Nationality and Borders Bill (Sixth sitting)

Neil Coyle Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Tom Pursglove]

I am grateful to the hon. Gentleman for the point that he raises. Broadly speaking, there is a view that the discretionary approach to cases is helpful in ensuring that we can reach the right decision in individual cases and that we are able to take into full account, in general terms, all the relevant factors.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

Is it the Minister’s intention that the Government will publish the grounds on which decisions are made with discretionary purposes for each decision, regardless of whether they are successful or not?

[Tom Pursglove]

I will come back to the point that the hon. Gentleman raises but, as I say, there is a view that taking a discretionary approach to cases is helpful in reaching the correct decisions, and that the circumstances of individual cases are properly taken into account. There is precedent in the British Nationality Act 1981 for applications to be considered on a discretionary basis—for example, naturalisation is a discretionary provision. The law states that the Home Secretary may naturalise a person if she thinks fit and that person meets the statutory requirements. Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised, and that is relevant to the point that the hon. Gentleman raises.

--- Later in debate ---

[Neil Coyle]

It is in part, but publishing the full grounds will help to determine whether people seek to take a case or not.

My further question is about the equality impact assessment. As I touched on this morning, the Government are suggesting that they will extend access to legal aid through the Bill. Is the Government’s intention that legal aid will be extended for this specific purpose, regardless of whether people can make a successful claim or not?

[Tom Pursglove]

Again, I am grateful to the hon. Gentleman for his question. The key point is that through the Bill, we are improving access to justice. Clearly, the improved access to justice offer is very relevant to the one-stop shop proposals that we are taking forward in the Bill and which we will no doubt debate in greater detail when we reach later clauses.

[Neil Coyle]

Is that a yes or no?

[Tom Pursglove]

We will no doubt debate this in great detail in due course. As I say, we are putting in place an improved access to justice offer more generally through the Bill.

[Tom Pursglove]

I want to pick up the points that have been raised by the hon. Members for Bermondsey and for Old Southwark and for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, the guidance is a very important element of the immigration system, so that people can understand very clearly what is required and precisely how cases will be handled. I am always in favour of trying to make such matters more transparent and to improve guidance wherever we can, and that is always ongoing work. I take on board the point that has been raised, and I will certainly reflect on it.

As I say, Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised. This works, and we intend that published guidance will also be available for the new adult registration route. The fact that the Home Secretary is not obliged to naturalise a person does not therefore impact practically on most applicants. However, we want to maintain the ability to refuse applications from people who might meet the requirements, but are nevertheless unsuitable to become British citizens.

Where registration is set out in legislation as an entitlement, it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. Because of the historical nature of citizenship and the fact that issues can crop up that we might not have been aware of, we need the flexibility to be able to consider someone’s circumstances without being overly prescriptive. Equally, we recognise that people can be affected by a number of circumstances, which may be difficult to set out in detail. We are not making this a discretionary provision in order to refuse deserving people, but to allow us to respond to situations that cannot reasonably be foreseen.

I understand that hon. Members may wish to seek assurance that people who have missed out in the past will be granted citizenship, but we think that this can be achieved through a discretionary route, which will allow us to take into account all the circumstances of a case. That is why we are introducing the various provisions in the Bill in the first place: to right those historical wrongs. We want this to work.

On amendment 30, again, I thank the hon. Members for tabling the amendment. The new adult discretionary registration provision will allow the Home Secretary to grant British citizenship to anyone who would have been, or would have been able to become, a British citizen, but for historical legislative unfairness, an act or omission of a public authority, or the exceptional circumstances in play. I understand hon. Members’ concerns that that power should be used fairly and consistently, which is right.

Each case will be considered on its own merits, taking into account the particular circumstances of that person, including the reasons they were unable to become a British citizen automatically, through registration or through naturalisation. On that basis it would be unnecessary to have a legislative clause that effectively causes us to treat like cases in a similar way, because applications will be decided in line with the legislation and guidance.

I have already mentioned that we intend to publish caseworker guidance setting out when we expect that this power might be used and the sort of circumstances we will take into account. Of course, that is done very transparently and can be seen by hon. Members and by people out there seeking access to those routes. As I think is my colleagues’ intended purpose in proposing the amendment, that will help to maintain consistency in decision making.

However, I am not convinced that that would be helped by a statutory requirement to produce or amend guidance every time a person with different circumstances is registered. There may be concerns about reflecting an individual’s circumstances in published guidance, even if anonymised. We will reflect the overarching principles in guidance and amend as appropriate. Guidance will continue to be published on the gov.UK website. I can also assure hon. Members that work is done within UK Visas and Immigration to ensure consistency of decision making, particularly when a new route is introduced, and I think that that is right and proper.

I do not think we can commit in statute to publicise any grants of citizenship to people in a similar position. As I have said, we will publish guidance setting out the approach we will take and make it available to potential applicants, but it would not be right to impose a statutory requirement to do so. Indeed, some of those registered will be in unique positions and it would not be possible to identify others who might qualify on the same basis.

The reporting obligation set out in the amendment would require the Home Secretary each year to report any historical legislative unfairness that had been identified in registering a person under clause 7 and say how she intends to correct it. Perhaps it would help to clarify that the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario.

[Neil Coyle]

I thought the Minister was one of those who believed in Parliament taking back control, not the Executive having more control, but let me have one more attempt at the legal aid question. This is not just about the circumstances of the individuals involved—we have heard some distressing cases today—but about the costs imposed in particular on councils, which are using emergency services to support people who might otherwise qualify for support. If legal aid were immediately available for everyone affected, those cases could be resolved much more quickly. Given the complexity the Bill is imposing, it seems as if it should be an actual requirement that that support be available. Let me try again: will legal aid be extended to everyone facing these circumstances as a result of this legislation?

[Tom Pursglove]

I am grateful to the hon. Gentleman for his question and I will visit that in my later remarks, if I may. He is right to say that I think it is right that Parliament took back control. That is a debate we have had on many occasions and no doubt will continue to have in the years ahead. I am a member of the Government, but I still believe very strongly in parliamentary sovereignty and the role of Parliament in decision making.

To clarify, the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario, some of which may affect only a very small number of individuals. This is in fact the way we intend to address those situations, and it may not necessarily be appropriate to introduce additional measures to do so. As such, I do not see that specifying such a report in legislation would be helpful. In terms of addressing unfairness, this provision does not give a far-reaching power—it is much narrower than the discretion the Home Secretary has to register a child under section 3(1) of the British Nationality Act 1981. It does, however, reflect our desire to address historical injustices, as is reflected in all of the first eight clauses. I therefore ask hon. Members not to press amendment 30.

I am grateful to hon. Members for tabling amendment 14, which replicates amendment 13 for British overseas territories citizenship. I set out in response to the earlier amendment why we wanted this to be a discretionary provision, rather than creating an obligation to register. The same arguments apply here. Turning to amendment 31, I have set out why we could not accept an earlier amendment, and the same arguments apply here. I hope that hon. Members will not press amendment 31 either. On amendment 34, new clause 12 seeks to create a discretionary adult registration route for a person to become a British overseas citizen.

--- Later in debate ---

Points were made about raising awareness and transparency under the clause. We agree that we need to be clear about how discretion is used in individual cases. The intention is to clarify that in the guidance. We will also consider how we can raise awareness on an ongoing basis, which is a point that we have touched on previously but which bears repeating. Clearly, the whole purpose of making the changes through the legislation is to get on and deliver on them, ensuring that people are able to access them readily and that historical wrongs are righted.

[Neil Coyle]

If I heard the Minister correctly, he is suggesting that someone should pursue their rights through the Equality and Human Rights Commission, but that process would take years and could cost millions if the Government were opposing what that individual was seeking. Is it not incumbent on the Government, under the Equality Act 2010, to get things right up front? Would that not save a lot of time and money, and prevent a lot of desperate situations from emerging?

[Tom Pursglove]

The point that I would make is that we keep evolving circumstances and individual cases under review. It is right that we consider cases individually and properly take account of their individual circumstances. That is why we are arguing strongly that the discretionary means of tackling this is the correct way to do so. I am confident that through the provisions, we will right many historical injustices and wrongs, and that is something we should all welcome.

In the light of the debate that we had about fees, whether or not applications will be free under the clause is an important point. That will be an issue for the appropriate fees regulations in due course. As I set out when dealing with earlier clauses, those regulations will be subject to parliamentary scrutiny. I note the views that have been strongly expressed today. Members will have heard what I have said about this previously, and I would be very happy to engage with them in the development of those regulations that we would then bring forward. With that, I would ask hon. Members not to press their amendments.

--- Later in debate ---

[Anne McLaughlin]

I want to acknowledge the people who were caught up in the Windrush scandal and their tenacity in hanging on in there and sticking it out. I also want to recognise all the different campaign groups, activists and supporters, friends and families of those who suffered so much because of the scandal. I want to take every chance I get to put that on the record.

I regularly talk about feeling frustrated in this place when I passionately argue the case for something or someone but almost never get anywhere—sitting here today, it is of course always going to be nine Members on the Government side and seven on the Opposition side—but I underestimated the importance that people place on MPs speaking up for them and acknowledging their injustice, and I never will again. I did not think it would make such a difference, but it really does make a huge difference to people. That is why, as the SNP’s immigration spokesperson, I take any opportunity to say that what happened to the people who came here as part of the Windrush generation was utterly wrong. Even the solutions went wrong, and there were delays and complications. This clause, today, is good, but that is only right.

[Neil Coyle]

Does the hon. Member share my slight disappointment that it does not go further? Other countries bestow naturalisation on citizens, in particular those who worked for health and social care services throughout the covid crisis. We have non-UK nationals who have worked in health and social care services who could have had their service acknowledged by the Government. The Government have chosen not to do that, despite multiple requests from many MPs of different parties.

[Anne McLaughlin]

I very much agree, because the people we are talking about came here because they were invited. My partner’s family were among them. Thankfully, they were not caught up in this scandal.

We needed people to come here and help rebuild after world war two. People living in the Caribbean were well used to having white people in charge of their country, but what they were not so used to was the racist abuse that would meet them when they reached these shores. They assumed they would be welcome because they were part of the Commonwealth. They fought in our wars. They were invited here. It must have been a huge shock when they got here and somehow that narrative changed.

The narrative is still being used—it is still being used by some people elected to this place—that somehow the gratitude in all of this should be their gratitude to us and that we are somehow doing them some sort of favour. In fact, lots of our wealth was built on the backs of the people we enslaved on those islands. I cannot remember what it is called, but there is such a thing as the collective, inherited trauma that people suffer from. Their descendants were then invited over here to do what we needed done and they were treated the way they were treated, and then they were treated by this Government in the way they were treated in the Windrush scandal.

In the first years, about 5,000 Jamaican nurses came here. We have heard about all of those people from overseas territories who came and supported our health service. Many of them have suffered greatly. Some died during the pandemic, because they put themselves at risk. We needed those 5,000 nurses who came from Jamaica in the first years for our health system, but Jamaica needed them as well. We took them out of the Jamaican health system. We should have been thanking them. We should have been on our knees with gratitude. I do not like the narrative that they are somehow supposed to be grateful to us. So, yes, I would have liked these measures to have gone much further, but I will say that taking away the five-year rule is at least doing something to hold our hands up and say, “We did something wrong, and you don’t deserve to have to wait the five years when you are not the ones at fault.”

--- Later in debate ---

[Tom Pursglove]

I am grateful to the hon. Member for prompting me on this. I have a fairly lengthy speech on this clause. I will come to those points, and will illustrate them with some specific case studies, which I hope will be of interest to him.

As I was saying, this results in the child remaining stateless from birth and enables them to be registered as a British citizen once they reach the age of five if they meet the other criteria. We have seen a significant increase in applications, from tens per year to thousands. In 2016-17, there were 32 applications to register stateless children on this basis. That increased in 2017-18 to 1,815 applications. This allows individuals, including those who have overstayed or entered illegally, to acquire British citizenship for their child, which can in turn benefit their own immigration status.

We do not think it fair that parents can effectively secure a quicker route to British citizenship by choosing not to register their child’s birth. In doing so, they are depriving their child of a nationality, which is about not only identity and belonging, but being able to acquire a passport or identity document, and the ability to travel overseas, such as to see family. They are also taking advantage of a provision that is intended to protect those who are genuinely stateless.

I will say, for the avoidance of doubt, that the process of birth registration is not impossibly difficult. It is simply a matter of completing a form and supplying supporting information about the parent’s identity, status and residence, and the child’s birth. The fee to register a child’s birth at the Indian high commission in the UK is £19; it is £53 at the Sri Lankan high commission.

In changing this provision, we want to maintain the ability for genuinely stateless children to benefit, but we want to change the registration provisions so that parents cannot effectively choose statelessness for their child and then benefit from these provisions. That is right and proper, and in line with our international obligations.

We think it is right that children who genuinely cannot acquire a nationality should be able to benefit under the stateless provisions of the 1981 Act. This change reflects our expectation that families should take reasonable steps to acquire a nationality for their child. We will set out in guidance the sort of steps that we think are reasonable, and applications will be considered on an individual basis.

The provisions are not intended to negatively impact children of recognised refugees who are unable to approach the authorities of their former country. Hon. Members may argue that it is important for a child to have a nationality. We agree. That is why we are a signatory to, and are committed to, the 1961 convention.

Why are parents choosing not to acquire a nationality for their child when they can, leaving the child without the ability to travel urgently if needed for five years? Let us look at a typical example that addresses the point raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.

[Neil Coyle]

The Minister refers to a typical example, but I believe that the question put was about the overall number of cases. Will the Minister provide the House with the overall number of cases involved, and specifically the number of cases in which the Government suggest nationality is being deliberately withheld?

[Tom Pursglove]

Let me talk through the case studies in the first instance, because I think it is useful to set this in context. Child X was born in the UK, which their Indian parents had entered as students. The student route is not one that leads to settlement, so they could not have assumed they would be granted indefinite permission to stay. The college they were studying at had its sponsorship licence revoked, and the parents remained here illegally.

At the time of X’s birth, both parents were in the UK without lawful leave. Steps were taken to remove X’s parents, who absconded at one point. However, an application was made to register X as a British citizen, under the stateless minor provision, a few days after their fifth birthday. While they had not approached the Indian high commission to register X’s birth, the parents provided letters they had obtained from the Indian authorities stating that there was no record of the birth having been registered, so they clearly had no fear of approaching the Indian authorities.

X was registered as a British citizen, as the current wording of the British Nationality Act 1981 left us no other option. The parents then made an application to remain in the UK on the basis of family life, which was granted because it would have been harsh for the British child to leave the UK. I hope that Members across the House will agree that, while it is not X’s fault that their parents manipulated the system, it is not right that as a result they can acquire citizenship earlier than other children born here, whose parents have remained in the UK lawfully and been fully compliant.

We have heard the comment that parents should be able to choose which nationality their child has, but this is not about French parents living in the UK with settled status, for example, choosing whether to apply for a French or British passport, as the child holds dual nationality. Nor is it about parents who are dual nationals, such as a parent who is a British citizen by birth and citizen of Bangladesh by descent choosing not to register their child’s birth, which would have allowed them to acquire citizenship of Bangladesh in addition to British citizenship. No: this is about parents who are choosing not to acquire their own nationality for their child and leaving them with no nationality for a significant period until they can eventually qualify for British citizenship.

The United Nations High Commissioner for Refugees has published a document entitled “Guidelines on Statelessness nr 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness”. Those guidelines cover situations where it is possible to acquire the nationality of a parent by registration. They provide that the responsibility to grant nationality to children who would otherwise be stateless is not engaged where a child is born in a state’s territory and is stateless but could acquire a nationality by registration with the state of nationality of a parent, or a similar procedure.

The guidelines go on to say that it is acceptable for contracting states not to grant nationality to children in these circumstances if the child concerned can acquire the nationality of a parent immediately after birth and the state of nationality of the parent does not have any discretion to refuse the grant of nationality. However, that does not apply if a child’s parents are unable to register, or have good reasons for not registering, their child with the state of their own nationality. That must be determined depending on whether an individual could reasonably be expected to take action to acquire the nationality in the circumstances of their particular case. The effect of this clause therefore reflects the approach recommended by the UNHCR.

We understand that parents want the best for their children, and that a future in the UK represents that to them, but it is not right that they choose not to acquire a nationality for their child in order to facilitate that. We want genuinely stateless children to be able to benefit from our stateless child provisions, but we expect those who can easily acquire a nationality for their child to do so.

I will pick up on the point the hon. Member for Bermondsey and Old Southwark made, because I am sure he wants to prompt me on that, but I first wanted to get through those case studies and set out the Government’s rationale. Clearly, in some cases there is a perverse incentive, and it undoubtedly disadvantages those who are acting in accordance with both the letter and the spirit of the law. It is right to address that, and that is why we are taking the measures proposed in clause 9 to close that loophole.

[Neil Coyle]

Will the Minister provide the overall number of cases that the Government believe fit this category? Will the Government also publish the number of children involved in similar cases where the parents have been trying to regularise their status within the UK? We had examples this morning such as that of my constituent Ade Ronke, who was wrongfully accused by the Home Office of having a prosecution that she did not have—it was a case of mistaken identity. There are cases like that, and hers took seven years to regularise. I mentioned this morning that at least two cases in my constituency took 10 years. There may be many children across the country whose parents have been waiting very many years to sort their status, who could fit into this category, but are being mislabelled by the Government.

[Tom Pursglove]

The direct answer to the hon. Gentleman’s question is that we can provide details of the number of applications, but we cannot confirm the specific number of cases in the way he is requesting. We know this is happening, and we believe that there is a perverse incentive for people to choose not to acquire a nationality, so that the family as a whole can jump the queue.

--- Later in debate ---

[Anne McLaughlin]

The UK is bound by the 1961 UN convention on the reduction of statelessness, as we have heard. That focuses on protecting the stateless child and preventing childhood statelessness. It requires only that the applicant is stateless, and not that they cannot reasonably acquire another nationality, as it says in the Bill. The UK Government say there is a problem that needs addressing through clause 9 and that would justify departing from the safeguards established by the convention, yet no evidence is offered.

As my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has just said, he intervened on the Minister to ask for the evidence. The Minister said he had a long speech and would come to that, but he did not do so. He gave one piece of anecdotal evidence. I know that much of the Bill will have been drafted prior to his recently coming into the role, and I appreciate that this must be a baptism of fire for him, but I ask him to look more closely at the Bill. Why introduce it, if there is no evidence that there is an increase in abuse? There is no evidence. If there is no evidence, there is no problem, and if there is no problem, there is no need for clause 9. The UK Government really must not legislate to enable breaches of the commitment in the 1961 convention and the principle of the best interests of the child in UK domestic law.

[Neil Coyle]

I will not repeat the excellent points that have been made by colleagues, and I will try to be brief. My first point is about international law. It seems that most responsible countries strive to reduce the number of stateless children, but the Bill, and specifically clause 9, leaves people in limbo for a much longer period. It feels as though global Britain is acting in a slightly squeamish way about its international responsibilities on this issue and on other areas, so my first question to the Minister is: which other countries use a similar process, given what he has said today about how this is used in examples?

I agree with the comments just made. The Government are presenting a Bill and a clause that are based on hearsay. The Minister is asking us specifically to rely on hearsay and one anecdote. We all remember the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), talking about someone who was not evicted from this country because their human rights had been encroached because they had a cat. It turned out to be totally false; yet that was used by the then Home Secretary at a Conservative party conference to try to make a very similar point.