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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.
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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