On May 6, 2014, the House of Lords accepted Amendment 79G, now titled Amendment 3/New Clause 66. This was the final amendment, and it took close to two months to draft it to almost perfection, so that it would finally cover all children born to unmarried British fathers who are otherwise by descent. Because citizenship law is so complex, our amendment needed to cover all bases and to cover any technical matters. This amendment passed on May 6, 2014, and then went on to the House of Commons for consideration.
Amendment 3
3: Before Clause 66, insert the following new Clause—
“Persons unable to acquire citizenship: natural father not married to mother
After section 4D of the British Nationality Act 1981 insert—
“4E The general conditions
For the purposes of sections 4F to 4I, a person (“P”) meets the general conditions if—
(a) P was born before 1 July 2006;
(b) at the time of P’s birth, P’s mother—
(i) was not married, or
(ii) was married to a person other than P’s natural father;
(c) no person is treated as the father of P under section 28 of the Human Fertilisation and Embryology Act 1990; and
(d) P has never been a British citizen.
4F Person unable to be registered under other provisions of this Act
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and
(b) P would be entitled to be registered
as a British citizen under—had P’s mother been married to P’s natural
father at the time of P’s birth.
(i) section 1(3),
(ii) section 3(2),
(iii) section 3(5),
(iv) paragraph 4 of Schedule 2, or
(v) paragraph 5 of Schedule 2,
had P’s mother been married to P’s natural father at the time of P’s birth.
(2)
In the following provisions of this section “relevant registration
provision” means the provision under which P would be entitled to be
registered as a British citizen (as mentioned in subsection (1)(b)).
(3)
If the relevant registration provision is section 3(2), a person who is
registered as a British citizen under this section is a British citizen
by descent.
(4)
If the relevant registration provision is section 3(5), the Secretary
of State may, in the special circumstances of the particular case, waive
the need for any or all of the parental consents to be given.
(5) For that purpose, the “parental consents” are—
(a) the consent of P’s natural father, and
(b) the consent of P’s mother,
insofar
as they would be required by section 3(5)(c) (as read with section
3(6)(b)), had P’s mother been married to P’s natural father at the time
of P’s birth.
4G Person unable to become citizen automatically after commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions; and
(b)
at any time in the period after commencement, P would have
automatically become a British citizen at birth by the operation of any
provision of this Act or the British Nationality (Falkland Islands) Act
1983, had P’s mother been married to P’s natural father at the time of
P’s birth.
(2)
A person who is registered as a British citizen under this section is a
British citizen by descent if the British citizenship which the person
would have acquired at birth (as mentioned in subsection (1)(b)) would
(by virtue of section 14) have been British citizenship by descent.
(3)
If P is under the age of 18, no application may be made unless the
consent of P’s natural father and mother to the registration has been
signified in the prescribed manner.
(4)
But if P’s natural father or mother has died on or before the date of
the application, the reference in subsection (3) to P’s natural father
and mother is to be read as a reference to either of them.
(5)
The Secretary of State may, in the special circumstances of a
particular case, waive the need for any or all of the consents required
by subsection (3) (as read with subsection (4)) to be given.
(6)
The reference in this section to the period after commencement does not
include the time of commencement (and, accordingly, this section does
not apply to any case in which a person was unable to become a British
citizen at commencement).
4H Citizen of UK and colonies unable to become citizen at commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;
(b) P was a citizen of the United Kingdom and Colonies immediately before commencement; and
(c)
P would have automatically become a British citizen at commencement, by
the operation of any provision of this Act, had P’s mother been married
to P’s natural father at the time of P’s birth.
(2)
A person who is registered as a British citizen under this section is a
British citizen by descent if the British citizenship which the person
would have acquired at commencement (as mentioned in subsection (1)(c))
would (by virtue of section 14) have been British citizenship by
descent.
4I Other person unable to become citizen at commencement
(1) A person (“P”) is entitled to be registered as a British citizen on an application made under this section if—
(a) P meets the general conditions;
(b) P is either—
(i) an eligible former British national, or
(ii) an eligible non-British national; and
(c) had P’s mother been married to P’s natural father at the time of P’s birth, P—
(i) would have been a citizen of the United Kingdom and Colonies immediately before commencement, and
(ii) would have automatically become a British citizen at commencement by the operation of any provision of this Act.
(2)
P is an “eligible former British national” if P was not a citizen of
the United Kingdom and Colonies immediately before commencement and
either—
(a) P ceased to be a British
subject or a citizen of the United Kingdom and Colonies by virtue of the
commencement of any independence legislation, but would not have done
so had P’s mother been married to P’s natural father at the time of P’s
birth, or
(b) P was a British subject
who did not automatically become a citizen of the United Kingdom and
Colonies at commencement of the British Nationality Act 1948 by the
operation of any provision of it, but would have done so had P’s mother
been married to P’s natural father at the time of P’s birth.
(3) P is an “eligible non-British national” if—
(a) P was never a British subject or citizen of the United Kingdom and Colonies; and
(b)
had P’s mother been married to P’s natural father at the time of P’s
birth, P would have automatically become a British subject or citizen of
the United Kingdom and Colonies—
(i) at birth, or
(ii)
by virtue of paragraph 3 of Schedule 3 to the British Nationality Act
1948 (child of male British
subject to become citizen of the United
Kingdom and Colonies if the father becomes such a citizen).
(4)
A person who is registered as a British citizen under this section is a
British citizen by descent if the British citizenship which the person
would have acquired at commencement (as mentioned in subsection
(1)(c)(ii)) would (by virtue of section 14) have been British
citizenship by descent.
(5)
In determining for the purposes of subsection 1(c)(i) whether P would
have been a citizen of the United Kingdom and Colonies immediately
before commencement, it must be assumed that P would not have—
(a) renounced or been deprived of any notional British nationality, or
(b)
lost any notional British nationality by virtue of P acquiring the
nationality of a country or
territory outside the United Kingdom.
(6) A “notional British nationality” is—
(a)
in a case where P is an eligible former British national, any status as
a British subject or a citizen of the United Kingdom and Colonies which
P would have held at any time after P’s nationality loss (had that loss
not occurred and had P’s mother been married to P’s natural father at
the time of P’s birth);
(b) in a case where P is an eligible non-British national—
(i) P’s status as a British subject or citizen of the United Kingdom and Colonies mentioned in subsection (3)(b), and
(ii)
any other status as a British subject or citizen of the United Kingdom
and Colonies which P would have held at any time afterwards (had P’s
mother been married to P’s natural father at the time of P’s birth).
(7) In this section—
“British subject” has any meaning which it had for the purposes of the British Nationality and Status of Aliens Act 1914;
“independence
legislation” means an Act of Parliament or any subordinate legislation
(within the meaning of the Interpretation Act 1978) forming part of the
law in the United Kingdom (whenever passed or made, and whether or not
still in force)—
(a) providing for a country or territory to become independent from the United Kingdom, or
(b)
dealing with nationality, or any other ancillary matters, in connection
with a country or territory becoming independent from the United
Kingdom;
“P’s nationality loss” means P’s—
(a) ceasing to be a British subject or citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(a)), or
(b) not becoming a citizen of the United Kingdom and Colonies (as mentioned in subsection (2)(b)).
4J Sections 4E to 4I: supplementary provision
(1)
In sections 4E to 4I and this section, a person’s “natural father” is a
person who satisfies the requirements as to proof of paternity that are
prescribed in regulations under section 50(9B).
(2)
The power under section 50(9B) to make different provision for
different circumstances includes power to make provision for the
purposes of any provision of sections 4E to 4I which is different from
other provision made under section 50(9B).
(3) The following provisions apply for the purposes of sections 4E to 4I.
(4)
A reference to a person automatically becoming a British citizen, or a
citizen of the United Kingdom and Colonies, is a reference to the person
becoming such a citizen without the need for—
(a) the person to be registered as such a citizen by the Secretary of State or any other minister of the Crown;
(b) the birth of the person to be registered by a diplomatic or consular representative of the United Kingdom; or
(c) the person to be naturalised as such a citizen.
(5)
If the mother of a person could not actually have been married to the
person’s natural father at the time of the person’s birth (for whatever
reason), that fact does not prevent an assumption being made that the
couple were married at the time of the birth.”
Lord Avebury:
My Lords, the rationale behind this amendment, to put it as simply as
possible, is to enable a child born before 1 July 2006 to a mother who
is not married to the natural father to become a British citizen
automatically, or to have an entitlement to be registered as a British
citizen in circumstances where the child would have had either of those
rights if the parents had been married.
I
am grateful to the Minister for accepting in principle the amendment
that I moved for this purpose in Committee and for deploying the
formidable resources of the Bill team to turning the inadequate wording
of my original attempt into the text now before your Lordships in
Amendments 3 and 5, as well as for the useful exchanges that I had with
the Minister and the Bill team during that process.
The
reason for the cut-off date is that, after that, a child born to
parents who were not married is already covered by the definition of
“father” in Section 50(9A) of
the British Nationality Act 1981—the BNA. These amendments will now
cover the child born before 1 July 2006 whose mother never married the
father or who was married to someone else at the time of the child’s
birth. This reflects the way the Home Secretary has previously exercised
discretion under the Act and will continue to do so for children born
post-2006 where the mother’s husband is not the child’s natural father.
Proposed
new Section 4F deals with persons who would currently have had an
entitlement to register as British citizens under the specified sections
of the BNA if their parents had been married. Currently, these persons
can be registered at the discretion of the Home Secretary under Section
3(1) of the BNA, but Section 4F gives them an entitlement. If a person
would be entitled to registration under Section 3(2) only, had their
parents been married, registration under Section 4F gives them
citizenship “by descent”—the status they would have acquired if their
parents had been married. Section 14 of the BNA needs to be amended to
secure this outcome, and this is accomplished by Amendment 5.
If
a person would be entitled to registration under Section 3(5), had
their parents been married, there is an additional discretion to waive
parental consent. For the other specified subsections of the BNA in
Section 4F, consent is required from both the mother and the “natural
father”—the person who satisfies the proof of paternity regulations made
under Section 50(9B) of the BNA.
Proposed
new Section 4G covers those born after 1 January 1983 and before 1 July
2006 who would have become British citizens automatically if their
parents had been married. The main beneficiaries of this section will be
persons born in the UK to a British or settled parent who would have
become British citizens under Section 1(1) or 1(1A) if their parents had
been married and persons born abroad to a British parent who would have
become British citizens under Section 2(1) if their parents had been
married.
Proposed
new Section 4H covers persons who were citizens of the UK and colonies
immediately before 2 January 1983 but did not become British citizens
because their parents were not married. This will benefit those who
acquired citizenship through birth in a British colony and still had
that status on 31 December 1982—for example, a person with a UK-born
natural father who was born in a current overseas territory or was born
in a former colony and did not acquire citizenship of that country when
it became independent. Here again it is necessary to place these persons
in the category “by descent” or “otherwise than by descent” to
correspond with the status they would have had if their parents had been
married. The distinction between these two categories occupies 26 pages
of Fransman’s magisterial tome on British nationality law, so I hope
your Lordships will be content with that reference.
Proposed
new Section 4I benefits people who would have acquired British
citizenship in three situations: first, if they were British subjects or
citizens of the UK and colonies by birth in a former colony and would
not have lost that status when that country became independent if their
parents had been married; secondly, if
they were British subjects before 1 January 1949 and would have become a
CUKC on that date if their parents had been married; and thirdly, if
they did not acquire the status of British subject or citizen of the UK
and colonies but would have done so if their parents had been married.
This will also benefit those who would have acquired citizenship under
Section 5(1)(a), (c) or (d) of the British Nationality Act 1948. I am
sorry to say that that will not apply to those whose parents had the
right to register their births at a British consulate under Section
5(1)(d) while they were minors but omitted to do so. That reflects
existing law for persons whose parents were married, and the rights of
both groups will have to wait for a future opportunity.
Proposed
new Section 4J defines a person’s “natural father”. It is interesting
to recall that when the BNA was originally going through another place
in 1981, the Minister—now the noble Lord, Lord Luce—said that
citizenship could not be extended to illegitimate children because,
“the problem of identifying the father in such cases remains insurmountable”.—[Official Report, Commons, Standing Committee F, 17/3/81; col. 623.]
Watson
and Crick had received the Nobel Prize for determining the structure of
DNA 19 years earlier but the practical applications of their discovery
were still a long way in the future. The power in proposed new Section
4J(2) is a broad one but this reflects the power to make different
provisions for different circumstances that already exists in Section
50(9B) of the BNA. The provision is intended to benefit potential
applicants and ensures that regulations for establishing the proof of
paternity can be adapted if circumstances change; for example, following
scientific advances.
It
has not been possible to deal with the British Overseas Territories in
these amendments because of course they would have to be consulted about
any proposed amendments to the Act dealing with the forms of
citizenship connected with those territories, as we have acknowledged. I
would be grateful if my noble friend the Minister could assure me that
the Government will launch such a consultation, preferably in the next
Session of Parliament, so that, having done so, next time we have an
immigration Bill we can deal with the limited number of stateless
persons left with only BOTC status. At the same time this will enable us
to annul some of the reservations we have put to our accession to the
convention on the elimination of discrimination against women.
At Third Reading of the then Nationality, Immigration and Asylum Bill, the then Minister, the noble Lord, Lord Filkin, said:
“One can only go so far back in seeking to right the wrongs of history and of previous generations”.—[Official Report, 31/10/02; col. 298.]
My
noble friend the Minister echoed this on the last day of Report. In the
thickets and undergrowth of immigration law, there are still plenty of
wrongs of history waiting to be rectified, but at least if your
Lordships agree to these amendments they will remove most of the
discrimination against people whose parents were not married that has
infected our immigration law in the past. I beg to move.
Baroness Smith of Basildon:
My Lords, I am grateful to the noble Lord, Lord Avebury, for his
explanation of his amendment. Immigration law is far more complicated
than most people realise and he did a great service to the House in
explaining his amendment, which of course we welcome and support.
Turning
to Amendment 6 concerning the Long Title of the Bill, which the
Government have amended, I share with your Lordships my confusion and
hope that the Minister can give some clarification. I am grateful to the
Minister for meeting me last week to discuss this and other issues. He
gave me a letter explaining the amendments before us today, which was
very helpful. But he also said about what was then Amendment 4 and is
now Amendment 6 that,
“an amendment to the Long Title is necessary to ensure that it covers nationality matters”.
He then referred to the amendment moved by the noble Lord, Lord Avebury,
“with
a view to appropriate amendments on the issue at Third Reading to
create a new registration provision for persons born before 1 July
2006”.
However, he did
not say that that was not the only amendment being made to the Long
Title, because the amendment as printed—although not referred to in his
letter—says that it also makes,
“provision
about the removal of citizenship from persons whose conduct is
seriously prejudicial to the United Kingdom’s vital interests”.
Yet
when we debated that issue here in your Lordships’ House at both
Committee and Report stages—they were very good and lengthy debates,
unlike those which took place in the other place, which were rather
cursory—it was decided, despite the length of the debate and the
complexity of the issue, that an amendment to the Bill would be made
removing the Government’s clause and inserting a new clause saying in
effect that this was a complex matter which should go to a committee of
both Houses. That amendment, in the name of the noble Lord, Lord
Pannick, was passed by a majority of 62. Although that issue is not in
the Bill, it is now in the Long Title.
The
other amendment to be passed on Report was that in the name of the
noble and learned Baroness, Lady Butler-Sloss, on child trafficking and
guardians for those children who are trafficked. Your Lordships’ House
voted by a majority of 98 in favour of an amendment which would provide
guardians for such trafficked children, yet that is not proposed to be
in the Long Title. We therefore have the slightly curious position where
something that was taken out of the Bill is now being inserted by the
Government in the Long Title—although it is no longer in the Bill other
than in the form of referral to a committee for further and proper
examination—yet something that was inserted in the Bill is not referred
to in the Long Title. Although I am sure that it is not the case, it
would be outstandingly arrogant of the Government if they were to say,
“Well, we know what is going to happen in the other place; we know what
is going to happen later, so we will prepare for then”, whereas my
understanding is that the Long Title should reflect the Bill as it
leaves your Lordships’ House.
I
wonder whether, in that, the Minister is trying to give us a clue as to
what the Government’s intentions are when the Bill leaves this House
today and goes to the other place for consideration of the amendments
that we have proposed. If he is able to comment on why something that is
not now in the Bill is in the Long Title, while something that is in
the Bill is not in the Long Title, that would be very helpful, because
the issue of deprivation of citizenship was removed from the Bill yet
that of guardians for trafficked children was inserted. Can the Minister
shine any light on that and say whether further amendments are expected
and how the Government intend to consider further the amendments
already passed in your Lordships’ House? If so, it would be a helpful
contribution to this debate.
Lord Taylor of Holbeach:
My Lords, perhaps I may begin by taking this opportunity to thank my
noble friend for tabling these amendments, which he will know we
welcome. The House will recognise that nationality law is a complex and
difficult area. Anomalies do arise, and have indeed done so,
particularly as the way in which people view the family has changed
since the British Nationality Act was introduced in 1981.
In
2006, amendments to that Act enabled illegitimate children to inherit
nationality from a British father in the same way as a legitimate child.
However, those amendments were not made retrospective. To have done so
could have caused problems for individuals who were now adults and had
made a life for themselves in a different nationality.
The
amendments proposed by my noble friend today will enable illegitimate
children born to British fathers before 2006 to register as British if
they choose to do so. The measures apply to those who would have become
British citizens automatically if they had been born legitimately. I
realise that my noble friend is concerned also about the situation of
those who could have become British if their unmarried parents had been
able to register them as British, or in some circumstances if they had
been able to register the birth with the consular service. However, the
Government’s position—indeed, my noble friend restated it in his
introduction—remains that we can go only so far to right the wrongs of
history. There can be many reasons why parents may not choose to
exercise these options and we cannot, therefore, now make assumptions
about whether unmarried parents would have chosen to exercise them if
they had had the opportunity to do so.
I
know that my noble friend is also concerned about British Overseas
Territories citizens. Changes to those provisions require consultation
with the territories concerned and this has not been possible in the
time available. However, I assure my noble friend that the Government
will look for suitable opportunities to discuss this issue with the
overseas territories once the provisions are implemented.
Perhaps
I might now turn to the change to the Long Title of the Bill, under
Amendment 6. Looking at the Bill, we still have deprivation as an issue
under Clause 66. It is covered by that clause and it is quite proper
that it should
therefore be part and parcel of the Bill, but I will not suggest for
one moment, while speaking at the Dispatch Box here today, what may be
considered by the House of Commons when it takes on the amendments that
we have made to the Bill. We have made a number of amendments and, as
the noble Baroness will know, it is quite in order for the House of
Commons to consider them and let us know what it thinks of the
amendments that we have made.
Baroness Smith of Basildon:
I am sure that, as a former Member of the other place, I was not
suggesting for one second that it does not have the right to look at our
amendments and come to its own decisions. This is about the contrast
between the two issues. While I am happy to accept the explanation that
deprivation will be considered further by a Joint Committee of both
Houses once the Bill leaves your Lordships’ House, that contrasts with
the issues of the trafficking of children and guardians for trafficked
children. That provision was passed by your Lordships’ House and does
not now appear in the Long Title, even though it has been amended to
deal with something that is not in the Bill in the same way. It is just
that contradiction between the two and I would hope that the Minister
can reassure me that, since this House has committed to the guardians
for trafficked children, the Government will also remain so and are not
taking for granted the support from the other place on the issue of
deprivation of citizenship and making people stateless.
Lord Taylor of Holbeach:
It would not be in my nature to take anything for granted where
Parliament is involved. However, I think I made the position of the
Government quite clear on guardians for trafficking when the amendment
was considered, and the noble Baroness herself has been well aware of
that. I hope she will accept what I am saying. It will be a matter of
our listening to the House of Commons, as we must now call the other
place, and giving it an opportunity to present to us what it considers
of our amendments. That is a reasonable position to take. Meanwhile,
this change to the Long Title facilitates the adoption of my noble
friend’s amendments, which I hope the House will support because they
will be welcomed by many and assist individuals hitherto precluded from
British citizenship by historical anomaly. They will therefore be able
to register as British citizens if they wish to do so. I am extremely
happy to be able to offer my support to my noble friend in this matter.
Lord Avebury:
I am extraordinarily grateful to the Minister for his kind remarks and
for his undertaking to take an opportunity, I hope in the near future,
to raise the question of overseas territories and how their position can
be brought into line with what we are now about to agree, as far as our
own citizenship is concerned.
We
have whittled away at the wrongs of history in 2002 and 2006, and now
again in 2014. It is not beyond the bounds of possibility that on a
future occasion we will be able to rectify some of the remaining
difficulties that affect our nationality law, particularly the wrong
that I think we did to people whose parents did not register them when
they were minors. It would have been right, not just in the case of the
illegitimate but
also for those who were born to married parents, to allow those
individuals when they became adults to exercise the rights that their
parents had not exercised on their behalf.
However,
that is only a very minor niggle compared with my pleasure at being
able to move an amendment that grants citizenship to people who are
illegitimate in circumstances where, if their parents have been married,
they would have had it long ago.
Amendment 3 agreed.
