(Watch the full debate here from 16:34 - 16:46)
On April 7, 2014, the light at the end of the tunnel began to appear when it was confirmed that our situation could in fact be remedied in the Immigration Act 2014. The rules under the House of Lords are much different, and if an amendment is considered "out of scope" of a bill in the House of Commons, it can be made to fit within the scope of a bill in the House of Lords. Of course, it was amazing to know that it was none other than Lord Avebury presenting the amendment (then called "Amendment 79G") to end this discrimination. He has been in our corner since the original British Nationality Act 1981, when he tried his hardest to allow all unmarried British fathers to pass on their citizenship to their children.
Moved by Lord Avebury 79G: After Clause 62, insert the following new Clause—
“Legitimacy (1) The British Nationality Act 1981 (c.16) is amended as follows.
(2) After section 4C (acquisition by registration: 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 (interpretation).
(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.”
Lord Avebury: My Lords, we have made several attempts in previous legislation to remove the disadvantage which illegitimate children suffer compared to their legitimate siblings in citizenship law. Some children born to British fathers who are not married to their non-British mothers are still not entitled to inherit their father’s citizenship. Since 1983, that applies to a child born out of wedlock in the UK to a British father and a mother who is neither British nor settled in the UK—an anomaly that was only partially redressed by Section 9 of the Nationality, Immigration and Asylum Act 2002. That section restored the right of such a child to British citizenship if he or she was born on or after 1 July 2006, leaving an arbitrary gap of 23 years from the date in 1983 prior to which all children born in the UK automatically acquired British citizenship.
The parents of such a child can apply to register him or her as a British citizen while he or she is still a minor, and the Home Office normally, but not invariably, exercises discretion in favour of those applications under Section 3(1) of the British Nationality Act 1981, but once he or she reaches the age of 18 there is no provision that allows him or her to become British—an irrational barrier, because it relies on the parents being aware of the qualified right and acting on it in time. There are examples on record of parents who discover the 2006 change too late.
The proposed new clause would allow a child born to a British father who is not married to their mother, and for that reason alone not British, to register as a British citizen. It assists a child born abroad to a father who is British otherwise than by descent to become British himself, and deals with the gap between 1983 and 2006 for the child born out of wedlock to a British father and a woman who is not British or settled in the UK. That would enable us to withdraw our reservation to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which declares in paragraph 2 of Article 9:
“States parties shall grant women equal rights with men with respect to the nationality of their children”.
The UK Government said that our acceptance of Article 9,
“shall not, how ever, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue”,
beyond January 1983.
Discrimination in our citizenship has continued well beyond what might be considered temporary or transitional. Discrimination against women was corrected only by Section 4C of the Borders, Citizenship and Immigration Act 2006, and discrimination against men has been corrected only for their children born after 1 July 2006. We now have the opportunity to put this last piece of the jigsaw in place so that we can ratify the convention and sign up to the European Convention on Nationality. I hope that your Lordships will therefore agree to the amendment.
Baroness Lister of Burtersett (Lab): My Lords, I am pleased to be able to support the amendment, although I was not able to put my name down to it fast enough. The noble Lord, Lord Avebury, has made the case for it very well. As I understand it, the Government accept the merits of the case and the substance of the amendment but, in the Public Bill Committee, questioned whether it lay within the scope of the Bill and suggested that there were better ways to take this forward. Presumably, as the amendment has been accepted by the Public Bill Office here, it is within the scope of the Bill.
I am not sure how many people are likely to be involved—perhaps the Minister could give us an estimate. As the Government said about Clause 60, it is the principle, not the number, that matters here. Even if it is only a handful, it matters to those people. I hope that the Minister will be able to come back with an amendment at Report to rectify what is clearly an unfair and anomalous piece of discrimination, based on the outmoded status of illegitimacy—indeed, what I would call an illegitimate status.
Baroness Smith of Basildon: My Lords, this is an interesting and useful amendment that the noble Lord, Lord Avebury, has brought before us. If the only objection from the Government in the other place was that they thought it was out of scope and that it could not be brought forward, it is clearly no longer out of scope as it has been brought forward. I hope that the Minister might take the advice of my noble friend and that, if the Government are not able to accept this amendment or bring it back, they will explain why. I really hope that there can be a positive resolution to this.
Lord Taylor of Holbeach: I am grateful to my noble friend Lord Avebury for raising this matter and to the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, for supporting it because we are well aware of the issues faced in acquiring British citizenship by those whose parents never married. We agree that this is an anomaly which deserves to be addressed. Having understood that nationality matters were outside the scope of the Bill, we were considering whether a measure covering this could be drafted as a government handout Bill for the next Session. I understand that had this amendment been tabled in another place, it would indeed have been ruled out of scope. However, this House has different rules on relevance and therefore it is appropriate for us to debate the matter.
I say to the noble Baroness, Lady Lister, that while I cannot give her any numbers, she is quite right that this is not about numbers but about whether to do it or not. That is the position the Government are coming from.
As my noble friend Lord Avebury pointed out, the law changed on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child where the parents were not married. This was not made retrospective, however, because it could have created difficulties for those affected in relation to any other citizenships that they held. For example, some countries do not allow dual nationality, as some noble Lords will know. Since 1987, the Secretary of State has exercised discretion in relation to those born to an illegitimate father. Discretion is exercised under Section 3(1) of the 1981 Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. Registration can take place if the Home Secretary is satisfied about the paternity of the child, if all those with parental responsibility have consented, if the good character requirement is met and, had the child been born to the father legitimately, if he or she would have had an automatic claim to British citizenship or an entitlement to registration.
However, this exercise of discretion under Section 3(1) applies only to those who are minors at the date of the 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. We accept that this creates a lacuna and that those who were born illegitimately to British citizen fathers are at a disadvantage compared with those whose parents were married.
I cannot accept my noble friend’s amendment as currently drafted because while this provision covers any person who would have been a British citizen had his parents been married, we think that it should be set out clearly exactly who should benefit from such a change in the law. In addition, other matters would need to be considered such as good character, which persons registered under this provision should be British citizens by descent and what additional measures should be included for those who might apply when under the age of 18. These are technical matters which need to be considered in amending the legislation. I am afraid that I must resist the amendment as it stands but I am happy to commit to taking it away, with a view to considering urgently whether the Government could prepare a suitable amendment for tabling at Report. I hope that amendment would have the support of the House, should it come back, and I therefore ask my noble friend to withdraw his amendment and its proposed new clause.
Lord Avebury: I am most grateful to the noble Baronesses, Lady Lister and Lady Smith, and particularly to the Minister for his extremely accommodating reply and his undertaking to consider this proposal as a matter of urgency in the hope that something can be produced to be tabled on Report.
As to scope, I was not in doubt: if the Secretary of State could include provisions in the Bill regarding deprivation of citizenship, surely it was proper to allow acquisition of citizenship also to be within scope. That is implicitly conceded if the Minister can produce an amendment by Report that will match the aspirations of the amendment I have moved.
I never expect an amendment that I have drafted to be accepted on the spot by the Minister—that does not happen in real life—but the answer he has given is extremely satisfactory, and I am most grateful to him for the careful consideration he has given to this proposal. Accordingly, I beg leave to withdraw the amendment. Amendment 79G withdrawn.What does the debate above mean? The points made in this debate were that Lord Avebury's amendment was now within the scope of the Immigration Bill, and since the government was supportive of changing the law, it would accept an amendment. However, this particulate amendment (79G) wasn't acceptable until it was rewritten to include some technical matters as to who exactly would be benefiting from the change in law. The amendment had to be withdrawn in order to be rewritten, and the new amendment would be accepted and tabled during the report stage, once it adhered to all the measures Lord Taylor requested.
The full Hansard source can be found here.