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Lord Avebury: Perhaps I may help the noble and learned Lord. In the case that I am talking about the applicant did not know what exactly had been alleged against him until I went to see the noble Lord, Lord Rooker. He was very frank when I went to see him on 6th January and he told me precisely what the Foreign Office had said against this person. But up until that time he had no way of knowing the reasons for the refusal.
Lord Filkin: As I sought to make clear, Clause 7 will repeal the Secretary of State's statutory exemption from the common law obligation to give reasons. Put in plain English, the Secretary of State will give his reasons for refusal. Therefore it would be more open for an aggrieved person, if they so wished, to make a challenge.
However, before anyone rushes away thinking that they will have to go to court, there are obvious alternative processes. Perhaps I may focus on an area where there clearly is a discretion for the Secretary of State—that is, the relevant clause in regard to good character—and put to one side the colleges of further education issues. There has never been an appeal process up to now and, to the Government's knowledge, there has not been any significant number of problems. I do not say no problems.
It is important that the Home Office has in place, as I believe it has, processes by which, if someone did appeal against a refusal by the Secretary of State, the case can be reconsidered by a different official from the one who made the original recommendation and gave advice and at a higher level in the Civil Service than the level at which the original decision had been made. So there would be a fresh pair of eyes looking at the issues and seeing, in the light of representations that had been made in response to the reasons given by the Home Secretary, whether or not the original decision was justifiable.
Lord Avebury: That is not the same as a proper judicial hearing in which all the facts can be thrashed out in the open. A different set of civil servants looking at the issue behind the scenes is not a satisfactory remedy. We will come back to this matter on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Naturalisation: spouse of citizen]:
Lord Dholakia moved Amendment No. 13:
- Page 2, line 17, after "paragraphs" insert "2,"
The noble Lord said: The Minister will breathe a sigh of relief that we have passed from Clause 1 to Clause 2. These amendments concern the issue of
citizenship by naturalisation, which we wish to probe further because we did not get an adequate reply when the matter was raised in another place.In moving Amendment No. 13, I shall speak also to Amendments Nos. 14 and 15. The amendments address a very simple point, which was referred to us initially by the Immigration Law Practitioners Association. Clause 2(1) extends the existing language requirement to include those who are applying for naturalisation as the spouses of a British citizen or British Overseas Territories citizen. Under the Bill, spouses will have to comply also with the knowledge of the UK requirement.
As we have been told, it will continue to be possible for the Secretary of State to waive the language requirement on grounds of age or physical or mental condition, but there is as yet no provision to allow the Secretary of State to waive the knowledge of the UK requirement in such circumstances. The argument is that it should be possible to waive that requirement for those who come and apply on residence grounds and for those who come on marriage grounds.
The logic is fairly clear. Some people, perfectly reasonably and lawfully, meet someone and decide to marry them. It may not take them six years to make a decision. We cannot expect people suddenly to fit in to those arrangements the learning of the language and so on. The person from this country may speak the other language, or a couple may not have a language in common. Sometimes this does not prevent people from deciding that they love each other and want to get married. We must be sensible about this.
What is the minimum residency requirement, if any, that the Government have in mind before any residence in Britain by virtue of marriage can be turned into a citizenship entitlement? When people apply as spouses they usually get a conditional right to be here. The period has traditionally been a year but the Government have talked about it being two years. Would that apply in the context that we are discussing in the amendment? If someone married a UK citizen and wanted to be naturalised, would it be assumed that there would be a minimum of two years before they could put in their application? The clause would be more sensible if it were amended in the way that we suggest.
Amendment No. 15 is slightly different and concerns the current nationality law which allows a spouse to apply for naturalisation after three years of having been living legally in the United Kingdom. The amendment would allow a spouse who has been in the United Kingdom for three years exemption from the language test as it is as present. This is on the basis that after such a time it is expected that a spouse would be sufficiently integrated into the community of the spouse who is the existing British citizen. I beg to move.
Lord Kingsland: I should inform the Minister that we shall not be promoting our amendment in this group.
The Minister of State, Home Office (Lord Falconer of Thoroton): I am grateful to the noble Lord, Lord Kingsland, but I am slightly confused. My understanding—I may be wrong—is that this group contains Amendments Nos. 13, 14 and 15, all of which stand in the names of the noble Lords, Lord Dholakia and Lord Avebury, not the noble Lord, Lord Kingsland. So what appeared to be a helpful remark has left other Members of the Committee rather bewildered.
Lord Dholakia: I would not mind if the noble Lord cared to join with our amendments.
Lord Kingsland: This was an amendment that we pursued in another place. I suppose that I have rather come to espouse it.
Lord Falconer of Thoroton: The essence of the points raised by the noble Lord, Lord Dholakia, in support of these three amendments is, first, that there should be a discretion to waive the requirement; and, secondly, that in certain cases it should not apply at all to spouses.
The first two amendments seek to provide for the exercise of a discretion in special cases to waive the Government's proposed knowledge about life in the United Kingdom requirement. We share that aim with the noble Lord, Lord Dholakia. This is achieved by Clause 1(2), which we inserted into the Bill by way of amendment in the Commons. I hope that that satisfies the noble Lord, Lord Dholakia, in regard to Amendments Nos. 13 and 14.
The third amendment in the group would provide a complete exemption for the language and knowledge about life in the United Kingdom requirements for people applying for naturalisation as British citizens on the ground of marriage to British citizens. We find such a proposal unacceptable. We believe that it is in the best interests of all concerned that, irrespective of marital status, all naturalisation applicants should have the knowledge and linguistic skills necessary to play a full part in society. As, however, with unmarried naturalisation applicants, there would be a discretion to waive the knowledge requirements for the spouses of British citizens where age or medical grounds justify that. I hope that my response gives the noble Lord some comfort in respect of his amendment.
Lord Dholakia: I am glad that Amendments Nos. 13 and 14 have seen some consent from the Minister. We shall certainly consult the organisation that brought this matter to our attention on Amendment No. 15. It may be necessary to return to it on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Lord Avebury moved Amendment No. 16:
- After Clause 2, insert the following new clause—
The noble Lord said: This amendment is grouped with Amendment No. 88, which aims to achieve the same objective but by a slightly different route. The main difference between the two is that in Amendment No. 16 the cut-off date of February 1961 is retained from the British Nationality Act, whereas in Amendment No. 88 it is removed entirely.
The point of this proposal is that, when the Government partially removed the general discrimination in the British Nationality Act 1981, having previously done it by administrative discretion in 1979, so as to allow the children of a British mother who were born abroad to be registered as British citizens, provided it was done while they were still minors, that obviously applied only to children born after 1961 because, by definition, they would not have been minors at the time of the 1981 Act. That was the reason for the cut-off date. There is no logic in it. If we say—as the Government did by implication—that we are going to remove the gender discrimination that existed prior to 1981 by allowing the children of British mothers to be registered as citizens just as much as the children of British fathers, it should have made no difference that they had already reached the age of majority, because they could have been given the right to apply in their own right. So Amendment No. 88 removes the 1961 date, but Amendment No. 16—which is by far the lesser of the two demands that we are making—would retain that provision from the 1981 Act. We believe that if you are removing gender discrimination, you should do it entirely and not in part, and that the second solution is much the better if we can persuade the Government to accept it.
How did it come about that there are still people who were not registered even though their mothers had the right to register them? In many cases it was simply because the mothers were unaware of the 1981 provision and therefore did not take advantage of it until it was too late.
Perhaps I may give an example. It relates to the leader of a new NGO called CAMPAIGNS—I shall not read out what the acronym stands for, but it is an ingenious usage. He was born in the United States in 1967 to a British mother and a US father. At the time,
Mr Turberville, the leader of the CAMPAIGNS organisation, has two siblings who were born in the UK with the same parents and both of those children have UK nationality. He also has three siblings born outside the UK and outside the Commonwealth. They are in the same boat as he is. They are not entitled to UK nationality under current legislation because they have already reached the age of majority.
Mr. Turberville is resident in this country and has been here for eight years as an over-stayer. He was served with a deportation order—or so the Home Office said—but he did not receive it. He went to court and a date was set for the hearing, but in the meantime the Home Secretary revoked the deportation order, then issued another one three days later. That action delayed the process for another two years. A hearing with an adjudicator finally took place on 27th June to determine the legitimacy of the reissuing of the notice by the Secretary of State. A decision on the case is expected in about six to eight weeks' time.
What is all this for? It is to deprive someone who has a British mother of the right to citizenship on the same basis as if his father, instead of his mother, was the basis of the claim. I do not think that anyone would defend that situation now. If anyone did, I suggest to the Minister that it is likely that Mr Turberville and the 50 other people of whom he knows who were in the same boat would have a right to go to court under the Human Rights Act. But let us hope that the case does not get to that point. I am sure that the Minister, being a reasonable person, will accept the amendment. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Lord for his comment regarding my reasonableness. I hope that what I say will further persuade him that, although there are clearly some difficulties, the Government's approach is reasonable.
It is perhaps worth reminding the Committee that the British Nationality Act 1981 came into force on 1st January 1983. Prior to that date, the law on nationality was contained principally in the British Nationality Act 1948. There are many similarities between the 1981 Act and the 1948 Act, but, as one might expect, some significant differences.
Both Acts placed a general limitation on the ability of one generation to pass on citizenship to the next, subject to a few exceptions the nature of which has varied over time. Citizenship has traditionally not
The rationale for all of this is that, by the time a second generation is born abroad, the link with the United Kingdom is too remote to justify the automatic conferral of citizenship. Instead, provision has usually been made for the second generation to obtain citizenship on application provided certain criteria relating to UK residence have been satisfied. This seems to us to be entirely reasonable. We see no reason to interfere with the arrangement in respect of those born abroad before 1983 or subsequently.
Where the 1981 Act and the 1948 Act take a different approach is on the ability of women to transmit their citizenship. Under the 1948 Act a female citizen could not pass on citizenship, even if she was a citizenship otherwise than by descent. The 1981 Act reversed that position and now allows women to transmit on equal terms—quite rightly in our view—with men. But for a number of reasons this change was not made retrospective. In other words, those born abroad before 1983 derive no automatic nationality benefit from a UK connection in the maternal line.
Since 1979, such people have been able to rely on the Secretary of State's discretion to register any minor as a citizen, but an application has to be made for that purpose and the person concerned must be under 18 when he or she applies.
I accept the limitations of that approach, but we would not be justified in conferring on those who are now adults an unconditional entitlement to register as citizens. Some may have spent their whole life in another country and acquired the citizenship of that country. That is a telling point in the argument. Those who have come to the UK since birth will have been able to qualify for naturalisation as a citizen. It is right that as adults they should be able to demonstrate connections with this country—we believe that to be a very important criterion—beyond those based on parentage.
That is the rationale behind our thinking, although, as the noble Lord, Lord Avebury, has pointed out, there can be difficulties in some circumstances. The Secretary of State's discretion is an important issue. It has been valuably exercised in many cases.
I hope that with those comments the noble Lord will feel able to withdraw the amendment.
"NATURALISATION BY DESCENT
(1) A person within this section shall be entitled to register as a British citizen so long as an application is duly made within a period of five years from commencement.
(2) A person is within this section if—
(a) he was born after February 1961 but prior to 1st January 1983; and
(b) at the time of his birth he would have been a citizen of the United Kingdom and Colonies under section 5 of the British Nationality Act 1948 (acquisition by descent), had the reference therein to "father" been a reference to either parent; and
(c) as a result he would immediately prior to 1st January 1983 have had the right of abode in the United Kingdom.
(3) A person registered under subsection (1) shall be a British citizen by descent."
5.15 p.m.
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