Nationality and Borders Bill: Government Concessions and Assurances in the House of Commons on 22 March 2022

ILPA documents

As the Nationality and Borders Bill continues its ping pong between the House of Commons and House of Lords, we have set out below some of the concessions and assurances made by the government in the House of Commons on 22 March 2022. Quotations are from Tom Purslove MP, Parliamentary Under-Secretary of State for the Home Department, Minister for Justice and Tackling Illegal Migration, unless otherwise specified.

1) Nationality rights for descendants of Chagossians: The Commons disagreed to the Lords amendment creating an entitlement for descendants of those born in the British Indian Ocean Territory to register as British overseas territories citizen and for those being registered as such to be registered as a British citizen, but proposed an amendment in lieu to create ‘a new route to British nationality for direct descendants of the Chagossians removed from the British Indian Ocean Territory.’ The Minister stated further, ‘I can confirm, however, that this route is free and there will be no good character requirement associated with it’. (Column 182)

Stuart McDonald MP later commented that ‘questions arise in relation to the amendment in lieu, because unlike the original Lords amendment it does not include an entitlement for Chagos islanders to register as a British citizen at the same time. Were it not for historic injustices, that would have been made an automatic entitlement in May 2002. The Government’s proposals mean there will be only a discretionary route’. He then asked, ‘Will the Minister confirm that that discretion will be used in all cases of this type? Will he ensure that only a restricted fee is charged, as in other cases of historic injustice?’ To which Kevin Foster MP, Parliamentary Under-Secretary of State for the Home Department stated, Minister for Safe and Legal Migration, stated: ‘Our intention is to operate in the spirit of the Lords amendment—that is, there will not be a fee for registration—but I am more than happy to outline in some detail at another time exactly how the process will work.’ (Column 205)

2) Power to deprive persons of British nationality without notice: The Commons disagreed to the Lords amendment removing clause 9 from the Bill, but proposed amendments in lieu which impose certain safeguards on the exercise of the power to make a deprivation order without notice. The Minister stated: ‘we are satisfied that the amendments will enable us to protect the rights of the individual while delivering on our security objectives’. (Column 183)

3) Processing of asylum claims overseas: ‘I want to make it absolutely clear again that unaccompanied asylum-seeking children will not have their claims processed overseas.’ The Minister further stated: ‘I am not going to get drawn into listing all other possible exemptions to removal in that way, but I set out on Report that, for example, family groups would not be separated, because that would clearly not be in accordance with our international obligations. Clearly, much will depend on the particular circumstances of the countries we are working with.’ (Column 187-188)

In response to Stephen Kinnock MP’s comment regarding ‘the so-called offshoring provisions which allow—theoretically at least—asylum seekers to be sent to faraway lands for processing’ and ‘[t]he latest ludicrous suggestion is that Ascension Island, 4,500 miles away in the South Atlantic, should be used for the purpose’, the Minister stated: ‘May I make it clear, for the benefit of the House, that the suggestion about Ascension Island is untrue?’ (Column 196)

4) Family reunion: In response to comments by Tim Loughton MP, the Minister noted ‘It would be useful for us as Ministers to meet him, as a former Children’s Minister, to discuss his ideas. As I say, I know he takes a passionate and keen interest in these matters. Family reunion is something we continue to be committed to.’ (Column 188-189)

5) Right to work: The Commons disagreed to a Lords amendment which would have permitted people seeking asylum and their adult dependants the right to work after an asylum application has been pending for six months. In response to Sir Robert Buckland MP’s comments that there is ‘reasonable question to ask about the position of asylum seekers being able to undertake work after six months’, the Minister stated: ‘If he is agreeable, I would be keen to meet him to discuss the issue and the arguments he makes […]’. (Column 212)

6) Crimes of illegal entry: ‘I also want to clarify the position with regard to illegal entry offences. I think it worth restating the position that I have consistently maintained in the House. This is not an attempt to prosecute every illegal entrant. Instead, prosecutions will focus on egregious cases: for example, cases in which an individual has entered in breach of a deportation order, or was previously removed as an illegal entrant or overstayer. We intend to take a firm stance in such cases, in order not to inadvertently reward such individuals with a grant of leave rather than punishing their abuse of the system. We are working closely with the police and our internal investigation teams to ensure that this policy is properly enforced, but is also proportionate.’(Column 230)

7) Age assessments: ‘First, I want to make it very clear there is no appetite to start conducting comprehensive age assessments where there is no doubt about someone’s claimed age.’

In response to Peter Aldous MP’s comment that he ‘would be grateful if my hon. Friend the Minister confirmed that the Age Estimation Science Advisory Committee that has been set up to look at this process could include a practising dentist’, the Minister stated: ‘I am grateful to my hon. Friend for that suggestion. I know that he has discussed this issue with the Home Secretary separately. I am not in a position to give him a firm undertaking today, but we will certainly take away and consider that particular point, and perhaps we could remain in contact on it.’

The Minister further stated: ‘One thing I will certainly want the national age assessment board to do is reflect on the best practice that exists in local authorities around the country and bring together that model of best practice to make sure that we get this right.’ (Columns 264-266

8) ‘Late compliance’ with a slavery or trafficking information notice and damage to credibility: ‘It is clear on the face of the Bill that where there is good reason for late compliance, there will be no damage to credibility. We have given repeated assurances that, in keeping with the approach taken in our current statutory guidance, “good reasons” will allow for things such as individual vulnerabilities or the effect traumatic events and coercive control can have on people’s ability to accurately recall, share, or recognise such events. I expect that work to be carried out through a trauma-informed approach, which will ensure that decision makers have the flexibility and discretion to appropriately consider “good reasons” without prejudging what that should cover.’ (Column 266

9) Disqualification of potential victims from modern slavery protections if a competent authority is satisfied that the person is a threat to public order, or has claimed to be a victim of slavery or human trafficking in bad faith: ‘The Government have been clear that the disqualification will not be applied in a blanket manner. Rather, following a referral to the national referral mechanism, where an individual meets the public order definition or has claimed in bad faith, the specific circumstances and vulnerabilities of each case will be carefully considered.’ (Column 266)

10) Support for persons who receive a positive conclusive grounds decision: ‘The Government have already committed to providing all those who receive a positive conclusive grounds decision and are in need of specific support with appropriate tailored support for a minimum of 12 months, where necessary. That will be set out in guidance, […]’. (Column 267)

In relation to comments by Sir Iain Duncan Smith MP advocating for an amendment to put the 12-month minimum into the Bill, the Minister said: ‘I refer him to the commitment that was made from the Dispatch Box by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Redditch (Rachel Maclean), on Report. Future legislation on modern slavery more generally is very likely to be in the offing. We are also happy to meet him—I know that the Home Secretary has spoken to him—to discuss his point in greater detail. We want to work through it carefully to ensure that we get it right.’ (Column 267)

The Minister later stated: ‘My recollection of the earlier proceedings relates to putting the matter firmly in guidance, but as I say, we are happy to meet to discuss it. We want to get it right, and we are willing to consider the position with him following this debate. That is an undertaking to him on which we will certainly follow through.’ (Column 267)

And further: ‘Another point that I would make, because it is useful in the context of the debate, is that such matters are considered on a case-by-case basis and people are often awarded a period of leave that is longer than 12 months, which is beneficial for them. We would not want to see an adverse situation where people received less time than perhaps they would have done, given that individuals are receiving more after a case-by-case consideration that takes into account all the relevant factors. As I say, we are very willing to take the issue away and to engage with my right hon. Friend the Member for Chingford and Woodford Green. We will have those discussions and conclude them accordingly. He should leave that with us and we will get that meeting organised as quickly as possible.’ (Column 268)

11) Children who are victims of modern slavery: ‘I hope that I can provide greater reassurance more generally around victims of modern slavery aged under 18 by saying that ensuring decision makers take account of individuals’ vulnerabilities is fundamental to our approach. We will make it clear in guidance how children, or those who were children at the time of their exploitation, should be considered, taking into account their particular vulnerabilities and specific needs. This includes making it clear in guidance how the damage to credibility measure is to be applied in the case of children. I also emphasise that decisions to withhold protections from the national referral mechanism on public order grounds from children and adults will be made on a case-by-case basis, as I have set out previously.’ (Column 285)

‘It is right that the Government should be able to withhold protections from those individuals who pose a threat to public order, but this is not a blanket disqualification. The guidance underpinning these measures and the decision making around them will be made by trained decision makers and will consider the needs of children and specific safeguarding vulnerabilities.’ (Column 285)

‘I hope that I can also reassure the hon. Member for Halifax (Holly Lynch) in saying that it remains our firm intention to engage properly and thoroughly with the sector in designing that guidance to make sure that we get this right.’ (Column 285)

12) Requiring electronic travel authorisation for travel from the Republic of Ireland to Northern Ireland: In relation to a Lords amendment to which the Commons disagreed, which would have exempted individuals travelling to Northern Ireland on a local journey from the Republic of Ireland from requirement to obtain electronic travel authorisation to travel to the UK, the Minister stated, ‘we would like to take the opportunity to reassure colleagues again that there will be no controls on the border between Northern Ireland and Ireland.’ (Column 268-269

In response to a question from Stephen Farry MP regarding the’the impact the Bill will have on what are often daily movements on the island of Ireland by non-Irish nationals’, the Minister said: ‘The Under-Secretary of State for the Home Department, my hon. Friend the Member for Torbay (Kevin Foster), was whispering in my ear at the same time, making the point that he has already had a meeting with the Irish Government to discuss this, and I know that that engagement is ongoing. He is also very willing to meet the hon. Gentleman to discuss this in greater detail, and we will get that meeting organised for him as quickly as possible to progress that.’ (Column 269

13) Visa penalties for countries posing risk to international peace and security etc: In response to a question by Jeremy Corbyn MP about whether ‘people wanting to come to this country from Russia or Belarus who have been taking part in peaceful activities to oppose the war and call for peace, and who need to get somewhere else, will not be prevented from coming to this country?’, the Minister replied that ‘people will still be able to apply for visas in the normal way, so I hope that provides him with assurance.’ (Column 269-270)

However, in response to Jeremy Corbyn MP’s follow-up question,‘The Minister said they can seek an application—of course they can, but how do they practically make that application? In addition, those who are not activists and who do not have any particular political views, but who are caught up in an international conflict, such as a married couple where one person is from this country and the other is from another country—it does not have to be Russia—also deserve a right to come to this country. I hope that this new clause does not make it even more difficult for them to come home when they want to’, the Minister stated: ‘On the position around individuals and their ability to lodge visa applications in the circumstances that the right hon. Gentleman described, that would, to be clear, depend on the visa penalty applied, and such applications may not be considered on the back of that. We will, however, carefully consider the right hon. Gentleman’s point about peaceful protesters, which is an understandable and legitimate point, before taking any decisions on applying visa penalties. The key point here is that, in any case, we will ensure that the most vulnerable individuals—those with compelling, compassionate grounds for travelling—are exempted from the application of visa penalties.’ (Column 284-285)