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House of Lords Hansard
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British Nationality Act 1981 (Remedial) Order 2019
23 July 2019
Volume 799

Motion to Approve

Moved by

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That the draft Order laid before the House on 2 May be approved.

Relevant document: 20th Report from the Joint Committee on Human Rights

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My Lords, in this day and age, I think that we can all agree that the law should not discriminate against people simply because their parents were not married when they were born or discriminate against people just because it was their mother who was British and not their father.

The draft British Nationality Act 1981 (Remedial) Order seeks to remove discriminatory provisions in the British Nationality Act 1981 for those applying for British citizenship under specific routes introduced to address historic discrimination against those whose parents were not married. The draft order was first laid in Parliament in March 2018.

This means that, once the law is changed, those seeking to register as British citizens who were born to an unmarried British father before July 2006 or to a British mother before 1983 no longer need to demonstrate that they are of good character where it would be discriminatory to require them to do so.

In two separate cases, the courts declared the good character requirement unlawful and made a declaration of incompatibility with the European Convention on Human Rights. The legislation will correct incompatibilities identified by the domestic courts by removing the good character requirement for those applying for British citizenship in certain routes on the basis of historic discrimination. I am grateful to the JCHR for its scrutiny of the order and its careful consideration of a hugely complex and sensitive issue.

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

The Government welcome the committee’s recommendation that this order be approved today. However, it remains our position that the wider nationality issues raised by the committee go beyond the judiciary’s incompatibility rulings and are therefore outwith the scope of the order. I commend the order to the House and beg to move.

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My Lords, I wish to use this opportunity to raise three burning injustices addressed by the Joint Committee on Human Rights in its report on the order. The first two concern children who have to register their citizenship entitlement because of their parents’ status. The third concerns the denial of citizenship to the offspring of fathers from British Overseas Territories who were not married to their mothers.

First, I and others in both Houses have many times raised the question of the level of fees charged to children who were born or who have spent most of their lives here, who are entitled to British citizenship but who have to register their entitlement because of their parents’ status. The fee is £1,012, of which only £372 represents the administrative cost of processing registration. Ministers bristle when the rest is referred to as profit, but profit it is even though it is ploughed back into the system to subsidise totally separate Home Office immigration functions.

The JCHR spells out what this means, stating that,

“children from more disadvantaged backgrounds, and children in local authority care who are less likely to be able to afford the fees are more likely to be disadvantaged by the fee level impeding their ability to register as British nationals”.

The committee echoes the concerns raised by the Select Committee on Citizenship and Civic Engagement, of which I was a member. It concludes:

“Home Office fees for children who have a right to be British should be proportionate to the service being offered and should be priced at a rate that is accessible for children accessing their rights. This is not the case at the moment since fees for children are three times more than the cost of the service—four-figure fees merely to register an existing right to be British are unacceptable. Disproportionately high fees should not exclude children from more vulnerable socio-economic backgrounds from accessing their rights”.

I shall not rehearse all the arguments again other than to remind the Minister that citizenship matters, not just for practical reasons such as access to higher education but for reasons of belonging, identity and security.

I find it depressing that despite the Home Secretary’s admission more than a year ago that the fee represents a “huge amount” and that he should look at it, despite concerns raised repeatedly in both Houses and despite the chief inspector’s critical report, nothing has happened other than that the fee was not raised this year. It is not good enough that we continue to be fobbed off with vague assurances that the matter is “under consideration”. Will the Minister explain exactly what is meant by that? Is it active consideration? If it is, who is considering it and how, and when will the results be made public? If not, when will it be actively considered?

As if the exorbitant fees were not bad enough, these children are also subject to what is called the good character requirement. The JCHR report traces the history of this and how it was inappropriately extended to this group of children, who are entitled to British citizenship, wrongly referred to by a Minister at the time as “coming to the UK”. This is an example of how, time and again, the Home Office conflates and muddles up nationality law, which establishes who is entitled to British citizenship, and immigration law, which is quite separate. The JCHR, and those giving evidence to it, questioned the appropriateness of applying the test to children who were born in, or have grown up in, the UK. It again cites the Select Committee on Citizenship and Civic Engagement, which questioned the age—10—from which the test is applied. The JCHR concludes:

“It is inappropriate to apply the good character requirement to young children with a right to be British, where the United Kingdom is the only country they know and where they have grown up their whole lives here’.

The JCHR is also critical of how Ministers refer to “heinous” crimes in relation to the test, ignoring how it is applied also to cautions, minor offences and some forms of non-criminal behaviour. Indeed, it notes that half the children denied their right to British citizenship on good character grounds have not even received a criminal conviction, let alone been prosecuted for a “heinous crime”. It notes that the Home Office has updated the guidance in response to an earlier report by the chief inspector, to make clear the duty of,

“safeguarding and promoting the welfare of children’,

and to make,

“the ‘best interests’ of the child a primary consideration”.

However, in essence, the revised guidance does not address the concerns raised and the JCHR observes that it seems that,

“to date, the best interests of the child and child safeguarding obligations are not being adequately taken into consideration in Home Office decision-making”.

It reports that the Home Office has still been unable to explain or justify why the test is applied to children who know no other country and, in particular, to children as young as 10 so that the policy,

“is preventing children whose only real connection is with the UK from becoming British”,

contrary to what was originally intended. It calls on the Government to review the application of the test again in view of their,

“obligation to consider the best interests of the child when considering the impact on children with such a close connection to the UK”.

It also says that the Home Office has failed to explain why a child should be deprived of this important right merely on the basis of a police caution. Will the Minister now give an explanation of, and justification for, applying the test to these children, undertake to review its application, as called for by the JCHR, and, while carrying out the review and without further delay, undertake to limit its application to serious crimes so that minor offences are excluded?

I pay tribute to those who have campaigned relentlessly on these issues, in particular the Project for the Registration of Children as British Citizens, and give due notice to the Home Office that their champions in this and the other House do not intend to give up the fight. With a new Prime Minister, why not put an end to these two injustices and claim some credit for doing so? I also pay tribute to those who have campaigned on the final citizenship injustice I will raise, particularly one of its victims, Trent Miller, who has been writing to me about it ever since I acted as a humble foot soldier to the late and much missed Lord Avebury who went as far as the constraints of the Immigration Bill allowed on this issue during its passage in 2014.

The JCHR refers to the recommendation made in its previous report in 2018. It deemed it ‘unacceptable’ that acquisition of British nationality should depend on whether a person’s father or mother was a British Overseas Territories citizen and on whether or not their parents were married. It recommended urgent legislative action to remove this discrimination affecting those born before July 2006. The Government’s response was that they would undertake consultation with the overseas territories at a point when a suitable legislative vehicle was identified. The JCHR expresses dismay at this further delay. It also notes that the Explanatory Memorandum to the order explains that the legislatures of the overseas territories,

“have not been consulted since they have no competence in matters relating to nationality and citizenship”.

One might have thought that the Government would have known that before committing to such consultation. As it is, we seem to be back we where we started. The JCHR was unsurprisingly not impressed, and made it clear that:

“The Home Office and the Foreign and Commonwealth Office should not wait to consult on this at some unspecified point in the future, but should take action to consult and actively seek to remedy this human rights violation as swiftly as possible, rather than proffer excuses for delay”.

In fact, according to a Written Answer I received on 10 May, it seems there has been “engagement” with the British Overseas Territories to,

“seek their views on possible future changes on the matter”,

and, once again, there are those weasel words:

“This matter is under consideration”.

Will the Minister therefore tell us what the outcome of that engagement has been and why the Government continue to drag their feet on remedying this blatant and anachronistic piece of discrimination? Will she give a commitment to do what she can to ensure that legislative action is now taken sooner rather than later? In introducing this order, she said how this kind of discrimination is unacceptable. To quote Trent Miller:

“This would remedy the deep hurt and sense of rejection felt by children, now adults, affected who simply want to be respected and treated fairly”.

As it is, he feels he is being treated as “less than” and being “shut out”. How can this possibly be justified? It is high time to bring an end to this injustice.

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My Lords, the noble Baroness, Lady Lister, in her usual style, has once again taken the wind out of my sails, so I will sail in her slipstream. My commiserations to the Minister, as she has the second instalment of the “Lister and Russell show” today.

The Minister commented that the JCHR had gone slightly outside its brief in its comments on this draft order. I would like to suggest to her why that might have seemed the right thing to do. The subjects, conclusions and recommendations it raises on pages 23 to 25 of the report, if you bother to read them, are fairly sobering and somewhat shocking. They are not new; they are issues that have been raised repeatedly in a variety of fora. They will not go away, because again and again we see and hear evidence of what I assume and hope are the unintended consequences of the Home Office’s multifaceted approach to trying to constrain, manage and discourage non-UK nationals and their dependants, including large numbers of children—some of whom have the absolute right to be British citizens—from becoming British citizens. The reason the JCHR has commented on that is that it feels, as many of us do, that that is shocking and simply unacceptable.

While I suspect that the immune system of the Home Office is in a demoralisingly parlous state, I also observe that the cumulative layers of scar tissue it has acquired over the last few years seem to have rendered it incapable of remembering above all that its activities which impact on children are prescribed under British and international law, which say very clearly what the rights of those children are. They make it very clear that those rights have to be first and foremost in every thought and action of the Home Office on our behalf as citizens of this country.

It is unacceptable that the immigration status of parents, whether it is up for argument or not, should have such a material and, in many cases, negative effect on their children, who have done nothing to deserve such treatment. Under international law and the European convention on the rights of the child, and the UN version, they have an absolute right to be protected. I cannot understand why the Home Office seems incapable of recognising this and putting it at the forefront of all it does.

I have three questions for the Minister, and if she is unable to answer them this afternoon, I should be delighted if she had the time and courtesy to write to me. The first is on the subject of citizenship. Do the Government recognise that British citizenship and indefinite leave to remain are simply not the same in terms of the entitlements and security they bring, and that having British citizenship for those entitled to it is a fundamental part of a child’s right to an identity?

Secondly, to return to the perennial issue of citizenship fees and the lack of fee waivers, the Government have, I am glad to say, committed to ensure that the issues highlighted in the Independent Chief Inspector of Borders and Immigration’s report on the charging for services will be addressed. They said that the recommendations will be,

“factored into spending considerations on fees”,

and undertook to conduct further consultation. Will the Government commit to completing that review even if, as I suspect is entirely possible, the comprehensive spending review is confirmed as being delayed? These children cannot and should not wait.

Thirdly, on local authority duties, do the Government not recognise that local authorities have a duty as corporate parents to support children in care and to secure the most permanent status for which they are eligible? If so, do they accept that to charge children in care for citizenship applications is a cost shift from the Home Office to local authorities that creates extra financial pressures on already cash-strapped local authorities? It is robbing Peter to pay Paul and it is simply unfair.

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My Lords, I support what has been said so far. The Minister rightly pointed out that this is a remedial order to Parliament to correct incompatibilities in the British Nationality Act 1981 with the European Convention on Human Rights as identified by the courts in recent cases.

The question remains as to how we got into this mess in the first place. So deeply entrenched has been the Home Office in keeping people out of the United Kingdom that previous policies lacked basic concern about the rights and values of people wishing to settle here. Common sense would have told the Government that they were entitled to the incompatibilities being removed at the earliest possible occasion. There are no ifs and buts in this matter: it has taken 28 years to recognise this anomaly and the sooner it is put right, the better.

None of us are surprised that, as the British and British overseas citizenship rights campaign tells me, once again the Home Office is stalling and wants to push for a better legislative opportunity, for which the Home Secretary must look. Meanwhile, children of BOT descent born to unmarried BOT fathers remain shunned and left out in the cold, preventing them being officially embraced by their unmarried BOT fathers’ homelands. It is plainly wrong and should never have been allowed to happen in the first place.

Recent information has revealed areas of serious concern regarding immigration and nationality issues. We were concerned about the scandal of Windrush settlers who were denied proper documentation when they arrived here. This week, we read about the treatment of immigration detainees by private contractors who inflicted misery in our detention centres. They made millions of pounds’ profit from the services they provided. For this to happen at a time when we took great pride in promoting antislavery legislation in the United Kingdom shames all of us who are keen to promote dignity and respect for detainees.

This weekend, the Sunday Times reported on cash for British passports for those who can afford to pay millions of pounds into government coffers. You may ask what this has to do with the order before us. The aim for each of the above group is to obtain British nationality so that they can lead a decent life in the United Kingdom. Why is it taking us so long to rectify an anomaly identified by our courts?

We accept that a number of the recommendations are outside the scope of the remedial order before us. There is no need to wait for another opportunity to revisit nationality laws. We should be actively promoting new legislation to rectify anomalies identified by the JCHR. This order gives us the opportunity to bring forward sooner rather than later legislation that would remedy the deep hurt and sense of rejection felt by the affected children, who are now adults. They simply want to be respected and treated fairly. It is unacceptable that discrimination in acquiring British nationality persists. We should also use this opportunity to consolidate all immigration and nationality issues and proof these against anti-discrimination legislation. We welcome a wider consultation and ask the Minister to set up a timetable for this exercise.

A number of issues that have been identified in the debate so far need to be considered. One such is the “good character” requirement in the context of seeking British nationality. This applies to those aged 10 or over, as that is the age of criminal responsibility. Is the Minister aware that my Private Member’s Bill on this matter has gone through all stages in your Lordships’ House and will be dealt with by Wera Hobhouse MP in the other place? I ask the Minister to await the outcome before specifying that the Government do not consider it appropriate to adjust the “good character” policy so that certain acts become inadmissible when assessing a minor’s suitability for British citizenship. No one would wish to ignore some heinous crimes, but great care must be taken to look at the proportionality of the crime and its impact, so that applicants are less likely to meet the threshold for refusal of citizenship.

My final point relates to the fees issue, which was also identified by previous speakers. My noble friend Lady Hamwee—she would have loved to speak today as she was a member of the JCHR, but she is at a Select Committee meeting and is unable to be here—told me that the size of the fees can mean that a family is able to pay for one child but not stretch to the other. When is the Minister going to look into this? Does she accept that citizenship is not something to be granted on a discretionary basis but an entitlement when all the conditions are met? I look forward to the Minister’s comments.

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I thank the Minister for explaining the content and purpose of this draft order, which we support as it corrects a discriminatory and unlawful requirement. The Joint Committee on Human Rights has also recommended that the draft order be approved. I will say, before I go any further, that I have nothing new to say that has not been said already. Nevertheless, I still have a determination to say it.

British nationality law granted automatic citizenship by descent only to children born in wedlock to British fathers. Changes have allowed children born to a British mother or father to become a British citizen by descent, irrespective of whether their parents were married, but there remained a requirement to prove “good character” in cases where the applicant is 10 or older. Following the expression of concerns about this continuing requirement—and, probably more decisively, court judgments of incompatibility with the European Convention on Human Rights—this draft order finally removes the “good character” test for young people seeking their right to British citizenship. Can the Government confirm that they consider this draft order to be compatible with human rights?

While approving this draft order, the Joint Committee on Human Rights made a number of other recommendations in its second report on the order, published on 9 July, which in my view fully justifies our referring to the content of the JCHR report when discussing this order and expecting a government response, either now or later, to what is in that report. It would be helpful if the Government could indicate what their response is to the conclusions and recommendations set out in the second JCHR report on this draft order, published on 9 July.

As has already been said, the JCHR’s conclusions and recommendations include the following:

“The Government should review the application of the good character test to children with a right to British citizenship who have grown up in the UK”,

particularly in the light of the,

“obligation to consider the best interests of the child”.

The JCHR has also expressed the view that the Home Office is leaving itself open to successful legal challenge by requiring from children against whom it has previously discriminated additional requirements, such as good character, that would not have applied had they been able to apply as young children when they were under the age of 10. The committee recommended that the Home Office reconsider its position in respect of children it had previously discriminated against, so that they can obtain British nationality without discrimination or superfluous requirements.

Again, as my noble friend Lady Lister of Burtersett and other noble Lords highlighted, the committee also said that the provisions of the British Nationality Act 1981 relating to British Overseas Territories citizenship contained the same discrimination that is the object of the draft order we are now discussing, and that the Government should not wait to consult on this at some unspecified date in the future but should take action to consult and actively seek to remedy this human rights issue—it has been described as a violation—as swiftly as possible.

The JCHR recommended that the Government should not charge an application fee to those who had previously been discriminated against. Can the Government confirm that this is now their intention and indicate when the fees regulations will be amended accordingly? As has already been pointed out, application fees for children are three times more than the cost of the service. The JCHR has commented that disproportionately high fees should not exclude children from more vulnerable socioeconomic backgrounds from accessing their rights to British citizenship. Will the Government now set the fee for citizenship at cost price? Will they ensure that full-fee waivers are available to any child who cannot afford it?

Referring to local authorities, the JCHR said that they should ensure that children in their care with an entitlement to British citizenship should be registered as British to ensure that they maintain their status and rights on leaving care. It is not obvious, though, that we have a clear idea of the immigration status of all children in the care of the state. What are the Government doing in conjunction with local authorities to identify those children with insecure immigration status and to ensure that they receive proper legal advice?

As I said earlier, we support the draft order, but I hope that the Government will provide a response to the associated issues raised by the JCHR in its report and which have been referred to by other speakers in this debate.

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I thank all noble Lords for their contributions to this debate, which has lasted longer than it did in the other place. That does not surprise me, because your Lordships are so much more forensic.

Most noble Lords made similar points, the first of which was around the good character test for children. The good character requirement for British citizenship is set out in the British Nationality Act 1981 and applies to those seeking to register as British who are aged 10 and over at the time of application. This is because 10 is the age of criminal responsibility in England and Wales. Children as young as 10 can and do commit very serious acts of criminality, such as murder and rape, and it cannot be right that such offences are disregarded when assessing a child’s suitability for citizenship. The Government do not believe that the good character requirement for children is at odds with the statutory obligation in Section 55 of the Borders, Citizenship and Immigration Act 2009.

However, I wish to make clear—I think it was either the noble Lord, Lord Dholakia, or the noble Lord, Lord Rosser, who raised this issue—that having a criminal conviction does not necessarily mean that an application for citizenship is automatically refused, particularly in the case of minor offences attracting an out-of-court disposal: for example, a youth caution. Each case is considered on its individual merits, and guidance for caseworkers makes it clear where discretion can be exercised.

The noble Lord, Lord Rosser, raised the issue of repeated fees—

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Before we move off the good character test, while it is helpful to have that explanation, could the Minister explain how, according to the JCHR, half of the children denied their entitlement to British nationality on the grounds of good character have not even received a criminal conviction, let alone been prosecuted for the kind of dreadful crimes that she mentioned.

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I will write to the noble Baroness on that because if people have not even had a conviction or indeed been found guilty of any small crime, that would appear to contradict what I was saying.

All noble Lords asked about the fees for children. The noble Lord, Lord Russell, made the distinction between ILR and citizenship. That is absolutely right. Upon application for citizenship there is a fee, but citizenship is not an absolute right and acquisition is not automatic; it remains subject to an application being made and the fulfilment of statutory requirements such as taking an oath and making pledges at a citizenship ceremony in the case of adults, and the payment of fees. There are provisions for those who are destitute, including children living in local authority care, to be exempt from application fees in specific circumstances. This is clearly set out in guidance for caseworkers and the Government consider it sufficient to allow vulnerable children to access the services they need. Nevertheless, I am aware that this issue has been raised several times recently, both in this House and in the other place, as well as being the feature of the recent inspection by the Independent Chief Inspector of Borders and Immigration. Given the attention that this subject has attracted, the Government have agreed to keep the current position under review. Before the noble Baroness, Lady Lister, screams in frustration, I will keep the House updated on that. Clearly, we are about to go through a period of slight flux with a new Administration, a comprehensive spending review and a new Prime Minister, so I hope the noble Baroness will forgive me for being a bit more vague on this occasion. I do not think she does, but it is as much as I can say at this time.

The noble Baroness, Lady Lister, and the noble Lord, Lord Rosser, talked about the British Overseas Territories. The JCHR is concerned that the discriminatory provisions this remedial order seeks to remedy will still apply to British Overseas Territories citizens. Regrettably, that is true. When changes to nationality legislation were made, they were introduced at a very late stage in the parliamentary process and there was no time to consult fully with the territories about introducing similar provisions for the status of British Overseas Territories citizens. It would not have been right to introduce legislation that would affect the territories and potentially the status of those living there without that consultation. We recognise the difficulties that still are faced by those citizens who might want to pass on their citizenship to their children and we are actively considering how best to address those concerns, taking into account the opportunities for doing so.

The noble Lord, Lord Rosser, asked about the compatibility of the order with the ECHR. The draft order is compatible with human rights; we confirmed this in the Explanatory Memorandum that was relaid yesterday.

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I am sorry to interrupt again. I am slightly behind so I am a bit out of sync. I am very confused now because the Minister said it would not be right to make these changes without consulting the British Overseas Territories, but the Explanatory Memorandum says that British Overseas Territories have not been consulted since they have no competence in matters relating to nationality and citizenship. There is also the Written Answer to me saying that there has been engagement with them. If not now, could the Minister explain in a letter what exactly is the state of play in relation to the British Overseas Territories and whether it is possible to move this on, because it has been going on for a long time.

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The noble Baroness makes a very valid point. I suspect the answer is that engagement is not the same as formal consultation, and we do not tend to do things to the overseas territories without consulting them formally. I will confirm that to her if I can. She is right that we need to remedy this sooner rather than later because there is a gap which needs to be sorted.

The noble Lord, Lord Rosser, asked about a government response to the JCHR report. The Immigration Minister will today respond to the JCHR’s most recent recommendations and a copy will be laid in the Library.

Motion agreed.