Draft British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021

Kevin Foster Excerpts

Monday 21st June 2021 General Committees

[The Chair]

I remind Members about the social distancing regulations. Spaces available to Members are clearly marked. I also remind Members that Mr Speaker has stated that masks should be worn in Committee when not speaking. Hansard colleagues will be grateful if you could send any speaking notes to hansardnotes@ parliament.uk.

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

I beg to move,

That the Committee has considered the draft British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021.

It is a genuine pleasure, as always, to serve under your chairmanship, Mr Hollobone. For the Committee’s convenience, I will henceforth refer to the draft statutory instrument as the British Nationality Act SI.

Free movement ended on 31 December 2020, under the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. The Act enabled us to deliver on manifesto promises to the British people and paved the way for the new points-based immigration system, which began operating from 1 January 2021. As part of the package of legislation for those changes, Parliament also approved the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. These regulations provide an additional six months, referred to as the grace period, in which a European economic area or Swiss national and their family members—it is not just EEA and Swiss nationals who acquire rights in terms of free movement—who are resident here by the end of the transition period can make an application to the EU settlement scheme by 30 June 2021 for the status they need to secure their rights under the citizens’ rights agreements and to have their existing EEA residents’ rights protected in the meantime.

Millions have applied for status under the EU settlement scheme, with more than 5 million grants of status having already been made, and thousands more being made every day. The immigration rules for the scheme, at appendix EU, confirm that, in line with the citizens’ rights agreements, an application can be made after the 30 June deadline where there are reasonable grounds for missing the deadline or for not being aware of the need to apply.

The British Nationality Act SI reflects the ending of the grace period on 30 June 2021 and the scope for an application to the EU settlement scheme to be made after that date, or to be decided after that date if it has been made before it. The SI protects nationality rights for children born after 30 June but before the outcome of such an application. The British Nationality Act SI is made specifically under the delegated regulation-making power in section 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act, the scope of which was debated extensively in both Houses during the passage of the legislation.

In keeping with the limitations of the section 5 powers, therefore, the draft SI amends primary UK legislation as a direct consequence of, or in connection with, the provisions in part 1 of the 2020 Act, which ended free movement. Hence it is applied only to children born after free movement and the grace period have ended. The effect of the legislative changes is to allow a child to become a British citizen automatically when born in the UK after 30 June 2021 and once the EU settlement scheme application submitted by their parent or parents is resolved through a grant of indefinite leave, known to the EU settlement scheme as settled status, which occurs after that birth.

That may occur in two scenarios. The first is where an application was submitted in time for the 30 June deadline but has not been resolved at the point when the child is born. The second is where an application is submitted after the 30 June deadline, based on reasonable grounds for missing it, and is resolved favourably after the child’s birth. In that scenario, the parent needs to demonstrate that they would have met the relevant eligibility requirements immediately before 1 July 2021 had they applied in time for the EU settlement scheme. The immigration rules and guidance already set out how any late applications to the EU settlement scheme should be considered and the approach that will be taken on what may constitute reasonable grounds. Again, I emphasise that the list of examples of “reasonable grounds” is non-exhaustive. Each application will be considered on its own merit, rather than needing to tick one of the boxes in that guidance.

Under the provisions, the child’s acquisition of British citizenship would take effect from the date of the successful grant of indefinite leave to a parent, from which point the parent will be considered settled in the UK. The section 5 powers do not permit us to put in a retrospective acquisition of nationality from the date of birth. We believe that this SI provides clear protection for a child in that position, without the need for them to make a separate nationality application or pay an associated fee. That reflects the unique position of those covered by it. In effect, there would be reasonable grounds for a late application if someone assumed that the combined factors of their having settled in the UK and of their child being born here meant that they were a British citizen at birth. That is very much why we see this as a unique area and provision. Given what I have outlined about late applications and the provision of decisions on those made in time, the change will come into force on 1 July, immediately after the end of the grace period, so there is no break in legal cover.

The British Nationality Act SI reflects the end of the grace period afforded to those EEA or Swiss nationals and their family members who require additional time to submit an application to the EU settlement scheme, and the impact that might have on a child’s nationality where such an application has not been resolved or even submitted at the date of birth. It ensures that there are no unintended consequences in terms of citizenship law from this generous provision. It is an essential step in protecting the status of children and their British citizenship—a status that someone may have had reasonable grounds to believe their child already had. I commend this statutory instrument to the Committee.

--- Later in debate ---

[Kevin Foster]

I thank my shadow for his overall constructive commentary and for the official Opposition’s support for the changes.

To give the hon. Gentleman the confirmation he seeks—I understand why he wants it—the BNA provision we are altering is the bit that refers to automatic recognition at birth. A child born to a British citizen or someone with permanent settled status here in the UK becomes a citizen as they are born. They do not need to register an application or to do anything in particular. People need to apply and register when other statuses are in play, but fundamentally automatic acquisition is very much what we have based the measure on. Rather than it being at the moment of birth, it is the moment when, under reasonable grounds, we say yes.

My oft-quoted example is of a child who is five today but who at 18 discovers that the council looking after them had not applied for their settled status. They then make an application to the Home Office, saying, “I was reasonably entitled to think my local authority had applied on my behalf,” and we say, “Yes, that is reasonable grounds.” If they have applied to university or for their first job and discovered that the application was not made, we say, “Yes, okay, you have settled status.” If they have had a child at 17, at that moment the child would become a British citizen—it is almost a birth event. There is therefore no need to apply for citizenship and there is no fee, because it just happens as a legal concept. In essence, we feel that many such cases will be where people might have assumed that their child was already British.

Where would that become relevant? As for many people, it might be when they apply for their first British passport. We would then go through that process to identify the grounds. This is not unique. We have a whole team in Her Majesty’s Passport Office who deal with derivative rights applications from someone whose parents were here as permanent residents, so it is an area with which the Passport Office is familiar.

I fully take on board the need to ensure that people are aware of the provisions, that those provisions are promoted and that in particular we ensure, working in an appropriate way with those parts of the NHS dealing with maternity, that people know their rights. I sometimes give the example of why we do not grant automatic settled status to children of parents with settled status in the UK. That is because, in virtually every case, we grant citizenship instead. These people do not need settled status because they are British citizens, and we cannot grant them an immigration status because they have right of abode instead.

One of the reasons we have gone through the process of the EU settlement scheme is to ensure good records. Even leaving aside people who are making late applications, when someone makes a passport application in years to come, it could be valuable and vital for them to know what their parents’ status was in the UK five or 10 years earlier. The whole reason we have gone through this process is so that there is a secure record of what status people hold.

A good comparator is that of Hong Kong and British nationals overseas. Next week, it will have been 24 years since the handover of Hong Kong to China. We still have the records—held, I believe, in HMPO—of everyone who was entitled to British national overseas status. We launched the route earlier this year and it could be quite a simple process to confirm that status as part of the application, even though it has now been over two decades since it was acquired.

Again, that is a lesson learned from back in the 1970s, when statuses were granted with no records taken. Yes, five or 10 years later, people could prove relatively easily their residence, where they were living and what they were doing here in the UK. But as time went on, as the lessons learned review showed, it became harder and harder for people to prove where they were living on 1 January 1973, and consequences flowed from that. We are keen to make sure that people can see and access their status, and that there is a clear record of it, for when children come to apply for their first British passport.

To be very clear, we were keen for that to be automatic, because with citizenship in particular we need to be specific. The issue of who is a British citizen should not really be open for debate. A person either applies for citizenship and is naturalised, or it is automatic when a particular event happens. Usually, that event is their birth. In this instance, a person might have assumed that their child was a British citizen at birth. Rather than take that away, we thought it better to alter the law so that their child has the status that they assumed existed—given their reasonable grounds for thinking that somebody had applied on their behalf for settled status—and is a British citizen, without any need for further action. Of course, we always encourage people to think of passports and documentation, but that child will be a British citizen and there will be no need for an application process. That will sit in primary legislation, because we are using the very narrow legal power that section 5 gives us to amend primary legislation purely in consequence of the change to free movement. We believe that to be appropriate in this instance, given that without the end of free movement—for the sake of argument—that person would have been British.

I hope that the shadow Minister understands why I cannot give a figure for how many people will be covered, because many of them have not even been conceived yet, let alone born. They are not even a twinkle in their mother or father’s eye. That could be some years in the future, but that is why we thought it important to make very clear now what the position would be, with no doubts around it. I appreciate some of the points that have been made. As hon. Members can imagine, we are working very closely with groups supporting the vulnerable to make sure that where EEA nationals come into contact with public services, there is very strong signposting towards the EUSS. To reassure the shadow Minister, we have already funded our grant-funded organisations up until September to ensure that there is advice and support available beyond—not just up to—the deadline for people who need that assistance.

In particular, work is being done with the NHS, particularly when people may need access to secondary healthcare. First, work is being done to facilitate automatic checks so that people who have EUSS are not being asked to take a status document to a hospital at a difficult time. Secondly, work is being done on the potential to engage when there are reasonable grounds to make a late application. Again, I emphasise that we will take a pragmatic and generous view of what constitute reasonable grounds where someone would clearly have qualified had they applied before the deadline.

I have gone through most of the issues. I hear the hon. Gentleman’s point about the large number of applications that we are currently working on. I have made clear that we are very keen to encourage as many people as possible. I know he will join me in that, but no one should hear stories that the large number of applications means that we will not be ready to accept others. We are absolutely ready to accept every application from everyone who is entitled to the status they deserve—our friends, our neighbours and those who came here in times of free movement. Our strong message to them is to get their applications in. If they have any doubts or problems, they can get in touch online, by phone or with one of our grant-funded organisations, which give people advice on getting their applications in.

We are deploying additional staff to work through the applications. To be very clear, it is on the face of law that when an application is made before 30 June, the person’s rights under law are protected beyond 30 June. That is in law and not just a commitment from the Home Office. We will take a proportionate and appropriate approach to those we encounter after 1 July who are entitled to EUSS and may have a reasonable ground for application, by giving them a window to make an application for EUSS. With that, I thank my shadow for his constructive comments.

Question put and agreed to.