Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

Committee stage & Lords Hansard - Part 1
Thursday 27th January 2022 Lords Chamber

[Lord Rosser (Lab)]

My Lords, we strongly welcome Clause 1 and, as the noble Baroness, Lady Hamwee, said, in a Bill where there is so little to welcome, the early clauses of Part 1 seek to redress historical injustices in our nationality law. That is certainly welcomed from these Benches, as well as by other noble Lords who have spoken.

Clause 1 corrects an historical injustice left over from what many would regard as the appalling situation in which mothers did not have the same citizenship rights as fathers. It addresses the citizenship rights of children of mothers who were British Overseas Territory citizens. I thank the noble Baroness, Lady Hamwee, for her amendments. We raised the clarity of drafting of the clause when the Bill was in the Commons. As the noble Baroness also explained, this concern was raised by the JCHR, which noted that the language in this clause is not the same as the language used for similar purposes in the 1981 Act and raised questions over how well the clause achieves its intention. The JCHR said:

“We recommend that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of clause 1.”


In the Commons, my colleagues pushed the Government to amend the clause so that its drafting reflects the drafting in the 1981 Act, when this discrimination was addressed for children of British citizens. I am sure that the Minister will appreciate that, in raising this concern, we are all trying to get this right and make the clause work as it should.

The Minister’s response in the Commons was that he did not believe that amendments were necessary, which is quite a standard government reply, and that the current drafting worked as intended. He also said that these points would be further clarified in underpinning guidance. Have the Government given this issue further thought since it was raised in the Commons? What objection do they have to a minor amendment to answer the JCHR’s concerns? If Ministers believe that that will be further clarified in guidance, should they not consider clarifying it in the Bill?

When we consider the good character requirement—I do not want to repeat everything that has been said—the JCHR is concerned that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Much of this debate is familiar. As has been said, over the past few years the JCHR has routinely raised concerns about the impact of the good character requirement in cases resolving previous discrimination and in cases concerning children. I simply ask: how does that square with our primary duty to act in the best interests of the child and how is that currently balanced with the good character test? Can the Minister provide details to the Committee on how many children each year are refused citizenship based on this requirement and on what grounds it is deemed that they do not meet the test?

I too welcome the questions raised by my noble friend Lord Dubs on behalf of the JCHR on the application of the good character requirement in Clause 3. I simply wish to make the point that we are debating this clause due to gaps left in the law where we attempt to redress historical discrimination. Where the JCHR is raising concerns that the good character requirement is inappropriate where an applicant has already had their rights denied for a significant number of years, the Government should consider that challenge seriously. If we are to remove existing injustices in our system, we should do so thoroughly and with great care, so that we do not find ourselves having to come back for further fixes at a future date.

I look forward to the noble Baroness the Minister’s reply on behalf of the Government—or perhaps it is the noble Lord; I am sorry.

[Lord Sharpe of Epsom (Con)]

I thank noble Lords, and I am sorry to disappoint the noble Lord, Lord Rosser..

I thank the noble Baroness, Lady Hamwee, for tabling Amendments 1 and 2. Both refer to Clause 1, which I am pleased to introduce, as it corrects a long-standing anomaly in British nationality law. I appreciate my noble friend’s attention to detail in seeking to make sure that this new provision is clear and in line with the parallel provision in the British Nationality Act 1981 for children of British citizen mothers. However, we do not think that an amendment is needed, as the proposed wording here achieves what is intended. In saying that this provision applies to someone who would have been a citizen had their parents been treated equally, we are talking about a situation where the law applied equally to mothers or fathers, women or men. We are satisfied that the current wording does what is required.

I turn now to Amendment 8 and consequential Amendments 10, 12, 17 and 21, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. British citizenship is a privilege, reserved for those who meet the requirements of the British Nationality Act 1981 and who respect the law and values of the UK. This is reflected by the statutory requirement for an individual to be of good character when they apply for British citizenship. Published guidance sets out the basis for how we assess whether a person is of good character and the types of conduct that must be taken into account as part of this assessment.

Decision-makers are required to give careful consideration to each application on a case-by-case basis, and must decide on the balance of probabilities whether an applicant is of good character. Grounds for refusal of citizenship on the basis of not meeting the good character test include criminality that meets the threshold laid out in guidance, immigration offending such as illegal entry or unlawful residence, and serious adverse behaviour such as war crimes, terrorism or genocide. Such behaviour is fundamentally in opposition to core British values of decency and adherence to the law. Removing the good character requirement from all registration routes for British citizenship would mean that we could no longer refuse citizenship to those opposed to these values.

I turn, finally, to Amendment 9, for which I thank the noble Lord, Lord Dubs; I know he has taken a great interest in a number of the provisions of the Bill. I start by reassuring the Committee that the Government are committed to removing discrimination from nationality legislation. That is the aim of Clauses 1 and 2. The Government also recognise the difficulties that current British nationality law has presented for some British Overseas Territories citizen parents who wish to pass on their citizenship. However, the Government do not agree that the application of the good character requirement as set out in Clause 3(4) results in unlawful discrimination. Removing the good character requirement for those applying to register as a British citizen having acquired British Overseas Territories citizenship through the new routes established by Clauses 1 and 2, as this amendment proposes, would be unfair and inconsistent with the approach for British Overseas Territories citizens who can apply to become British citizens by virtue of Section 3 of the British Overseas Territories Act 2002 and who are subject to the good character requirement.

The noble Baroness, Lady Hamwee, mentioned the word “misdemeanour” in connection with such matters. We need to be clear that the guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. Those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. Caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances. On the subject of children, we ought to remind ourselves that 10 years old is the age of criminal responsibility in England and Wales.

I want to clarify that the good character test applies only to new provisions introduced in the Bill to resolve historical discrimination where it already applies to the current route that the person would have been entitled to register under had the discrimination not existed. So the only people who will have to meet a good character requirement under Clause 3 are those who would have had an entitlement to registration as a British Overseas Territories citizen under Sections 15(3), 17(2) and 17(5) if their parents had been married, because registration under those routes carries a good character requirement.

To try to answer the question of the noble Lord, Lord Dubs, where people would have become British automatically had women and unmarried fathers been able to pass on citizenship at the time of their birth, the good character requirement does not apply.

The noble Lord, Lord Rosser, asked how many children this issue has affected. I am afraid that I do not know the answer and will have to write to him. I should say that if the person would have become British automatically had the discrimination not existed, they will not now have to meet the good character requirement. That deserves reiteration.

I ask noble Lords to withdraw or not move their amendments for the reasons that I have outlined.

[Baroness Ludford (LD)]

Can the noble Lord address the point that I made, which I think was in the JCHR report? The courts have said that there should be an overall assessment—a holistic approach—that looks at good character as well as bad. However, the noble Lord appeared to concentrate only on a bad record being a triggering factor. He used the phrase “balance of probabilities”, but did not say that something bad could be outweighed by an otherwise wholly good record. He did not appear to suggest or confirm that overall holistic approach. He concentrated only on the negative triggers, which is precisely a fear expressed in the JCHR report. It goes against what the courts have said should be the approach.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for her request for clarification. Guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. As I said earlier, those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. But—and this is the key point—caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances, which, I should imagine, would very much cover the circumstances that the noble Baroness has just described.

[Baroness Hamwee (LD)]

My Lords, there is clearly concern about good character. I echo my noble friend’s query; the point about a holistic assessment has not been answered. I appreciate that those briefing the noble Lord might not have anticipated the question, but the way in which a caseworker sets about the task is fundamental to this issue.

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[Lord Sharpe of Epsom (Con)]

I did not mean to imply that the noble Baroness was saying that. I apologise for intervening on the noble Baroness, but I want to clarify the caseworker point. To answer the question, they do look at cases in the whole.

[Baroness Hamwee (LD)]

Thank you. That is good to know.

I come back to the registration point that we are dealing with. The Minister made some distinction between different routes. I take that point. I am not capable of making these distinctions myself, on my feet, without a lot of papers spread around me.

Section 41A is about registration. I say to the noble Lord, Lord Dubs, that it must have come in after the Bill had been introduced in order for it to be numbered in this way.

I turn to my first two amendments—to replace “equally” with “in the same terms”. I repeat my point that having one concept expressed in different ways in the same Act is bound to cause confusion, if not trouble. This may be very boring and it does not go to the root of a lot of what we are debating, but it is potentially of great importance in practice. I hope that the government lawyers can look at it again—or perhaps all my legal training is out of date. I beg leave to withdraw Amendment 1.

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[Lord Rosser (Lab)]

My Lords, I express our support for the amendments in this group. The amendments in the name of the noble Baroness, Lady McIntosh of Pickering, raise a simple and crucial point. The intention of this part of the Bill, at least its early clauses, is to remove barriers for those who have been unjustly denied citizenship. To then present a barrier to that citizenship in the form of fees for accessing those withheld rights raises obvious problems. This is particularly, and one would hope undeniably, the case for those who would and should have been automatically granted citizenship if it were not for outdated injustices impacting their mother or the marital status of their father.

What has so far been missing from the Government is clarity on this issue. I understand that in Committee in the Commons, the Minister would not directly answer questions as to whether fees will be charged. I hope we may fare a little better today, with the noble Lord the Minister—if that is who responds—telling the House whether the Government intend to charge people to access these routes. Is the intention no fees, fee waivers in some cases, reduced fees from what we have now, or the continuation of existing fees? When and how will this be made clear? In the Commons, the Minister suggested that this was more appropriately dealt with in secondary legislation, but why should clarity not be provided in the Bill in relation to this key issue?

I express too our support for Amendment 13, in the name of my noble friend Lady Lister of Burtersett, with notable cross-party support from the right reverend Prelate the Bishop of Durham, the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Stroud. As has been said, to say that my noble friend Lady Lister of Burtersett has been tenacious on this issue would be the understatement of the year; she has been rather more than that.

The amendment tabled by my noble friend addresses a current fee policy that charges people who have the right to register for citizenship exorbitant amounts to do so. As has been said, the amendment does not ask the Government to scrap the fee for application; it simply requires the fee not to be higher than the actual cost of the registration process. As has been said, this means it could be fixed at a considerably lower level or there could be no fee at all.

In particular, I add our strong support for measures to reduce the cost for children to register their citizenship, which they have as much right to access as any Member of this House, and to remove the cost completely, certainly for children in our care. Although the Government have repeatedly resisted this change, it is not without Cabinet support, as has been said. After all, the Health Secretary has described the fees as

“a huge amount of money to ask children to pay”.

I repeat that these costs are levied against children who are born here, grew up here and go to school here but who, unlike their classmates, are not automatically British at birth. Surely it is the will of this Parliament and our nationality law that those children are entitled to citizenship after certain conditions are met. But, in reality, that right is being denied for at least some—probably many—because it is just too expensive for them to access. The Government have already been asked for information on the numbers who have been denied citizenship on the basis that the fees are too high. I am not sure whether we are going to get a response to that point.

There has been some discussion about the legal position. As has been said, in February last year the Court of Appeal, in referring to the best interests of the child, ruled that the child citizenship fee, at over £1,000, is unlawful. That had also been determined earlier by the High Court. A number of noble Lords commented that, instead of using the obvious vehicle of this Bill on citizenship to rectify the issue, the Government have argued—as I understand it—that they want to await a further ruling in the Supreme Court.

Finally, I admit my surprise that, in the Commons, the government Minister claimed that this issue of the cost of registering citizenship was

“not a matter for the Bill.”—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 165.]

This part of the Bill is about access to citizenship. I question how the Government can say that this issue, which has been raised many times across both Houses and with cross-party support, should not be regarded as a matter for this Bill. I hope we have a helpful response from the Government when they now reply.

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to the noble Baroness, Lady Lister of Burtersett, the right reverend Prelate the Bishop of Gloucester speaking on behalf of the right reverend Prelate the Bishop of Durham, and the noble Lord, Lord Alton of Liverpool, for tabling Amendment 13; and to my noble friend Lady McIntosh for tabling Amendments 3, 4, 5, 6, 7, 18 and 22 on fees charged for applications for British citizenship and British Overseas Territories citizenship. My noble friend the Minister would also like to place on record her thanks to the noble Lord, Lord Alton, and the noble Baroness, Lady Lister, for engaging with her on this subject in various meetings.

I first turn to the amendments put forward by my noble friend Lady McIntosh. You will be aware of the importance that application fees play in the funding of the migration and borders system, which has been noted in this debate, and that this income is vital to reduce the reliance on taxpayer funding and run a sustainable immigration system. Immigration and nationality fees are set in fees regulations, which are laid before Parliament and subject to the negative procedure. I hope that answers a number of noble Lords’ questions. If we were to remove or amend fees during the passage of the Bill, it would undermine the existing legal framework without proper consideration of the sustainability of the system and fairness to the UK taxpayer. Not only that, but it would create an alternative mechanism for controlling fees, which would reduce the clarity of the fee structure.

As the noble Lord, Lord Rosser, noted, I am of course aware that similar provisions were considered in the other place. We are sympathetic to the view that a fee should not be charged where a person missed out on becoming a British citizen due to historical anomalies.

In answer to the specific questions of the noble Lords, Lord Paddick and Lord Rosser, about those who cannot afford application fees, we have always provided for exceptions to the need to pay application fees for leave to remain in a number of specific circumstances. These exceptions ensure that the Home Office’s immigration and nationality fees structure complies with international obligations and wider government policy.

The subject of children in government or local authority care also came up. The Government do cater for children and their well-being. 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.

[Baroness Lister of Burtersett (Lab)]

Does the Minister accept that there is a difference between leave to remain and citizenship? We are talking about citizenship, and the courts were very clear about the importance of citizenship. Please do not rerun the argument that leave to remain is as good as citizenship, because it is not.

[Lord Sharpe of Epsom (Con)]

Of course I accept the distinction. There is no arguing about that at all.

The noble Baroness, Lady Chakrabarti, raised the point that the provisions in this Bill are about righting historical wrongs, and I assure the Committee that it remains our intention to continue to adopt the approach of not charging fees in instances where unfairness or injustice has occurred. But as I tried to outline above, this is not a matter for the Bill. As my noble friend Lord Horam noted, it should be remedied through secondary legislation in line with other changes to immigration and nationality fees, as far as applications for British citizenship are concerned. Administration of British Overseas Territories citizenship applications is a matter for the overseas territories. We have consulted with them about the new nationality provisions; that applies to all the amendments except Amendment 13.

[Baroness Hamwee (LD)]

I apologise to the noble Lord. On the previous point about regulations for fees, the amendment of the noble Baroness, Lady Lister, in fact anticipates regulations. It limits the amount of fees that can be paid, but does not seek to use primary legislation to set the specific fee.

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[Lord Sharpe of Epsom (Con)]

If we were to remove or amend fees during the passage of this Bill—I have said this before—it would undermine the existing legal framework, without proper consideration of the sustainability of the system.

[Lord Alton of Liverpool (CB)]

Will the Minister clarify what he just said? The existing legal framework has itself been undermined by a decision of the High Court. Is that not something we now need to rectify? From the expression on the Minister’s face, I think he is coming to that and I am grateful to him. To return to the point that has been repeatedly made about not specifying the amount of money in the Bill, this amendment does not do that. It seeks to create a context in which fees can be charged, in which the cost is no more than the administrative cost. The point the noble Lord made about taxpayers is dealt with in this amendment. I hope he will concede that and, when he does, will he confirm the remarks by the previous Home Secretary that what is being charged at the moment is

“a huge amount of money”?

Is that the view of the current Home Secretary, the right honourable Priti Patel?

[Lord Sharpe of Epsom (Con)]

My Lords, that it is a lot of money is not in dispute. I am coming to the part that deals with the various reviews and the High Court judgment, so I hope the noble Lord will bear with me for a second. I think this will address his other questions.

Amendment 13 was put forward by the noble Baroness, Lady Lister, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton of Liverpool. I note that this new clause is identical to one considered in the other place. That the noble Baroness has put it to this Committee to consider leaves us in no doubt about the strength of feeling on this matter, and this debate has reinforced that.

Proposed new subsection (2) would prevent the Secretary of State charging a fee to register as a British citizen or British Overseas Territories citizen if the child is being looked after by a local authority. I just mentioned that as well. The Government already have waivers in place, which I referred to, that will allow any child looked after by their local authority, irrespective of nationality, to apply for both limited and indefinite leave to remain, which I accept is not the same citizenship, without being required to pay application fees. This ensures that children in local authority care can access leave to remain, and the benefits of living, working and studying in the UK, without having to pay a fee.

[Baroness Lister of Burtersett (Lab)]

The noble Lord acknowledges that leave to remain is not the same as citizenship. When we last discussed this, the Minister, the noble Baroness, Lady Williams of Trafford, accepted that this is not an argument that this House will accept. Please do not keep putting that argument, because it does not wash here.

[Lord Sharpe of Epsom (Con)]

I assure the noble Baroness that I am not going to try it again today.

Proposed new subsection (4) would require the Secretary of State to take steps to raise awareness of rights under the British Nationality Act 1981 to be registered as a British citizen or British Overseas Territories citizen among people possessing those rights. The Government publish information about becoming a British citizen on GOV.UK and we are committed to ensuring that such information is fully accessible by all.

Going on to the Supreme Court, pretty much every speaker has alluded to the fact that child citizenship fees have been the subject of a legal challenge brought forward by the Project for the Registration of Children as British Citizens, and that this litigation has not yet concluded. We await the final judgment of the Supreme Court hearing, which took place on 23 and 24 June 2021, so that we can take proper account of the Supreme Court’s views. I believe that judgment is due next week, to confirm what I think has also been said here. In the meantime, the Home Office will continue to charge the fees set out in the Immigration and Nationality (Fees) Regulations 2018.

[Baroness Lister of Burtersett (Lab)]

I am very sorry to interrupt yet again, but I pointed out that the appeal that has gone to the Supreme Court is a completely separate legal point from the one that requires the Home Office to carry out a best interests review. Why do the Government keep putting this argument when it has been over a year since the judgment? Why can they not produce the best interests review now? It has nothing to do with the appeal to the Supreme Court.

[Lord Sharpe of Epsom (Con)]

I was just coming to that.

The Government are currently carrying out a Section 55 assessment, in tandem with the best interests review, in relation to the child registration fees. I cannot predict the outcome of that assessment, but that does not necessarily mean that the fees will change. I cannot give the noble Baroness the assurance she seeks on when it will be published, but the reviews are ongoing.

[Baroness Lister of Burtersett (Lab)]

Who is carrying out this review?

[Lord Sharpe of Epsom (Con)]

I cannot answer that, I am sorry. I will write on that.

[Lord Alton of Liverpool (CB)]

I promise not to intervene again, but before the noble Lord leaves this point, is he not inviting the Committee to be like Don Quixote and to tilt at imaginary windmills? As the noble Baroness, Lady Lister, pointed out, this is not the substance of the continuing action in the Supreme Court. The question of the cost of the fees was dealt with by the High Court. The Home Office lost. Surely that is the issue that should be laid to rest in these proceedings.

[Lord Sharpe of Epsom (Con)]

With the greatest respect to the noble Lord, they are all part of the same debate. As I said, I cannot pre-empt the Supreme Court’s decision or the outcome of the ongoing review, for which I obviously apologise. I would like to give him the answer he seeks, but I cannot.

[Lord Deben (Con)]

When the court has said that this is illegal, why do the Government not accept what the court has said? Or are the Government setting themselves up against the court and deciding that it is not illegal? If it is illegal, it should be changed at once.

[Lord Sharpe of Epsom (Con)]

Again, with respect to the noble Lord, we are awaiting the further judgment.

[Baroness Lister of Burtersett (Lab)]

I am sorry, but the lawyers behind this are very clear that these are completely separate legal points. The people who appealed the Court of Appeal’s judgment were not appealing in relation to the best interests of the child. The Government accepted the best interests of the child judgment a year ago. Why do we still not have the best interests review? As the noble Lord, Lord Deben, said, surely the Government should have acted immediately once they accepted that it was unlawful to charge this fee without taking account of the best interests of the child.

[Lord Sharpe of Epsom (Con)]

As I said, I do not have the answer to why it has taken a year, but I will write to the noble Baroness and all noble Lords who have expressed an interest in this subject to try to explain.

Having said all that, I hope you understand that I cannot comment on the Supreme Court’s judgment. We remain of the view that it is the right course of action to wait until the judgment—I am sorry to labour the point. Accordingly, for the reasons I have given, I invite noble Lords not to press their amendments.

[Lord Paddick (LD)]

My Lords, first, we do not address each other as “you”. I know that the Minister is new to the House, but we do not use that term.

Secondly, there is a difference between an on/off decision about whether to charge a fee, as suggested by the Baroness in her amendments, and interfering with the current system, where the fee level is set by regulations. They are two different issues.

Thirdly, the noble Lord kept talking about interfering with the existing legislative framework. That is our job. We interfere with the existing legislative process by passing legislation. That is a nonsense argument.

Finally, the noble Lord talked about fees being waived in exceptional circumstances. People do not apply to register their right to British citizenship and then, when they take a look at what the fees are, say, “There’s absolutely no way that we can go ahead with this. We’re not even going to apply.” The fee being waived in exceptional circumstances does not even arise. Does the noble Lord not accept that?

[Baroness Lister of Burtersett (Lab)]

The noble Lord said something about how the system relies on these fees. Could he clarify what he means? I hope he does not mean the immigration system, which is often referred to, because we are not talking about immigration here. Many of these children were born in this country.

[Lord Sharpe of Epsom (Con)]

I apologise for my inadvertent use of the word “you”. I feel suitably admonished. My apologies. To answer that question, it is the migration and borders system.