HC Deb 27 October 1981 vol 10 cc743-56

Lords amendment: No. 6, in page 3, line 14, leave out subsections (2) to (5) and insert—

  1. "A person born outside the United Kingdom shall be entitled, on an application for his registration as a British citizen made within the period of twelve months from the date of the birth, to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either that person's father or his mother ("the parent in question").
  2. The requirements referred to in subsection (2) are—
    1. that the parent in question was a British citizen by descent at the time of the birth; and
    2. that the father or mother of the parent in question—
    3. 744
      1. was a British citizen otherwise than by descent at the time of the birth of the parent in question; or
      2. became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; and
    4. that, as regards some period of three years ending with a date not later than the date of the birth—
      1. the parent in question was in the United Kingdom at the beginning of that period; and
      2. the number of days on which the parent in question was absent from the United Kingdom in that period does not exceed 270.
  3. If in the special circumstances of any particular case the Secretary of State thinks fit, he may treat subsection (2) as if the reference to twelve months were a reference to six years."

5 pm

Mr. Raison

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this it will be convenient to discuss Lords amendments Nos. 9, 37 and 40.

Mr. Raison

Lords amendments Nos. 6 and 9 replace the existing provisions in clause 3(2) and related subsections for the acquisition of British citizenship by those born abroad to British citizens by descent. As it left this House, clause 3(2) conferred an entitlement to British citizenship on those born abroad to British citizens by descent who had certain ties with this country. In particular, there were certain specified types of relevant employment overseas at the time of the child's birth.

As hon. Members may recall, the categories of employment relevant for this purpose were considerably widened when the Bill was considered by this House on an earlier occasion. Nevertheless, considerable criticism was made of the provisions of clause 3 in another place and by a range of outside organisations. It was argued that the employment criterion did not cover all British citizens overseas who had real ties with this country, such as the self-employed or partners, that people might have continued strong connections with this country even where they were working for a foreign firm or, indeed, not working at all, that the provisions were uncertain, relying as they did on factors such as "close connection" with the United Kingdom which were undefined, and that they were so complicated that those about to work overseas would not easily be able to ascertain in advance the likely effect on themselves and their children.

The attempt made in clause 3 as it left this House to define an employment connection with the United Kingdom was a determined attempt to provide for the very small number of cases where, given the extension of transmission rights to the female line, people with a genuine connection with this country would be unable to pass on citizenship to their children born overseas. Nevertheless, we have been persuaded by the criticisms made of these provisions that it would be best to change our approach to this very difficult question. We therefore brought forward in another place these amendments, which provide a clear entitlement to registration for the child born overseas in the second generation. Application for citizenship must be made within a period of 12 months from the date of the birth, although there is provision in a new subsection (4) for extension of that period to six years if, in the special circumstances of a particular case, the Secretary of State thinks fit. The requirements which must be met for registration to be affected are that one of the parents was a British citizen by descent at the time of the birth and born to a British citizen otherwise than by descent or—and this, of course, will be the position in the great majority of cases for many years—a person who became a British citizen otherwise than by descent at commencement or would have done so but for his death. That is in proposed new subsection (3)(b)(ii). Unless the child is born stateless, the parent who is a citizen by descent must also have resided in the United Kingdom at any time in the past for a period of three years, although it would be permissible for the parent to have been absent during that period for not more than 270 days.

I am grateful to my hon. Friends, particularly the Member for Petersfield (Mr. Mates), for their advice and interest in this matter and for the helpfulness of the way in which they have led us to reach what I believe is a good solution to what, by any standard, is a very tricky problem.

As I am sure hon. Members will have noted, this provision gives an absolute entitlement to a child born stateless in the second generation overseas. The Government accept that it could happen that the child of two British citizens by descent, both born overseas and in the first generation, could be stateless and that in some cases—in Belgium, for example—the child could be stateless even if its mother held the citizenship of its country of birth. There are, of course, respectable arguments for believing that this is not entirely a problem for which the United Kingdom should find the solution. Nevertheless, the Government are prepared, as the reference to statelessness in this amendment demonstrates, to ensure that no one in the second generation born overseas is stateless.

That completes the explanation of the effect of these two amendments, but it may be helpful if I refer briefly to the effect of later, related amendments. We are conscious that there may be cases which are not covered by clause 3 as we should like to see it amended, but where the connection with the United Kingdom may be so strong as to merit registration Clause 3(1) provides, of course, for the registration of any minor at the Secretary of State's discretion, and we would propose to use that subsection sympathetically, not only for children born in the second generation overseas who are not covered by clause 3 as amended, but also for children in the third and subsequent generations born overseas where there are clear and strong United Kingdom links, or compassionate circumstances. It is, however, the case that anyone registered under clause 3(1) as it stands would be a citizen otherwise than by descent, and this seems illogical when we are stretching a point for children who are descended more remotely than the second generation. We are therefore bringing forward amendments to clause 13 which will ensure that where a child born overseas is registered and is descended from a British citizen, he shall be a British citizen by descent. That seems only logical and sensible, because otherwise a child whose connections by descent are remote, to say the least, would be in a more favourable position than a child born abroad in the first generation overseas.

Perhaps I could take this opportunity to comment on how we see the exercise of the discretion under clause 3(1) in respect of children born overseas to British citizens by descent. Before children born overseas in the second and subsequent generations were registered, the strength of the child's connections with this country would be assessed. In considering whether to exercise the discretion in these circumstances the Secretary of State will take into account the special problems facing British business families in long-term service overseas. By "British business families" I mean people in British companies or firms or in employment with strong British connections. The special problems of such British business families will thus be an important matter for consideration in this discretion.

These amendments offer a clear and unambiguous entitlement to registration for children born in the second generation overseas, and it seems to us most unlikely that anyone with a genuine close connection with this country would be left out by them.

Amendments Nos. 37 and 40 replace the existing provisions in clause 16(2) and related subsections for the acquisition of citizenship of the British dependent territories by those born abroad to citizens of the British dependent territories by descent. They are the equivalent for citizenship of the British dependent territories of earlier Lords amendments to clause 3 with which the House has already seen fit to agree. I hope, therefore, that they will be acceptable.

I commend this group of amendments to the House.

Mr. Tilley

We welcome the amendments, which completely scrap the employment and close connection criteria that the Government originally attempted to impose as the basis for citizenship by descent. There is now a simple three-year residence rule for second generation transmission abroad. We must suspend our churlishness—if only for a moment—and extend our sympathy to the Minister. He has had to eat everything that he said in Committee. For about 100 columns of Hansard the Minister tried to justify the other system. However, I do not criticise him and I acknowledge that the Government have thought again. They have carried out a radical change largely as a result of pressure from Britons abroad, the points made in Committee and the way in which the anomalies and confusions were pointed out in the other place.

The Government have returned to square one and the system has been vastly improved in terms of clarity and workability. However, I wish to make several comments. As I have said, we are not keen on wider second-generation transmission. We feel that it should not be as easy as it might be in some cases, where we would consider the connection remote. I refer to the cases covered by the new set of amendments. The new qualifications are easier for some groups of British citizens abroad to acquire than for others. If a child born abroad to British citizens can transfer his or her British citizenship to his children—if the person has spent three years in Britain—the provision will benefit those families that can afford to send their children to the United Kingdom to attend schools, public schools, universities and even polytechnics. That will not be easy for many of the others involved.

The case of the Falkland Islanders may be raised later. The great majority of them are British citizens who will lose their right to transmit British citizenship because, as humble sheep farmers, they will not be able to send their sons and daughters to public or private schools in Britain.

Mr. Michael Shersby (Uxbridge)

Will the hon. Gentleman give way?

Mr. Tilley

I thought that I might catch a fish.

Mr. Shersby

I have listened with interest to the hon. Gentleman. Is he not aware that a Government scheme exists whereby those children in the Falkland Islands who have taken their O-levels in schools in Port Stanley can come to Britain and take their A-levels at a school in Rye, where their fees are paid by the British Government? Therefore, there is no question of Falkland Islanders being unable to obtain for their children just as good an education at State-maintained schools as any citizen in this country.

Mr. Tilley

I was not aware of that scheme. The result of it will probably be that those children who take three years to do their A-levels will qualify, while those who take two years will return to the Falkland Islands without an opportunity to transmit their citizenship. That is a matter for them to consider.

Many of those concerned about other aspects of the Bill are struck by the stark contrast between the effort that the Government have made to be fair to British business families—predominantly white, middle-class people living abroad—and the shabby treatment given to black British people both at home and abroad. As a result of the amendments, white expatriates and their grandchildren will have extra transmission rights if the second generation go to prep schools or public schools in the United Kingdom, or even to Rye grammar school. Before the introduction of this Bill the East African Asians had exactly the same passport as the whites. However, they will find that they cannot transmit their British citizenship to their children, let alone to their grandchildren.

The Minister raised a significant point about the Belgian nationality laws. He said that although the Belgians were responsible for the fact that their laws created statelessness, we should do something to ensure that they did not affect British citizens.

Sir Ronald Bell (Beaconsfield)

The hon. Gentleman is wrong to say that the East Africans have had the same passports as the British. The East African Asian's passport is stamped to the effect that it does not confer the right of abode in Britain.

Mr. Tilley

I said that East African Asians had the same passports because in Home Office parlance East African Asians are known as United Kingdom passport holders. That is what they are, and they hold the same passport.

Because of the nationality laws, first generation children in Malawi born to United Kingdom passport holders will be stateless. The Government have set their face against making any provision for that. They say that that is Malawi's fault. However, when the same situation occurs in Belgium special provision is made for those children who might fall foul of its nationality laws. That is a stark contrast. In making the comparison we must question the fairness involved. The Government are adding to the substantial rights of British citizens, but neither here nor elsewhere have they given a single right to those British overseas citizens who are 100 per cent. black or brown skinned to transmit citizenship.

5.15 pm
Dr. Brian Mawhinney (Peterborough)

I welcome the amendment to clause 3, because it is right that the change should be made. In addition, Governments who have the vision to change their mind and to be persuaded should be congratulated. Furthermore, I have a vested interest in the clause and I drew it to the attention of my hon. Friend the Minister when we debated the Bill. If one were to ask the man on top of the celebrated Clapham omnibus which groups of people most exemplified British citizenship, he would probably say that Members of Parliament were British and that they need have no concern about their "Britishness" or that of their families. However, he would have made a gross mistake in my case. My second son was born in the United States of America. If he had followed the pattern of his father's life, his second son—my grandson—would not have been a British citizen according to the original clause 3. That is—both personally and in principle—nonsense.

Sir Ronald Bell

There was an hon. Member called Brian Harrison. His parents had been abroad for two generations and he was not a British citizen with an entitlement to a right of abode. Every time that he returned to Britain he had to assert that he was a Member of Parliament and could not be kept out.

Dr. Mawhinney

I am grateful to my hon. and learned Friend for having given a better example than mine. However, he will understand that it does not have the emotional appeal that my example had for the hon. Member for Peterborough.

It was fundamentally wrong for the Government to proceed with the original clause 3. Therefore, this provision is to be welcomed. However, my one regret is that the logic and moral rectitude of the new clause 3 did not convince my hon. Friend when we debated the original clause in the House.

I welcome the change, but I would have welcomed it more if it had been made in this House and not in the other place. Because the amendment was moved in the other place, a few people may assume that the Government were prompted to change their mind not by logic or moral rectitude, but by head counting. That would represent an unwarranted slur on my hon. Friend the Minister. Nevertheless, by the nature of the proceedings it may stick on the Home Office. I hope that that will not be the case but the possibility, remote though it may be, has not been lost on this side of the House.

Mr. J. Enoch Powell

I agree with the hon. Member for Peterborough (Dr. Mawhinney) in regretting that this amendment is being made at so late a stage. The alteration in the Bill is far reaching and it is most unfortunate that it has not been debated and appraised by the House in a way that it would have been had it been proposed at an earlier stage. We are back with a vengeance to what in years gone by—10 years ago to be exact—was known as the grandmother clause. We have it back again now.

It was in the original form of the Immigration Bill in 1971. It stirred great indignation almost universally on the Opposition side and caused great unease on the Government Benches at that time. It was removed—not without vestige—during the Committee stage thanks to the assistance which I received from the hon. Member for Dorking (Mr. Wickenden), although some of its effects were maintained by the immigration rules which in their substance ran counter in this respect to the decision which the House had taken during Committee.

If we agree to this amendment we shall have the following situation. Let us consider the case of one individual. Neither of his parents was born in the United Kingdom. Of their four parents only one, a grandmother, was born in the United Kingdom. All the other grandparents could well be not just Australians but, indeed, aliens. Now we are saying that, provided one of his parents spends three years before the time of his birth on and off in the United Kingdom, that individual, in right of a grandmother born in the United Kingdom, is to be a British citizen. I believe that it is a serious departure from the general structure both of the Bill and of our nationality law hitherto that we should conceive that one grandmother is sufficient by descent to confer the privilege of being a British subject on the grandchild—and I know that there is a minimal residential qualification on the way.

This is a principle which should not be hurriedly imposed on the Bill at this stage. Of course, the pressure has arisen from persons whose parents and grandparents were not exactly as I have described in my example. In most cases there was probably one other ancestor who had a close connection with the United Kingdom, and in almost all cases the ancestors would have been white. But that is not the decision that we are taking here. The decision that we are taking today is that, subject to the residential qualification of three years in the case of one of the parents—the transmitting parent—one grandparent born in the United Kingdom is sufficient by descent to confer United Kingdom nationality.

I believe that that is a most unwise step to take. I believe that it will result in all kinds of people who have no natural allegiance or connection with this country claiming British nationality. It gives an extension to the jus sanguinis which is out of accord with the rest of our nationality law.

Mr. Raison

We have had a debate about one of the most difficult and, in some ways, most important aspects of the Bill. If the hon. Member for Lambeth, Central (Mr. Tilley) had not said that he did not want to be churlish, I should have been tempted to be a little churlish with him. One can say fairly that on the whole question of citizenship by descent the Opposition have sat on their hands. They have said little about what they believe to be right. Occasionally they have made a few cracks about what they believe to be wrong about our proposals, but they have not faced up to the question.

For some reason which I do not understand, the Opposition have taken the view that the matter does not concern them and they have tried to duck the whole issue. Anybody who thinks about the principles of citizenship and nationality is bound to come to the view that one of the basic ingredients of citizenship and nationality will always be descent. There are certain fundamental aspects. The jus soli, jus sanguinis argument has highlighted two of the ways of acquiring citizenship. One is through birth and the other through descent. There are other ways of acquiring citizenship—by residence conveyed through naturalisation, by marriage, and so on. However, to duck the issue is regrettable.

It is a little naive to take the view that there should be no mechanism by which descent is conferred on the second generation born abroad. That view is out of line with nearly all the other citizenship schemes in the world. The jus sanguinis is qualified by certain countries in particular ways but it is still a system by which citizenship passes by descent. The Bill in some ways is a compromise in this matter. The outcome is, by any standards, much the most sensible of the various proposals for tackling the problem. I understand why the right hon. Member for Down, South (Mr. Powell) says that this is a bit late in the day. However, late though it might be, we have come up with the right answer.

My hon. Friend the Member for Peterborough (Dr. Mawhinney) said that it was a pity that the answer came in another place rather than here. So be it. If we support the existence of another place, as I and my party do, we must accept that it has a useful role to play. There is no reason why important and desirable amendments should not be made there.

The reason we did not discuss such an amendment here was that there was no such amendment to discuss. Some amendments were designed to prolong the system of consular registration, which has been a familiar part of our law. We did not feel happy about the proposals, although we compromised with a partial transitional extension of consular registration which, incidentally, remains in the Bill. It was not until a relatively late stage in proceedings that what I believe to be the right amendment was proposed. I apologise if anybody is unhappy about how we came to the present position, but I genuinely believe that we now have as realistic an answer as is possible.

I note what the right hon. Member for Down, South said about the history of the grandmother clause and the debate that we had in 1971 about grandpatrials and the immigration rules. The right hon. Gentleman can claim consistency. However, I cannot accept his notion that this is a serious departure from the Bill's structure. I am not sure that I can even accept that it is a serious departure from nationality law. The system of consular registration has been part of our citizenship law. That has been a mechanism for conferring citizenship by descent through the generations. I note that the right hon. Gentleman was careful to talk about grandmothers, because I know that he holds strongly the view that we are making a mistake by extending citizenship through the female line. We argued that at some length in Committee. I take a different view from the right hon. Gentleman. I think that we are right to extend citizenship through the female line.

To put that on one side, there was a system by which it was possible for the second generation born abroad to acquire citizenship. The Bill provides a system by which that is possible. That is desirable but it is not an open-ended acquisition of citizenship. The Bill does not provide that everyone in the second generation born abroad will be entitled automatically to citizenship. We have imported into the Bill a test of connection with this country which we believe to be a practical and working one. I refer to the three-year residential requirement.

5.30 pm

I understand the arguments that have been advanced in this interesting and short debate. However, I am convinced that the scheme that is before us is the right one. I hope that the House will support me in that view.

Mr. Stanbrook

I apologise to my hon. Friend the Minister of State and to the House for not rising in my place when the right hon. Member for Down, South (Mr. Powell) concluded his speech. My attention was temporarily diverted. I must apologise to my hon. Friend for not enabling him to take account of my remarks. I am one of those who have been strongly critical of the provisions which appeared to prejudice the position of Britons by descent, British communities abroad which were being deprived in the Bill, and still will be ultimately, of the right to consular registration. I acknowledge that by the amendment the Government seem to have gone a long way towards meeting the legitimate criticisms and anxieties of British communities abroad.

The original anxiety concerned those who would be Britons by descent on the enactment of the Bill. Under the Bill as drafted, their children would not automatically have been British. That caused a great deal of disquiet to those living abroad who formerly had assumed that they could continue citizenship throughout the generations by the process of registration. By the amendment, we must accept, the Government have acknowledged the problem. They have not removed it entirely but, as I understand the amendment, such a person being British by descent will be able to register the birth of his child, and the child will be British by descent provided that the parent has been three years in this country. That seems a reasonable way of preserving the connection.

However, I contend that we are going too far. We are diluting the concept of British citizenship in this way as in many others. When the Bill was first published, I approved of its contents, although I had some reservations about some of its provisions. However, there were some good parts and there was a great need to define British citizenship. As the Bill has passed through the parliamentary process it has constantly been modified and its terms have been loosened.

We have reached the stage at which no close qualifying connection is needed to pass on citizenship from one generation to another. I should prefer the qualifying period to be much longer than three years. Three years is insufficient. It means that some who have no real connection with Britain, but who are by the process of law Britons by descent, will be able to come to the country for three years and, being British people, will thereby be entitled without let or hindrance to pass on their British citizenship indefinitely.

British citizenship is of greater value than that. The purchase price is too low. Surely 10 years would be the appropriate qualifying connection. I am sorry that the Government did not see fit to require that period to establish the extraordinary privilege that will be passed on from one generation to another of children born abroad.

One of the results of the changes that we have made to the Bill's original character is that the status of the British citizen by descent is becoming isolated. He and he alone is the only one who cannot, as it were, upgrade his citizenship to the equivalent of British by birth. A Briton by descent is someone who was born abroad, perhaps in accidental and unintended circumstances. He will always be a Briton by descent, even if a few days after his birth he is brought to this country and lives here for the rest of his life. He will never be able to pass on automatically his citizenship to his children. He may be someone who in every other respect is totally connected with the country. The various provisions enable citizenship to be passed on by others, including so-called Britons otherwise than by descent, without let or hindrance.

What is the position of the children of Britons by descent? The Bill now includes a number of provisions that are in their favour. If such children having been born abroad are brought to this country and with their parents live here for three years, they acquire the right to be, in effect, British by birth, with all the rights, duties and transmissibility that arise from that. If those children are born abroad and are registered abroad, they are Britons by descent. Although they may subsequently be brought to this country, they cannot be the equivalent of British by birth. We are now saying that the children of Britons by descent born abroad can themselves be made into Britons by descent if their parents live in this country for three years.

I have no doubt that there are strong arguments for making it easy to transmit citizenship. Everybody benefits except the Briton by descent whose transmissibility is in question. He never has first-grade citizenship. There is no provision for his citizenship to be upgraded to that of British citizen by birth or its equivalent. That is one of the Bill's defects.

I accept that one cannot look a gift horse in the mouth. The amendment has met the substantial criticism of British indigenous stock born abroad and the objections which were expressed when the Bill appeared in its original form.

The criterion of employment for the qualifying connection proved to be extremely difficult. I do not accept the argument of my hon. Friend the Member for Peterborough (Dr. Mawhinney). The qualifying period of residence in this country is better than the employment connection, which was hedged with so many technical details and definitions. No doubt the hon. Member for Lambeth, Central (Mr. Tilley) would have said that it would give a great deal of employment to lawyers in applying it. It will be easier to apply the qualifying connection of residence

Mr. Tilley

I would have said what the hon. Gentleman has suggested.

Mr. Stanbrook

It is kind of the hon. Gentleman to confirm the accuracy of my statement.

On the whole, however, I believe that the changeover to a qualifying connection based on residence is one that should be welcomed on its merits. Although it is true that we should have given longer consideration to the matter in the House, and although I believe that three years is an inadequate period in which to establish that connection, I support the amendment.

Sir Ronald Bell

Like my hon. Friend the Member for Orpington (Mr. Stanbrook), I regret not having stood up when the right hon. Member for Down, South (Mr. Powell) sat down. I did not realise that he was sitting down because he had finished his speech, but the Minister did realise that, and the debate has therefore taken on an unusual form.

This is an important amendment which attracted a great deal of attention and which was subject to much debate in another place. It merits a little more attention than it has had in this short debate, which was occasioned by the disturbance that occurred.

I both agree and disagree with the right hon. Member for Down, South. I agree with him about the absurdity of the "one-grandmother" rule, because it was a fantastic mistake to extend nationality to the female line. That colours our approach to the change which was made in another place. It is absurd because one must have rules if one is to have a significant nationality. However, if either parent can transmit nationality, the scope of nationality is widened infinitely until it ceases to have any outline. It is similar to cheating at cards. However, if one gets rid of the absurdity of transmitting nationality both through the female line and the male line—which will lead to infinite dual nationality, and even quadruple and octuple nationality—one can look at the amendment from the practical point of view.

In practice I believe that the change will work in the right way. That point was made by the hon. Member for Lambeth, Central (Mr. Tilley). Although its theory may be alarmingly wide, it will mainly work to the advantage of people who are technically British. That is what we want to bring about. Surely, the extension of jus sanguinis is what we should be trying to achieve. For a long time past the whole movement of nationality law has been towards the place of birth. In the time in which we live, the place of birth is so unimportant as to be sometimes irrelevant. People move about the world quickly and British people who work abroad more often take their wives with them. The place where the baby happens to be born is a matter of almost the utmost triviality. To attach enormous significance to it is anachronistic. It is difficult to find a statutory definition of ethnic Britishness without causing apoplexy on Opposition Benches.

We should try to confine the right of abode in this country to those who are belongers. I take the word "belongers" from the speech of the right hon. Member for Cardiff, South-East (Mr. Callaghan) when he was Home Secretary. He was moving the Second Reading of the Commonwealth Immigrants Bill in 1968, which he said had the purpose of restoring the basic intention of the 1962 Act, which was to confine the right to live in this country to those who were belongers—those who had a long ancestral connection with this country. Those were splendid words. I have used them often and I use them again with happiness now—the British people are those with a long ancestral connection with this country.

Somehow or other we must make sure that those British people do not lose that citizenship—it is more than citizenship, it is the right to live here—simply because, for one or two generations, they have been working overseas. That is a nonsense now and has been so for a long time. One of my great grandparents was born in Australia—his parents happened to be there at the time—and another was born in Russia because, since I am Scottish, we built the railways of the whole world and the Russian railways were being built at that moment. Therefore, what matters is whether one is ethnically British. Somehow we must give a sensible definition of that.

As the right hon. Member for Down, South said, this Lords amendment goes a little wide in theory. In practical application, however, it will do nothing but good and will last us until we can have a new British Nationality Bill which will carry further the concepts of the jus sanguinis and exclude many more of those people whom the hon. Member for Lambeth, Central wants to come in. He knows well that he and I radically disagree on that subject.

Question put and agreed to.

Lords amendment No. 7 agreed to.

Lords amendment: No. 8, in page 5, line 23, after "application" insert— or his father and mother were legally separated on that date".

5.45 pm
Mr. Raison

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker

With this it will be convenient to take amendment No. 39.

Mr. Raison

The amendment amends the conditions under which a child born overseas to a British citizen by descent, and not acquiring our citizenship at birth, would have an entitlement to registration if he came to this country with his family to live. Clause 3(6) requires that he must reside here with both parents for three years, but subsection (7) relaxes this requirement where one of the parents is dead or the couple are divorced. That is what "terminated" means in subsection (7). It does not cover legal separation.

It was suggested to us in another place that that was unduly restrictive since it would not cover, for example, those who were judicially separated but not divorced—divorce in some cases being impossible for reasons of conscience or religion. The amendment is designed to meet that criticism by extending subsection (7) to cover the situation where a child comes to this country with one parent who is legally separated from the other.

The wording of amendment No. 39 is similar, except that it refers to the dependent territories. I hope that the House will agree with the amendment.

Mr. Tilley

We welcome the amendment, but it does not go as far as we should like. The addition of judicial separation to the categories of parental separation, which means that the parent with custody has the decision, does not go as far as we should like. We believe that cases where one person has disappeared or cannot be traced should be catered for. As the Bill stands, even as amended, if a deserting parent cannot be traced, the child will stay unregistered. Even if that deserting parent were traced, he—or she—would still have a veto over the registration of the child, although he had avoided his other responsibilities to that child.

Our amendment to the amendment has not been called because the draftsman found that "separated" meant the same as "legally separated". Therefore, while in common sense terms what we were saying made sense, in parliamentary draftsmanship terms it did not. However, it conveyed the spirit of what we were trying to achieve. Will the Minister say whether there is any way in which our point can be met by wider use of discretion if it cannot be met by further amending the Bill?

Miss Jo Richardson (Barking)

I am glad that as a result of the debate in another place the Government have thought again on this point and sought, through the amendment, to widen the subsection beyond the plain fact of death or divorce. That is to be welcomed. As my hon. Friend the Member for Lambeth, Central (Mr. Tilley) said, however, the clause is still restrictive in that it refers only to legal separation.

Many married people are living apart. They consider themselves, as it were, permanently separated, although, for a number of reasons, they are not divorced and have not sought a legal separation. They are certainly not living with their spouses. We sought to remove the word "legally" so that the circumstances of those people and their offspring could be taken into account. As the clause stands, even with the amendment, there would still be an obstacle in the way of such people, an obstacle which might disadvantage some children.

There was considerable debate in another place about this matter and about the definition of the word "terminated", which the amendment seeks to clarify and define. Much was said—the Government clearly accepted the spirit of it—about the circumstances which lead people to live apart without necessarily obtaining a divorce. The Minister has already referred to those who, for religious or other reasons, do not wish to divorce.

It is difficult to discover, although I have attempted to do so, the number of people in this country who are separated, but not legally separated in terms of an order by a magistrates' court. It is probably still guesswork, but I understand that in 1979 about 200,000 wives were separated without judicial separation. I have no means of knowing whether that was an intelligent guess, but, accepting that as the approximate figure, it suggests that the clause as amended, requiring people to produce evidence of separation, may disadvantage some people.

We can all cite people in our constituencies—let alone our personal acquaintances—who, in the course of explaining their problems, tell us that they are separated from their husbands or wives but that there is no legal separation. The matter arises frequently in connection with social security, which is why people's private lives are so often revealed. Those in the unfortunate position of having been deserted by their spouses may have children, born outside the United Kingdom, who wish to register but will be unable to do so.

What are they to do if the parents are not legally separated? The Government spokesman in another place gave his answer as follows: in the case of a separation which is not a judicial separation it is right that both the mother and the father should give consent to the application for registration. If they cannot do so under Clause 3(6), perhaps because one parent is living in the United Kingdom with the child, while the other parent is living abroad, then indeed they can apply for registration under Clause 3(1)."—[Official Report, House of Lords, 6 October 1981; Vol. 424, c. 70.] Clause 3(1) embodies the Secretary of State's discretion.

That does not take account, however, of the case in which one parent has deserted and cannot be found, leaving the other parent, as it were, to pick up the pieces. That parent, and more particularly any children from the marriage, will be in a difficult position. Will the remaining parent, who is not legally separated, be able to ask for the Secretary of State's discretion? Will the Home Office advise people in that position, as one of our colleagues in another place asked at that time, by rather more than the standard letter that they will have the opportunity to ask for the Secretary of State's discretion instead of being left high and dry?

The number is probably small, but if we do not sort this out—if only by getting some words on the record from the Minister—some children will be deprived of the opportunity for registration, because their parents, for whatever reason, have not obtained a judicial separation. I hope that the Minister will clarify the position, as there seems to be a yawning hole in the provisions in this regard.

Mr. Stanbrook

Clearly, the word "legally" qualifying the word "separation" is desirable. We need certainty and some degree of formality in these matters to know how to obtain the necessary evidence in seeking to effect registration under the Bill. There is, however, much to be said for the argument advanced by the Member for Barking (Miss Richardson) on the ground of the uncertain position of some parents in relation to their spouses. Does "legal separation" mean only judicial separation in the shape of an order by the divorce court? Does it include a separation order made by a magistrates' court, which is legally binding and has full effect for social security purposes and which may be obtained in the absence of the deserting spouse? Does it cover a separation under a formal, fully documented voluntary separation agreement which provides for maintenance?

A range of circumstances might be covered. One appreciates that there must be certainty and some means of producing evidence. Nevertheless, as the hon. Lady pointed out, there will clearly be cases and circumstances in which there will be doubt. I, too, therefore, would appreciate some guidance from the Minister as to the precise meaning of the term "legal separation".

Mr. Raison

I appreciate that the amendment does not go quite as far as the hon. Member for Lambeth, Central (Mr. Tilley) would wish, but I think that it has been generally welcomed by the House.

Clearly, the problem in having no legal definition of "separation" and no means of determining when there is legal separation is that there could be circumstances in which there is considerable confusion as to who is responsible for a child. Presumably, the point is that legal separation and divorce include some decision as to where custody of the child shall lie. To include no requirement for legal separation could clearly cause many problems.

A number of hon. Members, however, have asked whether there is any other way of dealing with the hard luck cases. As the hon. Member for Barking (Miss Richardson) will know from her long hours of service in the Standing Committee, there is always the invaluable provision of clause 3(1)—the Secretary of State's power to register minors. This is the type of circumstance in which it is reasonable to suppose that that power will be exercised.

I was asked whether we could put out some kind of information as to when this power would be used. Information which has the flavour of converting what is, after all, still a discretion into some kind of quasi-entitlement might produce problems. On the other hand, I accept the point that the hon. Lady was notable in pressing in Committee, that when the Bill becomes an Act as much information as possible should be made available to those whom it may concern. I accept that entirely. I hope that we shall be able to make people aware that the discretionary provision exists.

I hope that the House will agree to the amendment.

Question put and agreed to.

Lords amendments Nos. 9 to 11 agreed to.

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