Lord Rosser
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Nationality and Borders Bill
Lord Rosser ExcerptsThursday 27th January 2022
(2 years, 2 months ago)
Lords ChamberRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-I(b) Amendments for Committee (Supplementary to the Marshalled List) - (27 Jan 2022)
Lord Paddick (LD)
My Lords, as we have heard from my noble friend Lady Ludford, the Chagos Islanders were evicted by the UK Government in the late 1960s and early 1970s to make way for a US naval base, and they are still exiled from their homeland. I would say to the noble Lord, Lord Horam, there are two separate and very distinct issues here. The first, as the noble Lord quite rightly says, is giving the Chagos Islands back to the islanders, which is very much an issue for the Foreign Office. This amendment is about giving Chagos Islanders nationality, and that is very much the responsibility of the Home Office, not the Foreign Office. I would also say, in response to the last speaker and to the noble Lord, that century-long precedents are not necessarily good precedents.
One impact of the eviction has been to deprive descendants of their citizenship rights. The Chagos Islands remain a British Overseas Territory and, as we have heard, were it not for the eviction, they would have passed British Overseas Territories citizenship from generation to generation. In certain circumstances, they could have acquired entitlement to be registered as British citizens and, since 2002, they could have benefited from a general discretion from the Home Secretary to register as British citizens.
As the noble Baroness, Lady Lister of Burtersett, said, the Government’s objection in the other place does not hold water. The situation of the Chagos Islanders is unique and, while the other measures in this part of the Bill to address historic injustices are welcome, they are incomplete without the amendment of the noble Baroness, Lady Lister of Burtersett, which we wholeheartedly support. As the noble Baroness explained, it is narrow in scope, focused exclusively on the Chagos Islanders’ direct descendants and limited to a five-year window, either from the date the amendment comes into force or five years from when the eligible person turns 18. The Minister will have to do more than simply repeat the words of her colleague in the other place to convince noble Lords not to pursue this matter further on Report.
Lord Rosser (Lab)
I would like to express our support for this new clause. I wish to be clear about its objectives and will read from the Member’s explanatory statement:
“This amendment 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. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.”
As we have heard, the proposed new clause is intended to rectify a long-standing injustice which impacts descendants of the Chagos Islanders who were forcibly removed from British Indian Ocean territory in the 1960s. I too wish to express my appreciation and admiration of all those who have been raising and pursuing this issue over a number of years, not least my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Whitaker—although I know they are not the only ones who have been working on behalf of the Chagos Islanders.
The issue has significant cross-party support, and the case for this change was powerfully made by a Member of the Minister’s own party in the Commons, Henry Smith MP, who was supported by Members across that House. The clause, as I have indicated, would extend the right to register for citizenship to the grandchildren and other descendants of this population, and it would, as has been pointed out, apply to only a small number of people.
In the Commons, the Minister’s response was not too encouraging, suggesting that this would be too significant a departure from existing law. However, he did say that the Government had heard the strong points made and would
“continue to consider what more we could do, particularly given the low uptake of the £40 million Foreign, Commonwealth and Development Office fund designed to assist this diaspora community, and we will certainly be keen to look at that and, potentially, at how it could allow those people to settle here in the UK.”—[Official Report, Commons, 7/12/21; col. 258.]
What consideration of this issue has since occurred across Government? What have Ministers settled on as to
“what more we could do”?
In recent years, we have raised significant concerns about this Government’s ongoing foreign and defence policy as regards the Chagos Islands. The Bill provides an opportunity for a distinct and limited change to our own law—one which would have a significant impact for those affected by half a century of injustice. This is surely a unique case. Frankly, we are not setting a precedent, which is what the Government seem to have been arguing to date.
Lord Rosser (Lab)
I would like in particular to add our support for Amendment 14 in the names of the noble Lord, Lord Russell of Liverpool, and the noble Baroness, Lady Hamwee. We hope that the noble Lord, Lord Russell of Liverpool, is feeling a lot better very soon.
Labour’s shadow Minister raised this issue in the Commons and received disappointing answers. As we have heard, the amendment would put right a discrepancy in our nationality law and adoption law. Currently, an adoption order can be made where a child has reached the age of 18 but is not yet 19, but the same adoption order can confer British citizenship only where the child is under 18. In the same order, our law provides that a person is a full member of their adopted family but also that they are not, because they cannot share citizenship with them.
The answers given by the Minister in the Commons were that 18 year-olds are
“capable of making their own life choices”,
that they can
“purchase alcohol, accrue debt, join the Army, or vote in an election”,
and so they are
“fully fledged and can theoretically live independently of other family members”.—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 190.]
On that basis, is the Government’s argument that at 18 someone is young enough to be adopted and provided for in our adoption law, but at the same time too old to really be an adopted child and be recognised in our nationality law?
The Minister in the Commons also argued that this change would be “out of step” with existing nationality law. One can only comment that this amendment is not seeking to make a general change to our law. By its nature, it is a completely limited, clearly defined provision for a small number of children who are going through our adoption system. It is difficult to see why this would be controversial rather than a common-sense change.
I also welcome the amendments in the name of the noble Baroness, Lady Hamwee, and her questions to the Government. We await the response with interest. We welcome Clause 7 and recognise that its aim is to provide a means to correct further injustices, but our concerns are, first, to make sure that the clause is used and is not just a token power which the Secretary of State “may” choose to action. That is probed by Amendments 16 and 20. Will the Minister clarify whether it is the Government’s intention that the Secretary of State may choose not to allow for a person to be registered as a citizen in a case where they have been subject to a historical injustice?
Secondly, we wish to be sure that this clause is rightly a reactive and fleet-of-foot mechanism to respond to newly identified problems but that it is not an excuse to avoid making further changes in the law where these are necessary. Where a further injustice or any flaw in our nationality law is identified, the Government must amend the law to rectify that. No doubt, the Government could say in their response whether that is their intention.
On the question of the inclusion of British overseas citizens in the provisions of Clause 7, addressed by Amendment 24, the ministerial response in the Commons was unclear. At the same time, the Minister seemed to claim that the clause needed to be as flexible and unfettered as possible but also that it was right to put limits on it; to not include cases which may arise on British overseas citizenship. That would appear somewhat contradictory.
We support the amendments and await answers to the questions raised by the noble Baroness, Lady Hamwee. I hope the Minister will also respond to my questions on this group of amendments.
Baroness Williams of Trafford (Con)
I thank noble Lords for tabling these amendments to Clause 7, which will allow the Home Secretary to grant British citizenship to those who would have been, or been able to become, a British citizen, but for historical legislative unfairness, either an act or omission of a public authority or their exceptional circumstances. It also creates a similar route for governors in overseas territories to grant British Overseas Territories citizenship on the same basis.
Lord Rosser (Lab)
My Lords, I thank the Minister for her letter to all Peers of 25 January. If I understood correctly what the noble Baroness, Lady Warsi, said, I rather gather that it did not make a great impact on her. I am probably in the same category. Nevertheless, I appreciated receiving the letter.
I have added my name in relation to Clause 9 standing part of the Bill, which was spoken to with such clarity and authority by the noble Lord, Lord Anderson of Ipswich, and will speak to that. No doubt there will be a need for some reflection on all the amendments in this group, as well as the stand part debate, as to what may or may not happen on Report.
Frankly, through Clause 9, the Government—metaphorically speaking, I stress—take no prisoners. They seek to amend the long-standing position, under the British Nationality Act 1981, that an individual must be notified if they are to be deprived of their nationality. That requirement of prior notice is removed by Clause 9
“if it appears to the Secretary of State that … the Secretary of State does not have the information needed to be able to give notice … it would for any other reason not be reasonably practicable to give notice … or … notice … should not be given … in the interests of national security … in the interests of the relationship between the United Kingdom and another country, or … otherwise in the public interest.”
The noble Lord, Lord Anderson of Ipswich, made particular reference to that last part on the basis that it is so broad and wide-ranging.
Yet, as we know, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address. As the noble Lord, Lord Anderson, pointed out—this was repeated by the noble Lord, Lord Paddick—the Government said that there have been no cases where the requirement to give notice stopped a deprivation of citizenship order coming into being. Of course, that begs the question: why do we have Clause 9 at all? I do not think that we got an answer to that in the letter from the Minister of 25 January 2022.
The number of people deprived of their citizenship, which the Government can now do on the basis that it would be
“conducive to the public good”,
has risen over the past 12 years. We have heard a variety of figures during this debate as to the extent of that deprivation and the numbers involved. I have a figure, too. It does not tally with some of the figures that have been given but the figure that I have is that, between 2010 and 2018, around 175 people were deprived of their citizenship on the grounds that it was conducive to the public good. A significant number happened in 2017, as has been said; the figures certainly seem to be on an upward trend.
In that context, information on the Court of Appeal decision that has been referred to that upheld a High Court ruling—the D4 case—says that the Home Secretary
“argued that notification had been given to D4, who has been detained in the … camp in Syria since January 2019, by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”
Under Clause 9, we are faced with even wider powers being given to the Home Secretary. In the light of a note simply being placed on a Home Office file, relying on regulations introduced without parliamentary approval, how are we expected to have any confidence in the provisions of Clause 9 being applied fairly and objectively when this kind of thing is going on and has been brought to our attention? In how many cases has this been done, with a note simply being placed on the Home Office file? It certainly does not inspire confidence in giving the Home Office the kind of powers that are provided for in Clause 9. I know that the Minister will tell me that these powers relate only to the notification of a decision to deprive, but it is the criteria against which the conclusion can be reached to give notification of a decision without notice that are of concern.
Lord Paddick (LD)
My Lords, Clause 10 talks about, to quote the Explanatory Notes,
“cases where parents have chosen not to register their child’s birth, which would have acquired their own nationality for their child, which means that the child can register as a British citizen under the statelessness provisions.”
I seriously question how many parents have such a detailed understanding of nationality law that they choose not to register their child’s birth in order to register their child later under statelessness provisions to give them British citizenship. That is just not credible. How many cases can the Minister cite where parents have deliberately not registered the nationality of their child in order for that child to get British citizenship under the statelessness provisions?
This strikes me as a cynical attempt to tighten the law, in a similar way to that in which the Bill tightens the provisions around modern slavery, to give the impression of being tough—bordering on xenophobic —on immigration, when there really is not a problem. It should not be part of the Bill. The power in this clause given to the Secretary of State to deny British citizenship to a child, unless she is satisfied that the child cannot reasonably acquire the nationality of its parents, needs to be qualified at the very least.
Amendment 30 in the name of the noble Lord, Lord Dubs, would give effect to the recommendation of the Joint Committee on Human Rights
“to ensure that British citizenship is only withheld”
from a stateless child born in the UK
“where the nationality of a parent is available to the child immediately”,
without any legal or administrative hurdles. We will support this amendment if this clause stands part of the Bill.
These are decisions being taken by parents and the Secretary of State about an innocent child who has no influence over what is being decided about their future—decisions about something as fundamental as citizenship. For that reason alone, we strongly support Amendment 31: that the best interests of the stateless child born in the UK must be central to any decision whether to grant or refuse British citizenship.
This is what we have come to: seeking to deny stateless children born in the UK British citizenship. As I said on a previous group, British citizenship has benefits to society as well as to the individual concerned. This is not just about the best interests of the child, although it should be; it is about what is in the best interests of society. Keeping children stateless as they grow into adults surely increases their chance of being radicalised and becoming a threat to society. On the last group, the Minister kept talking about high-harm individuals. All the evidence points to one of the most important factors in radicalisation being people not feeling part of society or of this country. Keeping a child stateless surely will increase the danger of that person growing into a terrorist.
Lord Rosser (Lab)
My Lords, my name has been added to the proposal to oppose Clause 10 standing part of the Bill, which was tabled by the noble Lord, Lord Paddick. As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. It proposes amending and restricting a vital safeguard in British nationality law that prevents and reduces childhood statelessness. Under our international obligations, we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here.
Through Clause 10, the Government now propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied that a child was unable to acquire another nationality before being permitted to register as a British citizen. That creates an additional and unjustified hurdle to stateless children’s registration as British citizens, which could be difficult for a child or those acting on their behalf to prove.
Rather than helping such children attain citizenship, the Government are intent on putting up more barriers and making it more difficult for children under 18 to be registered. They seem to want to try to deny citizenship, particularly citizenship of the place where the child was born and lives—in fact, the only place they know. No doubt the Government will explain what substantial wrong they consider this clause addresses and what hard evidence there is that that wrong is actually significant, as opposed to it being claimed as such.
Clause 10 can only be highly damaging to a child’s personal development and their feelings of security and belonging, with this exclusion and potential alienation being inflicted in their formative years. The noble Lord, Lord Paddick, referred to the serious implications that can have. There has been no assessment made by the Government of the impact this proposal will have on those children affected, which suggests that this issue does not trouble the Government. As my noble friend Lady Lister of Burtersett said, how can this be in the best interests of the child? This issue is addressed in Amendment 31, reflecting a JCHR recommendation.
In the Commons, we supported an amendment to Clause 10 which sought to ensure that the Government act in compliance with Article 1 of the 1961 UN Convention on the Reduction of Statelessness, the Government having failed to protect the existing safeguards, which are in line with international law, in this Bill. The amendment altered Clause 10, so that British citizenship was withheld from a stateless child born in the UK only when a parent’s nationality was available to the child immediately, without any legal or administrative hurdles. That is as per Amendment 30, moved by my noble friend Lord Dubs, which also reflects a JCHR recommendation.
I am probably being overoptimistic in hoping that there will be a positive government reply to this stand part debate. At the very least, if my fears are justified and we do not get a positive reply from our point of view, I hope that we will be told what the hard evidence is that Clause 10 actually addresses a significant wrong, rather than one being claimed as such.
Baroness Williams of Trafford (Con)
My Lords, I start by thanking the noble Lord, Lord Dubs, for tabling Amendments 30 and 31 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. I also note the opposition to and concerns about this clause of the noble Lords, Lord Paddick and Lord Rosser, should they not be satisfied by my response. In an ideal world, we would not need to include this clause, but current trends mean that we feel we must.
That goes to the question that the noble Lords, Lord Paddick and Lord Rosser, asked about the figures. In 2017, in the case of R v Secretary of State for the Home Department, even though the applicant was eligible for the grant of British citizenship under paragraph 3 of Schedule 2 to the BNA 1981, and despite the fact that they could acquire the nationality of their parents, the judge recognised that his conclusion
“opens an obvious route to abuse”.
The figures bear that out. In 2010 there were five cases; in 2018 they peaked at 1,775. There is obvious evidence that this is happening. I rest my case there.
Clause 10 has been developed in response to concerns that a number of non-settled parents, many of whom did not have permission to be in the UK at the time of their child’s birth, have chosen not to register their child’s birth with their own authorities in order to qualify under the current child statelessness provisions. This in turn can impact on the parents’ immigration status.
Amendment 30 would add a new condition to Clause 10, so that a child is defined as being able to acquire a nationality from birth only if there were no legal or administrative barriers to them doing so. That would mean that the parents I have talked about could, in theory, benefit from the stateless child provisions by not registering their child’s birth. In answer to the point made by the noble Lord, Lord Paddick, it is very easy to register a child’s birth. The parents simply need to complete a form and provide supporting information about their identity, status and residence and the child’s birth. I do not think that is difficult.
I appreciate that the noble Lord’s use of the term “barriers” might have been intended to suggest something more significant and assure him that the clause already reflects our expectation that children who cannot reasonably acquire another nationality should not be excluded. The UNHCR’s document Guidelines on Statelessness no. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness recognises that the responsibility to grant nationality to children who would otherwise be stateless is not engaged where a child could acquire the nationality of a parent through registration or a simple procedure. The genuinely stateless child will not be affected. This is about those who can reasonably acquire another nationality. It is not about the Windrush generation—they are entitled to be British.
We do not think it is fair that parents can effectively secure a quicker route to British citizenship by choosing not to register their child’s birth. In doing so, they are depriving their child of a nationality, which is not only about identity and belonging, as I heard one noble Lord say, but can allow them to acquire a passport or identity document and the ability to travel overseas to see family, for example.
They are also taking advantage of a provision intended to protect those who are genuinely stateless. We want them still to be able to benefit, but we want to change the registration provisions so that parents cannot effectively choose statelessness for their children and then benefit from the provisions. We think it is appropriate that families should take reasonable steps to acquire a nationality for their child. We will set out in guidance the sort of steps that we think are reasonable, and applications will be considered on their individual basis.
Amendment 31 would mean that we could not regard a child as being able to acquire another nationality, and so decline their British citizenship application, if it would not be in the best interests of the child to gain that nationality. Noble Lords have pointed out the value they see in a child being able to secure and acquire a nationality, and it is difficult to see why parents might argue that it is not in their child’s best interests to share their status. We have already taken into account that some countries’ nationalities may be problematic for a child to acquire. The proposed clause reflects our expectation that a parent should not need to try to acquire a nationality for their child if it is not reasonable for them to do so.