A child (MK) was born in the UK in 2010 and her parents were both nationals of India. MK had made an application for registration as a British citizen. Paragraph 3 of Schedule 2 of the British Nationality Act 1981 requires that the child 'is and always has been stateless'. The key issue was whether, in order to be considered stateless, the child was required to have sought (and failed) to acquire the nationality of her parents. The Court determined that there was no requirement to have sought the nationality of the parents, and MK was, if she met the other relevant requirements, entitled to register as a British citizen, as she was and always had been stateless at the date of the relevant Home Office decision. Further, the Secretary of State could require an applicant to prove the relevant facts, but could not lawfully 'impose requirements that cannot, or practically cannot, be met'.
Paragraph 3 of Schedule 2 to the British Nationality Act 1981
The claimant ("C") was born in the United Kingdom on 14 November 2010. Her father ("F") and her mother ("M") are both nationals of India. On 8 March 2016 she submitted an application for registration as a British Citizen under Schedule 2 of the British Nationality Act 1981. On 18 May 2016 the Secretary of State refused the application. According to the judgment, "the issue, in short, is whether C, for the purposes of paragraph 3 of Schedule 2 to the 1981 Act, 'is and always has been stateless'. That will (or may) depend on the meaning of 'stateless' in the Act, which is a matter of law. It will in addition almost certainly turn on the question whether C is (or ever has been) a national of India. That will depend wholly or largely on Indian law, which in this court is a matter of fact and needs to be proved by evidence".
That the claimant was entitled to registration as a British citizen, as a stateless child born in the UK to Indian parents, who had not been registered as an Indian citizen.
That the claimant was not eligible for British citizenship because she could be registered as an Indian citizen.
"For the purposes of the statutory provisions in issue, a person is stateless if he has no nationality. Ability to acquire a nationality is irrelevant for these purposes. A child born on or after 3 December 2004, outside India, of parents at least one of whom is an Indian national, and who has not been to India, is not an Indian national unless registration of the birth has taken place in accordance with the provisions of the Citizenship Act 1955 (India) as amended. If the child has no other nationality, the child is stateless for the purposes of paragraph 3 of Schedule 2 to the British Nationality Act 1981 and, if the other requirements of that paragraph are met, is entitled to be registered as a British citizen. If, therefore, C's birth had on the date of the decision under challenge not been registered, she is entitled to British Citizenship." (Para 36)
In discussing the meaning of statelessness, the Court quoted the UK Supreme Court decision in Al Jeddah, which observed that: "a person might have good reason for not wishing to acquire a nationality available to him (or possibly even to re-acquire a nationality previously held by him)" (Para 26, quoting Al Jeddah, Para 32).
The Court also observed that the Home Office requirement that the applicant prove that her birth had not been registered with the Indian authorities 'and that she is not a national of India' was problematic, as there was 'no central register of who is a citizen of India' (Para 39). The UK Government 'is not entitled to impose requirements that make it impossible for an individual to obtain a benefit that is his by statute. It is sometimes difficult, though not usually impossible, to prove a negative. But it may be simply impossible in an individual case to obtain documents of a category specified as generally obligatory. There may well be rules or guidance about what needs to be provided, but there will have to be flexibility to cover cases where it will be exceptionally difficult or impossible to obtain the documents sought. In such cases the Secretary of State has to be willing to consider proof by some other means. Her unwillingness to do so, despite the evidence of difficulty, appears to me to be unreasonable' (Para 40).
'C is entitled to registration as a British citizen on proof that she meets the requirements of paragraph 3 of Schedule 2 to the British Nationality Act 1981. For these purposes she was or is 'stateless' at any time when she did or does not in fact have Indian nationality. The Secretary of State is entitled to require her to prove the relevant facts, but is not entitled to impose requirements that cannot, or practically cannot, be met.' (Para 48)
Blogs and analysis:
Summary and brief analysis by Coram Children's Legal Centre: https://www.childrenslegalcentre.com/resources/mk-v-sshd/
ENS Blog by Cynthia Orchard, "Improvements and challenges in UK’s new guidance on statelessness applications", 6 December 2019: www.statelessness.eu/blog/improvements-and-challenges-uk-s-new-guidance…
Although not mentioned by the Court, UNHCR Guidelines on Statelessness No. 4 explain that to comply with the 1961 Convention on the Reduction of Statelessness, the State of a stateless child's birth must grant nationality to that child if their 'parents are unable or have good reasons for not registering their child with the State of their own nationality' (Para 26 of UNHCR Guidelines):
Guidelines on Statelessness No. 4: Ensuring Every Child's Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness (particularly para. 26): https://www.refworld.org/docid/50d460c72.html
In March 2021, the UK Home Office announced (in the context of a consultation about the Government's 'New Plan for Immigration') a proposal to amend Schedule 2, Paragraph 3 of the British Nationality Act 1981, to address the outcome in MK (India). The European Network on Statelessness submitted a response to this proposed amendment, arguing that any amendment must comply with international law and standards, including children's right to a nationality and consideration of the best interests of children. See:
ENS Blog by Cynthia Orchard and Nina Murray, "UK Home Office should seek to remove barriers faced by stateless children born in the UK rather than making it more difficult for them to acquire British citizenship", 11 May 2021: https://www.statelessness.eu/updates/blog/uk-home-office-should-seek-re…
Submission to the UK Government Home Office Consultation on its ‘New Plan for Immigration’: https://www.statelessness.eu/updates/publications/submission-uk-governm…
- KK v SSHD  UKUT 92 (IAC)
- Bradshaw  Imm AR 359
- Al-Jeddah v SSHD  UKSC 62
- Pham v SSHD  UKSC 19