Donald Trump is a British citizen…if he wants to be. His mother was born in the UK and, therefore, he has an entitlement to register as a British citizen. However, one hurdle lies in his path, one obstacle whose shape and size may shift according to the eye of the beholder, one ineluctable rule not to be avoided: he must pass the ‘good character’ test. To succeed in taking up the nationality of his mother; the nationality cast aside by his country in 1776, Mr Trump must satisfy a United Kingdom Secretary of State that he is a man of good character. What chance does he have?
Donald Trump’s mother, Mary MacLeod, was born in Scotland, in the United Kingdom, on 10 May 1912. At birth she was a British subject at common law. In 1930 she emigrated from the United Kingdom to the United States.
In 1936 she married Fred Trump, Donald’s father. While there is some doubt as to whether Mary MacLeod would have retained her British nationality in 1936 on her marriage to Fred Trump, the 1948 British Nationality Act, section 14, deems women like her to have retained British subject status.
On 10 March 1942 Mary MacLeod Trump naturalized as a U.S. citizen, a step that would have meant she ceased, automatically, to be a British subject. However, her status as a married woman exempted her from this loss provision, see sections 13 and 27 of the British Nationality and Status of Aliens Act 1914.
When Donald Trump was born in New York on 14 June 1946, although his mother remained a British subject she would have been unable to pass on that nationality, as at that time British nationality law was discriminatory in only permitting transmission by descent in the male line, see section 1(1)(b) of the British Nationality and Status of Aliens Act 1914.
To correct the gender discrimination that existed in British nationality law, the 1981 British Nationality Act, section 4C, provides a route for a person born outside the United Kingdom prior to 1983, where born to a UK-born mother, to apply for registration by entitlement as a British citizen. It is this provision that provides Donald Trump’s route to British citizenship, as it requires former nationality laws to be read to provide for citizenship by descent from a mother, as they provide for citizenship by descent from a father.
Donald Trump is entitled to register as a British citizen. If British nationality had been transmissible by descent from a UK-born mother, he would be a British citizen today. He would have been deemed a natural-born British subject at birth by section 1(1)(b) of the British Nationality and Status of Aliens Act 1914. On commencement of the 1948 British Nationality Act on 1 January 1949 he would have been re-classified as a Citizen of the United Kingdom and Colonies (‘CUKC’) under section 12(2) of that Act. On commencement of the Immigration Act 1971(‘the 1971 Act’) on 1 January 1973, he would have acquired a statutory right of abode in the UK under s 2(1)(b) of that Act (as then in force). As a CUKC with the right of abode in the UK, on 1 January 1983 he would have been reclassified as a British citizen by section 11(1) of the 1981 British Nationality Act.
Historic gender discrimination in British nationality law means that Donald Trump is not a British citizen today. Prior to 30 April 2003, when section 4C was introduced into the 1981 British Nationality Act, he lacked a means to rectify the situation. Section 4C provides the route to rectify the prejudicial discrimination suffered by the Trump family and others like them.
A qualifying person is entitled to registration as a British citizen upon application. However, the operation of s 4C has not been smooth. Concern among UK officials about the character of some applicants led to the introduction of a ‘good character’ test in 2006. To succeed Mr. Trump must satisfy a United Kingdom Secretary of State that he is a man of good character. How would he fare were he to apply?
The assessment of good character is demanding; a high standard is set, see R v Secretary of State for the Home Department, ex parte Fayed  1 WLR 763. The assessment involves a subjective evaluation. The Nationality Instructions provide detailed guidance as to the factors the Secretary of State will consider.
Where charges have been laid and a criminal trial is pending, a decision will be deferred pending its outcome. A history of bankruptcy and corporate liquidation may frustrate an application. However, for Mr Trump the factors most likely to lead to a refusal of an application are his public statements. Notoriety is a ground for refusal:
‘7.1 …where there is evidence that a person has – by the scale and persistence of their behaviour – made themselves notorious in their local or the wider community, consideration should be given to refusal. In such circumstances, the decision maker may ask for an interview to help substantiate any information received, for example, from members of the public.
The decision must be a reasonable one. Therefore, the scale and level of behaviour need to reflect so poorly on a person’s character that the application should be refused.
The decision maker should take particular care when the person’s behaviour may be seen as notorious and so widely known that any decision on the application is likely to attract public attention or press reaction.‘
By the scale and persistence of his behaviour has Donald Trump made himself notorious in his wider community (his ‘community’ must be the United States as he has succeeded in being elected President), such that his application ought to be refused? It is time to let the man speak for himself:
On Mexican immigrants: ‘They’re bringing drugs, they’re bringing crime, they’re rapists’
On Fox News anchor Megyn Kelly: ‘She had blood coming out of her whatever’
On New York Times reporter Serge Kovaleski: ‘You’ve got to see this guy, “Ah, I don’t know what I said!”’ – jerking his arms and mocking Mr Kovaleski’s disability.
On Muslims: ‘Complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on’
On his daughter: ‘I’ve said if Ivanka weren’t my daughter, perhaps I’d be dating her.’
On women: ‘.You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything.… Grab ’em by the pussy. You can do anything.’
What matters is the whether an applicant is of good character on the date the application is decided. Past conduct and speech need not preclude a person being judged to be of good character provided he has redeemed himself by the time the decision is taken. However, based on his current behaviour, while he may have been elected President of the Untied States, there is a strong case that he would be refused registration as a British citizen for want of good character.
[…] on Scotland (in the UK) in 1912. She migrated to the United States of America in 1930. In my post Donald Trump is a British citizen…, written in December 2016, I wrote about how British nationality law provided a route for Mr Trump […]