Nationality and Borders Bill

Baroness Ludford Excerpts

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

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee has comprehensively explained the reasons for these amendments, which we support. On the issue of good character, if someone has the right to become a British citizen—they already have that right; they just want to register it—what has good character got to do with it, particularly if they are children? Even if the applicant is guilty of a criminal offence, surely denial of citizenship is a disproportionate punishment.

What are we to say about people who acquire British citizenship at birth? We do not say to British citizens, “You’ve been found guilty of a criminal offence, so we are going to take away your citizenship.” What is the difference if people have to apply to register their British citizenship? We fully support these amendments.

[Baroness Ludford (LD)]

My Lords, I just second what everyone else has said, in particular the noble Lord, Lord Dubs, whose Amendment 9 I have had the honour to co-sign. As he pointed out, the key element to stress here is that the imposition of a good character requirement for citizenship now would perpetuate discrimination against those who have been discriminated against in the past, when the whole—laudable—point of Part 1, which, as my noble friend Lady Hamwee pointed out, is the only good bit of the Bill, is to rectify historical injustice.

Indeed, as the Joint Committee on Human Rights believes, it could well amount to

“unlawful discrimination, contrary to Article 14 as read with Article 8 ECHR, to require a person to prove good character when remedying previous unlawful discrimination against that person.”

When applied to children, it is even more unfair and obviously against their best interests. Hence the need to delete Clause 3(4), which is the focus of Amendment 9. The noble Baroness, Lady Lister, referred to the quotation that this is “divisive, alienating” and unjust, compared to the treatment of other British citizens.

--- Later in debate ---

[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.