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Session 2008 - 09 Publications on the internet General Committee Debates Borders, Citizenship and Immigration Bill [Lords] |
The Committee consisted of the following Members:Gosia McBride,
Chris Shaw, Committee
Clerks attended the
Committee Public Bill CommitteeTuesday 16 June 2009(Morning)[Sir Nicholas Winterton in the Chair]Borders, Citizenship and Immigration Bill [Lords]Written evidence to be reported to the HouseBC
01 STEP, UNISON and Law Centre (Northern
Ireland)
10.30
am
The
Chairman: I welcome all members of the Committee to this
sitting. It is a very pleasant day; I hope that the sun, with a few
clouds[Interruption]. Did I hear an
electronic device, Minister?
The
Chairman: Anyway, I welcome you all and I am sure we shall
continue to make progress. Before we begin, however, I inform the
Committee that Officers of the House, printers, Ministers and Members
of Parliament are not infallible. There was a printing mistake on the
amendment paper before the Committee at its first sitting. The
resolution agreed by the Programming Sub-Committee, which I chaired,
stated that the Committee should meet at 4.00 pm this afternoon, rather
than 4.30 pm. Unfortunately, the motion before the Committee
at its first meeting stated 4.30 pm. I am, however, very much of the
view that although we have strict procedures in this place, flexibility
when agreed across the Floor by the usual channels and Back-Bench
Members can prevail. I understand that there is an agreement between
the usual channels that they would like to return to the
4.00 pm start time this afternoon. To get things utterly
correct, therefore, I invite the Minister to move a motion amending the
Programme Order
accordingly. Ordered That
the Programming Order of 9th June be
amended Line
6, Leave out 4.30 pm and insert 4.00
pm. [Mr
Woolas.]
The
Chairman: That is extremely satisfactory. We can now
proceed with the Bill. We have reached clause 48, and I have selected
amendment 56 in the name of the hon. Gentleman from that
famous constituency of Ashford.
Clause 48Good
character
requirement Damian
Green (Ashford) (Con): I beg to move
amendment 56, in clause 48, page 39, line 3, at end
insert (4A) In this
section a person is not considered of good character if they have been
convicted of any offence that is triable on
indictment.. The
purpose of the amendment is to explore one of the slightly unclear
notions on the face of the Bill by inserting a new subsection (4A). I
wish to explore what the Minister means, and what the legislation
purports to mean, by of good character, because that
underlies one of the key points of this part of the Bill on
citizenship. I think it would clearly be uncontroversial across the
Committee that people who are to be granted British citizenship should
be of good character, so it is worth while for us to have a debate on
what constitutes being of good
character. The
background illustrates why the debate is so important: over the past 12
years under the Government, the number of grants of citizenship is at
an all-time high. The number has more or less quadrupled since 1997;
indeed, in 2007, the last year for which figures are available, the
annual increase was itself 7 per cent. and the number was 164,635. By
comparison, only 37,010 people were granted citizenship in
1997.
It is not for
the Committee, while debating the amendment, to discuss whether that is
a good or bad thing. However, from the tone of everything the Minister
has said during our Committee debates and, indeed, since he became the
Minister for Borders and Immigration, I imagine that he thinks that
percentage is too much and that he is trying to slow down the flow.
Indeed, this part of the Bill makes the process more difficult, as
evinced by many of the protests that we are getting from people who
will find it so.
To some
extent, we can regard this part of the Bill as the Government slightly
belatedly addressing the fact that the current test and regulations may
not have fulfilled all the criteria that the Minister would
wantor, indeed, that many others would want. The specific
purpose of our amendment is to cover anyone who has been convicted of a
serious offence, to ensure that they cannot be defined as being of good
character and, therefore, eligible for a grant of
citizenship.
A new British
passport is granted every five minutes these daysthat is what
those figures mean in time termsso we need to be absolutely
sure that every one of those new passports goes to someone who will
play a positive role in the life of this country. I assume that the
Minister agrees that anyone convicted of a serious crime would not be
covered under any definition of good character, so our amendment has
the wording,
any offence
that is triable on
indictment, which
covers crimes that are triable either in court and indictable, or
triable only in a Crown court. It is quite deliberately set at that
level so that we exclude summary offences, such as motoring offences.
There is always a balance to be struck in such definitions; we are not
simply trying to exclude everyone who may have committed what most
people would regard as minor offences, but we do particularly want to
stop violent criminals.
Violent crime
is growing alarmingly fast in this country, and one of the areas of
particular resentment is when people discover that a violent crime has
been committed by someone who may not have leave to remain here. That
has knock-on effects on public confidence not just in the criminal
justice system but also in the immigration system, so any move to
clarify the position in respect of the commission of a violent crime by
anyone who intends to settle in this country and gain citizenship will
be an important step forward. To a large extent, I imagine that the
Minister would agree. I am not trying to open up any particular
controversy with the amendment, I am just seeking clarification about
what the Government
mean.
Tom
Brake (Carshalton and Wallington) (LD): If I understand
the hon. Gentlemans amendment correctly, he is seeking to
ensure that applications will not be considered if applicants have been
convicted
of, any
offence that is triable on indictment.
Could he clarify
whether that is the same as anyone guilty of committing a criminal
offence?
Damian
Green: Not quite, because, as I have just explained,
certain minor offences are not covered by being triable on indictment.
I suspect that the whole Committee would agree that they might not wish
such things as parking fines, or even minor motoring offences, to be
covered. We might not wish automatically to exclude people for ever
from obtaining British citizenship for that kind of offence; equally,
there will be no controversy about the fact that anyone who has
committed a serious offence should not be considered as of good
character and, therefore, should not be eligible for citizenship.
Triable on indictment is the term of art that one can
use to say, in essence, that it would catch most people who have
committed criminal offences, apart from the most trivial ones. As I
said, it is an exploratory amendment and I hope the Minister will agree
with
it.
Mr.
Woolas: I thank the hon. Member for Ashford for tabling
amendment 56 and the hon. Member for Carshalton and Wallington for
tabling amendment 54. It gives me the opportunity to
explain
The
Chairman: Order. May I advise the Minister that I have
selected separately amendment 54, which he has just mentioned? There
will be a separate debate on that
amendment.
Mr.
Woolas: Thank you, Sir Nicholas. I was premature in my
thanks to the hon. Member for Carshalton and Wallington. I was simply
trying to recognise what I believe to be the good intent behind the
amendments, which seek to explore the Governments
intentions. If
you will allow me, Sir Nicholas, I refer the Committee to page 35 of
the explanatory notes, which provides the context for clause 48. With
the clause, we are moving the existing law on the requirement of good
character from the Immigration Act 1971 into nationality law. As I
mentioned in our opening sitting, this is part of the jigsaw puzzle
that is trying to prepare the way for the simplification Bill. The
clause shows the beautiful symmetry of our legislation and I hope that
the Committee will support
it. Amendment
56, which was proposed by the hon. Member for Ashford, addresses the
understanding and definition of good character. There has been a good
character requirement for naturalisationnot indefinite leave to
remainsince the British Nationality Act 1981, which came into
force on 1 January 1983. That requirement was subsequently added to by
other registration provisions, particularly those in section 58 of the
Immigration, Asylum and Nationality Act 2006. The requirement applies
to adults and minors over the age of 10. We chose 10 as it is the age
of criminal responsibility in England and Walesit is not the
same in overseas dependencies or Scotland, but we thought it was
consistent with common sense. There is no definition of good character
in the 1981 Act. Thus, there is no statutory guidance as to how the
requirement should be interpreted or tested. The amendment is extremely
helpful in teasing that
out. Let
me explain why we prefer that approach. In considering whether the good
character requirement is met, we have taken into account a range of
criteria. We would not expect to naturalise a person if they did not
respect or were not prepared to abide by the law, if their financial
affairs were not in order, if their activities were notorious and cast
serious doubt about their standing in the community, if they had
practised deceit in their dealings with the Home Office, the Department
for Work and Pensions or Her Majestys Revenue and Customs, or
if they had assisted in the evasion of immigration control. All
applicants over the age of 10 are subject to criminal
records checks; the exceptions are applications from British nationals
to register as British citizens and applications from certain stateless
persons. Results from checks against the police national computer are
considered, as are Interpol notices. Where applicants are identified as
subject to international arrest warrants, the police are advised and
extradition is
considered. 10.45
am The
policy on criminal convictions has recently been tightened. Until 31
December 2007, the agency applied clear periods, as we
call thema set time after which they will be prepared to
disregard a persons conviction. These were generally shorter
than the rehabilitation periods set out in the Rehabilitation of
Offenders Act 1974. On 5 December 2007, however, the then
Home Secretary announced a new policy which came into force
on 1 January 2008. Any applications for citizenship received on
or after that date are normally refused if the applicant has a
conviction that has not become spent under the 1974 Act. It is that
read-across that answers the question put by the hon. Member for
Ashford. We
would not normally expect to grant citizenship to a person with a
conviction that he has not spent under that Act. That includes people
who have been to prison and those with non-custodial sentences. There
is discretion to grant citizenship to an individual with a single
unspent conviction resulting in a bind-over, conditional discharge or
relatively small fine or compensation order where the applicant is of
good character in all other respects. Typically, it is used for
regulatory offences such as a speeding
offence. The
amendment seeks to bar from citizenship anyone who has a conviction for
an offence that can be tried on an indictment. In my view, the
amendment does not consider the purpose and effects of the
Rehabilitation of Offenders Act 1974, which meets the point the hon.
Member for Ashford is making. The Act provides for a
persons conviction not to be held against themfor it to
become spentafter a specified period, except in relation to
certain sentences, including custodial convictions of more than 30
months. As worded, the amendment would catch only indictable offences
and also offences that are triable either wayin a magistrates
court or a Crown courtbecause an indictable offence can be
heard, in some cases, in either. That does not, therefore, parallel the
1974
Act. In
any event, either-way offences range from unlawful wounding to
shoplifting and it is likely that many people convicted of such
offences will not receive custodial sentences. Even for offences
triable only on indictment, it is entirely possible that a sentence of
30 months or less could be set down by the court. The amendment has the
effect of proposing that we disregard the fact that the 1974 Act would
currently class such a conviction as having become spent.
From what
hon. Members, including the hon. Gentleman, have said, they would not
wish to include those whose convictions were spent under that
legislation as that would be contrary to the principles of the British
justice system. The amendment would preclude many people who have spent
offences from acquiring British citizenship and therefore could be
described as too punitive. However, I reiterate the point
that a person who has a conviction that will never become
spent, meaning that they have received a sentence of 30
months or more for their crimes, is not normally regarded as satisfying
the good character requirement. It was the intention of my noble
Friends in the other place to ensure that people who commit serious
crimes do not have an avenue to acquire British citizenship. I can
reassure the Committee that that is already Government
policy.
As to the
associated question that arises from the amendmentshould the
requirements of good character be established in primary legislation,
rather than be at the discretion of the Secretary of State?we
take the view that it is prudent to continue to apply the
character test in its current form via the
discretion rather than by establishing specific requirements in primary
legislation. The reason is that it enables the Secretary of State of
the day to continue to exercise discretion in exceptional cases. For
example, there might be an applicant for citizenship who had not had
criminal convictions but it might be that information held by the
police would nevertheless mean that the Home Secretary could not be
satisfied that he or she was of good character. Conversely, there might
be exceptional circumstances in which the Home Secretary might want to
grant citizenship to someone with an unspent conviction. Applying the
good character test by way of the existing discretionary powers also
gives the Home Secretary the option to overlook minor regulatory
offences, such as
speeding.
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