While the Act states that "a person born outside the United Kingdom ... shall be a British citizen if at the time of the birth his father or mother ... is a British citizen," the Act goes on to define "mother" and "father" as including the mother of an illegitimate child but not the father.
This approach derives from the approach taken in a parallel context by Lord Denning in the 1955 Court of Appeal decision of In re M (an infant), where Lord Denning explained: "The reason is that the law of England has from time immemorial looked upon a bastard as the child of nobody, that is to say, as the child of no known body except its mother."
Sir Roger Ormrod in the 1982 decision of R v Secretary of State for the Home Department, ex p Crew recognised that, sociologically, times had moved on and there was "a strong movement to eliminate so far as possible the difference between illegitimate children and legitimate children." He, instead, put forward a "scientific" explanation, citing "the inescapable fact ... that paternity is difficult to prove".
Neither of these approaches stands up to scrutiny in 1999 and the provision seems clearly at odds with the right to respect for "private and family life" and the protection from "discrimination on any grounds such as sex" enshrined on the European Convention on Human Rights.
This affects not only couples in the unique situation of Messrs Drewitt and Barlow but the children of all unmarried British fathers who wish their children to benefit from their paternal ancestry for nationality reasons.
In this case, the Secretary of State may well choose the "soft option" and decide to exercise his discretion and "register" the twins as British nationals because of their links with the United Kingdom, a different process of acquiring British nationality as a matter of "gift" rather than "right." The prominence given to the issues raised in this case, however, hopefully will lead to serious consideration of the rights of unmarried partners to pass on their nationality by descent.
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