I thank noble Lords who have taken part in this debate.
I turn first to Amendment 2. As has been acknowledged, there are differences in adoption law in various parts of the UK. This is why we do not think that amending Section 1(5) of the British Nationality Act 1981 would be the answer. The Adoption and Children Act 2002 applies only to England and Wales, whereas the territorial reach of the British Nationality Act 1981 includes the whole of the UK. This means that this amendment could have different results in a person’s ability to acquire citizenship, according to where they were adopted. For example, Scotland permits adoptions for those over 18, but differs from England and Wales as there is no upper age limit. Northern Ireland does not currently permit adoptions to happen after the age of 18. Therefore, the effect of this amendment would be to create differences across the UK in who can acquire British citizenship. This should not and could not be right.
Within nationality legislation, automatic acquisition of citizenship is generally reserved for minors. Granting automatic citizenship to adults could result in unintended consequences, possibly affecting another nationality which they hold. Where other countries do not allow their nationals to hold dual nationality, there are often exemptions for children which do not apply for adults. We normally offer adults a registration route so that the person can make a conscious choice about becoming British and take into account any potential implications of doing so.
While we do not want to amend Section 1(5) as proposed, we could use Clause 7 of the Nationality and Borders Bill in these cases. Clause 7 creates a route to British citizenship for those who missed out on acquiring it because of historical legislative unfairness, an act or omission of a public body, or exemptional circumstances relating to that individual. The noble Lord, Lord Russell, has noted this, and I will come to his specific questions in a moment. Registration would allow a person to acquire citizenship without causing unintended consequences as a result of the different legislation in devolved regimes and the overarching nationality law framework.
We will set out in guidance how we intend to use the adult discretionary registration provision created by Clause 7. The discretion must be considered on a case-by-case basis, but we can give examples of where it would normally be used. We think it would normally be reasonable to grant citizenship to an applicant where, for example, an application for adoption is made before a child’s 18th birthday but the adoption order is made afterwards for reasons beyond the control of the parent or child, or where the adoptive parent is a British citizen and the child would have become a British citizen under Section 1(5) of the British Nationality Act 1981, if they had been 18 at the time when the adoption order is made.
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This is, of course, subject to there not being any adverse factors, which might include a history of offending or concerns about the genuineness of the relationship with the adoptive parent. But we think registration in
such cases will normally be appropriate given that these young people would have become British but for their exceptional circumstances.
The noble Lord, Lord Russell, asked which of the three limbs inserted by Clause 7 this would fit into. Obviously, while each case would need to be considered individually, we anticipate that most applicable cases would fall under C—the exceptional circumstances limb. However, there may be scenarios where, for example, the second limb—B—is relevant, if the child was under the care of a local authority. In answer to the very specific question about whether immigration status would be an adverse factor: it will not adversely affect the child. My noble friend Lady Williams has placed a letter in the Library confirming this intention and, therefore, I invite the noble Lord to withdraw his amendment.
I turn to Amendment 21. Clause 10 amends the existing provision for registering a child as a British citizen or as a British Overseas Territories citizen, where the child was born in the UK or a territory and has been stateless since birth. As was explained in Committee, Clause 10 is being introduced in response to a growing trend of parents choosing not to register their child’s birth and so acquire their own nationality for their child. There are a small number of countries where a child acquires citizenship only if the parent registers the birth at the high commission in the UK, rather than it being acquired automatically by descent.
Previously in these debates, the noble Lord, Lord Dubs, has talked about the children of refugees, and we understand that while many children of refugees automatically acquire their parent’s nationality at birth, they can be prevented from being able to apply for a passport to the authorities of their country of origin. However, such children are not stateless because they already have a nationality, so would not qualify under the stateless child provisions, as they do not now. They will therefore not be affected by this change.
Most parents applying for their children under this route are not refugees. Home Office sampling, which is being referred to, reflects trends identified by caseworkers. Of over 200 cases sampled of children applying on this route, 96% of applicants had parents with nationalities that require birth registration, and 90% of those parents had contacted the high commission to obtain a letter to show that their child was, in fact, not a citizen, so fear of approaching their authorities was not an issue. Just to anticipate a possible question, I am afraid I do not know how the sampling was arrived at—or the sample. Many of the sampled cases did show parents with poor immigration histories who went on to gain leave to remain as a result of the child being registered. Only 16% of parents had permission to be in the UK at the time of the child’s birth. In 67% of the cases, the parents had gone on to gain leave to remain in the UK as a result of the child’s registration.
In the other place, the Minister gave the example of Child X, which I think is worth retelling.
“At the time of X’s birth, both parents were in the UK without lawful leave. Steps were taken to remove X’s parents, who absconded at one point. However, an application was made to register X as a British citizen, under the stateless minor provision, a few days after their fifth birthday. While they had not approached the Indian high commission to register X’s birth, the parents provided
letters … from the Indian authorities stating that there was no record of the birth having been registered, so they clearly had no fear of approaching the Indian authorities.
“X was registered as a British citizen … The parents then made an application to remain in the UK on the basis of family life, which was granted because it would have been harsh for the British child to leave the UK.”—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 205.]
Noble Lords have also raised concerns about children being kept stateless as they grow into adults, and that is not an accurate reflection of this provision. Where a child is born in the UK, they will have an entitlement to registration if their parents become settled, or they live here until the age of 10. The Home Secretary also has discretion to register any minor, providing they are of good character and are aged over 10, under Section 3(1) of the British Nationality Act 1981, and guidance sets out when that discretion will normally be used.
The noble Lord, Lord Paddick, raised the best interests of stateless children born in the UK. Having a nationality is not only about identity and belonging; it allows many children to acquire a passport or identity document and therefore facilitates travel overseas, such as to see family. Having the same nationality as their parents would surely benefit a child—to promote a sense of belonging and identity and allow them to obtain that documentation, and for the family to travel together as a family unit.
Where a child does not have citizenship from birth and is technically stateless, we recognise that it would be of benefit to a child to gain a nationality. However, whether that needs to be British nationality, rather than that of the parent, needs to be balanced against the wider need to maintain an effective immigration and nationality system. Encouraging parents to take steps to acquire their own nationality for their child will not preclude the child from applying for British citizenship under another route at a later date if they meet the relevant criteria.
The noble Lord, Lord Paddick, queried some of the stats given in the letter and from the Dispatch Box. I can clarify that those given from the Dispatch Box were the overall stats, so the total number of cases in 2018 was 1,775. It has continued to grow at a similar rate on an annual basis.
I reiterate that citizenship is not the only option. There are also provisions in the Immigration Rules for a stateless person to apply for permission to stay in the UK, for which they do not have to wait five years. Equally, their parents are able to apply for immigration leave if they believe they have a valid basis of stay here.
I hope your Lordships will agree that, while it is not a child’s fault that their parents have not registered their birth, it is not fair that in choosing not to acquire a nationality for their child they leave them stateless for five years, without the ability to travel urgently if needed and without the benefits and protections that follow from having a nationality. It is equally not fair to other children who follow the normal routes to British nationality.
Genuinely stateless children will still be able to benefit from this provision. However, where it is possible for parents to acquire their own citizenship for their child through a straightforward administrative procedure, with no risk or significant difficulty, we would expect
them to try to do so before relying on the stateless provisions for British nationality. Given the disadvantages of statelessness that noble Lords have referred to, we would expect a child’s parents to take steps to secure a nationality for them.
Children who cannot qualify under the stateless provision will be able to apply for citizenship once their parent becomes settled, or otherwise if they reach the age of 10. They will be in the same position as other children born in the UK to non-settled parents. I therefore invite noble Lords not to press their amendments.