Amendment 14

Nationality and Borders Bill - Committee (1st Day) (Continued) – in the House of Lords at 3:00 pm on 27th January 2022.

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Baroness Hamwee:

Moved by Baroness Hamwee

14: Clause 7, page 9, line 36, at end insert—“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statementThis amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.

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

My Lords, I beg to move Amendment 14, in my name and that of the name of the noble Lord, Lord Russell of Liverpool, and will speak to Amendments 15, 16, 19, 20, 23 and 24 in this group. The noble Lord apologises to the Committee—he is unwell and had really wished to be here—but I hope that the discussion this afternoon will not be an end of the matter. He and I are keen to rectify an anomaly of which he became aware through his association with Coram, and it is also a concern of the Immigration Law Practitioners’ Association. There are not a large number of people affected by the point we raise but, as the noble Lord says, that is no reason to ignore a matter of principle. He suggested that we flag this up and that we might discuss it with the Minister before Report. We are lucky enough to have a Minister whose diary secretary must go mad when she hears the commitments being made during Committee days.

The issue is another anomaly. British nationality law in England, Wales and ScotlandNorthern Ireland is in a different situation—is not in alignment with adoption law. In England and Wales, an adoption order may be made where a child has made an application before reaching the age of 18, as long as they are not yet 19. In Scotland, an adoption order may be made in respect of someone over the age of 18, as long as the application was made when the person was under 18. An adoption order confers British citizenship automatically only when the person adopted is under 18 on the day it was made. As the noble Baroness, Lady Lister, said very forcefully earlier, citizenship is significant: it is about belonging as well as being a technical matter.

Coram gave the example of a young woman who completed her degree at Oxford after her mother had died of cancer, and her maternal aunt, a British citizen resident here, applied to adopt the young woman before she turned 18. The High Court ordered the adoption when she was 18 but not yet 19. I understand—and this must be quite unusual—that the Secretary of State for the Home Department was represented and did not oppose the adoption order, but the relevant section of the British Nationality Act did not operate to confer British citizenship on her, so she was left with student status due to end shortly after her degree was obtained, no basis on which she could continue to enjoy family life in the UK with her adoptive mother, and Immigration Rules making no provision for someone in her position because she did not have 10 years continuous lawful residence in the UK. I have been given other examples but I am sure noble Lords get the point—and I can see from the Minister’s face that she does.

In each of the years 2019, 2020 and 2021, there were 10 adoptions of people aged over 16; we do not have the figures for those aged 18 and over. We all know through adoption practices that relatively few children of that sort of age are adopted, so we are not suggesting anything major in terms of numbers. The average time taken in the adoption process from placement through to final adoption can be very long. When this issue was raised in the Commons, the Minister said that he was “sympathetic” but that the reasons for the amendment were not ones to be advanced. The Government said that an adult would normally be capable of making their own life choices, but I have just given an example of when an over-18 could not do so.

The point of adoption is the family: the emotional and psychological connection, as well as recognising the legal unit. After all, the point about citizenship is recognised by our law, because there is automatic citizenship for only very slightly younger people. I find it difficult to believe that Parliament intended to withhold citizenship from such a small cohort. Years ago, I was associated with an adoption agency, and I came to understand something of what adoption means to everyone in the family. It would be ungenerous of the Government if they were to resist correcting this anomaly, which, as I said, cannot have been anybody’s intention.

Turning to the other amendments, Amendment 15 to Clause 7, which contains new Section 4L, would take out the words

“of full age and capacity”.

This is not consequential on the good character point we have been debating—although I think it is suggested that it is—but it does stem from the same point. If you are entitled to citizenship, why should full age and capacity be required? It occurred to me last night that I might be misreading the new section. Perhaps “of full age and capacity” is directed only to whoever is making the application, rather than the person on whose behalf it is made. I am slightly confused about that, because I think it could be read in two ways, but I will pursue the point today so that we can perhaps look at it between now and Report. If the Government are concerned that someone not of full age or capacity should not be initiating the process, that is a different point, but I trust that they are not suggesting that age or capacity are requisites for citizenship.

Amendment 16, to the same new section, would change the word “may” to “must”—a familiar point to your Lordships—so that the Secretary of State would not have discretion in the special circumstances dealt with by the new section. Amendments 19 and 20 make the same point later in the Bill. Amendment 23 is also about an issue of discretion. Section 44 of the British Nationality Act provides that any discretion

“shall be exercised without regard to … race, colour or religion”,

which seems quite dated when you read it in 2022. We are proposing guidance, following consultation—which is important—on the exercise of the Secretary of State’s discretion under the various new British Nationality Act provisions and under Section 44A, which is about the waiver of requirement in respect of a specified applicant if the Secretary of State thinks it is in the applicant’s best interest. As I am making clear, discretion should be irrelevant when rights are the issue, a point which my noble friend Lord Paddick emphasised a few minutes ago.

Finally, Amendment 24—also suggested by the Immigration Law Practitioners’ Association—is a new clause which was debated in the Public Bill Committee in the Commons. We have retabled it to enable a response to what the Minister said in the Commons. There are people who would be British overseas citizens today but for historical unfairness. Clause 7 attempts to rectify the position for those who would be British citizens or British Overseas Territories citizens but for similar errors. It does not do anything for people who would be British overseas citizens today. Again, this is an attempt to deal with an anomaly.

The Home Office acknowledges—we have seen it in the Bill—that past unfairness in British nationality law is not unusual, but it makes that acknowledgement only where such persons would be British citizens or British Overseas Territories citizens today. The prejudice that has been suffered through sex discrimination and so on has applied to them too. There are pockets of British overseas citizens around the world and, although they have no right to come to the UK or to remain in a British Overseas Territory, the status still has value. It enables them to acquire and use of a UK BOC passport; to seek consular assistance; to seek residence and permission to work in third countries under local rules; and where their children are born stateless, to benefit from UK laws that reduce statelessness. This was relevant in Aden, now Yemen, for instance, when it was a British colony.

The Government’s objection to the new clause in the Commons was in effect that being a British overseas citizen reflects a finite class of British nationality. In fact, new BOCs—it seems tough to use such an impersonal acronym—are being born to BOC parents, where they would otherwise be stateless, and there is still a power to register a minor as a BOC, but it is used only exceptionally.

I hope that the Minister will, ideally, accept the amendment, but, if that is not possible today, that she will take on board the response of the practitioners, who in my experience always know what they are talking about and can express it better than through an interpreter like me. They make the point very clearly. I beg to move.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 3:15 pm, 27th January 2022

I would like in particular to add our support for Amendment 14 in the names of the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Hamwee. We hope that the noble Lord, Lord Russell of Liverpool, is feeling a lot better very soon.

Labour’s shadow Minister raised this issue in the Commons and received disappointing answers. As we have heard, the amendment would put right a discrepancy in our nationality law and adoption law. Currently, an adoption order can be made where a child has reached the age of 18 but is not yet 19, but the same adoption order can confer British citizenship only where the child is under 18. In the same order, our law provides that a person is a full member of their adopted family but also that they are not, because they cannot share citizenship with them.

The answers given by the Minister in the Commons were that 18 year-olds are

“capable of making their own life choices”,

that they can

“purchase alcohol, accrue debt, join the Army, or vote in an election”,

and so they are

“fully fledged and can theoretically live independently of other family members”.—[Nationality and Borders Bill Committee, 19/10/21; col. 190.]">Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 190.]

On that basis, is the Government’s argument that at 18 someone is young enough to be adopted and provided for in our adoption law, but at the same time too old to really be an adopted child and be recognised in our nationality law?

The Minister in the Commons also argued that this change would be “out of step” with existing nationality law. One can only comment that this amendment is not seeking to make a general change to our law. By its nature, it is a completely limited, clearly defined provision for a small number of children who are going through our adoption system. It is difficult to see why this would be controversial rather than a common-sense change.

I also welcome the amendments in the name of the noble Baroness, Lady Hamwee, and her questions to the Government. We await the response with interest. We welcome Clause 7 and recognise that its aim is to provide a means to correct further injustices, but our concerns are, first, to make sure that the clause is used and is not just a token power which the Secretary of State “may” choose to action. That is probed by Amendments 16 and 20. Will the Minister clarify whether it is the Government’s intention that the Secretary of State may choose not to allow for a person to be registered as a citizen in a case where they have been subject to a historical injustice?

Secondly, we wish to be sure that this clause is rightly a reactive and fleet-of-foot mechanism to respond to newly identified problems but that it is not an excuse to avoid making further changes in the law where these are necessary. Where a further injustice or any flaw in our nationality law is identified, the Government must amend the law to rectify that. No doubt, the Government could say in their response whether that is their intention.

On the question of the inclusion of British overseas citizens in the provisions of Clause 7, addressed by Amendment 24, the ministerial response in the Commons was unclear. At the same time, the Minister seemed to claim that the clause needed to be as flexible and unfettered as possible but also that it was right to put limits on it; to not include cases which may arise on British overseas citizenship. That would appear somewhat contradictory.

We support the amendments and await answers to the questions raised by the noble Baroness, Lady Hamwee. I hope the Minister will also respond to my questions on this group of amendments.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I thank noble Lords for tabling these amendments to Clause 7, which will allow the Home Secretary to grant British citizenship to those who would have been, or been able to become, a British citizen, but for historical legislative unfairness, either an act or omission of a public authority or their exceptional circumstances. It also creates a similar route for governors in overseas territories to grant British Overseas Territories citizenship on the same basis.

We think this provision in the Bill is a positive step, allowing us to grant citizenship to those who missed out. The noble Lord, Lord Russell, and the noble Baroness, Lady Hamwee, have also tabled an amendment related to acquiring citizenship following adoption in the UK. At this juncture, I, too, send my best wishes to the noble Lord, Lord Russell. I hope he feels better soon.

On the point from the noble Baroness, Lady Hamwee, British overseas citizenship was introduced for those who would otherwise be stateless under the 1981 Act. It was not intended to be passed on, like British citizenship and British Overseas Territories citizenship.

I turn first to Amendment 14. Under the law currently in force, a child adopted in the UK can automatically acquire British citizenship, provided they are under 18 on the date the adoption is made. The Adoption and Children Act 2002 permits adoptions after their 18th birthday in England and Wales, as long as the adoption order is issued before the person turns 19.

I am mindful that different rights and responsibilities exist in law and many have ages attached to them. For example—the noble Lord, Lord Rosser, alluded to this—children as young as 10 can be held responsible for criminal behaviour, as teenagers they can start employment and from 17 they can drive. Arguably, the biggest evolution in an individual’s life happens at 18, when they can vote, marry without consent or enter into legally binding contracts. Similarly, under British nationality law, a person is no longer considered a minor once they reach the age of 18. The automatic conferral of nationality to someone who is legally an adult is out of step with the nationality and wider immigration systems.

I have great sympathy with young adults who feel they have lost out, but we are introducing an adult registration provision at Clause 7. Those who genuinely missed out on British citizenship because an adoption order was made when they were aged 18 may be able to benefit. I must stress that each case will be considered on its merits. I accept this necessitates a further act on behalf of the individual, but this is reasonable for consistency within the wider provisions of the nationality and the immigration laws. The case cited by the noble Baroness, Lady Hamwee, was resolved through existing rules. I am aware that Scotland permits adoption for those over the age of 18, but it differs from England and Wales in that there is no upper age limit. Northern Ireland does not currently permit adoption to happen after the age of 18. This amendment would therefore cause uncertainty depending on the jurisdiction in which the adoption is sought.

It is proposed in Amendments 15 and 19 that we remove the requirements within these provisions for a person to be of full age and capacity. I will address them in turn. The reason this applies to people of full age—that is, over the age of 18—is that there is already discretion within the British Nationality Act 1981 to register a child at the Home Secretary’s discretion under Section 3(1) or a governor’s discretion under Section 17(1). The only statutory requirements are that the child is under 18 and of good character if they are over the age of 10. We do not therefore need to include children within Clause 7, which is in fact more limited in its application.

The full capacity requirement applies to all applications, so we would not wish to treat this group differently. Since 2006, the Secretary of State has had discretion to waive the full capacity requirement, if she thinks doing so would be in the person’s best interests. Since then, no applications have been refused solely on capacity grounds, which shows that the current discretion is sufficient to allow decisions to be taken in the best interests of the applicant.

The noble Baroness, Lady Hamwee, asked whether the full capacity and age requirements relate to the subject of the application or the person applying. They relate to the subject of the application.

Amendments 16 and 20 would give a person a statutory right to be registered as a British citizen or British Overseas Territories citizen if they met the relevant criteria, rather than it being at the Home Secretary’s or governors’ discretion. Clause 7 applies not just to those who would have acquired citizenship automatically but to those who would have been able to become a British citizen or British Overseas Territories citizen but for historical legislative unfairness, an act or omission of a public authority, or their exceptional circumstances. This means that it covers not just those who would have become citizens automatically but those who might have had an entitlement to registration, or could have registered or naturalised at the Home Secretary’s discretion. We think it is right that this provision remains discretionary to allow the Home Secretary to take into account any assessment she or he might have made at the time of the person’s eligibility or suitability for citizenship.

Where registration in legislation is an entitlement provision it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. As we want this clause to benefit those who have missed out on the citizenship that should have been theirs, we want to have flexibility to consider a person’s circumstances without being overly prescriptive. That means we will be able to consider applications where issues might arise that we might not already have be aware of or where a person is affected by a number of circumstances that may be difficult to set out in detail. We are making this a discretionary provision not to refuse deserving people but to allow us further flexibility to respond to situations that cannot have been reasonably foreseen.

We do not think that having a discretionary power is a negative thing in this situation. Noble Lords will know that naturalisation is a discretionary provision, which works well, with decisions being made in line with published casework guidance, which sets out all sorts of circumstances where discretion would normally be exercised.

This leads on to Amendment 23, which would impose a statutory requirement on the Home Secretary to publish guidance for Clause 7 following consultation. We have already stated our intention to make published guidance available for this new adult registration route. I agree with the noble Baroness that published guidance would help people to understand how this provision might be used and help maintain consistency in decision-making. However, given our stated intention, I do not think it would be helped by a statutory requirement. We will continue to publish guidance on the GOV.UK website, as we do for all nationality routes.

Finally, Amendment 24, tabled by the noble Baroness, Lady Hamwee, would introduce a discretionary adult registration route for a person to become a British overseas citizen. BOCs, as they are called, were created by the British Nationality Act 1981 for people connected with former British territories who did not have a close connection with the UK or one of the remaining British Overseas Territories. This was usually where they were from or connected to a country that had become independent but they did not acquire the citizenship of that country. The intention was to avoid making people stateless due to complex histories of independence or countries ceasing to be British protected territories.

British overseas citizenship was intended to be a transitional status, and it is expected that many who held that status will have acquired the nationality of the place where they were born or have been living in the 38 years since that legislation was passed. The existing routes to British overseas citizenship are therefore very limited, and we do not intend to create a new route. However, people who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality can apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and as a result they also missed out on being able to become a British citizen because they have no other nationality, and have not done anything that meant they lost a nationality, there is nothing to prevent them applying for that status under this clause. With that, I hope the noble Baroness will not press the amendments.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee 3:30 pm, 27th January 2022

My Lords, I agree with the Minister that Clause 7 is positive and I agree with the noble Lord, Lord Rosser, that it must not be just a token. I am obviously disappointed with a good deal of what the Minister had to say. With regard to guidance, which I am glad to hear is proposed, the reference to consultation in our amendment was not accidental. It is important, particularly when we are told that the point of this is to allow flexibility for the Secretary of State, to have the input of stakeholders.

On the point of capacity, if the current discretion is sufficient, I should have said that working on the basis of experience one should put something discretionary into statute, so that everyone is quite clear where they are. As to the transitional nature of British overseas citizenship, there are still people who are affected. The fact that there are very few does not change the position.

With regard to adoption and the need to go through a registration process and for it not just to be automatic, the Minister said that this would be considered on its merits. Just repeating those words indicates how different this is from automatic citizenship, which is part and parcel of whole adoption arrangement. She mentioned the need to be consistent with other nationality provisions. I should say that this amendment would be consistent with the arrangements for adoption that we have in the different parts of the UK. I am particularly disappointed about that, but I hear what she says and I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

Amendments 15 to 24 not moved.

Clause 7 agreed.

Clause 8 agreed.

Schedule 1 agreed.

Clause 9: Notice of decision to deprive a person of citizenship