Nationality and Borders Bill

Kevin Foster Excerpts

Report stage
Tuesday 7th December 2021 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

It has certainly been an interesting debate. I thank the shadow Minister, the hon. Member for Enfield, Southgate (Bambos Charalambous) —I think he is moving on to pastures new after this debate—and I welcome the new shadow Minister, the hon. Member for Birmingham, Erdington (Jack Dromey), to his position.

The debate started with at least one positive point from an Opposition Member, when the SNP spokesperson, the hon. Member for Glasgow North East (Anne McLaughlin), referred to some of the changes we are looking to make to correct historical anomalies that have existed for far too long. The reforms we make in the Bill to British nationality law will finally address those anomalies, which will have a positive impact for a significant number of people. The Bill also includes measures for the Home Secretary to grant British citizenship to people who would have become British citizens if not for unfairness and exceptional circumstances beyond their control.

Let me turn to some of the amendments. Government amendments 17 and 18, in relation to deprivation of citizenship, are minor and technical amendments to correct a drafting error in clause 9, so this is an appropriate opportunity to address amendment 12 tabled by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis).

We heard some quite strong comments from Opposition Members about amendment 12, but let us really get into what clause 9 does. It amends section 40 of the British Nationality Act 1981 to allow the requirement to give notice of a decision to deprive a person of their citizenship to be disapplied in certain limited circumstances, such as where there is no way of communicating with the person. For example, as was well pointed out by my hon. Friends on the Conservative Benches, if someone is in a warzone, it is rather impractical to suggest that we should ask them to stop shooting so that we can pop up and serve them a notice. We heard some extraordinary comments from Opposition Members implying that we can simply pop a letter in the post and it will almost certainly get to someone.

To be clear, clause 9 does not change the circumstances under which a person can be deprived of British citizenship, nor does it remove the right of appeal against a decision to deprive a person of their citizenship. Rather, it preserves the right of appeal in cases where specified circumstances mean it is not reasonable to serve a person with a notice of a decision to deprive. The Government’s minor amendments to clause 9 clarify that the statutory right of appeal in deprivation cases is a right to appeal against the deprivation decision itself and not the deprivation order.

As was touched on, deprivation of citizenship is hardly a new concept; it has been in operational practice for many years, including under Labour Governments. The 1981 Act provides a statutory right of appeal against a decision to deprive. Clause 9 preserves that right of appeal in cases where the notice of a decision to deprive has not been served. Once a person makes contact with the Home Office, they are given a copy of the deprivation decision notice. They can then seek to exercise their statutory right to appeal against the decision.

[Kevin Foster]

Amendment 12 would remove clause 9 in its entirety, undermining the integrity of the immigration system and this Government’s efforts to keep dangerous people out of this country. To reiterate, there is no change in the scope of who could potentially be deprived, no change in the criteria, and appeal rights are still there.

[John McDonnell (Hayes and Harlington) (Lab)]

It is important that we are completely accurate in what we are saying. It is true that the Bill actually does extend the role of the Home Secretary with regard to notices. Let us be clear: it places in the power of the Home Secretary the decision that they need not give notice if that is

“in the interests of the relationship between the United Kingdom and another country, or,”

breathtakingly,

“otherwise in the public interest.”

That confers a huge amount of discretion on the Home Secretary. The Bill takes our concerns about due process to another plane.

[Kevin Foster]

I am pleased the right hon. Gentleman did not throw a book at the Dispatch Box this time. Let me repeat what I just said: no one extra in scope, no change in criteria, and judicial oversight still there for an appeal. Let us be clear that we cannot simply allow someone who could cause high harm to this country, or who has gained citizenship via fraud, to avoid these provisions simply by hiding away—for example, in one of the repressive regimes that some Opposition Members seem far too supportive of—where we cannot reasonably issue them with a notice. We cannot be in a position where we could never deprive someone of citizenship just because it is not practical to pop a letter in the post to them.

I turn now to new clause 2, which I am afraid would undermine a long-standing principle of British nationality law dating back to 1915, 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. However, I do hear the strong point made by my hon. Friend the Member for Crawley (Henry Smith) and, to be fair, by the right hon. Member for Islington North (Jeremy Corbyn). We will continue to consider what more we could do, particularly given the low uptake of the £40 million Foreign, Commonwealth and Development Office fund designed to assist this diaspora community, and we will certainly be keen to look at that and, potentially, at how it could allow those people to settle here in the UK.

My hon. Friend the Member for Romford (Andrew Rosindell) spoke powerfully to new clause 4. The Government remain extremely grateful to former British Hong Kong service personnel. He will be aware that under the British nationality selection scheme a limited number of personnel who were settled in Hong Kong could apply to register as British citizens. Additionally, because they were all adults at the time, all such veterans would have been eligible to acquire BNO status between 1986 and 1987. We therefore believe that most should hold BNO status and be eligible for the BNO route.

Granting the right of abode would set quite a precedent. However, I am pleased to confirm that the Home Secretary has identified an option that will enable our Government to treat this group of personnel in a similar way to other non-UK service personnel who were based in Hong Kong before handover. To be clear, that would be on top of the existing pathways they are already eligible for, including the BNO visa route and any other route. There is considerable work to be done to fully scope the impacts of this policy and the practicalities of its delivery, and I will aim to provide further details to the House as soon as I am able to, with a view to a solution being provided before the end of the next calendar year. I hope that that is of reassurance to my hon. Friend, whose regular challenge to us is that it is not just about having an idea; it is also about having a timeline to deliver it.

My right hon. Friend the Member for Ashford (Damian Green) and others spoke powerfully about new clause 5, which raises issues about eligibility for the BNO route and particularly about those who were too young to obtain BNO status before the handover to China and whose BNO parents or grandparents, with whom they form a household, do not wish to apply for that route—effectively, they do not wish to move from Hong Kong. There are issues with the new clause as it is drafted, given that it does not contain an age limit and its scope could extend even to those who have never set foot in Hong Kong. However, we hear the very strong points that have been made, and we very much recognise the importance of our close ties to the people of Hong Kong.

I emphasise that those who are not eligible for the BNO route have a number of other UK immigration routes available to them, not least the very expanded skilled worker route. Individuals from Hong Kong can also apply to come, for example, as a student. As my right hon. Friend referred to, there is the existing youth mobility scheme, which is open to those aged between 18 and 30 and which offers a two-year grant of leave in the UK, with scope to switch, once people are here, to routes that lead to permanent settlement. There are currently 1,000 places available each year, and the scheme is substantially under-subscribed.

We believe that those existing measures allow a lot of people to come, and we expect one or two of the new routes being created next year to also open up a pathway to this age group in Hong Kong, alongside others. However, my right hon. Friend asked me about two specific points. First, if the other side unilaterally enacted its provision, that would not automatically change the immigration rules here in the United Kingdom. That would be something we would have to do to close the route for applications by Hong Kong nationals. I must be clear that if unilateral action happened that further damaged the rights and abilities of people in Hong Kong, the Government would look closely at whether to maintain the scheme, to put something else in its place or to continue to allow it to go forward. I point out that we have a number of successful YMS schemes.

On the timeline for applications, whatever route we put in place—I would not want to disabuse my right hon. Friend—there would be a period of time between applying and getting a decision. In the context of our simplification process and the fact that we have moved to create, in some cases, wholly digital pathways for application to the BNO route by Hong Kong citizens, we are certainly happy to look again at whether some of those principles could be applied to the YMS in Hong Kong.

I noted the comments from the hon. Member for Delyn (Rob Roberts). We very much welcome and value the contribution of overseas workers in the NHS; that is why we introduced the health and care worker visa. However, making changes in one area would potentially require changes in others, including to routes that some other NHS staff are on. I should also point out that new clause 7 itself would see the applicant, if they left NHS employment within three years, having to pay the fee. I can understand why he sought to put his provision into the Bill, but it would be quite a novel approach that would be difficult for the Home Office to operationalise and would inevitably require enforcement. That is why we do not think it is the right approach.

I am grateful for the opportunity to debate children registered as British citizens under new clause 8. However, I must be clear that we are still waiting for the Supreme Court to give its judgment on this issue, and we will then look to respond.

We do not believe we can accept new clause 33, as we believe all applicants for UK nationality should be treated the same in the tests applied, but we are considering how the issue could be picked up as part of our work on simplification—applying it not only to those who hold settled status under the EU settlement scheme, but potentially to ILR holders more broadly. Although we will not accept the new clause today, I hope the hon. Member for Glasgow North East will be pleased to hear that we are looking closely at that work. I emphasise again, as I have said many times before, that no one has been refused British citizenship purely on the basis of the CSI requirement in free movement regulations.

Turning to amendment 2 in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael), which would remove clause 10, unfortunately we are seeing an increasing trend of applications for children whose parents did not take the step of registering their child’s birth with their embassy or high commission, leaving their child without a nationality. Given the request for data, concerns about the use of that route were confirmed by Home Office sampling.

Of more than 200 cases sampled, 96% of parents were Indian or Sri Lankan. Crucially, a child born in the UK to a parent from those countries can only access their citizenship if the parent registers the birth at the relevant high commission. To register the child’s birth they would need to comply with the requirements set. Within the sample, 90% of Indian and Sri Lankan parents had chosen to contact the high commission to obtain letters to show their child was in fact not a citizen, and so clearly had no problem in approaching their authorities. In many cases, the parents had, I think it is safe to say, a chequered immigration record, with only 16% of parents having permission to be in the UK at the time of the child’s birth. In 67% of the cases, the parents had obtained leave to remain in the UK as a result of the child’s applications. That points to why we believe this is a clear concern.

To deal quickly with amendments 110 and 111, amendment 110 would mean in practical terms that parents who had chosen not to register their child’s birth could argue it was not in their child’s best interest to have their nationality. That could raise some obvious issues and concerns and create quite an argument, when in reality that is not something they should be doing—certainly not for an immigration benefit.

Overall, the package of measures in the Bill is fair and proportionate. Again, I say, as many Members have done in their interventions, that the scaremongering about some of the provisions in the Bill and about people who would never be in the scope of the tight criteria for deprivation of citizenship is nothing less than shocking. The criteria applies to those who have committed the worst offences or who are literally overseas committing war crimes. This will never apply in the way that Opposition Members have suggested. I urge the House to reject some of the nonsense that we have heard and vote to support these measures, which will transform our migration system and make sure that we have a nationality system that is fit for purpose.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Dame Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)]

Before I speak to my new clause 9, I want to associate myself fully with the comments of the right hon. Member for Romsey and Southampton North (Caroline Nokes). In normal times that might surprise people, but I think she put very eloquently the real challenges and issues of offshoring and pushing back.

New clause 9 calls on the Home Office to fill the gap between the digital-by-default proof of status under the EU settlement scheme and the reality of people’s lives. It is typical of the Home Office to have set up a system that does not understand the interactions that people will have to have while proving their status. I thank the Minister for speaking to me about this, and for his letter of today.

Let me give some facts. I represent over 10,000 EU citizens in Hackney South and Shoreditch; my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) represents many thousands more. In my constituency, they are 8.5% of the population. Some 60% of Roma people are unable to access digital proof, and there are other groups who have real problems with digital access. Let me mention just some of the cases in my case load. An EU citizen living in my constituency who visits France weekly for work is interrogated by Border Force every time she arrives back in the UK. Another constituent has parents in their 70s who struggle to understand the complex process of proving their status digitally. Another case involves a freelancer who has had to prove his identity to every new employer, which can be every five or six weeks. The website is sometimes down, and many employers just do not want to engage, so he has lost money.

Another constituent works for a charity working with the Roma; it gave the figure of 60% of Roma people finding it difficult to access digital proof. I thank the3million, which has written to me since I tabled the new clause and explained many of these situations, which I do not have time to go into, but I reiterate the concerns of my constituents.

I say to the Minister, whose job I did just over a decade ago, that we are not so far apart on this. I, too, support methods that take us away from the old Immigration and Nationality Directorate letters, which many of my constituents still come to surgeries with in their wallets, folded up until they are falling apart. They are not a great way of proving one’s status in the UK. People lose passports. There are gaps in the system. We have seen with the covid app how we can make a difference by combining digital and paper.

[Kevin Foster]

An app-based solution was helpfully suggested by the3million. Having held my role, the hon. Lady will know the usual sorts of security caveats that we would add, but it is certainly something we will look at.

[Dame Meg Hillier]

I thank the Minister for that—it is a bit of a breakthrough. It is important that the Home Office remembers that people will lose records. When they are travelling, they will be in places where there is no wi-fi through which they can access information. A time-limited document that they at least have the option to have on paper would be a very welcome move.

On the basis of what the Minister has said—I will watch him like a hawk on this—I will not press my new clause to a vote, but the hon. Members who signed it have a very strong interest in this. We are talking about EU citizens who have made their life in this country, and we need to give them the comfort that they deserve, so that they can go about their ordinary lives easily and effectively.

Nationality and Borders Bill

Kevin Foster Excerpts

Consideration of Lords amendments
Tuesday 22nd March 2022 Commons Chamber

[Stuart C. McDonald]

Stoke-on-Trent City Council is among a group of councils that has taken the Home Office to court, and it protests about how the Home Office handles the scheme. In fairness to the Home Secretary, she agrees with the point I am making, which is that it is outrageous that local authorities have been left without proper funding to do their job. As I have said a million times in the House, once that funding is in place the hon. Gentleman will see other Scottish local authorities step up to the plate, just as every single Scottish local authority did in respect of the Syrian resettlement scheme.

Let us get back to offshoring, because none of what we were just talking about has anything to do with the fact that what offshoring achieved in Australia was self-harm, disastrous mental health consequences and all sorts of appalling torture and degrading treatment for the people there. Offshoring is going to cost billions of pounds, there is no sensible argument in favour of it and we need to get rid of it as soon as we can.

We also support Lords amendment 8, which means the Government cannot delay the consideration of asylum claims in order to attempt removal when in reality there is no prospect of removal happening. In itself, the amendment goes nowhere near far enough in the provision of safeguards against the inappropriate use of inadmissibility procedures, but it is better than nothing at all.

All the Lords amendments I have gone through are designed to prevent the Government from taking the broken asylum system and smashing it to pieces, but there are Lords amendments that also seek to improve the current broken system, which sees people having to wait months even to register their claim, and years to get a decision. Lords amendment 7 is a simple but powerful example. It allows asylum seekers to work after six months. The arguments have been repeated ad infinitum in this place and seem to us to be overwhelming. Nobody can fail to understand the significance of work to tackling poverty, the improvement of mental health and wellbeing and the aiding of integration. If people are left out of work for years—which is how long asylum claims take these days—how can they rebuild their lives?

The Government bang on about pull factors, but that argument is not only morally repugnant—in essence, “Let asylum seekers suffer to disincentivise others from coming”—but empty. The Migration Advisory Committee itself says that there is no evidence to back up what the Government say. Frankly, there is no evidence to back up virtually anything the Government say, which is why very little is ever published. We therefore pay tribute to all the campaigners behind Lords amendment 7.

Lords amendments 10, 11 and 12 represent three different forms of safe route that would enhance our protection system. Lords amendment 10, tabled by Lord Dubs, puts in place a form of family reunion for those in Europe, thereby repairing some of the damage caused by the end of our participation in the Dublin system. The Government recognised that family rules were far too constrained for Ukrainians; Lords amendment 10 is built on the same principle, with a particular benefit for unaccompanied children. With the demise of our participation in Dublin, we see more and more children getting into dinghies to join siblings or other relatives here, and the amendment would help to stop that. The Dublin system was not perfect but it was a lot better than our restrictive family reunion rules, which involve massive fees and impossible legal tests. Lords amendment 10 improves on all that.

Similarly, we support Lords amendment 12, which opens a safe route for people fleeing genocide—I hope my hon. Friend the Member for Argyll and Bute (Brendan O’Hara) will say more on that later—and we fully support Lords amendment 11, which ensures the regular resettlement of 10,000 refugees per year. For too long, the extent to which we have sought to meet our obligations to resettle refugees has been left to the whim of the Home Office. The Syrian scheme was a success, but the infrastructure that made it successful has been left to wither and—to put it politely—the Afghan scheme has barely started, despite the huge responsibility we have for those people. We get lots of rhetoric from the Government on this issue, but little delivery. We need a stable and predictable annual goal with a degree of flexibility, which is exactly what Lords amendment 11 delivers.

Finally, I turn to the one part of the Bill that is largely welcome: part 1. We warmly welcome the progress on the recognition of Chagos islanders as British overseas territory citizens, but questions arise in relation to the amendment in lieu, because unlike the original Lords amendment it does not include an entitlement for Chagos islanders to register as a British citizen at the same time. Were it not for historic injustices, that would have been made an automatic entitlement in May 2002. The Government’s proposals mean there will be only a discretionary route. What is the rationale for that? Will the Minister confirm that that discretion will be used in all cases of this type? Will he ensure that only a restricted fee is charged, as in other cases of historic injustice?

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

Just to help and to keep this short, I can tell the hon. Gentleman that our intention is to operate in the spirit of the Lords amendment—that is, there will not be a fee for registration—but I am more than happy to outline in some detail at another time exactly how the process will work.

[Stuart C. McDonald]

It is useful to hear that said from the Dispatch Box, so I thank the Minister.

Lastly, the provisions on stripping people of citizenship without notice were introduced at short notice in the Public Bill Committee, without any chance to hear or receive evidence on them. The provisions were frightening, and their lordships have exposed them for the utterly unfit provisions they were. Indeed, the whole episode has cast light on how unfit for purpose nationality laws have become, and in particular the ever-increasing powers of Ministers to strip people of their citizenship.

--- Later in debate ---

[Simon Hoare]

It is to be welcomed that there will be no north-south border checks on the island of Ireland. The Minister will know that there is excellent intelligence sharing between the UK, the Police Service of Northern Ireland and the Irish authorities.

I understand what the Government are trying to do in the Bill, but I am afraid they again show a little bit of a lack of sensitivity or understanding with regard to how the all-island economy works, particularly when it comes to tourism, which is hugely important, as the hon. Member for North Down (Stephen Farry) said. In 2019, 2.245 million visitors came to the island of Ireland and spent £589 million. Such visitors maintain and support 70,800 jobs in Northern Ireland alone. There has been a 90% increase in the number of visitors to the island of Ireland from North America and 60% of all visitors to the island spend nights in both the Republic and the north of Ireland.

I understand what the Minister is trying to do, but he is using a misdirected sledgehammer to crack a non-existent nut, because we have seen no evidence to show that there is systemic abuse of the common travel area whereby people come from the south to the north and then over to GB. There is no evidence for that at all. I suggest the Government go away and have another think about the legislation. It seems to me to be sensible to exempt those who have established their right of residence in the Republic of Ireland from having to have an electronic travel authorisation. They do not need it. A lot of them will move between hospitals and doctors’ surgeries and dentists and between retail and hospitality and all the rest of it. Their bona fides have been recognised by the Republic, whether they were born in the Republic or elsewhere, and that should, through the usual intelligence sharing, be enough.

Visitors from the Irish diaspora of New Zealand, Australia, Canada or North America should be required to have an ETA only if they propose to move from the island of Ireland—irrespective of whether they have landed north or south of the border—to come to GB.

[Kevin Foster]

indicated dissent.

[Simon Hoare]

The Minister shakes his head and grimaces; I am not entirely sure why, because the idea is eminently workable. Tourism Ireland and Tourism NI are anxious that the legislation on ETAs will be an inhibitor for people who wish to visit the island of Ireland. They do not say, “I’m coming to the north” or “I’m coming to the south”—they say, “I’m going to Ireland.” They do not see the boundary as we know it and see it.

That is one way of dealing with the situation; there may be others. Our fear is that this measure would be damaging for tourism and for business confidence. Post covid, visitors should speedily be encouraged to come to the island of Ireland. Putting other impediments in their way would not be in the interests of the economy.