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Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for going through the amendments in some detail. We will come to the government amendment, which I hope will go some way to addressing the noble Lord's concerns. I went through this with officials earlier today. The noble Lord has picked out a number of groups for, I am sure, very particular reasons. Perhaps other groups could have been picked out. When we look at government policy on these issues, it is important that we have a consistent and clear approach. I hope that in the amendment that I will move shortly, the noble Lord will see the approach that I have tried to take.

I hesitate to pre-empt my own words, but when we consider groups such as the wives and widows of those who fought in the defence of Hong Kong, we believe that we have brought them all into the system in one way or another. We do not believe that anyone remains outside. However, I am sure that the noble Lord and others listening to or reading our debate will let me know if that is not the case. As a general point, however, I am deeply reluctant to address the question by seeking to add in different groups. In the next group of amendments the Government address a particular problem rightly indicated to us in Committee, which we have sought to solve effectively. However, I believe that it is right and proper to have the test as I have described.

The exception I make—and here I probably go off message—is that the noble Lord is right to pick me up on the question of babies. The noble Earl, Lord Listowel, is not in his place at the moment, but I know that he has seen me squirm on a number of occasions when we consider issues involving children. I am not terribly keen on the idea of a character test and in practice it would not be applied to babies. However, in saying that I will be asked, "That is fine for nought to one year-olds. What about two year-olds or three year-olds?" We end up in a very difficult position.

I pointed out in a recent discussion with stakeholders that there is a difference between a one year-old and a 17½ year-old. The latter may be involved in acts that would be of concern. Perhaps it could be something to do with drugs, or an attack on a particular group of people, or even the young person might be involved with an extreme right-wing organisation. At the age of 17½, people are responsible and it is right and proper for us to think about their
 
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character in that context. Therefore I do not want to make a blanket statement to cover everyone from the age of one year to those we now consider to be adults, at the age of 18.

Lord Avebury: My Lords, when the noble Baroness envisages all these 17½ year-old fascists coming into our country and being entitled to register as British, she forgets that the people we are talking about have always had an entitlement to register as British. We do not notice all these fascists taking advantage of their privilege.

Baroness Ashton of Upholland: My Lords, at the risk of upsetting the noble Lord, I was not being frivolous. I am simply trying to indicate that good government is about recognising the importance of looking carefully at those who wish to come to this country in order to become full citizens and to consider the contribution they can make. Whether the noble Lord likes it or not, there are certain individuals that we would want to look at carefully in terms of what they have done and what they can offer or bring to this country. I can think of a whole range of potentially horrible activities that would be a cause for concern.

However, I accept in principle the proposition regarding children. Personally, I am moving towards considering the age of criminal responsibility, which as noble Lords will know is 10 years old. I do not want to pick an arbitrary age, but I am nervous about babies, toddlers, pre-schoolers and seven year-olds. So this may not, as they say, fly. But there is something about the natural point where an individual attains criminal responsibility. Perhaps that might be the appropriate cut-off point. I am not sure that it would meet what the noble Lord seeks, but I think he understands that I recognise that distinctions must be made between the age categories of children and that there are considerations among the older categories.

I hope the noble Lord will allow me to think on this a little further. This may mark the end of my career in taking Home Office Bills through your Lordships' House. I shall talk to the noble Lord and to the noble Baroness, Lady Anelay, as well as to members of the Home Office team. I am interested in pursuing the point if I have the support of your Lordships' House in doing so in a right and appropriate way. Beyond that, I am afraid the noble Lord will have to accept that, apart from what I will move in a moment, I am keen that we stick with a clear set of guidelines and a clear understanding of the Government's position. We believe it is right and proper that we do not exempt further groups from the effects of Clause 55. On that basis I hope he is able to withdraw his amendment.

9.30 pm

Lord Avebury: My Lords, I always like it when the Minister is herself. She puts a human face on the Home Office, which it earnestly needs. We are grateful for her offer to consider the children, although not right up to the age of 17½. I think it is a brilliant idea that, faut de mieux, the age of criminal responsibility be the age at which someone can properly undergo a character test.
 
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That seems like the kind of common sense we would have liked to have thought of. I sincerely hope that by Third Reading the Minister will have been able to formulate this, as she rapidly has in other respects, in the form of an amendment we can look at.

I am also grateful to her for the assurance that all the categories of people we have described are in fact covered by other means, even though we still think it is absurd to have to take these people out from the right to register, which they have always enjoyed, then put them back in by some other means. We are very pleased that they do get back in. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 and 57 not moved.]

Baroness Ashton of Upholland moved Amendment No. 58:

The noble Baroness said: My Lords, as presently drafted, Clause 55 would extend the requirements for nationality applicants to satisfy the Secretary of State that they are of good character to all such applicants except those seeking to exercise an entitlement derived from the 1961 UN Convention on the Reduction of Statelessness. The Government's Amendment No. 58 would make a further exception in the cases of those seeking to register as British citizens on the basis that they are already British overseas citizens, British subjects or British protected persons and hold no other nationality or citizenship. As noble Lords will be aware, such people frequently have no right of abode in any country. In recognition of this fact, and accepting that we owe a moral obligation towards them as holders of British passports, we changed the law in 2002 to give them an entitlement to British citizenship and thus the right of abode in this country. We also consider that British overseas citizens, British subjects and British protected persons who have no other nationality or citizenship and have not recently and deliberately given up another nationality or citizenship should not in addition be required to satisfy the Secretary of State that they are of good character before they may be registered as British citizens. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 59 to 65 not moved.]

Lord Avebury moved Amendment No. 66:


"AMENDMENT OF SECTION 1 OF THE BRITISH NATIONALITY (HONG KONG) ACT 1997
(1) Section 1 of the British Nationality (Hong Kong) Act 1997 (c. 20) (acquisition of British citizenship) is amended as follows.
(2) Subsections (1)(a), (2)(a) and (3)(a) are hereby repealed.
(3) After subsection (8) insert—
"(9) A person shall be deemed to have met the requirements of subsection (2)(c) or (3)(c) and shall not be refused under subsection (6) if—
 
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(a) his father or his mother has been registered as a British citizen under section 1 of this Act;
(b) immediately before 4th February 1997 the person was not of full age and capacity, or the person was born on or after 4th February 1997 but before 1st July 1997, and
(c) at the time of the application he is not a national or citizen of a country or territory outside the United Kingdom.""

The noble Lord said: My Lords, this new clause removes anomalies in the British Nationality (Hong Kong) Act 1997. Subsection (2) of the new clause deals with the problem of otherwise stateless British nationals overseas who were not ordinary resident in Hong Kong on 4 February 1997. The exclusion of persons who were not ordinary resident on the qualifying date is intentional, because the purpose was to benefit only those British nationals who had demonstrated their commitment to Hong Kong by maintaining ordinary residence in the territory. However, in the Nationality, Immigration and Asylum Act 2002, by inserting a new Section 4B in the 1981 Act, otherwise stateless British nationals were given a right to register as British citizens, as long as they were solely British, irrespective of where they were resident.

This created an inconsistency. A former Hong Kong British Dependent Territory citizen, who was otherwise stateless but registered to become a British national overseas, will never have a right to become a British citizen if he was not resident in Hong Kong on 4 February 1997, whereas a former Hong Kong BDTC who is otherwise stateless but simply failed to register as a BNO will have been automatically granted BOC status under Article 6(1) of the Hong Kong (British Nationality) Order 1986. As is the case with other BOCs, BPPs and BSs, holding one of the latter categories of British nationality gives an entitlement to register as a British citizen under Section 4B of the 1981 Act.

By removing the ordinary residence requirement, the proposed new clause would allow a person from the Hong Kong ethnic minority who was solely British on the qualifying date, 4 February 1997, to register as a British citizen, thus equalising his position with that of those who benefited from Section 4B. That is an argument of fairness.

Subsection (3) covers persons who were minors on the qualifying date—primarily from Hong Kong's Asian ethnic minorities—and have hitherto been treated as failing to satisfy the test in Section 1, but who have at least one parent who registered successfully under the 1997 Act. The provisions of that Act have resulted in an injustice and created a number of split families in the ethnic minority community in Hong Kong. In all cases where the parent was born, naturalised or registered as a British national in Hong Kong, the child born to such parents after they registered under the 1997 Act would automatically become a British citizen by descent, whereas a child born before the 1997 Act has no entitlement to become
 
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a British citizen. Those children, some of whom are now adults, are left in a position where they are now de facto stateless.

A discretionary registration concession was made in 1992 to remedy split families. It resulted from the provisions of the British Nationality (Hong Kong) Act 1990, as referred to obliquely in an Answer to my noble friend Lord Lester by the noble Lord, Lord Bassam, on 31 January 2000 at column WA 7 of the Official Report. Subsection (3) of my proposed new clause would extend a similar registration entitlement to remedy the split families which have resulted from the British Nationality (Hong Kong) Act 1997 and rectify the position of a small number of British nationals in Hong Kong who are presently de facto stateless. The concession is important. It takes into account the special circumstances of the ethnic minorities in Hong Kong and is consistent with the commitments that we made to this group in the run-up to the handover to China in 1997. It would apply to a small, closely defined group whose only nationality is British. The amendment contains adequate provisions to prevent abuse; namely, that either the father or mother of the applicant must have qualified under the 1997 Act; that the applicant must be solely British on the date of the application; and that the person must have been a minor immediately before 4 February 1997 or born before the hand-over.

After I tabled this amendment, a new Annex H to Chapter 14 of the Home Office Nationality Instructions appeared on the IND website, which I saw for the first time yesterday evening. This acknowledged at last—I had been trying to persuade the Home Office of it since October 2004 in literally dozens of Questions and at a meeting with the previous Minister, Des Browne, on 2 February 2004—that Indian minors who were registered as BN(O)s in Hong Kong forfeited their previously held Indian citizenship and were therefore entitled to register as British citizens. The delay arose after the Government sent a note verbale to the Indian authorities which asked them to clarify the meaning of their citizenship law, because at the time when BN(O) status was invented, they had said that the person concerned would retain their Indian citizenship, not clearly understanding that BN(O) status could be obtained only by registration and not by birth. We had said all along that this would be the answer. Since the applications by these people for registration as British citizens are now admitted to have been wrongfully refused, I hope that the Minister will assure me that arrangements have been made to grant the claims without requiring the applicants to make further submissions, because the refusals were unlawful and therefore void, as provided in paragraph 6.8.3 of the nationality instructions. It would be outrageous if these people, having been deprived of their rights since 1997 or 1998, were now to be charged another £250. Subsection (3) of the proposed new clause may no longer be necessary as a result of this development.
 
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Considering that Ministers have inadvertently misled Parliament since 27 October 2004 by stating repeatedly that Indian minors who acquired British nationality by registration did not lose their Indian citizenship, will the Minister tell me when a statement will be made which corrects these misunderstandings as provided by standing orders? I beg to move.


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