Tuesday 20 June 2023
The States of Guernsey will be asked to signify its views on a number of pieces of UK legislation, including two UK Bills, which change nationality legislation which directly applies in the Bailiwick.
The UK has recently been making changes to the nationality regime with updates through the Nationality and Borders Act 2022 ('NABA') as well as draft legislation currently being considered by the UK Parliament, namely the Illegal Migration Bill ('IMB') and the British Nationality (Regularisation of Past Practice) Bill. Each of these have provisions that directly apply, or will directly apply, in the Bailiwick. Those nationality provisions are what the States is being asked to consider now.
In addition to those nationality provisions, the NABA and IMB also have immigration provisions which the Bailiwick may want to consider in due course. If any of those provisions were to be considered for extension to the islands in the future, it could be in whole or in part and with whatever modifications might be needed to suit the islands' circumstances. Those immigration matters, some of which are considered controversial, are not being considered as part of this Policy Letter, they would need to come back to the States Assembly later if it is proposed to extend any of the provisions to Guernsey/the Bailiwick. That is particularly the case for the IMB, as its immigration provisions are being amended as the Bill makes its way through the UK's Houses of Parliament.
Deputy Peter Ferbrache, President of the Policy & Resources Committee said
"When the States amended the Reform (Guernsey) Law in 2019, the purpose was to ensure that the States of Deliberation has an opportunity to have its say on matters which affect our residents. Our British citizenship is an important part of our connection to the Crown and it is appropriate that the States is given the opportunity to express its views on the UK's proposed changes to nationality provisions before they take effect."
Deputy Rob Prow, President of the Committee for Home Affairs said
"The Committee work closely with the UK Home Office on all nationality and immigration legislation, including this Act of Parliament and two UK Bills. Whilst the States will only be debating the nationality provisions at this stage, the assembly will be asked to consider any extension of any immigration provisions of the Illegal Migration Bill at a later date, if it is proposed to extend any of them to Guernsey/the Bailiwick, and only after that Bill has been granted Royal Assent."
Why are the pieces of UK legislation (one Act and two Bills) being considered in the States of Deliberation?
- As a consequence of the Bailiwick's constitutional relationship with the Crown, and through that the UK Government, legislation made in the UK Parliament relating to nationality matters applies directly. Matters relating to immigration are a matter of domestic competence, with legislation extended by Order in Council using a permissive extent clause ('PEC') within the relevant legislation. There is a PEC in NABA and IMB.
- As part of a package of measures to improve Guernsey's constitutional resilience, following attempts by some UK parliamentarians to legislate for the islands without consent, the States inserted an extra provision in the Reform (Guernsey) Law, 1948 (Article 72A). That provision requires the Policy & Resources Committee to refer the substance of UK legislation to the States where provisions of that legislation either apply directly to the Bailiwick or will be extended by an Order in Council (using a PEC within the relevant UK legislation).. The only exception is if the Committee considers that referring the matter to the States is unnecessary. Article 72A ensures that the States of Deliberation is able to consider the terms of UK legislation before it applies to the island and provides for a consent process in Guernsey's parliament.
- The provisions that apply directly to the Bailiwick are:
- Nationality and Borders Act:
- The nationality provisions apply directly to the Bailiwick. The amendments introduce new registration provisions for children of British Overseas Territories citizens, who were unable to acquire that status under earlier legislation, either because women could not pass on citizenship at the time of their birth, or because their parents were not married.
- The Act introduces a provision for children to acquire their father's citizenship where they were unable to do so previously because their mother was married to someone else.
- Creates a new time-limited route for the descendants of those born on the Chagos Islands, now known as the British Indian Ocean Territory, to apply to register as both British Overseas Territories citizens and British citizens.
- A new adult registration route allows the Secretary of State to grant citizenship where, in the Secretary of State's opinion, a person failed to become a British citizen and/or British Overseas Territories citizen because of historical legislative unfairness; an act or omission by a public authority; or other exceptional circumstances relating to the person's case.
- removes the requirement to have been in the United Kingdom at the start of the five (or three) year residential qualifying period for naturalisation in exceptional cases. This will mean that people will not be prevented from qualifying if there are good reasons why they could not have been in the United Kingdom at that time.
- allows the Secretary of State to disapply the requirement to give notice of a decision to deprive a person of their nationality where notice of the decision would be impractical or a threat to national security.
- amends the existing provisions for the registration of a stateless child as a citizen, adding a requirement that a child aged 5-17 will not qualify if they could reasonably acquire another nationality. This means that a child cannot benefit if their parents could, but chose not to, acquire their own nationality for their child.
- Illegal Migration Bill
- Sections 30-36 will apply directly: these have the effect of permanently disqualifying 'unlawful' entrants (who satisfy the criteria for removal under section 2 of the IMB) from becoming a British citizen and make consequential amendments to the British Nationality Act 1981.
- The British Nationality (Regularisation of Past Practice) Bill
- Will rectify a historical issue relating to the method of assessment applied to European Economic Area (EEA) nationals (meaning citizens of the EU, Iceland, Liechtenstein or Switzerland) and enables their children to now acquire British citizenship.
Is this an opportunity for the States to debate the possible extension of most or all of the UK's Illegal Migration Bill to the Bailiwick?
- No, this debate is only about the limited nationality provisions. Those UK nationality provisions apply directly to the Bailiwick to ensure there is a uniform nationality regime for all British citizens. This is a chance for the States to have a say on the nationality aspects of the IMB.
- Any debate on whether to extend parts of the IMB to Guernsey would be about immigration matters. The States of Deliberation will have a choice as to whether it needs to, and whether it should, extend any parts of the IMB after it has become an Act of Parliament in the UK. The States would decide what modifications might be needed so that the IMB, or any part of it, would suit the islands' particular domestic needs. It is at that stage that issues around the IMB can be fully debated. This debate cannot take place until the terms of the Bill are settled and it has become an Act of Parliament.
Why are the nationality provisions of the NABA only being considered now?
- The NABA progressed through the UK Parliament and became an Act of Parliament in 2022. NABA has some nationality elements (regularising certain issues such as to provide the opportunity for British nationality of Chagos islanders amongst other things) as set out in Part 1 of that Act and included in Appendix 2 of the Policy Letter. However, those nationality provisions were not picked up in time to allow a Policy Letter to be debated in Guernsey whilst the legislation was being considered in the UK Parliament. The 72A provision in Guernsey's Reform Law is new and procedures were still being developed to ensure that UK draft legislation regarding nationality provisions could be considered by the States whilst that legislation was still in passage through the UK's Houses of Parliament. These procedures are now in place. This is the first opportunity to bring the nationality provisions of NABA to the States, but it does allow the States to signify its views retrospectively regarding this legislation.