Lord Avebury
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(10 years ago)
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Baroness Berridge (Con)
My Lords, first, my apologies for missing the first two sentences of the debate on this amendment. I left 1 Millbank over the road as soon as debate on the Bill started but I am not as nimble as I thought and I make my apologies to the House.
I, too, am grateful to the Minister for his reflection on this matter since Report and for the amendment that the Government have laid. I join the noble and learned Lord, Lord Hope, in thanking him for the meeting that was arranged at short notice prior to the Recess. I, too, am grateful that the amendment narrows the definition of what the tribunal should consider to be a new matter and that what is or is not a new matter will be for the tribunal to determine according to the legislation. The narrowing of the definition is most welcome as, once the matter is determined to be a new matter, the tribunal cannot hear it without the consent of the Home Secretary.
I am also grateful for the specific guidance outlining the circumstances in which the Home Secretary will consent to such a new matter being in front of a tribunal. I am grateful for my noble friend’s explanation of what will happen if very junior counsel are in front of a tribunal when a new matter is raised and unfortunately they cannot get instructions or the file containing the necessary information.
Everything in the Government’s amendment is welcome as far as it goes but I do not think that it will come as any surprise to the Minister that I remain disappointed that the Government have not laid an amendment giving the tribunal an exceptional discretion to hear a new matter if the demands of justice require it. Justice is of course the overriding purpose of our courts and tribunals, and ordinarily the Secretary of State should be the primary decision-maker on a new matter but not if justice demands otherwise.
On Report, the constitution arguments were ably outlined by the noble and learned Lords, Lord Hope, Lord Woolf and Lord Brown. This is the first time that a party to any proceedings will have this kind of control over jurisdiction and I shall be interested to know—as I am sure all noble Lords will be—how it works out in practice. I would be grateful if the Minister could indicate whether, if this new power results in judicial review cases, there will be a way of keeping a record of the judicial review decisions in relation to the guidance and to consent being refused. Will those figures be available some time after the Bill is passed for the purposes of post-legislative scrutiny?
Lord Avebury (LD)
My Lords, the Immigration Law Practitioners’ Association has pointed out that this is a meaningless amendment because a tribunal would not be able to consider a matter that was not within its jurisdiction in any case. It is disappointing that the Government have not noticeably reflected, as my noble and learned friend assured me they would, on the alternative suggestions made by my noble friend Lady Berridge, on this clause, and supported by several noble and learned Lords, to give effect to the recommendations of the Joint Committee on Human Rights in its eighth report. Your Lordships were almost unanimous in condemning a proposal to allow one of the parties to an appeal to instruct the tribunal on what matters it can or cannot consider.
My noble and learned friend the Minister did not challenge the assertion that the tribunal had not allowed abuse of its own process in the past or had treated the Secretary of State unfairly, or that the existing process was inefficient. There was no suggestion on Report that the Government had raised any concern in the past over this alleged problem, but if we concede that there might have been cases in which a new matter—which is only to be defined in guidance, as we heard—was raised, that still does not mean that your Lordships should agree to grant this sweeping power to allow the respondent to veto the consideration of the new matter, even when the reason for its last minute appearance was the difficulty in getting hold of the presenting officer, as in one of the cogent examples given by my noble friend in introducing her amendments. In such cases the presenting officer who may have been unable to get instructions from senior counsel overnight can ask for an adjournment. My noble and learned friend did not say that he knew of any instance when such a request had been refused.
My noble friend said that she thought satellite judicial review went against what the Government were seeking to achieve, but that would still be the only way of challenging a decision by the Secretary of State to prohibit the use of a proposed new matter, after the amendment that is now before us. I asked my noble and learned friend whether the Government had made any estimate of the number of judicial review cases likely to be heard as a result of this provision and what would be the estimated reduction in the savings expected from it. I received no answer. I certainly agree with the suggestion made by my noble friend just now that a record should be kept of such cases.
The main reason why the Government insist that the Secretary of State should have this power seems to be, as we have heard, that she is the primary decision-maker of right on these applications rather than the late arrival of new matters, some of which is due to the inaccessibility of the Home Office. Nobody argues with that in principle, although my noble friend Lady Berridge pointed out that the Secretary of State had, in effect, voluntarily abdicated that role by allowing officials to make such a large number of wrongful decisions at first instance.
Even if that problem is solved, there remains a serious objection to what the Government propose. The fundamental principle of the rule of law is the right to a fair trial. In his wonderful book, The Rule of Law, the late noble and learned Lord Bingham emphasised that the right applies to,
“adjudicative procedures of a hybrid kind … proceedings in which one or more parties may suffer serious consequences if an adverse decision is made”.
He goes on to mention a recent case in the Supreme Court in Canada, where the Chief Justice, delivering the unanimous judgment of the court, said that,
“a fair hearing requires that the affected person be informed of the case against him … and be permitted to respond to that case. This right is well established in immigration law”.
Thus, if the applicant is denied the right to present what may be a crucial piece of evidence, he is denied the right to a fair trial. That right trumps the Secretary of State’s right to be the primary decider. This amendment, leaving Clause 15 effectively untouched, does not cover the mischief dealt with so effectively by my noble friend Lady Berridge.
Baroness Hamwee (LD)
My Lords, my noble and learned friend responded extremely speedily to my bank holiday inquiry, and I am grateful to him for that. The points about whether consent should be required for the tribunal to consider a new matter have been covered quite thoroughly, but I would like to mention the question of guidance. I was curious that this is guidance, because it must be guidance by the Home Office, and therefore the Home Secretary, to the Home Secretary. I would have understood had it been called a code of practice. The title does not really matter: it is the content. I wonder whether there is any distinction between the two.
Having seen the letter to the noble Baroness of 29 April, it seems to me that the way the guidance is described comes quite close to the exercise of discretion. I am aware that I have not put a question mark at the end of any of that, but I felt that I wanted to make those points.
Lord Avebury
“Persons unable to acquire citizenship: natural father not married to mother
After section 4D of the British Nationality Act 1981 insert—“4E The general conditions
For the purposes of sections 4F to 4I, a person (“P”) meets the general conditions if—(a) P was born before 1 July 2006;(b) at the time of P’s birth, P’s mother—(i) was not married, or(ii) was married to a person other than P’s natural father;(c) no person is treated as the father of P under section 28 of the Human Fertilisation and Embryology Act 1990; and(d) P has never been a British citizen.4F Person unable to be registered under other provisions of this Act
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and(b) P would be entitled to be registered as a British citizen under—had P’s mother been married to P’s natural father at the time of P’s birth.(i) section 1(3), (ii) section 3(2),(iii) section 3(5),(iv) paragraph 4 of Schedule 2, or(v) paragraph 5 of Schedule 2,had P’s mother been married to P’s natural father at the time of P’s birth.(2) In the following provisions of this section “relevant registration provision” means the provision under which P would be entitled to be registered as a British citizen (as mentioned in subsection (1)(b)).
(3) If the relevant registration provision is section 3(2), a person who is registered as a British citizen under this section is a British citizen by descent.
(4) If the relevant registration provision is section 3(5), the Secretary of State may, in the special circumstances of the particular case, waive the need for any or all of the parental consents to be given.
(5) For that purpose, the “parental consents” are—
(a) the consent of P’s natural father, and(b) the consent of P’s mother,insofar as they would be required by section 3(5)(c) (as read with section 3(6)(b)), had P’s mother been married to P’s natural father at the time of P’s birth.4G Person unable to become citizen automatically after commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and(b) at any time in the period after commencement, P would have automatically become a British citizen at birth by the operation of any provision of this Act or the British Nationality (Falkland Islands) Act 1983, had P’s mother been married to P’s natural father at the time of P’s birth.(2) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at birth (as mentioned in subsection (1)(b)) would (by virtue of section 14) have been British citizenship by descent.
(3) If P is under the age of 18, no application may be made unless the consent of P’s natural father and mother to the registration has been signified in the prescribed manner.
(4) But if P’s natural father or mother has died on or before the date of the application, the reference in subsection (3) to P’s natural father and mother is to be read as a reference to either of them.
(5) The Secretary of State may, in the special circumstances of a particular case, waive the need for any or all of the consents required by subsection (3) (as read with subsection (4)) to be given.
(6) The reference in this section to the period after commencement does not include the time of commencement (and, accordingly, this section does not apply to any case in which a person was unable to become a British citizen at commencement).
4H Citizen of UK and colonies unable to become citizen at commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;(b) P was a citizen of the United Kingdom and Colonies immediately before commencement; and(c) P would have automatically become a British citizen at commencement, by the operation of any provision of this Act, had P’s mother been married to P’s natural father at the time of P’s birth.(2) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at commencement (as mentioned in subsection (1)(c)) would (by virtue of section 14) have been British citizenship by descent.
4I Other person unable to become citizen at commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;(b) P is either—(i) an eligible former British national, or(ii) an eligible non-British national; and(c) had P’s mother been married to P’s natural father at the time of P’s birth, P—(i) would have been a citizen of the United Kingdom and Colonies immediately before commencement, and(ii) would have automatically become a British citizen at commencement by the operation of any provision of this Act.(2) P is an “eligible former British national” if P was not a citizen of the United Kingdom and Colonies immediately before commencement and either—
(a) P ceased to be a British subject or a citizen of the United Kingdom and Colonies by virtue of the commencement of any independence legislation, but would not have done so had P’s mother been married to P’s natural father at the time of P’s birth, or(b) P was a British subject who did not automatically become a citizen of the United Kingdom and Colonies at commencement of the British Nationality Act 1948 by the operation of any provision of it, but would have done so had P’s mother been married to P’s natural father at the time of P’s birth.(3) P is an “eligible non-British national” if—
(a) P was never a British subject or citizen of the United Kingdom and Colonies; and(b) had P’s mother been married to P’s natural father at the time of P’s birth, P would have automatically become a British subject or citizen of the United Kingdom and Colonies—(i) at birth, or(ii) by virtue of paragraph 3 of Schedule 3 to the British Nationality Act 1948 (child of male British subject to become citizen of the United Kingdom and Colonies if the father becomes such a citizen).(4) A person who is registered as a British citizen under this section is a British citizen by descent if the British citizenship which the person would have acquired at commencement (as mentioned in subsection (1)(c)(ii)) would (by virtue of section 14) have been British citizenship by descent.
(5) In determining for the purposes of subsection 1(c)(i) whether P would have been a citizen of the United Kingdom and Colonies immediately before commencement, it must be assumed that P would not have—
(a) renounced or been deprived of any notional British nationality, or(b) lost any notional British nationality by virtue of P acquiring the nationality of a country or territory outside the United Kingdom.(6) A “notional British nationality” is—
(a) in a case where P is an eligible former British national, any status as a British subject or a citizen of the United Kingdom and Colonies which P would have held at any time after P’s nationality loss (had that loss not occurred and had P’s mother been married to P’s natural father at the time of P’s birth);(b) in a case where P is an eligible non-British national— (i) P’s status as a British subject or citizen of the United Kingdom and Colonies mentioned in subsection (3)(b), and (ii) any other status as a British subject or citizen of the United Kingdom and Colonies which P would have held at any time afterwards (had P’s mother been married to P’s natural father at the time of P’s birth).(7) In this section—
“British subject” has any meaning which it had for the purposes of the British Nationality and Status of Aliens Act 1914;
“independence legislation” means an Act of Parliament or any subordinate legislation (within the meaning of the Interpretation Act 1978) forming part of the law in the United Kingdom (whenever passed or made, and whether or not still in force)—
(a) providing for a country or territory to become independent from the United Kingdom, or(b) dealing with nationality, or any other ancillary matters, in connection with a country or territory becoming independent from the United Kingdom;“P’s nationality loss” means P’s—
(a) ceasing to be a British subject or citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(a)), or(b) not becoming a citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(b)).4J Sections 4E to 4I: supplementary provision
(1) In sections 4E to 4I and this section, a person’s “natural father” is a person who satisfies the requirements as to proof of paternity that are prescribed in regulations under section 50(9B).
(2) The power under section 50(9B) to make different provision for different circumstances includes power to make provision for the purposes of any provision of sections 4E to 4I which is different from other provision made under section 50(9B).
(3) The following provisions apply for the purposes of sections 4E to 4I.
(4) A reference to a person automatically becoming a British citizen, or a citizen of the United Kingdom and Colonies, is a reference to the person becoming such a citizen without the need for—
(a) the person to be registered as such a citizen by the Secretary of State or any other minister of the Crown;(b) the birth of the person to be registered by a diplomatic or consular representative of the United Kingdom; or(c) the person to be naturalised as such a citizen.(5) If the mother of a person could not actually have been married to the person’s natural father at the time of the person’s birth (for whatever reason), that fact does not prevent an assumption being made that the couple were married at the time of the birth.””
Lord Avebury
My Lords, the rationale behind this amendment, to put it as simply as possible, is to enable a child born before 1 July 2006 to a mother who is not married to the natural father to become a British citizen automatically, or to have an entitlement to be registered as a British citizen in circumstances where the child would have had either of those rights if the parents had been married.
I am grateful to the Minister for accepting in principle the amendment that I moved for this purpose in Committee and for deploying the formidable resources of the Bill team to turning the inadequate wording of my original attempt into the text now before your Lordships in Amendments 3 and 5, as well as for the useful exchanges that I had with the Minister and the Bill team during that process.
The reason for the cut-off date is that, after that, a child born to parents who were not married is already covered by the definition of “father” in Section 50(9A) of the British Nationality Act 1981—the BNA. These amendments will now cover the child born before 1 July 2006 whose mother never married the father or who was married to someone else at the time of the child’s birth. This reflects the way the Home Secretary has previously exercised discretion under the Act and will continue to do so for children born post-2006 where the mother’s husband is not the child’s natural father.
Proposed new Section 4F deals with persons who would currently have had an entitlement to register as British citizens under the specified sections of the BNA if their parents had been married. Currently, these persons can be registered at the discretion of the Home Secretary under Section 3(1) of the BNA, but Section 4F gives them an entitlement. If a person would be entitled to registration under Section 3(2) only, had their parents been married, registration under Section 4F gives them citizenship “by descent”—the status they would have acquired if their parents had been married. Section 14 of the BNA needs to be amended to secure this outcome, and this is accomplished by Amendment 5.
If a person would be entitled to registration under Section 3(5), had their parents been married, there is an additional discretion to waive parental consent. For the other specified subsections of the BNA in Section 4F, consent is required from both the mother and the “natural father”—the person who satisfies the proof of paternity regulations made under Section 50(9B) of the BNA.
Proposed new Section 4G covers those born after 1 January 1983 and before 1 July 2006 who would have become British citizens automatically if their parents had been married. The main beneficiaries of this section will be persons born in the UK to a British or settled parent who would have become British citizens under Section 1(1) or 1(1A) if their parents had been married and persons born abroad to a British parent who would have become British citizens under Section 2(1) if their parents had been married.
Proposed new Section 4H covers persons who were citizens of the UK and colonies immediately before 2 January 1983 but did not become British citizens because their parents were not married. This will benefit those who acquired citizenship through birth in a British colony and still had that status on 31 December 1982—for example, a person with a UK-born natural father who was born in a current overseas territory or was born in a former colony and did not acquire citizenship of that country when it became independent. Here again it is necessary to place these persons in the category “by descent” or “otherwise than by descent” to correspond with the status they would have had if their parents had been married. The distinction between these two categories occupies 26 pages of Fransman’s magisterial tome on British nationality law, so I hope your Lordships will be content with that reference.
Proposed new Section 4I benefits people who would have acquired British citizenship in three situations: first, if they were British subjects or citizens of the UK and colonies by birth in a former colony and would not have lost that status when that country became independent if their parents had been married; secondly, if they were British subjects before 1 January 1949 and would have become a CUKC on that date if their parents had been married; and thirdly, if they did not acquire the status of British subject or citizen of the UK and colonies but would have done so if their parents had been married. This will also benefit those who would have acquired citizenship under Section 5(1)(a), (c) or (d) of the British Nationality Act 1948. I am sorry to say that that will not apply to those whose parents had the right to register their births at a British consulate under Section 5(1)(d) while they were minors but omitted to do so. That reflects existing law for persons whose parents were married, and the rights of both groups will have to wait for a future opportunity.
Proposed new Section 4J defines a person’s “natural father”. It is interesting to recall that when the BNA was originally going through another place in 1981, the Minister—now the noble Lord, Lord Luce—said that citizenship could not be extended to illegitimate children because,
“the problem of identifying the father in such cases remains insurmountable”.—[Official Report, Commons, Standing Committee F, 17/3/81; col. 623.]
Watson and Crick had received the Nobel Prize for determining the structure of DNA 19 years earlier but the practical applications of their discovery were still a long way in the future. The power in proposed new Section 4J(2) is a broad one but this reflects the power to make different provisions for different circumstances that already exists in Section 50(9B) of the BNA. The provision is intended to benefit potential applicants and ensures that regulations for establishing the proof of paternity can be adapted if circumstances change; for example, following scientific advances.
It has not been possible to deal with the British Overseas Territories in these amendments because of course they would have to be consulted about any proposed amendments to the Act dealing with the forms of citizenship connected with those territories, as we have acknowledged. I would be grateful if my noble friend the Minister could assure me that the Government will launch such a consultation, preferably in the next Session of Parliament, so that, having done so, next time we have an immigration Bill we can deal with the limited number of stateless persons left with only BOTC status. At the same time this will enable us to annul some of the reservations we have put to our accession to the convention on the elimination of discrimination against women.
At Third Reading of the then Nationality, Immigration and Asylum Bill, the then Minister, the noble Lord, Lord Filkin, said:
“One can only go so far back in seeking to right the wrongs of history and of previous generations”.—[Official Report, 31/10/02; col. 298.]
My noble friend the Minister echoed this on the last day of Report. In the thickets and undergrowth of immigration law, there are still plenty of wrongs of history waiting to be rectified, but at least if your Lordships agree to these amendments they will remove most of the discrimination against people whose parents were not married that has infected our immigration law in the past. I beg to move.
Lord Taylor of Holbeach
It would not be in my nature to take anything for granted where Parliament is involved. However, I think I made the position of the Government quite clear on guardians for trafficking when the amendment was considered, and the noble Baroness herself has been well aware of that. I hope she will accept what I am saying. It will be a matter of our listening to the House of Commons, as we must now call the other place, and giving it an opportunity to present to us what it considers of our amendments. That is a reasonable position to take. Meanwhile, this change to the Long Title facilitates the adoption of my noble friend’s amendments, which I hope the House will support because they will be welcomed by many and assist individuals hitherto precluded from British citizenship by historical anomaly. They will therefore be able to register as British citizens if they wish to do so. I am extremely happy to be able to offer my support to my noble friend in this matter.
Lord Avebury
I am extraordinarily grateful to the Minister for his kind remarks and for his undertaking to take an opportunity, I hope in the near future, to raise the question of overseas territories and how their position can be brought into line with what we are now about to agree, as far as our own citizenship is concerned.
We have whittled away at the wrongs of history in 2002 and 2006, and now again in 2014. It is not beyond the bounds of possibility that on a future occasion we will be able to rectify some of the remaining difficulties that affect our nationality law, particularly the wrong that I think we did to people whose parents did not register them when they were minors. It would have been right, not just in the case of the illegitimate but also for those who were born to married parents, to allow those individuals when they became adults to exercise the rights that their parents had not exercised on their behalf.
However, that is only a very minor niggle compared with my pleasure at being able to move an amendment that grants citizenship to people who are illegitimate in circumstances where, if their parents have been married, they would have had it long ago.
Lord Avebury
“Part 8AProvision relating to persons unable to acquire nationality because natural father not married to mother British Nationality Act 19811 (1) The British Nationality Act 1981 is amended as follows.
(2) In section 14 (meaning of “British citizen “by descent””), in subsection (1), after paragraph (d) insert—
“(da) the person is a British citizen by descent by virtue of section 4F(3), 4G(2), 4H(2) or 4I(4); or”.(3) In section 41A (registration: requirement to be of good character), in subsection (1), after “5,” insert “4F, 4G, 4H, 4I”.
British Nationality (General) Regulations 20032 (1) In regulation 14 of the British Nationality (General) Regulations 2003—
(a) after “4D(3)” insert “or 4G(3)”;(b) after “section 4D” insert “or 4G”.(2) The provision inserted into regulation 14 by this paragraph may be amended or revoked by the exercise of the powers conferred by section 41 of the British Nationality Act 1981 as if that provision had been inserted by those powers.”