Seventh Report - Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality

We welcome the changes introduced by clauses 1, 2, 3, 4, 5, 6 and 7 to remove areas of historical discrimination in British nationality law.

We recommend that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of clause 1.

Those lacking full capacity should always have the requirement for full capacity waived if it is in their best interests to do so. We propose an amendment to section 44A BNA so that the Secretary of State “should” waive the requirement for a person to have full capacity if it is in the applicant’s best interests, so as not to unfairly disadvantage those lacking full capacity.

The Home Secretary should make clear how the discretion in clause 7 (new sections 4L and 4H BNA) will be exercised, for example by issuing guidance.

The Home Office must make clear whether or not any fees will be charged for an application under Part 1 of the NBB and, in particular, clauses 1, 2, 3 or 7. We urge the Home Secretary not to charge a fee for applications under this Part of the Bill as it would be wrong to charge people for rectifying historical discrimination against them. If any fees are charged, they must be set at affordable rates that do not effectively prevent certain categories of people, especially children, from accessing their right to nationality.

We consider that it is unlawful discrimination, contrary to Article 14 as read with Article 8 ECHR, to require a person to prove good character when remedying previous unlawful discrimination against that person. We therefore recommend that the clause 3(4) of the Bill be deleted.

The Secretary of State should clarify how she will exercise this discretion in clause 7 to take into account whether an applicant is of good character.

We reiterate concerns made by this Committee in previous Parliaments that requiring good character when considering applications resolving prior discrimination risks perpetuating the effects of discrimination for those previously discriminated against. Moreover, we also share the concerns raised by the JCHR in 2019 about the appropriateness of the good character requirements being applied to children, particularly children whose main or only real connection may be with the UK. It is difficult to align this requirement with the obligation to have the best interests of the child as a primary consideration. The Home Secretary should review the application of the good character requirement in Part 1 of the Bill and the BNA to ensure that it does not risk being applied in a way that risks perpetuating discrimination or in a way that would be contrary to the best interests of a child in an individual case.

The Government should clarify what steps it considers it is reasonable to expect a stateless child to take to acquire another nationality and whether there will be guidance making this clear. (Paragraph 56) 24 Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality

It is difficult to see how clause 9 complies with the UK’s obligations under both the 1961 Stateless Convention and the UN Convention on the Rights of the Child. Clause 9 should be amended—preferably to delete the clause altogether.

At a minimum two amendments should be made to clause 9(4). Firstly, to ensure that the best interests of the child are more central to decision-making, by adding into new paragraph 3A, sub-paragraph (2) of Schedule 2 BNA “(d) in all the circumstances, it would be in the best interests of the child for it to acquire the nationality in question”. Secondly, to ensure that, in line with the 1961 Statelessness Convention, British citizenship is only withheld where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles, by inserting into new paragraph 3A, sub-paragraph (2)(b) of Schedule 2 BNA, after “birth”, “without any legal or administrative obstacles”. (Paragraph 58) Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality 25 Declaration of interests Lord Brabazon of Tara • No relevant interests to declare Lord Dubs • Former Chief Executive of the Refugee Council Lord Henley • No relevant interests to declare Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No relevant interests to declare 26 Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality