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Mr Kurt Frances

Volume 264: debated on Friday 20 October 1995

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Motion made, and Question proposed, That this House do now adjourn.— [Mr. Knapman.]

2.30 pm

I shall first take this opportunity to welcome my hon. Friend the Member for Leeds, North-East (Mr. Kirkhope) to his new responsibilities as Under-Secretary of State for the Home Department. As I am asking for something on behalf of a constituent, I should start by saying that I hope that my hon. Friend and I will be able to work together as well this afternoon as we did for two and a half years in the Whips Office. I am delighted that he has been given his new responsibilities. The only person who will be sad about it is Her Majesty, who had her new Vice-Chamberlain plucked from her even before they had had much correspondence.

We miss from the Dispatch Box my hon. Friend the Member for Dorset, North (Mr. Baker), who is a fair and thoughtful man. I should like to thank him publicly for the enormous courtesy and care that he showed in dealing with the large number of immigration cases that I brought to his attention because of my constituency interest. I hope that we shall see him return to health and to office before too long.

Mr. Kurt Frances and his mother, Mrs. Frances, are no longer my constituents, as they have moved to the constituency of Harrow, East. I know that my hon. Friend the Member for Harrow, East (Mr. Dykes) would have wished to be here. He has been entirely supportive of what I am saying and trying to do, but it is a complex case, and it would have been foolish to hand it on from one Member of Parliament to another, so I have carried on dealing with the case.

I wish to make a number of simple points and to place a few facts on record, so that my hon. Friend the Minister can respond to them, if not today, in writing at a future date. In my judgment, the problem stems from the fact that the right of Mrs. Frances to British citizenship was refused out of hand for so long. It was described in a letter as recently as 10 October 1995 from my hon. Friend the Member for Dorset, North, who said:
"Although his mother"—
Mrs. Frances—
"has an automatic claim to British citizenship, Mr. Frances is not a British citizen."
It is all very well for officials to say blandly:
"Although his mother has an automatic claim to British citizenship",
but it did not seem like that from the beginning. Mrs. Frances had a battle, which I shall detail, to establish her right to British citizenship.

All four of Kurt Frances's grandparents had British passports. Both his parents were born in what was then India, because they were both serving the Crown in the Indian army. One side of the family had been serving the Crown for more than one generation. Those people did a great deal for the then British empire, and it is tragic that a grandson of those people—a great grandson of someone who served the British Crown with distinction in India—should be treated as Kurt is being treated.

My argument revolves almost entirely around the significance of when Mrs. Frances first applied for a British passport.

On 18 May 1995 I received a letter from my hon. Friend the Member for Dorset, North. It said:
"The earliest correspondence that Mrs. Frances had with the Immigration and Nationality Department was in November 1975".
That is true, but it is not the whole story. Together with her younger sister, Mrs. Frances made her first application for the British passport to which she has always had a right, in 1954 in Karachi. Her application was rejected, on the ground that she was married. In 1955, she followed up her first application by requesting information about the possibility of obtaining a Pakistani passport. That is what she had been advised to do by the British high commission. Plainly—no one maintains anything different—that was not possible.

In 1959, Mrs. Frances applied for registration for herself and her minor children, and her application was rejected on 18 February 1960. I know that my hon. Friend the Minister has a copy of that letter from the United Kingdom high commission in Karachi. It is signed by the second secretary, and says:
"I am directed by the High Commissioner for the United Kingdom in Pakistan to say that, after careful consideration of all the circumstances of the case, he regrets that he is not prepared to authorise the registration of yourself and your minor children as citizens of the United Kingdom".
No one disputes the fact that that letter was factually wrong.

In 1962, Mrs. Frances reapplied at the consulate-general in Lahore, and she was turned down on the same grounds. In 1966, she repeated her application, but was again turned down. In 1975, as I have mentioned, the first attempt was made to correspond directly with the Home Office. However, the designated Home Office official said that he was not in a position to answer Mrs. Frances's query. The official was clearly wrong—that fact is not disputed—much to the disadvantage of Mrs. Frances, and now of Kurt Frances.

In 1984, Mrs. Frances made yet another attempt at the British high commission in Islamabad. That application had the first positive result—some 30 years after Mrs. Frances had first applied. However, that did not lead to Mrs. Frances's being granted a British passport: she had to wait another seven years. In 1991, upon contacting the British high commission in Islamabad, she was issued with a British passport. It took Mrs. Frances 37 years to establish her birthright. That is a significant fact, which must be considered.

Although my next point has never been made to me by my hon. Friend or by his two predecessors with whom I have had correspondence, it has been made to me informally, and I believe it to be true. My point is that an earlier acceptance of Mrs. Frances's right to British citizenship would have led to Kurt Frances's obtaining a visa. Other reasons have been suggested also, but that point has never been specifically denied—indeed, officials have made it clear to me informally that they believe that it is true.

Upon his arrival in this country, Kurt Frances received a letter—it is unclear whether it is dated 1991 or 1992–bearing the reference F219061 on form APP 101A, as amended. It says:
"Your mother has applied on your behalf for leave to remain in the United Kingdom as her dependant, but you are over eighteen".

That is a significant point, and the Government must explain why Mr. Kurt Frances is being made to suffer because of the way in which his mother's applications were treated for 37 years. That is the kernel of my argument.

As a former Minister with responsibility for the civil service, it gives me no pleasure to criticise civil servants, past or present. I have never done that before in this place. I have always praised, quite correctly, civil servants in general and in particular, both from the Back Benches and from the Dispatch Box. However, I do not believe that my hon. Friend or his predecessors have been well served by their officials.

The most polite way of describing the events that I have described in some detail today is as a Horlicks. Any other description would be ruled out of order. Everybody knows that the matter simply should not have reached this stage. Officials long since retired, and some promoted to glory, have made serious mistakes and, as a consequence, Mrs. Frances and Kurt Frances are suffering.

A further point concerning Mrs. Frances's right to British citizenship has never been explained. She was born in what was termed "a princely state". That clearly has significance. I hope that, at some point, that significance will be examined and explained.

I conclude by making two points. First, I repeat that the case involves the family of people who served the British empire with distinction. Kurt Frances has four grandparents, all of whom had British passports. He has been here for some time. It is difficult to state such things about another friendly country, but we all know that people of British extraction living in Pakistan today—particularly if they do not have a Pakistan passport, but whatever their circumstances—are subject to discrimination.

Life is very difficult for those people and, frankly, Kurt Frances came here as little more than a juvenile. He has lived here with his mother for a few years. He has very few roots, and no prospects, in Pakistan. I accept that is not enough to grant him a visa to remain in Britain, but it runs alongside the clear factual position that he should be granted a visa to remain.

My hon. Friend is new to these matters, and I am sure that, when he wanted to brief himself about the wider aspects of his portfolio, he had to spend a long time reading up for today's Adjournment debate; but I hope that he will leave the door ajar for the matter to be re-examined on the basis of what I have said today, and further information that I may be able to supply to the Home Office. I hope that he will show what I came to regard in our days on the Back Benches together and then as Whips together as his customary compassion to two people—one very young and one not exactly elderly, but getting on and frail—who have suffered enough because of the actions of officials in the past.

2.42 pm

The Parliamentary Under-Secretary of State for the Home Department
(Mr. Timothy Kirkhope)

First, I thank my hon. Friend the Member for Harrow, West (Mr. Hughes) for his kind opening remarks. I am very honoured to have as part of my responsibilities the subject matter that he has brought before me today.

I know that my hon. Friend has a long interest in the position of Mr. Frances, and has pursued his constituents' interest most diligently, even though, as he has already told us, they are not now his constituents.

My hon. Friend first brought the case to the attention of my hon. Friend the Member for Dorset, North (Mr. Baker), then the Under-Secretary of State for the Home Department, in January 1993, because he was concerned that Mr. Frances had been refused leave to settle in Britain as a dependant of his mother. In later correspondence, my hon. Friend began to form the view that Mr. Frances and his mother had been treated unfairly, and that Mr. Frances had lost an entitlement to British citizenship. That view has since developed into a belief that officials made errors and omissions, and are reluctant to admit them. He is now convinced that an injustice occurred that has seriously disadvantaged Mr. Frances in his efforts to settle in the United Kingdom.

My predecessor, despite a thorough investigation, found no evidence of inordinate delays by officials, and I am assured that Mr. Frances has been refused permission to live here quite properly, in accordance with the law and the immigration rules.

I will attempt to clarify the case by taking the various issues separately. First, I will explain why Mr. Frances is not a British citizen and could not under any circumstance whatever have been a British citizen. Then I will refer to the dealings that Mr. Frances's family have had with the Home Office and our posts abroad over the years. I will also explain, as far as I am able in the time available, why there has been a delay in Mr. Frances's mother obtaining her British passport.

That will bring me to the events leading up to my hon. Friend's involvement—how Mr. Frances came to the United Kingdom, and why he is not allowed to settle here. Finally, I will. describe the reason why the appeal adjudicator dismissed the appeal.

The belief that British citizenship is an issue here is based on the incorrect assumption that Mr. Frances had an inherent right to British citizenship. My hon. Friend believes that that right was lost because of a delay in his mother establishing her own British citizenship. I regret to say that that is not correct, either in fact or in law.

The legal aspects of the case are clear. British nationality law sets out precisely the requirements for being a British citizen. It explains also how a person can become British. My right hon. and learned Friend the Home Secretary does not have the power to recognise anyone as British unless they meet the requirements of the British Nationality Act 1981. Any argument that Mr. Frances might himself have been recognised as British if his mother had been issued with a British passport earlier does not hold water.

Although Mrs. Frances has an automatic claim to British citizenship, that could not pass to her son, for two reasons. First, at the time of his birth, British citizenship could descend to children born abroad only through the legitimate male line. Mr. Frances's father is not a British citizen. Although that position altered with the passage of the 1981 Act, the change was not made retrospective.

Secondly, there is a limit on the number of generations through which British citizenship may pass to children born abroad. So, even if Mr. Frances were able to derive his citizenship from the female line, his mother was herself British by descent—having been born abroad—and unable to transmit her citizenship further to her children born abroad.

The 1981 Act aimed at restricting the status of British citizenship, and thereby the right of abode in the United Kingdom, to persons with close connections with the United Kingdom. Mr. Frances does not have those close connections. He would not have been a British citizen had his mother established her claim earlier.

As to the dealings that Mr. Frances's family has had with the Home Office and Foreign and Commonwealth Office over the years, in response to my hon. Friend's concern over the delay in Mrs. Frances obtaining a British passport, officials were asked to make inquiries. I have to emphasise that that could not have any effect on Mr. Frances's claims to British citizenship and the right of abode in the United Kingdom. Also, the United Kingdom Immigrants Advisory Service, which took up Mr. Frances's case after his appeal had been lodged, made no mention of delays when it represented him before the appellate authority. Its case was based largely on the economic reasons for Mr. Frances wishing to settle here.

It has been claimed that Mrs. Frances has all relevant correspondence from 1959 to demonstrate the difficulties she has had in establishing her claim to British citizenship, but neither my predecessor nor I have had sight of all that correspondence. Nor have we been told the nature of the difficulties that Mrs. Frances had experienced.

Only two letters have been submitted by my hon. Friend. The first was from the British high commissioner in Karachi, dated 9 April 1959, to arrange a meeting in connection with passport facilities for Mrs. Frances and her family. The second letter, also from the British high commissioner in Karachi, dated 18 February 1960, was sent to her husband, to advise him of the refusal of his application for registration of himself and his minor children as citizens of the United Kingdom and colonies.

The first approach that Mrs. Frances made to the Home Office was in November 1976. She understood that she qualified for the right of abode in the United Kingdom, and she wanted to know whether her rights would be affected by Pakistan's withdrawal from the Commonwealth. To answer her inquiry, further information was needed regarding her place of birth, current citizenship and details about her mother and grandparents. A reply was sent asking for those details. Nothing further at all was heard until my hon. Friend wrote in January 1993 asking essentially the same question that she had asked 16 years previously. Again, insufficient information was provided, and we had to ask again for further particulars.

The British high commission in Islamabad has searched its records for papers connected with this family. Its records since 1981 do not reveal delay on its part in settling Mrs. Frances's claim. The earliest document it holds concerns Mr. Frances's maternal uncle, James Edward Torkildsen. He wrote via the Home Office on 1 December 1980 saying that he wished to settle in the United Kingdom for "financial reasons". He asked the Home Office to assist him in obtaining a British passport. That was passed to the high commissioner, who wrote on 5 March asking for further information relating to his claim.

The next paper on record is a file note dated 24 July 1984. Mr. Torkildsen had apparently visited the high commission and provided some family details. Further ancestry documents were required to substantiate his claim, and he left to make more inquiries. Supporting documentation in the form of copy passports and baptism certificates are held in the high commission records, with a note dated 29 September 1991. The note describes how Mrs. Frances and her two brothers qualified for British passports. The following day, 30 September, Mrs. Frances applied for and was issued with a British passport.

The British high commission in Islamabad cannot trace any papers for this family before 1981. All the inquiries on record there were initiated by Mrs. Frances's brother, James. It has nothing relating to direct inquiries from Mrs. Frances. Certainly, if my hon. Friend can provide me with copies of the correspondence from Mrs. Frances to support the claim of unreasonable delay, I shall ask for further inquiries to be made.

One thing that I must make very clear is that, because the British Nationality Act is so clear about the requirements that have to met for a claim to be established, there is a high reliance on documentary evidence. The outcome of a claim can be delayed if that evidence is not forthcoming. The onus is always on the claimant to provide sufficient documentary evidence to support the claim. If that is done reasonably quickly, there should be no reason for undue delay.

I now come to the events surrounding Kurt Frances. Those are the events leading up to my hon. Friend's involvement with him. To understand them more clearly, one has to know that entry to this country is by different paths. These paths determine the extent to which one might be permitted to stay here, whether one can live and work here, or is debarred from employment or state benefits.

Mr. Frances did not obtain permission to come to the United Kingdom to settle; he instead obtained an entry clearance as a visitor. It was only after his arrival here that he disclosed his desire to remain here permanently, and he is not entitled to do this. Mrs. Frances and her son may have been short of time because of the delay in establishing her British citizenship, but that should not have prevented a correct application being made—although to be fair it would have been unlikely to succeed.

Mr. Frances was born on 1 November 1973, and reached the age of 18 on 1 November 1991. He could have applied for entry clearance to the United Kingdom at any time up to his 18th birthday. Any difficulties Mrs. Frances had experienced would not have stopped her applying to bring her son to the United Kingdom after her passport was issued on 30 September 1991—a clear month before he attained the age of majority. Instead of applying for entry clearance, an application was made for a six months' visitor's visa. That was granted on 1 October, when he was still 17 years old. He stated on arriving here that he was on a two to three-month visit with his mother, who was a resident of Pakistan.

In January 1992, Mrs. Frances called at the Home Office to apply for permission for her son to live permanently in the United Kingdom. It was considered that Mr. Frances did not qualify for settlement, because he had been granted entry as a visitor and, as such, could not be treated as someone who had been granted leave to enter or remain in any capacity that could lead to settlement.

It was also apparent that, although Mr Frances had been studying in Pakistan, he was old enough to seek employment there. He was also of an age to adjust to adult life in Pakistan. His father and his unmarried sister live there, together with his elder brothers and their wives. They seemed from his own account to be socially and economically active.

There is some discretion in the application of immigration rules, and, having decided to refuse leave to remain in the United Kingdom, the Home Secretary can exercise that discretion in favour of applicants who do not meet the various requirements. To ensure that the immigration rules are not emptied of all meaning, discretion to overturn decisions made under the rules must be exercised sparingly. Sufficient compassionate and compelling factors could not be found to warrant the exercise of discretion in favour of letting Mr. Frances remain here to settle.

Mr. Frances appealed against refusal of leave to settle here, on the ground that his mother's application for a British passport was delayed by officials for more than 32 years. By the time he had applied for indefinite leave to remain in the United Kingdom, he had attained the age of majority, and could no longer be treated as a dependent minor. However, that claim of injustice formed no active part of his case until my hon. Friend became involved. There was no mention of maladministration during the hearing of his unsuccessful appeal.

It was clear to the adjudicator that Mr. Frances had had no economic or emotional difficulties in Pakistan before he left, and that he had left not on account of any such difficulties, or any other difficulties, but only to accompany his mother to the United Kingdom on a visit and that he had a return ticket. The adjudicator tried to look at Mr. Frances's situation compassionately, but considered that, except for his mother, Mr. Frances had all his immediate family still in Pakistan. His family had been able, up to him coming to the United Kingdom, to support and accommodate him. The adjudicator was not satisfied that Mr. Frances would be living alone in Pakistan in the most exceptional compassionate circumstances, and accordingly dismissed the appeal. Although he had every sympathy with the case, he found that Mr. Frances just did not qualify to stay here under the immigration rules, and that the Secretary of State had acted correctly.

Mr. Frances has now exhausted his rights of appeal. He has no claim to remain here under the immigration rules and no entitlement to British citizenship. However, my hon. Friend and the House are obviously aware that I have only this week become responsible for the matters that we are discussing today.

I have taken careful note of the suggestion from my hon. Friend that the door should be ajar. I am certainly prepared to consider the points raised by my hon. Friend today, and indeed any further matters that he wishes to bring to my attention directly and quickly in support of Mr. Frances's case, but I hope that he will forgive me if I say that, from what I have seen of the case so far, I simply cannot see any grounds for allowing Mr. Frances to stay in the United Kingdom or to be given British citizenship.

The door may not be totally ajar, but there is a slight chink in it, and I would be delighted to see my hon. Friend on this matter.

Question put and agreed to.

Adjourned accordingly at three minutes to Three o'clock.