My Lords, the Secretary of State has discretion to waive the full capacity requirement, and the introduction of this amendment would make it a statutory requirement rather than a discretionary power for the full capacity requirement to be waived if doing so would be in the applicant’s best interests.
I know that prior to the change made in 2006, UKVI sometimes had to refuse an application even where, in the opinion of the applicant’s carer or responsible family member, it would have been in the applicant’s best interests to grant it and the applicant met all other relevant criteria. This was clearly an undesirable position and we think it has been rectified successfully by the introduction of the current discretionary powers, since when no applications have been refused solely on full capacity grounds. This indicates that the 2006 change has been more than adequate in allowing decisions to be taken in the best interests of the applicant, in line with the principles set out in the mental capacity legislation and the Adults with Incapacity (Scotland) Act 2000.
It is not the only area of nationality law that is discretionary. It is right that the Secretary of State’s ability to waive the full capacity requirement is discretionary in nature, to allow her fully to consider all the relevant factors which apply to the applicant. But where it is in an applicant’s best interests, we expect UKVI to continue to exercise discretion over the full capacity requirement, employing the necessary sensitivity and flexibility in the consideration of applications. We do not believe the proposed amendment would serve any more practical benefit than is already derived from the existing provisions. I hope the noble Baroness, on behalf of the noble Lord, Lord Dubs, will withdraw the amendment.