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Volume 663: debated on Tuesday 23 July 2019

[Relevant documents: The Fifth Report of the Joint Committee on Human Rights, Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018, HC 926, and the Twentieth Report of the Joint Committee of Human Rights, Good Character Requirements: Draft British Nationality Act 1981 (Remedial) Order 2019–Second Report, HC 1943.]

I beg to move,

That the draft British Nationality Act 1981 (Remedial) Order 2019, which was laid before this House on 2 May, be approved.

In this day and age, I think we can all agree that the law should not discriminate against people simply because their parents were not married when they were born, and that we should not discriminate against people just because it was their mother who was British, not their father. The draft British Nationality Act 1981 (Remedial) Order 2019 is designed to remove discriminatory provisions in the British Nationality Act 1981 for those applying for British citizenship under specific routes introduced to address historical discrimination against those whose parents were not married, or against those whose mother was British, as opposed to their father. The draft order was first laid in Parliament in March 2018.

Once the law has been changed, those who seek to register as British citizens and who were born to an unmarried British father before July 2006, or to a British mother before 1983, will no longer need to demonstrate that they are of good character where it would be discriminatory to require them to do so. In two separate cases, the courts declared the good character requirement to be unlawful and made a declaration of incompatibility with the European convention on human rights. This legislation will correct incompatibilities identified by the domestic courts by removing the good character requirement for those applying for British citizenship via certain routes on the basis of historical discrimination. I am grateful to the Joint Committee on Human Rights for its scrutiny of the order and its careful consideration of this hugely complex and sensitive issue.

The remedial order process to correct incompatibilities in primary legislation with the European convention on human rights is rarely used. It is therefore right that each order is scrutinised carefully to ensure compliance with the procedure laid down in the Human Rights Act 1998, and to ensure that the incompatibilities found by the courts are addressed.

The Government welcome the Committee’s recommendation that Parliament approve the order. It remains our position that some of the issues raised by the Committee go beyond the incompatibility rulings and are therefore outwith the scope of the order. I commend this order to the House.

The good character requirement has wrongly blocked children from registering for their right to British citizenship. We support the statutory instrument because it corrects a discriminatory and wrongful requirement. This requirement in relation to citizenship is highly controversial and, simply put, it is outdated in the present climate. British nationality law granted automatic citizenship by descent only to children born in wedlock to British fathers. Although previous changes have allowed children born to British mothers or fathers to become British citizens by descent whether their parents were married or not, discrimination remained because they were required to prove good character.

Concerns raised by the Joint Committee on Human Rights, the courts, numerous organisations and young people themselves all indicate that it is inappropriate to apply the good character test to children who have a right to be British. The statutory changes proposed today would address those concerns by removing the requirement to prove good character. It is disappointing that the Home Office had to be taken to court to be forced to make this change. I hope the Home Office will not wait for another court ruling to address the other glaring problems with UK nationality law, especially in relation to children.

We believe that the good character requirement has led to serious discrimination. Children from BME backgrounds, as well as children in care, are much more likely to be denied citizenship because of unequal treatment in the criminal justice system. The root of the problem came about when the Government began blurring the distinction between registration and naturalisation. The original good character requirement was not defined, and it related to adult migrants applying to naturalise as British citizens. Since then, the requirement has been applied to children who were born and grew up in the country of which they wish to register citizenship, thereby wrongly denying them their rights to register British citizenship.

I strongly agree with my hon. Friend, who has raised an important point about discrimination. Lots of children came to this country, possibly as refugees, and are in care. When they reach a certain age, they have difficulty getting British citizenship. Surely, that has to be put right.

I agree with my hon. Friend. Denying someone their right to citizenship of the only country they have ever known is a heinous overreaction to a policy caution, especially for children as young as 10.

Concerns remain about citizenship, most prominently in relation to cost and access to legal aid. The JCHR recommended that the Home Office should not charge an application fee to those who have previously been discriminated against. Can the Minister confirm that that is the Government’s intention? When we can expect that to be made clear in legislation? The Government are making a profit on fees charged to children who are registering their right to British citizenship, and those who cannot afford the fee will effectively be denied their right to citizenship. We believe that that is wrong. Will the Minister set the fee for citizenship at cost price, and will she make sure that full fee waivers are available to any child who cannot afford the fee?

As we approach the deadline for EU settled status, there will be a number of children in local authority care who will need to be registered. That brings into sharp relief how little we know about the immigration status of children in care of the state. Many children will be entitled to citizenship, but not aware of it. What steps is the Minister taking to work with local authorities to identify those children with insecure immigration status, and ensure they receive proper legal advice?

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.

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.

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.

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.