Nationality

Stuart C McDonald Excerpts
Tuesday 23rd July 2019

(4 years, 8 months ago)

Commons Chamber
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Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
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First, I apologise to you, Madam Deputy Speaker, and to the Minister and colleagues for my late arrival in the Chamber. I have learnt a lesson on not overestimating how long previous debates will take. My apologies to everybody.

The order is not controversial. I am grateful to the Joint Committee on Human Rights for all its work on the draft order proposed today. It recommended that the order be passed, and I fully agree. It seeks to put right discriminations that still exist in nationality law and that is something we all support. I will make a couple of brief points on that. The Joint Committee report, in chapter 4, points out that as it stands the order will not fix the apparent discriminations highlighted in the Committee’s first report, and leaves the Home Office open to potential legal challenge. Specifically, it raises that issue in relation to children who were discriminated against solely because their parents were not married and adults who were discriminated against when they were children. The Home Office will have to look at that again.

The Committee flagged up, in chapter 6 of the report, that the very same discriminations are still being faced by British overseas territories citizens. If they face the same discriminations, why are they not being provided with the same remedies? It is time for the Home Office to look at that issue again, too.

The Joint Committee also raised two more general points. First, there is a serious question about whether it is even remotely appropriate to ever apply good character tests in many of these situations at all, especially in relation to children. Personally, I find the whole notion of testing good character in children troubling and pretty awful. Attempting to wash our hands of “problem kids” via nationality law is disturbing. It seems to me that the Home Office has lost its grasp of, and become confused by, the different types of nationality applications. I think few Members would argue that having such a test apply in naturalisation applications, for example, is perfectly reasonable. Nobody would quibble with that, but since changes were introduced in 2006 and 2009 successive Governments have presided over the application of a good character test way beyond its appropriate use. In particular, it has even been applied to kids over 10 who otherwise have an entitlement to British citizenship.

Finally, I agree wholeheartedly with what the shadow Minister said about fees. In 1981, when there was a radical reform of British nationality law, this place was extremely protective of the rights of kids who, although not born here, had an entitlement to become British citizens afterwards. They have been denied that entitlement because of exorbitant fees for applications. We need radical reform on that by the Home Office.

Caroline Nokes Portrait Caroline Nokes
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I am grateful for the considered debate today and the interest that Opposition Members have shown in this remedial order.

As I said earlier, the scope of the remedial order is to make changes to nationality legislation and it is therefore narrow. It is limited to addressing the specific incompatibilities that have been identified by the courts. The Government will monitor any remaining potentially unlawful discriminatory aspects of nationality legislation, a point picked up on by the hon. Member for Manchester, Gorton (Afzal Khan), and will consult as appropriate if it becomes apparent that further changes are necessary.

The Government are committed to ensuring that those individuals affected by the order do not face further discrimination. In its first report on the remedial order, the Joint Committee on Human Rights recommended that those who had citizenship applications previously refused, because of the discriminatory provisions in the British Nationality Act 1981, which this order seeks to remedy, should not have to pay the application fee for a repeat application. I am pleased to say that I have written to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Chair of the Committee, confirming that I plan to amend the fees regulation at the next opportunity to waive the application fee for this particular cohort.

Turning to the points raised by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), he commented on children having to meet the good character test. This is a requirement for British citizenship as set out in the 1981 Act. It applies to those seeking to register as British who are aged 10 years and over at the time of application. That is because 10 is the age of criminal responsibility in England and Wales. Children as young as 10 can and do commit very serious acts of criminality, sad though that is and undoubtedly tragic for their victims. It cannot be right that such offences are disregarded when assessing a child’s suitability for citizenship.

Stuart C McDonald Portrait Stuart C. McDonald
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I do not agree with the Minister on that point of principle, but even putting that to one side 50% of kids over 10 who are denied citizenship on those grounds have had that done on the basis of nothing more than a police caution, as I understand it. Surely it cannot be right to deny someone the right to citizenship on such a flimsy basis.

Caroline Nokes Portrait Caroline Nokes
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I was just moving on to that particular point. The Government do not believe that the good character requirement for children is at odds with it the statutory obligation in section 55 of the Borders, Citizenship and Immigration Act 2009, but I want to make it very clear that having a criminal conviction does not necessarily mean an application for citizenship is automatically refused, particularly in the case of minor offences attracting an out-of-court disposal, for example, as the hon. Gentleman mentioned, a youth caution. Each case is considered on its individual merits and guidance for caseworkers makes it clear where discretion can be exercised.

On British overseas territories, we are very proud of our heritage in Britain and this pride extends to many people around the world who identify as British. The JCHR expressed concerns that the discriminatory provisions that this remedial order seeks to remedy will still apply to British overseas territories citizens. Regrettably, this is true. When changes to nationality legislation were made, they were introduced at a very late stage in the parliamentary process and there was no time to consult fully with the territories about introducing similar provisions for British overseas territories citizens’ status. It would not have been right to introduce legislation that would affect the territories, and potentially the status of those living there, without consultation. We recognise the difficulties that the British Nationality Act still presents for some British overseas territories citizens, who may wish to pass on their citizenship to their children and are considering how best to address those concerns, taking into account the opportunities for doing so. I commend the order to the House.

Question put and agreed to.