Caroline Sawyer, Helena Wray 3.8 Gender inequality in British nationality law Historically there was considerable discrimination against women, both as regards the status of women on marriage, and mothers’ ability to pass British nationality to their children, but these have largely disappeared. Following the Naturalisation Act 1870, women lost their British nationality on marrying an alien but this was eventually remedied by the British Nationality Act 1948 (for a discussion, see Wray 2011: chapter 2). Recent moves have led to gender equality in the ability to obtain British citizenship through both parents equally. Mothers gained the right to pass citizenship to their children as could fathers as from 1983, under the British Nationality Act 1981, and such children born before 1983 but after 1960 could subsequently register as British. Under the Borders, Citizenship and Immigration Act 2009, the children of British mothers will be able to register as British even if they were born outside the UK before 1961. Unmarried fathers were unable to pass British citizenship to their children, even if they were born in the UK, until in July 2006 sect. 9 of the Nationality, Immigration and Asylum Act 2002 at last came into force. Regulations were also made governing the meaning of ‘father’, including, as well as the husband of the mother, men recognised as legal fathers under the relevant legislation and those whose biological paternity was proved by, inter alia, DNA tests or court order.60 This did, however, still apply only to children born after June 2006; however, the Home Office has discretion to register those born earlier, as well as those whose parents subsequently become settled in the UK (see above) and the position has recently remedied by legislation (s.65 Immigration Act 2014 which is not in force at the time of writing). 3.9 Institutional arrangements peculiar to the UK The UK constitution does not have any entrenched status and British nationality and citizenship law can be changed through ordinary legislation. The principle of parliamentary supremacy, which was one outcome of the Civil War, means that Parliament may legislate as it chooses and may not bind its successors.61 Accordingly rights may change almost overnight, especially in a political response to media pressure.62 Nationality is governed by statute law but this often permits secondary legislation of which there is little scrutiny.63 There is a widespread tendency, in nationality and immigration as elsewhere in government, to pass ‘enabling legislation’ which gives Ministers broad powers to change the law through secondary legislation. Entry and stay in the UK is governed by rules made under the Immigration Act 1971. The Immigration Rules are also subject to only minimal parliamentary scrutiny, but the Supreme Court has found that rules governing entry and stay must be made through the Immigration Rules and cannot be contained in ‘policy guidance’ or 60 See note 70 and the British Nationality (Proof of Paternity) Regulations 2006 (SI 1496/2006). 61 This principle is now of doubtful applicability in EU law where only full repeal of the European Communities Act 1972 would enable subsequent legislation to be applied in contravention of EU law. 62 Media pressure led to the Commonwealth Immigrants Act 1968, for example, being passed in a few days; in a heady post-Twin Towers atmosphere, the Nationality, Immigration and Asylum Act 2002 came into force before it was published (R (L and another) vs Secretary of State for the Home Department; Lord Chancellor’s Department, interested party T.L.R. 30 January 2003), and publicity led by a well-known actress led to Gurkha soldiers who had fought for the UK being given leave to remain in the UK in April 2009 (as Nepalese nationals they had previously been refused such leave). 63 Secondary legislation may be subject to positive or negative resolution. In the former case (which is more unusual) they must be approved by Parliament. More often, they are subject to negative resolution which means they are laid before Parliament and become law unless a resolution is passed against them. 22 RSCAS/EUDO-CIT-CR 2014/1 - © 2014 Authors