98ZA: Clause 29, page 36, line 13, at end insert “or another international agreement to which the United Kingdom is a party”
Member’s explanatory statement
This amendment ensures that due regard is given to other international agreements when indefinite leave to remain is considered by the Secretary of State under Clause 8AA(5).
My Lords, I am going to do two things that the Government Chief Whip does not like. First, I am going to take a little time over my remarks in moving this amendment. Secondly, I am going to read my speech, because these are very complicated matters in Clauses 29 to 36 and I want to be sure that I am covering what are quite dense political points. What we are doing at the moment is not just a question of opining on an issue of the day; we are actually analysing crucial legal provisions in a piece of legislation so I do not apologise.
I shall speak once in a single contribution covering my clause stand part on every clause in this section of the Bill and my Amendments 98ZA and 98EA to Clauses 29 and 35 respectively. The clauses are extremely important and, in my view, regrettable provisions. They are pernicious in depriving refugees who ever met the four conditions in Clause 2 of any chance, long term, of integrating into and contributing to our society by denying them any prospect of settlement or citizenship, with few exceptions. British citizenship enables a person to live and work in the UK permanently, vote, hold public office and participate fully in British life in a way that no other type of status allows.
The amendments in the names of the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, focus specifically on those entitled to various kinds of British citizenship who need to register to secure recognition of that, and I pay tribute to their work on this, which I know has a particular focus on children.
I am taking a global view of the operation of this section of the Bill, whether on entry, leave to remain or any kind of citizenship, whether by registration or naturalisation, because the issues are interrelated. The clauses impose lifelong prohibitions on lawful re-entry or gaining leave to remain in the UK and on grants of citizenship, as opposed to the maximum 10-year re-entry ban under the current Immigration Rules. They are an extension of the whole deterrence agenda and are in conflict with several international obligations. The clauses breach Article 8 of the ECHR and the right to private and family life because they are axiomatically disproportionate. A blanket ban allows for no individual consideration whatever, such as in no possible circumstances could you ever be granted status. The UK has, for instance, certain positive obligations under Article 8 to allow family reunification, such that failure to allow a relevant individual to reunite with their family members by entering or settling in the UK could breach those obligations. The breach of Article 8 ECHR could even escalate to a breach of Article 3, which bans torture or inhuman or degrading treatment. It is also unclear, as a practical matter, where the Home Secretary has determined that a human rights claim or asylum claim is inadmissible by virtue of Clause 4, how an individual could apply to the Secretary of State for an exception to be made in their case. Perhaps the Minister could put me right on that point.
My Lords, I rise to speak to a number of amendments in this group in my name; namely, Amendments 98A to 98H. I also oppose Clauses 33 and 34 standing part; those notices stand in the name of the noble Baroness, Lady Ludford, and I have added my name to them. I am grateful for the support of the noble Baroness, Lady Lister of Burtersett, for each of my amendments and the clause stand part notices. This is a coherent suite of amendments: they do one thing but are necessary to do that thing throughout a whole section of the Bill that, in essence, covers Clauses 30 to 36, which stand together as a form of deprivation. I am grateful to Amnesty for its assistance in drafting these amendments; I should also say right at the outset that I am grateful to the Minister, my noble friend Lord Murray, for the time he gave to a meeting in advance for us to discuss them.
The essence of what is happening is that the Bill has a two-step deterrence mechanism. It is frankly and openly deterrent, designed to deter people from setting off on a certain course. The first step in that deterrence, and to my mind a very powerful one, is the prospect of rapid removal from the United Kingdom to another country. Coming on top of the money that people have paid, as they have in many cases, to cross the channel or for whatever their mode of arrival, I would have thought that the prospect of immediate removal is a very significant deterrent indeed.
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However, the Bill does not stop at that. In Clauses 30 to 36 it adds a further level of deterrence. That is a denial of—a ban on—acquiring UK citizenship. That ban falls into two distinct parts: one is a ban on acquiring citizenship by way of naturalisation and the other is a ban on acquiring citizenship by way of registration. While the noble Baroness, Lady Ludford, spoke in broad terms about these clauses—equivalent to taking a mallet to them—noble Lords will realise that I am getting narrower and narrower. Perhaps I am approaching this more with a scalpel, because I am concerned with the question not of naturalisation but of registration.
The first reason is that naturalisation is a concession granted by the state to foreign nationals to allow them to become British. Except in very limited circumstances, we have no international obligation to grant naturalisation to people; it is entirely a matter for our Parliament and the laws that we make. It is inevitable that Parliament will impose conditions on who it allows to be naturalised; indeed, we already impose conditions, such as passing examinations, going through certain procedures, residence requirements, and so on. It is inevitable that Parliament will impose conditions on naturalisation and, if Parliament chooses to impose this condition, whether we like it or not, one might object to it politically, but it is not a great constitutional matter. Noble Lords will have noticed that my amendment does nothing to limit the Secretary of State’s power—indeed, duty—to remove persons from the jurisdiction who qualify under the four criteria set out in Clause 2.
This brings us down narrowly to the question of registration. Registration is not a concession granted by the state. It is a process that was, in fact, introduced shortly after the Second World War by the Attlee Government to allow people who are already British to register that nationality because it is not patent or obvious on the surface. The laws of citizenship are complex; people fall between the cracks. The history of Empire and Commonwealth means that people sometimes have difficulty demonstrating their British nationality or their UK citizenship because they have been born in other countries or documents are not always available. It is an evidence-based process, so it is a matter of showing the evidence, proving the descent and providing a certain level of documentation. Then it is for the authorities to make a decision based on that evidence, on a balance in some cases, on whether the person in question is entitled to British citizenship—not whether they may apply for it, not whether it may be given to them as a concession, but whether they are already British. It is this process that the Bill wishes to see people banned from pursuing.
Not all routes to the registration of British citizenship are eliminated by the Bill but four routes are specified. Each has its own clause, which is why a number of amendments are necessary to separate them out. They relate to British citizenship, British Overseas Territory citizenship, British overseas citizenship, and a very small group, if it exists at all, known as British subjects. It is impossible to say how many people would fall into these categories; it probably is not a very large number, but we know that a large percentage of them are likely to be children. I am not going to dwell on that further at the moment because I know that the noble Baroness, Lady Lister of Burtersett, is going to make some comments in that regard.
This raises a paradox and a question of principle. The paradox is that we will have deported from this country people who might, at a later stage, be able to demonstrate that they had a right of access to this country. We are depriving them of the ability to demonstrate that they had that right of access, though they may not have known it—documents and evidence may not have been available—at the time that they were deported. Therefore, the Secretary of State would have been wholly excused in not knowing it either—why would the Secretary of State have known it if the person did not know it? It is a very odd paradox that it works reflexively, so to speak, but does not allow a correction of that reflexive punishment.
I hope I anticipate correctly that one of the things my noble friend the Minister might say is, “Do we really want, as British citizens, people who would behave in such an indecent way as to turn up on Dover beach in a small boat? Surely they should have applied in the correct and appropriate way”. But that goes to the heart of the principle: that time and again we find this Home Office mentality that British citizenship to which one is entitled is a reward for good behaviour. It is not. British citizenship to which one is entitled can never be a reward for good behaviour.
My argument is fairly straightforward. These provisions are unnecessary because the deterrent effect of deportation seems to me sufficient. Not only are they unnecessary but they are paradoxical in a slightly bizarre way, because they prevent someone acquiring something that they are entitled to but which, in so acquiring, would have nullified the original sin, so to speak. Just as much, the provisions cheapen through their mentality British citizenship. If something to which one is entitled is little better than a library ticket or a voucher for sweeties then what really are we saying about British citizenship?
If the Government wanted to accommodate some of the concerns raised in your Lordships’ Committee over the past few days, this would be the perfect item for my noble friend to accommodate. It would have no detrimental effect on the operation of the Bill, it would strengthen notions of British citizenship as something valuable, enduring and an entitlement, and it would please many noble Lords in the Committee.
My Lords, I have tabled Amendment 98I on the status of Hong Kongers with British national (overseas) status. I am grateful to the noble Lord, Lord Alton, who cannot be in his place this evening, the right reverend Prelate the Bishop of St Albans —I think the right reverend Prelate the Bishop of Durham may be deputising for him—and the noble Baroness, Lady Kennedy, for signing this amendment. I particularly thank the Hong Kongers who have talked to us, Amnesty International and the Project for the Registration of Children as British Citizens for their assistance. In the spirit of co-operation, I wrote to the Minister last week setting out the problem that many BNO passport holders face to give him advanced notice.
The noble Lord, Lord Moylan, talked about the amendments that he and the noble Baroness, Lady Lister, have tabled as focusing right down. I am going even further down to one highly specific group where a problem has emerged which seems to breach the British Nationality Act. I hope to be proved wrong and that the Minister can give us some assurances, but the experience of these BNO nationals who have had children born in the UK recently, most of whom are under five years old, is that they are being told by government officials and staff that their children must apply to Chinese diplomatic missions for Chinese travel documents as they are not entitled to any other form of travel document provided in the UK because their parents are not yet full British citizens, even though they are BNO nationals who are waiting to complete the necessary time before applying for settled status and thereafter, as is their right under the law, becoming full UK citizens. Even if that were not the case—if for any reason their parents did not go for that—these children, because they are born here, would be entitled to apply for UK citizenship after being here for 10 years. One official told a Hong Konger parent that their child would have to take the UK citizenship test.
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The Bill is in a multitude of ways incompatible with the UN Convention on the Rights of the Child, which protects the right of children to a nationality, prohibits discrimination and requires that the child’s best interests are counted as a primary consideration in actions concerning them. The Bill is also incompatible with current UK law, such as the Children Act 1989.
The JCHR, which I thank for its excellent report published yesterday—in which, as I am no longer on the committee, I had no part—highlights the legal problems with the Home Secretary’s discretionary exception-making powers. Giving her discretion to act in accordance with the UK’s international obligations also means giving her power to act in breach of them, and a refusal to exercise discretion may not be capable of an effective challenge. The UNHCR says:
“In order to bring this section of the Bill into line with the UK’s obligations under international law, the exceptions to the ineligibility for all forms of leave and for citizenship should be based on compliance … with European Convention on Human Rights and other international agreements and those decisions should not be left to the discretion of the Secretary of State”.
Where a breach of the UK’s international obligations would otherwise occur, the Home Secretary should surely be under a duty to make an exception, rather than have a discretion to do so. If a person entered the UK by irregular means but could not, for whatever reason, be removed, Clause 29 in conjunction with Clause 4 would prevent them from regularising their stay in the UK, leaving them in perpetual immigration limbo and would of course be the prelude to their having no chance of access to citizenship. Depending on the length of the delay and the private and family ties they have generated during that delay, this could violate the UK’s positive obligations under Article 8 of the ECHR, the refugee convention, the convention against statelessness and the UN Convention on the Rights of the Child, to name but the most obvious ones.
UNHCR comments that, as at present the UK is effectively unable to remove asylum seekers to third countries:
“It is entirely foreseeable—and in Clause 29-36, expressly foreseen—that many refugees and stateless people who will be ineligible for any form of leave to remain will nonetheless remain in the UK for extended periods of time, if not indefinitely, trapped ‘on the margins’ of society”.
Throughout proceedings on the Bill, beginning with Second Reading, many of us have raised this worry about people being left in limbo. Because we lack the impact assessment from the Government, we all have to go on the one from the refugee commissioner, which estimates that there could be 200,000 people within three years, marginalised, in limbo, destitute—really healthy for our society.
Even if the Home Secretary exercised her discretion to grant some form of leave eventually, anyone who had ever been subject to the removal duty would be permanently ineligible from becoming a British citizen through several of the main routes available under the British Nationality Act 1981. However, Article 34 of the refugee convention requires contracting states as far as possible to
“facilitate the assimilation and naturalization of refugees”.
The impact on children of a lifelong prohibition on re-entry or gaining leave to remain could be particularly severe and is difficult to reconcile with the UK’s international and domestic obligations. Consideration of the best interests of an individual child is absent from Clause 29, but how can a blanket ban be in the best interests of a child for the purposes of either Article 3 of the UN Convention on the Rights of the Child or, domestically, the Children Act 1989 or Section 55 of the Borders, Citizenship and Immigration Act 2009?
The Government have acknowledged that children affected by this Bill
“will rarely qualify for citizenship”
if they or a relevant family member are subject to Clause 2. The JCHR considers that this seems to contravene Article 2 of the UN Convention on the Rights of the Child, which prohibits the discrimination or punishment of a child on the basis of the status of or activities of their parents or guardians. Where the child, as will of course be the case, will have had no control over their parents or the decisions which led to them arriving in the UK irregularly, the automatic imposition of a lifelong ban which they then have to convince the Home Secretary to reverse seems to fall within the definition of a punishment. Can the Minister tell me how Clause 29 is compliant with the Supreme Court case of Zoumbas and subsequent case law on the issues concerning children’s best interests in an immigration context? How can routine application to children of a blanket ban on entry and leave to remain without consideration of their particular circumstances possibly be lawful?
I am on my last page. The Home Secretary’s discretion under Clause 29 when deciding whether to lift a ban on limited leave to remain has to be exercised so as to avoid a breach of the ECHR or any other international agreement to which the UK is a party but, in a similar situation with regard to a grant of indefinite leave, only conformity with the ECHR is said to be relevant. Perhaps the Minister can explain the contrast between those two situations in Clause 29, because I have not managed to pin down the rationale. My Amendment 98ZA in any case adds in other international agreements so as to align the two legs of Clause 29 on leave to remain.
Many children, either because they arrived unaccompanied as a small child or because removal has not been possible in practice, may be born or spend their entire childhood here and have a solely British identity. The Bill would mean previously acceptable routes to citizenship, such as the discretionary route or the settled route, being either blocked or fundamentally altered. The 10-year route would be possible in theory but, for children whose parents were irregular entrants, those parents could be prohibited from obtaining leave to remain, citizenship and employment, thus creating instability and poverty in the child’s life.
The Bill would also put stateless children at significant risk. If a relevant family member was an irregular entrant subject to Clause 2, they and the stateless child would be subject to mandatory removal, jeopardising the child’s years of residency and potentially condemning the child to a lifetime without citizenship. Clause 35 as originally introduced would in fact have allowed the Home Secretary to make an exception and grant nationality if there were compelling circumstances or it was necessary to comply with the UK’s obligations under not just the ECHR but any other international agreement to which the UK is a party. However, unaccountably, that latter part has been removed, risking the UK being in breach of its legal obligations under those other international agreements.
Even if ECHR grounds are not established, the UK’s legal obligations under the UN Convention on the Rights of the Child may be breached under the prohibition of discrimination or punishment of a child on the basis of the activities of their parents; I have referred to this. This backwards redrafting appears to have eliminated an avenue for stateless people, refugees and others to obtain British nationality in reliance on the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child. Can the Minister explain, therefore, why the Government have narrowed the available exceptions between the original draft of the Bill, as considered in the other place, and the Bill as it came to this House? I hope that, unless a convincing answer can be given, this House will see fit at a later stage to seek to restore the grounds for making exceptions under Clause 35 to the version introduced in the other place; namely, on the grounds of both the ECHR and any other international agreement.
I hope that I have explained sufficiently why these Benches have tabled amendments and clause stand part notices, which would remove all the clauses in this part of the Bill and at least bring the Home Secretary’s exercise of discretion in line with international law. I beg to move.
That is clearly mad. Whatever Border Force and Home Office immigration officials are saying, it is utterly confusing. This is a small community who relied on the United Kingdom, which ran their country for many years and allowed the status of BNO to signify that we accepted that status, with everything else that follows from it, including the right to settled status and, in the slightly longer term, the right to UK citizenship.
To be clear, Section 1(3) of the British Nationality Act provides the child with the right to be registered as a British citizen if either parent becomes settled or a British citizen. To be generous, perhaps this is confusion among officials about the gap before the parents are recognised as being settled. However, that application must be made before the child turns 18. Section 1(4) provides the child with the right to be registered as a British citizen if the child remains resident in the UK until the age of 10. Some absences during those first 10 years are permitted. I am saying that because the officials are also telling these parents that if their children leave the UK, they will not be entitled to anything, which is contrary to the British Nationality Act.
Registration under either of these is by right. It is not for the Home Secretary’s discretion. If the requirement is to exercise that the rights are met, the Home Secretary is required to register the child as a British citizen. Can the Minister confirm the earliest point at which a child born in the UK to a BNO national en route to settlement can expect to be able to secure their own connection to the UK, and by what means? Surely the answer is in Section 1(3) of the British Nationality Act 1981.
There is another related matter. There are dependents of those with BNO passports who arrived with HKSAR passports before the current BNO scheme was fully devised. For some, their passports are likely to expire before they achieve their five-year route to settlement. At the moment, they are getting the same response from immigration officials as parents with newborn children regarding their status—that they should approach the Chinese authorities for travel documents. It seems that for dependents with HKSAR passports there is another gap in the system. Quite often these are vulnerable people, sometimes elderly dependents or parents who have come with their children. They are not expecting to return to Hong Kong now.
There is another important point. Many of the Hong Kongers who have arrived here under this status are here because they are perceived as dissidents in Hong Kong under the new regime. Yesterday, in Southampton, two Hong Kongers were attacked by three pro-Chinese Communist Party men, allegedly Chinese students at the University of Southampton, where this happened.
We know, because of the behaviour of the Chinese consulate in Manchester some months ago, that these people are at real risk of attack. For any UK official to tell them to go and get documents from the Chinese is the most extraordinary thing I have ever heard. So I am looking forward to hearing from the Minister and hope that officials need to be briefed. If that is not the case, perhaps he could set out exactly why not. But most importantly, I wonder whether the Minister will meet with me, other signatories to my amendment and some BNO passport holders to further discuss this issue, so that the Home Office understands what is going on.