British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021

Lord Paddick Excerpts

Monday 7th June 2021 Grand Committee

[Lord Paddick (LD) [V]]

My Lords, I again thank the Minister for explaining these regulations. As she explained, the draft British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 seek to prevent children born after 30 June 2021 failing to acquire British citizenship as a result of their parents not having EU settled status at the time of their birth. As my noble friend has just said, it covers only late applications made or resolved at the end of the grace period on 30 June 2021. Although it is welcome, it raises a series of issues. British citizenship is granted on the date when settled status is granted.

I commend my noble friend Lady Ludford on her excellent questions to the Minister. As a consequence, I can be brief. First, can the Minister explain why British citizenship is not being backdated to the date of birth? If the parent was entitled to remain in the UK indefinitely when the baby was born, albeit that by reason of late processing or late application settled status was not granted until after the end of the grace period, surely the baby is entitled to British citizenship from birth. Secondly, how can a child born in the UK to a parent entitled to remain in the UK indefinitely be denied British citizenship because its parent did not fill in the right forms? The resonance with the Windrush generation, as my noble friend has just alluded to, is deafening.

Surely if the Government can amend the British Nationality Act 1981 by means of this statutory instrument to deal with a baby born in the UK to parents who do not at the time of birth have formal legal indefinite leave to remain but are subsequently granted EU settled status, they could amend the Act so that a baby born in the UK in such circumstances could be granted British citizenship from birth. The point I am trying to make is this: a differentiation is being made on the basis of an administrative process—the application for and granting of EU settled status—rather than on the right of the parent to remain in the UK as a result of living and working in the UK before 31 December 2020, for example. I understand that the Government’s position may be that EU citizens who do not apply for settled status before the end of the grace period without a reasonable excuse are not legally entitled to indefinite leave to remain, but that is a restriction that the Government have put in place.

In the case of the Windrush generation, the Government have quite rightly accepted that those who have lived and worked in this country for decades but who were undocumented because they did not apply for British citizenship or a UK passport were treated wrongly, and they are compensating—too slowly, and inadequately—those who were wronged. The Government have accepted that these people were entitled to indefinite leave to remain, despite the fact that they did not apply for proof of their entitlement. Why are the Government repeating the same mistake with EU citizens?

I am sure that this statutory instrument is meant to be a positive step, but for me it raises more fundamental questions. It demonstrates clearly what the Government can do if they so wish—and what they wish to do is to penalise EU citizens in a similar way to which they penalised those from the Windrush generation, not because they do not have every right to indefinite leave to remain in the UK but because they did not apply for it. We support this SI as far as it goes, but it does not go far enough.