My Lords, the rationale behind this amendment, to put it as simply as possible, is to enable a child born before 1 July 2006 to a mother who is not married to the natural father to become a British citizen automatically, or to have an entitlement to be registered as a British citizen in circumstances where the child would have had either of those rights if the parents had been married.
I am grateful to the Minister for accepting in principle the amendment that I moved for this purpose in Committee and for deploying the formidable resources of the Bill team to turning the inadequate wording of my original attempt into the text now before your Lordships in Amendments 3 and 5, as well as for the useful exchanges that I had with the Minister and the Bill team during that process.
The reason for the cut-off date is that, after that, a child born to parents who were not married is already covered by the definition of “father” in Section 50(9A)
of the British Nationality Act 1981—the BNA. These amendments will now cover the child born before 1 July 2006 whose mother never married the father or who was married to someone else at the time of the child’s birth. This reflects the way the Home Secretary has previously exercised discretion under the Act and will continue to do so for children born post-2006 where the mother’s husband is not the child’s natural father.
Proposed new Section 4F deals with persons who would currently have had an entitlement to register as British citizens under the specified sections of the BNA if their parents had been married. Currently, these persons can be registered at the discretion of the Home Secretary under Section 3(1) of the BNA, but Section 4F gives them an entitlement. If a person would be entitled to registration under Section 3(2) only, had their parents been married, registration under Section 4F gives them citizenship “by descent”—the status they would have acquired if their parents had been married. Section 14 of the BNA needs to be amended to secure this outcome, and this is accomplished by Amendment 5.
If a person would be entitled to registration under Section 3(5), had their parents been married, there is an additional discretion to waive parental consent. For the other specified subsections of the BNA in Section 4F, consent is required from both the mother and the “natural father”—the person who satisfies the proof of paternity regulations made under Section 50(9B) of the BNA.
Proposed new Section 4G covers those born after 1 January 1983 and before 1 July 2006 who would have become British citizens automatically if their parents had been married. The main beneficiaries of this section will be persons born in the UK to a British or settled parent who would have become British citizens under Section 1(1) or 1(1A) if their parents had been married and persons born abroad to a British parent who would have become British citizens under Section 2(1) if their parents had been married.
Proposed new Section 4H covers persons who were citizens of the UK and colonies immediately before 2 January 1983 but did not become British citizens because their parents were not married. This will benefit those who acquired citizenship through birth in a British colony and still had that status on 31 December 1982—for example, a person with a UK-born natural father who was born in a current overseas territory or was born in a former colony and did not acquire citizenship of that country when it became independent. Here again it is necessary to place these persons in the category “by descent” or “otherwise than by descent” to correspond with the status they would have had if their parents had been married. The distinction between these two categories occupies 26 pages of Fransman’s magisterial tome on British nationality law, so I hope your Lordships will be content with that reference.
Proposed new Section 4I benefits people who would have acquired British citizenship in three situations: first, if they were British subjects or citizens of the UK and colonies by birth in a former colony and would not have lost that status when that country became independent if their parents had been married; secondly,
if they were British subjects before 1 January 1949 and would have become a CUKC on that date if their parents had been married; and thirdly, if they did not acquire the status of British subject or citizen of the UK and colonies but would have done so if their parents had been married. This will also benefit those who would have acquired citizenship under Section 5(1)(a), (c) or (d) of the British Nationality Act 1948. I am sorry to say that that will not apply to those whose parents had the right to register their births at a British consulate under Section 5(1)(d) while they were minors but omitted to do so. That reflects existing law for persons whose parents were married, and the rights of both groups will have to wait for a future opportunity.
Proposed new Section 4J defines a person’s “natural father”. It is interesting to recall that when the BNA was originally going through another place in 1981, the Minister—now the noble Lord, Lord Luce—said that citizenship could not be extended to illegitimate children because,
“the problem of identifying the father in such cases remains insurmountable”.—[Official Report, Commons, Standing Committee F, 17/3/81; col. 623.]
Watson and Crick had received the Nobel Prize for determining the structure of DNA 19 years earlier but the practical applications of their discovery were still a long way in the future. The power in proposed new Section 4J(2) is a broad one but this reflects the power to make different provisions for different circumstances that already exists in Section 50(9B) of the BNA. The provision is intended to benefit potential applicants and ensures that regulations for establishing the proof of paternity can be adapted if circumstances change; for example, following scientific advances.
It has not been possible to deal with the British Overseas Territories in these amendments because of course they would have to be consulted about any proposed amendments to the Act dealing with the forms of citizenship connected with those territories, as we have acknowledged. I would be grateful if my noble friend the Minister could assure me that the Government will launch such a consultation, preferably in the next Session of Parliament, so that, having done so, next time we have an immigration Bill we can deal with the limited number of stateless persons left with only BOTC status. At the same time this will enable us to annul some of the reservations we have put to our accession to the convention on the elimination of discrimination against women.
At Third Reading of the then Nationality, Immigration and Asylum Bill, the then Minister, the noble Lord, Lord Filkin, said:
“One can only go so far back in seeking to right the wrongs of history and of previous generations”.—[Official Report, 31/10/02; col. 298.]
My noble friend the Minister echoed this on the last day of Report. In the thickets and undergrowth of immigration law, there are still plenty of wrongs of history waiting to be rectified, but at least if your Lordships agree to these amendments they will remove most of the discrimination against people whose parents were not married that has infected our immigration law in the past. I beg to move.