My Lords, I beg to move Amendment 14, in my name and that of the name of the noble Lord, Lord Russell of Liverpool, and will speak to Amendments 15, 16, 19, 20, 23 and 24 in this group. The noble Lord apologises to the Committee—he is unwell and had really wished to be here—but I hope that the discussion this afternoon will not be an end of the matter. He and I are keen to rectify an anomaly of which he became aware through his association with Coram, and it is also a concern of the Immigration Law Practitioners’ Association. There are not a large number of people affected by the point we raise but, as the noble Lord says, that is no reason to ignore a matter of principle. He suggested that we flag this up and that we might discuss it with the Minister before Report. We are lucky enough to have a Minister whose diary secretary must go mad when she hears the commitments being made during Committee days.
The issue is another anomaly. British nationality law in England, Wales and Scotland—Northern Ireland is in a different situation—is not in alignment with adoption law. In England and Wales, an adoption order may be made where a child has made an application before reaching the age of 18, as long as they are not yet 19. In Scotland, an adoption order may be made in respect of someone over the age of 18, as long as the application was made when the person was under 18. An adoption order confers British citizenship automatically only when the person adopted is under 18 on the day it was made. As the noble Baroness, Lady Lister, said very forcefully earlier, citizenship is significant: it is about belonging as well as being a technical matter.
Coram gave the example of a young woman who completed her degree at Oxford after her mother had died of cancer, and her maternal aunt, a British citizen resident here, applied to adopt the young woman before she turned 18. The High Court ordered the adoption when she was 18 but not yet 19. I understand—and this must be quite unusual—that the Secretary of State for the Home Department was represented and did not oppose the adoption order, but the relevant section of the British Nationality Act did not operate to confer British citizenship on her, so she was left with student status due to end shortly after her degree was obtained, no basis on which she could continue to enjoy family life in the UK with her adoptive mother, and Immigration Rules making no provision for someone in her position because she did not have 10 years continuous lawful residence in the UK. I have been given other examples but I am sure noble Lords get the point—and I can see from the Minister’s face that she does.
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In each of the years 2019, 2020 and 2021, there were 10 adoptions of people aged over 16; we do not have the figures for those aged 18 and over. We all know through adoption practices that relatively few children of that sort of age are adopted, so we are not suggesting anything major in terms of numbers. The average time taken in the adoption process from placement through to final adoption can be very long. When this issue was raised in the Commons, the Minister said that he was “sympathetic” but that the reasons for the amendment
were not ones to be advanced. The Government said that an adult would normally be capable of making their own life choices, but I have just given an example of when an over-18 could not do so.
The point of adoption is the family: the emotional and psychological connection, as well as recognising the legal unit. After all, the point about citizenship is recognised by our law, because there is automatic citizenship for only very slightly younger people. I find it difficult to believe that Parliament intended to withhold citizenship from such a small cohort. Years ago, I was associated with an adoption agency, and I came to understand something of what adoption means to everyone in the family. It would be ungenerous of the Government if they were to resist correcting this anomaly, which, as I said, cannot have been anybody’s intention.
Turning to the other amendments, Amendment 15 to Clause 7, which contains new Section 4L, would take out the words
“of full age and capacity”.
This is not consequential on the good character point we have been debating—although I think it is suggested that it is—but it does stem from the same point. If you are entitled to citizenship, why should full age and capacity be required? It occurred to me last night that I might be misreading the new section. Perhaps “of full age and capacity” is directed only to whoever is making the application, rather than the person on whose behalf it is made. I am slightly confused about that, because I think it could be read in two ways, but I will pursue the point today so that we can perhaps look at it between now and Report. If the Government are concerned that someone not of full age or capacity should not be initiating the process, that is a different point, but I trust that they are not suggesting that age or capacity are requisites for citizenship.
Amendment 16, to the same new section, would change the word “may” to “must”—a familiar point to your Lordships—so that the Secretary of State would not have discretion in the special circumstances dealt with by the new section. Amendments 19 and 20 make the same point later in the Bill. Amendment 23 is also about an issue of discretion. Section 44 of the British Nationality Act provides that any discretion
“shall be exercised without regard to … race, colour or religion”,
which seems quite dated when you read it in 2022. We are proposing guidance, following consultation—which is important—on the exercise of the Secretary of State’s discretion under the various new British Nationality Act provisions and under Section 44A, which is about the waiver of requirement in respect of a specified applicant if the Secretary of State thinks it is in the applicant’s best interest. As I am making clear, discretion should be irrelevant when rights are the issue, a point which my noble friend Lord Paddick emphasised a few minutes ago.
Finally, Amendment 24—also suggested by the Immigration Law Practitioners’ Association—is a new clause which was debated in the Public Bill Committee in the Commons. We have retabled it to enable a response to what the Minister said in the Commons. There are people who would be British overseas citizens today but for historical unfairness. Clause 7 attempts to rectify the position for those who would be British
citizens or British Overseas Territories citizens but for similar errors. It does not do anything for people who would be British overseas citizens today. Again, this is an attempt to deal with an anomaly.
The Home Office acknowledges—we have seen it in the Bill—that past unfairness in British nationality law is not unusual, but it makes that acknowledgement only where such persons would be British citizens or British Overseas Territories citizens today. The prejudice that has been suffered through sex discrimination and so on has applied to them too. There are pockets of British overseas citizens around the world and, although they have no right to come to the UK or to remain in a British Overseas Territory, the status still has value. It enables them to acquire and use of a UK BOC passport; to seek consular assistance; to seek residence and permission to work in third countries under local rules; and where their children are born stateless, to benefit from UK laws that reduce statelessness. This was relevant in Aden, now Yemen, for instance, when it was a British colony.
The Government’s objection to the new clause in the Commons was in effect that being a British overseas citizen reflects a finite class of British nationality. In fact, new BOCs—it seems tough to use such an impersonal acronym—are being born to BOC parents, where they would otherwise be stateless, and there is still a power to register a minor as a BOC, but it is used only exceptionally.
I hope that the Minister will, ideally, accept the amendment, but, if that is not possible today, that she will take on board the response of the practitioners, who in my experience always know what they are talking about and can express it better than through an interpreter like me. They make the point very clearly. I beg to move.