Thirty Third Report Contents

Appendix 2: Correspondence on the British Nationality (The Gambia) Order 2018 (SI 2018/620)

Letter from Lord Trefgarne, Chairman of the Secondary Legislation Scrutiny Committee, to Ms Caroline Nokes, MP, Minster of State for Immigration at the Home Office

I am writing as Chairman of the Secondary Legislation Scrutiny Committee which considered this Order at its most recent meeting. It seemed to the Committee that the Explanatory Memorandum accompanying this Order simply states what the legislation does without explaining the underlying policy rationale behind the choices made. The Committee has therefore postponed consideration of the Order until further information is made available.

We understand that the Home Office has no estimate of how many Gambians might have lost the Right of Abode in the UK as a result of the 2015 Order of the same title (SI 2015/1771) and would be grateful if you could explain why.

We note that, in reinstating The Gambia as a member of the Commonwealth, this Order does not reinstate those who lost the Right of Abode in the UK. We would be grateful if you could explain the rationale for, and effects of, that decision.

Paragraph 7.2 of the Explanatory Memorandum states that anyone who holds Commonwealth citizenship could be appointed as a civil servant, police constable etc. We would be grateful if you would explain how this process will work in practice if such individuals have not had their right of abode reinstated.

The Committee would be grateful to receive your response to these concerns by 10 am on Monday 18 June 2018, so that it may be considered at the Committee’s next meeting.

13 June 2018

Letter from Ms Caroline Nokes, MP, to Lord Trefgarne

Thank you for your letter of 13 June regarding the British Nationality (The Gambia) Order (SI 2018/620). I am sorry that the Explanatory Memorandum did not sufficiently address the underlying policy rationale.

The purpose of the Order will be of benefit to Gambians in the UK at present and future arrivals. The effect of this Order will reinstate voting rights and the ability for Gambian nationals to apply for jobs in certain occupations, as well as to take advantage of, if eligible, ancestry visas. However, as highlighted in the Explanatory Memorandum it will not reinstate the Right of Abode for reasons I set out below.

In addition to British citizens, right of abode is held by Commonwealth citizens, providing that they had right of abode immediately before 1 January 1983 (when the British Nationality Act 1981 came into force) and have not ceased to be Commonwealth citizens at any time. When The Gambia (voluntarily) left the Commonwealth, its nationals ceased to be Commonwealth nationals and therefore those of its citizens who had the right of abode lost it.

Precise details on the number of people who hold right of abode are not held. This is because the right of abode is a statutory right which a person either has or does not have. There is no requirement for an individual to register or make an application to confirm this status, unless they are seeking entry to the UK. Neither is there any requirement for their births to have been registered with UK authorities.

However, a requirement of right of abode is that those concerned need to obtain a certificate to demonstrate this. These are issued in line with the validity of the individual’s passport and can be renewed when they obtain a new passport. In the 10 years prior to The Gambia’s exit from the Commonwealth, only two Gambians applied for such a certificate. Both these individuals were advised of the change and invited to apply under the immigration rules.

Where a country leaves and subsequently rejoins the Commonwealth, it does not have the effect of reinstating the right of abode, as their nationals no longer meet the statutory requirement to have been a Commonwealth citizen throughout. This principle has previously been established when South Africa and Pakistan rejoined the Commonwealth in 1994 and 1989 respectively.

Nationality requirements apply to occupations such as the Police, the Civil Service and Members of Parliament. With regard to Commonwealth nationals, these require such individuals to be free of immigration conditions. Given this, whilst the Order does not have the effect of reinstating the right of abode, for those who lost it on The Gambia’s removal from Schedule 3 of the British Nationality Act on 3 April 2014, it does have the effect of formally reinstating them as Commonwealth nationals. As such, where a Gambian national is not subject to immigration control due to having indefinite leave to enter or remain in the UK, they will be eligible to take up such positions by virtue of being Commonwealth nationals.

I trust that this information provides sufficient information on the rationale for the approach taken in the order for the Committee to consider the matter further.

18 June 2018

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