Nationality, Immigration and Asylum Bill (Hansard, 8 July 2002)

§ Lord Dholakia
moved Amendment No. 59: Page 3, line 2, after "satisfied" insert "on reasonable grounds The noble Lord said: This amendment is grouped with Amendments Nos. 63, 67 and 73. I refer to the report of the Joint Committee on Human Rights and, in particular, to paragraphs 27, 28 and 29.
I turn to paragraph 27. The committee reported that it was concerned that there was no requirement for the Secretary of State to show that there were objectively reasonable grounds for depriving someone of British citizenship. That appeared to put at risk a person's legal status without adequate safeguards against arbitrariness.
In reply, the Home Office referred to a long history of allowing the Secretary of State to deprive people of British nationality on the basis of a subjective view. It argued that it was entirely appropriate that the Home Secretary should be permitted to decide whether a person had done something seriously prejudicial to the vital interest of the United Kingdom or a British overseas territory.
The committee said at paragraph 29 that it could not agree with that line of argument. It recognised that the Secretary of State was likely to be in a particularly good position to form a judgment and that it may, in consequence, be entitled to considerable respect. However, it considered that the Secretary of State should be required to justify the decision by showing that there were reasonable grounds for it.
The conclusion of the Joint Committee is interesting. It said: As a matter of general principle, we consider that it is a far more effective guarantee against arbitrariness, and a better way of assuring good administrative decision-making (as well as being far more compatible with the rule of law which underpins human rights), to require public authorities to justify the deprivation of a 531 person's status to a standard of reasonableness, than to require the person subject to the decision to establish that it is wholly unreasonable". In taking into account the arguments of the committee, I believe that we need to insert the words "on reasonable grounds" into Clause 4, as Amendment No. 59 seeks to do. Similarly, Amendment No. 63 seeks to insert those words into Clause 4 at page 3, line 8. Amendment No. 67 seeks to leave out the words "he is satisfied" and insert "there is reason to believe" in Clause 4 at page 3, line 13. Finally, Amendment No. 73 seeks to insert in Clause 4 after the word "satisfied" the words "on reasonable grounds" at page 3, line 26.
Those are the requirements which will satisfy the Human Rights Joint Committee. This matter has not been discussed by the House of Commons. Therefore, I hope that the Committee will agree to the amendment and that the Minister will consider this request sympathetically. I beg to move.

§ Lord Kingsland
I believe that, to some extent, the debate on this amendment runs on from the debate on the previous group of amendments. Therefore, I do not believe that it is necessary to go into all the arguments that were deployed immediately before the dinner adjournment.
I share the noble Lord's approach to the text of the clause. In my submission, it is appropriate to require the Secretary of State to justify his or her decisions on reasonable grounds. That will have the effect of placing the initial burden of proof on the Secretary of State. As things stand, the noble Lord the Minister is correct in saying that the Secretary of State will have to give reasons. But, in these circumstances, the onus will be on the defendant to judicially review, in some circumstances, or question in the course of appeal, in others, their reasonableness.
In this context, "reasonableness" means something different from the word "reasonable" in the tabled amendment. Here, "reasonableness" is an expression used in the context of the famous Wednesbury case. Has the Secretary of State behaved within a range of conduct which is regarded as reasonable by the courts? That is a far lighter test than that which the noble Lord, Lord Dholakia, wishes to insert into the Bill, and I respectfully support his approach. Given the subjective nature of the Secretary of State's power, it will be extremely difficult to use, successfully, the Wednesbury weapon.

§ Lord Avebury
I rise to quote briefly from the report of the Joint Committee on Human Rights, to which my noble friend referred. For the sake of those outside this Chamber who may read the debate and not understand what Wednesbury entails, it is important to spell it out, as the Select Committee did. The committee stated that to prove that a decision was unreasonable within the terms of Wednesbury means, that it was so unreasonable that no reasonable Secretary of State, properly understanding the relevant facts and applicable law, could have come to that conclusion". 532 That is a difficult hurdle for anyone to surmount in challenging a decision of the Secretary of State. The insertion of the words proposed by my noble friend would redress the balance.

§ Lord Filkin
As the noble Lord, Lord Kingsland, said, this runs on from our important and challenging debate before the dinner break. I do not expect that any of us is likely to substantially shift our opinions, even after a good dinner. Nevertheless, I shall seek to explain why the Government believe that the amendments are unnecessary.
As we have indicated previously, and as we informed the noble Lord, Lord Lester, in response to the JCHR report, we believe there are strong grounds for the Secretary of State having the power to make the initial judgment, which we believe has to be essentially subjective in the light of both the evidence before him and his judgment about the risk to the state, which is the second element which is germane to this issue.
There is provision elsewhere in Clause 4 for the reasonableness of the Secretary of State's position to be tested on appeal. In any event, the enforceable principles of administrative law import a requirement that the discretion be exercised reasonably, as has been indicated.
The fundamental point is that the appeal is not limited to judicial review, nor is it limited to the Wednesbury test; it is broader. The statutory appeal is a full appeal on the merits as well as on the law. Therefore, it is not, I suggest, simply as the noble Lord, Lord Kingsland, or perhaps the noble Lord. Lord Dholakia, suggested: that one had to overcome the quite severe burden of demonstrating that it was an act that no reasonable Secretary of State would have taken, but it is level on the merits of the case.
As presently defined, Clause 4 would empower the Secretary of State to withdraw citizenship by deprivation order if he is satisfied as to certain matters. As I have indicated, we believe that it is only the Secretary of State who is in a position to make that judgment.
As regards the ability to deprive someone of the basis of fraudulently obtained naturalisation or registration as a citizen, again the Secretary of State must be satisfied that the registration or naturalisation has been obtained by fraud before he can deprive.
Amendment No. 67 suggests that potential statelessness should be a matter capable of objective determination. But the reality is that there is endless scope for discussion, debate or disagreement over whether a person has a claim to another nationality. That has been our experience in implementing the British Nationality (Hong Kong) Act 1997, Section 1 of which confers in certain circumstances an entitlement to registration as a British citizen on a British overseas citizen who, would have been a stateless person if he had not been such a citizen". Requiring the Secretary of State to prove possession of an alternative citizenship to a reasonably objective standard before proceeding under proposed Section 40(2) would be impractical.
533 The fact that the Bill would facilitate deprivation of nationality on the subjective view of the Secretary of State does not mean that it would be exercised arbitrarily. The Bill requires him to give written reasons, as referred to by the noble Lord, Lord Kingsland, for his decision, and the right of appeal for which we provide would enable a person to bring before an independent body any issue bearing on either the legality or the merits of the decision in order for it to be sustained on appeal. It would not be a case of the Secretary of State simply saying that he was satisfied without explaining why.
The appeals provided for in Clause 4 are full appeals, as I have signalled, where the appellate body could review both the legality and the merits of the decision. It would not, as the JCHR suggested in its report, be limited to considering whether the Secretary of State had acted wholly unreasonably.
I should add finally that a requirement for the Secretary of State to be "satisfied" that certain preconditions are met presently occurs at various points in the 1981 Act without the express qualification that his satisfaction would be "on reasonable grounds". We believe, therefore, that the proposed amendments are unnecessary, particularly because of the opportunity to exercise a full appeal on the merits if so chosen.

§ Lord Dholakia
I thank the Minister for that explanation. I shall obviously study his comments carefully. It may be appropriate to consult the members of the Joint Committee on Human Rights which came to that conclusion, as to whether the explanation offered by the Minister was available to them. The committee seemed to reach a particular decision. It may be necessary to reflect on that decision and come back on Report. I am sure that the arguments on Clause 5 will continue for a long time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ The Deputy Chairman of Committees (Baroness Gould of Potternewton)
Before calling Amendment No. 60, I must inform the Committee that if that amendment is agreed to, I cannot call Amendments Nos. 61 or 62.

§ Lord Dholakia
moved Amendment No. 60: Page 3, line 3, leave out "vital interests" and insert "national security The noble Lord said: I shall be brief. While the definition given in the Bill mirrors that of the European Convention on Nationality, we find that it is too loosely drafted. Again, citizenship is of fundamental importance. Many of us see it as a right; its deprivation should not be treated lightly. Therefore, we propose that instead of the vague phrase "vital interests", which has little case law and does not come from British tradition, we use the phrase "national security" as the test in new Section 40(2). It is well tried and tested, far clearer, more specific, much 534 less general and therefore much less worrying. I hope that the Minister will accept the amendment. I beg to move.

§ Lord Kingsland
As the noble Lord, Lord Dholakia, said, this group of amendments relates to the criterion by which the Government propose to allow the Secretary of State to deprive a person of his or her citizenship.
The existing criteria in the British Nationality Act, which relate to disloyalty to Her Majesty; trading with the enemy in time of war, and the imposition of a sentence of imprisonment of 12 months or more, are to be abolished and replaced with a single criterion of doing anything seriously prejudicial to the vital interests of the United Kingdom.
As has been said in previous debates, the Government do not attempt to define "vital interests". Amendment No. 61 attempts to correct that by defining them in terms of national security, economic well-being and the safety of the population. The first two, national security and economic well-being, are terms already used in the Security Service Act 1989 to define the functions of the Security Service.
The third, the safety of the general population, was an example of a "vital interest" given by the Minister in another place in the Standing Committee report, when she said that national security does not necessarily cover some of the potentially prejudicial activities that are worthy of deprivation, such as to those to do with infrastructure, vital economic interests or the general safety of the population.
I apologise to the Committee for a drafting error in the amendment, which rendered the Minister's, general safety of the population as, safety of the general population". However, the point, such as it is, remains good.
Amendment No. 62 seeks to take an alternative route by defining the phrase "vital interests" in terms of the two international conventions in which it appears: the United Nations convention on statelessness and the European Convention on Nationality. Those were the measures referred to in another place by the Minister as being the source of the term "vital interests". However, I do not believe that "vital interests" is defined in detail in either of those conventions. Thus the same problem of definition may well remain, even with the amendment.
I hope that the Minister, especially in view of the fact that the debate in Committee in another place was curtailed by the operation of the timetable Motion, will be able to respond positively to the amendments and to set out in detail the Government's interpretation of the words "vital interests".
I ought to say that these amendments, and the way in which I have sought to explain them, in no way resile from the views expressed by the Official Opposition in the last two groups.

§ Lord Filkin
I thank both noble Lords for their contribution to the discussion of whether or not the 535 term "vital interest" is beneficial. I shall seek to suggest why it is in the general interest for the term not to be defined further.
Ever since the British Nationality and Status of Aliens Act 1914, the law has made provision for citizenship conferred by administrative grant to be withdrawn where the person concerned is found subsequently to have harmed, or posed a threat to, vital state interests.
In current legislation, such actions are expressed in terms of disloyalty or disaffection towards the Crown, or as unlawful trade or communication with an enemy in time of war.
Those expressions, while they still carry meaning, have become dated and perhaps fail to reflect the full width of activity that might threaten our democratic institutions and our way of life. September 11th provides a horrific illustration of the sort of threat that we have in mind.
The Government are on record as stating that the term "vital interests" will be interpreted as covering threats to national and economic security and to public safety—in that respect we are foursquare with the points made by the Official Opposition—but not to actions of a more general criminal nature, of which Members of the Committee will be aware from the debate in another place.
The term occurs in the 1961 and 1997 conventions. It is not expressly defined in either of those places. As a term of international law, the concept is an evolving one. That is right and necessary. If one reflects on how our perceptions of the vital interests of a state could be threatened and how all of us have shifted in the past 12 months. One hopes that it will not occur, but it is conceivable that we may yet further change our perception.
For that reason, the concept being an evolving one, and states being allowed a margin of appreciation in applying it to situations arising within their own jurisdictions that they might not previously have conceived were possible, seems to me to be right and proper.
I hope that the Committee will understand, therefore, why we do not consider "vital interests" to be a term that benefits from an attempt at further definition on the face of the Bill.
I remind the Committee of the safeguards, both in the Bill and in current legislation, against the arbitrary use of the deprivation powers. A right of appeal against deprivation will lie either to an immigration adjudicator in the first instance or to the Special Immigration Appeals Commission. To repeat the points we made on a previous amendment, the challenge in such a hearing is on the merits and on the law. A defence could be that this does not touch on the vital interests of the state. That would be a perfectly open line of argument to be made by a defence counsel at an appeal hearing before an adjudicator or before SIAC.
536 For those reasons, I hope that both Benches will recognise why we feel that it is not in the interest of the Government or of the state that the term is given a tighter definition than it already has.

§ Lord Dholakia
I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Avebury
moved Amendment No. 65: Page 3, line 13, after "(2)" insert "or (3) The noble Lord said: As the Bill stands the Secretary of State cannot use the powers under Clause 4(2) if as a result of so doing it would make the person concerned stateless. We seek to extend that prohibition to Clause 4(3) under which a person may be deprived of citizenship for the reasons mentioned—fraud, false representation or concealment of a material fact.
Obviously, the UN Convention on the Reduction of Statelessness comes into the picture. It would be interesting to know from the Minister whether the exercise of this power making someone stateless for the reasons given would in fact bring us into some difficulty with the convention. I think it probably would. In any case, it may also cut across the obligations that we have under Article 2(3) of the International Covenant on Civil and Political Rights. Under that article we undertake: (a) To ensure that any person whose rights or freedoms … are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity". In this case a person's rights have been taken away from him by the Secretary of State. He has even less chance of contesting a declaration of citizenship under Clause 4(3) than he has under Clause 4(2) because the offence is virtually an absolute one. It is not a matter of opinion. In Clause 4(2) the Secretary of State has to be satisfied that a person, has done anything seriously prejudicial to the vital interests of the United Kingdom". That matter can be argued, as the Minister has already told us, before an adjudicator and in the final analysis before a court in terms of judicial review.
But where the person has obtained citizenship by means of fraud, false representation or concealment of a material fact, those are ascertainable facts which would be very difficult for anyone to contest. So he does not have an adequate remedy under Article 2(3) of the covenant for the deprivation of the right of citizenship under the clause. I hope that for the sake of our good name with the international community, and also for the sake of consistency between Clause 4(2) and (3), the Minister will accept the amendment. I beg to move.

§ Lord Falconer of Thoroton
As the noble Lord has said, Clause 4 proposes the removal of the present distinction on deprivation between those who have 537 acquired nationality by registration or naturalisation and those who acquired it automatically at birth. My noble friend Lord Filkin has gone through that issue.
As the noble Lord, Lord Avebury, has pointed out, the impact of the change is mitigated by the proviso in proposed Section 40(4) of the 1981 Act which would prevent deprivation on grounds of seriously prejudicial activities where the person concerned had no other citizenship. Again, as the noble Lord has rightly pointed out, deprivation would still be possible, even where statelessness might ensue, where the citizenship is being removed on the grounds of fraud, misrepresentation or concealment of a material fact. The question posed by the amendment is, why should that distinction exist? "Please"—the noble Lord is saying—"bring it into line with all the other circumstances".
The distinction is where the citizenship has been obtained by fraud, misrepresentation or concealment and that person should not have acquired the citizenship in the first place. That is unlike the other situation where he or she should have received it, but then has done something to deprive himself or herself of it. The allowing of the deprivation of citizenship, even where that would make one stateless on those grounds, is consistent with the provision made in that regard by the 1961 UN Convention on the Reduction of Statelessness, to which the United Kingdom is a party. It is also consistent, we say, with the 1997 European Convention on Nationality, which we hope to ratify in due course.
So there is a reason for the distinction. It is consistent with our obligations under international law which we have either signed and ratified or signed and hope to ratify. Looking at the picture as a whole, Clause 4 represents a significant improvement on the present situation regarding the avoidance of statelessness. At present, potential statelessness is an obstacle to deprivation only on grounds of a serious criminal conviction.
As a footnote, perhaps I may clarify our position on dual nationality. Generally speaking, it is one of tolerance. There is no restriction in our law on the ability of British citizens, British Overseas Territories citizens, British overseas citizens or British nationals overseas to acquire or retain a second nationality or citizenship. For historical reasons, the same is not true of British protected persons and certain British subjects, who lose their British status on acquiring another citizenship. The Bill will not change these arrangements. But that is a footnote to the main point raised by the noble Lord. I hope that in the light of what I have said, the noble Lord will understand why we have drawn the distinction, why it is consistent with international law and why we think that it is sensible to retain it.

§ Lord Avebury
My Lords, I shall obviously consider carefully what the noble and learned Lord said. Returning to his initial remark that the individual 538 concerned should not have acquired UK citizenship in the first place, of course that is so, but the result of depriving him of citizenship is the same.
I am thinking of the matter from the point of view of the subsequent fate of an individual who has no other citizenship. If, when he acquired our citizenship, he was a citizen of another country and retained that nationality—as the noble and learned Lord said, we have no objection to people having dual nationality—presumably, he will simply usually revert to his former citizenship. But there may be unusual cases in which that other country does not allow dual citizenship and in which, when someone loses his British citizenship, he becomes stateless. That would not be a good idea.
So I shall consider the matter in the light of what the noble and learned Lord said, but I do not guarantee that I shall not return to it on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Falconer of Thoroton
moved Amendment No. 71: Page 3, line 20, leave out "2(2A)" and insert "2B The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 75 to 78 and 81 to 85. Although at first sight the amendments appear somewhat complex, they are designed to secure two fairly simple and, I hope, uncontroversial objectives.
First, we want to remove certain inconsistencies between Clauses 4 and 85 of the Bill. Each of those enables, albeit in different circumstances, an appeal to the Special Immigration Appeals Commission if the Secretary of State has certified that his decision was made in reliance on information that should not be disclosed in the interests of national security or on similar grounds. However, Clause 4 as drafted refers to, another matter of a political kind". whereas Clause 85 refers to, another reason of a political kind". The amendment will ensure that both clauses refer to, another reason of a political kind". The second objective is to provide a free-standing provision in the Special Immigration Appeals Commission Act 1997 for appeals against deprivation of citizenship. That would avoid complications that would result if other provisions in the 1997 Act relating to appeals against immigration and asylum decisions were to be amended. I beg to move.

§ Earl Russell
My Lords, this is an appropriate moment at which to ask: what exactly is meant by, another reason of a political kind"? Presumably, it means a little more than that one does not like the chap's politics. If so, perhaps the noble and learned Lord could tell us what.

§ Lord Falconer of Thoroton
My Lords, I am loath to say too much. That is a matter for the court to decide, 539 but it refers to matters of equivalent significance to those mentioned in proposed new Section 40A(2)(a), national security, and in proposed new Section 40A(2)(b), international relations, but not of precisely the same nature. Information from non-state sources proving relevant to the decision to deprive on the basis of activity prejudicial to the vital interests of the United Kingdom would he an example. Sensitive information relating to industrial espionage may be another.

§ Earl Russell
My Lords, presumably the provision must add something to the interests of national security and the relationship between the United Kingdom and another country, or it would not be there. What does it add?

§ Lord Falconer of Thoroton
My Lords, the relationship is that it will cover matters of equivalent significance to national security and international relations, but not of precisely the same nature. There are categories of things that would fall within the category that I have defined.
On Question, amendment agreed to.

The Deputy Chairman of Committees
My Lords, before calling Amendment No. 72, 1 must inform your Lordships that, if Amendment No. 72 is agreed to, I cannot call Amendment No. 73 for reasons of preemption.

§ Lord Dholakia
moved Amendment No. 72: Page 3, leave out lines 22 to 30. The noble Lord said: My Lords, there is concern about the retrospective effect of Clause 4. It appears to give the Secretary of State power to apply the powers conferred on him by Clause 4(3) retrospectively. For example, anyone who obtained citizenship through fraudulent means, even before the Bill came into force, could he deprived of citizenship. That retrospective application of the law runs counter to basic legal principles. More interestingly, perhaps, why do the Government feel the need to assume that retrospective power? Do they have any particular case in mind?
We have been advised by the Immigration Advisory Service that the clause would effectively be retrospective legislation, giving a power to remove people's existing rights to a lower standard of proof than that of "beyond reasonable doubt". The fraud, false representation or concealment of a material fact need not have been committed by the person losing his citizenship but could have been made, or be alleged to have been made, by a third party. That is a matter of concern, and we await the Minister's explanation. I beg to move.

§ Earl Russell
My Lords, one further point arises. Has the noble and learned Lord taken advice on the application of Article 7 of the European Convention on Human Rights? I have heard the noble and learned Lord the Attorney-General describe the article as a 540 provision against retrospection. No doubt, there is some reason why it does not apply here, but I should be glad to know what it is.

§ Lord Falconer of Thoroton
A power to withdraw citizenship on the grounds that the registration or naturalisation from which it results was obtained by fraud, false representation or the concealment of a material fact is included in subsection (3) of proposed new Section 40 of the British Nationality Act 1981. Proposed subsection (6) would simply make it clear—one might say for the avoidance of doubt—that a similar power exists in relation to persons who derive their present citizenship from registration or naturalisation granted before the 1981 Act entered into force on 1st January 1983.
In setting out the provisions in this way we have followed the pattern of the existing Section 40, in which subsections (2)(b) and (c) serve a similar purpose to that of our subsection (6). We are therefore simply continuing the power to deprive that existed pre-1983. There is no obvious justification for excluding those who became citizens by registration or naturalisation before 1983 from the ambit of the powers to deprive on these grounds. The present law makes no such distinction, and the general thrust of the Bill is to treat all our citizens equally in that respect. I hope that that explains the proposition.

§ Lord Dholakia
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Kingsland
moved Amendment No. 74: Page 3, line 30, at end insert— (7) The exercise of any power conferred on the Secretary of State by virtue of this section shall not affect the rights of abode or leave to remain of any person or his dependants. The noble Lord said: Amendment No. 74 probes what effect, if any, the deprivation of citizenship would have on the right of abode, or leave to remain, of both the person affected and his dependants. Having deprived a person of his citizenship, the Secretary of State may wish to deport him in the public interest. The amendment seeks to prompt an explanation from the Government as to such a person's immigration status, and the way in which any revocation of permission to stay in Britain and any deportation action would have to be taken under other provisions of the law.
Such a person might have a spouse who is not a British citizen, but who has the right to live in this country. I presume that this person's rights would not be affected by the deprivation of citizenship of his spouse. I trust that the Minister will be able to clarify the point. I beg to move.

§ Lord Falconer of Thoroton
I am grateful to the noble Lord for giving us an opportunity to explain the effect of removal. The effect of granting British citizenship is to remove a person from the scope of our 541 immigration controls. Any pre-existing leave to remain in the United Kingdom automatically lapses, since the person concerned no longer requires such leave and, indeed, cannot be made subject to it.
Following the removal of British citizenship, which is what the amendment is probing, the person concerned becomes once again subject to control under the immigration legislation. Consideration would need to be given by the Secretary of State to whether the person should thereafter be permitted to remain in the United Kingdom and, if so, on what terms. I accept that it is a probing amendment, but as drafted it seeks to take the decision out of the hands of the Secretary of State by providing that any right of abode or leave to remain in the United Kingdom would survive the loss of citizenship; I presume with the intention—although it is doubtful whether the amendment would in fact achieve it in all cases—of preventing the person's removal, and that of his family, from the United Kingdom.
It would be wrong to take such a step. It is implicit in what I am saying that the right of abode goes with the removal of British citizenship. The ability to remove from the UK a person deprived of his citizenship is a power which should not in the Government's view be given up. Its use in certain circumstances might be appropriate; for example, when someone is engaged in terrorist activity. The position of dependants would, of course, be taken into account in any case where removal or deportation from the United Kingdom was under consideration, but I should make it clear that the citizenship of a spouse would not be affected by the removal of citizenship from his or her spouse. I hope that that explanation is helpful.

§ Earl Russell
Will the noble and learned Lord clarify the point raised by the Joint Committee on Human Rights of the effect on an unborn child of the parent being deprived of his citizenship?

§ Lord Falconer of Thoroton
I cannot do so immediately. I suspect that the answer is that if the citizenship had been removed before the child was born, the position of the child would be as if he was born to someone who was not a citizen. But perhaps I could confirm that if I turn out to be wrong; I am now told that I got it right.

§ Lord Kingsland
I am most grateful to the Minister for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Falconer of Thoroton
moved Amendments Nos. 75 to 78: Page 3, line 38, leave out "on grounds relating to Page 3, line 40, at beginning insert "in Page 3, line 41, at beginning insert "in Page 3, line 43, leave out "another matter" and insert "for another reason On Question, amendments agreed to.

§ Lord Dholakia
moved Amendment No. 79: Page 3, line 44, leave out from "(1)" to end of line 46 and insert "shall have a right to appeal to the Immigration Appeal Tribunal within 28 days The noble Lord said: The purpose of this amendment is to entitle people to an automatic right of appeal to the Immigration Appeal Tribunal. It is far too important for people not to have such a right. I hope that the Minister will find the proposal appropriate in this case. I beg to move.

§ Lord Kingsland
Most telegraphically, our Amendment No. 80 is grouped with this amendment. It seeks to widen the scope of the appeal to the IAT by excluding the limit of the appeal to an appeal on a point of law only; in other words, it seeks to clarify the scope of the appeal rights.

§ Lord Falconer of Thoroton
Presently, a person against whom it is proposed to make a deprivation order has the right to have his case referred to a committee of inquiry. The committee is appointed by the Secretary of State, and its findings are not binding upon him. Under proposed Section 40A, to be inserted by Clause 4, a right of appeal against deprivation—replacing the existing inquiry procedure—will lie either to an adjudicator in the first instance, or, where sensitive information might otherwise be disclosed, to the Special Immigration Appeals Commission.
The proposed Section 40A(3) of the British Nationality Act 1981 would mirror the provisions in Clause 89 of the Bill, which place certain limitations on the right of appeal to the tribunal in immigration and asylum cases. An appeal may be brought only with the tribunal's permissions, and can be made only on a point of law. The wider merits of the Secretary of State's decision are for adjudication at an earlier stage by an immigration adjudicator. The appellant will, therefore, already have had a substantive appeal hearing on both fact and law before an adjudicator. It is the intention that the Immigration Appeal Tribunal should be able to focus just on whether the adjudicator's determination gives rise to a point of law. We believe that that is a better use of judicial resources in a two-tier legal system.
The removal of the restriction that the appeal to the second appeal tier must be on a point of law only is in conflict with the report on the review of tribunals by Sir Andrew Leggatt. The purpose of the requirement that the tribunal's permission must be obtained before bringing an appeal against the adjudicator's determination is to avoid unmeritorious appeals coming before the tribunal.
Experience of the operation of the present immigration appeals machinery does not suggest that those procedural requirements conspire to deny justice to those seeking to exercise their appeal rights. Rather, the effect is to improve the efficiency of the system by ensuring that those with genuine and well-founded objections to decisions taken by the Secretary of State are able to have their appeals considered without undue delay. We have no reason to suppose that the same would not be true for appeals against deprivation 543 of citizenship, although, as we have repeatedly emphasised, such deprivation is likely to continue to be a rare event. I hope that my explanation will prove to be helpful to noble Lords.

§ Lord Dholakia
I thank the Minister for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Falconer of Thoroton
moved Amendments Nos. 81 to 85: Page 4, line 12, leave out "2(2A)" and insert "2B Page 4, line 23, leave out "after section 2(2)" and insert "before section 3 Page 4, line 24, at end insert ": bail)— Page 4, line 25, leave out ""(2A)" and insert ""2B Page 4, line 29, at end insert— (3) In section 5(1)(a) and (b) and (2) of that Act (procedure) after "section 2" there shall be inserted "or 2B". On Question, amendments agreed to.
Clause 4 agreed to.
Clause 5 [Resumption of citizenship]:
On Question, Whether Clause 5 shall stand part of the Bill?

§ Lord Avebury
Perhaps I may make a few brief remarks on Clause 5, which deals with the resumption of citizenship. I apologise to the noble and learned Lord, if he is to reply, for not having given notice of this question. However, it is a matter that I became seized of only this afternoon. The review of "full capacity" being undertaken by the Government that occurs under Section 13 of the British Nationality Act 1981 has not been completed.
In his letter to Tony Colman in another place, the noble Lord, Lord Rooker, said: We were hoping to be in a position to announce our conclusions on the review of the full capacity requirement by the end of last year but work on nationality reforms already identified as requiring legislation has had to take precedence". I do not understand that answer. I should have thought that it would be necessary to review the full capacity requirement under Section 13 of the 1981 Act, which deals with resumption, so that any conclusions reached could have been reflected in the text of this Bill.
The noble Lord, Lord Rooker, goes on to say to the honourable Member for Putney: Although you say the forthcoming Bill ought to deal with the issue of full capacity, it seems unlikely that our review will lead us to the conclusion that legislation is the best way in which to resolve the (sometimes conflicting) concerns which have been expressed". That means that he has a way other than legislation in which the difficulties that have been raised about the full capacity requirement can be dealt with. I would like to know what that is.
I shall briefly explain the circumstances that led the honourable Member for Putney to raise the point. He had a constituent whose son was mentally ill and who made a declaration of renunciation of citizenship, 544 which comes into effect immediately. When he tried to get his citizenship back, there was a difficulty caused by the requirement in Section 13 of the 1981 Act that he had to be of full capacity. It took years for the honourable gentleman's constituent to resume his citizenship.
That matter was being dealt with by the Home Office in its review of the full capacity requirement. I am disappointed that the review was not completed as part of the study of this Bill. I would be grateful if the Minister could deal with the matter—if not now, on Report—so that, if necessary, we can table an amendment.

§ Lord Falconer of Thoroton
I am grateful for that full explanation. I cannot deal with the issue at the moment, and I apologise for that. I shall certainly write to the noble Lord before Report, so that he has an opportunity to consider his position in the light of my reply.
Clause 5 agreed to.

§ Lord Dholakia
moved Amendment No. 86: Page 4, line 40, leave out from "(I)" to end of line 41 and insert "leave out "immigration and nationality functions" The noble Lord said: This is the perennial problem with race relations legislation and the matter of immigration and nationality functions.
We welcome the clause, in general, as it removes the exemption of the exercise of nationality functions from the provisions of the Race Relations Act 1976. The exemption for immigration functions remains in place. The amendment would change that. Why should immigration be exempt from the standards imposed by the 1976 Act?
We had some correspondence with the noble Lord, Lord Rooker, on the matter of Zimbabwe. In his response, he stated that no discrimination was made between white and black Zimbabweans. Would not making immigration subject to the 1976 Act provide a legal safeguard?
The amendment has the support of the Mayor for London, despite his recent difficulties. I hope that the Minister will consider removing such an anomaly from race relations legislation. I beg to move.

§ Lord Falconer of Thoroton
Clause 6 repeals provisions in the Race Relations Act 1976, as amended by the Race Relations (Amendment) Act 2000, which exempt discrimination on grounds of nationality or ethnic or national origin in the carrying out of functions under nationality legislation from the general prohibition on such discrimination by public authorities. As the Race Relations Act stands, it would be open to Ministers to make a written authorisation for citizenship applicants from certain countries to be singled out for treatment different from that of applicants from other countries. The ability to discriminate in that way was originally thought to be useful, for example in the detection of forgery and fraud. In fact, no use has ever been made of it. and we are satisfied that it can safely be removed.
545 The clause would leave intact a similar provision that allows discrimination, if authorised by a Minister, in the carrying out of functions under immigration legislation. It is essential to retain the latter provision because the Immigration and Nationality Directorate has a continuing need to prioritise—under close ministerial supervision—the management of its business on the basis of nationality and sometimes of ethnic or national origin. Current ministerial authorisations cover matters such as the examination of arriving passengers at ports of entry, the management of asylum casework and expert language analysis of certain asylum seekers if there are doubts about the applicant's true nationality. Removal of the facility could lead to massive delays at ports of entry and a rigid, inflexible, unmanageable asylum system.
The need for the immigration authorities to be able to discriminate where authorised by Ministers in accordance with public instructions was extensively debated by the House during the passage of the Race Relations (Amendment) Act 2000. The Act creates the post of independent race monitor to monitor the likely effects and practical operation of ministerial authorisations and to make an annual report to Parliament, providing clear public accountability over the exercise of these tentative but necessary powers.
Mary Coussey was appointed as race monitor in April this year and her first report is expected in the autumn. It is important to bear in mind that all applications for leave to enter or remain in the United Kingdom continue to be determined on their individual merits in accordance with the Immigration Rules and our international obligations. The current ministerial authorisations simply enable the immigration authorities to use their limited resources sensibly to manage the system and to confront the activities of people smugglers and traffickers.
I hope that in the light of that explanation the noble Lord will feel able to withdraw his amendment.

§ Lord Dholakia
I thank the Minister for that explanation. As he rightly pointed out, the matter was discussed extensively during the passage of the Race Relations (Amendment) Act and I would want to consult the Commission for Racial Equality. The Minister said that Mary Coussey will be considering matters related to immigration and nationality. Perhaps I may point out that at one time she was a member of the staff of the Commission for Racial Equality and was keen that the Race Relations Act immigration matters should have the same provision as those of nationality.
I shall return to the matter at a later stage, but in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Nationality decisions: discrimination]:

§ Viscount Bridgeman
moved Amendment No. 89: Page 6, line 31, leave out from "shall" to "House" in line 32 and insert "not be made unless a draft of the regulations has been laid before and approved by a resolution of each The noble Viscount said: The amendment would require regulations under paragraph (c) of new subsection (9B) of Section 50 of the British Nationality Act 1981 to be made by affirmative resolution. However, the amendment also has a probing implication, for we are seeking to question the Government's thinking in respect of the prescribed requirements which will be laid down to satisfy paternity in respect of a child for nationality purposes.
What other requirements do the Government have in mind that go further than those laid down in paragraphs (a) and (b) of the subsection; namely, the husband of the mother or the person treated as the father under the Human Fertilisation and Embryology Act? I hope that the Minister will be able to clarify the position. I beg to move.

§ Lord Bassam of Brighton
Taken as a whole, Clause 9 will for the first time allow an illegitimate child to derive a nationality benefit from the status of his or her father. But where paternity is not determined by the Human Fertilisation and Embryology Act, which makes provision as to the parentage of children born as a result of certain fertility treatments, such derivation will be dependent on the satisfaction of requirements as to proof of paternity. These evidential requirements will be set out in regulations.
The regulations have yet to be drafted and I am afraid that I am not in a position today to give an undertaking that we shall be able to publish them in draft form while the Bill is still before this House. However, I can say that our expectation in most cases will be that, where the child was not born during the continuance of a marriage and the Human Fertilisation and Embryology Act does not apply, paternity will be proved by DNA evidence. Our intention is to adapt, for this purpose, the non-statutory scheme which has for many years operated successfully in the entry clearance context. However, where a requirement to produce DNA evidence would be inappropriate, for example, where the alleged father had died before the citizenship claim could be established, other evidence such as judicial declarations of paternity would need to be considered.
In these difficult and delicate matters there will need to be flexibility to amend the regulations in the light of experience and in response to changing circumstances such as scientific or legal developments bearing on the determination of paternity. Moreover, there will need to be some flexibility in the application of the prescribed requirements, given the range of situations with which officials are likely to be confronted. It would, accordingly, be inappropriate to set out the evidential requirements on the face of the Bill. I submit that the negative resolution procedure would enable sufficient parliamentary scrutiny of what would be essentially administrative arrangements.
547 I have also had the opportunity to read the report of the Select Committee on Delegated Powers and Regulatory Reform. I draw noble Lords' attention to paragraph 13, which covers Clause 9. The paragraph states that although some parliamentary scrutiny of the regulations is thought to be desirable the negative resolution procedure is considered sufficient. We would normally follow the recommendation of the delegated powers Select Committee. In view of that, and other matters I have raised in response to the amendment, I hope that the noble Viscount will feel able to withdraw the amendment.

§ Viscount Bridgeman
I am grateful to the Minister. I appreciate that the Select Committee's report requires a negative resolution. We appreciate that time is required to get the regulations right. Can the Minister assure us that they will be available before Third Reading?

§ Lord Bassam of Brighton
I am not able to give that assurance. We shall, of course, endeavour to speed matters along. We shall keep the noble Viscount abreast of developments as regards the regulations.

§ Lord Avebury
Did I understand the Minister to say that DNA evidence could not be adduced in cases where the father had died? Will he amplify that? If the family is agreed that DNA evidence should be obtained from the corpse of the putative father, that would be a legitimate way to proceed. I can see no reason why the alleged father's death should prevent DNA evidence from ever being used.

§ Earl Russell
While the Minister is filling in time awaiting the answer to that question, perhaps I may say that he is right to say that it is not practical to spell out on the face of the Bill all the procedures that will be used. We are in a rapidly advancing field of science. Were we to specify every procedure that would be appropriate today, and even were we to get it right, it still would not follow that it would be right in 18 months' time—or still less that it would be right in 18 years' time.
The case for flexibility is overworked but if there is one place where it stands out this is probably it. I think that the Minister is justified in citing it.

§ Lord Bassam of Brighton
I said in my initial response that there were circumstances where DNA evidence would be inappropriate. I cited the example of the father having died before the citizenship claim could be established. In those circumstances, other evidence would be sought.
With regard to the noble Earl's comments, perhaps the front page of today's Evening Standard makes it patently plain that we have at all times to see what happens with the developments of these areas of scientific evolution. I am grateful to the noble Earl for that observation.

§ Viscount Bridgeman
I am grateful to the Minister for his explanation and in particular for his assurance 548 that we shall be kept in touch with regard to the regulations, as and when they appear. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
Clause 10 [Right of abode: certificate of entitlement]:

§ Lord Bassam of Brighton
moved Amendment No. 90: Page 7, line 18, leave out "(c)" and insert "(a) The noble Lord said: Clause 10 enables regulation of the procedure for applying for a certificate of entitlement to the right of abode in the United Kingdom. The procedure is currently unregulated, except in regard to the level of fee and procedure for appealing against a refusal to issue such a certificate.
Regulations are to be made by statutory instrument, which will be subject to negative resolution. The regulations may specify such matters as the person to whom an application is to be made, the form of the application and the documents which must accompany it. Regulations may also make provision for certificates to be revoked in certain circumstances—for example, where obtained by the provision of false information—and/or to cease to be valid after a given date.
The amendment would allow the regulations to include provision as to the consequences of a failure to submit the application to the appropriate authority. The provision might state, for example, that an application will still be valid if sent to a part of the Home Office other than the Immigration and Nationality Directorate. It accordingly affords a degree of flexibility with regard to the practical application of any formal requirement on this point. I beg to move.
On Question, amendment agreed to.

§ Lord Dholakia
moved Amendment No. 91: Page 7, line 29, leave out from "shall" to end of line and insert "not be made unless a draft has been laid before and approved by resolution of each The noble Lord said: Amendment No. 91 has the support of my noble friend Lord Avebury, the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Anelay of St Johns.
Under Clause 10 the Secretary of State may make regulations in 11 major areas. I do not need to read out the areas in which regulations can be made. It is a matter of serious concern that, if these regulations are made by negative resolution, there will not be an opportunity to comment on them or discuss them in the House. The amendment seeks to ensure that any regulations made by the Secretary of State under Clause 10 are subject to the positive rather than the negative resolution procedure.
Clause 10(2) shows the scope which the regulations may assume, hence the caution we are trying to exercise. It is sensible that we should progress in this manner. I hope that the Minister will agree to the amendment. I beg to move.

§ Viscount Bridgeman
I anticipate that the Minister will say again that he has the protection of the Select 549 Committee's report. I share the concern of the noble Lord, Lord Dholakia. These are comprehensive regulations. Can the Minister say when they will be available? I support the amendment.

§ Lord Bassam of Brighton
I cannot give the noble Viscount the information he desires. However, it is for us to ensure that we produce draft regulations as early as possible. The noble Viscount anticipated my best line of argument, which is contained in paragraph 18 of the report of the Select Committee on Delegated Powers and Regulatory Reform. The Select Committee was content that we have the right procedure in place. While I understand the concerns raised by both noble Lords, I believe that we have got it right and that the negative resolution procedure will afford the level of parliamentary scrutiny appropriate to these regulations.
I shall again put on record that we will endeavour to ensure that an early sight of the draft regulations will be available because of the sensitive matters they will cover. With that, I hope that the noble Lord will feel able to withdraw the amendment.

§ Lord Dholakia
I thank the Minister. It may be useful to have a discussion on this matter before Report and perhaps come back to him at that time. In the mean time, I beg leave to withdraw the amendment.

§ Lord Bassam of Brighton
I am more than content to have such a discussion. It is useful to keep these channels open. I am sure that some of the less obvious misunderstandings that can arise in these matters can be resolved in that way.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Clause 11 [Unlawful presence in the United Kingdom]:

§ Baroness Gould of Potternewton
Before calling Amendment No. 92, I have to inform the Committee that, if it is agreed to, I cannot call Amendment No. 93 for reasons of pre-emption.

§ Lord Dholakia
moved Amendment No. 92: Page 8, line 10, leave out paragraph (c) and insert— (c) did not have pending an application for leave to enter or remain in the United Kingdom which was eventually granted, The noble Lord said: We are strongly opposed to Clause 11, which widens the definition of, in breach of the immigration laws", and which will act as a barrier to refugees gaining citizenship. This information was strongly conveyed to us by a number of immigration agencies in this country.
The current practice is that the time people spend waiting for a decision on an ultimately successful asylum claim is treated as residence for nationality purposes. These delays would not be counted in future 550 This is unnecessary and possibly in breach of Article 34 of the UN Convention on Refugees, which provides that states must, as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings". I beg to move.

§ Earl Russell
Before we leave this subject, I wonder whether the Minister could take advice also on whether this provision is compatible with Article 31 of the UN Convention on Refugees. The article states that a refugee may not be penalised for being unlawfully present on the territory of another state provided that he makes his presence known and makes his claim as soon as is conveniently practical.
I wonder whether this provision contravenes at least the spirit and possibly even the letter of that requirement. Here we are dealing with a person who is being deprived of a possible privilege for being unlawfully present in the United Kingdom in a circumstance where our obligations under international law say that he must not suffer for being unlawfully present—in fact, where the unlawfulness is condoned by international treaty. The point is of some importance.

§ Lord Filkin
The purpose of Clause 11 is to set out exhaustively the circumstances in which a person would be, in the United Kingdom in breach of the immigration laws", for the purposes of the British Nationality Act 1981. The clause seeks to clarify the meaning, given that there have been some areas of uncertainty. It is not intended to be controversial or significantly to shift the position.
The concept is relevant to eligibility for naturalisation and, in some cases, registration as a British citizen under that Act. It also has a bearing on the meaning of "settled" in the United Kingdom, which a non-British parent must be if his or her UK-born child is to acquire British citizenship automatically at birth.
Clearly, it would not be appropriate to treat a person as being, in breach of the immigration laws", at any time when he or she did have extant permission under those laws to be here or, as subsection (2)(c) of Clause 11 puts it, leave to enter or remain in the United Kingdom". Let me explain who in practice would have such leave. In the normal course, leave to enter or remain in the United Kingdom is granted, on application, either by the Secretary of State or by an immigration officer. In certain circumstances, however, leave is, and will continue to be, conferred directly by statute. That is the case where a person applies, during the currency of an existing leave, for further leave to remain in the United Kingdom, and where the existing leave would otherwise run out before the application for further leave could be determined. It will also be the case where the application for further leave is refused, but 551 an appeal against that refusal is pending or could still be commenced. Clause 102 of the Bill contains the necessary provision for the future.
Of course, the arrangements just described would not apply where the earlier leave had been allowed to expire before any application for further leave was submitted. In such a case, a breach of the immigration laws would occur and it is right that, generally speaking, it should be treated as such. But it is equally right that there should be discretion to disregard the breach for the purposes of determining an application for British citizenship. I am pleased to say that such discretion is already provided for in the British Nationality Act 1981.
The noble Earl, Lord Russell, asked whether the provision breaches Article 31 of the 1951 convention on refugees. We do not believe that there is a breach of Article 31, because the person is not being penalised under the clause if he is present in the United Kingdom. Periods of presence "on temporary admission" can count towards qualification for naturalisation as a British citizen.
With those points, I suggest that the concerns on the clause are not as serious as were first thought. I invite the noble Lord to reconsider his amendment.

§ Lord Dholakia
I thank the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

The Deputy Chairman of Committees
Before I call Amendment No. 94, I have to inform the Committee that if it is agreed I cannot call Amendment No. 95 for reasons of pre-emption.

§ Viscount Bridgeman
moved Amendment No. 94: Page 8, line 29, leave out subsection (4). The noble Viscount said: The aim of the amendment is to probe the reasons for subsection (4), which defines the retrospective effect of being, in breach of the immigration laws". What difference does that make and why is the provision needed? I look forward to the Minister's reply. I beg to move.

§ Lord Filkin
There are times when I share the noble Viscount's questioning on the clause, because at times it is particularly dense and complicated. The amendment would deprive Clause 11 of any retrospective effect. Government Amendment No. 95 would exclude certain EEA nationals and their family members from the retrospective operation of the clause. I shall explain our position.
552 The purpose of Clause 11 is to give an exhaustive list of the circumstances in which a person would be, in breach of the immigration laws", for the purposes of the British Nationality Act 1981. This concept, which is not currently defined in statute, is relevant to eligibility for naturalisation and, in some cases, registration as a British citizen under the 1981 Act. It also has a bearing on the meaning of, settled in the United Kingdom", which a non-British parent must be if his or her UK-born child is to acquire British citizenship automatically at birth.
The practice following enactment of the clause would be to treat a person as, in the United Kingdom in breach of the immigration laws", if he or she were here without permission or entitlement to be so under domestic or Community law. This would be broadly consistent with the policy hitherto applied by IND when determining legality of UK residence for these purposes. However, it would mark a change in the treatment of nationals of countries forming the European Economic Area. The current practice in relation to such nationals reflects recent judicial rulings in the social security context to the effect that they are in the UK unlawfully only if they have remained in defiance of a deportation or removal order.
There seems no good reason why European Economic Area nationals should be treated any differently from other nationals in that respect. The EC treaty, as extended by the European Economic Area agreement, confers freedom of movement, but not the right to acquire nationality of the host state. However, there is concern that if the general rule of construction in Clause 11 were applied retrospectively to European Economic Area nationals and their families, those who have benefited from the existing policy on interpretation of, in breach of the immigration laws", could be disadvantaged. Our amendment would accordingly shield such people from the retrospective operation of the clause.
Others would not be similarly disadvantaged by the retrospective operation of the clause, because the definition of, in the United Kingdom in breach of the immigration laws", in Clause 11 is the same as that applied by IND since the British Nationality Act 1981 entered into force in 1983. The only difference will be that the definition has legislative force, and thus the advantage of certainty.
It might help if I give an illustration of how the retrospective operation of the clause might disadvantage EEA nationals and their families. Let us suppose that a child was born in the United Kingdom in 1998 to Spanish parents. Neither parent by then had any Community law or other right to remain in the UK, but equally no order had been made by the Secretary of State for their removal. The current practice reflecting judicial decisions in the social security field would be to regard the parents as lawfully 553 and unconditionally resident here at the time of the child's birth, and accordingly to document the child as a British citizen.
The retrospective application of the rule in Clause 11 would mean that the parents could not be regarded as lawfully resident when the child was born in 1998. It would therefore have the further consequence that the child could no longer be regarded as a British citizen. I hope that that explanation is helpful.

§ Earl Russell
There is a complicated question about what "always" means in the case of the child who was born in this country. The Minister says that the child would not be a qualified person and that his presence would be unlawful. However, if that extends back further than one generation, perhaps none of us is lawfully here at all.

§ Lord Filkin
The noble Earl is renowned for always asking deeply philosophical and deeply challenging questions. I think that I shall not respond immediately but reflect on the point.

§ Viscount Bridgeman
We shall study carefully the Minister's reply in Hansard. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Filkin
moved Amendment No. 95: Page 8, line 29, at end insert "except in relation to a person who on the commencement of this section is, or has been at any time since he last entered the United Kingdom—

(a) a qualified person within the meaning of the regulations referred to in subsection (2)(d), or

(b) a family member of a qualified person within the meaning of those regulations."

On Question, amendment agreed to.

§ Viscount Bridgeman
moved Amendment No. 96: Page 8, line 30, leave out subsection (5). The noble Viscount said: Amendment No. 96 seeks to probe the Government's attempt to confine this term to applying only to the provisions specified in subsection (1) of Clause 11. I should like to ask the Minister what other reference to being in the UK in breach of the immigration laws there is, and how they are being interpreted differently from the new definition in the clause. Why will it not apply in other provisions as subsection (5)(b) seems to suggest? I beg to move.

§ Lord Filkin
As I have previously signalled, Clause 11 does not seek to assign any meaning to statutory references to being in a place outside the United Kingdom "in breach of immigration laws". Clause 11 is concerned specifically with the meaning of the phrase in the United Kingdom "in breach of the immigration laws" where it occurs in the 1981 Act. A similar expression occurs in Section 33(1) of the Immigration Act 1971 (definition of "illegal entrant").
The construction of the phrase "for nationality purposes" is more beneficial to applicants because it does not cover every instance when a person will be here 554 in breach of the immigration laws. To apply the construction of the phrase as it appears in Clause 11 to the Immigration Act 1971 might result in difficulties, because currently we do not treat a person as being in the UK in breach of the immigration laws in every circumstance where they are technically in breach of the immigration laws. For example, a person who has leave to enter the UK but who has conditions attached to that leave would, if they breached those conditions, be in breach of the immigration laws. However, they would not, under the current construction of the phrase used "for nationality purposes", be in the UK in breach for the purposes of assessing periods of residence for registration or naturalisation applications.
As I indicated, Clause 11 does not seek to assign any meaning to statutory references to being in a place outside the United Kingdom in breach of immigration laws. The mechanisms for control of immigration into other countries—including the British Overseas Territories—and the circumstances in which one may be in breach of such controls, are likely to be significantly different from those operating in the UK. Except as provided by order under Section 36 of the Immigration Act 1971, the provisions of that Act and related statutes do not extend outside the UK.
I hope that that is helpful and gives the clarification which the noble Viscount, Lord Bridgeman, sought.

§ Viscount Bridgeman
I am grateful to the Minister for that explanation. In view of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clauses 12 and 13 agreed to.
Schedule 2 agreed to.

§ Lord Bassam of Brighton
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.