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Viscount Bridgeman: I anticipate that the Minister will say again that he has the protection of the Select
Committee's report. I share the concern of the noble Lord, Lord Dholakia. These are comprehensive regulations. Can the Minister say when they will be available? I support the amendment.
Lord Bassam of Brighton: I cannot give the noble Viscount the information he desires. However, it is for us to ensure that we produce draft regulations as early as possible. The noble Viscount anticipated my best line of argument, which is contained in paragraph 18 of the report of the Select Committee on Delegated Powers and Regulatory Reform. The Select Committee was content that we have the right procedure in place. While I understand the concerns raised by both noble Lords, I believe that we have got it right and that the negative resolution procedure will afford the level of parliamentary scrutiny appropriate to these regulations.
I shall again put on record that we will endeavour to ensure that an early sight of the draft regulations will be available because of the sensitive matters they will cover. With that, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Dholakia: I thank the Minister. It may be useful to have a discussion on this matter before Report and perhaps come back to him at that time. In the mean time, I beg leave to withdraw the amendment.
Lord Bassam of Brighton: I am more than content to have such a discussion. It is useful to keep these channels open. I am sure that some of the less obvious misunderstandings that can arise in these matters can be resolved in that way.
Amendment, by leave, withdrawn.
Baroness Gould of Potternewton: Before calling Amendment No. 92, I have to inform the Committee that, if it is agreed to, I cannot call Amendment No. 93 for reasons of pre-emption.
Clause 11 [Unlawful presence in the United Kingdom]:
Lord Dholakia moved Amendment No. 92:
- Page 8, line 10, leave out paragraph (c) and insert—
The noble Lord said: We are strongly opposed to Clause 11, which widens the definition of,
The current practice is that the time people spend waiting for a decision on an ultimately successful asylum claim is treated as residence for nationality purposes. These delays would not be counted in future.
Earl Russell: Before we leave this subject, I wonder whether the Minister could take advice also on whether this provision is compatible with Article 31 of the UN Convention on Refugees. The article states that a refugee may not be penalised for being unlawfully present on the territory of another state provided that he makes his presence known and makes his claim as soon as is conveniently practical.
I wonder whether this provision contravenes at least the spirit and possibly even the letter of that requirement. Here we are dealing with a person who is being deprived of a possible privilege for being unlawfully present in the United Kingdom in a circumstance where our obligations under international law say that he must not suffer for being unlawfully present—in fact, where the unlawfulness is condoned by international treaty. The point is of some importance.
Lord Filkin: The purpose of Clause 11 is to set out exhaustively the circumstances in which a person would be,
The concept is relevant to eligibility for naturalisation and, in some cases, registration as a British citizen under that Act. It also has a bearing on the meaning of "settled" in the United Kingdom, which a non-British parent must be if his or her UK-born child is to acquire British citizenship automatically at birth.
Clearly, it would not be appropriate to treat a person as being,
Let me explain who in practice would have such leave. In the normal course, leave to enter or remain in the United Kingdom is granted, on application, either by the Secretary of State or by an immigration officer. In certain circumstances, however, leave is, and will continue to be, conferred directly by statute. That is the case where a person applies, during the currency of an existing leave, for further leave to remain in the United Kingdom, and where the existing leave would otherwise run out before the application for further leave could be determined. It will also be the case where the application for further leave is refused, but
Of course, the arrangements just described would not apply where the earlier leave had been allowed to expire before any application for further leave was submitted. In such a case, a breach of the immigration laws would occur and it is right that, generally speaking, it should be treated as such. But it is equally right that there should be discretion to disregard the breach for the purposes of determining an application for British citizenship. I am pleased to say that such discretion is already provided for in the British Nationality Act 1981.
The noble Earl, Lord Russell, asked whether the provision breaches Article 31 of the 1951 convention on refugees. We do not believe that there is a breach of Article 31, because the person is not being penalised under the clause if he is present in the United Kingdom. Periods of presence "on temporary admission" can count towards qualification for naturalisation as a British citizen.
With those points, I suggest that the concerns on the clause are not as serious as were first thought. I invite the noble Lord to reconsider his amendment.
Lord Dholakia: I thank the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: Before I call Amendment No. 94, I have to inform the Committee that if it is agreed I cannot call Amendment No. 95 for reasons of pre-emption.
Viscount Bridgeman moved Amendment No. 94:
Lord Filkin: There are times when I share the noble Viscount's questioning on the clause, because at times it is particularly dense and complicated. The amendment would deprive Clause 11 of any retrospective effect. Government Amendment No. 95 would exclude certain EEA nationals and their family members from the retrospective operation of the clause. I shall explain our position.
The purpose of Clause 11 is to give an exhaustive list of the circumstances in which a person would be,
The practice following enactment of the clause would be to treat a person as,
There seems no good reason why European Economic Area nationals should be treated any differently from other nationals in that respect. The EC treaty, as extended by the European Economic Area agreement, confers freedom of movement, but not the right to acquire nationality of the host state. However, there is concern that if the general rule of construction in Clause 11 were applied retrospectively to European Economic Area nationals and their families, those who have benefited from the existing policy on interpretation of,
Others would not be similarly disadvantaged by the retrospective operation of the clause, because the definition of,
It might help if I give an illustration of how the retrospective operation of the clause might disadvantage EEA nationals and their families. Let us suppose that a child was born in the United Kingdom in 1998 to Spanish parents. Neither parent by then had any Community law or other right to remain in the UK, but equally no order had been made by the Secretary of State for their removal. The current practice reflecting judicial decisions in the social security field would be to regard the parents as lawfully
The retrospective application of the rule in Clause 11 would mean that the parents could not be regarded as lawfully resident when the child was born in 1998. It would therefore have the further consequence that the child could no longer be regarded as a British citizen. I hope that that explanation is helpful.
"(c) did not have pending an application for leave to enter or remain in the United Kingdom which was eventually granted,"
"in breach of the immigration laws",
and which will act as a barrier to refugees gaining citizenship. This information was strongly conveyed to us by a number of immigration agencies in this country.
"as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings".
I beg to move.
"in the United Kingdom in breach of the immigration laws",
for the purposes of the British Nationality Act 1981. The clause seeks to clarify the meaning, given that there have been some areas of uncertainty. It is not intended to be controversial or significantly to shift the position.
"in breach of the immigration laws",
at any time when he or she did have extant permission under those laws to be here or, as subsection (2)(c) of Clause 11 puts it,
"leave to enter or remain in the United Kingdom".
9.45 p.m.
Page 8, line 29, leave out subsection (4).
The noble Viscount said: The aim of the amendment is to probe the reasons for subsection (4), which defines the retrospective effect of being,
"in breach of the immigration laws".
What difference does that make and why is the provision needed? I look forward to the Minister's reply. I beg to move.
"in breach of the immigration laws",
for the purposes of the British Nationality Act 1981. This concept, which is not currently defined in statute, is relevant to eligibility for naturalisation and, in some cases, registration as a British citizen under the 1981 Act. It also has a bearing on the meaning of,
""settled in the United Kingdom",
which a non-British parent must be if his or her UK-born child is to acquire British citizenship automatically at birth.
"in the United Kingdom in breach of the immigration laws",
if he or she were here without permission or entitlement to be so under domestic or Community law. This would be broadly consistent with the policy hitherto applied by IND when determining legality of UK residence for these purposes. However, it would mark a change in the treatment of nationals of countries forming the European Economic Area. The current practice in relation to such nationals reflects recent judicial rulings in the social security context to the effect that they are in the UK unlawfully only if they have remained in defiance of a deportation or removal order.
"in breach of the immigration laws",
could be disadvantaged. Our amendment would accordingly shield such people from the retrospective operation of the clause.
"in the United Kingdom in breach of the immigration laws",
in Clause 11 is the same as that applied by IND since the British Nationality Act 1981 entered into force in 1983. The only difference will be that the definition has legislative force, and thus the advantage of certainty.
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