Here, as in other parts of the Bill, we are concerned about the breadth of the powers that the Bill gives to the Secretary of State. It will perhaps benefit the Committee if I speak to Amendments 85 and 85A as well as to Amendment 84 in order to speed matters. Clause 39(2), for example, gives remarkable and unacceptable powers to the Secretary of State. It says nothing about whether or not the Secretary of State can increase or reduce the powers given. The Delegated Powers Committee says of Clause 39(2) that it inserts a new section into the British Nationality Act 1981,
"under which regulations may be made which amend the length of the qualifying time period—both the default qualifying period, and the period by which it may be reduced for those who meet the activity condition".
As drafted, this clause also allows the Secretary of State to increase the period allowed. That seems to us to be far too flexible and the sort of thing that needs therefore to be constrained.
The merit in Amendment 85A is that it adds a further degree of advice and therefore an extra degree of autonomy in enabling the Secretary of State to consider whether completed activities are of benefit to the individual. We are immensely concerned by the breadth of powers given to central government in this Bill, as in so many other Bills that come before the House. The idea that the Secretary of State will be able to determine whether the Women's Institute in Upper Medlicott or wherever is a viable body for which a young Muslim woman can volunteer stretches the imagination. My daughter is a civil servant and I recognise that civil servants in London are tremendously efficient and far-sighted, but their ability to check on what is happening in Upper Wharfedale, Upper Wensleydale or wherever is relatively limited. The purpose of Amendments 84, 85 and 85A, therefore, is in different ways to add brakes on the autonomy of the Secretary of State in determining the circumstances under which these things are pursued.
I have to say more strongly that, if the Government are not able to bring back a more restrictive version of page 32, line 3, many of us will be strongly motivated to vote against that at Report. As Amendment 84 suggests, we are extremely unhappy with the laxity of flexibility given to the Secretary of State by the whole of this section. I beg to move.
Amendment 85A extends the discussion that we had earlier. It attempts to establish who is going to be in charge of deciding where volunteers are invited to go and what the process is by which it is then known that they have volunteered: they will presumably have had some box ticked by the referee in order to tell somebody that they have undertaken the voluntary work in order to presumably have another box ticked by the UK Border Agency.
The Minister said that the paper on the design group was in the Library. It is not. I wonder, therefore, if we could arrange to have copies sent to us as soon as possible or to make sure that, if it is meant to be in the Library, it is in the Library. The noble Baroness, Lady Howe, asked for it during the dinner break and it was not there. Perhaps we could be directed towards it, as I think that it is very important.
Also, the Minister answered only indirectly the question that I raised earlier about how long applicants would have to do voluntary work for. I think that he said at the end of his remarks that it would be done all the way through from the pre-probationary stage right to the end of probation. However, there must be a time limit because applicants cannot be expected to do four years of voluntary work in order to reduce their time limit by two years. Perhaps we could have an answer on that.
As the noble Lord, Lord Wallace of Saltaire, said, a lot of unanswered questions remain. In order to decide whether this is going to be of any benefit to anybody—the country, the applicant or the people ticking the boxes to make sure that they have their bits of paper in the right place—questions have to be answered about the right place for those bits of paper and who will make the final decision on whether someone has achieved what is required to enable them to be fast-tracked.
When much of this voluntary activity is to be devolved to Scotland, Wales and Northern Ireland, is it appropriate that the Secretary of State here in London should have the final word on the type of volunteering that would be acceptable in the devolved areas? If this amendment comes before us again, should we not devolve that decision to the Assembly in Wales and the Parliament in Scotland so that those who are in touch with the grass roots will be the people who decide whether an activity is of benefit to the individual or the wider community?
Let us discuss the missing paper first. I can give noble Lords an assurance that it was placed in the Library. Indeed, I was rather surprised, not to say perturbed, when I heard that the noble Baroness, Lady Howe, had not been able to get a copy of it during the dinner break. I asked my colleagues in the office to check that it is indeed in the Library. It may have taken a little finding, but it is there, and I can assure the noble Baroness that it is available as we speak. As I said earlier, it gives a lot of answers that show at least how far we have got in relation to our discussions at great length before dinner. Hopefully enhanced by our communications twixt now and Report, it will form the basis of our discussions at that stage.
The noble Baroness asked how long the volunteering should last. It will be on the initiative of the applicant who can state on the form applying for probationary service that active voluntary service has been, is being or will be undertaken, so it will be driven by what the applicant seeks to do. If they can say that they have been volunteering for a number of years before they get to active citizenship, and the claim can be refereed and proved, they will have demonstrated their commitment. It may be that the referee feels that more evidence is needed to justify the applicant having met the criteria for sustained volunteering, particularly from the voluntary organisation that the applicant has been assisting, but this should be seen not in terms of having to complete a course of action but as a proper act of volunteering.
I turn to the point made by the noble Lord. Questions of migration policy, the UK Border Agency and everything that goes with them are national rather than regional policy issues. We have already said that the organisations monitoring and therefore tick-boxing the applicants will, in many cases, come from the 87 local authorities that have already formed a body for dealing with this. They will come from the larger charities and organisations that have banded together to provide the monitoring service. In that sense, the scheme will be local in nature. I cannot see a role for the Assembly and the Scottish Parliament in this, given that a unit is to be formed to assist in migration policy, which, as I have said, is a national area.
I assure noble Lords that we will respond with further information as soon as we can. Indeed, I am strongly reminded by the comments of the noble Baroness—if I was not by our one-and-a-half hour debate before dinner—that this is not seen by noble Lords to be developed sufficiently to the point at which they would sign off on it, as they say. I have also given an assurance that, when the design group has completed its work and the Government seek to put the details into regulations, it will be necessary for them to be affirmed by a resolution of the House. I hope, therefore, that the amendment can be withdrawn at this stage so that we can return to the debate on Report, by which time, I hope, we will have a much more comprehensive picture available to us.
Again, I apologise for the fact that there may have been some confusion about the availability of the paper, which I can confirm was placed in the Library in the latter part of last week. It should have been available to Members because it would have been helpful to our debate before dinner.
Before the Minister sits down, can we expand this debate and make sure that we clearly understand the amount of voluntary work that will have to be done? It is all right to say that the referee will sign it off, but it is not in the applicants' interests not to know whether there is a minimum or maximum amount that they have to do. One person might get away with a week, whereas someone else might still be flogging it out two and a half years later, and they would both be equitable in terms of the reduction of two years. It is a bit flimsy to leave it so that they do not have to do a specific amount of volunteer work.
I am not necessarily saying that that would be the case. The design group will work on this. Undoubtedly, the design group will discuss with the organisations that it represents what would be, in each case, a considered amount of voluntary activity. We have to avoid, on the one hand, someone delivering one leaflet for a good cause on one day being equal to, on the other, someone spending lunchtimes helping out at a local community centre two days a week for two years. That is for the design group's consideration and will undoubtedly form part of its recommendations when it has completed its work.
I am not entirely happy with the terms in which the noble Lord has answered this debate. Volunteering is, by its nature, a local activity. It takes place within local communities and you are likely to operate, quite often, with local charities. I was thinking, as I sat down, of the Rylstone Women's Institute, which I happen to know well. Indeed, my wife has autographs of all the leading members of the Rylstone Women's Institute from when it first produced a calendar. Noble Lords will know how well it did with that calendar. It is not, except by several degrees, a national organisation; it is very much rooted in the local community. To say that the border agency is a national agency and will therefore deal with larger charities rings all sorts of alarm bells.
I recall that, when I was engaged in the Offender Management Bill last year, the Government talked again about larger voluntary organisations. It is much more convenient to handle larger organisations than to deal with little local bodies that get in the way. The Conservative Party is these days converted to localism, at least in principle. If we are trying to get active citizenship off the ground at the local level, we must find a better way of doing it. That is my first point.
Secondly, the noble Lord has not answered the question about the laxity of the drafting of Clause 39(2), which allows the Minister to increase, as well as to reduce, the qualifying period for citizenship. Unless that is tightened up considerably, so that very careful procedures are required before a change is made, we are minded to divide on that on Report. As it stands, it is clearly not satisfactory.
I thank the noble Lord for the reminder and apologise for not dealing with that question. It will be covered with the second amendment. To return to the first, we are anxious not to exclude small organisations for which people may volunteer. Therefore, one of the suggestions from the paper that is in the Library is that it may mean larger organisations validating the work of smaller organisations if the smaller organisations do not have the resources to do it themselves. Again, local authorities are often candidates for providing that kind of validation, either by granting aid or by having a register of charities in the local authority area. We are anxious to avoid a situation where only large charities are beneficiaries and, indeed, where volunteers can offer their services only to larger charities. We require the agreement, understanding and support of larger voluntary organisations to take smaller organisations under their umbrella and look after them, either on a geographical basis or perhaps on the basis of one form of social or other activity.
On the point raised by the noble Lord about the ability to extend or reduce the length of time, the simple and brutal point from the Government's point of view is that, as the noble Lord said, the amendment would restrict the power to amend the qualifying periods. I resist the amendment, as it would represent an inappropriate restriction on the Secretary of State's power to develop immigration policy. We live in a dynamic and fast-changing world and it is wholly appropriate that the Secretary of State should have sufficient flexibility within the legislation to react to changes as they happen. I can reassure the Committee that any regulations brought forward that sought to change the qualifying period would be subject to the affirmative procedure. That is the assurance that we offer and I hope that the noble Lord will feel that it is sufficient for him to withdraw his amendment. However, on the basis of what he said, I recognise that he might not simply withdraw it but may well return to it at a later stage. The reassurance that we put before the Committee is that we will follow the affirmative resolution procedure should the Government desire to extend or change in any way the pattern established in the clause.
Can the Minister give any assurance on limitations to the Government's thoughts about how much they might, under odd circumstances, wish to extend this period? After all, the Government have signed, but not yet ratified, the convention on naturalisation, which refers to a maximum of 10 years for qualification. Do the Government wish to retain the freedom to extend way beyond 10 years or are there no limitations on the variability that one might introduce under Clause 39(2)?
The noble Lord is making presumptions that are not necessarily in the Government's mind. We are seeking to have on the face of the Bill the ability, in extraordinary circumstances and in the dynamic society in which we live, to make proposals that will be subject to confirmation under the affirmative resolution procedure. We have no desire at this stage to make any changes; the changes are in the Bill that we have brought forward. It is wrong to presume from the fact that we need an enabling clause that there is any intention at the moment to do anything. However, we do live, and have lived over the past half-century, in extraordinary circumstances of migration. One thinks of the current problems in Zimbabwe and the problems in east Africa and other parts of the world. We simply want the ability to bring the issue forward for discussion and approval without the requirement for primary legislation in the case of extraordinary events occurring.
I beg leave to withdraw the amendment.
Amendment 84 withdrawn.
Amendments 85 and 85A not moved.
Clause 39 agreed.
Clause 40 : Children born in UK etc. to members of the armed forces
Moved by Lord Thomas of Gresford
86: Clause 40, page 33, line 3, leave out "on or after the relevant day"
Amendments 87 to 89 are linked to Amendment 86, which has been tabled by my noble friends Lord Avebury and Lady Falkner of Margravine.
We move now to consider Clause 40 which relates to children born in the United Kingdom to members of the Armed Forces. Its provisions follow the publication of the Ministry of Defence Command Paper of July 2008, The Nation's Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. In Clause 40, the Government make provision for those born within the United Kingdom or a qualifying territory, at least one of whose parents is serving in the British Armed Forces, to be born as British citizens. So the clause benefits those who are born after a day to be appointed. It also makes provision for children born in the United Kingdom but not in a qualifying territory after the appointed day, whose parents enter the British armed services while a child is under 18, to register as British citizens subject to the good character test set out in Clause 43.
Those eligible to serve in the British Armed Forces are British citizens, British nationals other than British citizens, Commonwealth citizens and Irish citizens. It seems very complicated that children should be distinguished according to whether they are born in the United Kingdom or in a qualifying territory, and according to the particular status in the Armed Forces of their parents. If the Government are seeking to be generous in their treatment of the armed services, it would be quite simple to draft a clause which said to parents, "You are eligible to become members of the Armed Forces because of the close ties that you have with the United Kingdom. Your service in the Armed Forces has strengthened those ties and because of that your children will either be born British citizens or be eligible to register as British citizens". That would be a simple way of looking at it rather than the way that the clause has been drafted.
Amendment 86 would ensure that all those born to serving members of the Armed Forces in the United Kingdom or in a qualifying territory, whether before or after the commencement of the Act, are entitled to be registered as British citizens. The Act specifically reserves entitlement to those born after its commencement. The clause, as drafted, can create a situation where a child born after the provision comes into force may be a British citizen but a child born before the Act comes into force to the same parents is not. The younger brother becomes a British citizen; the older brother does not. Distinguishing between children born before the Act comes into force and those born after is not, in my respectful submission, a sensible provision.
The first group of children to benefit from the amendment will be those born between now and the appointed day. In case anybody thinks this is an academic point, one has only to look at the Nationality, Immigration and Asylum Act 2002 in which the Government amended the British Nationality Act 1991 so that children born after the appointed day to British fathers not married to their mothers could, on proof of paternity, acquire their father's British nationality. The appointed day did not arrive for four years so all those children born before the day that the Act came into force when the Bill was passed did not have the benefit of those provisions. A four-year delay took place. You can imagine that in the future children who were born in the interim period will be campaigning because they were born on the wrong side of the blanket, if I may use that expression, and I hope your Lordships are following me. If you are in the forces, what do you do? Do you refrain from having children until the Home Office decides that it is time for this Act to be passed?
The second group of people to benefit from Amendment 86 will be those already born in the United Kingdom or a qualifying territory to a mother or father who was a serving member of the Armed Forces at the time of their birth. The provision comes into force, as I have already commented, on or after the appointed day. I am referring to children who were born before the Bill was passed. To be serving members of the Armed Forces, their parents will have had to have been eligible in the sense that I have described and have built on that connection through their service. Why should their children not also benefit? Amendment 86 removes the starting point, the appointed day, whenever that should be—when the Home Secretary, the Secretary of State or whoever decides that these provisions should come into force.
The purpose of the second amendment is to ensure that the application for registration need not be made while the person is still a child. The third amendment would ensure that the parents must have been in the Army while the UK-born child was under 18, if a person is to register under this clause. The purpose of these amendments is to ensure that UK-born children whose parents served in the British Army while the child was still a child may register even when they have ceased to be children themselves, when they are adults at the time of the application. By removing the words, "while still a minor", the amendment would continue to require that the parents were serving during the child's minority but would not require that the person be a child at the time of application for registration. The amendment is crafted so that the children of these people have to register, and under Clause 43 registration will be subject to the good character test, so this does not mean that they will immediately be British citizens, merely that they will be entitled to apply for registration, subject to that test.
We think that this makes some sense of the way in which the Government have drafted these provisions. I am sure there is a great deal of good will behind the Government's purpose, and I hope that that extends at least to considering in some detail the submissions that I have made to the Committee now. I beg to move.
I support Amendment 86. It would be unjust to the children of members of the Armed Forces if, by the accident of their being born the year before this clause came into effect, a child who was born a year later had a right that his elder brother or sister did not have. That has a degree of discrimination against children who are equally children of members of the Armed Forces. I cannot at the moment see the logic of that, other than just to reduce the number of people who would be entitled to become British citizens. In the context of a clause that is intended to be generous, this shows a lack of generosity to child members of the family.
I hope to be able to reassure the noble Lord in such a way that he will understand why the Government believe that this is an unnecessary amendment, though I am grateful to Members of the Committee for raising this important issue. The question here, as the noble Lord said, is what happens to children before we commence Clause 40. To deal with the question of delay, and he cited substantial delay, it is intended on this occasion to implement Clause 40 by order in late 2009, following commencement of the final parts of the Armed Forces Act 2006. Those born before commencement continue to benefit from citizenship at birth or by registration under Section 1(3) of the British Nationality Act 1987. I shall explain.
The amendments would enable them to apply for registration as British citizens as if they would have qualified had the new clause been in place when they were born. To reply to this, I should explain that Clause 40 does not provide the children of members of the Armed Forces with a new entitlement to British citizenship; it clarifies an existing eligibility and puts it on a clear statutory footing. So, a child born in the UK today would be recognised as a British citizen if either of his parents was a member of the British Armed Forces at the time of his birth. Equally, if that child is born in the UK today and one of his parents then enlists, we will register him as a British citizen if the application is made while he is still a child.
The amendments propose that an application or registration can be made by an adult if, when they were a child, their parent became a member of the Armed Forces. However, Section 1 of the British Nationality Act 1981 is principally concerned with the British citizenship rights of minors. Furthermore, there are alternative avenues for an adult who is or was resident in the UK to acquire British citizenship, most notably under Section 1(4) and Section 6(1) of the 1981 Act. It is also important to note that those persons born since 1983—when the British Nationality Act 1981 was commenced—to a parent who then became a member of the Armed Forces are already captured by the current parameters of Section 1(3) of that Act, because their parent has, for nationality purposes, been treated as settled from the point of joining the Armed Forces.
The reason for this hinges on the definition of "settled" used for the purposes of Section 1 of the 1981 Act. Under Section 1(1), a child born in the UK or qualifying territories is automatically a British citizen if either parent is settled when he is born. If a child is born in the UK and does not gain British citizenship under that section, but one of his parents subsequently becomes settled here, that child can apply to be registered as a British citizen under Section 1(3) of the Act. The application must be submitted before the child's 18th birthday and, if the child is aged 10 or over, he must be of good character. If those conditions are met, he is entitled to British citizenship.
Those serving in the British Armed Forces are exempt from immigration control under Section 8(4)(a) of the Immigration Act 1971 and have, as a matter of policy, been treated as settled for nationality purposes since commencement of the British Nationality Act 1981. This means that any child born in this country today will be eligible for British citizenship under either Section 1(1) or Section 1(3) of the 1981 Act, depending on whether the parent is in our Armed Forces when the child is born, or enlists later. We will continue to apply this policy in practice until Clause 40 has commenced, which means that there should be no children missing out on British citizenship because of their birth date. I hope that reassurance is helpful to the Committee, and that it allows the noble Lord to withdraw his amendments.
I am sorry, but I did not catch the latter part of the question. Noble Lords may have noticed that I am getting a cold.
I think we are just placing established policy on a statutory footing, but your Lordships made a point about the fear that one brother or sister born a year later than another, for example, would be disenfranchised. I am trying to provide reassurance that that is not the case.
As I understand it, the proposed new subsection that is being introduced deals with persons who are not settled in the United Kingdom but who become members of the Armed Forces. I hope the Committee will forgive me if I consider the Minister's reply in Hansard in some detail to see whether we shall return to it. I am most grateful to the noble and learned Baroness for her support on this; like her, I am puzzled by the purpose of these provisions. If it is indeed the intention, as the Minister said, that they should be brought in before the end of this year, why would the Government resist? Why would they need the provision,
"on or after the relevant day",
in Clause 40(4), which is the subject matter of Amendment 86, at all? If the Minister will forgive me, I will take this away and read at leisure what he said. Perhaps the Minister would like to add something.
I seek to assist the noble Lord and make the matter absolutely clear to him when he reconsiders the position set out. The purpose of Clause 40 is to clarify the rights in law which I have just mentioned. They do not depend on the definition of "settled", which involves a test of ordinary residence that is subject to case law changes. That may or may not help the noble Lord. He is a far more distinguished expert on law than I shall ever be. I am grateful for his withdrawing the amendment.
I beg leave to withdraw the amendment.
Amendment 86 withdrawn.
Amendments 87 to 89 not moved.
Clause 40 agreed.
Moved by Lord Avebury
90: Before Clause 41, insert the following new Clause—
"Certain persons without other citizenship
In section 4B(1) of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons without other citizenship) at the end of subsection (1) insert—
"(d) British National (Overseas)"."
When Hong Kong was being handed back to China in 1997, concern was expressed by the governor and the Hong Kong Legislative Council that the status of non-Chinese people could be uncertain. In the 1985 agreement, the PRC accepted only the ethnic Chinese population of Hong Kong as its nationals, and it was feared that non-Chinese British nationals would be left de facto stateless when they lost their BDTC status in June 1997. That was taken up here and in another place and, in February 1997, the then Home Secretary announced that provision would be made to allow solely British ethnic minorities of Hong Kong,
"to apply for registration as British citizens, giving them right of abode in the United Kingdom, after
The Prime Minister confirmed that a couple of days later, adding that those concerned were potentially stateless and now had a nationality.
Following this decision, under the British Nationality (Hong Kong) Act 1997, some 9,000 members of Hong Kong's ethnic minorities have been able to register as British citizens. Unfortunately, the remaining few hundred do not qualify because of an arbitrary residence test. British nationals (overseas), British overseas citizens, British subjects and British protected persons who apply under the 1997 Act must have been ordinarily resident in Hong Kong on
At the time of the passage of the 2002 Act, a senior official wrote that the reason for the exclusion of BNOs from Section 4B was that British nationals overseas were excluded from the registration entitlement because the vast majority of them held or had held another nationality, and those who did not were believed to be already satisfactorily catered for in terms of the 1997 Act. I am afraid that that was not correct, because, on the qualifying date, some were abroad on temporary assignment, some were studying overseas, some minors were abroad with their parents, and there were a few cases where a child was living in Hong Kong, but, because his parents were abroad, the child was not deemed to be ordinarily resident of Hong Kong.
The elimination of the ordinary residence condition is consistent with general principles set out by Home Office Ministers. On a separate point related to BDTCs, the noble and learned Baroness, Lady Scotland, specifically told me:
"We would prefer not to base our policy on the application of notional registration dates and it seems unnecessary to do so".—[Hansard, 26/2/06; col. WA40.]
When I have raised the plight of these people on previous occasions, Ministers have said that all of them have the right of abode in Hong Kong and that they regard that position as satisfactory. Technically, they are wrong, because, under the basic law, an ethnic minority BNO can lose the right of abode—and, in fact, quite of them have lost it, as I have pointed out in correspondence with Ministers. They are theoretically subject to deportation by the director of immigration, and would lose all their civic rights and privileges.
A more critical error by the Home Office was to wrongly equate right of abode with nationality. Since 1997, solely BNOs have been living on Chinese territory as aliens. They have no country or nationality of their own. Britain, the country of their passport, refuses to accept them. It is only right that we equalise the position of solely BNOs with that of British overseas citizens, British subjects and British protected persons. To do this, Amendment 90 brings BNOs into Section 4(b) of the British Nationality Act 1981, which covers otherwise stateless British overseas citizens, British subjects and British protected persons.
The amendment would also remove two bizarre paradoxes in our nationality law. First, it penalises any member of the British ethnic minority in Hong Kong who took steps to retain their British nationality prior to the handover. An otherwise stateless former Hong Kong BDTC who registered as a BNO needs to meet the arbitrary residence test that I have described, whereas if he failed to register as a BNO, he automatically became a British overseas citizen on
Secondly, the child of an otherwise stateless BNO becomes a BOC at birth, giving him the right to register for full British citizenship even though his parents are denied the same entitlement.
Before Labour came to power in 1997, the present Justice Secretary, Mr Jack Straw, said:
"A British national overseas passport carries with it the right of abode nowhere. The claim that this amounts to British nationality is pure sophistry. Common sense and common humanity demand that we give these people full British citizenship".
Amendment 96 gives effect to Government commitments that children will not be born stateless to persons from the solely British ethnic minority. In 1984, a Home Office memorandum stated unambiguously:
"Firm assurances were given by the Government during debates that no BDTCs would become stateless as a result of the agreement with China, and neither would their children born after
"The Government's position is that no former Hong Kong BDTC nor any child born to such a person, should be made stateless as a result of the amendments envisaged in the Bill".—[Hansard, 14/3/85; col. 237.]
In October 1987, the Home Office published a Command Paper stating that,
"the underlying principle is that no one who loses BDTC status as a result of the order, nor any child born after
We have at least three policy statements on the record that no one who lost BDTC status as a result of the handover of Hong Kong to China, nor any child born to them, should be stateless. However, the provisions for reducing statelessness in Article 6 of the Hong Kong (British Nationality) Order 1986 have resulted in children being born stateless to former Hong Kong BDTCs. Amendment 96 will rectify this breach of faith and eliminate the statelessness of children born to former Hong Kong BDTCs. It will entitle the beneficiaries to acquire British overseas citizenship, including all stateless children born on or after
To show noble Lords that this is not something that I have dreamt up that has not happened, I will quote one example—I sent the noble Lord copies of the correspondence. Ajab Taha Barma was born in Hong Kong on
"the Home Secretary has discretion under Section 27(1) of the British Nationality Act 1981, if he thinks fit, to register any minor as a British Overseas Citizen. It would of course be open to any future Home Secretary to make use of this provision in relation to the descendants of non-Chinese BDTCs in Hong Kong if he were satisfied that in any particular case the circumstances justified it".—[Hansard, 14/3/85; col. 238.]
Ajab's parents applied for British overseas citizenship on her behalf under Section 27(1), quoting the policy commitments already mentioned, but were refused on the perverse grounds that she has no connection with British territory. This amendment serves to put the matter right.
We have reneged on the firm commitments to the solely British ethnic minorities and made children such as Ajab stateless, in spite of numerous ministerial statements and command papers that said that that could not happen. That should now be rectified, and this amendment does so in a manner consistent with provisions for others in the same group. I beg to move.
I pay tribute to the persistence with which the noble Lord, Lord Avebury, has pursued this particularly difficult and disabling matter. I had a letter from one of the persons who fall into this category, who is living in London. I referred the writer of the letter to the noble Lord, so I hope that something positive comes out of it.
There can be no doubt that statelessness is a very severe disability. In that connection, I ask whether so-called Nansen passports are still available, which used at one time to be issued by the Red Cross. If they are available, to what extent do they remove the disabilities that we are all complaining about?
As a final point, perhaps the Minister could tell us what use, if any, has been made of the discretion, which we believe the Home Secretary to possess.
I should like strongly to support my noble friend Lord Avebury in his campaign to right a very considerable wrong. I spent a great deal of time in Hong Kong in the 1980s and early 1990s, and I was aware at that time of the very considerable fear felt by those who were likely to lose their nationality and become stateless under the provisions of the 1997 handover.
I draw to the attention of the Minister the report of the noble and learned Lord, Lord Goldsmith, in February 2008—his review of citizenship entitled, Citizenship: Our Common Bond. He considered the position of British nationals overseas who have their status by virtue of their connection to Hong Kong and were not affected by the changes in 2002. He said:
"They hold the only extant and significant form of British citizenship which is not full citizenship and does not allow an unqualified right to enter and remain in the UK".
It is a very poor form of nationality granted to these people if they cannot even come to the United Kingdom and stay here. He said:
"The only option which would be characterized as fair would be to offer existing BN(O) holders the right to gain full British citizenship".
So it is recognised by the noble and learned Lord that that is something that should be tackled. The qualification that he put in was that he had been told by somebody that it,
"would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong",
and that it would not be possible to vary the terms of that treaty. But when one examines the exchange of memoranda that occurred at that time, one sees that the Chinese memorandum said only:
"Under the Nationality Law of the People's Republic of China, all Hong Kong Chinese compatriots, whether or not they are holders of British Dependent Territories citizens' Passports, are Chinese nationals".
So if you are ethnically Chinese, you automatically had Chinese nationality. The memorandum continues:
"Taking account of the historical background of Hong Kong and its realities, the [... Chinese Government] ... will, with effect from
That is all that they said on the topic, and that really has nothing to do with the plight of these people who have been left in limbo or of their children, as my noble friend pointed out. It is time that we did something to right that wrong. The amendment that my noble friend has brought forward this evening can do that and should have the Government's support.
Hong Kong is a very special place. In any event, on a cold March day such as today I cannot imagine that many people living in Hong Kong who come into this category would prefer to come to this country or to attempt to make their living here in today's economic climate, but at least they should have the right to do so. We have an obligation that must be fulfilled. Far too long a period has passed since 1997 without the injustice that has been done to those people being put right.
I am grateful to noble Lords for raising this issue concerning the former colony of Hong Kong. I join the noble Lord, Lord Hylton, and others in commending the endurance of the noble Lord, Lord Avebury, and his commitment to end what he sees as an injustice. However, I am afraid that I must resist these amendments as we believe that British National (Overseas) citizens, who gained that status from a connection with Hong Kong, and British overseas citizens resident in Hong Kong are already fully catered for within British nationality legislation. We also believe that associated provisions in law to prevent the statelessness of those persons, and their children, formerly resident in Hong Kong are sufficiently comprehensive as to make statutory change unnecessary.
Section 4B of the British Nationality Act 1981 was introduced in 2003 to benefit particular categories of persons because of the historical implications of the break-up of the British Empire. It is our position that it would not be appropriate to extend this to further groups. The status of British National (Overseas) was introduced to cover those British dependent territories citizens from Hong Kong who may not have acquired Chinese citizenship when sovereignty was transferred to China in 1997. This status was provided for under the British Nationality (Hong Kong) Order 1986. Those who could not register as a British National (Overseas) could become a British overseas citizen if they would otherwise be stateless. This also applied to their children if they would otherwise be stateless following the partition of Hong Kong.
The Government at the time recognised that there may be some who would not become Chinese citizens after the handover, and so also provided in the British Nationality (Hong Kong) Act 1997 for those British nationals who were ordinarily resident in Hong Kong both on the date of application and immediately before
The Government accept that there may be some who cannot benefit under this provision, as they have not maintained ordinary residence in Hong Kong. These people, however, having established themselves elsewhere in the world through choice, will have a route to another citizenship. Section 4B of the British Nationality Act 1981 was introduced following the abolition of the special voucher scheme to allow those who would have been eligible to come to the UK under that scheme from East African countries, had it continued, to do so as a British citizen following their registration.
We do not intend to extend the registration provisions of Section 4B to British Nationals (Overseas). Most of them will already have a right of abode in Hong Kong or elsewhere. This contrasts with the difficulties faced by other types of British nationals around the world, many of whom do not have a right of abode in any other country. Presumably the people that noble Lords wish to include, apart from those I have already stated, are those who have not maintained a link with Hong Kong through ordinary residence and, therefore, may not be able to register.
The majority of unsuccessful applicants under the 1997 Act are currently from people with a Nepalese connection who are not living in Hong Kong. This is because they do not meet the requirement of being ordinarily resident in Hong Kong, which is critical to registration under the 1997 Act. In the 12 years since that Act was passed, it could be argued that such people had the opportunity to settle elsewhere and acquire citizenship and thereby are not stateless. This includes the possibility of acquiring British citizenship or another nationality by naturalisation on the basis of residence.
Amendment 96 also proposes to enable British overseas citizenship to be acquired by a person born stateless to a parent who held British Dependent Territories citizenship before
I do not know whether the Minister had a chance to read the letters that I sent him, but the case that I quoted of Ms Barma is precisely on that footing—that the parents tried to register the child using the discretion in Section 27(1) and they were refused. The Minister has a copy of the letter of refusal, so I cannot see how he can maintain that it was possible for people to apply for discretionary leave.
I note the noble Lord's comments. It may be that I led him to rise a moment or two before he heard something which would be more to his satisfaction in the statement I am completing.
There are also extensive avenues by which a child born stateless can acquire a form of British nationality in particular areas. I was going on to say something in light of the comments made, which I shall deal with after I have first dealt with the point made by the noble Lord, Lord Hylton. We have no knowledge of Red Cross passports and their role, although I shall inquire to find out what they are and, I hope, send the noble Lord a note on that. I shall also send him a note on the question of where the discretion of the Secretary of State has been applied.
Returning to the main issue, I note that the noble Lord, Lord Avebury, raised a number of individual cases, on which I cannot, of course, comment. I am happy to set out the policy which has been applied when deciding on particular categories of cases. I continue to offer him and other Members of the House an opportunity either to visit the UK Border Agency nationality group in Liverpool to see how the caseworking process in action is operated and to discuss how decisions have been reached. If noble Lords are unable to travel to Liverpool, we would be happy to provide the facilities for such a meeting in London.
On the broader topic that the noble Lord raised, I am happy to consider his points and return to them at Report, following discussion. With that, I hope that he will be prepared to withdraw his amendment.
In his reply, the Minister mentioned east African Asians. Would I be correct in deducing from that that the Government fear that if the amendment were to be accepted, large numbers of people would want to come from Hong Kong to live here? The noble Lord also said that those affected could apply for residence or citizenship elsewhere. Where in the rest of the world does he seriously think that that will happen? On what grounds should other states accept applications for either residence or citizenship?
On the noble Lord's last point, people who have chosen to reside in other member states of the United Nations or beyond will have residential status in those states and may indeed have the opportunity to take on the country's nationality. On this occasion, I was not declaring a policy or a premonition on behalf of the Government; I was simply stating the historical facts relating to the trials and tribulations of nationality over the past half century. I think that we can usefully return to this matter on Report, when we may have had the opportunity to discuss individual cases. Perhaps then we can minimise our differences to arguing not about the facts but just about the policy.
I do not know whether we can usefully return to this matter on Report. After all, we have now been arguing the case for 22 years since the Hong Kong (British Nationality) Order 1986 and the handover of Hong Kong to the Chinese in 1997, and we have not been able to get anywhere with successive Ministers, although we have had undertakings from them. I am most grateful to the noble Lord, Lord Hylton, and to my noble friend Lord Thomas for their support for the propositions that we have advanced.
As the noble Lord, Lord Hylton, said, statelessness is a very severe disability and it is monstrous that the Government should be visiting this on a small number of helpless people who, they know, cannot retaliate. We are not talking about a vast number of people; we are talking about the people who failed the ordinary residence test, not because they had left to go to some other country, as the Minister pretends, but because they were absent on short-term assignments, were studying abroad or were children whose parents had taken them out of the country. The fourth category that I gave was the children who were in Hong Kong on the date of the handover but who were not counted because their parents were abroad and therefore they were deemed not to be ordinary residents.
The Minister did not reply to any of those points. He just ignored them and said that all these people must have departed Hong Kong to live permanently in another country. That is completely false. He also ignored everything that I said about the assurances that had been given by successive Ministers that no person who lost BDTC status as a result of the handover of Hong Kong to China, nor any child born to such a person, would be made stateless. Therefore, these people are not fully catered for, as the Minister pretends. The provisions are not sufficiently comprehensive to make these amendments unnecessary, as we have shown, and I can produce other examples if he wishes. I do not want to have to go to Liverpool to produce examples of people who have been made stateless, because everything is in the correspondence. If the Minister asks his colleagues at the Home Office, he will find that there are plenty of letters from me about these individuals who have been made stateless, either because they were not ordinary residents at the time or because they could not fulfil other conditions.
We are not talking about thousands of people; we are talking about a very few people who were BNOs and who should have been granted the privileges that the Government promised them at the time. The Government have undoubtedly reneged and failed a small but significant minority of people. Although I shall withdraw the amendment, I do so with—
I am feeling slightly wounded. I did not say that I was ignoring the argument. I said that the noble Lord had put forward a number of cases and I suggested a meeting—it does not have to be in Liverpool; it can be in London—so that the methodology, the casework and the reason why the department arrived at certain decisions which it believed to be in the spirit of our policy could be discussed with him and whoever else wished to be involved. I shall take on board for consideration the points that he makes at such a meeting. I do not believe that that is ignoring the issue. It is recognising that there is a point that needs to be investigated. I also offered the assurance of a further discussion on Report, so I feel slightly wounded. I repeat that we are not ignoring the noble Lord's argument; I am suggesting that it has to be taken on board and, in the light of investigations, we can look again at the problem that he has set out. If that is not sufficient, I apologise, but that is as far as I can go on this occasion. I hope that it will be sufficient to enable the noble Lord to withdraw the amendment without feeling that he is being totally ignored.
That is not sufficient to mollify me, because I am not talking about individual cases, I am talking about the principle. I have already enunciated the three principles laid down by previous Ministers that have now been reneged on. We can talk about individual cases until we are blue in the face, and there has been masses of correspondence. It is not necessary for us to sit around a table to talk about that. I will do that if it will convince the noble Lord that what we are saying is correct, but we want to eliminate the problem of statelessness among the original BNOs who did not manage to get the full citizenship to which they were entitled and which they had been promised by successive Governments.
We want not just consideration of individual cases but a reaffirmation of the promises made by successive Governments now being reneged on by this one. I have no alternative but to withdraw the amendment, but I do so with great reluctance.
Amendment 90 withdrawn.
Clause 41 : Descent through the female line
Moved by Lord Avebury
90A: Clause 41, page 34, leave out lines 11 to 15
By way of background to the amendment, I should perhaps remind the Committee that until 1983, when BNA 1981 came into effect, British fathers could pass on their nationality to children born overseas, but mothers could not. The BNA had a feeble shot at that discrimination by providing that a child born to a British mother and a foreign father could be registered as a British citizen while a minor, although not all did so.
We could never understand the rationale for extending the rights only partially from father to mother in proceedings on the Nationality, Immigration and Asylum Act 2002. We persuaded the then Government to move the cut-off date from
We also argued that our amendment to remove the cut-off date would enable the Government to lift the reservation that they maintained on the Convention on the Elimination of All Forms of Discrimination against Women. That must be the acid test of whether Clause 41 is good enough in its present wording. Article 9.2 of CEDAW provides:
"States Parties shall grant women equal rights with men with respect to the nationality of their children.".
The UK entered a reservation to that on the basis of what we inaccurately described as certain temporary or transitional provisions, which continued from
Unfortunately, as in many other clauses, the Government have made Clause 41 so convoluted that it is hard to see the wood for the trees. The critical question is whether the Government are confident that, with the passage of the clause, we will be able to withdraw the reservation that we entered to CEDAW and whether we intend to do so. I ask the Government to reply to that question now.
One thing is clear: it will be more difficult for those born after
That reintroduces an element of discrimination between mothers and fathers who were British only by descent at the time of the child's birth under Section 5(1)(b) of the British Nationality Act, which continued in force beyond the February 1961 cut-off date in the 2002 Act. The child of a male British citizen by descent born in a foreign country was automatically a British citizen by descent immediately his birth was registered at the local British Consulate, but the child of a female British citizen by descent had no such right and now cannot claim equal treatment because of the involved wording of the clause. If that is incorrect, I hope that the Minister will say so, but as we read it, the Bill may not allow us to lift our reservation to CEDAW.
So while we are grateful to the Government for getting rid of the February 1961 cut-off date, the removal of which the noble Lord, Lord Filkin, kept telling us, when he was the Minister, would cause the world to fall apart—we never quite got an elucidation of how that would happen—we are disappointed that the Government have gone to enormous lengths and added new levels of complexity to the clause simply to exclude the small number of children who might otherwise have benefited from being descended from mothers who were British citizens by descent.
Amendment 91 deals with persons who would have been entitled to register under Clause 41 but are now dead. If that person, who could not have acquired British nationality under existing legislation, had given birth to a child in the UK after
I would like to imply that I have remained here through curiosity born of sharing the blood of four Liberal forebears in the House of Commons between the Great Reform Bill and the Great War. My motivation has been curiosity, born of that blood, to see what the continuous flow of a dozen groups of Liberal Democrat amendments would be like. We are now almost half way through that group.
Of the four who served in the House of Commons, I suspect that I am closest to the third, my great grand-uncle, who was elected as Liberal MP for Wakefield, but on arrival in the House of Commons decided that he preferred Disraeli to Gladstone. He was honourable enough not to cross the Floor, but did not stand a second time.
My reason for having lingered, however, is different. At the time of the 2002 legislation and in 2006 the noble Lord, Lord Avebury, asked me to support him in his efforts to secure the substance of the clause. My part was modest, but I warmly congratulate him on his constancy and his achievement. I should perhaps add that in the words of Lycidas, the noble Lord and I were,
"nursed upon the self-same hill,"
and attended an Oxford college that is almost three-quarters of the way to its millennium. It is a tribute to our mutual college that we were coached in stamina and taught to take a long view. It is happy to find our goal at last achieved, even if it is in a somewhat complicated mode. I am happy to have served as a foot soldier in the platoon of the noble Lord, Lord Avebury.
I realise that, looking at Clause 41 the basic intention does not appear obvious. However, the length of the clause is not an attempt to muddy the water; it is simply needed to cover all the previous pieces of nationality law that have been forged in an applicant's lifetime, which echoes the contribution of the noble Lord, Lord Hylton.
This change will benefit those born before 1948 and even those born before the 1914 legislation, if such people are still among us. The amendment suggests, in the absence of evidence for a particular application of action, that the Government should assume that a mother would have taken the necessary action to enable her child to acquire British citizenship had she been able to pass on her citizenship status by descent but for previous discrimination.
The Government's reservation on the Convention on the Elimination of Discrimination against Women is not to our knowledge linked at all to this clause. However, new Section 4C(3C) is intended to ensure that Section 4C covers only provisions that are about a child automatically acquiring British nationality from their parent, rather than any provision where the acquisition would have required an application to be made by that parent. This is because we cannot now be sure whether such an application would have been submitted and, even if it had been, whether that application would have been successful. Therefore, this subsection provides that an applicant for registration under Section 4C can rely only on those provisions that depend on the nationality of one or both of their parents and does not depend on an application being made for registration as a person who holds that status.
New Section 4C(3D)provides that it will not be assumed that any registration or other requirements have been met. There are a number of provisions that enable someone to acquire British nationality if certain requirements are met. For example, Section 5(1)(b) of the British Nationality Act 1948 states that a child born overseas would have been a CUKC if their birth was registered at a British consulate within a year. According to new Section 4C(3D) we will not assume that any such requirement would have been met, had previous nationality law provided for descent from a mother in the same way as a father. It is also proposed to introduce a new registration entitlement for a person born in the United Kingdom or overseas territory, whose parent would have been able to register under Section 4C—as the child of a British mother—but for his or her death.
For ease, I will focus here on children born in the United Kingdom. Similar provisions apply to those born in overseas territories, although there are slight differences in the routes by which those born in the territories can acquire British citizenship.
We do not think that there could be many people who would be affected by this amendment. A person born in the United Kingdom before
Many of those parents who would have had an entitlement to registration under Section 4C had it been commenced before their death would in any case have already been settled in the United Kingdom when their children were born. For example, those parents who were Commonwealth citizens with a mother born in the United Kingdom would have had a right of abode in the United Kingdom or the parent may have naturalised as a British citizen on the basis of their residence in the UK. Others, even though not British citizens, could have acquired settled status here by the time their children were born, such as by acquiring indefinite leave to remain in the UK.
For those born after 1983 who did not become British at birth because their parent was not settled or British on that date, there are a number of provisions by which a child born in the United Kingdom can acquire British citizenship. Any child born in the United Kingdom after
I note noble Lords' intention in providing for children who might be disadvantaged because of the death of a parent before that parent had an opportunity to register under Section 4C. However, I must point out that this situation would not be unique to parents who might have an entitlement to registration under Section 4C. It is wrong to assume that the parent would have wanted to register as a British citizen under Section 4C before their death. It is also wrong to assume that the parent would have met the requirements of registration under Section 4C, including after 2006 the requirement to be of good character. Furthermore, it is possible, for example, that the child's foreign parent might die before having been naturalised as a British citizen. It is not therefore appropriate to make provision only for children whose parents might have had a faulty entitlement in this respect. However, we feel that there is sufficient provision within the British Nationality Act to allow children to become British citizens. This section will benefit a very small number of people. The majority are already covered and catered for by the legislation. We would therefore be grateful if the noble Lord would withdraw this amendment.
If only a small number of children are involved in this matter, why go to such lengths to exclude a few of them by changing the wording in the 2002 Act? The wording of the section that we are discussing excludes certain children, although the Minister did not explain this. He did not say anything about the children of these women who were British citizens by descent, which is what I understood to be the whole point of the involved nature of the amendment compared with what is in the 2006 Act.
I take issue with the Minister's assertion that this has nothing to do with our reservation to CEDAW. I have already quoted the article in CEDAW that provides that,
"State parties shall grant women equal rights with men",
with respect to the nationality of their children. The UK specifically entered a reservation to CEDAW relating to Article 9. That was that,
"the United Kingdom's acceptance of Article 9 shall not, however, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue in force beyond that date".
That means the date when the BNA 1981 came into force. It is clear, therefore, that there was a connection between the reservation and the provisions of Article 9, whatever the Minister may say. There may have been other reasons why there was a reservation to CEDAW, but this was certainly one of them.
I do not understand why, if there was no problem in 2002 on registration, this problem has arisen now. Obviously we will not get to the bottom of that this evening. We will have to look carefully at what the Minister has said and probably return to this matter on Report. Meanwhile, I have to withdraw the amendment.
Amendment 90A withdrawn.
Clause 41 agreed.
Amendment 91 not moved.