Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

The consequences of getting this wrong are severe. Recent media reports have highlighted hundreds of children being placed in hotels and forced to share rooms and even beds with adult men they do not know—and this is children we are talking about. Between July and September last year, the Refugee Council assisted more than 150 young people into local authority care who previously had been sent to adult accommodation following a decision by an immigration officer. This is a disgrace. We can do better than this, and we must do so, and this amendment attempts to do just that.

[Baroness Lister of Burtersett (Lab)]

My Lords, I speak in support of Amendment 64A, to which I have added my name. The noble Baroness, Lady Neuberger, has made the case powerfully for the amendment, which aims to introduce protections designed to alleviate the main concerns raised by myriad organisations, as she said, as detailed in Committee.

I shall build on what the noble Baroness said by picking up some arguments that were not adequately addressed by the Minister in Committee. First, he repeatedly tried to justify the use of dental X-rays in age assessment on the ground that they are already

“used as a diagnostic tool in ordinary dentistry”.—[Official Report, 8/2/22; col. 1566.]

He completely ignored my response that age assessment is not about diagnosing something that is wrong with a child—that is, there is no clinical justification for its use in this context. That he did not appear to get the distinction was described as a “cause of great concern” by the British Dental Association, which, as has been said, is totally opposed to the use of dental X-rays for the purpose of determining age.

Secondly, there is the related argument, put forward by the BDA and others, including the British Medical Association, that to use such methods in a non-clinical context is unethical. When I pressed the Minister on this point, he said that he would be going on to deal with the point I raised—but he did not. Nowhere in his response did he address the fundamental question of the unethical nature of such methods in this context. I know it was nearly three in the morning, but nevertheless I would have expected this most important point to have been considered. I am afraid that the subsequent defence of such methods in the factsheet published a couple of weeks ago did not do much to reassure me—nor did its suggestion that

“the UK is one of very few European countries that does not currently employ scientific methods of age assessment—such as X rays”.

A survey by the BDA of European sister organisations found that two-fifths—a significant minority including Germany and the Netherlands—did not use any X-rays for age checks, and my understanding is that some of the others are looking to move away from this method.

Given this, and given the arguments from the noble Baroness, Lady Neuberger, about consent, can the Minister give us an assurance that refusal to undergo such scientific methods should not affect the credibility of a child seeking asylum? If not, according to the British Association of Social Workers, it will amount to what they describe as “grotesque coercion”. Can he assure us that only methods specified in regulations should be used in age assessments? I urge him once again to close the loophole offered by Clause 51(9), which allows methods deemed either unethical or inaccurate by scientific advice nevertheless to be used for age-assessment practices.

I was also disappointed by the Minister’s response to my request that the Age Estimation Science Advisory Committee should include all the relevant dental, medical and scientific national bodies. He simply said that the committee would include a broad range of experts, but he did not include in his list the bodies that oversee the ethical use of the kind of scientific methods that the Government say that they want to use.

One of the arguments used to justify this part of the Bill is the harm that will be done if adults are able to pass themselves off as children. However, according to the Refugee and Migrant Children’s Consortium, in light of the supervision provided in children’s placements, this creates a much lower risk than when children are incorrectly treated as adults. The latter might be placed in detention or alone in accommodation with adults, with no safeguarding measures and the risk of abuse. Indeed, BASW warns in opposition to Amendment 64 that by treating age-disputed persons as adults there is a large risk that we have endangered children.

I read a heart-breaking example of what can happen in such circumstances just recently in the Guardian. It was a piece about four young asylum seekers from Eritrea who killed themselves after fleeing to the UK. The inquest of one of them, Alex, concluded that he had been wrongly assessed as an adult and that, consequently, instead of being sent to live with a foster family, he was moved to accommodation for adults, where he was violently assaulted and began drinking heavily. Although the mistake was rectified, the inquest noted that it contributed to the “destructive spiral” that lead to his death.

Any reform of age assessment must make such a tragedy less, rather than more, likely. Ideally, I would like to delete this whole part of the Bill but that is not possible. Therefore, this amendment represents a crucial piece of damage limitation. I hope that the Minister will accept it or, failing that, it will receive the support of the House.

[Baroness Neville-Rolfe (Con)]

My Lords, as the mover of the lead amendment in the middle of the night on 9 February, I will speak only briefly to support Amendment 64 in the name of the noble Lord, Lord Green. I do not support Amendment 64A, however well intentioned, because I worry about its perverse effects and the huge costs involved.

The background to my concern is that I have been utterly appalled by the number of asylum seekers pretending to be children—1,100 migrants in the 12 months to September 2021, as reported in the Daily Mail. I do not apologise for the fact that it first drew my attention to this dreadful situation. The numbers are growing as the numbers crossing the channel in boats grow, allowing for seasonal variations, although the Home Office is trying to reduce the focus on this by scrapping regular figures. This is the subject of my later amendment.

The incentives to cheating on age are substantial in terms of treatment, housing and support. I am worried about the wider implications: mature boys put alongside vulnerable girls in school can wreck their progress and even lead to abuse. Mixed ages in social care are a recipe for disaster and it can be worse than that: remember the Parsons Green bomber pretending to be 16 when he was much older?

The Government are right, therefore, to introduce new processes for conducting age assessments and to set up a system in support in the Bill. There seems to be agreement on this but, as has been said, much is left for regulation.

I was very glad that my noble and learned friend Lord Stewart of Dirleton acknowledged on 9 February —in the middle of the night—that we had raised a valid safeguarding issue. I thank him for that. I was pleased to hear that the Government are planning to monitor and evaluate the impacts of the policy and to develop the evidence base further. Unfortunately, that does not solve the problem the House of Commons amendments sought to address. We will have missed the boat for clarifying the law and introducing the certainty that authorities need to run a fair and safe system.

I am clear that we must have an effective and rigorous system of age assessment, not one that gives the benefit of the doubt to those saying, without documentation, that they are minors and encouraging the traffickers. The noble Lord, Lord Green, has exposed the problems with the system proposed and I feel that we need a better response.

--- Later in debate ---

Thirdly, I would like a public commitment to a consultation on the successor scheme, so that it is not simply jumped on us by the Government—as this Government like to do—but is one on which the Government consult widely with interested parties as to what the successor scheme, which I understand is intended to attract rich people who are prepared to invest in more productive enterprise in Britain, should look like, what form it will take and what those of us who for different reasons would want to be critical in the way we examine it might think.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 70A. It is a happy coincidence that we return to this issue on International Women’s Day, because it is very much a women’s issue. It was good to meet with some of the women affected who were outside, opposite the Lords, for much of this afternoon. I thank them for coming to meet us.

I was disappointed by the Minister’s response in Committee. She did not really address the fundamental issue I raised of how, by treating this as a trafficking issue rather than as an employment and immigration rights issue, the approach is failing many overseas domestic workers who are being exploited but not trafficked. Given that there is clear evidence that the 2016 changes are not working, as we have already heard, it is simply not good enough to say that reversion to the status quo ante is not the answer, particularly when so many organisations in the sector believe it is the answer. That was very much endorsed by the women I met outside this afternoon.

The Minister said she would not look again at it but would

“perhaps explore it further and see why what is happening is happening.”—[Official Report, 10/2/22; col. 1922.]

I do not think the same Minister is replying, but I wonder whether she has any information to pass on to the Minister who is replying about what she has managed to find out since Committee.

I understand that Kalayaan and some other NGOs in the sector have, at short notice, been invited to a virtual round table tomorrow to discuss how the ODW route can “be shaped going forward”—I hate the term “going forward”. That is welcome news, but, if the discussions are to be fruitful, Kalayaan is clear that the possibility of reverting to the pre-2016 route must be on the table. To rule out this option, or some form of it, in advance is not helpful, to say the least. Can the Minister give us an assurance that officials will approach the discussions with an open mind so that they and the sector can explore whether the answer does indeed lie in reverting to the pre-2016 policy or some form of it?

[The Earl of Sandwich (CB)]

My Lords, my noble friend Lord Hylton very much regrets that he could not stay for this amendment because he had to leave early. He and I have been involved with the problems of domestic workers over decades, it seems—certainly since the 1990s. I should declare that I was once a council member of Anti-Slavery International, and I well remember meeting domestic workers through Kalayaan and being shocked at their predicament, which continues today in some cases.

This amendment has been very skilfully drafted by the right reverend Prelate. It includes domestic workers in diplomatic missions, where a few cases have come up, and, secondly, it allows workers to change their employer, within the same type of work—but they must register this change. They may renew their visas for 12 months at a time but without having recourse to public funds. Thirdly, they may bring in spouses and children while that visa still applies. After five years of continuous residence, they may apply for indefinite leave to remain, and, if their employer wants to continue that employment, that is all right. Thus the amendment is full of limitations, which should satisfy the Home Office. There is also subsection (2)(c), which favours family reunion and prevents the loneliness that often comes from separation.

In the public perception, the Home Office is moving backwards at the moment, and all I can say is that, as the noble Baroness, Lady Lister, said, this amendment is simple, and there seems to be no reason why Her Majesty’s Government should not support it.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, it gives me great pleasure to move Amendment 83. I say at the outset that I shall neither speak to nor move Amendment 84. I take this opportunity to thank the noble Baroness, Lady Lister of Burtersett, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton of Liverpool, for their support for this amendment.

The attraction of this amendment is that, after this matter was raised in Committee, it marries together two separate ideas—one pressed so eloquently by a long-standing campaigner on these issues, the noble Baroness, Lady Lister of Burtersett, and the other by me in a separate amendment. I say how delighted I am that we have the support of the Constitution Committee of this House in its HL paper 149 of January this year. Paragraph 15 states clearly:

“Clause 1 provides that a person is entitled to be registered as a British overseas territories citizen if a number of conditions are met. This clause corrects the historical inability of mothers to transmit citizenship. It is unclear what fees will be charged for registration applications under this clause and similar provisions”


in later clauses. It goes on:

“In a recent case the Court of Appeal held that a fee of £1,012 for certain registration applications by children was so high as to be unlawful.”


In paragraph 16, the Constitution Committee therefore requests:

“The Government should clarify its intentions on the amount of fees to be charged under clauses 1, 2, 3 and 7.”


Amendment 83 deals specifically with Clause 1. In the amendment, we state that no fee can be set above the cost to the Secretary of State of registration and that the cost must be set having regard to the vital importance of rights to citizenship by registration, securing the shared connection of all British persons; can be set only having regard to the specified principles; must not be charged to register the right to citizenship of

“any child who is looked after by a local authority”;

and must not be charged to register the right to citizenship of any person under a statutory provision specifically intended to correct past legislative discrimination or injustice that had wrongly excluded that person from citizenship.

It is clear from the Explanatory Notes—I entirely endorse this—that the purpose of Clause 1 and the whole of Part 1 is to correct a historical wrong, saying:

“This clause creates a registration route for the adult children of British Overseas Territories citizen … mothers to acquire British Overseas Territories citizenship”.


The wrong is that:

“Before 1 January 1983 children could not acquire British nationality through their mother. While registration provisions have since been introduced to rectify this issue for the children of British citizens (section 4C of the British Nationality Act 1981), this was not changed for children of”


British Overseas Territories citizens.

I am sure your Lordships would agree that charging £1,012 for a child and £1,126 for an adult to be registered as a British citizen is prohibitively expensive when the cost to the Home Office of registration, as estimated by the Secretary of State, is only £372. It could lead to many in this position not seeking registration because they cannot afford the fee. I ask my noble friend the Minister to tell us, in summing up the debate, where people—particularly children but also adults—will be expected to find the fee.

The remaining £640 in the case of a child, and more in the case of an adult, is money raised by the Home Office from the process that these British children and adults must go through to secure their citizenship rights. I do not know whether that is an unintended consequence of the way the fees are structured, but it does not seem fair to me.

In the case of PRCBC and others v SSHD, in February 2021, the Court of Appeal emphasised that for many

“children of a single parent on state benefits. it is difficult to see how the fee could be afforded at all.”

In its judgment handed down on 2 February 2022, the Supreme Court emphasised that these findings are not disputed. The court has similarly emphasised the importance of citizenship to a person’s identity and sense of belonging, and to their capacity to fully participate in social and political life. The Supreme Court Justice ruled that this a political decision, and I put it to the House this evening that it is now for us to rise and respond to the challenge and make sure that, as this is a matter of policy that is for political determination, we put it right this evening.

In conclusion, this is a very modest amendment. It seeks simply to remove the power to use the function of registering British people’s citizenship to raise money to pay for the immigration system and to restrict any fee that is charged to cover the estimated costs of registration. It does this by amending the powers in Section 68 of the Immigration Act 2014 to clearly distinguish rights to be registered as a British citizen from the many and diverse Home Office immigration functions to which those powers also apply. These people have lived their whole lives in this country and essentially have nowhere else to go. I do not believe that it is right that this fee should cause a barrier to them obtaining full citizenship, which, in my view, is their right.

As I said earlier, the amendment also precludes registration fees being charged in two specific cases. Local authorities should neither be charged nor discouraged from acting to secure the citizenship rights of British children whom they are looking after. Further, where a right of registration is provided to correct this historic injustice in British nationality legislation, the only fee should be to cover the process of that application.

With those remarks, I hope that this amendment will find the favour of the House and not just of those have who co-sponsored it, thereby correcting a historic injustice and ensuring that those who are entitled to this will actually be able to afford it. I beg to move.

[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.