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Baroness Falkner of Margravine: My Lords, this proposed new clause would affect those born in the United Kingdom after 1983 whose fathers are British and whose mothers are neither British nor have settled in the United Kingdom. Before 1983, a child born in the UK was automatically a British citizen. After 1983, there was no entitlement due to birth in the UK.

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After the passing of Section 9 of the Nationality, Immigration and Asylum Act 2002, this changed, so that children born to British fathers who are not married to the non-British, non-settled mothers are deemed to be born British if their fathers can prove paternity. However, that change affected only those people born after 1 July 2006. It has done nothing for those who were born between 1983 and 2006 in the circumstances I have just described. Therefore, for 23 years we have had the existence of this discrimination against men.

The proposed new clause in Amendment 47 allows those people born to British fathers whose mothers are not married to their fathers and who are not British citizens to register as British citizens if their rights to this derive from paternity. It also assists those who were born outside the UK in similar circumstances. All that the proposed new clause does is address historical discrimination against a small group of British men whose children now suffer from that discrimination.

When I detailed the situation in Committee, the noble Lord, Lord Brett, said that the Government’s position was that this proposal was unnecessary in practice. In a follow-up letter to my noble friend Lord Avebury, the noble Lord, Lord Brett, referred to the discretion which is available under Section 3(1) of the British Nationality Act 1981, which is the discretion to register any child. The noble Lord, Lord Brett, therefore contends that the proposal is unnecessary in relation to children. We agree with that, as Section 3(1) benefits only children. As things stand, some of the children born to those fathers between 1983 and 2006, which is the period we address in this proposed new clause, are now adults. If the amendment were to be accepted, the small number of adults who fall into this gap of some 23 years would benefit from the discretion which was accorded to children under the 1981 Act.

This Government have a good record on anti-discrimination and can only further enhance it if this discrimination against the children of a small group of men is removed through the insertion of this clause. I beg to move.

Baroness Howe of Idlicote: My Lords, as a keen enthusiast of equal rights, I support this proposed new clause. As has been so clearly set out by the noble Baroness, it applies to a small number of people who are currently being discriminated against. I hope that the Minister has heard the plea and will take action.

Lord Brett: My Lords, I thank noble Lords for their contributions to the debate. I appreciate the concerns about discrimination which have led to the amendment being tabled and carrying support from other Benches. The new clause would enable registration by any person born illegitimately to a male British citizen before 2006. In order to explain the Government’s position, it is necessary for me to refer back to when the law changed on 1 July 2006, enabling British citizen fathers to pass on their citizenship to a child born to them out of wedlock. The change was not made retrospectively as it was felt that this could create difficulties for those affected in relation to any other citizenship they held. The Secretary of State currently exercises discretion in the case of those born to illegitimate fathers, and

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discretion is exercised under the broad remit of Section 3(1) of the Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. That has been the case since the Family Reform Act removed any distinction between legitimate and illegitimate children in other areas of law in 1987.

The exercise of discretion under Section 3(1) applies only to those who are minors on the date of application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult, a case powerfully made in Committee and rehearsed again today. We accept that those who were born illegitimately to British citizen fathers were at a disadvantage compared with those whose parents were married. As such, although we are unable to accept the amendment, the Government will consider further the points made in today’s debate. I am grateful to noble Lords for raising the issue and I expect that there will be further opportunities to consider it during the passage of the Bill. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Falkner of Margravine: My Lords, I am encouraged by the Minister’s response. As the noble Baroness, Lady Howe, said, this is deeply discriminatory against a small group of men. I am, however, reassured that we will continue to hold discussions during the Bill’s passage. I thank other noble Lords who have spoken, and I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendment 48 had been withdrawn from the Marshalled List.

Clause 45 : Good character requirement

Amendment 49

Moved by Lord West of Spithead

49: Clause 45, page 38, line 5, after “3(1)” insert “, (2)”

Amendment 50, as an amendment to Amendment 49, not moved.

Amendment 49 agreed.

Amendment 51

Moved by Lord Avebury

51: Clause 45, page 38, line 21, leave out subsection (2)

Lord Avebury: My Lords, we really thought that the Government were getting somewhere with this amendment in Committee when the Minister agreed to reconsider the issue. The good character test was not a core principle of nationality law, as he asserted in his letter of 20 March, but was introduced less than three years ago when Section 58 of the Immigration, Asylum and Nationality Act 2006 came into force. The Minister also said that the number of women still alive who are potential beneficiaries of the Hong Kong (War Wives and Widows) Act 1996 was very small and that, in the event that an application was received, the Government would consider exercising discretion to waive the test. I wonder why the Government wriggle so hard to

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avoid this disrespectful and insensitive approach to a minute group of women whose husbands fought in defence of Hong Kong in the Second World War.

Three years ago, the noble Baroness, Lady Ashton of Upholland, told the House:

Now the noble Lord, Lord Brett, says that there may be only one left alive. If there is one 85 year-old left who might theoretically apply for British citizenship, is she really such a potential threat to the state that we cannot agree not to subject her to this test under any circumstances? The Government are re-enacting the power to impose the test, and we are merely saying that if the words in subsection (2) are omitted, that power lapses, giving effect to the undertaking in the Minister’s letter. It would be perverse in the extreme to insist on retaining this provision to guard against the extremely unlikely event that, after this Bill, an ancient widow satisfying the requirements of the 1996 Act, but with a string of convictions, will appear from nowhere and turn up here, armed with her brand new passport, to demonstrate violently against the G20. We owe it to the memory of our servicemen to remove this insult from the Bill. I beg to move.

Baroness Hanham: My Lords, I hope that the Government will be able to accept the amendment. As the noble Lord, Lord Avebury, said, we are talking about a very limited number of people; probably only one person is known to be alive. This matter has taken up the time of the House twice now, because the Government have refused so far to give in. Even if there were another 20, 30 or 50 people who might suddenly appear out of the woodwork, surely to goodness this matter should not exercise the time of the House any longer. I am sure that the Government will accept the amendment. I would be extremely surprised if they did not. On a matter of such de minimis proportions, the Government should be prepared to take their hands off and leave it to find its own way through.

Baroness Howe of Idlicote: My Lords, if the previous amendment was small, this one, in comparison, is tiny. However, it is of equal importance. I entirely agree with the comment that this restriction is an insult to people who have served this country well. I add my support to the amendment.

Lord Brett: My Lords, for the record, the Hong Kong (War Wives and Widows) Act came into operation on 18 July 1996 to provide discretionary registration as British citizens of the wives, widows and divorcees of men who fought in the defence of Hong Kong during the Second World War. To be eligible for registration, a woman would have to be resident in Hong Kong, a recipient of a letter from the Home Secretary confirming that she could stay in the UK on the basis of her partner’s wartime service and, if she was no longer married to the man concerned, had not remarried.

The 1996 Act is unusual legislation in that it applies only to this very small and finite number of women. It can only ever have affected a maximum of 53, which is the number of ladies who were offered and received the United Kingdom settlement letters. In practice, we

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expect that most, if not all, of the original 53 who wanted to apply to become UK citizens have done so because there have been no applications under the Act for the past eight years. Whether or not only one or two women are now eligible, the number, as the noble Baroness says, is very small.

Having said that, we have no information to suggest that the good character requirement would be a barrier for them. Let us start from the premise that they are the widows of heroes. That is why the Home Secretary has indicated that she would in any case be prepared to consider exercising discretion on the good character requirement of the application should any of these ladies apply in future and the issue arise. This will mean that even if one of them might have committed an offence which would prevent her meeting the good character requirement in normal circumstances, the Home Secretary would be willing to consider overlooking it because this is a specific and deserving group. We have, rightly, been generous to them, and will continue to be generous. It is also worth mentioning that, as for most other applications for citizenship, there is no fee for registration under the 1996 Act, so that those qualifying are already treated favourably in comparison with other applications for citizenship.

4.45 pm

We are resolving the problem behind the amendment—the small number of women likely to become party to the requirement to exercise discretion—and we have said that we are prepared to do that. We are not prepared to amend the law, however, because of the broader principle that is at stake. We are of the view that British citizenship should be acquired by those who demonstrate their suitability for that status.

In moving his amendment, the noble Lord suggested that this was an issue that had come out of the 1996 war widows Act, but in practice this had been in operation since 1983 when the good character requirement was introduced. To remove the legal requirement in this case, having resolved people’s concerns and difficulties that lay behind it, would set a precedent for removing it from other sections where we think it is an important requirement for potential citizens to fulfil. Removing the test might be the aim of some people, but in practice we are resolving the problem while making it clear that there is a need to retain the principle.

We do not see that there is any threat from this particular group—they are elderly wives and widows of Hong Kong war heroes—which is why the Home Secretary has agreed to exercise her discretion in their favour. However, the Government make no apology for the general application of that test. It is entirely right that we should not extend our citizenship to those who have shown by their behaviour that they do not deserve it; that is an entirely reasonable protection of our nation and the British public. Having seen and heard the argument, however, the Government have responded to ensure that the war widows involved, should they make an application, will not be subject to the application of the test and that discretion will be operated by the Home Secretary in their favour. I therefore believe that we have resolved the issue that moved noble Lords to be concerned, and I would be grateful if the noble Lord withdrew his amendment.

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Baroness Hanham: My Lords, is that discretion a commitment on all Home Secretaries that they should exercise a discretion, or is it just something that will be raised for today and perhaps used once? I worry about discretion. I am not sure how far a commitment made in this House that the Home Secretary will use the discretion can be pinned forward into the future.

Lord Brett: My Lords, the noble Baroness has asked a practical question. The ladies concerned have to be 80 years of age plus, and mortality is taking its toll—it takes its toll on Home Secretaries too, as well as on Ministers from other departments—but I do not believe that any future Home Secretary would want to exercise discretion in a different manner, given the arguments put forward here for the ladies concerned and the fact that we know that there are very few of them, if any. Any applications likely to be made must be made in a relatively short period if mortality is not to remove the problem completely.

Lord Avebury: My Lords, as the Minister said, we are talking about widows of war heroes. We are disagreeing only about the method by which we grant them a passport: whether it should be done as we suggest in this amendment or by the exercise of the discretion of the Home Secretary, as the Minister has said. He then went on to say that the Government are not prepared to amend the law to benefit this one small group of people—but we are talking about an amendment that has been put down by the Government. It is plain that in Clause 45 the Government are advocating that we change the wording in the Hong Kong (War Wives and Widows) Act:

“In section 1 of the Hong Kong (War Wives and Widows) Act 1996 ... in subsection (1) ... omit ‘and’”,

and so on. We are suggesting leaving out those words so that the effect we want is achieved. In that way, the 85 year-old lady who has been in possession of a letter from the Home Secretary will be able, along with the 53 others who received it, to come to this country and get a British passport without further ado. The Minister is saying that even if this lady happens to have committed an offence, the Secretary of State will still exercise discretion, but we are putting this lady in the position of having to make the application and for this test to be applied. That is an indignity to which she should not be subjected. Obviously, we are not going to win the argument this afternoon, so with great regret, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Clause 46 : Meaning of references to being in breach of immigration laws

Amendment 52 not moved.

Clause 48 : Common Travel Area

Amendment 53 had been withdrawn from the Marshalled List.

Amendment 54

Moved by Lord Glentoran

54: Clause 48, leave out Clause 48

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Lord Glentoran: My Lords, I thank the Minister and his Bill team for their help and co-operation in attempting to explain to me why they feel that the Government need to have this clause in the Bill. I declare an interest, as an inhabitant of Northern Ireland—I am never quite sure about these interest things. I spent Sunday night, Monday and part of Tuesday in Donegal at the British-Irish Parliamentary Assembly. It was attended by members of the Governments of the Channel Islands—Guernsey and Jersey—the Republic, Wales, Scotland, Northern Ireland and even one or two from here. When I first walked into the room, I was greeted by members of the Crown dependency Governments and congratulated on the speech I made about this on Second Reading. Every single man-jack of them is pretty anti this provision.

Let us get down to basics. Why do the Government consider that they need this massive hit operation of removing a travel area which is a form of an agreement between the United Kingdom and its integral parts? Those include the Crown dependencies which have different constitutions and relationships with Her Majesty's Government, the Republic of Ireland—again, a sovereign Government and state in its own right; that has changed since the 1920s when the common travel area was set up—and Northern Ireland.

It occasionally gets forgotten that Northern Ireland is as integral a part of the United Kingdom as Yorkshire or Lancashire. I do not know what the Yorkshireman and the Lancashire folk would feel if they had to provide identification in the form of passports to travel from one county to the other. That is effectively what this Bill is doing for the Northern Ireland folk. Over the years we have had free travel, which has worked wonderfully. The reason that it was necessary and still is necessary is that those who benefit from it are, largely, the poorest in our society. A large number of people from both Ireland and Northern Ireland earn their living in England and Scotland—not so much in Wales. They need to be able to travel freely, easily and without hassle to see their families from time to time when they can.

Most of the Premier League football clubs have many supporters in the island of Ireland, who travel every week to the mainland. They do not travel on aeroplanes very often—though some may do; they travel on boats and ferries in their thousands from, for example, Rosslare to Fishguard, or Dublin to Holyhead, and the various ports in the north into the various ports on the Clyde. We are talking about a large number of people. I know that the Government have statistics on how many people travelling by air hold passports, but that is quite irrelevant.

The Government have told me that they are not going to remove the common travel area. I talked yesterday to the Minister and the noble Lord, Lord Brett, and their officials, but I simply do not understand the position. I have spent much of today trying to work out exactly what the Bill does in amending the 1971 Act. I got myself so mixed up that I went and sought help from none other than my noble friend Lord Kingsland. It took him 10 or 15 minutes to fiddle his way through it and work it out, and he has a legal brain that is three times the size of mine. At the end of the day, the Bill clearly tells us that the Government

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intend to remove the common travel area. At the same time, there are places where they will not require passports—although they might—and there are places where they do not quite know what they want, but they may want some form of identification. Surprisingly, a number of MPs—and, indeed, my noble friend Lord Cope—attending the British-Irish Parliamentary Assembly were seized on by a gentleman at George Best Belfast City Airport and asked for passports. I have never been asked for a passport going in or out of there in my life, but somebody jumped the gun then. It was an example of what might happen.

The Minister has said that the Government have no intention of doing anything on the land border, but when one listens a little longer and looks a little further, one finds that they might be doing something. They state:

“We have made clear that we have no plans to introduce traditional fixed immigration controls on all air and sea routes between the Republic of Ireland and the United Kingdom at this stage”.

An Irish official to whom I spoke said that “at this stage” is not part of the Anglo-Irish agreement, that it should not be there, and that the Irish are clear that they will not be doing it.

The Government also say:

“We will not—for very obvious practical and political reasons—introduce fixed or routine immigration controls, data capture on journeys within the e-Borders programme or any requirement to carry a passport or national identity card when travelling over the land border between the Republic of Ireland and Northern Ireland”.

However, they also state:

“We do propose, however, to increase intelligence led interventions in Northern Ireland to tackle illegal immigration”.

I suggest that, compared with the terrorist days, which look as though they are creeping back, that is an irrelevance.

At the moment, the land border can be managed, and is managed, very well by two of the finest police forces in these islands—the Garda Siochana in the Republic of Ireland and the PSNI in the north of Ireland, added to which they both have the support of their own nation’s intelligence services. All four of those bodies work together, so what do we want a border agency for up there? We do not want to tell people who are travelling backwards and forwards that they are liable to be stopped and asked for passports, because all that will do is to raise the temperature in the north of Ireland particularly.

5 pm

I explained to the Minister this morning that the people of Northern Ireland will see this part of this Bill as another way of getting rid of them out of the United Kingdom. I am afraid that, whether you shake your heads or not, that is how it is perceived. I could talk to you very civilly and say that maybe it is not like that, but that is how the people in Belfast, Armagh and Londonderry will see it—as another imposition and another move one step away from the unity with this nation and this Parliament for which most of those in Northern Ireland have been fighting for the past 40 years.

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