March 3, 2015

Lord's Amendment 3 - May 6, 2014

(Watch the full debate here 15:34 - 15:56)

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
Moved by Lord Avebury


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.
The full Hansard source can be found here

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