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Andrew Mackinlay: None of this material that the Minister is rehearsing contradicts what I said. If he reads the Official Report tomorrow, he will find that I told him the history. He is now getting full marks for getting it correct, having listened to what I said. The issue remains, however, the parity of treatment. The fact is that in one part of the United Kingdom it is possible to opt either way or have both; it is a matter of our relationship with Ireland and the fact that the people born in the 32 counties of Ireland are unique. It is not comparable to the European Union, or to Pakistan and India; it is a one-off. As to all this business about naturalisation, it is a gross impertinence that folk have to go through this long, tortuous and expensive process to do what is simply common sense and perfectly just.
Mr. Woolas: I am sorry that my hon. Friend did not listen to what I, in fact, said rather than what he has assumed I was saying. What I said in respect of his new clause, not in relation to the general policy issue, is that it is not possible to allow those born after 1949 to retain British subject status as they did not have it. That was my simple and logical point, irrespective of one's view on the justice, morality or otherwise of the issue.
My hon. Friend says that those born after 1949 who have emigrated from the Republic of Ireland and come to Britain cannot opt to be British. That is simply not the case. He may not like the route, but the fact is that a child born in the Republic who moved to the UK when a child-presumably with his or her parents-can naturalise as a British citizen under section 6(1) of the 1981 Act, or, if the parent who acquired citizenship was registered as a British citizen when still a child, it can be done under section 1(3) or 1(4) of the 1981 Act.
My hon. Friend asks what is to stop a person applying in the usual way, and the answer is nothing. What is also different is the fact that the Republic of Ireland is also a member of the European Union, which has changed since 1949, so that represents an important difference.
Sammy Wilson: I think the Minister has missed the point. The new clause is really a request for a reciprocal arrangement to the one that exists for people who live in the United Kingdom and want to claim Irish citizenship. For them, there is an easy route. All the new clause is requesting is that that easy route be available in the other direction. That is why this is a unique situation: people who wish to have Irish citizenship have a method by which they can get it quickly, so to reciprocate in the other direction seems to me to be fairly sensible.
Mr. Woolas: I am sorry the hon. Gentleman thinks I have missed the point, but I think I have exactly addressed the point, by saying that there is an available route. I do not accept that it is a difficult route. Indeed, many hon. Members have made representations to the effect that EU membership citizenship is too easy to get. If that is the case for other EU countries, hon. Members would presumably think it was the case for the Republic of Ireland.
Let me deal briefly with new clause 3. The House will not be surprised to know that I shall ask it to resist the amending provision. We believe that the revised policy on the situation of the Gurkhas meets the concerns of Parliament on the issue. It is not open to civil servants dealing with applications to disregard the published policy; it is established case law that policy must be followed and it would be unlawful not to give effect to it. The policy we now have follows the commitments given by the Home Secretary, following the vote in the House of Commons, and I can confirm that officials are, of course, following it. The policy provides certainty that the Ghurkhas discharged before 1997 will be allowed to apply for settlement.
The proposed amending provision would also have the effect of altering the position of those Gurkhas discharged after 1 July 1997. The logic of the distinction between those who served pre-1997 and those who served after was recognised by the High Court, as it is recognised by common sense. The problem is that the new clause would make the rules for Gurkhas since 1997 inconsistent with those of Commonwealth soldiers. It was that principle that the campaign was trying to establish.
In the context of new clause 5, my hon. Friend the Member for Walthamstow (Mr. Gerrard) raised the important question of what would happen if an application for probationary citizenship failed. Given that the Bill relates to citizenship-not to settlement, which is covered by other Acts and rules-the answer is that citizenship would not be granted. Status is covered elsewhere, under settlement rules.
As my hon. Friend said, there would be several options for those affected. If a person with permanent residence applies for British citizenship and the application fails, that will not affect that person's permanent residence status. That is probably the category about which he is most concerned. If a person with probationary citizenship
applies for citizenship, it will be open to that person to apply for permanent residence once he or she has accumulated the right amount of qualifying leave, as set out in clause 41. It will also be open to the Secretary of State to grant further probationary citizenship. What will happen to the individual concerned will depend on his or her settlement rights-backed up by the European convention-rather than citizenship rights.
Hon. Members on both sides of the House have raised the important issue of transitional arrangements. I told the Committee that I would return to the issue. The original clause 39 was found not to be acceptable. I trust that Government amendment 17, tabled in the name of my right hon. Friend the Home Secretary, alongside assurances that I intend to give the House will address the concerns raised by hon. Members about transitional arrangements. I am also announcing today that, as part of our package of transitional measures, we have decided that to give those who are currently in the UK on a route to settlement time to adjust to the new system, we will allow the earned citizenship provisions to commence in July 2011.
I believe that I said on Second reading-I certainly said it in Committee-that I support the idea of transitional arrangements. The court ruled on the highly skilled migrants programme. Of course we accepted that, and I personally accept that in such cases there is a reasonable expectation for application for status. That is not the case in the other categories, as we established in Committee. The precedent set in court established that there is no reasonable expectation in law. However, we understand the point that has been made.
New clause 7 attempts to reinstate much of the old clause 39. It would provide for a one-year period after commencement in which migrants may apply for indefinite leave to remain or for citizenship under the current rules. I explained in Committee why part 2 is not an appropriate context in which to deal with applications for indefinite leave to remain. I hope that hon. Members will understand why clause 39 was removed in the first place, and why it is preferable to amend clause 59. I believe that I can provide the assurances that have been sought.
Amendment 23 seeks to deal with those who arrived here on the highly skilled migrants programme. I explained in Committee that the Government would of course honour obligations under the judgments to allow HSMP migrants covered by the judgments of the court to apply for indefinite leave to remain. We do not accept that HSMP migrants have a legitimate expectation to be able to apply for citizenship as amendment 23 suggests,
but I hope that after I have explained our proposed package of transitional arrangements, the hon. Member for Ashford (Damian Green) will accept that they are fair and will not press the amendment to a vote.
I am happy to accept that some provision in the Bill is desirable to provide sufficient clarity and assurance in relation to any transitional provisions. That is the point on which the hon. Gentleman pushed me. Other matters are set out better and in more detail in the commencement order giving effect to part 2.
Government amendment 17 requires the commencement order giving effect to the earned citizenship provisions in the Bill to set out transitional arrangements for certain groups. We have made clear in legislation that people who apply for citizenship before the earned citizenship provisions are commenced will be treated under the current system-that is, they will not be subject to the earned citizenship provisions. We have also made it clear that people who already have indefinite leave to remain when the earned citizenship provisions commence, and people who apply for ILR before the provisions commence and whose application is successful, will be eligible to apply for citizenship under the current system, provided that they apply within two years of commencement. That deals with the point made by the hon. Gentleman in Committee.
For the avoidance of doubt, let me reassure the House that although Government amendment 17 does not specifically make provision for migrants with a pending application for ILR submitted but not decided before the rules are changed following commencement, those people will have their ILR applications considered under the existing rules. The law requires that. As I have said, the Bill is not the appropriate place to set out transitional arrangements for applications for ILR, and I am making this statement on the record in order to provide clarity.
I believe that, taken together, the Government amendment and the statement I have just made about how we will treat applications for ILR meet the intention behind new clause 7(b). On that basis, I hope that I have satisfied the House that the transitional arrangements are fair.
Finally, there is the issue of continuous employment. I gave assurances to the Committee that sensible arrangements could be made. I said that if people lost their jobs through no fault of their own, they would be given reasonable opportunities-commensurate with employment law, as agreed in the Employment Acts-that would provide the flexibility that they sought.
I hope that I have answered hon. Members' questions and that I have made the proposed amendments that I undertook to make in Committee. My hon. Friend the Member for Walthamstow asked me to confirm the situation regarding the commencement order. The amendment prevents us from doing anything more restrictive in the commencement order regarding those individuals whom it covers. It does not prevent us from extending the protection by making further transitionals for other groups. I hope that that satisfies him.
(4) Gurkhas discharged from the British Army prior to 1997 shall have parity with Commonwealth servicemen in terms of the requirements for indefinite leave to enter and remain in the United Kingdom.'.- (Chris Huhne.)
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