Borders, Citizenship and Immigration Bill [HL]

By way of background to the amendment, I should perhaps remind the Committee that until 1983, when BNA 1981 came into effect, British fathers could pass on their nationality to children born overseas, but mothers could not. The BNA had a feeble shot at that discrimination by providing that a child born to a British mother and a foreign father could be registered as a British citizen while a minor, although not all did so. We could never understand the rationale for extending the rights only partially from father to mother in proceedings on the Nationality, Immigration and Asylum Act 2002. We persuaded the then Government to move the cut-off date from 1 January 1983 back to 7 February 1961, but that still left families with siblings born on either side of the dividing line, so the younger ones could register, but the older ones were excluded. We also argued that our amendment to remove the cut-off date would enable the Government to lift the reservation that they maintained on the Convention on the Elimination of All Forms of Discrimination against Women. That must be the acid test of whether Clause 41 is good enough in its present wording. Article 9.2 of CEDAW provides: ""States Parties shall grant women equal rights with men with respect to the nationality of their children."." The UK entered a reservation to that on the basis of what we inaccurately described as certain temporary or transitional provisions, which continued from 1 January 1983 for 28 years since your Lordships approved the BNA 1981. Unfortunately, as in many other clauses, the Government have made Clause 41 so convoluted that it is hard to see the wood for the trees. The critical question is whether the Government are confident that, with the passage of the clause, we will be able to withdraw the reservation that we entered to CEDAW and whether we intend to do so. I ask the Government to reply to that question now. One thing is clear: it will be more difficult for those born after 7 February 1961 to register and those difficulties extend to the new beneficiaries born prior to that date. The reason for that appears to be that no distinction was made in the 2002 Act between mothers who were British citizens by descent and those who were full British citizens when they gave birth. Subsection (3)(c) does not clarify, as the Explanatory Notes pretend, but restricts the rights of British mothers to transmit British citizenship to their children and to require a person wishing to take advantage of the clause to establish that his mother was not a British citizen by descent at the time of his birth, in some instances some 50 or 60 years ago. That reintroduces an element of discrimination between mothers and fathers who were British only by descent at the time of the child’s birth under Section 5(1)(b) of the British Nationality Act, which continued in force beyond the February 1961 cut-off date in the 2002 Act. The child of a male British citizen by descent born in a foreign country was automatically a British citizen by descent immediately his birth was registered at the local British Consulate, but the child of a female British citizen by descent had no such right and now cannot claim equal treatment because of the involved wording of the clause. If that is incorrect, I hope that the Minister will say so, but as we read it, the Bill may not allow us to lift our reservation to CEDAW. So while we are grateful to the Government for getting rid of the February 1961 cut-off date, the removal of which the noble Lord, Lord Filkin, kept telling us, when he was the Minister, would cause the world to fall apart—we never quite got an elucidation of how that would happen—we are disappointed that the Government have gone to enormous lengths and added new levels of complexity to the clause simply to exclude the small number of children who might otherwise have benefited from being descended from mothers who were British citizens by descent. Amendment 91 deals with persons who would have been entitled to register under Clause 41 but are now dead. If that person, who could not have acquired British nationality under existing legislation, had given birth to a child in the UK after 1 January 1983 but the mother was not settled at the time, the child would not have been born British. The amendment would allow the child to register as a British citizen. The child would have a close connection to the UK because her grandmother was a British citizen and her mother, if she had lived, would also have been entitled to British citizenship. Since it has been only since 1983 that children born in the UK are not British by birth, those who could benefit from the amendment must be 26 years old at the most and many of them who wish to do so would no doubt have gained British citizenship by other routes, so the number of beneficiaries would be quite small. I beg to move.