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Borders, Citizenship and Immigration Bill [HL]

Volume 708: debated on Monday 2 March 2009

Committee (Second Day)

Amendment 45

Moved by

45: Before Clause 37, insert the following new Clause—

“Probationary citizenship leave

(1) A person with probationary citizenship leave shall be treated as a person settled in the United Kingdom for the purposes of all regulations made under—

(a) the Health Services and Public Health Act 1968 (c. 46);(b) the Education (Fees and Awards) Act 1983 (c. 40);(c) the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3));(d) the National Health Service (Charges to Overseas Visitors), Regulations 1989 (S.I. 1989/306);(e) the Teaching and Higher Education Act 1998 (c. 30);(f) the Education (Student Support) Regulations (Northern Ireland) 1998;(g) the Learning Skills Act 2000 (c. 21);(h) the Higher Education Act 2004 (c. 8); and(i) the Higher Education (Northern Ireland) Order 2005 (S.I. 2005/1116 (N.I. 5));(2) In section 115 of the Immigration and Asylum Act 1999 (c. 33) (exclusion from benefits), in subsection (9) after “EEA state” insert “or a person with probationary citizenship leave”.”

In moving Amendment 45 in my name and that of my noble friend, I shall speak also to Amendment 105A. As the Minister is aware, we do not like the term “probationary citizenship” because the status that it covers is in reality an extension of temporary residence leave, prolonging the time that it takes to get to applying for actual citizenship by a year and in the meanwhile imposing certain restrictions on access to services that did not previously apply to those who were on indefinite leave to remain.

We are grateful to the Minister for providing us with a list of the benefits that may not be accessed by a person who is given probationary citizenship leave, or PCL as I shall call it from now onwards, which those on indefinite leave to remain, ILR, have been able to access in the past. As the note accompanying the list makes clear, making a holder of PCL a person “subject to immigration control”—the first of many terms of art used in this Bill—within the meaning of the Immigration and Asylum Act 1999 means that he is subject to the condition that he should not have recourse to public funds. In practice, that means that he is ineligible for any of 15 different types of benefit that are available to those on ILR.

Apart from that, the overseas rate of fees in further and higher education will apply to holders of PCL who are over the age of 18 except in the one case of English for the speakers of other languages, which is to be charged at the home rate on the sensible ground that it will help migrants to acquire the skills that they will need to support their progress towards citizenship. Logically, precisely the same argument applies to every other course of further and higher education, and I invite the Minister to tell us why a course in, say, English history or on local authority management would not equally assist the probationary citizen to make himself useful.

Amendment 105A deals with the case of a person who becomes homeless through no fault of his own during his passage through the probationary citizenship phase. Under the Bill he is given none of the assistance that is normally extended to persons who become homeless. We ask the Minister why this should be so. If someone who is in the middle of a probationary citizenship phase becomes homeless—let us say that a spouse who is attacked by a violent partner becomes homeless during that part of her stay—why is she ineligible for any assistance? That should be added to the list of exceptions in the Bill. I beg to move.

I am afraid that I must resist this amendment. It is a fundamental tenet of our proposed reform of the path to citizenship that the rights and benefits of citizenship are reserved for those who have earned the right to them. Migrants earn those rights and benefits by completing both the temporary residence and the probationary citizenship path.

We recognise that migrants make a significant contribution to this country both economically and in social terms. Nevertheless, it has been a long-standing policy that those entering the United Kingdom on the work or family routes should be expected to support themselves without access to benefits. This supports a clearly held public view that migrants should make an economic contribution and should not be a burden on the state. This policy should be strengthened and clarified so that everyone is clear that full access will be withheld until a migrant completes the path to citizenship.

Of course, this does not apply to migrants who are on the protection route. It is right, given the special circumstances that led people on this route to come to the UK, that they should be able to access all benefits immediately. The restrictions on access to benefits and services at the probationary citizenship stage will apply only to migrants on the work route—that is, those highly skilled and skilled workers under tiers 1 and 2 of the points-based system—and the family route, for family members of British citizens and permanent residents.

Further, all migrants, including those on the family and work routes, will have full access to national insurance contribution-based benefits on the same basis as British workers. These benefits are contribution-based jobseeker’s allowance, incapacity benefit, contributory employment and support allowance, retirement pension, maternity allowance and bereavement benefit. This applies equally during the probationary period of citizenship. We continue to believe that full access to benefits should normally be withheld until a migrant has earned the right to British citizenship or permanent residence.

The amendment is also seriously flawed. While it would give probationary citizens access to social housing and homelessness assistance in Scotland and Northern Ireland, it would not do so in England or Wales. Nor is it sufficient to address the different positions that exist in respect of education and healthcare in England, Scotland, Wales and Northern Ireland. For example, the amendment cites NHS regulations that apply in England and Wales only.

The noble Lord raised two points, one in relation to higher education and the second in relation to homelessness. In both cases the answers are simple but I would prefer to put them in writing to explain more clearly to him why what he suggests is not considered appropriate. If the noble Lord is content with that, I ask him to withdraw the amendment.

I turn to Amendment 105A. I hope that noble Lords will forgive me; my paper-juggling skills are not great. I beg your Lordships’ pardon. I must admit to a certain degree of defeat.

If it will assist the House, it is possible to return to Amendment 105A in its place on the Marshalled List later in the debate if it is not possible to cover it now.

I am sure that we can do that. It is an important point. While I entirely accept the noble Lord’s contention that it has always been the case that a person who is on these routes should be expected to support himself without access to public funds, there must surely be the occasional exception to that. Anybody with a spark of humanity would say that someone who is in the middle of this phase, and who becomes unintentionally homeless through no fault of his own, would look to the public purse for some sort of help. That was the point that I was trying to make. However, I can see that I am not going to get anywhere with the main argument.

I ask the Minister only one further question: what is the real reason for the change in policy? A person was, for the first five years, a worker, or for two years a family member. These periods have suddenly changed. In every case, the time that it takes to become a citizen has become longer. Why do the Government think that that is a better way of getting people to settle in the community?

I have frequently said that the Government believe that we need to have greater integration of citizens and provide both a strengthening of the route and an incentive to accelerate it. In terms of strengthening, we are now bringing conformity to the two separate groups of those who choose not to take active citizenship, and therefore wait the additional time, and those who take active citizenship and gain the advantages thereto.

For the time being, I can see that we are not going to get very far with these amendments. I beg leave to withdraw Amendment 45.

Amendment 45 withdrawn.

Clause 37: Application requirements: general

Amendment 46

Moved by

46: Clause 37, page 27, line 6, after first “the” insert “average”

The first amendment in the group maintains the current position whereby the maximum permitted absences from the UK during the qualifying period for naturalisation have calculated as an average over the total of the qualifying period. This will ensure that a person who is absent in a particular year for more than 90 days for legitimate reasons of business, family crisis or illness abroad does not have to restart the clock on the qualifying period upon his return. It addresses one aspect of the problem that was identified by the noble Baroness, Lady Hanham, when she spoke of migrants who,

“will end up in a game of snakes and ladders, by which they may fall down and have to start the process all over again”.—[Official Report, 11/2/09; col. 1135.]

The current rules, which are set out in chapter 18 of the nationality instructions, allow for an exceptional absence for business or family reasons to be offset by shorter periods of absence in other years, but the Bill requires that the 90-day limit be rigidly observed in each year of the qualifying period. For example, a tier 1 migrant employed by a financial services company travelled overseas extensively to secure business, clocking up 150 days in the first year of his stay in this country. This was not a problem if the average for the whole of the qualifying period did not exceed 90 days, but he will no longer be able to do that.

We understand that the Government are against the amendment because they think that a fixed 90-day limit will promote integration. As far as we are aware, there is no research to show that migrants who relied on averaging over the many years that it has been in force are less integrated than others who had kept within the 90-day limit for each individual year. If the Minister has any research on the matter, perhaps he will enlighten us. Conversely, as the effect of the Government’s proposal is that a person who is unavoidably absent for more than 90 days has to start the qualifying period again from zero, that person will take much longer to become integrated.

Our second amendment provides that where a person spends two periods of time in the UK with a qualifying immigration status separated by a period of lawful but not qualifying immigration status, then the two qualifying periods can be aggregated for the purposes of the calculation. An example of how this might operate is that of a worker who, after 18 months in a job, takes a year off to do a full-time MBA degree and then returns to his former or to another employment. Without the amendment, that first 18 months would not count towards the qualifying period because the time spent on the MBA, although it is a lawful immigration status, is not a qualifying immigration status within the meaning of Clause 37(11).

The Immigration Law Practitioners’ Association cites the case of a person who studied in the UK for three years and then worked for a single employer for a month short of five years, when at that point she was made redundant. Because she had a three-month notice period, the employer wrote in support of her ILR application and it was successful. But if the studies, instead of being at the start of the time she was spending in the UK had been in between two periods of work adding up to the same total, she could not have succeeded if this Bill had been then in force.

Amendment 58 makes the same point about averaging in Clause 38 but deals with family members. It is even more likely that a spouse or civil partner would have a family emergency in his country of origin which requires him to be absent for a period of more than 90 days than a worker whose job could be at stake as a result of the long break, but the arguments are much the same. I beg to move.

I want to say one or two words about refugees in this context, although my noble friend Lord Hylton will speak about them later on. At Second Reading I mentioned the concern expressed by the United Nations High Commissioner for Refugees and others that the new qualifying period, which is to be extended to three years, should not apply to genuine refugees. In their case, the period ought to start from the first application for entry. An additional probationary citizenship period prior to qualification for naturalisation would leave many of them in a state of unresolved nationality for well beyond 10 years. As a matter of best practice, these delays appear unsatisfactory for those people deemed in need of international protection.

I do not like the term “probationary citizenship” since it creates a second-class category from which migrants and refugees, tripped up by these regulations, may never escape. In the case of migrants, I hope that the Minister will agree with the noble Lord, Lord Avebury, that the clause allowing leave up to three months in the year is unnecessarily restrictive. Migrants, by their nature, may have good reasons to return to their first home for long periods even though they have established strong ties with the UK. There is also a potential conflict with the ECHR and the 1997 European Convention on Nationality. What will happen to existing migrants approaching the end of their limited leave who are ready and entitled to apply for indefinite leave? Will their rights be safeguarded or will they have to go backwards to probationary citizenship?

The special category of recognised refugees resettled under the Gateway Protection Programme will surely not have to spend more than five years. The Minister will be aware that the majority of people in this category will already have been recognised by the United Nations for at least five years before their resettlement. The programme provides for this special category of people selected outside the UK by our embassy staff from the group of UN-registered refugees now in third countries. The UK has only recently joined this programme. I have had some experience of this and know how rigorous the selection process is, so I would be grateful for the reassurance. I recognise that this group of refugees comes up in later amendments but I wanted to put this on the record now.

I support this amendment. It is not hard to understand why those who wish to reside here permanently should have to show that they are committed to the United Kingdom, but that is surely demonstrated by a wholehearted commitment to its values and culture. The travel restrictions in Clause 37 could conflict with this. A lot of charitable and relief organisations employ migrants seeking indefinite leave to remain. Those migrants often have the linguistic or specialist skills needed by agencies engaged in international development or relief. Church Communities UK gave a good example in its briefing of a Korean member who speaks Thai and was sent to Thailand for nine months to assist in a school that had been destroyed by the tsunami. She did this while seeking indefinite leave to remain. Her commitment to the culture and values of this country seems self-evident and is embraced by the self-giving action that she undertook as a result of the work of that agency. A law of unintended consequences seems to be at work here, which is why this amendment is so valuable.

I support the amendment as well. I will not go into the details of some of the other issues that I also support, because, as my noble friend Lord Sandwich said, they are coming up at a later stage. But the points that he and the noble Lord, Lord Avebury, made deserve serious consideration and change.

Our principal aim is to reform the path to citizenship by creating three clear routes to achieving it, and to ensure that it is earned. The three routes are clear: work, family and the protection route. We require migrants to pass through successive stages on their journey to citizenship, and at each stage they will need to demonstrate that they have earned the right to progress. That supports the key principle that rights are matched by responsibilities.

With regard to the noble Lord’s first amendment, I cannot support the notion of an average calculation of absences over the qualifying period, but I can advise that we will not examine that requirement too closely where the absences are in the earlier part of the probationary period. However, as I have said, we require British citizens to demonstrate clearly that they have a close connection and a continuing relationship with the UK and intend to regard the UK as their home. We believe that that can be demonstrated by migrants spending the overwhelming majority of their time in the UK during their qualifying period. We consider that that encourages integration more than an individual spending a large part of their time abroad. If we applied an average of absences over a six-year period, that could in theory allow someone to be absent for up to 540 days in one go, yet still qualify for naturalisation. We do not consider that this is the best way for a migrant to demonstrate a close connection.

Under our proposals, migrants will be able to spend one-quarter of each year of their qualifying period outside the UK and still qualify for British citizenship. We feel that that is a more than adequate provision. As I said, we will not examine the requirement too closely where the absences take place in the early part of the qualifying period—that is, in the entry into the probationary citizenship stage, which has already been examined. We are not concerned about absences from the UK before the start of the qualifying period.

We want—I think this meets the point made by several noble Lords—to avoid a system that penalises those who we want to stay here from being able to because they have exceeded the set limit by a few days, or who may have justifiable reasons to explain their absence. The Bill therefore provides a discretion to allow the Secretary of State to overlook periods of absence that exceed 90 days in a year in the special circumstances of a particular case. Cases cited in the discussion of this clause would provide some of the basis for that kind of discretion.

We will continue to expect migrants to justify large absences. In such cases we would expect the applicant to demonstrate close links with the UK in terms of length of residence and the presence of home, family and estate in the UK. We would also look at the reasons for absences.

I have listened carefully to the Minister. As he knows, my name is also attached to the amendment. I wonder if I understood him correctly when he said that the Secretary of State will have discretion to overlook the requirement for no more than 90 days’ absence per year. I note what he says about integration, along with his calculation that it could end up being 540 days. He is implying a level of flexibility. In the interests of transparency, will he explain whether the ability of the Secretary of State to divert from the rules that are laid down will be set out in guidance? How will people who might be affected by that, particularly in humanitarian cases or in emergencies, know that they have the right to use exceptional circumstances as a basis for using that right?

As I said, the Bill provides a discretion to allow the Secretary of State to overlook periods of absences exceeding 90 days in the special circumstances of a particular case. The noble Baroness makes a good point: how will people know what those would be? I suspect that the answer is in terms of her question and that it will be in guidance, but I shall confirm that and come back to her.

I turn to Amendment 47. We do not support the view on the aggregation of two periods with qualifying immigration status, where they are separated by a period in which people have held a non-qualifying immigration status but, again, we have the power to apply discretion to the requirement for continuous employment. We recognise that there may be circumstances where economically productive migrants, through no fault of their own, cease to be in employment for short periods: Clause 37(7) gives us the discretion to waive the requirement in compelling circumstances. That will, however, only assist those who have spent the whole of their qualifying period continuously with a qualifying sort of immigration status.

The noble Earl, Lord Sandwich, and the right reverend Prelate the Bishop of Norwich made points that will become clearer and more relevant in our later debates. I will take note of them, and hope to respond to them in that context. In the mean time, I hope that the noble Lord will feel able to withdraw the amendment.

I am grateful to the noble Earl, Lord Sandwich, for his intervention. Could we have a response at some point to his comments on the gateway programme? I am not sure whether those who come in under that programme are treated as being in the protection route or as coming in for work. As I understand the gateway programme, they get into employment once they arrive here, so one would have thought they were counted in the work route. Since the Minister has given us no enlightenment on that, perhaps we could ask for a written note.

On the question of the gateway refugees, those which are recognised by the UNHCR before they come to the UK will continue to be granted permanent residence when they first arrive in this country. On the second point, which I was unable to confirm a moment ago in the context of the question from the noble Baroness, Lady Falkner, information on how we will see the discretion of the Secretary of State being used will be published in guidance on the UKBA website.

That is certainly helpful, and I hope that the noble Earl, Lord Sandwich, is satisfied with that reply. Regarding the intervention from the right reverend Prelate, I, too, read what was said by Church Communities UK, and he quoted an extremely valid example. That individual, who came into the United Kingdom to assist them with overseas programmes, had specialist knowledge of the Thai language and customs and spent a good deal of the first year, as I remember it, outside the country. He was all right, however, because his average was still less than the 90 days. The rigidity of the 90 days will discourage that sort of activity, and although I heard the Minister’s answer to my noble friend, I would like him to assure me that that discretion can be found in the Bill. I did not notice it, and neither did my noble friend, so it would also be extremely helpful if the Minister can point us toward the clause that confers the discretion he has mentioned on the Secretary of State.

Until we see the guidance that the Minister said would be forthcoming, we really do not know whether his answer is satisfactory. The reasons why people may have to take advantage of the discretion are manifold; we hope that it will be sufficiently flexible to cover every circumstance that we, from previous experience, know that people may invoke. It is frequently the case with this Bill that we are told guidance is coming along later, but we have no means of really getting our teeth into what is proposed because there is no idea of the nature of that guidance, or of how it will operate in practice.

I am disappointed by what the Minister said in answer to Amendment 47, because there are circumstances—I quoted an example—where a person’s qualifying residence would be interrupted by a perfectly legal stay in the country which was not qualifying. I do not see why that should be excluded by the calculation and why somebody should have to start again from scratch. By definition, if it is a lawful stay in the country, it is contributing to that person’s integration. We were asking not that it should be counted, but only that the periods before and after should be aggregated in a calculation. That seemed a very modest demand which I am surprised the Minister has had to reject.

However, I confess again that we are not hopeful of getting any further at this stage, so perhaps we shall defer our pleasure until Report and see whether we can get any further advance out of the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendment 48

Moved by

48: Clause 37, page 27, leave out lines 11 to 14

The amendments in this group were designed to highlight the fact that, as the Minister said in winding up on Second Reading, probationary citizenship is a further period of temporary leave. We hope also to get the Government to explain what is added to the process of getting a permanent migrant to the point of applying for citizenship by having two stages of temporary leave, one after the other, called by different names but in practical terms adding nothing but a layer of bureaucracy and complexity to the process.

The first amendment would omit the requirement that an applicant for naturalisation have a particular kind of leave at the point when the application is made. The second amendment, which is an alternative, provides that the applicant should have,

““limited leave to enter or remain”

at that point. All the other conditions, including length of stay, knowledge of English and active citizenship would remain the same under our proposals.

In the Government’s response to the consultation on the Path to Citizenship Green Paper, no statistics were given, but it was pretty clear that most of the respondents had been highly critical of the probationary citizenship stage. Some felt it was unnecessary because the temporary leave stage was already probationary, while others felt that it would lead to more confusion, which I am sure it will. The new stage would discourage integration, and there is no need to lengthen the timescale. There is no argument in the document to demonstrate how changing the name of temporary leave part of the way through the period of waiting to become a citizen would contribute towards integration, to British society or to clarity, which are said to be the three main aims of the legislation. Requiring the migrant to learn English, to have some knowledge of British society and contribute a recorded amount of voluntary work are all conditions which could equally well be imposed without creating an additional stage in which they have to embedded. Equally, lengthening the time before an application for citizenship can be submitted for people who break the law or who do not satisfy the language or active citizenship tests is not dependent on the name of the status occupied by the person to whom these criteria are applied.

The Government say that they are prepared to consider changing the title “probationary citizenship”, which not only carries with it overtones of the criminal justice system but is also misleading since many who are given that status are citizens of other countries which forbid dual nationality and are therefore on the way to becoming permanent residents rather than citizens. No amount of tinkering with the name should be allowed to obscure the fact that we are dealing with arbitrarily different names for two stages that are the same for the migrant, adding nothing but unnecessary complexity and bureaucracy to the process of becoming either a citizen or a permanent resident. I beg to move.

I would like the Minister to be very clear about the difference between these two nominations. The noble Lord, Lord West, explained at Second Reading that probationary citizenship was intended to demonstrate that probationary citizens were on a journey. However, interim leave to remain suggests precisely the same: it is the same process, whereby migrants are on a journey to citizenship. I agree with the noble Lord, Lord Avebury, that “probation” is an unfortunate term here. It sounds as if everything is against the person trying to get their citizenship. Probation means that you have to be on your best behaviour all the time, whereas, as the correspondence that we have received shows, everybody understands “interim leave to remain”. Will the Minister tell us what the differences are, apart from the name? Is there anything in probationary citizenship that is different from interim leave to remain? If there is not, please could we stick to the name that we have?

The central point is that the Government see probationary citizenship as a key part of their vision for a new path to citizenship. We believe that citizenship should be earned. The second stage will enable migrants to demonstrate their continued commitment to the UK and it will support their integration; it will encourage migrants to continue their journey towards securing British citizenship. The objective of paragraph (d), which the amendment would omit, is to ensure that migrants cannot apply for naturalisation as British citizens until they have substantially progressed on the path and met the associated requirements. The amendments would allow a migrant to apply for naturalisation without having passed through the probationary citizenship scheme, which we see as a key part of the path and the journey. They would also mean that an EEA national could apply for naturalisation without first holding a permanent EEA entitlement, which would not be appropriate. It is therefore crucial that migrants are required to pass through the probationary citizenship stage before they can be naturalised as British citizens. It would not be appropriate to have EEA nationals apply for naturalisation without first gaining a permanent EEA entitlement.

The connotations of the word “probation” depend entirely where you come from. Much of my life has been spent in employee relations. To me, “probation” meant the time that you served after joining an organisation, company or the Civil Service before you qualified to be a permanent member of staff, or an established civil servant, whatever the term was at the time. Of course, another connotation has been suggested by the noble Lord, who said that probation in criminal law is seen as something that precedes something more serious. We are not wedded to the word “probation”. We think that it is the clearest way to describe how people should take on board active citizenship activities on the way to naturalisation but, if alternatives were put forward, the Government would be delighted to consider them. If anything clearer and more acceptable were put forward, there would not be great resistance from the Government to accepting it. In the mean time, I hope that the noble Lord will feel able to withdraw the amendment.

The path that we set out has both terms. We want to ensure that people coming to this country understand the need of the Government and the people of this country, who overwhelmingly support the concept of active citizenship and the roles that are required by it. We want these to be understood by migrants and for as many as possible of them to play their part and participate in the scheme. Therefore, although it is not mandatory, we want to encourage it.

The Minister has misunderstood my point. He said that the Government would consider an alternative term to “probationary”. I asked whether the Government would accept “interim leave to remain”.

With respect to the noble Baroness, I do not believe that that actually explains clearly to the would-be citizen why active citizenship is a key part of the path. Therefore, it would not have the desired effect of the encouragement that we want to give. I suspect that it is one of those things that was there at the start of the consideration of names and was rejected for that reason.

I understand, I think, where the Minister is coming from in attaching a normative value to the word “citizenship”. I take a view, as someone who naturalised to citizenship in this country, that there is something privileged and special about being a citizen of the United Kingdom. The Minister said that he has some flexibility. This may not be the time to put various suggestions to him, and I shall do so in writing, but would he think of “qualifying citizenship” as a solution?

I am prepared to take on board any suggestions that people have for the name. Those of our colleagues in the Home Office who have considered many names already will be delighted to have those suggestions added. I am sure that, if we can find a name that satisfies a greater majority than the current name does, we will be happy to adopt it.

Perhaps I may come in on this, please, as a former probationary Methodist minister. In probation, if you do not do something, you are out; in qualifying, you are building blocks and moving forward. You have various things—volunteering, learning a language and so on. If you do not do them, you are in trouble. Would it not be better to do this in a more positive manner, by building up? Then, at last, you achieve the citizenship that you desire.

The noble Lord makes a very good point. If we could have a word that demonstrates that this is positive, that would be helpful. I am more than happy to repeat the assertion that I made that any suggestion for names given in writing or orally will be taken on board and considered.

The discussion on to which we have been diverted, which I hoped would not happen, was whether there should be some better name for the second phase, whereas what the noble Baroness was asking initially was what the difference was between the two phases. I ventured to suggest in my remarks that, although we did not particularly like the term “probationary citizenship leave”, that was not the gravamen of our criticism of the whole scheme.

When the Minister first replied to the noble Baroness, he made three points. When she asked him what the essential difference was between the two parts of the scheme, I carefully took down what he said. First, he said that it was a key part of the Government’s vision. What the hell does that mean? It is totally meaningless. He then said that citizenship should be earned. Nobody is arguing about that; what we are saying is that you do not need two stages in which that earning process can take place. It could be continuous, from the person’s arrival in the country to the date on which he is eligible to apply for citizenship. Having an arbitrary cut-off point halfway through, allowing you to christen the second phase by a different name, is totally meaningless.

The third point that the Minister made was that the second phase enables the migrant to demonstrate his commitment. Well, he has to demonstrate his commitment; there are certain rules that he has to comply with. He has to go through the earned citizenship process; he has to learn English; he has to avoid committing any criminal offence; and all the rest of it. We are not arguing about that. All we are saying—and I do not know how many times one has to repeat this—is that the imposition of a change in the title halfway through does not get us anywhere but simply adds complexity and bureaucracy to the process. I would prefer to call these phases “temporary leave to remain, one and two”; if we have to have two phases, let us make it clear that they are actually the same by calling them by the same name. Then, if we want to have them as different phases, we can attach “one” and “two” to them.

I would prefer a much simpler solution, with a single stage starting from the date of the person’s entry to the United Kingdom. It would have all the hoops that he had to jump through but it would get to a point at the end at which he could apply for citizenship. I wish that I could convince the Minister of that, but I dare say that that is not going to be possible this afternoon. At this stage, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

Amendment 49 not moved.

Amendment 50

Moved by

50: Clause 37, page 27, line 12, after second “leave,” insert “a qualifying CTA entitlement,”

These amendments, tabled in the name of my noble friend Lord West, make changes to Clauses 37, 38, 44 and 45. The Government regret the omission of these clauses in the earlier published Bill. Amendments 50 and 53 amend Clause 37 to provide that, on the date of the application for naturalisation, one of the acceptable forms of status is for an applicant to have a qualifying common travel area entitlement. We are amending Clause 37 to provide that a qualifying immigration status includes a qualifying CTA entitlement. Amendments 50 and 53 are designed only to ensure that Clause 37 corresponds with the common travel area arrangements for Irish nationals, not to expand the rights given to Irish nationals more generally. This amendment therefore covers only Irish nationals arriving on local journeys from within the common travel area and not those arriving from outside the common travel area.

Amendments 58, 60 and 64 to 76 amend Clause 38 so that, where Irish nationals arrive in the UK pursuant to a CTA entitlement, or Commonwealth nationals enter the UK with a right of abode, they should be able, unlike other migrants, to qualify for naturalisation under Section 6(2) of the British Nationality Act 1981 even where their status in the UK is not based on a relevant family association. Relevant persons who enter the UK with a CTA entitlement or a Commonwealth right of abode will be able to qualify for the shorter period for naturalisation where they are in a relevant family association for the whole of the qualifying period.

Amendment 107 provides that an Irish national who is in the UK, having arrived on a local journey from Ireland or the islands under Section 1(3) of the Immigration Act 1971, is not considered to be in breach of the immigration laws. The amendment will be limited to Irish nationals exercising rights to arrive in the UK without obtaining leave under Section 1(3), which will exclude Irish nationals who are not entitled to enter the UK under Section 1(3), as well as Irish nationals who do not arrive in the UK on a local journey from Ireland or the islands. The requested amendment is designed only to ensure that Clause 44 corresponds with the common travel area arrangements for Irish nationals, not to expand the rights given to Irish nationals more generally.

Amendment 108 to Clause 45 is necessary to provide a definition of what we mean by a qualifying CTA entitlement. I beg to move.

We appreciate that these arrangements are necessary so that people who enter the UK from the common travel area and persons with a Commonwealth right of abode can access the new citizenship process or have permanent leave to remain.

Amendments 50 and 53 concern an Irish national who enters the UK but would cease to have a right to reside here under the EEA regulations 2006 if she were no longer a qualifying person; for example, if she entered as a worker, became pregnant and stopped working on medical advice. Will the Minister explain how an Irish citizen, apart from ceasing to be a qualifying person under paragraph 6(1) of the EEA regulations, could otherwise forfeit the right to reside in the UK? As he explained, the amendments give any such person a qualifying CTA entitlement, which is defined in Amendments 107 and 108.

Then we have a person with a Commonwealth right of abode, which is also to count as a qualifying immigration status for naturalisation as a British citizen under Section 6(2) of the British Nationality Act 1981 if he has a right of abode under Section 2(1)(b) of that Act. However, when I looked that up, I discovered that it referred to a Commonwealth citizen who had a right of abode in the UK immediately before the commencement of the 1981 Act by virtue of Sections 2(1)(d) and 2(2) of the Act as then in force. However, those sections have been repealed and it is, therefore, no longer possible to tell who is entitled just from reading the Act or even by going to the otherwise wonderful website The definition therefore fails the test of being prescribed by law and I suggest to the Minister that, at Report, if he agrees, he should repeal Section 2(1)(b) and re-enact in this Bill whatever was in Sections 2(1)(d) and 2(2). I should be grateful if he could think about that and perhaps not give me an answer off the cuff, but discuss it with me before Report.

Amendments 57, 60 and 64 to 76 broaden the range of persons who can benefit from the shorter route to naturalisation on the basis of a family relationship. The amendments accept part of the proposal in our Amendment 61 in this group that a person with a Commonwealth right of abode and a relevant family association should be able to be naturalised without the former having to be based on the latter, but not that the same principle applies to the permanent EEA entitlement, which was also covered in our Amendment 61. Can the Minister explain this distinction? We protest that this is an example of the complexity of the scheme, which seems to be required by the splitting of the shorter family route to naturalisation into two groups—those with a permanent EEA entitlement whose leave must depend on the relationship throughout the whole of the path to citizenship and those where this is not required through a Commonwealth right of abode or the new CTA entitlement. If I may say so, this is the very opposite of the Home Secretary’s claim in her foreword to The Path to Citizenship Green Paper, in which she says:

“We want to make the journey to citizenship clearer, simpler and easier for the public and migrants to understand”.

I defy even Gail Trimble to find her way through the constantly changing maze of rights, entitlements and exceptions in the Bill.

We have to express concern about the proliferation of types of probationary citizenship leave and to ask the Government why they made the system so complicated, instead of requiring everyone on the path to permanent citizenship or permanent leave to remain to spend the whole of the qualifying period in their existing temporary leave status. I know that we will not get anywhere with that, but I have to keep drumming it in, because it is a simple point that needs to be understood by the Government if they want to know where we are coming from in our criticisms of the whole Bill.

Finally, we have a question about Amendment 60. I thank the Minister for most kindly providing the Keeling schedule, although it incorporates only the amendments to Schedule 1 to the BNA made by the Bill in its original form and does not include the amendments that we are considering. The qualifying CTA entitlement requires the holder to have arrived in the UK on a local journey, as the Minister explained, which is defined in Section 11 of the Immigration Act 1971 as a journey that begins and ends in the common travel area consisting of the UK, the Republic of Ireland, the Channel Islands and the Isle of Man. For instance, an Irish citizen who comes here on a flight from Dublin acquires a qualifying CTA entitlement, but if he then goes to Paris for a weekend by Eurostar or Ryanair, his return is not a local journey within the meaning of Section 11. Amendments 107 and 108 say unambiguously that he must have,

“last arrived … on a local journey”.

So, by going to Paris for the weekend, this person has forfeited his qualifying CTA entitlement, which has to begin again from the time of his arrival back at Waterloo. Was that really the intention behind these amendments?

When I read my notes and attempted to study the background to these amendments, I gave my officials forewarning that, when questioned, I would certainly offer the facility of writing in greater detail to expand on what is relatively clear in meaning but seems incredibly complicated in writing. We do not want to repeal, for example, the 1971 Act. However, we will cover all those issues separately as part of the consolidated Bill, which is due to be announced before the end of this year.

The noble Lord asked to whom the amendments would apply, apart from Irish nationals who have ceased to qualify under the EEA regulations. That is the purpose; it is to fill the gap for those Irish nationals. Because I thought that some of the questions on this issue would delve back into the 1981 Act, and because I have had difficulty reading the wonderful website to which the noble Lord referred, I should be grateful if he would allow me to write to him on these matters.

However, I should say that the Government resist Amendment 61. In addition to the right of abode of Commonwealth nationals, the amendment would also allow persons with a permanent EEA entitlement to qualify under Section 6(2) and they would therefore benefit from the shorter qualification period. At the same time, the amendment does not extend to persons exercising CTA entitlement.

The government amendments recognise the close and special bond between the UK and countries in the CTA and the Commonwealth. It is right that we continue to recognise that special relationship through our nationality legislation, helping to reinforce the unique bond that exists between the United Kingdom and the people of the Commonwealth. However, it is not clear to me why EEA nationals should be given favourable treatment in this regard compared with everyone else and be able to nationalise via the quicker route. EEA nationals already benefit from being able to qualify for permanent residence, with all the advantages that that bestows, after five years in the UK, whereas, under our proposals, everyone else must wait up to 10 years to attain this status.

I should again make it clear that EEA nationals in a relationship with a British citizen or a permanent resident are perfectly able to qualify for the shorter time periods that apply to the “family” route. They simply have to choose to obtain leave to enter or remain on the basis of their relationship and qualify under Section 6(2) rather than rely on treaty rights. As such, I do not consider that this is in any way discriminatory against EEA nationals.

Our amendments also maintain the current position. At the moment, Irish nationals entering the UK from France do not have a CTA entitlement to re-enter this country. In most cases, however, they will have a right to enter under European law, and that situation will remain unchanged. I hope that the proposals set out in the Government’s amendments commend themselves to the Committee.

We did not say that the person who comes back on Eurostar does not have a right of re-entry at Waterloo—my noble friend says that it has now changed to St Pancras; I had forgotten that. We said that his qualifying CTA entitlement begins again from scratch the moment that he comes back to St Pancras, and that is incongruous. If this person has already spent a year in the United Kingdom, having entered from Dublin, the short holiday that he spends in Paris means that he has to begin the clock again from zero, and we find that result of the amendments bizarre. If the noble Lord would like to do so, I am perfectly happy for him to take this away and think about it a little further if he does not have the answer off the cuff.

On the point that the Minister made about the Commonwealth having special consideration, we are not talking about anything very special. We are talking about whether the person who has the right of abode here depends entirely on the relevant family association, which is a comparatively small point. For the sake of making the Bill slightly simpler, I should have thought that the Government would have leapt at Amendment 61, so that people with a permanent EEA entitlement would be treated the same as those with a Commonwealth right of abode.

I am beginning to see that whatever we say, and whatever the merits of our arguments, we are not going to get very far this afternoon. That is a great pity because, normally, the point of Committee is to try to improve the Bill. That is what we are doing; we are trying to assist the Secretary of State in her aim of making the journey to citizenship clearer, simpler and easier for the public and migrants to understand, instead of all the time making it more difficult.

The point that the noble Lord raises about weekends in Paris, as he seductively suggests, should be considered further. I will so do, and I therefore hope that Amendment 61, which the Government are at this stage resisting, will not be moved and that the government amendment commends itself to the Committee. I will write to the noble Lord on points outstanding.

Amendment 50 agreed.

Amendment 51

Moved by

51: Clause 37, page 27, leave out lines 15 to 19

Amendments 51 and 52 are intended as an opportunity for the Minister to explain what is meant by “continuous employment” and why the condition is thought to be necessary. The first amendment deletes the requirement in Clause 37 that a person must remain in continuous employment throughout the whole of the probationary citizenship stage. Again, we are grateful to the Minister for the Keeling schedule, which enables us to see where that fits into the BNA 1981. The expression “continuous employment” is not defined. If the Minister says that that will be done in future in guidance, that would mean that Parliament has no say in the detail of the requirement now or at any future time when the Executive may amend the guidance at their absolute discretion.

The second amendment provides that the person must not have been in breach of the conditions of that leave; there are already conditions attached to employment under the points-based system. For example, where the sponsor of a skilled worker under tier 2 of the PBS loses the sponsor licence, the worker has his leave curtailed if he is out of work for more than 60 days after that, unless he has less than six months of his leave remaining, in which case the leave will not be curtailed. If the worker finds a new sponsor to employ him within the 60 days, is he to be treated as having been in continuous employment, or is the period of his probationary citizenship to start again from the day he begins the new job, even though his temporary unemployment was through no fault of his own? If so, why do the Government consider it necessary to apply more onerous conditions to the worker on the path to citizenship than are already laid down by UKBA in the sponsor policy guidance manual?

There are already inconsistencies between the treatment of tier 2 migrants and that of migrants from the access states of the EEA in 2004 and 2007. To take the case of a migrant from Bulgaria or Romania, the UKBA’s European case work instructions provide:

“Employment is to be considered to be continuous if the applicant was legally working at the beginning and end of that period and any intervening period in which the applicant was not legally working did not exceed 30 days”.

We consider, therefore, that introducing a new and as yet undefined continuous employment requirement will create confusion and is unnecessary when there are already strict conditions that apply to workers changing jobs. We also fear that unknown conditions are likely to cause especial difficulty for domestic workers, whose ability to change employers is specifically restricted to another job of the same kind. The domestic worker who has to leave an abusive employer and will not therefore have a reference may be unable to obtain another job as a domestic servant and special arrangements should be made for people in those circumstances. Your Lordships have debated these problems many times over the past few years, but since the meaning of continuous employment is to be defined in guidance, from now on we are to have no say in the means of protecting this vulnerable group of workers. I beg to move.

I, too, have been wondering what is meant by “continuous employment”. A restrictive interpretation of it would be continuous employment with one employer. That in my view would be far too restrictive. In the present economic conditions people may be made redundant, lose their jobs or the firm may go bankrupt. Therefore, they should be given a reasonable period in which to find alternative employment. I would also like to endorse thoroughly what the noble Lord, Lord Avebury, said about domestic workers.

I, too, support both the amendments for the reasons given by the noble Lords, Lord Avebury and Lord Hylton. I am concerned that employees, particularly domestic employees, whose employer may behave improperly towards them, may have considerable problems. The Minister may say that Clause 37(7) applies, but one does not know whether that is to be flexible and broad or to be inflexible and used only in exceptional circumstances. In the period in which we are now living, when people may have come in under an entitlement to stay here in a particular form of employment but in the present economic climate may lose their job, as the noble Lord, Lord Hylton, said, they are in real danger under the wording of Clause 37 of finding themselves put back to the end of the queue and having to start over again. It seems potentially unjust, and if it is not unjust because subsection (7) applies, why is it there anyway?

UNISON, in its useful briefing on the issue, raises a number of concerns such as those outlined by my noble friend. It also points out that “continuous employment” is a specific legal term that means that in the majority of cases an employee must be working for the same employer in order to qualify. Is the phrase in the Bill intended to carry that specific legal term?

The present economic situation has been mentioned. I was recently in Poland, which is in the European Union and totally different from this country. Some Poles coming here had a job and had been told that they would be all right, but after two weeks their construction firm collapsed. They had already paid their worker registration fee, although are not talking about that. There is now such difficulty in obtaining employment that it would be totally unfair to insist on someone being in continuous employment before going on to citizenship.

I thank Members of the Committee for that contribution. I am afraid that I am going to disappoint the noble Lord, Lord Avebury. As I said, we are changing the way that migrants progress to citizenship. We are creating a clearer journey towards becoming a British citizen by putting in place three clear routes to citizenship, with clear requirements for progression on each route. To qualify for citizenship, those here on work routes must show that they are still working and paying taxes. If they do not meet that requirement they will not qualify for citizenship and will be required to leave the United Kingdom. This is wholly appropriate: those here on the “work routes” are here to do exactly that. If they cease to be in employment, they have ceased to meet the key requirement of their route and therefore should not be allowed to progress to citizenship. If these amendments were to be made, migrants who have come here to work would be allowed to qualify for citizenship despite being completely economically inactive for, in some cases, long periods. That is wholly unacceptable.

Furthermore, the amendment specifically proposes a requirement that the applicant has not breached conditions. However, under the existing proposals this is already achieved by virtue of the good character requirement. Under this requirement a breach of condition will normally lead to the refusal of a naturalisation application. As such, in practice, this part of the amendment is unnecessary.

At the same time, however, we recognise that there may be circumstances, especially in the current economic climate, where economically productive migrants cease to be in employment for short periods and through no fault of their own. That is why Clause 37(7) gives us the discretion to waive this requirement in compelling circumstances. However, this is quite different from removing the requirement for a person who has come here to work to remain in employment continuously, which this amendment would allow and which would be completely inappropriate. I therefore hope that the noble Lord will feel sufficiently convinced not to press the amendments.

Individuals can change employer. This condition is intended to ensure that an individual continually contributes to the United Kingdom economy while they are here, not that they have to be in the continuous employment of one employer. Domestic servants are not required to stay with the same employer but I take the point about references not being given. I also take the point that there are abusive employers of domestic servants. I am happy to take on board the point and, at the appropriate stage, at least explain in greater detail how this area will be dealt with. In principle, however, we do not consider that the Bill requires these amendments.

Is the Minister saying that continuous employment does not mean continuous employment with one employer? I think that that needs to be very clear. Continuous employment—not in domestic employment but generally—has been seen in many cases in the courts as involving one employer. That point has been made by UNISON in particular, as the noble Baroness, Lady Miller, said. The Government need to be clear about it. Do they want the courts to find that this is one employer? The word continuous is not same as continual; there is a real difference and I am not sure that the Government have taken it on board.

I note the noble and learned Baroness’s comments with interest and respect for her knowledge on these issues. If I had to give an example, I would cite someone working for a company that goes bankrupt. If the person came in with skills and could soon obtain employment with another company that had not gone bankrupt and required those skills then that would not, as I understand it, be in breach of the proposed conditions. However, it might be wiser to put this in writing to ensure that the courts will accept that interpretation. As I understand it, the Government’s intention is simply to ensure that we have continued employment and economic contributions from would-be migrants.

We are very grateful to the noble Lord for taking part in this debate and to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Hylton, and my noble friends Lady Miller and Lord Roberts. I think that they have put their finger on a number of really important issues which have not been fully resolved in the discussion.

When the Minister stood up and started talking about a clearer journey and clear requirements, I wondered whether he had been listening to us. This is totally unclear. We have no idea what the rules will be for determining whether a person has been in continuous employment or of how the discretion in subsection (7) that the noble and learned Baroness, Lady Butler-Sloss, has drawn our attention to is to be exercised. The Minister has thrown no light whatever on the Government’s intentions. Before we get to Report, we must have more information about what is continuous employment within the meaning of the British Nationality Act 1981 and how the discretion to disregard it in subsection (7) is to be exercised.

If the Minister really wants to be helpful, he ought to look at parallels such as the EEA regulations which contain definitions of continuous employment. The noble and learned Baroness, Lady Butler-Sloss, has referred to cases in the courts. If we had common definitions of what is meant by continuous employment throughout the legislation, that simplification would be of great help to the lawyers, to those involved in casework and to the workers themselves. However, I suppose that that is a little too much to hope for.

The Minister referred to the private domestic workers issue and I am grateful to him for promising to come back to us on that. However, under the Bill the migrant domestic worker has to remain in domestic service. They cannot leave domestic service and go into some other type of employment. When they are unfortunate enough to have an abusive employer, therefore, and do not get a reference, it will become virtually impossible for them to get another job in the same domestic sector. That is a fact of life. I hope, therefore, that we can find some means of allowing them to escape from this dilemma.

With regard to long periods of inactivity mentioned by the Minister, I need to know what he means. “Long” could mean 30 days, as in the EEA regulations, or it could mean 60 days. We do not have the faintest idea. No light has been thrown on the subject this afternoon. We look forward to communications from the Minister later on, certainly before we get to Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Amendment 52 not moved.

Amendment 52ZA

Moved by

52ZA: Clause 37, page 27, leave out lines 20 and 21

I should explain that the two amendments in this group have been renumbered and possibly also regrouped since they were first put down. Amendment 52ZA is concerned with the language requirement for citizenship. It has been drafted by the London office of the United Nations High Commissioner for Refugees. Its purpose is to ensure that refugees and those with humanitarian protection or their family members are not disadvantaged by an inability to meet the language requirements because of the special circumstances of their situation and past history.

The UNHCR points out that, before arriving in Britain, many refugees and protected persons will have fled from communities torn apart by conflict or persecution. They may have spent years in makeshift camps. They may have lived in remote areas with little available education, let alone access to English language training. I would add that some have suffered torture or other brutality, while others have a range of mental and physical needs, including dyslexia, speech problems and depression, all of which may make learning a new language difficult or impossible. We are considering a uniquely vulnerable group of people who differ markedly from young, healthy students or economic migrants. The group includes some full-time and part-time carers.

The Minister will notice that this is essentially a permissive amendment. It gives the Secretary of State discretion to waive the requirement if, and only if, it would be unreasonable for it to be met. I therefore ask the Minister to accept this very modest amendment as it stands, or at the very least to say that he will take away the principle behind it.

Amendment 61B also comes with the approval of the UNHCR. The high commission is concerned about the successful integration of refugees in the countries where they are recognised and accepted. The final solutions should not therefore be unnecessarily delayed. In particular, refugees should not be required to show that they were not in Britain in breach of the immigration laws at any time during the qualifying period for citizenship. The reason for this is simple. Article 31 of the 1951 convention prohibits states from imposing penalties on refugees on account of illegal entry or presence,

“provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

I have quoted directly from the convention. Delaying the start of the qualifying period is a good example of a penalty. Britain helped to draft the convention and has ratified it, and is not entitled to opt out or make a reservation by means of one line in a very miscellaneous Bill.

If his memory is exceptionally good, the noble Lord, Lord West, may recall that I wrote to him on 24 October last following a Written Question. I stated then that many genuine refugees fleeing persecution have no option but to travel on someone else’s passport or on a forged document. Others may have entered illegally by stowing away or by some other desperate expedient. All will have committed technical breaches of immigration law or rules, but provided that they subsequently comply with the convention, they should not be penalised. I therefore commend this amendment to your Lordships and urge the Minister to accept it. If he wishes to argue that the paragraph in question applies to the totality of applicants for naturalisation, will he please arrange for a redraft which would specifically exempt recognised refugees? Any perfected amendment should probably also take account of Clause 37(2)(f), which is similar. I beg to move.

I adopt entirely the arguments of the noble Lord, Lord Hylton. I cannot understand why the burden of proof should shift on to refugees to satisfy the requirement that they were not at any time during the qualifying immigration period in the UK in breach of immigration laws. I also adopt the argument he adduced that it is impossible for the Government to opt out of their international obligations, which they are seeking to do by virtue of what is in the Bill. I ask the Minister to think again about the provisions in question. That would partially satisfy both my noble friend Lord Hylton and me. I hope he will not object to this issue. I ask the noble Lord who will reply to this debate to be reasonable.

I, too, support the amendment moved by the noble Lord, Lord Hylton, and supported by the noble Lord, Lord Clinton-Davis. We have to go back to the 1951 UN Convention relating to the Status of Refugees. Article 34 states:

“Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings”.

That is the declaration in the convention, which we are proud of supporting over so many years. As has already been stated, we should not try to opt out. We need to clarify some points, such as “in special circumstances”. What are these circumstances? When the new simplification Bill comes before us, there will possibly be some elaboration on this so that we know exactly what it is. Which circumstances does the Minister consider to be special? We have sometimes heard the answer that every case is considered on its own merits. However, it is sad that so often we have to battle to get a certain case across. We need an overview of this and to think about it in some depth. What are these special circumstances?

I was saddened to hear as recently as last week that deportation to the Congo had resumed and that people in desperate situations had been sent back there. This Bill does not deal with that, but it deals with special circumstances. Let us support this amendment, look again at what special circumstances are and have a situation where people know where they stand, so that people who are despairing and who do not know the language can at least feel confidence in the Untied Kingdom as a haven for those in real distress.

This is the nearest sitting day to St David’s Day. I am delighted that not only are English and Scottish Gaelic included in the Bill, but so is the Welsh language. We will possibly discuss this on another occasion. Certainly, we support the amendment moved by the noble Lord, Lord Hylton.

I do not in any way resile from the amendments that have just been moved and are being discussed, but I want to utter the briefest cautionary word so that we are not too patronising. It is frequently suggested, in arguments of this sort, that there is no possibility of the individual concerned being able to understand our language or the circumstances. I am reading Africa by Mr Richard Dowden, director of the Royal African Society, in which he remarks that there are plenty of Africans who, because of the number of languages that are spoken in Africa, are the masters of at least five languages. That statistic is somewhat embarrassing in the context of these islands. We should not be unduly derogatory about Africans’ capacity to pick up languages. That said, I understand what underlies these amendments.

I agree with my noble friend. His amendment is very modest, as were the remarks of the noble Lord, Lord Clinton-Davis. Sub-paragraph (2)(f) is mean and unnecessary in the light of legislation passed over the 14 years that I have been a Member of this House, which has progressively excluded refugees at the point of entry and made life more difficult for them. The noble Lord has international experience and will appreciate the situation of many of these individuals. The subsection penalises not only migrants but also genuine refugees who have been forced to enter the country illegally. We have quarrelled again and again about passports and the necessity for destroying documents, and there are many genuine people in this country who have had to go through those hurdles.

As the noble Lord, Lord Roberts, said, the Government are on dangerous legal ground because states are obliged under Article 31 of the convention not to impose penalties on account of illegal entry. That is fairly straightforward. He also told us that Article 34 requires states to make every effort to expedite naturalisation. Having been stripped of their own citizenship, refugees surely have a strong moral claim to adoption by another state. The Bill as it stands takes them further away from the path of citizenship that the Government intend to lay for them and which we have heard so much about.

I shall be brief because nearly everything has been said. Having listened to the arguments that have been made about the near, if not total, illegality of what is proposed, I agree that it must make sense for the Minister and the Government to reconsider this issue. I agree with the noble Lord, Lord Clinton-Davis: why on earth should it be on the back of the individual to prove that they were not in breach of any of the immigration laws? That is an absurd requirement and must be seen as such. The point has been made again and again about the awful plight of refugees and the way in which they have been persecuted over long periods of time. I hope that the Government will look at the whole issue and find a way that will extend flexibility.

I support all noble Lords who have spoken. At Second Reading, I asked the noble Lord, Lord West, to assure the House that the comments by the United Nations High Commissioner for Refugees on the Bill would be taken seriously by the Government and I asked him whether he would look again at the points raised to see what could be done to improve the Bill and make it more in accordance with the refugee convention. There was understandably no reply at Second Reading because the Minister had too many questions to reply to, but I hope that in his reply to these amendments the noble Lord will give a positive response.

The UNHCR is a UN body and its comments should be taken seriously. These amendments have its support. In particular, the UNHCR briefing states that refugees should not be penalised for illegal entry and that any such penalty should not affect the qualifying period for naturalisation. We are talking here about refugees—people who have fled from appalling circumstances—and, as the noble Lord, Lord West, said in the Second Reading debate,

“each case, no matter who they are, is a personal tragedy”.—[Official Report, 11/2/09; col. 1209.]

I hope that we will get a favourable response to the amendments.

The broadness of the amendment is in contrast to the narrowness of the debate and the contributions made, which have been, to a large degree, about the issue of refugees, to which I shall return.

One of the key principles of our proposals is that anyone who wishes to remain here permanently and become a British citizen must obey the laws, and those are not limited to those who commit criminal acts. We also say that such people should have relevant leave or entitlement to be here; those who do not should not be allowed to become a British citizen. This reinforces the fact that, as well as from the public, we have a right to demand the highest of standards from those who wish to remain here. It has been a long-standing requirement that a person must not be in breach of immigration laws. This is contained in existing criteria for naturalisation.

It is worth mentioning here what it means to be in breach of immigration law. It applies to people who do not have a right of abode, do not have leave to enter or remain, do not have an entitlement to reside under the 2006 EEA regulations, do not fall under Section 8(1) of the Immigration Act 1971 for crew members and do not benefit from an exemption under Sections 8(2) to 8(4) of the same Act. We retain the discretion in Schedule 1 to the British Nationality Act 1981 to treat an applicant for naturalisation as fulfilling the requirement to not have been at any time in breach of immigration law, even though they may have been.

I turn now to the narrower points covered also in Amendment 61B. On the question of language, the amendment would not add anything to the situation that exists. There is already an ability in paragraph 2(e) of Schedule 1 to waive the English language requirement if, because of the applicant’s age or physical or mental condition, it would be unreasonable to expect him or her to meet the requirements.

Does the Minister confine that to the English language or does he include the three languages mentioned in the Bill?

Under the existing law it is the languages expressed in existing legislation. In future it will be the languages described in the legislation to come.

Additionally, the requirement does not apply to those aged over 65 or under 18. I take the point made by the noble Lord, Lord Brooke, that many of the people who come here have skills in several languages and that it is wrong to suggest that they will have great difficulty with the English language. However, it would be clearly an advantage for them to have the English language if they are to integrate and to be successful in our society.

I am grateful for the points made forcefully and eloquently by a number of noble Lords on the question of refugees. The Government will consider the points that have been raised. We note the special situation of refugees.

The UNHCR has taken the trouble to write to a number of noble Lords about this issue. It is all very well for the Minister to say that the Government will listen carefully to what has been said but we need something more positive. The Government ought to take into account what the UNHCR is arguing, which is much more positive than what he has just said.

The views of the UNHCR on international protocols do not necessarily accord with those of member states, including, in this case, the United Kingdom. Therefore consideration is the road that we should go down and we should think about a further discretion to cover the time periods taken for the consideration of protection cases. I hope that that is sufficiently helpful.

As I said before, the UNHCR considers this issue to be of paramount importance and many Members of this Committee share that view. What I would like the Minister to say is not that the Government will consider the issue but that the Government will be in touch with the UNHCR to derive from it the conditions that they are setting. We should be in absolute obeisance to what it has to say.

The Home Office is in daily contact with the UNHCR. I say that from the experience of my previous role in international affairs within the United Nations. We are clear on many of the views of the UNHCR and there will be dialogue between our colleagues and the UNHCR. Of this I am sure. I am also sure that we will take on board the strongly held views of my noble friend and others to ensure that we are in a position when we come back to this on Report to be helpful and informative in respect of the UNHCR.

I am extremely grateful to all noble Lords who have spoken in support of these two amendments. I notice that no one in any part of the Committee seemed to oppose them. I thank the Minister for what he has said. If I may attempt to summarise the reply, it was that the amendment about language is not strictly necessary. In that case, why can we not have it in the Bill? It would give an extra degree of clarity. With regard to the second amendment, on illegality and the qualifying period, it is encouraging that we are to have consideration and dialogue, but we need a little more than that.

Regarding language, we need an assurance that discretion will normally be applied so as to disregard any such restriction as is mentioned in paragraph 1(1)(c) of Schedule 1 to the British Nationality Act 1981, in the special case of refugees with humanitarian protection and their families due to the circumstances of their situation. With regard to the second amendment, it would be helpful to have an assurance that penalisation for illegal entry in the case of refugees would not operate to reflect the qualifying immigration status period. Would the Minister like to say anything further on those two points?

We need to await the discussion and the subsequent debate that will ensue on Report regarding the UNHCR. As I have said, we will continue to have discussions ahead of Report. With regard to the noble Lord’s second amendment on the question of penalties for refugees, the Bill does not penalise them in that way. Their qualifying period does not start until they are granted leave as a refugee. Therefore, the requirement not to be in breach of immigration laws does not become relevant for naturalisation until later, when that period has begun—in other words, beyond the point at which the status has been given. Furthermore, the requirement regarding breach of immigration law is about having the rights or the status to be in the UK, not about offences committed. I hope that that is helpful and that we can continue this discussion on Report. I urge that the amendment be withdrawn.

I am not at all reassured by what has just been said about non-penalisation. However, so that we can have further dialogue between now and Report, I beg leave to withdraw the amendment.

Amendment 52ZA withdrawn.

Amendment 52ZB

Moved by

52ZB: Clause 37, page 28, leave out lines 5 to 10

I hope that this will be easier for the Minister, because it is just a probing amendment. Since one of the routes to citizenship is through performing an exceptional Crown service and the Secretary of State is going to consider whether the applicant’s performance is so special that they can have citizenship, will the Minister kindly tell us exactly what an exceptional Crown service case will be, how it will be defined, how it will be known if it is seen and what the Secretary of State will take into account regarding an applicant’s performance for the service to be exceptional?

I will attempt to meet the noble Baroness’s aspirations, and if I fail I will be happy to extend that in greater detail in writing. The effect of the amendment would be to widen the circumstances in which the Secretary of State could exercise discretion to weigh the need to fulfil particular requirements in respect of exceptional Crown services. In particular, it would remove the need for a person to be serving outside the United Kingdom at the time of the application in order to qualify for the discretion. As the discretion is specifically designed to be applied to Crown servants who are serving overseas, we do not consider that to be appropriate.

At the same time, by defining the broad parameters of the discretion as we propose, we provide for greater transparency, which we think will help Parliament. Further, I can advise the Committee—and I hope that this starts to meet the points raised by the noble Baroness, Lady Hanham—that we would be likely to use the discretion when a Crown servant had demonstrated exceptional service by, for example, representing Her Majesty’s Government in a senior position such as vice-consul, or by demonstrating service significantly above and beyond the call of duty that has directly benefited the United Kingdom and its interests.

As I say, we intend to define the broad parameters of the discretion. I hope that we can, meanwhile, move along on that basis. Regarding the greater definition, that will be forthcoming but if, in the mean time, I can help the noble Baroness by giving more examples in writing, I will do so.

It would be helpful, but we are packing up an enormous amount for the Report stage here simply because we are not getting the clarity that we would hope for in the answers. The naturalisation here is either through an Armed Forces case or one of exceptional Crown service: so far, we have had someone who might have been a vice-consul quoted. It would be very helpful—before the Report stage, or as soon as possible—if we could know exactly who it might encompass. Someone in the armed services who is not, by definition, part of this country might be exceptional. We have had the Gurkhas, for example; there must be others who, it is anticipated, could be in that category. I wonder who they are. Are these people who are serving, or who have been here for some reason and are now serving in the forces? What would they particularly need to have done in order for the Secretary of State to consider them for naturalisation?

On the Crown service case, if it is only a vice-consul or an honorary consul then I am sure that they will have done a great job, but there must be someone better than, or as good as, that who might be considered. Could the Minister write to let me have the definition and the ideas of who might be included? I am sure it is perfectly all right as a paragraph, but in the interests of transparent legislation we might like to know what it means.

I confirm once again that I will write to the noble Baroness. However, this is doing nothing but maintaining the current position, so we are suggesting no change.

Amendment 52ZB withdrawn.

Amendment 52A not moved.

Amendment 53

Moved by

53: Clause 37, page 28, line 19, at end insert—

“( ) a qualifying CTA entitlement;”

Amendment 53 agreed.

Amendment 54

Moved by

54: Clause 37, page 28, line 21, at end insert “; or

(f) detention, temporary admission or release within the meaning of section 11 of, and Schedules 2 and 3 to, the Immigration Act 1971 if immediately following that detention, temporary admission or release the person had a status listed in paragraphs (a) to (e) above.””

In this amendment, we are trying to ensure that periods of temporary admission, temporary release or detention can count toward the qualifying period if they are immediately followed by a grant of a qualifying immigration status. Amendment 55 is an alternative to the first, which would ensure that those who have made a claim for asylum or who are here on human rights grounds, and those claiming entitlement to exercise rights of free movement under European Community law, can count time spent in the UK prior to the determination of their application as part of the qualifying period, and that

“exceptional leave to remain outside the immigration rules”,

also counts toward it.

Some migrants may have their path to citizenship interrupted by the UK Border Agency for reasons that turn out to be unnecessary, or sometimes where there might have been misinformation and a wrong decision has been taken. These amendments seek to further the Government’s aim of promoting integration of those migrants who are anticipated to make the UK their home by ensuring that delays in processing their claims, or unnecessary interruptions in their temporary leave, do not delay their progress toward citizenship.

Amendment 54 would mean that someone who was awaiting the UK Border Agency to resolve their application for leave to enter the UK would not be prejudiced by that delay, contributing to an overall delay in their progress to citizenship. Under Schedule 2 to the Immigration Act 1971, a person who arrives in the UK may be granted temporary admission while the UK Border Agency considers his or her entitlement to be granted temporary leave. This generally applies to refugees and others who may qualify for humanitarian protection or discretionary leave on the basis of a human rights claim.

Amendment 54 would also mean that someone who was wrongly detained while on temporary leave or otherwise had his leave wrongly curtailed would not be prejudiced by having to start the path to citizenship all over again once this unnecessary or perhaps misinformed interruption was resolved.

Let us think of a person who arrived in the UK, claimed asylum and was then granted temporary admission. However, their asylum claim was not dealt with for several months and was then refused on incorrect grounds. Although the person successfully appealed against the decision, they were not recognised as a refugee until several years had passed since their arrival. All the time that they had been in the UK, up to the point at which their refugee status was granted, they were on temporary admission, had complied with all the conditions of it and had not been in any breach of immigration laws. Nevertheless, under Clause 37 as it is currently drafted, their time in the UK awaiting the decision to recognise them as a refugee would not be allowed to be counted towards their qualifying period of citizenship.

I would have thought that the Minister, having heard the debate on the previous amendment, of the noble Lord, Lord Hylton, to which many other noble Lords contributed, would have got the drift of the feeling of the Committee by now; namely, that that would be seen by us to be rather unfair. On that basis, I hope that he will consider this amendment favourably as it enhances the agenda of integration. I beg to move.

I support the noble Baroness’s recommendation, particularly with regard to the specific rights for refugees. Without repeating too much what has been said on previous amendments, I say that the country’s support for the 1951 Geneva Convention certainly requires us to expedite the naturalisation process for refugees. Lengthening qualification periods for them in any way is surely a direct violation. It is vital, for example, that pending claims for asylum count towards the qualifying immigration status, so that refugees can begin to rebuild their lives as soon as they are granted asylum here. Although the amendment is yet another in this same sort of grouping, as the noble Baroness said, I hope that the Minister has picked up the general feeling around the Chamber that there is great unfairness, to put it mildly, in what is going on in this Bill.

The speaker from this Dispatch Box is aware of the possibility of being clobbered several times with questions and statements. I am pleased to be able to say on this important issue not only that the points are recognised—I thank noble Lords for raising them—but also that I agree that the suggested amendments warrant further consideration. L Committee’s agreement has been sought and obtained to table amendments which will partly cover these proposals, which we intend to move on Report.

The amendments that I propose to table will ensure that the clauses give discretion to waive the requirement for qualifying immigration status for the whole of the qualifying period in relation to Section 6(1) and (2) of the British Nationality Act. Although it is not possible at this stage to give specific examples of where that discretion may be used, the expectation is that it would be used only in a limited number of cases, but would give the necessary flexibility to the system that we are creating.

The Government remain fully committed to meeting their international obligations in respect of those fleeing persecution. However, we do not propose to go as far as permitting any time spent in detention, or on temporary admission, or temporary release where that is followed by a grant of qualifying leave, or any time spent pending an application for leave to remain in connection with an asylum, human rights or humanitarian protection claim, to count towards the qualifying period. This is in part because, in asylum cases, a decision is based on the prevailing circumstances at the time the case is considered—some 60 per cent of cases are now dealt with in a six-month period—in addition to taking into account the facts of the claim when originally made. For example, the fact that a person is recognised as a refugee does not always mean that he was so from the start. Events in the country of origin, fresh evidence or case law, or a finding on appeal could justify recognition after the initial application was made.

I would advise noble Lords that leave granted outside the immigration rules will fall under the definition of temporary residence leave where it leads to a grant of probationary citizenship. As such, it would be unnecessary to make specific provision in the legislation for exceptional leave to remain to count towards qualifying immigration status.

I hope that noble Lords will agree that a fuller debate on these amendments would be more appropriate. I look forward to bringing amendments to your Lordships’ attention on Report and hope that this amendment will be withdrawn.

The Minister said that not every period of detention will be counted. I will ask about one group of detentions that I think he will agree would have to be counted in whatever system he devises. I refer to cases where it is found that a person was detained unlawfully. I recall the case of a refugee from Cote d’Ivoire who was detained for something like six months. I wrote to Beverley Hughes, who was then the Minister who dealt with immigration, no less than nine times, without getting a reply. In the end, when this person was released, she brought proceedings against the Government in the High Court and won damages of £60,000. In a case of that kind, where the Government are plainly wrong and have had it drawn to their attention that they are detaining a person unlawfully, surely it would be unfair not to count the period that the person spends in unlawful detention towards the qualifying period.

The noble Lord is very experienced and will recognise that I cannot comment on individual cases. He makes a powerful argument that has been brought to the attention of the responsible authorities, and we will put forward amendments that I hope will meet with the consent of many noble Lords. I hope that this amendment can now be withdrawn.

I am grateful to noble Lords who have supported these amendments. I am also encouraged by the Minister’s reply. In order to facilitate the decision-making of those of us who support these amendments, when the Government are tabling their amendments, could they either give sufficient time for us to see them and respond through amendments if they need improvement, or write to us and tell us the contents of the amendments in good time for us to respond before Report?

Another point that was not made entirely clear to me concerns a case where the Border Agency has made a mistake, perhaps on the basis of misinformation. Someone could come as a skilled worker and then have their temporary leave curtailed because it is thought that they have not abided by the conditions. If they are then detained to be removed, but can prove that it was the agency’s mistake rather than anything they had done, they might have their leave reinstated: we understand that. However, under Clause 37, they would be required to begin their path to citizenship all over again, because of the insistence that the qualifying immigration status has to apply throughout the qualifying period.

In that case, the period of detention would not count as qualifying status, even though it would have been no fault of the person himself, and would in fact have been the fault of an agent of the Government. The Minister did not really cover that part of it; would he also address that anomaly in future amendments?

I am delighted to give the assurance that we will write to noble Lords and do so either with the amendments or with an explanation of what they will contain in sufficient time for their digestion and responses. I shall also undertake to include in that response the important point that the noble Baroness raised with me.

Amendment 54 withdrawn.

Amendment 55 not moved.

Amendment 56

Moved by

56: Clause 37, page 28, line 25, at end insert—

“( ) Nothing in this section shall affect the application for British citizenship made by an applicant prior to the commencement of this Part.”

This amendment would ensure that the new provisions in the Bill could not be applied to applicants whose applications were pending when Part 2 commenced. The amendment also provides an opportunity to probe what will happen to those with limited leave to remain, or those yet to qualify for limited leave to remain, when the new provisions come into force.

The trouble is that the Government have a bit of form on this. In 2006, they changed the highly skilled migrant programme and then applied it retrospectively, catching quite a number of people within those provisions, for some of them extending the time that they had to wait from four to five years and causing quite a lot of hardship as a result. It is important that this is made clear now. I go back to my comment at Second Reading that, if we are not clear about this and this is not done, many people who are in this country and are progressing on their way forward to citizenship, following all the rules that have been put before them, will be in that position of snakes and ladders. They will think that they are progressing at a good rate and doing the right things but will suddenly find themselves down at the bottom of the pile again and having to start all over.

This just needs a simple agreement from the Government that the provisions will be applied only as and when Royal Assent is achieved. That would make it very clear to anybody else in the process at the moment that they will proceed under the rules that pertain at the moment. I beg to move.

The amendment provides that an application lodged before the commencement of Part 2 would be dealt with under the law as it stands today. It also provides us with a very useful opportunity to ask the Government on their intentions regarding people with limited leave to remain at that point. Those people will have planned their future lives on the basis of current legislation, which allows them to apply for indefinite leave to remain at the end of their period on temporary leave. If there are no fair transitional arrangements, they will be obliged to apply for probationary citizenship leave, extending the time that they have to spend on temporary leave and persuading many to defer the major life commitments that people undertake, such as starting a family or buying a house, and thus delaying the integration that is claimed to be one of the Government’s main objectives.

I refer to a High Court case heard last year, dealing with changes to the scheme known as the highly skilled migrant programme, in which Judge Sir George Newman referred to the adoption of legitimate expectations. He said in conclusion that he was,

“satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them”.

That was the case involving HSMP Forum Ltd. If the Minister needs to look it up, its neutral citation number is 2008 EWHC 664. That judgment seems to me highly relevant to the amendment moved by the noble Baroness because the High Court found that the legitimate expectations of these highly skilled migrants under the previous scheme should have been honoured. As I understand it, the amendment would ensure that people who have entered with legitimate expectations should not be denied the privilege of remaining in that course of action.

I hope that I can be more helpful on this amendment than I appear to have been on earlier ones, judging from the Committee’s reaction. Members of the Committee have referred to the transitional arrangements that we intend to put in place when the provisions of Part 2 become law.

I reassure the Committee that any application for naturalisation that is received by the UKBA before the earned citizenship provisions are implemented, and which remains undecided, will be considered under existing arrangements set out in the British Nationality Act 1981; that is, the earned citizenship provisions will not be applied when the application is considered.

I also advise the Committee that officials are examining what transitional arrangements will be put in place for those who are currently in the immigration system but who have yet to submit an application for indefinite leave to remain or for naturalisation. We intend to set out details of these transitional arrangements in the commencement order that gives effect to Part 2.

On the point made by the noble Lord, Lord Avebury, migrants who are in the UK and have existing limited leave to enter or remain will be able, under the new system of qualifying immigration status, to count that time towards a qualifying period for naturalisation as a British citizen. I hope that with that reassurance the noble Baroness will feel able to withdraw the amendment.

I do not understand the position with regard to the transitional arrangements. I understood the noble Lord to state clearly that anybody who is in the system at the moment will carry on as the system is at the moment and that, after Part 2 has commenced, any new applicants will come in under the earned citizenship arrangements. I am afraid that I do not understand where the transitional arrangements come into this. If they mean something different from “not starting until the commencement of Part 2”, I am not sure what the noble Lord is suggesting will happen. Will he amplify that?

Having said that we propose to change the way in which people will be covered by these systems, I should add that a number of areas requiring further development remain. The existing arrangements for naturalisation will continue until those proposals are put before Parliament. We have yet to make a final decision on how our proposals will impact on people who are already in the immigration system. We are continuing our work in this area and hope to make a further announcement in the summer. So it is a matter not of those who have not yet made an application but of those who are in the system at present but will not necessarily be affected by the new proposals coming in as they are already being considered.

I was slightly confused by all the negatives there. I take it that it is intended that those who are in the system will go on in the system unchanged and that those who come in later will be taken through the transitional system. Is that right?

Not quite. Those who apply before the new system comes into operation will be dealt with entirely under the present arrangements. There will have to be transitional arrangements for those other persons who are in the system and have already applied but whose cases will not necessarily have been dealt with. I think that it would be better if I set out in a note how the transitional arrangements will apply. We have not devised precisely how they will apply—we are still working on that—but I can certainly send an interim note setting out why we think that we need to have transitional arrangements and to whom they will apply.

It is important to avoid any kind of retrospection in this legislation. I hope that the noble Lord will take that into account.

Indeed, that is why I shall explain in a note not necessarily what the transitional arrangements are but why we need to apply them. The note will cover those who have already applied, who are therefore covered by the present arrangements, and those to whom the transitional arrangements will apply. Such an explanatory note might be helpful. I take noble Lords’ points on board.

We will need a note, because I have a huge concern to ensure that the people whom we were trying to cover under the amendment—the people who are at various stages of the current naturalisation process—will not be caught by this. We want to ensure that they can proceed as they have been proceeding under the previous legislation. They should get their naturalisation and their citizenship under the rules that apply at the moment. I think that the Minister has said that transitional arrangements might apply to those people. I do not understand that, because it does not seem to make sense. I can understand that some people will apply between today and the commencement of Part 2 and may need transitional arrangements, but I am much more concerned that the people who are already in the system and are progressing their way through it should not be left in a situation where they have to start looking at Part 2 and finding that they cannot comply because they cannot do an activity, cannot speak Scottish and Welsh or cannot comply with other rules and are, therefore, trapped in a system that is changing in front of their eyes.

It is important that retrospection does not get caught up in this. The noble Lord, Lord Avebury, cited a case that I have before me but did not worry the Committee with. That case left the Government looking not very clever, although I gather that they have been clever enough to manage not to implement the judgment. If this issue needs further clarity, I should be grateful for it, but I hope that I have been as clear as I can be about my concerns regarding those currently in the system and those who will apply before Part 2 commences and whether a different system will apply there. If there are to be transitional arrangement for the people currently in the system, I shall certainly return to this matter on Report.

The noble Baroness makes her position absolutely clear, which is why a note of explanation, fairly urgently delivered, will be useful. We are prepared to respond further on that basis. The point on retrospection was taken and well understood.

I am still not at all clear what is happening, but for today’s purposes I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

Clause 37, as amended, agreed.

Clause 38: Application requirements: family members etc.

Amendment 56A

Moved by

56A: Clause 38, page 28, line 39, at end insert—

“(5) Notwithstanding the power of the Secretary of State to exercise his discretion under subsection (4), he shall, in addition, for the purposes of subsection (3) prescribe circumstances in which A shall be treated as having a relevant family association on the date of the application although the relevant family association ceased to exist before that date.”

Our amendment concerns the discretion mentioned in the Bill. It probes the Government’s intention as to the circumstances in which the Secretary of State would exercise his discretion and treat the person’s relationship as subsisting. In addition, we wish to provide for the power to make regulations to lay down criteria as to when a person’s relationship shall be treated as subsisting. Clear-cut cases are not subject to arbitrary discretion; however, it may be helpful if the Secretary of State retained some discretion to enable him to step in to help in exceptional cases.

Our concern in tabling these amendments is to protect the welfare of children and spouses where there is violence, neglect or abuse. The Committee may recall that we had a substantial debate on domestic violence the week before last. The House recognised at that time that domestic violence was widespread and we are concerned to cover in the Bill the unfortunate circumstances of people who might be caught up in that cycle of violence. It is, therefore, important that the adult from abroad without settled status is in a position to leave the other settled or British partner and, if appropriate, have responsibility for caring for the children, whatever their status. This means that the adult without settled status must not be treated as a person subject to immigration control and should, therefore, be able to access social security and tax credits.

I realise that we will go into more detail on the status and rights of children when we get to Clause 51, but would the Minister like to comment in particular on the implementation of the UN Convention on the Rights of the Child? The Children’s Rights Alliance for England published a useful critique, which the Minister may have had a chance to look at, making a number of points about immigration and children. The circumstances of this amendment are pretty tight in that it would not, I hope, apply to many individuals, but it would mean that the Secretary of State had the discretion that we mentioned. I beg to move.

There is no intimation of a clause stand part debate on Clause 38, so, if I may, I shall take the opportunity of this amendment to Clause 38(2) to revert to the observation of the Delegated Powers Committee on this subsection.

When we debated Clause 9 last week, I referred backwards to Clause 8, and especially Clause 8(2), which had also prompted comments by the Delegated Powers Committee. Those comments had embraced Clauses 9 and 10, as well as Clause 8. I was obviously not seeking to go backwards then but I indicated that, if the Government had not yet responded, I would return to the matter on Report. The noble Lord who responded for the Government on that occasion said that he was not aware of any reply and accepted the notice, but he later let us know that the Government had replied. I of course accept that my reference was taken from the third report of the Delegated Powers Committee, and the fourth report, which has not yet been published, will presumably contain the reply, but I cannot know whether that reply will resolve the matter. Exactly the same thing has happened with regard to Clause 38(2), which the Delegated Powers Committee has drawn to the attention of the House. I do not want to unsight the Government, so I shall return to this matter again—in this case, on Report—unless the Government’s reply, which presumably by then will have been published, has resolved the matter satisfactorily.

Perhaps I may, first, assure the noble Lord, Lord Brooke, that the response has been dispatched and I have knowledge of it, but it may be easier for the matter to be dealt with on Report, when we have had sight of the reply.

Our position on Amendment 56A is that it is not necessary to specify in the Bill the circumstances in which a person will be treated as having a relevant family association on the date of application for naturalisation, even though the association had ceased to exist before that date. Clause 38 contains a power for the Secretary of State to apply discretion in cases where a relevant family association may have ceased before the date of the application and nevertheless allow a person to be naturalised, despite them not being able to meet this requirement. The Secretary of State is provided with the power to use this discretion flexibly in exceptional circumstances and in respect of the specific circumstances of a case.

We do not wish to set down in regulations particular classes of cases where the discretion will normally be used, as the expectation is that discretion will be applied only in exceptional circumstances. We will, however, set down in advance, and make publicly available, guidance regarding the circumstances in which this discretion may be applied.

The noble Baroness raised a question concerning the rights of the child, but I have to confess that I am not currently in a position to provide the information that she wants. As she rightly said, that matter will be part of the debate on a later amendment and later clause. I hope that the noble Baroness will feel able to withdraw the amendment.

I rise only to draw attention to the fact that this is yet another case where guidance is expected to be published on how discretion is to be exercised, and quite an important one, because, in this case, the Secretary of State is taking power to deem that a relevant family association continues to exist although it has in fact broken down since the date of the application. It is crucial, if we get to the end of the period and a relationship has broken down for whatever reason, to know how that discretion will be exercised. We are completely in the dark, as so often with the Bill.

I have lost count of the number of times when the Minister has assured us that guidance will be published and that we will get it in good time, no doubt before Report. Your Lordships are supposed to be discussing the matter in Committee. If we have to wait until Report, it is a bit late to make any alterations or suggest ways in which the Government could improve the guidance, assuming that we have seen it by then. This is a very unsatisfactory way of discussing a Bill of any kind, but especially one that affects the human rights of vulnerable people, as this Bill does. I regret that the Minister has had to keep on getting up to tell us that guidance will be published and that we will see it sooner or later.

I recognise the noble Lord’s frustration and, to some extent, I share it in having to deliver that unpalatable message. On this occasion, perhaps I may say that we are clear that a person who wants to be naturalised under Section 6(2) should demonstrate that they have a relevant family association. However, we recognise that in some cases, limited cases, that connection may have ended, and it would be wrong to refuse an application for citizenship because of that. As I said, we expect that that discretion will be used only in exceptional cases. However, an example where we might apply it—this is the obvious one—would be where a person is bereaved shortly before the qualifying period was due to be completed.

I am sorry that I cannot go further than that, but I take the admonishment to heart and will seek to provide the information at the earliest possible opportunity.

The Minister said in reply to me that he would be bringing forward guidance “in advance”. Now he has just used a different phrase: “at the earliest possible opportunity”. Will that be before Report? That has a huge bearing on how much we need to think about further amendments, and so on. My noble friend has aired the frustration on these Benches, which I am sure is shared by the Conservative Front Bench—the noble Baroness, Lady Hanham, is nodding.

I gave the specific example of domestic violence. That is a very serious case. It would be very helpful if the Government, even if they do not have the final guidance, could give us a list of what would constitute exceptional cases, for example. I shall give the Minister a chance to elucidate a bit further.

First, I have an explanation. “In advance” meant that and “as soon as possible” was an attempt to take on board the urgency and frustration expressed from the Liberal Front Bench and elsewhere that we are asking people to make decisions and to discuss matters without total information.

It is unlikely that we will be able to produce the guidance by Report, but the noble Baroness makes the valid point that we should try as far as possible to produce those cases—I have used the case of bereavement; she has used the case of domestic violence—that would clearly be relevant. Those are but two examples that might be added to. I hope that officials will take note of the Committee’s concern and that we will have that available as soon as we can.

I thank the Minister for his reply. In withdrawing the amendment, I should say that we will therefore be minded at least to table an amendment listing things that we would see as exceptional so that the Government can confirm or otherwise whether they would be. If something more comes from the Minister in writing before Report, we will obviously think about it. In the mean time, I beg leave to withdraw the amendment.

Amendment 56A withdrawn.

Amendment 57

Moved by

57: Clause 38, page 29, leave out lines 16 to 18 and insert—

“(c) that, subject to sub-paragraph (5)—(i) A had a relevant family association for the whole of the qualifying period, and(ii) A had a qualifying immigration status for the whole of that period;”

Amendment 57 agreed.

Amendment 58 not moved.

Amendment 59

Moved by

59: Clause 38, page 29, leave out lines 16 to 18

Currently, a migrant in the UK with temporary leave who has entered on the basis of marriage or civil partnership with a British citizen can apply for citizenship when he has been in the UK for three years without absences of more than 270 days during that period and no more than 90 days in the last of the three years. Under the Bill, an additional provision is added that he must have spent the whole of that period in a relevant family association, the definition of which is again to be prescribed in regulations that we have not yet seen under Section 41 of the BNA and, therefore, as I understand it, not subject to parliamentary scrutiny. The Minister will correct me if I am wrong, but I think that the power under Section 41 does not provide for either negative or affirmative resolution of Parliament but is at the absolute discretion of the Secretary of State.

Presumably, the Government are concerned with people who use the marriage or civil partnership route as a device to gain entry into the United Kingdom without having a genuine relationship. There have been many allegations in the past about bogus enforced marriages for precisely that purpose. According to the Home Affairs Select Committee in another place, the Government’s Forced Marriage Unit deals with 5,000 inquiries and 300 cases of forced marriage each year. To quote from the summary of the committee's report,

“marriage visas are still being granted in cases where the visa sponsor has been forced into marriage and compelled to sponsor the visa. Victims are being failed by the lack of a mechanism consistently to refuse entry to the UK in cases where an individual has been forced into marriage, and this failure is compounded by the absence of a mechanism by which the Government can accept information from third parties on reluctant sponsors. We recommend that visa sponsors are interviewed where there is suspicion of a forced marriage, including where suspicion is raised through information provided by third parties. We also recommend that the Government attach a power of refusal without the need for an evidential statement to visa applications in the case of reluctant sponsors”.

It seems to us that far more should have been done in the past to check the bona fides of applicants for marriage or partnership visas. To wait for three years to see whether the relationship has continued, as we will do under the Bill, is entirely the wrong approach. The resources intended to be used to check that partners are still together at the end of the three years would be far better deployed in improving checks on sponsors in the first place.

In their response to the Select Committee, the Government increased the age at which someone can sponsor or be sponsored as a spouse from 18 to 21. They agreed to improve their current system for investigating allegations of abuse of the marriage route and to ensure that information and advice is available to sponsors, including awareness of the Forced Marriage Unit, by December 2008, and they promised to set out their approach to selective interviewing of sponsors. Can the Minister give us an update on those developments and tell us whether they have made any difference to the 40,000 marriage visas awarded in 2007? It is probably a bit early, but if he can tell us the number of marriage visas awarded in 2008, that will be interesting. What difference do the Government expect the new conditions to make at the end of the three years to the number who will apply for citizenship?

On Amendment 63, the definition of relevant family association appears not to include dependent relatives. Are they to be covered under the Section 41 regulations? If so, why were they not mentioned in the Explanatory Notes, which lift the curtain only a little by giving the example of a partner? Will the Minister say why the dependent relative, having put in an appearance in Clause 31 of the draft partial Bill, has now disappeared without trace? Amendment 63 ensures that the migrants whose UK partners have a right of abode in the UK or have acquired a permanent entitlement to reside in the UK under European law can apply for citizenship on the same basis as if the UK partner was a British citizen or had permanent residence.

We need to ask the Minister about the Government’s intentions regarding the right of abode, which the partial Bill proposed to remove altogether. I recognise that we have a Commonwealth right of abode under Clause 45(5), but since the definition is unclear, we are not certain whether every person with an existing right of abode is covered by the new status. I would be grateful if the Minister would elucidate that point. I beg to move.

The noble Lord asked a series of questions about marriage visas and so on, about which, frankly, I do not have the information in my brief, so, yet again, I have to fall back on the proposal that I write to the noble Lord and let him have the information. I offer the list that comprises the relevant family associations that count. I have to say that the exact content of the regulations is yet to be determined, but we are considering whether to include the following groups: unmarried and same-sex partnerships of British citizens and permanent residents; bereaved spouses and civil partners; unmarried and same-sex partners of British citizens and permanent residents; victims of domestic violence of British citizens and permanent residents; dependent relatives of British citizens and permanent residents; and persons exercising access to rights to a child’s residency in the UK.

The regulations are likely to include other conditions recognising unmarried partners if they have been in a relationship for two years, which is the normal term—we do not intend to change it. When the regulations are presented they will be subject to the negative resolution procedure. We are clear that forced marriage is an abhorrent crime and that the Government will do everything we can to stamp it out and support victims. Guidance on the whole immigration system is being prepared for publication as a result of the public consultation next year.

The principles behind the Bill’s proposals are to provide three separate routes and therefore we require people to pass through these stages as I have indicated. These are the key principles that underline it. We have said that migrants who come here have to work, but we also want to take care of the exceptions in those circumstances we expect in terms of discretion. I regret to say that I have to fall back again on writing to the noble Lord. As I have said, the consultation continues on what will be the guidance subject to the negative procedures.

I suppose that one has to be content with small mercies. I have to thank the Minister for correcting me on the subject of regulations made under Section 41 of the British Nationality Act 1981. At least they are subject to negative resolution and we will have an opportunity to discuss them on the Floor of the House, which is better than I was thinking in the first instance: that it was being left to the discretion of the Secretary of State.

The Government have been giving serious consideration to further measures following the sixth report of the Select Committee in another place on forced marriages. We are grateful for what they have done so far and I was glad to hear what the noble Lord said about the seriousness with which the Government take the question of forced marriages. It would be useful, however, to know whether the steps that they already took, which I recapitulated a little earlier, had begun to make any difference. I refer to raising the age from 18 to 21; the improvement of the current system for investigating allegations of the marriage route; and, particularly, ensuring that advice and information is available to sponsors, including awareness of the Forced Marriage Unit. The Select Committee promised that it would respond by December 2008. The noble Lord might have had some news on the matter, but if further measures are being contemplated that would reduce the number of forced marriages, I would be glad to hear about them. However, it does not prevent me insisting that the real solution to forced marriages is to have more thorough vetting of the applications and, in particular, of the knowledge of them by sponsors.

I was flabbergasted to learn that because of the number of visa applications—they amounted to 40,000 in 2007—no regular interviewing of sponsors was carried out to find out whether they were genuine and intending to marry the person concerned. There has been considerable abuse of this route and there have been repeated assurances by Secretaries of State going back to Mr David Blunkett some years ago that there was to be a clampdown and all measures that could be taken to avoid forced marriages had been accomplished, yet every time we have a new Bill, fresh measures are announced.

This is an important issue to which we probably have to return on Report. For the time being, I beg leave to withdraw the amendment.

Amendment 59 withdrawn.

Amendment 60

Moved by

60: Clause 38, page 29, line 19, leave out from “application” to “and” in line 22 and insert “—

(i) A has probationary citizenship leave, or permanent residence leave, based on A’s having the relevant family association referred to in section 6(2), or(ii) A has a qualifying CTA entitlement or a Commonwealth right of abode;”

Amendment 60 agreed.

Amendment 61 not moved.

Amendment 61A not moved.

Amendments 61B to 63 not moved.

Amendment 64

Moved by

64: Clause 38, page 30, line 1, leave out from “leave” to end of line 3 and insert “—

(a) the requirement specified in sub-paragraph (2)(c)(i) is fulfilled only if A was that person’s partner for the whole of the qualifying period, and(b) for the purposes of sub-paragraph (2)(c)(ii), A can rely upon having a qualifying immigration status falling within paragraph 4A(1)(a), (b) or (c) only if that partnership is the relevant family association upon which the leave to which the status relates is based.”

Amendment 64 agreed.

Amendment 65

Moved by

65: Clause 38, page 30, line 9, at end insert—

“(7) For the purposes of sub-paragraph (5), the relationship by reference to which A and the other person are partners need not be of the same description for the whole of the qualifying period.””

Amendment 65 agreed.

Amendments 66 to 76

Moved by

66: Clause 38, page 30, leave out lines 21 to 25 and insert—

“( ) treat A as fulfilling the requirement specified in paragraph 3(2)(c)(i) (including where it can be fulfilled only as set out in paragraph 3(5)) where a relevant family association of A’s has ceased to exist;”

67: Clause 38, page 30, line 27, leave out first “3(2)(c)” insert “3(2)(c)(ii)”

68: Clause 38, page 30, line 27, leave out second “3(2)(c)” insert “3(2)(c)(ii)”

69: Clause 38, page 31, line 2, leave out “A” and insert “Subject to paragraph 3(5), a”

70: Clause 38, page 31, line 4, at end insert “based on a relevant family association”

71: Clause 38, page 31, line 5, leave out “; or” and insert “based on a relevant family association;”

72: Clause 38, page 31, line 6, at end insert “based on a relevant family association;

( ) a qualifying CTA entitlement; or( ) a Commonwealth right of abode.”

73: Clause 38, page 31, leave out lines 7 to 9 and insert—

“( ) For the purposes of paragraph 3 and this paragraph, the leave mentioned in sub-paragraph (1)(a), (b) or (c) is based on a relevant family association if it was granted on the basis of the person having a relevant family association.”

74: Clause 38, page 31, line 12, leave out “based on” and insert “and”

75: Clause 38, page 31, line 15, leave out “rely on” and insert “have”

76: Clause 38, page 31, leave out lines 17 to 21 and insert—

“( ) Where, by virtue of sub-paragraph (3)(a), a person relies upon having more than one qualifying immigration status falling within sub-paragraph (1)(a), (b) or (c)—

(a) subject to paragraph 3(5), it is not necessary that the leave to which each status relates is based on the same relevant family association, and (b) in a case where paragraph 3(5) applies, the relationship by reference to which the persons referred to in paragraph 3(5) are partners need not be of the same description in respect of each grant of leave.””

Amendments 66 to 76 agreed.

Clause 38, as amended, agreed.

Clause 39 : The qualifying period

Amendment 77

Moved by

77: Clause 39, page 31, line 28, leave out from “period” to end of line 29 and insert “is—

(a) 6 years in a case within paragraph 1;(b) 3 years in a case within paragraph 3.”

I am moving the amendment to try to find out what the Government mean when they include the activity section in Clause 39. May I at the outset declare my interest as chair of the England Volunteering Development Council, which is part of Volunteering England? I have been briefed by Volunteering England and also by the Joint Council for the Welfare of Immigrants.

There are considerable concerns about the requirement, some of which have been expressed in the House this afternoon. Volunteering England is a member of the design group. We are not going to do anything about the design group this afternoon, but it is apparently drawing up the regulations which will govern this aspect. We do not have the regulations before us and therefore we have no idea how the design group is designing what it means by “activity”. I know that Volunteering England has taken a major part in this, but it has also put forward some of its concerns to the meetings. However, the legislation is here and now and we need to deal with some of the anxieties that have been raised, otherwise opportunities to do so will fade away.

Volunteering is by definition an undertaking that individuals want to do: they want to do it to help others. It is not usual—in fact, I think it is probably unheard of—for it to be a statutory requirement, or one that affects people's future, but that is what it would be under Clause 39. It is there to expedite the route to citizenship. It is blackmail, to some extent, in that by undertaking a voluntary activity you get citizenship somewhat quicker. However, to do that, individuals will have to undertake either community or voluntary work. It begs a number of questions that might have been answered if the design group had completed its work; but it has not.

In 2007, according to Home Office figures, there were 160,980 applications for British citizenship. There were 164,635 grants of British citizenship in that year. If we extrapolate those figures, we can presume that even if the regulations for citizenship are tightened up, there will be about 160,000 people wandering around trying to do voluntary work. There are 190,000 registered charities and probably just as many small unregistered ones which may or may not have to be licensed to undertake or help with this voluntary activity.

People coming into this country and wanting citizenship all have a very firm view of why they want to be here. But how many of them will know or understand about voluntary service? How many of them will know or understand what they should be doing? How many of them will know or understand how to go about it? And how will they then find those volunteering opportunities? Aspiring citizens may not have any idea where to look for volunteering opportunities in an area.

What will be the mechanism by which they are guided or advised on how to undertake this requirement? How much leeway will be given in the amount of time they have to do this work when they are working to keep themselves in this country? They are actually working. They may have a family to support and manage, and they may well have very limited hours to spend outside their home. Many are already working all the hours God gave them to ensure that they meet other citizenship requirements.

What is the time commitment they will have to give to this activity requirement in order to qualify for and justify their expedited citizenship? What about those who simply cannot undertake it, such as those working for a very substantial part of the day and those with families? Will there be an exemption for certain categories? If so, who will give it?

Who will monitor the voluntary work that is carried out, and how will it be assessed and proved? I understand that part of the system which the design group is working out is that there will be a referee to complete the applicant’s paperwork. But who is that to be, and how can there be confidence that such a referee will have proper and regular direct contact with a volunteer to be able to judge whether they have in fact carried out the activity to the proper, required level? Where will the referees come from, and will they have to have a certain seniority level? These questions will continue. They should have been answered before we started on this legislation.

We have reason to believe that a nationality checking service will play a role in signing off the volunteer and sending those signed-off papers to the UK Border Agency. But where does this come from? It is not in the legislation—we do not know anything about it. Perhaps we could be told at some stage what it is. Have the Government made any attempt to assess what extra burdens carrying out the responsibility for these migrants will place on the voluntary sector and on local authorities, which I understand are also to be involved in supporting the nationality checking service?

Can the Minister give any assurances about the stage at which this activity is likely to be undertaken during the citizenship process? Can it be at any time? Does it have to be part of the probationary period? Can it be undertaken for a short time, or a long time? For how many hours should it be undertaken? What is the expectation? Will childcare be paid for? What about travel and all the other costs associated with volunteering requirements, and will that be funded by the UK Border Agency? Given that employees are statutorily entitled to a minimum of 24 days off a year, how can the Government be sure that that requirement for this activity will not have to be taken out of those 24 and therefore not breach this legal entitlement? Will employers be required to give these employees time off to undertake this voluntary activity without jeopardising their employment?

These questions are only the tip of the iceberg—there are many more. Presumably the design group will try to answer them. We can brief the Minister on any other aspect he wishes. This enormous proposal is dealt with in just two short lines of legislation, with nothing to back it up.

The Minister must understand that this would be the first national scheme in which the state directly rewarded people for volunteering. The design group is clearly important in ensuring that all the problems which I have outlined are overcome. However, when will we have sight of its work? I am advised that it might not be until the summer, but by then this legislation will be on the books and it will be way past Parliament's ability to deal with it. Ideally, we should be able to see what the design group is doing before Report so that we can consider it. This is another area where a letter might be almost too little to explain all that is going on. I hope the Minister can make a good fist of trying to explain it. I beg to move.

In speaking to this group of amendments I wish to raise many of the questions that the noble Baroness, Lady Hanham, has raised. I spent the past two Sundays taking part in voluntary activities: delivering leaflets for the Liberal Democrats in Huddersfield on the first Sunday and delivering leaflets for the Liberal Democrats in Streatham on the second Sunday. I am not sure whether that is the sort of voluntary activity that counts under this provision. I can assure noble Lords that we are a non-profit organisation; we are usually loss-making. I raise the point simply to illustrate the problem of defining voluntary activities.

The provision raises a huge number of issues. I have been involved in other discussions, for example on whether we can resolve the issue of students overstaying in Britain by licensing educational institutions so that we have a clearer sense of where students applying to study in Britain are going. We have consistently been told that it is far too complicated to license educational institutions, so controls on each student have to be imposed. We are talking now about licensing a huge number of charities, with full CRB checks on people on a truly vast scale. I am a trustee of two charities and, as both deal with teaching music to children, CRB checks are a major preoccupation for both. Despite the fact that as a trustee I do not usually meet the children, I had to be CRB-checked as well.

This provision has a huge number of implications. We on these Benches have some sympathy with the government citizenship agenda, although we are not sure we would go all the way down the road as far as Jack Straw’s rights and responsibilities agenda. We recognise this is all part of that. We are highly doubtful, however, whether it is right to introduce one bit of this in one Bill before we have seen the entire discussion. The citizenship agenda needs active discussion across the parties on how we are going to re-define British citizenship for current citizens as well as for applicants for citizenship. It needs to be taken slowly and gently. We on these Benches, therefore, are not at all sure that this is the right place to introduce one small part of a very large number of issues.

Citizenship is something we want people to engage in. References and recommendations are part of it. I have been to citizenship ceremonies. I recognise the importance of encouraging people to have a sense of identification with the United Kingdom. The danger is that a highly bureaucratic process in which compulsory volunteering, so to speak, is built in, all checked by the central state, will be a very complicated road to go down. We need to see much more than we have yet seen about how it might be implemented, how much it might cost, and how many difficulties and costs it will impose upon voluntary organisations and charities which will be engaged in this before we are happy with the direction in which it is going.

I understand and sympathise with the spirit that lies behind the Government’s proposal for activities, but I respectfully agree with the noble Baroness, Lady Hanham, that it is impossible to know at the moment, with no definition and no interpretation clause, what is meant by “activities”. UNISON, in its briefing, understandably asks whether trade union activities are part of voluntary activities. I would expect this Government to say yes, but it is interesting that UNISON feels that it needs to ask that question.

The point about the CRB is extremely valid. CRB checks take up a vast amount of time. Some of the most important work done currently in the voluntary sector is not only with children but also with vulnerable adults. You have to be CRB checked to work with vulnerable adults. If you do not have a CRB check, that cuts out a huge part of voluntary activities. How on earth is the Government going to monitor them? Are they going to list those that are acceptable and those that are not? This seems an interesting and in some ways rather charming idea, but one that is almost impossible effectively to implement.

I totally understand the difficulty that noble Lords have in visualising how the whole of Clause 39 might work in practice, but let us not throw out the baby with the bathwater at this stage. Surely, at this stage, we want to discuss some of the principles of activities, which are to be applauded, to integrate people into society. In a few moments, I will be moving Amendment 83 specifically concerning trade unions. I will not, therefore, make that speech now. Noble Lords who have spoken, such as the noble Baroness, Lady Hanham, the noble Lord, Lord Wallace of Saltaire, and the distinguished noble and learned Baroness, Lady Butler-Sloss, are asking questions that will surely have to be clarified at some stage, but the idea that we should remove the whole thing lock, stock and barrel at this stage seems wrong.

UNISON has been mentioned. My noble friend Lord Morris of Handsworth will correct me if I am wrong, but the Transport and General Workers’ Union several years ago started a group. I do not think that it was called “Group for Illegal Immigrants”—it could hardly have been called that—but that was close to what it meant. It had a lot of activities that helped people to integrate into the community.

The principle here is very challenging. It is certainly absolutely relevant to some of the nightmares that people are always describing for the future, whether it is Islamicisation or some horror story that some people want to attach to that, or any such worries. How will they be addressed? They will be addressed by activities that integrate people into one society. That surely is not a principle that we can run away from and throw out of the window the first time that it is mentioned. More work needs to be done. I will be opposing this amendment if, as I suspect, it is designed to get rid of the whole idea.

I entirely agree with the noble Lord, Lord Lea of Crondall, in as much as anything that helps people to integrate into our country from wherever they come is a good thing. We would all agree with that. Having said that, I would like to strongly support what my noble friend Baroness Hanham said in her introductory remarks. I just about restrain myself from wishing to return to the meat on the bone of the nonsense in terms of formal logic of anything that is compulsory, or semi-compulsory, or quasi-compulsory or opt-in being in any sense voluntary. I am sorry to use such an indelicate word as “nonsense” in your Lordships’ House—I know that it offends the ears of many of your Lordships—but I do recognise a nonsense, particularly a nonsense on stilts, when I see one.

I would like to expand on one point that my noble friend Lady Hanham raised, which is the burden on voluntary charitable organisations, the third sector or call them what you will, at a time when many such organisations are suffering from a host of problems. Some have made unwise investments and have found their investment income, because of Icelandic adventures and so on, falling like a stone. Still more are seeing their charitable income falling. Understandably, some would say, because of the plight of the unemployed and others who feel that they are threatened by the prospect of unemployment, people may no longer be able to meet those standing orders that they have been giving so willingly. It is the hope of all us, however, that we will be able to continue to help voluntary organisations. We know that some voluntary organisations are laying off staff or failing to fulfil employment beyond a certain period under employment legislation. As my noble friend Lady Hanham said, should the Government have their way, a considerable burden will fall on voluntary organisations.

I have a straightforward question for the Minister. It will cost money to these voluntary organisations and charities to carry out some of this monitoring. That goes without saying. Some people who may have been dragooned into volunteering may be disinclined to do it seriously. We see this with community service from time to time. Will each volunteer, whether wholehearted or semi-wholehearted, be carrying with them in the pursuit of citizenship a sum of money that will be a subvention to voluntary or charitable organisations—the third sector—to allow them to meet this burden that is suddenly going to be laid on them by statute without any recompense?

The questions for the criteria of acceptance of citizenship include knowledge of background. I have seen some of the questions. They are the equivalent of “How high is Mount Snowdon?”. These are questions about things that some people know about and others do not. We have to make sure that, when we test a person’s background knowledge, it is relevant to the lives that they are going to lead here in the United Kingdom.

We also talked about language a little while ago. If people want to settle in Scotland, Wales or Northern Ireland—places other than England—the background must be about the localities in which they actually want to live. I am sure that the people of Llandudno would love to know more about Oxfordshire or somewhere like that, but it is more important that they know a wee bit about their own area. This is my first point: people need to know the background of the place in which they will be living and not be made to answer questions of the type found in Trivial Pursuit.

Secondly, on the question of volunteering, I agree that this must be thought through fully. It needs to be taken back to the drawing board. Who is going to volunteer, or is it going to be like one organisation that I know of—it shall remain nameless—part of which is moving to another area of the United Kingdom? The organisation wants its people to integrate into the local community. For two weeks each year, people are going to be encouraged to volunteer. But that organisation is going about that by asking local groups what help is needed in the particular area. Instead of someone volunteering, information about requirements is put forward by local organisations and the organisation responds to that information.

We are asking a lot of the migrants who are seeking to come here. They must do what 80 per cent of the people of the United Kingdom do not do. We are asking them to know about things that most of the people of the UK do not know about. What I am saying, therefore, is this: yes, it is a nice dream—someone said that it is a charming idea, and it is—but it needs to be thoroughly worked out so that people know exactly where they are. We do not want something that is a dream for the immigration authorities becoming a nightmare for those applying for status here.

The issues that underpin Clause 39 need to be explored in terms of whether they will be an incentive to those moving towards citizenship or a deterrent. I am not sure that the explanation given at Second Reading and in the debate so far is all that clear. I start from the position that we ought all to want to be volunteers in our communities—they are our communities and we have ownership of them, so we should make a contribution. It is about enhancing an individual’s contribution and building up what I would describe as social capital in our communities. However, we need to dissect the principles of volunteering, building social capital and making opportunities for those who want to settle well in their local communities.

However, I question why there has to be a penalty for those who do not volunteer or take advantage of the opportunities offered by this form of fast-tracking to full citizenship. If criteria involving penalties are set, an assessment has to be made. Someone has to determine whether the quantitative and qualitative value has been sufficiently met. Again, there is an eerie silence around some of these fundamental questions.

There are also issues around responsibility, whether fiduciary or otherwise. What happens if there is an accident on a volunteering project or expectations for a proposal are not met in qualitative terms? These matters require consideration, but more important is that they require consultation. At this point I am not satisfied that the proposition as a principle is worthy of support and consideration because it has not been sufficiently thought through in the detail of its application. I would certainly want to seek to persuade the Minister to look again not just at the principle but at the detail and some of the inherent problems for which solutions to the satisfaction of your Lordships’ House have not yet been found.

I should like to follow the noble Lord, Lord Morris, in asking for consultation and postponement. The concept of taking part in social activities as an aid to integration is clearly a good one, but there is such a fog of uncertainty surrounding it at present that we need time to think it through and see if it can be done. Will we be able to include trades union activities, party-political work and so on? We need to be able to get the right exemptions for the disabled, for example, or for those caring for disabled people. I agree strongly with the noble Lord, Lord Patten, about the problems facing voluntary organisations, so I urge the Government to postpone the whole idea at least until after the simplification Bill that we have been promised. If that could be done, I think that we will get much better results from it.

“Volunteering” is a very attractive word today, but I have to say that I go back to the days when, if you were caught volunteering, as I was quite a number of years ago, it was called scab labour. Thankfully, volunteering has become much more respected in terms of how we view offering mutual help to other citizens. However, I go back to the question that I raised at Second Reading. This amendment raises many questions, several of which have been rehearsed already. How costly will the scheme be and what financial provision is to be made available for it?

I am worried about what could be regarded as the reward of a reduction in the qualifying period for citizenship, or indeed the penalty, whichever way you want to look at it. If, as someone suggested, we are returning to a period when many people are out of work, it may be that the answer is compulsory volunteering in the form of national service, as it used to be called. That could be on the agenda for everyone. If that was the case, I would be much keener on supporting this, as it would not create two distinct classes of citizenship. Until we reach the point where we think that this is essential to our understanding of what it is to be a British citizen—about rights and responsibilities, both terms with which I agree—I remain unenthusiastic. On top of that, we have to consider how little we know about the scheme beyond the fact that the design group is going to be spelt out, presumably at a later date.

What I am really saying is that I query whether it is even remotely the right route to go down for those who are trying to acquire citizenship. Of course, this is particularly tough on those, particularly refugees, who have already been waiting for a long period and will either have to wait even longer or go down this route. I am thoroughly behind these amendments and would love to think that the Government will rethink.

I wonder how we can penetrate the “fog of uncertainty”, as the noble Lord, Lord Hylton, described it, from the point of view of the migrant, who arrives here and has to undertake certain voluntary activity. As was explained to us when we had one of our helpful discussions with the Minister, many of the activities would be purely local so that local churches and voluntary organisations would be enlisted to provide the occupations. How will the individual migrant access those bodies?

To take my own area of Camberwell, there are millions—or certainly dozens—of voluntary groups operating in the area. It would be difficult enough for even a well-disposed local person who knew the ropes to discover which particular voluntary organisation fitted his own aptitudes and talents, let alone somebody from the Democratic Republic of Congo who is unfamiliar with our environment. How does he begin to discover which voluntary activities would be acceptable for qualifying? Will there be a central organisation with a list of them? What advice will be available to the individual migrant, so that he does something that is within his own aptitudes and talents? I ask the Minister a specific question: will this simply be left to the existing organisations—in, say, Camberwell—or will there be a central point to which the migrant has access, which will offer him useful advice on the sort of work that would fit his aptitudes and take him on the path to being an integral part of the community?

I join the chorus of support for the amendment moved by the noble Baroness, Lady Hanham. If there is one issue that really fires up this House, it is volunteering. If the Government get it wrong, they will find themselves in a very small minority in the Lobby. They have to take great care over this. I admire the noble Lord, Lord Lea, for batting in support of his Front Bench, but the noble Lord, Lord Morris, has hit the nail much more firmly on the head. The only new thought that I can offer—because everything has been said—is that the Minister could just consider that what is on somebody’s curriculum vitae is surely much more reliable. This could be translated into legislation, but volunteering will never work if it is required.

I fear that I may be descending from the general to the particular, but I have just alluded, on Clause 38(2), to the second Delegated Powers Committee reference. Clause 39 provides the third and final comment about the Delegated Powers Committee in this Bill. I could wait until we get to Clause 39(3), where there is an amendment to be debated, but it may be easier if I mention it now, after the general reference by my noble friend Lady Hanham to activity.

I need to read the comment of the Delegated Powers Committee on Clause 39(3), to provide the background. It said:

“The new power in paragraph (bc)”—

which, I interpolate, is at the top of page 32 of the Bill—

“inserted in Section 41(1) of the 1981 Act by clause 39(2), confers power to substitute different qualifying periods in new paragraph 4B(3) and (4), again by affirmative regulations; and the new subsection (1B) (clause 39(3)) enables that power to be exercised so as to substitute the same qualifying period, irrespective of whether or not ‘the activity condition’ is satisfied. Paragraphs 46 to 49 of the department’s memorandum”—

which is reprinted in the third report of the Delegated Powers Committee—

“do not provide any explanation of the purpose of this power, the exercise of which would leave paragraph 4B making separate but identical provision for persons who had, and for persons who had not, satisfied ‘the activity provision’, without any advantage conferred on the former over the latter in terms of the qualifying period. While the delegated power in clause 39(3) might not necessarily be inappropriate on that ground, its exercise would seem to produce a somewhat odd result which is not explained in either the Notes or the memorandum. We”—

that is, obviously, the Delegated Powers Committee—

“therefore draw attention to this aspect of the power, so that the House might press the Minister for more details of the circumstances in which it might be used”.

I am not seeking tonight to unsight the Minister on this Delegated Powers Committee reference, but he said on Clause 38(2) that he had the government reply with him then. It might be helpful, if he has a response to their comment on Clause 39(3) about his person now, for him to give it to the Committee this evening, rather than wait for Report, when we have plenty in store anyway.

I think the Minister will have a very clear idea of the views of the Chamber on this amendment. The Second Reading debate on this activity requirement was also most interesting. I apologise to the Chamber for not having been here to speak at Second Reading. I am more sympathetic to what the Government are trying to achieve than most speakers today. It boils down to three central matters. First, there are those who oppose incentives for volunteering per se, and who feel that any kind of incentive obviates the very nature of the deed. I would call them the volunteering purists. The Minister must make clear in his reply that we are talking about an incentive, and not compulsion. Many noble Lords have talked about volunteering as if it were a compulsion or requirement. It would be helpful if the Minister could confirm my reading, which is that there is just an incentive to get you there slightly faster than if you did not volunteer.

Secondly, there are those who believe, as my noble friend Lord Roberts does, that it is quite unfair for us to ask others to do what British people do not do themselves. My answer, as someone who has been on both sides of that fence, is very clear. Those who, through an accident of birth, end up with the privilege of British citizenship are indeed lucky. It is true that we do not question their ability to integrate. One of the reasons that we do not question that ability is because we suspect that—over a lifetime of living in certain communities, speaking a certain language and understanding certain cultural norms and mores—they probably imbibe some of the values of that society.

Thirdly, the noble Lord, Lord Morris, spoke of social capital and trust. I have a lot of sympathy with much that he said, as long as what the Government aim to do is not seen as a means of affirming a certain patriotism, which I would also oppose. The Putnam report clearly shows that the more diverse a society is, the more trust seems to break down. This is a contested area, but no doubt the less we know about each other, the less we speak each other’s languages and the less we value each other’s values, the less we are able to trust each other. The building of networks that volunteering promotes is valuable social capital. However, British people do not have to go down that route and we are setting a higher bar for non-British people. I have said to the noble Lord, Lord West, under different circumstances and on other Bills about youth justice, that young people need to have more of an ethos anyway to do what is right by society and to understand the society in which they are living. Intergenerational issues could be much resolved if young people were to do a little more volunteering, frankly. I would like to see the expansion of this process to British people.

The most serious point is that there are many who believe that the practicalities of this will be difficult to achieve and that we really have not thought it through. I am most sympathetic to those arguments. Incidentally, I do not agree that just because no other country does it Britain should not do it. Perhaps I am a radical liberal for that reason. It is quite interesting that there is good, serious thinking around some of the challenges of diversity that we face. We have become more diverse in the past 15 to 20 years than many other similarly sized European countries. I take pride in the fact that we are not responding with sledgehammers in the way that some of those other countries have responded, at least not in the challenges facing my community. It is good that we have been careful and thoughtful about what we have done there. Irrespective of how I feel about terrorism legislation, on the whole we have a good track record.

Perhaps I can persuade the Minister, in all good will and in appreciating what the Government are trying to achieve on integration, to perhaps take away the wise words of the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, and perhaps think about bringing back pilot schemes. I accept the difficulties of a pilot scheme in which there is no real incentive to give, but perhaps we could see how a couple of pilots work and then come back with another Bill containing a more carefully thought through and considered approach as to how we might achieve this objective.

I thank all noble Lords who have contributed to the debate. Several words have been used, which I hope I can confound, such as “dragoon”, “compulsion” and “burden”. I am inclined to agree with “fog” because at the moment we know what we want to see but we are not quite sure what shape it will finally take. I shall deal also with the issue of volunteering.

I start from the premise that we have described to people why we are doing what we are doing and then deal with the battery of questions about whether it is practical, how are we going to do it and whether we have thought it through. First, we are doing it because we want to integrate migrants fully into society. The advantage of what we are seeking to do is that it will bring contact between migrants and the wider community; it will show British citizens that those who seek to join them are earning their citizenships by participating in British life; and it will encourage those who want to become citizens by opening up to them new experiences and life-long rules. Active citizenship is a positive process: it is a way for migrants to earn citizenship more quickly and it will assist their integration into British society. Its purpose is to incentivise a positive attitude towards Britain. My noble friend Lord Morris feels it will do the opposite. I am pleased to note that the noble and learned Lord, Lord Goldsmith, concurs with that view. As he said in his contribution at Second Reading:

“A credit-based system for acquiring citizenship is in principle a good thing, because it makes clearer that becoming a citizen carries with it responsibilities, not just the ability to stand in a shorter queue at Heathrow. For those reasons, it seems right to be able to change the length of that journey through participating in the community in a stronger and more active way”.—[Official Report, 11/2/09; col. 1146.]

I think there will be a large degree of support for the things I have said so far. However, the questions that came forward were very much in relation to where we go from here.

Let me be absolutely clear: there is no mandatory requirement for any migrant to undertake active citizenship; migrants who are unwilling to undertake any form of active citizenship can simply choose not to do so. They are not prevented from qualifying for citizenship but it will take two years longer than for those who choose to undertake citizenship activities. We have been careful in developing the citizenship activities proposals in such a way that they do not discriminate against any person or group.

It is essential that the activities that count are separate from those that migrants undertake as part of their day-to-day employment. Therefore we propose that participation in prescribed activities will count only when it is unpaid, which answers a number of noble Lords’ questions about what they see as potential problems. We clearly want as many migrants as possible to undertake active citizenship. However, we recognise that in certain circumstances—for example, in the case of the severely disabled—a migrant may simply be unable to undertake any of the citizenship activities. That is why the Bill allows regulations to be made which treat specific types of persons as having fulfilled the activity conditions even though they have not. Therefore Amendment 83A is not necessary.

It is essential that the activities that count as active citizenship represent an extra effort to get involved in the community and are additional to those activities that migrants undertake as part of their day-to-day employment. Hence the prescribed activities will count only where they are unpaid. At the same time, we have made it clear that active citizenship must be designed so that migrants, even where they have significant commitments—for example, work or family-related activities, which were a concern mentioned in the debate—will be able to fulfil the requirements. That is why it is right that people should be able to demonstrate their willingness to participate at any point from the start of the journey—not from the start as a probationary citizen but from the start of the qualifying period; in other words, from the five years preceding it.

We have permitted a wide range of activities to ensure that migrants can utilise their particular skills and interests—that is why Amendment 82 is not appropriate—and we have established a design group. This involves local authority and voluntary sector representatives advising us on the practical operation of active citizenship. This is because we want to avoid some of the words used in the debate to describe it, such as “bureaucratic” and “dragooning”. We want to see a level of commitment that we should expect migrants to demonstrate and we will work with the design group to ensure that active citizenship proposals are implemented in a fair and non-discriminatory way.

All the questions asked have been perfectly fair. In responding to some of them, it would be quite helpful to recognise that this is still work in progress. To reassure the noble Baroness, Lady Hanham, I should say that when the design group has completed its work and we have a formal picture of what it has designed for active participation, that will be subject to an affirmative resolution of the House. So it is not that the House will not have a clear sight of it and an ability to object.

I placed a document in the Library last week which I hope the Committee will find helpful—I know that the spokesmen on the Opposition Front Benches have seen it—which outlines the emerging findings of the design group. Again, it covers and meets, at least partially, many of the questions noble Lords have been asking about the type of activities involved and the type of organisations that will be required to be both the referee and the monitor. The list is not yet exhaustive; it can be added to. Any suggestions that people have will be referred to the design group for its consideration, but it already covers volunteering at local museums, conservation work, local environment protection and improvement projects, lunch clubs for the elderly—there is a whole series of examples of what might be suitable.

We have also set out in that document a Q&A, which I recommend people should digest because it goes some way to answering the questions that have been posed today. It is not complete but, when it is, it will outline the work of those closely associated with the organisation of the volunteering to which we are looking forward. I take the point made by a number of noble Lords. The noble Lord, Lord Patten, imagined that we would be walking round with bagfuls of money. I will have to disabuse him of that.

We are working closely through the design group with the voluntary organisations that will be impacted on by active citizenship to ensure that we implement a system that does not place undue burdens on them. So far those organisations have been supportive of our proposals and have not raised major concerns about the cost schemes would incur. A plus for those organisations would be the work done by volunteers. Those who are closest to the problem, who we are listening to for advice and who will be the people designing a scheme to monitor this do not seem to have concerns to the degree that your Lordships have.

The list set out in the document in the Library goes a long way to answering a number of other questions. The noble Lord, Lord Wallace of Saltaire, asked if migrants can count activities they were doing before the commencement of citizenship provisions towards active citizenship requirements. The answer is yes. Other noble Lords who raised questions about particular aspects of that can be answered in the affirmative. Greater detail can be read in that document.

We also had a number of questions relating to dragooning. Neither the volunteer seeking to enhance and speed through citizenship nor the organisations taking volunteers are being dragooned in any way. I suspect most Members of your Lordships’ House are volunteers in one form or another. Why should we expect our migrant community on entry to be less willing to be volunteers than we are ourselves? It is true that a lot of our fellow citizens choose not to be and rely on those who do volunteer but that is no reason for not moving forward.

The noble Lord, Lord Wallace of Saltaire, asked about checking active citizenship, including the role of the National Checking Service. Again, we want to avoid a heavy-handed approach. To ensure that the organisation where active citizenship was undertaken was bona fide, while not excluding small or community-based organisations as volunteering groups, we would accept registered charities at face value. For non-registered charities and other voluntary organisations we would require an additional reference from the local authority or the CSV. Alternatively, a larger organisation could act as an umbrella monitor for smaller organisations. Again, in the discussions emerging from the design group there has not been the degree of opposition or concern that has been elucidated in this debate. That is understandable because we are talking about people who are very familiar with the concept and management of volunteering.

The National Checking Service, for those who are not aware, is a discretionary service available in 87 local authorities. It checks applications for British citizenship, completes corrected copies and certifies all passports before returning them to the applicant straightaway. It then forwards the relevant documents the to UKBA case workers. It is an organisation with a track record. We recognise that extra bureaucracy could form a burden for organisations so it could be mitigated by partnership agreements for 12 months allowing a larger organisation to enter into agreement with a smaller organisation to measure the degree of burden.

The noble Lord, Lord Avebury, and other noble Lords asked how applicants will find out about volunteering opportunities. Many migrants already volunteer so will not need to be signposted. For those who chose to take up active citizenship we envisage volunteer centres being able to signpost migrants to organisations looking for volunteers. ESOL teachers who signpost students to volunteering organisations are likely to continue to do so. Internet websites are a rich source of voluntary organisations. UKBA already funds the Refugee Integration and Employment Service which actively promotes volunteering for refugees. The noble Lord, Lord Avebury, made a valid point in relation to localities and I am sure more work can and will be done by the design group. It is important to emphasise that volunteering is not mandatory and therefore we reject any accusation that it could be seen as blackmail. We believe, rather, that it will encourage the path to citizenship.

I hope in answering those questions and drawing attention to the questions asked which have been covered so far in the Q&A—that work is still emerging—that we can reassure your Lordships that the matter is not ill thought out. It is not necessarily fully thought through but the people seeing it through on our behalf are the very people you have confidence in to run our charities and our volunteering services. We will come back to further debate on this undoubtedly at Report. Any information that becomes available between now and then will be made available to the Committee. I have unfortunately not got a response to give to the noble Lord, Lord Brooke, on this occasion. That will have to wait until a slightly later date. The Government appreciate all the contributions made. They have been positive in the sense of wanting to see something we all want, which is the greater integration of our migrant communities. I hope the Government, as we go forward, can continue to confound those who think we have taken up something that we cannot do and to encourage, support and gain the confidence who feel we might not have done so. I hope, therefore, that noble Lords can withdraw the amendments.

On these Benches we are sympathetic in many ways to the principle of active citizenship. Indeed, it is precisely the sort of thing that this House should consider having a session in Committee on to get some all-party discussion about how to get the concept of active citizenship operational. I agree strongly with my noble friend Lady Falkner that we have to be as much concerned about how to give our native young people a sense of participation in the community as about those who wish to come into our community from elsewhere. So part of our concern is that this is a sideways slide into a very large national issue which we all need to address.

We are, of course, concerned about the bureaucratic controls and the implementation. Many of the voluntary organisations with which some of us have worked are faith-based—churches, temples or mosques—and that raises some quite delicate questions about integration and how these things operate for Christian, Muslim, Hindu and other organisations. So there are many snags on the road to a praiseworthy intention. That is why we wish to see a great deal more of the detail before we accept this principle.

I thank the Minister for his reply and for drawing our attention to the documents in the Library. It would have been helpful to have seen them before. I thank him for some of the reassurance that has been given. I want to make it clear that we are not antipathetic to the idea of voluntary service but we are antipathetic to something which does not look coherent. We need it to be written in the Bill that the recommendations of the design group—which has obviously been set up to deal with some of the problems and make sure that the practicalities are resolved—will be brought to the House for affirmative resolution. Otherwise, those recommendations may not get here and we need to ensure that they are discussed. I also assume that the commencement date for this will be separate from the other aspects. We need to test this a bit more. Are the other elements of that clause, such as language and good citizenship, going to be held up until the design group has discussed this and it has all been sorted out? Presumably Clause 39 must be implemented as a whole and not piecemeal. Therefore, there will have to be an extended starting date.

We will almost certainly return to this at Report because the Minister’s response has answered some of the questions I have raised but not all. This will benefit from another airing but for today I beg leave to withdraw the amendment.

Amendment 77 withdrawn.

Amendments 78 to 82 not moved.

Amendment 83

Moved by

83: Clause 39, page 31, line 41, after “activities” insert “or trade union activities”

Apropos the earlier debate, I am not normally known for supporting the Government as some sort of knee-jerk reaction. I hope that my noble friend on the Front Bench who has just spoken will draw this accolade to the attention of the Chief Whip, who might need to be revived with smelling salts after he has been told that those remarks were made.

A lot of soul-searching is going to be needed about the Bill. My fundamental instinct, though, is that that soul-searching will be not just because of the Bill but because we do not know how to go forward on the question of social integration. I shall put that another way round: for donkeys’ years a lot of activities, and I include trade union activities, have done a lot of work to promote social integration and so on, but it is directed particularly at immigrants, for obvious reasons. I agreed with the thrust of the speech by the noble Baroness, Lady Falkner, but, unless I misheard her, she was saying that there are things that people who are born in this country do not have to do. No, she did not say that. I am sorry; I was trying to go along with the spirit of what she was saying.

I do not want to interrupt the noble Lord’s train of thought, so I will be brief. I was saying that it is inevitable that people born here will imbibe certain aspects of values and cultures that those who come here as strangers to the country have not had access to from birth.

That is exactly what I thought the noble Baroness was saying, and exactly where we are on the horns of a dilemma. As soon as anyone comes up with a bright idea such as saying, “Learn English”, other people say that that is discriminatory. We cannot have it both ways, and we have to make progress.

It is important that we have this debate. The noble Lord, Lord Wallace, who is not in his place, suggested that there ought to be some totally different mechanism for monitoring and ensuring that progress is made on social integration, and I think he added that this should be for people who were born in this country as well as for others. That may be arguable, but now we have this planning group.

Incidentally, will my noble friend say a word about where trade unions fit into this? Trade unions are by far the biggest voluntary organisations in the country. The fact that we have been sniffy over the years about some aspects of volunteering is because of the suggestion in some quarters that if you volunteer and do not get paid, that can be the same sort of work that members of UNISON, the T&G or any other unions are doing in public services, so volunteering will be viewed by some with suspicion. However, thanks to the work of the trade unions with immigrants and voluntary organisations, particularly over the past 10 years, many of those shibboleths have been put to rest.

Anyway, we are where we are. We are at the stage where people have more or less agreed that everyone is going to learn English and support the English cricket team—at the moment, it needs all the support it can get—although I share the misgivings that we can have a rule on the statute book that means various forms of volunteering get an advantage. We have to recognise that in this debate it is almost impossible to see the daylight at the end of the proverbial tunnel, but we might as well have the debate on this subject because it is before us. I do not know whether we need a special committee to look at this, as the noble Lord, Lord Wallace of Saltaire, mentioned, but it is here and now, so let us have a debate on this subject—let us see what can actually be done.

I do not like the idea of a probationary period, but I say to those who immediately equate incentivisation with penalty: we do not do that in other walks of life, do we? If you incentivise someone to do something, you do not immediately tear it up and say, “You’re trying to impose a penalty”.

It might be useful if we all put into the pot one or two ideas regarding what we are talking about, because it is far too soon to categorise everything. Take trade unions, for example. Incidentally, everything trade unions do, apart from in the case of full-time officials, is volunteering—collective bargaining, the lot. If you are a learning representative working with migrant workers with regard to English language learning, that is absolutely relevant to what we are trying to do in the scope of a Bill of this kind. We all know, since Morecambe Bay, that social integration is often based on organisations that people trust giving them information—regarding health and safety and understanding the reach of the law on that, the Gangmasters Licensing Bill and all the rest of it—and getting them involved in protecting themselves. They then have more confidence to integrate with other people in the community.

At this stage I am putting this probing amendment forward precisely to ensure that we have the richness of all these points in the debate. I hope that my noble friend will be able to say that the principle of this amendment is going to be looked at seriously, as with all the other matters that have been mentioned in the past half hour. I beg to move.

I give qualified support to Amendment 83. First, though, let me say that the concluding points of the contribution of my noble friend Lord Lea of Crondall are well understood and supported. After all, many trade unions started their existence as friendly societies, not merely confined to representation at work but concerned with the wider and broader social good of communities.

I say “qualified” support, though, because unless it is clear what we mean when we talk about “trade union activities”, I see the possibility here for misunderstanding and the misrepresentation of trade unions. In my day, if you linked “trade unions” and “activities” together, you looked to see whether London buses were still running. That is what “trade union activities” conjures up in the minds of many, so we need to qualify precisely what we mean. My noble friend Lord Lea has given examples of teaching or volunteering in evening classes; we would all see those activities as good for citizen-building and integration.

My support is qualified, however, because it is a short step from good intentions to what I would describe as project creep. By that, I mean that a lot of general activities that may well come within the list represent employment currently being carried out by people. In simple terms, one person’s volunteering activities can be somebody else’s paid employment. Therefore, a line of possible conflict has to be clarified. I do not want to repeat my earlier contribution in the wider debate about volunteering and where penalties may or may not lie, but I believe that it is incumbent on those with the responsibility of spelling out the details. It is the details that will be practised, whether in communities or elsewhere; it is the details that will form the guiding lines, not just the principles. We can agree the principles here, or elsewhere, but the detailed application carries with it a responsibility for your Lordships’ House and for those who draw the guidelines to ensure that what is prescribed is precisely what is meant. On that basis, I offer my qualified support for Amendment 83.

I was in some embarrassment on the previous debate, because I was not here for its opening and I take the procedures of the House seriously. Therefore, I did not feel that I could participate, but was frustrated because I feel strongly on the wider issue. The Committee may have noticed that I have my name both to Amendment 78, in the name of the noble Lord, Lord Avebury, and this amendment, which my noble friend Lord Lea has moved. That might seem rather contradictory, at one reading. My position is that if the amendments in the name of the noble Lord, Lord Avebury, are not to prevail, I would certainly want to see that moved by my noble friend Lord Lea taken seriously.

I say that not only because I have been a trade union member all my life but because I believe that the trade unions have been, and remain, a very important part of our social fabric. If this is about encouraging people who seek citizenship to identify with and become involved in that social fabric, the trade unions are a very good way to do it. Having worked a great deal of my life in the voluntary sector, there is a great deal of overlapping because the trade unions are, in many instances, working hard on the very issues that some voluntary organisations exist to promote. It might well be that someone seeking citizenship found that they were more convincingly able to further some of those causes through trade union activities than via a particular voluntary agency.

All of that underlines what was said earlier: this is a wonderfully interesting idea to have in the Bill, but while my noble friends in Government tell us often that legislation must be specific and beyond doubt—and I am with them 100 per cent on that—it has become absolutely clear that this part of the Bill needs a great deal more thought and consideration before it reaches the state of becoming part of our legislative reality.

I must add one word to what the noble Earl, Lord Sandwich, said earlier; I am sorry to say it while he is unable to be present. Having worked a great deal of my life in the voluntary sector, I agree with the noble Earl: I am, if I may use the term unashamedly, considerably philosophically disturbed by what lies behind this part of the Bill. It seems to be in danger of demeaning the whole concept of volunteering which, as I have understood it, is about people voluntarily identifying with a cause and wanting to further it—not because they must be required to do it if they are to get citizenship. It reminds me rather of my days in the armed services, when the NCO came along and said, “I need six volunteers; you, you and you…”.

We need to keep the concept of volunteering as a rich principle in our society, because it adds to the quality of the work being done for the cause if people are genuinely volunteers, of their own free will and intellectual persuasion. Therefore, I take the opportunity of my noble friend’s amendment to add my name to all those who are begging the Government to think deeply about the wider implications of what they propose and, certainly, to think it through in more detail. Quite apart from the wider issues that I have raised, when it comes to specifying voluntary service I cannot for the life of me see why trade unions should not be part of acceptable voluntary activity.

I have already asked, at an earlier stage of the Committee, the question posed by UNISON, to which the Minister nodded his emphatic agreement. I assume, then, that the Government already agree to that which the noble Lord, Lord Lea of Crondall, asks for. However, I am standing up now because I so profoundly agree with the noble Lord, Lord Judd. Listening to the Minister’s summing up—activities would always be totally voluntary and nobody would be asked to do it unless they chose to—reminds me exactly of what the noble Lord was just saying about the “you, you and you” volunteers.

To be realistic about it, if you are to become a citizen that much quicker, you will volunteer in order to become a citizen—not because you care about the volunteering. That seems to be the immediate answer to what the Minister said in trying to convince us that this system was genuinely voluntary. It is only voluntary in the sense that you do not have to do it, but there is a major imperative to get into the activities on those who may not have the slightest interest in voluntary service. I profoundly agree with the noble Lord, Lord Judd; this really needs a lot more thought, and I am by no means certain whether it is best placed in this Bill.

It strikes me that I should have declared an interest when I spoke on the earlier amendment, so let me do so now. I was chief executive of a student volunteering body, Students Partnership Worldwide, and saw volunteering right up close. It seems that there is a rather romanticised view in the Committee of what volunteering is. I wonder whether those who believe that it really is so altruistic, and conducted simply because of passion for a cause, would consider internship for young people as a form of volunteering. Would they accept perhaps that many people, particularly in times of recession, wish to build up their CV and do things that others would consider to be useful contributions to society, things that would give them skills or things that might enhance the employer’s perspective of the broadness of their background? Might they accept that those people do not have ill motives, because they are trying to extract some personal advantage from volunteering, but that they also perhaps have an interest in the cause? You can have multiple motives for what you do at different times of your life. It is not a matter just of needing to be persuaded by the passion of the cause. So incentives are not perverse. “Incentives where we can and compulsion almost never” would be my motto. I suggest to the Minister that he think extremely carefully before he responds affirmatively to the amendment, if that is what he intends.

The noble Baroness makes some important points. Does she not agree that there is even the danger that the proposal, far from encouraging sincere commitment and integrity in the forthcoming role of citizenship, may encourage falsehood, because somebody may espouse a cause not because they believe in it at all but simply because it is a way of gaining citizenship? That is not a way of promoting integrity in the decent society. Furthermore, in terms of the credibility of the legislation, we are entering a dangerous and sensitive area in demanding such behaviour of would-be citizens when there is plenty of evidence, as has been said in earlier debate, that it is not the prevailing culture in our society. The prevailing culture, as seen by many at the moment, is that you make as much money as fast you can and that is the way in which you are a successful citizen.

I fear that the noble Lord, Lord Judd, did not grasp the content of what I said in my earlier intervention on the relevant amendments, because I was being extremely cautious. Perhaps I may answer his question very directly. You may have a perverse outcome, and you may go down a road that you do not sincerely believe in. However, all of us in this Chamber volunteer three or four days a week in all sorts of things—accepting a dinner invitation to be a speaker when we do not particularly want to do it and scratching our heads to think what we might say or do, or moving amendments where we are under pressure from our parties or from lobby groups towards which we feel well inclined. We often undertake activities about which we are not entirely convinced.

My personal experience has been that when I look at the detail of things with which I am unfamiliar, when I work with people to whom I have not been exposed previously and when I venture into areas where I have no expertise, I have often developed a passion for those people and causes. I learn through my interaction with other people outside my scope of knowledge, friendships and employment. They are amazing people. So volunteering often has the opposite effect to that mentioned, particularly for migrants and newcomers to this country, because it provides the opportunity to work alongside other people who are not newcomers.

Newcomers, particularly from my part of the world, are often ghettoised. If you are a woman, you will be ghettoised in your home and with your extended family, many of whom live with you. You will be expected to perform conventional forms of daughter-in-lawship or sister-in-lawship, or whatever else are the bases of your being there. You are seldom permitted time away from those duties, which I consider often to be unpaid domestic chores, even to do English lessons. You will live in a street full of people similar to you and you will have very few opportunities to go out of your ambit, which is often that of the village from which you previously came, and interact with other people.

An incentive to volunteer might convince your husband that you might be let out of the house to do it. You might be given a bit of rope to be an adult and make up your own mind about what you wish to do. You might even learn a few words of the language while you are at it. From volunteering in a legal advice centre or a women’s refuge, you might discover how the law works in the country for which you are applying for citizenship. Having spoken to men and women who live in those communities, I only wish that we could create the avenues for them to go out and volunteer, because it is quite often the community that holds them back and keeps them segregated. Unusually, therefore, I am not at one with the noble Lord, Lord Judd, on this matter.

I urge the Minister to desist from agreeing to the amendment. He will have heard expressed during the previous hour and a half the divergent views on, and strong reservations about, the Bill. If we were to introduce an element of partisanship by including trade unions—the other side will say, “In that case, why not also political parties?”—we would immediately kill off any good that he is trying to achieve in the Bill, because it will not get through. I think that he will recognise that trade unions and political parties would introduce an element of incentivisation that may not be construed by others to be just for the good of active citizenship; it may be construed as a means of their recruiting members to their cause and making them partisan.

If political parties were to come into the frame, you would have another problem. We know of many migrants who, once they have come here, want to close the door behind them. It is a common phenomenon for migrants to say, “I’m here now; we shouldn’t let any more of those bloody foreigners in”—I hope that your Lordships will forgive my unparliamentary language. What would we do if joining political parties was considered active citizenship and the BNP managed to recruit a large number of members as a result? Extremist parties might benefit, too. My noble friend Lord Wallace of Saltaire mentioned religious groups whose political ethos we may not like.

I would have thought that trade union and political party activity was ruled out because you would have to pay a membership fee. The Bill states that you cannot have financial interaction of any sort. Payment of a membership fee for passive citizenship, whereby you have joined a political party, you carry the card in your pocket, but you do nothing more than that, is not what active citizenship is about at all. I urge the Minister on that basis to resist the amendment at this stage until we have a clearer idea of where we going.

With opposing views expressed, I hope to be able satisfy everybody. I should explain first that my enthusiastic nodding represented not necessarily government policy but the experience of someone who has spent most of his life in the trade union movement, a lot of it as a full-time officer and general secretary in a trade union that never paid one penny to any political party. However, I was always genuinely grateful for the many activities of the union—not those that directly benefited the membership, but those that benefited the community at large—that were carried out by people serving as nominees of the trade union’s governing and regional bodies at no expense to the union and at no benefit to the people doing them. There are some 7 million people in the trade union movement who are doing a whole host of things, such as health and safety education and the various representative activities mentioned by my noble friend Lord Lea. There is a lot of opportunity there, which, in the context of volunteering overall, it would be a mistake to ignore.

However, I am seeking to resist the amendment. It would not be appropriate to include trade union activities in the Bill. That makes it necessary for me to answer the question posed by noble friend Lord Lea, which was where trade unions fit in, and that of my noble friend Lord Morris, on qualification.

I think that the answer is relatively simple. We should ask the design group to consult the TUC. The TUC knows which of its activities would fit in the areas that are identified as being voluntary work. We would know from that discussion how that would relate to the question of refereeing and monitoring. That would provide the opportunity to avoid some of the fears that the noble Baroness, Lady Falkner, expressed in her contribution, the first part of which I was in total agreement with. I have volunteered for a number of organisations, including political parties, in my life, but I have to say that in few cases have I been moved by passion. It has come about normally by accident, or I have been pushed by somebody who has said, “Do me a favour and come along to this meeting”. Often, getting involved without any great commitment has led to my being very interested and continuing the involvement long after the pressure from friends has subsided.

I agree with the point made by the noble Baroness that we should not see volunteering as some kind of passionate activity, with everybody having to be motivated by passion and no one having to be incentivised. It is different from being told, “You, you and you will volunteer”. When my noble friend Lord Judd felt that he could not resist the volunteering request, he knew that there was a penalty, which presumably was not necessarily that he would be put on charges, but that something would be held against him in relation to his service by the same NCO. It was therefore an invitation that he could not refuse. We are not doing that in the Bill. People who do not wish to volunteer will still qualify as citizens. They will take a decision based on their understanding of what they can volunteer for, which is why the point made by the noble Lord, Lord Avebury, is very important: we must tell people what they can do that will benefit them, as well as society, when they become active citizens. I ask my noble friend to withdraw the amendment, but express my enthusiasm for what is being done by trade unions by nodding my head.

I know that my noble friend is trying to answer the points, but would he not agree that there is a credibility problem here? For the person applying for citizenship, where is the evidence that any of the people who will be handling his application have ever undertaken voluntary community service? It is not something that is required of people who are born into citizenship in this country. We do not require citizens to participate in voluntary activity. It seems to me that there is a credibility problem that the Government need to address if they want to move forward with this idea.

During the hour and a half that we spent discussing the previous group of amendments, we identified and talked through this issue, recognised that it is work in progress and gave assurances that it will come to law only after noble Lords have had the opportunity to judge and make a decision. I do not want to reopen that wider debate on this narrow amendment. I will happily discuss this again on Report. In the mean time, I ask my noble friend to withdraw his amendment.

I found this interchange very useful. The reason why I wanted Amendment 83 to stand outside the earlier group is that I thought that it might get lost otherwise. It has given us the opportunity to think about where the misunderstandings have arisen. I say to my noble and very good friend Lord Judd that I was beginning to wonder whether he was moving an amendment to his own Amendment 83.

I thank the noble Baroness, Lady Falkner, for being so frank in her concerns. One of them is absolutely misconceived, if I may say so, and that is the idea that we are somehow being “partisan”—that was her word—as though anything to do with trade unions implies the involvement of the Labour Party. My noble friend Lord Morris and I have about 100 years of trade union activity between us and we know that that is a total misunderstanding. For 90 if not 99 per cent of the time, it is not like that at all. You represent your members on day-to-day matters. In the context of the Bill, it is nothing to do with being partisan.

I would put the point the other way around. My concern—I have experience in these matters—is that when people talk about NGOs and this sort of thing, one minute they say, “Of course trade unions are included”, but when they set up meetings, the unions are not there. My worry is about being excluded. I am very glad that we have had this discussion. I have had this discussion in many forums. When CPA and IPU delegations have gone to Nigeria, I say, “Are we meeting the Nigeria Labour Congress?”. They say, “Why? What has that got to do with it?”. I say, “We are meeting so-called NGOs: what is wrong with the Nigeria Labour Congress?”. I hope that the noble Baroness, Lady Falkner, with her development experience, will recognise my point.

I thank the Minister for providing an indication of his intent to invite the TUC to be consulted about what is going on with the design group. That is absolutely proper, and everybody should welcome that.

Finally, the noble Baroness, Lady Falkner, raised the issue of people living in ghettos, such as single-faith ghettos.

I thank the noble Lord for giving way. I do not believe that I used that word; I avoid using it wherever I can. I think that I said “segregated communities”.

I am sorry; I wrote it down. This is my last sentence. The debate that we are having is 180 degrees opposite to that point. I thank noble Lords who have spoken and beg leave to withdraw the amendment.

Amendment 83 withdrawn.

House resumed. Committee to begin again not before 8.27 pm.