New Clause 4 - Minimum Income Requirement: Family members of British citizens with a connection to British Indian Ocean Territory

Nationality and Borders Bill – in a Public Bill Committee at 12:30 pm on 4th November 2021.

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“(1) This section applies where—

(a) the Secretary of State makes a decision under Appendix FM of the UK’s Immigration Rules on whether to grant entry clearance, leave to remain or indefinite leave to remain on the basis of family reunion to a person; and

(b) the sponsor of the person is a British citizen who was born on, or descended from a person born on, British Indian Ocean Territory.

(2) In a decision to which this section applies, the Secretary of State shall not require the person to meet—

(a) a minimum income requirement; or

(b) an English language requirement.”—

This new clause would prevent the Government from imposing a minimum income requirement or an English language requirement when deciding whether to grant entry clearance, leave to remain or indefinite leave to remain to family members of British citizens with a connection to the British Indian Ocean Territory.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss new clause 15—Acquisition by registration: Descendants of those born on British Indian Ocean Territory

“(1) The British Nationality Act 1981 is amended as follows.

(2) After section 17H (as inserted by section 7), insert—

‘17I Acquisition by registration: Descendants of those born on British Indian Ocean Territory

(1) A person is entitled to be registered as a British Overseas Territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.

(2) A person who is being registered as a British Overseas Territories citizen under this section is also entitled to be registered as a British citizen.

(3) No charge or fee shall be imposed for registration under this section.’”

This new clause would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British Overseas Territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge.

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

I thank the Chagossians who spoke to the shadow Minister and myself, and Fragomen solicitors for facilitating that discussion and drafting the new clauses. As Members, and particularly Conservative Members, will know, Henry Smith, in whose constituency we find the UK’s largest Chagossian diaspora, has championed Chagossians for many years. On Second Reading I asked the Government to consider introducing a clause to rectify some of the injustices that Chagossians have faced for more than half a century. I understand that they will bring in an amendment on Report to do that, but today we seek to probe their initial thinking.

We could speak all day about how outrageously the Chagossians were treated by the UK and the US. They were removed from their islands simply to make way for an airbase, dumped in Mauritius and elsewhere and basically forgotten about. There are myriad injustices that are still to be put right. The new clauses do not fix everything, but they would fix significant injustices in relation to nationality—exactly what part 1 of this Bill was supposed to do—and family. Some Chagossians would benefit from provisions in part 1 of this Bill, which is welcome, but the Bill needs to go much further if they are to have access to the citizenship that is rightly theirs and that has been denied them only by the outrageous events of the late 1960s and the early 1970s.

As we touched on during debates on part 1, citizenship by descent in British and British overseas territories’ nationality law usually stretches to only one generation. If someone moves abroad, the children they have there will be British by descent, but if those children remain abroad and later have kids they would not be able to pass on that British citizenship. That reflects the idea that the family have made a voluntary decision to loosen their links to the UK and to build a new life elsewhere. Therefore, citizenship of the country where they now live is probably more appropriate.

Exceptions are made—for example, if the only reason the person was abroad was Crown service or if the parent who could not pass on citizenship has actually lived in the UK for three years previously or goes on to do so. All of that illustrates the point that reflecting the idea of a voluntary link to the UK justifies continued transmission of UK citizenship.

None of that can apply to the Chagossians; the situation there is obviously manifestly different. The only reason why Chagossians cannot pass on their British overseas territory citizenship is that they were forcibly removed from their islands. Nobody chose to make a new life in Mauritius or anywhere else—far from it. Nobody can say that they have voluntarily chosen to take on a new identity elsewhere. Any undermining or breaking of the link was completely forced on them in quite the most outrageous circumstances; that in itself should be enough to justify new clause 15.

The knock-on effect is that when the law was changed in 2002, while some Chagossians became British citizens as well as British overseas territory citizens, others missed out. They are now in the horrible situation where some have the right to rekindle their British identity and return here, but others do not. If I was a Chagossian whose parent was born just before being forcibly removed from the islands, and was therefore BOTC by birth, I am likely to be in a far better position than, for example, my cousin whose parents were born just days after being forced from the islands, and therefore cannot transmit their BOTC or British citizenship. When introducing the Bill, the Home Secretary said that it would mean children unfairly denied British overseas territory citizenship will finally be able to acquire citizenship, as well as British citizenship. What happened to the Chagossians, and what they still face today, is an absolute scandal. The least that we can do is ensure that all of them can access the nationality that the UK and US action deprived them of.

New clause 4 would fix another unfairness. I absolutely detest the restrictive rules that the Home Office has put in place on family visas, which say that someone must be earning certain sums of money before they can bring their non-national spouse or children here. Putting that to one side for the moment, even accepting the Government’s own logic, these provisions should not apply to the spouses and family members of Chagossians. Essentially, the Government logic is that if people choose to build a family life elsewhere and then come back to the UK, they should have certain financial means to support themselves and knowledge of the UK. However, again, Chagossians did not choose to make their family life outside British overseas territories—that was forced on them. It would now be totally unfair to restrict the right to come to the UK by imposing those rules on the families as if this was a choice they made.

It was a step in the right direction to provide British citizenship to some in 2002, but it is cruel to deny effective access to these routes by denying family members the right to come here. It is particularly cruel, given that the reason many will not be able to meet the financial threshold is the horrendous way they have been treated for decades and the extraordinary deprivation they have had to endure. I hope the Home Office will look to fix two of the many injustices that have been visited on the Chagossians.

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

I will speak to new clause 15, which is grouped with new clause 4. I fully endorse what the spokesperson for the SNP said.

New clause 15 seeks to rectify a long-standing issue in British nationality law that affects a relatively small number of people—the Chagossian people, descendants of the Chagos islanders, who were forcibly removed from the British Indian Ocean Territory in the 1960s. Between 1968 and 1974, the UK forcibly removed thousands of Chagossians from their homelands on the Chagos islands. The removal was done to make way for a US military base on Diego Garcia. The Chagossians were a settled population on the islands. Their origins trace back to 1793. They were removed and deported to Mauritius and the Seychelles, more than 1,600 km away from the Chagos islands, and have faced extreme poverty and discrimination in those places.

Because of the removal, many descendants of the Chagos islanders, despite being the grandchildren of people who were British subjects in the British Indian Ocean Territory, have been denied rights to British citizenship. The British Overseas Territories Act 2002 granted British citizenship to resettled Chagossians born between 1969 and 1982—the children of those born on the British Indian Ocean Territory. However, many Chagossians have still been denied citizenship, including second-generation Chagossians born outside those dates.

The grandchildren of those born on the British Indian Ocean Territory, third-generation Chagossians, do not have rights to British citizenship, as citizenship has not automatically passed to them, even if in some cases they migrated to the UK with their British parents at a very young age. That group therefore often become an undocumented presence in the UK once they reach the age of 18, and are denied access to jobs, housing and healthcare, despite having lived in the UK since a very young age.

The Chagossian community is divided between Mauritius, the Seychelles and the UK. Broken and divided families are therefore a direct consequence of this injustice in British nationality law. For 60 years, the Chagossian people have faced dispersal, poverty and separation. That has severely limited their life chances and damaged the health and wellbeing of generations of people.

The Bill in its current state does not cover the British citizenship and immigration issues that the Chagossian community faces. That is why the Opposition are introducing this new clause and why we wish to raise the issue today. It is worth exploring this unfairness in more detail, and the reasons why legislation has failed to rectify it to date.

Under British nationality law, citizenship is normally passed only to one generation born abroad. However, the situation of the Chagossians is fundamentally different from that of other inhabited British overseas territories, and applying that restriction to the Chagossians is unacceptable. As we know, their parents and grandparents were forcibly removed from their homeland and deported to Mauritius and the Seychelles. Since then, the Chagossian people have been born outside the Chagos archipelago and receive citizenship from Mauritius or the Seychelles, with no recognition of their long-standing ties to British nationality.

It is not possible for the descendants of the Chagos islanders to be born on the islands of the British Indian Ocean Territory due to the Order in Council since 2004, which bans any Chagossian from living on their native land. That is deeply unfair. They have not severed links with their British citizenship voluntarily; they have been excluded by the UK Government. At this point I would like to share the personal experiences of those affected by that injustice. Like many in Committee, I have been contacted by members of the community, and I pay tribute to their campaigning efforts in incredibly distressing and difficult circumstances, including groups such as Chagossian Voices. Pascal Francois is one of those affected. He resides in Mauritius and is Chagossian. He says:

“For years we have suffered from the separation of our families, through no fault of our own. We are as British as you and the next person. We wish to be known as British, we belong to the UK & her territories. The Chagossian people in exile no longer want to live in the shadows of others. We want to belong and be British by descent.”

The battle for Chagossians’ rights has been raging for decades, and this group of people have been badly let down by the UK. Most Chagossian families, already financially impacted by their enforced exile, are paying—and have paid for many years—huge and increasing visa, immigration and citizenship fees, health surcharges and legal expenses for spouses and children with pending or rejected applications. This process has significantly damaged their health, wellbeing and livelihoods. It has caused immense stress. There is understandable frustration at the lack of support from the Home Office.

Many face the threat of deportation, including young people who have lived in the UK for most of their lives and whose parents are British citizens. Ordinarily, they would have British citizen rights, but because of their exile they have been denied their rights. This injustice in British nationality law has lasted for more than half a century. We believe it requires special attention and cross-party support.

New clause 15 aims to highlight this injustice. It would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. In turn, they may also register as a British citizen. Both applications would be free of charge.

Despite our deep concerns about other measures in the Bill, it provides an opportunity for the UK to end this injustice for the descendants of the Chagos islanders and rectify a long-standing anomaly in British nationality law. I hope this opportunity is taken.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 12:45 pm, 4th November 2021

I appreciate the positive intent behind new clause 4, which seeks to create a means whereby, in the future, British citizens who were born on, or descended from a person born on, the British Indian Ocean Territory will be able to bring their foreign national spouse or partner to the UK, without their being subject to the current financial and English language requirements for family migration.

I remind hon. Members that the minimum income requirement is based on in-depth analysis and advice from the independent Migration Advisory Committee. The purpose of the requirement, implemented in July 2012 along with other reforms of the family immigration rules, is to ensure family migrants are supported at a reasonable level so they do not become a burden on the taxpayer and can participate sufficiently in everyday life to facilitate their integration into British society. Family life must not be established here at the taxpayer’s expense and family migrants must be able to integrate if they are to play a full part in British life.

The minimum income requirement was set following advice from the independent Migration Advisory Committee, at £18,600 for sponsoring a partner, rising to £22,400 for also sponsoring a non-qualifying child and an additional £2,400 for each further such child. There is no flexibility in the level of the minimum income requirement, which must be met in all cases subject to the requirement; it is right and fair it should be consistently applied in all cases. Expecting family migrants and their sponsors to be financially independent is reasonable, both to them and the taxpayer.

In February 2017, the Supreme Court upheld the lawfulness of the minimum income requirement under the family immigration rules. The Court found the minimum income requirement is not a breach of the right to respect for a private and family life under article 8 of the European convention on human rights and is not discriminatory. The Supreme Court endorsed our approach in setting an income requirement for family migration that prevents burdens on the taxpayer and ensures migrant families can integrate into our communities. The Supreme Court agreed that it strikes a fair balance between the interests of those wishing to sponsor a partner to settle in the UK and of the community in general.

Being able to speak English is also fundamental to successful integration into British society.

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

I would just gently say that the response is slightly tone deaf. First, the Migration Advisory Committee has asked the Government to revisit the financial thresholds the Minister mentions. Secondly, we are talking about Chagossians who were forcibly removed from their islands. Consistency is fine, but these are truly exceptional circumstances. Surely most taxpayers would perfectly understand that different rules have to apply in these outrageous circumstances.

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

In fairness, the hon. Gentleman has intervened early in my remarks on the new clauses. Let me continue, but I hear the point he raises, and I of course take it on board, in the way I take all comments from hon. Members on the Committee on board.

We expect those coming to the UK on a family visa with only basic English to become more fluent over time, as a means of encouraging better integration into our society, to make it easier for families to access vital public services and to enable parents to support their children’s education.

New clause 4 would undermine the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It would also remove the English language requirement, which is fundamental to a migrant’s successful integration into British society. There is no justifiable reason to give preferential treatment to family members based solely on their sponsor’s nationality. Without a clear justification for doing so, that would also likely constitute unlawful discrimination.

The immigration rules on family migration, which new clause 4 would undermine, are designed to prevent burdens on the taxpayer, promote integration and tackle abuse, and thereby ensure that family migration to the UK is on a properly sustainable basis that is fair to migrants and the wider community. The rules are helping to ensure public confidence in the immigration system and, well intended as the new clause may be, it has the potential to reverse that.

In the same way, the introduction of a dual family migration system as required by the new clause would not be seen in a uniformly positive way by British citizens and persons settled here. It would lead to an undesirable two-tier system of family migration in which a group of family members whose sponsor is a British citizen with a connection to the British Indian Ocean Territory would be given preferential treatment over other sponsors. Furthermore, the Government have the power under the Immigration Act 1971 to set out the requirements for entry into and stay in the UK in immigration rules, which are laid before Parliament. The rules allow flexibility to amend policy as appropriate, and the Government continue to review them regularly to ensure that they are fair and effective. Work is ongoing on simplification of the rules following the Law Commission’s recommendations. The new clause would have the effect of undermining that process and prescribing the rules in primary legislation for one particular cohort.

I turn to new clause 15. We are already making changes through the Bill to address historic unfairness so that all those born on the British Indian Ocean Territory and their children are either automatically British citizens or have the right to acquire British nationality. The new clause, tabled by the hon. Members for Enfield, Southgate and for Halifax, seeks to go much further and would address what is seen as the consequences of historic unfairness. Although I am sympathetic with the aim, I am concerned that that is not the correct approach. The new clause would offer British citizenship in perpetuity to those born outside the UK and overseas territories regardless of their connection to the UK as long as they are descendants of someone born on the islands making up the British Indian Ocean Territory.

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

I am not entirely surprised that the Minister’s first point is about the lack of any limit. Would the new clause be more amenable to him if there was a limit on the degree of relationship there had to be with a Chagossian?

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

If the hon. Gentleman lets me conclude my remarks, I hope that that will give him a little comfort on that point. The approach proposed by the new clause cannot be right and would undermine the long-standing principle of British nationality law that nationality or entitlements to nationality are not passed on to the second and subsequent generations born and settled outside the UK and territories.

I recognise, however, that the Chagossians present a unique case. My hon. Friend the Member for Crawley, who has long campaigned on behalf of the Chagossian communities both in his constituency and throughout the UK as vice chair of the Chagos islands (British Indian Ocean Territory) all-party parliamentary group, has indicated his intention to table an amendment on this issue on Report. I would like to reflect further on the complex issues faced by Chagossian communities in the UK and those in Mauritius and the Seychelles that have been raised by hon. Members on both sides of the Committee—I am mindful of the cross-party view—before making any significant changes to nationality law.

Hon. Members from different parties have expressed views, and I have taken on board the points raised. I say to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that there is a willingness to look closely at the Chagossian issue. With that, I hope that hon. Members will be willing not to move their new clauses.

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

As the Minister said, we will consider what has been said before we revisit this issue on Report. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.