Clause 7 - Citizenship: registration in special cases

Nationality and Borders Bill – in a Public Bill Committee at 2:30 pm on 19th October 2021.

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Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 2:30 pm, 19th October 2021

I beg to move amendment 35, in clause 7, page 9, line 36, at end insert—

‘(1A) In section 1 (acquisition by birth or adoption) 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”.’

This 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 Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss the following:

Amendment 13, in clause 7, page 9, line 40, leave out “may” and insert “must”.

This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.

Amendment 30, in clause 7, page 10, line 25, at end insert—

‘4M Acquisition by registration: equal treatment

(1) Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.

(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered under subsection 4L(1) and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.

(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’

This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.

Amendment 14, in clause 7, page 10, line 30, leave out “may” and insert “must”.

This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.

Amendment 31, in clause 7, page 11, line 8, at end insert—

‘17I Acquisition by registration: equal treatment

(1) Where a person (P) is registered as a British Overseas Territories citizen under subsection 17H(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.

(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.

(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’

This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British Overseas Territories citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.

Amendment 34, in clause 7, page 11, line 8, at end insert—

‘(4) After section 23 (Citizens of UK and Colonies who are to become British overseas territories citizens at commencement), insert—

“23A Acquisition by registration: special circumstances

(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British Overseas citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British Overseas citizen but for—

(a) historical legislative unfairness,

(b) an act or omission of a public authority, or

(c) exceptional circumstances relating to P.

(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the

(a) treated males and females equally,

(b) treated children of unmarried couples in the same way as children of married couples, or

(c) treated children of couples where the mother was married to someone other than the natural father in the same way as children of couples where the mother was married to the natural father.

(3) In subsection (1)(b), “public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.

(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.”’

This amendment seeks to extend the remedy in Clause 7 to those who would have been British Overseas Citizens but for historical unfairness.

Clause stand part.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

It is the view of the Opposition that British nationality law is out of kilter with adoption law in England and Wales and needs to be rectified. In those countries where an adoption order has been made by a court, it may be made where a child has reached the age of 18 but has not yet reached the age of 19; yet such an adoption order confers British citizenship automatically only where the person adopted is under 18 on the day the order is made. It seems evident to the Opposition that that is a slip that results in unnecessary unfairness.

The adoption law as it stands was enacted some 20 years after the relevant nationality law, and apparently the inconsistency that it created was overlooked. It has never been suggested that the adoption law and British nationality law should be out of step where a court in England and Wales authorises a person to be adopted by a British citizen parent. It is important for every member of the Committee to know that the stated problem is not merely a theoretical one; it generates victims in real life, including a university graduate who was 18 but not yet 19 when she was adopted by her aunt after her mother died of cancer, and who will have no basis on which to enjoy family life in the UK with her new adopted mother once her student status has ended.

We therefore believe that the position needs correcting. The Bill is the right vehicle to make that correction, which is not controversial and which we do not believe should divide Committee members on party lines. The amendment, which should command cross-party support, would bring British nationality law in line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19, and the adoptive parent was a British citizen, British citizenship is conferred automatically on the person adopted. No adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 but not yet 19 when the adoption order is made.

It is also important to point out that it is no answer to the problem to say that an 18-year-old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed new section 4L of the British Nationality Act 1981, provided for in clause 7. The problem relates to those persons who should be treated as British citizens automatically from the date of their adoption by a British citizen. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is the risk that such an application may be overlooked, or refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated. We therefore believe that the sole solution is to make this simple amendment to align British nationality law with adoption law.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to serve under your chairship, Ms McDonagh. I will speak in support of amendments 13, 14, 30 and 31. I also support amendments 34 and 35. Amendment 35 in particular seems to make perfect sense—although it relates exclusively to England and Wales. I confess that I have not managed to ascertain whether a similar issue arises in relation to either Northern Ireland or Scotland and, depending on what the Minister says in response, that is perhaps something we can all do our homework on before Report stage.

On the other amendments, this brings us back to the point I made when making the case for no fees for introducing applications, or at least restricted fees. These fees put people off from accessing their rights, especially when there is discretion or subjective criteria are used that mean people can have only a limited idea about whether paying a fee and making an application will result in anything positive happening. If they can afford it and if they know that they meet the criteria, people will pay a fee, but this would not necessarily make it easier to see in advance whether they would be able to show historical injustice or exceptional circumstances, or that the fault lay with the public authority.

We have already debated the fee aspect and made the case for lower fees to ensure that people are not put off from seeking to fix injustices that they have suffered. These amendments taken together address the other side of the coin: what can be done to make the criteria more transparent so that people can feel confident with their applications?

Amendments 30 and 31 seek to ensure that both officials and the victims of injustice are aware of how the provisions brought about by clause 7 are being implemented. If a new type of injustice in UK nationality law is discovered, or circumstances are deemed so exceptional that the Secretary of State decides that registration is merited and she grants such an application, she will first need to ensure that policy and guidance are updated so that those processing other similar applications are aware of that fact and people applying in the same circumstances are successful. More than that, she will also be required to take steps to try and ensure that people who might be entitled to register in the same circumstances know that they can do so.

Again, as I said earlier, we know from Windrush how important taking such action to make people aware of their rights can be. In short, people will have a greater understanding of whether their application will be successful and those who meet the criteria set out in policy will apply. Those who are making decisions will be aware that in previous cases similar applications have been granted and those applications will therefore be successful.

Amendments 13 and 14 challenge a Minister to explain why the provisions introduced by clause 7 are expressed entirely as “may” rather than “must”. If a person proves they are a victim of an injustice, which is carefully defined in the clause, then why should the Home Secretary still have a totally unlimited power to refuse registration in any event? Similarly, if a person shows they were denied citizenship because of an act of omission by a public authority or by exceptional circumstances, why should the Home Secretary have a totally unfettered power to say no?

The big fear is that the Secretary of State has the broadest discretion possible regardless of whether a person meets other criteria. Who will make an application, particularly if there is a fee involved? I can see possible flaws in going completely the other way to a situation where it is a requirement and a must, but that would be better than the totally unlimited discretion that is in the Bill right now. I simply challenge a Minister to come up with a better form of this.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

On amendment 30, we want to make sure that the Secretary of State is required to take all reasonable and necessary steps to ensure that the right to registration under clause 7 is made accessible to all its intended beneficiaries. We also want to ensure that historical legislative unfairness is corrected. We do not believe that it is sufficient to rely on that being done ad hoc, subject to the discretion of any particular Secretary of State.

As has been obvious from discussions on previous clauses, several injustices have been identified in British nationality law in our policy and practice over the years. Important provisions in the Bill are necessary to correct some of that, including changes to previous amendments to the British Nationality Act 1981, which only partially corrected a particular injustice.

The Opposition understand and accept that the broad purpose of clause 7 is to provide the means to correct further injustices, and we broadly support its aims. We are concerned, however, about the implementation of the clause, and the amendment serves to address that.

Hon. Members will be aware that clause 7 introduces a new discretion to register adults as British citizens or British overseas territories citizens where that is immediately necessary or appropriate in view of some historical injustice, an act or omission by a public authority, or other exceptional circumstances. As it stands, that provision is welcome and reflects the underlying purpose of all rights of registration under the British Nationality Act 1981 to ensure that citizenship is the right of all persons connected to the UK or the British overseas territories.

However, given that clause 7 relates to historical legislative unfairness, it raises a concern that it may be relied on by Ministers to avoid making necessary future amendments to the 1981 Act, required specifically to correct such injustice. We are deeply concerned, because when such an injustice is identified, Ministers must take the appropriate action to correct it in the Act. It is not enough to rely on the opinion of any particular Minister or group of Ministers. For that reason, we want to insert the following in clause 7:

“Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.”

Clause 7 must genuinely be given real practical effect—it must not become a mere token statutory provision. Registration requires someone to make a formal application, so the clause will be ineffective if uncertainty over the result of an application, coupled with any cost or other impediment to do so, deters people from making applications. In such circumstances, clause 7 could stand redundant on the statute book because no one to whom it ought to apply knows about it or is sufficiently encouraged or enabled to apply for the discretion to be exercised.

For those reasons, the following matters must, at a minimum, be addressed. It is generally inappropriate, as with registration more generally, for the Secretary of State to charge prohibitive and above-cost fees to prevent people from exercising their rights to British citizenship. The fees are made even more prohibitive if it is not possible to assess in advance that an application will be successful because there are no fixed criteria by which the right to be registered will be assessed.

Ministers should also be pressed to give an assurance that when an individual application is successful, there will be positive action to ensure that other potential applicants are made aware of their equal or similar right to register at their discretion. Under amendment 30, if an unfairness, act or omission by a public authority or exceptional circumstances are identified that make it necessary to exercise discretion, appropriate publicity must be given to it, and there should be a formal updating of public-facing policy. It must be made clear that others in the same circumstances will succeed with their applications to register, if they make them; otherwise, people will continue to be excluded from citizenship in circumstances where it is clearly intended that they should not be.

Moreover, this must apply equally to British citizenship and British overseas territories citizenship, when any specific type of injustice or exceptional circumstance is identified in an application. With regard to both those British nationalities, there must be publicity, and policy change must be made clear.

Amendment 30 clarifies how the intention behind clause 7 can be met. It would take away the possibility of inconsistency, which is inherent in our relying on the opinion of individual Ministers, and it would bring about certain practical steps that would make the law easier to enact.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 2:45 pm, 19th October 2021

I will speak in support of the amendment in my name and the name of my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East. We also broadly support the Official Opposition’s amendments. I wanted to raise the evidence that the Committee heard from Free Movement and Amnesty International.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

I am sorry to interrupt, but there is a Division in the Chamber.

Sitting suspended for a Division in the House.

On resuming—

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I was speaking in support of all the amendments in the group and will use evidence given to the Committee by Amnesty International and Free Movement before adding a couple of points. The clause introduces the discretionary route for registration as an adult. Discretion can be exercised where, in the Secretary of State’s opinion, that person would have been able to become a British citizen if it were not for a number of things. I want to look first at the exceptional circumstances.

Free Movement’s concern, shared by a number of people, including me, is about the reference to the Secretary of State’s opinion. A future Secretary of State—let us not say the current Secretary of State, because we would not want to personalise this—may hold an opinion generally considered to be disproportionate, unreasonable or ridiculous. They may not be from the current party in government—I am not saying that it is more likely to happen under one particular party—but where does it end? There is nothing to say that their opinion can be curbed. I am wondering what is meant by that reference. How could a legal challenge be mounted against a decision that the Secretary of State is allowed to make based on their opinion? I would like something from the Minister on that.

I turn to historical legislative unfairness, which we have talked about a lot today. It has been defined with specifics. We have talked about the unequal treatment of mothers, children of unmarried couples, and children of mothers married to someone other than their natural father, but the list does not include discrimination on the basis of ethnicity and race. The list is not definitive. Is there scope to consider the role played by such discrimination in terms of historical unfairness? I would like the Minister’s thoughts on that.

On the act or omission by a public authority, it is always useful to say when we think somebody has got it right—and we have said that a number of times today. I want to reiterate that, as Free Movement has said, there have been a number of concerns that local authorities responsible for children who become entitled to British citizenship under their care do not always get the applications made on those children’s behalf. Sometimes that is because there has been a misunderstanding, and at other times it is deemed to be not in the child’s interest at that time and it is not always included in their care plan. By the time they are an adult, it is too late for them to make that decision themselves, so I am quite supportive of measures to deal with that.

I want to talk about a concern that Amnesty has expressed—I am sure the Minister has seen this—which is that clause 7 has to be given real, practical effect, and that the measure will be ineffective if uncertainty over the result of an application, along with the excessive fees that we have talked about, deters people from making applications in the first place. I know that my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has made those points.

Amnesty has asked for the following matters to be addressed. First, we have talked about fees at length, but I reiterate that several organisations are very concerned about the fees. Secondly, Amnesty has asked for assurances that where an individual application is successful, the Government will take positive action to ensure that other potential applicants are made aware of their equal or similar right to register at discretion. This means that where an example is identified of, as the Bill says, unfairness, an act or omission by a public authority or exceptional circumstances on which it is right or necessary to exercise the discretion, there should be publicity and awareness raising. We have talked a lot about that, but Amnesty wants to know that that will happen, and that members of the public who could use the legislation to the same positive effect will have that information. Lastly, Amnesty has asked for an assurance that awareness raising will apply equally to British citizenship and British overseas territories citizenship.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

I want to speak to amendment 34, which deals with people who would be British overseas citizens today but for historical unfairness in the law, an act or omission of a public authority or other exceptional circumstances. The Opposition welcome the fact that clause 7 attempts to rectify the position for those who would be British citizens or British overseas territories citizens today but for such an error. However, the clause does nothing for people who would be British overseas citizens today, and that is wrong.

Those who would be BOCs but for such an error should not be excluded from the proposed remedy. They have suffered from historical unfairness, just as those who would be British citizens or BOTCs today have done. Prior to 1983, there was one substantive class of British nationals, citizens of the United Kingdom and colonies. When the British Nationality Act 1981 came into force on 1 January 1983, CUKCs were divided and reclassified into three categories: British citizens, connected to the UK; British dependent territories citizens—now BOTCs—connected to the remaining British overseas territories, such as the Falkland Islands and Gibraltar; and BOCs, connected to the former British colonies.

The Home Office acknowledges that past unfairness in British nationality law includes where men and women were unable to pass on citizenship equally, and where unmarried fathers could not pass on citizenship. The Home Office acknowledges that in the case of people who could be British citizens or BOTCs, but many persons who would be overseas citizens today also suffer from such prejudice. As a result of the British overseas expansion and later decolonisation, there are pockets of BOCs around the world—for example, in Kenya, Malaysia, South Africa and anglophone west Africa, including places such as Sierra Leone. The category of BOC was created under the British Nationality Act, and it gave effect to the fact that BOCs were British nationals and should remain so. The newly created status gave no home or right of abode in the UK or any other remaining British territory.

Although BOCs have no right to come to the UK or a remaining British overseas territory, the status still has real value. It enables a person to seek to use the UK BOC passport, and possession of such a passport enables BOCs to seek UK consular assistance in a third country and to seek residence and permission to work in third countries under local laws. It may be useful where the passport of another nationality that those people hold is considered unreliable, and where their children are born stateless, to benefit from UK laws that reduce statelessness.

BOCs around the world make active use of that status. For example, many persons of Somali heritage born in Aden in Yemen when it was a British colony are reliant on BOC status, as they were, and are, shut out from the Yemeni nationality. Their BOC passports enable them to obtain lawful residence and permission to work in Gulf states, and to secure a visa to study in other countries. The Home Office proposal in clause 7 helps those affected by historical unfairness in British nationality law, an act or omission of a public authority, or exceptional circumstances to become British citizens or BOTCs. However, potential BOCs would also have suffered from such historical unfairness in British nationality law, acts or omissions of public authorities, or other exceptional circumstances. All those classes of British nationals were CUKCs prior to the British Nationality Act 1981, and all suffered from these problems. Clause 7 should therefore be supplemented to provide for registration as a BOC on the same basis as it enables registration as a British citizen or BOTC.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I will deal with each of the amendments proposed, and then I will of course pick up on a number of the points, questions and challenges that have been raised throughout the course of this debate.

I thank the hon. Members for Enfield, Southgate and for Halifax for having tabled amendment 35, which would allow a person to become a British citizen automatically following their adoption in the UK if the order was made after the age of 18 but before the age of 19, but the adoption proceedings started before their 18th birthday. I have noted the unusual situation, highlighted by hon. Members, in which newly adopted young people can find themselves as a result of differences between the Adoption and Children Act 2002 and the British Nationality Act 1981. An adopted person can automatically acquire British citizenship, provided they are under 18 on the date the adoption order is made. However, under the 2002 Act, it is possible for an adoption order to be made where someone is already 18 years old but has not yet turned 19.

I am aware of cases in which individuals are affected by those nationality provisions, and I have some sympathy for them. However, I am also conscious that a person aged 18 will normally be capable of making their own life choices. At 18, someone can purchase alcohol, accrue debt, join the Army, or vote in an election. From a legal standpoint, at 18, an individual is fully fledged and can theoretically live independently of other family members. It is therefore consistent that a person aged 18 or over who is seeking to acquire British citizenship should normally do so only on the basis of their personal connections with this country, not those of their new family.

I must consider the wider position of adopted children, and I am satisfied that to extend the nationality rules to cover persons who have attained the majority would move nationality out of step with immigration routes. For example, young people over the age of 18 must meet the requirements of the immigration category they are applying in, and are unable to rely on other family members for a claim to residence. I have sympathy for those young adults who feel that they have lost out, but other routes are available that would allow them to choose whether they wish to naturalise or register as British citizens.

Turning to amendment 13, again I thank hon. Members for tabling the amendment and for drawing attention to clause 7, which we believe is a positive move that will allow the Home Secretary to grant British citizenship to those who have missed out on acquiring it, potentially due to reasons beyond their control. Clause 7 will apply to anyone who

“would have been, or would have been able to become, a British citizen but for—

(a) historical legislative unfairness,

(b) an act or omission of a public authority,” or their exceptional circumstances. This means that the clause 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. As such, we think it right that the provision remains discretionary, to allow the Home Secretary to take into account the criteria that she might have taken into account at the time.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I will have to give some further thought to what the Minister has just said. I take the point about people who would have had to register—therefore, there is still an element of discretion. However, will he look again at the case of those who would have automatically had that citizenship and whether there really should be such broad discretion in cases where people have missed out on citizenship because of historical injustice or exceptional circumstances?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 3:15 pm, 19th October 2021

I am grateful to the hon. Gentleman for the point that he raises. Broadly speaking, there is a view that the discretionary approach to cases is helpful in ensuring that we can reach the right decision in individual cases and that we are able to take into full account, in general terms, all the relevant factors.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Is it the Minister’s intention that the Government will publish the grounds on which decisions are made with discretionary purposes for each decision, regardless of whether they are successful or not?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I will come back to the point that the hon. Gentleman raises but, as I say, there is a view that taking a discretionary approach to cases is helpful in reaching the correct decisions, and that the circumstances of individual cases are properly taken into account. There is precedent in the British Nationality Act 1981 for applications to be considered on a discretionary basis—for example, naturalisation is a discretionary provision. The law states that the Home Secretary may naturalise a person if she thinks fit and that person meets the statutory requirements. Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised, and that is relevant to the point that the hon. Gentleman raises.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

It is in part, but publishing the full grounds will help to determine whether people seek to take a case or not.

My further question is about the equality impact assessment. As I touched on this morning, the Government are suggesting that they will extend access to legal aid through the Bill. Is the Government’s intention that legal aid will be extended for this specific purpose, regardless of whether people can make a successful claim or not?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Again, I am grateful to the hon. Gentleman for his question. The key point is that through the Bill, we are improving access to justice. Clearly, the improved access to justice offer is very relevant to the one-stop shop proposals that we are taking forward in the Bill and which we will no doubt debate in greater detail when we reach later clauses.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

We will no doubt debate this in great detail in due course. As I say, we are putting in place an improved access to justice offer more generally through the Bill.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

There is an absolutely fundamental distinction between naturalisation and registration. We are talking about people who would have had an automatic right to citizenship, which is completely different from naturalisation altogether. Again, I am still struggling to understand why there has to be such broad discretion. People have lost their automatic right because of historical injustice, and the danger that has been highlighted by Members is that that will put folk off applying. Will the Minister not even think about some restrictions on the degree of discretion that the Home Secretary has, or at least provide detailed guidance on when she will exercise that in people’s favour?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I want to pick up the points that have been raised by the hon. Members for Bermondsey and for Old Southwark and for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, the guidance is a very important element of the immigration system, so that people can understand very clearly what is required and precisely how cases will be handled. I am always in favour of trying to make such matters more transparent and to improve guidance wherever we can, and that is always ongoing work. I take on board the point that has been raised, and I will certainly reflect on it.

As I say, Members will be aware that the Home Office publishes caseworker guidance, which sets out the sorts of circumstances where discretion would normally be exercised. This works, and we intend that published guidance will also be available for the new adult registration route. The fact that the Home Secretary is not obliged to naturalise a person does not therefore impact practically on most applicants. However, we want to maintain the ability to refuse applications from people who might meet the requirements, but are nevertheless unsuitable to become British citizens.

Where registration is set out in legislation as an entitlement, it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. Because of the historical nature of citizenship and the fact that issues can crop up that we might not have been aware of, we need the flexibility to be able to consider someone’s circumstances without being overly prescriptive. Equally, we recognise that people can be affected by a number of circumstances, which may be difficult to set out in detail. We are not making this a discretionary provision in order to refuse deserving people, but to allow us to respond to situations that cannot reasonably be foreseen.

I understand that hon. Members may wish to seek assurance that people who have missed out in the past will be granted citizenship, but we think that this can be achieved through a discretionary route, which will allow us to take into account all the circumstances of a case. That is why we are introducing the various provisions in the Bill in the first place: to right those historical wrongs. We want this to work.

On amendment 30, again, I thank the hon. Members for tabling the amendment. The new adult discretionary registration provision will allow the Home Secretary to grant British citizenship to anyone who would have been, or would have been able to become, a British citizen, but for historical legislative unfairness, an act or omission of a public authority, or the exceptional circumstances in play. I understand hon. Members’ concerns that that power should be used fairly and consistently, which is right.

Each case will be considered on its own merits, taking into account the particular circumstances of that person, including the reasons they were unable to become a British citizen automatically, through registration or through naturalisation. On that basis it would be unnecessary to have a legislative clause that effectively causes us to treat like cases in a similar way, because applications will be decided in line with the legislation and guidance.

I have already mentioned that we intend to publish caseworker guidance setting out when we expect that this power might be used and the sort of circumstances we will take into account. Of course, that is done very transparently and can be seen by hon. Members and by people out there seeking access to those routes. As I think is my colleagues’ intended purpose in proposing the amendment, that will help to maintain consistency in decision making.

However, I am not convinced that that would be helped by a statutory requirement to produce or amend guidance every time a person with different circumstances is registered. There may be concerns about reflecting an individual’s circumstances in published guidance, even if anonymised. We will reflect the overarching principles in guidance and amend as appropriate. Guidance will continue to be published on the gov.UK website. I can also assure hon. Members that work is done within UK Visas and Immigration to ensure consistency of decision making, particularly when a new route is introduced, and I think that that is right and proper.

I do not think we can commit in statute to publicise any grants of citizenship to people in a similar position. As I have said, we will publish guidance setting out the approach we will take and make it available to potential applicants, but it would not be right to impose a statutory requirement to do so. Indeed, some of those registered will be in unique positions and it would not be possible to identify others who might qualify on the same basis.

The reporting obligation set out in the amendment would require the Home Secretary each year to report any historical legislative unfairness that had been identified in registering a person under clause 7 and say how she intends to correct it. Perhaps it would help to clarify that the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I thought the Minister was one of those who believed in Parliament taking back control, not the Executive having more control, but let me have one more attempt at the legal aid question. This is not just about the circumstances of the individuals involved—we have heard some distressing cases today—but about the costs imposed in particular on councils, which are using emergency services to support people who might otherwise qualify for support. If legal aid were immediately available for everyone affected, those cases could be resolved much more quickly. Given the complexity the Bill is imposing, it seems as if it should be an actual requirement that that support be available. Let me try again: will legal aid be extended to everyone facing these circumstances as a result of this legislation?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am grateful to the hon. Gentleman for his question and I will visit that in my later remarks, if I may. He is right to say that I think it is right that Parliament took back control. That is a debate we have had on many occasions and no doubt will continue to have in the years ahead. I am a member of the Government, but I still believe very strongly in parliamentary sovereignty and the role of Parliament in decision making.

To clarify, the thinking behind clause 7 is that it can be used to rectify individual situations that may have been created by historical unfairness, rather than having to create specific provisions to cover each scenario, some of which may affect only a very small number of individuals. This is in fact the way we intend to address those situations, and it may not necessarily be appropriate to introduce additional measures to do so. As such, I do not see that specifying such a report in legislation would be helpful. In terms of addressing unfairness, this provision does not give a far-reaching power—it is much narrower than the discretion the Home Secretary has to register a child under section 3(1) of the British Nationality Act 1981. It does, however, reflect our desire to address historical injustices, as is reflected in all of the first eight clauses. I therefore ask hon. Members not to press amendment 30.

I am grateful to hon. Members for tabling amendment 14, which replicates amendment 13 for British overseas territories citizenship. I set out in response to the earlier amendment why we wanted this to be a discretionary provision, rather than creating an obligation to register. The same arguments apply here. Turning to amendment 31, I have set out why we could not accept an earlier amendment, and the same arguments apply here. I hope that hon. Members will not press amendment 31 either. On amendment 34, new clause 12 seeks to create a discretionary adult registration route for a person to become a British overseas citizen.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

I am sorry for interrupting, but I am not sure that we are actually debating new clause 12 at the moment. As far as I understand it, we are debating amendment 35 to clause 7 and amendments 13, 30, 14, 31 and 34 and clause 7 stand part.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I was referring in passing to new clause 12, Ms McDonagh. British overseas citizenship, or BOC, was created by the 1981 Act. It was created 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. The intention of the 1981 Act was that everyone who was a citizen of the United Kingdom and colonies immediately before 1 January 1983 would continue to hold some form of British nationality. The then Government anticipated that many who became BOCs would have an additional citizenship or nationality.

British overseas citizenship was intended to be a transitional status, and it was expected that many who held that status would have acquired the nationality of the place where they were born or were living in the 38 years since that legislation was passed. They are able to hold a BOC passport and rely on consular assistance when outside the country of any other nationality that they hold, but are likely to rely on their other citizenship for rights of residence and local travel. Given the 38 years that have passed, we do not anticipate that there can be many people who have missed out on becoming a BOC and have no other citizenship or nationality.

There were provisions for children of CUKC mothers to register under the British Nationality Act 1964 where they would otherwise have been stateless. Since 1983, there have been measures in place to acquire BOC through discretionary registration as a child or for certain people who are stateless. However, it was not the general intention that further people would acquire British overseas citizenship under the 1981 Act other than in those specific circumstances. People who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality are able to apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and that, as a result, they also missed out on being able to become a British citizen, as they have no other nationality and have not done anything that meant that they lost a nationality, there is nothing to stop them applying for that status under the clause. BOC status was introduced to avoid statelessness due to complex histories of independence or countries ceasing to be British protected territories. We do not intend to create a new route to British overseas citizenship.

The Committee has understandably raised a number of questions during debate on the amendments, and I will deal with some of them in turn. On extending the clause to include British overseas citizens, it was not the general intention that further people would acquire British overseas citizenship under the 1981 Act. The only ways to do so are through discretionary registration of a child in exceptional circumstances or of certain people who are stateless. We do not intend to create a new route to BOC status.

The shadow Minister asked how the clause is seen in practical terms. In the light of the historical nature of citizenship, issues of which we are not yet aware may arise. The discretionary nature of the clause allows us flexibility to address future concerns and issues that may arise. We have made changes to address specific anomalies that we were aware of previously, and we think it important to have the flexibility to be able to do that in future as circumstances dictate.

I was asked whether there is scope for dealing with historical unfairness. There are already specific remedies in the Equality Act 2010 and in the ECHR for discrimination. I would be happy to consider specific examples in detail, and quite rightly so. I was also asked how the law could be challenged if it is discretionary in nature. Clearly, decision makers will make decisions by taking account of public law principles and of all relevant considerations in an individual case, and by acting reasonably, as we would quite rightly expect.

Points were made about raising awareness and transparency under the clause. We agree that we need to be clear about how discretion is used in individual cases. The intention is to clarify that in the guidance. We will also consider how we can raise awareness on an ongoing basis, which is a point that we have touched on previously but which bears repeating. Clearly, the whole purpose of making the changes through the legislation is to get on and deliver on them, ensuring that people are able to access them readily and that historical wrongs are righted.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark 3:30 pm, 19th October 2021

If I heard the Minister correctly, he is suggesting that someone should pursue their rights through the Equality and Human Rights Commission, but that process would take years and could cost millions if the Government were opposing what that individual was seeking. Is it not incumbent on the Government, under the Equality Act 2010, to get things right up front? Would that not save a lot of time and money, and prevent a lot of desperate situations from emerging?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

The point that I would make is that we keep evolving circumstances and individual cases under review. It is right that we consider cases individually and properly take account of their individual circumstances. That is why we are arguing strongly that the discretionary means of tackling this is the correct way to do so. I am confident that through the provisions, we will right many historical injustices and wrongs, and that is something we should all welcome.

In the light of the debate that we had about fees, whether or not applications will be free under the clause is an important point. That will be an issue for the appropriate fees regulations in due course. As I set out when dealing with earlier clauses, those regulations will be subject to parliamentary scrutiny. I note the views that have been strongly expressed today. Members will have heard what I have said about this previously, and I would be very happy to engage with them in the development of those regulations that we would then bring forward. With that, I would ask hon. Members not to press their amendments.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

I wish to press amendment 35, and all other amendments in my name and in the names of the other Members.

Question put, That the amendment be made.

Division number 3 Nationality and Borders Bill — Clause 7 - Citizenship: registration in special cases

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Amendment proposed: 30, in clause 7, page 10, line 25, at end insert—

“4M Acquisition by registration: equal treatment

(1) Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.

(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered under subsection 4L(1) and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.

(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.” —

This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.

Question put, That the amendment be made.

Division number 4 Nationality and Borders Bill — Clause 7 - Citizenship: registration in special cases

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Amendment proposed: 31, in clause 7, page 11, line 8, at end insert—

“17I Acquisition by registration: equal treatment

(1) Where a person (P) is registered as a British Overseas Territories citizen under subsection 17H(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.

(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.

(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.”

This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British Overseas Territories citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.

Question put, That the amendment be made.

Division number 5 Nationality and Borders Bill — Clause 7 - Citizenship: registration in special cases

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Amendment proposed: 34, in clause 7, page 11, line 8, at end insert—

“(4) After section 23 (Citizens of UK and Colonies who are to become British overseas territories citizens at commencement), insert—

‘23A Acquisition by registration: special circumstances

(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British Overseas citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British Overseas citizen but for—

(a) historical legislative unfairness,

(b) an act or omission of a public authority, or

(c) exceptional circumstances relating to P.

(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies, or a British Overseas citizen, if an Act of Parliament or subordinate legislation (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person’s nationality status—

(a) treated males and females equally,

(b) treated children of unmarried couples in the same way as children of married couples, or

(c) treated children of couples where the mother was married to someone other than the natural father in the same way as children of couples where the mother was married to the natural father.

(3) In subsection (1)(b), “public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.

(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.’” —

This amendment seeks to extend the remedy in Clause 7 to those who would have been British Overseas Citizens but for historical unfairness.

Question put, That the amendment be made.

Division number 6 Nationality and Borders Bill — Clause 7 - Citizenship: registration in special cases

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Clause 7 ordered to stand part of the Bill.