Nationality

Caroline Nokes Excerpts

Tuesday 23rd July 2019 Commons Chamber

[The Minister for Immigration (Caroline Nokes)]

I beg to move,

That the draft British Nationality Act 1981 (Remedial) Order 2019, which was laid before this House on 2 May, be approved.

In this day and age, I think we can all agree that the law should not discriminate against people simply because their parents were not married when they were born, and that we should not discriminate against people just because it was their mother who was British, not their father. The draft British Nationality Act 1981 (Remedial) Order 2019 is designed to remove discriminatory provisions in the British Nationality Act 1981 for those applying for British citizenship under specific routes introduced to address historical discrimination against those whose parents were not married, or against those whose mother was British, as opposed to their father. The draft order was first laid in Parliament in March 2018.

Once the law has been changed, those who seek to register as British citizens and who were born to an unmarried British father before July 2006, or to a British mother before 1983, will no longer need to demonstrate that they are of good character where it would be discriminatory to require them to do so. In two separate cases, the courts declared the good character requirement to be unlawful and made a declaration of incompatibility with the European convention on human rights. This legislation will correct incompatibilities identified by the domestic courts by removing the good character requirement for those applying for British citizenship via certain routes on the basis of historical discrimination. I am grateful to the Joint Committee on Human Rights for its scrutiny of the order and its careful consideration of this hugely complex and sensitive issue.

The remedial order process to correct incompatibilities in primary legislation with the European convention on human rights is rarely used. It is therefore right that each order is scrutinised carefully to ensure compliance with the procedure laid down in the Human Rights Act 1998, and to ensure that the incompatibilities found by the courts are addressed.

The Government welcome the Committee’s recommendation that Parliament approve the order. It remains our position that some of the issues raised by the Committee go beyond the incompatibility rulings and are therefore outwith the scope of the order. I commend this order to the House.

--- Later in debate ---

[Caroline Nokes]

I am grateful for the considered debate today and the interest that Opposition Members have shown in this remedial order.

As I said earlier, the scope of the remedial order is to make changes to nationality legislation and it is therefore narrow. It is limited to addressing the specific incompatibilities that have been identified by the courts. The Government will monitor any remaining potentially unlawful discriminatory aspects of nationality legislation, a point picked up on by the hon. Member for Manchester, Gorton (Afzal Khan), and will consult as appropriate if it becomes apparent that further changes are necessary.

The Government are committed to ensuring that those individuals affected by the order do not face further discrimination. In its first report on the remedial order, the Joint Committee on Human Rights recommended that those who had citizenship applications previously refused, because of the discriminatory provisions in the British Nationality Act 1981, which this order seeks to remedy, should not have to pay the application fee for a repeat application. I am pleased to say that I have written to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Chair of the Committee, confirming that I plan to amend the fees regulation at the next opportunity to waive the application fee for this particular cohort.

Turning to the points raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), he commented on children having to meet the good character test. This is a requirement for British citizenship as set out in the 1981 Act. It applies to those seeking to register as British who are aged 10 years and over at the time of application. That is because 10 is the age of criminal responsibility in England and Wales. Children as young as 10 can and do commit very serious acts of criminality, sad though that is and undoubtedly tragic for their victims. It cannot be right that such offences are disregarded when assessing a child’s suitability for citizenship.

[Stuart C. McDonald]

I do not agree with the Minister on that point of principle, but even putting that to one side 50% of kids over 10 who are denied citizenship on those grounds have had that done on the basis of nothing more than a police caution, as I understand it. Surely it cannot be right to deny someone the right to citizenship on such a flimsy basis.

[Caroline Nokes]

I was just moving on to that particular point. The Government do not believe that the good character requirement for children is at odds with it the statutory obligation in section 55 of the Borders, Citizenship and Immigration Act 2009, but I want to make it very clear that having a criminal conviction does not necessarily mean an application for citizenship is automatically refused, particularly in the case of minor offences attracting an out-of-court disposal, for example, as the hon. Gentleman mentioned, a youth caution. Each case is considered on its individual merits and guidance for caseworkers makes it clear where discretion can be exercised.

On British overseas territories, we are very proud of our heritage in Britain and this pride extends to many people around the world who identify as British. The JCHR expressed concerns that the discriminatory provisions that this remedial order seeks to remedy will still apply to British overseas territories citizens. Regrettably, this is true. When changes to nationality legislation were made, they were introduced at a very late stage in the parliamentary process and there was no time to consult fully with the territories about introducing similar provisions for British overseas territories citizens’ status. It would not have been right to introduce legislation that would affect the territories, and potentially the status of those living there, without consultation. We recognise the difficulties that the British Nationality Act still presents for some British overseas territories citizens, who may wish to pass on their citizenship to their children and are considering how best to address those concerns, taking into account the opportunities for doing so. I commend the order to the House.

Question put and agreed to.