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Nationality and Borders Bill (Lords Consideration of Commons Amendments): A Rule of Law Analysis

Dr Ronan Cormacain

Executive Summary

This Report analyses the Commons Amendments to the Nationality and Borders Bill to inform the House of Lords Consideration of them on Monday 4th April. The Report focuses only on amendments that engage the Rule of Law. It supplements our three previous Reports analysing the Bill in greater detail.

The Commons amendment moved in lieu of Lords Amendment 1 grants certain citizenship rights to descendants of persons born in the Chagos Islands. It rectifies some aspects of the historic injustice suffered by them and is to be welcomed from a Rule of Law perspective.

We recommend that peers vote in favour of Commons amendment 1.

Commons amendments 4A to 4F (moved in lieu of Lords Amendment No. 4) create safeguards for the exercise of the power (in clause 9 of the Bill) to deprive a British citizen of their citizenship without notice. Although this remains a draconian power, we welcome these safeguards.

We recommend that peers vote in favour of Commons amendments 4A to 4F (although see below).

However, one aspect of clause 9 continues to seriously undermine the Rule of Law. Subsections (5) to (7) retroactively validate deprivations of citizenship without notice that were made unlawfully. Retroactively penalising citizens ought to be exceptional, and no justification has been offered. It undermines legal certainty, the right to a fair trial and interferes in the exercise of justice in individual cases if the Government can change the law to legitimise its past unlawful conduct in relation to individuals after it loses a case.

We recommend that peers vote for the Baroness D'Souza amendment to clause 9 to remove subsections (5) to (7).

Lords Amendment 5 dealt with compliance with the Refugee Convention and was rejected by the Commons. The Baroness Chakrabarti amendment provides that Part 2 of the Bill is compliant with the Refugee Convention, and is to be read and given effect to as such. We remain gravely concerned that provisions in the Bill would breach the Convention. The Chakrabarti amendment would help make clear to courts that Parliament does not intend Part 2 of the Bill to breach the Refugee Convention. On the basis that all sides of the debate seek compliance with the Convention, there is no valid reason for not stating this on the face of the Bill.

We recommend that peers vote for the Baroness Chakrabarti amendment relating to Lords Amendment 5.

Lords Amendment 6 rejected a provision that allowed for a two-tier refugee system, with Group 1 refugees having full rights, and Group 2 refugees having lesser rights. We agree with the United Nations High Commissioner for Refugees that this approach is inconsistent with the Refugee Convention. Refugees should not face differential treatment based on how they arrive in the UK, nor what countries they pass through on their way to the UK. The amendment by Lord Kerr provides that all refugees are entitled to their rights under the Refugee Convention, and that clause 11 does not affect the ability to maintain the unity of families.

We recommend that peers vote for the Lord Kerr amendment to clause 11.

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