Borders, Citizenship and Immigration Bill [HL]

I hope to be able to reassure the noble Lord in such a way that he will understand why the Government believe that this is an unnecessary amendment, though I am grateful to Members of the Committee for raising this important issue. The question here, as the noble Lord said, is what happens to children before we commence Clause 40. To deal with the question of delay, and he cited substantial delay, it is intended on this occasion to implement Clause 40 by order in late 2009, following commencement of the final parts of the Armed Forces Act 2006. Those born before commencement continue to benefit from citizenship at birth or by registration under Section 1(3) of the British Nationality Act 1987. I shall explain. The amendments would enable them to apply for registration as British citizens as if they would have qualified had the new clause been in place when they were born. To reply to this, I should explain that Clause 40 does not provide the children of members of the Armed Forces with a new entitlement to British citizenship; it clarifies an existing eligibility and puts it on a clear statutory footing. So, a child born in the UK today would be recognised as a British citizen if either of his parents was a member of the British Armed Forces at the time of his birth. Equally, if that child is born in the UK today and one of his parents then enlists, we will register him as a British citizen if the application is made while he is still a child. The amendments propose that an application or registration can be made by an adult if, when they were a child, their parent became a member of the Armed Forces. However, Section 1 of the British Nationality Act 1981 is principally concerned with the British citizenship rights of minors. Furthermore, there are alternative avenues for an adult who is or was resident in the UK to acquire British citizenship, most notably under Section 1(4) and Section 6(1) of the 1981 Act. It is also important to note that those persons born since 1983—when the British Nationality Act 1981 was commenced—to a parent who then became a member of the Armed Forces are already captured by the current parameters of Section 1(3) of that Act, because their parent has, for nationality purposes, been treated as settled from the point of joining the Armed Forces. The reason for this hinges on the definition of "settled" used for the purposes of Section 1 of the 1981 Act. Under Section 1(1), a child born in the UK or qualifying territories is automatically a British citizen if either parent is settled when he is born. If a child is born in the UK and does not gain British citizenship under that section, but one of his parents subsequently becomes settled here, that child can apply to be registered as a British citizen under Section 1(3) of the Act. The application must be submitted before the child’s 18th birthday and, if the child is aged 10 or over, he must be of good character. If those conditions are met, he is entitled to British citizenship. Those serving in the British Armed Forces are exempt from immigration control under Section 8(4)(a) of the Immigration Act 1971 and have, as a matter of policy, been treated as settled for nationality purposes since commencement of the British Nationality Act 1981. This means that any child born in this country today will be eligible for British citizenship under either Section 1(1) or Section 1(3) of the 1981 Act, depending on whether the parent is in our Armed Forces when the child is born, or enlists later. We will continue to apply this policy in practice until Clause 40 has commenced, which means that there should be no children missing out on British citizenship because of their birth date. I hope that reassurance is helpful to the Committee, and that it allows the noble Lord to withdraw his amendments.