Nationality and Borders Bill

Lord Russell of Liverpool Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

Moved by

[Lord Russell of Liverpool]

2: Clause 7, page 9, line 36, at end insert—
“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statement
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.

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[Lord Russell of Liverpool (CB)]

My Lords, your Lordships will be delighted to know that I will be extremely brief in moving Amendment 2. I thank the noble Baroness, Lady Hamwee, who moved this amendment in Committee in my absence when I was laid low by some lurgy that has thankfully now gone. I declare that I am a governor of Coram, the children’s charity; this includes the Coram Children’s Legal Centre and CoramBAAF, which has been quite involved in briefing for this amendment. I am pleased to tell the House the good news that, amazingly, we have made some progress between Committee and Report.

The amendment highlights an anomaly in that British nationality law is not in alignment with adoption law in England, Wales and Scotland. A very small number of children have fallen foul of a Catch-22 situation whereby the automatic right to UK nationality has been denied them. This is because, while the adoption proceedings began before their 18th birthday, the adoption was not ratified until after. The noble Baroness, Lady Hamwee, Edward Timpson from the other place, the Immigration Law Practitioners Association, the two parts of Coram that I referred to earlier and I have been working with the Minister and her colleague in another place—Kevin Foster, the Minister with responsibility for this area—and we are pleased to be able to say that we seem to have found a way through this situation. This was outlined in a letter sent to Edward Timpson and me this morning. We look forward to the Minister replying in as much detail as possible when winding up.

The Government are proposing to deal with these cases through using Clause 7 in the Bill, putting in place detailed guidance—I quote from the letter—to

“help caseworkers assess applications fairly and consistently and to provide applicants with guidance when applications are likely to be granted.”

The letter continues:

“We are still in the process of developing guidance but, given that you would understandably want assurances on this, I will place a copy of this letter in the Library of the House confirming this intention.”


I am most grateful to the Minister and his Home Office colleagues for their co-operation and at least their willingness to listen. However, I have some questions arising from the letter, to which I would be grateful for answers, either at the Dispatch Box or, if that is not possible, in writing as soon as possible hereafter.

First, in Clause 7, would adopted children—the examples in subsection (2) do not include adoption—come under

“(a) historical legislative unfairness” or

(b) an act or omission of a public authority, or

(c) exceptional circumstances”?

Would the Government consider putting adopted children over 18 in primary legislation as an exceptional circumstance? This would be more secure than guidance, which could be changed without parliamentary scrutiny.

The letter mentions any delays that were beyond the parent/child’s control. If this means delay of the adoption, it seems to suggest that there is an obligation to adopt before the 18th birthday. This is not in line with current adoption law. The letter says that new guidance will be

“subject to there not being any adverse factors”.

While I understand that this is meant to cover situations where, for example, the individual might have a history of offending, what about a real-life example where the child being adopted has no immigration status? This is in no way, shape or form the child’s fault. Would this be held against them as an adverse factor? Surely not, so clarification on that would be appreciated.

I expect that I am primarily going to leave this debate open to those noble Lords discussing Amendment 21. I hope that the Minister will be able to give as full and comprehensive an answer as possible when he winds up. We shall listen to, and subsequently read, what he says with great care. I beg to move.

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Children who cannot qualify under the stateless provision will be able to apply for citizenship once their parent becomes settled, or otherwise if they reach the age of 10. They will be in the same position as other children born in the UK to non-settled parents. I therefore invite noble Lords not to press their amendments.

[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister for his response. I will not deal directly with Amendment 21, whose time will come in due course, but will respond on Amendment 2.

I understand that, given the current Government’s slightly prickly relationship with the Government north of Hadrian’s Wall, issues to do with the extent of UK legislative authority, when it comes to possibly clashing with Edinburgh’s idea of what its own jurisdiction should be, are a tricky area. I understand why they do not wish to tread there too much. It is a pity, though, because we are talking about the interests of a small group of children rather than the niceties of bouts between the devolved Administrations and Westminster. I take the point.

I thank the Minister for confirming that Clause 7 will be used and guidance produced. In addition, I understand that Edward Timpson found out that apparently—it was a surprise as much to the Home Office as to anybody else—in its office in Liverpool there is a specialist adoption unit whose remit is to look specifically at adoption issues. Kevin Foster said that the unit will be involved under this guidance and that any of the types of cases we are talking about that are flagged up will be brought to the attention of this adoption unit, which I hope will have enough expertise, experience and specialism to be able to really understand the situation and to avoid any mistakes of the kind we have evidenced in the past happening in future. When the guidance is forthcoming, I would be grateful if that could be made clear.

I am also grateful for the confirmation that a child’s immigration status would not be considered an adverse factor when it comes to considering their case. I thank Edward Timpson very much for all the work he has done and the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, among others, for their support.

I do not know how quickly the draft guidance will be available—does the Minister think it might be available before Third Reading? Clearly, it would be very helpful if it were, and rather unhelpful if not, so could the Minister come back to me as quickly as possible with confirmation on when it will be ready? Will he and the noble Baroness commit to a meeting with those of us most directly concerned, including Edward Timpson, to review this and perhaps help guide the draft guidance in the right direction? That would be much appreciated. If we are unable to resolve this situation satisfactorily before Third Reading, we shall be back, but in the meantime, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Furthermore, the adjudication of disputes between member states about the convention by the International Court of Justice, which is provided for in Article 38 of the convention, presupposes a common set of values and obligations. You cannot have a court determining something if there is no agreement by anyone, or agreement by only a few people, because they are all following their own interpretations at any one moment in time, according to the government policies of the individual states. All this is a matter of common sense and pretty obvious. People have referred to Ukraine. This is the paradigm example of why this whole approach of the Government’s will not work in relation to “directly”. We are expecting the countries immediately surrounding Ukraine, particularly Poland, to absorb the 500,000-odd people, whereas this country, we are told, will accept an amount of just hundreds who have a close connection with a relative here. Is that consistent with the humanitarian aims of the convention? You would be a very strange person to say that it was. This is a plain breach of the convention—as plain as could be—which must be excluded from the Bill.

[Lord Russell of Liverpool (CB)]

My Lords, I was not intending to speak in this debate but, rather like the noble Baroness, Lady Jones, I was prompted to by some of the interventions from behind the Front Bench, so as a non-politician I will speak briefly about the political context used to justify some of this rather egregious legislation.

I have the privilege of being the only non-political member of the UK delegation to the Parliamentary Assembly of the Council of Europe. The Council of Europe is nothing to do with the EU. It is the foremost human rights organisation in our continent, with 47 countries until Friday, when we ejected Russia, so we are now down to 46.

Although I am independent, and I am not a politician, to function there you have to be part of a political grouping, so I sit with what happens to be the political grouping of the Government of the United Kingdom of today: the Conservative Party. The political grouping it is in is called the European Conservatives Group and Democratic Alliance. The group that we—all the Conservative MPs and Peers and I—sit in when we are in Strasbourg contains some of the political parties that the noble Lord, Lord Horam, referred to by name, saying we did not want to go that way.

In Strasbourg, the Conservative Party sits with the AfD, the laughingly named Sweden Democrats, who are effectively neo-fascists, and, from my wife’s native Italy, the Fratelli d’Italia, who are the direct descents of Mussolini, and the Lega Nord, led by the wonderful Mr Salvini, usually seen on the beach. These are not good bedfellows. Some of the comments that I hear from politicians, particularly from another place but also from some members of the Cabinet, are remarkably similar to some of the views I hear in the meeting room in Strasbourg when some of these individuals are speaking—views which most of us would find pretty horrendous but one steels oneself to listen to because, I suspect, they are probably reflecting pretty accurately the views of the people who voted them into office.

I will briefly refer to being in office. My great-grandfather, who was Prime Minister three times, said, “You are not elected into power; you are elected into office. You are elected into office as much to represent those who didn’t vote for you, or who didn’t vote at all, as those who did vote for you”. What we are hearing is a sort of “I’m all right, Jack” view of the world.

My wife’s native country of Italy is a contiguous country, in the way referred to by my noble friend Lord Kerr. Italy’s citizens did not want or vote for a large migration from north Africa to come. They may not like it, but they have accepted it; they really do not have any choice. Part of the reason that they are having a lot of problems and they are quite cross with countries such as ours is that we have completely and utterly refused, as have most other EU countries, to share the burden equally. The noble Lord, Lord Coaker, and I have been to Jordan, another contiguous country. We went to Zaatari, the largest refugee camp for Syrians, in northern Jordan, where some 80,000 men, women and many children are huddled in reasonable conditions, thanks to the UNHCR. In Lebanon and Turkey no citizen voted for this, but that is what they have ended up with. We are a very long way from being contiguous but we are behaving in a way which, frankly, I find shameful.

The great-grandfather I referred to earlier was involved in raising the equivalent of about £34 million in 1939 after the Kristallnacht in Germany, which enabled a great many Kindertransport children to come to this country—that is what the money was used for. He would be ashamed by what is going on in this Chamber tonight.

[Lord Green of Deddington (CB)]

My Lords, I will just say a word in support of what the noble Lord, Lord Horam, said, about public opinion. We have to be careful here. A substantial slice of public opinion is concerned about the scale and nature of the inflow of people claiming to be refugees, and the shambles in the channel at the moment is no help. We need to bear that in mind in all our discussions. I do not think that the policy itself will work, and I do not think that the division into this or the other class of refugee will help. But let us not, for goodness’ sake, get carried away by our own righteousness and forget that there are a lot of people in this country who are not in situations as comfortable as ours who look to us to make sure that, in so far as there is an input of refugees, they are genuine.