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The Earl of Sandwich: The Minister has been most reassuring but I do not believe that this is quite the end of the matter. I shall confer with my noble friend because I believe that further explanation is required before the Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Avebury moved Amendment No. 12:



"( ) Any person aggrieved by a decision of the Secretary of State made under this section may appeal to a county court judge."

The noble Lord said: The amendment is grouped with Amendment No. 87, although the two are concerned with completely different issues, as the Minister will have realised. The first amendment is concerned with the right of appeal of a person who fails the test imposed by Clause 1. As the Bill stands, anyone who does not pass the knowledge test on life in the United Kingdom will automatically be refused citizenship and he will have no right of appeal. I am sure that Members of the Committee will agree that that is not satisfactory.

Without knowing anything about the decisions that will be made as a result of Sir Bernard's committee, we ought to include a provision in the Bill ensuring that people who fail have some kind of right. We suggest that it should be to the county court. I am open to any suggestions that the Minister may have, provided that he accepts the principle.

Amendment No. 87 is of a different order of magnitude because it concerns the refusal of an application for naturalisation. I note that in Clause 7 the provisions of the British Nationality Act 1981, which prevent anyone making an appeal to a court if he is aggrieved against the refusal of such an order, are repealed. Perhaps that means that the person has a right now to go to court or some other tribunal and contest the decision of the Secretary of State to refuse him citizenship.

It is not an academic point. Over the years I have had a number of cases where citizenship has been arbitrarily refused; and with a great deal of persistence it is sometimes possible to overturn that decision. I mention a recent case which occurred during the regime of the noble Lord, Lord Rooker. A friend of mind who has been resident in this country for 28 years was refused his application for citizenship. After a

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great deal of discussion the noble Lord, Lord Rooker, told me that it was because of adverse information given to the Home Office by the Foreign Office about his activities in connection with his home country. On 6th January, I finally obtained an interview with the noble Lord, Lord Rooker, at which he was unable to give me the details of the information that he had received from the Foreign Office but said that he would investigate the matter further and come back to me. In due course, the noble Lord, Lord Rooker, overturned the decision that he himself had made and granted my friend citizenship.

In the absence of any right of appeal, it needed a lot of work to get through the bureaucracy to establish to the satisfaction of the Minister that my friend had been wrongfully refused citizenship on the basis of false information which had been supplied by another department. Are we to say that in those circumstances the only remedy a person has is to come to a Member of Parliament or of this House and, after months of work, finally to get the decision overturned? It is surely more satisfactory to provide for appeal on the face of the Bill so that everyone can take advantage of the provision and it is not simply those who happen to know a Member of this House or another place who can act. I beg to move.

Lord Clinton-Davis: I fail to understand the amendment. New Section 40 provides for an appeal where there has been deprivation of citizenship. Every point made by the noble Lord is answered by that provision.

Lord Filkin: I agree with the desire of the noble Lord, Lord Avebury, to table Amendment No. 12 to ensure that naturalisation applicants should be treated fairly when it comes to testing the requirements relating to knowledge of a relevant language and of life in the United Kingdom. But the Government are opposed to introducing a right of appeal against nationality decisions. That is partly because in practical terms there are limited consequences stemming from a refusal to grant nationality. More importantly, however, no one has a right to acquire citizenship of another country. In the United Kingdom such matters are usually discretionary. Granting appeal rights against discretionary decisions would in effect be transferring that discretion from the Secretary of State to an appellate body while decisions can, if necessary, be challenged through judicial review or making representations, as has been indicated, through a Member of Parliament.

The intention is that when an applicant applies to the Home Office he or she will provide evidence that he meets the necessary requirements in the form of some certificate or similar indicating that he has reached a certain standard or attended a particular course. The Home Secretary will not normally look behind that evidence unless, of course, he has some sound reason to think that the evidence may be false.

So it would not be appropriate in our view to provide for a right of appeal against the Secretary of State's decision in these matters. If an individual is

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dissatisfied with the assessment of his or her competence in a particular language or of his knowledge of the citizenship curriculum this could no doubt be taken up in the usual way with the relevant body.

I accept that there is also a broader concern about the lack of appeal rights in the context of applications for British citizenship. To some extent the case for an appeal is met by existing procedures and by new provisions contained in Part 1 of the Bill. That refers to Clause 7 which enables the Secretary of State to give reasons for his decision and removes the bar on a full judicial review which currently exists. Clause 7 would repeal the Secretary of State's statutory exemption from the common law obligation to give reasons for his discretionary decisions under the Act. In practice, however, reasons are already being given in all cases and there is a long-standing policy of re-examining and, where this seems justified, reversing contested nationality decisions. Caseworkers have been given clear instructions on that.

Furthermore, where maladministration is alleged, the Parliamentary Commissioner for Administration may be asked to investigate. Clause 7 removes the limitation on the power of the courts to review discretionary nationality decisions by enabling the decision to be subject to a normal judicial review, as I have indicated. That will include consideration of the reasonablenesss of the Secretary of State's decision.

In general, however, no one has a right to acquire another country's citizenship. In the UK it is for Parliament to lay down the conditions for the acquisition of British citizenship and the various rights and privileges that go with it. As I indicated previously, the introduction of a full right of appeal would result in the transfer of that necessary discretion to the appellate body. The tradition has always been, and I think rightly, that it sits with the Secretary of State.

However, it is proper to draw a distinction between, on the one hand, a decision not to grant citizenship—I indicated that that does not have severe penalties—and on the other a decision to withdraw citizenship already acquired or granted, which we shall consider later in Committee. After careful consideration the Government have decided that they are justified in conceding a full right of appeal against deprivation of citizenship because the burden of that is so much more painful than the non-award of citizenship, which in most cases would be because a person had not demonstrated through the processes we have indicated—an external assessment body, a college of further education—that he had met the necessary competence. In the light of those comments, I invite the noble Lord to withdraw the amendment.

The Earl of Onslow: As I understand, the Government want a fair and open system of assessment of someone's right to apply for citizenship. The Minister, acting in a quasi-judicial capacity, says yea or nay. If the Minister has acted wrongly or

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capriciously I cannot understand why there should not be an appeal to a body. That seems fair. Ministers occasionally, not often, make mistakes.

Lord Filkin: I indicated that in the circumstances suggested by the noble Earl—that the Minister had acted capriciously—there is exactly the remedy he seeks through judicial review.

Lord Avebury: I am not sure that that gives an adequate remedy to the person aggrieved by the refusal of his application for citizenship. He has to demonstrate for the purposes of judicial review that the Secretary of State made a decision which was manifestly unreasonable. That is a pretty stiff hurdle to surmount. If the person can go to the courts, other matters could be argued: for instance, that the Minister has assessed incorrectly his character under the good character requirement.

Many years ago there was an argument about someone who was driving in this country on an international driving licence. In answer to the question, "Have you ever thought of taking the test in this country?" he replied that he had thought of taking the test but was absent when the test date was given to him and, therefore, did not take it. The Secretary of State refused him citizenship on the ground that he had given a misleading answer. The best I could get out of the Secretary of State at that time was that he would review that person's citizenship application if he applied again after two years. He did so and then sailed through despite the argument about the driving test and whether he was entitled to drive in this country on an international driving licence. So there can be completely frivolous reasons why the Secretary of State believes that the good character requirement has not been met.

As I mentioned when introducing the amendment, certain facts were alleged against that person which proved to be quite wrong, as the Secretary of State admitted. He was not manifestly unreasonable in relying on the advice given to him by the Foreign Office and my friend may not have succeeded in an application for judicial review under those circumstances. It seems a very heavy hammer with which to crack the nut of wrong decisions by the Secretary of State. We shall return to this matter on Report.

As regards the failure of the examination under Clause 1, we shall need to see a little more of how Sir Bernard gets on with the job he has been given by the Government. We may also come back to that matter in October.

5 p.m.

Lord Ackner: Will the Minister indicate from where the material on which to base an application for judicial review is to come? As I understand it, there is no obligation on the Minister, when refusing an application, to give his reasons. I do not follow quite how it will be shown that the Minister has acted wholly unjudicially.

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Judicial review is not a process of appeal. It is only there to ensure, to put it in round phrases, that there has been fair play. It does not go to the merits of the decision. That is its inadequacy.


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