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Baroness Ashton of Upholland: My Lords, I shall begin with the substantive issue and move on to the question that the noble Lord rightly raised. As the noble Lord indicated, the 1997 Act created an exception to the general rule at the time that British citizenship should be available only to those with a close connection to the United Kingdom. That was due to the particular concerns about those people's post-1997 future in Hong Kong. It was considered appropriate to extend eligibility to those in the territory who had former British nationality and who otherwise would have been stateless. The provisions of the Act are directed very precisely at this group. We see no case for extending the class of persons eligible for British citizenship under the Act given the guiding principle that British citizenship should normally be restricted to those having close connections with present day British territory, which Hong Kong is not, and the absence of any indication that conditions for non-Chinese residents in Hong Kong have deteriorated since handover in 1997 or that the non-British children of British citizens there face a particularly uncertain future, such as might justify a further exception to the principle in paragraph (a). I am not taken by the substantive amendment that the noble Lord has put forward.
On the particular point that the noble Lord raised in relation to Indian citizenship, he has been proven to be precisely right. He has received a letter today from my honourable friend Mr McNulty who outlined the steps that the Home Office proposes to take to bring this development to the attention of those affected. A press notice is being issued in Hong Kong. As the noble Lord said, details are being posted on the websites of the British consulate general there and of the IND directorate in the UK, to which the noble Lord referred last night. I want to be clear that this is not about the Government misleading Parliament in any deliberate way. I know that that is not what the noble Lord suggested. Officials have held lengthy conversations and discussions with their Indian counterparts.
The noble Lord, Lord Avebury, will know that this issue came to my attention only when he raised it in one of our discussions between Committee and Report. It was clear that at that point we were waiting to get a definitive response from the Indian Government, which it was right and proper for us to do. I live in the anticipation that my speaking to the noble Lord in this open way will suffice rather than a statement from the Government, but the noble Lord will have to make up his own mind about that and press the matter if he wishes. I know that he is going to bring out the Companion as he has already indicated that it gives clear and strong advice on the issue. Of
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course, I shall convey that point to my colleagues in the Home Office to see what they wish to do, but I hope that, whatever they decide to do, the noble Lord will accept that, procedurally, we have followed an appropriate course, which was to wait for the Indian Government to give us a definitive response and then to act with as much speed as we possibly could.
When requested to do so, the Home Office will reconsider applications for British citizenship that were refused on the basis of the advice that we received from the Indian Government in 199798. I do not have an answer today to the cost question that the noble Lord raised. I will ensure that I write to him on that. He referred specifically to those who had already paid money. As I say, I do not have an answer to that at this point. I hope that, given our speedy response on the websites, what we are seeking to do with the British consulate general and the fact that my honourable friend wrote immediately to the noble Lord to recognise the position, he will consider that, although it may have taken some time, the Government, having got the definitive adviceit was right and proper to do soacted accordingly. But on the substantive point, the noble Lord will understand that I hope he will feel able to withdraw the amendment.
Lord Avebury: My Lords, I am most grateful to the noble Baroness. As she said, I was thumbing through the Companion while she was speaking. I refer her particularly to paragraph 4.72(2), which states:
Lord Avebury: My Lords, the noble Baroness has indeed done so and I am hoping for the avoidance of doubt that her honourable friend Mr McNulty, in addition to writing me a letter might feel able to make a Written Statement in another place, so that those concerned with these matters would also have knowledge of what has been decided. At the moment, as the noble Baroness said, the Minister has addressed to me a private letter which has been discussed in general terms but which is not physically on the record in the sense that Members of another place can refer to it.
I am obviously disappointed by what the noble Baroness said in reply to the earlier parts of the new clause. I will have to think about that. But with regard to the main issue I am delighted that after 18 months' work at last the claims of these people have been recognised. I request the noble Baroness to confirm to me in due coursenot this eveningthat they will not be charged another £250 and that a mere notification by the individuals concerned to the local consulate where the application was originally lodged will be enough to set the application in motion again. As I said, under the normal procedures it is recognised
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that to have been unlawful a decision falls to be reconsidered by the authorities that were looking at it in the first place once the matter has been drawn to their attention. It may be that some of the individuals no longer wish to pursue it, but if the persons notify the local consulate that they wish to pursue the matter, it should be taken forward without further form filling or bureaucracy. I hope that at some convenient date nearby the noble Baroness can notify me accordingly. In the mean time, I beg leave to withdraw the amendment.
"AMENDMENT OF SECTION 4C OF BRITISH NATIONALITY ACT 1981
After section 4C(4) of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons born between 1961 and 1983) insert
"(5) An applicant is also entitled to be registered as a British citizen if he or she is the brother or the sister of any person who satisfies the three conditions set out in subsections (2) to (4).""
The noble Lord said: My Lords, the British Nationality Act 1981 equalised the right of a child born overseas to parents, one of whom was British, whether that parent was the mother or the father. In either case, the child, born after 7 February 1961, could be registered as a British citizen by the parents up to the age of 18, but if the mother was British and the father was foreign they could not do so. That position was corrected in the 2002 Act.
We argued that there was still discrimination, in that if the child's right was derived from his father, he could be registered as a British citizen because of his ancestral connection, irrespective of whether it was done on his behalf by his parents when he was a minor, or by himself as an adult. In the 2002 Bill Committee stage the Government accepted the case in principle, tabling their own amendment on Report, which is now Section 4C of the British Nationality Act 1981.
The problem with that solution was the cut-off date, which led to a situation where children born after 7 February 1961 were entitled to British citizenship, while children born before that date had no rights. There are several cases where siblings in the same family are divided in that way into sheep and goats. For instance, Michael Turberville, who has given me permission to cite his case, and who is the chairman of CAMPAIGNS, the NGO that promotes the rights of the 1981 Act orphansso to speaknow has British citizenship because he was born in 1967, but none of his elder brothers and sisters qualified: David, born in 1945; Freda, born in 1946; Sandra, born in 1949; Maryann, born in 1952, and Philip, born in 1957. Mr Turberville says that about 150 members of his organisation are excluded from British citizenship by the cut-off date.
One mother whose family is affected, Mrs Constance Salgado, who lives in Colombia, had children on either side of the cut-off date and is seeking to formulate a complaint against the UK under the Optional Protocol to the Convention on the
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Elimination of All Forms of Discrimination against Women. But the Government, knowing that they would otherwise have been in breach of an international obligation, entered a reservation to CEDAW allowing them to discriminate in nationality law.
To remove discrimination in our nationality law that affects only a small number of people still alive and nobody from any previous generation is surely something that any listening Minister should accept. This Minister went a little further than the noble Lord, Lord Filkin, when she explained in a discussion that we had thatI am paraphrasing what she saidalthough it is agreed that very few children born abroad to British mothers and foreign fathers would benefit from the removal of the cut-off date and therefore it would have no implications for immigration policy, there could be repercussions in the drafting rules that apply to all statutes. My first reaction was that we could achieve the same end result without tampering with the time limit through the formulation in the first of the amendments. Then I realised that in many cases all the children in the family could have been born before the cut-off date, and the purpose of the second amendment is to move the date back so that all but the very old would be covered. Mr Turberville tells me that all the members of his CAMPAIGNS group would be included if the cut-off date was moved, as I suggest, back to 1931.
Common sense tells us that most of the children born between 1931 and 1961 who would be able to register under the amendment would not bother, since they have held another citizenship for the past 44 years. However small the number affected, this is worth doing to eliminate what I hope is the only remaining piece of sex discrimination in our nationality law and to enable us to rescind our reservation to the CEDAW and its optional protocol. I beg to move.
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