New Clause 1
Borders, Citizenship and Immigration Bill [Lords]
Public Bill Committees, 18 June 2009, 9:00 am
Anne Begg (Aberdeen South, Labour)
With this it will be convenient to discuss the following:
New clause 6—Stateless children of British nationals—
‘(1) Schedule 2 to the British Nationality Act 1981 (c. 61) (amendments to Immigration Act 1971) is amended as follows.
(2) In paragraph 4, omit sub-paragraph (1)(c).
(3) In paragraph 4, for sub-paragraphs (2)(a) and (2)(b) substitute “shall be registered under it as a—
(a) British citizen, or
(b) in the case of a child whose mother or father is, or would have been but for their death, a British overseas territories citizen, as a British overseas territories citizen.”.
(4) In sub-paragraph (4) of paragraph 4, for “sub-paragraphs (1) to (3)” substitute “sub-paragraph (1)”.
(5) In sub-paragraph (4) of paragraph 4, after “British Overseas Citizen”, insert “British National Overseas”.’.
New clause 7—Legitimacy—
‘(1) The British Nationality Act 1981 (c. 61) is amended as follows.
(2) After section 4C insert—
“4D Acquisition by registration: legitimacy
(1) A person is entitled to be registered as a British citizen if—
(a) he applies for registration under this section; and
(b) he satisfies each of the following conditions.
(2) The first condition is that the person was born before 1 July 2006.
(3) The second condition is that the person is not already a British citizen.
(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act.
(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.”’.
Tom Brake (Carshalton & Wallington, Liberal Democrat)
It is a pleasure to serve under your chairmanship this morning, Miss Begg. The first of these three new clauses is the Ilois or the Chagos islands amendment. I cannot remember whether it was on Second Reading or in Committee that the Minister or perhaps the Secretary of State suggested that some Members were jumping on a bandwagon in relation to the Chagos islands. [Interruption.] It was not him. Perhaps it was the Secretary of State on Second Reading. I should like to reassure the Committee that this is certainly not a bandwagon that Liberal Democrats are jumping on now. It may have been a bandwagon that we jumped on many years ago. I recall speaking in a debate with the hon. Member for Islington, North (Jeremy Corbyn) about this six or seven years ago. So it is not a recent arrival. It is not something that has just hit our radar.
Clearly now is not the time to debate the injustices that have been done to the Chagos islanders. That is a matter that has been debated many times in the House and there have been many reports on it, but it is not the subject of today’s debate on new clause 1. The subject of new clause 1 is simply to consider the rights of the Chagos islanders, or the Ilois, and their descendents to full British citizenship. That is what the new clause seeks to achieve.
I want to quote some things that have been said about the injustices that I have just referred to. Members of the Committee will have read the judgment of Lord Hoffmann, who described “the whole sad story” of the Chagos islanders, saying that
“the removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests”.
Through new clause 1, we can perhaps go some way towards redressing those injustices and that “callous disregard” of the Chagossians’ interests.
Although Ministers have recognised that an injustice was committed, it is fair to say that their statements of concern have not been of particular use to the Chagos islanders. New clause 1 would be of great use. As I have said, it is about considering the rights of the Chagos islanders’ descendents to full British citizenship.
Members of the Committee may be aware that, under section 6 of the British Overseas Territories Act 2002, a person who was born after 26 April 1969 and before 1 January 1983 to a woman who was a citizen of the United Kingdom’s colonies by virtue of her birth in the British Indian Ocean Territory and who is neither a British citizen nor a British overseas territory citizen immediately before commencement of section 6 became a British citizen by descent. To summarise that in a way that is perhaps more digestible, what it means is simply that those people are not able to transmit citizenship automatically to their children. That is the key point that we are discussing today. The new clause would ensure that, by omission of section 6(2) of the 2002 Act, those people would become full citizens and thus would be able to pass on their citizenship to their own children.
I hope that other Members of the Committee will agree that that is something that we have a responsibility to do, because of the circumstances in which the Chagos islanders were dispossessed of their own homes, and in many cases forced to go to Mauritius. I also hope that the Minister will use this opportunity to take a positive step in this regard. We know that in 2002 there were intentions to address this issue, but those intentions were not fulfilled.
New clause 1 sets the scene and, as I say, hopefully it will give the Minister an opportunity to address the Committee and explain what action the Government are going to take on this issue.
New clause 6 is entitled “Stateless children of British nationals”. Again, I must say that I am afraid that these citizenship and immigration issues are quite complex and discussing them requires that a fair chunk of information is read into the record, to ensure that there is a reasonable understanding of what our proposal is about. The purpose of new clause 6 is to ensure that stateless children born after 1 January 1983 to “British nationals”, which includes British citizens, British overseas territories citizens, British overseas citizens, British nationals (overseas) and British subjects, wherever they are in the world, are entitled to be registered as British citizens, and that the children of British overseas territory citizens can be registered as both British citizens and British overseas territory citizens.
By way of giving a couple of examples, I will explain exactly what that means. A relatively small number of people would be affected by new clause 6. My understanding is that this is not an issue that affects tens of thousands of people. It affects small numbers of people—tens of people. Therefore, if the Government were concerned that new clause 6 might open the doors to significant numbers of new British citizens, I must say that I do not believe that that is the case. Perhaps the Minister will stand up and contradict me on that point; we will wait and see.
A British citizen born outside the UK under British overseas territories will be a British citizen by descent. As I stated earlier, that means that they cannot automatically transmit their citizenship to their children. In addition, a British overseas territories citizen born outside the overseas territories will be a British overseas territories citizen by descent; again, he or she will not be able to transmit citizenship to his or her children. For the children of British citizens and British overseas territories citizens, it is not always possible to satisfy existing provisions for registration to obtain those citizenships for want of compliance with residence requirements in the UK or a British overseas territory. Moreover, in certain circumstances, where the state of residence prohibits the acquisition of nationality—often on racially discriminatory grounds—this leaves the children of such persons stateless. That is what this is about: stateless children—children who, in effect, have no rights.
In addition, British overseas citizens and British subjects are not able to transmit that citizenship or status, as the case may be, by descent to their children. This also has the effect of rendering such children stateless, where the state of residence prohibits the acquisition of its nationality. Thus the statelessness of children may arise in circumstances where the state in which they live does not provide for the acquisition of its nationality and there is no mechanism for the children to acquire the British nationality of their parents.
All over the world there are small pockets of stateless children who have a link through their parents’ nationality or citizenship to the UK. The UK has accepted that their parents are entitled to a form of British nationality and therefore to some protection and assistance from the UK. Most families with parents who are such British nationals identify with the UK and are treated as identifying with the UK by the state in which they live.
The Immigration Law Practitioners’ Association—I know the Minister enjoys their briefings and talks to them on a regular basis—has examples of children of British citizens of Asian descent resident in Zambia and the surrounding former British colonies in eastern and southern Africa, who have been rendered stateless by strict domestic citizenship laws and restrictive policies preventing them from registering as British citizens or as British overseas citizens. While there are no official statistics on how many children in Zambia are affected, it is conservatively estimated that about 20 children, not 20,000 or 200,000, of Asian descent resident in Zambia are affected by statelessness. In June 2004 Lord Patel of Blackburn surmised that about 40 to 50 British families of Asian descent whose children were born after the country's independence were affected.
I shall go into the detail of one particular case to illustrate further the point I am making. The case is that of a British citizen of Indian origin resident in Zambia—hereinafter called “A” to simplify matters. He is a professional member of the community. He was a citizen of the UK and colonies by descent without a right of abode. On commencement of the British Nationality Act 1981, A became a British overseas citizen. His father, who moved to Zambia from India in 1953 as a result of the British Government's incentives, was registered as a citizen of the UK and colonies in 1955. He was automatically reclassified as a British overseas citizen on commencement of the 1981 Act. A’s mother, also of Indian origin, joined her husband in what was then Northern Rhodesia in 1957. She was registered as a citizen of the UK and colonies on the basis of her marriage in 1967. On 1 January 1983 she was automatically reclassified as a British citizen.
A married, first in a religious ceremony in Zambia and then in a civil ceremony in the UK in 1985. His wife, born in India, registered as a British overseas citizen in 1990 when the couple were living in the UK. A acquired indefinite leave to remain in the UK without a right to re-admission. The couple’s first two daughters were born in the UK in 1985 and 1991 and were thus British citizens by birth. In 1992 the family had to return to Zambia due to A’s increasing ill health. A’s younger two daughters were born in Zambia in 1993 and 1996; both have been stateless since birth—this is the important point. Despite numerous attempts made by A to register his younger daughters as Zambian citizens, he has been persistently informed that they are not eligible for Zambian citizenship nor do they have a realistic prospect of acquiring it in the future under the country’s citizenship laws. Zambian authorities have also been reluctant to issue travel documents to the children.
On two exceptional occasions, they agreed to issue temporary travel documents allowing the children to leave and return to Zambia, on the understanding that no further applications would be entertained in the same way, other than to issue one-way-only travel documents.
Meanwhile, A has made several unsuccessful applications to register his daughters under section 3(1) of the British Nationality Act 1981. He has made representations through MPs since 1999. In all his efforts A has been unequivocally rebuffed, with neither Zambia nor the UK taking responsibility for the children. As a result, the two daughters remain stateless. They are unable to visit extended family members in India and the UK. Should they ever contract a serious illness or suffer an accident the effects of which cannot be treated locally, it would be necessary for them to be airlifted to South Africa, where treatment could be administered—that has become common practice in such cases. However, as stateless children, they would not be able to travel.
On one occasion, the Home Office suggested that A and his family move to the UK so as to resolve the two daughters’ statelessness. They would have to travel on a one-way travel document as they are not entitled to passports from any country in the world. They have no guarantee that the move would achieve the desired result, as the discretion to register them as British under section 3(1) has never been exercised in their favour. It would also involve leaving the home and country in which they have grown up, to lead a precarious and complicated existence as stateless children in the UK.
The Committee will probably be pleased to hear that that will be the only example I give, but it well illustrates the issue. It is a small-scale issue but one which is of huge importance to a small number of children who are stranded in different parts of the world.
The purpose of new clause 7 is to make provision for those born to fathers not married to their mothers to register as British citizens. As I am sure the Minister knows, before 1 July 2006 British fathers could not pass on their British nationality to children born outside marriage. The new clause affects children born to fathers who were British citizens; it affects those born in the UK after 1983 to such fathers and to a mother who is not British nor settled in the UK. Before 1983, a child born in the UK was a British citizen. It also affects children born in a qualifying territory and children born outside the UK where the mother was not a British citizen otherwise than by descent.
As Members may know, section 9 of the Nationality, Immigration and Asylum Act 2002 changed the law, amending the British Nationality Act 1981 so that children born to British fathers not married to their non-British, non-settled mothers were born British if their fathers could prove paternity. However, it only did so for those born after 1 July 2006, the day on which the provisions were finally given full effect. It did nothing to correct the present-day effects on children and young adults of the historic injustice and discrimination against men.
The new clause would allow those not considered British citizens—only because they were born to British fathers not married to their mothers—to register as such. The new clause assists those born in the UK after 1983. For those born outside the UK to fathers who are British citizens otherwise than by descent, it would assist those still living.
I hope the Minister will agree that the new clauses are sensible proposals—relatively minor amendments to the law. The issues are about justice, whether for Chagos islanders or for families where the father did not happen to be married to the mother. I hope the Minister will give me some assurance that the Government will not only acknowledge but will be willing to take action on those issues.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
This is an interesting set of questions for the Minister. The Library note for the Bill is instructive. It makes a very important point about the labyrinthine complexities of nationality legislation. We have had so many Bills over the years that there are now many anomalous situations, many of them, as the hon. Member for Carshalton and Wallington just pointed out, affecting very small groups of people, but which can nevertheless give rise to genuine human misery.
Tom Brake (Carshalton & Wallington, Liberal Democrat)
The hon. Gentleman may be interested to know that another of those quirky immigration issues that I learned of is the debate that is going on about how much visiting Olympians should have to pay for their visas when they come to the UK for 2012.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I am grateful for that intervention, although I am not entirely sure how relevant it is to these new clauses.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
It is complicated.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
The Minister helpfully tells me from a sedentary position that it is complicated, which, while true, is not necessarily hugely illuminating. I think we all know that there are difficult areas here and they do create genuine human misery. The point is well made about the Bill, which is that although it is indeed, as I have pointed out several times, one in a long line of nationality Bills that we have discussed, it is my understanding that the immigration simplification Bill that, for some reason, we are getting in the next Session, will not address these issues, so this is the last bus for a long time upon which they can be discussed. If the Minister is unable to respond with any positive plan of action, these various small-scale anomalies will exist for many years to come.
I shall move on to each of the new clauses in turn. It is instructive to remember that the problem of the Chagos islanders arises from one of the last gasps of what might be described as traditional British imperialism, which, I suspect, even at the time looked a bit—some would say robust, some might say brutal. Groups of people were just removed from their homeland against their will by, it is worth saying, a Labour Government under Harold Wilson in 1969, at the behest of the American Administration. Looking back on it historically, it is fair to say that that was pretty much the last time that that kind of action would have taken place.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
If the Minister wishes to intervene, he is more than welcome to relive his youth on picket lines, or whatever it was, protesting against a Cruise missile system which his Government have not only continued but, in the case of Trident, recently renewed. I am not sure the Minister will necessarily want to go down that route.
As I was saying, this may be the last chance for the Government to address the issue of the Chagos islanders, if they choose to do so, and we will be interested to hear what the Minister has to say in response. He will be aware that this is a long-running campaign—there is an all-party group in the House of Lords on this—and the nationality law consequences of what happened to those islanders in 1969 is complex and very serious. Being born in the UK, or a British overseas territory, to a parent who is British or settled there means that you are born a British citizen. However, groups such as the Chagos islanders in exile, for example, in Mauritius, who are not born in the British Indian Ocean Territory, do not have that kind of status, because they are in enforced exile. I can understand why people regard that as unfair.
The Minister will also be aware that there have been several runs around this course in Parliament, not least in the British Overseas Territories Act 2002. Section 6 says that all those born between 26 April 1969 and 1 January 1983
“to a woman who at the time was a citizen of the United Kingdom and Colonies by virtue of her birth in the British Indian Ocean Territory”
became British citizens by descent. However, that means they are not able to pass on their British citizenship to their children born overseas, if they were not already British citizens. They became British overseas territories citizens, again by descent.
That amendment was designed to make provision for those born in exile from the islands, many of whom are in Mauritius. It only assists those born on or after 26 April 1969—the date on which the removal from the islands was authorised. That is one group who are eliminated and it only assists those who are born to the women involved, not the men. Exile did not end in 2002 when the provision was made; it continues today, and because those who benefit cannot pass on their British citizenship to their children born overseas, it does not deal with the generations who are born in exile. Unless action is taken, the disadvantage those children suffer in respect of their nationality will last for ever.
That is why this is a continuing campaign and cause of concern. I suspect the Minister will share that concern and it will be interesting to hear what he says. I can only assume he is worried about setting a precedent for other groups of people. I appreciate the complexities of British overseas citizenship. It is not one of the easiest areas of nationality law. However, given that we have the Bill in front of us and it is possible to address the issue now, it would be a useful and important thing to consider. Rather like the hon. Member for Carshalton and Wallington, I am interested to hear what the Minister has to say. We have all read the debates in the other place, but there seem to be a number of nice judgments to be made here. I approach this with an open mind because I can see not only the points being made by the campaigners, but the complexities involved.
In new clause 6 we are again dealing with the slightly arcane world of British citizens born outside the UK, British overseas territories and British citizenship by descent. Someone who is born outside this country—or in British overseas territories—and is therefore a British citizen by descent, will not be able to automatically transmit citizenship to their children. A British overseas territories citizen born outside the overseas territories will only be a British overseas territories citizen by descent, and therefore will not automatically be able to transmit citizenship. It is not always possible for the children of British citizens to satisfy existing provisions for registration and obtain citizenship, because of a lack of compliance with the residence requirements in the UK or in the British overseas territories. As we have heard, it happens that children in those circumstances may be left stateless. In the modern world, those people are peculiarly powerless and unable to access many of the genuine universal human rights that we seek to spread around the world.
There are issues of principle at stake here, as well as the practical effects that the hon. Gentleman laid out in his introductory remarks. In terms of new clause 6 it would be helpful if the Minister could let us know what the rough estimate is of how many people we are talking about. Is it dozens, hundreds, or thousands? We need to take a practical approach and see how many people might be gaining extra privileges from this. If the absolute total population that might gain new benefits because of it is only a small number, that would probably have a powerful impact on the argument and what we wish the Government to do.
Tom Brake (Carshalton & Wallington, Liberal Democrat)
I hear what the hon. Gentleman says in terms of the numbers who might be affected. Looking at the Minister and his officials, I am not sure whether they will in fact be able to give us a figure at all. There is surely an issue about the rights of a child which should not be affected by the numbers involved. There is a basic right. These children are stateless children who do not have rights. That must be addressed.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I sense that the hon. Gentleman is intervening on me as a way of sending a message to the Minister. I hope that the Minister has heard that. To be fair, I do not expect an exact figure, but the order of the numbers involved is quite important.
New clause 7 is obviously related. It makes provision for those born before 1 July 2006 to British fathers who are not married to the mothers to register by entitlement as British citizens. In another place Lord Brett described it as
“a useful part of the comprehensive discussion that we will have on these issues” —[Official Report, House of Lords, 4 March 2009; Vol. 708, c. 742.]
In a letter to Lord Avebury he acknowledged that the proposal in part replicates the current exercise of discretion in relation to those born to a father who is not married to the mother. The Government said in the other place that the amendment was unnecessary because ministerial discretion can be used. We have had debates about when it is appropriate to use ministerial discretion and when it is better to have decisions written into legislation so that we can have greater certainty and greater consistency over time. That is an important principle.
Lord Brett stated that there was no need for redress because
“it was felt that this could create difficulties for those affected in relation to any other citizenship they held.”—[Official Report, House of Lords, 1 April 2009; Vol. 709, c. 1092.]
As I understand it, the new clause provides for people to apply to register; it does not compel them to do so. I am not sure that that objection holds water. Steps have been taken to mitigate the current effect of historical discrimination against women who are unable to pass on their British citizenship to children born overseas, regardless of whether they are still children or are now adults. The new clause will remove the similar discrimination that still takes place against men in that situation.
This is a collection of extremely difficult issues, which touch on the boundaries of nationality and how it can be transmitted. It will be interesting to hear what the Minister says, particularly on new clause 1. This is a long-running campaign, which I suspect he knows will not simply go away if he does not respond to it satisfactorily.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
I congratulate the hon. Member for Carshalton and Wallington on tabling these new clauses. I commend him on his approach, particularly in laying out the facts and the background in a very helpful manner. It means that I do not have to repeat it, which is normally the function of a Minister in this regard.
I shall respond to the new clauses in the order in which they were presented. The hon. Member for Ashford pointed out that these are nationality issues; he was right to say that the proposed simplification Bill is an immigration Bill, not a nationality Bill. There is a large number of very complex, unintended, knock-on effects as a result of British nationality overseas issues, not least in the case of Chagos islanders. There are two issues. The Chagossians inhabited the islands of Diego Garcia, Peros Banhos and the Salomon islands, and had also settled in other parts of the Chagos archipelago, such as the Egmont islands and the Eagle islands. Those islands are formally referred to as the British Indian Ocean Territory and now form part of the British overseas territories listed under schedule 6 of the 1981 Act, as the hon. Member for Carshalton and Wallington said.
The resettlement, if that is the right word—the hon. Member for Ashford described the process as robust at best and brutal at worst, but “resettlement” is the word used in my briefing—
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
I will be careful what I say, because the first issue, as the hon. Gentleman has recognised and, indeed, has campaigned on, is resettlement and what rights, if any, the people have to return. So let me be cautious in that regard.
The official Government position is that the resettlement of the islanders was enforced so as to enable the use of the islands for American military purposes. The resettlement took place in the late 1960s and early 1970s, and the people were relocated to Mauritius and the Seychelles, although some subsequently moved to other territories, including Canada and the United States of America. The return of the Chagossians to the islands has been deemed, until now, as inappropriate for defence, security and practical reasons. Diego Garcia has one of the longest runways, if not the longest, in the world for American forces.
We come to the issue that the hon. Gentleman has raised. Those who were resettled—if I can use that word neutrally—and who were born in the islands were citizens of the United Kingdom and the colonies by birth, by virtue of section 4 of the British Nationality Act 1948. If we are having difficulties with these complexities, I should imagine that the 1948 Act was even more complicated. On commencement of the British Nationality Act 1981, those people became British overseas territories citizens otherwise than by descent, meaning that they can pass their status on by descent to children born to them outside the United Kingdom and qualifying territories. If Committee members are interested, that is mentioned in section 23 of the 1981 Act.
Subsequently, under section 3 of the British Overseas Territories Act 2002, all British overseas territories citizens otherwise than by descent acquired British citizenship. That means that the rights to British citizenship under nationality law of resettled Chagossians were not affected by the resettlement. However, those children born to parents who were resettled in 1969 acquired citizenship of the United Kingdom and colonies by descent only under section 5 of the 1948 Act, if born to a United Kingdom and colonies father, because they were born in Mauritius or other territories outside the United Kingdom and the colonies. However, it is strongly argued by Chagossian campaigners that such a child would, more likely than not, have been born in the British Indian Ocean Territory if their parent had not been forcefully resettled. If that had been so, the child would have acquired citizenship of the United Kingdom and colonies by birth and they would now, since commencement of the 1981 Act, and by virtue of application of section 3 of the 2002 Act, have acquired British citizenship otherwise than by descent in the same way as their parent had. However, because those children born outside the islands to resettled parents acquired citizenship of the United Kingdom and colonies by descent only, they have subsequently acquired British citizenship by descent by virtue of section 3(3) of the 2002 Act. That means that they can not transmit—pass on—their British citizenship status to children born to them outside of the UK and qualifying territories, under the application of the 1981 Act.
The Committee may be interested to know the number of people that we are discussing here. In that period—the late 1960s and early 1970s—arrangements were made for the islanders to be relocated, as I have said, mainly to Mauritius and Seychelles, although others subsequently moved elsewhere. The substantial majority of those people—some 1,200 of them—were relocated to Mauritius. Of course, that does not cover the issue of those people who were on Mauritius for medical reasons, educational reasons, including being at school and college, and other reasons, who were prevented from returning to the Chagos islands when ships stopped going back to the islands from Mauritius.
It is very difficult indeed to estimate the current number of Chagossians. However, 1,415 British citizen passports were issued to Chagossians in Port Louis in Mauritius and 203 were issued in Victoria in Mauritius between commencement of the British Overseas Territories Act 2002 and 8 November 2007. I thought that the Committee would be interested in those figures and I wanted to read them out because a lot of work has gone into finding them.
There may be a total of about 5,000 Chagossians worldwide who are currently eligible to receive British citizen passports, including the second generation Chagossians born outside of the British Indian Ocean Territory who acquired British citizenship by descent under the 2002 Act. So we are discussing not only adults resettled from the islands from 1969 onwards but some of their children. The Chagossian community in the UK is already about 1,000 in number, and the Foreign and Commonwealth Office estimates that there are around 3,000 to 4,000 Chagossians in Mauritius and the Seychelles.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
The Minister is right that those are extremely interesting figures. He said that the Chagossian community in Britain is about 1,000. Is that number fairly stable or has it been growing in recent years?
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
My understanding is that that number is fairly stable; I have no evidence that the movement is exponential or that the curve is getting steeper. However, I want to emphasise that that number is an estimate. It is better than a guess, but it is an estimate none the less. There are no accurate figures on the number of Chagossians in the UK.
The Committee will want to know the Government’s position on this issue. The proposal in new clause 1 is to extend British citizenship to a further generation of Chagossians; that is, to the children of the children who, it is argued, would have been born in qualifying territories if the resettlement had not taken place.
Tom Brake (Carshalton & Wallington, Liberal Democrat)
Does the Minister also acknowledge that, to some extent, the 1969 cut-off date is not entirely fair? As he said himself, the fact is that ships stopped going to the Chagos islands and a lot of people had to move out before that. So that 1969 cut-off date is not an actual fixed point.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
The hon. Gentleman makes a fair point. Indeed, I said that the resettlement started in the late 1960s and early 1970s. The particular date in 1969—I think that it was a date in August 1969—does not take on board the practical point about the ships that he made. The difficulty that the Government have is that we are talking about children of children and what could have happened to those people retrospectively, if the Committee follows my logic.
In the debate on this subject in the other place, Lord Brett expressed sympathy on behalf of the Government for the circumstances that had brought about the situation. The vast majority of Chagossians who from 1969 onwards resettled from the British Indian Ocean Territory—principally Diego Garcia, but the other islands as well—are now in Mauritius, which of course is not covered. The new clause seeks to address what the hon. Member for Carshalton and Wallington sees as an imbalance in the rights of former residents of the Chagos islands, and would enable children who were born outside the islands, potentially due to the resettlement of their parents, to acquire British citizenship in the same way as they would have done but for that resettlement.
The intended beneficiaries of the provision, if I understand the new clause correctly, would be second generation Chagossians born outside the British Indian Ocean Territory and the UK qualifying territories—not those who were resettled, but their children. The new clause seeks to ensure that those children are able to pass on the right to citizenship to future generations born to them outside the UK qualifying territories.
In discussing the new clause, I have been made aware of discussions being held between the Foreign Office and the Chagossians and their representatives on the broad range of issues relating to resettlement. The hon. Gentleman referred to the all-party group on the Chagos islands, which I understand last met on 30 May and is giving support to those representations on resettlement. The principal issue they have raised with us is their right, or suggested right, to resettle on the islands, rather than—not instead of—the issue of resettlement. Of course, Miss Begg, you would not allow me to address that issue here because it is not covered by the Bill. Suffice it to say, we are sympathetic to the position of second, and subsequent, generation Chagossians who were born in Mauritius or the Seychelles. I appreciate that is not the issue raised in the new clause, but I thought it would help the Committee to know that that was our focus.
Crispin Blunt (Shadow Minister, Home Affairs; Reigate, Conservative)
There is some merit in the Minister setting the debate in a wider context. Has he had any advice about the consequences of accepting or not accepting the new clause for the various sovereignty claims to the islands? Mauritius has made a claim on the British Indian Ocean Territory and may have understandings about what will happen when the United States finishes using Diego Garcia. I cannot remember the position, although I knew it once. There could be implications for the rights of people who are citizens of the British Indian Ocean Territory by descent but who are now in Mauritius and the other islands.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
The straightforward answer is no, although I absolutely see the hon. Gentleman’s point. There is a relationship between the issue addressed by the new clause and the issue I have just raised, and I will take that up with my colleague in the Foreign and Commonwealth Office. I cannot remember who that Minister is after the reshuffle but I think it is still my noble Friend Lord Malloch-Brown, or at least it was at 9 o’clock—please do not put that in Hansard. [Interruption.] I am advised that it is my hon. Friend the Member for Rhondda.
Moving swiftly on to the bit we are interested in, citizenship, otherwise than by descent, that can be transmitted to the next generation, born outside the UK, can only be acquired by persons who are born in the UK or a qualifying territory, who are naturalised in the UK, or who are born outside the UK or a qualifying territory to a British citizen in particular circumstances, for example a British citizen in the Crown service.
Furthermore, Chagossians who are British citizens through living in Mauritius or other parts of the Indian ocean could, if they so choose, elect to live in the United Kingdom. We understand, as I have already said, that some have done so. That means that any child born to them in the UK or a qualifying territory would acquire British citizenship automatically at birth by virtue of being born to a British citizen.
When a child has not been born in the UK but has been born in Mauritius or another part of the Indian Ocean it is probable that they will have acquired the citizenship of the state in which they were born. Any decision to allow British citizens by descent with a connection with the British Indian Ocean Territory to pass on their citizenship could lead to representations from other British citizens. British citizens by descent who are ordinarily resident in the UK and who have children born to them outside the UK cannot transmit their citizenship under section 2 of the 1981 Act, unless—there is a caveat—they are working in specified employment under Crown or designated service.
The policy on transmission of British citizenship by persons who hold that status by descent only is, therefore, strictly applied. The policy is designed to ensure that children born outside the UK to a British citizen by descent acquire British citizenship only when there is an ongoing close connection with the UK—the principle will also apply in my arguments on new clause 6—and, therefore, in cases where that connection is broken, on a temporary basis only. It is thus inappropriate to amend the class of British citizenship acquired by that group. So to amend would lead to similar representations from others who have British citizenship by descent only. There is no adequate case for such an extension.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I hear what the Minister says. This seems to be the central point where numbers come in. He has just said that the proposal would set a precedent for other groups of people. What rough quantum of numbers are we talking about?
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
I thought I had been through that.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
I am not sure about the numbers, but it would be people who, as I have said, were born outside the UK to a British citizen by descent only, who acquired British citizenship when there was no close connection with the UK. That is our difficulty. In layperson’s terms, the new clause is attempting to right a historical wrong by assuming citizenship rights being passed on to the next generation. My difficulty with that, as I have explained, is twofold. First, any such change that would retrospectively, as it were, assign rights could be ascribed in other places to other people. Secondly, in any event, it makes an assumption that the child would have been born in the Chagos islands. That is the difficulty in practical circumstances.
Our policy is consistent and empathetic to Chagossians when there has been an application by the first generation and when we have been able to use the powers that we have to grant citizenship, but those children, who may be grown up now, of course, who have acquired citizenship of another country—predominantly Mauritius—have no such close connection with the United Kingdom. Therefore, retrospectively, to turn that back would imply difficulty, although that is not quite the right use of the word “retrospectively”. We do not see how the Government can separate the nationality rights of Chagossians from the Foreign and Commonwealth Office’s general policy regarding the Chagos islands. That relates to the point made by the hon. Member for Reigate.
Although the Government have not sought to justify the actions taken in the 1960s and 1970s, we have maintained the line that our obligations—legal and otherwise—have been settled by previous compensation awards, and by the grant of British citizenship under the 2002 Act. If hon. Members are concerned that we have shut the door on Chagossians, the provisions in that Act should be borne in mind, although, to be fair, I think that the hon. Member for Carshalton and Wallington has acknowledged that point, if not today, during previous debates.
The British Indian Ocean Territory is currently British sovereign territory—none of it is US territory. Recently, Foreign Office Ministers have repeated publicly, and have given the commitment to the Mauritians, that when the UK no longer requires the BIOT for defence purposes, we will cede the territory to Mauritius. Of course, we have given no indication of the time scale for that, but it is important because it will transfer rights to Mauritians, which we think is the best way to address the wrong that the hon. Gentleman wants addressed.
The UK-US agreement was signed in 1966 and resettlement continued until 1973, when of course there was a Conservative Government. I take the point made by the hon. Member for Ashford about Harold Wilson, but I think Edward Heath continued the policy.
I have tried at some length to show how our strategy will address the problem raised by the new clause but without the associated difficulties. As the hon. Member for Carshalton and Wallington said, new clause 6, on stateless minors, would extend current provisions that enable a person born stateless outside the United Kingdom or qualifying territories to a British national, to acquire the same type of British nationality as their parent. That relates to provisions in schedule 2(4) to the British Nationality Act 1981.
The new clause would have two principal effects: first, to remove the requirement for a stateless person to have lived in the United Kingdom for a period of three years; and, secondly, to change the nationality status acquired from that of the parent to either full British citizenship or British overseas territory citizenship. It is a well-understood principle that British citizenship should be limited to those with a close and continuing connection with the United Kingdom or an overseas territory. As such it can normally be transmitted to only one generation born overseas—that is similar to the point about the Chagossians. The principle is reinforced by the proposals in the Bill on earned citizenship. Nevertheless, the Government are committed to reducing cases of statelessness, and we will continue to make exceptions—the key point about ministerial discretion is that it is much tougher than the impression we may have given—to reduce statelessness in order to meet our obligations under the important 1961 convention on the reduction of statelessness.
It is not unreasonable to insist on a period of residence before registering a stateless person. I shall address the example given by the hon. Member for Carshalton and Wallington. The entitlement to British citizenship should not be available to someone with no ties to the United Kingdom or with only a distant connection, such as a grandparent or a parent’s connection through a former colony. Those who acquire British citizenship, and therefore the right to abode in the UK, should have a real association with this country, such as through a period of residence. Despite our commitment to reducing statelessness, we can only go so far to compensate for the fact that other nations do not share that commitment, and so do not provide for the acquisition of citizenship by children born in their territory.
Indeed, I fear that some countries would abuse such a change were we to make it. I can think of several countries that would do so—as I am sure the Committee can. It should give the hon. Gentleman some reassurance in his campaign to hear that the requirements under schedule 2 of the British Nationality Act 1981 are in accordance with article 4 of the United Nations convention on the reduction of statelessness, because the fear is that a country that was not signed up to the convention could discriminate against groups—perhaps minorities—by denying them citizenship of their country in the belief that it would be taken advantage of if signatory countries made those changes.
If we accept the proposed new clause, it would allow children born overseas to British overseas citizens and British subjects to become British citizens if they would otherwise be stateless. To illustrate my point, I shall give an example of how that could work. When Uganda became independent in 1963, despite having been born in Uganda, a large number of citizens of the UK and the colonies did not acquire Ugandan citizenship because neither parent was born there. Such people became British overseas citizens and may now have children—a second generation born in Uganda—who cannot acquire citizenship because under current Uganda law, a child born there would not be a citizen if neither a parent or a grandparent is or was a member of an indigenous community that existed, incredibly, in 1926 or was a citizen at the time of the child’s birth. I am not sure from where that date came, but that is the law there.
The amendment would mean that a child born to such a British overseas citizen parent would be able to register as a British citizen and would therefore have a right to abode here without the child or parent having a close connection to the UK. The United Kingdom makes adequate provision for children born stateless who have a connection with the UK or an overseas territory to acquire citizenship. In doing so, we believe that we meet our international obligations as set out in the 1961 convention.
Let me further reassure the Committee on the point about discretion. As has been said, we do not give a guarantee that if people move to the UK they will acquire citizenship. However, if they live here for three years before applying on behalf of their children, the law provides a registration entitlement under paragraph 4 of schedule 2 to the 1981 Act. That means that there is no need for discretion to be exercised under section 3(1), which relates to an open discretion to register a child. However, schedule 2, paragraph 4 provides for stateless children born outside the UK whose parents are British citizens, British overseas territory citizens, British overseas citizens or British subjects. If they moved to the UK for three years, under that paragraph they would be able to apply for the child’s registration. Subject to the normal good character-type caveats, schedule 2, paragraph 4 provides not for ministerial discretion but for that entitlement. In a way, schedule 3 is an open discretion.
I am more than happy to look at the specific example that the hon. Gentleman used, but my understanding—I caveat my answer with that—is that the advice we gave was that they could come here. His concern that there was no guarantee—that it was a pig in a poke for them—is covered by schedule 2, paragraph 4. Again, I am trying to suggest that we have a strategy to meet the point without the consequential dangers.
I must move on; I am being urged to do so from both sides of the Committee. The final amendment proposed by the hon. Member for Carshalton and Wallington relates to a difficult area of policy: the rights or supposed rights of illegitimate children of British fathers. I have been asked whether we have any estimate of how many such people there are. Her Majesty’s Government have no such estimate. We have not made one.
It is not known how many illegitimate children of British fathers there are in the world. It is an area of speculation that I do not wish to get into. It assumes many things, such as whether the father knows—in my speaking notes, it says “in my experience”. The point has been made. It is a serious question, though, and I respect it. The answer is that we do not have an estimate, and neither do we have experience that could allow us to make a fair extrapolation.
The new clause would enable registration by any person born illegitimately to a British citizen father before 2006. The hon. Gentleman’s point of principle is important, because the rights of children born illegitimately should be recognised as a general principle, and we did so in the 2006 Act. He is very reasonably trying to right a wrong, but let me again describe our approach.
We now come to the Secretary of State’s discretion exercised in relation to those born illegitimately to a British father. The discretion is exercised under the broad remit of section 3(1) of the 1981 Act, which came into force in 1983, to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. That has been the case since the Family Law Reform Act 1987 removed any distinction between legitimate and illegitimate children in other areas of law.
Parliament changed the law on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child born to them out of wedlock. The change, however, was not made retrospective, because of the difficulties that would have been created for those affected in relation to any other citizenships that they held. That is, of course, still the case.
The policy adopted in relation to the exercise of discretion under section 3(1) is that registration can take place if the Home Secretary is satisfied about the paternity of the child, all those with parental responsibility have consented, the good character requirement is met and if, had the child been born to the father legitimately, he or she would have had an automatic claim to British citizenship or an entitlement to registration.
The exercise of discretion under section 3(1) applies only to those who are minors on the date of application for British citizenship. There is no power in law, discretionary or otherwise, to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult.
The question of numbers is complicated by the fact that many of those who were illegitimate at birth may since have been legitimised by the marriage of their parents. Many children born illegitimately to a British citizen father between 1983—the onset of the 1981 Act, from when retrospective discretion is applied—and 2006 will have become British by virtue of being born to a British citizen mother. Many people will have been registered under the discretion exercised by the Secretary of State as long as they were minors on the date of application. Many others born illegitimately before the change in law who are now adults may well have naturalised as British citizens under section 6 of the British Nationality Act 1981. However, it is impossible to say.
In addition to the guessing game—I say this not to score points but to put it on the record—I am advised that the new clause is technically incomplete in that it does not determine whether someone registered under it would acquire British citizenship by descent or otherwise than by descent and so reflect the precise circumstances of their birth. There is also a minor technical difficulty. The hon. Member for Carshalton and Wallington recognised that the 2006 Act addressed the principal issue. We effectively apply that through our discretion retrospectively to 1983, but to do so further would be a step into the unknown. It would be a difficult move to take.
Tom Brake (Carshalton & Wallington, Liberal Democrat)
I just wonder about the numbers. I know that it is not possible to estimate at all accurately, but have any figures been collated since the 2006 change that would give a rough indication of what numbers we are talking about?
Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)
I asked that question, and the difficulty is apparent in the third of my four examples: the numbers who could have used that right used a different route because of other connections. That is why I do not want to mislead the hon. Gentleman.
In short, the difficulty I have on a practical level is the potential for complication, abuse and unfounded claims and the complicated measures that I am sure hon. Members can imagine would flow from that. We believe that we have strategies that address the issues in all three new clauses, although they do not go as far as the hon. Member for Carshalton and Wallington would like. He would prefer a clean change in the law to go further back than we went in the cases of the stateless and illegitimate children and the Chagossians. I hope that I have explained my reasons. I have tried to be sympathetic rather than dismissing these arguments. We recognise that they are important, but we do not believe that they are practical and in some cases we believe that there are some technical difficulties.
Tom Brake (Carshalton & Wallington, Liberal Democrat)
I start by thanking the Minister for explaining in some detail the Government’s position. It may have prevented Labour Members from going off and doing more important things, but it was worth getting some of the points that the Minister made on the record, particularly the fact that discretion is available. The Minister having reinforced that point, some of the cases may now be resolved in a way that is favourable to the claimants. I will ensure that he gets details of the individual case I described.
On new clause 1, the Minister highlighted the fact that the FCO is in discussion with the all-party group, principally around the issue of resettlement rights. It is fair to let those deliberations continue and the group could clearly take on the issue that I sought to raise about citizenship if it wanted to. I understand what he was saying about British citizenship claims from other categories of people with no close connection to the UK who could see this as a precedent if the new clause were accepted.
On new clause 6, the Minister reinforced the point about discretion. Without being able to make any categorical statements he seemed to underline the fact that, although there are no guarantees about people being allowed to get citizenship after a period of residence, there is a high probability that the statelessness issue of children in that case at least might be addressed. Finally, on new clause 7, the Minister was right not to seek to document or quantify the number of illegitimate children of British fathers. That would clearly be extremely difficult to establish. One might be able to extrapolate from any figures the Minister arrived at how many may have been fathered by Members present in the Chamber today. We would not want to go down that route.
I heard what the Minister said. I heard him underline the point about discretion, and I heard his reference to the debates that are taking place between the FCO and the all-party group on the Chagos islands. Having received some reassurance that the Government are showing flexibility, I beg to ask leave to withdraw the clause.