Nationality and Borders Bill

Baroness Ludford Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle, and the noble Lord, Lord Woolley of Woodford, for their support for the amendment. The amendment would extend the right to register as citizens to the descendants of Chagossians exiled from their homeland, subject to a time limit. I am grateful to Rosy Leveque of BIOT Citizens for her help with it, and to Chagossian Voices for its briefing.

To understand the case for this amendment, a bit of history is necessary. Back in the 1960s and early 1970s, the inhabitants of the Chagos Archipelago—a British Overseas Territory which became part of the British Indian Ocean Territory—were evicted by the then British Government to make way for a US airbase on Diego Garcia, the largest of the islands. They have never been allowed to return. Not only did they lose their homeland, but their grandchildren and other descendants have no right to British Overseas Territory citizenship and, therefore, to British citizenship. Only those born on the islands and the first generation born in exile have such a right. I should perhaps make it clear that the right to citizenship should not be confused with the quite separate right of return, which is not affected by this amendment, important as it is.

The Chagossians were deported to Mauritius and the Seychelles and now around 4,000 live in the UK, but because of the unjust citizenship rules many are undocumented and children have been and continue to be deported. Families have been broken up and communities are divided, as some members have access to citizenship rights while others do not. This has caused hardship for many and has aggravated the trauma associated with exile. The lack of citizenship rights has created insecurity and made it harder to integrate into local communities.

In the Commons, in Committee, the Minister, Tom Pursglove, expressed some sympathy for the case made for the extension of citizenship rights and acknowledged that

“the Chagossians present a unique case.”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; col. 644.]

He said he would “reflect further”. It all looked rather hopeful but when the Conservative MP, Henry Smith, raised the issue on Report, what looked like a half-open door was slammed shut by the Immigration Minister, Kevin Foster, which was very disappointing. Mr Smith emphasised the anomalies created, the injustices caused and that we are talking about no more than a few hundred to the low thousands of people who would benefit. So far, BIOT Citizens has identified 500 descendants. What is at stake is a small concession but one that would make a huge difference to the lives of those affected. It would also have symbolic importance for a people who have lost their homeland through no fault of their own.

Mr Smith’s amendment was rejected in a single paragraph. There appear to be two strings to the Government’s case. The first is that the amendment

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories, creating quite a major precedent.”—[Official Report, Commons, 7/12/21; col. 258.]

I am sure noble Lords can spot what a specious argument this is in this context. The only reason the Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British Oversees Territory. Forced and continued exile prevents them from meeting these long-standing conditions. It is not clear that the Government really understand this, but as the Junior Minister acknowledged in Committee, it is “a unique case” so no precedent would be set, unless the Government have plans to evict others from their British Overseas Territory homelands. I hope and trust that, if the noble Baroness—I think it is the noble Baroness—the Minister has been briefed to use this argument, she will scrap it now.

The second government concern is more credible. They do not want to create an open-ended right in the way that the Commons amendment did, and I think that is reasonable. This amendment therefore creates a five-year time limit for applications, following the Windrush precedent in the British Nationality Act 1981. Those aged under 18 at the time of enactment will have up until the age of 23. I am offering the Minister an opportunity to add something positive, that would be widely welcomed, to a Bill that—with very few exceptions to be found in this part of it—has been widely condemned. If this particular way of capping entitlement is not to the Government’s liking I am, of course, open to discussions about alternative means, such as a generational cap. I very much hope that the Minister will accept the amendment or a revised version of it for Report. Is she willing to meet virtually with me and other signatories to the amendment and those advising me to discuss how we might proceed? I plan to return to the issue on Report to try to put right what Henry Smith MP correctly described as an “appalling injustice”. I beg to move.

[Baroness Ludford (LD)]

My Lords, I thoroughly endorse what the noble Baroness, Lady Lister, has said, and I am very pleased to co-sign this amendment. In the first two groups that we discussed this morning, we talked a lot about righting injustices. This is an opportunity to right a gross historic wrong—a forced eviction and exile that was, indeed, ruled illegal by the International Court of Justice in 2019.

I was one of those who raised this issue very briefly at Second Reading. I do not think the Minister referred to it in her response, although I know she had a lot of issues to cover. It should be noted, though, that the amendment in the other place from Henry Smith MP at Report stage, which the noble Baroness, Lady Lister, referred to, had the sizeable support of 245 Members, displaying the strength of feeling about the trauma and hardship of the Chagossian community that the noble Baroness, Lady Lister, referred to.

The all-party group on Chagos is a strong and active group that has long campaigned to right, in so far as is possible, the wrongs of the 1960s when, having resisted independence from Mauritius, of which Chagos was part, Britain secretly acceded to an American request to make one of the islands, Diego Garcia, available on a long lease as a “communications hub”. Of course, it later became notorious as a site for rendition flights. Anyway, the then British Government of, I am afraid, Harold Wilson, detached Chagos from Mauritius and then emptied Chagos, chucking out its inhabitants. This appeared, apparently, to be compensation for the Americans for the UK declining to get involved in the Vietnam War.

The saga is littered with lies and about-face. The UK told the UN that the Chagos Islands had no permanent population and the Chagossians were merely contract labourers. The British Indian Ocean Territory—BIOT—comprising all the Chagos Islands was detached from Mauritius and, between 1968 and 1973, the entire population of Chagos was removed. Some 2,000 people were deported to Mauritius, some went to the Seychelles and some arrived in the UK, particularly in Crawley, perhaps because it is near Gatwick, in Sussex.

As was discussed this morning, the purpose of Part 1 of this Bill is to address long-standing discrimination in British nationality law. I put to the Committee that Amendment 11 fits perfectly in this context. The original appalling injustice of the late 1960s and early 1970s perpetrated against the Chagossians has been compounded ever since, not only by their continuing enforced exile from their homeland but by the deprivation of their descendants of their citizenship rights. Had they not been evicted but had stayed in BIOT, they would have passed British Overseas Territory citizenship from generation to generation and some would have had the entitlement to be registered as British citizens or at least benefited from the Home Secretary’s discretion to so register them.

As the noble Baroness, Lady Lister, said, Ministers in the other place have provided no justification for resisting the rectification of this injustice suffered by the Chagossians. The Government simply rely, in a sense, on the injustice of eviction to perpetuate the injustice. Because we had chucked them out, they were not BIOT citizens and so they cannot benefit from any subsequent citizenship rights. The Government now have an opportunity with this new clause to make substantial amends—hardly complete amends—for the wrongs done half a century ago. I suggest that it is wrong to seek to assert that correcting the nationality law consequences of this wrong would create any wider precedent, as the noble Baroness said.

By the way, if anyone wants to read the history of the UK’s perfidious treatment of the Chagossians, I recommend this booklet of a lecture by Professor Philippe Sands QC entitled Chagos: The Last British Colony in Africa – A Short History of Colonialism, a Modern Crime Against Humanity? and I will give this to Hansard so it can correctly identify it. I urge the Minister to give a positive response.

[Baroness Whitaker (Lab)]

My Lords, I apologise for not being able to speak at Second Reading. I strongly support Amendment 11, which has cross-party support. I speak as a vice-chair of the All-Party Parliamentary Group on the Chagos Islands.

My noble friend Lady Lister explained powerfully and clearly the position of this small number of people, whose ancestors were wrongly deported from their island homes and who have been caught up in big-power politics, denying them the basic human rights that we in your Lordships’ House enjoy. The noble Baroness, Lady Ludford, gave the whole context.

The fact is that, although all UK Governments agree that the exile of the Chagossians from their island homes 50 years ago was wrong and unjust, the present Government continue not to allow resettlement. They cite a range of reasons for continuing this injustice, including conservation, finance, feasibility, security and defence. This is irrespective of the fact that it is well known that the American base on Diego Garcia would not be threatened or impeded by resettlement on the 54 outer islands. Indeed, the UK Government committed in their 1965 Lancaster House agreement to returning the territory

“to Mauritius when no longer needed for defence purposes.”

The outer islands are not part of the defence framework. Conservation could be maintained by the Chagossians, as happens in other marine conservation areas, and there are various avenues for assistance with resettlement costs.

It is political will and respect for human rights that are lacking. This Government are acting in defiance of the UN charter on decolonisation and United Nations General Assembly resolutions, and contrary to the opinion of the International Court of Justice and the decision of the tribunal of the UN Convention on the Law of the Sea, in their obdurate refusal to countenance resettlement for this, I repeat, small number of people.

The all-party group strongly supports the international rule of law and the right of return. In respect of this amendment, which follows from all the events we have set out, we firmly believe that, until resettlement is permitted, Chagossians should not have to endure having loaded on them the further injustices that this amendment would remove: the separation of families, deportation and the unreasonable costs of excessive fees. The Government adopting this modest amendment, Amendment 11, would at least go some way to ameliorating the acknowledged injustice that Chagossians have endured by their exile.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I support my noble friend Lord Dubs and the proposal that Clause 10 should not stand part of the Bill. I put on record my thanks to the Joint Committee on Human Rights for the very helpful work that it has done on the Bill, with a whole raft of very useful reports. According to ILPA and the Bar Council, this clause contravenes the 1961 UN Convention on the Reduction of Statelessness, and that should give us pause for thought. Research by the European Network on Statelessness shows how some children in very vulnerable circumstances will be affected, as my noble friend said, and found that there can be good reasons for delays in registering a child’s nationality.

To my mind, the justification that the clause is needed because there has been a significant increase in the number of registrations of stateless children smacks of the culture of disbelief and suspicion criticised by Wendy Williams in the Windrush report. Surely it is to be celebrated that more children are exercising their rights—no thanks to the Home Office, which has been dilatory in making children and their parents aware of these rights and in removing the barriers to registering them. It is thanks to the hard work of organisations such as the Project for the Registration of Children as British Citizens that more children and parents have become aware of the right to registration. As I say, this is to be commended, not cracked down on as if it were some kind of crime.

As the JCHR observes, and Amendment 31 addresses —a point made also by my noble friend Lord Dubs—it is difficult to see how this clause is compatible with the UN Convention on the Rights of the Child. While the Home Hoffice human rights memorandum states that it has considered the best interests of the children affected, it is not clear from it how such a clause is in their best interests, so can the Minister spell out exactly how this clause meets the best interests of children affected?

[Baroness Ludford (LD)]

My Lords, as a member of the Joint Committee on Human Rights, I agree with the noble Baroness that we have done good work on the Bill. On a more serious note, perhaps I may say how much we appreciate the chairmanship of the right honourable Harriet Harman MP, whose recent bereavement has saddened us so much.

I will speak to both Amendments 30 and 31. As has been said by other noble Lords, Clause 10 amends the British Nationality Act to introduce new requirements for the registration of a stateless child—a child born in the UK—and could make it even more difficult for them to acquire British nationality, to which there are already significant hurdles. I could not agree more with the noble Baroness, Lady Lister. Why should it be a problem that children are becoming stateless and ceasing to have the security of nationality?

Under Clause 10, the Home Secretary has to be satisfied that the child is unable to acquire another nationality. That puts that child in the position of having to prove that they could not reasonably have acquired another nationality. The policy rationale seems to be a suspicion that parents are wilfully causing their child’s statelessness—the culture of disbelief that the noble Baroness, Lady Lister, referred to. As colleagues and the JCHR say, it is difficult to see how the best interests of the child, as required by the 1961 UN Convention on the Reduction of Statelessness, are served by the new test in this provision. How is it in that child’s interests to be left stateless?

Indeed, asserts the JCHR, Clause 10

“risks punishing the child for a perceived failure”

on the part of their parent or carer, which is obviously through no fault of their own. However, the UN convention does not impose a requirement on the parent to exhaust all avenues to seek the citizenship of another state. So Clause 10 could move the UK away from the convention. I was interested that the noble Baroness, Lady Lister, quoted ILFA and the Bar Council as saying that they do indeed think that this is a contravention of the convention, and I can see why. Amendment 30 is an attempt to move the UK back towards the intention of the convention by saying that British citizenship could only be withheld

“where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.”

Amendment 31 aims to make the best interests of the child central to the decision-making.

Finally, in addition to the risk of alienation from our society of individual children, it cannot be in the interests of British society as a whole for young people born here to be excluded from sharing citizenship and thus rootedness in their community.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support the amendments and the proposal that Clause 10 should not stand part, and my noble friend Lady Bennett of Manor Castle has also signed them. We should be making it as easy as possible for children to obtain a nationality if they are already stateless. Quite honestly, who dreams up these cruel clauses at the Home Office? Do they not have a heart when they are writing these things? Do they not understand the impact that they can have on children through no fault of the child? The decision should be made purely in the best interests of the child, as provided by Amendment 31. I hope that the Government change course and make this as easy and straightforward as possible. People outside are looking in and are judging this to be cruel, unpleasant and perfectly horrendous.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I assume that it is the latter, but I will write to the noble Lord with the details of the figures I have here. In particular, I will give him more detail about the countries from which these cases derive.

[Baroness Ludford (LD)]

I want to follow up, because the Minister has answered the question I was going to ask. She mentioned that the 1,700 figure—I cannot remember what year it was for—was evidence of abuse, and as she just replied to my noble friend, she is assuming that the parents in those cases could not apply. It seems to me that there is no evidence of abuse. I am thinking of the strengthened safeguards in Amendments 30 and 31, especially Amendment 31. The Home Secretary must be satisfied that “in all the circumstances” it is reasonable, et cetera. The Minister referred to circumstances where parents cannot access the authorities of the relevant state. One can think of dozens of countries around the world in conflict, civil war or whatever chaos. Adding the words

“without any legal or administrative barriers”

would go with the flow of the Home Secretary having to be satisfied that it is reasonable to refuse, and I really cannot see why the Home Office cannot accept Amendment 30, even if it is claiming that Amendment 31 is unnecessary because it already cares about the best interests of the child.

[Baroness Williams of Trafford (Con)]

I shall write to noble Lords about this in more detail, because it is quite detailed, and explain where the figures have derived from. I was actually quoting the judge in his conclusion that an “obvious route to abuse” would be opened. I shall send the figures to the noble Baroness. On case sampling, many of the cases have a poor immigration history, with 79% of the parents having no leave at the time of the birth and only 16% having such leave, but I will outline it to noble Lords in greater detail and they can draw their own conclusion.