Nationality and Borders Bill (HL Bill 82)

Part 1 continued    

be registered as such a citizen if, in the Secretary of State’s opinion, P
would have been, or would have been able to become, a British citizen
but for—

(a)historical legislative unfairness,

(b)5an act or omission of a public authority, or

(c)exceptional circumstances relating to P.

(2)For the purposes of subsection (1)(a), “historical legislative unfairness”
includes circumstances where P would have become, or would not
have ceased to be, a British subject, a citizen of the United Kingdom and
10Colonies or a British citizen, if an Act of Parliament or subordinate
legislation (within the meaning of the Interpretation Act 1978) had, for
the purposes of determining a person’s nationality status—

(a)treated males and females equally,

(b)treated children of unmarried couples in the same way as
15children of married couples, or

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

(3)20In subsection (1)(b), “public authority” means any public authority
within the meaning of section 6 of the Human Rights Act 1998, other
than a court or tribunal.

(4)In considering whether to grant an application under this section, the
Secretary of State may take into account whether the applicant is of
25good character.”

(3)After section 17G (as inserted by section 2), insert—

“17H Acquisition by registration: special circumstances

(1)If an application is made for a person of full age and capacity (“P”) to
be registered as a British overseas territories citizen, the Secretary of
30State may cause P to be registered as such a citizen if, in the Secretary
of State’s opinion, P would have been, or would have been able to
become, a British overseas territories citizen but for—

(a)historical legislative unfairness,

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

(c)35exceptional circumstances relating to P.

(2)For the purposes of subsection (1)(a), “historical legislative unfairness”
includes circumstances where P would have become, or would not
have ceased to be, a British subject, a citizen of the United Kingdom and
Colonies, a British Dependent Territories Citizen or a British overseas
40territories citizen, if an Act of Parliament or subordinate legislation
(within the meaning of the Interpretation Act 1978) had, for the
purposes of determining a person’s nationality status—

(a)treated males and females equally,

(b)treated children of unmarried couples in the same way as
45children of married couples, or

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

children of couples where the mother was married to the
natural father.

(3)In subsection (1)(b), “public authority” means any public authority
within the meaning of section 6 of the Human Rights Act 1998, other
5than a court or tribunal.

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

8 Requirements for naturalisation etc

(1)10Schedule 1 amends the British Nationality Act 1981 to allow the Secretary of
State to waive the requirement that a person must have been in the United
Kingdom or a relevant territory at the start of the relevant period, in relation to
an application for citizenship under—

(a)section 4 of that Act (acquisition of British citizenship by registration:
15British overseas territories citizens etc),

(b)section 6 of that Act (acquisition of British citizenship by
naturalisation), or

(c)section 18 of that Act (acquisition of British overseas territories
citizenship by naturalisation).

(2)20In the Borders, Citizenship and Immigration Act 2009, omit sections 39, 40,
41(1) to (3) and 49(2) and (3) (uncommenced provisions relating to
requirements for naturalisation as a British citizen).

(3)In the Citizenship (Armed Forces) Act 2014, in section 1, omit subsection (4)
(amendments to section 39 of the Borders, Citizenship and Immigration Act
252009).

9 Notice of decision to deprive a person of citizenship

(1)In this section, “the 1981 Act” means the British Nationality Act 1981.

(2)In section 40 of the 1981 Act (deprivation of citizenship), after subsection (5)
(which requires notice to be given to a person to be deprived of citizenship)
30insert—

“(5A)Subsection (5) does not apply if it appears to the Secretary of State
that—

(a)the Secretary of State does not have the information needed to
be able to give notice under that subsection,

(b)35it would for any other reason not be reasonably practicable to
give notice under that subsection, or

(c)notice under that subsection should not be given—

(i)in the interests of national security,

(ii)in the interests of the relationship between the United
40Kingdom and another country, or

(iii)otherwise in the public interest.

(5B)In subsection (5A), references to giving notice under subsection (5) are
to giving that notice in accordance with such regulations under section
41(1)(e) as for the time being apply.”

(3)In section 40A of the 1981 Act (appeals against deprivation of citizenship), for
subsection (1) substitute—

“(1)A person—

(a)who is given notice under section 40(5) of a decision to make an
5order in respect of the person under section 40, or

(b)in respect of whom an order under section 40 is made without
the person having been given notice under section 40(5) of the
decision to make the order,

may appeal against the decision to the First-tier Tribunal.”

(4)10In the British Nationality (General) Regulations 2003 (S.I. 2003/548), in
regulation 10 (notice of proposed deprivation of citizenship), omit paragraph
(4).

(5)A failure to comply with the duty under section 40(5) of the 1981 Act in respect
of a pre-commencement deprivation order does not affect, and is to be treated
15as never having affected, the validity of the order.

(6)In subsection (5), “pre-commencement deprivation order” means an order
made or purportedly made under section 40 of the 1981 Act before the coming
into force of subsections (2) to (4) (whether before or after the coming into force
of subsection (5)).

(7)20A person may appeal against a decision to make an order to which subsection
(5) applies as if notice of the decision had been given to the person under
section 40(5) of the 1981 Act on the day on which the order was made or
purportedly made.

Registration of stateless minors

10 25Citizenship: stateless minors

(1)Schedule 2 to the British Nationality Act 1981 (provisions for reducing
statelessness) is amended as follows.

(2)In the heading before paragraph 3, after “Persons” insert “aged 18 to 22”.

(3)In paragraph 3 (persons born in the United Kingdom or a British overseas
30territory after commencement), in sub-paragraph (1)(b) after “he” insert “had
attained the age of eighteen but”.

(4)After paragraph 3 insert—

“Minors aged 5 to 17 born in the United Kingdom or a British overseas territory after
commencement

3A(1)35A person born in the United Kingdom or a British overseas territory
after commencement is entitled, on an application for the person to
be registered under this paragraph, to be so registered if—

(a)the person is and always has been stateless,

(b)on the date of the application, the person was a minor,

(c)40the person was in the United Kingdom or a British overseas
territory (no matter which) at the beginning of the period of
five years ending with that date and (subject to paragraph 6)
the number of days on which the person was absent from

both the United Kingdom and the British overseas territories
in that period does not exceed 450, and

(d)the Secretary of State is satisfied that the person is unable to
acquire another nationality in accordance with sub-
5paragraph (2).

(2)A person is able to acquire a nationality in accordance with this sub-
paragraph if—

(a)the nationality is the same as that of one of the person’s
parents,

(b)10the person has been entitled to acquire the nationality since
birth, and

(c)in all the circumstances, it is reasonable to expect the person
(or someone acting on their behalf) to take the steps which
would enable the person to acquire the nationality in
15question.

(3)For the purposes of sub-paragraph (2)(b), a person is not entitled to
acquire a nationality if its acquisition is conditional on the exercise of
a discretion on the part of the country or territory in question.

(4)A person entitled to registration under this paragraph—

(a)20is to be registered as a British citizen if, in the period of five
years mentioned in sub-paragraph (1), the number of days
wholly or partly spent by the person in the United Kingdom
exceeds the number of days wholly or partly spent by the
person in the British overseas territory;

(b)25in any other case, is to be registered as a British overseas
territories citizen.”

(5)In paragraph 6 (supplementary), after “paragraph 3” insert “, 3A”.

Part 2 Asylum

30Treatment of refugees; support for asylum-seekers

11 Differential treatment of refugees

(1)For the purposes of this section—

(a)a refugee is a Group 1 refugee if they have complied with both of the
requirements set out in subsection (2) and, where applicable, the
35additional requirement in subsection (3);

(b)otherwise, a refugee is a Group 2 refugee.

(2)The requirements in this subsection are that—

(a)they have come to the United Kingdom directly from a country or
territory where their life or freedom was threatened (in the sense of
40Article 1 of the Refugee Convention), and

(b)they have presented themselves without delay to the authorities.

Subsections (1) to (3) of section 36 apply in relation to the interpretation of
paragraphs (a) and (b) as they apply in relation to the interpretation of those
requirements in Article 31(1) of the Refugee Convention.

(3)Where a refugee has entered or is present in the United Kingdom unlawfully,
the additional requirement is that they can show good cause for their unlawful
entry or presence.

(4)For the purposes of subsection (3), a person’s entry into or presence in the
5United Kingdom is unlawful if they require leave to enter or remain and do not
have it.

(5)The Secretary of State or an immigration officer may treat Group 1 and Group
2 refugees differently, for example in respect of—

(a)the length of any period of limited leave to enter or remain which is
10given to the refugee;

(b)the requirements that the refugee must meet in order to be given
indefinite leave to remain;

(c)whether a condition under section 3(1)(c)(ii) of the Immigration Act
1971 (no recourse to public funds) is attached to any period of limited
15leave to enter or remain that is given to the refugee;

(d)whether leave to enter or remain is given to members of the refugee’s
family.

(6)The Secretary of State or an immigration officer may also treat the family
members of Group 1 and Group 2 refugees differently, for example in respect
20of—

(a)whether to give the person leave to enter or remain;

(b)the length of any period of limited leave to enter or remain which is
given to the person;

(c)the requirements that the person must meet in order to be given
25indefinite leave to remain;

(d)whether a condition under section 3(1)(c)(ii) of the Immigration Act
1971 (no recourse to public funds) is attached to any period of limited
leave to enter or remain that is given to the person.

(7)But subsection (6) does not apply to family members who are refugees
30themselves.

(8)Immigration rules may include provision for the differential treatment allowed
for by subsections (5) and (6).

(9)In this section—

• “limited leave” and “indefinite leave” have the same meaning as in the
  35Immigration Act 1971 (see section 33 of that Act);

• “refugee” has the same meaning as in the Refugee Convention.

12 Accommodation for asylum-seekers etc

(1)In section 97 of the Immigration and Asylum Act 1999 (support for asylum-
seekers: supplemental matters), after subsection (3) insert—

“(3A)40When exercising the power under section 95 (support for asylum
seekers) or section 4 (accommodation for failed asylum seekers) to
provide or arrange for the provision of accommodation, the Secretary
of State may decide to provide or arrange for the provision of different
types of accommodation to persons supported under those sections on
45the basis of either or both of the following matters—

(a)the stage that their claim for asylum has reached, including
whether they have been notified that their claim is being
considered for a declaration of inadmissibility (see sections 80A
and 80B of the Nationality, Immigration and Asylum Act 2002);

(b)5their previous compliance with any conditions imposed on
them under any of the following—

(i)section 95(9) (conditions for support under section 95);

(ii)Schedule 10 to the Immigration Act 2016 (conditions of
immigration bail);

(iii)10regulations made under section 4(6) (conditions for
support under section 4).”

(2)In section 97(3A) of the Immigration and Asylum Act 1999 (as inserted by
subsection (1))—

(a)in the words before paragraph (a)—

(i)15for “section 4 (accommodation for failed asylum seekers)”
substitute “section 95A (support for failed asylum seekers)”;

(ii)for “persons supported under those sections” substitute
“supported persons”;

(b)in paragraph (a), for “claim for asylum” substitute “protection claim”;

(c)20in paragraph (b)—

(i)for sub-paragraph (iii) substitute—

“(iii)regulations made under section 95A(5)
(conditions for support under section
95A);”;

(ii)25at the end insert—

“(iv)regulations made under section 30 of the
Nationality, Immigration and Asylum
Act 2002 (conditions of residence in
accommodation centre).”

(3)30In section 98 of that Act (temporary support for asylum-seekers etc), at the end
insert—

“(4)Subsection (3A) of section 97 applies to the power to provide, or
arrange for the provision of, accommodation under this section as it
applies to the power to do so under section 95.”

(4)35In section 98A of that Act (temporary support for failed asylum-seekers etc), at
the end insert—

“(5)Subsection (3A) of section 97 applies to the power to provide, or
arrange for the provision of, accommodation under this section as it
applies to the power to do so under section 95A.”

(5)40In section 17 of the Nationality, Immigration and Asylum Act 2002 (support for
destitute asylum-seeker), in subsection (1), at the end insert—

“See also section 97(3A) of the Immigration and Asylum Act 1999
(decision on type of accommodation for asylum-seekers etc).”

(6)In section 22 of that Act—

(a)45after “95” insert “or 98”;

(b)for “(destitute asylum-seeker)” substitute “(support and temporary
support for asylum-seekers)”;

(c)in the heading, for “s. 95” substitute “sections 95 and 98”.

(7)After section 22 of that Act, insert—

“22A Immigration and Asylum Act 1999, sections 95A and 98A

The Secretary of State may provide support under section 95A or 98A
5of the Immigration and Asylum Act 1999 (support and temporary
support for failed asylum-seekers) by arranging for the provision of
accommodation in an accommodation centre.”

(8)In section 24 of that Act (provisional assistance), in subsection (1), at the end
insert—

10“See also section 98(4) of the Immigration and Asylum Act 1999
(decision on type of accommodation for asylum-seekers etc).”

(9)In section 25 of that Act (length of stay in accommodation centre), in subsection
(4), for “shorter” substitute “different”.

(10)In section 27 of that Act (resident of centre), after paragraph (b) insert—

“(ba)15by virtue of section 22A,”.

Place of claim

13 Requirement to make asylum claim at “designated place”

(1)An asylum claim must be made in person at a designated place.

(2)A “designated place” means any of the following places in the United
20Kingdom—

(a)a place identified in a notice published by the Secretary of State as an
asylum intake unit;

(b)a removal centre (within the meaning of section 147 of the Immigration
and Asylum Act 1999);

(c)25a port (within the meaning of section 33 of the Immigration Act 1971);

(d)a place where there is a person present who, for the purposes of the
immigration rules, is authorised to accept an asylum claim on behalf of
the Secretary of State;

(e)a place to which the claimant has been directed by the Secretary of State
30or an immigration officer to make the claim;

(f)such other place, or a place of such other description, as the Secretary
of State may by regulations designate.

(3)The Nationality, Immigration and Asylum Act 2002 is amended in accordance
with subsections (4) and (5).

(4)35In section 18(1)(c) omit “at a place designated by the Secretary of State”.

(5)In section 113(1), in the definition of “asylum claim”, omit “at a place
designated by the Secretary of State”.

(6)In this section “asylum claim” means a claim made in accordance with the
immigration rules by a person to the Secretary of State that to remove the
40person from, or require the person to leave, the United Kingdom would breach
the United Kingdom’s obligations under the Refugee Convention.

(7)The reference to the United Kingdom in subsection (2), so far as it has effect for
the purposes of paragraph (d) of that subsection, does not include a reference
to the territorial sea of the United Kingdom.

(8)Regulations under subsection (2)(f) are subject to negative resolution
5procedure.

Inadmissibility

14 Asylum claims by EU nationals: inadmissibility

(1)After Part 4 of the Nationality, Immigration and Asylum Act 2002 insert—

“Part 4A 10Inadmissible asylum claims

80A Asylum claims by EU nationals

(1)The Secretary of State must declare an asylum claim made by a person
who is a national of a member State inadmissible.

(2)An asylum claim declared inadmissible under subsection (1) cannot be
15considered under the immigration rules.

(3)A declaration under subsection (1) that an asylum claim is inadmissible
is not a decision to refuse the claim and, accordingly, no right of appeal
under section 82(1)(a) (appeal against refusal of protection claim)
arises.

(4)20Subsection (1) does not apply if there are exceptional circumstances as
a result of which the Secretary of State considers that the claim ought to
be considered.

(5)For the purposes of subsection (4) exceptional circumstances include
where the member State of which the claimant is a national—

(a)25is derogating from any of its obligations under the Human
Rights Convention, in accordance with Article 15 of the
Convention;

(b)is the subject of a proposal initiated in accordance with the
procedure referred to in Article 7(1) of the Treaty on European
30Union and—

(i)the proposal has yet to be determined by the Council of
the European Union or (as the case may be) the
European Council,

(ii)the Council of the European Union has determined, in
35accordance with Article 7(1), that there is a clear risk of
a serious breach by the member State of the values
referred to in Article 2 of the Treaty, or

(iii)the European Council has determined, in accordance
with Article 7(2), the existence of a serious and
40persistent breach by the member State of the values
referred to in Article 2 of the Treaty.

(6)In this section—

• “asylum claim”, “the Human Rights Convention” and “the
  Refugee Convention” have the meanings given by section 113;

• “immigration rules” means rules under section 3(2) of the
  Immigration Act 1971;

• 5“the Treaty on European Union” means the Treaty on European
  Union signed at Maastricht on 7 February 1992 as it had effect
  immediately before IP completion day.”

(2)In consequence of the amendment made by subsection (1), in regulation 4(4)(d)
of the Asylum Support Regulations 2000 (S.I. 2000/704) (persons excluded
10from support), for “under the immigration rules” substitute “(see section 80A
of the Nationality, Immigration and Asylum Act 2002)”.

15 Asylum claims by persons with connection to safe third State: inadmissibility

In Part 4A of the Nationality, Immigration and Asylum Act 2002 (as inserted
by section 14), after section 80A insert—

“80B 15Asylum claims by persons with connection to safe third State

(1)The Secretary of State may declare an asylum claim made by a person
(a “claimant”) who has a connection to a safe third State inadmissible.

(2)Subject to subsection (7), an asylum claim declared inadmissible under
subsection (1) cannot be considered under the immigration rules.

(3)20A declaration under subsection (1) that an asylum claim is inadmissible
is not a decision to refuse the claim and, accordingly, no right of appeal
under section 82(1)(a) (appeal against refusal of protection claim)
arises.

(4)For the purposes of this section, a State is a “safe third State” in relation
25to a claimant if—

(a)the claimant’s life and liberty are not threatened in that State by
reason of their race, religion, nationality, membership of a
particular social group or political opinion,

(b)the State is one from which a person will not be sent to another
30State—

(i)otherwise than in accordance with the Refugee
Convention, or

(ii)in contravention of their rights under Article 3 of the
Human Rights Convention (freedom from torture or
35inhuman or degrading treatment), and

(c)a person may apply to be recognised as a refugee and (if so
recognised) receive protection in accordance with the Refugee
Convention, in that State.

(5)For the purposes of this section, a claimant has “a connection” to a safe
40third State if they meet any of conditions 1 to 5 set out in section 80C in
relation to the State.

(6)The fact that an asylum claim has been declared inadmissible under
subsection (1) by virtue of the claimant’s connection to a particular safe
third State does not prevent the Secretary of State from removing the
45claimant to any other safe third State.

(7)An asylum claim that has been declared inadmissible under subsection
(1) may nevertheless be considered under the immigration rules—

(a)if the Secretary of State determines that there are exceptional
circumstances in the particular case that mean the claim should
5be considered, or

(b)in such other cases as may be provided for in the immigration
rules.

(8)In this section and section 80C—

(a)“asylum claim”, “Human Rights Convention”, “immigration
10rules” and “the Refugee Convention” have the same meanings
as in section 80A;

(b)a reference to anything being done in accordance with the
Refugee Convention is a reference to the thing being done in
accordance with the principles of the Convention, whether or
15not by a signatory to it.

80C Meaning of “connection” to a safe third State

(1)Condition 1 is that the claimant—

(a)has been recognised as a refugee in the safe third State, and

(b)remains able to access protection in accordance with the
20Refugee Convention in that State.

(2)Condition 2 is that the claimant—

(a)has otherwise been granted protection in a safe third State as a
result of which the claimant would not be sent from the safe
third State to another State—

(i)25otherwise than in accordance with the Refugee
Convention, or

(ii)in contravention of their rights under Article 3 of the
Human Rights Convention, and

(b)remains able to access that protection in that State.

(3)30Condition 3 is that the claimant has made a relevant claim to the safe
third State and the claim—

(a)has not yet been determined, or

(b)has been refused.

(4)Condition 4 is that—

(a)(a)35the claimant was previously present in, and eligible to make a
relevant claim to, the safe third State,

(b)it would have been reasonable to expect them to make such a
claim, and

(c)they failed to do so.

(5)40Condition 5 is that, in the claimant’s particular circumstances, it would
have been reasonable to expect them to have made a relevant claim to
the safe third State (instead of making a claim in the United Kingdom).

(6)For the purposes of this section, a “relevant claim” to a safe third State
is a claim—

(a)45to be recognised as a refugee in the State for the purposes of the
Refugee Convention, or