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The Government have not learned from this and have tried to introduce in the Bill retrospective changes to the citizenship rules. As the hon. Gentleman has just pointed
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out, our colleagues in another place tabled an amendment and, again, the Government were defeated. I hope that the Minister might recognise that he has not just lost the court case and a vote, but he has also lost the argument; I hope we will hear from him on that. The key point is the date of commencement. That will establish whether there are remaining elements of retrospection in the Government's system. I will be interested to hear the Minister tell us when he proposes to apply the new rules.

One other amendment that I should speak to is our amendment 22, which concerns the activity condition. The Bill introduces an activity condition for qualifying for citizenship, but it is not clear what could be covered by it-it is not given, but left to be clarified in secondary legislation. There are a number of legitimate concerns to be expressed about what will be covered by that condition. We have seen some introductory documents from the Government, and there are a number of areas where many of us would have great concern about what might be involved. The proposals threaten to be both expensive and bureaucratic. Also, the broad term "activity" does not seem to be restricted to volunteering, which was the Home Office's original intention.

Mr. Humfrey Malins (Woking) (Con): My hon. Friend is absolutely right. I have read all the debates from the other place, and there is a lack of clarity about what is involved in terms of fairness and so on. It would therefore help if at some stage the Minister could tell us a little more about that.

Damian Green: Indeed. I completely agree with my hon. Friend. Genuine concerns arise about the type of activities that would count. There is a potential burden on the voluntary sector, and particularly on small charities. There could be huge demands for form-filling, and we understand that referees for applicants may even be fined. The Minister is proposing a national checking service, which would be a huge extra burden on local authorities, but it is not at all clear what will happen to the money from the migration impacts fund to offset some of those costs on local authorities. Altogether, the House is being asked to buy a pig in a poke with the current proposals.

The proposal that we are making in our amendment 22, almost as an illustration, is to prevent the prescribed activities that would count as activity-that is, those activities that would allow a two-year reduction in the time before someone was eligible to become a British citizenship-from including

At a time when the reputation of politics is not particularly high, I shudder at the prospect, which is possible under the current legislation, of somebody turning up at a Member of Parliament's surgery and being told, "If you want to become a British citizen more quickly, I know what you can do-go out and deliver these leaflets for me." That would be absolutely appalling. It would be borderline corrupt if that were allowed by the legislation, and it would do democratic politics in this country no good either. That is an extremely important illustration of one of the things about the Bill that the Government have still got wrong, and we intend to test the mood of the House on that.

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My final point is about new clause 3. I always hesitate to talk about the Gurkhas in front of the Minister, who has had some bruising experiences in connection with the Gurkhas over the past few months. However, it is important that on every occasion the House should check on the progress of the Government's promises, on the Gurkhas, which were extracted from them by their defeat in this House. This debate gives another opportunity to do that, and new clause 3 is an admirable way of providing it.

Mr. Gerrard: I shall address my remarks mainly to new clause 5 and amendment 8, which stand in my name, and then say a brief word about amendment 17.

Let me start with new clause 5 and what happens if someone fails to fulfil the requirements for naturalisation. What happens to somebody who is in the probationary stage of citizenship but then, for whatever reason, does not fulfil the criteria for citizenship? There may be cases where somebody decides not to go through the expense of making an application because they know there is a condition that they cannot fulfil. There will also undoubtedly be cases where people's applications are refused because they do not fulfil some of the relevant requirements and discretionary power has not been exercised in their favour. However, it is very unclear from the discussions on the Bill so far just what the consequences of that would be.

For instance, in relation to the continuous employment requirement, the earned citizenship team has told some organisations outside this place that a failure to comply with the employment requirements would lead to removal. However, it has been suggested in other discussions about various aspects of the Bill that a failure to meet a requirement might just lead to the resetting of the clock on probationary citizenship to zero, to a further period of probationary citizenship or even to the option to switch to a different category, such as the points-based system.

There is an issue if people do not know where they stand if, for some reason, they cannot fulfil the requirements. It is important that we should know as clearly as possible what the consequences of that failure might be. It would therefore be helpful if the Minister could give us some clarity about that, although I realise that it will not be easy because there are so many different requirements that someone might not fulfil.

The second issue that I want to address is that of continuous employment, which is dealt with by amendment 8, which stands in my name. Amendment 8 tries to define continuous employment. Again, we are talking about clarity. The Bill as it stands uses the term "continuous employment", but does not define it. If a consequence of not fulfilling the relevant requirement is that someone could be removed, that could be quite serious. Amendment 8 tries to define "continuous employment" in a way that corresponds roughly with the points-based system. At the moment, a tier 2 worker who has leave lasting under six months will not lose their status when their employment is terminated, and there are more generous provisions for tier 1 workers. However, what happens if there is a break in employment, which might in no way be the responsibility of the person concerned? The employer for whom they are working might go bankrupt, which would mean they would have to try to find another job under the terms of their work permit.

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The other issue that concerns the TUC and a number of other unions is the scope for exploitation of those who are here as migrant workers. If a migrant worker is in an abusive employment situation, but is frightened that giving up that job may lead to their removal from the UK, that makes it much more difficult for them to extricate themselves from that exploitative situation. That is particularly important for women and disabled people. We know that exploitation goes on in the labour market and that the most disadvantaged, such as migrants, are often its victims. I therefore hope that the Minister can give us some reassurances about how the system will operate. He said something in Committee about people being able to work for up to 60 days when they were looking for new employment, but again the issue is one of certainty. If someone in the middle of their term of employment does not know with clarity what the consequence will be of either a period of unemployment or trying to change their employer if there is abuse, that will leave them in a difficult situation.

My final point is about Government amendment 17. This amendment is an improvement on what was suggested before, because it gives some protection to people who are in this country. It clearly protects those with indefinite leave when the new procedures commence, as well as those who have applied for indefinite leave before the commencement date.

It has already been pointed out that a key factor will be the commencement date. I have heard various dates mentioned, including, most recently, the summer of 2011, as opposed to the original proposal of late 2010. This will be important, given the retrospective nature of the legislation. If we know the commencement date, we will have a fairly clear idea of who might be affected by the provisions. For example, someone who is here on a marriage visa that is valid for two years might expect to get indefinite leave to remain here towards the end of that two-year period. If we knew that the commencement date was going to be in the summer of 2011, we would know that anyone who was already here on a two-year marriage visa would be in a position to get indefinite leave before the new provisions came into play.

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Certainty will be important in this context. We have heard the arguments about what happened to the highly skilled migrants programme. The problems arose because of the retrospective nature of the programme, and because people who had come here expecting that they would be able to apply for indefinite leave after four years were suddenly told that the requirement had changed to five years. That led to the High Court case that the Home Office lost. None of us wants to see a return to the High Court.

I wondered whether it might be possible to table an amendment to Government amendment 17 in order to introduce more certainty, but that might result in our picking and choosing in a way that the Conservative amendment does when it singles out the highly skilled migrant programme. I understand the arguments that the hon. Member for Ashford (Damian Green) was making on that, but those are not the only people who would be affected, and they are not the only ones who need to be safeguarded from retrospection.

My reading of the condition in amendment 17 which states that a commencement order "must include" provisions about various dates is that that would not preclude the
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commencement order from including other provisions. The way seems to have been left open for the order to include other provisions that could provide other protections if necessary. That is an important point, which I hope that the Minister will address. I hope that he will confirm that my interpretation is correct. If it is, and if a commencement date might still be a little time off, we could have a serious discussion in the interim about exactly what provisions ought to be included, rather than trying to write them all into the Bill now and, almost inevitably, finding that we had left out a particular class of people who need protection against retrospection.

I hope the Minister will give us some assurances on that last point, and on the points that I have raised in relation to new clause 5 and amendment 8. I am not seeking to press the new clause or the amendment to a vote, but I would like some assurances about the way the new citizenship provisions will operate. There is real concern outside this place about the delays that they might introduce, about the length of time that people might have to wait before they can acquire their citizenship, and about the uncertainty involved. The uncertainty over how the system will operate probably concerns people more than anything else. There is nothing worse than having a system that is full of uncertainties about how it will operate.

Chris Huhne: I am pleased to follow the hon. Member for Walthamstow (Mr. Gerrard), and to support amendment 8 for the reasons that he has just given. I am also pleased to speak in the same debate as the hon. Member for Thurrock (Andrew Mackinlay), who said some very sensible things about new clause 1 concerning citizens of the Republic of Ireland. I know from my recent constituency experience attending the Eastleigh and District Irish Association dinner dance that that proposal would affect many people across the country, and it deserves support for that reason if no other.

I shall speak in support of new clauses 3 and 7, and amendments 4, 5, 1, 40, 7, 2 and 22. Those provisions all concern the new requirements being imposed by the Government in relation to British citizenship and naturalisation. The new path that the Government are laying out amends provisions on naturalisation in the British Nationality Act 1981. This overhaul is well intentioned and is broadly something that we can support, but it has resulted in certain aspects to which we object and which we seek to amend.

I will start with our two new clauses. New clause 3 aims to enshrine in law the policy changes that the Government agreed to implement on 21 May with regard to Gurkhas who had retired from the British army before 1997. The Government have agreed to this and, as I understand it, have implemented the policy change announced in the Home Secretary's statement of 21 May. The reason that the new clause is still necessary is that the policy change amends only the guidance used to implement the immigration rules. Guidance, as we know, is not legally binding. It is subject to the discretion of civil servants who are not bound to follow it, and it can be amended at the whim of this or any subsequent Executive. That is simply not good enough. We need something more solid and less transient.

Amendment 40 addresses the issue of asylum seekers and their qualifying period for citizenship. As things stand, many asylum seekers face long waits to have their
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cases resolved. The delay in dealing with their cases is not their fault; it is the Government's fault, and the Government should make concessions to rectify this, rather than penalising them for problems of the Government's own making.

Keith Vaz (Leicester, East) (Lab): Will the hon. Gentleman give way?

Chris Huhne: I will happily give way to the right hon. Gentleman.

Hon. Members: No! He has not been here for the debate.

Keith Vaz: I have been following the debate on the monitor.

Today the Home Secretary gave evidence to the Select Committee. Last week, the head of the immigration and nationality directorate did so. It costs £650 million for the Government to service the backlog of immigration cases. Does the hon. Gentleman believe that it would be in the interests of all concerned if that backlog could be cleared so that all these cases could be processed quickly?

Chris Huhne: I entirely agree with the Chairman of the Home Affairs Select Committee. I know that he has made this issue an important cause, and I support and pay tribute to his stressing this point.

Let me turn to issues relating to retrospective application. Our new clause 7 seeks to limit the retrospective application of part 2 of the Bill. It would protect migrants already on the path to citizenship from having their requirements for citizenship changed at the last minute. It would give a 12-month grace period for any migrant seeking to apply for indefinite leave to remain, after and before the commencement of the Bill. Neither the Government's nor the Conservatives' amendments seek to redress the unfairness and injustice that part 2 will inflict on the many people who have embarked on the path towards settlement with the expectation of gaining indefinite leave to remain.

Government amendment 17 is an improvement on their previous proposals, but it is too narrow in its application, as it restricts the time period for migrants to obtain indefinite leave to remain status. The Conservative proposal is just as worrying, as it discriminates in favour of those who have entered this country via the highly skilled migrants programme. It implies that those who work in the UK on work permits, or who are highly skilled but did not enter through the highly skilled migrants programme, have not made as valuable a contribution to the UK, and so are not entitled to a grace period while finishing their citizenship process.

To make matters worse, clause 39, the Lords amendment that our new clause seeks to replicate, was a Conservative amendment proposed by Baroness Hanham. In the Lords debates, more than one Conservative peer spoke vehemently on this subject, recognising the injustice inherent in part 2. By collaborating with my Liberal Democrat colleagues, the Conservatives managed to defeat the Government on this. One can imagine our shock when, in the Commons Committee stage, we discovered that a strange line had been drawn by the Conservatives to separate highly skilled migrants from other migrants, giving one group-oddly enough,
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arguably the wealthier group-preferential treatment. Their amendment ignores hard workers, it ignores spouses and it ignores basic human rights.

The morality behind our new clause 7 is simple: there needs to be transitional protection for all migrants already on the path to citizenship. It is unfair to alter the rules for those who have already adhered to them by lengthening the qualification period and throwing in other provisos such as active citizenship. That is, in principle, what the High Court found on 6 April 2009-that it is unlawful to increase the qualifying period for indefinite leave to remain from four to five years for people who were already in the UK on the highly skilled migrants programme. Surely the same logic should apply here: fair play means not moving the goalposts in the middle of the game.

Let me deal finally with volunteering activity. The rest of our amendments are linked to the provisions for active citizenship and continuous employment. While the Liberal Democrats do not object to the idea of earned citizenship as a whole, the Government provisions for active citizenship and continuous employment have created more problems than solutions. We have thus tabled these amendments as an attempt to remedy the problem.

Mr. Gummer: I wish merely to support the new clause presented by the hon. Member for Thurrock (Andrew Mackinlay). I believe that it proposes a necessary change to support a fair system with respect to Ireland. I am sorry that our Front Benchers did not support it. We in the Conservative party have a great deal to live down in our treatment of Ireland, and the new clause provides one way we could do so.

Mr. Woolas: Let me try to respond to the points raised. New clause 1 was debated first, so let me explain the situation with that.

Section 31(3) of the British Nationality Act 1981 currently provides for British subjects born in the Republic of Ireland before 1949 to make a declaration to retain the British subject status they acquired at birth. The new clause seeks to extend that provision to those born after 1949. I shall not repeat the historical background that my hon. Friend the Member for Thurrock (Andrew Mackinlay) has already covered.

Before 1 January 1949, southern Ireland was part of the Crown's Dominions. Anyone born in that territory therefore acquired British subject status at birth. On 18 April 1949, southern Ireland became an independent republic outside the Commonwealth, although for nationality purposes, that change effectively took place from 1 January 1949. As such, southern Ireland's British subjects were deemed to have ceased to be British subjects on 1 January 1949, when the British Nationality Act 1948 came into force. A person born in southern Ireland would retain that status automatically only if he or she became a citizen of the United Kingdom and colonies or a citizen of a newly independent Commonwealth country.

Section 2 of the 1948 Act provided that a citizen of Eire who was a British subject immediately before 1 January 1949 could retain that status by making a claim in writing to the Secretary of State under certain conditions. That provision was replaced by section 31(3) of the British Nationality Act 1981, which allows those born in the Republic before 1949 to make a claim in writing to remain a British subject under certain conditions.

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The new clause will effectively extend these provisions to those born in the Republic of Ireland after 1 January 1949. However, as the Republic effectively ceased to be part of the Crown's Dominions on that date, British subject status could not have been acquired by birth there after that date. The new clause would not therefore allow those born after 1949 to elect to retain British subject status, as they would never have held it in the first place.

The status of British subject continues to exist in British nationality legislation as a result of Britain's historical legacy. However, the only people who hold that status are certain people with a connection to southern Ireland, or with India and Pakistan. As such, the numbers holding that status will reduce over time and we do not wish to create a new route to British subject status. Those Irish nationals who were born after 1949 and wish to become British citizens can do so through naturalisation, based on a period of residence in the United Kingdom.

We do not believe that it would be right for Irish nationals who do not have British subject status to be treated any differently from those of other nationalities, including, of course, other European economic area nationals, who are required to demonstrate an ongoing connection with the United Kingdom through residence, settlement and knowledge of English and of life in the United Kingdom.

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