HC Deb 27 October 1981 vol 10 cc728-35

Lords Amendments considered.

Lords Amendment: No. 1, in page 2, line 14, leave out the Secretary of State is satisfied that.

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The Minister of State, Home Office (Mr. Timothy Raison):

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

Mr. Speaker: With this it will be convenient to discuss Lords amendments Nos. 7, 10, 11 13, 15, 16, 17, 20, 21, 22, 26, 34, 38, 41, 44, 45, 46, 56, 57, 77, 78, 79 and 80.

Mr. Raison

The amendments remove the stipulations in the Bill that applicants for citizenship as an entitlement must satisfy the Secretary of State that they have met various requirements. It was suggested in Committee in another place that the inclusion of those words might deter applicants from approaching the courts when they had been refused an entitlement to citizenship, because they might suppose that the entitlement did not exist where the Secretary of State was not satisfied that the requirements had been met. It was not our intention to put obstacles in the way of aggrieved applicants through such a proviso. We are not convinced that the words will act to restrict the ability of the courts to consider an approach by someone who had been refused citizenship to which he believed himself entitled.

Nevertheless, we have decided that it is possible to operate the provisions without specifying that the entitlement should depend upon whether the Secretary of State is satisfied. If the criteria are met, the entitlement should obtain even if the Secretary of State is not satisfied. We accept, too, that the present form of words may lead to fears. There should be no ambiguity about what is demanded of applicants for citizenship as an entitlement. Accordingly, we have decided to remove that possible cause of anxiety and friction.

The amendment applies this decision to clause 1(4), but what I have said should be taken as applying the necessary variations to the many other amendments in the group. I ask the House to agree to the amendment.

Mr. John Tilley (Lambeth, Central)

The Opposition welcome this amendment, as we do all the amendments from the other place. We support the amendment especially because it came originally from Lord Gifford, who is a Labour peer. A whole series of entitlements throughout the Bill—it is not only clause 1 that is under discussion—can now be claimed through the courts. We hope that they will be effectively claimed where the Home Office refuses to grant the entitlement, so that they become a right rather than a concession, as they were seen to be before—although I accept the Minister's point that that was not the intention.

We hope that the courts will determine the facts of cases where there is a dispute over entitlement and not merely consider, as they do in some cases, whether the Secretary of State took reasonable steps to determine the facts. We also hope that the change will shift the burden of proof away from the applicant to some degree. The test of the amendments will be in the eating—once they get to the courts. However, we are happy to agree to amendment No. 1 and the numerous similar amendments throughout the Bill.

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Mr. J. Enoch Powell (Down, South)

Before the House agrees with the Lords in the amendment, I hope that the Minister of State can remove a cause of anxiety that occurs on studying the effect of the removal of the words whereby it appears that we may have created a new cause of jeopardy while seeking to remove a difficulty that might have stood in the way of rendering the Secretary of State's decision justiciable. I agree with the object of rendering these matters as little as possible—even apparently—dependent on the Secretary of State's discretion.

The problem that I pose is this. Let us suppose that, after a person had been registered, it appeared that, not as a result of fraud, which is provided for elsewhere in the Bill, but as a matter of fact he has been absent from the United Kingdom in the relevant period for a number of days exceeding 90. Would it not be possible, if the words were omitted, for it to be construed that, as a matter of fact, he was not entitled at the time he applied to be registered and that, accordingly, he had not been validly registered? Had we retained the existing words, presumably that could not arise since the statement would be, and would be certified, that at the relevant time the Secretary of State was satisfied, that, therefore, the entitlement existed and that, therefore, the registration was properly made.

I hope that without labouring the point I have made the difficulty clear to the Minister of State. My desire is not to render the matter more doubtful from the point of view of the applicant but to be quite sure that, by removing the Secretary of State's satisfaction from the wording here and elsewhere, we are not opening a possibility whereby registration might subsequently be placed in jeopardy.

Mr. Raison

As was often the case in Committee, the right hon. Member for Down, South (Mr. Powell) has asked a searching question to which he is obviously entitled to an answer. My understanding is that the matter is arguable. The Lords took the view that, on balance, it was better to remove the possible obstacle to the applicant. As I say, we have come to that view. I am not advised that there is a serious problem.

I accept that we are at a late stage in the progress of the Bill. I can only hope that the right hon. Gentleman will accept that the Bill as it stands is satisfactory. No doubt if the problem arose and the matter came to the courts, the strong probability is that they would interpret the legislation in accordance with the obvious intention.

Mr. Powell

Since the House will be returning later today to the question of justiciability in a wider although perhaps not identical context, if the question that I posed has taken the Minister of State somewhat unawares, he may be able in his reply at that time to include a more considered—I mean no reproach by that word—and fuller rebuttal of the anxiety that I endeavoured to formulate.

Mr. Raison

I am grateful to the right hon. Gentleman for that suggestion. I note what he says.

Question put and agreed to.

Lords amendment: No. 2, in page 2, line 23, leave out subsections (6) and (7) and insert— ( ) Where an order in consequence of which any person became a British citizen by virtue of subsection (5) ceases to have effect, whether on annulment or otherwise, the cesser shall not affect the status of that person as a British citizen.

Mr. Raison

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

Mr. Deputy Speaker (Mr. Bernard Weatherill)

With this we may take Lords amendment No. 35.

Mr. Raison

This amendment is designed to simplify and clarify a particularly complicated part of clause 1. The amendment seeks, first, to delete subsections (6) and (7) of clause 1, which seek to re-enact in terms of British citizenship the provisions of section 40(3) of the Adoption Act 1976. That subsection provided that, if a convention adoption order—or a specified order—ceased to have effect, a child would not cease to be a citizen of the United Kingdom and Colonies on that account.

There was no similar provision in the 1976 Act for any other adoption orders which may be revoked. It is in fact unlikely that a child would lose citizenship if adoption orders other than those defined in clause 1(7) were to be revoked, particularly since orders can be revoked only in very limited circumstances.

However, we have considered this matter following amendments which were put down in Committee in another place and we believe it right to take steps to remove any possible ambiguity that there might be. Accordingly, this amendment seeks to replace clause 1(6) and 1(7) with a more general saving. This would ensure that if any adoption order made by a court in the United Kingdom or islands which, under clause 1(5), has conferred British citizenship, ceases to have effect, that shall not affect the claim of the subject of the adoption order to British citizenship. Thus the saving currently found in clause 1(6) and 1(7) for certain types of adoption order will, under this amendment, extend to all types of adoption order made by any court in this country where such orders have conferred British citizenship under the provisions of clause 1(5). This will, we believe, be much more straightforward and simpler and will avoid the complexities of the present provisions. I ask the House to accept the amendment.

Amendment No.35 is identical in effect. It is the equivalent provision in the scheme of British citizenship. Its purpose is to add to the Bill a similar safegaurd in the case of citizenship of the British dependent territories. I hope that the House will agree that that is right.

Question put and agreed to.

Lords amendment: No. 3, in page 2. line 34, at end insert— ( ) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of subsection (4) treat the person to whom the application relates as fulfilling the requirement specified in that subsection although, as regards any one or more of the first ten years of that person's life, the number of days on which he was absent from the United Kingdom in that year or each of the years in question exceeds 90.

Mr. Raison

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

Mr. Deputy Speaker

With this we may take Lords amendment No. 36.

Mr. Raison

Clause 1(1) provides that a child born in this country after commencement shall be a British citizen only if one of his parents is a British citizen or is settled. Where neither parent is such a citizen or settled, clause 1(4) provides an entitlement to registration to a child who spends the first 10 years of his life here, provided that his absences from the country during his first 10 years do not exceed 90 days in any one year.

The new subsection (8), which this amendment introduces, enables the Secretary of State, if he thinks fit in the special circumstances of a particular case, to register someone under subsection (4) in cases where the applicant's absence or absences may exceed 90 days in any one year. This would introduce flexibility into the arrangements in subsection (4). It would enable registration to be effected in deserving cases where an applicant had exceeded his 90-day-a-year allowance through no fault of his own—a serious illness, for example.

I am sure that this amendment will be generally welcomed, and I call upon the House to agree to it.

Amendment No. 36 is the equivalent for citizenship of the British dependent territories. Again, I hope that the House will agree to it.

Mr. Tilley

I repeat that we welcome all the amendments, but we must break the convention of not being churlish. Apart from being descended from a long line of churls, I feel that I must make the point that the amendment goes nowhere near as far as we should like, although it moves in the right direction. With a few exceptions, that is true of every amendment here for consideration. The Government, having lost the argument, instead of reversing their position merely make tiny cosmetic changes that do not meet the objections, although they may appear to do so.

The amendment is a prime example of that. It is monstrous that children born here should be stateless for the first time in British history. It is also monstrous that they should have to wait 10 years before they can register as British citizens. Added to those two monstrosities is what I can only describe as the petty, bureaucratic and unworkable restriction that only 90 days of each of those 10 years can be spent outside the United Kingdom if someone is to qualify.

With a great flourish the Government announce a new flexibility in working the restrictions. It is a minor restriction compared with the monstrosities of statelessness created when children must wait so long before becoming registered citizens.

No action was taken by the Government here or elsewhere about the statelessness which has been created by the Bill. That is the central horror of the Bill. As the Minister of State made clear in Committee, the Government want to be able to deport the children as stateless. If, despite their parents' status, the children acquire Bitish citizenship through their birth, it might be difficult to deport them, because of current convention and possible future legal restrictions on the deportation of citizens.

There has been no action on the long delay—the 10-year wait—during which parents face uncertainty about their child's future. The child may be stigmatised at school. For example, if teachers intend taking a class abroad they may find that one of their pupils cannot obtain a passport because he or she is stateless. The leader of the ILEA, Bryn Davies, wrote to the Home Secretary on 31 July this year expressing disquiet about the terms of the Bill. He said: There has been growing concern from parents and teachers in our schools that this Bill could lead to hardship amongst children … who have no experience of any other country other than the United Kingdom and speak no language other than English but then discover that they are not British subjects. The suffering arising for these children is a matter of grave concern not only to their families and teachers but is a matter on which we, as an education authority, must express deep disquiet. Not only will it affect the particular children involved but it will make it more difficult to develop, in our education service, the understanding necessary to provide an education which has the confidence of the people of inner London. That states the educational problem very clearly. I hope that the Minister, as a former member of the ILEA, will pay particular regard to that.

The central reason why the amendment is merely cosmetic is that the vast majority of children involved will have been deported. That will occur long before they get the chance to qualify in terms of the 10 years or to accumulate the number of necessary days per year spent in this country.

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The small change proposed in the amendment recognises what we have said before—the impossibility of proving how many days, within a 10-year period, a child spends in the United Kingdom. That is particularly so with children below school age. In our opinion, the original concession allowing registration after 10 years, was only cosmetic. The latest daub does not create a more convincing make-up.

Last night the Minister took me to task, when discussing the timetable motion, for suggesting that hundreds of children would be stateless each year. I remind the Minister of what he said in Committee: if one supposed that 90 to 95 per cent. of the parents concerned were our citizens or were settled, that would still leave between 3,000 and 6,500 children born here each year to parents who are neither citizens nor settled."—[Official Report, Standing Committee F, 12 February 1981; c. 41.] A large number of those children would have other nationalities because their parents would be jus sanguinis; although the parents were not in their country of origin, the children acquired the nationality of that country.

It is not unreasonable or wild to suggest that hundreds of those children, who may be as many as 6,500 a year according to the Minister's own estimates, would be born stateless in this country from the first year that the Bill commenced and in subsequent years.

I press the Minister to expand on his comment. Last night he had only a few minutes in which to conclude that I suspect that it would not have been in order for him to expand on the matter. The Government cannot have it both ways. They certainly cannot have it three ways. If only a small number of children are made stateless under the Bill, why on earth have the Government resisted, here and in the other place the amendment which would have provided that children born stateless would automatically become British? If it be such a tiny number, why are they bothering to dig in their heels?

The second possibility relates to a large number of children. If it be a large number, why do the Government not admit that they are creating a large number of stateless children in Britain for the first time?

The third possibility is equally untenable for the Government in the light of their actions. If the Government state that it is impossible to say how many—if they intend to guess—they should not ask the House to pass legislation whose effect is unknown.

I should be grateful for the Minister's answers on those matters. However, we are not pinning our arguments on numbers. If one child is born stateless—we know at least one child will be born stateless under the Bill—that would be reason to oppose this part of the Bill. We welcome the amendment as a slight modification of an unjust clause, but we wish that the clause and the Bill had not been introduced in the first place.

Sir Albert Costain (Folkestone and Hythe)

The Minister knows that I have had correspondence with him on this point. What sort of travel document will the children get if they wish to go abroad? There are obviously provisions for them to go abroad. What sort of travel document will they be given if they are not travelling with a parent? That is a real problem in a constituency like mine, where a number of students come over to learn English. They sometimes marry English girls. Their place of origin has a political upset, they cannot return home and they become stateless. What documents will be given to these children to allow them to travel?

Mr. J. Enoch Powell

I agree that it is a narrow discretion given by the Lords amendment to the Secretary of State to widen the ambit of subsection (4). That is a useful provision and improves the clause.

I welcome the opportunity that has been given to the Minister of State to repudiate a lot of the nonsense that has been talked by others, including the hon. Member for Lambeth, Central (Mr. Tilley), about statelessness. Listening to the hon. Member one would suppose that those who were not British citizens were stateless. That is the sort of arrogance that has not been entirely absent from our debates on the Bill.

Mr. Tilley

Surely the right hon. Gentleman cannot have forgotten that only a few moments ago I said that a large proportion of the 3,000 to 6,500 children born of parents who were neither British citizens nor settled here would have another nationally because their parents would be able to bestow it upon them through the jus sanguinis. I did not say that all the children would be stateless, but my estimate of some hundreds is reasonable.

Mr. Powell

As I listened to the hon. Gentleman's remarks, I noticed that they narrowed prismatically as he went on. He started with the most sweeping statements and ended up with a few hundreds. Indeed, I was not even sure that there were a few hundreds left by the end. That is the sort of misconception that has attached to the clause for a long time.

It must be the rarest thing for those who are temporarily resident in this country, being nationals of another country, who have a child born here not to be able to transmit that nationality or not to be able to secure travel documents for the child. I am not dealing with the revolution case which the hon. Member for Folkestone and Hythe (Sir A. Costain) mentioned.

The idea that we should alter the principle of the Bill in order to deal with that minimal chance is absurd. As I read clause 3(1), it provides any Secretary of State with the necessary discretion—no conditions are applied to the subsection—where actual statelessness occurs, and we are committed as a nation to do all that we can to avoid statelessness, and where the circumstances outlined by the hon. Member for Folkestone and Hythe arise to put the matter right for the child affected.

I hope that the House would not be disposed to think that we should alter the basis of clause 1 in order to deal with cases which, as I am sure the Minister of State can show, are a vanishingly small proportion of children born here who will not become British citizens under the provisions of the clause as it stands

Mr. Raison

I am glad that the House welcomes the amendments that we are meant to be debating. The debate has broadened a little into the realms of statelessness, and what the right hon. Member for Down, South (Mr. Powell) has just said is essentially true. I agree with him that the hon. Member for Lambeth, Central (Mr. Tilley) seemed to be rather like a concertina in his assessment of the problem of statelessness. It loomed larger at some points of his speech than at others.

The Bill is unlikely to cause statelessness except in the occasional case where another country's laws fail to give citizenship by descent, which may happen to a few children born here in the second generation outside their countries of origin.

I agree that discussion of clause 1 has been bedevilled by a widespread misunderstanding on the issue of statelessness. I have noticed that in another place and in public discussions outside the most extravagant claims have been made about the extent to which the Bill will create statelessness among people born here. That will occur in very few cases indeed.

My hon. Friend the Member for Folkestone and Hythe (Sir A. Costain) raised a significant practical problem. The answer is that the great majority of children born here who do not acquire British citizenship will have another citizenship and will be able to get a passport from the country of which they are citizens. If they are stateless, they will be able to turn to the Home Office for travel documents and that will solve the problem. I think that I have covered the main points raised in our short debate, and I hope that the House will approve the amendment.

Mr. Tilley

By leave of the House and having been described as a prismatic concertina—to put the two insults together—I should like to answer the points made in the debate.

The Minister has not been able to substantiate his point, and the point made by the right hon. Member for Down, South (Mr. Powell) was not substantiated other than in generalities. If the Government do not know the numbers involved, they are at fault.

My position can be attacked on the ground that I do not have the information to make a close and accurate estimate—any more than it appears that the Government have such information—but my position has at least been consistent. I referred to a few hundreds both in Committee and in last night's debate, and Hansard will prove that I referred to a few hundreds this afternoon.

Question put and agreed to.

Lords amendment: No. 4, in page 2, line 34, at end insert— O In this section and elsewhere in this Act "settled" has the meaning given by section 49.

Mr. Raison

I beg to move, That this House doth agree with the Lords in the said amendment. The amendment seeks to add to clause 1 a new subsection which draws to the attention of the reader that the term "settled", as used in clause 1 and elsewhere, is defined in clause 49, the interpretation clause. The amendment arises from a suggestion made in another place and is intended to be helpful to the reader by warning him that "settled", which is a word in common usage and with an ordinary meaning, has, for the purposes of the Bill, a technical meaning as set out in clause 49.

Mr. Tilley

This is the Humpty Dumpty amendment, which makes it clear that words mean what the Minister and the draftsman say they mean rather than what they mean in common language.

That is not a new element in the Bill or in immigration law. The definition of "settled" is peculiar, to say the least, in cases that have already occurred. We are glad that another place forced the Government to come clean and to make it clear that "settled" has not its everyday or common sense meaning, but a technical, legal meaning.

While making a clean breast of it, the Government should also admit that no one knows what the legal meaning is. In another place the Under-Secretary of State for the Home Department, Lord Belstead, came near to admitting that during a discussion of the meaning of "ordinarily resident", which is one of the component parts of the meaning of "settled". I understand that, even within the past couple of weeks, the Court of Appeal has spent four days trying to sort out the meaning of "ordinarily resident" in a case involving students—not an immigration case. The court has not yet given its decision.

In fact, the amendment is not telling people much. It is a pointer into the labyrinth of immigration law, but it does not point the way out. Perhaps it will simply mean that lay men and women who read the Bill will realise that they are confused when they get not to clause 49, as would have been the case with the Bill as it left this place, but to clause 1. To the degree that the amendment exposes the nature of the Bill we support it.

Mr. Ivor Stanbrook (Orpington)

It would not be right to allow the speech by the hon. Member for Lambeth, Central (Mr. Tilley) to pass without criticism. It may be that courts debate the precise meaning of "ordinarily resident", but, if so, that is because some people claim that it does not apply to them. Like any other formula in the law, it is well recognised, but often debated and disputed. It is untrue to say that there is any real difficulty about the phrase. It has been accepted in the law for many years, and it would be wrong to give the impression that it is vague, uncertain or lacking in definition.

There is a definition which is known to the courts through established cases over many years. I suspect that it is the intention of some people—I do not accuse the hon. Member for Lambeth, Central of being one—further to discredit the Bill by suggesting that some concepts are not perfectly clear. This one is.

Question put and agreed to.

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