Amendment 1

Nationality and Borders Bill - Committee (1st Day) – in the House of Lords at 12:00 pm on 27th January 2022.

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Baroness Hamwee:

Moved by Baroness Hamwee

1: Clause 1, page 2, line 10, leave out “equally” and insert “in the same terms”Member’s explanatory statementThe JCHR recommended that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of Clause 1. This amendment is to probe the drafting of Clause 1.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, Amendment 1 is grouped with Amendments 2, 8, 9, 10, 12, 17 and 21. Amendment 9 is in the names of the noble Lord, Lord Dubs, and my noble friend Lady Ludford; the others are all in our names.

This Bill is not all bad, so I am glad to be able to start with Part 1, most of which we support, although the exceptions to that support are very significant. This rather gentle introduction is to probe into the clause that remedies historical inequalities. What is not to like? One thing that I do not like—which is not directly related to the Bill, but I am going to take this opportunity to say it—is that I am not comfortable with receiving so many briefings from organisations to which we cannot do justice. That is my discomfort. It is not that we do not want the briefings, but often they come too late for us to reflect concerns in amendments. I know that I am not alone in this House in finding it hard to keep on top of the material and feeling particularly bad about not being able to use all that is sent to us. I hope that organisations—which I know are very often overstretched and understaffed, and have their day job to get on with—will understand that we are not ignoring them, but please could they send us material earlier than sometimes they do? I am sure I am not the only one who has received briefings this morning.

I turn to the substance of the matter. Clause 1 provides for parents where there is discrimination in British nationality law that prevents mothers passing on British Overseas Territories citizenship to their children. It provides for the parents in such cases to be treated equally in terms of passing on that citizenship. The Joint Committee on Human Rights pointed out that this could mean equally well or equally badly; naively, I had not thought about it being equally badly. The way the clause is drafted is not the same as Section 4C of the British Nationality Act, which addresses the same discrimination in respect of British citizenship. That uses the phrase “in the same terms”, and that is what is proposed in several of these various amendments. I understand that concerns have also been raised that the reference to the parents having “been treated equally” is, on its face, unclear. The JCHR said it would be prudent to deal with the drafting so that it is “in the same terms”. I add that when you have different wording relating to very similar situations, that in itself suggests that the two should be dealt with differently.

Amendment 8 takes us to the issue of good character and would repeal Section 41A of the British Nationality Act. That section requires adults and young persons to be “of good character” if they are to be able to register as British citizens. If someone has the right to become a British citizen—or, more accurately in some cases, to have their right to citizenship registered, because the right is to citizenship and registration is simply the procedure—then what is done by the right hand should not, by giving discretion to the Secretary of State, let the left hand take it away. I hope the Secretary of State will allow me, for this purpose, to describe her as the left hand.

This point applies to Amendments 10 and 19 and to Amendment 9 from the noble Lord, Lord Dubs, and my noble friend Lady Ludford. Their explanatory statement is much more elegantly expressed than mine, but it is the same point. This point is particularly acute in the case of a child. Is the test really in the child’s best interests? I saw a bit of resonance with the police Bill, which I was going to say we have so recently finished but of course we have not, when we debated an amendment about candidates’ disqualification for standing for office as police and crime commissioners because of a misdemeanour—I think I can almost use that term in its technical sense—in their youth. This term is not the same as that; it is more amorphous. It is a discretionary matter and is of particular concern. I beg to move.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I will speak briefly in support of Amendments 8 and 9 about good character. Like the noble Baroness, Lady Hamwee, I am particularly concerned about its application to children and those whose conduct when a child—and we are talking about children as young as 10—is used to deny the right to register as a citizen, which would otherwise be theirs.

The Joint Committee on Human Rights has voiced its concern, not just with regard to this Bill but in a 2019 report, where it pointed out that

“half of the children denied their … right … to British nationality on good character grounds have not even received a criminal conviction (having merely received a police caution)—let alone been prosecuted for ‘heinous crimes’.”

The Select Committee on Citizenship and Civic Engagement, of which I was a member, expressed considerable concern about the good character requirement. The committee called for a review of its use and description and of the age from which it applies—which is, as I said, 10. The Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty International, which have been campaigning on this point for some years, say:

“That some British people are required to satisfy the Home Secretary that they are ‘good’ for their citizenship rights to be recognised is divisive and alienating.”

I am not sure how many politicians would come out well as having “good character”, but I shall leave that as it may be. The good character condition is relatively recent in nationality law. It certainly should not be extended; ideally, it should now be scrapped.

Photo of Lord Dubs Lord Dubs Labour

My Lords, as we have heard, the Joint Committee on Human Rights spent quite a lot of time considering this and related issues. I should perhaps say at the outset that when I was in the Commons, I served on the Public Bill Committee dealing with the Bill that became the British Nationality Act. I am trying for the life of me to remember some of the details of the discussions. I have not had time to look them all up, but we certainly spent many weeks and many sittings on that Bill, but I do not recall this issue arising. I do not think the good character requirement existed then; I think it was brought in later.

The issue is that in the process of trying to get British nationality, there has been some discrimination, or there would be discrimination if the good character requirement were to apply. I am thinking of somebody who should normally have been able to get British citizenship but was unable to do so and, when applying now, if this is passed, will have to meet the good character requirement. That seems a little odd. I hope I have understood that correctly; that was certainly how we looked at it on the Joint Committee on Human Rights.

Perhaps the best thing I can do is to quote from the committee’s report, because it states it very clearly. This is from paragraph 41:

“We reiterate concerns made by this Committee in previous Parliaments that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Moreover, we also share the concerns raised by the JCHR in 2019 about the appropriateness of the good character requirements being applied to children, particularly children whose main or only real connection may be with the UK. It is difficult to align this requirement with the obligation to have the best interests of the child as a primary consideration.”

That is the case for this amendment.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, my noble friend Lady Hamwee has comprehensively explained the reasons for these amendments, which we support. On the issue of good character, if someone has the right to become a British citizen—they already have that right; they just want to register it—what has good character got to do with it, particularly if they are children? Even if the applicant is guilty of a criminal offence, surely denial of citizenship is a disproportionate punishment.

What are we to say about people who acquire British citizenship at birth? We do not say to British citizens, “You’ve been found guilty of a criminal offence, so we are going to take away your citizenship.” What is the difference if people have to apply to register their British citizenship? We fully support these amendments.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, I just second what everyone else has said, in particular the noble Lord, Lord Dubs, whose Amendment 9 I have had the honour to co-sign. As he pointed out, the key element to stress here is that the imposition of a good character requirement for citizenship now would perpetuate discrimination against those who have been discriminated against in the past, when the whole—laudable—point of Part 1, which, as my noble friend Lady Hamwee pointed out, is the only good bit of the Bill, is to rectify historical injustice.

Indeed, as the Joint Committee on Human Rights believes, it could well amount to

“unlawful discrimination, contrary to Article 14 as read with Article 8 ECHR, to require a person to prove good character when remedying previous unlawful discrimination against that person.”

When applied to children, it is even more unfair and obviously against their best interests. Hence the need to delete Clause 3(4), which is the focus of Amendment 9. The noble Baroness, Lady Lister, referred to the quotation that this is “divisive, alienating” and unjust, compared to the treatment of other British citizens.

Good character is not even defined in statute—in this case, the British Nationality Act—but only in a Home Office policy document. The courts have stipulated that Home Office decision-makers should make an overall assessment, including evidence of positive good character—which is presumably difficult in the case of a child, certainly a small child—but, inevitably, the guidance focuses caseworkers’ minds on when to refuse on grounds of bad character. Instead of that holistic, individualised approach to assessment, there can be an inevitably negative approach.

Due to past discrimination, any conduct subsequent to 2002 could risk being a bar to obtaining British citizenship; whereas, if that person had not been discriminated against and had been allowed citizenship 20 years ago, along with others, any subsequent conduct would not have affected their British nationality. It is a double whammy of discrimination. As the noble Lord, Lord Dubs, said, the JCHR has long raised the objection that requiring good character when considering applications to resolve prior discrimination simply perpetuates the effect. It is not only unfair, especially for children, but illegal.

The committee is thus entirely consistent in urging the deletion of Clause 3(4). At the very least, I should like to hear from the Minister in her reply whether she can clarify exactly how the discrimination would be used.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 12:15 pm, 27th January 2022

My Lords, briefly, I offer Green group support for these amendments. The noble Lord, Lord Paddick, made a point that needs to be reinforced. We have a question, which will arise later with my Amendment 33. Do we have one class of British citizenship or two? If you are not a British citizen because of past discrimination, can we really allow you to be discriminated against again just because of where you or where your parents were born? That is simply unacceptable.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

My Lords, we strongly welcome Clause 1 and, as the noble Baroness, Lady Hamwee, said, in a Bill where there is so little to welcome, the early clauses of Part 1 seek to redress historical injustices in our nationality law. That is certainly welcomed from these Benches, as well as by other noble Lords who have spoken.

Clause 1 corrects an historical injustice left over from what many would regard as the appalling situation in which mothers did not have the same citizenship rights as fathers. It addresses the citizenship rights of children of mothers who were British Overseas Territory citizens. I thank the noble Baroness, Lady Hamwee, for her amendments. We raised the clarity of drafting of the clause when the Bill was in the Commons. As the noble Baroness also explained, this concern was raised by the JCHR, which noted that the language in this clause is not the same as the language used for similar purposes in the 1981 Act and raised questions over how well the clause achieves its intention. The JCHR said:

“We recommend that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of clause 1.”

In the Commons, my colleagues pushed the Government to amend the clause so that its drafting reflects the drafting in the 1981 Act, when this discrimination was addressed for children of British citizens. I am sure that the Minister will appreciate that, in raising this concern, we are all trying to get this right and make the clause work as it should.

The Minister’s response in the Commons was that he did not believe that amendments were necessary, which is quite a standard government reply, and that the current drafting worked as intended. He also said that these points would be further clarified in underpinning guidance. Have the Government given this issue further thought since it was raised in the Commons? What objection do they have to a minor amendment to answer the JCHR’s concerns? If Ministers believe that that will be further clarified in guidance, should they not consider clarifying it in the Bill?

When we consider the good character requirement—I do not want to repeat everything that has been said—the JCHR is concerned that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Much of this debate is familiar. As has been said, over the past few years the JCHR has routinely raised concerns about the impact of the good character requirement in cases resolving previous discrimination and in cases concerning children. I simply ask: how does that square with our primary duty to act in the best interests of the child and how is that currently balanced with the good character test? Can the Minister provide details to the Committee on how many children each year are refused citizenship based on this requirement and on what grounds it is deemed that they do not meet the test?

I too welcome the questions raised by my noble friend Lord Dubs on behalf of the JCHR on the application of the good character requirement in Clause 3. I simply wish to make the point that we are debating this clause due to gaps left in the law where we attempt to redress historical discrimination. Where the JCHR is raising concerns that the good character requirement is inappropriate where an applicant has already had their rights denied for a significant number of years, the Government should consider that challenge seriously. If we are to remove existing injustices in our system, we should do so thoroughly and with great care, so that we do not find ourselves having to come back for further fixes at a future date.

I look forward to the noble Baroness the Minister’s reply on behalf of the Government—or perhaps it is the noble Lord; I am sorry.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom Lord in Waiting (HM Household) (Whip)

I thank noble Lords, and I am sorry to disappoint the noble Lord, Lord Rosser..

I thank the noble Baroness, Lady Hamwee, for tabling Amendments 1 and 2. Both refer to Clause 1, which I am pleased to introduce, as it corrects a long-standing anomaly in British nationality law. I appreciate my noble friend’s attention to detail in seeking to make sure that this new provision is clear and in line with the parallel provision in the British Nationality Act 1981 for children of British citizen mothers. However, we do not think that an amendment is needed, as the proposed wording here achieves what is intended. In saying that this provision applies to someone who would have been a citizen had their parents been treated equally, we are talking about a situation where the law applied equally to mothers or fathers, women or men. We are satisfied that the current wording does what is required.

I turn now to Amendment 8 and consequential Amendments 10, 12, 17 and 21, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. British citizenship is a privilege, reserved for those who meet the requirements of the British Nationality Act 1981 and who respect the law and values of the UK. This is reflected by the statutory requirement for an individual to be of good character when they apply for British citizenship. Published guidance sets out the basis for how we assess whether a person is of good character and the types of conduct that must be taken into account as part of this assessment.

Decision-makers are required to give careful consideration to each application on a case-by-case basis, and must decide on the balance of probabilities whether an applicant is of good character. Grounds for refusal of citizenship on the basis of not meeting the good character test include criminality that meets the threshold laid out in guidance, immigration offending such as illegal entry or unlawful residence, and serious adverse behaviour such as war crimes, terrorism or genocide. Such behaviour is fundamentally in opposition to core British values of decency and adherence to the law. Removing the good character requirement from all registration routes for British citizenship would mean that we could no longer refuse citizenship to those opposed to these values.

I turn, finally, to Amendment 9, for which I thank the noble Lord, Lord Dubs; I know he has taken a great interest in a number of the provisions of the Bill. I start by reassuring the Committee that the Government are committed to removing discrimination from nationality legislation. That is the aim of Clauses 1 and 2. The Government also recognise the difficulties that current British nationality law has presented for some British Overseas Territories citizen parents who wish to pass on their citizenship. However, the Government do not agree that the application of the good character requirement as set out in Clause 3(4) results in unlawful discrimination. Removing the good character requirement for those applying to register as a British citizen having acquired British Overseas Territories citizenship through the new routes established by Clauses 1 and 2, as this amendment proposes, would be unfair and inconsistent with the approach for British Overseas Territories citizens who can apply to become British citizens by virtue of Section 3 of the British Overseas Territories Act 2002 and who are subject to the good character requirement.

The noble Baroness, Lady Hamwee, mentioned the word “misdemeanour” in connection with such matters. We need to be clear that the guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. Those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. Caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances. On the subject of children, we ought to remind ourselves that 10 years old is the age of criminal responsibility in England and Wales.

I want to clarify that the good character test applies only to new provisions introduced in the Bill to resolve historical discrimination where it already applies to the current route that the person would have been entitled to register under had the discrimination not existed. So the only people who will have to meet a good character requirement under Clause 3 are those who would have had an entitlement to registration as a British Overseas Territories citizen under Sections 15(3), 17(2) and 17(5) if their parents had been married, because registration under those routes carries a good character requirement.

To try to answer the question of the noble Lord, Lord Dubs, where people would have become British automatically had women and unmarried fathers been able to pass on citizenship at the time of their birth, the good character requirement does not apply.

The noble Lord, Lord Rosser, asked how many children this issue has affected. I am afraid that I do not know the answer and will have to write to him. I should say that if the person would have become British automatically had the discrimination not existed, they will not now have to meet the good character requirement. That deserves reiteration.

I ask noble Lords to withdraw or not move their amendments for the reasons that I have outlined.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

Can the noble Lord address the point that I made, which I think was in the JCHR report? The courts have said that there should be an overall assessment—a holistic approach—that looks at good character as well as bad. However, the noble Lord appeared to concentrate only on a bad record being a triggering factor. He used the phrase “balance of probabilities”, but did not say that something bad could be outweighed by an otherwise wholly good record. He did not appear to suggest or confirm that overall holistic approach. He concentrated only on the negative triggers, which is precisely a fear expressed in the JCHR report. It goes against what the courts have said should be the approach.

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom Lord in Waiting (HM Household) (Whip)

I thank the noble Baroness for her request for clarification. Guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. As I said earlier, those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. But—and this is the key point—caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances, which, I should imagine, would very much cover the circumstances that the noble Baroness has just described.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, there is clearly concern about good character. I echo my noble friend’s query; the point about a holistic assessment has not been answered. I appreciate that those briefing the noble Lord might not have anticipated the question, but the way in which a caseworker sets about the task is fundamental to this issue.

I should make it clear that, when I mentioned a misdemeanour, it was in the context of the police Bill and not of this Bill. The Minister mentioned genocide. I am not, for a moment, suggesting that someone guilty of genocide would meet any sort of test of good character. Sorry, does the Minister want to respond?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom Lord in Waiting (HM Household) (Whip) 12:30 pm, 27th January 2022

I did not mean to imply that the noble Baroness was saying that. I apologise for intervening on the noble Baroness, but I want to clarify the caseworker point. To answer the question, they do look at cases in the whole.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

Thank you. That is good to know.

I come back to the registration point that we are dealing with. The Minister made some distinction between different routes. I take that point. I am not capable of making these distinctions myself, on my feet, without a lot of papers spread around me.

Section 41A is about registration. I say to the noble Lord, Lord Dubs, that it must have come in after the Bill had been introduced in order for it to be numbered in this way.

I turn to my first two amendments—to replace “equally” with “in the same terms”. I repeat my point that having one concept expressed in different ways in the same Act is bound to cause confusion, if not trouble. This may be very boring and it does not go to the root of a lot of what we are debating, but it is potentially of great importance in practice. I hope that the government lawyers can look at it again—or perhaps all my legal training is out of date. I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

Amendment 2 not moved.