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I am interested that the Government are satisfied that the system is working as well as the Minister believes it is. The number of people who actually win appeals through the fast-track system is tiny, which is why the title of a “refusal factory” has come to be used by some with regard to the system. I hope that, perhaps in correspondence, we could do more to check just how the system is working and ensure that the Minister’s optimistic assessment of the situation is correct. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Children]:

Baroness Hanham moved Amendment No. 23:

The noble Baroness said: My Lords, these amendments have been drafted, like my previous amendment on safeguarding children, by the Refugee Children’s Consortium. The unfortunate and very close defeat on my earlier amendment on Tuesday has

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ensured that the Border and Immigration Agency will not be given a legislative duty to promote the welfare of children. We have heard nothing encouraging from the Government about inserting the duty into the code of practice, on which this amendment would insist.

I hope, however, that we can prevail upon the Minister to rethink his position on this. The importance of this duty has been much discussed during previous stages of the Bill, and the Government’s objections on the grounds that it would interfere with the agency’s ability to carry out its primary function have been effectively dismissed. I assure the Minister that we do not intend to give up our efforts on this and I hope eventually to extend this protection to cover the whole of the Border and Immigration Agency. We will be looking to raise this matter at appropriate points in the future.

I look forward to hearing again what the Minister has to say on Amendment No. 24 following his hint on Tuesday. I hope that, in this matter at least, the Government have decided to accept what the House was saying and address our concerns. I set out my thinking on this issue in the debate on Amendment No. 5 and I shall not go through those arguments again. Suffice it to say that it will be illogical and irresponsible if non-governmental organisations which provide government services are not held to exactly the same standards as government agencies.

The Minister gave us a copy of the high-level code of practice and we understand that this will be included in some way. I hope very much that he will be able to give us further reassurances on that this afternoon. I beg to move.

Lord Avebury: My Lords, as these amendments raise two issues that we discussed as recently as Tuesday, I can be very brief. We considered what the Minister said about the draft code of practice, which, as he acknowledged, was clearly marked as a draft, but we remain unhappy about the code for the reasons that we gave, particularly in the context of Amendment No. 24. It makes no reference at all to private contractors, who are carrying out some of the most crucial duties of the BIA, including, for example, detention and escorting, and we simply do not accept that Parliament’s right to approve the code by affirmative resolution gives us any worthwhile opportunity to scrutinise the code before it comes into effect.

I repeat—I hope that the Minister can answer this now that he has had 48 hours to reflect on the suggestion—that both this code and the Section 9 code should be made subject to pre-legislative scrutiny. It may not be our normal practice to do that with secondary legislation but, with so many sensitive functions of government now being dealt with by order, this would be an excellent example on which to trial the process.

This may not be the time to go into detail on the code but, as an example of matters that cause us concern, I could make some comment on paragraph 16, which deals with children being looked after under private fostering arrangements. As I understand it, the

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fostering arrangements would not be subject to the provisions of the code. In dealing with an adult who has arranged for a child to come to the United Kingdom, it should be asked what arrangements have been made for the child to be looked after in the UK, although that matter should have been sorted out when the visa was awarded. Satisfactory assurances should be given by the sponsor of the child that the fostering arrangements are in place, that they have been approved by the local authority and that the fosterer is a properly qualified person to fulfil that role. However, there does not seem to be any certainty either that the BIA will be notified of the fostering arrangements or that the local authority will have inspected them. These defects should be dealt with in the final version. I also suggest that the code should form part of the contract between the local authority and the person who is to provide the fostering arrangements.

I take it that the draft has been sent to the relevant professional and voluntary bodies, the LGA and the local authorities for comment. I ask the Minister to arrange, as has been done on other occasions, for a summary of the responses to be published so that they can be considered, preferably as part of the pre-legislative scrutiny process that I have suggested.

The Lord Bishop of Ripon and Leeds: My Lords, I support Amendments Nos. 23 and 24 and I hope that the Government will be able to accept them. The phrase “safe from harm” in the clause feels grudging and is often used to refer simply to safety from and defence against physical and sexual abuse. The provision needs to be much broader. We are talking about some children who will be in this country for a considerable time. We have heard again and again about their needs. It is crucial that, through the ways in which we help children in the Bill, we provide the welfare that is the right of every child. Every child matters and it is crucial that we bring that into our concerns here. That includes, for example, the benefits of schooling and ways of helping children with their education so that their welfare is promoted here and for the benefit of the country to which they will go back.

Lord Bassam of Brighton: My Lords, I thank those who have participated in the discussion, because important issues have been raised. I am particularly grateful to the noble Baroness, Lady Hanham, for tabling Amendment No. 24, which I will respond to, because it has prompted further thinking on our part.

I understand that the intention behind the amendments is to broaden the scope of the Border and Immigration Agency’s duty with regard to children so that it is as wide as the safeguarding duty in Section 11 of the Children Act 2004. The amendments would also impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency.

I made it clear on Tuesday that the Section 11 duty would not work for the agency. The House took a view on that. It might be a narrow view, but it was supported. It is not appropriate in our view for the agency to have a duty to promote the welfare of

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children because that creates a potential conflict with other duties that we have to exercise to regulate entry to the United Kingdom and to take action against those who have no lawful claim to be here.

The potential application of a duty to promote the welfare of children is very broad. If the Border and Immigration Agency were to adopt it, we have no doubt that it would be used as the basis of a legal challenge in many cases where the facts made it clear that someone no longer had a lawful claim to be in the United Kingdom. For those reasons I resist the amendment.

The story should not end there. As I explained, we take very seriously the responsibilities towards children in the Children Act 2004; hence the continuing development of the code of practice. We have already indicated what we are committed to introducing through such a code and we are open to—and expect—further development of that through consultation with interested groups. It will be supported by a set of instructions to staff, which are being developed with input from outside organisations that have considerable experience of dealing with children’s issues. We have been very grateful to those agencies and organisations for the work that they have put in.

I do not want to repeat what I have said about the content of the proposed code. However, I must emphasise that the Border and Immigration Agency will expect staff to follow the code of practice or, if they cannot, to have very clear reasons indeed for not doing so. Those instances must be very few.

I must also make it plain that we very much intend to take on board the comments made on Tuesday, particularly by the noble Lord, Lord Avebury, about the need to ensure that very clear principles on detention are written into the code. The noble Lord made an important point that, although the supporting documentation is very clear that the code applies to detention and the detention estate, we must write those principles in and ensure that the detention estate is clearly covered.

We recognise fully that we would not achieve what we have set out to achieve if we were to have a code of practice for the border and immigration staff with no way of ensuring that it applied to those providing services on its behalf. So we sympathise with Amendment No. 24, and I know that the Minister was particularly grateful to the Opposition for raising that issue when we had a private discussion. We see the need to make it clear that when contractors are commissioned to carry out services on behalf of the Border and Immigration Agency they have the same responsibilities towards children as the agency itself. I shall give that point further consideration with a view to returning to it at Third Reading. I reassure noble Lords that the code will not be a token document. In developing it further and introducing it, we will continue to work with the key NGOs.

4.45 pm

The noble Lord, Lord Avebury, made one or two suggestions. I always listen with care to what the noble Lord has to say. I do not always agree, but some of his

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ideas we are of course happy to consider. One was that the code ought to be subjected to a sort of pre-legislative scrutiny process, which is a novel idea. We intend to consult on the code in a formal way over a period of three months. We could consider pre-legislative scrutiny, but we will obviously ensure that we comply with the wishes of the House more generally on that issue. I will give that more thought before Third Reading, but do not make a firm commitment this afternoon.

The noble Lord asked whether the draft code mentioned contractors. I have dealt with most of that issue: it does mention private contractors, both in the preface and paragraph 4 of the introduction. He also raised a question about private fostering and the BIA’s responsibility. Local authority children’s services are of course responsible for monitoring private fostering arrangements. The BIA very much relies on local authority expertise and on local authorities to notify it if arrangements and relationships are not working as well as they should. We would argue, however, that relationships between the BIA and local authorities are strong, and we are extremely grateful to local authorities for their expertise in this field. Speaking from my own experience, local authorities do a good job in difficult circumstances. We are grateful to them. For that reason, we continue to listen carefully to what the Local Government Association has to say on these issues. We have been grateful to it in the past for its advice. I might almost be currying favour here, but we have come some way towards meeting the aspirations of both Opposition parties on this issue.

Baroness Hanham: My Lords, I thank the Minister; “one up and one down” is how I see this afternoon’s effort. I am grateful for his indication that we will come back to Amendment No. 24 at Third Reading; I hope that we do so with an amendment that is strong enough to ensure that other agencies are required to have the same standards as the BIA. We look forward to seeing that, perhaps a little bit beforehand so that we are aware of it.

I am conscious of the welfare duty because I have been a family magistrate for quite a long time. The welfare duty encompasses a whole lot of things, such as the care of the child, where it lives, where it is educated and who it has contact with; it encompasses a much wider field than, as the right reverend Prelate said, just keeping it away from harm. The trouble is that children are around within the detention system, I understand, for various lengths of time. In some cases, the safeguarding from harm might be appropriate, but in cases where it is longer their welfare becomes an extremely important aspect of this. The way to deal with the problem would be to impose the welfare duty, so that those there for a longer time would be encompassed by it. We have had one or two goes at this issue during our debates on the Bill and it is not something that will go away. I shall not press the amendment today, but I give strong notice that a number of us are concerned about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

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Lord Goodhart moved Amendment No. 25:

“(ba) he would be entitled to be registered under section 4C of the British Nationality Act 1981 if the words “after 7th February and” had been omitted from section 4C(2); or”.”

The noble Lord said: My Lords, the amendment was introduced in Grand Committee to deal with an anomaly which has deprived a small number of people the right to British citizenship. I have taken particular interest in this because had I been born outside the United Kingdom, I would have been one of the people deprived of British citizenship by the anomaly.

The amendment does not confer citizenship on the people affected. That is because the Bill deals with immigration but not with nationality. An amendment to extend British citizenship would therefore be out of order. The amendment therefore confers on the beneficiaries not citizenship as such but a right of abode in the UK, which is probably the most important aspect of citizenship.

As I dealt with the background at length in Grand Committee, and because of the attitude which I understand the Government intend to take, I will give only a fairly limited outline of the legal background. Up to the end of 1948, a British woman who married a foreigner lost British citizenship if, on marriage, she acquired her husband’s nationality. Indeed, it was at one time the general practice that a woman, on marriage, always took her husband’s nationality. British men marrying foreign women retain British nationality.

Under the British Nationality Act 1948, which came into force on 1 January 1949, British women marrying foreigners no longer lost their citizenship on marriage and citizenship was restored to those who had lost it on marriage at an earlier date. There was, however, one remaining significant difference between the sexes. The children of a British husband and a foreign wife had the right to British citizenship, which they acquired on birth wherever they were born, but the children of a foreign husband and a British wife, if born outside the UK, had no right to citizenship.

Under the British Nationality Act, the Home Secretary had a discretionary power to register a child in that category as a British citizen, provided the child was under 18. That discretionary power was presumably intended for cases in which the mother was widowed, divorced or separated from her husband and wanted to return to the United Kingdom with her child and bring that child up here.

On 7 February 1951, the Government decided that any such application made on behalf of a child under the age of 18 would be accepted without question. There was, however, no formal change in the law and it was not retrospective. Children reaching the age of 18 before 7 February 1961 could not be the subject of an application.

The next step was the British Nationality Act 1981, which gave to mothers the same rights as fathers had always had to pass on their citizenship to their

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children. However, that applied only to children born after the 1981 Act came into force.

Then the Nationality, Immigration and Asylum Act 2002 amended the 1981 Act to backdate the right to citizenship given under the 1981 Act to all children born after 7 February 1961. That, in fact, was the result of amendments originally tabled by my noble friend Lord Avebury. I am extremely pleased that he has put his name to this amendment, as has the noble Lord, Lord Higgins, whose support I also welcome.

The amendment proposed by my noble friend Lord Avebury, in its original form, and this amendment would backdate the right to claim British citizenship to include children of a British woman born on or after 1 January 1949. The Government only partially accepted my noble friend’s amendment and were willing to backdate only for children born after 7 February 1961. No logical justification was produced by the Government, either in the debate on the amendment tabled by my noble friend Lord Avebury in 2002 or on this amendment in Grand Committee, to justify a cut-off date of 7 February 1961. There is some logical basis for a cut-off date of 1 January 1949, although there is also a case for going still further back—for example, by extending rights to those born before 1 January 1949 whose mothers were British citizens at the time because they had not acquired their husband’s nationality, or both to them and to children whose mothers were foreign citizens at the time of their birth but reacquired British nationality under the 1948 Act. However, it is not necessary to go into that issue.

The distinction between the rights of the children of British men and the children of British women with foreign spouses is an obvious anomaly. It is wholly contrary to modern principles of gender equality. The class of people adversely affected by the anomaly is small and closed; it can apply only to people in this category born before 6 February 1961, who must therefore be at least 46 years old by now and are, no doubt, well established in their home country, in most cases.

This is a unique problem, which would not set a precedent for any other claims to citizenship. The Government are not willing to accept the amendment, but I believe that they now recognise the existence of the anomaly and the need to deal with it. I wait with interest to hear what the Minister has to say. I beg to move.

Lord Avebury: My Lords, I warmly congratulate my noble friend Lord Goodhart on finally achieving a solution to a problem that has, as he pointed out, been canvassed on numerous occasions going back to 2002, when we raised it not only in respect of the NIA Act of that year but in detailed discussions with the then Minister, the noble Lord, Lord Filkin, in an attempt to find a way through.

We persuaded the Government then that the child of a foreign father and British mother born overseas after 7 February 1961 should have the right to be registered as a British citizen. However, we were not able then or since—until Monday of this week—to persuade the Government that discrimination against British mothers whose children were born before the

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cut-off date was wrong and illogical. Their right to transmit citizenship to their children was not equal to that of fathers who married foreign women, who had always had that right. Ministers kept repeating, as if it was an argument, the view that there had to be a cut-off point, as though that justified a situation in which children in the same family born before or after the cut-off date had different citizenship rights. As the noble Baroness, Lady Anelay, said in Committee, we were all struggling to hear from the Minister about the virtue that attaches to 1961. The Minister had no answer.

5 pm

My noble friend Lord Goodhart suggested that there was at least some logic to a cut-off date of 1 January 1949, because nearly every woman who married a foreign citizen before that date took the citizenship of the husband. For that reason, as well as the additional passage of time, hardly any persons would benefit from an earlier date. I consulted the chairman of the organisation CAMPAIGNS, Mr Michael Turberville, who tells me that of the 300 people on his books only one was born earlier than 1949, and he had been resident in this country for some 40 years and therefore qualified to apply for citizenship.

We are delighted that the Government have at last come around to our point of view on the matter, and we welcome the assurances they gave in the Minister's letter of 9 October that the provision would be enacted as soon as possible—not by the indirect route, which my noble friend had to choose ingeniously to get within the Long Title, but by conferring full citizenship on these individuals even though it means that they will have to wait a little longer.

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