Immigration Bill

Lord Avebury Excerpts

Monday 7th April 2014 Lords Chamber

[Baroness Hussein-Ece (LD)]

My Lords, I shall add a few words to this important debate. There cannot be many of us in your Lordships’ Chamber who have not been moved by the plight of these very vulnerable young people and children who have been treated so badly. We know the numbers are not huge; nevertheless they are significant. I welcome what the Government said earlier about introducing a pilot system of advocates. However, I do have a problem with how far this would go, having been a local authority councillor and a cabinet member with responsibility for child protection and for unaccompanied children who have often been trafficked. We know that this problem has been going on for many years—the status quo is simply not acceptable. We must act to protect these vulnerable young people.

As I understand it, an advocate is somebody who speaks on behalf of someone else, in this case the child. However, my worry is whether the advocate would have any legal responsibility in the way that a parent would, or, under the amendment, a guardian. The amendment gives the guardian some parental responsibility to act and take decisions in the best interests of the trafficked child, and to work across agencies. We know, as has already been said, how local authorities are stretched. Often a child will have three, four or five social workers in a year. That is not unusual. Very often, they simply get lost trying to navigate a very complex system.

The attraction of a guardian, which is so compelling in the amendment, is that this person would be required by the Secretary of State to take a far more official and statutory responsibility for individual young people and to act in their best interests. I hope that my noble friend will perhaps address this when he comes to respond. Would he be satisfied? Does he think that we should be satisfied that this six-month pilot scheme with advocates will go far enough to protect these very vulnerable children and young people? Otherwise, we would have to consider this very carefully in evaluation, and it may well be too late. What worries me is that we will have a six-month pilot period, followed by the evaluation, but all the time young people are falling between the cracks, going missing, not being picked up and not being protected. At the end of the day, that is what we want—for these children and young people to be protected as long as they are here in our care in this country.

[Lord Avebury (LD)]

My Lords, I will just pick up a point that my noble friend made about the difference in powers between the advocate on one side and the guardian on the other. The point was raised in the memorandum sent to us by the Refugee Children’s Consortium whether or not, without “legal powers”, there will be anyone,

“to instruct solicitors on a child’s behalf and ensure that decisions are made in their best interests”.

Would the advocate have those powers to instruct a solicitor on the child’s behalf? I take it that a guardian certainly would have those powers, which is an important difference between the two proposals that we now have before us.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, this has been interesting. This is not the first time that the House has discussed the issue, but I am pleased that it has been raised again for noble Lords to consider. I am also pleased that the noble Earl, Lord Sandwich, feels that we have travelled a long way. It certainly seems as if we have done so. I accept the feeling that lies behind the amendments and, if I urge the noble and learned Baroness, Lady Butler-Sloss, to withdraw her amendment, it will be on the grounds of things that I will tell her that the Government are doing, not because I think that her feeling on the issue is wrong.

The Government remain absolutely committed to stamping out all forms of modern slavery, and the work on this issue continues apace. I think my noble friend Lord McColl probably knows this already, but there are no half-measures in what we are going to propose. Last December, the Home Secretary published a draft Bill on modern slavery—the first of its kind in Europe—which will ensure the harshest penalties are available for offenders. It consolidates and simplifies existing offences, making the law easier to apply. At the heart of everything we do is the desire to support and protect the victims and to ensure that they receive the help they need to recover from their traumatic ordeal. I met with Frank Field last week, who noble Lords will know is working closely with the Home Office on this very issue, as indeed are a number of noble Lords.

We have listened to the concerns raised in this House and we agree that these children must be afforded the best support and protection from the state. Since this House took a view on this matter during the passage of the Children and Families Bill in December, the Government have announced a trial of specialist independent advocates for trafficked children. The trial will test the specialist independent advocates against the existing system, which will be supported by new, strengthened statutory guidance and regulation in this area. The noble Baroness, Lady Howarth, showed how important it was that this new system should be able to work reconciled with our existing system, so that we get the best from it. I say to the noble and learned Baroness, Lady Butler-Sloss, that these specialist, dedicated advocates will be experts in trafficking, and completely independent of the local authority and social services department. Their role will be to steer the child through the complexity of the multiple government agencies—not just local-authority care, immigration and criminal justice but all government departments. This is to ensure that the child’s voice is heard.

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[Lord Taylor of Holbeach]

I see the point that the noble Baroness is making. I see no reason why not. If it has security connotations then perhaps it cannot be made public. However, our idea is that the independent reviewer should not be denied information that it considers important to perform its statutory duties as required by our amendment.

The noble Baroness asked about an example of where an individual would be deprived of citizenship on grounds of economic well-being. I replied to the noble Baroness, Lady Smith, on 26 March and a copy would have been sent to the noble Baroness, Lady Lister. In my letter I agreed that any situation which threatens vital economic assets is likely to be covered by terrorism considerations, but for that very reason we cannot rule out the possibility that it may be properly considered under this power.

The noble Baroness asked whether this goes against the UK’s international obligations to those countries that allow entry to British citizens who are subsequently deprived of that nationality. In the vast majority of cases, it does not. However, the Government note that the 1930 special protocol concerning statelessness created limited obligations in this respect. These obligations are limited to the 11 states that have ratified the protocol and apply only if certain conditions are met.

A number of noble Lords mentioned Professor Goodwin-Gill’s paper and his illustration that it was contrary to international law. Professor Goodwin-Gill has some expertise on this topic since he was part of the legal team representing Al-Jedda, but on this topic we believe that he is wrong. He based his analysis in large part on the opinion of Judge Read in the 1955 International Court of Justice case of Nottebohm, but Judge Read’s judgment was a dissenting judgment. We cannot accept the conclusions which Professor Goodwin-Gill derived from it. There is a very limited basis for an obligation to readmit people deprived of citizenship in very limited circumstances, as set out in Article 1 of the 1930 special protocol concerning statelessness. The limited number of state parties that have ratified this convention, together with the lack of state practice conforming to its provisions by states that are not party to the convention, shows that it does not constitute customary international law.

[Lord Avebury]

I am most grateful to my noble friend. As he has gone into some detail on Professor Guy Goodwin-Gill’s paper, would it be possible for him to lodge a paper in the Library, commenting on all the points raised in it? The Minister also quoted the views of the UK representative when the special protocol was agreed, who was very much in support of the idea that depriving people of their citizenship while they were abroad is illegal.

[Lord Taylor of Holbeach]

I will be happy to do that. However, I am conscious that noble Lords have been asking for answers today and to give what my noble friend has asked for would probably take the rest of the evening. I do not intend to do that, but I will do it in writing and lodge a copy in the Library.

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Moved by

[Lord Avebury]

57E: After Clause 64, insert the following new Clause—
“Descent through the female line
(1) Section 4C of the British Nationality Act 1981 (acquisition by registration: certain persons born between 1961 and 1983) is amended as follows.
(2) In subsection (3A)(a), after “father,” omit “and”.
(3) In subsection (3A)(b), at beginning insert “where material,”.
(4) In subsection (3A)(b), at end insert—
“(c) where material—(i) the applicant’s mother or father (“the parent in question”) would have acquired citizenship by descent from a mother on the assumption that, as applied to the parent in question, section 5 or 12(2) of, or paragraph 3 of Schedule 3 to, the 1948 Act (as the case may be) provided for citizenship by descent from a mother in the same terms as it provided for citizenship by descent from a father, and references in that provision to a father were references to the parent in question’s mother, or(ii) the parent in question would have acquired a nationality status by descent from a mother on the assumption that, as applied to the parent in question, a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and references in that provision to a father were references to the parent in question’s mother”.(5) In subsection (3B)(a), after “mother,” omit “and”.
(6) In subsection (3B)(b), at beginning insert “where material”.
(7) In subsection (3B)(b), at end insert—
“(c) where material, the parent in question would have acquired a nationality status by descent from a mother on the assumption that, as applied to the parent in question, a provision of the law at some time before 1st January 1949 which provided for a nationality status to be acquired by descent from a father provided in the same terms for its acquisition by descent from a mother, and references in that provision to a father were references to the parent in question’s mother”.”

[Lord Avebury]

My Lords, this amendment deals with persons born abroad prior to 1983 who would have been British today if they had had a paternal grandfather born in the UK, or who would have been entitled to become British citizens by registration today if they had had a maternal grandfather born in the UK, instead of a paternal grandmother or maternal grandmother so born.

Before 1983, a person born abroad to a British father automatically became a British citizen by descent. In certain cases, the children of a citizen by descent also became citizens by descent, automatically or conditionally. So, for example, a person born outside the UK and colonies or, before 1949, outside Her Majesty’s dominions, and whose father was also so born, was a citizen by descent if his paternal grandfather was born in the UK. However, a person born abroad to a British mother and a foreign father had no right to UK citizenship, until this anomaly was dealt with for the first generation in the Nationality, Immigration and Asylum Act 2002 by the insertion of Section 4C in the British Nationality Act 1981.

However, there remains discrimination in the next generation. A person born abroad before 1983, whose maternal grandfather was born in the UK, so that her mother born abroad was also British, has access to British citizenship through registration under Section 4C. Yet the person whose maternal grandmother was born in the UK, and whose father or mother born abroad did not acquire British citizenship, has no right to UK citizenship. To put it simply, there is discrimination in our law according to whether your grandfather or grandmother was British by birth, all other circumstances being the same.

For this reason, the UK has had to enter a reservation to our ratification of the Convention for the Elimination of All Forms of Discrimination Against Women, Article 9(2) of which provides that:

“States Parties shall grant women equal rights with men with respect to the nationality of their children”.

Our reservation says that the UK’s acceptance of Article 9 shall not,

“be taken to invalidate the continuation of certain temporary or transitional provisions which will continue”,

beyond 1 January 1983. My noble friend would probably agree that a reservation which has lasted for 31 years cannot rightly be described as temporary or transitional, and that our commitment to gender equality is incompatible with the existence in our nationality law of a provision, the removal of which is unlikely to affect more than a few people. I beg to move.

[Lord Taylor of Holbeach]

My Lords, I am aware that my noble friend has long campaigned about the citizenship rights of children of British mothers, and indeed he was involved in getting us to where we are today in having a route for those born before 1983 to acquire the status that they would have had had women been able to pass on citizenship in the same way as men. However, as my noble friend will recognise, nationality law is complex and it is not straightforward to legislate to cater for all the anomalies that exist.

Before I discuss the amendment, noble Lords will remember that my noble friend introduced an amendment in Committee concerning the citizenship position of illegitimate children of British fathers. I committed to consider the matter further. I have not forgotten. It is in hand and I am continuing to look at this in conjunction with my noble friend. He will have seen our first two attempts to deal with this matter and he can be assured that yet another, more straightforward version will be with him shortly. The intention is that an amendment on the issue will be brought forward at Third Reading.

The amendment proposed by my noble friend today seeks, as he said, to amend Section 4C of the British Nationality Act 1981 to allow a person to acquire British citizenship through their grandmother if they would have been able to do so had women been able to pass on citizenship in the same way as men. I understand that citizenship could normally be passed on for one generation born overseas but that there are a limited number of cases where a person could acquire citizenship on the basis of their grandfather’s citizenship. An example of this might be where the grandfather was born in the UK and either his child or grandchild was born in a country, such as a UK protectorate, where the Crown exercised extraterritorial jurisdiction.

Although I recognise what my noble friend is trying to achieve here, I reiterate the point that was made when this issue was debated in the past: we can only go so far to right the wrongs of history. The original intention of Section 4C was to cater for the children of UK-born women, but the current legislation affects all children of British women. However, we think that there would be difficulties in extending this further to cover the grandchildren of British women as that could result in even more complexities. I think that my noble friend will recognise the complexity of the law in this area.

We recognise that there are some people who acquired citizenship through a grandfather and others who could not do so through a grandmother. However, where families have maintained a close and ongoing connection with the UK, those grandchildren could have acquired British citizenship through another route, such as registration or naturalisation based on a period of residence here. Those whose parents have never lived in the UK and have not established their own connections here are likely to have the citizenship of the country of their birth or residence.

I know that this will be disappointing to my noble friend but I cannot accept his amendment. However, I thank him for bringing it forward and for giving me an opportunity to explain the Government’s position.

[Lord Avebury]

My Lords, I recognise the Minister’s phrase about not being able to rectify all the wrongs of history but I do not agree with that expression. I think that we ought to remedy the wrongs of history and this would have been an excellent opportunity to do so in the case of what I think my noble friend acknowledges would be a very small number of people. However, I also recognise the realities of the situation—that, unlike the two previous amendments on which there were Divisions, I would not be so successful if I were to seek the opinion of the House.

Therefore, I will withdraw the amendment but, first, I should like to say how grateful I am to my noble friend the Minister for what he said about the amendment to enable illegitimate children born before 1983 to acquire British citizenship in circumstances where they would already have been able to do so if they had been legitimate. I hope that in our final draft, following the previous two, which the Minister mentioned, we will give the Secretary of State discretion to waive requirements that may be imposed on a parent in the event of the parent being unco-operative or no longer able to fulfil the requirement by reason of incapacity or death. I am also concerned that in the final draft we should avoid any ambiguity between registration and consular registration and avoid imposing any consular registration requirements which the parents of an illegitimate child might not have met, bearing in mind the stigma attached to illegitimacy in those days.

When my noble friend comes to produce the third draft at Third Reading, I should be most grateful if those points could be borne in mind. Meanwhile, I beg leave to withdraw the amendment.

Amendment 57E withdrawn.