Borders, Citizenship and Immigration Bill [HL]

My Lords, I will try to respond to all items in this group, including the government amendments. I will start with the JCHR recommendations, which we have had little time to study. I can advise noble Lords that our officials have corresponded recently with the UNHCR and sought to address the points that it raises. Importantly, the Government are clear that we do not believe that our proposed changes are incompatible with Article 34. Although there is nothing in current UK nationality law or our proposal that specifically facilitates the acquisition of nationality by refugees, the residence requirements are not unduly onerous for any applicant. It is possible for refugees to be naturalised. Any decisions not to naturalise are taken in good faith. Only six years’ lawful residence will be required, or just three years if the applicant is married to a British citizen, ensuring that the active citizen condition is met in both cases. It is therefore possible for all refugees to be naturalised if they meet certain statutory criteria and these criteria are justifiable. Furthermore, we do not believe that, by not counting time spent in temporary admission for purposes of naturalisation, the UK is penalising refugees for illegal entry or breaching Article 31 of the 1951 convention. Nothing in the earned citizenship clauses of the Bill imposes criminal sanctions on refugees who enter the UK illegally. It might be helpful if I explain that the existing requirement not to be in breach of immigration laws, as inserted by Clause 46, is concerned with a person holding the correct sort of status in the UK rather than with commission of offences. In future, as now, any commission of criminal offences will be taken into account in assessing whether an applicant has the separate requirement of good character on the date of the application for naturalisation in Schedule 1 to the BNA 1981. As noble Lords know, we have tabled amendments to ensure that the earned citizenship clauses provide a discretion to waive the requirement to have had a qualified immigration status for the whole of the qualifying period in relation to applications made under Section 6(1) and (2) of the British Nationality Act. Having this discretion will give the necessary flexibility to the system that we are creating. In the case of refugees, we would usually expect to exercise it where undue delay has occurred in determining an asylum application or where the delay was not attributable to the applicant. I will go into further detail as we go through the amendments. The noble Lord, Lord Hylton, commented on his discussions with my noble friend Lord West. We gave an assurance that we would table amendments and we have done so. However, his Amendment 41 goes further than the Government’s intent and would allow refugees to count any time spent in the UK since entry, including time spent pending an asylum decision, towards the qualifying period for naturalisation. I would like to develop the point. No doubt noble Lords will have looked at the government amendments tabled in the name of my noble friend Lord West. They ensure that the discretion to waive the requirement for a qualifying immigration status for the whole of the qualifying period is included in the Bill, thus providing the necessary flexibility. I have described where it might be applied, which is where there is a question of undue delay. As I explained in Committee, we do not feel that allowing those who are subsequently recognised as refugees to automatically count the time spent in the UK pending a decision on their asylum claim towards the qualifying period for naturalisation is the right approach. For example, if we provided an exemption on the face of the Bill specifically for refugees, this would have counterproductive results. First, if a person applied for asylum on arrival in the UK and subsequently absconded and then some months or even years later came to light and was recognised as a refugee, we would have to count the time during which he had absconded towards the qualifying period for naturalisation. It seems wrong to reward an abscondee in this way when others who comply with the process must complete the temporary residence and probationary citizenship stages. It would also go against our aim to increase compliance with the system. Similarly, if an individual failed to comply with the system, by not attending interviews, for example, we would not want that time to count automatically towards the qualifying period. Another important point is that in asylum cases a decision is based on the prevailing circumstances at the time when the case is actually considered, in addition to taking into account the facts of the claim when it was originally made. For example, the fact that a person may be recognised as a refugee does not always mean that he was so from the start. Events in the country of origin, fresh evidence or fresh case law could mean that the person qualifies as a refugee only after the initial application was made. The amendment would mean that a person who may have had no basis to his claim at the time when it was made could nevertheless count that time pending his decision towards his qualifying period. UKBA is seeking to determine asylum claims as quickly as possible and has made considerable progress; the period of six months was mentioned. We do not consider that the time taken to resolve asylum applications represents a significant disadvantage in the majority of cases. I reassert the Government’s full commitment to meeting their international obligations in respect of those fleeing persecution. However, we do not propose to go as far as permitting any time spent in detention, on temporary admission or on temporary release, or any time spent pending an application for leave to remain in connection with an asylum or human rights claim, to count towards the qualifying period for naturalisation. We will use discretion where this is appropriate. Amendment 37 would amend the Bill so that the qualifying period for persons granted refugee status or humanitarian protection is fixed at five years. I must also resist this amendment. Under the present system—