Borders, Citizenship and Immigration Bill [HL]

I realise that, looking at Clause 41 the basic intention does not appear obvious. However, the length of the clause is not an attempt to muddy the water; it is simply needed to cover all the previous pieces of nationality law that have been forged in an applicant’s lifetime, which echoes the contribution of the noble Lord, Lord Hylton. This change will benefit those born before 1948 and even those born before the 1914 legislation, if such people are still among us. The amendment suggests, in the absence of evidence for a particular application of action, that the Government should assume that a mother would have taken the necessary action to enable her child to acquire British citizenship had she been able to pass on her citizenship status by descent but for previous discrimination. The Government’s reservation on the Convention on the Elimination of Discrimination against Women is not to our knowledge linked at all to this clause. However, new Section 4C(3C) is intended to ensure that Section 4C covers only provisions that are about a child automatically acquiring British nationality from their parent, rather than any provision where the acquisition would have required an application to be made by that parent. This is because we cannot now be sure whether such an application would have been submitted and, even if it had been, whether that application would have been successful. Therefore, this subsection provides that an applicant for registration under Section 4C can rely only on those provisions that depend on the nationality of one or both of their parents and does not depend on an application being made for registration as a person who holds that status. New Section 4C(3D) provides that it will not be assumed that any registration or other requirements have been met. There are a number of provisions that enable someone to acquire British nationality if certain requirements are met. For example, Section 5(1)(b) of the British Nationality Act 1948 states that a child born overseas would have been a CUKC if their birth was registered at a British consulate within a year. According to new Section 4C(3D) we will not assume that any such requirement would have been met, had previous nationality law provided for descent from a mother in the same way as a father. It is also proposed to introduce a new registration entitlement for a person born in the United Kingdom or overseas territory, whose parent would have been able to register under Section 4C—as the child of a British mother—but for his or her death. For ease, I will focus here on children born in the United Kingdom. Similar provisions apply to those born in overseas territories, although there are slight differences in the routes by which those born in the territories can acquire British citizenship. We do not think that there could be many people who would be affected by this amendment. A person born in the United Kingdom before 1 January 1983 would have become a British citizen automatically, unless their parent was a diplomat or enemy alien. A child born after that date will become a British citizen if either parent is a British citizen or settled here. "Settled" is defined within the legislation as being free of immigration time restrictions and ordinarily resident in the United Kingdom. Many of those parents who would have had an entitlement to registration under Section 4C had it been commenced before their death would in any case have already been settled in the United Kingdom when their children were born. For example, those parents who were Commonwealth citizens with a mother born in the United Kingdom would have had a right of abode in the United Kingdom or the parent may have naturalised as a British citizen on the basis of their residence in the UK. Others, even though not British citizens, could have acquired settled status here by the time their children were born, such as by acquiring indefinite leave to remain in the UK. For those born after 1983 who did not become British at birth because their parent was not settled or British on that date, there are a number of provisions by which a child born in the United Kingdom can acquire British citizenship. Any child born in the United Kingdom after 1 January 1983 who was not a British citizen at birth has an entitlement to register as a British citizen, either if the parent becomes a British citizen or settled in the UK, or if the child lives here for the first 10 years of his or her life, regardless of the status of their parents. If a child does not have an entitlement to registration, an application could be made under Section 3(1) of the Act, which provides for registration at the Home Secretary’s discretion. While we would normally expect one of the parents to be a British citizen in order for this discretion to be exercised, a child could be registered if it was deemed to be in his or her best interests. In addition, there are provisions for children born in the UK who would otherwise be stateless to acquire British citizenship, which enable us to meet our obligations under the Convention on the Reduction of Statelessness. I note noble Lords’ intention in providing for children who might be disadvantaged because of the death of a parent before that parent had an opportunity to register under Section 4C. However, I must point out that this situation would not be unique to parents who might have an entitlement to registration under Section 4C. It is wrong to assume that the parent would have wanted to register as a British citizen under Section 4C before their death. It is also wrong to assume that the parent would have met the requirements of registration under Section 4C, including after 2006 the requirement to be of good character. Furthermore, it is possible, for example, that the child’s foreign parent might die before having been naturalised as a British citizen. It is not therefore appropriate to make provision only for children whose parents might have had a faulty entitlement in this respect. However, we feel that there is sufficient provision within the British Nationality Act to allow children to become British citizens. This section will benefit a very small number of people. The majority are already covered and catered for by the legislation. We would therefore be grateful if the noble Lord would withdraw this amendment.