UK Borders Bill

moved Amendment No. 25: 25: After Clause 21, insert the following new Clause— ““Children of female British citizens After section 2(1)(b) of the Immigration Act 1971 (c. 77) (statement of right of abode in the United Kingdom) insert— ““(ba) he would be entitled to be registered under section 4C of the British Nationality Act 1981 if the words ““after 7th February and”” had been omitted from section 4C(2); or””.”” The noble Lord said: My Lords, the amendment was introduced in Grand Committee to deal with an anomaly which has deprived a small number of people the right to British citizenship. I have taken particular interest in this because had I been born outside the United Kingdom, I would have been one of the people deprived of British citizenship by the anomaly. The amendment does not confer citizenship on the people affected. That is because the Bill deals with immigration but not with nationality. An amendment to extend British citizenship would therefore be out of order. The amendment therefore confers on the beneficiaries not citizenship as such but a right of abode in the UK, which is probably the most important aspect of citizenship. As I dealt with the background at length in Grand Committee, and because of the attitude which I understand the Government intend to take, I will give only a fairly limited outline of the legal background. Up to the end of 1948, a British woman who married a foreigner lost British citizenship if, on marriage, she acquired her husband’s nationality. Indeed, it was at one time the general practice that a woman, on marriage, always took her husband’s nationality. British men marrying foreign women retain British nationality. Under the British Nationality Act 1948, which came into force on 1 January 1949, British women marrying foreigners no longer lost their citizenship on marriage and citizenship was restored to those who had lost it on marriage at an earlier date. There was, however, one remaining significant difference between the sexes. The children of a British husband and a foreign wife had the right to British citizenship, which they acquired on birth wherever they were born, but the children of a foreign husband and a British wife, if born outside the UK, had no right to citizenship. Under the British Nationality Act, the Home Secretary had a discretionary power to register a child in that category as a British citizen, provided the child was under 18. That discretionary power was presumably intended for cases in which the mother was widowed, divorced or separated from her husband and wanted to return to the United Kingdom with her child and bring that child up here. On 7 February 1951, the Government decided that any such application made on behalf of a child under the age of 18 would be accepted without question. There was, however, no formal change in the law and it was not retrospective. Children reaching the age of 18 before 7 February 1961 could not be the subject of an application. The next step was the British Nationality Act 1981, which gave to mothers the same rights as fathers had always had to pass on their citizenship to their children. However, that applied only to children born after the 1981 Act came into force. Then the Nationality, Immigration and Asylum Act 2002 amended the 1981 Act to backdate the right to citizenship given under the 1981 Act to all children born after 7 February 1961. That, in fact, was the result of amendments originally tabled by my noble friend Lord Avebury. I am extremely pleased that he has put his name to this amendment, as has the noble Lord, Lord Higgins, whose support I also welcome. The amendment proposed by my noble friend Lord Avebury, in its original form, and this amendment would back-date the right to claim British citizenship to include children of a British woman born on or after 1 January 1949. The Government only partially accepted my noble friend’s amendment and were willing to back-date only for children born after 7 February 1961. No logical justification was produced by the Government, either in the debate on the amendment tabled by my noble friend Lord Avebury in 2002 or on this amendment in Grand Committee, to justify a cut-off date of 7 February 1961. There is some logical basis for a cut-off date of 1 January 1949, although there is also a case for going still further back—for example, by extending rights to those born before 1 January 1949 whose mothers were British citizens at the time because they had not acquired their husband’s nationality, or both to them and to children whose mothers were foreign citizens at the time of their birth but reacquired British nationality under the 1948 Act. However, it is not necessary to go into that issue. The distinction between the rights of the children of British men and the children of British women with foreign spouses is an obvious anomaly. It is wholly contrary to modern principles of gender equality. The class of people adversely affected by the anomaly is small and closed; it can apply only to people in this category born before 6 February 1961, who must therefore be at least 46 years old by now and are, no doubt, well established in their home country, in most cases. This is a unique problem, which would not set a precedent for any other claims to citizenship. The Government are not willing to accept the amendment, but I believe that they now recognise the existence of the anomaly and the need to deal with it. I wait with interest to hear what the Minister has to say. I beg to move.