Nationality and Borders Bill (Fifth sitting)

(Limited Text - Ministerial Extracts only)

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Anne McLaughlin (Glasgow North East) (SNP)]

I will be brief and echo what my hon. Friend has said. I welcome the Minister to his place and wish him well although I am sorry to say not with this Bill. I thank all the multiple organisations that are concerned by the Bill and supported the moves to make the changes that need to be made.

It might be a moot point but, as my hon. Friend said about amendments 29 and 84, we do not want to be in a situation in which parents are treated equally badly. I suspect that that is not what the clause is about and I hope that the Minister will say that it is fine and we will accept that. However, it is important that we acknowledge that mothers were treated unequally and wrongly. That is because, throughout the centuries, women have been treated systemically badly. Yes, of course things have improved—and this is an improvement—but we have to acknowledge it whenever there has been systemic bias against any group of people, and in this case we are talking about women and mothers. I do not think any member of the Committee would disagree that what has happened is extremely unfair but we must acknowledge it so that we can move forward. Acknowledging a problem draws attention to it. Let us not pretend that we have equality of the sexes and genders. We do not. Every time that that is acknowledged it enables us to move forward and think of other situations in which there is inequality.

We have helpfully been provided with photos of members of the Committee and been given their constituency names but when I saw the photo of the right hon. Member for Scarborough and Whitby, I thought he was the right hon. Member for Con, Scarborough and Whitby. I thought, “Where is ‘Con’?” until I realised that it referred to the fact that he is a Conservative. I am learning something new every day.

The right hon. Gentleman was factually correct to say that it is easier for mothers rather than fathers to prove their parentage. That is why I wonder why on earth it was so difficult for women to pass on their nationality to their children. There is no question who the mother is in such cases. I hope the Minister will say that he will change the language to refer to mothers and that the Government will acknowledge the inequalities between men and women and mothers and fathers. Treating parents equally should not mean that they are treated equally badly. I suspect that he does not want to do that and I support most of the provisions in this part of the Bill. That is probably the last time I shall say that today.

[The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)]

I start by thanking Opposition colleagues for their warm welcome to me in my new role. It is welcome that, in the early provisions of the Bill, there is broad agreement across the Committee about the need to correct the injustices and to put things right.

I thank the hon. Members for Enfield, Southgate, for Halifax, for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for tabling amendments 29 and 84. They both refer to clause 1, which I am pleased to introduce because it corrects a long-standing anomaly in British nationality law. I appreciate hon. Members’ attention to detail in seeking to make sure that the new provision is clear and in line with the parallel provision in the British Nationality Act 1981 for the children of British citizen mothers. However, I do not think an amendment is needed, as the proposed wording here achieves what is intended. In saying that this provision applies to someone who would have been a citizen had their parents been treated equally, we are talking about a situation where the law applied equally to mothers or fathers, women or men.

The term “parents” is consistent with the wording used in section 23 of the 1981 Act, which determined which citizens of the United Kingdom and colonies became British dependent territories citizens on commencement. One of the three conditions that a person needs to meet to qualify for registration under this clause is that they would have become a British dependent territories citizen under section 23(1)(b) or (c) of that Act. That section refers to a person’s “parent”.

I wish to point out that we will further clarify the points that have been made in the underpinning guidance. I trust that will afford greater comfort because it is clear that the Bill is technical, so plain language will be used in the guidance itself to achieve what members of the Committee seek to achieve.

[Neil Coyle]

I, too, congratulate the Minister on his new role. If the Minister is saying that this may require further explanation in the guidance, will he agree to review it in more depth before the Bill reaches the Lords if organisations are able to present examples of case studies where the current wording may not meet the Government’s intent?

[Tom Pursglove]

I will of course be delighted to receive any such examples. I genuinely think that, as with so many cases of immigration law, the underpinning guidance plays an important role in making it clear, in plain English that people can understand, precisely what various aspects of the law entail. I am satisfied with the current wording of the clause.

[Stuart C. McDonald]

I understand what the Minister says about the wording doing a job in statute, but will he say whether he thinks that the wording used has any implications for British citizenship as opposed to British overseas territories citizenship? Was a problem with the wording recognised and is that the reason why it was not copied across? Or is this Bill a wee bit different and therefore uses different wording?

[Tom Pursglove]

The short answer, based on my understanding, is no. The connected provision in the Act talks about parents and not the mother and the father, so that is why we think this is the appropriate route to take for BOTCs. I am satisfied that the current wording does what is required so I ask hon. Members not to press their amendments.

[Bambos Charalambous]

I have heard what the Minister has said, but we could avoid going down the path of seeking to clarify the current wording if the same wording that was used in the 1981 Act were used here. We do not see what the problem would be. If the wording in the 1981 Act is adequate, why not just repeat it in the Bill? It would provide clarity and stop problems occurring in the future. Our belief is that everyone should be treated equally, and we should not have a separation, which the amendment tries to correct, between British overseas territory citizens and British citizens. Regrettably, we will press the amendment to a vote.

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Division 1

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 9

[The Chair]

Ordinarily, Mr McDonald, I will not ask this question, because I will assume that if you, or any other Member who wishes to move an amendment that has been debated but not yet called, have not notified the Chair, you do not want it to be called. However, because this is the first time, do you wish to press amendment 84 to a Division?

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[Tom Pursglove]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for tabling amendments 8 to 12 and new clause 16, which provides the Committee with the opportunity to consider fees charged in respect of applications for British citizenship and British overseas territories citizenship.

Before I address the specific points in the proposed new measures, I want to provide some background information. Application fees for immigration and nationality applications have been charged for a number of years under powers set out under clause 68 of the Immigration Act 2014, and they play a vital role in our country’s ability to run a sustainable system, reducing the burden on taxpayers. Sitting beneath the 2014 Act are fees orders and fees regulations, which are scrutinised by both Houses before they come into effect; that is an important point. That ensures that there are checks and balances within the system and maintains the coherence of the fees framework. If we were to remove those fees during the passage of the Bill, as the hon. Member for Bermondsey and Old Southwark suggests, it would undermine the existing legal framework without proper consideration of the sustainability and fairness to the UK taxpayer.

[Neil Coyle]

Will the Minister give way?

[Tom Pursglove]

I will, although I know that you wanted us to make good progress, Sir Roger.

[Neil Coyle]

I want to comment on the point about the burden on taxpayers. First, there is a very significant profit margin—86% profit for some of the processes of the Home Office—so there is no burden there. Secondly, it is quite offensive language to those that are living, working and paying tax here to say that they are a burden, even though they are already contributing economically through national insurance and tax contributions. I find the language unhealthy.

[The Chair]

Order. The Minister has indicated that we want to make progress, and that is true, but the Minister must not feel under any pressure not to respond to points that have been raised. This is a very important part of the Bill, so please, as a new Minister, feel able to take your time if you need to do so.

[Tom Pursglove]

Thank you, Sir Roger. I appreciate that. I also appreciate the hon. Gentleman’s strength of feeling on this matter. I was Parliamentary Private Secretary, several years ago, to my right hon. Friend the Member for Scarborough and Whitby who was Immigration Minister, and I learned a lot from him. He got to the nub of the issue of fees. The truth is that there is a level of fee that is set. There is constant parliamentary scrutiny of those fees, as I have described. There is a level of cost associated with that. Any fee level that is incurred over and above that is actually invested into the wider nationality and borders system and helps to pay for the services that are provided.

[Paul Blomfield (Sheffield Central) (Lab)]

The Minister refers to the contribution of the right hon. Member for Scarborough and Whitby. That was a challenge to give a commitment that fees should not be set at a level that does other than reflect cost. I hope the Minister will take advantage of that opportunity. As he is beginning to develop his argument, he is suggesting that fees are set at a higher level in order to reinvest in the Home Office. That is what other people have described and The Times reported in 2019 as profit of quite significant proportion.

[Tom Pursglove]

I will gladly take away the Committee’s feedback on fees. As I have said, fees are kept under constant review and are subject to parliamentary scrutiny. I have no doubt that members of the Committee, and indeed Members across the House, will want to scrutinise any fees orders and fees regulations that are brought forward, express views on them and, as they see fit, either support them or take issue with them.

To return to the focus of the amendments and the clause, removing these fees during the passage of the Bill would undermine the existing legal framework without proper consideration of sustainability and fairness for the UK taxpayer. It would also reduce clarity in the fees structure by creating an alternative mechanism for controlling fees.

Beginning with amendments 8, 9, 10, 11 and 12, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British overseas territories citizenship, I can reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that I am sympathetic to the view that a fee should not be charged in cases where a person missed out on becoming a British citizen automatically due to historical anomalies. The provisions in the Bill are about righting historical wrongs, and I can give the Committee my assurance that we will look carefully at where fees should be waived via the fees regulations. However, as I have outlined, that is not a matter for this Bill and it should be remedied through secondary legislation, in line with other changes to immigration and nationality fees.

[Stuart C. McDonald]

My understanding, from the briefing I was given at the weekend, is that in July the Home Office sent a letter to nationality experts stating that the intention was not to charge a fee, but the Minister seems to be saying something different; that there will be fee waivers, rather than no fees at all. We are talking about historical injustices here, so can he be a little more clear? Is the intention not to charge a fee for the applications to which amendments 8 to 11 refer?

[Tom Pursglove]

The hon. Member is always on point in asking pertinent questions. I reiterate the point that the Home Office tends not to charge fees in instances where unfairness or injustice have occurred, and it remains our intention to continue to adopt that approach in relation to the provisions that we are enacting through the Bill. I hope that gives him the reassurance he is seeking.

[Neil Coyle]

I thank the Minister for giving way. Yesterday we saw Parliament at its finest, and I genuinely think that he is a decent man, but what he is saying today is not what was indicated previously and it does not address what the Court of Appeal has required the Home Office to do. If he is saying that there will be secondary legislation at some point, when is it coming, because we have an opportunity here to address the issue? The Court of Appeal found that the Home Office had failed to assess the best interests of children in setting the fee. To fail to do so again in this legislation will have only one outcome, which is the Government being back in court.

Also, I forgot to mention the case that I was speaking about earlier, so for reference it is R (The Project for the Registration of Children as British Citizens) v. the Secretary of State for the Home Department.

[Tom Pursglove]

I thank the hon. Member for that further intervention. Let me just set out the position on the point about child citizenship fees that he raises. I understand the concerns expressed about child citizenship fees. However, this is currently subject to legal challenge in the Supreme Court and the position will be reviewed after the judgments have been received.

[Neil Coyle]

So when the Government said in February that the issue was being reviewed, was it not being reviewed then? It is extraordinary that many months down the line the Minister is telling us that there will be a review only if they lose the case in the Supreme Court, which will incur further costs of millions of pounds for the taxpayer simply to go through the legal process.

[Tom Pursglove]

The hon. Member would be surprised if we did not want to review the situation and take into account fully the judgment of the Supreme Court in due course. I think that it is entirely proper that we take a view on this and that the situation should be reviewed in the light of any judicial ruling handed down. This exchange has been very useful, as it has allowed me to address many of the points that I would have picked up at the end of my remarks.

I turn now to subsection (1) of new clause 16, the aim of which is to limit the Secretary of State’s power to charge a fee for applying for British citizenship and British overseas territories citizenship to the cost to the Secretary of State of processing the application. As I have already outlined, imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill.

Subsection (2) would prevent the Secretary of State from charging a fee to register as a British citizen or British overseas territories citizen if the child is being looked after by a local authority. It is important to remember that any child, irrespective of nationality, who is looked after by their local authority can apply for both limited and indefinite leave to remain without being required to pay application fees.

[Stuart C. McDonald]

The Minister is being generous with his time, but I regret that the Home Office appears to have dusted down the same old briefing and he is making the same points that have been made before. He cannot possibly argue that limited leave is some sort of alternative to British citizenship. None of us would accept that; why should these kids?

[Tom Pursglove]

We would argue that the provision ensures no child in local authority care is unable to access leave. We remain of the view that citizenship is not necessary for any individual to work, live, study or access services within the UK. Subsection (3) would prevent the Secretary of State from charging a fee to be registered as a British citizen or British overseas territories citizen that the child or the child’s parent, guardian or carer is unable to afford. That raises similar points to subsection (1) in that imposing such a requirement would cut across the funding and coherence of the whole system and is not a matter for the Bill. Subsection (4) would require the Secretary of State to take steps to raise awareness of rights under the British Nationality Act 1981.

[Stuart C. McDonald]

I have a quick question on the fee waiver. Why is registration for citizenship just about the only thing where there is no fee waiver scheme at all? There is a fee waiver sometimes for the 10-year route to settlement—as ludicrous a system as that is. Why is there no fee waiver system at all even for folk who cannot remotely afford that?

[Tom Pursglove]

I am conscious that I want to get through my remarks on this. I will write to the hon. Member on that point.

[Neil Coyle]

The Minister is being very generous in giving way. Perhaps he will be able to tell us how many applications for a fee waiver were denied by the Home Office in each of the last few years, or perhaps he could furnish us with that detail in another way. My understanding is that it is about 90%.

[Tom Pursglove]

Again, I do not have the figure to hand, but I will happily take that away and see if I can provide him with a written answer on that point. Information about becoming a British citizen is made available in published guidance on gov.uk and we are committed to ensuring information of this nature is fully accessible for all. I am conscious that we have had quite an extensive debate around fees in general, but I hope what I have said around the provisions in the Bill and the Government’s intentions for handling fees in relation to the nationality measures we are seeking to enact gives comfort to the Committee, and that the hon. Members will feel able to withdraw their amendments.

[Stuart C. McDonald]

I am grateful to all Members for taking part and the Minister for his response. There have been two separate issues. First, on the new registration provision in the Bill, he has provided some assurance that because it is correcting historic injustices the broad intention will be hopefully to avoid a fee. We will hold the Government to that and watch very carefully.

I hear what the Minister says about the fact there is a system of statutory instruments being laid—we all come here and say our piece and then the Government sets a fee pretty much regardless. In theory, that is fine. However, the lesson we learned about the citizenship registration of kids is that in 1981 the then Government and Parliament as a whole made it absolutely clear that profits should not be made on that registration, and that was fine for 20 or 25 years. But then along came successive Governments that decided to ramp it up.

On a principle as fundamental as this, I still think there is a strong case for putting it in the Bill. If a new Government want to change the approach in the future, they can do so, but they will first have to introduce primary legislation to do that. I do insist on amendment 8. I will insist even more strongly on new clause 16.

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I do not know how many hon. Members have kids, but if the Home Office said to them, “Because we are giving your kids British citizenship, we expect you to pay us 1,000 quid, and we are going to use some of that money to do other stuff as well,” they would be outraged. They should be outraged that the Home Office is doing this. It is a different kettle of fish, and I hope the Minister will take that away and push back with officials.

[Tom Pursglove]

The hon. Gentleman asked specifically about fee waivers in relation to nationality, and I have just reflected on that point. My understanding is that, for most people, nationality is a choice and is not needed specifically to live in the UK. That is why we do not tend to offer fee waivers, typically, unless it is to correct a historical injustice. I just wanted to make that point clear.

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Division 2

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 8

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Conservative: 8

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[Bambos Charalambous]

I have some remarks, which I will try and keep as brief as possible. As outlined in the Committee, opening clauses 1 to 5 seek to close the important loopholes in British nationality law. As we have already heard, British nationality law has discriminated against women and that will be corrected by clause 1 and the Opposition amendments. Clause 2 deals with children born out of wedlock, who have been prevented from deriving nationality from a British father if unmarried. That is another historical injustice and I am glad it is being considered in the Bill.

As Committee members know, before 1 July 2006, children born to British unmarried fathers could not acquire British nationality through their father. Registration provisions have since been introduced to rectify that issue for the children of British citizens through sections 4E and 4I of the British Nationality Act 1981, but that was not changed for children of British overseas territory citizens. Let us pause for a moment to reflect on the impact of the inconsistency: a child has no control over its parents’ choices, yet British overseas territories children, now adults, have been discriminated against because their parents were unmarried. Due to a loophole in British nationality law, those children would not automatically acquire British overseas territory citizenship as the law failed to provide unmarried fathers with the ability to transmit citizenship. Therefore, through no fault of their own and without knowing why, that group of British overseas territories children did not acquire rights as British overseas territories citizens—rights they deserved and should have been entitled to, including, for example, holding a British passport or gaining consular assistance from the UK.

As we know, injustices that relate to nationality and citizenship span generations, and it is right the Government seek through clause 2 to correct the historical inability of unmarried fathers to transmit citizenship. The clause will insert new sections 17B and 17G to the British Nationality Act to provide for registration as British overseas territories citizens for persons born before 1 July 2006 to British overseas territories citizen fathers, where the parents were unmarried at the time of their birth. The provisions provide an entitlement to be registered for those who would have become British overseas territories citizens automatically had their parents been married at the time of their birth and for those who would currently have an entitlement to registration were it not for the fact that their parents were not married at the time of their birth. As the clause creates a registration route for the adult children of unmarried British overseas territories citizen fathers to acquire British overseas territories citizenship, the Opposition welcome and support clause 2. It shows that the adults who have slipped through the cracks in UK nationality law over many years are no longer punished and, instead, are finally placed on an equal footing with mainland UK children born under the same circumstances.

[Tom Pursglove]

Following clause 1, this clause also seeks to rectify a historical anomaly in British nationality law for people who would have become British overseas territories citizens. The purpose of the clause is to insert a new registration provision for people who, first, would have become BOTCs automatically had their parents been married and, secondly, would currently have an entitlement to registration as a BOTC but for the fact that their parents are not married. That has long been awaited. We are aware of people who would have become British had their parents been married and see citizenship as their birthright.