Nationality and Borders Bill (Sixth sitting)
Tuesday 19th October 2021
(3 years, 1 month ago)
Public Bill CommitteesNationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 October 2021 - (19 Oct 2021)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 7 - Question accordingly agreed to.
The Chair
There may be a vote in the Chamber this afternoon. If there is a Division, we will suspend for 15 minutes.
Clause 2
Historical inability of unmarried fathers to transmit citizenship
Question (this day) again proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I will continue my remarks from the point at which I left off. One of the general criteria is that the person has not previously been a British overseas territories citizen. The registration provisions are intended to cover those who missed out on becoming a citizen by virtue of the fact that their parents were not married; they will not benefit those who acquired BOTC status in some other way and subsequently renounced or were deprived of that status.
The provisions created by this clause are detailed, as we need to cater for changes over time to British nationality legislation. It may help if I summarise who is covered by each provision. Proposed new section 17C of the British Nationality Act 1981 will apply to those who would have been entitled to be registered as a BOTC under the 1981 Act if their mother had been married to their natural father at the time of their birth. It allows the Home Secretary to waive the need for parental consent where that would normally be required. A good character requirement must be met if there is one for the provision that the person could have applied under had their parents been married.
Proposed new section 17D of the 1981 Act will apply to those who would automatically have become a British dependent territories citizen or BOTC at birth under the 1981 Act had their mother been married to their natural father at the time of their birth. Both parents must consent to a child under 18 making an application for registration, but this requirement can be waived where one parent has died, or in special circumstances.
Proposed new section 17E is for those who were citizens of the United Kingdom and colonies immediately before the 1981 Act came into force, and who would automatically have become a British dependent territories citizen, and then a BOTC under the 1981 Act, had their mother been married to their natural father at the time of their birth.
Proposed new section 17F covers three groups. The first is those who were British subjects or citizens of the UK and colonies by virtue of birth in a former colony, and who would not have lost that status on that country’s independence if their parents had been married. The second group is those who were British subjects before 1 January 1949 and would have become citizens of the UK and colonies on that date if their parents had been married. This would affect, for example, a person born in Canada whose father was born in Bermuda, and who would have become a citizen of the UK and colonies by descent if their parents were married. The third group are those who did not acquire British subject status, or citizenship of the UK and colonies, but who would have done if their parents were married. For example, this would affect a person born in the USA to a father born in Montserrat.
Clause 2 also sets out when a person registered under these provisions will acquire BOTC by descent or otherwise than by descent. A person who holds that status by descent will not normally be able to pass it on to a child born outside the territories. Our intention here is to give the person the status they would have received had their parents been married. Home Office officials are working with territories to develop the process for these applications. As was the case with clause 1, we think that registration is the right route, rather than automatic acquisition, to allow people to make a conscious choice about acquiring British nationality.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
If a married couple has a child, the assumption is made that the man is the biological father, even though anyone who has seen “The Jeremy Kyle Show” will know that that is not always the case. If a couple is living together when a child is born, will DNA evidence be required in some or any cases, or will it be assumed that the man is the biological father?
Tom Pursglove
I am grateful to my right hon. Friend for that question. I will take it away and write to him on that point.
As I mentioned in relation to clause 1, we will also create a route for people who become BOTCs to additionally become British citizens.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Sections 1 and 2: related British citizenship
Tom Pursglove
I beg to move amendment 59, in clause 3, page 8, line 17, leave out “under this section” and insert “on an application under subsection (1)(a)”.
This amendment means that the requirement in s.4K(3), that a person is registered as a BOTC, only applies to applications under subsection (1)(a). It is not needed for applications under subsection (1)(b), which are made by persons who are already BOTCs, and as previously drafted could have prevented registration of persons naturalised as BOTCs rather than registered.
Tom Pursglove
The amendment remedies a drafting issue. The clause as a whole creates a route to register as a British citizen for people who have registered as a British overseas territories citizen under the new routes introduced by clauses 1 and 2. The British Overseas Territories Act 2002 made BOTCs British citizens as well, so it is right that we allow those who missed out on British overseas territories citizenship to become British citizens as well. However, we also want to cover those who have already taken steps to become a British overseas territories citizen, such as through registration or naturalisation in a territory. The amendment introduces the wording of section 4K(3). As that section is currently worded, it means that only those who have been registered as a BOTC can register as British citizens using this clause. The amendment will mean that people who have naturalised as a BOTC will also qualify.
More broadly, on clause stand part, this is an important change aimed at giving British citizenship to those who become British overseas territories citizens under the provisions introduced by clauses 1 and 2. As we have heard, two groups missed out on becoming BOTCs because of anomalies in British nationality law: people born to BOTC mothers before 1983, and people born to unmarried fathers before 1 July 2006. Clauses 1 and 2 will correct this, giving them the opportunity to acquire the BOTC status that they should have had.
We also recognise, however, that changes to the law in 2002 mean that they should also have become British citizens. Under the British Overseas Territories Act 2002, on 21 May 2002 all British overseas territories citizens who had that citizenship by connection with a “qualifying territory” became British citizens. For children born in a qualifying territory after 21 May 2002, British citizenship is acquired automatically if either parent is a British citizen or settled in that territory. This means that this group have missed out on both BOTC and British citizenship, so we need to create a route for them to acquire both.
We recognise that some people who did not become BOTCs automatically may have already taken steps to acquire that status by applying for registration or naturalisation in a territory. Some may also have applied to become a British citizen under existing provisions, but for those who did not, this clause allows a person who would have become a British citizen, had women and unmarried fathers been able to pass on status at the time of their birth, to register as a British citizen if they are now a BOTC.
Home Office officials are working with territories to develop the process for these applications, including in respect of whether this can be a done as a “one-stop” approach, with a person being able to apply for BOTC and then also opt in to apply to be a British citizen at the same time.
We regularly receive representations on this issue, from individuals and governors, and so understand the strength of feeling. We are aware of families where cousins have different statuses because women and men could not pass on citizenship in the same way, or because a child’s parents did not marry. Those in this position understandably feel that they have been unfairly prevented from holding a status that they should have acquired by birth. It is therefore important that we make this change, and I commend clause 3 to the Committee.
Bambos Charalambous (Enfield, Southgate) (Lab)
It is a pleasure to serve under your chairmanship, Ms McDonagh.
Opposition Members will not oppose amendment 59, and I will speak primarily to clause 3 stand part. The clause refers to the creation of the new statutory entitlement for British overseas territories citizens who have been affected by the injustices that we have heard about this morning in relation to clauses 1 and 2 to become citizens by registration. While all those with BOTC status additionally became British citizens in 2002, by virtue of section 3 of the British Overseas Territories Act 2002, we know of the loopholes that have existed due to the fact that women could not pass on citizenship, or because their parents were not married, and as a result many were unable to become British citizens under the 2002 Act. I am pleased that the Government are committing to new routes for adult children of British Overseas Territories Citizen parents to be registered as BOTCs and, in turn, as British citizens.
Clauses 1 to 3 would benefit people born to BOTC mothers and BOTC unmarried fathers who could not pass on citizenship to their child due to nationality laws at the time of the child’s birth, which, as we have heard this morning, is deeply unfair and is rightly being addressed in this legislation. Clause 3 creates a route to becoming a British citizen for people who registered as a BOTC under the new routes introduced by clauses 1 and 2.
However, we must also discuss the implementation of clauses 1 to 3. Accessibility is all-important and while we welcome the changes made to British nationality law outlined earlier today, I have concerns about rights being inaccessible, which we have seen time and again in the UK, with devastating consequences. If we take perhaps the clearest and most heartbreaking example of the Windrush scandal—one of the most shocking and contemptible episodes in the UK Government’s history—I am sure colleagues across the Committee will agree that the Windrush generation were treated shamefully after a lifetime of working hard, paying their taxes, bringing up their families and contributing to our society. They were left facing uncertainty about their legal status in the UK and lost access to their homes, jobs and healthcare, through no fault of their own.
As last year’s “Windrush Lessons Learned Review” highlights, changes made to British nationality law in the 1980s
“progressively impinged on the rights and status of the Windrush generation and their children without many of them realising it.”
Therefore, to avoid repeating the mistakes of the past, the rights that are to be established for British overseas territories citizenship must be accessible. The Home Office must provide assurances as to when and how these rights will be made public and widely publicised for those affected. I make the point around accessibility now as we discuss clause 3, and I hope we can return to it later on, as I believe it is very important.
Overall, the Opposition none the less support clause 3 as it provides the framework to tidy up inconsistencies in British nationality law and acknowledges those who have suffered under UK law due to loopholes outlined in clauses 1 and 2.
Amendment 59 agreed to.
Amendment proposed: 10, in clause 3, page 8, line 18, at end insert—
“(4) The Secretary of State must not charge a fee for the processing of applications under this section.”—(Stuart C. McDonald.)
This amendment would prevent the Secretary of State from charging a fee for British citizenship applications by certain British overseas territories citizens.
Question put, That the amendment be made.
Question negatived.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Period for registration of person born outside the British overseas territories
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
We have been clear that the nationality provisions within the Bill seek to tackle historical unfairness and inequality in British nationality law. As with earlier clauses, this legislation gives us the opportunity to amend provisions for British overseas territories citizens to mirror the comparable requirements already in place for British citizens.
Section 17(2) of the British Nationality Act 1981 provides a registration route for a child whose parent is a BOTC by descent where that parent had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application to register a child under this route must be made within 12 months of the child’s birth. However, the parallel provision for British citizens, section 3(2) of the 1981 Act, was amended in 2010, replacing the requirement for an application to register a child to be made within 12 months of the child’s birth, with a requirement for the application to be made while the child is a minor.
Clause 4 seeks to amend the BOTC registration route in the same way. Rather than requiring applications to be lodged within 12 months of the birth, the clause would allow an application to be made at any time before the child’s 18th birthday. Consequently, the provision for the Secretary of State to exercise discretion to extend the registration period from 12 months to six years in section 17(4) will be removed as it is no longer needed.
Entitlement remains limited to children with a particular parental and residential connection to the relevant territory. In line with the British citizenship route, we do not propose extending the route to adults. Other adults seeking to become BOTCs, such as by naturalisation, must demonstrate a personal connection with the territory and cannot rely merely on the residence of their parents, and we want to ensure that this amendment remains consistent with other existing provisions. The aim is to ensure fairness across British nationality law, not to create further discrepancies. Clause 4 will bring the provisions for BOTCs in line with those already in place for British citizens.
Bambos Charalambous
Clause 4 also refers to an additional aspect necessary to align British citizenship and British overseas territory citizenship. The clause removes a requirement that applications for registering a child as a BOTC must be made within 12 months of birth, amending section 17(2) of the 1981 Act. As the Committee will know, section 17(2) provides a registration route for a child whose parent is a BOTC by descent and had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application under this route must be made within 12 months of the child’s birth; however, the same provision for British citizens was extended throughout childhood with the Borders, Citizenship and Immigration Act 2009, which replaced the requirement for the application to be made within 12 months of the child’s birth with a requirement for the application to be made while the child is a minor.
Clause 4 amends the BOTC registration route in the same way, so the same extension from within 12 months of the child’s birth to throughout childhood is applied to BOTCs. The Opposition support this clause and would be interested to know how many people will be affected once clauses 1 to 4 have been implemented.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Disapplication of historical registration requirements
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
This clause seeks to amend British nationality law to remove historical registration requirements and to reflect recent case law. As we have already heard, before 1983 women were unable to pass on British citizenship, and before 1 July 2006 unmarried fathers were unable to pass on citizenship. Under the previous legislation, the British Nationality Act 1948, citizenship could normally only be passed on to one generation of children born outside of the UK and colonies.
However, section 5(1)(b) of the 1948 Act permitted transmission through a father to a further generation if the child was born in a foreign country and their birth was registered within a year at a British consulate. The period could be extended at the Secretary of State’s discretion. An example of this might be where the child’s grandfather was born in the UK and their father was born in the United States of America: the child’s birth could be registered at the British consulate in the United States and they would have become a citizen of the United Kingdom and colonies as a result. However, a British mother or unmarried British father could not register their child’s birth at a consulate, because they were unable to pass on citizenship at that time.
There are already measures in place for people to register as a British citizen if they would have been able to acquire that status automatically if women and unmarried fathers had been able to pass on citizenship under the 1948 Act. This clause means that a person will not be prevented from registering under those provisions if the only reason they cannot qualify is that their parent was unable to register their birth at a consulate.
Bambos Charalambous
As we move through part 1 of the Bill, we turn to British citizenship in clause 5. This clause again seeks to correct historical problems in British nationality law concerning discrimination against women. The current statutory language has caused significant problems in implementation. Under the 1948 Act, citizenship could normally only be passed on for one generation to children born outside the UK and colonies, but section 5(1)(b) of the Act permitted it to be passed on to a further generation if the child was born in a foreign country and the birth was registered within a year at a British consulate. The child of the British mother or unmarried British father could not be registered because they were unable to pass on citizenship at the time.
British women, therefore, although able to inherit their fathers’ nationality when born abroad, have historically been denied the right to pass it on to their own children in the same circumstances. Although when it came into force on 1 January 1983 the British Nationality Act 1981 equalised the rights of men and women as regards the nationality of their children, it did nothing to remedy the discrimination against women that had persisted up to that point. That discrimination was demonstrated in the Supreme Court on 9 February 2018, in the Advocate General for Scotland v. Romein. Ms Romein was born in the USA in 1978 and her father was a US citizen. Her mother was born in South Africa to a Scottish mother and a Welsh father, from whom she inherited her British national status. Despite her family’s connections to the United Kingdom on both sides, as a result of the discrimination inherent in British nationality law—specifically, at that time, section 5 of the British Nationality Act 1948—she was unable to pass her British national status on to her own child, despite wishing to do so.
Clause 5 therefore amends eligibility requirements for registration under section 4C and 4I of the British Nationality Act 1981, to disapply the requirements for a birth to have been registered at a British consulate within 12 months. In effect, it will tidy up the language of British nationality legislation to make clear the Supreme Court’s judgment in Ms Romein’s case, which confirmed the right of British women to pass their nationality on to their children born abroad. The Opposition support the clause, which creates no new rights, but rather makes clear the existing rights in UK law. We welcome that.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Citizenship where mother married to someone other than natural father
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
Picking up on the earlier question that the shadow Minister asked, I should say that my understanding when it comes to this amendment is that the clause will affect only a small number of people. But it is an area of law out of touch with modern society, so it is right that we should make this change.
The issue is that in British nationality law the mother’s husband is the child’s father, even if she has been separated from him for years and the child is not biologically related to her husband. That can create difficult cases—for example, when a child’s biological father is a British citizen, but their father for nationality purposes is the mother’s estranged non-British husband. The child misses out on British nationality as a result.
Generally, we think it is right that the mother’s husband should be treated as the child’s father for nationality purposes. The common law presumption is that a child born during a period of marriage is the child of the mother’s husband, unless shown otherwise. For nationality purposes, however, there should be certainty about a child’s status, which should not be subject to change at a later date if paternity is disputed. But we need a solution for the child whose father is not the mother’s husband, so that they do not miss out on becoming British through their natural father.
Until now, we have been registering such children as British citizens using the discretion that the Home Secretary has to register any child under the age of 18 under section 3(1) of the 1981 Act. We recognise that those children would have been British automatically were it not for their mother being married to someone else, so we made that a fee-free route last year.
However, the inconsistency has been highlighted by the courts. In the case of K, the court ruled that, although it was a correct interpretation of the legislation for the child not to be a British citizen automatically, the fact that the only remedy was through discretionary legislation was incompatible with the European convention on human rights.
We must take this opportunity to create a specific route for children in this position to be able to acquire British nationality. That is achievable by removing from existing registration provisions the requirement for children of unmarried fathers to have been born before 1 July 2006. People in this position may not see any practical difference, as they can currently make a fee-free application under section 3(1), but the important point is that the provision gives this group a legal entitlement to registration, rather than their having to rely on the exercise of discretion.
We are also using the clause to allow a child of a non-British member of the British armed forces to make an application to register as a British citizen, despite their mother being married to someone other than their biological father at the time of their birth. That will bring them in line with other children whose parents were serving overseas at the time of the birth.
Bambos Charalambous
It is deeply regrettable that British statutory law has long discriminated against children born out of wedlock, preventing British nationality from being derived from a British father if he was not married to the child’s mother. The British Nationality Act 1981, when first passed, did not correct that discrimination relating to British citizenship, but since then there have been various attempts to remove it. Those amendments have created rights to be registered as a British citizen for some of the people affected by that discrimination. However, no corresponding right has been introduced for people who would have become British overseas territory citizens. As we have seen, clause 2 is intended to correct this omission, and the Opposition support it.
However, clause 2 is not sufficient in itself to correct the discrimination relating to British citizenship; indeed, the relevant legislation has led to an anomaly. That anomaly, which is to be corrected by clause 6, which we also support, is that people who would have been born a British citizen but for their father not being married to their mother now have the right to be registered as a British citizen if they were born before 1 July 2006. That applies whether or not the mother was married to someone else at the time of the person’s birth.
However, people born on or after that date, who would similarly have been born a British citizen but were not because their father was not married to their mother, do not have a corresponding right. The courts have declared that discrimination to be incompatible with the Human Rights Act 1998. Clause 6 is intended to correct that injustice, and we therefore support it. It does so only for British citizenship. That is because the correction for British overseas territories citizenship is built into clause 2.
As has been said, our primary concern with clauses 1, 2, 3, 5 and 6 is not with the text or with the fundamental intentions behind them but with the fact that, when commenced, the rights that are to be established must be accessible. There are too many examples of British nationality rights being inaccessible. The Windrush scandal is but one especially painful relevant example.
The following matters are therefore crucial. We would like the Minister to give assurances as to how these rights will be made public and will be sufficiently widely publicised, not least because many of the beneficiaries will be in other territories or countries.
Ministers must equally give assurances that evidential and procedural obstacles will, to the fullest extent practical, be removed or reduced. Biometric registration and overseas and mandatory citizenship ceremonies, for example, must not be prohibitive to the exercise of these rights, as they have been in the past. Biometric registration must not be prohibitively expensive or inaccessible. Ceremonies can be waived, and that should be done where a person wishes to do that, or where a ceremony cannot be offered without undue cost or delay to the person being registered.
Where relevant information is available and can be confirmed by the Home Office or the Passport Office, that should be done. People must not be obstructed by unreasonable demands for evidence. It must be understood that, for some people, there may be considerable obstacles to securing evidence of their rights so many years after the original injustice—for example, due to age, somebody passing away, or separation, including by reason of abuse or violence. The Home Office or Passport Office must be as helpful as possible to facilitate the exercise of these rights.
In conclusion, we support the clause and the intention behind it, but it is of great importance that the Minister also ensures that these rights are fully accessible.
Tom Pursglove
Let me respond briefly to the point that has understandably and rightly been made. As I said in response to earlier clauses, there is a very constructive working relationship between the Home Office and the various overseas territories for which these provisions are relevant, as well as with the various governors. There is good engagement, and we are keen to see this information cascaded.
The point I would strongly make is that we are seeking through the provisions in the Bill to put right past injustices, and we would want this information to be as readily available as possible to people who may find themselves affected. The hon. Member for Enfield, Southgate has my undertaking that I will take that point away and monitor it very closely to ensure that that happens.
In the discussion on an earlier clause, my right hon. Friend the Member for Scarborough and Whitby showed an interest in relation to proof of paternity. In relation to this clause, regulations will set out what can be accepted as proof of paternity—first, being named before 10 September 2015 as the child’s father on the birth certificate issued within 12 months of the birth and, in all other cases, any evidence such as DNA test reports, court orders or birth certificates considered by the Secretary of State to establish paternity. I know that my right hon. Friend had an interest in that issue in relation to the earlier clause, but I thought that it would be useful to say something about it here as well.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Citizenship: registration in special cases
Bambos Charalambous
I beg to move amendment 35, in clause 7, page 9, line 36, at end insert—
‘(1A) In section 1 (acquisition by birth or adoption) subsection (5)—
(a) in paragraph (a), for “minor” substitute “person”; and
(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.’
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.
The Chair
With this it will be convenient to discuss the following:
Amendment 13, in clause 7, page 9, line 40, leave out “may” and insert “must”.
This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
Amendment 30, in clause 7, page 10, line 25, at end insert—
‘4M Acquisition by registration: equal treatment
(1) Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.
(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered under subsection 4L(1) and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.
(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’
This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.
Amendment 14, in clause 7, page 10, line 30, leave out “may” and insert “must”.
This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.
Amendment 31, in clause 7, page 11, line 8, at end insert—
‘17I Acquisition by registration: equal treatment
(1) Where a person (P) is registered as a British Overseas Territories citizen under subsection 17H(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.
(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.
(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’
This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British Overseas Territories citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.
Amendment 34, in clause 7, page 11, line 8, at end insert—
‘(4) After section 23 (Citizens of UK and Colonies who are to become British overseas territories citizens at commencement), insert—
“23A Acquisition by registration: special circumstances
(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British Overseas citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British Overseas citizen but for—
(a) historical legislative unfairness,
(b) an act or omission of a public authority, or
(c) exceptional circumstances relating to P.
(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies, or a British Overseas citizen, if an Act of Parliament or subordinate legislation (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person’s nationality status—
(a) treated males and females equally,
(b) treated children of unmarried couples in the same way as children of married couples, or
(c) treated children of couples where the mother was married to someone other than the natural father in the same way as children of couples where the mother was married to the natural father.
(3) In subsection (1)(b), “public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.
(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.”’
This amendment seeks to extend the remedy in Clause 7 to those who would have been British Overseas Citizens but for historical unfairness.
Clause stand part.
Bambos Charalambous
It is the view of the Opposition that British nationality law is out of kilter with adoption law in England and Wales and needs to be rectified. In those countries where an adoption order has been made by a court, it may be made where a child has reached the age of 18 but has not yet reached the age of 19; yet such an adoption order confers British citizenship automatically only where the person adopted is under 18 on the day the order is made. It seems evident to the Opposition that that is a slip that results in unnecessary unfairness.
The adoption law as it stands was enacted some 20 years after the relevant nationality law, and apparently the inconsistency that it created was overlooked. It has never been suggested that the adoption law and British nationality law should be out of step where a court in England and Wales authorises a person to be adopted by a British citizen parent. It is important for every member of the Committee to know that the stated problem is not merely a theoretical one; it generates victims in real life, including a university graduate who was 18 but not yet 19 when she was adopted by her aunt after her mother died of cancer, and who will have no basis on which to enjoy family life in the UK with her new adopted mother once her student status has ended.
We therefore believe that the position needs correcting. The Bill is the right vehicle to make that correction, which is not controversial and which we do not believe should divide Committee members on party lines. The amendment, which should command cross-party support, would bring British nationality law in line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19, and the adoptive parent was a British citizen, British citizenship is conferred automatically on the person adopted. No adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 but not yet 19 when the adoption order is made.
It is also important to point out that it is no answer to the problem to say that an 18-year-old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed new section 4L of the British Nationality Act 1981, provided for in clause 7. The problem relates to those persons who should be treated as British citizens automatically from the date of their adoption by a British citizen. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is the risk that such an application may be overlooked, or refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated. We therefore believe that the sole solution is to make this simple amendment to align British nationality law with adoption law.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is a pleasure to serve under your chairship, Ms McDonagh. I will speak in support of amendments 13, 14, 30 and 31. I also support amendments 34 and 35. Amendment 35 in particular seems to make perfect sense—although it relates exclusively to England and Wales. I confess that I have not managed to ascertain whether a similar issue arises in relation to either Northern Ireland or Scotland and, depending on what the Minister says in response, that is perhaps something we can all do our homework on before Report stage.
On the other amendments, this brings us back to the point I made when making the case for no fees for introducing applications, or at least restricted fees. These fees put people off from accessing their rights, especially when there is discretion or subjective criteria are used that mean people can have only a limited idea about whether paying a fee and making an application will result in anything positive happening. If they can afford it and if they know that they meet the criteria, people will pay a fee, but this would not necessarily make it easier to see in advance whether they would be able to show historical injustice or exceptional circumstances, or that the fault lay with the public authority.
We have already debated the fee aspect and made the case for lower fees to ensure that people are not put off from seeking to fix injustices that they have suffered. These amendments taken together address the other side of the coin: what can be done to make the criteria more transparent so that people can feel confident with their applications?
Amendments 30 and 31 seek to ensure that both officials and the victims of injustice are aware of how the provisions brought about by clause 7 are being implemented. If a new type of injustice in UK nationality law is discovered, or circumstances are deemed so exceptional that the Secretary of State decides that registration is merited and she grants such an application, she will first need to ensure that policy and guidance are updated so that those processing other similar applications are aware of that fact and people applying in the same circumstances are successful. More than that, she will also be required to take steps to try and ensure that people who might be entitled to register in the same circumstances know that they can do so.
Again, as I said earlier, we know from Windrush how important taking such action to make people aware of their rights can be. In short, people will have a greater understanding of whether their application will be successful and those who meet the criteria set out in policy will apply. Those who are making decisions will be aware that in previous cases similar applications have been granted and those applications will therefore be successful.
Amendments 13 and 14 challenge a Minister to explain why the provisions introduced by clause 7 are expressed entirely as “may” rather than “must”. If a person proves they are a victim of an injustice, which is carefully defined in the clause, then why should the Home Secretary still have a totally unlimited power to refuse registration in any event? Similarly, if a person shows they were denied citizenship because of an act of omission by a public authority or by exceptional circumstances, why should the Home Secretary have a totally unfettered power to say no?
The big fear is that the Secretary of State has the broadest discretion possible regardless of whether a person meets other criteria. Who will make an application, particularly if there is a fee involved? I can see possible flaws in going completely the other way to a situation where it is a requirement and a must, but that would be better than the totally unlimited discretion that is in the Bill right now. I simply challenge a Minister to come up with a better form of this.
Bambos Charalambous
On amendment 30, we want to make sure that the Secretary of State is required to take all reasonable and necessary steps to ensure that the right to registration under clause 7 is made accessible to all its intended beneficiaries. We also want to ensure that historical legislative unfairness is corrected. We do not believe that it is sufficient to rely on that being done ad hoc, subject to the discretion of any particular Secretary of State.
As has been obvious from discussions on previous clauses, several injustices have been identified in British nationality law in our policy and practice over the years. Important provisions in the Bill are necessary to correct some of that, including changes to previous amendments to the British Nationality Act 1981, which only partially corrected a particular injustice.
The Opposition understand and accept that the broad purpose of clause 7 is to provide the means to correct further injustices, and we broadly support its aims. We are concerned, however, about the implementation of the clause, and the amendment serves to address that.
Hon. Members will be aware that clause 7 introduces a new discretion to register adults as British citizens or British overseas territories citizens where that is immediately necessary or appropriate in view of some historical injustice, an act or omission by a public authority, or other exceptional circumstances. As it stands, that provision is welcome and reflects the underlying purpose of all rights of registration under the British Nationality Act 1981 to ensure that citizenship is the right of all persons connected to the UK or the British overseas territories.
However, given that clause 7 relates to historical legislative unfairness, it raises a concern that it may be relied on by Ministers to avoid making necessary future amendments to the 1981 Act, required specifically to correct such injustice. We are deeply concerned, because when such an injustice is identified, Ministers must take the appropriate action to correct it in the Act. It is not enough to rely on the opinion of any particular Minister or group of Ministers. For that reason, we want to insert the following in clause 7:
“Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—
(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;
(b) amend or make policy or guidance in line with the registration of P;
(c) make that new or amended policy or guidance publicly available; and
(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.”
Clause 7 must genuinely be given real practical effect—it must not become a mere token statutory provision. Registration requires someone to make a formal application, so the clause will be ineffective if uncertainty over the result of an application, coupled with any cost or other impediment to do so, deters people from making applications. In such circumstances, clause 7 could stand redundant on the statute book because no one to whom it ought to apply knows about it or is sufficiently encouraged or enabled to apply for the discretion to be exercised.
For those reasons, the following matters must, at a minimum, be addressed. It is generally inappropriate, as with registration more generally, for the Secretary of State to charge prohibitive and above-cost fees to prevent people from exercising their rights to British citizenship. The fees are made even more prohibitive if it is not possible to assess in advance that an application will be successful because there are no fixed criteria by which the right to be registered will be assessed.
Ministers should also be pressed to give an assurance that when an individual application is successful, there will be positive action to ensure that other potential applicants are made aware of their equal or similar right to register at their discretion. Under amendment 30, if an unfairness, act or omission by a public authority or exceptional circumstances are identified that make it necessary to exercise discretion, appropriate publicity must be given to it, and there should be a formal updating of public-facing policy. It must be made clear that others in the same circumstances will succeed with their applications to register, if they make them; otherwise, people will continue to be excluded from citizenship in circumstances where it is clearly intended that they should not be.
Anne McLaughlin (Glasgow North East) (SNP)
I will speak in support of the amendment in my name and the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East. We also broadly support the Official Opposition’s amendments. I wanted to raise the evidence that the Committee heard from Free Movement and Amnesty International.
Anne McLaughlin
I was speaking in support of all the amendments in the group and will use evidence given to the Committee by Amnesty International and Free Movement before adding a couple of points. The clause introduces the discretionary route for registration as an adult. Discretion can be exercised where, in the Secretary of State’s opinion, that person would have been able to become a British citizen if it were not for a number of things. I want to look first at the exceptional circumstances.
Free Movement’s concern, shared by a number of people, including me, is about the reference to the Secretary of State’s opinion. A future Secretary of State—let us not say the current Secretary of State, because we would not want to personalise this—may hold an opinion generally considered to be disproportionate, unreasonable or ridiculous. They may not be from the current party in government—I am not saying that it is more likely to happen under one particular party—but where does it end? There is nothing to say that their opinion can be curbed. I am wondering what is meant by that reference. How could a legal challenge be mounted against a decision that the Secretary of State is allowed to make based on their opinion? I would like something from the Minister on that.
I turn to historical legislative unfairness, which we have talked about a lot today. It has been defined with specifics. We have talked about the unequal treatment of mothers, children of unmarried couples, and children of mothers married to someone other than their natural father, but the list does not include discrimination on the basis of ethnicity and race. The list is not definitive. Is there scope to consider the role played by such discrimination in terms of historical unfairness? I would like the Minister’s thoughts on that.
On the act or omission by a public authority, it is always useful to say when we think somebody has got it right—and we have said that a number of times today. I want to reiterate that, as Free Movement has said, there have been a number of concerns that local authorities responsible for children who become entitled to British citizenship under their care do not always get the applications made on those children’s behalf. Sometimes that is because there has been a misunderstanding, and at other times it is deemed to be not in the child’s interest at that time and it is not always included in their care plan. By the time they are an adult, it is too late for them to make that decision themselves, so I am quite supportive of measures to deal with that.
I want to talk about a concern that Amnesty has expressed—I am sure the Minister has seen this—which is that clause 7 has to be given real, practical effect, and that the measure will be ineffective if uncertainty over the result of an application, along with the excessive fees that we have talked about, deters people from making applications in the first place. I know that my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has made those points.
Amnesty has asked for the following matters to be addressed. First, we have talked about fees at length, but I reiterate that several organisations are very concerned about the fees. Secondly, Amnesty has asked for assurances that where an individual application is successful, the Government will take positive action to ensure that other potential applicants are made aware of their equal or similar right to register at discretion. This means that where an example is identified of, as the Bill says, unfairness, an act or omission by a public authority or exceptional circumstances on which it is right or necessary to exercise the discretion, there should be publicity and awareness raising. We have talked a lot about that, but Amnesty wants to know that that will happen, and that members of the public who could use the legislation to the same positive effect will have that information. Lastly, Amnesty has asked for an assurance that awareness raising will apply equally to British citizenship and British overseas territories citizenship.
Bambos Charalambous
I want to speak to amendment 34, which deals with people who would be British overseas citizens today but for historical unfairness in the law, an act or omission of a public authority or other exceptional circumstances. The Opposition welcome the fact that clause 7 attempts to rectify the position for those who would be British citizens or British overseas territories citizens today but for such an error. However, the clause does nothing for people who would be British overseas citizens today, and that is wrong.
Those who would be BOCs but for such an error should not be excluded from the proposed remedy. They have suffered from historical unfairness, just as those who would be British citizens or BOTCs today have done. Prior to 1983, there was one substantive class of British nationals, citizens of the United Kingdom and colonies. When the British Nationality Act 1981 came into force on 1 January 1983, CUKCs were divided and reclassified into three categories: British citizens, connected to the UK; British dependent territories citizens—now BOTCs—connected to the remaining British overseas territories, such as the Falkland Islands and Gibraltar; and BOCs, connected to the former British colonies.
The Home Office acknowledges that past unfairness in British nationality law includes where men and women were unable to pass on citizenship equally, and where unmarried fathers could not pass on citizenship. The Home Office acknowledges that in the case of people who could be British citizens or BOTCs, but many persons who would be overseas citizens today also suffer from such prejudice. As a result of the British overseas expansion and later decolonisation, there are pockets of BOCs around the world—for example, in Kenya, Malaysia, South Africa and anglophone west Africa, including places such as Sierra Leone. The category of BOC was created under the British Nationality Act, and it gave effect to the fact that BOCs were British nationals and should remain so. The newly created status gave no home or right of abode in the UK or any other remaining British territory.
Although BOCs have no right to come to the UK or a remaining British overseas territory, the status still has real value. It enables a person to seek to use the UK BOC passport, and possession of such a passport enables BOCs to seek UK consular assistance in a third country and to seek residence and permission to work in third countries under local laws. It may be useful where the passport of another nationality that those people hold is considered unreliable, and where their children are born stateless, to benefit from UK laws that reduce statelessness.
BOCs around the world make active use of that status. For example, many persons of Somali heritage born in Aden in Yemen when it was a British colony are reliant on BOC status, as they were, and are, shut out from the Yemeni nationality. Their BOC passports enable them to obtain lawful residence and permission to work in Gulf states, and to secure a visa to study in other countries. The Home Office proposal in clause 7 helps those affected by historical unfairness in British nationality law, an act or omission of a public authority, or exceptional circumstances to become British citizens or BOTCs. However, potential BOCs would also have suffered from such historical unfairness in British nationality law, acts or omissions of public authorities, or other exceptional circumstances. All those classes of British nationals were CUKCs prior to the British Nationality Act 1981, and all suffered from these problems. Clause 7 should therefore be supplemented to provide for registration as a BOC on the same basis as it enables registration as a British citizen or BOTC.
Tom Pursglove
I will deal with each of the amendments proposed, and then I will of course pick up on a number of the points, questions and challenges that have been raised throughout the course of this debate.
I thank the hon. Members for Enfield, Southgate and for Halifax for having tabled amendment 35, which would allow a person to become a British citizen automatically following their adoption in the UK if the order was made after the age of 18 but before the age of 19, but the adoption proceedings started before their 18th birthday. I have noted the unusual situation, highlighted by hon. Members, in which newly adopted young people can find themselves as a result of differences between the Adoption and Children Act 2002 and the British Nationality Act 1981. An adopted person can automatically acquire British citizenship, provided they are under 18 on the date the adoption order is made. However, under the 2002 Act, it is possible for an adoption order to be made where someone is already 18 years old but has not yet turned 19.
I am aware of cases in which individuals are affected by those nationality provisions, and I have some sympathy for them. However, I am also conscious that a person aged 18 will normally be capable of making their own life choices. At 18, someone can purchase alcohol, accrue debt, join the Army, or vote in an election. From a legal standpoint, at 18, an individual is fully fledged and can theoretically live independently of other family members. It is therefore consistent that a person aged 18 or over who is seeking to acquire British citizenship should normally do so only on the basis of their personal connections with this country, not those of their new family.
I must consider the wider position of adopted children, and I am satisfied that to extend the nationality rules to cover persons who have attained the majority would move nationality out of step with immigration routes. For example, young people over the age of 18 must meet the requirements of the immigration category they are applying in, and are unable to rely on other family members for a claim to residence. I have sympathy for those young adults who feel that they have lost out, but other routes are available that would allow them to choose whether they wish to naturalise or register as British citizens.
Turning to amendment 13, again I thank hon. Members for tabling the amendment and for drawing attention to clause 7, which we believe is a positive move that will allow the Home Secretary to grant British citizenship to those who have missed out on acquiring it, potentially due to reasons beyond their control. Clause 7 will apply to anyone who
“would have been, or would have been able to become, a British citizen but for—
(a) historical legislative unfairness,
(b) an act or omission of a public authority,”
or their exceptional circumstances. This means that the clause covers not just those who would have become citizens automatically, but those who might have had an entitlement to registration or could have registered or naturalised at the Home Secretary’s discretion. As such, we think it right that the provision remains discretionary, to allow the Home Secretary to take into account the criteria that she might have taken into account at the time.
Stuart C. McDonald
I will have to give some further thought to what the Minister has just said. I take the point about people who would have had to register—therefore, there is still an element of discretion. However, will he look again at the case of those who would have automatically had that citizenship and whether there really should be such broad discretion in cases where people have missed out on citizenship because of historical injustice or exceptional circumstances?
Tom Pursglove
I am grateful to the hon. Gentleman for the point that he raises. Broadly speaking, there is a view that the discretionary approach to cases is helpful in ensuring that we can reach the right decision in individual cases and that we are able to take into full account, in general terms, all the relevant factors.
Neil Coyle (Bermondsey and Old Southwark) (Lab)
Is it the Minister’s intention that the Government will publish the grounds on which decisions are made with discretionary purposes for each decision, regardless of whether they are successful or not?
Tom Pursglove
I will come back to the point that the hon. Gentleman raises but, as I say, there is a view that taking a discretionary approach to cases is helpful in reaching the correct decisions, and that the circumstances of individual cases are properly taken into account. There is precedent in the British Nationality Act 1981 for applications to be considered on a discretionary basis—for example, naturalisation is a discretionary provision. The law states that the Home Secretary may naturalise a person if she thinks fit and that person meets the statutory requirements. Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised, and that is relevant to the point that the hon. Gentleman raises.
Neil Coyle
It is in part, but publishing the full grounds will help to determine whether people seek to take a case or not.
My further question is about the equality impact assessment. As I touched on this morning, the Government are suggesting that they will extend access to legal aid through the Bill. Is the Government’s intention that legal aid will be extended for this specific purpose, regardless of whether people can make a successful claim or not?
Tom Pursglove
Again, I am grateful to the hon. Gentleman for his question. The key point is that through the Bill, we are improving access to justice. Clearly, the improved access to justice offer is very relevant to the one-stop shop proposals that we are taking forward in the Bill and which we will no doubt debate in greater detail when we reach later clauses.
Tom Pursglove
We will no doubt debate this in great detail in due course. As I say, we are putting in place an improved access to justice offer more generally through the Bill.
Stuart C. McDonald
There is an absolutely fundamental distinction between naturalisation and registration. We are talking about people who would have had an automatic right to citizenship, which is completely different from naturalisation altogether. Again, I am still struggling to understand why there has to be such broad discretion. People have lost their automatic right because of historical injustice, and the danger that has been highlighted by Members is that that will put folk off applying. Will the Minister not even think about some restrictions on the degree of discretion that the Home Secretary has, or at least provide detailed guidance on when she will exercise that in people’s favour?
Tom Pursglove
I want to pick up the points that have been raised by the hon. Members for Bermondsey and for Old Southwark and for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, the guidance is a very important element of the immigration system, so that people can understand very clearly what is required and precisely how cases will be handled. I am always in favour of trying to make such matters more transparent and to improve guidance wherever we can, and that is always ongoing work. I take on board the point that has been raised, and I will certainly reflect on it.
As I say, Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised. This works, and we intend that published guidance will also be available for the new adult registration route. The fact that the Home Secretary is not obliged to naturalise a person does not therefore impact practically on most applicants. However, we want to maintain the ability to refuse applications from people who might meet the requirements, but are nevertheless unsuitable to become British citizens.
Where registration is set out in legislation as an entitlement, it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. Because of the historical nature of citizenship and the fact that issues can crop up that we might not have been aware of, we need the flexibility to be able to consider someone’s circumstances without being overly prescriptive. Equally, we recognise that people can be affected by a number of circumstances, which may be difficult to set out in detail. We are not making this a discretionary provision in order to refuse deserving people, but to allow us to respond to situations that cannot reasonably be foreseen.
I understand that hon. Members may wish to seek assurance that people who have missed out in the past will be granted citizenship, but we think that this can be achieved through a discretionary route, which will allow us to take into account all the circumstances of a case. That is why we are introducing the various provisions in the Bill in the first place: to right those historical wrongs. We want this to work.
On amendment 30, again, I thank the hon. Members for tabling the amendment. The new adult discretionary registration provision will allow the Home Secretary to grant British citizenship to anyone who would have been, or would have been able to become, a British citizen, but for historical legislative unfairness, an act or omission of a public authority, or the exceptional circumstances in play. I understand hon. Members’ concerns that that power should be used fairly and consistently, which is right.
Each case will be considered on its own merits, taking into account the particular circumstances of that person, including the reasons they were unable to become a British citizen automatically, through registration or through naturalisation. On that basis it would be unnecessary to have a legislative clause that effectively causes us to treat like cases in a similar way, because applications will be decided in line with the legislation and guidance.
I have already mentioned that we intend to publish caseworker guidance setting out when we expect that this power might be used and the sort of circumstances we will take into account. Of course, that is done very transparently and can be seen by hon. Members and by people out there seeking access to those routes. As I think is my colleagues’ intended purpose in proposing the amendment, that will help to maintain consistency in decision making.
However, I am not convinced that that would be helped by a statutory requirement to produce or amend guidance every time a person with different circumstances is registered. There may be concerns about reflecting an individual’s circumstances in published guidance, even if anonymised. We will reflect the overarching principles in guidance and amend as appropriate. Guidance will continue to be published on the gov.UK website. I can also assure hon. Members that work is done within UK Visas and Immigration to ensure consistency of decision making, particularly when a new route is introduced, and I think that that is right and proper.
I do not think we can commit in statute to publicise any grants of citizenship to people in a similar position. As I have said, we will publish guidance setting out the approach we will take and make it available to potential applicants, but it would not be right to impose a statutory requirement to do so. Indeed, some of those registered will be in unique positions and it would not be possible to identify others who might qualify on the same basis.
The reporting obligation set out in the amendment would require the Home Secretary each year to report any historical legislative unfairness that had been identified in registering a person under clause 7 and say how she intends to correct it. Perhaps it would help to clarify that the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario.
Neil Coyle
I thought the Minister was one of those who believed in Parliament taking back control, not the Executive having more control, but let me have one more attempt at the legal aid question. This is not just about the circumstances of the individuals involved—we have heard some distressing cases today—but about the costs imposed in particular on councils, which are using emergency services to support people who might otherwise qualify for support. If legal aid were immediately available for everyone affected, those cases could be resolved much more quickly. Given the complexity the Bill is imposing, it seems as if it should be an actual requirement that that support be available. Let me try again: will legal aid be extended to everyone facing these circumstances as a result of this legislation?
Tom Pursglove
I am grateful to the hon. Gentleman for his question and I will visit that in my later remarks, if I may. He is right to say that I think it is right that Parliament took back control. That is a debate we have had on many occasions and no doubt will continue to have in the years ahead. I am a member of the Government, but I still believe very strongly in parliamentary sovereignty and the role of Parliament in decision making.
To clarify, the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario, some of which may affect only a very small number of individuals. This is in fact the way we intend to address those situations, and it may not necessarily be appropriate to introduce additional measures to do so. As such, I do not see that specifying such a report in legislation would be helpful. In terms of addressing unfairness, this provision does not give a far-reaching power—it is much narrower than the discretion the Home Secretary has to register a child under section 3(1) of the British Nationality Act 1981. It does, however, reflect our desire to address historical injustices, as is reflected in all of the first eight clauses. I therefore ask hon. Members not to press amendment 30.
I am grateful to hon. Members for tabling amendment 14, which replicates amendment 13 for British overseas territories citizenship. I set out in response to the earlier amendment why we wanted this to be a discretionary provision, rather than creating an obligation to register. The same arguments apply here. Turning to amendment 31, I have set out why we could not accept an earlier amendment, and the same arguments apply here. I hope that hon. Members will not press amendment 31 either. On amendment 34, new clause 12 seeks to create a discretionary adult registration route for a person to become a British overseas citizen.
The Chair
I am sorry for interrupting, but I am not sure that we are actually debating new clause 12 at the moment. As far as I understand it, we are debating amendment 35 to clause 7 and amendments 13, 30, 14, 31 and 34 and clause 7 stand part.
Tom Pursglove
I was referring in passing to new clause 12, Ms McDonagh. British overseas citizenship, or BOC, was created by the 1981 Act. It was created for people connected with former British territories who did not have a close connection with the UK or one of the remaining British overseas territories. This was usually where they were from or connected to—a country that had become independent, but they did not acquire the citizenship of that country. The intention was to avoid making people stateless due to complex histories of independence or countries ceasing to be British protected territories. The intention of the 1981 Act was that everyone who was a citizen of the United Kingdom and colonies immediately before 1 January 1983 would continue to hold some form of British nationality. The then Government anticipated that many who became BOCs would have an additional citizenship or nationality.
British overseas citizenship was intended to be a transitional status, and it was expected that many who held that status would have acquired the nationality of the place where they were born or were living in the 38 years since that legislation was passed. They are able to hold a BOC passport and rely on consular assistance when outside the country of any other nationality that they hold, but are likely to rely on their other citizenship for rights of residence and local travel. Given the 38 years that have passed, we do not anticipate that there can be many people who have missed out on becoming a BOC and have no other citizenship or nationality.
There were provisions for children of CUKC mothers to register under the British Nationality Act 1964 where they would otherwise have been stateless. Since 1983, there have been measures in place to acquire BOC through discretionary registration as a child or for certain people who are stateless. However, it was not the general intention that further people would acquire British overseas citizenship under the 1981 Act other than in those specific circumstances. People who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality are able to apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and that, as a result, they also missed out on being able to become a British citizen, as they have no other nationality and have not done anything that meant that they lost a nationality, there is nothing to stop them applying for that status under the clause. BOC status was introduced to avoid statelessness due to complex histories of independence or countries ceasing to be British protected territories. We do not intend to create a new route to British overseas citizenship.
Neil Coyle
If I heard the Minister correctly, he is suggesting that someone should pursue their rights through the Equality and Human Rights Commission, but that process would take years and could cost millions if the Government were opposing what that individual was seeking. Is it not incumbent on the Government, under the Equality Act 2010, to get things right up front? Would that not save a lot of time and money, and prevent a lot of desperate situations from emerging?
Tom Pursglove
The point that I would make is that we keep evolving circumstances and individual cases under review. It is right that we consider cases individually and properly take account of their individual circumstances. That is why we are arguing strongly that the discretionary means of tackling this is the correct way to do so. I am confident that through the provisions, we will right many historical injustices and wrongs, and that is something we should all welcome.
In the light of the debate that we had about fees, whether or not applications will be free under the clause is an important point. That will be an issue for the appropriate fees regulations in due course. As I set out when dealing with earlier clauses, those regulations will be subject to parliamentary scrutiny. I note the views that have been strongly expressed today. Members will have heard what I have said about this previously, and I would be very happy to engage with them in the development of those regulations that we would then bring forward. With that, I would ask hon. Members not to press their amendments.
Bambos Charalambous
I wish to press amendment 35, and all other amendments in my name and in the names of the other Members.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider that schedule 1 be the First schedule to the Bill.
Tom Pursglove
I think it is fair to say that, with all the Blair and Brown documentaries on television at the moment, it is perfect to be thinking about clause IV, for members of the Opposition.
The Chair
I do not wish to interrupt the Minister, but he may find that clause IV was not dealt with in the depth that it should have been.
Tom Pursglove
That is me told.
Clause 7 applies to three routes to British nationality: naturalisation as a British citizen, naturalisation as a British overseas territories citizen and registration as a British citizen for other British nationals. All these routes require a person to have been in the UK or an overseas territory for a continuous period immediately before applying. This is known as the residential qualifying period. These residence requirements exist to allow a person to show that they have a close and ongoing connection with the United Kingdom.
The residential qualifying period is five years, or three years for spouses and civil partners of British citizens or British overseas territories citizens who are applying for naturalisation. During the five-year period, the person must not have been outside the UK for more than 450 days, must not be subject to immigration time restrictions in the UK or a relevant territory, and must have been lawfully resident. There is discretion in the legislation to overlook excess absences and unlawful presence, but the requirement to have been in the UK or territory on the first day of the residential qualifying period is mandatory. There is no discretion in the current law to grant citizenship to someone who does not meet that requirement.
This means that, for example, a person who has lived in the UK for 10 years, but who was absent from the UK at the point five years before making an application because of a global pandemic, would not be able to qualify, despite their long-term connection with the UK. Under the current legislation, their only option would be to wait until they could meet the requirement.
Bambos Charalambous
The clause seeks to enable the Secretary of State to waive requirements for naturalisation as a British citizen under section 6, naturalisation as a British overseas territories citizen under section 18, or registration as a British citizen under section 4 of the British Nationality Act 1981. At present, there is no power to waive the requirement to have been present in the UK at the start of the qualifying period except in relation to applications for naturalisation as British citizens from current or former members of the armed forces, which presents a barrier in otherwise deserving cases.
The immediate necessity for the clause arises from the circumstances of people of the Windrush generation, many of whom were deprived of their rights to register their British citizenship by the Home Office’s failure to ensure that people were aware both of their rights and of the need to exercise them. It has since become necessary to use naturalisation without a fee as a means to put people in the position they should have been in all along as British citizens. However, since some people were wrongly exiled from the UK, the remedy has been inadequate for some people who were only recently able to return.
The main barrier stems from the requirement for naturalisation that a person must be present in the UK at a fixed point five or three years before the date of their application to naturalise. The clause therefore seeks to amend the 1981 Act to allow the Secretary of State to waive the requirement that the individual must have been present in the UK or relevant territory at the start of the qualifying period in the special circumstances of a particular case. The waiver will be introduced in relation to the requirements to naturalise a British citizen under section 6 of the 1981 Act, to naturalise as a British overseas territories citizen under section 18 or to register as a British citizen under section 4.
The clause would not have been necessary had the Windrush scandal not happened in the first place, and we wish to place on the record our concerns that it happened because of the hostile environment that was created by the Home Office. Although we welcome clause 8 and will support it, we wish that it had never been necessary because of the injustice of what happened to all those people.
Stuart C. McDonald
I want to pick up on one thing the shadow Minister mentioned in his speech. He is right that the most profound implications of the clause relate to the correction of wrongs that were done to the Windrush generation, but I slightly disagree with him when he says that it would not have been necessary but for that.
Certain nationality applications always have caused some awkwardness. In the dim and distant past, when I was one of these wicked immigration lawyers, I would have people come to me who were applying to register, and the requirement that they had been in the country five years ago at the start of the residency period would sometimes cause problems. I do not know what I was doing five years ago today, and sometimes it would require a hell of a lot of checking to work it out.
There were the odd occasions where the Home Office kindly returned the applications, because it was going to have to refuse them as the person had perhaps gone abroad for a couple of weeks five years ago. If the Home Office had not done that, it could have just banked the fees and refused the application. The most profound implication is in relation to Windrush, but I think overall that this is a good thing to do anyway and a slightly broader discretion is welcome.
Anne McLaughlin
I want to acknowledge the people who were caught up in the Windrush scandal and their tenacity in hanging on in there and sticking it out. I also want to recognise all the different campaign groups, activists and supporters, friends and families of those who suffered so much because of the scandal. I want to take every chance I get to put that on the record.
I regularly talk about feeling frustrated in this place when I passionately argue the case for something or someone but almost never get anywhere—sitting here today, it is of course always going to be nine Members on the Government side and seven on the Opposition side—but I underestimated the importance that people place on MPs speaking up for them and acknowledging their injustice, and I never will again. I did not think it would make such a difference, but it really does make a huge difference to people. That is why, as the SNP’s immigration spokesperson, I take any opportunity to say that what happened to the people who came here as part of the Windrush generation was utterly wrong. Even the solutions went wrong, and there were delays and complications. This clause, today, is good, but that is only right.
Neil Coyle
Does the hon. Member share my slight disappointment that it does not go further? Other countries bestow naturalisation on citizens, in particular those who worked for health and social care services throughout the covid crisis. We have non-UK nationals who have worked in health and social care services who could have had their service acknowledged by the Government. The Government have chosen not to do that, despite multiple requests from many MPs of different parties.
Anne McLaughlin
I very much agree, because the people we are talking about came here because they were invited. My partner’s family were among them. Thankfully, they were not caught up in this scandal.
We needed people to come here and help rebuild after world war two. People living in the Caribbean were well used to having white people in charge of their country, but what they were not so used to was the racist abuse that would meet them when they reached these shores. They assumed they would be welcome because they were part of the Commonwealth. They fought in our wars. They were invited here. It must have been a huge shock when they got here and somehow that narrative changed.
The narrative is still being used—it is still being used by some people elected to this place—that somehow the gratitude in all of this should be their gratitude to us and that we are somehow doing them some sort of favour. In fact, lots of our wealth was built on the backs of the people we enslaved on those islands. I cannot remember what it is called, but there is such a thing as the collective, inherited trauma that people suffer from. Their descendants were then invited over here to do what we needed done and they were treated the way they were treated, and then they were treated by this Government in the way they were treated in the Windrush scandal.
In the first years, about 5,000 Jamaican nurses came here. We have heard about all of those people from overseas territories who came and supported our health service. Many of them have suffered greatly. Some died during the pandemic, because they put themselves at risk. We needed those 5,000 nurses who came from Jamaica in the first years for our health system, but Jamaica needed them as well. We took them out of the Jamaican health system. We should have been thanking them. We should have been on our knees with gratitude. I do not like the narrative that they are somehow supposed to be grateful to us. So, yes, I would have liked these measures to have gone much further, but I will say that taking away the five-year rule is at least doing something to hold our hands up and say, “We did something wrong, and you don’t deserve to have to wait the five years when you are not the ones at fault.”
Tom Pursglove
The hon. Member for Glasgow North East speaks for the whole House in saying that immigration has made an enormously positive contribution to this country over decades. As elected Members and in our communities across the country, we should continually make mention of that and constantly reflect on it—I am certainly very conscious of it.
Equally, I am conscious of the importance of righting the wrongs of what happened in relation to Windrush. There is an absolute commitment at the Home Office to do just that: follow up on Wendy Williams’s recommendations and make sure that they are delivered. As the SNP spokesman said, the clause has benefit beyond Windrush. I am really pleased that it seems the Committee can come together and support the clause.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 9
Citizenship: stateless minors
Question proposed, That the clause stand part of the Bill.
Tom Pursglove
The clause amends the provision for registering a child as a British citizen or British overseas territories citizen when the child was born in the UK or a territory and has been stateless since birth. Although it applies to both British citizenship and BOTC, it addresses an issue specific to the UK, so I am going to talk about British citizenship. However, parallel changes will be made in relation to BOTC.
It may help if I put the issue in the context of all children born in the United Kingdom. Since 1983, a child born in the UK will be a British citizen automatically only if one of their parents is a British citizen, is settled in the United Kingdom or, from 13 January 2010, is a member of the armed forces.
“Settled” is defined in the British Nationality Act 1981 as being ordinarily resident in the United Kingdom and not subject to an immigration time restriction on their stay. That effectively excludes those whose parents only have limited leave to remain or are here illegally. Those exempt from immigration control because of diplomatic service or as members of visiting forces are also not regarded as settled. Any child born in the United Kingdom after 1 January 1983 who was not a British citizen at birth has an entitlement to register as a British citizen if the parent becomes a British citizen or settled in the UK, if the parent joins the armed forces, or if the child lives here for the first 10 years of their life.
In addition, there is provision for children born in the UK who would otherwise be stateless to acquire citizenship. If a child is born in the UK to a parent who is a British overseas territories citizen, British overseas citizen or British subject and would otherwise be stateless, they will acquire the same nationality as the parent. Alternatively, if a child is born in the UK and is, and has always been, stateless, they can apply to be registered as a British citizen before their 22nd birthday based on a period of five years’ residence. Those provisions enable us to meet our obligations under the convention on the reduction of statelessness. That means that if a child is stateless and has had no other citizenship or nationality from birth, they can effectively be registered on reaching the age of five—rather than after the age of 10, like other children born in the UK.
The UK, like many other countries, allows for citizenship to be acquired by descent by a child born abroad to a parent who holds that status by birth. Under most countries’ citizenship laws that happens automatically, but some countries require the parents to register a child’s birth for the child to access citizenship. That is the case for India and Sri Lanka, where a child’s birth needs to be registered at a high commission if they are to be recognised as a citizen.
We are aware that increasing numbers of non-settled parents in the UK are actively deciding not to register their child’s birth at the embassy or high commission, and thus failing to secure their child’s entitlement to their parents’ nationality by descent.
Stuart C. McDonald
The explanatory note just says that there have been cases. This is a very serious change. Can the Minister give us examples of analysis that has been done and the types of circumstances in which such decisions are taking place? Tell us about the scale. I see no evidence of a significant problem, whereas I do see that the clause could cause significant harm.
Tom Pursglove
I am grateful to the hon. Member for prompting me on this. I have a fairly lengthy speech on this clause. I will come to those points, and will illustrate them with some specific case studies, which I hope will be of interest to him.
As I was saying, this results in the child remaining stateless from birth and enables them to be registered as a British citizen once they reach the age of five if they meet the other criteria. We have seen a significant increase in applications, from tens per year to thousands. In 2016-17, there were 32 applications to register stateless children on this basis. That increased in 2017-18 to 1,815 applications. This allows individuals, including those who have overstayed or entered illegally, to acquire British citizenship for their child, which can in turn benefit their own immigration status.
We do not think it fair that parents can effectively secure a quicker route to British citizenship by choosing not to register their child’s birth. In doing so, they are depriving their child of a nationality, which is about not only identity and belonging, but being able to acquire a passport or identity document, and the ability to travel overseas, such as to see family. They are also taking advantage of a provision that is intended to protect those who are genuinely stateless.
I will say, for the avoidance of doubt, that the process of birth registration is not impossibly difficult. It is simply a matter of completing a form and supplying supporting information about the parent’s identity, status and residence, and the child’s birth. The fee to register a child’s birth at the Indian high commission in the UK is £19; it is £53 at the Sri Lankan high commission.
In changing this provision, we want to maintain the ability for genuinely stateless children to benefit, but we want to change the registration provisions so that parents cannot effectively choose statelessness for their child and then benefit from these provisions. That is right and proper, and in line with our international obligations.
We think it is right that children who genuinely cannot acquire a nationality should be able to benefit under the stateless provisions of the 1981 Act. This change reflects our expectation that families should take reasonable steps to acquire a nationality for their child. We will set out in guidance the sort of steps that we think are reasonable, and applications will be considered on an individual basis.
The provisions are not intended to negatively impact children of recognised refugees who are unable to approach the authorities of their former country. Hon. Members may argue that it is important for a child to have a nationality. We agree. That is why we are a signatory to, and are committed to, the 1961 convention.
Why are parents choosing not to acquire a nationality for their child when they can, leaving the child without the ability to travel urgently if needed for five years? Let us look at a typical example that addresses the point raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.
Neil Coyle
The Minister refers to a typical example, but I believe that the question put was about the overall number of cases. Will the Minister provide the House with the overall number of cases involved, and specifically the number of cases in which the Government suggest nationality is being deliberately withheld?
Tom Pursglove
Let me talk through the case studies in the first instance, because I think it is useful to set this in context. Child X was born in the UK, which their Indian parents had entered as students. The student route is not one that leads to settlement, so they could not have assumed they would be granted indefinite permission to stay. The college they were studying at had its sponsorship licence revoked, and the parents remained here illegally.
At the time of X’s birth, both parents were in the UK without lawful leave. Steps were taken to remove X’s parents, who absconded at one point. However, an application was made to register X as a British citizen, under the stateless minor provision, a few days after their fifth birthday. While they had not approached the Indian high commission to register X’s birth, the parents provided letters they had obtained from the Indian authorities stating that there was no record of the birth having been registered, so they clearly had no fear of approaching the Indian authorities.
X was registered as a British citizen, as the current wording of the British Nationality Act 1981 left us no other option. The parents then made an application to remain in the UK on the basis of family life, which was granted because it would have been harsh for the British child to leave the UK. I hope that Members across the House will agree that, while it is not X’s fault that their parents manipulated the system, it is not right that as a result they can acquire citizenship earlier than other children born here, whose parents have remained in the UK lawfully and been fully compliant.
We have heard the comment that parents should be able to choose which nationality their child has, but this is not about French parents living in the UK with settled status, for example, choosing whether to apply for a French or British passport, as the child holds dual nationality. Nor is it about parents who are dual nationals, such as a parent who is a British citizen by birth and citizen of Bangladesh by descent choosing not to register their child’s birth, which would have allowed them to acquire citizenship of Bangladesh in addition to British citizenship. No: this is about parents who are choosing not to acquire their own nationality for their child and leaving them with no nationality for a significant period until they can eventually qualify for British citizenship.
The United Nations High Commissioner for Refugees has published a document entitled “Guidelines on Statelessness nr 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness”. Those guidelines cover situations where it is possible to acquire the nationality of a parent by registration. They provide that the responsibility to grant nationality to children who would otherwise be stateless is not engaged where a child is born in a state’s territory and is stateless but could acquire a nationality by registration with the state of nationality of a parent, or a similar procedure.
The guidelines go on to say that it is acceptable for contracting states not to grant nationality to children in these circumstances if the child concerned can acquire the nationality of a parent immediately after birth and the state of nationality of the parent does not have any discretion to refuse the grant of nationality. However, that does not apply if a child’s parents are unable to register, or have good reasons for not registering, their child with the state of their own nationality. That must be determined depending on whether an individual could reasonably be expected to take action to acquire the nationality in the circumstances of their particular case. The effect of this clause therefore reflects the approach recommended by the UNHCR.
We understand that parents want the best for their children, and that a future in the UK represents that to them, but it is not right that they choose not to acquire a nationality for their child in order to facilitate that. We want genuinely stateless children to be able to benefit from our stateless child provisions, but we expect those who can easily acquire a nationality for their child to do so.
I will pick up on the point the hon. Member for Bermondsey and Old Southwark made, because I am sure he wants to prompt me on that, but I first wanted to get through those case studies and set out the Government’s rationale. Clearly, in some cases there is a perverse incentive, and it undoubtedly disadvantages those who are acting in accordance with both the letter and the spirit of the law. It is right to address that, and that is why we are taking the measures proposed in clause 9 to close that loophole.
Neil Coyle
Will the Minister provide the overall number of cases that the Government believe fit this category? Will the Government also publish the number of children involved in similar cases where the parents have been trying to regularise their status within the UK? We had examples this morning such as that of my constituent Ade Ronke, who was wrongfully accused by the Home Office of having a prosecution that she did not have—it was a case of mistaken identity. There are cases like that, and hers took seven years to regularise. I mentioned this morning that at least two cases in my constituency took 10 years. There may be many children across the country whose parents have been waiting very many years to sort their status, who could fit into this category, but are being mislabelled by the Government.
Tom Pursglove
The direct answer to the hon. Gentleman’s question is that we can provide details of the number of applications, but we cannot confirm the specific number of cases in the way he is requesting. We know this is happening, and we believe that there is a perverse incentive for people to choose not to acquire a nationality, so that the family as a whole can jump the queue.
Paul Blomfield (Sheffield Central) (Lab)
May I confirm that I heard the Minister right? Did he say that the Government and Home Office are clear that this is happening, but they cannot give any indication of the extent?
Tom Pursglove
As I have said, we are aware that this is happening. We think it is right to take steps through the Bill, so that those going through the process are not disadvantaged relative to those who are seeking to make use of this loophole.
Bambos Charalambous
We believe that clause 9 will disentitle many stateless children who were born and grew up in the UK from their existing statutory right to British citizenship. I have heard what the Minister said. I think it would require a fair bit of cunning and conniving to conceive a child, wait for five years and not register them before applying for citizenship. This applies not just to children aged five, but to children aged five to 17. There may be many children caught up in those circumstances. We therefore strongly oppose this clause and believe that it should be removed.
Let us be absolutely clear about what the Government are trying to change with this clause. The existing law in section 36 of the British Nationality Act 1981 gives effect to schedule 2 expressly for the “purpose of reducing statelessness”. Paragraph 3 of schedule 2 is designed to prevent children born in the UK from growing up without nationality. As Ministers made clear during the passage of the 1981 Act, the provision was needed to ensure continued compliance with our international obligations under the UN convention on the reduction of statelessness, to which the Minister referred. In accordance with that convention, the provision entitles someone under the age of 22 born stateless in the UK who has lived in the UK for five continuous years at the point of application and who has always been stateless to register as a British citizen.
Clause 9 inserts a new paragraph 3A into schedule 2 of the 1981 Act for stateless children aged five to 17, requiring the Secretary of State to be satisfied that the child was unable to acquire another nationality before the child is permitted to register as a British citizen. It considers that a child can acquire a nationality where the nationality is the same as that of one of the parents, the person has been entitled to acquire that nationality since birth, and in all circumstances it is reasonable to expect them, or someone acting on their behalf, to take steps to acquire that nationality.
We oppose clause 9 because it is unethical and puts children’s rights in jeopardy. It unnecessarily restricts a vital safeguard intended to protect the rights and best interests of a small group of marginalised children born in the UK. For those affected, statelessness can mean problems accessing rights and services, denied opportunities, unfulfilled potential and a sense of never quite belonging. As worded, the new provision would give the Secretary of State wide discretion to prevent a stateless child born in the UK from acquiring British citizenship, perpetuating their statelessness. The Opposition believe that clause 9 creates an additional and unjustified hurdle to stateless children’s registration as British citizens and to satisfying the Secretary of State that they cannot secure some other nationality. This is in addition to the child having to show that they were born stateless in the UK, have remained stateless throughout their life and have lived at least five continuous years in the UK at the point of exercising their statutory entitlement to be recognised as a British citizen.
For many years, the existing requirements have together proved a high barrier to stateless children securing citizenship of the UK, which is where they were born, where they live and where they are connected to. Clarification of the relevant law by the High Court in 2017 and awareness raising by the Project for the Registration of Children as British Citizens, the European Network on Statelessness and others have enabled several children to apply to be registered under statutory provisions that are expressly intended to reduce statelessness. Prior to this, applications were so few as to be negligible. That indicates the profound inadequacy of the Home Office’s previous operation of the provision, and the strong likelihood that there have been a growing number of children living stateless in the UK, in contravention of the original parliamentary purpose, and following the UK’s international commitment to reducing statelessness.
The purported justification for the draconian clause 9 bears no relation to any matter over which the child has any control or influence, or for which they have any responsibility. It is suggested that some parents may choose not to exercise a right to register their child with the nationality of another country, and may leave their child stateless for the purpose of securing British citizenship, but no evidence has been presented for the idea that some parents may choose not to exercise the right to register their child with the nationality of another country. In any event, an application for registration of a stateless child’s entitlement to British citizenship is a complex matter, and that itself has been an effective and unjust deterrent to the exercising of the right.
The UK Government have provided no evidence to justify restricting children’s rights in such a way. In fact, the leading organisations in the field have evidence to show that stateless children and young people born in the UK already face significant barriers to acquiring British citizenship under existing law, and that has a significant detrimental impact on their wellbeing. Young people have described how their inability to acquire British citizenship leaves them feeling alienated and excluded.
Stuart C. McDonald
I wish to echo everything the shadow Minister said in outlining why we passionately oppose the clause. As I said in earlier speeches, and has been illustrated by many hon. Members, citizenship is fundamental to a person’s identity. It provides a status and security that no visa or immigration leave can ever match. When talking about statelessness, we may sometimes be talking about people who have neither citizenship nor any immigration status. Organisations that work with stateless kids have provided myriad case studies and examples of the dreadful impact that it can have on them. In essence, they are one of the groups most deserving of our protection and consideration—those without any citizenship at all. Without citizenship, a whole host of other rights become almost impossible, leaving that person with a huge gap in their identity, security and sense of belonging.
We talk often about children who belong to recognised stateless populations, such as Kuwaiti Bidoon, Kurds, Rohingya or Palestinians. Also, there are children who suffer from discrimination under the nationality laws of other countries—the same type of discrimination that has existed and that we have been trying to correct in British nationality law. They could be children in state care, for example, particularly if one of the parents is not available or not co-operative in proving links or nationality.
As matters stand, stateless children and young adults under 22 can register as British if they were born here, have always been stateless and meet the five-year residency requirement. Even now, it is not always a straightforward process, as has been explained by the European Network on Statelessness. Lots of hurdles remain: we have touched on registration fees, as well as lack of knowledge and awareness of the rights of stateless children and challenges in providing proof. I would be keen to rectify that, but instead, for some reason, the Home Office is taking it upon itself to erect further hurdles, making it more difficult, not easier, for children under 18 to be registered as British. Clause 9 restricts access to registration of stateless kids, and is worded in such a way that it gives a broad discretion to the Secretary of State to decline applications, which we believe is in breach of international law.
We have not heard at all from the Government today what assessment they have made of the impact that will have on statelessness. There is no doubt in my mind that it will increase statelessness among children, but that does not appear to have been weighed up in the Government’s reckoning. That is absolutely contrary to the intention of the 1981 Act, which rightly set out to reduce statelessness.
There are three key points: first, the case has simply not been made. There is a bland assertion in the explanatory notes that there have been cases where parents have made that choice. But today, despite pressing for some sort of analysis of the scale of the issue, essentially what we have been given is one extreme case, as the shadow Minister said. I am utterly unconvinced that there are lots of parents going underground and running away from the Home Office all for the sake of trying to secure statelessness in this manner. That case has simply not been made today. That is a wholly inadequate explanation. It actually reflects where Home Office policy making sometimes goes wrong: isolated examples where the rules have arguably been used for purposes slightly beyond how the Home Office would like them to be used are identified, and then an utterly disproportionate response is forthcoming, which may be able to stop those isolated cases but also stops a lot of absolutely deserving cases, and impacts on totally innocent individuals. To put it succinctly, the baby is thrown out with the bath water.
We have called for greater detail: how many cases? We need more examples than one extreme case. What, ultimately, is the problem? There was a lot of talk about queue jumping, but it does not impact on others who perhaps have to wait 10 years for registration. Their rights are not impacted at all. At the end of the day, in one extreme case, a child who has done nothing wrong may end up registered as British five years before they otherwise might be.
Secondly, on international laws, the shadow Minister says that in our view this is in breach of the 1961 UN convention on the reduction of statelessness. The Minister made the case that the UNHCR guidelines on statelessness allow a small discretion for the state to withhold conferring citizenship where the nationality of a parent was available to the child immediately, without any legal or administrative hurdles, and could not be refused by the other state concerned. However, the wording of clause 9 goes significantly beyond what is allowed in the guidance. The clause will insert new paragraph 3A into the British Nationality Act 1981, with subsections 1(d) and 2(c) both going beyond what is permissible. The former appears to allow the Secretary of State some evaluative leeway about what is and what is not possible in terms of accessing another nationality. The question is: why not leave that as a pure question of fact? The latter subsection also introduces leeway where neither the convention nor guidance allows for it. Instead, the very limited exception that is allowed is where the other nationality is available to the child immediately, without any administrative impediments, hurdles, fees or similar obstacles, so I fear that the Home Office will end up in court again.
My final and most important point is that this will cause so much more harm than good. There has been no indication at all that the Home Office has undertaken any sort of balancing exercise. Whatever problem the Home Office is trying to fix—essentially, we have had an anecdote—the damage that will be done goes way beyond it. Families will not risk a huge fee if they have all sorts of doubts about what the Secretary of State will do with her discretion. We fear that many more people risk being unreasonably refused registration, prolonging their statelessness. Where is the assessment of the best interests of the children involved? Where is the assessment of the number of stateless kids who may be impacted by the Bill? There really has been a wholly inadequate justification for it.
I have a final plea to the Minister. Even if he will not revisit the need for some sort of response to the type of case that he has identified and spoken about today, will he at least revisit how far the clause is going? As I say, it is our strong view that it might have prevented that anecdotal case from happening, but it will cause all sorts of damage way beyond that. We also think that the wording is inconsistent with the UN guidelines that the Minister has cited. If he still feels compelled to do something, he should at least revisit how the clause has been worded. Otherwise, I think he will very much regret that the outcome will simply be thousands more stateless kids in the United Kingdom.
Anne McLaughlin
The UK is bound by the 1961 UN convention on the reduction of statelessness, as we have heard. That focuses on protecting the stateless child and preventing childhood statelessness. It requires only that the applicant is stateless, and not that they cannot reasonably acquire another nationality, as it says in the Bill. The UK Government say there is a problem that needs addressing through clause 9 and that would justify departing from the safeguards established by the convention, yet no evidence is offered.
As my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has just said, he intervened on the Minister to ask for the evidence. The Minister said he had a long speech and would come to that, but he did not do so. He gave one piece of anecdotal evidence. I know that much of the Bill will have been drafted prior to his recently coming into the role, and I appreciate that this must be a baptism of fire for him, but I ask him to look more closely at the Bill. Why introduce it, if there is no evidence that there is an increase in abuse? There is no evidence. If there is no evidence, there is no problem, and if there is no problem, there is no need for clause 9. The UK Government really must not legislate to enable breaches of the commitment in the 1961 convention and the principle of the best interests of the child in UK domestic law.
Neil Coyle
I will not repeat the excellent points that have been made by colleagues, and I will try to be brief. My first point is about international law. It seems that most responsible countries strive to reduce the number of stateless children, but the Bill, and specifically clause 9, leaves people in limbo for a much longer period. It feels as though global Britain is acting in a slightly squeamish way about its international responsibilities on this issue and on other areas, so my first question to the Minister is: which other countries use a similar process, given what he has said today about how this is used in examples?
I agree with the comments just made. The Government are presenting a Bill and a clause that are based on hearsay. The Minister is asking us specifically to rely on hearsay and one anecdote. We all remember the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), talking about someone who was not evicted from this country because their human rights had been encroached because they had a cat. It turned out to be totally false; yet that was used by the then Home Secretary at a Conservative party conference to try to make a very similar point.
Tom Pursglove
We have had a very wide ranging debate in relation to these matters, with views expressed that are sincerely and strongly felt. I do not doubt that for a moment. Let me be clear that genuinely stateless children will still be able to benefit from the registration provisions. This change is to prevent people from benefiting by choosing not to acquire their own nationality for their child where they are able to do so.
Paul Blomfield
I thank the Minister for giving way, because it is important that he addresses the question that has been raised successively. The clause goes against the drift of the rest of part 1, which is rectifying anomalies. This potentially creates one, and one that will come to land heavily on the Home Office in the future, as well as those who will be affected by it. It is incumbent on him, before we vote on it, to explain clearly the extent of the problem. He has given only one anecdote as the justification for it. Will he use the opportunity to do that now?
Tom Pursglove
I am grateful to the hon. Member for his intervention. As Opposition Members will know, the way that I go about my work is to always try to be as constructive and helpful as possible. With that in mind, I will gladly write to the Committee setting out in greater detail our rationale for taking this approach, and as much information as I can to justify it.
As I say, there is a fairness issue here that we believe needs to be addressed. The MK case was cited, and it is worth recognising that in his conclusion Judge Ockelton made the comment that it opens an obvious route to abuse. We are satisfied that what we are proposing complies with our obligations under the statelessness conventions, and all our obligations that flow from that. I commend that the clause stand part of the Bill, with the very clear undertaking that I will provide the information that I have promised.
Question put, That the clause stand part of the Bill.