British Nationality Act 1981 (Remedial) Order 2019

Lord Dholakia Excerpts

Tuesday 23rd July 2019 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, the noble Baroness, Lady Lister, in her usual style, has once again taken the wind out of my sails, so I will sail in her slipstream. My commiserations to the Minister, as she has the second instalment of the “Lister and Russell show” today.

The Minister commented that the JCHR had gone slightly outside its brief in its comments on this draft order. I would like to suggest to her why that might have seemed the right thing to do. The subjects, conclusions and recommendations it raises on pages 23 to 25 of the report, if you bother to read them, are fairly sobering and somewhat shocking. They are not new; they are issues that have been raised repeatedly in a variety of fora. They will not go away, because again and again we see and hear evidence of what I assume and hope are the unintended consequences of the Home Office’s multifaceted approach to trying to constrain, manage and discourage non-UK nationals and their dependants, including large numbers of children—some of whom have the absolute right to be British citizens—from becoming British citizens. The reason the JCHR has commented on that is that it feels, as many of us do, that that is shocking and simply unacceptable.

While I suspect that the immune system of the Home Office is in a demoralisingly parlous state, I also observe that the cumulative layers of scar tissue it has acquired over the last few years seem to have rendered it incapable of remembering above all that its activities which impact on children are prescribed under British and international law, which say very clearly what the rights of those children are. They make it very clear that those rights have to be first and foremost in every thought and action of the Home Office on our behalf as citizens of this country.

It is unacceptable that the immigration status of parents, whether it is up for argument or not, should have such a material and, in many cases, negative effect on their children, who have done nothing to deserve such treatment. Under international law and the European convention on the rights of the child, and the UN version, they have an absolute right to be protected. I cannot understand why the Home Office seems incapable of recognising this and putting it at the forefront of all it does.

I have three questions for the Minister, and if she is unable to answer them this afternoon, I should be delighted if she had the time and courtesy to write to me. The first is on the subject of citizenship. Do the Government recognise that British citizenship and indefinite leave to remain are simply not the same in terms of the entitlements and security they bring, and that having British citizenship for those entitled to it is a fundamental part of a child’s right to an identity?

Secondly, to return to the perennial issue of citizenship fees and the lack of fee waivers, the Government have, I am glad to say, committed to ensure that the issues highlighted in the Independent Chief Inspector of Borders and Immigration’s report on the charging for services will be addressed. They said that the recommendations will be,

“factored into spending considerations on fees”,

and undertook to conduct further consultation. Will the Government commit to completing that review even if, as I suspect is entirely possible, the comprehensive spending review is confirmed as being delayed? These children cannot and should not wait.

Thirdly, on local authority duties, do the Government not recognise that local authorities have a duty as corporate parents to support children in care and to secure the most permanent status for which they are eligible? If so, do they accept that to charge children in care for citizenship applications is a cost shift from the Home Office to local authorities that creates extra financial pressures on already cash-strapped local authorities? It is robbing Peter to pay Paul and it is simply unfair.

[Lord Dholakia (LD)]

My Lords, I support what has been said so far. The Minister rightly pointed out that this is a remedial order to Parliament to correct incompatibilities in the British Nationality Act 1981 with the European Convention on Human Rights as identified by the courts in recent cases.

The question remains as to how we got into this mess in the first place. So deeply entrenched has been the Home Office in keeping people out of the United Kingdom that previous policies lacked basic concern about the rights and values of people wishing to settle here. Common sense would have told the Government that they were entitled to the incompatibilities being removed at the earliest possible occasion. There are no ifs and buts in this matter: it has taken 28 years to recognise this anomaly and the sooner it is put right, the better.

None of us are surprised that, as the British and British overseas citizenship rights campaign tells me, once again the Home Office is stalling and wants to push for a better legislative opportunity, for which the Home Secretary must look. Meanwhile, children of BOT descent born to unmarried BOT fathers remain shunned and left out in the cold, preventing them being officially embraced by their unmarried BOT fathers’ homelands. It is plainly wrong and should never have been allowed to happen in the first place.

Recent information has revealed areas of serious concern regarding immigration and nationality issues. We were concerned about the scandal of Windrush settlers who were denied proper documentation when they arrived here. This week, we read about the treatment of immigration detainees by private contractors who inflicted misery in our detention centres. They made millions of pounds’ profit from the services they provided. For this to happen at a time when we took great pride in promoting antislavery legislation in the United Kingdom shames all of us who are keen to promote dignity and respect for detainees.

This weekend, the Sunday Times reported on cash for British passports for those who can afford to pay millions of pounds into government coffers. You may ask what this has to do with the order before us. The aim for each of the above group is to obtain British nationality so that they can lead a decent life in the United Kingdom. Why is it taking us so long to rectify an anomaly identified by our courts?

We accept that a number of the recommendations are outside the scope of the remedial order before us. There is no need to wait for another opportunity to revisit nationality laws. We should be actively promoting new legislation to rectify anomalies identified by the JCHR. This order gives us the opportunity to bring forward sooner rather than later legislation that would remedy the deep hurt and sense of rejection felt by the affected children, who are now adults. They simply want to be respected and treated fairly. It is unacceptable that discrimination in acquiring British nationality persists. We should also use this opportunity to consolidate all immigration and nationality issues and proof these against anti-discrimination legislation. We welcome a wider consultation and ask the Minister to set up a timetable for this exercise.

A number of issues that have been identified in the debate so far need to be considered. One such is the “good character” requirement in the context of seeking British nationality. This applies to those aged 10 or over, as that is the age of criminal responsibility. Is the Minister aware that my Private Member’s Bill on this matter has gone through all stages in your Lordships’ House and will be dealt with by Wera Hobhouse MP in the other place? I ask the Minister to await the outcome before specifying that the Government do not consider it appropriate to adjust the “good character” policy so that certain acts become inadmissible when assessing a minor’s suitability for British citizenship. No one would wish to ignore some heinous crimes, but great care must be taken to look at the proportionality of the crime and its impact, so that applicants are less likely to meet the threshold for refusal of citizenship.

My final point relates to the fees issue, which was also identified by previous speakers. My noble friend Lady Hamwee—she would have loved to speak today as she was a member of the JCHR, but she is at a Select Committee meeting and is unable to be here—told me that the size of the fees can mean that a family is able to pay for one child but not stretch to the other. When is the Minister going to look into this? Does she accept that citizenship is not something to be granted on a discretionary basis but an entitlement when all the conditions are met? I look forward to the Minister’s comments.

[Lord Rosser (Lab)]

I thank the Minister for explaining the content and purpose of this draft order, which we support as it corrects a discriminatory and unlawful requirement. The Joint Committee on Human Rights has also recommended that the draft order be approved. I will say, before I go any further, that I have nothing new to say that has not been said already. Nevertheless, I still have a determination to say it.

British nationality law granted automatic citizenship by descent only to children born in wedlock to British fathers. Changes have allowed children born to a British mother or father to become a British citizen by descent, irrespective of whether their parents were married, but there remained a requirement to prove “good character” in cases where the applicant is 10 or older. Following the expression of concerns about this continuing requirement—and, probably more decisively, court judgments of incompatibility with the European Convention on Human Rights—this draft order finally removes the “good character” test for young people seeking their right to British citizenship. Can the Government confirm that they consider this draft order to be compatible with human rights?

While approving this draft order, the Joint Committee on Human Rights made a number of other recommendations in its second report on the order, published on 9 July, which in my view fully justifies our referring to the content of the JCHR report when discussing this order and expecting a government response, either now or later, to what is in that report. It would be helpful if the Government could indicate what their response is to the conclusions and recommendations set out in the second JCHR report on this draft order, published on 9 July.

As has already been said, the JCHR’s conclusions and recommendations include the following:

“The Government should review the application of the good character test to children with a right to British citizenship who have grown up in the UK”,


particularly in the light of the,

“obligation to consider the best interests of the child”.

The JCHR has also expressed the view that the Home Office is leaving itself open to successful legal challenge by requiring from children against whom it has previously discriminated additional requirements, such as good character, that would not have applied had they been able to apply as young children when they were under the age of 10. The committee recommended that the Home Office reconsider its position in respect of children it had previously discriminated against, so that they can obtain British nationality without discrimination or superfluous requirements.