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Immigration, Asylum and Nationality Bill

moved Amendment No. 66:"After Clause 55, insert the following new clause—" ““AMENDMENT OF SECTION 1 OF THE BRITISH NATIONALITY (HONG KONG) ACT 1997 (1)   Section 1 of the British Nationality (Hong Kong) Act 1997 (c. 20) (acquisition of British citizenship) is amended as follows. (2)   Subsections (1)(a), (2)(a) and (3)(a) are hereby repealed. (3)   After subsection (8) insert— ““(9)   A person shall be deemed to have met the requirements of subsection (2)(c) or (3)(c) and shall not be refused under subsection (6) if— (a)   his father or his mother has been registered as a British citizen under section 1 of this Act; (b)   immediately before 4th February 1997 the person was not of full age and capacity, or the person was born on or after 4th February 1997 but before 1st July 1997, and (c)   at the time of the application he is not a national or citizen of a country or territory outside the United Kingdom.”””” The noble Lord said: My Lords, this new clause removes anomalies in the British Nationality (Hong Kong) Act 1997. Subsection (2) of the new clause deals with the problem of otherwise stateless British nationals overseas who were not ordinary resident in Hong Kong on 4 February 1997. The exclusion of persons who were not ordinary resident on the qualifying date is intentional, because the purpose was to benefit only those British nationals who had demonstrated their commitment to Hong Kong by maintaining ordinary residence in the territory. However, in the Nationality, Immigration and Asylum Act 2002, by inserting a new Section 4B in the 1981 Act, otherwise stateless British nationals were given a right to register as British citizens, as long as they were solely British, irrespective of where they were resident. This created an inconsistency. A former Hong Kong British Dependent Territory citizen, who was otherwise stateless but registered to become a British national overseas, will never have a right to become a British citizen if he was not resident in Hong Kong on 4 February 1997, whereas a former Hong Kong BDTC who is otherwise stateless but simply failed to register as a BNO will have been automatically granted BOC status under Article 6(1) of the Hong Kong (British Nationality) Order 1986. As is the case with other BOCs, BPPs and BSs, holding one of the latter categories of British nationality gives an entitlement to register as a British citizen under Section 4B of the 1981 Act. By removing the ordinary residence requirement, the proposed new clause would allow a person from the Hong Kong ethnic minority who was solely British on the qualifying date, 4 February 1997, to register as a British citizen, thus equalising his position with that of those who benefited from Section 4B. That is an argument of fairness. Subsection (3) covers persons who were minors on the qualifying date—primarily from Hong Kong’s Asian ethnic minorities—and have hitherto been treated as failing to satisfy the test in Section 1, but who have at least one parent who registered successfully under the 1997 Act. The provisions of that Act have resulted in an injustice and created a number of split families in the ethnic minority community in Hong Kong. In all cases where the parent was born, naturalised or registered as a British national in Hong Kong, the child born to such parents after they registered under the 1997 Act would automatically become a British citizen by descent, whereas a child born before the 1997 Act has no entitlement to become a British citizen. Those children, some of whom are now adults, are left in a position where they are now de facto stateless. A discretionary registration concession was made in 1992 to remedy split families. It resulted from the provisions of the British Nationality (Hong Kong) Act 1990, as referred to obliquely in an Answer to my noble friend Lord Lester by the noble Lord, Lord Bassam, on 31 January 2000 at column WA 7 of the Official Report. Subsection (3) of my proposed new clause would extend a similar registration entitlement to remedy the split families which have resulted from the British Nationality (Hong Kong) Act 1997 and rectify the position of a small number of British nationals in Hong Kong who are presently de facto stateless. The concession is important. It takes into account the special circumstances of the ethnic minorities in Hong Kong and is consistent with the commitments that we made to this group in the run-up to the hand-over to China in 1997. It would apply to a small, closely defined group whose only nationality is British. The amendment contains adequate provisions to prevent abuse; namely, that either the father or mother of the applicant must have qualified under the 1997 Act; that the applicant must be solely British on the date of the application; and that the person must have been a minor immediately before 4 February 1997 or born before the hand-over. After I tabled this amendment, a new Annex H to Chapter 14 of the Home Office Nationality Instructions appeared on the IND website, which I saw for the first time yesterday evening. This acknowledged at last—I had been trying to persuade the Home Office of it since October 2004 in literally dozens of Questions and at a meeting with the previous Minister, Des Brown, on 2 February 2004—that Indian minors who were registered as BN(O)s in Hong Kong forfeited their previously held Indian citizenship and were therefore entitled to register as British citizens. The delay arose after the Government sent a note verbale to the Indian authorities which asked them to clarify the meaning of their citizenship law, because at the time when BN(O) status was invented, they had said that the person concerned would retain their Indian citizenship, not clearly understanding that BN(O) status could be obtained only by registration and not by birth. We had said all along that this would be the answer. Since the applications by these people for registration as British citizens are now admitted to have been wrongfully refused, I hope that the Minister will assure me that arrangements have been made to grant the claims without requiring the applicants to make further submissions, because the refusals were unlawful and therefore void, as provided in paragraph 6.8.3 of the nationality instructions. It would be outrageous if these people, having been deprived of their rights since 1997 or 1998, were now to be charged another £250. Subsection (3) of the proposed new clause may no longer be necessary as a result of this development. Considering that Ministers have inadvertently misled Parliament since 27 October 2004 by stating repeatedly that Indian minors who acquired British nationality by registration did not lose their Indian citizenship, will the Minister tell me when a statement will be made which corrects these misunderstandings as provided by standing orders? I beg to move.