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Lord Avebury: My Lords, I am heartened to some extent by what the noble Lord said about exercising discretion where it can be proved that the child has a long-standing connection with the UK. In both the examples that I gave, the mother was absent abroad at the time of the child’s birth, but that does not mean that the parents were not continuously resident in the UK and that they had not been so resident in the period leading up to the child’s birth. On the basis that the noble Lord’s discretion will be exercised in circumstances such as I have outlined, I am happy to withdraw Amendment 42A. However, perhaps I may say a word on Amendment 50, which specifically applies to stateless children. I thought that it was consistent with the rest of our legislation, but perhaps we will have to return to that on another occasion.

Amendment 42A (to Amendment 42) withdrawn.

Amendment 42 agreed.

Amendment 43

Moved by Lord Brett

43: Before Clause 43, insert the following new Clause—

“British Nationals (Overseas) without other citizenship

(1) Section 4B of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons without other citizenship) is amended as follows.

(2) In subsection (1)—

(a) omit “or” immediately before paragraph (c), and

(b) after that paragraph insert “, or

(d) British National (Overseas)”.

(3) In subsection (2)(c), for “4th July 2002” substitute “the relevant day”.

(4) After subsection (2), insert—

“(3) For the purposes of subsection (2)(c), the “relevant day” means—

(a) in the case of a person to whom this section applies by virtue of subsection (1)(d) only, 19th March 2009, and

(b) in any other case, 4th July 2002.””

Lord Brett: My Lords, it gives me great pleasure to introduce the Government’s amendments, which were tabled following the debates in Committee. In making this proposal, I recognise the tireless campaigning on this issue by the noble Lord, Lord Avebury, with whom lies much of the credit for this change. In many ways, I should leave it to him to speak about the effect. However, I shall speak briefly to the proposals.

These amendments provide a new route to British citizenship for certain persons connected with Hong Kong who would be stateless but for having the status of British national (overseas). Section 4B currently provides a registration route for British overseas citizens, British subjects and British protected persons who do not hold any other citizenship or nationality and have not done anything since 4 July 2002 that would result in the loss of any other citizenship.

These clauses extend Section 4B to include BNOs and will thus provide a new route to British citizenship for certain persons connected with Hong Kong who would be stateless but for having the status of BNO. This new clause provides for stateless BNOs who, unlike those who can apply under the British Nationality (Hong Kong) Act 1997, do not have an alternative route to Section 4B. The Government recognise that

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such persons are at a disadvantage and therefore propose to give them a route to British citizenship through this amendment. I beg to move.

Amendment 43A (to Amendment 43)

Moved by Lord Avebury

43A: Before Clause 43, line 15, at end insert—

“(4) A British National (Overseas) who is registered as a British citizen under this section shall be treated for the purposes of this Act as—

(a) A British citizen by descent; or

(b) a British citizen otherwise than by descent,

according as to whether, immediately before 1 July 1997, he was for the purposes of this Act a British Dependent Territories citizen by descent or a British Dependent Territories citizen otherwise than by descent.””

Lord Avebury: My Lords, we are grateful to the Government for this amendment, which, as the Minister explained, solves a long-standing anomaly. When we transferred power over Hong Kong to the Chinese, we promised that the citizenship arrangements would leave no one stateless but, in the event, it turned out that certain British nationals (overseas) were stateless. This amendment rectifies that anomaly and so we very much welcome it. It enables BNOs to register under Section 4B of the BNA 1981 where she or he is otherwise stateless. Amendment 43A would put those BNOs who register under Section 4B on an equal footing with those who have already been registered or are eligible to register under the similar provisions of the British Nationality (Hong Kong) Act 1997.

The added words mirror Section 2(1) of the British Nationality (Hong Kong) Act, which gives a solely BNO who is registered under it the same kind of transmission capacity in relation to British citizenship as they enjoyed when they held British Dependent Territories citizenship before the handover of Hong Kong. When a person is registered under that Act, if he was a Hong Kong BDTC otherwise than by descent, he becomes a British citizen otherwise than by descent and, if he was a Hong Kong BDTC by descent, he becomes a British citizen by descent. The added wording would mean that the British citizenship granted to BNOs under Section 4B of the 1981 Act would be of the same type as they would have been granted had they registered under the 1997 Act.

I shall take the opportunity, if I may, of clearing up one misunderstanding that has arisen in Hong Kong, which concerns people of Nepalese origin who can take advantage of this amendment. At one time it was the practice of the Nepalese authorities not to determine a person’s Nepalese citizenship until he reached adulthood. However, in 2005 the Nepalese consulate clarified the policy and issued a note verbale that said that no one who had BNO citizenship could be at the same time a Nepalese citizen. Therefore, nobody had to make the decision when becoming an adult as to which citizenship to opt for. I beg to move.

4.15 pm

Lord Hylton: My Lords, can the Government and, indeed, the noble Lord, Lord Avebury, tell us how many people may be able to benefit from these amendments if they are approved?



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Lord Avebury: My Lords, we have always thought that it was around 1,000, but I believe that the Home Office has estimated that it is a few thousand. No one really knows the number because there has been no census or poll of the people concerned and, obviously, not all of them would wish to take advantage of the provision anyway. I think that the number is somewhere between 1,000 and 3,000, taking the upper end of the estimates given by the Home Office.

Lord Brett: My Lords, I confirm the answer given by the noble Lord, Lord Avebury, to the noble Lord, Lord Hylton. We are talking about a relatively small number of people who could but may not all wish to take advantage of this route. There has been a meeting of minds between the noble Lord, Lord Avebury, and the Government, but as with all meetings of minds there comes a point at which those minds cease to be quite as joined.

The point of principle that causes the Government to oppose Amendment 43A is when it proposes that those BNOs who have previously held British Overseas Territories citizenship otherwise than by descent before 1997 could become British citizens otherwise than by descent on registration under Section 4B. That would mean that citizenship could be transferred to a further generation born outside the UK by those who had held British Overseas Territories citizenship otherwise than by descent. The amendment is not necessary, as registration under the British Nationality (Hong Kong) Act 1997 will continue to be available to BNOs if they meet the ordinary residence qualifications in Hong Kong. Those who can meet those requirements will therefore have a choice on whether to register under the 1997 Act or under Section 4B of the BNA 1981.

The amendment proposed by the Government to Section 4B will include within its scope those BNOs who find themselves otherwise stateless. That has no impact on the application of the 1997 Act. Following the amendment to Section 4B, there will be at least three routes in which a BNO can acquire British citizenship. That means that the Government are comprehensively addressing the various circumstances in which those individuals find themselves and providing for a form of British citizenship that reflects those circumstances. The current beneficiaries of Section 4B—British overseas citizens, British subjects and British protected persons—acquire that status by descent. To treat BNOs differently would, in our view, be both inconsistent and unfair.

I hope that, with that explanation and recognising the spirit with which the Government have brought forward our amendment, the noble Lord will feel able to withdraw his amendment.

Lord Avebury: My Lords, there is a bit of confusion between us, because I am talking not about people who may register under the British Nationality (Hong Kong) Act 1997 but about people who may or will register under the provisions of the government amendment and the type of citizenship that they get or can transmit to their children. We are not going to resolve the issue across the Floor of the House this afternoon. I reiterate the gratitude that I have already expressed to the Minister for the discussions that we have had behind the scenes and for the comprehensive

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analysis of the proposals made by the Government and the Bill team. For the time being, and with the hope that we may return to this subject in future, I beg leave to withdraw the amendment.

Amendment 43A (to Amendment 43) withdrawn.

Amendment 43 agreed.

Amendment 45

Moved by Lord Avebury

45: After Clause 43, insert the following new Clause—

“The Ilois: citizenship

(1) Section 6 of the British Overseas Territories Act 2002 (c. 8) (the Ilois: citizenship) is amended as follows.

(2) After subsection (2) insert—

“(2A) A person shall be entitled to register as a British citizen if—

(a) his father or mother was or is a citizen of the United Kingdom and Colonies or a British citizen by virtue of birth in the British Indian Ocean Territory or by operation of section 6(1), and

(b) he is not a British citizen.

(2B) A person shall be entitled to register as a British overseas territories citizen if—

(a) subsections (2A)(a) and (b) apply to him, and

(b) immediately prior to registration under subsection (2A) he was not a British overseas territories citizen.

(2C) In subsection (2A)(a) “father” has the meaning given in section 50(9A) of the British Nationality Act 1981.

(2D) No charge or fee shall be imposed for registration under section 6(2A) or (2B).””

Lord Avebury: My Lords, with this amendment, we return to the situation of the Chagos islanders, who were expelled from their homeland 40 years ago and are still hoping that, with the help of world public opinion, they will be allowed to return. We support that demand, but in this amendment we are concerned only to protect the citizenship rights of the children born to parents who were themselves born in the Chagos Islands—thus, all of the first generation born in exile. Those children would be entitled to register whether the parent was a man or a woman and whether or not the parents were married. In addition, the amendment gives an entitlement to register to the children of those who registered under Section 6(1) of the British Overseas Territories Act 2002. Such people, those born on or after 26 April 1969 and before 1 January 1983, became British citizens by descent on registration. They therefore cannot pass on their nationality or citizenship to their children and need the provision if their children are to be protected.

When the noble Lord, Lord Brett, responded to a very similar amendment in Committee, he acknowledged the powerful arguments for those concessions and agreed that we should hold discussions to see whether the matter could be resolved. We had very useful conversations, for which I am grateful, which gave me the opportunity to deploy the case at greater length. However, in the end, I am sorry to say that government inertia has prevailed. The noble Lord wrote to me on 20 March,

To us, this is a matter of principle. The islanders and their children should have the same rights as they would have enjoyed to transmit citizenship to their children as they would have had if they had not been evicted. That is the least that we can do short of allowing them to return. For this amendment, we have the support of Mr Olivier Bancoult, who was meeting Foreign Office officials just the other day, as well as that of Mr Allen Vincatassin,, the leader of the Crawley group of exiled Chagos islanders.

One of the unfortunate consequences of the present situation is that families are split. Those who are British can of course come to the UK, but they can bring members of the family who are not British here only if they can demonstrate that those close relatives will have no recourse to public funds immediately on arrival. In some families, that has meant that only one parent can come to the UK to work until they can afford to support their spouse, but there are many who cannot or will not leave their partner behind—and why should they? However, the chances of saving enough in Mauritius to meet the public funds test are slim, and the community there remains very impoverished.

The letter from the noble Lord, Lord Brett, refers to the hardship that resulted from what he calls the resettlement of the islanders, but the Government have not lifted a finger to correct the effects of exile in nationality law since Parliament persuaded them to insert Section 6 into the British Overseas Territories Act 2002. Our amendment seeks to rectify that position. I beg to move.

Lord Brett: My Lords, I listened carefully to the debate in Committee, and hear the echoes of that in the comments of the noble Lord, Lord Avebury, in moving the amendment. Once again, I express the Government’s sympathy for the way in which the resettlement from the Chagos Islands in the 1960s occurred. The Government regret the way in which the Chagossians were resettled in the 1960s and the hardship that resulted. We understand that, from 1969 onwards, the vast majority of Chagossians who were settled in the British Indian Ocean Territory, principally on the island of Diego Garcia, are now resident in Mauritius.

I also understand that the amendment would give an entitlement to register as a British citizen or a British Overseas Territories citizen to a person whose parent was a citizen of the United Kingdom colonies by virtue of birth in the British Indian Ocean Territory under Section 1 of the British Overseas Territories Act 2002, thus the intended beneficiaries of this provision would be second-generation Chagossians born outside the British Indian Ocean Territory.

I have spoken at length to the noble Lord, Lord Avebury, on this issue, and he will understand the reluctance with which I must disappoint him. He himself referred in Committee on 4 March to ongoing discussions with the Foreign Office on the sensitive issues surrounding the Chagos Islands. I also understand that the all-party Chagos Islands group met on 18 March, which I hope considered the discussions that were held with Gillian Merron. I understand that that group endorsed the noble Lord’s amendments, but held the

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view that the principal concern of the Chagossians must be the issue of their right to return to British Indian Ocean Territory at some point in the future. This is not something that I can address here; thus, although I am personally deeply sympathetic to the position of second and subsequent generation Chagossians born in Mauritius, I regret that I am not in a position to do anything in the Bill.

The noble Lord, Lord Avebury, has emphasised the importance of citizenship in tabling, and discussing, this amendment, but I hope he will forgive me for requesting that it be dealt with as part of the ongoing discussion with the Foreign Office, where it is only one of the wider issues relating to the United Kingdom’s response to the Chagossians’ plight.

This issue needs to be considered in the longer term, which is why I hope the noble Lord will understand why I ask him—reluctantly—to withdraw his amendment.

Baroness Hanham: My Lords, I am struggling a little. I had a feeling that there was a court case involving the Chagos islanders. Will the Minister say what is happening as a result of that?

Lord Ramsbotham: My Lords, I asked in Committee whether the feasibility study, which the Foreign Office completed in 2002 on the whole issue of the Chagos islanders, was going to be brought up to date. Will the Minister tell me whether there is any advance on that?

Lord Brett: My Lords, in response to the point made by the noble Baroness, the High Court judgment given by Lord Justice Ouseley on 9 October was upheld by the Court of Appeal on 22 July 2004. It decided that the compensation paid was in full and final settlement of the Chagossians’ claims, and it was established that the UK had no legal obligation to pay any further compensation.

I do not have in my brief the answer to the question asked by the noble Lord, Lord Ramsbotham, but I will respond to him in writing as a matter of urgency.

Lord Bridges: My Lords, briefly, I support what my noble friend Lord Ramsbotham has just said. The issue of the Chagos islanders is very serious, and attention has been drawn to it by the use of the former British territory as a base for rendition flights. This is a subject of great political importance to which we shall no doubt wish to return in this House.

4.30 pm

Lord Brett: My Lords, I thank the noble Lord for his question, not because I can provide an answer on the issue of rendition, but because it allows me the opportunity to respond to the previous question posed by the noble Lord, Lord Ramsbotham. The Government do not agree that a new feasibility study is needed post the 2002 study. I know that this position will not sit well with the noble Lord but that is the position of the Government.

Lord Avebury: My Lords, the noble Lord, Lord Brett, will realise from the interventions made by the noble Baroness, Lady Hanham, and the noble Lords, Lord Ramsbotham and Lord Bridges, that the interest in the Chagos Islands in your Lordships' House, as in another place, is widespread and continuing. Although

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we will have to leave the subject here today, this is not the end of it, nor is it the end of the court proceedings. Although the Chagos islanders have taken it as far as they can in our courts, they still have a right of appeal to the European Court, which I understand they will exercise, although that may be several years down the line.

I wish to separate the issue of citizenship from that of the return to the islands. I am reinforced in this opinion by the fact that when the islanders went to the Foreign Office—where they did not see Gillian Merron, but saw her officials—they had a useful discussion, which I believe will continue. However, they deliberately kept off the subject about which we are talking today because no one among the Chagos islanders wishes it to be thought that they would be satisfied, had the Minister agreed to this amendment today, to forgo the demand to return.

I am a little anxious about what he has said about including the citizenship question in the ongoing discussions with the Foreign Office. While I am happy that the Government are prepared to continue the discussion on citizenship, it probably is not the appropriate forum when they are talking to the Foreign Office about the right of return. As I say, we will not get any further with this. For the time being, I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Amendment 46 had been withdrawn from the Marshalled List.

Amendment 47

Moved by Baroness Falkner of Margravine

47: After Clause 43, insert the following new Clause—

“Legitimacy

(1) The British Nationality Act 1981 (c. 61) is amended as follows.

(2) After section 4C (acquisition by regulation: certain persons born between 1961 and 1983), insert—

“4D Acquisition by registration: legitimacy

(1) A person is entitled to be registered as a British citizen if—

(a) he applies for registration under this section; and

(b) he satisfies each of the following conditions.

(2) The first condition is that the person was born before 1st July 2006.

(3) The second condition is that the person is not already a British citizen.

(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act.

(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.””


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