Donald Trump is free to become a British Citizen

Introduction

Nothing stands in the way of US President Donald Trump becoming a British citizen and starting a new life in the UK. If he does so, he will enjoy the right to come and go freely from the UK, live and work here without restriction, and enjoy the all the benefits British citizenship confers. A new life beckons. How is it that Mr Trump is so entitled? And given that he is so entitled, what clouds blot his blue sky?

An entitlement to British citizenship and the question of Good Character

Donald Trump’s mother, Mary, was born 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 to apply for registration as a British citizen by entitlement under section 4C of the British Nationality Act 1981 by virtue of his mother’s Scottish birth. At that time I wrote that post, after the 2016 Presidential election but before his inauguration as US President, one hurdle stood in his way: British nationality law imposed a ‘good character’ test for registration as a British citizen and it stood doubtful that Mr Trump would satisfy it. By being notorious for his behaviour, be it racist, sexist, misogynist, etc, never mind the question of his want of financial probity and risk of prosecution for the same, Mr Trump had prejudiced his entitlement to British citizenship.

Since assuming the American presidency in January 2017, matters have hardly improved as regards his character. The small matter of being impeached twice in the US House of Representatives (the second time for incitement of insurrection) alone provides ample material for the contention that his notoriety has increased. Further, the evidence for a want of good character has multiplied by several orders of magnitude. Shorn of the trappings of Presidential office, how may President Trump make good his entitlement to British citizenship and begin a new life in the UK free of the anxieties of a prospective trial in the US Senate and the criminal prosecutions that await him in America?

Good Character no longer matters

Luckily for President Trump, as of 25 July 2019 good character no longer matters when seeking to register a British citizen on the basis of having a UK-born mother. The test for being of good character has been removed.

Section 41A(1) of the British Nationality Act 1981 provides that an application for registration as a British citizen under s 4C by a person aged 10 or older, must not be granted unless the Secretary of State is satisfied that he is of good character. However, UK Courts have declared that to be incompatible with human rights and the Secretary of State has amended UK legislation by making a remedial order that has been embraced in a statutory instrument made in Parliament.

Declarations of incompatibility have been made by the courts in two cases due to the unlawful discrimination against categories of people who would have automatically become British citizens, or had a route to apply for citizenship: (i)  where their mother was precluded from transmitting her British citizenship  by descent in the female line (as in Mr Trump’s case) (discrimination on grounds of sex), or (ii) where transmission of British citizenship was precluded on grounds of illegitimacy (parents’ marital status) (discrimination of grounds of illegitimacy).

In Johnson v Secretary of State for the Home Department [2016] UKSC 56, the UK Supreme Court made a declaration of incompatibility in a case where discrimination in the acquisition of British citizenship on grounds of illegitimacy (parents’ marital status) had led to the need to make an application for registration as a British citizen. The Supreme Court held that that it was unlawfully discriminatory to impose a good character test upon such a person who would, but for their parents’ marital status, have automatically acquired citizenship at their birth.

Thereafter, in R (on the application of Bangs) v Secretary of State for the Home Department (claim number CO/1793/2017), the England and Wales Administrative Court agreed a consent order by which a declaration of incompatibility in a case where discrimination on grounds of sex had led to the need for a person such as one with a UK-born mother to the need to make an application for registration as a British citizen. It was agreed that applying the good character test to applications for registration under section 4C of the 1981 Act was also unlawfully discriminatory.

Following these two cases, the Secretary of State made the remedial order, British Nationality Act 1981 (Remedial) Order 2019 (SI 2019/1164) removing the good character test in these two classes of case.

President Trump free to become a British citizen

Now that the good character test has been removed from the criteria to be satisfied before a person may register as a British citizen under s 4C of the British Nationality Act 1981, President Trump is free to make his application for British citizen and, once British citizenship is granted, he is free to take up a new life in the United Kingdom.

For the President that is the good news. However, two clouds blot his blue sky. First, there is the risk of the extradition back to the United States under the US-UK Extradition Treaty (UK Treaty Series No 13 (2007)).

Second, there is a risk that the Secretary of State would seek to deprive him of his British citizenship if she were satisfied that deprivation was ‘conducive to the public good’. How would such a test for deprivation be measured? It is no objection to an intended act of deprivation of British citizenship to argue that standards in public life have fallen on the British side of the Atlantic as well. True is it that the UK Supreme Court has held that UK Prime Minister Johnson (no relation to the Mr Johnson in the case cited above) unlawfully prorogued the UK Parliament so that it was prevented from conducting its democratic business, see R on the application of Miller) v the Prime Minister [2019] UKSC 41 . And true it is that the Secretary of State (Home Secretary, Priti Patel MP) has already been dismissed once from the British Cabinet for engaging in secret, undisclosed meetings with officials of a foreign power. But such objections are political in character, not legal. In truth, in giving consideration to whether to deprive a person (not left stateless thereby) of British citizenship, the Secretary of State has considerable latitude. There is no need for there to be a current risk to public policy; past conduct alone may support such a decision.  In Pham v Secretary of State [2018] EWCA Civ 2064, England and Wales Court of Appeal, Lady Justice Arden (as she then was) observed that:

  1. The question whether the risk of current harm is always required is first and foremost a question of the interpretation of section 40. The material words are that “the Secretary of State is satisfied that deprivation is conducive to the public good”. In my judgment, it is plain that what must be current is the Secretary of State’s opinion as to what is conducive to the public good. In my judgment, this requirement could be satisfied in many ways, including the conclusion that the Crown should not have to provide protection to a person who has in the past so fundamentally repudiated the obligations which he owes as a citizen. The precise grounds are a matter for the Secretary of State. There is nothing to make it a pre-condition that there should be a risk of current harm.

While the extent to which conduct prior to the acquisition of British citizenship ought to have a material bearing on the decision to deprive a person of that citizenship on the facts of a particular case may vary, it is clear that mere acquisition of British citizenship would not enable President Trump to assume that he had escaped the consequences of his past conduct. For him, as for others, there would be no rest.

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