Damian
Green: To put this part of the Minister’s
explanation in context, can he give us any idea—I appreciate
that it will be rough—of the number of times that the
Home Secretary’s discretion has been exercised in the past few
years? In particular, how has it been exercised? Is it more
likely that the Home Secretary will bar someone who would otherwise be
disqualified, or let in someone who would otherwise not be qualified?
That information would be helpful to the
Committee.
Mr.
Woolas: It is a difficult question. I agree with the hon.
Gentleman’s intent on citizenship—I take what he said as
a compliment. I can give him some overall statistics. In the period
2003-08, 9,732 applications were refused on good character grounds.
Those are total refusals, which does not answer the specific point that
he
made. The
hon. Gentleman gave figures about the increase in citizenships. Some of
that is as a result of our doing things more quickly and better, so the
number will flatten out—one should not take the steepness of the
slope as a trajectory for the future; it reflects, in part, better
processing and is something that, presentationally, we suffer from. On
the specific question of how many people are in the former category and
how many in the latter, I will have to come back to the hon. Gentleman.
It is a very interesting question. If we were to put that rigid
criterion, particularly on the former category, in immigration law, it
would take away that discretion. There could be a situation whereby a
person the authorities had good reason to believe might not be of good
character, but who did not have a conviction as described under the
1974 Act, could not be excluded on those grounds, and we would be
challenged, in practice, in the courts, including, I suspect, in
foreign courts. I do not have official figures on the two examples I
have given, I am afraid. I will have to investigate and come back to
the hon. Gentleman on
that. I
certainly agree with the intent; indeed, I go a bit further. I think
that the specific problem—I am not trying to score points on the
indictable element—is the twin court approach; it could be a
magistrates court or a jury court. Having said that, we believe it is
right to define what we mean by good character, using the legislation
that is about that—the 1974 Act—and apply that to
immigration and allow that discretion. I hope that helps in providing
the information that the amendment seeks to draw
out.
Damian
Green: I am grateful for that explanation, which is half
satisfactory. I appreciate everything the Minister said about the
read-across from the 1974 Act and how it is important to maintain
consistency there. That is a valid point and I can see why he might
regard that as superior to the formulation we have come up with. I note
en passant, however, that this may be one of the few times since the
Minister took office when he has found something that we have suggested
more draconian than what he is prepared to support. There is a small
historic footnote to be made
here.
Mr.
Woolas: It depends how you use the
discretion.
Damian
Green: Indeed so. I was going to come on to the
discretion which the Minister has just talked about from a sedentary
position, because that is where I am less satisfied. The second part of
the explanation he has just given was explaining the legislative basis,
which anyone applying for citizenship could look at, could find out
about, particularly in the wake of this debate, as a result of which
they would know whether they had committed an offence that meant they
were not of good character and would not be eligible for British
citizenship. It seems that if we are passing laws in this place, that
kind of clarity is something to which we should aspire, so that part of
the speech was fine. In the first part,
however, the Minister said there were a number of
other considerations that—as he put it—“we take
into account”. They were all fairly vague: whether there were
financial offences or financial difficulties, and so on.
That led in
to the Minister’s final point about the Secretary of
State’s discretion, which can be applied both ways. The
Committee ought to be slightly worried about that. Allowing the Home
Secretary and Home Office of the day so much discretion to decide on
something as important as whether people are of good character or not,
makes me uneasy—particularly as Committee members are seeing no
hard and fast rules and criteria that the Home Secretary is obliged to
apply. One can imagine periods where Home Secretaries might be
encouraged either to be unnecessarily draconian, or unnecessarily lax,
for certain groups of people that might have engaged the public
imagination. It might go either way, with people saying, “These
people must be granted citizenship”, or “These people
must not, under any circumstances, be granted citizenship.” The
principle of the Home Secretary’s having that degree of
discretion about issues as important as not only granting citizenship,
but also the formal decision about whether somebody is of good
character or not, concerns me. That sort of thing ought to be set down
in legislation.
I accept the
Minister’s explanation of the objective criteria that had been
used since the 1981 Act, and why those may be superior to the objective
criteria in our amendment. However, the less objective parts of his
explanation should give the Committee some pause for thought because
they allow too much discretion to the Home Secretary of the day. I
will, with the Committee’s permission, withdraw the amendment,
but the debate has been useful because it has given rise to that
unease, and I would hope the Minister will consider that for future
stages of the
Bill.
Mr.
Woolas: I think the question I was unable to answer is
important. The numbers will give us a better idea. I will return to
that
point.
Damian
Green: I am very grateful, and my question was asked
partly to elucidate the practical effects of the uncertainty around the
edges. However, whatever the numbers are, there is a principle at stake
about what kind of discretion Ministers should have in that area, when
it is perfectly possible to find objective criteria. There could be
criteria that people either pass or fail—that could be discussed
openly by the House, be passed into legislation and then be known to
everyone involved in the sector—or there could be this pattern
of discretion around the edge. Perhaps, as a principle in this kind of
decision making, the less discretion, the better. However, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
11
am
Tom
Brake: I beg to move amendment 54, in
clause 48, page 39, leave out lines 6 to
11. This amendment removes
Hong Kong war wives and widows from the list of those who must satisfy
a good character requirement to register as
British. This
is a simple amendment, the effect of which is to remove the requirement
of a good character test for those Hong Kong war wives and widows
eligible to
register as British citizens. That would apply to
very few women. In the House of Lords, Lord Brett stated that only 53
women had ever been eligible to apply under the provision, and that
there had been no applications for the past eight years. The amendment
would support the Government’s intention to simplify the law as
it relates to British citizenship. I hope
other Members would agree that the circumstances where the Government
are retaining a legal requirement that will never be used in practice
can hardly be considered sensible. I understand the Government have
argued that to remove that character test would set a precedent for
others but I, certainly, support the view expressed by the Immigration
Law Practitioners’ Association; the only precedent it sets is in
applying the good character test where it is silly to do so, because we
know that it will never be used in practice.
I hope
that the Minister will be able to provide some sort of detailed
explanation of why the Government think it necessary to retain such a
good character test for a group of women who are very unlikely at all
ever to need to pass it because, as there have been no applications for
the past eight years and they are, clearly, getting older, the
likelihood of anyone seeking British citizenship by this route is quite
remote. I await the Minister’s response with
interest.
Damian
Green: I simply want to draw the Minister’s
attention to the debate on the same amendment when it was moved in
another place, because I thought that the Minister’s response in
another place was completely admirable. Lord Brett said,
“I shall keep my
response short, if not slow. A powerful case has been made. I have the
brief. The sensible thing is for the Government to reconsider the
issue, and I give that commitment”—[Official Report,
House of Lords, 4 March 2009; Vol. 708, c.
751.] When a
Government Minister in another place looks at his brief and decides
that it is such rubbish that he cannot even bring himself to read it
out, I suggest that the Minister should pay heed. I commend the
openness and honesty of Lord Brett; while he did not quite put it in
the way that I have just done, that is clearly what he meant.
Indeed, as
the hon. Member for Carshalton and Wallington has just said, in
practical terms there is an extremely powerful case to be made, and I
dare say that the Minister will want to address the issue of precedent.
That is clearly the genuine issue that the Committee needs to
assess—whether this would actually be a way to open the
floodgates to large numbers of others of whom the Committee might not
take the same view. Certainly, as now drawn, the amendment will affect
a small and diminishing number of wholly admirable women and it would,
on the surface, appear slightly churlish behaviour by this country to
insist on their meeting these tests.
The
Chairman: The Committee awaits the Minister’s reply
with very considerable interest.
Mr.
Woolas: The hon. Member for Ashford has my brief spot on,
because the arguments in it about the specifics of the hon.
Gentleman’s amendment run to several pages and the argument on
the crucial point runs to two paragraphs. He has predicted my response
with uncanny accuracy. My noble friend Lord Brett,
who brings to the Dispatch Box years of pragmatic
trade union negotiation experience, can spot a good argument when there
is one, and it is his privilege to pass the buck in this
regard.
However, I
have looked at this and the hon. Member for Carshalton and Wallington
is right; his argument is, within itself, powerful. I come to our
analysis of it. The two words—or the acronym plus
word—“ILPA precedent” set alarm bells ringing in
the mind of any self-respecting immigration Minister. We fight, if that
is the right word, a constant ongoing legal battle over precedents in
immigration law. I shall put the background to this on the record, then
ask the Committee to consider the way forward.
The Hong Kong
(War Wives and Widows) Act 1996, which formed part of the arrangements
for the handover of Hong Kong to China, came into force on 18 July
1996. It provides for the discretionary registration as British
citizens of the wives, widows and divorcees of men who fought in the
defence of Hong Kong during the second world war. A woman would be
eligible for registration if she was a resident of Hong Kong, and a
recipient of a letter from the Home Secretary confirming
that she could settle in the UK on the basis of the man’s
wartime service, and if she was no longer married to the man concerned,
had not remarried—to avoid the transfer of rights to the new
husband, or subsequent
husbands. The
1996 Act is unusual in that it applies only to a very small and finite
number of people. It only ever affected, as the hon. Member for
Carshalton and Wallington rightly said, a maximum of 53 women. That is
the number of woman, for the record, who were actually issued with a
letter. A further unique feature of this provision was that, unlike
most other applications for citizenship, there was no fee for
registration, such was the generosity of the Home Secretary. So those
qualifying are treated favourably compared with other
applicants.
As has been
said, the subject was debated in another place, and in recognition of
the particular circumstances of these women, the then Home Secretary
indicated that she would be prepared to consider exercising discretion
on the application in respect of the good character requirement, should
any of these women apply in the future and this issue arose. That
statement has force, not just policy intent; so if one of these women
wished to apply, and had committed an offence that would prevent her
from meeting the good character requirement in normal
circumstances—the guidance on the website on those criteria is
quite specific—the Home Secretary would be willing to consider
overlooking
it. The
Home Secretary also indicated that she would be prepared to consider,
in exercising that discretion, the caveat that, while we are prepared
to exercise that discretion if necessary in these particular
circumstances, we do not think it wise to amend the law in this
respect. To remove the legal requirement in this case would, we are
advised, set a precedent for removing it from other sections, and we
think this is an important requirement for potential citizens to
fulfil. It is indeed that point that we are concerned
about.
Tom
Brake: I just wondered whether the Minister was going to
come on to what other sections he thought this was going to set a
precedent for.
Mr.
Woolas: I am not being evasive, nor am I waiting for
inspiration. The advice one generally receives is that, to mention
those specific precedents could, in and of itself, set the precedent.
It is a
Catch-22—
Tom
Brake: Indicated
assent.
Mr.
Woolas: I am very grateful for the nodding of the head.
The hon. Gentleman is at least recognising the point I am making; he is
not necessarily agreeing with it. Very helpfully and sensibly, Lord
Brett, who has negotiated more agreements than the United Nations in
his time—they have stood better as well, in most
instances—also had a caveat to the passage that the hon. Member
for Ashford read out. He added in column 1095 that the discretion of
the Home Secretary would resolve the problem behind the amendment. So
he recognised that the problem was there, in his common-sense statement
that the hon. Gentleman read out, but he also said the discretion
provision would meet the objectives. I hope I have convinced the hon.
Gentleman that we support the intent regarding Hong Kong; the
discretion is there—the Home Secretary said she would use it,
and that is the policy of the Government—without setting a
precedent that we fear the amendment could
set.
Tom
Brake: I did hear the Minister’s explanation. Other
members will perhaps also have been entertained by the
Minister’s confirmation that making this change might set a
precedent that would be relevant to other clauses. He cannot mention
those other clauses as mentioning them would set a precedent. The
Minister has not entirely elucidated the matter, although I understand
his point. It is regrettable that this minor change has not been made;
it would have been doing the right thing for a small number of women.
However, I understand the Minister’s explanation and therefore I
beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
48 ordered to stand part of the
Bill.
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