I thank noble Lords for tabling these amendments to Clause 7, which will allow the Home Secretary to grant British citizenship to those who would have been, or been able to become, a British citizen, but for historical legislative unfairness, either an act or omission of a public authority or their exceptional circumstances. It also creates a similar route for governors in overseas territories to grant British Overseas Territories citizenship on the same basis.
3.30 pm
We think this provision in the Bill is a positive step, allowing us to grant citizenship to those who missed out. The noble Lord, Lord Russell, and the noble Baroness, Lady Hamwee, have also tabled an amendment
related to acquiring citizenship following adoption in the UK. At this juncture, I, too, send my best wishes to the noble Lord, Lord Russell. I hope he feels better soon.
On the point from the noble Baroness, Lady Hamwee, British overseas citizenship was introduced for those who would otherwise be stateless under the 1981 Act. It was not intended to be passed on, like British citizenship and British Overseas Territories citizenship.
I turn first to Amendment 14. Under the law currently in force, a child adopted in the UK can automatically acquire British citizenship, provided they are under 18 on the date the adoption is made. The Adoption and Children Act 2002 permits adoptions after their 18th birthday in England and Wales, as long as the adoption order is issued before the person turns 19.
I am mindful that different rights and responsibilities exist in law and many have ages attached to them. For example—the noble Lord, Lord Rosser, alluded to this—children as young as 10 can be held responsible for criminal behaviour, as teenagers they can start employment and from 17 they can drive. Arguably, the biggest evolution in an individual’s life happens at 18, when they can vote, marry without consent or enter into legally binding contracts. Similarly, under British nationality law, a person is no longer considered a minor once they reach the age of 18. The automatic conferral of nationality to someone who is legally an adult is out of step with the nationality and wider immigration systems.
I have great sympathy with young adults who feel they have lost out, but we are introducing an adult registration provision at Clause 7. Those who genuinely missed out on British citizenship because an adoption order was made when they were aged 18 may be able to benefit. I must stress that each case will be considered on its merits. I accept this necessitates a further act on behalf of the individual, but this is reasonable for consistency within the wider provisions of the nationality and the immigration laws. The case cited by the noble Baroness, Lady Hamwee, was resolved through existing rules. I am aware that Scotland permits adoption for those over the age of 18, but it differs from England and Wales in that there is no upper age limit. Northern Ireland does not currently permit adoption to happen after the age of 18. This amendment would therefore cause uncertainty depending on the jurisdiction in which the adoption is sought.
It is proposed in Amendments 15 and 19 that we remove the requirements within these provisions for a person to be of full age and capacity. I will address them in turn. The reason this applies to people of full age—that is, over the age of 18—is that there is already discretion within the British Nationality Act 1981 to register a child at the Home Secretary’s discretion under Section 3(1) or a governor’s discretion under Section 17(1). The only statutory requirements are that the child is under 18 and of good character if they are over the age of 10. We do not therefore need to include children within Clause 7, which is in fact more limited in its application.
The full capacity requirement applies to all applications, so we would not wish to treat this group differently. Since 2006, the Secretary of State has had discretion to waive the full capacity requirement, if she thinks
doing so would be in the person’s best interests. Since then, no applications have been refused solely on capacity grounds, which shows that the current discretion is sufficient to allow decisions to be taken in the best interests of the applicant.
The noble Baroness, Lady Hamwee, asked whether the full capacity and age requirements relate to the subject of the application or the person applying. They relate to the subject of the application.
Amendments 16 and 20 would give a person a statutory right to be registered as a British citizen or British Overseas Territories citizen if they met the relevant criteria, rather than it being at the Home Secretary’s or governors’ discretion. Clause 7 applies not just to those who would have acquired citizenship automatically but to those who would have been able to become a British citizen or British Overseas Territories citizen but for historical legislative unfairness, an act or omission of a public authority, or their exceptional circumstances. This means that it covers not just those who would have become citizens automatically but those who might have had an entitlement to registration, or could have registered or naturalised at the Home Secretary’s discretion. We think it is right that this provision remains discretionary to allow the Home Secretary to take into account any assessment she or he might have made at the time of the person’s eligibility or suitability for citizenship.
Where registration in legislation is an entitlement provision it needs to be more tightly set out so that there is no doubt as to who does and does not benefit. As we want this clause to benefit those who have missed out on the citizenship that should have been theirs, we want to have flexibility to consider a person’s circumstances without being overly prescriptive. That means we will be able to consider applications where issues might arise that we might not already have be aware of or where a person is affected by a number of circumstances that may be difficult to set out in detail. We are making this a discretionary provision not to refuse deserving people but to allow us further flexibility to respond to situations that cannot have been reasonably foreseen.
We do not think that having a discretionary power is a negative thing in this situation. Noble Lords will know that naturalisation is a discretionary provision, which works well, with decisions being made in line with published casework guidance, which sets out all sorts of circumstances where discretion would normally be exercised.
This leads on to Amendment 23, which would impose a statutory requirement on the Home Secretary to publish guidance for Clause 7 following consultation. We have already stated our intention to make published guidance available for this new adult registration route. I agree with the noble Baroness that published guidance would help people to understand how this provision might be used and help maintain consistency in decision-making. However, given our stated intention, I do not think it would be helped by a statutory requirement. We will continue to publish guidance on the GOV.UK website, as we do for all nationality routes.
Finally, Amendment 24, tabled by the noble Baroness, Lady Hamwee, would introduce a discretionary adult registration route for a person to become a British
overseas citizen. BOCs, as they are called, were created by the British Nationality Act 1981 for people connected with former British territories who did not have a close connection with the UK or one of the remaining British Overseas Territories. This was usually where they were from or connected to a country that had become independent but they did not acquire the citizenship of that country. The intention was to avoid making people stateless due to complex histories of independence or countries ceasing to be British protected territories.
British overseas citizenship was intended to be a transitional status, and it is expected that many who held that status will have acquired the nationality of the place where they were born or have been living in the 38 years since that legislation was passed. The existing routes to British overseas citizenship are therefore very limited, and we do not intend to create a new route. However, people who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality can apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and as a result they also missed out on being able to become a British citizen because they have no other nationality, and have not done anything that meant they lost a nationality, there is nothing to prevent them applying for that status under this clause. With that, I hope the noble Baroness will not press the amendments.