immigration Act of 2014 to address this, these provisions only extended to those born to British citizen fathers. Now, as you'll remember from some of our previous episodes, there are actually several different categories of British Nationality. And the failure to extend this measure to those other categories has led to some of the fallout that we'll be discussing in this episode and the next one. The provisions in the Nationality and Borders Bill seek to correct the historic inability of unmarried fathers to transmit their British Overseas Territory citizenship status to their children. And indeed, this is the issue that's at the heart of the campaign run by Dave Varney and Trent Miller, the British Overseas Territories citizenship campaign. I'll be returning to the question of what the British Overseas Territory citizens status is, and its history. In the next episode, when we'll talk was Rosy Leveque, and David Jerome Simon about specific issues faced by British Indian Ocean Territory citizens. You'll see there are lots of really long category labels there that I've used. They're all a bit of a mouthful and a bit of a tongue twister. But it's really important that we remember that they're there that they exist and what their history of those different categories those different status says. So, anyway, just hold any questions that you might have about BOTC status for now, and we'll come back to them in Episode 10.

Importantly, these historic "anomalies" that the government is seeking to address who the Nationality and Borders Bill are, to my mind, one space where discrimination on the grounds of race, gender and marital status, or rather parental marital status, is made visible. And it doesn't end there. Now, I'm going to hand over to George. And Today's item is less "back to the archive" and more "really, this is 2021?".

George Kalivis  [GK}: Let me tell you the story of baby Sara, against whom "a trifecta of policies had conspired", as we read in a relevant Courthouse News Service article from the 14th of December 2021: "with one country not recognising birthright citizenship, another that insist on in-territory births, and a third that doesn't recognise same sex marriage".

Sara was born in Spain in 2019, being the daughter of a lesbian couple. One of her mothers is from Bulgaria and the other one was born in the British Overseas Territory of Gibraltar. Under Spanish law, Sara cannot get citizenship in Spain because neither of her mothers is of Spanish descent. She was also denied British citizenship.

The Courthouse News Service article claims this is because "the UK—and by extension Gibraltar—doesn't allow parents to pass on citizenship to children born outside of British territory". Another relevant article in the Washington Post says it is because "people born in Gibraltar cannot transfer citizenship to their children, according to the British Nationality Act of 1981". Whatever the case, this is just a mess. Lastly, Bulgaria would not recognise Sara's Spanish birth certificate, which lists her parents as two women, since the country defines marriage as only being between one man and one woman. This left the little child stateless for almost two years.

Just to give you an idea, without travel documents, for example, Sara cannot leave Spain. Eventually, the parents sued the Bulgarian authorities and the matter was referred to the European Court of Justice. Although marriage and citizenship requirements are decided by the block's 27 member-states, the court thankfully found that EU citizens are entitled to identity documents that allow them to move freely within the European Union. The 13-judge panel wrote that Sara has "the right to be registered immediately after birth, the right to a name and the right to acquire a nationality, without discrimination against the child in that regard, including discrimination on the basis of the sexual orientation of the child's parents".

I cannot even imagine having children and not being able to pass on my citizenship and my rights to them, either because of being gay or due to living abroad, or both, as we saw in Sara's case. In a British context, it may sound obvious to say that same-sex parents have the right to pass on citizenship to their children.

But, I am thinking of this in reverse as well. I think of how in another context, it may sound obvious to say that parents in general can transfer citizenship to their children wherever they are born. In this sense, not allowing citizenship through ancestry to specific groups of people, born outside a given territory, may sound as discriminatory and unfair as it may be not to allow children born in LGBTQ+ families to obtain the nationality of their parents. In the case of baby Sara, it seems that going against Bulgaria was the path of least resistance, and thankfully, it worked out. But let's just consider for a moment what would happen if this was not an option? What would happen if all parents had the same Gibraltarian status, for example? Such an administrative mess.

MB:  To my mind, what this case that George has related shows is how, in the coming together of legislation from different countries—around who can become a citizen and under what conditions—a child can effectively be rendered stateless, with no state prepared to offer the right to citizenship or nationality. And I'm sure that there are other examples.

George and I discussed in our pre chat how this story of a child born stateless has hardly been headline news, despite the evident discrimination that is at play here. Another story which has elicited very little news coverage is a case taken to the Supreme Court by the Project for the Registration of Children as British Citizens. This is a project that offers specialist legal representation on that particular issue, and other issues related to British nationality law. While there are provisions for those born stateless in the UK to register as British citizens, the significant fees relating to this—which are at present £1,012—means that this is out of reach for many of the children affected. PRCBC (that's the Project for the Registration of Children as British Citizens) have questioned whether it's lawful to charge this amount for vulnerable children with no status to become British. Unfortunately, the judgement didn't go in their favour. While the court recognised that this fee was exclusionary, the case concluded that the Home Office had authority from Parliament to charge these fees.

This defeated challenge was an important one, and I was sad to hear the outcome. As many others have made clear, tweaks to legislation alone cannot correct historic injustices that leave people without status, if the costs involved in registering as British remains so high that those eligible for these cannot take advantage of these provisions. I'll put a link to the information about PRCBC into the Episode notes so you can find out more about the great work that they're doing. But now it's time to hear more from Tabitha.

TS: So, the Nationality, Immigration and Asylum Act of 2002 was originally supposed to remove gender discrimination in nationality, from the British Nationality Act of 1981, and allow all children to acquire a British citizenship through a British-born parent. Unfortunately, us kids who were born out of wedlock to British fathers, we were excluded from this change in law.

MB: And I think that there's a kind of a particular family story here about how you discovered this. Because I think that ... Am I right in thinking that you and your sister had quite different statuses in British law?

TS: My half sister was able to have citizenship through her dad because she was born in marriage, but I wasn't. I couldn't have citizenship through our father, but she could. And that's, that was the reality at the time.

MB: How did you feel about it?

TS: It was upsetting, and I just felt like I was being treated unfairly because I was born out of wedlock—because of a birth status. We're both born to the same dad, but at the same time, one can obtain citizenship and the other can't; and myself, I can't obtain citizenship. Also to... There were instances where, at one time, it looked like my father would be moving back to the UK and he would need somebody to be there for him, and I couldn't. I looked to maybe work in the UK but, you know—and "expand my horizons"—but I couldn't, because... Simply because of my birth status.

MB: It seems really crazy, looking at how recent it is that you're talking about this. Could you describe a little bit what you did?

TS: There was an amendment to correct this discrimination in the 2009 Borders Bill, but the government unfortunately withdrew it. I had contacted Dr Julian Huppert, the then MP for Cambridge. He was on the Home Affairs Committee, and he submitted a written question to the then Immigration Minister, Damian Green. Now, Damien, he had seen the question and he told Julian that this was something he had always wanted to fix. So we finally got government support. The problem at the time was fighting the bill. The Immigration Bill of 2014 originally didn't allow for room to change the law. Myself and my friend, Antonia Fujinaga, who was in the same boat as me... We actually got into contact with Solange Valdez-Symonds from Project to Register Children as British Citizens, or as we call it, PRCBC. And through her we were actually able to get an amendment on the House of Lords side, which actually, what they call, change the scope of the bill.

MB: So what was that amendment?

TS: The amendment was to actually change the law as it stood in the British Nationality Act to remove discrimination against children born out of wedlock, to British fathers. At the time, the British Nationality Act of 1981 stipulated that you could not have citizenship through an unmarried father. You could register, but you had to register your birth before you were 18. And unfortunately, many people didn't know that that was an option, or they missed out on the option to register. And that was when we were able to change the law; we were actually able to change the actual British Nationality Act and remove the clause—that you had to be born in marriage, to a British father—and change it so that you could be born to a British father, regardless of your birth status. Well, for me, it meant that I could now apply for citizenship through my dad. Unfortunately, because I was born in the United States, at the time, it was closed to people born in the United States who are applying because of a biometric situation. So if you were born in the United, if you're applying from the United States, you were not able to acquire your citizenship until 2016.

MB: So you've done all of that work, and then it turns out that you have to wait for another year or so before you could actually apply?

TS: So if you are applying anywhere in the world, you waited a year. And if you're applying from the United States, you had to wait two years because of a biometrics issue. And that highlights really the unfairness that still exists with, you know, the UK application route, which is what we apply through. And that is that you have to jump through more hurdles still to get your citizenship. My sister, she, because she's born in marriage, she can simply just print out a passport application, and she's got her citizenship. Myself, my journey was a bit longer. I had, once I was able to apply for my citizenship, it took about nine months total.

And that was applying, getting registered, register your birth, you have to obtain biometrics, and then you get... you get an invitation to do your citizenship ceremony. And you have to pay £80 for your citizenship ceremony. And you do the ceremony, they give you a registration certificate, and you use that to get your passport. But I know of people who have to actually fly to their local consulate to get their citizenship ceremony. And I just think that's really unfair. Because, you know, if we were all born in what, if we were all born in marriage, we wouldn't have to do that.

MB: It's not an equal route to citizenship as those who were born to married parents.

TS: No, not at all. We've requested this to change and a lot of MPs are receptive. But the government remains, you know, [they] confirm that we should be obtaining biometrics and doing a citizenship ceremony. And up until recently, actually, we also had to adhere to a good character requirement, which has been removed, thankfully.

MB: So very, very different. Is there anything that you'd like to add Tabitha, about your experience and the success of that amendment challenges?

TS: I have to say my experiences really had been bittersweet, because now I have my citizenship, I fought, I got what I wanted, but at the same time my father has... he's already passed away a year and four days before the law changed. So unfortunately, he didn't get to see me become equal. The positive is that so many people have reached out to me and they have let me know that they've been able to acquire their birthright citizenship, and that's just been amazing. I have to say that if it weren't for Solange and PRCBC, and Steve, I wouldn't have a passport today. And Project your Registered Children as British Citizens (PRCBC) do so much work with children's citizenship rights. I believe that they are truly the patron saints of unpopular immigration causes.

MB: What stood out to me from my conversation with Tabitha was the hard work and perseverance that goes into bringing about changes like this. It's clear that she was in it for the long haul. And even though her personal journey to secure her British citizenship and her passport is now complete, she remains committed to supporting others facing similar historic injustices. And along the way, she found her allies and many others like her who had fallen between the gaps of the UK's nationality provisions. Now, I know that the government have chosen to refer to the continuing issues, the continuing discrimination within British nationality legislation as "anomalies", but I want us to think on this a little bit further.

I think it's important to remember that quite often when bills are introduced and debated, the identification of who they will exclude, the likely injustice and unfairness that they might bring are often drawn upon by any opposition. And yet, these are later rebranded as "anomalies". But what does it say that the warning signs were already there, and people chose to turn a deaf ear on them.

Over the past few weeks, I've been looking back at the parliamentary debates about the introduction of the British Nationality Act of 1981, and I just want to read one response during a debate that took place on the 28th of January 1981. That shows that there were people standing up and saying, if you do this, this is what will happen. It came from Mr David Steel, the former leader of the Liberal Party and MP for Roxburgh, Selkirk and Peebles. And he says: "the criticism of the bill in principle, before I come to the details, is that this is the latest in a long line of rather shabby measures, which are reducing basic rights and discriminating against ethnic minorities, stretching from the 1968 Act through to the 1971 Act and various rules and regulations. It is no answer for conservative members below the gangway to say that the bill is not really racist, because occasionally, a white person is caught up in the same unfair discriminatory net. This is the only argument that they produce to try to counter the charge that the bill is racist, because it's racist in its effect and in the implementation of its terms. The people discriminated against are overwhelmingly from ethnic minorities. The bill is an attempt to massage our nationality legislation to suit immigration policy".

I've seen this time and again, MPs of the day, calling out the changes to immigration and nationality legislation for putting in place the architecture for racial discrimination, and yet, it is really clear that those seeking to introduce these measures turned a deaf ear. 

Now, before I close, I want to highlight that beyond the question of whether we refer to these changes, as addressing "anomalies", or whether we see them in that longer history, we do also need to reflect on the fact that these minor changes, that mean so much to those who continue to face these historic and justices, are included in a bill that introduces provisions that have a devastating impact on those seeking asylum in the UK, and for those of Britain's racially minoritized communities, who have, through the latest news about citizenship deprivation, been reminded once more that they're not citizens on the same terms of their white compatriots. So while it addresses some historic racial discrimination on one hand, it's also clear that it's introducing more. Take a look at this week's episode notes to find out about the issues we've discussed. And if you've got a story to share that you think we'd like to hear, please do get in touch.

You’ve been listening to Who do we think we are? A podcast series produced and presented by me, Michaela Benson, as part of the British Academy funded mid-career fellowship Britain its overseas citizens. 

The series was produced with the help of Emma Houlton and Andy Proctor at Art of Podcast

Archival research for the series and cover art by George Kalivis

If you like what you’ve heard, follow and rate us on your preferred podcast platform. 

You can also find us at whodowethinkweare.org

And get in touch with us on twitter, Facebook and Instagram @AbtCitizenship

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