Nationality and Borders Bill
Monday 28th February 2022
(2 years, 8 months ago)
Lords ChamberNationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-R-I(Manuscript) Amendment for Report (Supplementary to the Marshalled List) - (28 Feb 2022)
16:10 - Division on Amendment 1 - Ayes: 237 / Noes: 154 - Amendment 1 agreed.
18:42 - Division on Amendment 20 - Ayes: 209 / Noes: 173 - Amendment 20 agreed.
19:15 - Division on Amendment 24 - Ayes: 218 / Noes: 140 - Amendment 24 agreed.
20:33 - Division on Amendment 28 - Ayes: 204 / Noes: 126 - Amendment 28 agreed.
“Provision for Chagos Islanders to acquire British nationality
(1) Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.(2) After section 17H (as inserted by section 7), insert—“17I Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.(2) An application under this section must be made before the date specified in subsection (3).(3) The specified date means—(a) in the case of a person aged 18 years or over on the date of coming into force of this section, five years after the date of coming into force of this section, or(b) in the case of a person under the age of 18 years on the date of coming into force of this section or born within 4 years of that date, before they reach the age of 23 years.(4) A person who is being registered as a British overseas territories citizen under this section is also entitled to be registered as a British citizen.(5) No charge or fee may be imposed for registration under this section.””Member’s explanatory statement
This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force or born within 4 years of that date, before they reach 23 years old.
Baroness Lister of Burtersett (Lab)
My Lords, in moving Amendment 1, I am grateful to my fellow signatories; to BIOT Citizens and Chagossian Voices for their assistance; to the APPG on the Chagos Islands, of which I am a member; and to all those noble Lords from across the House who supported a similar amendment in Committee. The breadth and strength of that support reflected the recognition that this amendment is about rectifying a long-standing injustice in citizenship law, just as earlier, welcome clauses in the Bill do.
The injustice that Amendment 1 addresses concerns the descendants of Chagossians, who were all evicted from their homeland by the British Government to make way for a US airbase back in the 1960s and early 1970s, and who remain exiled. Those descendants are now denied the right to register as citizens, which they would have had were they still resident in their homeland. The reason they are denied that right is because they are no longer so resident, but that is because they have been exiled from that homeland by the British Government.
The amendment would simply end the “appalling injustice”, as Conservative MP Henry Smith put it. To allay government concerns about the open-ended nature of his Commons amendment, which received considerable support, this one applies a five-year time limit for registration. The consequences of the injustice include broken families, divided communities, insecurity for those living here who are undocumented, hardship and the aggravation of the trauma associated with exile.
To give one example, provided to me by Chagossian Voices, S, born in Mauritius, is the son of a Chagossian who is British by descent and is now in exile in Crawley. S has lived in the UK since the age of eight. When he turned 18, his mother used her meagre savings from her job as a cleaner to apply for his British citizenship; this was rejected, but he was then granted a limited visa, which has now expired. She cannot afford to reapply and fears that her son could be deported at any time. “I am terrified of my family being split up”, she says. This cannot be right.
What this means to Chagossians has been made painfully clear to me in emails I received following Committee, and I think, too, to the Minister, who very kindly met some of us, including Rosie Lebeck of BIOT Citizens last week. In Committee, the Minister expressed her sympathy and empathy, and I believe that she genuinely understands what is at stake here, but that has not yet been translated into the actions needed to remedy this injustice. Instead, she pointed to how some second-generation Chagossians would benefit from the earlier clauses in the Bill, which address discrimination in nationality law. When questioned, neither she nor her officials could say how many that would be—I suspect not many.
The Minister has also spoken about how the Government are looking at what more can be done to help Chagossian families seeking to settle here, but we have been given no details of what that might mean and, in any case, that is to ignore once again the importance of citizenship—a theme running through many of our debates in Committee. She also talked about a willingness to consider how the £40 million fund set up to support Chagossians settled in the UK might be used, but that fund was announced more than five years ago and, to date, I understand that only £800,000 has been spent. Certainly, some of the fund could be used to defray any costs associated with this amendment, but it is no substitute for it.
We come to the nub of the matter. In Committee, the Minister reiterated the Government’s concern that the amendment would be contrary to long-standing government policy and warned that it goes further than the rights available to many other descendants of British nationals settled elsewhere around the world—but how many of those other descendants are settled elsewhere because they have been forcibly exiled by the British Government? None, I would suggest. As a junior Minister in the Commons acknowledged, the Chagossians’ case is unique, yet the Government appear terrified that to concede on this amendment would create a precedent, despite there being no other group in this situation. Why can they not follow the advice of the noble Baroness, Lady Falkner of Margravine? In Committee, the noble Baroness suggested that the Minister needs to make it clear in the response today—it may not be her response; it may be his response—that he or she
“does not intend this Act—a humanitarian Act—to set a precedent”.—[Official Report, 27/1/22; col. 494.]
In conclusion, no one knows for sure how many Chagossians would avail themselves of the right contained in this amendment, but the best estimate, based on a census carried out by BIOT Citizens, is no more than 1,000. That said, this is not a question of numbers but of finally putting right what everyone accepts is an injustice. I hope that we will take the opportunity provided by the Bill to end this injustice. If the Minister does not accept the proposed new clause or offer to come back with an alternative at Third Reading, I shall beg to test the opinion of the House. I beg to move.
Baroness Whitaker (Lab)
My Lords, as vice-chair of the All-Party Group on the Chagos Islands, I will add one brief point to the amendment so persuasively moved by my noble friend. If resettlement had taken place following the High Court ruling of November 2000 that the ordinance banning the Chagossians’ return was unlawful, it would have much reduced the need for an immigration route to the UK. Her Majesty’s Government should lift that ban immediately, in addition to accepting my noble friend’s amendment. The recent Mauritian expedition helpfully showed that there is no reason why the Chagossians should not return to their homeland. Some will probably want to do that rather than come to the UK, which would much diminish the apparent problem that the Government have.
Baroness Butler-Sloss (CB)
My Lords, I sat as a judge in one appeal on the Chagossians and learned about the disgraceful behaviour of successive Governments of all political views—not, I have to say, the Lib Dems because they were not in power, but certainly the Conservatives and Labour have each left the Chagossians to their fate. One appalling thing they did was take an agreement from them whereby they signed away their rights for some paltry sum, such as £1,500. It is time that at least some of these Chagossians got some rights. As the noble Baroness who moved the amendment pointed out, this situation is unique. Therefore, the Government really should be generous and understanding and do something to repair the appalling damage done in the past by this Government, as well as the previous Labour Government.
Baroness Ludford (LD)
My Lords, I recognise that the Bill removes discrimination against those, including some descendants of Chagossians, unable to claim previously through their mothers or unmarried fathers. But with this amendment we are talking about a limited number of people, in the hundreds—maybe 800 to 1,000—who, as descendants of Chagossians evicted from the islands, will still have no rights to British overseas citizenship and, in due course, British citizenship even with Part 1, even though they would have that right if they had not been evicted. In Committee, the Minister’s only answer was that
“offering this right is contrary to long-standing government policy.”—[Official Report, 27/1/22; col. 497.]
That position does not take into account the exceptional nature of what happened to the Chagossians. No other British Overseas Territories citizens suffered this fate. Chucking out colonial subjects in the modern age was also, I hope, contrary to good government policy. If an exception could be made for the Chagossians then, one can be made now.
Baroness Jones of Moulsecoomb (GP)
My Lords, in Committee there seemed to be some representations from noble Lords who did not know about the plight of the Chagos Islanders; they were hearing about it for the first time. There is so much injustice in the world that it is very difficult to keep track of all the consequences of British and American imperialism, but it is one of the beauties of your Lordships’ House that any of us can table amendments that can be debated and discussed. I say a big thank you to the noble Baroness, Lady Lister, for debating this issue and for her powerful speeches on this cause. Having had the issue raised in Committee, and now again on Report, no one can claim ignorance of this real injustice. We have to take action. It is time for the United Kingdom to make reparations for forcing changes on the Chagos Islanders. This amendment is the beginning of that process and the Greens support it completely.
Baroness Altmann (Con)
My Lords, I commend the Government, in that this Bill seeks to remedy some long-standing injustices and discrimination in British nationality law. That is why I am so sad that there has been a refusal so far to accept this amendment. The Chagossians are the only category of British Overseas Territories citizens who were expelled and excluded from the British territory in which they lived by the British Government themselves in modern times. I commend the BIOT Citizens group, the noble Baroness, Lady Lister, and my honourable friend Henry Smith in the other place, who called this an “appalling injustice”. He is right.
As others have said, this is a unique case and it sets no precedent, but unfortunately the Government seem to be relying on the cause of the injustice to refuse to remedy that same injustice. I know my noble friend is sympathetic and has empathy with the situation that these good people find themselves in. In his response, could he explain why the Government are refusing, without simply saying that this sets a precedent? Clearly, it does not. There is no other group in this situation. If there is, could the Government enlighten us as to who that group might be? Knowing that this situation arose as a result of Britain wanting to support the United States in the Cold War, and, at this time, as we face global perils, today would be a timely opportunity to remedy this injustice. It is an enormous injustice in terms of the Chagossians’ lives, but tiny in the scope of this Bill. Action would show that we recognise our responsibilities to people we have wronged in the past.
This amendment is wholly reasonable. The noble Baroness, Lady Lister, has tried again and again to change the wording to include stricter time limits, accommodate the Government’s concern and reach some kind of compromise. So I hope my noble friend will be able either to accept it or commit to coming back with the Government’s own amendment at Third Reading. Otherwise, I shall, in good conscience, vote in favour of this important amendment.
Lord Ramsbotham (CB)
My Lords, I strongly support Amendment 1, to which I have added my name. I declare an interest as a vice-chairman of the Chagos Islands (British Indian Ocean Territory) All-Party Parliamentary Group. How do the Government have the neck to condemn others for far less, while at the same time standing condemned by both the International Criminal Court and the General Committee of the United Nations for refusing to allow the Chagos Islanders and their descendants citizen rights to return to their homeland, despite promises that they would be allowed to do so after 30 years? I remember, as long ago as 2013, reading out a letter from a Pentagon Minister to the then Foreign and Commonwealth Office Minister saying that the Pentagon had no objection to the return of the islanders to Diego Garcia, being used to having indigenous people living alongside island military bases in the Pacific.
Lord Horam (Con)
My Lords, I must correct the noble Baroness, Lady Butler-Sloss, in one regard: the Lib Dems could have done something about this when they were part of the coalition Government. I am not particularly pointing to the Lib Dems: we are all guilty of the shame of what has happened to the Chagos islanders. All three parties, I am afraid, have done nothing to deal with the dreadful situation the Chagos islanders find themselves in as a result of successive Governments of all parties. I hope that my noble friend the Minister—he is having a hard time today, now having to answer this question as well as previous ones, and I really do feel sorry for him—can offer us some hope in this matter today.
My noble friend Lady Williams explained when we discussed this issue previously that the problem is that what we are asking for runs counter to long-standing government policy. However, the truth is that we ourselves created this situation. Surely, long-standing policy should be flexible enough to deal with a problem which we ourselves created. There is no group of people other than the Chagossians in this situation, and that is why we have to be flexible. I know that the noble Baroness, Lady Lister, has looked again at this amendment and drawn it ever more tightly, so that fewer additional problems can arise. I commend her on that effort.
We know from events such as the Windrush scandal that issues such as this are a matter not just of law but of how individual cases are handled in Home Office administration. I do not criticise that administration because I know from my own experience as a Member of Parliament how difficult such cases can be to deal with, and I often sympathise with it regarding the decisions it has to make. However, I would like the Chagossian community to be given some particular form of access to government. Perhaps an officer should be allocated to deal with their problems on a regular basis, so that there is a point of contact in the Home Office whom they can go to as a matter of course. I found during my previous experience as a Member of Parliament that this can make a huge difference to those who often simply want to contact in an easy and friendly way people who understand their problems, having been long versed in them.
I hope that my noble friend the Minister can give us some succour on this administrative issue, as well as on the legal matters. This issue is not going to go away.
Baroness Verma (Con)
My Lords, I declare my interests as set out in the register. This would be absolutely the right thing to do at this time, in order to demonstrate UK leadership. When it comes to long-standing government policy, we are a democracy and we should evolve, and policies should evolve with it. These people deserve our support in being given the right to go back to their homes. If we are to have any standing in the world, let us show that leadership today.
Lord Mackay of Clashfern (Con)
My Lords, this is a unique situation. These islanders were forced out of their homes not because of any objection to them, but to facilitate the development of bases desirable, perhaps, rather than necessary, in war. They have done nothing wrong and would be entitled, were they still there, at this level, to the citizenship which the Act gave them. The only reason they are denied it is that they are not now living where they would be, had they been left at home. That cannot in any way be imputed to their blame or against them in desiring to get what they would have otherwise had.
I want to understand what this long-term government policy is. Is it that people who have been damaged by activities of that kind should not be recompensed, or is it some other policy? Unless and until this extended government policy is explained, it is hard to see what sort of policy worthy of the name could be applied to making a refusal in this situation. It is difficult for those of us who are old enough to carry responsibility for what the Government did, but more difficult still to carry responsibility for what the Government are now apparently refusing to do.
If there is anything wrong with the drafting of the amendment—I am not conscious of it, but it may be pointed out—I see no reason why the Government should not extend this until Third Reading and correct any mistake. As I say, I do not see anything wrong with it, but I am always subject to being corrected and therefore I leave that open for my noble friend the Minister to deal with.
The real essence of it is that these people were put out of their homes for reasons that had nothing to do with any deficiency, damage or ill-considered action on their part. Nobody has suggested that they did anything wrong, and I find it very difficult to see why they should not get the benefit of what they would have had if they had not been wronged.
Lord Cormack (Con)
My Lords, I rise very briefly to say a few words in tribute to one of the most remarkable parliamentarians I have ever known and one of the best friends I have had in my time in Westminster: the late, great Tam Dalyell. He was on to this before anybody. He campaigned publicly and in the House of Commons. If he is looking down on your Lordships’ House as we debate this afternoon, I think he will have a thrill of satisfaction having heard the speeches we have just heard, particularly that of my noble and learned friend Lord Mackay of Clashfern.
It is never too late to put right a wrong. It is never too late to offer justice to those to whom it has been denied. It is incumbent on any Government who value their own self-respect to put right this wrong. I had to hear my noble friend’s other answers from the Bar of the House. I sympathise with him; he has drawn not one but two short straws today, and he is a new Minister, but he will earn enormous credit from your Lordships’ House if he is able to get up and say, “Yes, this is an overwhelming moral argument. Yes, I accept the justice of it. Yes, I will take it away, talk to my ministerial colleagues and come back with something satisfactory”—although, in my view, this is satisfactory—“at Third Reading”. If he does that, I know the noble Baroness who moved the amendment will be satisfied; she is indicating that she will. If he cannot do that, I hope she divides the House and I will be with her.
The Lord Bishop of Durham
My Lords, I hold my hands up: I am one of those who, as the noble Baroness, Lady Jones of Moulsecoomb, mentioned earlier, did not know much about this issue before we started this debate. However, I followed it and pay tribute to the noble Baroness, Lady Lister, for the way in which she has led this. It is quite clear that it is completely unjust and needs to be dealt with. I hope that the Minister has noted that, while in most debates, many of us around this House and the noble Lord, Lord Horam, will not agree, we agree on this one completely—100%. There is no justification for anything other than accepting this amendment.
Lord Paddick (LD)
My Lords, to assist the House to move swiftly on to votes, we on these Benches will try to restrict ourselves to one speaker who will speak for us all, unless we are provoked by subsequent contributions. I say to the noble Lord, Lord Cormack, that it is rather unfair to the Minister—particularly as he is a new Minister—to ask him to deviate from his script. However, we agree with my noble friend Lady Ludford and with all other noble Lords.
Lord Rosser (Lab)
My Lords, my noble friend Lady Lister of Burtersett has set out the background to and purpose of this amendment. As we know, currently only those born on the islands and the first generation born in exile have the right to British Overseas Territories citizenship and, therefore, to British citizenship. As a result, families have been broken up and communities divided. Some members have access to citizenship rights while others do not.
In the Commons, as has already been commented on, the Government accepted, on 4 November last year during the Committee stage of the Bill, that the Chagossians presented a unique case. By Report Stage in the following month, however, the Government seem to have decided that the Chagossians were no longer a unique case, because going down the road proposed,
“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories”.—[Official Report, Commons, 7/12/21; col. 258.]
The reason that the small number of Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British overseas territory. That is why they are unique, as the Government have already conceded. They did not leave of their own free will to settle elsewhere: they were kicked out—forcibly evicted. There would be no precedent set by agreeing to this amendment. In effect, the Government are using, in support of their case to deny these Chagossians the right to British citizenship, the cause of the very injustice which this amendment seeks to address. We support this amendment, and it would appear that we are far from the only ones in this House to do so.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have spoken in this debate. I also thank the noble Baroness, Lady Lister, for meeting my noble friend Lady Williams last week and for the opportunity to hear further about the issues impacting the Chagossian community. As has been said previously, both in Committee and when my noble friend met the noble Baroness, Lady Lister, last week, and as noted by my noble friend Lady Altmann, the Government empathise and sympathise with the Chagossians about how they were treated in the 1960s and 1970s.
It is, however, important to clarify who this amendment seeks to assist. It is not those Chagossians who were of the generations born on the British Indian Ocean Territory, as they have always been British nationals and have been automatically considered both British Overseas Territories citizens and British citizens since 2002. Similarly, it is not their children, the first generation of Chagossians born outside of British territory, who are also both automatically British Overseas Territories citizens and British citizens. It is also not those in the first generation of Chagossians born outside of British territory, who, as the Chagossian community highlights, have missed out on rights to British nationality due to historical legislative unfairness, and this Bill already seeks to rectify that issue.
This amendment is limited to those in the second and successive generations of Chagossians born outside of British territory who, like all children of British nationals by descent, face a different route to British nationality. For this generation, if they wish to acquire British nationality, it is right that they must establish a close, continuing connection with either the UK or a British overseas territory by lawfully residing and settling there, although I recognise that since the 1970s, it has not been possible to establish such a link to the British Indian Ocean Territory. This must be in line with either the UK’s or an overseas territory’s Immigration Rules. This has also been the case with Hong Kong British Nationals Overseas, who do not have a right of abode in British territory and must complete a period of residence in the UK before acquiring the permanent residence status that is required in order to naturalise as a British citizen.
The points raised by the descendants of Chagossians, who are members of the second generation born outside British territory and who are now seeking to settle in the UK under the Immigration Rules, are often very complex. As the Minister for Safe and Legal Migration has stated in the House of Commons, the Home Office is keen to consider what more we could do to support those families seeking to settle here under the current system.
The Home Office is actively engaging with the Chagossian community to identify practical proposals that would support the second generation born outside British territory in navigating the system. In addition, the Home Office is discussing with the FCDO how the £40 million Chagos support fund, referenced by the noble Baroness, Lady Lister, could be used to deliver further support for Chagossians seeking to settle here under the Immigration Rules. Those discussions are current and ongoing, and I had some this morning.
As the Government have consistently stated, allowing entitlements to—
Baroness Altmann (Con)
I thank my noble friend for giving way. Can I ask him to confirm that, had the grandparents of these individuals not been expelled against their will from their islands, these people would now be entitled to the citizenship we are currently denying them?
Lord Sharpe of Epsom (Con)
I think I have already answered that question. It is to do with the generations born outside British territory, so yes.
As the Government have consistently stated, allowing entitlements to citizenship to be passed on beyond the first generation born outside the British territory, bypassing requirements to reside and settle here by those who do not have a continuing connection with the UK, would unfortunately undermine a key principle in British nationality law that applies to all other descendants of British nationals born abroad.
I recognise that the noble Baroness’s amendment has sought to limit the right to register as a British national to current generations who must apply within a limited timeframe. However, this does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy and goes much further than the rights available to many other descendants of British nationals settled elsewhere around the world today.
I finish by saying that I have listened very carefully to this debate, and I realise I am something of a lone voice.
Baroness Butler-Sloss (CB)
I apologise to the Minister, but could I ask him to deal with this unique position? There is, as far as we know, no other group of people who have been evicted as they have and have not been allowed to go back. They are in a special position, but the noble Lord is not even dealing with that point.
Lord Sharpe of Epsom (Con)
I can only deal with it by extension, which is to say that it would be contrary to long-standing government policy to even deal with it.
I have listened very carefully to this debate. I have taken on board what the right reverend Prelate the Bishop of Durham has said about broad agreement—of course I have, and I will take it back to the Home Office. I will also take my noble friend Lord Horam’s suggestion back to the Home Office about dedicated support within the department, which strikes me as a very sensible suggestion. I am afraid that I am going to earn no credit with my noble friend Lord Cormack, because I invite noble Baroness to withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I thank all noble Lords who have spoken. I think it is unusual to have more support from the Government Benches than from any other Benches—and very strong support it has been.
The two interventions really put their finger on how the poor Minister—I am afraid he is making a face—did not address the fact that this is a unique case, as the noble and learned Baroness, Lady Butler-Sloss, said. As the noble Baroness, Lady Altmann, said, if their grandparents had not been forcibly evicted and kept in exile, these people would probably still be living on the Chagos Islands and be entitled to British citizenship. It is citizenship that they want. Certainly, the Chagossians who have been in touch with me are desperate to be seen as citizens; they do not want to come through some intricate way of dealing with the Immigration Rules—that is not what they are seeking.
I am sorry that the Minister has not addressed the key issues here. The noble and learned Baroness, Lady Butler-Sloss, described successive Governments as demonstrating “disgraceful behaviour”. As the noble Lord, Lord Horam, said, we all, in terms of our political parties—not the Green Party, but all the others—have responsibility here. This is our opportunity to put this injustice right. I wish to seek the opinion of the House.
Lord Mackay of Clashfern (Con)
My Lords, the Minister has said that he would take it back. It may well be that if he takes it back—
Baroness Lister of Burtersett (Lab)
The Minister said that he would take it back, but not with a view to bringing it back at Third Reading. Therefore, I must test the opinion of the House.
Lord Russell of Liverpool
“(1A) In section 1 (acquisition by birth or adoption), in 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”.”Member’s explanatory statement
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.
Lord Russell of Liverpool (CB)
My Lords, your Lordships will be delighted to know that I will be extremely brief in moving Amendment 2. I thank the noble Baroness, Lady Hamwee, who moved this amendment in Committee in my absence when I was laid low by some lurgy that has thankfully now gone. I declare that I am a governor of Coram, the children’s charity; this includes the Coram Children’s Legal Centre and CoramBAAF, which has been quite involved in briefing for this amendment. I am pleased to tell the House the good news that, amazingly, we have made some progress between Committee and Report.
The amendment highlights an anomaly in that British nationality law is not in alignment with adoption law in England, Wales and Scotland. A very small number of children have fallen foul of a Catch-22 situation whereby the automatic right to UK nationality has been denied them. This is because, while the adoption proceedings began before their 18th birthday, the adoption was not ratified until after. The noble Baroness, Lady Hamwee, Edward Timpson from the other place, the Immigration Law Practitioners Association, the two parts of Coram that I referred to earlier and I have been working with the Minister and her colleague in another place—Kevin Foster, the Minister with responsibility for this area—and we are pleased to be able to say that we seem to have found a way through this situation. This was outlined in a letter sent to Edward Timpson and me this morning. We look forward to the Minister replying in as much detail as possible when winding up.
The Government are proposing to deal with these cases through using Clause 7 in the Bill, putting in place detailed guidance—I quote from the letter—to
“help caseworkers assess applications fairly and consistently and to provide applicants with guidance when applications are likely to be granted.”
The letter continues:
“We are still in the process of developing guidance but, given that you would understandably want assurances on this, I will place a copy of this letter in the Library of the House confirming this intention.”
I am most grateful to the Minister and his Home Office colleagues for their co-operation and at least their willingness to listen. However, I have some questions arising from the letter, to which I would be grateful for answers, either at the Dispatch Box or, if that is not possible, in writing as soon as possible hereafter.
First, in Clause 7, would adopted children—the examples in subsection (2) do not include adoption—come under
“(a) historical legislative unfairness” or
(b) an act or omission of a public authority, or
(c) exceptional circumstances”?
Would the Government consider putting adopted children over 18 in primary legislation as an exceptional circumstance? This would be more secure than guidance, which could be changed without parliamentary scrutiny.
The letter mentions any delays that were beyond the parent/child’s control. If this means delay of the adoption, it seems to suggest that there is an obligation to adopt before the 18th birthday. This is not in line with current adoption law. The letter says that new guidance will be
“subject to there not being any adverse factors”.
While I understand that this is meant to cover situations where, for example, the individual might have a history of offending, what about a real-life example where the child being adopted has no immigration status? This is in no way, shape or form the child’s fault. Would this be held against them as an adverse factor? Surely not, so clarification on that would be appreciated.
I expect that I am primarily going to leave this debate open to those noble Lords discussing Amendment 21. I hope that the Minister will be able to give as full and comprehensive an answer as possible when he winds up. We shall listen to, and subsequently read, what he says with great care. I beg to move.
Baroness Hamwee (LD)
My Lords, I do not want to take the time of the House other than to say, with thanks for the letter, that I hope the Minister will accept that discretionary registration is qualitatively different from automatic citizenship, which is what we have been seeking, and understand my concern that the letter uses terms such as addressing
“exceptional cases in a flexible and proportionate way”.
This is vaguer than one would wish to see and a situation which I am sure is nobody’s fault but one of those unintended consequences of legislation not aligning.
Lord Paddick (LD)
My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.
I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.
In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.
In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:
“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]
However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?
The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:
“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”
and, in brackets:
“(We do not have data on how many actually attempted to register the birth)”.
In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:
“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.
That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.
If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?
If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.
I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.
Lord Rosser (Lab)
My Lords, I will not say anything on the amendment addressed by the noble Lord, Lord Russell of Liverpool, in view of what he has indicated about the progress that has been made between Committee and Report, although of course we will listen very closely to what the Minister has to say and indeed read what is in the Minister’s letter, which I think is what the noble Lord, Lord Russell of Liverpool, referred to.
As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. Under our international obligations we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here. Through Clause 10 the Government propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied a child was unable to acquire another nationality before being permitted to register as a British citizen. That, of course, creates an additional—and one would probably feel unjustified—hurdle to stateless children’s registration as British citizens which could be difficult for a child or those acting on their behalf to prove.
There is also the issue that the uncertainty created by Clause 10 could be highly damaging to a child’s personal development and their feelings of security and belonging, due to this exclusion and potential alienation being inflicted in their formative years. Indeed, the question was asked in Committee: how can this be in the best interests of the child?
The noble Lord, Lord Paddick, made reference to the figures which were given by the Government in their response. He also referred to the question which was asked as to whether the figure of 1,175 was the number of stateless children born in the UK who were granted British citizenship, or whether it was the number of cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system. The noble Lord, Lord Paddick, referred to the letter that was received on behalf of the Government, and to the apparent discrepancies between what was said in Committee and the figures which appear in the letter.
I wait with interest to hear the response of the Government, because we, too, asked the question about what the case for Clause 10 was. I think I am right in saying—I recall it being said—that the Government felt that the figures that they gave at Committee were a fairly conclusive argument in favour of abuse of the system, and therefore that this was the case for Clause 10. On the basis of the letter which has been received, and the comments which have been made by the noble Lord, Lord Paddick, there is some doubt as to whether the case has been made.
The noble Lord has asked a number of questions and asked for a number of assurances. The answers he receives will clearly influence the decision he then makes in respect of Clause 10 standing part, and will influence what we, as the Official Opposition, do if the matter is put to a vote.
Lord Sharpe of Epsom (Con)
I thank noble Lords who have taken part in this debate.
I turn first to Amendment 2. As has been acknowledged, there are differences in adoption law in various parts of the UK. This is why we do not think that amending Section 1(5) of the British Nationality Act 1981 would be the answer. The Adoption and Children Act 2002 applies only to England and Wales, whereas the territorial reach of the British Nationality Act 1981 includes the whole of the UK. This means that this amendment could have different results in a person’s ability to acquire citizenship, according to where they were adopted. For example, Scotland permits adoptions for those over 18, but differs from England and Wales as there is no upper age limit. Northern Ireland does not currently permit adoptions to happen after the age of 18. Therefore, the effect of this amendment would be to create differences across the UK in who can acquire British citizenship. This should not and could not be right.
Within nationality legislation, automatic acquisition of citizenship is generally reserved for minors. Granting automatic citizenship to adults could result in unintended consequences, possibly affecting another nationality which they hold. Where other countries do not allow their nationals to hold dual nationality, there are often exemptions for children which do not apply for adults. We normally offer adults a registration route so that the person can make a conscious choice about becoming British and take into account any potential implications of doing so.
While we do not want to amend Section 1(5) as proposed, we could use Clause 7 of the Nationality and Borders Bill in these cases. Clause 7 creates a route to British citizenship for those who missed out on acquiring it because of historical legislative unfairness, an act or omission of a public body, or exemptional circumstances relating to that individual. The noble Lord, Lord Russell, has noted this, and I will come to his specific questions in a moment. Registration would allow a person to acquire citizenship without causing unintended consequences as a result of the different legislation in devolved regimes and the overarching nationality law framework.
We will set out in guidance how we intend to use the adult discretionary registration provision created by Clause 7. The discretion must be considered on a case-by-case basis, but we can give examples of where it would normally be used. We think it would normally be reasonable to grant citizenship to an applicant where, for example, an application for adoption is made before a child’s 18th birthday but the adoption order is made afterwards for reasons beyond the control of the parent or child, or where the adoptive parent is a British citizen and the child would have become a British citizen under Section 1(5) of the British Nationality Act 1981, if they had been 18 at the time when the adoption order is made.
Lord Russell of Liverpool (CB)
My Lords, I thank the Minister for his response. I will not deal directly with Amendment 21, whose time will come in due course, but will respond on Amendment 2.
I understand that, given the current Government’s slightly prickly relationship with the Government north of Hadrian’s Wall, issues to do with the extent of UK legislative authority, when it comes to possibly clashing with Edinburgh’s idea of what its own jurisdiction should be, are a tricky area. I understand why they do not wish to tread there too much. It is a pity, though, because we are talking about the interests of a small group of children rather than the niceties of bouts between the devolved Administrations and Westminster. I take the point.
I thank the Minister for confirming that Clause 7 will be used and guidance produced. In addition, I understand that Edward Timpson found out that apparently—it was a surprise as much to the Home Office as to anybody else—in its office in Liverpool there is a specialist adoption unit whose remit is to look specifically at adoption issues. Kevin Foster said that the unit will be involved under this guidance and that any of the types of cases we are talking about that are flagged up will be brought to the attention of this adoption unit, which I hope will have enough expertise, experience and specialism to be able to really understand the situation and to avoid any mistakes of the kind we have evidenced in the past happening in future. When the guidance is forthcoming, I would be grateful if that could be made clear.
I am also grateful for the confirmation that a child’s immigration status would not be considered an adverse factor when it comes to considering their case. I thank Edward Timpson very much for all the work he has done and the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, among others, for their support.
I do not know how quickly the draft guidance will be available—does the Minister think it might be available before Third Reading? Clearly, it would be very helpful if it were, and rather unhelpful if not, so could the Minister come back to me as quickly as possible with confirmation on when it will be ready? Will he and the noble Baroness commit to a meeting with those of us most directly concerned, including Edward Timpson, to review this and perhaps help guide the draft guidance in the right direction? That would be much appreciated. If we are unable to resolve this situation satisfactorily before Third Reading, we shall be back, but in the meantime, I beg leave to withdraw the amendment.
“(1A) Schedule 1 also amends the British Nationality Act 1981 to allow the Secretary of State to treat a person who has indefinite leave to enter or remain as meeting certain residence requirements in relation to an application for citizenship under those sections.”Member’s explanatory statement
This amendment is consequential on the amendments to Schedule 1 in the name of Baroness Williams of Trafford.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I will aim to speak to all 11 amendments in my name, given that they touch on the same issue of requirements for citizenship applications. In doing so, I particularly thank the noble Baroness, Lady Ludford, both for raising this issue in previous debates and her willingness to meet me, along with the noble Lord, Lord Paddick, to explain more fully her concerns. The noble Baroness has retabled her previous amendment on this subject, and I will set out how measures that we are proposing will, I hope, address her concerns.
As noble Lords will know, the British Nationality Act 1981 set out the requirements for persons wishing to become British citizens based on a period of residence in the UK, be that through naturalisation under Section 6(1) or Section 6(2), or registration under Section 4(2). All three of those application routes have a number of residential requirements designed to demonstrate sufficient ties to this country. One is commonly referred to as “lawful residence”—essentially requiring that the applicant was not in breach of the immigration laws during the requisite residential period prior to the application.
For the majority of applicants this requirement causes no issues. However, as highlighted previously by the noble Baroness, it can lead to frustration for some people. While not restricted solely to those who hold indefinite leave to remain—also known as settled status—under the EU settlement scheme, this group serves well to highlight the problem. In particular, those individuals who had previously been resident here as students or self-sufficient persons were required to hold comprehensive sickness insurance under the EEA regulations. That they had not done so did not preclude their being granted indefinite leave to remain under the EU settlement scheme.
Many of that group understandably wish to progress to become British citizens. However, because they did not hold comprehensive sickness insurance, they technically were in breach of the immigration laws during their previous residence and fall to be refused in any application to become a British citizen. While the British Nationality Act allows for discretion around the lawful residence assessment, this can be applied only in the special circumstances of a particular case. Inevitably, that creates uncertainty for the applicant and may necessitate additional evidence to be supplied to justify the use of discretion.
The main thrust of these amendments is to resolve that impasse. Although not removing the lawful residence requirement itself, we aim to provide the Secretary of State with a much broader power to not even inquire into lawful residence for those who hold indefinite leave to remain. This is based on the simple fact that, for the vast majority of such individuals, any concerns about their immigration history will have been considered and addressed prior to any grant of indefinite leave. In other words, the immigration system, and reforms made since 1981, already demonstrate fulfilment of that requirement.
The amendments do not create an obligation to follow such an approach, but it is expected that it will be in only an exceptional case that we would not want to do so. An example of that might be where adverse information comes to light after indefinite leave has been granted and serves to cast doubt on the wisdom of that decision, but I stress that that would be an exception. The vast majority of people, to whom this does not apply—certainly those whom the noble Baroness has championed so ably—will be able to benefit from these changes.
Baroness Ludford (LD)
My Lords, I very much thank the Minister, who has taken a very welcome personal interest in this matter, which is very encouraging. The government amendments are interesting and represent some progress, but they are unspecific for EEA citizens, and there is still that discretion, not certainty, that the Secretary of State “may” but not “must” do this.
As I said in Committee, I was grateful for the concession, announced by the Minister and which she has just talked about, to the effect that the Government would
“amend the Immigration Rules … to disapply any requirement for a Lounes dual national”—
this area is littered with technical terminology—
“to have held CSI in order to sponsor applications by relevant family members”
for settlement. I would be very grateful, as we asked in Committee, to know whether there is any further knowledge of what progress there is on that change to the Immigration Rules.
So far, so good—but on the other two arms of my amendment, on registration of children as British citizens and naturalisation as British for an EEA settled person, both without looking at past CSI history, as my amendment asked for, the Minister said in Committee that
“it would not be right to single out EEA nationals”,
and she has repeated that. We are slightly in the same territory as we were on the Chagos amendments, whereby the Government say that they cannot do something specifically for this group. The Minister also said in Committee that
“it would not be right to treat certain nationalities differently”—[Official Report, 1/2/22; col. 794-95]
and she is maintaining this approach.
However, EEA nationals are being treated differently. They have resided previously in this country, often for a long time; a large chunk of an international treaty, the withdrawal agreement, is devoted to them and to their counterparts, British citizens in the EU, and legislation specifically covering them; and there are various arrangements for monitoring and supervising how they are treated. So they are a special case. I would just mention that some children who should have been born British were not, and now have to be registered at a cost of more than £1,000 because of the specifics of the situation of EEA nationals.
After the meeting of the UK-EU joint committee last week—the committee on the withdrawal agreement—Vice-President Šefčovič recalled that
“it was a commitment from both of us that we will do our utmost for the UK nationals in the EU and the EU citizens staying in the UK.”
An EU official was reported as saying that the Commission would consider whether to launch consultations on citizens’ rights, and could ultimately trigger an arbitration process. I am not saying that those remarks were targeted at this specific problem, but that reminds us that there is an oversight mechanism for the fate of EEA citizens.
The CSI issue affects only EEA citizens, nobody else, so removing it entirely from being a virus—I called it “snakes and ladders”—in our immigration regime, would simply bring EEA citizens into line with all other migrants, who do not have a CSI problem. When Prime Minister, Theresa May said:
“The requirement for comprehensive sickness insurance is an EU requirement, and as long as we are members of the EU, it will continue to be there. Once we leave, we can indeed remove it”.—[Official Report, Commons, 26/6/2017; col. 315.]
It is true that the Government removed it for applicants for settled status but, as I hope I have explained through the passage of this Bill, the problem is that it pops up later. You do not get rid of it; that is why I call it a virus. You do not get rid of it—it sort of comes back.
What is not to like about removing red tape? I suggest that while the new government amendments represent some progress—again, I thank the Minister—they still rest on discretion and do not treat EEA citizens on the fair, legally secure basis that I believe they deserve under the withdrawal agreement. I hope that the Government can do more and ward off any possible action from the European Commission and enforce a slightly more secure basis.
If I cannot get what I really want—acceptance of my amendment—I ask the Minister to confirm at least that, when implemented, the guidance will be updated to always state that the Secretary of State will always exercise her discretion in favour of applicants by not inquiring as to whether they had CSI and by treating self-sufficient persons, students and their family members as not having breached immigration laws. That should be in guidance as a firm commitment. Otherwise, I would like to hear the Minister further.
Lord Coaker (Lab)
My Lords, we support much of what the noble Baroness, Lady Ludford, has just said and some of the questions she has put forward. No doubt, the Minister will respond to those questions. It has to be said that the Minister has come forward with some amendments that do improve the situation.
Can I just emphasise the important points the Minister made and clarify, in the light of the questions from the noble Baroness, Lady Ludford, that she said it would apply to all residents, not just EU residents? That is an important point that the noble Baroness, Lady Ludford, made, and the House needs further clarification on what “all”—not to be pedantic—actually means in these circumstances for clarity of legislation.
Having welcomed the step forward the Minister has clearly made, I think that what “exceptional” means is also important—so that the Secretary of State will not use the power to prevent somebody without CSI gaining citizenship other than in exceptional circumstances. The noble Baroness, Lady Ludford, again, is right to ask for greater clarity about how “exceptional circumstances” will be defined and whether there will actually be guidance that any future Home Secretary will have to take into account in determining whether leave to remain should be changed to a full citizenship status in the particular circumstances with which this group of amendments is dealing.
I thank the Minister for coming forward with those amendments and trying to meet many of the concerns that were raised in Committee and before. I look forward, with the noble Baroness, Lady Ludford, I am sure, to the answers to the important questions that have been raised, notwithstanding the amendments before us this afternoon.
Baroness Williams of Trafford (Con)
I thank both noble Lords for the points they have just made. I did refer to guidance in the points I was making in introducing. Yes, the guidance will make things clear.
In terms of “all”, “all” means all nationalities; the provisions will apply to all nationalities. I know the noble Baroness says this is a particular EU problem, but we are trying to make provisions that apply to all countries.
In terms of that point about “may” and “must”, “may” rather than “must” reserves the “may” for the most exceptional cases where it would not be appropriate to take that more generous approach. The provisions will be applicable to the vast majority of applicants, apart from those “may” applicants where a generous approach would not be appropriate—for example, criminality. I hope that explains it to the noble Baroness.
Baroness Ludford (LD)
I do thank the Minister for that reply. I am not absolutely certain. It may just be that I did not follow the detail, but I am not sure I quite heard that the guidance, apart from in the exceptional case of criminality, will say that the Secretary of State will always exercise her discretion in favour of EEA applicants by not inquiring about the CSI record of the people that it affected.
I have some understanding for what she said about people with a criminal record but, that apart, I should like to hear—perhaps I will not get this today—that the guidance will say that, in normal cases, for EEA nationals, there will always be a good outcome in disregarding a CSI gap. I am not sure that I have quite heard that. I do not know whether the Minister wants to clarify that now, or whether I should just accept—
Baroness Williams of Trafford (Con)
I cannot make an absolutist comment, but I was trying to explain to the noble Baroness that anyone in the normal run of things—other than, for example, serious criminality—would be caught by the government amendments.
Baroness Ludford (LD)
I thank the Minister for that further clarification. I think I have got as far as I am going to get—
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
My Lords, I think I should put the Question.
“(b) in section 41(4), for “that section” substitute “section 41 of the British Nationality Act 1981 (regulations)”.”Member’s explanatory statement
This is a minor clarificatory amendment which is consequential on the amendments to the 2009 Act made by Clause 8(2).
“(1) Section 4 (acquisition by registration: British overseas territories citizens etc) is amended as follows. (2) ”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 16.
“(3) After subsection (4) insert—“(4A) Subsection (4B) applies where, on an application for registration as a British citizen made by a person to whom this section applies, the applicant has indefinite leave to enter or remain in the United Kingdom.(4B) The Secretary of State may for the purposes of subsection (2) treat the applicant as fulfilling the requirement specified in subsection (2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.(4C) The reference in subsection (4A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.””Member’s explanatory statement
This amendment would provide that, for applications for citizenship under section 4 of BNA 1981 where the applicant has indefinite leave, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the United Kingdom in breach of the immigration laws.
“(ba) after that sub-paragraph insert—“(1A) Sub-paragraph (1B) applies where the applicant has indefinite leave to enter or remain in the United Kingdom.(1B) The Secretary of State may for the purposes of paragraph 1 treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.(1C) The reference in sub-paragraph (1A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.”;”Member’s explanatory statement
This amendment would provide that, for applications for citizenship under section 6 of BNA 1981 where the applicant has indefinite leave, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the United Kingdom in breach of the immigration laws.
“(2A) In paragraph 4, in paragraph (a)—(a) for “the reference” substitute “the references”;(b) for “a reference” substitute “references”.”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 27.
“(za) the existing text becomes sub-paragraph (1);”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
“(c) after that sub-paragraph insert—“(2) Sub-paragraph (3) applies where the applicant has indefinite leave to enter or remain in the relevant territory.(3) The Secretary of State may for the purposes of paragraph 5 treat the applicant as fulfilling the requirement specified in paragraph 5(2)(d), without enquiring into whether or not the applicant was in the relevant territory in breach of the immigration laws in the period there mentioned.(4) The reference in sub-paragraph (2) to having indefinite leave to enter or remain is to be construed as a reference to any status formally granted under the immigration laws in force in the relevant territory which is broadly equivalent to the status of having indefinite leave to enter or remain under the Immigration Act 1971.””Member’s explanatory statement
This amendment would provide that, for applications for citizenship under section 18 of BNA 1981 where the applicant has indefinite leave to enter or remain in the relevant territory, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the relevant territory in breach of the immigration laws.
“(4) In paragraph 8, in paragraph (a)—(a) for “the reference” substitute “the references”;(b) for “a reference” substitute “references”.”Member’s explanatory statement
This amendment is consequential on the other amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Lord Anderson of Ipswich
“SCHEDULE 1A DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTThis is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—“SCHEDULE 4A Section 40(5E)DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTDeprivation without notice: application to Special Immigration Appeals Commission1_(1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed. (4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—(i) give late notice in respect of the order,(ii) revoke the order, or(iii) make an application under sub-paragraph (6).(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or(b) the Secretary of State wishes to provide further evidence to the Commission.Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.Deprivation of citizenship without notice: review2_(1) Sub-paragraphs (2) to (5) apply if—(a) the Secretary of State makes a conducive grounds deprivation order without notice, and(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).(4) If the Secretary of State decides at any point to give late notice in respect of the order—(a) the Secretary of State must give the notice as soon as reasonably practicable, and(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.(6) Sub-paragraphs (3) to (6) of paragraph 1 (except sub-paragraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.(7) For the purposes of this paragraph, each of the following is a “review period”— (a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and(b) each of the next five successive periods of four months.Interpretation3_(1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of whom the order was made specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.””Member’s explanatory statement
This amendment inserts a new Schedule into the British Nationality Act 1981, to make provision for judicial oversight of decisions to deprive a person of their citizenship status without notice on grounds that the deprivation is conducive to the public good.
Lord Anderson of Ipswich (CB)
My Lords, the circumstances in which British citizenship may be removed were keenly debated in Committee. This group concerns a narrower issue: whether it should be possible to remove someone’s citizenship without giving them notice of it at the time and, if so, in what circumstances. Clause 9 struck me as so problematic that, in Committee, I tabled a stand part notice; that is echoed today by Amendment 20 in the name of the noble Baroness, Lady D’Souza. In Committee, I asked the Minister to take Clause 9 away and challenged her, if she could make the case for such an extraordinary power, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.
The Minister responded to that challenge as positively and wholeheartedly as I could have hoped. I pay tribute to her, to her fellow Minister, Tom Pursglove, to the Bill team and to those at the Home Office and in agencies with whom I have discussed these issues—and I pay no less tribute to the NGOs and individuals who have impressed on me the dangers of Clause 9. The result, after what I think I can fairly describe as very considerable movement on the part of the Government, is the first six amendments in this group, together with Amendment 85, which concerns commencement. They have been pulled into proper shape by the Office of the Parliamentary Counsel, and I hoped that they could be tabled last Monday as government amendments, with my support, but an extra day was needed to conclude our discussions, so they appear under my name. I am grateful to the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady McIntosh of Pickering, for adding their support.
These amendments achieve four important things. The first is a far more restricted range of circumstances in which notice can be withheld. The original Clause 9 would have allowed the Secretary of State to withhold notice whenever that appeared to her to be in the public interest. Amendments 15 and 16 remove the subjective element and provide that notice may be withheld only if the Secretary of State does not have an address for service, or if she reasonably considers it necessary on one of the four exceptional grounds specified in Amendment 16.
Let me illustrate my understanding of how those exceptional grounds could arise in practice. A terrorist may be living in a safe house here, or more likely abroad, without realising that his whereabouts are known to the authorities. To require a notice of citizenship deprivation to be served on him at that address would reveal to him that he is the object of covert surveillance, contrary to the interests of national security: proposed new sub-paragraph (i). The same may be true of a participant in “organised or serious crime”—the phrase being taken from Section 1 of the Serious Crime Act 2015, which defines the remit of the National Crime Agency: proposed new sub-paragraph (ii). If intelligence as to location was supplied by a foreign liaison partner which does not wish its cover to be blown, notification at that address could jeopardise our intelligence relationship with that country: proposed new sub-paragraph (iv). The person in question might be, for example, with a dangerous armed group in a failed state. To require a courier to travel to such places to serve notice, at great personal risk, would be wrong: hence proposed new sub-paragraph (iii).
I do not believe that these grounds will be commonly advanced—it seems that, with a degree of ingenuity, workarounds have been found in the past—but neither, I suggest as a former independent reviewer of terrorism legislation, should they be dismissed as fanciful. It may be relevant that the laws of two of our closest allies are, if anything, more broadly drawn than this amendment. The New Zealand Citizenship Act 1977 allows for notice of deprivation to be dispensed with if it would be for any reason “not practicable” to serve it on the subject. The Australian Act of 2020 allows the Minister to determine that notice should not be given if it could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.
The second feature of these amendments is to introduce powerful safeguards for conducive grounds deprivations that were entirely absent from the original Clause 9. In New Zealand, they have judicial scrutiny of these decisions. In Australia, they have regular ministerial review. Elements of both those safeguards are contained in the new Schedule 4A, which is set out in Amendment 14 and referred to in Amendments 17 and 19.
The judicial safeguard is in paragraph 1 of the schedule. If the Secretary of State wishes to withhold notice, she must apply to a superior court of record—the Special Immigration Appeals Commission—in advance or within seven days. SIAC will examine her reasons and decide, applying judicial review principles, whether her assessment is obviously flawed. That is the same test that is applied to the making of terrorism prevention and investigation orders under the TPIM Act 2011. SIAC will no doubt develop similar rules to deal with it, which might, in an appropriate case, provide for the appointment of a special advocate. If she does not succeed on her first attempt or on a subsequent application, which must be based on material change of circumstances or further evidence, the Secretary of State must either give notice in the normal way or revoke the deprivation order altogether.
The review safeguard is in paragraph 2 of the schedule. The Secretary of State must consider, three times a year for two years, whether the reasons for non-notification remain valid. If, after the sixth review, she still resists notification, she must make a further application to SIAC, which will, once again, give independent scrutiny to her decision.
The twin requirements of judicial approval and regular review will place a significant burden on the Secretary of State in any case where she wishes to exercise this power. I make no apology for that. Under the Immigration Rules, as they stood between 2018 and 2021, it was easy—far too easy—not to give notice but simply to record it on the file. That path was taken in no fewer than 29 of the 45 conducive grounds deprivations, mostly related to national security activity abroad, that were made in 2019, 2020 and 2021. These amendments not only require non-notification to be a last resort on paper; they make it hard work in practice. They should ensure that, in its own interests, the Home Office will take this exceptional course only when there really is no possible alternative.
The third feature of these amendments relates to appeals. Of course, a subject cannot appeal against a notice of deprivation until he has become aware of it. But Amendment 18 provides that time for appeal will begin to run only once notice has been given. It will not, therefore, be necessary to rely on the discretion of the court to extend time for appeal in cases where deprivation has not been notified at the time.
The fourth and final feature is in the proposed new subsections 5(c) and (d) inserted by Amendment 18. Any person whose citizenship was removed without notice must be informed of that fact, with reasons and information about appeal rights, as soon as they make themselves known to the Home Office, whether within the two-year review period or thereafter; for example, this might be by seeking consular assistance or a fresh passport.
Amendment 18 has another significant and, I would suggest, highly beneficial effect. The point has been well made by other noble Lords that upstanding citizens of this country, notably dual citizens, may be anxious about the removal of their citizenship without their knowledge. Amendment 18 provides such people with a means of reassurance. They have only to contact the Home Office to be told whether this has happened or whether, as will almost always be the case, it has not.
In Committee, the noble Lord, Lord Blunkett, challenged the House to
“find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk”.—[Official Report, 27/1/2022; col. 518.]
These amendments rise to that challenge. They should ensure that non-notification is confined to those rare cases where it is truly necessary, and they are subject to strong safeguards, including regular review, judicial scrutiny and a right to be informed on request.
I come finally to subsections (5) to (7) to Clause 9, which seek to limit the effect of the D4 case by providing that an unlawful failure to notify a pre-commencement deprivation order should not affect the validity of that order. I will listen carefully to my noble friend Lady D’Souza develop her manuscript amendment to remove those clauses, but in the meantime, to assist our deliberations, I ask the Minister to give two assurances relevant to that amendment. First, will she confirm that anyone subject to a pre-commencement deprivation order will be informed of that fact if they contact the Home Office, by analogy with proposed new subsections (5C) and (5D), as inserted by Amendment 17? They would then be in a position to proceed with any substantive appeal. Secondly, will she confirm, by analogy with Amendment 18, that the Home Office will not suggest that any of these people are out of time for appeal as a consequence of the interval between the decision to remove their citizenship and the giving of notice?
If my amendments are accepted, and those assurances given, I believe that we will have played our part as a revising Chamber and achieved a broadly acceptable balance. Opinions on citizenship removal will, of course, continue to differ, but the aggravating factor of removal without notice will be strictly confined and properly safeguarded for the future, as it was not in the Immigration Rules as they stood prior to the D4 judgment of last year, and as it was not under Clause 9 as it was passed by the Commons. I beg to move my amendment and, if necessary, I will test the opinion of the House.
Baroness McIntosh of Pickering (Con)
My Lords, I am very grateful to the Minister for her support in drafting these amendments, and I hope that she will give an assurance that the Government do, indeed, support these amendments. I thank the noble Lord, Lord Anderson of Ipswich, for addressing many of the concerns that I raised in Committee, particularly those expressed to me by the Law Society of Scotland, which was extremely dissatisfied that, in the original Clause 9, the Government had not fully justified the removal of citizenship without notifying the affected person. It asked that this clause be reconsidered, and I am grateful to the noble Lord for doing so.
Equally, in Committee, I raised the concerns expressed to me by the European Network on Statelessness in its briefing. It was very concerned that Clause 9 as drafted would
“have severe impacts on the rule of law and on a person’s fundamental rights”,
and that, as drafted, Clause 9
“disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing.”
In its view, the UK Government
“has not provided any justification as to why such a restriction on fundamental rights is needed.”
I pay tribute to the Minister and the noble Lord, Lord Anderson of Ipswich; many of my concerns have been addressed. I support the amendments introduced by the noble Lord, Lord Anderson, and support the reasons that he has given. The restrictive range of circumstances has been greatly reduced in which a citizen’s rights could be taken away. I support the powerful safeguards he set out as to why a citizen could be deprived of their citizenship, the rights of appeal, the provision that a citizen must be informed that their citizenship is going to be removed and the reassurance that he set out that could be given by condition C at that time. I support the amendments.
Lord Macdonald of River Glaven (CB)
My Lords, powers to deprive British citizens of their citizenship have historically been very tightly drawn under UK immigration law for obvious reasons. However, I reminded the Committee that in 2003, 2006, 2014 and 2018, these powers were very considerably expanded, so that now they are exercisable against any British citizen who has dual nationality, where the Secretary of State is satisfied that deprivation is conducive to the public good. The breadth of this power is perhaps best understood by the Supreme Court’s conclusion in the Begum case, that this includes situations where the individual is unaware that they hold dual nationality and even where that individual has little or no connection with their country of second nationality.
I reminded the Committee of the words of the leading immigration law silk, Raza Husain QC, who said:
“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”
The drastic nature of this power was well described by the United States chief justice Earl Warren, a Republican, put on the court by President Eisenhower, who said that the loss of nationality amounts to
“the total destruction of the individual’s status in organised society… the expatriate has lost the right to have rights.”
He was channelling Hannah Arendt there.
Deprivation of citizenship is such a drastic and far-reaching power that it must be accompanied by proper procedural safeguards. That much is obvious. This is a power that has been beloved of some of the worst regimes in history. If we are to permit this power to a Secretary of State, it must be accompanied by procedural safeguards. In its original form, Clause 9 went in precisely the opposite direction, removing the most basic safeguard of all—the safeguard of notification —really at the Secretary of State’s whim. That was not good enough and, like my noble friend Lord Anderson, I am grateful to the Government for having listened to the debate in Committee and for having changed course. Again, like him, I am satisfied that serious movement has been made and that some of our most serious concerns about the clause as originally drafted have been responded to appropriately. For that reason, I will be supporting this amendment and am extremely grateful to the noble Lord, Lord Anderson, for moving it.
Baroness D'Souza (CB)
My Lords, the amendments tabled by the noble Lord, Lord Anderson, add hugely important safeguards to Clause 9, but subsections (5) to (7), which are set out on page 12 at lines 13 to 19, would remain in place and appear to make lawful what is clearly unlawful. The secret power to deprive citizenship without notice and/or appeal threatens our cherished British values of fair play and the rule of law. It would also risk unduly affecting ethnic minority communities. Subsections (5) to (7) seek to instruct the courts to treat past unlawful deprivations as if they were lawful, even where the courts have found that these actions failed to comply with statute at the time when they were made.
Parliament, it seems to me, is being asked to condone a disregard for the law by those Ministers who took away British national citizenship when it was illegal to do so. If these provisions remain in the Bill, a series of unlawful deprivation orders made against young women from minority ethnic communities will not be subject to any scrutiny whatever. This cannot be right.
It seems clear from what has been said so far on this clause that the most profound concerns still relate to Clause 9 as a whole and—although the amendment tabled by the noble Lord, Lord Anderson, alters the whole tenor of the Bill and grateful thanks are due to the Minister for enabling this—the concerns remain. These clauses would create a secret power. Clause 9 goes well beyond cases where the Government cannot provide notice. According to the Policy Exchange think tank, at no point in the last century has it been thought that national security called for depriving British citizens of their citizenship without notice. We cannot see the case for this now, at a time when our closest allies, such as the US, are warning that depriving individuals of citizenship is not an effective way to fight terrorism.
The main issue in this group of amendments is whether Clause 9 should remain part of the Bill. My suggestion is that it should be removed to create certainty and clarity. It seems to me that the optimal solution would be to remove this clause altogether, not only because, as it stands, it is contrary to British law and indeed to parts of the UN refugee convention, but because this clause—as well as new subsections (5) to (7) proposed by the amendment in the name of the noble Lord, Lord Anderson—seem to enable further restrictive orders, something that we as a scrutinising Chamber should avoid at all costs. Therefore, while I will of course support the noble Lord’s amendment, I will also seek to move my amendment, which would leave Clause 9 out.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.
The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.
My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.
I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?
I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.
The Lord Bishop of Chelmsford
Thank you. My Lords, I am grateful for the suggestion that the House might like to hear from the Lords spiritual. I support the amendment in the name of the noble Baroness, Lady D’Souza, which proposes that Clause 9 should not stand part of the Bill. We debated this at some length in Committee. It is somewhat disappointing that the Government have not taken the opportunity to reconsider more fully. I will not delay the House by repeating the arguments, but I will briefly speak about trust.
The Government seem genuinely confused by the level of opposition that the clause has triggered, but this should not have been surprising because I am afraid that it is symptomatic of a serious breakdown in trust between the Home Office and society groups, particularly minority ethnic groups, as we have heard. The response to the Windrush Lessons Learned Review promised a new culture in the Home Office—one that was more compassionate, that saw faces behind the cases and would rebuild and enhance
“public trust and confidence in the Home Office”.
The Bill as a whole does not do much to create the impression that this new culture has been embedded. Trust is hard to build and very easy to lose. On the issue of deprivation of citizenship and the treatment of minorities, trust is sufficiently low that any new changes to these powers must surely come with a compelling and overwhelming demonstration of a serious and widespread problem that needs to be solved.
I remain unconvinced that the Government have demonstrated that there is a sufficiently major problem that existing powers do not address. I am quite convinced that the impact this clause will have—indeed, already has had in continuing to undermine trust between the Home Office and civil society—is serious enough that the Bill would be greatly improved by Clause 9 being removed in its entirety. Having said that, I have heard the words of the noble Lord, Lord Anderson. He provided a compelling and informed case for his saving amendments. I will listen with interest to the Minister’s response.
Lord Carlile of Berriew (CB)
My Lords, I apologise to the right reverend Prelate the Bishop of Chelmsford for my lack of control over my new varifocals, and to your Lordships for entering the debate at this late stage. I have been listening to the debate in the context of my concerns about the majority judgments in the D4 case, which has already been mentioned. I read my noble friend Lord Anderson’s amendments and listened with enormous care to his very clear—indeed, brilliant—opening. I support his amendments. My view is that they go further than is absolutely necessary in terms of proportionality between the duties and rights of citizens and the setting of safeguards to ensure that this equation is well balanced. Overbalancing in favour of protections is a good fault in the circumstances, hence my declared support for my noble friend’s amendments.
Baroness Bennett of Manor Castle (GP)
The noble Lord has displayed a very touching faith in the Home Office, which I do not think reflected the view of your Lordships’ House in an earlier debate in terms of how we are approaching Ukrainian refugees. Is he aware of the case of the gentleman known as E3, who was deprived of his British citizenship for many years, was eventually able to appeal that, has never been arrested or charged, and has finally—on 11 February—returned to the UK and is now back with his family after many years of separation.
Lord Carlile of Berriew (CB)
I am not aware of the details of that case, but I would say to the noble Baroness that the architecture that the amendments of the noble Lord, Lord Anderson, set out would protect such a person in a much better way than was the case before.
Baroness Warsi (Con)
My Lords, I start by congratulating the noble Lord, Lord Anderson of Ipswich, on the detailed measures that he has brought forward. I really appreciate the time that he has given to the discussions and debates that he and I, and other Members of this House, have had over the last few weeks and months. I also pay tribute to my noble friend Lady Williams for her work and her calls, and for the way in which she has dealt with this issue, reaching out to try genuinely and sincerely to find a compromise. That is what this is—it is a compromise, and compromise is good, but fairness, justice and equality are better. Therefore, despite the fact that these amendments go some way to making what was really bad legislation slightly less bad, they are simply papering over the cracks.
Once again, we are being asked by the Government to keep incrementally changing this law from the early 1980s—each time it has been changed with one case law or one individual situation—so that more and more people in this country, from a wider and wider scope, with more and more different offences, are now included in a space where their citizenship can be stripped. Therefore, we have an opportunity in this House to, once again, incrementally, make a bad law slightly less bad—or we can take a position and say that the underlying law itself is so bad that we are no longer prepared to keep making these incremental changes.
This takes the bad law a little further. If we go back to what this law actually does, first, it strips citizenship from those who were born and raised here, know nowhere else and whose family have been here for generations, but who are deemed to have—they do not actually have—another citizenship through some tenuous link to a country that their grandfathers or great-grandparents may have come from. Secondly, under this law, in our courts in the United Kingdom we punish two people convicted of the same crime differently based upon their heritage—not on the crime committed, but on their heritage. That is what the underlying law does.
I take issue with the idea that these people are not second-class citizens; they are. Let me give an example. My grandfather came here in the 1950s; my father came in the 1960s. I was born here; I have no other citizenship. My children were born here; they have no other citizenship. My grandchildren have been born here; they have no other citizenship. However, if my grandchildren—we all bring our children up well, not to commit crime, but we can never predict how their lives will turn out—were to commit not just a terrorist offence but a criminal act such as a sexual offence or an offence involving fraud, they could, in court, be punished for the crime but also have their citizenship stripped. That is fact. That makes me a second-class citizen. It makes my children second-class citizens. It makes their children second-class citizens. How far back do we go before we say to people that they are as equal as anyone else in this country?
Today, by supporting the amendment in the name of the noble Baroness, Lady D’Souza, we can say, from this House, that despite all the assurances and the changes, we believe in equality for all in this country. My noble friend mentioned New Zealand and Australia, and I accept that changes have been put in place there; safeguards have been put in place where it is deemed not fit to serve notice. But we also have allies, such as the United States and Canada, who simply do not even have the law—they do not believe that we should be stripping our citizens of their citizenship.
The current law has been used throughout two decades of the war on terror, during the rise of ISIS, and while terrorist fighters from the United Kingdom have been going overseas. Over the years, we have managed to use the law, without this additional incremental change, to ensure that we have stripped people who we consider to be dangerous of their citizenship. We have managed under the current law; this further change is not required.
In conclusion, we may not have taken this moment to put right the wrongs of the past—many noble Lords, including many noble friends from my own Benches, stood up and asked for the original law to be considered. However, the least we can do is to stop a bad law becoming worse. If the noble Baroness, Lady D’Souza, tests the opinion of the House, I urge Members to vote for it because I will be voting for it, too.
Lord Pannick (CB)
My Lords, I shared the concerns expressed by my noble friend Lady D’Souza about Clause 9 as it was originally drafted. However, I am very satisfied with the amendments tabled by my noble friend Lord Anderson, particularly as the exercise of these powers is subject to the control of the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Bennett, that this is not to have trust and faith in the Home Office. Whether or not that is justified, I have trust and faith in the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Warsi, that this is not a compromise or papering over the cracks. Rather, this is a great tribute to the noble Lord, Lord Anderson, and to the work done by the Minister: it is to achieve the protection of both the public interest and the rights of individuals. This is what this House should be aiming to do.
Lord Mackay of Clashfern (Con)
My Lords, I had the honour, with the then Leader of the House, to present to this House the 1981 Bill which became the Act. We certainly understood that it was a very drastic power which enabled citizenship to be taken away. Therefore, it was only right that notice should be required, and provided for, in Section 40(5) of that Act. It included the need to make clear to the person affected that the application was on. It used the last known address as a possibility. However, the more that difficulties arise, the more it is seen that something further is required. Therefore, it is right that Section 40(5) should be amended. I think that the amendments, as now proposed—and subject to the amendments of the noble Lord, Lord Anderson of Ipswich, if, as I hope, the Government will accept them—are an acceptable way of dealing with this very delicate matter.
I agree entirely with what the noble Lord, Lord Pannick, said, that the real and ultimate protection is in the independent judicial review by the special court for that purpose. It is essential that, as this nation is subject to many different ways of being attacked, we should be protected as much as possible. This is a very sensible way to do it, provided that the Government are prepared to accept the proposal of the noble Lord, Lord Anderson of Ipswich.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I spoke in Committee and, obviously, after two and a half hours then and 50 minutes now, one is in danger of ending up with—in that famous phrase of the football manager—a sense of déjà vu all over again. I will try to avoid that and just raise a couple of points.
I listened very carefully to what was said by the noble Baronesses, Lady D’Souza and Lady Bennett, and the right reverend Prelate—and I am not a lawyer. I also listened again to my noble friend Lady Warsi—having heard her passionate speech at the earlier stage—and the noble Baroness, Lady Mobarik. I did not see the provisions of Clause 9 as an attack on people, and particularly not an attack on a particular part of our community. I saw the clause as a defence of the values that tie us all together and the glue that binds our society: the tolerance, freedom of speech and economic opportunity that has brought people to this country over the years, some more recently than others. That has been the essence of the attractions that have brought people here.
However, I was extremely concerned, and pointed out in Committee, that there was a gap in the arguments using the phrase
“conducive to the public good”.
I was worried about that, but I said—and still believe—that there is a need for the Government to protect the citizens of the country and that that is the overriding proposition we need to follow. Do I find the issues of Clause 9 easy? I do not. Do I wish we did not have to have Clause 9? I do so. But there are evil people about and wishing will not make it so. I thought in Committee, and still think now, that the underlying purpose of Clause 9 is right.
I pointed out in my speech then that, without the informed consent of the population of the country, the respect for and the importance of the rule of law become undermined. The travellers on the Clapham omnibus would regard some of the issues that have been raised this afternoon—such as having to send a courier into an extraordinarily dangerous country and put his or her life at risk—as a perverse outcome.
I recognise that there is a gap. I said that I hoped there would be some opportunity for smoothing some of the sharp edges in Clause 9 as originally drafted. As a non-lawyer, it seemed to me that the amendment from the noble Lord, Lord Anderson, answered the points that were made. Can it answer all the points? No, but it answers them effectively. It seems to provide a means to smooth the corners or close the gap—whichever metaphor you wish to use.
I would support the Government, whatever happened, as I think the underlying purpose of Clause 9 outweighs the disadvantages. However, I hope very much that my noble friend will be able to see the advantages of the amendments from the noble Lord, Lord Anderson, and will be able in that way to make the compromise that I think makes the argument unanswerable.
Baroness Mobarik (Con)
My Lords, I speak in support of the amendment from the noble Baroness, Lady D’Souza, to leave Clause 9 out of the Bill. I find it difficult to comprehend that we are even debating something so out of step with our rules of justice and fairness. Depriving someone of their citizenship without even informing them, as would be the case if Clause 9 were to be enacted into law, is in effect an addition to the already punitive measures that have existed since 1918.
As the noble Lord, Lord Macdonald of River Glaven, stated, Clause 9 effectively removes the right of appeal, which has evolved over the decades to become ever more powerful. If the Home Office deems it to be in the public interest or, as is worded,
“conducive to the public good”,
then the long-standing position under the British Nationality Act 1981 that an individual must be notified if they are to be deprived of their nationality is being amended, so that they do not even have to be informed. Currently, citizenship deprivation letters can be delivered to the individual’s last known address, so why are we changing that? Essentially, over this past decade, the Government have failed to provide notice on many occasions, and it appears they are now seeking to declare all unlawful deprivation orders as lawful by making Clause 9 retroactive.
Clause 9(5) purports to make lawful deprivation orders which courts have found unlawful because of failure to give notice. That is making lawful a breach of requirements as laid down by Parliament, after the fact. This completely undermines the rule of law as we understand it. While I support the amendments of the noble Lord, Lord Anderson of Ipswich, which would provide some safeguards on the use of Clause 9, the amendment in the name of the noble Baroness, Lady D’Souza, to remove the retroactive application of Clause 9 in its subsections (5)(6) and (7), should be considered seriously.
Former Prime Minister Sir John Major has warned that we should search our souls before taking this step. Others such as the Institute of Race Relations, the House of Lords Constitution Committee, the think tank Policy Exchange and the former Attorney-General Dominic Grieve, as well as five separate UN bodies, have stated that such deprivation orders made under Clause 9 are likely to be discriminatory and unlawful. I hope that we would give attention to such notable organisations and individuals.
I add that I support in principle the amendment of the noble Baroness, Lady Bennett, to omit subsections (2) and (4) of Section 40 of the British Nationality Act 1981, but understand that it is probably outwith the scope of the Bill. However, we have to address this, because we are in danger of creating a two-tier system of citizenship.
The fact is that Clause 9 has a disproportionate impact on people from ethnic-minority backgrounds. As a person cannot be made stateless according to international conventions, by default it is more likely to affect those who have a connection to the Commonwealth or a country where they are entitled to dual nationality. But it is not even as obvious as that, for some Commonwealth countries allow dual nationality or will accept people if they have a connection through their parents or grandparents, while others do not. Take south Asia, for example: while Bangladesh and Pakistan offer dual nationality to British citizens who have a direct link, India does not, so citizenship deprivation would not impact British citizens of Indian heritage. As I said in Committee, if Clause 9 is enacted into law, we are heading towards a society made up of degrees of citizenship, where some are full citizens while others are half-citizens and others somewhere in between.
Growing up between two distinct cultures, one is acutely aware of certain idiosyncrasies and traits which define each. The core values are, of course, the same, but there are always certain endearing features: the British sense of humour, with its self- deprecation and the ability to laugh with others at one’s own expense is one. The other is this sense of fairness. How often do we hear the phrase “That’s not fair”? Then there are all the variations: “Let’s be fair”, “Fair enough” and “Fair is fair”. Do noble Lords think it fair to have a two-tier system of citizenship? Do we think it is fair to deny someone their citizenship without informing them?
I understand that our intention is to root out ruthless individuals and deny them entry to our country, which is absolutely right. Not one of us would disagree that we must do everything to protect our people, but it begs the question: will it protect our citizens to have ill-intentioned people free to continue to conspire against us elsewhere, rather than having them locked away safely, following the rigours of our excellent courts? It also begs the question: what if there is a mistake, as has already happened in the case pointed out by the noble Baroness, Lady Bennett, of the British Bangladeshi man referred to as E3? He spent five years in Bangladesh trying to get back, having had his citizenship revoked without him even being informed. He eventually got back, as there was no evidence that he had committed any crime or had any intention of doing so—a completely innocent man, wrongfully accused. Was that fair or unfair?
Britain has a proud tradition of justice, equality and fairness. Let us keep it that way.
Baroness Verma (Con)
I was not intending to intervene, but may I ask my noble friend the Minister whether there is any major change to the current law that forces the commentary that my noble friend has just made? I have seen on WhatsApp groups worried people and citizens of this country with a lot of misinformation, and I have gone through the Bill and fact sheets and tried to get my head around what this is about—apart from the fact that we want to make sure that people are aware when their citizenship may be taken away, when they cannot be reached, and that is not based on anything other than their performing a criminal or terrorist act.
May I have some clarification? Sitting here, I have listened very carefully to every contribution made today, and while there are lawyers among us who know the details very well, ordinary citizens out there—people in groups with WhatsApp messages going around—are very frightened. They feel very scared, and they need to know that this is not the case.
Lord Marlesford (Con)
My Lords, I support the amendments from the noble Lord, Lord Anderson. I think that the way this matter has been handled reflects extremely well on the flexibility and the detailed application of the minds of Members of your Lordships’ House in dealing with very great problems, especially when these problems are new and have recently arisen.
I was struck by the words of my noble and learned friend Lord Mackay of Clashfern, when he referred to the fact that when the 2011 Act was passed, he could not have imagined the need for these arrangements. Let us be aware that the thing that is new is the creation of a new political body, which has nothing do with religion, the Islamic State. It claims the ability to grant citizenship and demands loyalty but also—by definition, because it believes in theocracy rather than democracy, and the theocracy itself is an aberration with little to do with the noble aspects of Islam—believes in something that puts its members in permanent enmity with this country. They deny the right of other states to exist, which is why, of course, we should be taking steps to defend the realm against the possibility of such people using citizenship for the destruction of this country.
Lord Paddick (LD)
My Lords, although at first glance it would seem reasonable for the Home Office not to have to give notice to a terrorist overseas that they were being deprived of their British citizenship, it of course means that there is no effective right to appeal, as the subject would be unaware of the decision. We have also seen cases where the Home Office could have given notice, even to the last known address or by email, and chose not to. The increase in the use of this power needs to be reversed.
The amendments proposed by the noble Lord, Lord Anderson of Ipswich, seek to introduce a range of judicial oversights, would remove the subjective element of the decision and tighten the grounds on which a deprivation of citizenship order may be made without notice to the person concerned. Others would strengthen the test for making such a decision; ensure, if the person concerned contacts the Home Office, that he is told what has happened and that he has a right of appeal; and allow the Special Immigration Appeals Tribunal to oversee such decisions. Any time limit on appeal would start when the subject is notified.
I understand that a government Minister would have signed these amendments from the noble Lord, Lord Anderson, had they not been out of time—the deadline for tabling government amendments being several days before that for other amendments. I pay tribute to the noble Lord, Lord Anderson, for the time, effort and ingenuity he has brought to bear in bringing forward such a comprehensive suite of amendments that could arguably halt, if not throw into reverse, the current practice by the Home Office increasingly to use this power to deprive citizenship without notice. We wholeheartedly support these amendments.
However, were the House to divide on taking Clause 9 out of the Bill, we would, along with the right reverend Prelate the Bishop of Chelmsford, support that Division. At the end of the day, the Government should be taking ownership of the actions of British citizens, including terrorists overseas, ensuring, wherever possible, that they are extradited to the UK to stand trial, rather than depriving them of British citizenship, preventing them returning to the UK, and making them some other country’s problem, whether with notice or not. However, while therefore agreeing with much of what the noble Baroness, Lady Bennett of Manor Castle, has said, we are unable to go so far as to support her amendment, as there could be exceptional cases where, as a last resort, citizenship should be removed.
Lord Rosser (Lab)
I think I am right in saying that until the noble Lord, Lord Paddick, spoke, all those speakers who had spoken against Clause 9 were noble Baronesses. I am not sure what the significance of that is, and I do not say that in any wrong way; I think it is a great credit to them. Like the noble Lord, Lord Paddick, I hope they will forgive me for intruding on their space.
Although we appreciate that the amendments tabled by the noble Lord, Lord Anderson of Ipswich, are certainly an improvement on Clause 9—I, too, would like to express my thanks to the noble Lord for all the work I know he has put in—as it stands, we do not feel the case has been made by the Government for why Clause 9, and deprivation of nationality without prior notice to the individual concerned, are actually necessary. That is what we are talking about: not whether nationality should be removed but whether it should be possible for the Secretary of State to remove it without prior notice.
Currently, under the British Nationality Act 1981, an individual must be notified if they are to be deprived of their citizenship. So what is the problem when, for example, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address, or to a parent, or to a parent’s last known address? I say that against the background that the Government have already said there have been no cases where the requirement to give notice has stopped—prior to the recent High Court decision—a deprivation of citizenship order coming into being. It is also against a background where the number of people deprived of their citizenship has risen considerably over the last 12 years—an upward trend with a peak, I think, in 2017.
One thing we can be sure of is that if the Government have the powers under Clause 9, even with the amendments of the noble Lord, Lord Anderson of Ipswich, we will see deprivation of citizenship orders being made without prior notice, because if it is not the Government’s intention to take advantage of the powers to deprive a person of their citizenship without prior notice, why are they seeking them? Against that scenario, we need to be satisfied that there is a real and overriding necessity for this additional power now, when it has not been deemed necessary before, beyond it being perhaps more convenient or helpful on occasions not to have to go through the procedure of giving prior notice to the individual concerned. The lack of a compelling and meaningful government response on that point, and there having been no cases where the requirement to give notice has stopped the deprivation of citizenship order coming into being, is significant.
If a proven national security need does arise for the power not to have to give prior notice of a deprivation of citizenship notice coming into being, the Government can get such necessary legislation through Parliament, as we know, with remarkable speed. In the absence of such a case being made for this power—and the lack of it clearly has not caused a serious difficulty until now—we should be wary of agreeing to Clause 9, even as amended, remaining in the Bill.
I suggest that the situation has not been helped by finding out from information in the Court of Appeal decision that in the D4 case the Home Secretary
“argued that notification had been given to D4 … by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”
That ought to make us very wary about giving the Secretary of State and the Home Office the additional powers in Clause 9, now that we know how existing statutory powers and requirements on notification have been interpreted and implemented in the D4 case.
The consequences of the clause are likely to be felt most—but certainly not exclusively, as the noble Baroness, Lady Mobarik, said—by those from ethnic minority backgrounds. It is no surprise that it is in this area that the Bill, particularly Clause 9, has caused most concern about how the new powers might be applied and interpreted and what the evidence is that they are needed now and have not been needed before.
It is unlawful to deprive someone of their citizenship and leave them stateless. Even so, the Home Office is still on record that British citizenship
“is a privilege, not a right”.
Yet without citizenship people do not have rights, and we are talking about significant rights. It has been estimated that nearly 6 million people in England and Wales could be affected, and that under this proposal two in five British citizens from an ethnic minority background are eligible to be deprived of their citizenship without being told, since they have, or may have, other citizenships available to them—I think that was the basis of the comment about two classes of citizenship—compared with one in 20 characterised as white. That is a sobering consideration for the Government, or should be, when looking at the merits or demerits of Clause 9, not least in the light of how the Secretary of State and the Home Office in the D4 case interpreted and implemented the requirement to give prior notice under the law as it exists at present. What would be tried if Clause 9, even as amended by the amendments by the noble Lord, Lord Anderson, gave the power not to have to give prior notice?
The right reverend Prelate the Bishop of Chelmsford raised the issue of trust, or rather the lack of it, among society groups. The Government ought to reflect very carefully on that in considering whether Clause 9, even as amended, should remain in the Bill. I have to say that as far as we are concerned the case has not been made for Clause 9, even as amended, to remain in the Bill, and we shall certainly be looking for an opportunity to vote against it.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in this debate, especially the noble Lord, Lord Anderson, who has tabled these amendments; I am very grateful for his expertise in this matter. I also acknowledge Amendment 20, tabled by the noble Baroness, Lady D’Souza, and Amendment 22, tabled by the noble Baroness, Lady Bennett of Manor Castle.
The House will recall that we debated this matter at length in Committee. I say now, as I said then, that inaccurate and irresponsible media reporting continues to fuel fear and concern about how Clause 9 is to operate. I will repeat what I said then, starting with my noble friend Lady Verma: the deprivation power itself is not altered. Clause 9 does not alter the reasons why a person is to be deprived of British citizenship and we are not stripping millions of their citizenship.
To answer the noble Baroness, Lady D’Souza, and others, Clause 9 does not target dual nationals, those from ethnic minorities or particular faiths, or indeed women and girls; there is no secret decision-making, and law-abiding people have nothing to fear from Clause 9. It is simply about the mechanics of how a deprivation decision are conveyed to the individual concerned.
Lord Anderson of Ipswich (CB)
I am grateful to all noble Lords who spoke in this debate on a subject that I suspect none of us found particularly easy. I do not want to pre-empt anything, but it is possible, having heard the debate, that my amendments may not be very controversial. My noble friend Lord Carlile was alone in suggesting that these amendments go too far; he always was a little bit tougher than me. The real question for your Lordships might be whether they go far enough—whether, in short, we stick with my amendments or, as the opposition Front Benches maintain, twist by removing the whole clause.
The manuscript amendment shone a spotlight on subsections (5) to (7), which my amendments do not touch. With great respect to the noble Baroness, Lady D’Souza, it is not right that the effect of those subsections is that pre-commencement deprivation orders would, as she put it, not be subject to scrutiny. Their effect is rather that a pre-commencement deprivation would not be invalid purely because it was served to the file, in accordance with the Immigration Rules then in force.
Subsections (5) to (7) do not prevent a person who becomes aware of the deprivation—as the Minister just confirmed just now, they have only to ask—appealing it on any substantive ground. Indeed, the Minister also just confirmed, in providing the other undertaking that I sought, that the Home Office would not suggest that such appeals were out of time.
As to the suggestion that Clause 9 should be removed in its entirety, when I secured the agreement of the Government to my amendments, noble Lords will understand that it was not with a view to pocketing the gains and then asking for more. Therefore, I cannot in all conscience support that amendment myself, either as a tactical gambit or in the substance. I do, however, support my own amendments and I beg to move.
Lord Anderson of Ipswich
Member’s explanatory statement
This amendment removes the subjective element from the condition in paragraph (a) of new subsection (5A)(notice of deprivation of citizenship not required if Secretary of State does not have the requisite information).
“(b) the Secretary of State reasonably considers it necessary, in the interests of—(i) national security,(ii) the investigation or prosecution of organised or serious crime,(iii) preventing or reducing a risk to the safety of any person, or(iv) the relationship between the United Kingdom and another country,that notice under that subsection should not be given.”Member’s explanatory statement
This amendment limits the grounds on which a deprivation-of-citizenship order may be made without notice to the person concerned, and also strengthens the test, so that one may only be made if the Secretary of State reasonably considers it necessary.
“(5C) Subsection (5D) applies where—(a) the Secretary of State has made an order under subsection (2) and, in reliance on subsection (5A), has not given the notice required by subsection (5), and(b) the person in respect of whom the order was made makes contact with the Secretary of State for the Home Department.(5D) The Secretary of State must, as soon as is reasonably practicable, give the person written notice specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.(5E) Schedule 4A makes provision for the Special Immigration Appeals Commission to consider a decision of the Secretary of State not to give notice to a person before depriving them of a citizenship status on the grounds mentioned in subsection (2) (deprivation conducive to the public good).” Member’s explanatory statement
This amendment inserts three new subsections into section 40 of the BNA 1981. The first two provide for late notice to be given to a person who has been deprived of their citizenship without notice if they subsequently make contact with the Home Office. The third introduces the new Schedule 4A to the British Nationality Act 1981, which provides for the Special Immigration Appeals Commission to oversee decisions to deprive a person of their citizenship without notice.
“(b) after subsection (2) insert—“(2A) In the case of an order made as described in subsection (1)(b), for the purposes of any rule or other provision limiting the time within which an appeal under this section may be brought, time does not start to run unless and until the person is given notice of the fact that the order has been made (see section 40(5D) and Schedule 4A).”Member’s explanatory statement
This amendment provides that in a case where a person is deprived of their citizenship without notice, time for bringing an appeal will not start to run unless and until they are subsequently given notice.
“(3A) After Schedule 4 to the 1981 Act insert the Schedule 4A set out in Schedule 1A.”Member’s explanatory statement
This amendment inserts the new Schedule 4A into the British Nationality Act 1981.
Baroness D’Souza
Baroness D’Souza (CB)
My Lords, having listened with great care to a number of Lords speak about Clause 9, I think it is accepted that citizenship of the UK is an enormous privilege, but it is also a right. It seems that, despite the wonderful amendments tabled by the noble Lord, Lord Anderson, there remain sufficient loopholes in Clause 9 for it to become, once on the statute book, a hostage to fortune. In view of that, I would like to test the opinion of the House.
Lord Judge
“Compliance with the Refugee Convention
Nothing in this Part authorises policies or decisions which do not comply with the United Kingdom’s obligations under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.”Member’s explanatory statement
This new Clause reflects the Government’s stated intention of compliance with the Refugee Convention and ensures Part 2 provisions are read subject to that international legal obligation.
Lord Judge (CB)
My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:
“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]
So what is this all about?
I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.
This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.
The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.
In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.
If we are right—and I believe we—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.
There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field. Nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.
Viscount Hailsham (Con)
My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.
Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.
Lord Rosser (Lab)
Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.
Baroness Hamwee (LD)
My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.
Lord Pannick (CB)
My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.
The Paliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.
Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.
Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.
The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.
Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.
On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.
Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.
It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.
The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.
What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.
To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.
Lord Brown of Eaton-under-Heywood (CB)
Before the noble Lord sits down, do I understand that it is the Minister’s intention that, if this Bill is passed in its present form, in future no court shall look behind its provisions and consider what, under the convention and with the advice of UNHCR, its proper application and interpretation are? Is that the Minister’s intention?
Lord Wolfson of Tredegar (Con)
In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.
Lord Judge (CB)
My Lords, faced with the problems to which Part 2 gives rise, we end up, on the basis of the Minister’s response, with the situation in which the court will look at provisions that we say contravene the convention and say, “Ah, Parliament has said that this provision must apply. Although it contravenes the convention, it must still be applied.” The court must do so, notwithstanding that the intention of the Government was that the provision should be compliant.
We are going around in circles. We are back to “Oh, yes, it is” and “Oh, no, it isn’t”, and that is no way for us to be on a measure of such crucial importance to many people suffering from the consequences of persecution, war, famine and so many things that afflict other nations and with which fortunately we are not afflicted. The House really ought to decide this. I ask the House to decide and tell us what its decision is.
Member’s explanatory statement
This amendment ensures equality of treatment by removing the distinction between Group 1 and Group 2 refugees.
Baroness McIntosh of Pickering (Con)
My Lords, when I tabled these amendments, I had sought to seek a greater reassurance from my noble friend the Minister than I achieved in Committee. Obviously, I realise, given the result of the last few votes, it may be that Amendment 28, in the name of the noble Lord, Lord Kerr of Kinlochard, and others, will find greater favour with the House. However, I shall take this opportunity to set out my opposition in principle to what the Government are seeking to do here: it is not just the fact that two groups are being created, but the way in which those two groups will be treated differently.
Perhaps the most offensive provision in Clause 11 is subsection (5). The Explanatory Notes refer to it as
“differential treatment of refugees based on their group. Differences may, for example, apply in terms of the duration of their permission to remain in the UK, the availability of routes to settlement, the ability to have recourse to public funds, and the ability of family members to join them in the UK. There is no obligation for these powers to be exercised and discretion may be applied.”
The greatest difficulty that I have is that it is not clear that there will be discretion or, indeed, how that discretion will be applied.
I hate to say it to my noble friend, but I find it offensive that this differential between groups 1 and 2 has been created. In taking the two groups out and substituting the general term “person”, I draw attention to Amendment 27, which asks for “reasonable discretion” to be exercised. I believe that is the key to all the amendments before us. This comes directly from the advice that I have received from the Law Society of Scotland as to how the provision will apply, if the original clause is left unamended. It says:
“We take the view that how a person enters the UK should not impact on family reunion. Safe and legal routes have been reduced since the UK left the European Union with the removal of the Dublin III Regulation. This provision appears to be actually reducing the prospect of families using one of only the two safe and legal routes the Asylum seeker has i.e., refugee family reunion – the other being UNHCR resettlement. Fewer safe and legal routes are likely to result in more unsafe and perilous journeys.”
Given the new situation arising daily in Ukraine, and the dreadful humanitarian crisis that we see there, I hope that the Government will resist the provisions in the clause and look favourably on my amendments and think again—but I fear that perhaps the House will favour the amendment in the name of the noble Lord, Lord Kerr of Kinlochard. I beg to move.
Lord Kerr of Kinlochard (CB)
My Lords, I welcome the new clause proposed by the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Judge, but we need to do a belt-and-braces job here. I am afraid we have to go back to the issue of compatibility and “Oh yes it is; oh no it isn’t.”
In Clause 11, we are introducing something entirely new. This two-class categorisation of refugees—the real refugees who came direct and the class 2 refugees who did not—is not anywhere in the refugee convention. None of that is in the refugee convention. The Government say that it is all perfectly compatible with the convention and assert that it is our right to interpret the convention in this new way, differently from the way that it has been interpreted up to now by our courts, differently from the way that the UNHCR, the custodian of the convention, interprets it in its authoritative judgment on our Bill, and differently from the way in which 146 signatory states interpret it.
We did the “Oh yes it is; oh no it is not” game at length in Committee and the Government stuck to their view, but I think it is fair to say that the Committee found it rather hard to understand the Government’s view. I wondered whether the Minister perhaps let the cat out of the bag when he told us:
“It may … be”—
to be fair, he did put it tentatively—
“that a convention entered into in 1951 is not absolutely suitable for the world of 2022.”—[Official Report, 8/2/22; col. 1463.]
Tonight, we heard the Minister seeming to hint that it might be time to review the convention as if it was in some way out of date. I could not disagree more.
I refute the Minister’s contention in one word: Ukraine. Life itself—zhizn’ sama, as a Russian would say—refutes the Minister’s contention. In the world of 2022, we see these hundreds of thousands of people—now over 500,000, the UNHCR says—abandoning their homes, trudging the motorways, crowding on to the trains, fleeing the tanks and rockets, and streaming into Poland and Hungary, Slovakia, Moldova and Romania. Are they refugees? Yes, of course they are refugees, just like the Hungarians in 1956 and the Czechs in 1968. Are they entitled to refugee convention rights? Yes, of course they are. But if the Bill, including Clause 11, is enacted or had been enacted, any of them who wanted to come to this country could be only group 2 refugees, without full convention rights, because they had not come directly from Ukraine and could have asked for asylum in Poland or Hungary. That is even though there are no direct flights from Ukraine, and even though we say Ukrainians have to have visas to come here—although we do not issue visas to asylum seekers.
The key point for the House tonight is that there is nothing in the convention or, as I understand it, subject to correction from the legal authorities round me, anywhere in international law requiring an asylum seeker to apply in the first safe country they reach. This, the rationale for Clause 11, is a Home Office invention. The convention sets only one test: not how the refugee got here, but why. What was it that drove him to come here? Was it a well-founded fear of persecution back home? That is the question. But if Clause 11 is approved, that question or test becomes redundant and irrelevant because, no matter what horrors he is fleeing from, if a refugee did not come here directly he could be only a group 2 refugee, subject to the harsher regime, detention and offshore processing set out in all the subsequent clauses that we are also going to have to look at closely, in my view. This just will not do.
My concern is with the refugees but also for the reputational damage we do to ourselves, if we go down this road, and the practical consequences for the refugee convention. Suppose our new invention caught on and other countries started following suit. Well over 20 million refugees are in countries contiguous to their homelands—just across the border—and nearly all these countries are developing countries. Suppose the convention were in future to be interpreted by all and sundry to mean that the exiled Syrians and Iraqis must always stay just across the frontier in Lebanon or Jordan, and that the Afghans must always stay in Pakistan, but the developed world can wash its hands of these problems and leave it to the Jordans and Pakistans, because the refugees could never move on and obtain asylum elsewhere. The only places they could obtain asylum were in the Jordans and the Pakistans.
What would the consequences of that be? They would be disastrous for the first host country; there are 1.5 million people in Lebanon from Iraq and Syria, and more than that from Afghanistan in the camps around Peshawar in Pakistan. We would be saying that Pakistan and Jordan are going to be stuck with that for ever, as far as we are concerned. It would be disastrous for the refugees, too.
If this doctrine caught on—if it were the general reading of international law that first hosts had sole responsibility—anyone seeking to flee persecution would find the gates of freedom clanging shut in their face. If we leave Clause 11 in the Bill, we do not just betray our values and trash our reputation, we could kill the refugee convention, sadly, though we need it in the world of 2022 as much as ever. I propose that Clause 11 be deleted.
Lord Horam (Con)
My Lords, we had a long debate on this subject in Committee, so I shall be brief. We ought to remember throughout what the Bill was originally about. It is fundamentally about stopping, or curbing, the channel migrants. Obviously, we hope to do it in a sensible way. If we could have an agreement with the French, the Belgians or the Dutch to deal with this in a bipartisan way, that would be ideal, but none of us is very optimistic, particularly before a general election in France and so on.
We need other options: a plan B, or maybe a plan C. I agree that some of them stretch the credibility of what any Government would want to do, because the problem of the cross-channel migrants is indeed very difficult to deal with. You have to deal with them separately because, however sympathetic one may be with people in the hands of traffickers coming across the channel for whatever reason, it is a difficult way to come across. It is unsafe, they are clearly behaving illegally—it is against the law to enter this country in that way—and they are doing so in a very public way. Every night on television, you can see people coming across the channel and on to the beaches in Kent and so forth. They add to the number of people the Government have agreed to accept by proper routes—the Chinese from Hong Kong, the Afghans and, now, Ukrainians. Like the noble Lord, Lord Kerr, I hope we will have a generous scheme to allow Ukrainians who wish to come here to do so, just as I hope that Europe will have a generous scheme. I suspect and hope that they will come here only temporarily.
Coming across the channel is an open-ended and uncontrolled method and, if successful, encourages even more to come. Last year, 29,000 came; the prediction is that 60,000 will come this year. That is more money for the traffickers. The traffickers now make more money out of human beings than they do out of drugs, which will increasingly be the case. If we allow that to carry on uncontrolled, it makes it more difficult for local authorities, which have to deal with these people—housing them, making welfare arrangements, schooling their children and dealing with their families.
They add to the problems in the most disadvantaged parts of the country. It is not the leafy areas of Hampstead where these people end up; it is in places such as Blackpool, Stoke-on-Trent, Middlesbrough and Doncaster. I was talking to a red wall MP from the north-west. Blackpool has five of the eight poorest wards in the country; it has real problems. There is fury on the streets of Blackpool at the way they are being dumped on with people such as the migrants who come across the channel. They do not understand why they have to receive them.
The levelling-up agenda, which is central to this Government, is set at nought when that situation is arising in the areas of this country which need to be levelled up. It makes a proper, organised, rational immigration policy more difficult. As my noble friend Lord Hodgson said in a previous debate, informed consent—the consent of the people—is essential for a rational, substantiated and long-term immigration policy. If we do not have a policy that people are comfortable with, in the long run, we will not sustain it.
The Lord Bishop of Durham
My Lords, if the names had not been filled on Amendment 28 then I would have added my name to it. I remind the House of my interests as set out in the register, both in RAMP and Reset.
In Committee I laid out the understanding of the two groupings proposed and argued that almost no one will actually qualify as being in group 1. I had no repudiation offered to that argument. As the noble Lord, Lord Kerr, said, Ukraine is currently illustrating the problem precisely. I was also concerned in the response to the debate in Committee by some of the language of discretion within the two groupings.
We need a simpler, more efficient asylum system, and I continue to be convinced that what is proposed will provide a more complex, slower process. Fundamentally, I am with all those who oppose the two-group system, as it creates a fundamental injustice for fair treatment of all refugees, regardless of how they arrive.
Today, a letter signed by over 1,000 leaders from all the major faith communities of this country was delivered to the Prime Minister. I quote from that letter:
“Dear Prime Minister, As leaders within faith communities across the UK, we are horrified and appalled about the potential repercussions of the Nationality and Borders Bill. We urge you to reconsider the proposals even at this late stage.”
It goes on later to say:
“Currently, Clause 11 sets out the differential treatment of refugees. This separation of refugees into ‘Group 1’ or ‘Group 2’ undermines the longstanding and widely understood expectation that a person’s asylum application is decided on the individual merits of their case and whether they would face serious threats to their life or freedom if they were not to be granted refugee status. The artificial manufacture of a two-tier system creates two different classes of refugees. This would not be based on needs or merits but would depend on the ability of a person to arrive in the UK via a ‘regular’ route of travel. This is a clear breach of the principles of the Refugee Convention, and we have seen no credible evidence that it will stop irregular migration across the English Channel; it is therefore, policy made without a basis in evidence or morality. Criminalizing and punishing vulnerable asylum seekers who have little choice but to arrive in the UK through ‘irregular routes’, when the majority are subsequently able to prove that they have a legitimate basis for their asylum claim, is a disgraceful and dishonourable policy, and should be abandoned.”
The letter says some more about other clauses, but concludes:
“What we need now, is political leadership which acknowledges and allays the concerns of the public while promoting the importance of compassion, human life and dignity. We remain willing to assist in any way we can to this end, and ask that key representatives on this issue from the government would agree to meet with faith representatives to explore what both we, and the government, can do to help address some of the concerns we have raised.”
Just to be clear, Members on these benches who are engaging in the debates during the progress of the Bill made a conscious decision not to sign that letter because of our privilege of being able to speak here. If we were not here, we would have all signed it. It has over 1000 signatures of those from all major faiths. I doubt the Minister is going to agree to withdraw all of Clause 11, but I sincerely hope that she will ask the Prime Minister to respond positively to the letter and recognise that faith leaders representing faith communities across the land should be heeded and not ignored.
If I may add that, on the Australia example, it is not as simple as the noble Lord, Lord Horam, has suggested. There are many in Australia who will tell you that the system is not working and has not stopped the problems; indeed, I think Novak Djokovic might tell you of his own personal experience of how it is not working because of the people he met in the hotel that he was held in, some of whom have been held for a very long time. There is another simple reason it does not work: geography. The United Kingdom is in a very different geographic setting from Australia. I long that we remove Clause 11.
Lord Dubs (Lab)
My Lords, I very much agree with the right reverend Prelate, and I am totally in support of the noble Lord, Lord Kerr, and his amendment.
I agree with the right reverend Prelate: all the evidence we have from Australia is that it is not working. I have talked to people in Australia who say that we should not go down this path because it is not sensible and it does not work.
I shall be extremely brief. The idea that, at this stage, we start renegotiating the 1951 Geneva convention—presumably on the basis of clauses such as Clause 11—is a frightening prospect. This is no time to be tearing up one of the most fundamental human rights documents that we have, which protects vulnerable, innocent victims of war and persecution. This is no time to be saying that we will change that. If the Government are not proposing to do it that way, why have this clause?
It seems to me that there are too many examples—whether it is Afghans who have got to neighbouring countries but cannot get any further, or Ukrainians who have got to neighbouring countries—that give the lie to the idea that, somehow, you can get here by the sort of route that the Home Office approves of. It is complete nonsense. It is not workable and it diminishes this country in the eyes of the world.
Baroness Jones of Moulsecoomb (GP)
I was so annoyed by what the noble Lord, Lord Horam, was saying, because part of it was absolute nonsense. Australia is actually riven with debate on the whole system of asylum that it offers to refugees, and the offshoring is extremely contentious, not to mention inhumane. Plus, of course, what he has described as all the problems that we have with refugees are actually failures of the Government. Why does he not ask his Government to set up safe systems for refugees to arrive in Britain? That is the real problem: we do not have them.
I shall go back to what I want to say: compliance with the refugee convention seems absolutely part of what we should be doing as an honourable country. We should not think in terms of interpreting it in our own way. Just as countries all over Europe are throwing open their doors to Ukrainian refugees and refugees from other countries who have found themselves in Ukraine, we are putting up walls and nailing doors shut, rather than being honourable about the situation. Imagine people from Ukraine being subject to the two-tier refugee system, as the so-called legitimate ways of escaping Putin’s violent invasion are cut off and Ukrainian refugees have to use so-called illegitimate ways of getting to the UK. The Bill harms those refugees.
If people do get here from Ukraine or other countries, are they to be left homeless and begging on the streets because there is no recourse to public funds and they are banned from work? These people are professionals: they are teachers, nurses, skilled engineers and tradespeople with lifetimes of hard work behind them. They are all banned from contributing in this country, and it makes absolutely no economic or social sense. When Ukrainians claim asylum, do we lock up the women and children in detention centres if they are struggling to find the right paperwork?
If this Government were brave, they would go out and celebrate the asylum system and create one that was fit for purpose and champion the UK as a place of refuge. But this Government are not brave: they pander to the far right and use national rhetoric to divide and rule. At this point, the Government ought to reflect on the whole Bill and realise it is not appropriate for the circumstances we are in. It is cruel, it is inhumane, and quite honestly, the invasion of Ukraine should be a turning point for us. The Government should abandon the Bill and perhaps start thinking about a “refugees are welcome” Bill.
Baroness Stowell of Beeston (Con)
My Lords, may I just ask my noble friend a question, based on listening to this debate and looking at Clause 11 as it stands? Subsections (5) and (6) say that the Secretary of State “may” treat group 1 and 2 refugees differently. My interpretation is that this clause is introducing an element of discretion to the Home Secretary to deal with a situation in a way that allows some difference of treatment, should she see fit—not a requirement that she must do so.
On the point the noble Baroness, Lady Jones, just made in response to my noble friend Lord Horam, I say that the Government are not seeking not to comply with the refugee convention, but seeking to allow for some flexibility and discretion to deal with some of the changing situations in this context, which are very different now from when the convention was introduced 50 or so years ago.
Lord Etherton (CB)
My Lords, I entirely endorse and support what the noble Lord, Lord Kerr of Kinlochard, has said. I do not want to develop this as a lawyer, because the issues can be very well understood by anybody with any degree of common sense. The starting point is that the English courts have reached a view about the meaning of “directly” in the convention, and the contrary view that has been rejected by the courts is the one found in Clause 36; and Clause 11 is to be read with Clause 36. I take issue with the proposition that the introduction of “may” in some way or other alleviates this problem. It does not. The Government have adopted a view about the meaning of the convention, and the meaning of “directly” that is critical to the division between groups 1 and 2, which has been rejected. Perhaps more importantly even than the fact that it was rejected expressly by the English courts is that it has not been adopted by the UNCHR either, which has followed the English jurisdiction since the expert round-table conference in Geneva in November 2001, set up specifically to discuss and agree Article 31.
Lord Russell of Liverpool (CB)
My Lords, I was not intending to speak in this debate but, rather like the noble Baroness, Lady Jones, I was prompted to by some of the interventions from behind the Front Bench, so as a non-politician I will speak briefly about the political context used to justify some of this rather egregious legislation.
I have the privilege of being the only non-political member of the UK delegation to the Parliamentary Assembly of the Council of Europe. The Council of Europe is nothing to do with the EU. It is the foremost human rights organisation in our continent, with 47 countries until Friday, when we ejected Russia, so we are now down to 46.
Although I am independent, and I am not a politician, to function there you have to be part of a political grouping, so I sit with what happens to be the political grouping of the Government of the United Kingdom of today: the Conservative Party. The political grouping it is in is called the European Conservatives Group and Democratic Alliance. The group that we—all the Conservative MPs and Peers and I—sit in when we are in Strasbourg contains some of the political parties that the noble Lord, Lord Horam, referred to by name, saying we did not want to go that way.
In Strasbourg, the Conservative Party sits with the AfD, the laughingly named Sweden Democrats, who are effectively neo-fascists, and, from my wife’s native Italy, the Fratelli d’Italia, who are the direct descents of Mussolini, and the Lega Nord, led by the wonderful Mr Salvini, usually seen on the beach. These are not good bedfellows. Some of the comments that I hear from politicians, particularly from another place but also from some members of the Cabinet, are remarkably similar to some of the views I hear in the meeting room in Strasbourg when some of these individuals are speaking—views which most of us would find pretty horrendous but one steels oneself to listen to because, I suspect, they are probably reflecting pretty accurately the views of the people who voted them into office.
I will briefly refer to being in office. My great-grandfather, who was Prime Minister three times, said, “You are not elected into power; you are elected into office. You are elected into office as much to represent those who didn’t vote for you, or who didn’t vote at all, as those who did vote for you”. What we are hearing is a sort of “I’m all right, Jack” view of the world.
My wife’s native country of Italy is a contiguous country, in the way referred to by my noble friend Lord Kerr. Italy’s citizens did not want or vote for a large migration from north Africa to come. They may not like it, but they have accepted it; they really do not have any choice. Part of the reason that they are having a lot of problems and they are quite cross with countries such as ours is that we have completely and utterly refused, as have most other EU countries, to share the burden equally. The noble Lord, Lord Coaker, and I have been to Jordan, another contiguous country. We went to Zaatari, the largest refugee camp for Syrians, in northern Jordan, where some 80,000 men, women and many children are huddled in reasonable conditions, thanks to the UNHCR. In Lebanon and Turkey no citizen voted for this, but that is what they have ended up with. We are a very long way from being contiguous but we are behaving in a way which, frankly, I find shameful.
The great-grandfather I referred to earlier was involved in raising the equivalent of about £34 million in 1939 after the Kristallnacht in Germany, which enabled a great many Kindertransport children to come to this country—that is what the money was used for. He would be ashamed by what is going on in this Chamber tonight.
Lord Green of Deddington (CB)
My Lords, I will just say a word in support of what the noble Lord, Lord Horam, said, about public opinion. We have to be careful here. A substantial slice of public opinion is concerned about the scale and nature of the inflow of people claiming to be refugees, and the shambles in the channel at the moment is no help. We need to bear that in mind in all our discussions. I do not think that the policy itself will work, and I do not think that the division into this or the other class of refugee will help. But let us not, for goodness’ sake, get carried away by our own righteousness and forget that there are a lot of people in this country who are not in situations as comfortable as ours who look to us to make sure that, in so far as there is an input of refugees, they are genuine.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I would not want that to be quite the last word. The speech made by my noble friend Lord Kerr was not merely powerful, it was compelling and irrefutable. As a matter of law, I have spoken on this before in Committee. I am not going to repeat all that, but do we really believe that the inhabitants of Blackpool, Doncaster or the deprived towns spoken of by the noble Lord, Lord Horam, and reflected in the contribution of my noble friend Lord Green, are so much less understanding, less sympathetic or less kind than the Poles, who are welcoming these vast hordes of people? We are not going to be asked to take that sort of number.
It is a dismaying thought that we really believe that our fellow countrymen, at this crisis in world events, would turn their backs, which is, in effect, what is being suggested. Are we really going to condemn, as Clause 11 is designed to do, rafts of asylum seekers—genuine refugees—to the loneliness, isolation, desperation, destitution and failure to be able to bring their families that it is suggested we now must to stop people crossing the channel, or to appease those in our deprived areas who do not want vast numbers of more refugees? I fervently suggest not. I would have hoped that, in this ghastly moment of history, the Minister would say, “This is not a moment to promote a Bill like this. We must withdraw it and think again”. No doubt, that is above his pay grade: indeed, considering that he is unpaid, that is not a very high bar. However, I really urge those responsible for this grotesque piece of legislation not to try to persist in it at this juncture.
Lord Paddick (LD)
My Lords, if those seeking asylum in the UK are genuine seekers of sanctuary from war and persecution, they are entitled to all the rights afforded to refugees under the refugee convention. Even if they are eventually found not to be genuine refugees, they are entitled to have their claim considered and their welfare safeguarded while it is being considered. A number of noble Lords have talked about public opinion. In answer to the noble Lord, Lord Horam, who appears to think that this is all about people crossing the channel, Clause 11 would make Ukrainian refugees who made it to Poland and then flew to the UK second-class refugees. If—I say “if”; I am not saying that this is the case—there is concern in public opinion, it is a concern about immigration, not a concern about refugees.
This is a very generous nation. If you speak to people in the towns and cities that the noble Lord, Lord Horam, has mentioned, the vast majority will say, “Of course we want to help those people fleeing the war in Ukraine”. They are concerned about being overwhelmed by immigrants, but only 6% of immigration in recent years has been by asylum seekers. That is why Clause 11 is not right and not necessary. Once asylum seekers have presented themselves and their claim in the UK, they are entitled to have their claim considered without fear or favour, regardless of where they came from and how they got here. They should not be treated differently on that basis. We should take Clause 11 out of the Bill and, when the noble Lord, Lord Kerr, tests the opinion of the House, we will be voting with him.
Lord Sharpe of Epsom (Con)
With the greatest respect to the noble Lord, under the rules of Report stage, one is allowed to speak only once during the debate.
Lord Rosser (Lab)
My Lords, as has been said, Clause 11 is about differential treatment of recognised refugees. There is the distinction that the noble Lord, Lord Paddick, referred to between refugees and immigration generally. We believe that Clause 11 contravenes the 1951 refugee convention: it sets a dangerous precedent by creating a two-tier system—group 1 refugees and group 2 refugees—and, frankly, it is also inhumane.
Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim, contrary to the 1951 refugee convention, of which Britain was a founding member. The different ways those two groups could be treated is not limited in any way by the Bill, although Clause 11 provides examples: those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who spoke to these amendments. At the outset, I will dispel one widespread misapprehension about this clause. Under Clause 11, those who meet the terms of the refugee convention will be granted refugee status. There is no question of this clause making it harder to be a refugee or otherwise enabling the Government to refuse refugee protection to those who need it. That is simply not true. What the clause does is enable the Secretary of State to distinguish between refugees based on whether they came directly and claimed without delay, but anyone considered under this policy will be a refugee.
The status of Clause 11, as a deterrent, is closely tied to secondary movements and the first safe country principle. In Committee it was claimed that, for a number of reasons, the UK must allow people to choose to come here from other safe countries to claim asylum, if they wish. This is not sustainable. It has also been posited that requiring refugees to claim asylum in the first safe country would undermine the global humanitarian and co-operative principles on which the refugee system is founded. I categorically reject this. In fact, it would strengthen them, because more countries would have the capacity for resettlement via safe and legal routes. Quite simply, if spontaneous intake falls, our ability to bring over refugees from regions of origin increases.
I will also reiterate at this stage that the first safe country principle is itself internationally recognised. Not only does it underpin the Common European Asylum System but there is a long-standing safe third country agreement between the USA and Canada which means that, barring certain exceptions, anyone arriving at the Canadian border is ineligible to make a claim. As my noble friend Lord Horam might have mentioned, Norwegian legislation similarly sets out that an application for asylum may be refused where a person has travelled to Norway after having stayed in a place where they did not face persecution. Australia—much mentioned this evening—also has those statutory powers to designate countries as safe, with the effect that anyone from that place will be barred from claiming asylum. In Australia, they have almost entirely stopped small boat crossings.
The evidence on which such policies are based is not only the fact that certain safe countries are clearly more popular than others as a destination for asylum seekers but comes from academic analysis. To be clear, I am going to talk about the reasons for secondary movements from one safe country to another, not why people leave their countries of origin in the first place. The two are clearly not the same. Secondary movements were assessed in a comprehensive analysis by Takle and Seeberg in 2015. An important part of their conclusion was that “future possibilities” play a crucial role in explaining secondary movements:
“For the individual migrant, it makes sense to ask: ‘If I make it through the waiting period and if I gain protection in this country—will I have the means to survive here? Will I be able to work, to find adequate housing, to fulfil my family obligations, to complete my education, to find friends, to belong: will I have a life? If not, where might I be better able to build myself a new life?’”
These are entirely sensible and understandable things to ask oneself. However, every last one of those things can be found in France and other safe countries without the need for a dangerous journey to the UK.
Another study concerning secondary movements of Eritreans between Italy and Norway by Brekke and Brochmann in 2014 noted the following:
“National differences in the quality of the reception system, in welfare policies, and in labour market opportunities motivated the secondary migration of asylum seekers and refugees in Italy.”
They also observed:
“The UK, Norway, and Sweden stood out as attractive destinations for the Eritreans. One informant stated: ‘There you get everything if you are accepted: housing, pocket money, education and work.’”
Again, this is totally understandable. The notion, as I have heard repeated in this House, that people are motivated by singular and discrete “pull factors” unrelated to economic considerations is therefore reductive and misleading. In fact, commonly cited pulls, such as language, family, and diaspora links, are not only intrinsically valuable but instrumentally valuable to improving future possibilities, including work and education. I repeat: France offers perfectly good future possibilities. There is no need to take a dangerous journey across the channel to improve future possibilities. We must do everything within our powers to stop this, including putting Clause 11 into law.
Briefly, the “without delay” element of Clause 11 is intended simply to deter other unwanted behaviours that we see in the asylum system. This includes making late claims without reasonable excuse, often in response to a negative immigration decision to delay removal. This is intended primarily to improve operational efficiency, enabling us to focus resources on those most in need and to carry out quick and cost-effective returns of those who have no right to be in the UK.
Distinguishing between different refugees forms part of the refugee convention itself. For example, the entire structure of entitlement under the refugee convention rests on different levels of attachment, with physical presence and lawful presence distinguished for the purposes of various entitlements. Article 31 does not contain a blanket prohibition on the imposition of penalties on refugees who enter or are present illegally. Article 31 prohibits penalties only in respect of refugees who either are coming directly from a territory where their life or freedom was threatened or present themselves without delay to the authorities, and who show good cause for their illegal entry or presence.
We think that differentiation is not a penalty, taking into account that the convention does not explicitly define “penalty” and the fact that there is no unanimity on the definition of penalty. In any event, the convention does not prohibit differentiation and the clear implication of Article 31 is that states are entitled to impose penalties on refugees who enter their territory illegally when the three conditions are not satisfied. I have already spoken at length about the broad and flexible nature of the powers under Clause 11, which I have consistently argued enable the Secretary of State to exercise sensitive and compassionate discretion in each and every case.
The right reverend Prelate the Bishop of Durham stated that nobody would be in group 1. That is not true. Those who could not be reasonably expected to claim in another safe country may well be in group 1 if, for example, they were trafficked. This goes to my noble friend Lady Stowell’s point: despite a number of misleading media and NGO reports, there is a vanishingly low risk that anyone who has, for example, suffered sexual or gender-based violence, is coming to terms with their sexuality or is the victim of trafficking will face differentiated entitlements.
Our definitions of concepts such as “come directly” and “without delay” are drafted in a manner that is responsive to those who may have legitimate reasons for being unable to comply with the standards set out and, as per my noble friend’s amendments, as drafted already enable us to use reasonable discretion when considering imposition of differentiated entitlements—again, a point that my noble friend Lady Stowell made. Indeed, there is no obligation to impose any particular condition on group 2 refugees. There is ample room for people to show that they could not reasonably have been expected to claim asylum in another safe country or that they could not claim as soon as reasonably practicable.
Group 2 refugees will still be protected and receive relevant entitlements in accordance with the refugee convention so that the object and purpose of the convention are upheld. Accordingly, Clause 11 is considered a good faith, compatible interpretation of the refugee convention.
My noble friend Lady McIntosh of Pickering lamented the diminution of safe and legal routes. We have not diminished such routes; I have set them out and distributed them to noble Lords. Some of those routes are not capped—for example, the BNO and refugee family reunion routes. On that note, my right honourable friend the Home Secretary stated today the ability of Ukrainians to come fee-free via the family reunion route. Potentially 100,000 Ukrainian refugees will come here, and we will be very glad to see them. On the point about visa waivers, I think it is very important that we continue to have the simple security checks that my right honourable friend talks about, because there is evidence that people who would do us harm are masquerading as Ukrainian refugees.
Just to finish, I have a point on Jordan, which I think the noble Lord, Lord Russell of Liverpool, mentioned. The standards of housing, recourse to public funds, education and healthcare in Jordan are not comparable with the UK. I shall say no more about that, but it is a difficult one to compare the UK with Jordan in terms of the infrastructure and facilities for Jordanians.
I think that every concern from noble Lords thus far has been met with a very clear and reassuring answer. This clause strikes a robust balance between firmness and fairness, with a firm policy response to the evidential picture about secondary movements and upholding the first safe country principle, but fair in its acknowledgement that we absolutely must be sensitive to the vulnerabilities of certain asylum seekers. I hope that, on that note, noble Lords do not press their amendments.
Baroness McIntosh of Pickering (Con)
My Lords, obviously I am disappointed that my Amendments 25, 26 and 27 have not found favour with the Minister or the House. My noble and very good friend Lord Horam said that he hoped that France and Belgium would take some of the asylum seekers and refugees back. That would indeed have been the case if we had managed to negotiate that we stayed within the Dublin III convention—so that is another source of disappointment.
My right honourable friend the Prime Minister stated yesterday in a very holy place that the UK would be very generous with Ukrainian refugees, but I regret to say that I do not hear how that is going to be applied in what I heard from the Front Bench this evening. However, I shall not press my amendments, because I believe that Amendment 28 carries more favour, so I beg leave to withdraw.
Lord Kerr of Kinlochard
Lord Kerr of Kinlochard (CB)
My Lords, there are two ways in which to break a treaty, and I think that, looking back on it, I rather preferred the Brandon Lewis way—the straightforward, “Yes, we’re breaking a treaty, in a specific and limited way.” This rather weaselly approach, whereby the Government say, “Oh well, we’re perfectly entitled to interpret the treaty as we choose, and no, as a matter of fact we’re not in breach of it”, seems to me unconvincing and undesirable, and rather bad for our international reputation and for refugees.
I have not heard an answer to the key point, which is that, if I were coming from Ukraine, I could not be a group 1 refugee because I cannot come directly. The clause says that the requirement of being a group 1 refugee is that you have come to the United Kingdom directly from the country or territory where your life or freedom were threatened. So nobody from Ukraine can be entitled to full refugee convention rights in this country, if this becomes the law. I do not think that is right, so I think I have to test the opinion of the House.