The Committee consisted of the following Members:

Chairmen: Miss Anne Begg, Mr. Roger Gale, † Sir Nicholas Winterton

† Anderson, Mr. David (Blaydon) (Lab)

† Blunt, Mr. Crispin (Reigate) (Con)

† Brake, Tom (Carshalton and Wallington) (LD)

† Burns, Mr. Simon (West Chelmsford) (Con)

† Green, Damian (Ashford) (Con)

† Gwynne, Andrew (Denton and Reddish) (Lab)

† Hamilton, Mr. David (Midlothian) (Lab)

† Holloway, Mr. Adam (Gravesham) (Con)

† McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)

† McCarthy, Kerry (Bristol, East) (Lab)

† McDonagh, Siobhain (Mitcham and Morden) (Lab)

† Prosser, Gwyn (Dover) (Lab)

† Rowen, Paul (Rochdale) (LD)

† Walker, Mr. Charles (Broxbourne) (Con)

† Wilson, Phil (Sedgefield) (Lab)

† Woolas, Mr. Phil (Minister for Borders and Immigration)

Gosia McBride, Chris Shaw, Committee Clerks

† attended the Committee

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Public Bill Committee

Tuesday 16 June 2009

(Morning)

[Sir Nicholas Winterton in the Chair]

Borders, Citizenship and Immigration Bill [Lords]

Written evidence to be reported to the House

BC 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 Minister for Borders and Immigration (Mr. Phil Woolas): No, Sir Nicholas.

The Chairman: I always take the word of a Minister. There was no electronic device.

Mr. Simon Burns (West Chelmsford) (Con): Wrong 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.

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Clause 48

Good 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 want—or, 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 days—that is what those figures mean in time terms—so 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.

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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. Gentleman’s 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 Government’s 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

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character requirement for naturalisation—not indefinite leave to remain—since 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 Wales—it 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 Majesty’s 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 them—a set time after which they will be prepared to disregard a person’s 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

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person’s conviction not to be held against them—for it to become spent—after 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 way—in a magistrates court or a Crown court—because 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 amendment—should 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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Prepared 17 June 2009