 House of Commons |
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 CommitteeThursday 18 June 2009(Morning)[Miss Anne Begg in the Chair]Borders, Citizenship and Immigration Bill [Lords]New Clause 3Common
Travel Area ‘(1) In section
1(3) of the Immigration Act 1971 (c. 77) (general principles: the
common travel area), for the words from the beginning to “a
person” substitute “A person who arrives in the United
Kingdom on a local journey from any of the Islands or the Republic of
Ireland shall not”. (2)
In section 11(2) of that Act (meaning of disembark and embark), in
paragraphs (a) and (b), omit “or elsewhere in the common travel
area”.’. —(Mr.
Woolas.) This
amendment reinstates the clause as introduced. It removes provision in
the Immigration Act 1971 stating that persons arriving in/departing
from the UK from/to another part of the CTA are not subject to control
and changes the definition of disembark and embark in relation to the
CTA.
Brought
up, and read the First
time. 9
am Question
put, That the clause be read a Second
time. The
Committee divided: Ayes 6, Noes
5.
Division
No.
7] AYESNOESQuestion
accordingly agreed to.
New clause
3 read a Second time, and added to the
Bill.
New Clause 4Transfer
of immigration or nationality judicial review
applications ‘(1) In section
31A of the Supreme Court Act 1981 (c. 54) (England and Wales:
transfer from the High Court to the Upper
Tribunal)— (a) in
subsection (2), for “, 3 and 4” substitute “and
3”, (b) in subsection
(3), for “, 2 and 4” substitute “and 2”,
and (c) omit subsection
(7). (2) In section 25A of the
Judicature (Northern Ireland) Act 1978 (c. 23)
(Northern Ireland: transfer from the High Court to the Upper
Tribunal)—
(a) in subsection (2), for “, 3 and 4”
substitute “and
3”, (b) in subsection
(3), for “, 2 and 4” substitute “and 2”,
and (c) omit subsection
(7). (3) In section 20 of the
Tribunals, Courts and Enforcement Act 2007 (c. 15) (Scotland:
transfer from the Court of Session to the Upper
Tribunal)— (a) in
subsection (1)(a), for “, 2 and 4” substitute “and
2”, (b) in subsection
(1)(b), for “, 3 and 4” substitute “and 3”,
and (c) omit subsection
(5).’. —(Mr.
Woolas.) This
amendment reinstates the clause as introduced. It removes restrictions
on transferring judicial review applications, with the effect that,
subject to the other specified restrictions, judicial review
applications relating to immigration or nationality decisions can be
transferred to the Upper Tribunal.
Brought
up, and read the First
time. Question
put, That the clause be read a Second
time. The
Committee divided: Ayes 6, Noes
5.
Division
No.
8] AYESNOESQuestion
accordingly agreed to.
New clause
4 read a Second time, and added to the
Bill.
New Clause 1The
Ilois: citizenship ‘In
section 6 of the British Overseas Territories Act 2002 (c. 8) (The
Ilois: citizenship) omit subsection (2).’.—(Tom
Brake.) Brought
up, and read the First
time.
New clause
6—Stateless children of British
nationals— ‘(1) Schedule
2 to the British Nationality Act 1981 (c. 61) (amendments to
Immigration Act 1971) is amended as
follows. (2) In paragraph 4,
omit sub-paragraph (1)(c). (3)
In paragraph 4, for sub-paragraphs (2)(a) and (2)(b) substitute
“shall be registered under it as
a— (a) British citizen,
or (b) in the case of a child
whose mother or father is, or would have been but for their death, a
British overseas territories citizen, as a British overseas territories
citizen.”. (4) In
sub-paragraph (4) of paragraph 4, for “sub-paragraphs
(1) to (3)” substitute “sub-paragraph
(1)”. (5) In
sub-paragraph (4) of paragraph 4, after “British Overseas
Citizen”, insert “British National
Overseas”.’.
New clause
7—Legitimacy— ‘(1)
The British Nationality Act 1981 (c. 61) is amended as
follows. (2) After section 4C
insert— “4D
Acquisition by registration:
legitimacy (1) A person is
entitled to be registered as a British citizen
if— (a) he applies for
registration under this section;
and (b) he satisfies each of
the following conditions. (2)
The first condition is that the person was born before 1 July
2006. (3) The second condition
is that the person is not already a British
citizen. (4) The third
condition is that the father of the child satisfies any requirements as
to proof of paternity prescribed under section 50(9B) of this
Act. (5) The fourth condition
is that the person would have been a British citizen had his father
been married to his mother at the time of his
birth.”’. This
amendment makes provision for those born before 1 July 2006 to British
fathers not married to their mothers to register by entitlement as
British
citizens.
Tom
Brake: It is a pleasure to serve under your chairmanship
this morning, Miss Begg. The first of these three new clauses is the
Ilois or the Chagos islands amendment. I cannot remember whether it was
on Second Reading or in Committee that the Minister or perhaps the
Secretary of State suggested that some Members were jumping on a
bandwagon in relation to the Chagos islands.
[Interruption.] It was not him. Perhaps it was the
Secretary of State on Second Reading. I should like to reassure the
Committee that this is certainly not a bandwagon that Liberal Democrats
are jumping on now. It may have been a bandwagon that we jumped on many
years ago. I recall speaking in a debate with the hon. Member for
Islington, North (Jeremy Corbyn) about this six or seven years ago. So
it is not a recent arrival. It is not something that has just hit our
radar.
Clearly now
is not the time to debate the injustices that have been done to the
Chagos islanders. That is a matter that has been debated many times in
the House and there have been many reports on it, but it is not the
subject of today’s debate on new clause 1. The subject of new
clause 1 is simply to consider the rights of the Chagos islanders, or
the Ilois, and their descendents to full British citizenship. That is
what the new clause seeks to achieve.
I want to
quote some things that have been said about the injustices that I have
just referred to. Members of the Committee will have read the judgment
of Lord Hoffmann, who described “the whole sad story” of
the Chagos islanders, saying
that “the
removal and resettlement of the Chagossians was accomplished with a
callous disregard of their
interests”. Through
new clause 1, we can perhaps go some way towards redressing those
injustices and that “callous disregard” of the
Chagossians’ interests.
Although
Ministers have recognised that an injustice was committed, it is fair
to say that their statements of concern have not been of particular use
to the Chagos islanders. New clause 1 would be of great use. As I have
said, it is about considering the rights of the Chagos
islanders’ descendents to full British citizenship.
Members of the
Committee may be aware that, under section 6 of the British Overseas
Territories Act 2002, a person who was born after 26 April 1969 and
before 1 January 1983 to a woman who was a citizen of the United
Kingdom’s colonies by virtue of her birth in the British Indian
Ocean Territory and who is neither a British citizen nor a British
overseas territory citizen immediately before commencement of section 6
became a British citizen by descent. To summarise that in a way that is
perhaps more digestible, what it means is simply that those people are
not able to transmit citizenship automatically to their children. That
is the key point that we are discussing today. The new clause would
ensure that, by omission of section 6(2) of the 2002 Act, those people
would become full citizens and thus would be able to pass on their
citizenship to their own children.
I hope that
other Members of the Committee will agree that that is something that
we have a responsibility to do, because of the circumstances in which
the Chagos islanders were dispossessed of their own homes, and in many
cases forced to go to Mauritius. I also hope that the Minister will use
this opportunity to take a positive step in this regard. We know that
in 2002 there were intentions to address this issue, but those
intentions were not fulfilled.
New clause 1
sets the scene and, as I say, hopefully it will give the Minister an
opportunity to address the Committee and explain what action the
Government are going to take on this issue.
New clause 6
is entitled “Stateless children of British nationals”.
Again, I must say that I am afraid that these citizenship and
immigration issues are quite complex and discussing them requires that
a fair chunk of information is read into the record, to ensure that
there is a reasonable understanding of what our proposal is about. The
purpose of new clause 6 is to ensure that stateless children born after
1 January 1983 to “British nationals”, which includes
British citizens, British overseas territories citizens, British
overseas citizens, British nationals (overseas) and British subjects,
wherever they are in the world, are entitled to be registered as
British citizens, and that the children of British overseas territory
citizens can be registered as both British citizens and British
overseas territory citizens.
By way of
giving a couple of examples, I will explain exactly what that means. A
relatively small number of people would be affected by new clause 6. My
understanding is that this is not an issue that affects tens of
thousands of people. It affects small numbers of people—tens of
people. Therefore, if the Government were concerned that new clause 6
might open the doors to significant numbers of new British citizens, I
must say that I do not believe that that is the case. Perhaps the
Minister will stand up and contradict me on that point; we will wait
and see.
A British
citizen born outside the UK under British overseas territories will be
a British citizen by descent. As I stated earlier, that means that they
cannot automatically transmit their citizenship to their children. In
addition, a British overseas territories citizen born outside the
overseas territories will be a British overseas territories citizen by
descent; again, he or she will not be able to transmit citizenship to
his or her children. For the children of British citizens and British
overseas territories citizens, it is not always possible to satisfy
existing provisions for registration to obtain those citizenships
for want of compliance with residence requirements in the UK or a
British overseas territory. Moreover, in certain circumstances, where
the state of residence prohibits the acquisition of
nationality—often on racially discriminatory grounds—this
leaves the children of such persons stateless. That is what this is
about: stateless children—children who, in effect, have no
rights. In
addition, British overseas citizens and British subjects are not able
to transmit that citizenship or status, as the case may be, by descent
to their children. This also has the effect of rendering such children
stateless, where the state of residence prohibits the acquisition of
its nationality. Thus the statelessness of children may arise in
circumstances where the state in which they live does not provide for
the acquisition of its nationality and there is no mechanism for the
children to acquire the British nationality of their
parents. All
over the world there are small pockets of stateless children who have a
link through their parents’ nationality or citizenship to the
UK. The UK has accepted that their parents are entitled to a form of
British nationality and therefore to some protection and assistance
from the UK. Most families with parents who are such British nationals
identify with the UK and are treated as identifying with the UK by the
state in which they
live. The
Immigration Law Practitioners’ Association—I know the
Minister enjoys their briefings and talks to them on a regular
basis—has examples of children of British citizens of Asian
descent resident in Zambia and the surrounding former British colonies
in eastern and southern Africa, who have been rendered stateless by
strict domestic citizenship laws and restrictive policies preventing
them from registering as British citizens or as British overseas
citizens. While there are no official statistics on how many children
in Zambia are affected, it is conservatively estimated that about 20
children, not 20,000 or 200,000, of Asian descent resident in Zambia
are affected by statelessness. In June 2004 Lord Patel of Blackburn
surmised that about 40 to 50 British families of Asian descent whose
children were born after the country's independence were
affected. I
shall go into the detail of one particular case to illustrate further
the point I am making. The case is that of a British citizen of Indian
origin resident in Zambia—hereinafter called “A”
to simplify matters. He is a professional member of the community. He
was a citizen of the UK and colonies by descent without a right of
abode. On commencement of the British Nationality Act 1981, A became a
British overseas citizen. His father, who moved to Zambia from India in
1953 as a result of the British Government's incentives, was registered
as a citizen of the UK and colonies in 1955. He was automatically
reclassified as a British overseas citizen on commencement of the 1981
Act. A’s mother, also of Indian origin, joined her husband in
what was then Northern Rhodesia in 1957. She was registered as a
citizen of the UK and colonies on the basis of her marriage in 1967. On
1 January 1983 she was automatically reclassified as a British
citizen. A
married, first in a religious ceremony in Zambia and then in a civil
ceremony in the UK in 1985. His wife, born in India, registered as a
British overseas citizen in 1990 when the couple were living in the UK.
A
acquired indefinite leave to remain in the UK without a right to
re-admission. The couple’s first two daughters were born in the
UK in 1985 and 1991 and were thus British citizens by birth. In 1992
the family had to return to Zambia due to A’s increasing ill
health. A’s younger two daughters were born in Zambia in 1993
and 1996; both have been stateless since birth—this is the
important point. Despite numerous attempts made by A to register his
younger daughters as Zambian citizens, he has been persistently
informed that they are not eligible for Zambian citizenship nor do they
have a realistic prospect of acquiring it in the future under the
country’s citizenship laws. Zambian authorities have also been
reluctant to issue travel documents to the
children. 9.15
am On
two exceptional occasions, they agreed to issue temporary travel
documents allowing the children to leave and return to Zambia, on the
understanding that no further applications would be entertained in the
same way, other than to issue one-way-only travel documents.
Meanwhile, A
has made several unsuccessful applications to register his daughters
under section 3(1) of the British Nationality Act 1981. He has made
representations through MPs since 1999. In all his efforts A has been
unequivocally rebuffed, with neither Zambia nor the UK taking
responsibility for the children. As a result, the two daughters remain
stateless. They are unable to visit extended family members in India
and the UK. Should they ever contract a serious illness or suffer an
accident the effects of which cannot be treated locally, it would be
necessary for them to be airlifted to South Africa, where treatment
could be administered—that has become common practice in such
cases. However, as stateless children, they would not be able to
travel. On
one occasion, the Home Office suggested that A and his family move to
the UK so as to resolve the two daughters’ statelessness. They
would have to travel on a one-way travel document as they are not
entitled to passports from any country in the world. They have no
guarantee that the move would achieve the desired result, as the
discretion to register them as British under section 3(1) has never
been exercised in their favour. It would also involve leaving the home
and country in which they have grown up, to lead a precarious and
complicated existence as stateless children in the UK.
The Committee
will probably be pleased to hear that that will be the only example I
give, but it well illustrates the issue. It is a small-scale issue but
one which is of huge importance to a small number of children who are
stranded in different parts of the world.
The purpose
of new clause 7 is to make provision for those born to fathers not
married to their mothers to register as British citizens. As I am sure
the Minister knows, before 1 July 2006 British fathers could not pass
on their British nationality to children born outside marriage. The new
clause affects children born to fathers who were British citizens; it
affects those born in the UK after 1983 to such fathers and to a mother
who is not British nor settled in the UK. Before 1983, a child born in
the UK was a British citizen. It also affects children born in a
qualifying territory and children born outside the UK where the mother
was not a British citizen otherwise than by descent.
As Members may
know, section 9 of the Nationality, Immigration and Asylum Act 2002
changed the law, amending the British Nationality Act 1981 so that
children born to British fathers not married to their non-British,
non-settled mothers were born British if their fathers could prove
paternity. However, it only did so for those born after 1 July 2006,
the day on which the provisions were finally given full effect. It did
nothing to correct the present-day effects on children and young adults
of the historic injustice and discrimination against men.
The new
clause would allow those not considered British citizens—only
because they were born to British fathers not married to their
mothers—to register as such. The new clause assists those born
in the UK after 1983. For those born outside the UK to fathers who are
British citizens otherwise than by descent, it would assist those still
living.
I hope the
Minister will agree that the new clauses are sensible
proposals—relatively minor amendments to the law. The issues are
about justice, whether for Chagos islanders or for families where the
father did not happen to be married to the mother. I hope the Minister
will give me some assurance that the Government will not only
acknowledge but will be willing to take action on those
issues. Damian
Green (Ashford) (Con): This is an interesting set of
questions for the Minister. The Library note for the Bill is
instructive. It makes a very important point about the labyrinthine
complexities of nationality legislation. We have had so many Bills over
the years that there are now many anomalous situations, many of them,
as the hon. Member for Carshalton and Wallington just pointed out,
affecting very small groups of people, but which can nevertheless give
rise to genuine human
misery.
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