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"REFUGEE CONVENTION: CERTIFICATION
(1) This section applies to an asylum appeal where the Secretary of State issues a certificate that the appellant is not entitled to the protection of Article 33(1) of the Refugee Convention because
(a) Article 1(F) applies to him (whether or not he would otherwise be entitled to protection), or
(b) Article 33(2) applies to him on grounds of national security (whether or not he would otherwise be entitled to protection).
(2) In this section
(a) "asylum appeal" means an appeal
(i) which is brought under section 82, 83 or 101 of the Nationality, Immigration and Asylum Act 2002 (c.41) or section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68), and
(ii) in which the appellant claims that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under the Refugee Convention, and
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(b) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951.
(3) The Asylum and Immigration Tribunal or the Special Immigration Appeals Commission must begin substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate.
(4) If the Tribunal or Commission agrees with those statements it must dismiss such part of the asylum appeal as amounts to an asylum claim (before considering any other aspect of the case).
(5) Section 72(10)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal: Tribunal or Commission to begin by considering certificate) shall have effect subject to subsection (3) above.
(6) Section 33 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (certificate of non-application of Refugee Convention) shall cease to have effect."
The noble Lord said: My Lords, I am most grateful for that small correction, which I spotted this morning after the Marshalled List appeared. We accept the correction that the Lord Chairman described.
We welcome the Government's Amendment No. 58, to remove "4B", which will have the effect of allowing British overseas citizens with no other nationality to retain their right to register by entitlement and not to have to pass a good character test. The amendments that we are discussing seek to do the same for other groups: babies under 12 months, Gibraltarians, children and others. In the case of any of the groups covered, it is not appropriate to restore in secondary legislation rights that are being removed in primary legislation, when Parliament can simply refrain from taking their rights away in this Bill.
Clause 55 extends the statutory requirement that an applicant must be of "good character" in granting British citizenship to all cases, save those where British citizenship is granted because of the UK's ratification of the UN Convention on the Reduction of Statelessness. "Good character" takes in matters far beyond terrorism, as I know from experience of discretionary applications for British citizenship, where minor discrepancies in filling in the form are on occasion treated as evidence of untrustworthiness. A rejected applicant has no way of contesting the decision, because he is not given the reasons. The
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clause extends far beyond what is necessary to counter a terrorist threat. We should avoid creating new bureaucratic barriers to citizenship where there is no evidence of need.
Other than birth, a person can only acquire British citizenship by either registration or naturalisation. Up to now, the "good character" requirement has applied only to those seeking naturalisation as a British citizen and not to those seeking to register as British. The process of registration is either discretionary or by entitlement. Clause 55 applies the "good character" requirement to both, as well as to naturalisation, thus ending the practice of registration by entitlement, a category named as such in statute, in recognition of special obligations to allow certain categories of person to become British in this way.
The government amendment to leave out "4B" demonstrates that the specific groups losing their rights to register by entitlement are tightly defined in the clause. When it was pointed out to the Minister that, as drafted, the clause would subject babies to a good character test, she said:
"Concern has been expressed that we would extend the rule to very young children or even babiesthat was raised with me yesterday. Of course, the rules would state that that would be a silly thing to do, and it would not happen".[Official Report, 19/1/06; col. GC 279.]
If it is "silly" to include a particular group, then why first include that group within the scope of the Bill and then knock them out again by administrative decisionin guidance still to be drafted by officialswhen Parliament itself has the opportunity not to allow silly laws to get on to the statute book in the first place.
In Amendments Nos. 56, 61 and 65 we remove the subjection of babies under 12 months to a good character test. Section 3(2) of the British Nationality Act 1981 entitles babies born outside the UK to a British parent who is British by descentthat is, who does not automatically pass on their British citizenship to their childrento be registered within 12 months of birth. Section 17(2) makes similar provision in respect of British Overseas Territories. Article 6 of the Hong Kong (British Nationality) Order 1986 is entitled "Provisions for reducing statelessness". Article 6(3) says:
"A person born stateless on or after 1st July 1997 outside the dependent territories shall be entitled, on an application for his registration as a British overseas citizen made within the period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in paragraph (4) below are fulfilled in the case of either that person's father or his mother".
Thus, our amendments concern not only babies, but stateless babies. To include these babies in the Bill is not merely "silly", but it risks making people stateless. It is a simple matter to take them out in the way suggested.
The second group of amendments removes the subjection of children to a good character testAmendments Nos. 55, 57, 60 and 62. I apologise again for the minor error that crept into Amendment No. 55, which I fortunately spotted in the Marshalled List this morning. Section 1(3) of the British Nationality
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Act 1981 allows children, and only children, to register if their parents become British citizens or are granted settlementindefinite leave to remainin the UK. Section 15(3) makes similar provision for British Overseas Territories citizens.
Section 3(5) makes provision for children, and only children, born outside the UK to a British parent who is British by descent and thus cannot automatically pass on their nationality to their child to be registered, if the family has returned to the UK and has lived here for at least three years. The equivalent provision for British Overseas Territories is Section 17(5). Should a child be put to the risk of losing an entitlement to register as British simply because he or she might fail a good character test? These amendments solve that problem and retain their right to register by entitlement.
A growing group of children who will come under Section 1(3) are the children of refugees. When refugees got indefinite leave to remain as a result of recognition, their children were British because they were born to parents settledthat is, with indefinite leave to remainin the UK. The decision to give refugees five years' limited leave in the first instance means that their children will not be British by birth and will not be entitled to register until their parents get indefinite leave to remain at the end of five years. This places refugee children in a situation of particular difficulty, as refugees are barred, for good reason, from approaching the embassies or government of their former country. In the more distant past, when refugees used to get four years' limited leave before getting ILR, children born to them in those years were in travel and citizenship limbo. If the parents had refugee convention travel documents, it was sometimes possible to get the child included, but most families had to remain in the UK throughout the whole four years. Will the Minister give an assurance that the Secretary of State will exercise his discretion to register the children of recognised refugees who are not yet able themselves to register by entitlement?
Amendment No. 59 deals with British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treaties. Section 5 of the BNA 1981 provides an entitlement to register for British overseas citizens who fall to be treated as UK nationals for the purposes of the Community treatiesusually they are Gibraltarians. We believe that depriving these people of their entitlement to register breaches Community law. Parliament should not allow that to be done in an Act of Parliament, whatever the Government may say about correcting it later by administrative provisions.
Amendment No. 63 leaves out paragraph (c) of Clause 55(2) and restores the entitlement to register of wives and widows of those who fought in the defence of Hong Kong during World War II. There are hardly any of these people left alive and they probably do not want to come to Britain anyway, but those who do remain are elderly. To take away their rights unnecessarily is disrespectful and insensitive.
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Finally, Amendment No. 64 deals with British nationals other than British citizens, Hong Kong residents and the prevention of statelessness. Section 1 of the British Nationality (Hong Kong) Act concerns Hong Kong residents whose entitlement to register derives from their having a "second class" British citizenship and being, on 4 February 1997, stateless but for that citizenship, and who have not since renounced any other citizenship. We shall have a further opportunity to discuss that in a few moments. To amend the Bill to allow these people to register by entitlement would be in line with the government's amendment to leave out Section 4B. I beg to move.
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