Nationality and Borders Bill

Lord Alton of Liverpool Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

To conclude on this group, I repeat, because it is so important, that I cannot believe a Conservative Government would drive a coach and horses through the principles on which one of the flagship policies of their tenure in office—however long that lasts—was based, which is globally recognised and seen as a torchbearer, and all in the name of an uncontrolled increase in the numbers being referred to the NRM of people who are using it as an excuse to circumvent the Immigration Rules. The Government should sort that out, rather than undermining their Modern Slavery Act.

[Lord Alton of Liverpool (CB)]

My Lords, I refer to my interests in the register as a trustee of the Arise Foundation, a charity that works for victims of modern slavery and against human trafficking. It is a great pleasure to follow the noble Lord, Lord Coaker, and to endorse everything he said about this group of amendments. As he said, in my name are Amendments 67 and 68, and I have signed Amendment 70, in the name of the noble Lord, Lord McColl. I should say at the outset that my noble friend Lady Prashar is unwell, and we all wish her a speedy recovery to her usual place. I thank the right reverend Prelate the Bishop of St Albans for also being a signatory to these amendments.

Before I turn specifically to the amendments, I endorse what the noble Lord, Lord Coaker, said in congratulating the noble Baroness, Lady Williams, on her elevation to the Privy Council; the whole House would agree with him. Also, what an extraordinary backdrop to today’s debate and to this Bill it was for us all to have been privileged to sit in the Gallery and listen to President Zelensky. The UNHCR suggests that as many as 3 million people will be displaced and become refugees, joining the 82 million people who are displaced or are refugees worldwide at this time. What a backdrop to our consideration of how we can deal with people in a civilised and humane way, but also our consideration of the fundamental and root causes of this massive displacement of people, which we so regularly fail to address.

The points made so well by the noble Lord, Lord Coaker, about the national referral mechanism and the way we treat children are especially close to my heart. Without wishing to repeat either the points I made in Committee or anything said by the noble Lord, I will try to summarise the arguments relatively briefly.

The NRM is a vital mechanism for the recovery and safety of survivors of modern slavery. Since its introduction, with the work of successive Governments, including the introduction of the vitally important Modern Slavery Act by a past Conservative Government, as we have heard—described by the noble Lord as “flagship” policy—the UK has become a global leader in countering the evils of trafficking and modern slavery. It will be a lasting legacy to the right honourable Theresa May, who pioneered this when she was Home Secretary, with support from all quarters: it was bipartisan and bicameral legislation.

Many of us sitting on these Benches participated in those proceedings and helped to improve that legislation, which was not driven through in a pell-mell rush but given proper consideration with pre-legislative scrutiny at every stage. People were engaged and involved in these sensitive and complex issues. That contrasts somewhat with the speed with which we are driving forward quite a lot of legislation at the moment. It reminds me of the old saying: legislate at speed and repent at leisure. I feel that we may well end up doing that.

The NRM, like so many things, is not perfect, but I, along with many across the House, I am sure, would draw parallels between the NRM and the succour it offers to vulnerable people and the campaigns in another age, of people such as William Wilberforce. Both are drawn from a strength of will and compassion that makes our country unique, and we should not squander that. Although I do not believe that any of us here today would wish to diminish the achievements of all those who sat here in both Houses and strived to support some of the most vulnerable, we have to look at the practical application of what it is that we are being invited to do. Clause 59 will do that—it will diminish what we have set our hands to. With this clause, we would close the door for many to the safety of the NRM. The clause will, in effect, raise the bar that these people must meet to obtain a positive reasonable grounds decision and the safety and support of the national referral mechanism, leaving them with a stark choice between returning to their chains or etching out some half-existence.

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Tabled by

[Lord Alton of Liverpool]

67: Clause 59, page 63, line 1, at end insert—
“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”Member’s explanatory statement
This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland.

[Lord Alton of Liverpool (CB)]

My Lords, I am grateful to the Minister for the assurance that he gave, and it is my decision now not to move this amendment.

Amendment 67 not moved.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an odd group because it contains two important issues almost at opposite ends of the spectrum. On the one hand we have low-paid, migrant domestic workers with very little in the way of rights and at risk of exploitation because of their precarious visa status and at risk of destitution and deportation if they cease to work for their specific employer. On the other hand, we have this visa category designed for the super-rich. It is part of a global order where being rich entitles you to buy politicians, avoid taxes and be exempted from the normal visa rules that bind the rest of humanity. It is almost poetic for these contrasting issues to be joined together in the same debate.

I had a dream last night that we had a snap general election which would have meant that this Bill, along with the police Bill and others, would have fallen. I woke up very happy. However, the consequence of both these issues is the same. It is exploitation. The migrant domestic worker visa almost guarantees exploitation of the workers by the super-rich and the tier 1 investment visas almost guarantee exploitation by the super-rich. Suddenly, the Government care about oligarchs abusing the very rules that the Government put in place to help oligarchs gain access to our country. It should not have taken an illegal war for the Government to pay attention to these very obvious consequences.

There is an inevitable immorality to becoming super-rich, whether the wealth was acquired through underpaying workers, misappropriating assets during the dissolution of Soviet Russia or the theft of resources from developing countries. It is very hard to become super-rich with a clean conscience. It was obviously wrong to establish a golden visa system for the super-rich. It corrupted the immigration system and gave special rights to the global elite. The Government should never have done this and should end it completely.

I will vote for both these amendments. Could the Minister make my dream come true and accept all these amendments so that at least we have a Bill that we can possibly swallow?

[Lord Alton of Liverpool (CB)]

My Lords, I join other noble Lords in supporting the right reverend Prelate the Bishop of Bristol in moving Amendment 70A. Like the noble Baroness, Lady Lister, I had the opportunity of meeting some of the people from Kalayaan in Palace Yard earlier today. It reminded me of the meeting I had with the group in 2015 when we were discussing the modern slavery legislation and the immigration Bill. With my noble friend Lord Hylton, whom my noble friend Lord Sandwich referred to earlier, we moved amendments at this time. I went back and took the trouble to have a look at what was said during the course of that debate. Indeed, everything that the right reverend Prelate said in her prescient and eloquent remarks was contained both in the amendment before the House tonight and in the amendments that were moved in the legislation that we divided the House on back in 2015 and 2016.

My noble friend Lord Kerr got it absolutely right, as often he does, when he said that this is about bringing the position back to the pre-2012 status. The noble Baroness, Lady Lister, referred to the request of Kalayaan that that should be one of issues on the table during the discussions that will be held, I presume with the noble Lord, Lord Sharpe, when they meet tomorrow at the Home Office. Like the noble Baroness, I would be grateful if we could have a bit more elucidation about what is going to be on the agenda for that discussion. Given that there is going to be new legislation not that far up the track, it would be wonderful if we could be assured that this will be on the agenda for proper consideration then and that what the right reverend Prelate has said to us tonight will be one of the things that will be considered.

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Moved by

[Lord Alton of Liverpool]

76: After Clause 78, insert the following new Clause—
“British National (Overseas) visas: eligibility
(1) Within two months of this Act being passed, the Secretary of State must amend the immigration rules to ensure that all persons meeting all the conditions set out in subsection (2) are eligible to apply for the British National (Overseas) visa. (2) The conditions in this subsection are that—(a) the person has at least one parent who is a British national (overseas),(b) the person was born on or after 1 July 1997,(c) the person is aged 18 or over on the date of application, and(d) the person is—(i) if applying to enter the United Kingdom, ordinarily resident in Hong Kong, or(ii) if applying for permission to remain, ordinarily resident in the United Kingdom, the Bailiwick of Guernsey, the Bailiwick of Jersey, the Isle of Man or Hong Kong.”

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to introduce Amendment 76, whose equivalent was moved in Committee but had its inception in the House of Commons. The amendment stands in my name and those of the noble Lord, Lord Patten of Barnes, the right reverend Prelate the Bishop of St Albans and the noble and learned Lord, Lord Falconer of Thoroton, so it is an all-party amendment. It affects BNO eligibility for visas for young people; that is, those who were born after 1997, whose parents qualify but they themselves do not. This was in many respects an omission from the original scheme. I declare my interests as a patron of Hong Kong Watch and as vice-chair of the All-Party Parliamentary Group on Hong Kong.

The original plan was launched on 31 January as a bespoke immigration route for BNO status holders and their family members. It was something that we could all welcome, reflecting our moral and historic commitment; and, indeed, it has been a great success, with over 100,000 applications made to date. However, some 18 to 24 year-olds were unable to access this route. as your Lordships know, this amendment would enable individuals born on or after 1 July 1997 who have at least one BNO parent to apply to the route. As I said, the amendment had its genesis in the House of Commons. I pay particular tribute to the right honourable Damian Green for the work that he put into it, but also to the support of Lady May and other notable members of the Conservative Party, as well as the support of the Commons from all Benches on all sides, so this is bipartisan, and bicameral as well.

I pay a special tribute to and thank the noble Baroness, Lady Williams, who has already been congratulated quite a lot today on her notable elevation to the Privy Council—perhaps because of what she did on this amendment. She and her noble friend Lord Sharpe have engaged very much with those who have signed this amendment. He has significant experience in Hong Kong, so this was close to his heart.

The noble Lord, Lord Patten of Barnes, made a very memorable speech in Committee, which was followed by many people in Hong Kong, let alone in this country, and it says an awful lot that someone who has held such high office in the past is willing to commit so strongly to this, to show that his affection and commitment to the people of Hong Kong remain completely unchanged. Like me, he continues to be concerned about those who will not qualify for this scheme, but that is not the point of the amendment. It is something that others must step up to the plate to do something about, but I hope especially that those living in other Commonwealth countries can follow the example that the British Government have set in issuing a Written Statement which was the upshot of conversations that we had in Committee; the Government

“intend to lay the changes to the Immigration Rules in September with the changes expected to go live in October”.

The Written Statement also details the welcome programme led by the Department for Levelling Up, Housing and Communities. Its tone and what it says at the end I particularly welcome:

“We look forward to welcoming applications from those individuals who wish to make the UK their home”.


The Government have taken a positive approach. They have engaged constructively, and this decision is worthy of this country and its special relationship with Hong Kong. It will allow young Hong Kongers who were not eligible for a BNO visa to avoid languishing in the asylum system, unable to work or study. This change of policy will allow these young people to settle more quickly and enrich British society.

I do not need to say very much more, other than to comment on one development in Hong Kong this week which underlines why life has become so difficult for people such as Joshua Wong, Nathan Law and others to whom we referred in Committee. Paul Harris, the former chair of the Hong Kong Bar Association and a veteran human rights barrister, and a man of great standing, has had to leave Hong Kong after police questioned him. It marks another dark day for human rights and the rule of law in Hong Kong. His steadfast defence of Hong Kong’s beleaguered democracy and his opposition to the draconian national security law provoked the ire of the Chinese Communist Party and made him a marked man. For those young people who joined many of the protests and demonstrations, this scheme will literally be a lifeline. I hope that we will then use our standing to convince other countries to follow our example and do the same by extending these lifeboat provisions to enable settlement—other Commonwealth countries especially, such as Australia, New Zealand and Canada, which already have significant communities of people drawn from Hong Kong.

I hope that I have been relatively brief, since the House has a lot of other business to accomplish. I beg to move Amendment 76.

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[Lord Sharpe of Epsom (Con)]

I thank noble Lords and pay particular tribute to the noble Lord, Lord Alton of Liverpool, who tirelessly campaigns on this and other issues. I thank him for his kind words, and I thank all noble Lords who have contributed to this short debate on Amendment 76.

We recognise that the BNO route is creating unfair outcomes for the families of BNO status holders, with some children able to access the route independently because they were old enough to be registered for BNO status, while their younger siblings, aged between 18 and 24, are unable to do so. That is why, on 24 February, the Government announced a change to the BNO route to enable individuals aged 18 or over who were born on or after 1 July 1997 and who have at least one BNO parent to apply to the route independently of their parents.

The policy change addresses the concerns raised by the noble Lord, Lord Alton, and other Members of both Houses. It will ensure that we are addressing potentially unfair outcomes for families of BNO status holders and ensure that the UK meets its ongoing commitment to BNO status holders.

In answer to the noble Baroness, Lady Bennett, I say that there are of course other routes for those who are not eligible under this particular scheme. We intend to lay the changes to the Immigration Rules in September, and they are expected to take effect from October.

In the light of these assurances, I ask the noble Lord to withdraw the amendment.

[Lord Alton of Liverpool (CB)]

My Lords, in the light of what the Minister has been able to say to the House, and of the debate and the excellent contributions from all who have spoken—including my noble friend Lord Green, with whom I have a good friendship but often disagree—I think that young Hong Kongers who come to this country will enrich our lives. I have seen for myself, in my own city of Liverpool, the great contribution that Hong Kong people have made over many generations. I know that these will be patriotic and loyal citizens, who will care for this country and enliven our society.

I beg leave to withdraw the amendment, and I am grateful to all who have spoken in tonight’s debate.

Amendment 76 withdrawn.

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However, surely it ought to include service families as well because it is not only the service man or woman who is putting their life on the line and serving this country. Their families are also giving up a lot. Surely, the appropriate amount for anybody to pay when they seek to live here after their service personnel relative—mother, father or whatever family member—is only the cost of processing the application, just as we do with passports. A cost of thousands of pounds is not appropriate. Surely, the Home Office can find out how much it actually costs to process, and that should be the fee.

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to add my voice, albeit briefly, in support of both these amendments, particularly Amendment 78 in the name of my noble and gallant friend Lord Craig of Radley. Although his amendment is prescriptive in asking the Government to respond

“Within three months of the passing of this Act”,


I think he told the Minister that if an assurance can be given that, within a reasonable time of the Bill’s enactment, the Government will move on this issue, he would be happy not to divide the House. I agree with him about that and if that assurance can be given, it will surely meet the terms of his amendment.

We are not talking about large numbers—it not 5 million people—but people who have served the Crown. If anybody is vulnerable today as a result of the passing of the national security law in Hong Kong, it is surely people who have served the Crown. There is no question in my mind about the justice of what my noble and gallant friend is arguing for, but this is not the first time of asking; he has urged us to do something about this year in, year out—in good times and bad. I hope that the Government will take this opportunity to deliver in the Bill what my noble and gallant friend has asked for.

[Lord Green of Deddington (CB)]

My Lords, as a retired second lieutenant who served in Borneo alongside Gurkha regiments, I am very happy to support these proposals.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady McIntosh of Pickering, for tabling these amendments. I welcome her to the noble band of terriers who have been snapping at the Home Office’s heels on the issue whenever the occasion arose.

In Committee, the Minister, who to be fair is new to the issue, tried some of the old, discredited arguments. Notably, he referred to the

“sustainability of the system and fairness to the UK taxpayer.”

When challenged, he acknowledged that the system to which he referred was the migration and borders system. Once again the Home Office is conflating citizenship with immigration. We still await a convincing reason as to why children who were born or who have grown up in this country should be subsidising the migration and borders system. Moreover, the distinction between this group and taxpayers is simply not valid, as the children’s parents are already taxpayers and the children will be in future and may already be paying indirect taxes.

The Minister also tried to reassure us that there are a number of exceptions to application fees which protect the most vulnerable, including young people who are in the care of a local authority and applying for limited or indefinite leave to remain. However, the exceptions apply only to leave to remain, and when challenged he accepted the distinction between citizenship and leave to remain, saying:

“There is no arguing about that at all.”—[Official Report, 27/1/22; col. 469.]


When challenged again later, he assured me that he would not try the argument again today. Now that both he and the noble Baroness, Lady Williams of Trafford, have accepted that that argument will not wash in this House, and the importance of citizenship has been a thread running through the debates on the Bill, I hope he will not attempt to use the argument again this evening.

In Committee, the Minister also promised to write in response to a number of questions on the best interests review, for which we have been waiting, like Godot, for a good year since the Court of Appeal ruled that the current fee is unlawful because of the failure to take account of the best interests of children under Section 55 of the Borders, Citizenship and Immigration Act. I am grateful to him for the letter, although I found it a bit confusing. However, as the noble Baroness said, at least we now have the Supreme Court judgment, which did not dispute the best interests finding, and the Minister’s letter confirmed that the best interests Section 55 review will be published. My understanding is that it will be published by early May. Can he confirm that and say whether it will include a race and disability equality assessment? Can he also give an assurance that Parliament will be given an opportunity to debate the review report?

It is difficult to believe that a fee of over £1,000 is in the best interests of any child who has to pay it, given the evidence of the insecurity, alienation, exclusion and isolation it can cause, as noted by the Court of Appeal. The Supreme Court judgment found that, best interests aside, as the noble Baroness said, it is for political determination to limit the Home Secretary’s discretion in setting the fee level. The Bill gives us the opportunity to so determine politically.

Noble Lords have frequently cited the former Home Secretary Sajid Javid, who described the fee as “huge”. Less well known is that, just shortly before becoming the current Home Secretary, Priti Patel also questioned the level of the fee, according to a Times report, and indeed the Minister accepted that it is “a lot of money”. We have an opportunity this evening—or rather, this morning—to end the long-standing injustice created by this huge fee that has served to exclude thousands of children from their right to register as citizens. I hope we will take it.

[Lord Alton of Liverpool (CB)]

My Lords, I am very pleased to speak at this time of day in favour of this amendment, which was so ably moved by the noble Baroness, Lady McIntosh, and supported by the noble Baroness, Lady Lister. I have spoken at earlier stages, so I do not need to detain the House for very long this evening. I have spoken not just on earlier stages of the Bill but over the years about the injustice of this extraordinary sum of money being charged in citizenship fees, especially in the case of children, as we have just heard. Like the noble Baroness, Lady Lister, I was struck by Sajid Javid’s own remark about the huge cost of placing such a large amount of money on the right to become a British citizen—over £1,000.

I gave a witness statement to the High Court about what the intentions of the 1981 legislation actually were. I served in another place then and I spoke in the debates in the House of Commons at that time. The Government of the day—a Conservative Government—rightly wanted to ensure that every person in this country saw themselves as a British citizen and gave them routes to achieve that status. I think that the Home Secretary and the Prime Minister of the day would be horrified at the idea that we would try to make money out of this process and thereby exclude people who ought to become British citizens from being able to do so. I particularly draw the attention of the House to proposed new subsection (2)(c)(i), as inserted by Amendment 83, which deals with the costs of exercising the function.