Borders, Citizenship and Immigration Bill [HL] Is the Latest in a Long Line of Bills to Seek to Amend the Law on Immigration, Asylum and Nationality

RESEARCH PAPER 09/47 Borders, Citizenship 22 MAY 2009 and Immigration Bill [HL] Bill 86 2008-09 This Bill would deal firstly with the transfer of border customs functions to the new UK Border Agency. It would also introduce new naturalisation requirements and deal with various other citizenship issues. The Bill as it was introduced in the Lords would have provided for immigration control to be introduced on air and sea routes within the Common Travel Area (the UK, Ireland, the Isle of Man and the Channel Islands), but these controversial provisions were defeated in the Lords. Originally the Bill would also have restricted the involvement of the higher courts in immigration and nationality cases, but a Lords amendment limited the scope of this restriction. The Bill would introduce a new duty on the UK Border Agency to safeguard the welfare of children and make provisions in relation to trafficking babies and children for exploitation. Several opposition amendments in the House of Lords mean that the Bill no longer entirely reflects the Government’s wishes. However, the Government has indicated that it wishes to return to these issues in the House of Commons. The comprehensive consolidating immigration Bill which had been expected will now be published in draft in the autumn of 2009. Arabella Thorp and Gabrielle Garton Grimwood HOME AFFAIRS SECTION HOUSE OF COMMONS LIBRARY Recent Library Research Papers include: 09/33 Apprenticeships, Skills, Children and Learning Bill: Committee 23.04.09 Stage Report 09/34 The financial crisis in the US: key events, causes and responses 23.04.09 09/35 Russia’s Military Posture 24.04.09 09/36 Russia and the West 24.04.09 09/37 Social Indicators 24.04.09 09/38 Direct taxes: rates and allowances 2009/10 27.04.09 09/39 Policing and Crime Bill: Committee Stage Report 29.04.09 09/40 Economic Indicators, May 2009 06.05.09 09/41 Green Energy (Definition and Promotion) Bill [Bill 15 of 2008-09] 05.05.09 09/42 Equality Bill [Bill 85 of 2008-09] 07.05.09 09/43 Unemployment by Constituency, April 2009 12.05.09 09/44 Election timetables 13.05.09 09/45 Local Democracy, Economic Development and Construction 15.05.09 Bill [HL]: Democracy and involvement aspects [Bill 93 of 2008-09] 09/46 Local Democracy, Economic Development and Construction 22.05.09 Bill [HL]: Economic, Regional and Construction Aspects Research Papers are available as PDF files: • to members of the general public on the Parliamentary web site, URL: http://www.parliament.uk • within Parliament to users of the Parliamentary Intranet, URL: http://hcl1.hclibrary.parliament.uk Library Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. We welcome comments on our papers; these should be sent to the Research Publications Officer, Room 407, 1 Derby Gate, London, SW1A 2DG or e-mailed to [email protected] ISSN 1368-8456 Summary The Borders, Citizenship and Immigration Bill [HL] is the latest in a long line of Bills to seek to amend the law on immigration, asylum and nationality. It includes the citizenship and child protection aspects of the large Draft (Partial) Immigration and Citizenship Bill which was published for consultation in July 2008, and incorporates aspects of other consultation exercises on the Common Travel Area and on immigration appeals, as well as covering other areas on which there has been no consultation. Some provisions in the Bill, whilst appearing small, have nevertheless provoked considerable controversy and raised important points of principle Part 1 of the Bill is largely administrative. It would allow for certain functions to be transferred from HM Revenue & Customs (HMRC) to officials of the recently-created UK Border Agency. The new customs role of the UK Border Agency will focus on border-related matters, while HMRC will retain responsibility for revenue and customs functions inland. Part 2, on citizenship, would implement the Government's proposals for a new ‘path to citizenship’ by amending provisions of the British Nationality Act 1981 on naturalisation as a British citizen. The main changes would be to: • extend the basic qualifying period for naturalisation from five years to eight (or from three years to five, for applicants with a family connection to a British citizen); • keep most applicants on temporary (limited) leave with restricted access to benefits during the qualifying period by introducing a new stage called ‘probationary citizenship’; • reduce the additional qualifying period by two years for taking part in voluntary activities; and • require applicants to have ‘qualifying immigration status’ throughout the qualifying period. An opposition amendment introduced a ‘grace period’ during which the new rules would not apply to applicants who are already close to qualifying for naturalisation under the current rules, but the Government has indicated that it intends to return to this issue in the House of Commons. Other nationality amendments in Part 2 include clauses on the children of foreign and Commonwealth members of the armed forces, children born abroad to British mothers, children born abroad to parents who are British citizens by descent and certain Hong Kong residents. Part 3 of the Bill deals with immigration control. As introduced in the Lords, it would have introduced immigration control for air and sea journeys within the Common Travel Area (which comprises the UK, the Channel Islands, the Isle of Man and the Republic of Ireland). These provisions have proved controversial, as journeys within the CTA are not currently subject to immigration control. An amendment to remove this clause from the Bill was agreed on division in the Lords, but again the Government intends to return to the issue in the Commons. Other changes in this part relate to restrictions on studying in the UK, powers to take fingerprints, and detention at ports in Scotland. Part 4 covers a variety of issues. It would originally have allowed any judicial review application in immigration and nationality cases to be heard by immigration judges in the new Upper Tribunal, instead of by High Court judges in the Administrative Court (the Upper Tribunal was established in November 2008 as part of the new two-tier unified tribunals service under the Tribunals, Courts and Enforcement Act 2007, to which the Government intends to move the Asylum and Immigration Tribunal at the end of 2009). However, this clause was seen as another controversial attempt to ‘oust’ the jurisdiction of the higher courts from immigration cases, leading to an amendment being agreed on division in the Lords which would limit the transfer to ‘fresh claim applications’ and prevent immigration appeals from the Upper Tribunal to the Court of Appeal from being restricted. As with the other major opposition amendments, the Government has said it intends to return to this clause in the House of Commons. Part 4 would also introduce a new duty on the UK Border Agency to safeguard the welfare of children. Some further measures – including those against trafficking of children – were added during consideration of the Bill in the Lords. A further draft Immigration Bill, implementing the Government's proposals for the consolidation and ‘simplification’ of immigration and asylum (but not nationality) legislation, is expected in the autumn. CONTENTS I Introduction 7 II Border functions 9 A. The border functions of HM Revenue and Customs 10 B. Powers of immigration officers 15 C. Strengthening borders 17 D. The Bill 18 E. Issues and concerns 19 III Nationality 27 A. Introduction 27 B. Naturalisation 28 1. Overview 28 2. Current rules 28 3. The ‘path to citizenship’ green paper 29 4. Responses to the consultation 31 5. The draft (partial) Bill 32 6. The Bill 33 7. Issues and concerns 34 C. Children born to members of the armed forces 51 D. Other nationality issues 53 1. Introduction 53 2. Children born overseas to British women 53 3. Children born overseas to British citizens by descent 55 4. Children born to unmarried British men 55 5. Hong Kong residents 56 6. Chagos Islanders 57 IV Common travel area 58 A. Current law and policy 58 B. The need for change? 59 C. The Bill 59 D. Issues and concerns 59 V Judicial review 66 A. Overview 66 B. Background 66 1. Increasing pressure on the courts 66 2. New Tribunal Service 67 3. Immigration appeals consultation 69 C. The Bill 72 1. The Government’s original clause 72 2. The Lords amendment 72 D. Issues and concerns 72 VI Welfare of children 82 A. Background 82 B. The code of practice and children’s champion 83 C. The Bill 84 D. Issues and concerns 84 VII Trafficking of babies and children for exploitation 89 A. Overview 89 B. The Bill 90 C. Issues and concerns 91 VIII Students: restrictions on studies 92 A. Current law and policy 92 B. The Bill 93 C. Issues and concerns 94 IX Fingerprinting of foreign criminals 96 X Detention at ports in Scotland 98 RESEARCH PAPER 09/47 I Introduction1 The Government has been making a wide range of changes to the immigration control of people coming to the UK from outside the EEA2 (migration within the EEA is largely determined by European free movement rules rather than by domestic policy). As well as administrative and management reforms, this has required a striking number of changes to the law, of which the current Borders, Citizenship and Immigration Bill is the latest. There has been a new Immigration Act every year or two since 1997 and hundreds of changes to secondary legislation, the Immigration Rules, guidance and administrative arrangements.

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