Nationality and Borders Bill

Baroness McIntosh of Pickering Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

72: Clause 76, leave out Clause 76

[Baroness McIntosh of Pickering (Con)]

I am grateful for this opportunity to speak to Amendments 72 and 74, and I congratulate my noble friend on the honour of being appointed a privy counsellor. It is richly deserved, and we can all bathe, I hope, in reflected glory. I look forward very much to hearing from my noble friend how her Amendment 73 will impact, and possibly supersede, my Amendments 72 and 74.

Before that, however, I want to raise my concerns about the new powers included in Clauses 76 and 77, which raise a tribunal charging power in respect of wasted resources. I do not disagree that there may be circumstances in which unnecessary costs arise, but it is a very dangerous precedent to set that a First-tier Tribunal or Upper Tribunal may—as I understand it, for the first time ever—charge the participant. Without going into the details, which I am sure the House is familiar with, I will briefly set out my concerns, those raised by the Law Society of Scotland, and those of the Select Committee on the Constitution in its report published as House of Lords Paper 149.

In the view of the Law Society of Scotland, the reason that Clause 76 is “problematic, unnecessary and unacceptable” is that:

“The First-tier or Upper Tribunal is to be given powers to charge a person exercising rights of audience or rights to conduct litigation if that person is found to have acted improperly, unreasonably or negligently. Under current statutory”


law—for example, the Solicitors (Scotland) Act 1980—

“and common law powers professional regulators have sufficient powers to deal with matters of professional discipline such as improper or unreasonable conduct. It is inappropriate that the determination of negligence should be included in the clause when that is properly the province of the civil courts. Furthermore, we note that any amounts charged under this clause for negligence are to be paid to the Consolidated Fund rather than to the client who may have suffered as a result of any alleged negligence. This appears to be a form of”

backdoor

“taxation rather than compensation for negligence.”

Through these two small amendments, I would like to understand better the thinking with which the Government have drafted these two clauses. Amendment 74 is consequential on Amendment 72, simply leaving out Clause 77 if the House was minded to remove Clause 76.

I am delighted to say that the House of Lords Constitution Committee, in its report of January this year, also quoted the Law Society of Scotland and said in paragraph 94:

“There is at least the potential that these new rules could discourage legal representatives and immigration advisers regulated by the office of the Immigration Services Commissioner, as well as applicants, from raising or engaging in legitimate proceedings.”


I would like to think that this was not the intention behind the government thinking, but I would very much like to hear reassurance from my noble friend the Minister that this is indeed the case.

To conclude, in the view of the Law Society of Scotland this clause is “unnecessary”; there are already existing statutory and common law powers for the appropriate regulators to deal with such issues as “matters of professional discipline” following existing complaints procedures; and it is therefore

“inappropriate that the determination of negligence should be included in the clause when that is properly the province of the civil courts.”

I also set out the Law Society of Scotland’s and my objection to the fact that this would be

“paid to the Consolidated Fund rather than”

towards reimbursing

“the client who may have suffered as a result of any alleged negligence.”

With these few remarks, I beg to move. I look forward to hearing the Government’s response.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Baroness McIntosh of Pickering for explaining her amendment. Government Amendment 73 is a technical amendment to Clause 77. It does not change the policy; it makes a minor revision to the drafting of subsection (1) of Clause 77 to ensure that it matches the rest of the clause in only making provision in relation to the Immigration and Asylum Chamber. This change will prevent any uncertainty arising about the jurisdictions in which this clause should be applied, and it gives the Tribunal Procedure Committee complete clarity about how to approach drafting the rules to enact these measures.

I turn now to Amendments 72 and 73. The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. To achieve this, we need all representatives involved in these proceedings—whether they are acting for the appellant or for the Home Office—to play their part in ensuring that appeals run smoothly. Representatives do not just have a duty to act in the best interests of their client; they also owe duties to the courts and to the public interest, which include acting with integrity, upholding the rule of law and supporting the proper administration of justice. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings, which can waste judicial and tribunal resource and lead to delays in the tribunal process. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications. As with the current costs orders regime, the policy will apply equally to the representatives of both parties—in answer to the question of the noble Lord, Lord Paddick. This will include the Home Secretary when represented by presenting officers. To further ensure fairness, the paying party will be able to make representations before any order is made, and the tribunal retains absolute discretion as to whether a charge should be made in each case.

As I explained in Committee, tribunals can currently make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are generally only considered at the request of the other party and are infrequently employed. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs which have been wasted as a direct result of that party acting unreasonably, improperly or negligently. This power applies across all tribunal jurisdictions and is subject to the Tribunal Procedure Committee making rules for its application in a particular tribunal. It will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”: this means legal and other representatives exercising rights of audience, and the Secretary of State where they are a party and do not have legal representatives. I hope that this goes some way to reassuring my noble friend.

To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber. This will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. This will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. While the requirement in Clause 77 is for the TPC to make rules in the Immigration and Asylum Chamber, it is at the committee’s discretion to create similar rules in other jurisdictions if it considers it appropriate. Specifically, Clause 77 requires procedural rules which identify circumstances or behaviours which, absent of reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative, or other relevant party responsible for such circumstances or behaviour, to explain themselves and why such a costs order should not be made. This will ensure the regular consideration of costs orders by the tribunal. More importantly, however, the tribunal will retain absolute discretion as to whether to make an order in all cases.

Noble Lords have asked whether this will mean fewer representatives willing to take on immigration work. The Government think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected. The tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court, remain committed to their work and ensure justice for their clients.

The noble Lord, Lord Paddick, asked why these changes are being made in the Immigration and Asylum Chamber and not in other jurisdictions. Obviously, the Nationality and Borders Bill as whole is focused on reforming the asylum system. Clauses 76 and 77 are part of a programme of reforms designed to streamline immigration and asylum appeals. There has been judicial concern, and a recognition that a problem exists with the behaviour of some legal representatives and other relevant parties in immigration proceedings. It is at the discretion of the Tribunal Procedure Committee to create similar rules in other jurisdictions if it considers it appropriate.

For the reasons I have outlined, I hope that my noble friend Lady McIntosh of Pickering feels able to withdraw her amendment.

[Baroness McIntosh of Pickering (Con)]

Before my noble friend sits down: I asked a specific question as to why the money raised will be paid into a consolidated fund. I listened carefully and I do not think I heard him respond on that point.

[Lord Sharpe of Epsom (Con)]

I am afraid that I will have to come back to the noble Baroness on that point.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to all those who have spoken. I detect the mood of the House is not to support these provisions but the hour is late, and we have a lot more business to come, so am reluctant to test the opinion of the House. At this stage—

[Lord Sharpe of Epsom (Con)]

I am sorry for interrupting, but I have just been informed that the answer to the noble Baroness’s question is that it is standard practice.

[Baroness McIntosh of Pickering (Con)]

I am most grateful. If that is the case, I am surprised that the Law Society of Scotland is not aware of that, because it certainly did not respond in that regard.

I am grateful for the opportunity to raise my concerns. I would like another opportunity at some future date to pursue this further, but for the moment I beg leave to withdraw the amendment.

Amendment 72 withdrawn.

--- Later in debate ---

Moved by

[Baroness McIntosh of Pickering]

83: After Clause 78, insert the following new Clause—
“Fees
(1) Section 68 of the Immigration Act 2014 is amended as follows.(2) After subsection (9), insert—“(9A) Notwithstanding subsection (9), in setting the amount of any fee in relation to registration of British citizenship the Secretary of State—(a) must not set that amount at a level beyond the Secretary of State’s estimation of the administrative costs of the function to which the fee relates,(b) must have regard to the need to promote British citizenship as the nationality of all persons connected to the United Kingdom and British overseas territories citizenship as the nationality of all persons connected to the British overseas territories, and(c) may have regard only to—(i) the costs of exercising the function,(ii) fees charged by or on behalf of governments of other countries in respect of comparable functions, or(iii) any international agreement.” (3) After subsection (10), insert—“(10A) Fees regulations must provide that no fee is to be charged for—(a) the registration of any child who is looked after by a local authority, or(b) the registration by statutory entitlement of any person to correct any historical legislative unfairness.””

[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.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I am grateful to my noble friend Lady McIntosh for tabling Amendments 83 and 84, concerning the fees that may be charged in relation to registration of British citizenship. Please be in no doubt that we recognise the strength of feeling on this subject, which I know is of particular importance to my noble friend, as well as the noble Lord, Lord Alton of Liverpool, the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister. I say at the outset that the Government recognise that the acquisition of British citizenship is a significant life event and offers particular value to those able to obtain it, particularly children. All noble Lords agree with this point and have observed it.

Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up. It also offers specific practical, legal and intangible benefits, including the right to vote on reaching adulthood, of course, and the particular sense of identity and belonging that results from knowing that the country that you have grown up in is your own.

Please let me also reassure the House that the Government are actively considering fees in this space. Following the Court of Appeal judgment in the case brought by the project for the registration of children as British citizens last year, the Secretary of State committed to reviewing the fee in line with her duties under Section 55 of the Borders, Citizenship and Immigration Act 2009. While I recognise that the House has been very patient, waiting for the outcome of that review as though waiting for Godot, it is the Government’s view that it was important to allow the Supreme Court to give its view on the questions raised by a separate ground in this case, which considered fundamental questions around whether the powers that underpin the setting of fees had been lawfully applied, before concluding that work. Following the Supreme Court judgment of 2 February, the Secretary of State is currently considering her policy response to the review, and I hope to update the House by early May. I cannot give a specific date.

Furthermore I reiterate that, as regards the new routes introduced by the Bill to correct instances of historical legislative unfairness, it remains the Government’s intention not to charge in instances where there has been historical unfairness and/or discrimination. This is in line with our approach to other instances of historical unfairness, where waivers and exceptions were introduced in fee regulations, as is appropriate for provisions of this nature. The Government are currently exploring options in this regard for the routes introduced by the Bill. I hope that this reassures my noble friend to some extent.

However, it is important to consider the legislative history of the fee-setting regime, and the intent that has underpinned it. Since the establishment of the current nationality regime in the British Nationality Act 1981, registration of British citizenship for those who either have an entitlement under the provisions of that Act or who are applying on a discretionary basis under Section 3(1) has been contingent on payment of a fee. Current fee-setting for British citizenship is underpinned by the powers set out under Section 68(9) of the Immigration Act 2014 which, as the Supreme Court has affirmed in its recent judgment, were explicitly authorised by Parliament and empowered the Secretary of State to set fees at a level that reflected the costs of exercising the function, the benefits that accrue to an applicant as a result of acquiring that British citizenship, and the wider costs of the borders and migration system. Parliament also explicitly authorised the maximum amount that may be charged in relation to an application for British citizenship registration at £1,500, through the Immigration and Nationality (Fees) Order 2016, which sets the framework for the current fees set out in secondary legislation.

The wider application of these principles and the powers to set immigration and nationality fees have underpinned the Government’s policy over the last decade of moving the borders and migration system to an increasingly self-funded basis, reducing the reliance on the UK taxpayer. Accordingly, fees across several routes, including nationality, have increased to support those broader funding objectives.

However, it is important to be clear on the role that these fees play in supporting the essential work of the border and migration system and particularly in funding the critical activity that supports and safeguards the interests of the people in the UK. These activities, which include ensuring that the UK’s borders are secure from threats and illegal activity, the effective operation of resettlement schemes to support those who are in greatest need and the management of a visa system that attracts the best and brightest to contribute to the UK’s prosperity, are essential to the delivery of the department’s wider mission and objectives.

Any reduction in income from fees must therefore be considered in terms of its impact on these activities, with the likely result being that activity in those areas will be reduced or income must be recovered through other means. This funding includes support for front-line operations that keep the country safe. A need to secure funding through other means may impact on fees for economic routes where the department’s objective is to attract visitors and skilled individuals to support the UK’s economy, which in turn benefits all those who live in the UK, or it will place an increased reliance on the taxpayer to fund these activities, which may in turn reduce the funding available for other important government work.

As such, there is a complex balance of considerations that the Secretary of State must take into account when setting fees, and, in line with the charging powers established by Parliament through the 2014 Act, these have informed the current fees structure. Fees charged are kept under review, as they are in other countries, and, as I have stated, there are ongoing considerations regarding fees charged for citizenship registration specifically, the outcome of which we will share in due course.

Additionally, I emphasise that elements of the amendment, such as the requirement to except fees for children in local authority care, although of course well intentioned, would more appropriately be set out in fees regulations and should not be introduced in primary legislation. In addition, it is not appropriate for a duty to have regard to the need to promote British citizenship in primary legislation that is setting fees. I therefore request that the noble Baroness withdraw her amendment for the reasons that I have outlined.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am humbled by the level of support expressed in the House this evening and outside the House from the Law Society of Scotland, the Project for the Registration of Children as British Citizens and Amnesty International UK. I pay tribute to the long-standing work of the noble Baroness, Lady Lister, and the support that I received this evening from the noble Lord, Lord Alton, and the right reverend Prelate the Bishop of Durham. Very seldom do the noble Baroness, Lady Fox, and I agree, but on this occasion I am delighted to have her support and that expressed by the noble Lord, Lord Hacking, and others. I am particularly pleased to welcome the support of my noble friend Lord Hodgson, who speaks with great authority on these matters. As he described it, the Government are going in the right direction, but I argue that, this evening, I do not believe that they have gone far enough. Therefore, regrettably, I wish to test the opinion of the House on Amendment 83.