To ask Her Majesty’s Government what plans they have to ensure that the United Kingdom remains a world leader in the mathematical sciences.
My Lords, the EPSRC has committed £281 million to research grants for mathematical sciences between April 2015 and September 2021. To further support our world-leading mathematicians, UKRI has awarded around £104 million in additional funding over and above EPSRC’s core mathematical sciences theme budget, in line with the Government’s announcement in January 2020. Research England notionally allocated £55.2 million of mainstream quality-related research funding for mathematical sciences to higher education providers in England for the academic year 2021.
I thank the Minister for his reply and his acknowledgement of our world-leading mathematicians, but would he agree that, to be a world-leader in mathematical sciences, we also have to make greater efforts to encourage girls and young women to become mathematicians and do more to take advantage of all the talent that is available? Will the Minister indicate what steps the Government are taking to this end?
I completely agree with the noble Lord, who I know has long advocated the importance of mathematics study. I point him towards the advanced mathematics support programme, which has a specific focus to get more students participating in A-level core maths. It works with schools and colleges to raise awareness of progression to mathematics at university. As I am sure the noble Lord is aware, there is also the national network of maths hubs to help local schools improve the quality of their mathematics teaching. The most recent Programme for International Student Assessment results show that England outperformed on the OECD averages for reading, maths and science.
My Lords, pure maths is becoming ever more significant in the world of digital research. Will the Government now make mathematical science a distinct research field, no longer subordinated within engineering and the physical sciences, where it still lingers under the outdated Science and Technology Act 1965? Surely, it is time to move on.
I confess that I am not familiar with that legislation but I thank the noble and gallant Lord for his update. We have an excellent record on mathematics tuition and one of the best records in the world on advanced research papers, as shown by the number that have originated in the UK. It is an important area and we are doing well, but I am sure that we could always do better.
My Lords, leading on from the Question asked by the noble Lord, Lord Davies, the leading figures in four mathematical societies are all women: the president of the London Mathematical Society, the vice-president of the Edinburgh Mathematical Society, the chair of the Centre for Mathematical Sciences and the president—and three of the four vice-presidents —of the Royal Statistical Society. As the noble Lord says, however, this is not reflected in the number of female applicants across A-level and degree level. Maths should be fun. What are the Government doing to make it fun for women and girls—and, indeed, for boys and men too?
I think boys like fun as much as girls do—sometimes even together. I am delighted to hear about all the excellent leading women who are in top-level positions. We, as the males in this world, will clearly have to do better to compete with their excellent record.
My Lords, the demise of mathematics in British universities is a direct consequence, albeit inadvertent, of the Government’s policies. The Government have allowed universities to compete for students without limit in pursuit of enhanced student appreciation, which can affect student recruitment. In order to accommodate students of lesser academic ability, the universities have relieved many of their courses of the burden of mathematics. This is damaging our prospects as a technological nation. Have the Government envisaged any means of limiting this harm?
I am afraid that I just do not recognise the picture the noble Lord is painting. The UK is a world leader in mathematical science and British mathematicians publish a large volume of highly regarded work. We have the fifth largest share of publications in the world. When looking at the top 1% of the most cited publications, UK mathematicians are responsible for the third largest share. I am sure we could always do more and better, but we have an excellent record.
My Lords, long ago I studied maths and further maths at A-level, and it was fun. Now, sadly, I struggle even to master my grandchildren’s GCSE papers, but I recall enough of my time in mathematics to understand the supreme value of pure maths. Without Newton we could not have landed on the moon. Without Turing we would not have smart- phones. Is the Minister aware of the disquiet in the maths community not only at the overall funding for mathematical sciences but at the insufficient investment in fundamental theoretical mathematics research? Will the Minister agree to consider if that really is the case?
Like the noble Lord, I did mathematics at A-level, but an almost equally long time ago and I have forgotten most of it now. He makes a very good point. We have an excellent record of investment in mathematics but I will take his remarks back to the department and see if we can do better.
My Lords, if we are really serious about raising mathematical standards in the UK, has the time not come for the Government to give greater backing to the national mathematical Olympiad for pre-university students, the winners of which would go on to the International Mathematical Olympiad but also receive money for their studies?
I thank my noble friend for her question. That sounds like an excellent event and I am sure we will want to do all we can to support it.
My Lords, the UK’s position as a leader in maths would be more certain if we addressed inequalities in education at a young age. The Government should start by launching an urgent inquiry into the way A-level results were awarded last year, when we saw stark differences in the way that schools awarded top grades. As an example, one private girls’ school in north London nearly trebled its rate of A* grades awarded, so that more than 90% of its entries were assessed as A*. Pressure on teachers from senior leaders—not at all schools, but at some—to game the system is deeply troubling and unfair. This must surely be investigated in order to restore confidence in the system.
This is obviously an important subject but we are getting slightly off the original topic, which was maths research council funding. However, I would be happy to look at that issue in more detail and come back to the noble Baroness.
My Lords, I second exactly what the noble Lord, Lord Birt, said about the importance of fundamental maths to a range of scientific disciplines. Risk analysis, neuroscience, biology—all now require an understanding of fundamental principles. I declare an interest, as my son teaches maths to biologists in the University of Edinburgh. We are, however, in severe danger of losing top-quality mathematicians because if they move to a merchant bank, their pay is so much higher than universities are now ready to offer. Will the Government look at how they maintain top-quality mathematicians in our university system to teach the fundamental maths that we need?
Again, the noble Lord raises an important subject. We clearly want to make sure that some of the top mathematicians stay in our universities to educate the next generation of young people. I will certainly take his remarks back to the Department for Education.
My Lords, the noble Baroness, Lady Garden of Frognal, says that maths should be fun for women. Can it actually be fun for anybody, even if it is very necessary for everyone?
I am sure that maths can be fun for everybody. I am disappointed that my noble friend does not think so.
My Lords, the Minister has rightly defended a reasonably good record of government funding of mathematics. I applaud that, but he is he convinced that sufficient attention is being given to biology, chemistry, physics and other scientific subjects, many of which now depend fundamentally on mathematics being inherent in their teaching?
I will need to refer to the Department for Education for the details of how it supports these other vital subjects in its teaching programmes, but I agree with the thrust of the noble Lord’s question.
To ask Her Majesty’s Government what plans they have to introduce a comprehensive policy to deal with the dangers and benefits of e-scooters.
My Lords, the Department for Transport is considering options for how best to regulate e-scooters and crack down on their illegal use. New measures being considered will be designed to create a much clearer, fit-for-purpose and fully enforceable regime for e-scooters and other micro-mobility devices. This will include robust technical standards and new rules for private and rental e-scooters.
My Lords, e-scooters have become a menace and the Government are being too slow either to ban or, as we have heard, regulate them. They are dangerous in design, using up valuable rare metals in battery manufacture, and cause growing numbers of accidents among riders, pedestrians and the disabled, and arising from scooter-induced fires. The defence of the present situation is focused on the relatively small number of regulated trial rentals, not the hundreds of thousands in private ownership with very limited legal use. Can my noble friend the Minister advise the House what early action she proposes to remedy this situation? We need to try harder.
The policy is still under development and I am grateful to my noble friend for highlighting her concerns for our consideration as we develop it going forward. It is very important that we develop a safe, proportionate and flexible regulatory regime. To do that, we need the data from the various trials which are going ahead, the future of transport regulatory call for evidence, ongoing conversations with stakeholders and more research. I reassure my noble friend that we are making progress. I recognise that there is more to be done.
The Minister describes a very complicated and confusing situation. Is she able to explain to the House where e-scooters can be legally used in England and where they cannot? Will she pass on that information to the police?
Yes, I can explain that. It is illegal to use a private e-scooter on all public land. It is certainly illegal to use one on the pavement or the road. Trials have been set up around the country to develop evidence for future regulatory reform, and, within those trial areas, it is allowable to ride an e-scooter on a road or cycle path. We are working very closely with the police on enforcement; for example, the National Police Chiefs’ Council is developing a national strategy for tackling the illegal use of e-scooters. My officials are working very closely with it on that.
My Lords, there is a growing problem with e-scooters being ridden in Northern Ireland illegally and erratically. They are permitted to be driven only on private land. A freedom of information request from the Belfast Telegraph revealed that the PSNI does not hold statistics on the number of fines or cautions issued. However, there is a perception that few, if any, offenders have been prosecuted. Does the Minister agree that addressing this potentially lethal threat to personal safety should be more of a priority for police forces across the United Kingdom, including in Northern Ireland?
The noble Lord is most likely right that the PSNI does not hold data. Indeed, it is the case that police forces in England do not currently hold data relating specifically to offences by riders of e-scooters because they fall under the category of motor vehicles, and that data is therefore within that. At the moment the Home Office has no plans to introduce a requirement for forces to collect information, but, as the noble Lord set out, it is absolutely key that local police forces develop good action plans for enforcement, following the guidance that will be coming out from the National Police Chiefs’ Council.
My Lords, last year, there were 931 casualties of e-scooter accidents— 200 of those were non-riders—and there were three fatalities, yet there is absolutely no reference to e-scooters in the new Highway Code. Does this make the Government derelict in their duty to protect both riders and those who inadvertently cross their path? Does the Minister realise that, by tarrying so long on this, the Government are not leading but lagging behind the rest of the world?
I am not sure I agree that the Government are “tarrying so long”. It is really important that we get the correct balance between the enormous benefits that e-scooters can bring and safety on our roads. The noble Baroness is right to highlight some very serious safety concerns that have arisen. We are gathering the data, and we appreciate data that is coming into the department from all sorts of places and that we can subsequently analyse. But, as I said, e-scooters are not currently allowed on the roads, except in trial areas. It could become impossible to get a good legislative framework together, so, for the time being, within the trials, the e-scooter riders must comply with the rules, obviously, and take part in the training offered.
My Lords, this matter is now urgent. What deadline has the Minister set her department for producing a report? We cannot go on with uninsured riders, very often moving around drugs and so on, or otherwise just knocking down pedestrians. Can we have a deadline, please?
My department is currently considering how best to capture and publish the information that we are gathering from the trials. We hope to make progress on potential new primary powers. I cannot give my noble friend a deadline, but suffice it to say, at this stage, that we have a large team working on all the different elements to enable us to bring forward a legislative framework.
My Lords, having witnessed the increased use of e-scooters in London recently, I am irrevocably drawn to the conclusion that this is a catastrophe waiting to happen. I have witnessed almost every rule of the road being breached, including reckless and careless driving, excessive speed, lights being jumped, riding on footpaths and use without lights. Can the Minister advise the House of the number of e-scooter accidents and prosecutions that have taken place in London since e-scooters have been legalised and why was the opportunity missed to offer advice and guidance in the redraft of the Highway Code?
I might swerve the Highway Code question because I think I have gone as far as I can in the answer to the noble Baroness, Lady Randerson, but I will slightly push back on what the noble Lord is saying because it is a bit concerning. A number of people have bought these scooters and obviously we want them in due course to be able to ride them safely. We will not be able to do that for all e-scooters or, indeed, for all riders but it is clear to me that people see them as an attractive alternative mode of transport. The key here is to legislate accordingly and that is what we are very much focused on. The noble Lord asked about safety stats. I can say that for the year to June 2021, the Metropolitan Police recorded 496 incidents of injury with e-scooters versus 25,666 where it was any vehicle.
The Minister mentioned earlier that she could not give any data for police enforcement of offences. But, as my noble friend Lady Randerson said, Department for Transport statistics for the year to June 2021, collected from police forces, show that there were nearly 900 accidents, with three people killed and 253 seriously injured. If her department can get accident statistics from the police, why can it not get statistics on enforcement and offences? Is it because her department is not encouraging the police to do any enforcement?
No. Enforcement is going on: offenders are being fined and penalties are being given out. The reality is that the Home Office does not collect the data by the specific vehicle type that is an e-scooter.
My Lords, first, well over a million private scooters are estimated to have been purchased. Will my noble friend comment on the fiction that they are being ridden only on private land? Secondly, does she think that at point of sale, when purchases are being made, there is clarity and unambiguity that e-scooters are illegal except in trial areas or on private land rather than the reality of the chaos and catastrophe they are causing up and down the country?
The department is acutely aware of the issue of the number of private e-scooters that are potentially being ridden on public land at this moment. That is why working as quickly as possible to develop a legislative framework, which will be set out in primary legislation, in order for them to be ridden legally. However, we are also reassured that the Consumer Protection from Unfair Trading Regulations 2008 stipulate that traders must give sufficient information to consumers; they must not mislead. Ministers from my department have written to retailers many times and the last written reminder of their obligations was in December 2021.
To ask Her Majesty’s Government when they will publish their new strategy for international development.
My Lords, the Government will publish a new international development strategy this spring and it will guide our work for the coming decade and beyond. It will align our development work with the aims and objectives of the integrated review.
My Lords, in our increasingly interdependent world, successive Secretaries of State for International Development and Prime Ministers have recognised the crucial importance of conflict prevention and peacebuilding in our international development strategy. That is precisely because those who are affected by violent conflict are those who suffer from the least development and the fewest opportunities; of course, those conflicts spill over and affect us in our country too. Will the Government give a cast-iron guarantee that, in the priorities outlined in the new international development strategy, this cross-party approach will be continued and that support for conflict prevention and peacebuilding will continue to be a priority for the United Kingdom?
I absolutely can provide that guarantee. The UK is committed to working to prevent and reduce the frequency and intensity of conflict and instability, and to minimise opportunities for state and non-state actors to undermine international security. As the noble Lord said, it is absolutely in our national interest to mitigate the global impact from terrorism, serious and organised crime, and health threats, as well as regional impacts of conflict.
My Lords, when DfID existed, the department regularly published detailed country profiles setting out the purpose for delivering aid, what UK aid had achieved, what it aimed to achieve, how the UK was supporting countries to transition from aid, what the UK was getting from that aid and future spending plans. I do not believe that this information has been updated since the merger, so can my noble friend the Minister tell me whether the international development strategy will include this detailed information? If not, is he able to commit that the department will publish it in the near future?
My Lords, priority outcomes will be tracked via a set of headline metrics contained in the FCDO outcome delivery plan, and that will be for all to see.
My Lords, the most vulnerable women and children on earth live in South Sudan, where one in 10 babies die before the age of five. As the UNICEF website highlights horrifically: “Giving birth on the floor, cutting the umbilical cord with a stick. That is the reality for some women in South Sudan.” Any development strategy should look to increase support for those women and children, but the Government have cut support by 10% and, quite unbelievably, I understand that there are now discussions in the department to cut even further the combined health pool, which supports 80% of health provision in South Sudan. Will the Minister please intervene and make sure that these cuts do not happen, and then write to me and other noble Lords assuring us that they will not take place?
My Lords, on the issue of the geography and the example given by the noble Lord—whom I commend for being a champion for that continent—the UK remains a leader in international development in Africa. We are committed to supporting the poorest people on that continent. That will be reflected in the strategy when it is published in spring. As well as providing humanitarian support, our UK aid is helping to protect rainforests, deliver vaccines, educate girls, reduce crime and improve economic growth and development.
My Lords, between now and 2050, the population of Africa will double. One billion more people will need to be fed, to be housed and to be employed. What effect will this have on the new strategy? Will it be a priority—for example, by encouraging family spacing and discouraging adolescent childbearing?
My Lords, the Foreign Secretary has been clear—and it will be equally clear in the strategy when it is published—that we intend to restore funding for women and girls. We will continue to prioritise women and girls by supporting education systems, to empower women by strengthening sexual health and rights, and to work to end violence against women, including practices such as FGM. Within that focus on women and girls, we have already seen that one of the best ways to encourage stable populations is by investing in women and girls in the way that I have just described.
My Lords, at the end of 2021, the UK had delivered only 11% of the vaccines that it had earlier promised to the developing world. As a result, coronavirus has continued to spread and mutate throughout many of the poorest nations on the planet. How will the Government use their new strategy for international development to support and promote vaccinations in the poorest parts of the world? Do they support the World Health Organization’s target of vaccinating 40% of the population of every country by the end of this year and 70% by the middle of next year?
Protecting global health and meeting the Prime Minister’s commitment to deliver 100 million Covid-19 vaccine doses to the world’s poorest countries remains a top priority. The integrated review set out the UK priorities for global health to build resilience, at home and overseas. This includes delivering the Prime Minister’s five-point plan to bolster international pandemic preparedness, as well as reforming the World Health Organization and prioritising support for health systems around the world.
My Lords, parishes across England have links through the Anglican Communion with international communities where the issues of poverty, conflict and disease are most clearly felt. Those are shared by the people in our congregations in this land. As the bishops from the Anglican Communion gather for the Lambeth Conference this summer, I hope the Minister will enable us to present something about our nation’s international strategy for international development that will address some of the most crucial issues. First, there are the ways in which human rights are trampled on, particularly in the context of persecution of people for their faith—both Christian and other faiths. Secondly, there is the use of opportunities for partnership with the Anglian Communion in that strategy. Thirdly—
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I thank the right reverend Prelate for his question. The UK is blessed with the sheer breadth and diversity of organisations representing civil society, and chief among them is our network of churches. We are committed to working in partnership with a whole range of civil society organisations, including from the UK and beyond. I am very keen to hear the examples the right reverend Prelate cited and very happy to have that discussion on the specifics.
My Lords, the volcano in Tonga demonstrated the vulnerabilities of island nations in the Pacific—as indeed, in a different way, has the Chinese Government’s intervention in the Solomon Islands. Will my noble friend the Minister say that the international development strategy will give an enhanced priority to island nations in the Pacific, when it is published?
My noble friend makes an important point. Covid exposed the vulnerabilities of those small island developing states, in much the way that climate change, in the longer term, is exposing the vulnerabilities of small island states and small island developing states. So, yes, the answer is that we are increasing our emphasis on, and will boost our support for, small island developing states. Part of this is the Indo-Pacific tilt, which noble Lords have heard a great deal about. Equally, we will be raising our aspirations towards and support for the Caribbean, through overseas territories and beyond, for precisely the reasons my noble friend addresses.
The Minister reminded us of the Foreign Secretary’s commitment to ensure that the strategy focuses on women and girls and, in her words, their “freedom to succeed”. Malnutrition is the single largest cause of death in women worldwide and I was extremely disappointed that the Government were not able to make a commitment at the Nutrition for Growth Summit in December. However, I was heartened to see that our global leadership position is returning, in part with the announcement of £1.5 billion in funding for nutrition. None the less, this will not meet the WHO global nutrition targets by 2025. Will the Government review that pledge in time for the next Nutrition for Growth Summit in 2024?
The noble Lord is certainly right. Malnutrition contributes to nearly half of all child deaths globally. It is a key priority for the FCDO. Improving nutrition will play a key role in achieving all our objectives on ending preventable deaths of mothers, babies, children, women and girls through humanitarian aid and global health. The strategy, when it is published in the spring, will lay out what that means in terms of the financial priorities and allocations.
My Lords, do the Government agree that a key part of our international development strategy should be the promotion of democracy and good governance? What signal does the Minister think is sent when, following the elections and peaceful transfer of power in Zambia, we have cut its aid budget by 50%?
The reduction from 0.7% to 0.5% was always going to result in difficult decisions. It is not a decision the Government took lightly or that anyone in government welcomes. We will return to 0.7% as soon as the tests laid out by the Chancellor are met. As I have said, our focus on and recognition of the importance of the continent of Africa will be reflected in the changes going forward.
To ask Her Majesty’s Government what recent discussions they have had, if any, with the government of Greece about returning the Parthenon marbles to Athens.
My Lords, the Greek Prime Minister raised this issue with our Prime Minister when they met last November. Our Prime Minister emphasised the UK’s longstanding position that this is a matter for the trustees of the British Museum, who legally own the sculptures. Her Majesty’s ambassador in Athens has also discussed this issue with Greece’s Minister for Culture, most recently in January. The British Museum operates independently of the Government, meaning that decisions relating to the care and management of its collections are a matter for its trustees. The Government fully support the position taken by the trustees. The Prime Minister made these points clear to the Greek Prime Minister when they met. Both agreed that the issue in no way affects the strength of the UK-Greece partnership.
My Lords, is the Minister aware that, in the British Museum, there are more than 108,000 Greek artefacts, of which 6,500 are currently on display? More importantly, will he accept that my plea that we should consider returning the marbles is based on the fact that they are a unique piece of art, they belong together and they have a proud history in terms of the Greek historical traditions? Surely we should think again.
My Lords, the British Museum has more than 4.5 million objects from its collection that are available to study online. It is visited by 6 million people a year, and its fantastic collection from across human history is admired by people from around the world. Sadly, half of the original sculptures on the Parthenon are no longer with us, mostly destroyed by the turn of the 19th century, not least in the appalling tragedies sustained in 1687 when the Venetian army hit the Parthenon, which was being used as an armament store by the Ottoman Empire at the time. Of the half that remain, around half are in the British Museum, where they can be admired as part of the sweep of human civilisation, and about half can be admired in the Acropolis Museum, seen alongside the building which they once adorned.
My Lords, human society rests on the principles of private property, of free contract and of the elevation of the individual above the collective. Will my noble friend confirm that these precepts are incompatible with the concept of a collective claim based purely on geography?
My noble friend makes an important point. The Parthenon sculptures were acquired by the late noble Earl, Lord Elgin, legally, with the consent of the then Ottoman Empire. The British Museum is always happy—and the trustees have made this clear—to consider loans to museums that recognise its legal ownership of the items. That is the stumbling-block in this instance.
My Lords, the British Museum Act has a provision that Nazi-looted art can be sent back, as can human remains within 1,000 years. Would the Government consider revising the Act to consider the return of other looted artefacts from wheresoever they came?
The noble Baroness makes an important point about two decisions that Parliament has taken in relation to items plundered under the Third Reich and human remains which are less than 1,000 years old. These were decisions taken by Parliament, just as was the passage of the British Museum Act, and just as was the decision, following the Select Committee that looked at this in 1816, to acquire the objects at the time. It was looked at again by a parliamentary committee in 2000 under the chairmanship of the late Sir Gerald Kaufman. The Government have no plans to change the law.
My Lords, would it not be a helpful step for the Government to set up an independent expert panel to deal with such concerns across all our national museums, to establish an ethical framework in which guidance can be given and decisions made?
The noble Earl makes an important point. We are working with Arts Council England to look at the guidance available generally to museums in considering questions of restitution and repatriation. I have had some fruitful and interesting discussions with museums, including, most recently, the Great North Museum in Newcastle, which is considering items in its collection. I will continue to have those conversations with museums with a range of views, but it is important that we get that guidance right. It is possible to add further grievance —I have been following the issue of the return of the Benin bronzes by Jesus College, Cambridge, which has caused some disagreement between the current Oba of Benin and the Legacy Restoration Trust in Nigeria. We must get this right and act considerately.
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My Lords, it is the turn of the Labour Benches, and the noble Lord, Lord Campbell-Savours, wishes to speak virtually. This is a convenient point for me to call him.
My Lords, how does the Minister respond to Boris Johnson’s earlier elegant words of wisdom, when he wrote, in more romantic times: “The Elgin marbles should leave this northern whisky-drinking guilt-culture, and be displayed where they belong: in a country of bright sunshine and the landscape of Achilles, ‘the shadowy mountains and the echoing sea’” Would it not be a generous act in his final days, before —if I can possibly say this—being sacked, to arrange for their return? We could retain replicas.
My Lords, fortunately for all Ministers, government policy is not made by the things that Ministers wrote when we were undergraduates. The Prime Minister has made the long-standing position of Her Majesty’s Government clear to the Greek Prime Minister, most recently when they met in November.
My Lords, as a former trustee of the British Museum, may I ask my noble friend the Minister if he agrees with me not only, as he said, that the British Museum is prepared to lend objects—and is at this point lending objects to many countries generously on a long and short-term basis—but that this requires an acknowledgement of the good title that the British Museum has to those objects?
I congratulate my noble friend on his recent appointment as chairman of Sir John Soane’s Museum. He is absolutely right that the British Museum is indeed a very generous lender, both overseas and within the United Kingdom. Before the pandemic, the British Museum normally loaned over 2,000 objects to around 100 venues outside the UK every year. In addition, as I say, many millions of people come to see the items in its global collection in Bloomsbury. The British Museum will consider any request for part of its collection to be borrowed, but that requires its legal ownership of those items to be recognised.
My Lords, can the Minister tell the House whether Her Majesty’s Government are facing the issue of repatriating ancient treasures by themselves? I note that many European capitals are affected. For instance, the Louvre is home to the “Winged Victory of Samothrace” and the “Venus de Milo”.
I think it is important that we look at this on a case-by-case basis. There are a number of national museums which are prohibited by law from deaccessioning items, and then there are others which are able to make a decision. That is where the guidance of the Arts Council will be important. The noble Lord mentioned the Louvre, which also contains one of the Parthenon sculptures—indeed, these wonderful items are to be found in museums in six countries across the world.
My Lords, the UK has the world’s largest horde of culturally significant stolen artefacts, including the Ethiopian manuscripts, the Benin bronzes, the Rosetta Stone, the ring of Tipu Sultan and much more. These items matter to the places from which they were taken, often by force. Could the Minister please consider publishing a timetable for returning these items to their rightful place?
I am afraid I cannot agree with the noble Lord, nor indeed in completeness with the list that he cited. That is why, as I say, it is important that we approach this on a case- by-case basis, looking at the items, how they came to be in the United Kingdom, how they were acquired, whether they are—as in the case of the Parthenon sculptures—legally owned by the museums, and to look at these matters considerately.
My Lords, the task of a museum is to preserve, educate and inspire. In an era where we can now make extraordinarily accurate copies— down to the tiniest chisel mark and chip—could we not argue that we would be fulfilling our duties to protect and educate if we were to reunite the Elgin marbles and send them back to their birthplace, that wonderful museum by the Acropolis? Could we not also argue that this would be an act of historic inspiration which would make—how can I put this?—the Greek gods, as well as our Prime Minister, weep with gratitude?
My Lords, the Acropolis Museum is indeed remarkable. I had the pleasure of visiting some years ago, and I greatly enjoyed it—just as I have enjoyed visiting the British Museum, where, in the Duveen Gallery, the Parthenon sculptures there can be admired. They have been admired down the centuries by people including Keats, Wordsworth and Auguste Rodin, who have been inspired into making new works of art as a result. Sadly, it is impossible to reunite the Parthenon sculptures. Half of them have been lost over the last two and a half millennia. At the moment, around half of those that remain are in the British Museum, where they can be admired in the great sweep of human civilisation, and around half can be admired at the Acropolis.
That the order of commitment be discharged.
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
My Lords, today is the penultimate day of Committee on the Nationality and Borders Bill. As the time available for this Bill in Committee is now limited, we will, I am afraid, sit late today to make sure that we get to the target group. It is perfectly possible if all noble Lords co-operate. There is no dinner break business, but we will take a short break of 30 minutes at around 7.30 pm I know the significance of the issues in this Bill. So far, we have debated more than 100 amendments; we have about the same number to go. We must finish this Committee stage by the end of Thursday. So far, we have spent 20 hours in Committee on the Bill, but there is a lot of other legislation to progress before the end of the Session. The Companion to the Standing Orders says: “The House has resolved ‘That speeches … should be shorter’. Long speeches can create boredom and tend to kill debate.” I know that the Front Benches will co-operate, as they have done hitherto, but I ask that all noble Lords do the same. There are very important issues to be discussed in the debates on this Bill but, if all bear in mind the guidance agreed by this House, we can ensure that everyone’s contributions can be heard this afternoon and this evening It is not considerate to other noble Lords who want to speak on later groups to make long speeches early in the day, particularly if they repeat points that have already been made or are not directly related to the amendments. So I repeat my request that noble Lords be self-disciplined and considerate to other noble Lords.
My Lords, I thank the Government Chief Whip for his statement at the start of our proceedings As always, as the Official Opposition, we will use our best endeavours to progress proceedings. We have before the House important business that is not uncontroversial and deserves to be properly scrutinised in a business-like fashion, giving us the opportunity to understand fully the Government’s intention, question the Government and get to grips with the reasoning behind the Bill during this Committee stage. I will be in discussion with the Government Chief Whip throughout the day on the passage of the Bill.
On behalf of our Benches, I support the principles laid out by the Government and Opposition Chief Whips. It is in the interest of the health of the Front Benches that we at the very least try to end at a reasonable time tonight and on future evenings this week.
My Lords, on behalf of these Benches, I add my support. I hope that I am not the only person in the Chamber who wonders whether we are all abiding by the 30-second rule for questions and answers at Question Time.
I completely agree that long speeches are boring; I do not have a problem with that. My contributions this afternoon and this evening will be short. However, I point out that the Government do this House a disservice when they bring to us huge Bills that really ought to be four different Bills—the police Bill, for example. If they do that, we have to table a lot of amendments, which means a lot of debate. Perhaps the Government should extend the Committee and Report stages so that we can discuss these really important issues with enough time.
My Lords, I do not want to have a long debate; it rather defeats the object of my original remarks. I just point out to noble Lords and the noble Baroness that it is not simply a question of extending our Committee time. The only time left before Easter, if we are to complete the Bills that are already in progress, would mean going into the second half of the Easter Recess. We do not want to do that.
My Lords, I hope that I will not bore you for long. I shall take careful note of the Chief Whip’s remarks but I am very pleased to introduce Amendments 100, 101 and 102. I thank those Lords spiritual and temporal who have added their names to these amendments and who are supportive of the contents These amendments seek to remove amendments to Section 77 of the Nationality, Immigration and Asylum Act 2002 from Schedule 3. The intention is to erase the proposal contained in the Bill to introduce powers to export offshore any person in the UK who is seeking asylum without first considering their claim. Few would disagree that protection and control of our borders, primary responsibilities of any Government, are noble and necessary objectives. A Home Secretary must be able to discharge her duties in this respect, which include expediting deportation swiftly and without delay where illegality has been determined under the rules. This was certainly my approach when I served as Immigration Minister in the 1990s Most would agree that the process by which we pursue these objectives matters no less than the solutions on the table. Indeed, solutions need to be effective, but they must also be pragmatic and practical, and enforceable under domestic and international law. They need to be imaginative but also financially viable. They must be firm but also fair. I am afraid that Clause 28 and Schedule 3 fail on these counts. In very literal terms, Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed—in other words, before a final decision is given on their refugee status, including access to an appeal. However, paragraph 1 of Schedule 3 to the Bill withdraws those rights by allowing the transfer of any asylum seeker to any country which will be listed in Section 77 of the Nationality, Immigration and Asylum Act 2002 as amended by Schedule 3 Before Brexit, under the Dublin regulations, the UK Government could remove an asylum seeker from the UK while their claim was still pending but only to return them to the EU country of first entry and only after having issued a certificate under Schedule 3 to the Asylum and Immigration Act that permitted them a legal right to do so. With the end of the UK’s involvement in the Dublin regulations this option became inaccessible. However, Clause 28 would provide the Home Secretary with the legal power to forcibly remove any asylum seeker from the UK while their claim is still pending to another country which the Government have deemed safe. Clause 28 would allow them to do this without seeking and issuing a certificate under Schedule 3 to the 2004 Act. This goes against our legal and constitutional principles and surely should be repudiated All credible immigration systems must first acknowledge the distinction between immigration and asylum. A person who comes here for economic reasons is definitely not the same as a person who comes here to seek safety. The Bill’s failure to disentangle these definitions is significant because in the Government’s bid to control overall immigration, it will be vulnerable people—those fleeing conflict and persecution—who would be disproportionately and adversely affected Many years ago, I oversaw an inquiry that included the viability of offshoring. At the time, the proposal was to create processing centres off the mainland but within British territorial jurisdiction. We quickly judged that to be deeply flawed as an idea, but the problems we identified around domestic offshoring are almost trivial compared with the problems we would face by offshoring asylum seekers to foreign territory. For one thing, it would be a clear breach of our principles in the 1951 convention on refugees. We may be abrogating our responsibilities for dealing with applications, as well as those to the asylum seekers themselves, who, by international law, should be able to retain control over where and when they submit those requests. Indeed, a person’s physical removal from the UK would effectively terminate their claim for asylum in the UK, transferring it instead to a third country.
My Lords, in rising to support Amendments 100 and 101, to which I have added my name, I declare my interests in relation to both the RAMP project and Reset, as set out in the register When people arrive on our shores seeking protection, we have a responsibility to treat them as we would wish to be treated if we had to flee for our lives. It is right that we have a process to determine who meets the criteria for refugee status, but while we determine this, we are responsible for people’s safety, welfare and care. If we move them to other countries for the processing of their asylum claims, I fear a blind eye will be turned to their treatment. How will we be sure that they are being treated humanely and fairly, and would our Government even give this much concern once they had left our shores? If we look to the experience of Australia and the refugees accommodated in Nauru, as the noble Lord, Lord Kirkhope, has just mentioned, we hear deeply shocking accounts of abuse, inhumane treatment and mental and physical ill-health As mentioned in relation to an earlier amendment, I visited Napier barracks last week to see improvements that have been made since the exposure of the disgraceful conditions at the beginning of last year. If what we have seen at Napier is permitted to happen in the UK, what can we expect overseas, where accountability and monitoring will be so much harder? The monitoring of asylum accommodation contractors in the UK is poor, which gives us some idea about the level of monitoring we could expect of offshore processing What standard will be set for offshore accommodation? Will it be detention? How can UK safeguards be enforced in another country? Will there be a maximum period of stay? Minister Tom Pursglove stated in the Public Bill Committee that “we intend their claims to be admitted and processed under the third country’s asylum system.”—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 397.] This is deeply concerning. These asylum seekers are the UK’s responsibility; they came to us to ask for protection, and we cannot simply wash our hands of them. What will be the acceptable standards of a country’s asylum system for us to discharge refugee determination to them? Can the Minister confirm that, if an individual is granted asylum offshore, they will be granted any form of leave in the UK and readmitted We had assurance in the other place from Minister Tom Pursglove that unaccompanied children will not be included in offshoring, but will children in families be offshored? If not, can the Minister assure us that families will not be split up in this process? We need to see any such commitments written into the Bill. I also want reassurance from the Minister that offshore agreements will not be linked to international aid agreements. This would be wrong, so can she give us that reassurance Offshoring would be a huge cost to the taxpayer. Can the Minister tell us what work has been done on the costs? Have such costs been endorsed by HM Treasury The financial cost is not the only one: there would be a significant cost to our international standing. Are we so keen to tarnish our reputation as a country where human rights are upheld for this inhumane policy, rather than one that is rooted in what will actually work to reduce the need for people to have to use criminal gangs? We will discuss these policy proposals in future debates People seeking asylum have arrived on our shores, seeking UK protection. We are responsible for them. It is not a responsibility we can pass over to others. The potential for standards and safeguards to drop is a very serious risk, with the challenges of monitoring and accountability at distance. They would far too easily become forgotten people. Offshoring must simply be ruled out of order.
My Lords, I too support Amendment 100, in the name of my noble friend Lord Kirkhope, to which I have been pleased to add my name. I refer to my entry in the register of Members’ interests The question of offshore detention is undoubtedly one of the most controversial aspects of this Bill, which is designed to stem the flow of small boats from France. The stated objective of this policy is one of deterrence, but opponents of the policy have rightly been asking: at what cost Before we look at the issue of offshoring, I will take a moment to look at and think about the sorts of journeys taken by those fleeing violence and war. Asylum seekers are frequently exposed to intolerable levels of risk as they travel. Irregular migrants face dangerous journeys: they are unprotected, they accumulate debt, and they have no legal recourse. The limited opportunities for legal migration force individuals to use people smugglers where there is a risk of being trafficked. Asylum seekers who fall prey to human traffickers can be exploited in both transit and destination countries. During the asylum seeker’s journey, the fine line with human trafficking—the acquisition of people by force, fraud or deception with the aim of exploiting them—can be easily crossed. Just imagine you go through all that and end up on these shores. It has taken your savings and months of your life to arrive here from, say, Afghanistan, Syria or Iran. On arrival on our shores, we greet you and, before we have even assessed whether or not you are a refugee, put you on a plane and take you back to the continent from which you came. That action alone could kill someone, but my question is also: what does that make us Before I set out my reason for asking the Home Secretary to think again about the use of offshore detention and processing, whether in Rwanda, Ghana or Ascension Island, as we have heard, I will return to the point I made last Tuesday. The best hope of a fair, just and affordable solution to the issue of the Calais boats still lies with a diplomatic solution with the French and EU nations. Will my noble friend the Minister comment on the Telegraph story on Wednesday about the French President’s apparent openness to a deal over channel crossings? As I have suggested a number of times, a returns agreement with the French is likely to be the only viable way to stop the crossings. I imagine this taking the form of an agreement that those who have crossed here irregularly are sent back to be assessed in France; in return, we commit to taking a certain number from Calais. This is a win-win solution that would genuinely destroy the economic model of the people smugglers, would cost less and would be far more humane Could my noble friend the Minister also provide an estimate of the cost of offshore processing? A cursory glance shows that a room at the Ritz costs between £650 and £700 a night. Extrapolate that and one finds that it costs around £250,000 to stay at the Ritz for a year. The estimates of what the Australians pay for one asylum seeker held in detention vary from that amount to eight times that. How can that be justified It is not only the cost that concerns me. Can the Minister provide reassurance that no children will be sent offshore and that women who are vulnerable to sexual violence will receive proper protections? The concerning stories that emerge from processing camps in other countries should give us pause for thought before we embark down this road. When there are other potential diplomatic avenues that the Government are yet to properly consider, offshoring looks like an oversized hammer being used to crack a nut, with the potential for corrupting our character as a nation and our international reputation, and increasing racial tensions domestically and the administrative burden and cost to the state. I urge the Minister to think again and for this House to give the other place an opportunity to think again.
Outside on the streets today are people supporting those of us who are fighting this Bill. They understand the damage it does not only to the refugees and people seeking asylum here but to the Government’s reputation. I do wonder. We have to say these things, because our consciences would not let us not say them, but are the Government listening? I rather think not. Essentially, these clauses are about being able to deport refugees while their asylum claim is being processed. That is not fair on the individuals involved and, I would argue, is inhumane. They are simply being herded like cattle and packed off to be trafficked, essentially Clause 28 and Schedule 3 make provision for safe countries, but no provision for safe accommodation. We know that the accommodation we provide here in the UK is pretty substandard and, sometimes, outright revolting, so I have no trust that safe countries will do any better than we have. I have a question that I would like answered today: what steps will the Government take to assess the conditions and that these people are being treated well in those safe countries?
My Lords, I will follow on from what the noble Baroness and my noble friend Lord Kirkhope said. I will say a little bit on the Australian experience, which is the only relevant extant experience that we have at the moment What happened in Australia was that, in 2001, the Liberal Party of Australia and the National Party of Australia, the equivalent of our Conservative Party, introduced offshoring as a policy. I have no knowledge of how it worked at that point—I just do not have any information—but it carried on until 2008, when the Australian Labor Party was elected in a general election and desisted from offshoring. After that, there was a huge increase in the number of boats coming into north Australia, up to about 50,000 a year, and, as a consequence of that, the Labor Government did a U-turn and reintroduced offshoring. Unfortunately, this was too late in terms of political consequences: it lost the general election, and, in 2013, a new Liberal and National Government came in, reintroducing offshoring and beefing it up, with the army and navy playing a role in all of that. That is the history of it It was then highly successful: the offshoring completely stopped the human traffickers’ business—they had no more scope to bring people over because people simply did not believe that they would get into Australia—and the whole thing was a success, so much so that the opposition Labor spokesman agreed that, essentially, the boats had been stopped by the offshoring techniques. Thereafter, the Australian Labor Party changed its policy, and the policy now has cross-party support in Australia—both the Liberal Party and the Australian Labor Party support it—and boats no longer go across from Indonesia to Australia. The policy succeeded As my noble friend said, it is perfectly true that there are some issues in Nauru and Papua New Guinea—essentially residual issues arising from previous years—which have been difficult to resolve. I am sure that we would all want those to be resolved quickly and properly for humanitarian reasons However, clearly the Government are looking at this. Of course, there is no guarantee at all that such a policy, which was successful in Australia, would be successful here—one cannot pretend that that is necessarily likely to happen. The fact is that, although the situation is the same, in that people are crossing by sea to England and the UK as they were to Australia, the geography and the politics are different, and it is quite possible that it would not work in British circumstances. That is the truth of the matter. None the less, it would be a dereliction of duty if the British Government did not try to look at this and examine whether it can work. The first thing that they have to do is, as the Australians did, pass the relevant legislation that enables them to put this into practice and see whether it does, in fact, work. That is where we are now—we have not done anything about it, and it is not in place. It will not be in place until some time after we have passed this legislation—
Could my noble friend outline his thinking on, for instance, the proximity of Nauru to Australia and whether that is not more the equivalent of saying that France or another European nation would be the location of the offshoring, rather than, say, Rwanda, which is on completely the other side of the world? Could my noble friend perhaps acknowledge the differences and unpack that for us a little?
Yes, I do acknowledge the differences, which is why I said that there is no guarantee at all that, even if this is tried, it will work in British circumstances. All I am saying is that it worked in Australian circumstances, the Government are clearly interested in this and, as I say, it would be a dereliction of duty if they did not put this among their options and pass the legislation that enabled us to try this out. That is where we are now I point out that, after the success of this policy in Australia, the Australian Government were enabled to expand the legal routes for asylum seekers to go to that country because it ceased to be controversial: immigration was less controversial as a consequence of the anti-boat policy being successful. The fact is that, as I have said before in these debates, if the public do not buy into the policy, you will have problems in persuading them to have more immigration. If they buy into it because they can see that you are controlling your borders, they have a more relaxed attitude to immigration and accept higher levels of it because they can see that they are in control of both the amount and the type of immigration coming in Therefore, there is a prize at the end of this for those who genuinely want to have more immigration, frankly, than we have at the moment, and if you can seem to be in control. What worries people is if you are not in control—if they can see clearly that people are behaving illegally getting here, jumping the queue and all the rest of it. In view of what the Whips on both sides have said, I do not want to go on any longer, but we ought to consider this in a rational and sensible way, as a clear option that any responsible Government of whatever kind should pursue; and I point out that, in Australia, for example, it does have all-party support.
My Lords, we have obviously been reading different things because everything that I have read and heard about the policy in Australia suggests that it is far from successful, and certainly not for asylum seekers themselves.
If the noble Baroness reads the evidence given by the Australian high commissioner to the House of Commons—evidence-taking on a section of this Bill—she will find that much of what I have said is corroborated there.
I tend to give more credence to people on the ground, but there it is. I share concerns that have already been raised about potential health and human rights implications and the general dehumanising nature of a power that allows the British Government, in the words of the UNHCR, “to externalise its obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards” No doubt, we are talking about poorer countries on the other side of the world to which asylum seekers will be moved like cattle, as the noble Baroness, Lady Jones, said I want to raise a few questions; some have been covered so I will not repeat them but build on them. First, with regard to children, who a number of noble Lords have mentioned, in the Commons the Minister assured Caroline Nokes, a former Immigration Minister, that unaccompanied children would not be transferred for offshore processing. When she asked about accompanied children, and about what would happen to a child who turned 18 during the process of applying for asylum, answer came there none. I hope that there will be an answer to those questions today Can the Minister also say what would happen to a child whose age is disputed? When we reach that group of amendments—probably around midnight, so it will be great scrutiny—we will hear of the widespread fears among medical and social work professionals and children’s organisations that Part 4 of the Bill will lead to many more children being wrongly assessed as adults. If so, I fear that many unaccompanied children could be transferred because it is not believed that they are, in fact, children. I would welcome the Minister’s thoughts on that. Can she assure us that no young person will be transferred while the age-assessment process is going on Secondly, building on what the right reverend Prelate and the noble Baroness, Lady Stroud, said, the UNHCR observes that the Bill “is silent on what, if any, legal obligations the United Kingdom would consider itself to have” towards asylum seekers once their asylum claims have been dealt with. It expresses concern that there is nothing in the Bill that confines the application of the changes to extraterritorial processing, which is the stated purpose in the Explanatory Notes Detention Action warns that, even if a third country’s authorities recognised the asylum seeker as a refugee, the Bill provides no power for the UK to re-admit them or grant them any form of leave. Can the Minister say whether this interpretation is correct? If it is not, can she assure us on the record that those who are deemed to qualify for refugee status will be readmitted to the UK—that is, the country from which they sought refugee protection—and explain under what legal power in the Bill they would be so readmitted? If Detention Action’s interpretation is correct, this is not simply about offshore processing, which is a euphemism, but, even more shockingly, it is about the Government wiping their hands of all responsibility for those who qualify for refugee protection via a claim for asylum—not short-term offshore processing but long-term deportation. If so, the case for Clause 28 and Schedule 3 not standing part of the Bill is that much stronger.
My Lords, the Government’s position in justifying this and other measures in the Bill rests on the UK’s so-called excellent track record on refugees, and the Minister has repeatedly pointed to the UK’s track record on resettlement schemes. The UNHCR thinks differently: “Resettlement programmes, while welcome, are, by themselves, an inadequate means for fairly distributing global responsibilities towards refugees and sharing the burden currently shouldered by major host countries.” It goes on to give the facts about the numbers who are making their own way from areas where people are being persecuted. It concludes: “For all of these reasons, the Bill undermines, rather than promotes, the Government’s stated goal of improving the United Kingdom’s ‘ability to provide protection to those who would be at risk of persecution on return to their country of nationality.’” As the noble Baroness, Lady Jones of Moulsecoomb, has just said, one of the reasons for offshoring is to temporarily house asylum seekers while their claims are being considered. Would the Minister like to comment on an article in the Times on Saturday that claimed that Priti Patel, the Home Secretary, “wants to … reject Channel migrants’ claims for asylum within a fortnight of them reaching Britain” The story claims that “government lawyers raised concerns over the plans” but the Secretary of State “believes a fortnight is a ‘reasonable’ window for immigration officials” to make such a decision. According to the article, a Home Office spokesperson told the newspaper: “We do not comment on leaks”, so I ask the Minister a different question. Does she believe that two weeks is a reasonable timeframe to consider asylum seekers’ claims? If so, there would not appear to be any need for offshoring The Bill goes from bad to worse. As Amnesty and Migrant Voice put it, “the prevailing attitude emanating from the Home Office … appears determined by any means and at almost any cost to seek nothing more than avoiding its responsibilities while demanding other countries should take theirs. This is a hopeless prescription from which no good can possibly come” The Home Office is seeking the power not only to remove an asylum seeker to any country while it considers their claim, but to do so and then tell that country, “If you think they are a refugee, you take them. It’s not our problem any more”. I do not know how the Government think they can persuade another country to take the UK’s unwanted asylum seekers on either a temporary or a permanent basis. According to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny; has cost a fortune—over £500 million a year, according to the British Red Cross—and, contrary to what the noble Lord, Lord Horam, seems to have seen or heard, has failed to stop those seeking asylum, including those arriving in Australia by boat. I understand that academic evidence on the whole offshoring scheme was given by a university in Australia to the Public Bill Committee in the other place that appears to contradict the evidence that the Australian High Commission gave to the same Committee, so there is clearly a serious difference of opinion as to whether the scheme is successful. Apparently, the independent academic assessment of the scheme thinks it is a failure. The UNHCR says: “As UNHCR has seen in several contexts, offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources”, which amendments in this group seek to address “It can lead to situations in which asylum seekers are indefinitely held in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm … UNHCR has voiced its profound concerns about such practices, which have ‘caused extensive, unavoidable suffering for far too long’, left people ‘languishing in unacceptable circumstances’ and denied ‘common decency.’” I am hoping that this apparently unworkable and morally repugnant provision is yet another paper tiger, designed to appeal to the Daily Mail in deterring genuine asylum seekers, but that it is no more than propaganda. Clause 28 and Schedule 3 should not be part of the Bill. All the other amendments in this group are well- meaning, but they are window dressing.
It seems to me that the amendment of the noble Lord, Lord Kirkhope, and indeed all those in this group have to be right. The idea of offshoring is immoral and it would not be in line with the traditions of this country. It is also impractical; for one thing, it would be horrendously expensive, as the Australian experience shows. Offshoring in Australia has proved as damaging to its exchequer as to the reputation of Australia. Of course, that is not what the high commissioner said. I used to be a diplomat and one tends not to say that sort of thing about one’s own country when on diplomatic duty However, the real and biggest reason I am against this provision is that it is illegal. It is a clear breach of the refugee convention. We had this argument before, so I can do it in shorthand: there is no provision in the refugee convention that fits with proposed new subsection (2B)(b) of Schedule 3, which is at line 20, where a safe country is defined as “a place from which a person will not be removed elsewhere other than in accordance with the Refugee Convention” The refugee convention, however, says nothing about removal to third countries, safe or not. It says that a refugee is a refugee in a place when he says he cannot go home, because he will not be protected at home and would like to ask for the protection of the host state in the country where he is. That is what the refugee convention says. It says nothing about how he got there, nothing about a “first safe country” and nothing at all about exporting him somewhere else, so the language of new subsection (2B) in Schedule 3 is a misreading of that convention Of course, we know that the Government are deliberately misreading the refugee convention. I still think it would assist our debates greatly if the Government would change their mind and let us see the legal advice which has caused them to take the eccentric view that they take of the convention, and hence to propose Clause 11 and all that follows.
My Lords, I intervene briefly and for the first time in this debate, provoked into doing so by what the noble Lord, Lord Kerr of Kinlochard, has just said. It is fundamentally wrong to legislate in a way that obliges you to break international law. It is very simple, but that is it. We do not have islands around our shores where we can gather together vast groups of potential refugees and asylum seekers The other day I was reading a review of a book, which has just come out, about the Isle of Man in the Second World War. There was of course great panic about people of German origin—although most of the poor people were of Jewish origin as well—domiciled in this country. They were rounded up and taken there. There are some fairly inspiring stories but also some very depressing stories. We have to tread exceptionally carefully here. We have gone on a lot about global Britain, but if I am to be proud of global Britain, I want to be proud of a country that is upholding the highest international standards Although I take on board what my noble friend Lord Horam said a few moments ago—he made a gently forceful speech that deserves consideration—I just cannot for the life of me think that to herd people into encampments in Rwanda and other far distant places is anything other than a repudiation of our standards as a great country. It would be fundamentally wrong for us to go along this line. Treat thy neighbour as thyself. There is a lot of wisdom in the 10 commandments. A bishop should really be saying this rather than me, but I really believe that it is essential that whatever we do is consistent with our record as the great nation that abolished slavery throughout its dominions and before that abolished the slave trade. There were battles in Parliament for both, but my parliamentary hero is William Wilberforce and I do not want to see his reputation traduced.
My Lords, I have been sitting on my hands because whenever you tell a personal story, it looks as though you are not pleading what the noble Lord talked about—law. We arrived in 1974 and were treated with such great respect, love and care. For about 20 years we travelled on a British travel document. That kind of hospitality was of great help to us all The way I read this clause is almost as a revisitation of Guantanamo Bay—a very bad piece of work—or voluntary rendition, whereby people were taken from one country to another to sort out whether they were terrorists or not. This country should not use offshoring. The word “offshore” already does not have a good reputation in terms of money and offshore investment. This is a country that has been the mother of parliaments and the mother of legislation and where the rule of law is what governs all of us. How can we get a third country to take what we call refugees I can assure noble Lords that there will be many countries in Africa that will volunteer to do it. The question we have to ask is: how do those seemingly wonderful countries treat their nationals? Do they treat them in the same way that this country does? I would be very doubtful. For the sake of the rule of law, for the sake of this great Parliament and for the sake of the British people who have been very good in welcoming the likes of me, this clause should—please—not become part of the legislation.
My Lords, I am also very impressed by the moderate contribution from my noble friend Lord Horam on the Australian experience. I have a question, therefore. How do the Australians get round the alleged breach of the refugee convention?
I reiterate what was said a little while ago: this is about asylum, not general immigration policy. There is a considerable difference between the two; that does not always get recognised This proposal to offshore asylum claims is inconsistent with the global humanitarian and co-operative principles on which refugee protection is founded. Frankly, if everybody did what we are proposing, there would not be much of the refugee convention left, as I am sure everybody recognises and, in their heart of hearts, knows to be true Having made those introductory comments, I will endeavour to be brief. I want to ask one or two questions. The Minister in the Commons said: “Schedule 3 aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country where their claim will be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing.”—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 388.] As I have just indicated, the Minister referred to “some asylum claims” being transferred. Will the Government spell out in their reply what categories or types of asylum claims would be processed in another country, and what categories or types of asylum claims would be processed in this country? In addition, based on claims made over the past three years, what number or percentage of total asylum claims and claimants would be processed in and removed to another country, and what number or percentage of total asylum claims would still be processed in this country? I assume that the Government have figures on that Information on the countries we have reached agreement with for offshore processing has been, to say the least, a bit thin on the ground, with Ministers saying to date that they are not prepared to enter into a “running commentary” on the conversations that are taking place. I hope that the Government will be a little more forthcoming today on which specific countries we have reached agreement with, or confidently expect to reach agreement with, and which countries have declined to reach an agreement with us. Also, how many different bilateral negotiations are we currently involved in It is unacceptable to be told by the Government that we should agree to a policy and its associated clauses and schedules, which, however repugnant, are meaningless and cannot be implemented unless appropriate agreements are reached with other countries—and then, when asking the Government to give information on whether and what agreements have been concluded, to be told by them that it is none of our business. That is what the Government have been doing to date. We expect better from their response today. However, if the Government are going to continue to play dumb on this issue, perhaps it would be better for them to withdraw Clause 28 and Schedule 3 until such time as they have concluded agreements with other countries, without which the policy cannot be implemented The only thing the Government have said is that the model the Home Office intends to proceed with is “one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.” So it is not just offshoring; it is also treating and dealing with people under another country’s asylum system rather than our own. The duty to ensure that the rights of asylum seekers are respected would still fall on the UK; it would be helpful if the Government could confirm that in their response Essentially, as has already been said, the UK would be outsourcing its refugee convention obligations, potentially to less wealthy nations. The UNHCR has been highly critical of efforts to offshore asylum processing, noting how “offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources. It can lead to indefinite ‘ware-housing’ of asylum-seekers in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm. It may also de-humanise asylum-seekers.”
My Lords, I add my name to that of the noble Lord, Lord Rosser, in giving notice of my intention to exclude Clause 28 and Schedule 3 from the Bill. To move an asylum seeker to a detention or reception centre offshore while their claim is being assessed is wrong in principle, oppressive in practice, contrary to the 1951 convention and lacking sufficient safeguards under the Bill. Many speakers referred to Australia’s policy of offshore processing, as an example both of how awful it can be and, by one speaker, of a successful operation to deter unlawful immigration. It is worth putting a little flesh on the Australian experience In 2013, Amnesty International published a report, This Is Breaking People, highlighting a range of serious human rights concerns at the Manus Island, Papua New Guinea, immigration detention centre. In an update, Amnesty International reported that, in two days in February 2014, “violence at the detention centre led to the death of … a 23-year-old Iranian man, and injuries to more than 62 asylum seekers (some reports suggest up to 147 were injured).” It said in the report: “There are credible claims that the asylum seekers … were attacked by private security guards, local police and possibly other contractors working at the centre. The response by security guards and local police to protests by asylum seekers was brutal and excessive.” Amnesty’s report raised a number of concerns about living conditions, including overcrowding, cramped sleeping arrangements, exposure to the elements, as well as a lack of sufficient drinking water, sanitation, food and clothing. The update said: “Since the violence on … February 2014, Papua New Guinean nationals no longer enter the compounds for catering or cleaning … Asylum seekers are delivered meals in take-away packs for self-distribution and also bear sole responsibility for cleaning the ablution blocks.” At the time of Amnesty’s site visit in March 2014, “ablution blocks in all compounds were dilapidated, dirty, mouldy, and” some latrines were “broken and without running water.” Amnesty International expressed concern about the issue, saying: “Australian and Papua New Guinean authorities are deliberately denying asylum seekers’ right to access lawyers and human rights organizations.” In an article published by the Australian Institute of International Affairs in February 2017, it was said: “LGBT asylum seekers are particularly vulnerable … and face significant disadvantages and dangers. In detention they experience discrimination, harassment and violence from other detainees and from members of staff. The detention environment has serious long-term effects on their mental and physical well-being.” From time to time, Ghana and Rwanda have been floated in the media as places to which asylum seekers in the UK might be transferred, although Ghana has officially denied any such possibility. The appropriateness or inappropriateness of such locations for LGBTIQ asylum seekers is manifest. In Ghana, same-sex sexual acts carry a potential sentence of up to 25 years. There is a current proposal to raise the minimum sentence to 10 years and to require conversion therapy. LGBTIQ people face homophobia, physical violence and psychological abuse In Rwanda, same-sex sexual relations are not unlawful, but there are no anti-discrimination laws relating to sexual orientation or gender identity, including in relation to housing, employment and access to government services, such as healthcare. A 2021 report on Rwanda by the Immigration and Refugee Board of Canada cites sources disclosing discrimination and stigma facing LGBTIQ people in religious and civil society, the media and business, harassment by the police and the use of indecency and vagrancy offences against transgender and gender-diverse people. The experience in the offshore detention centres I referred to in Australia and the position in Ghana and Rwanda show the inappropriateness of holding asylum seekers in offshore detention or reception centres In particular, the following are not answered in the Bill, the Explanatory Notes or any other guidance from the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, assuming that they are being processed under UK law, which is complex and difficult? Secondly, legal aid and advice is available to refugees in the UK, but there is nothing to suggest that it will be available to refugees in offshore holding centres. Thirdly, and as has previously been pointed out, if conditions in the proposed offshore centre are so bad as to cause physical or mental harm to refugees, whether through physical conditions in the centre or—in the case of single women or LGBTIQ members, for example—because of discrimination, harassment, bullying and violence from staff or other asylum seekers, will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign country Until these fundamental questions are answered and set out expressly in the legislation, there should be no question whatever of exporting refugees to offshore holding centres. To do so would be inconsistent with the spirit and the letter of the refugee convention and the UK’s own history of welcome to genuine asylum seekers over the centuries.
My Lords, I thank all noble Lords who have spoken to this group of amendments, and I thank my noble friend Lord Kirkhope of Harrogate for tabling his Amendments 100, 101 and 102 On the back of my noble friend’s point, it might be helpful to clarify the definitions of “asylum seeker”, “refugee” and “economic migrant.” An asylum seeker is a person, either in transit or awaiting a decision, seeking the protection of a state under the terms of the refugee convention. A refugee is a person who meets the definition of “refugee” in Article 1 of the refugee convention—they do not have to be recognised by a state to be a refugee—and so it follows that a “person with refugee status” is a person who meets the requirements under the UK Immigration Rules to be granted refugee status The term “economic migrant” is inexact. It may, of course, refer to a person who is using or looking to use economic routes, such as FBIS, to enter a state. However, there will be people who meet the definition of Article 1 of the refugee convention but are looking to enter the UK and choosing it over other countries purely for economic reasons. One of the objectives of the New Plan for Immigration is to ensure that the most vulnerable can be protected, which in turn means that those attempting to enter the UK for economic reasons should use the appropriate routes Changes within Clause 28 via Schedule 3 are one in a suite of critical measures designed to break the business model of people smugglers and are the first step in disincentivising unwanted behaviours—for example, by dissuading those who are considering risking their lives by making dangerous and unnecessary journeys to the UK in order to claim asylum. By working to establish overseas asylum processing, we are sending a clear message to those who are risking their lives and funding criminal gangs both here and abroad or abusing the asylum system elsewhere that this behaviour is not worth it. We must make it easier to ensure that such people are simply not allowed to remain in the UK It also might assist noble Lords—and indeed my noble friend Lord Kirkhope of Harrogate—to know that for nearly 20 years, it has been possible under UK law to remove individuals from the UK while their asylum claim is pending if a certificate is issued under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, so this is not a new concept. What this measure does is amend our existing legal framework to make it easier to remove such individuals. I do not know which noble Lord asked this, but Schedule 3 also defines the term “safe third country”.
The problem is that the Minister only said, “unaccompanied children”, and did not refer to children in families. I am sorry, but we do not have the confirmation that this addresses the whole range of scenarios—such as families being split up—which we have raised but have not been answered.
Before the Minister replies, I also asked some questions about children and, more specifically, about when they turn 18 and whether their age will be challenged.
I thank both the right reverend Prelate and the noble Baroness for those points. Generally, in the asylum system in the UK, when someone is about to turn 18, their status changes The right reverend Prelate is absolutely right; I did not answer questions about all children in all situations. On the previous day in Committee, I went at length through the routes by which children and families can come to the UK—there are several routes, and I think I cited four My noble friend Lady Stroud asked about victims of modern slavery and human trafficking. We will only ever act in line with our commitments under our international legal obligations, including those which pertain to potential victims of modern slavery.
The Minister has made me even more disturbed. She has not said—and neither has anyone in the other place—that families and children will not be offshored.
As I have just said, I will not go any further than my honourable friend did in the House of Common, save to say that people who—
I understand that the Minister may be unable to respond immediately to the extremely valid question the right reverend Prelate has asked. Presumably, however, the Government as a whole know the answer to his question. Why does the Minister not agree to write to us and tell us what those answers are?
I have said I will write, but to be more explicit than my honourable friend was in the Commons might risk exploitation on routes taken by children. Therefore, this is as far as I will go today. I will lay out the various safe and legal routes through which children can come to this country and reiterate what my honourable friend said in the House of Commons.
I am very sorry but the noble Baroness is not answering the right reverend Prelate’s question. It is not about safe and legal routes but about who will and will not be offshored, which is an awful term. She seems to be saying that children who are accompanied, who are in families, could well be offshored. Is that correct? The Minister in the Commons refused to answer the question and avoided it; I am afraid that is what the Minister is doing here.
My Lords, I am not trying to avoid it; I am saying that that is about as far as I can go. However, I will try to outline any further detail that I can in writing to noble Lords. Noble Lords will know—
My Lords—
I will not take the intervention just yet. I do not generally make misleading comments standing at the Dispatch Box. I will further write.
I am most grateful and apologise. Can my noble friend say whether she expects that, by the time we reach Report, she will be able to answer that question? Can she also say whether there are any countries with which we are close to agreement and, if so, what countries those are?
I cannot say what countries we are in discussion with, other than confirming to my noble friend Lady Stroud that we are having some very positive discussions with France. On the other question, I cannot acquiesce to going further at this point, because I do not want in any way to make comments that might put children in danger. As I have just said to the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Durham, I will write in as much detail as I can following Committee.
I thank my noble friend for giving way. I think I heard that her concern is that saying that children with families would be exempted from being offshored could lead to a fuelling of the trafficking of children to ensure that those families who wanted to travel to the UK would be accepted here. Is that what my noble friend is saying? Some clarity on that would be really helpful, as well as some distinctions in that policy, which obviously she wants to mitigate, and the policy around families who are obviously families—who have proof of it—coming here. Would the Government split them up, let them remain here or be offshored?
I agree with the noble Baroness that we need to strike that balance between abuse of the system and providing refuge to those genuinely in need, but she will also know that we have several family reunion routes, which I went through the other day in Committee. With all that, and the commitment to write to the right reverend Prelate—
I am sorry to intervene just when the noble Baroness thought she had finished. She said that there is already a power to remove asylum seekers while their claim is being considered. Is she referring to when the Secretary of State issues a certificate to say that a claim has no merit and someone can therefore be deported before their appeal is heard? In that case, that is a limited number of people and a very different system from the one proposed here. Can she tell the Committee how many people have been issued with such a certificate and been deported during their application process in that way, compared with the numbers the Government anticipate will be affected by this new proposal?
The noble Lord talks about deportation; we generally refer to deportation in the context of criminals. No, it is not under those provisions.
My Lords, I am sorry, but a whole range of noble Lords asked a question, in different ways, about what happens to the asylum seekers if they are granted refugee status in the country to which they have been offshored. Are they allowed back into this country or are they just left there? If they are left there, they have, in effect, been deported.
My Lords, I do not have the answers before me, so I will write on the questions that I have not answered, if that is okay with the noble Baroness.
My Lords, I thank my noble friend for her responses and all noble Lords for their very important contributions on a really significant part of the Bill. I stand by what I said in my remarks, and I think that others will do so too, despite assurances that we may have received. I would be very grateful if the Government would perhaps be prepared to discuss this matter further between now and Report. On that basis, without further ado, I beg leave to withdraw my amendment.
My Lords, any anxiety that I may have felt earlier this afternoon about the Whip’s injunction to be brief largely evaporated in the distinguished debate that I just heard, because, the more I heard the eloquent succinctness, particularly of noble Lords opposite—the noble Lord, Lord Kirkhope, the noble Baroness, Lady Stroud, the noble and right reverend Lord, Lord Sentamu, and others—the less anxious I felt about initially crossing sections of my notes out and eventually remaining silent. So I feel equally confident about the solidarity and inspiration to come With the Committee’s indulgence, I propose to open up this section on interpretation, which goes on for about three groups, but not to pop up on each group; rather, I shall make my points about this whole concept of reinterpreting the convention here. I do so knowing full well that noble Lords from around the Committee will ventilate granular and very important concerns about reinterpreting “social group”, for example, from the disjunctive to the conjunctive approach to trip up some claimants—or about doctoring the burden and standard of proof and turning persecution, in the context of non-state persecution, into something that does not grant refugee protection where the reasonable steps in which the other state is engaged are totally failing, and so on. Initially, then, I will leave others to extrapolate those concerns and, instead, my own part in the collective approach in this Committee will be on the fundamental problem with reinterpreting the refugee convention in this legislation, which begins with Clause 29 and goes on. I hope the Committee is happy for me to make my contribution on that basis I have a fundamental objection to the entire approach with this reinterpreting of a shared post-World War II refugee convention, not because I do not trust this country to take control of its borders and laws and so on, but because in order for the convention to work, it has to be an international enterprise, and also because I trust our courts. Although Ministers have said at various points on previous days of this Committee that it is for Parliament, not the UNHCR, to interpret the convention, what they really mean is that it is for the Home Office and not the courts—neither the courts over there, nor the courts here What is really going on is that the Government are not taking the approach that they took with the internal market Bill of just being open and honest about an intention to violate international law; they are doing it by this sleight of hand. You could almost call it “violation laundering”, because they will palm it off on Parliament and, once they have done that—once this rewriting of the jurisprudence of the convention has been passed through Parliament—we will be the laundromat: it will be on us that decades and continents-worth of international human rights jurisprudence around this convention will not bite any more to protect those seeking asylum in the UK. I certainly do not want that on my conscience, and I suspect the Committee does not either This is wrong because it is a violation of the principle that this treaty has been entered into in good faith, which is obviously a principle of common sense and the Vienna convention, and so on. It is outrageous because it is telling the courts, including our own, that all this jurisprudence that has been built up over years of dealing with cases, with some of the greatest jurists in our history, including Lord Bingham, can go out of the window because the Home Office has a better idea—one which is, of course, designed to trip people up. Let us be clear: it is not designed to extend convention protection to more people; it goes back to the stump speeches we heard from various noble Lords last week about numbers and so on and is not at all about refugee protection and honouring the convention I get to the point where I actually think that maybe it would be more honest for the Government to do what some noble Lords have occasionally tempted them to do, which is to put their hands up and say, “We don’t believe in this refugee convention anymore. It is inconvenient and old-fashioned; we don’t like the numbers, and we’re not having any of it.” There is something Orwellian, distasteful and misleading of the electorate to go through these contortions and perversions of language and law Maybe other noble Lords in Committee will have a different view of that, but it is coming to the point where these contortions of language and jurisprudence are so obscene and genuinely Orwellian—I know that word is overused, but for me it was never about having six cameras in the street instead of three; for me, it is about Politics and the English Language, Orwell’s greatest work, and the abuse of language that leads to the abuse of people. That is what is wrong with this whole section—it is not in good faith; it is not a reflection of the jurisprudence; it is an attempt by sleight of hand to undermine it This is not just terrible in the context of refugee protection, which, given what is at stake, is bad enough; it is really bad for Britain and the rule of law, which is arguably one of our greatest exports—not David Beckham’s left or right foot, not even Shakespeare or Elgar, but the rule of law. It is the reason why, unfortunately, so many oligarchs want to come here, in addition to hiding their money. They want to sue each other in our courts and hire some of our noble and learned Lords to go and judge their arbitrations in secret, because there is something magical and special about our law When we share our jurisprudence in good faith with supreme courts and constitutional courts around the world, we are not just affecting refugee protection here but influencing that jurisprudence all over the world; and that is an export too. You cannot measure it in pounds and pence, but you can measure it in a truly global Britain and a better world. There needs to be this international conversation between judges here and over there, in good faith and influenced by each other’s jurisprudence. By reinterpreting the convention, we throw it all out. It is year nought in the Home Office, and all that jurisprudence goes out the window because we have rewritten the convention via this totally offensive clause. Of course, Ministers have an oath, and they are supposed to respect international law—enough said about that I am glad that the noble Baroness, Lady Williams, is having a break now, not just because it is good to have a break but because it gives me the opportunity to put a question to the Minister the noble Lord, Lord Wolfson, that I tried to put last night in the context of a different Bill, about whether the Government have already instructed parliamentary counsel on the Bill to scrap the Human Rights Act. In the last group, the noble Baroness, Lady Williams, invoked convention rights, the ECHR and our participation in that in defence, so it is an important question in practical terms, because it can always be said that we will not be sending anybody for Article 3 treatment and so on and so forth. It is also really important because Section 3 of the Human Rights Act requires that all other legislation be read compatibly with convention rights as far as it is possible to do so. In this pandemic period, I have heard noble Lords opposite, and Ministers in particular, invoking that in defence of the CHIS Bill, the overseas operations Bill, the police Bill: “Don’t worry, because remember, there is always the Human Rights Act as a catch-all protection—particularly the interpretation provision but also the duty on public authorities to comply.” If parliamentary counsel have already been instructed to draft the Bill that will scrap the Human Rights Act, we need to read all of this in a slightly different light, do we not? Frankly, even in the light that we currently have, it is bad enough.
My Lords, my name is to the opposition to Clause 29 and the other clauses mentioned in this group as well. Of course, opposing Clause 29 is a consequence of opposing the other clauses, all of which, we say, should go. I have written down “clauses on interpretation”; the term “laundering” had not yet occurred to me, but I follow the point about the interpretation or laundering of the refugee convention. The overall point, as I say, is that they should all go On Second Reading, I described it as perverse to use domestic legislation to impose an interpretation of an international convention. Since then, at earlier points in this Committee, we have heard much more powerful, analytical, legally informed responses, and, though I am speaking before the contributors to whom I am referring, I think I would be much better following them—that is not intended to be at all disrespectful to the Minister, nor indeed to the very experienced lawyer from whom we have just heard. The humanitarian arguments have been very well put, but the short point I took away from an earlier day is inarguable. We are party to the convention: it is our law; it is well-established law. If we were to leave the convention—which, of course, I am not advocating—that would be another matter. But we have not left it, and I hope we are not going to.
My Lords, I shall continue to limit my interventions in Committee to expressing views that I hold simply as a lawyer, the course I took on Tuesday of last week, when we were discussing Clause 11. That gave us an early introduction to the very provisions with regard to reinterpreting the convention that we are now concerned with. I reserve the right, when we come to Report, to come in on what I regard as the more obviously mean-spirited and ill-judged other provisions, which are, as is patent, designed to deter as many as possible of those who would otherwise wish to seek refugee status in this country Clause 29, as has already been pointed out, is an omnibus provision that takes you into further and more specific, and therefore more specifically objectionable, provisions, which take the convention apart and reinterpret it piece by piece. As both noble Baronesses have said, that is itself intrinsically an objectionable way to proceed with regard to one’s legal obligations There are three further stand part notices in this group. I will not touch on all of them because time is the enemy today, as it will be on Thursday. On Clause 33, the protection from persecution, as the Bingham Centre for the Rule of Law has valuably pointed out, this clause fundamentally changes the approach to protection from persecution from a focus on meaningful and effective protection against persecution, which our long-established jurisprudence establishes is the correct focus, to a focus on the existence of a reasonable system to prevent, investigate and prosecute instances of where, despite the system, there has been persecution. This refocusing mischievously—and, I suggest, in legal terms, fatally—sidesteps the all-important question of whether the system is likely to protect the individual concerned In the interests of time, rather than make comparatively lesser points on the other two named clauses, Clauses 34 and 35, I will pass on. I say only on Clause 35, mentioned by the noble Baroness, Lady Hamwee, that this is directed to Article 1(F) of the convention. Clause 35(2) goes to Article 1(F)(b), concerning serious non-political crimes, and we will come in the next group to Clause 37, which deals with Article 33 of the convention on non-refoulement. Whatever the position on non-refoulement that may be arrived at under the refugee convention, even if, for example, the asylum seeker was found to be a war criminal and so is denied refugee status under Article 1(F)(a) of the convention—see Clause 35(1) of the Bill—it still is not possible to return that person to their country of origin if they would be persecuted. That is simply precluded by Article 3 of the ECHR I have had a helpful exchange of emails with the Bill manager. I asked the Minister at our Cross-Bench meeting a question which she referred to the Bill manager; namely, whether any of these provisions in the Bill were intended or calculated to alter any of the well-established and authoritative case law in this country. Except for one point which the Bill manager made regarding Clause 37, which corrects an ambiguity that arose under Section 72 of the 2002 Act, I am unpersuaded that where there is a recognised departure from our case law, it is properly made under this Bill. I finish at this point.
My Lords, I have been here for only eight years, which is not long in your Lordships’ House, but I have never seen so many attempts to delete clauses from a Bill—and of course that is completely the right thing to do here. With this Government, I always look for dead cats being thrown on the table to distract us from something much worse that is happening under the table, but there are so many dead cats in this Bill that I am assuming they are all genuine bits of the Bill that the Government want to pass, which is quite disturbing Here the Government are trying to unilaterally rewrite international law, and they are doing so to appease the far right, both in their party and in the country. That is a pointless thing to do; you will never appease the far right. It is an example of the Government throwing away decades of international progress on domestic and international policies only to appease a segment of society who are outspoken and noisy—like the Greens, I suppose, but, unlike the Greens, they actually have malign intent We are sending a signal to the world that we are not competent to run our country any more, and certainly not worthy of being part of any international grouping that believes in progress and the rights of the human being.
My Lords, I add my voice to those of the noble Baroness, Lady Jones, my noble and learned friend Lord Brown of Eaton-under-Heywood, and the noble Baronesses, Lady Hamwee and Lady Chakrabarti, in saying to the Minister, for whom I have considerable respect—I know of his own track record in the area of international law and the upholding of human rights—that beyond the legal arguments that have already been put to him is the reputational damage to this country, not least because of international issues, some of which he will be aware of Anything that we do to dilute our commitment to the 1951 convention on the treatment of refugees—any unravelling or unscrambling of our commitments—is to be deplored. I will give two examples to the Minister. I co-chair the All-Party Parliamentary Group on North Korea and am vice-chair of the All-Party Parliamentary Group on Uyghurs. In the case of North Korea, we, the United Kingdom, will regularly raise with the People’s Republic of China the refoulement policy of sending North Koreans from the PRC, to which they have escaped, back to North Korea, knowing that terrible things, including executions, will happen to them when they are sent back—a clear dereliction of the commitment to which the PRC signed up in the 1951 convention on the treatment of refugees In the case of Uighurs, Turkey is presently considering sending back Uighurs because of an agreement that it has reached with the People’s Republic of China. Everyone in your Lordships’ House—notably the noble Lord, Lord Anderson of Ipswich, who is in his place; he raised this issue with me as recently as last week, in another debate—is well aware that there are 1 million Uighurs in detention centres and camps in Xinjiang, and we know of terrible atrocities that have occurred. Our own Foreign Secretary has said that a genocide is under way. In that context, for any country, and in the case of Turkey a NATO country, to be sending people back, again in violation of its duties in the 1951 convention, seems to be deplorable. However, the United Kingdom can hardly start lecturing others not to do these things if we ourselves are going to unscramble and diminish the importance of the 1951 convention I suppose that, as a post-war baby, I have maybe too much admiration for what was not entirely a golden age, but think about all the things that were put in place at that time: everything from the Marshall aid programme to the 1948 Universal Declaration on Human Rights, with its 30 articles that set out our rights on an international basis, and the 1948 convention on the crime of genocide. Given all those things that have been put in place, we should think extraordinarily carefully before we do anything to diminish or dilute them. That is why I hope the Minister will give proper consideration to the interventions that he has heard so far—I am sure he will—and, between now and Report, see what more we can do to ensure that we do nothing to diminish the importance of the 1951 convention.
My Lords, does the noble Lord agree that it is, as he says, about more than our reputation and not being able to lecture or set a good example to others? It enables others to point to us.
Yes; not for the first time I agree with the noble Baroness, Lady Hamwee. It was British lawyers who crafted these things. Look, for instance, at the Nuremberg trials and the role of people such as Hartley Shawcross, who was the Labour Member of Parliament for St Helens, and the law officers from the United Kingdom in the establishment and creation of these things. They were a gift to many other nations. That is why we should be holding and enhancing them, not doing anything to diminish them.
My Lords, I struggle with some of the dilemmas presented by Clauses 29 to 37, for very much the reasons given by the noble and learned Lord, Lord Clarke of Nottingham, in his frank and powerful speech of 1 February on Clause 11. There are, after all, circumstances in which Parliament may legitimately set out its interpretation of treaty provisions and overrule decisions of our courts. There is also a desire, which others on these Benches may share, to give the Government the benefit of the doubt if they can show us why their proposals are not in breach of international law The problem I have in that regard is that we have seen impressive formulations of the case against these clauses: for example, from the UNHCR, in the opinion of Raza Husain QC, and in the briefing from the Bingham Centre to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has referred. What we—or at any rate I—have not seen is how the Government seek to justify these clauses against the requirements of the refugee convention, as interpreted by the Vienna Convention on the Law of Treaties For example, under Article 31.3 of the Vienna convention the interpretation of a treaty can legitimately be influenced by state practice. Do the Government rely on the statute or case law of other states as support for the interpretations that they ask us to enact? If so, which states and in relation to which clauses of the Bill? Do they say, in relation to each relevant provision of the refugee convention, that those practices establish “the agreement of the parties regarding its interpretation” within the meaning of Article 31.3(b) of the Vienna convention As a second example, the United Kingdom made various reservations and declarations at the time it ratified the refugee convention. Do the Government contend that these clauses, or some of them, constitute de facto reservations in so far as they purport to constrain, as a matter of law, the interpretation or application of the refugee convention? In that case, what are their arguments for their timeliness and permissibility and, if they are permissible, their compatibility with the object and purpose of the convention I appreciate, of course, that there are conventions regarding the publication of law officers’ legal advice, but surely a way can be found of conveying to your Lordships, and to the public, a detailed and authoritative explanation of the Government’s legal position in more detail than can be explained, however lucidly, by a very lucid Minister in this Chamber. Whether such advice will be enough to allay the concerns of those of your Lordships who take seriously our obligations under international law I cannot say, but at least these clauses will not be lost by default, which I suspect may be the alternative if we are left in the dark.
My Lords, if I may intervene briefly, I am not an expert in this field but once the lawyers start quoting clauses, sub-clauses and those sorts of things, one has to be careful. This is obviously an important point, and I was really taken by the speech of the noble Lord, Lord Alton. He has spent a lot of time on this and one has to respect the work he has done. He talked about us unscrambling. When my noble friend comes to wind up, can he say whether we are unscrambling or simplifying Some of the way this seems to read is that we are making a thing clear for everybody. Therefore, far from undermining what we stand for, we are making it clearer for everybody, and as such for the people of this country, to understand what the Government are trying to do, and thereby increase the degree of informed consent—a concept about which I am very keen. I understand the complications of the legal interpretations put forward by many noble and noble and learned Lords, but I would like my noble friend to tell me: are we simplifying or unscrambling? If we are simplifying, that seems a desirable thing to do.
My Lords, taking up what the noble Lord, Lord Hodgson of Astley Abbotts, just said, my lay and naive understanding of international conventions, such as the refugee convention, is that processes of clarifying or simplifying should involve international co-operation and coming to a global agreement over what those interpretations, clarifications and simplifications are Amnesty and Migrant Voice put it differently. They say: “Clauses 29 to 38 constitute an attempt by the Home Office via legislation to unilaterally re-write the UK’s international refugee law obligations and, in doing so, reverse the decisions of the UK’s highest courts” As I have said before in this Committee, international conventions, as far as I am concerned, serve no purpose unless the signatories abide by a common understanding of what the convention means. Any deviation from the settled and accepted interpretation of an international convention must be agreed universally, not unilaterally, as these clauses attempt to do. Any attempt by the Bill effectively to rewrite what it means could result in the UK breaching its international obligations and we believe that none of these clauses should stand part of the Bill.
As has been said, this part of the Bill provides for “interpretation” of the refugee convention. It includes some entirely new provisions and replicates or amends some existing provisions On existing provisions, this part of the Bill repeals the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. These regulations transposed a key EU directive on standards for asylum systems, the qualification directive, into UK law. The Bill repeals the regulations and puts versions of the provisions into primary legislation instead The UNHCR noted with concern the Government’s approach to interpreting the refugee convention. I will read an extract from its legal observations on the Bill in full. It said: “We note with concern the Government’s approach to interpreting the Refugee Convention. Any treaty must be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ In the case of the Refugee Convention, as the UK Supreme Court has noted on more than one occasion, ‘There is no doubt that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble.’ In addition, the Vienna Convention specified a range of sources that ‘shall be taken into account’ in interpreting a treaty; these all reflect the agreement of the parties, and include other agreements and instruments from the time the treaty was concluded, as well subsequent agreements, State practice and international law. In other words, States cannot, under international law, unilaterally announce their own interpretation of the terms of the agreements they have made with other States. This, too, has been repeatedly recognised by the House of Lords and the Supreme Court of the UK.” I do not want to repeat what has already been said, but I just ask: do the Government agree with that extract from the UNHCR’s legal observations on the Bill? If they do agree with it, do they believe that they are still abiding by it?
My Lords, I am grateful to all noble Lords who have taken part in this debate The starting point is that we are no longer members of the European Union and, by extension, the Common European Asylum System. In response to the point made by the noble Baroness, Lady Hamwee, these provisions are not a direct response to the case of AH (Algeria). They are about having an opportunity to define clearly and unscramble refugee convention terms following our exit from the EU. It is right that, at this time of legal change, we take the opportunity to reassess the operation of our asylum system and reconsider our approach not only to fundamental policies but to processes, so that we can create a clearer and more accessible system The fact is that the development of the asylum system through international conventions, European law, domestic legislation, Immigration Rules and case law has created a complex legal web that can be difficult to understand and apply; that goes for claimants, decision-makers and the courts. I do not propose to use props—I understand that that is not permitted—but, for my own assistance on a later group, I brought a book called, rather laughingly, The Immigration Law Handbook. We consider it a desirable law reform to define clearly key elements of the refugee convention in UK domestic law. In response to my noble friend Lord Hodgson of Astley Abbotts, that is exactly what we are doing. We want to make the position clearer for everyone, including decision-makers and the courts A lot has been said that touches on the same point but, with great respect, the noble Baroness, Lady Chakrabarti, perhaps put it most forcefully. She used a number of metaphors. Let me respond to them. This is not about tripping anybody up. It is not a sleight of hand; it is difficult to do one of those on the Floor of your Lordships’ House. This is about bringing clear definitions before Parliament and having them all in one place. The central point is this: there is nothing wrong—indeed, I suggest that there is everything right—with the UK, through this Parliament, interpreting its obligations under the refugee convention. That is entirely lawful. I use “lawful” in both its narrow and wide senses. It is lawful in the sense that it is in accordance with the law; it is also lawful in the broader sense of being in accordance with the political or constitutional principle that we call the rule of law. Further, it is in accordance with the Vienna convention. Everything we are doing complies fully with all our international obligations, including the refugee convention and the European Convention on Human Rights. I will come back to the question that the noble Baroness asked me in that regard a little later With respect to the noble Baroness, Lady Hamwee, it is not perverse to use domestic legislation to give effect to and interpret international treaties. I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of appeasing the far right; nor am I in the business of deleting obligations under international law. Many of the definitions, which repay careful reading, are very similar to those already used in the UK—for example, those contained in the 2004 qualification directive, which was transposed into UK law via the 2006 regulations I am grateful to the noble Lord, Lord Alton, for his kind words. I assure him that I of course give proper consideration to international reputational impacts, but surely there can be no adverse impact by complying with international law and interpreting treaties in accordance with the Vienna convention.
I am sorry, I missed my moment; I should have spoken as soon as the Minister spoke to me. I did not accuse him of trying to appease the far right. I hope I did not say that—I certainly did not mean to—but I do accuse the Government of it. I know that the Minister did not write this Bill, but that is something I see the Government as guilty of.
I did not take it personally. I agree that I did not write the Bill. It would be a far worse Bill, and the noble Baroness would like it even less, if I had written it. But I replied in that way because I take the view that if I am standing here defending government policy, then I will stand here and defend government policy. I certainly would not defend a government policy which was simply appeasing the far right. So, that is why I replied in those terms. I know that the noble Baroness was not making a personal attack; I did not take it that way To finish my point to the noble Lord, Lord Alton—
My Lords, can we have a little less talk about the far right? Some 70% of the population think that the present Government’s policy on asylum is a failure.
My Lords, I do not want to get into the question of whether the Bill is going too far or not far enough, and whether our policy is good, bad or indifferent, on this group of amendments. If I may say so, those are Second Reading-type questions. I was simply responding to the point put by the noble Baroness To return to the point on Turkey, whether its acts are in accordance with the refugee convention is really a separate issue. I do not mean to diminish or demean this, but what we are talking about here are not acts, so to speak. We are talking about the fundamental question of whether it is proper—because the charge put against me is that it is not—for this Parliament to set out its interpretation, the UK’s interpretation, of the international obligations we have under the refugee convention.
Before the Minister leaves that point, I was not specifically asking him to respond to Turkey’s actions. I was saying that it diminishes our ability to speak to countries such as Turkey or China—which I also referenced—if we are ourselves een to diminish our responsibilities under the 1951 convention. That comes to the question that the noble Lord, Lord Rosser, put about how this is seen beyond our shores by international institutions that have examined what we are trying to do. I hope the Minister will address that point as we proceed.
I was going to come to the point made by the noble Lord, Lord Rosser. Let me just say a sentence about it now: the UNHCR is not the interpretive body of the refugee convention. Each state under the convention is there to interpret its obligations, in accordance with the Vienna convention. That is the system which the state parties have set up. When we have a phrase—we will get to one a little later—such as “serious non-political crime”, the state parties have to interpret it. We will get to an example in the next group—this is a little cliffhanger—of where different countries have approached the question differently. There is nothing wrong with that, provided that they are all acting in accordance with the Vienna convention in good faith in seeking to interpret their obligations Respectfully, I think that the noble Lord, Lord Anderson of Ipswich, essentially accepted that basic proposition under the Vienna convention, and he was obviously right to do so. He sought characteristically carefully—if I might say so—to seek disclosure of the legal advice on which the Government are relying, while recognising the conventions which apply to that. I listened carefully to what he said. I will read Hansard to see whether there is anything more I can say in writing to him; I do not want to rush from the Dispatch Box. There may or may not be anything more I can say, but I will read that point carefully. I think he recognised that there are conventions in this area which do apply However, I say to the noble Lord, Lord Paddick, that it is not a question of having to agree with all the other signatories. This is not about amending the refugee convention; it is about interpreting it. That is a very different thing. If you want to amend a contract, you need the other party’s agreement, but interpreting a convention is for each state party I will say a few words about the substantive clauses, although I think it is fair to say that those were not really the Committee’s focus. Clause 29 sets out how key terms which are defined in the following clauses will be applied; they are the key components of the refugee convention. Clause 29 also revokes the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Those are the regulations through which we transposed our obligations under the EU qualification directive 2004. Because we are out of the EU, we need to do that in a different way However, we will continue to grant humanitarian protection to eligible individuals who cannot be removed from the UK to their country of origin if their removal would breach the UK’s obligations under Articles 2 or 3 of the ECHR. It is important to clarify—I am sure Members of the Committee know this—that these are not individuals protected under the refugee convention. However, we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees. In response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we believe that Clause 33 provides a system of effective protection from persecution. Clause 34 deals with relocation, but I do not think any noble Lords spoke to it directly, so I will just refer to it and move on On Clause 35, of course we have a proud history of providing protection to those who need it, but that should not apply to those who commit serious crimes, putting the communities that host them at risk and endangering national security. We believe we are right to define and legislate in this area. I say to the noble Baroness, Lady Hamwee, that that is a good example of serious non-political crime. That is a phrase in the refugee convention, but it is not further defined in it. Each state has to look at it and define it, in accordance—always—with the Vienna convention.
The Minister keeps saying that each state will define the refugee convention, and he alluded to the EU qualification directive; there is also the procedures directive. I declare an interest, as I worked on both directives as an MEP. Of course, that was an attempt not for each state in the EU to do its own thing but to have a collective set of laws which interpreted the refugee convention in detail and, as far as I know, complied with it. That prevented each country doing its own thing in a potentially destructive way.
I have an associated point, to save the Minister bobbing up and down too much. I entirely take the point about non-political crime. I just wanted to make it clear that I was referring only to that bit of the Bill when I mentioned the case. I was not suggesting that it was the prompt for the whole of this part. But can the Minister explain more about the impact of our leaving the EU? Does that give us a legal opportunity, or is this happening because it is a convenient political point in the calendar, as it were?
On the first point, of course the EU sought to interpret the refugee convention for all its members. But that actually makes my point, because it is only for the members of the EU. All the other states will interpret it in their own way. If you want to hand over your interpreting power to the EU, that is fine if you are a member—but I suggest that that does not cut across my basic point As to the effect of leaving the EU, if we have hitherto signed up to various interpretations through EU regulations, we now have an opportunity to look at the matter afresh, as I said when I began. To go further into that point would go way beyond the scope of this group Finally, I come back to the question put to me by the noble Baroness, Lady Chakrabarti, about “scrapping” —I think that was the word she used last night as well—the Human Rights Act. I said last night, and I will give the same answer now, that the Human Rights Act brings into English domestic law the European Convention on Human Rights. We have reaffirmed— I did it yesterday; I will do it again now—that this Government will stay in as a signatory to the convention.
I am grateful to the Minister for that, but will he answer my question a bit more specifically? Has he instructed parliamentary counsel to begin the drafting process for the Bill that will replace, repeal or reinterpret the Human Rights Act and/or the convention on human rights?
As a matter of policy, I am afraid I am not going to get into the discussions I have with government law officers and parliamentary counsel. The Government’s legislative programme has been set out. The Lord Chancellor, the Deputy Prime Minister and I have given evidence on this. We have made it clear that we will be staying in the European Convention on Human Rights. In so far as the burden of the noble Baroness’s challenge was that we have to be careful, because the Government are watering down rights, we are staying in the European Convention on Human Rights. Therefore—
I was going to wait until the Minister had finished his sentence but, before he sits down, I revert to the question of the Government’s legal case. The Minister is reticent to disclose government legal advice, which I entirely understand but, before the Committee and others can reach a fully formed opinion on this, they need a worked version of the Government’s legal position. It may be that that takes the form of a position paper or submission, rather than the replication of advice already given. But, until we see in detail what Raza Husain and the UNHCR got wrong, and why these interpretations are fully consistent with the Vienna and refugee conventions, the evidence is all one way. I am sure that I speak for many other noble Lords when I say that I would be very much assisted by seeing something of that nature.
I hope the noble Lord does not take it amiss if I say, with respect, that he makes the same point as he made earlier. and I understood it. I need to be very careful that I do not get inadvertently drawn into disclosing legal advice, but I hear the point from the noble Lord that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.
Very diffidently, am I entirely wrong in thinking that, under Article 35 of the convention, some heed is required to be paid to the UNHCR’s expression of its approach to the convention? My recollection is that Lord Bingham said as much in one of the cases I mentioned last week, Asfaw. Is that not right?
Respectfully, what I said earlier is that it is not the arbiter of the interpretation of the convention. I do not think that is inconsistent with the point the noble and learned Lord just made I was proposing to sit down, after suggesting to the Committee that we should keep these various clauses in the Bill.
Before the noble Lord sits down, I was wondering whether he would explain some of the changes that are being made or cover them in a subsequent letter. As I understand it, Clause 33 replaces Regulation 4 in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which is repealed by Clause 29. The wording is largely the same but, as I understand it—and I may be wrong—the existing regulations reference “protection from persecution or serious harm”, whereas Clause 33 references only “protection from persecution”. Why has that change to the language been made and what will its practical effects be There are changes of language in other areas, such as from a “may” to a “must” in Clause 34. What problem is that intended to solve? Is it not the Government’s intention to explain the reasons for the changes they have made where they have made them?
The “may” and “must” point, to which the noble Lord referred, will come up in a later group because, from memory, there is a specific amendment on it. I was proposing to deal with that when I respond to that amendment. I think we are going to come to the persecution and serious harm point later but, if I am wrong, I will write to the noble Lord and explain it. However, we are coming to “may” and “must” on a later group.
I am grateful to all noble Lords who contributed to this group. I believe there was a great deal of consensus in the Committee, but I am sure the Minister was grateful for the support of his doughty and always agreeable noble friend the noble Lord, Lord Hodgson of Astley Abbotts I say to the Minister that asserting does not make it so. Asserting, reasserting, “We’re in the convention” and “We will honour the convention” are not enough in the face of the very detailed analysis of these provisions by the UNHCR, the Bingham Centre, Raza Husain QC and, if I may say so, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble Lord, Lord Anderson of Ipswich, again in his always agreeable way, was trying to help the Minister out. The Minister might take his hand and shake it. It is not a hand, it is a lifeboat, but I will be told off again for using metaphors. Last week I was told of by the Minister for using the word “tawdry” too many times; I thought I was on “Just a Minute”. Today, it is metaphors I will try one more metaphor with the noble Lord, Lord Hodgson of Astley Abbotts, who asked a very pertinent question of the Minister. Is this not a simplification, rather than a dilution or repudiation? I believe the noble Lord comes from a business background and has often referred to the Wharton school of business. We all draw on our experience and I think a basic contract is not a bad analogy to draw here. It is the equivalent of the chief executive of a company that has been in a contractual relationship with another company for many years getting a bit fed up with various provisions of this contract that has nevertheless been working. We are talking 50 or 70 years of this contract between the parties, when the chief executive thinks, “Maybe we need to reinterpret the various articles of this contract”. He decides not just to repudiate it, because that would be embarrassing, illegal and unlawful, but he says to his board, “What we are going to do in the boardroom is reinterpret all the provisions in a way that is different from the way that we ourselves have honoured them in the past”. “We ourselves” include learned judges such as Lord Bingham and others from all over the world. We are now going to year nought and are rewriting it. We are not just simplifying; we are making material differences, in some places to the convention and in others to decades of jurisprudence, by changing “or” to “and” and changing standards of proof. This is not insignificant.
The noble Baroness’s description of how business works, with an agreement that has lasted for a number of years, is far from the reality of any business in which I have ever worked. It is not a good analogy to use with my noble friend on the Front Bench. There may be all sorts of reasons, as we have heard, about international law, European law, UK law, UK primary legislation and UK secondary legislation, all of which cut across. They are completely different from a single arrangement in business, in which there is a contract, of one sort or another, between two firms. This is not a good analogy at all. I much prefer the complications, which my noble friend referred to, seeking to sort this out.
Forgive me; I stand corrected by the noble Lord, Lord Hodgson of Astley Abbotts—as always, certainly in matters of business. I was merely trying to suggest that we cannot repudiate a contract by pretending that we are reinterpreting it, when we are making material differences to the relationship between the contracting parties Finally on the UNHCR, it is set out in Article 35(1) of the refugee convention: “The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”
My Lords, I shall speak to Amendments 103, 104 and 111 in particular, but before I do so, I want to say that, having listened to the Minister in the previous debate, it seems that he has almost answered the points that I was going to make. I do not want to be repetitive, because the Chief Whip asked us to be brief. A lot of the key points of principle that were covered in the previous group of amendments are also covered in this group starting with Amendment 103, so I shall be brief I was a little surprised—and this has gone right through our debates on this Bill—at the Minister saying that we can interpret the Geneva convention as we wish, that we are quite free to do it and that the UNHCR does not have any authority to indicate what is right and what is wrong in terms of the convention. I had always been brought up to accept that the UNHRC was in fact the guardian of the Geneva convention, and that it is the authority rather than each country doing its own thing. If each country does its own thing by interpretation, we shall not have an international convention at all and achieving international agreement will be much more difficult. Having said that, I was dismayed at the Minister’s view and equally dismayed when he said that the Bill would be even worse if it was his own Bill—I think that is what he said. I hope then that he does not have too much influence on things On Amendments 103 and 104, as I understand it from our deliberations in the Joint Committee on Human Rights and what it says in its report—I am still a member of that committee and contributed to the reports—the decision-maker need only be satisfied that there is a reasonable likelihood of persecution as defined by the refugee convention. That seems to be the present practice. However, the Bill seeks to change that—it talks about things like the “balance of probabilities”—by limiting the effect of the reasonable likelihood of persecution provision and making it harder to achieve an effective decision about asylum in favour of the applicant It seems to me that the Government do not like the Geneva convention and are seeking by a series of measures throughout the Bill to weaken it. That is clever if you want to get rid of the Geneva convention. The Government will say that they stick by the convention, but by being able to interpret it in all sorts of ways one can effectively weaken it to the point where it would be a different convention from the one which we have traditionally come to accept. I think that is what the Government are trying to do. I do not think the Minister will necessarily agree, but I suspect that is what it is Amendments 103 and 104 relate to the change from “reasonable likelihood” of persecution to a “balance of probabilities”, which is defined in various ways which I shall not go through now. Amendment 111 is about criminality and serious crime. It has always been possible, even within the Geneva convention, for Governments to deny asylum to people who have committed a very serious crime. That has been the practice. It has not happened very often, but the Government are now seeking to redefine that provision so that a serious crime becomes something lesser than what we traditionally regarded as a serious crime—in other words, again weakening the Geneva convention. That is regrettable. I do not think that the Government had any need to weaken the convention in this way, by a process of interpretation, so I regret that, which is why I am keen on these and other amendments.
My Lords, I followed with great interest the noble Baroness, Lady Chakrabarti, in speaking eloquently to the clauses stand part in the last group. Like the noble Lord, Lord Dubs, I shall speak only to a particular amendment, that put forward by the noble Baroness, Lady Chakrabarti, to which I have lent my signature, as have others. Once again, I am grateful to the Law Society of Scotland for its background briefing, and I shall refer briefly to the report of the Constitution Committee in which its concerns were quoted I am grateful to the Law Society of Scotland for highlighting its concerns, which I share. This is a probing amendment to understand the background following on from my noble friend’s summing-up in response to the previous group. I find myself half way between my noble friend Lord Hodgson, who is not a lawyer, and the noble Lord, Lord Anderson, who is a lawyer of some repute. I am a member of the Faculty of Advocates but have not practised for a considerable period. However, I enjoyed the one case on which I was a junior before the European Court of Human Rights—the proceedings were very similar to those enjoyed in our erstwhile proceedings when the House of Lords enjoyed the right of final appeal The reason why I believe that Clause 31 does not fit well with the Bill goes back to the standard of proof test set out in the leading case for asylum cases, Ravichandran v Secretary of State for the Home Department, as a “well-founded fear of persecution”. In the Court of Appeal in 2000, it was confirmed that the standard of proof in civil proceedings—the balance of probabilities referred to in Clause 31(2)—was not suitable for immigration matters. Instead, what was important was making an assessment of all material considerations such that it “must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur” Lord Justice Sedley described the balance of probabilities as “part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones.” For the past 20 years, the approach taken in the Karanakaran case was consistently followed by the courts. In Scotland, the Outer House of the Court of Session reaffirmed that case as the correct standard of proof approach to be applied in the case in 2020 of MF (El Salvador) v Secretary of State for the Home Department. In that case, it was held that the First-tier Tribunal judge had erred in law by applying the wrong standard of proof in respect of an application for permission to appeal brought by an asylum seeker In Kaderli v Chief Public Prosecutor’s Office of Gebeze, Turkey, in 2021, the High Court reaffirmed, while referencing the Karanakaran case, that the question as to determining a well-founded fear of persecution is that of an evaluative nature about the likelihood of future events. In that case, it was held that the judge erred in holding that it was for the appellant to prove on the balance of probabilities that the corruption alleged had occurred. The true test involved the application of a lower standard: whether there was a real risk that the appellant’s conviction was based on a trial tainted by corruption. This was consistent with the approach to the fact-finding in the immigration context In the view of the Law Society of Scotland, “the change in clause 31 appears to go against the intention of the New Plan for Immigration, and flies in the face of 25 years judicial scrutiny.” So my question to my noble friend the Minister, in summing up this evening, is: on what basis are the Government prepared to set aside the cases that I have set out this evening?
My Lords, I will speak to Amendment 105 in my name and those of the noble Baroness, Lady Coussins, who cannot be here tonight, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Paddick, to whom I am grateful. I also thank Women for Refugee Women and ILPA for all their work on this amendment The amendment would remove the narrow restrictive and requirement in Clause 32 that, in order to qualify under the “particular social group” grounds of persecution for recognition as a refugee under the convention, two conditions must be met. The amendment would replace this with an either/or condition. As I will explain, this would be in line with international standards and UK case law This is a small amendment, but it is significant, as the UNHCR has made clear. The UNHCR explains that Clause 32 is one of a “series of changes that would make it more difficult for refugees who are admitted to the UK to be recognised as such.” The case for the amendment is, in effect, set out in its detailed legal observations, which have been invaluable to our scrutiny of the Bill. The UNHCR warns that narrowing the definition of “particular social group” in the way that the clause does “could exclude some refugees from the protection to which they are entitled … In the UK and other jurisdictions, the particular social group ground has proved critical in the protection of those with claims based on gender, sexual orientation, gender identity, status as former victims of trafficking, disability or mental-ill health, family and age.” This view is endorsed by the Bingham Centre, which warns: “The result will inevitably be to refuse protection to people who, as a matter of international law, are refugees.” It picks out this clause as one of a number that are particularly troubling to it from a rule of law perspective The UNHCR explains the origins of the two conditions and why it has recommended that they should be treated as alternative, rather than cumulative, tests. The argument was endorsed by the late Lord Bingham, acting in his judicial capacity, when he ruled that the cumulative approach taken in Clause 32 was wrong because “it propounds a test more stringent than is warranted by international authority.” Thus this approach, the UNHCR points out, has been affirmed in the UK courts over an EU interpretation. I cannot resist observing that it is rather odd that a Government committed to taking back control from the EU is so keen to apply an EU interpretation that has been rejected by the British courts. Indeed, on the previous group, the Minister said that our starting point should be that we had left the EU, so could he perhaps explain why that does not apply to this clause In their briefing, Women for Refugee Women—WRW —and ILPA include an example, taken from Garden Court Chambers barristers, of what this might mean: “a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic”— one shared with other members of a group— “but also that trafficked women as a group are perceived as having a distinct identity in her country of origin. The latter is of course much more difficult to establish than the former because this is judged by the perceptions of the society in her country, and it can be very challenging to find objective evidence on women as a distinct group.” WFW and ILPA also point out that there was “no pre-legislative consultation” on this clause because it was not included in the New Plan for Immigration. Can the Minister explain why this is the case? Moreover, the equality impact assessment on the Bill, which has been described as “superficial and inadequate” by barristers at Garden Court Chambers, fails adequately to assess the impact of the change on groups in vulnerable circumstances As I have already noted, the UNHCR has warned of the likely implications for a wide range of such groups. I particularly draw attention to how this clause is likely to have an adverse impact on women fleeing gender-based persecution—a group that the Government claim to care about. As I made clear on an earlier amendment, it is one of a number of such clauses that have to be viewed in the context of the failings that already exist. According to WRW and ILPA, “Over the years, there has been substantial research on the failures of the Home Office in delivering a fair asylum process, and on the reasons why many women who flee gender-based persecution may be wrongly denied protection.” Most recently, as I noted last week and gave the Minister some weekend reading on, the British Red Cross has published research that details experiences that “highlight the distrust and disbelief women can face when discussing traumatic experiences of violence”, especially, but not only, when interviewed by men. One survivor’s words are recounted: “you feel so low and you feel so degraded and you’ve been violated and you were [telling] your story, you were expecting to be heard and to have someone who shows you some form of sympathy.” In the Commons Public Bill Committee, the Government justified their position by asserting that the new clause was necessary to bring certainty to an area bedevilled by conflicting authority. But ILPA and WFW give that argument short shrift, pointing out: “There is no conflicting authority: the UNHCR and the senior UK courts have a clear and constant interpretation. It is the Government that seeks to depart from this shared interpretation of the Refugee Convention, and it does so without warrant or proper justification.” So can the Minister provide a more convincing justification today of a clause that, in the words of Women for Refugee Women and ILPA “reverses case law of senior UK courts, contravenes UNHCR standards, and reinstates an erroneous EU law standard” If not, will he agree to this amendment?
My Lords, all of these clauses seek to restrict access to the protection of the refugee convention. I will speak to Amendments 103 and 104 to Clause 31 and Amendment 111 to Clause 37, which are all in the name of the noble Lord, Lord Dubs, and which I have co-signed. However, I share the view of my noble friend Lady Hamwee and the noble Baroness, Lady Chakrabarti, that all of these clauses should in fact be removed The problem with Clause 31 is that it changes the standard of proof for the test of whether a person is a refugee. It creates two limbs of the test and changes the bar from “reasonable likelihood” to “on the balance of probabilities” Although the refugee convention does not prescribe the standard of proof, UNHCR’s handbook says: “The requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.” So, for 20 years, the UK courts, including the Supreme Court, have applied a “reasonable likelihood” standard of proof in a composite and holistic manner Clause 31 overturns this established interpretation of the law by dividing the overall test into a series of sub-questions and applying different standards of proof to different limbs of questioning, to require the person to prove on a balance of probabilities that they fear persecution and the decision-maker to revert to a test of reasonable likelihood in assessing whether the person would face persecution and lack state protection. It is quite a mishmash, and a complex and confusing one—not least for already burdened caseworkers. As we have heard so frequently in this Committee, if the Government really want to fix a broken asylum system, why are they making everything more complex and building in delay As the Bingham Centre points out, Clause 31 “allows for rejection of a person as a refugee because they failed one of the steps” imposing that higher hurdle, “whereas if the test was taken in its totality, the person may have been accepted as a refugee.” The process may well lead to exclusion from sheer error because of all these complex, different bits of the test. Either the JCHR Amendments 103 and 104 should be accepted, or Clause 31 should be deleted On Amendment 111 to Clause 37, as the noble Lord, Lord Dubs, has said, we object to the lowering of the threshold for regarding a crime as particularly serious such that a person can be expelled. It is designed to—and will—exclude many more people from the protection of the refugee convention. Not only is the threshold sentence reduced from two years to 12 months but it changes the rebuttable presumption of “particularly serious” into an unchallengeable assertion This is disproportionate; a blanket exclusion is incompatible with the refugee convention, which envisages a crime that is a major threat and expulsion as a last resort. Bear in mind that the Bill seeks to impose a four-year sentence for the mere act of arriving in the UK without permission, which most refugees have to do. That gives you a measure of the lack of proportion in what is supposed to be a serious crime under the remit of the Bill; I am not validating or endorsing any crime, but under the refugee convention it has to be “particularly serious”, and the Government are departing from that.
My Lords, I confine my brief comments on this group to Clauses 31 and 32, both of which have been touched on, respectively, by the noble Baronesses, Lady Ludford and Lady Lister Clause 31 is peculiarly objectionable. As has been described, it divides up what should be a single, holistic question into a series of sub-questions and compounds that error by the differentiation in some important respects of standards of proof. It imposes an objectionable higher standard of proof on one critical provision. As the Joint Committee on Human Rights says in its report HL Paper 143—pages 39 to 41—it raises the standard of proof from a “reasonable likelihood” to a “balance of probabilities” The overall holistic approach to Article 31 was established as long ago as 1995 in a case called Ravichandran, 1996 Immigration Appeal Report, page 77. I confess that I wrote the lead judgment, but it has been consistently applied by the higher courts ever since. To quote one passage, the approach to Article 1A of the convention should be “a single composite question … looked at in the round and all the relevant circumstances brought into account” to see if there is a real risk Those promoting this clause should read a devastating critique of Clause 31 last month by Hugo Storey, the immediate past president of the International Association of Refugee and Migration Judges who has just retired from being an Upper Tribunal judge. He has no doubt that it will lead to “prodigious litigation”; in six compelling pages that those responsible for the Bill must read, he explains precisely why Clause 32, on the question of the particular social group, has been dealt with. It seeks to overturn Lord Bingham’s judgment in the case of Fornah, in the Appellate Committee of this House back in 2006, which was all about a 15 year-old girl trying to avoid female genital mutilation in Sierra Leone. I was a junior member of that court, and this clause tries, contrary to that clear judgment, to introduce a conjunctive approach to the two relevant criteria. It would be a grave mistake and cause grave injustice.
My Lords, I have added my name to Amendment 105 and the intention to oppose Clause 31 standing part of the Bill. I too am grateful to Women for Refugee Women and others for their briefings and support In the New Plan for Immigration and the briefings for the Bill, the Government have argued repeatedly that the existing asylum and refugee system is weighted against vulnerable women. The Home Secretary has repeatedly made the point that the large majority of channel crossings are by men aged under 40, for example. Given this, there might be some expectation that the Bill would contain some good news or ambitions on the part of the Government for better reaching and helping the women and girls who make up 50% of the world’s refugees and displaced people. Unfortunately, I do not see any such commitments. As a sting in the tail, in Clauses 31 and 32 we find proposals that seem to significantly disadvantage women further I will not repeat but endorse the arguments that it is already disproportionately difficult for women, particularly survivors of gender-based violence, to have their claims for refugee protection status correctly determined. Clause 31 can only exacerbate this situation, which is a disaster for many vulnerable women. That is also true of Clause 32, unfortunately, and I am very grateful to the noble Baroness, Lady Lister, for laying out the issue here so clearly. I am very pleased to add my name in support of her Amendment 105 I have no wish to take up time repeating the arguments, but it is critical to reiterate the point that the “particular social group” reason is an essential lifeline for survivors of sexual and gender-based persecution not otherwise covered by “race, religion, nationality or political opinion” in the reasons set out in the 1951 convention, as we have heard from other noble Lords. I will listen closely to the Minister’s response on this, but it is very difficult to see the justification for this move, which goes in the face of existing legal practice. It is so important for these survivors Many of my best memories of this place come from last year’s excellent debates on the Domestic Abuse Bill, which really showed politics in its best light. I know that this cause is taken seriously by the Government, but it seems that there is a blind spot on migrant women. We will discuss this again on later amendments, including my right reverend friend the Bishop of London’s forthcoming Amendment 140, but I end with a plea to the Minister to look again at these clauses and, if these amendments are not right, to present others that will ensure that vulnerable women are not further disadvantaged by this change.
I offer the support of the Green group for all the amendments in this group and express horror at the whole nature of this part of the Bill. It is a great pleasure to follow the right reverend Prelate and to agree with everything that she said about the gender aspects of the Bill as it now stands, as also mentioned by the noble Baroness, Lady Lister I want to address Amendment 111 and make a simple observation: the average length of a prison sentence in England and Wales in 2021 was 18.6 months, compared with 11.4 months in 2000. Is this really something extraordinary? Is the UNHCR right in saying that this change in terminology is not right? I think that it clearly is I want to draw out what the noble Baronesses, Lady Lister and Lady McIntosh, said, both of them reflecting on different elements of how this law is throwing out 25 years of British legal tradition. I am not going to reopen the discussion on the last group about particular political labels, but I will note that this is happening in a country where only a couple of years ago we saw our most senior judges under attack on the front pages of certain newspapers. That is the context in which this is occurring I want to reflect—a number of people have talked about this but I shall boil it down—on what the Government’s proposals are likely to do: produce a large number of people who are denied status but who cannot be sent home because it is clearly impossibly unsafe and dangerous to send them there. That leads to a situation of more chaos and more forced black-market employment, which surely no one could want.
My Lords, I want to give practical expression to what those who have spoken, including the noble Lord, Lord Dubs, and the noble Baroness, Lady Ludford, have said, and to the exposition of the noble and learned Lord, Lord Brown: if a law is going to be passed, it needs to be clear, simple and not confused, as in Clause 31 I shall tell a story. A friend of mine was going to be best man at our wedding, but Amin’s soldiers were hunting for him, so he left Uganda on the very day that we got married, dressed like a woman, and landed up in Kenya. That was the only way he could get away. He had nothing. Friends in Kenya managed to get him a ticket and he came to Oxford with nothing. There he studied law and did very well as a result, but if the test had been on the grounds of probability, he probably would not have done so. It comes down to the question of “reasonable likelihood”. All he could do was describe how he left Uganda. If you are from Uganda, you know you do not go around dressed like that, but the people who listened to his case at Oxford could associate with it I ask this for the reasons that the noble and learned Lord, Lord Brown, has given: why in one clause do we have “reasonable likelihood” and in another “the balance of probabilities”? That confuses the legislation I have been able to represent some asylum seekers when they have come here. I think the Joint Committee on Human Rights is right that this is what should be incorporated in our law and we should not try to change it—unless of course we are following the analysis of the noble Baroness, Lady Chakrabarti, that instead of making it clear as we incorporate this into our legislation, we are saying, “Throw it out. We know better and we are going to do it in our own way.” I do not think that that makes for good law. It is not simple, straightforward or clear. In the old days, it was said that any good law must be understood by the woman or man on the Clapham omnibus—if they cannot understand it, your law is not very clear. The judgment of Lord Bingham is clear Why abandon our case law as we begin to incorporate this into our law? This time the Minister will have to give us reasons why that is the case, instead of—forgive me—what sounds like a bullish reaction to every reasonable thing that has been said. I plead with the Minister to use simple language and retain “reasonable likelihood”, because that is much easier to deal with when people come here without papers or documents and their lives are in danger.
My Lords, I could simply repeat what I said at the conclusion of the last group: the UK should not engage in the unilateral reinterpretation of the refugee convention—not that we are rewriting it, but we are reinterpreting it—but I shall go into a little more detail The JCHR, supported by Amnesty and Migrant Voice, believes that the standard of proof as to whether an asylum seeker has a well-founded fear should remain as “reasonable likelihood”. Amnesty makes the additional point that, as well as raising the standard, Clause 31 makes the decision more complex and the Home Office is getting it wrong too many times already We support Amendments 103 and 104 but we also agree with the noble Baroness, Lady Chakrabarti, that Clause 31 should not stand part of the Bill. Amendment 105, to which I have added my name, attempts to bring the definition of “particular social group” into line with international standards and UK case law. Again, based on the principle that the Bill should not be unilaterally reinterpreting the refugee convention, as I said in the previous group, I agree with the noble Baroness, Lady Chakrabarti, that Clause 32 should not stand part of the Bill Amendment 111 seeks to prevent the definition of “particularly serious crime” from being reduced to 12 months’ imprisonment. As my noble friend Lady Ludford said, bearing in mind that the Bill attempts to set the maximum penalty for entering the UK without authority at four years’ imprisonment, the two changes could potentially exclude all asylum seekers who do not enter through resettlement schemes. As before, we support the assertion of the noble Baroness, Lady Chakrabarti, that Clause 37 should not stand part of the Bill.
My Lords, I will be brief. We support the intentions of the amendments. I thank my noble friends Lord Dubs, Lady Lister of Burtersett and Lady Chakrabarti, who have been leading on these amendments I found it interesting to hear from my noble friend Lady Lister that there was no pre-legislative consultation on the issues covered by Amendment 105. Normally if we want changes in the law, we are told that such things have to go through a lengthy and elaborate process, but these seem to have appeared with a certain degree of rapidity. I really only want to ask the Government a couple of questions. First, in each of the three cases—that is, Clauses 31, 32 and 37—what is the problem that the Government claim to be fixing? What is it, particularly in relation to Clause 31, about the current standard of proof that they believe is failing Secondly, could the Government tell us where the pressure has come from to make these changes in the law? Clearly this is not simplification; it is changing the law, so let us not beat around the bush on that. Where has the pressure come from? Has it been intense? From what sources has it come? Who, or what organisation, has been after achieving these particular changes in the law? I do not recall—though I may be wrong—having heard people marching through the streets demanding these changes, which makes one wonder if some requests for change were made at a political fundraising dinner where no one else knew what was going on.
My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.
Does the Minister recall that I did not just say that it is about the higher standard? It is about having different limbs and different requirements under those different limbs, and switching from “reasonable likelihood” to “balance of probabilities” as part of the composite test, which is not holistic but is in different parts. That is what is confusing, not just a change in the standard of proof.
My Lords, with the greatest respect, it is not confusing at all, because Clause 31(2) establishes the facts, and that is all a balance of probabilities. Then, in Clause 31(4), the decision-maker turns to questions of the future. It is at that stage that the reasonable likelihood test is the appropriate test, because the decision-maker is looking to assess what might happen in the future. That is why we have a lower test at that stage. It is quite usual in law to have different stages of a test and different levels of probability at each.
Could the Minister answer the question of the noble Lord, Lord Rosser? What is the problem that we are trying to solve here? Who is pressing for this change? The Law Societies have advised against it. It seems to me that the only purpose it serves is to make the task of determining whether the fear exists and is well-founded more complicated and more likely to result in the answer, “No, let’s send him back.” That seems to be what is driving this. I remind him that, in late July and early August, Hazaras from Afghanistan—asylum seekers here—were still receiving letters of rejection, telling them that they were not at risk if they were sent back to Kabul.
My Lords, I am grateful for the question. What is driving it, as I said a few moments ago, is the attempt to have a consistent and clear approach to decision-making. When you have a single test with different elements, and it is all under “a reasonable likelihood”, it is then that you are more likely to have inconsistent decision-making—I will not use the word “mishmash”. What you are doing here is really two things, and Clause 31 sets them out clearly. You are first saying, “Are you who you say you are?” and “Did you, in fact, fear such persecution?” Those are factual questions, decided on the balance of probabilities. Then the question is: “Is there a reasonable likelihood that, if you were returned, you would be persecuted?” That is a question of reasonable likelihood.
My noble friend is, in fact, rewriting the law. I am not an immigration lawyer, but if I were, I think I would be a little confused at the moment. In the case that was decided in 2021, Kaderli v Chief Public Prosecutors Office of Gebze in Turkey, it was clearly said that “The true test involved the application of a lower standard” than the balance of probabilities. So now no immigration lawyer could plead the application of the lower standard because my noble friend is raising the bar in this Bill.
I thought I made it absolutely clear when I said earlier that the court in that case made its decision against the legislative background at the time. Parliament is entitled to change the legislative background. We will want to make sure that we remain consistent with the refugee convention, and, as I said earlier, we believe that we are. There is nothing wrong with doing that. It is simply not the case that we are somehow bound as a Parliament by what the Court of Appeal said in the case referred to by my noble friend. Therefore, with great respect, I disagree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, where he said that a single holistic question was better and that the higher standard was objectionable. With respect, I disagree on both points.
Does the Minister agree that, if, under this clause in future, somebody were to fail—they could prove only 45% of the relevant limb of the clause—they nevertheless could not be refouled? Certainly, under Article 3 of the ECHR the test is “reasonable likelihood” and not “balance of probabilities”.
With respect, refoulement is a separate issue and, with greater respect, I will deal with it separately. What we are establishing here is what you need to do to establish your “well-founded fear”. If you cannot establish, on the balance of probabilities, that you are who you say you are, then yes, under this test, you will not satisfy Clause 31(2)(a) I will now turn to Clause 32, because otherwise I will start to repeat myself. Article 1(A)(2) of the refugee convention states that a refugee is an individual who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, and Clause 32 lays out precisely what is meant by each of those characteristics, which are sometimes called “convention reasons”. Again, the purpose here is to make sure that all decision-makers, including both the Home Office and the courts, understand and operate to the same definitions. That is, I suggest, a desirable law reform On Amendment 105, there is a mismatch between how the concept of a “particular social group” is defined in current legislation, government policy and some tribunal judgments, and also in how the definition has been interpreted by some courts. There is no authoritative or universally agreed definition of “particular social group” among state parties to the convention and, in particular, there is no universal agreement as to whether the test set out in Article 1(A)(2) of the refugee convention should be applied cumulatively. The UNHCR has issued guidance supporting the view that the cumulative approach is a misapplication of the refugee convention, but, as I said in the last group, that guidance is neither legally binding nor determinative as a matter of international law Article 1(A)(2) of the convention does not elaborate on what is meant by “membership of a particular social group”; there is no supranational body with authority to give a determinative ruling and, therefore, each state party, including the UK, has to interpret it. We believe that the definition in Clause 32 captures what is meant in the convention by a “particular social group”. We have looked at the broad wording in the convention, the travaux préparatoires—excuse my French—the approach of a number of other jurisdictions, and Article 31 of the Vienna convention, and we believe that setting it out in this way will make it clearer The amendment would mean that you would have to satisfy only one of the conditions to be considered a member of a “particular social group”, and that would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It would broaden the definition to cover potentially transient factors that could perhaps be changed, such as an individual’s occupation. That is the first point. The second is that our proposed definition accords with the widely used and accepted interpretation of the “particular social group” concept, as the noble Baroness, Lady Lister, noted. It is an EU interpretation; it comes from the approach in the EU qualification directive, which underpins the Common European Asylum System. We are very happy to look at EU interpretations; we do not have a closed mind—when they get it right, they get it right, and being independent means that we can look more broadly. However, with great respect, it is difficult to attack this as something utterly wrong if, in fact, this is the interpretation in that legislation.
I am not a lawyer, so I rise with some trepidation, but it seems to me that it suits the Government’s purpose to interpret it in this way, because it means that fewer vulnerable groups—particularly women—fleeing violence will receive refugee protection as a result. It is no clearer than the interpretation that it is overruling, and it seems odd. It is quite rare for the Government to pray in aid an EU interpretation over that of their own courts. Maybe one of the lawyers opposite will be able to give a better response than I can, but I am afraid I am not convinced, because it seems as though that is why this is being done—it is nothing to do with clarity. If this legislation had clearly put in law Lord Bingham’s interpretation, that would be clear. So why the EU interpretation, which is, as numbers of authorities have said, likely to mean fewer vulnerable people—particularly women—receiving the refugee protection to which they are entitled under the convention?
My Lords, I set out why we think this interpretation is correct. I am certainly not saying that we are using this interpretation because it is the EU one; I was referring to the EU to make the point that, with respect, it is very difficult to challenge this as somehow an unfair, unworkable or inapt interpretation when it is actually reflected in the EU jurisprudence. I absolutely take, with respect, the noble Baroness’s comments about the importance of the equality impact assessment for the policies being taken forward through the Bill. The public sector equality duty is not a one-off duty; it is ongoing, and I want to provide reassurance now that we will be monitoring equality impacts as we put the Bill into operation and as we evaluate its measures and, indeed, those in the wider new plan for immigration I assure the right reverend Prelate the Bishop of Gloucester that we are well aware of the particular issues facing women and survivors of gender-based persecution and, indeed, the asylum system is sensitive to them. The interview guidance contains clear instructions to interviewers in this area. We seek to offer a safe and supportive environment for individuals to establish their claims. Despite references to the decision of this House in its judicial capacity, in Fornah, those comments were obiter. I underline that there is no authoritative definition in case law of what is a “particular social group”, and that is why it is absolutely right for this Parliament to define it in this clause Clause 37 amends the definition of a “particularly serious crime” from one which is punished by imprisonment of two years or more to one which is punished by imprisonment of 12 months or more. To be clear, imprisonment means an immediate custodial sentence—I am not sure that any noble Lord made that point, but it is important. Indeed, it is why I brought the handbook: if you receive a suspended sentence, you are not caught by its provisions—going back to the underlying legislation. Furthermore, not only does it have to be an immediate custodial sentence of 12 months or more but the second limb has to apply—namely, whether the individual is a danger to the community—and that is rebuttable We cannot accept Amendment 111 because it would potentially allow dangerous foreign national offenders to remain here, putting the public at risk. If somebody has been sentenced to a year or more in prison, we should not enable them to second guess the verdict of the jury or the decision of the court by allowing them to bring into play again whether they were such an offender. We seek to allow only the second bit of it to be rebuttable; namely, whether they pose the relevant danger I think I have answered all the questions that have been asked. On the last point put by the noble Lord, Lord Rosser, at the heart of this lies not some dinner party conversation but a lack of clarity in the current case law and standards, which make it harder for decision-makers to make accurate and efficient decisions; that is it.
That may be the case, but all I asked of the Minister was to tell the Committee who has been making representations for these changes.
I have not been here as long as the noble Lord, Lord Rosser, but, with respect, I do not think it fair to ask me that question as I stand here. The Government receive representations on this issue all the time. One might say that we receive representations from millions and millions of people who voted for this Government at the last election when immigration reform was full square in our manifesto. I say with great respect to noble Lord, Lord Rosser, that we are having a very interesting debate on some important legal points. If he wants to make political points, I am happy to respond in a political context.
Since when has it been making a political point to ask where the pressure has come from to make these changes? Since when has that been a political point?
The pressure has come from the people of the United Kingdom, who elected this Government with an overwhelming majority.
In that case, will the Minister accept that, in a way, and given what we have heard from other noble Lords, particularly my noble and learned friend Lord Brown, it is part of the Government’s strategy to toughen up on migration and immigration? That is really what this is about.
Absolutely, we want to toughen up on illegal migration. We want to make sure that people who have a right to come in are able to do so, and to make sure that people who do not have that right cannot come in. We want consistent and better decision-making. It is really as simple as that.
I am grateful to the Minister for giving way. In a previous group, the noble Baroness the Minister—I was very grateful to her—sought to make distinctions between immigration and asylum protection; I think that was quite important. To be now almost resiling from that and suggesting, in answer to a previous intervention, that we are going to reinterpret the refugee convention—to respond to the millions of people who voted for Mr Johnson’s Government on the basis of controlling immigration—is a little troubling. I do not think I am alone in the Committee in being so troubled.
My Lords, I am surprised that anyone in a democracy is troubled by a Government listening to the people and putting forward legislation which, first, delivers on a manifesto commitment, and, secondly—as I have said and I repeat —is entirely consistent with our international law obligations. There is nothing wrong and everything right with each signatory to the refugee convention interpreting its obligations under it; we have now been around that point on several occasions.
I am sorry to keep bobbing up, and I appreciate what the Minister said about monitoring the equality impact of this legislation, but does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be so accepted? I do not believe that that is what the British people voted for.
My Lords, I am not trying to be difficult here. What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK. That is what we are seeking to do. By having a clearer set of definitions, we are trying to make sure that it will not depend on the happenstance of who the decision-maker is and the way the test is applied.
I do not wish to prolong the Minister’s agony but can he clarify something for me? I think he said that, in the face of court judgments, the Government were entitled to change the legislative background. Does changing the legislative background mean that the Government are raising the standard of proof, thereby making it more difficult for claims for asylum to be accepted—this is in Clause 31—and in so doing, overturning the judgments of the UK’s highest courts? That is the first question The second question relates to Clause 37. The Minister says that “particularly serious crime” is not defined in the refugee convention and that it is up to each country to define what it means. My understanding is that the definition is being changed from two years’ imprisonment to 12 months. So, particularly serious crime was defined by this country as entailing two years’ imprisonment and now the Government are changing it to 12 months. That is not about seeking to define or a lack of clarity but a deliberate change. Why is that?
On the first point, the position at the moment is that you have a reasonable likelihood test; what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called the holistic test. What is going on here—and what should be going on—is that we have sought to identify a number of discrete questions and we have applied the appropriate standard of proof to each of them. On the second point, the noble Lord is absolutely right in that a serious crime was defined as one that meant 24 months’ imprisonment and we are now defining it as 12 months. We believe that that is appropriate and remains consistent with our refugee convention obligations I am not sure whether I should formally have said that I invite the noble Lord to withdraw the amendment.
I thought we were going to have more Q&A. I am grateful to the Minister for his fairly clear explanation of why the Government are doing what they are doing. I am not totally satisfied that we have heard the full reason. Over the years, we have not had any arguments put to us that the 1951 convention was not working; the arguments have been elsewhere. Suddenly, we are given these different considerations for why we should pass this. However, we will be back on Report, having listened to what the Minister has said. In the meantime, I beg leave to withdraw the amendment.
My Lords, in moving Amendment 106 in the name of, and at the invitation of, the noble Lord, Lord Dubs, I will speak also to Amendments 109 and 110 If Clause 36 is not amended or deleted, it will contradict Article 31 of the refugee convention. It seeks to punish or penalise a refugee for arriving in the UK to make an asylum claim by a route that took them through other countries. The requirement in the refugee convention to come directly was intended only to prevent a person who had acquired refugee status and protection in one country deciding to switch to another. Excluding a person from asylum in the UK simply because they stopped in France, Germany or Belgium, perhaps for a night’s rest, is completely unreasonable. The UK courts have confirmed that any merely short-term stopover en route to an intended sanctuary cannot forfeit the protection of Article 31 of the convention Any other interpretation, as the Government seek to impose in Clause 36, means, as in so much of this Bill, a shirking of the sharing of international responsibilities, such that looking after refugees falls overwhelmingly on countries neighbouring the countries of conflict from which the person is seeking to escape. Therefore, Amendment 106 would at least amend the clause, which, however, we might find later, needs to be deleted. I beg to move.
My Lords, I will speak to Amendment 107 in my name, which relates to Clause 36 and provides that a refugee will have come directly to the United Kingdom for the purposes of Clause 11, notwithstanding that “they have passed through the intermediate country on the refugee’s way to the United Kingdom by way of short-term stopover” Those words in the amendment reflect the reasoning and decision of the Administrative Court in Adimi, where my noble and learned friend Lord Brown presided. They also reflect the approval of Adimi by the Appellate Committee of this House in a case called Asfaw In this respect, Clause 36 is an important part of the Government’s policy. The reason for that is that it provides a definition of “directly” for the purposes of Clause 11 that makes a distinction between group 1 and group 2 refugees. Under the provisions of Clause 11, if the refugee does not come directly from the place of persecution, they inevitably cannot be in group 1 Secondly, it is important because, as I pointed out in a previous debate on this Bill, the provisions for describing coming to the United Kingdom directly, as defined in Clause 36, also reflect the provision in the admissibility provision in Clause 15. Your Lordships will recall that, in Clause 15, if there is a connection with another state, the refugee’s claim is inadmissible; in fact, it is not recognised as a claim at all and there is no right of appeal. Clause 15 provides that, if you fall within one of the five conditions inserted in the Nationality, Immigration and Asylum Act 2002 by the clause, you have a connection. One of those conditions, condition 4, is that “the claimant was previously present in, and eligible to make a relevant claim to, the safe third State … it would have been reasonable to expect them to make such a claim, and … they failed to do so.” So there are two essential elements of the policy behind the Government’s provisions for asylum, where the question of the meaning of coming “directly” is extremely important. I pointed out to the Minister, the noble Baroness, Lady Williams, that there was a muddle here. If condition 4 in Clause 15, as I have described it, is satisfied, you never get to a distinction between group 1 and group 2 because your claim is inadmissible. The noble Baroness was going to look at that and let me know the position from the Government’s perspective, but I have not yet heard from her Before I address what coming “directly” means—as I said, my amendment reflects the reasoning and conclusion in Adimi, and the adoption of the decision in Adimi by the Appellate Committee of this House in Asfaw—I want to say a couple of things about what appears to be the approach of the noble Lord, Lord Wolfson, to interpretation. I do not think you need to be a lawyer to appreciate that if, under the aegis of the United Nations, you agree with other states in the world that you will conduct yourself in a particular way and that an agency of the United Nations has a responsibility for overseeing both the implementation of that agreement and that disputes between member states in relation to the meaning and the application of the agreement—here, the refugee convention—will be referred to an international court, there must be a point in time when one has to identify core values. If there are no core values, there is nothing to adjudicate The noble Baroness, Lady Chakrabarti, referred to Article 35, which requires member states to co-operate with the United Nations body responsible for oversight in relation to the implementation of the refugee convention. So what one has to do here is decide whether what the Government are doing in putting forward these proposals goes beyond the core principles in the refugee convention, which must be applicable generally to member states—otherwise, all the clauses I have referred to, Article 35, co-operation and adjudication by a court are totally meaningless and impracticable So I take issue with the broad statement of principle, as I understand it, put forward by the Minister. He said that it was perfectly acceptable for every member state signed up to the refugee convention to decide, from its perspective, what the convention meant. If that were correct and he was saying that it was for Parliament to decide what it meant for the United Kingdom, it would mean that changes could be made by each successive new Government as to what they felt would be appropriate to support their policy. Well, that is obviously nonsense, if I may respectfully say so What the courts have done—and this would be the approach of the all the courts of the countries signed up to the convention—is try to understand what the refugee convention was intended, by those who made it, to mean. The starting point is always the travaux préparatoires leading up to the convention—what was said and what was done—and then trying to understand whether there has been a deviation and, if so, why. That has been exactly the approach put forward and implemented in both Adimi and Asfaw The starting point, inevitably, for the interpretation of this particular convention is, as I think the Minister said, the Vienna convention on the interpretation of treaties. I do not think it has yet been said that we are entitled to change, and that we have changed, that treaty according to what we think it ought to say. It provides in Article 31.1: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” That phrase, as has been noted by the noble Lord, Lord Rosser, I think, was applied by the UK’s highest court, the Supreme Court, in a case called ST (Eritrea) in 2012 as meaning that there is a duty to give the refugee convention “a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble” I have to say as a starting point that I have seen nothing so far in this part of the Bill which is a “generous and purposive interpretation”, having regard to humanitarian objects and the broad aims reflected in the preamble of the 1951 convention. Every provision that people have addressed appears to be, as it has been put, a mean-spirited approach to refugee applications It is against that background that I now turn to the meaning of “directly”. I have already referred to the clear decision in Adimi on this point about stopping at intermediate countries by way of short-term stopover. Just to give this a bit of flesh, what the noble and learned Lord, Lord Brown, said then was: “I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s executive committee … and the writings of well respected academics and commentators … that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing.”
My Lords, can I remind the noble Lord of the Chief Whip’s reminder of brevity please? We are running extremely late at the moment.
In Anwar, as I have said, the Supreme Court approved of that and in doing so again referred to the travaux préparatoires and the way in which those words came into the convention. They were put in at the last minute to appease the French representative because they were concerned about refugees claiming asylum in France who could have applied elsewhere. In 2001, an expert round-table conference was held in Geneva by different countries and disciplines which again upheld the interpretation of a short-term stopover not affecting coming directly from territories where there was persecution In a previous debate on this subject on Clause 11, the Minister relied on a provision in Section 31(3) of the Immigration and Asylum Act 1999 which had very similar wording to what we find in Section 36. What she did not say, and which comes out of the very detailed speeches of Lord Bingham and the noble and learned Lord, Lord Hope, is that when those provisions in Section 31 of the 1999 Act were being debated, the Attorney-General specifically said, in light of the view of the UNHCR, that there was flexibility in the concept of arriving directly. So, far from that Act being a precedent for a strict interpretation of those words, his elaboration meant that there was, in fact, a correspondence with the meaning arrived at in the courts of this country in Adimi. For those reasons, I say that the definition of arriving directly in Clause 36 is incorrect. It does not meet the international standards of the UNHCR and is contrary to the convention.
My Lords, I shall be very brief. I am trying to work out exactly what I am being asked to agree to here. Perhaps I may ask the noble Baroness, Lady Ludford—maybe not the noble Lord, Lord Dubs—and certainly my noble friend on the Front Bench: am I being asked to end or at least change the first safe country principle by accepting these amendments? If that is the case, I have grave concern about an increase in what is known as forum shopping. Perhaps I can say to the Hansard writers that forum is spelled “forum” and not “foreign”, which is how it was reported last time. Foreign shopping is what you go to Paris to do; forum shopping is a rather more serious matter It is important because this country is an exceptionally attractive place for people seeking to find the best future for themselves. I explained last time that the very fact that debates are going on your Lordships’ House shows how much concern we have to make sure that the rights of people are looked after. It is also an extremely flexible job market once you are here. Getting and maintaining a job is much easier than in some of the areas such as France, where there is a much more rigid job market. There is a non-contributory health and social security system. There is a diaspora from nearly every country in the world. Your mates are here, so you want to come here to join them. We would all want to join our mates. As a last point, you have learned the English language, which is the lingua franca of the world and, in particular, the lingua franca of technology I hope that, when my noble friend comes to answer the debate, he will bear in mind that, if we were to accept this, it will open up the borders for people who are seeking—I do not say that they should not seek—the best future for themselves and, as such, are not abiding by the first safe country principle. We are not in a position to provide the answer to a lot of these people.
I know the noble Lord has listened to a lot of the previous debate. He will know there is no such thing as a first safe country principle under the refugee convention. I tried to explain what the obligation was—namely, not to move on if you have refugee status or protection in a country. The UNHCR has made it clear that there would never have been a refugee convention if there had been a safe first country principle, because countries abutting the problematic countries—for example, Jordan, Iran and Pakistan—have had to accept everyone. No other countries like the UK would ever have had any refugees because we do not abut conflict zones. I am sorry, but this must be rebutted every time it is trotted out.
I will address Clause 36 very briefly, which I discussed last week in the context of Clause 11. I confine myself today to asking two questions. First, do the Government accept, as I suggest they must, that Clause 36 would overrule the judgments of Lord Bingham and, among others, the noble and learned Lord, Lord Hope of Craighead, in Asfaw, fully affirming what had been said on the relevant issues in the judgment I gave in the Divisional Court in Adimi? This has all been elaborated on today by my noble and learned friend, Lord Etherton Secondly, if so, are the Government overturning Asfaw and Adimi because, disinterestedly, they genuinely think those decisions are clearly wrong—or because they think an alternative and more anti-asylum seeker interpretation may arguably be available to them?
The idea of people being able to arrive here without going through a third country has been debated before in the course of this Bill—I cannot remember whether it was last week or another time. When we queried how people could get here, the Minister explained that they could come by aeroplane. That might be possible for some, but it is not possible for everyone who might need to be here in Britain rather than somewhere in Germany or France. Perhaps the Minister could give us a better explanation about how people get here, if there are not enough safe routes or aeroplanes To me, this is a naked attempt to stop refugees. I do not understand why the Government cannot see this as well. We are taking advantage of our geography and saying, “We’re too far away, you can’t come”. This is ridiculous. As I have pointed out before, we have a moral duty to many of these people. We have disrupted their politics, their climate and their lives—therefore, we owe them. It is not as simple as saying that they want to join their mates This Bill should be setting out safe routes and establishing ways to get people to the UK safely and legally. At the moment, we do not have that because the Government are pulling up the drawbridge.
My Lords, in a word, I see these issues from a policy point of view, not just a legal one. The fact is that our asylum system is in chaos, and very visibly so. Large numbers of claimants are turning up on our beaches. The Government are seeking to tighten the asylum system. That does not seem to be unreasonable, and I very much agree with the noble Lord, Lord Hodgson.
I will very briefly address something that the noble Baroness, Lady Jones of Moulsecoomb, said about people arriving here directly by aeroplane. As we will see when we get on to the group substituting “arrives in” for “enters”, even if someone came directly by aeroplane, they would not be legally arriving in the United Kingdom. This clause is central to many of the provisions contained in the rest of the Bill. I am extremely grateful to the noble and learned Lord, Lord Etherton, for his important, detailed and necessary exposition of his reasoning. Despite how long it took, it was absolutely essential Clause 36 seeks to redefine and undermine Article 31 of the refugee convention in UK law as a basis for penalties and prosecutions. As we discussed in previous groups, there is an accepted and settled interpretation of Article 31. As Amendments 106 and 107 seek to establish, passing through another country in order to get to the UK is not failing to enter the UK directly or without delay. This should, therefore, not allow the UK to impose penalties or treat asylum seekers less favourably as a result Amendment 108 highlights the particular difficulties some asylum seekers could face on account of their protected characteristics. Again, however, I agree with the noble Baroness, Lady Chakrabarti: there should be no reinterpretation of Article 31, no group 1 and group 2 refugees, and no four-year imprisonment because people had no choice but to travel through other countries to get to the UK, whether the UK considers those third countries safe or not Clause 36 is the sand upon which this Bill is built, and it needs to be washed away.
Article 31 of the convention exempts refugees “coming directly from” a country of persecution from being punished on account of their illegal presence in a state. Clause 36 of this Bill is the Government’s attempt to reinterpret what Article 31 means by “coming directly from”, and they are doing it to tighten up the rules to suit their policy that all asylum seekers should claim asylum in the first safe country they reach. The clause provides: “A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.” This is a very broad interpretation which would cover anyone who travels through, or briefly stops in, any safe country on the way to the UK. Frankly, this is in opposition to the established understanding of the convention and, indeed, UK case law. This goes against established interpretations of Article 31 made, as has been said, in the case of Adimi and others. This case sets out that stopping somewhere must be understood as referring to something more than a transitory stop en route to the country of intended sanctuary We support the amendments in this group and the opposition to Clause 36 standing part of the Bill. Clause 36 is a supportive measure for Clause 11, being about differential treatment of refugees, which we have discussed at some length. This clause underpins the Government’s plans to base our treatment of refugees on their means of travel, rather than on their need and the realities of the violence or horror they have fled. It is on that basis that we oppose this clause If we interpret the convention, which is what we are now being asked to do, in such a way that it is unrecognisable to our international partners and our own courts, at what point can we still be considered to be complying with the convention? We are not opposed to arrangements for the safe return of refugees to another state where they have legitimately spent time and started an asylum application. There are established routes for doing this, as provided for under the Dublin III regulations, of which we ceased to be a part when we left the EU. That is not what this clause provides for, as a number of other noble Lords have made clear in their contributions. On the basis that this clause unilaterally attempts to redraw what the convention means by stopping in a safe country, I ask the Government to think again, without any great hope of getting a favourable response.
My Lords, I begin with Amendment 107, tabled by the noble and learned Lord, Lord Etherton, whose analysis I listened to very carefully. It seeks to reflect the position in the Adimi case by defining the requirement to “come direct” to include having passed through intermediate countries on the refugee’s way to the UK. I assure the noble and learned Lord that this is something we have carefully considered. Where, for example, a person has taken a connecting flight to the UK, due regard will be paid to the individual’s circumstances in determining whether they came direct. The powers in the Bill enable us to exercise that flexibility, which will be reflected in guidance provided to the caseworkers and decision-makers It follows that if a refugee cites a particular protected characteristic as a reason for being unable to comply with the standards set out in the Bill, including to come direct, that will be carefully considered by caseworkers in determining the entitlements attached to their leave. As I said on earlier groups, we will be sensitive to those cases. Flexible powers in the Bill allow it, and that will be set out in guidance in any event I will come back to Amendment 106 in a moment, but Amendment 108 links closely with Amendment 107 and seeks to ensure that determination of both “reasonably expected” and “reasonably practicable”, which are relevant standards in determining “come direct” and “without delay” respectively, are interpreted with due regard to protected characteristics. Essentially, this point is answered by the point that I have just made: the Bill has flexibility built into it to take individual circumstances into account. A person may be deemed to have come direct if they could not have been reasonably expected to claim asylum in a first safe country. Similarly, they will be deemed to have claimed asylum without delay if it occurred as soon as was “reasonably practicable”. Therefore, if a refugee cites a particular protected characteristic as a reason for being unable to comply with the standards in the Bill, that will be considered by the caseworker. The Bill is perfectly flexible enough to enable us to do so Turning to Amendments 106, 109 and 110, we again tread over the ground of interpreting obligations under the convention. I recognise the importance of taking a sensitive approach to how “come direct” is interpreted and I have already talked about the example of a connecting flight. However, I cannot accept that the definition should be amended as proposed, to enable a refugee to have been in another country “for a substantial period” and still be determined to have come directly. Those in need of protection must claim in the first safe country that they reach, because that is the fastest route to safety. That is an internationally recognised concept. It underpins, for example, the Common European Asylum System, and there are safeguards in the current provision in Clause 36(1). Even if a person stopped in another country outside the UK, they could still say that they came direct to the UK if they can show that they could not reasonably have been expected to seek protection under the refugee convention—for example, because they were under the control of traffickers—although every case would have to be considered on its own merits. Therefore, with respect, and without opening up the wider issue, there are some good underlying points in what we heard from my noble friend Lord Hodgson of Astley Abbotts Amendment 109 requires a little unpacking. I should be clear that differentiation does not constitute a penalty for the purposes of Article 31. However, I disagree with the analysis that protection under Article 31 of the convention should extend to those who have tried to exit the UK without first seeking asylum, because we must interpret the “first safe country” principle consistently. Therefore, the defence under Section 31 of the Immigration and Asylum Act 1999 should no longer be available to those who transit out of the UK Finally, turning to Clause 36, the refugee convention is clear that refugees should be protected from penalties for their illegal entry or illegal presence when they have come directly from a territory where their life or freedom was threatened, they presented themselves without delay to the authorities, and they showed good cause for their illegal entry or presence. This will now be familiar ground. However, the refugee convention does not define what is meant by the terms “coming directly from a territory where their life or freedom was threatened” or “present themselves without delay to the authorities” This clause sets out how these phrases should be interpreted in the UK. This is the same point that I made in the previous two groups The noble and learned Lord, Lord Brown of Eaton-under-Heywood, asked me whether we were overturning the judgments in Adimi and Asfaw and, if so, why? I hope I have that question down fairly. With the greatest respect, the courts in Adimi and Asfaw interpreted “come directly” in Article 31(1) more generously than the original intention of Parliament. The Explanatory Note to Section 31 of the Immigration and Asylum Act 1999 says: “This defence, which is modelled on Article 31(1) of the Refugee Convention, does not apply if the refugee stopped in a third country outside the United Kingdom unless he can show that he could not reasonably have been expected to be given protection under the Convention in that country.” What we are doing here is consistent with the refugee convention. There is sufficient flexibility in the proposed powers and the overall policy to enable an individual to demonstrate that during the stopover they could not reasonably have been expected to seek protection under the refugee convention or, where appropriate, to show good cause for their illegal entry or presence Turning finally to the point put to me by the noble Lord, Lord Paddick, who said that someone arriving by aeroplane would be arriving illegally, some joys await us in group 8, when we will come to this point. As a taster before the short dinner break, I point out that there is a statutory defence recourse under Section 31 of the 1999 Act if they are genuine refugees and used fraud or deception to get a forged or false entry clearance. We will no doubt come back to this in more detail in group 8.
If every country interpreted Article 31 as the Government want it interpreted by means of the Bill, what would be the consequences for dealing with the refugee crisis that the world faces?
I really do not mean to be flippant. The consequence would be that every country would be interpreting the refugee convention in accordance with its terms. As a country, we are interpreting our legal obligations in the way that we ought to and are allowed to. We are going back—
The Joint Committee on Human Rights recommended that this be amended. There must be good reasons for explaining why the Government do not want it amended and I have not heard them This is a true story; I can meet the Minister in camera and show him the evidence. A young man aged 17, whom we found in Kenya—
My Lords, this should just be a short question.
I am giving an example of why Article 31, without the amendment, does not work.
I am almost as new, I think, as the noble and right reverend Lord, but my understanding of procedure is that that is meant to be for questions. If the noble and right reverend Lord will write to me or meet me to discuss that particular case, I will certainly discuss it with him. If the case raises a point of principle, I will deal with it. If it raises a point of principle that I think will be helpful for the Committee to hear, I will write to him and provide a copy of the letter. I hope that is helpful for this evening.
My Lords, may I just say that this is Committee? This is not Report. Any noble Lord is entitled to speak after the Minister in Committee.
My Lords, I really do not want to get into a procedural battle. I was trying to be both helpful to the Committee, given the time and pressure, and respectful, I hope, to the noble and right reverend Lord. I reiterate the offer, which I think is appropriate.
Could the Minister answer the question from the noble Lord, Lord Paddick? It was rather a flippant answer that he gave—that everybody would be interpreting the convention according to their rights. I think the noble Lord, Lord Paddick, meant: what would be the practical effect? What would happen to the 26 million refugees in the world, three-quarters of whom are in countries contiguous to the one in which they had their citizenship? Would all countries agree, if they introduced this “first safe country” rule, that all refugees had to stay in these contiguous countries—in these encampments in Jordan, Syria, Turkey and so on—and that nobody could move on, under the refugee convention, to another country?
I am certainly not trying to be flippant. What I am saying is that we have a refugee convention that sets out our international obligations. We are abiding by those international obligations. It may—I underline “may”—be that a convention entered into in 1951 is not absolutely suitable for the world of 2022. That might be the answer. At the moment, however, my focus as a Justice Minister is on making sure that this country abides by its international obligations, and that is what we are doing. I invite the noble Baroness to withdraw the amendment.
My answer to that last point is that if that is what the UK Government feel, they should convene a conference to renegotiate the refugee convention, but they are not doing that. A large number of noble Lords in this Committee believe that the Government are riding roughshod over the refugee convention in a way that demeans this country and sets an extremely poor example, not least to those countries on the front line, which are taking the overwhelming majority of people seeking protection. We have bandied around the statistics in the last few days in Committee, but we are not in the top category of countries in terms of the numbers, which are manageable. They would be particularly manageable if the Home Office got its act together in the way it decides asylum cases initially—if it invested in the initial consideration of the claims and did not make the law ever more complex, with ever more delays and ever more prospects of litigation. It seems we are banging our heads against a brick wall somewhat, but I beg leave to withdraw my amendment.
My Lords, I have just come into the Chamber but may I suggest, before the noble Lord moves to adjourn, that we have a usual channels discussion in the next 30 minutes? Regarding the point made by the noble and right reverend Lord, Lord Sentamu, Committee is a conversation; it is not Report. I think we need to clarify that. I want to make progress on the Bill, but we need to have a discussion on it. I think the intervention was right and, as the noble Lord, Lord Paddick, also said, this conversation in Committee is not bound by the rules of Report. I think we should use these 30 minutes to get this ironed out.
On behalf of my noble friend Lord Paddick, I will move Amendment 112 and speak to Amendments 113 and 117, which I have co-signed. The reason I have been given the honour of moving Amendment 112 is that it reproduces my Private Member’s Bill, which in fact has its origins with my noble friend Lady Hamwee and will have its Committee stage just after recess The Conservative Party likes to call itself the party of the family; I believe it needs to demonstrate this. Amendment 112 would build on existing safe routes for family reunion to enable a wider range of family members to reach the UK without undertaking unsafe journeys. This is the real way to stop most of the dangerous channel crossings and put the smugglers out of business In the letter and attached chart that the Minister sent to the noble Lord, Lord Dubs, and kindly made available to us all, the Government set out the current safe routes. Even under part 11 of the Immigration Rules, while adult refugees do not have to pay a fee for the visa they do have to pay for travel to the UK, and the integration loan cannot be used for that. Legal aid is also not available, at least not in England and Wales—I do not know about Scotland or Northern Ireland—and they can bring in only their spouse and their under-18 children As in my Private Member’s Bill, Amendment 112 would permit dependent children up to the age of 25, as well as adopted children. Crucially, it would permit children recognised as refugees to sponsor their parents and siblings to join them. Although sibling reunion is in theory possible under paragraph 319X of the Immigration Rules, in practice the barriers are often insurmountable. Not only does the visa cost almost £400 but the young sponsor has to show that they can financially support and accommodate their sibling without recourse to public funds, and that the justification for reunion is “serious and compelling”. All these are tough tests to fulfil. Paragraph 297, which governs whether children can join parents or non-parent relatives who have settlement status imposes a fee of £1,500, and then the same serious and compelling test Despite promising in a response to the consultation on the New Plan for Immigration to give creator clarity, no guidance has been forthcoming. Can the Minister tell us in her response when that guidance will be forthcoming, and how many visas have been issued under paragraphs 319X or 297 over the last five years I reaffirm my support for Amendment 113 from the noble Lord, Lord Coaker, and Amendment 117 from the noble Lord, Lord Dubs. These both aim to boost family reunion opportunities for unaccompanied minors and for entry to seek asylum, in part substituting for the loss of the Dublin regulation. I also support other amendments in this group. I beg to move.
My Lords, I have added my name to three amendments in this group. I note that they are all new clauses. New clauses are necessary to improve this Bill, and they are essential to humanising our present systems, let alone what may emerge from the Bill once it becomes an Act Reuniting families split by wars and persecution brings huge benefits; I think we can all agree on that. Amendment 112 enfranchises both children and their parents. It also empowers the Secretary of State to add new kinds of relationships. Amendment 113 should, as the noble Baroness, Lady Ludford, has just mentioned, reduce dangerous crossings of the channel On Amendment 114, we all know that the neighbours of Syria and Iraq have been subjected to and have accepted huge influxes of people. The same is also true of southern European states. For these reasons, there is an urgent need for equitable burden sharing. This, in turn, will require much greater international co-operation. We can do our part in this country by using family reunion. Our neighbours and allies are entitled to know what our intentions and proposals are in this respect The wording of all three amendments can, I expect, be improved. Will the Government accept at least their principles, take them away and bring them back in pristine condition?
Going through the amendments this morning in preparation for this evening, I got quite tearful when I read these amendments because my family is incredibly important to me—every single one of them. I love them and I do not want to lose them or break up in any way from them. The thought that we in Britain could be the cause of families separating made me very upset I have signed two of these amendments, but they are all good amendments. The Government really ought to look into their own hearts and think about how they would feel if their families were broken up, through no fault of their own, because of despotic powers or other reasons. It is time to be a little bit kinder in this Bill, so please will the Government accept these amendments?
My Lords, I specifically support Amendment 117, to which I have added my name, but I support all these amendments around family reunion. I declare my interests in the register around RAMP and Reset as before Acknowledging that when people are forcibly displaced they end up in different places, often having lost family members, UNHCR research has shown that families often set out together but become separated along the way. Reconnecting those families, or, where some family members are lost, reconnecting people with other relatives, really matters. In seeking protection, those seeking asylum want to do so alongside the family that they have. This is better for individuals—their well-being and their future prospects—and for the community as a whole. It is therefore also better for social integration In my conversations with refugees and people seeking asylum, the whereabouts and safety of family is generally the number one preoccupation that they raise. This concern overrides everything. When we speak about family, it is not purely spouses and children but aunts, uncles, cousins, nephews and nieces. Organisations working with refugees, such as Safe Passage, know from their work that, when people have no safe route to reach their families, they are more likely to risk their lives on dangerous journeys to reach loved ones. Many of these individuals are children and young people seeking to reunite, often with their closest surviving relatives. No doubt the Minister will give us the numbers again of how many families have been reunited under it, but existing refugee family reunion is narrow in scope. The threshold to be met under paragraphs 297 and 319X of the Immigration Rules for an adult non-parent to reunite with a child is “serious and compelling circumstances”, which is extremely difficult to meet in practice I appreciate that we cannot offer protection to all extended family members, but we can do this for some out of kindness, and it would divert them from using criminal gangs. Once they arrived in the UK, they would enter the asylum system to have their claim for protection decided Of course, we would prefer people not to have to make the dangerous journeys as far as Europe, and I expect that the Minister will cite pull factors to Europe as a rebuttal. With an ambitious resettlement scheme—which we will come back to—a broader definition for family reunion, as well as an increasing commitment to aid and constructive engagement with our near neighbours, I believe that any such pull factor to one safe route will be mitigated. The alternative is that people come anyway but in an unplanned way, risking their lives and causing further trauma I urge the Minister to at last give way on one item: consider this proposal as a pragmatic response to the need to find durable solutions for desperate people dying on our borders in order to reach their family.
My Lords, I support all these amendments. I have signed three of them, and the only reason I did not sign the fourth was because my name did not get there in time; there were already four names on it Let me talk most particularly for the moment in favour of Amendment 117. In one sense, we are going back to the Dublin treaty, Dublin III and the discussions we have had in the past. At the risk of taking up an extra minute, I will go in for a little moment of history. We had an amendment—which passed in this House and the Commons—to the 2017 Act which said that the Government should negotiate to continue the Dublin III arrangements even after we left the EU. That passed in the 2017 Act We thought we were there—but along came the 2019 Act, and it was taken out again. We could not understand why. It was fairly innocuous in one sense, but it was pretty important in another. I was summoned to a room, I think here, and there were three Ministers: the noble Baroness; Brandon Lewis, who was the Immigration Minister; and one of the Ministers from the Commons. There were seven other officials there, one from the Cabinet Office, and just me arguing with them—I thought the odds were pretty fair. Anyway, I was assured that we would lose nothing by abolishing that provision in the 2019 Act. It was never explained to me why the Government wanted to abolish it. If it was going to make no difference, why abolish it? If it was going to make a difference, why take a step backwards By all standards, the Dublin III provisions for family reunion were working—not brilliantly, not fast enough and not for enough children, but they were working. I was assured that everything would be all right, but I am afraid that the evidence is not there. We cannot say often enough that where there are safe routes, the traffickers do not get any business. If we close the safe routes, the traffickers get business. It is logical, even for the Tory party. It is market economics, is it not? I do not understand how that can be contradicted I am worried about quite a number of the Government’s provisions. The Minister wrote a letter, which I have here; it is slightly depressing, but very helpful. However, I am worried that, on the whole, children in particular who got to Europe fleeing for safety are going to be ignored. I have not been there recently because of the pandemic, but the last time I visited what remains of Calais, people were sleeping under tarpaulins in terrible conditions. It was very depressing, and there were very depressing scenes on the Greek islands. I went to Lesbos, to Moria camp, just before the big fire there. Again, I am out of date now, but I understand that it has not got better. There are young people there who are desperate to join family members in this country. There are not many of them altogether, but there are enough for it to be an important point of principle. Surely, our test of humanity must be whether we support family reunion and whether refugee children can join their families here Safe Passage—a small but brilliant NGO with which I am happy to work and be closely associated—suggests that the majority of the children who qualified under Dublin III in the past would not qualify now. For all the optimistic noises coming from the Home Office, the fact is that the situation has got much more difficult in terms of getting children here.
My Lords, I think that it is perhaps time for a different view from this side of the Committee. I will briefly deal with Amendments 112 and 113 Amendment 112 refers to “Refugee family reunion”. It is a wide-ranging amendment, and I suggest that it is unnecessary and not very wise. We already have provisions for the family members of refugees to come here. As others have mentioned, these allow partners and children under 18 of those granted refugee status or humanitarian protection to join them here, provided that they formed part of the family unit before they left their own country. That seems a reasonable basis for this provision. Of course, the family members do not receive refugee status themselves, so their leave will expire at the same time as that of the sponsor. But individuals on such visas are allowed to work, study and have recourse to public funds, which also seems entirely reasonable Indeed—I will save the Minister a task—we have granted visas to more than 60,000 family members of refugees since 2010. Since 2015, over half of those were to children. This is already a very substantial move in that direction. But widening the criteria still further would, of itself, massively increase those numbers and add still further to the pull factors drawing people to the English Channel, a route that has very little support among the public There is a very strong case for not widening these refugee routes. In the real world, we simply do not have the necessary infrastructure, service capacity, housing or school places. Many refugees are being put into the poorest parts of the UK. In this context, the Home Secretary said to a House of Lords committee on 27 October last year: “We simply do not have the infrastructure or the accommodation.” A Member of the other House said of his area: “The impact on housing pressure at local level could cause further tensions if there is resentment about refugees receiving housing assistance at a time of acute … housing shortage.”—[Official Report, Commons, 27/4/21; col. 40WH.] In setting our arrangements for refuges and their families, we must surely give due consideration to their impact on our own vulnerable communities.
I am grateful to the noble Lord for giving way. I just put this to him: if children are coming to join family members here, the norm would be that the family member has accommodation to provide for them, so the argument about housing does not apply to that group of people.
I shall go on to Amendment 113, which deals with unaccompanied minors. The main effect of this amendment would be to put a considerable number of children in serious danger. As drafted, it applies only to children already in the EEA, but it would obviously be a major incentive for families now outside the EEA to pack their children off to Europe in the expectation that they could go on to the UK. The amendment is also widely drawn to include nieces, nephews, grandchildren, siblings, spouses—all from families that are very large in any case We have seen how opening this route would encourage minors to make dangerous journeys. In 2016, when there was talk of the UK taking significant numbers of children, the numbers of unaccompanied children literally doubled overnight. That is according to evidence given to the relevant parliamentary committee by the Home Office director responsible in December 2021. We have to consider the wider consequences of this, to which may be added the difficulties already facing the authorities in correctly assessing the age of those claiming to be children. We have discussed this before in Committee and we know that, in the last available year, 1,100 persons claiming to be children were found to be adults. This amendment is dangerous and unwise, and should not be accepted.
My Lords, I have been encouraged to say a word—it was only going to be a word, but it will be a few more now—in support of my noble friend Lady Ludford. I am pleased that she has taken on this cause. I am not seeking to analyse every one of these amendments, but they are about protection in every sense of the word, which is what the right reverend Prelate the Bishop of Durham was saying. I applaud the Government for enabling the reuniting of some families, but I am thinking about those who have not been reunited, where there are problems I had a similar experience to the noble Lord, Lord Dubs, in a meeting with Brandon Lewis and a battalion of officials, when I remember being told that the rules are quite adequate—but they are discretionary We have been asked by the noble Lord, Lord Green, to think about the real world. The real world is not just in the UK. One of the aspects of children being alone in the UK is the cost to local authorities, which can be very substantial when children are here by themselves. One needs to include a number of factors when balancing the question of costs I would like to echo whoever it was who pointed to the importance of siblings being able be together. A child or young person—frankly, anybody coping with the experience of being a refugee—needs the support of family. A sibling can be such a support to a child; I have heard siblings speak of this. These amendments have my support.
My Lords, I pay tribute to the noble Lord, Lord Dubs, for his tireless work on family reunion, born out of his own personal experience. I also pay tribute to my noble friends: my noble friend Lady Hamwee, who ran the first leg with her Private Member’s Bill, before handing over to my noble friend Lady Ludford. It is better for families to be together, not just for their own welfare but so that they can look after each other, as my noble friend Lady Hamwee had just said, rather than being looked after by the state. We strongly support Amendment 112. Amendment 113 would provide a mechanism for those unaccompanied refugee children who had reached an EEA country and who have a family member in the UK to be reunited with that family member. Amendment 114 “would require the Government to produce a negotiating mandate to seek reciprocal arrangements, with other states, on safe returns and safe legal routes.” I am guessing that would be something akin to Dublin III. Amendment 117 from the noble Lord, Lord Dubs, would change the Immigration Rules to allow people currently in Europe to come to the UK to seek asylum—effectively be given a visa—if they have a family member in the UK. This is a subset of my noble friend Lady Hamwee’s Amendment 118 in the next group. We support all these amendments.
My Lords, it is a privilege to contribute again to the deliberations in Committee on this important Bill. We agree with all the amendments in this particular group, but I shall speak specifically to Amendment 114 and then Amendment 113 On Amendment 114, I join the noble Lord, Lord Paddick, and I am sure all other Members of the Committee, in paying tribute to my noble friend Lord Dubs for the work he has done over so many years. He is an example and inspiration to us all, with respect to family reunion. The reason I want to highlight Amendment 114 is to lay out the importance of international action on this. That is why the refugee convention is so important to us. We saw the collapse of the world order, if you like, after the Second World War. As was mentioned by the noble Lord, Lord Alton, earlier, the world back then, of all political persuasions and ideologies, did not all split asunder and pull the drawbridge up on their own countries; they said that this was a common problem of such massive importance that they had to work together to achieve anything The 1951 refugee convention is not an old document but still speaks to us and is relevant today. It may have been written in 1951, 70-odd years ago, but it speaks as resoundingly to the people of the world today as it did then. Why do I say that? Like many Members of this Committee, I think Amendment 114 is important because it talks about the United Nations and it talks about international actions. It is a probing amendment —we are not asking the Government to accept it—but it is using the Committee to put pressure on the Government to say, as a senior global power, a member of the United Nations Security Council, a senior member of NATO, a power that has resonance across the world—notwithstanding some of the reputational damage that I think this Bill is causing—that we make a difference. What we say makes a difference In Syria, Iraq, Afghanistan—all of those countries—their refugee problems dwarf ours, let alone if we consider those in Africa. As I think I mentioned before, I went to Angola, where they had a refugee camp of a million people—some of the poorest people in the world dealing with some of the most difficult circumstances. On the border of Syria and Jordan, as I think I mentioned before, there is a huge refugee camp with people pouring across the border to escape war. Those countries—Jordan and Turkey—did not turn their back on those people; they worked to try to deal with it What I am saying about that international response, that international action, such is the difficulty that we are facing across the world—for all sorts of reasons, and we can debate why that is and why that is not—is that if we do not join together, we have got real problems in actually sorting this out. It is beyond the capacity and capability of one country to do that, notwithstanding the attempts. I say this: there will be a nationality and borders Bill 3 and a nationality and borders Bill 4 in trying to deal with this if the UK Government try to deal with it on their own.
I entirely agree about the appalling conditions in these refugee camps and the huge number of refugees that are being dealt with. The question that I and others ask is: how can we best use the resources that we can give to the people who really need it? How much more effective would it be to get aid, food and medical attention into these terrible camps, rather than spending huge sums of money on children here who cost the same as a term at Eton?
Of course that is right. That is why there was such a row about the cut in the aid programme. It is why we all believe that of course we have to try to prevent war, famine and all those things. Not to do that would be ridiculous. The sources of many of our problems are war, famine and disease, and all of those things, so of course we have to prevent them However, it is also important in the debate we have in this country about asylum and refugees—not immigration—to stand up to the view that “We take the lot”. The idea that it is this country that has to deal with the situation, no other decent country in the world does it, we are the country that has to take them all and we are the weak link in it all is just not true, however unpopular it is to say so. Sometimes the way that you change public opinion is by arguing with it People will say, as no doubt the Minister will, “We won the election and therefore this is what the public think”, but on asylum and refugees there is an argument for saying, “Of course we don’t want open borders but there is a need for us to act in a way that is compassionate and consistent with the values that we have always had”. Sometimes that costs you, as I know, but that does not mean you should not do it. Public opinion can therefore be changed, and the subject is debated. Indeed, policy and opinion can change in this Chamber, which is the point of it. In the interests of time, I will stop there Amendment 114 is exceptionally important because of the need for international action. To apply it to our own situation here, we will not deal with the migrant crossing problem in the channel without co-operation from France and the rest of Europe. I want to talk about the importance of Amendment 113, and I take issue with the noble Lord, Lord Green, on this. It is not an open invite to everybody to pile their children—I paraphrase, but if I get it wrong then no doubt the noble Lord will correct me—into the EEA because that means they can all then come to the UK. The amendment clearly lays out that it is about people who already have a family member present in the United Kingdom. It is about family reunion and trying to ensure that unaccompanied children in the EEA who have a family member in the UK get the opportunity to be reunited with them I will finish with this point, which I know the Minister will agree with. The problem we have is that sometimes Ministers have to speak to Governments, to the computer and to the Civil Service and say, “This bit of the Bill is wrong. It does not work.” Both Ministers have done it before on other Bills in other places where the Bills were wrong. On this issue of family reunion, the Government have got it wrong; they are not right. Nobody thinks that children who are unaccompanied in other parts of the EEA, for example, should not be able to reunite with their families in a way that is consistent with the values of this country, and it beggars belief that the Government would stand against that. It is not about an open door; it says quite specifically who should deal with it. I think if that were explained to the people of this country, and debated and argued with them, they would support it, because they are compassionate and decent, and in the end the compassionate and decent side will win. I think the Ministers are compassionate and decent, so let us have a Bill—in this aspect of it—that reflects that.
My Lords, I thank all noble Lords who have spoken to this group of amendments. I hope in what I am about to say that there will be at least some acknowledgment of the compassion and decency that we have shown as a country in the last few years—actually, the last few decades. It is such a hallmark of us as a nation. I also pay tribute to the noble Lord, Lord Dubs. Believe it or not, we like each other very much—we just disagree on quite a lot. But we have worked together in a civilised and friendly manner over the last few years, and long may that continue On the point about decency and compassion, Amendment 112 aims to expand the scope of the refugee family reunion policy. Under that policy, we have granted visas to over 39,000 people since 2015, over half of them being children, as the noble Lord, Lord Green of Deddington, pointed out. So, to answer the noble Baroness, Lady Jones of Moulsecoomb, we have looked into our hearts. We already have several routes for refugees to bring family members to join them in the UK, and it is important to carefully consider the impact of further amending our policy Family unity is a key priority, but noble Lords will know that we have a range of aims further to this, including ensuring that we have reasonable control over immigration and that public services such as schools and hospitals—and I think that it was the noble Lord, Lord Green of Deddington, who talked about the infrastructure of this country—are not placed under unreasonable pressure. However, I recognise that in some cases there will be exceptional and compassionate circumstances which warrant a grant of leave. To answer the noble Baroness, Lady Ludford, the guidance on exceptional circumstances will be published in due course. That is why our policy ensures that there is always discretion to grant visas outside the Immigration Rules, which may cater for the sorts of cases that do not immediately fall within our legal framework In terms of allowing child refugees to sponsor family members under this proposed clause, noble Lords will at least grant that I have been consistent in opposing that sort of policy, because of its negative consequences. It is highly likely that this would create further incentives for more children to be encouraged—or even, sadly, forced—to leave their family and risk extremely dangerous journeys to the UK in order to sponsor relatives. Such an approach would open children up to a huge exploitation risk, which completely contradicts the hard work and commitment of the Home Office in protecting children from modern slavery and exploitation. We refuse to play into the hands of criminal gangs, and we cannot extend this policy to allow child refugees to sponsor family members into the UK Beyond this, many of the conditions set out in this new clause are already included in our current family reunion policy and are taken into consideration when decisions are made inside or outside the rules. All noble Lords in Committee should have a copy of the various routes. Our prime consideration in all cases is the best interest of the child in question—and so it should be. As the number of visas we have granted under this policy reflects, we are committed to maintaining family unity for refugees. Caseworkers are encouraged to use discretion in considering whether entry may be granted in family reunion cases. By setting out conditions in primary legislation, we would lose the individuality of consideration, and the discretion of caseworkers would be void. I can assure the Committee that all relevant elements of each case are thoroughly considered on their merits under this policy, and there is no need to set it out in statute I turn to Amendment 113, on family reunion for unaccompanied asylum-seeking minors. I cannot support this proposed new clause. It tries to recreate the EU’s Dublin regulation in UK law with respect to unaccompanied children who have claimed asylum in an EEA state but have family members in the UK. When the UK sought to raise these matters with the EU, our proposals had very clear safeguards for children. This proposed new clause has none. It creates entitlements to come to the UK to claim asylum if the minor has specified relatives but it fails to consider the individual needs of the child. It does not consider whether the UK relative can actually take care of the child or whether the child would be better placed with a relative, potentially an even closer relative, in another safe EEA state The other point about this proposal is that it does not work unilaterally. I am sure the noble Lord will concur with that. It requires co-operation from EEA states. It is not possible to legislate through this Bill to take children out of other countries’ care and support mechanisms or their asylum systems. That requires agreement between states, which might not be possible and is certainly unlikely in the timescale of six months set out in the clause I see that the noble Lord, Lord Dubs, is about to stand up. Might I finish this point about the EU before he does? As he knows, we sought to negotiate with the EU on UASC family reunion and continue to talk to it on this important issue. However, at this point I cannot comment further.
I am grateful to the Minister for giving way. I hate to go over the past, but the whole point of having the Dublin III treaty in the 2017 Act—which was taken out in the 2019 Act, as I said—is that it has to be based on reciprocity. That was a sensible way forward; it is why we wanted to go down that path. That was the path blocked by the Government in the 2019 Act.
The noble Baroness has twice in my hearing given the figure of 39,000 humanitarian visas for family reunion. Between Second Reading and Committee, I asked a Written Question on how many of those had been taken up, because I foresaw that force majeure, poverty or some other reason would prevent many of them actually being used. I got one of those answers saying, “We really cannot find or give you any figures.” Can the noble Baroness be a little more helpful on the real results of those visas?
Going back to the noble Lord, Lord Dubs, first, I did not disagree with his point about reciprocity but I made it clear at the time that we were of course leaving the European Union. I have consistently said, and repeat now, that we will try to negotiate with the EU on UASC family reunion, whether that is across the EU or bilaterally with states. I cannot go any further on the negotiations, but we continue to try to do that. I hope that answers his question On family reunion visas, we can grant them, but the noble Lord asked about tracking whether people use them or not. I assume people apply for the visas because they need them and want to reunite with family in the UK, and whether they use them or not—I have just received an answer: all 39,000 have been taken up, so I hope that satisfies the noble Lord. I was just wondering how we could track whether someone had used a visa or not, which might be quite difficult I move to Amendment 114, on returns. Once again, we have a number of safe and legal routes to the UK that did not require a negotiating mandate. Our resettlement schemes have provided safe and legal routes for tens of thousands of people to start new lives in the UK. In particular, the mandate resettlement scheme recognises refugees who have a close family member in the UK who is willing to accommodate them. This is a global scheme and there is no annual quota. These routes work alongside the UK Government’s commitment to increasing co-operation internationally, and we continue to seek to negotiate on returns with EU member states, as I have just said to the noble Lord, Lord Dubs.
My Lords, I thank the Minister, who has given us detailed responses. Some of her points do not really take account of what inspired this set of amendments, which is that people do better if they have the support of their family. It may not be quantifiable, but my noble friend Lady Hamwee mentioned the case of a sibling. I can imagine having that my brother or sister with me in a strange place would be an enormous support. The way the Minister replied—which is obviously in her brief—was all about the numbers: never mind the quality, feel the width. We are talking about quality of life, integration and the chances that the person who gets status would have to thrive in the UK. The Home Office is a bit blinkered on this matter The Minister told me that the promised guidance on paragraphs 319X and 297 would be coming “in due course”. That is a phrase that always chills the spine; I hope it is not too far away. It would be interesting to know what constitutes “serious and compelling” circumstances, as people are finding that it is very difficult to get through that test. I also note that she said that there is no data in published statistics on how many applications are granted under either of those two routes, and I look forward to her successful efforts to find that. It is a bit surprising that there are no published statistics on that, but I hope she has success in locating some The Minister said that there is no need for statute. I obviously disagree, because I am promoting a Private Member’s Bill that would put it into statute. A lot of the problem here is that there is too much discretion and moving of the goalposts, so people do not know what they can rely on. It is all just too difficult, and there are numerous hurdles I listened to the Minister. I am fairly disappointed with what she said, but, as of now, I cannot do other than beg leave to withdraw the amendment.
My Lords, this amendment is also about children, but it is about children who are in Europe and do not have family anywhere. It is similar to an amendment that was passed by this House and became Section 67 of the Immigration Act 2016. There is a long story to that; I will not waste noble Lords’ time on it now except to say that there was quite a lot of resistance then on the part of the Government but, eventually, the amendment was passed and Theresa May, the then Home Secretary, accepted it However, as I understand it, Mrs May did so under the pressure of public opinion because, at the time, people were horrified when they saw dinghies and people drowning in the Mediterranean. They saw a little Syrian boy, Alan Kurdi, drowned on a Mediterranean beach. I think that woke up public opinion. The public then came onside and decided that we as a country can do this for unaccompanied child refugees. That is a summary of the history there. Theresa May then summoned me again to see her and said that the Government were prepared to accept the amendment The Government then decided that they would cap the number; it was capped at 480, I think. The Government’s argument was that they could not find more local authorities to provide foster families and foster parents to take in more children—a point that was disproved by Safe Passage, which contacted a number of local authorities and found around 1,500 places. Whether they are there today, I do not know, but they were certainly there at the time. There is a problem, of course: there is increasing financial pressure on local authorities, so local authorities are willing to do it but probably cannot afford to do it. There are difficulties; I can see that. Nevertheless, Amendment 115 says: “The number of children to be resettled … must be determined by the Government in consultation with local authorities.” That is close to the wording of the earlier amendment some years ago. The argument here is that, in principle, the Government should accept that we will take a few—only a few—unaccompanied child refugees in Europe, and they should settle on how many and the speed in conjunction with local authorities and with regard to local authorities’ ability to provide foster places. It is a simple proposition. I believe that public opinion is still supportive of it. We have sought support across the political spectrum on this because that is, I am sure, the best way to be successful. Faith groups have been very supportive; altogether, we have a good coalition of people supporting the principle in this amendment and the earlier amendment on Dublin III that I spoke about This amendment makes a simple proposition. It would not be difficult for the Government to say that, where there are unaccompanied children who have nowhere else to go and are stuck, we could take at least some of them—not all of them, but some of them—in this country and repeat the small successes of a few years ago. I beg to move.
My Lords, Amendment 116 is in my name. I thank my noble friends Lord Shinkwin, Lady Stroud and Lady Helic for their support. We propose a workable, sensible and impactful solution for the Government to meet their stated objective, as set out in Explanatory Notes, “to enhance resettlement routes to continue to provide pathways for refugees to be granted protection in the UK.” Introducing a carefully designed, long-term global resettlement scheme with a numerical target will have the effect of meaningfully expanding safe routes for the world’s most vulnerable refugees.
My Lords, I will speak to my Amendment 119B and in support of Amendment 119A, in the names of the noble Baronesses, Lady Kennedy of the Shaws and Lady Chakrabarti. I should mention that the noble Baroness, Lady Kennedy, is overseas in Estonia at this moment and unable to be here. In speaking to these amendments, I draw attention to my entries in the register of interests. I am patron of the Coalition for Genocide Response and vice-chairman of the All-Party Parliamentary Groups on the Yazidis and on the Uyghurs. In introducing my amendment, I associate myself with the remarks of the noble Lords, Lord Dubs and Lord Kirkhope. I strongly support what has just been said I begin by referencing the play “Leopoldstadt” by Sir Tom Stoppard. It is a heart-breaking story of one Jewish family in the years before the Second World War and in the aftermath of the war. Among other issues, it highlights the challenges faced by people subjected to persecution and what we now know was genocide and the Holocaust—people who could not find a safe haven anywhere else. Strict quotas meant that only a few of them would find a safe haven. Long waiting lists meant that some people would never move to a safe country. That same challenge continues to this very day Amendment 119B, concerning those who are subject to genocide, returns to an issue that was also the subject of an amendment tabled by myself, the noble Lord, Lord Forsyth, my noble friend Lady Cox, and the noble Baroness, Lady Kennedy, which I moved in 2016. We drew the attention of the House to the plight of the Yazidi, Christian and other minorities who were said to be facing genocide. We argued that our asylum procedures should create a specific category to help those judged to be at immediate risk of genocide. That was five years ago on 3 February 2016, as recorded in Hansard col. 1888; we moved Amendment 234A, which sought to offer help to those whose lives were so clearly at risk of genocide. Although at the conclusion of the debate, the then Home Office Minister, the noble Lord, Lord Bates, agreed to give the proposal further consideration, it was ultimately vetoed That amendment, like this one, followed the presumption that a person would be granted asylum when a senior judge determined that a group to which that person belongs is, in the place from which that person originates, subject to genocide. The presumption would operate in the United Kingdom but, in addition, applicants would be able to apply at British consular posts overseas—a point that I raised during earlier proceedings in Committee I remind the House that genocide is defined in Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as follows: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: … Killing members of the group; … Causing serious bodily or mental harm to members of the group; … Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; …Imposing measures intended to prevent births within the group; … Forcibly transferring children of the group to another group.” Although, in 2016, the Parliamentary Assembly of the Council of Europe had adopted a resolution stating that ISIS “has perpetrated acts of genocide and other serious crimes punishable under international law” —a view incidentally supported in a letter by 75 Members of your Lordships’ House, including the former chief of staff of our Armed Forces and the former head of MI5—the Home Office refused to accept that a genocide was under way. There was clear evidence that the Yazidi genocide extended to religious minorities, with assassinations of church leaders, mass murders, torture, kidnapping of women, forcible conversion, the destruction of churches, monasteries, cemeteries and religious artefacts, and thefts of land and wealth from clergy and laity alike. ISIS made public statements taking credit for the mass murder of the Christians and Yazidis and expressing its intent to eliminate these minority communities and other groups such as homosexuals from its territory The government response was the usual one designed to avoid the duties set out in the 1948 convention: “It is a long-standing government policy that any judgements on whether genocide has occurred are a matter for the international judicial system rather than Governments or other non-judicial bodies.” This continues to be a frustrating and circular argument. In 2016, a Foreign Office Minister told the House: “We are not submitting any evidence of possible genocide against Yezidis and Christians to international courts, nor have we been asked to.” As for referring the matter to the International Criminal Court, we were told: “I understand that, as the matter stands, Fatou Bensouda, the chief prosecutor, has determined not to take these matters forward.”—[Official Report, 16/12/15; col. 2146.] No one was willing to name this genocide for what it is or take forward the necessary responses As recently as this morning, in a debate in Westminster Hall in another place, Brendan O’Hara and members of the All-Party Group on the Yazidis raised these very issues and the continuing the atrocities that occur against the Yazidis. It has taken up until November of last year for a court—in this case, a German one, in Frankfurt—to convict one of those responsible for the crime of genocide. The UK still refuses to do the same. That member of ISIS was jailed for life, in November, for buying a five year-old Yazidi girl as a slave and then chaining her up in the hot sun, where she burnt to death Since our debate in 2016, I have pursued this circular argument in amendments to the Trade Act, the telecommunications Act, the Health and Care Bill and this Home Office Bill. I admit to having been deeply affected by visiting northern Iraq and taking first-hand accounts from Yazidi, Assyrian and Chaldean Christian survivors in 2019 A United Nations report stated that ISIS held 3,500 slaves hostage, mainly women and children, and had committed acts that “amount to war crimes, crimes against humanity and possibly genocide.” Murder has been accompanied by other horrors. An estimated 5,000 young Yazidi women and girls were abducted by ISIS, suffering horrific and prolonged sexual abuse. They were imprisoned for months on end, beaten, burnt and exposed to daily rape and torture. Horrifyingly, some of those victims were as young as nine. Sadly, some girls took their own lives in desperate attempts to escape the horrors of captivity Despite all this, we have failed to create a safe or legal route to enable safe passage for those who were so grievously at risk. At the time, the Weidenfeld fund, Mercury One and Operation Safe Havens said they were able to process asylum applications and do the necessary security clearances to a higher standard than the UNHCR and in a matter of weeks. Lord Weidenfeld’s decision to create a special fund to assist endangered minorities at risk of genocide should have inspired us all to do more, but it did not My noble and learned friend Lord Hope of Craighead advised us on the formulation of Amendment 119B, and we have followed his advice. It would ask a judge of the High Court of England and Wales to examine the evidence and make a determination. It would provide a process and duty to act. It would then ensure that victims of genocide were given priority in asylum applications. This is not about numbers, nor about those who threaten the security and ideals for which this country stands. Many suffer, but this is about those who have been singled out and our duty under the genocide convention to protect them It is worth recalling that in 2016 the noble Lord, Lord Forsyth, said to the then Minister, “I say to my noble friend the Minister: throw away the brief from the Home Office and go back to the department and tell it what has been said this evening. I am certain that, despite the media coverage and the information that is available, people in this country have no idea of the extent of the horrors that are being perpetrated”.—[Official Report, 3/2/16; col. 1894.] That rather echoes what the noble Lord, Lord Dubs, said a few moments ago about the true attitudes of people in this country. That amendment was supported by people such as the noble Lords, Lord Marlesford, Lord Dubs and Lord Wigley, the late Lord Judd, the noble Baroness, Lady Hamwee, and others. But despite the promise in 2016 of further thought, and a subsequent vote in the House of Commons declaring events against those minorities in northern Iraq to be a genocide, here we are five years later still failing to define when a genocide is under way and conveniently avoiding our responsibility to act under the terms of the convention. That convention was so brilliantly crafted by Raphael Lemkin, the Polish-Jewish lawyer who coined the word genocide and saw more than 40 of his own family killed during the Holocaust We now need a different approach to give a chance to the communities facing annihilation. Closing the door to them should not be an option. The Bill offers us an opportunity to create a safe and legal route for victims of genocide. By way of example, in January this year I asked the Government “what plans they have to create a bespoke humanitarian visa scheme for Uyghurs”, another ethno-religious community facing annihilation, this time in Xinjiang in China—but they also live in other places. The response to this Question can be described only as negligent. I was told: “While we sympathise with the many people facing difficult situations around the world, we have no plans to introduce a bespoke humanitarian visa scheme for Uyghurs.” However, there is a small glimmer of hope in that Uighurs from Afghanistan may be considered for resettlement under the Afghan citizens resettlement scheme as religious minorities at particular risk. The amendment could logically build on that On the downside, that resettlement route is unlikely to be even considered before 2023. If a person is facing an existential threat—a phrase used earlier by the noble Lord, Lord Kirkhope—whether in Afghanistan or at risk of being repatriated to China, where they would face existential threats with the rest of the Uighur community, is it reasonable to expect them to wait more than a year for their case to be considered?
My Lords, I am sure this was not at the top of his list, but the noble Lord, Lord Alton, has reminded us of the role of the arts in this area. Artists, playwrights and others could express better than the rest of us what they feel, and audiences could perhaps get a wider and deeper understanding of the issues involved. The area of arts and culture is hugely important in this Earlier this evening the noble Lord, Lord Wolfson, said that we will continue to grant humanitarian protection, and Amendment 118 seeks to extend that to a humanitarian visa. I will explain it as quickly as I can, because what is most important is that we hear what the Minister has to say. If it is a “Sorry, no”, we need to understand why. I express my gratitude to Garden Court Chambers for drafting this amendment, which spells out the requirements and the process The amendment seeks to provide an exceptional route by which a person abroad—not in this country—can obtain a visa to come to the UK to seek asylum. At the moment, it is generally not possible to claim asylum in the UK unless one is already here. This visa could be applied for from anywhere in the world. The person would have to show that, if made in the UK, the claim “would have a realistic prospect of success”, and also that “there are serious and compelling reasons why” it should be considered in the UK. In assessing that, the entry clearance officer would take into account the extent of the risk of persecution or serious harm—persecution having the meaning that it has in the UN refugee convention, and serious harm meaning treatment that, if it occurred in the UK, would be contrary to Article 2, the right to life, or Article 3, the prohibition of torture and inhuman or degrading treatment or punishment, of the European Convention on Human Rights If a humanitarian visa is granted, the person will be granted a visa—I stress that—of at least six months’ duration. The Home Secretary could set conditions such as restricting access to work. On coming to the UK, the person will be deemed to have made an asylum claim and will go through the normal asylum process like any other asylum seeker, so the normal processes would not be sidestepped. There would be a full right of appeal, which is Amendment 119 I have written down the words “Controlled and organised process”. Those working in the sector have long advocated humanitarian visas, which would be one of a suite of safe and legal routes. The humanitarian visa route would not be something that many could take advantage of, but it is significant and structured I will leave that there; as I say, the Minister’s response is more important tonight. However, on Amendment 119A, I will say that I was not surprised to see it. The noble Baroness, Lady Kennedy, never misses an opportunity to buttonhole someone who might assist the women judges, other lawyers and others in Afghanistan. What she is seeking is only temporary, in the same way as a humanitarian visa would be. It is one thing to get people out of the country when they are at risk—she has had the most extraordinary success—but it is another to find somewhere for them to go.
I will not repeat myself—well, I am going to repeat myself just briefly. If the Government saw refugees as human beings, they would already have written these amendments into the Bill. We are pushing at a closed door at the moment. We should be taking more refugees and creating more safe routes I have a word of warning, which is that there will be many climate—ecological—emergencies over the next decade or so and, given that we have contributed a large part of the world’s accumulated CO2 emissions, we have to understand that we have a moral duty to take our share of climate refugees. It is already happening. There are parts of Africa that are now almost uninhabitable because of climate change, and other places will shortly follow. We have to understand that refugees are not a temporary problem but a permanent problem, and there will be a lot more. If we prepare well and put the programmes and the funding in place, we can cope and do it well. However, while the Government treat refugees as criminals and unwanted people, I am afraid that I see this simply as another reason why the Government have to go.
I think the noble Baroness’s warning is very well taken I support Amendments 118, 119A and 119B, but I want particularly to speak in favour of Amendment 116 in the name of the noble Lord, Lord Kirkhope. The noble Lord and I have done business together for a long time—the past is another country, and it was in fact in another country—and it is a pleasure to be supporting his amendment. I should also say that I am very grateful to the Minister for the letter that she wrote to the noble Lord, Lord Dubs, with a number of useful factual points in it. I am very grateful for my copy today It seems to me that the amendment raises two questions: why should one set a number, and why 10,000? Why should one set a number? I am a trustee of the Refugee Council and I have spent some time trying to work out why so many of the Afghan refugees who came here last summer are still in temporary bridging accommodation. I have not quite got to the bottom of it, but it seems to me that the problem is not ill will or lack of intention. I do not criticise the Government. It is a problem with local authorities that arises from the squeeze on their budgets and lack of certainty over financing. The attraction of setting a minimum number is the certainty of having a number in the public expenditure survey—a number negotiated with the Treasury. The Treasury would need to ensure that local authorities were equipped with the money to pay for at least that level There seems to be no shortage of willingness in local authorities; it is a shortage of funding in local authorities. When you look at the huge number of local authorities—nearly 300—which came in under the Syrian refugee scheme, it seems to me that what is needed is the certainty that enables one to plan ahead for financing and finding accommodation. So I think setting a number is a good idea and I support the noble Lord, Lord Kirkhope, for that reason Is 10,000 the right number? There are 28 million refugees in the world; it does not seem a very high number. Canada is taking 35,000 Afghans in this calendar year. The population of Canada is just over half the population of the United Kingdom. Comparing us with Europeans, we are number 21 out of 42—bang in the middle of the pack. With our tradition of a presence around the world, that seems to be quite low On the other hand, it is probably more than the hotchpotch of present schemes will bring in. It probably would be an increase, but I cannot say for sure because, as the Minister says in the enclosure to her letter today, rather surprisingly, 11 months in, it is still too soon to produce any statistics on how many people are coming in under the resettlement scheme that started in March last year. We do not know how many we are taking now, so we do not know whether this would be an increase. I suspect it would be, but I suspect that overall refugee numbers coming to this country would drop over time. I think this is the answer to the channel problem; 26,000 people came across the channel last year. If there were safe routes—and here is a safe, reliable route—fewer people would try to come unofficially. Fewer people would get killed trying to come into the country So I think that, although the number of official refugees would probably go up if we set a 10,000 minimum, the total number of refugees coming here would probably go down. I cannot prove it but that is my instinct. It seems to me that so strong is the incentive to find safe routes that this is a very good way of going about it, so I support the amendment.
My Lords, I will speak extremely briefly in support of Amendment 116, which for more than 300 refugee organisations is apparently one of their two top priorities in terms of amendments to the Bill. I think it is really important, actually. We have heard powerful arguments for a whole lot of important amendments, but I think the Minister and the Government need to take seriously the views of more than 300 refugee organisations The Government have argued that people in need of protection should come to the UK via safe routes, but these organisations tell me that only 1,000 people came through these schemes last year. Does the Minister agree that that figure is unacceptably low and needs to grow substantially, as the noble Lord, Lord Kerr, has just said, if we are to reduce the number of desperate people risking their lives to cross the channel in small boats? I believe that the noble Lord, Lord Kerr, is absolutely right: this is the way to achieve that objective One of the strongest arguments for a resettlement target, as expressed by the noble Lord, Lord Kirkhope of Harrogate, is that only five families per local authority would achieve that target. With a little funding from the centre, at least, that seems incredibly straightforward. Does the Minister agree that this is a realistic target and that the certainty that this would provide for local authorities is absolutely crucial?
My Lords, I am pleased to support Amendment 115, in the name of the noble Lord, Lord Dubs, which I have co-signed. Of course, it aims to provide a safe route for unaccompanied children from countries in Europe and broadly reproduces what we all know as the Dubs amendment to the Immigration Act 2016. There have been warm words, deservedly, about the role and record of the noble Lord, Lord Dubs; what better way to put that into something concrete than for the Government to accept Amendment 115 I support all the amendments in this group, but I will just speak in support of Amendment 116, in the name of a noble quartet of Conservative Peers, which would provide for “at least 10,000” refugees to be resettled annually. The noble Lord, Lord Kerr, has discussed the ins and outs of that figure, but it is better than 1,000 a year, which we hear was the low achievement last year. This figure happens to be Liberal Democrat policy, so I very much agree that it is a moderate and sensible amendment. As I say, I support all of the other amendments in the group.
My Lords, I am not sure that I should support a Liberal Democrat policy this evening; none the less, I agree with what the noble Lord, Lord Kerr, said about the importance of targets. I am sure that one of the reasons that local authorities are reluctant to accept more people is the uncertainty that they have at the moment. They genuinely have a shortage but, inevitably, they hold back when they do not know exactly how many are expected I have long argued for targets in this area; I think they are an important part of it precisely because you need sensible planning, frankly, and this could be a way forward. Whatever the numbers may be, we ought to have a proper debate each year on refugees, asylum seekers and immigration as a whole, in which the Government’s plans are set out and we can all make a contribution, in the Commons as well as here, and decide what should be the targets for the following year. This would give everyone, including local authorities, some confidence and certainty about what they are expected to do I am afraid I do not think that that will actually reduce the numbers of people coming across the channel—I am sorry to disagree with the noble Lord, Lord Kerr, on this point—for the reasons that I spelled out previously. Demand is so great that people would still try to cross the channel, even if we expanded the number, for certainty, of people coming across under safe schemes. None the less, the idea of having transparency and target setting is very valuable.
I will try to edit my speech as I go. I support Amendment 118, to which I was pleased to add my name. We all agree that we do not want unsafe journeys, and there is no silver bullet: the situation is complex. If a deterrent was really the answer, securitising the Eurotunnel and the ferry ports has not worked; it has just created even more dangerous routes. So we must have more safe and legal routes The major reason I support the idea of a humanitarian visa is that it is a further safe and legal route. It also addresses the issue of people coming from the countries where there are smaller numbers who face persecution and so on, for whom bespoke schemes are never going to be created. Last year, only 93 people arrived from Iraq, five from Yemen, none from Iran and 36 from Sudan. That is all those who were resettled last year. The focus became so heavy last year on Afghanistan and Hong Kong, through the BNO scheme, that all other refugees appeared to be forgotten, so we need this kind of visa. I hope the Minister will not pick holes in the way the amendment is worded because the point is that this kind of visa needs to be looked at I also speak in favour of Amendment 116—it is very nice to speak with the noble Lord, Lord Horam, on one occasion. During the Syrian crisis of 2015, a target was set of 20,000 and it helped galvanise everybody with a vision of what could be done. It helped local authorities to understand what kind of numbers they might expect and so on. We also saw through that process the creation of the community sponsorship scheme, so we came up with a new thing through a targeted number. Ten thousand is a number widely supported, as the noble Baroness, Lady Meacher, noted, by huge numbers of refugee organisations because the UNHCR has identified that it is, roughly speaking, our fair share across the world. It is not a number plucked out of thin air but from looking at our fair share across the globe. I hope that we will hear positively the idea that it can happily include the Afghan citizens resettlement scheme. I shall stop there because we need to keep moving.
My Lords, this is the safe-route group and I associate myself with so much of what I have heard already, although I signed the amendments in the names of my noble friend Lord Dubs and the noble Baroness, Lady Kennedy of The Shaws, who is absent. We have heard already about the many ways in which the Government try to have it both ways in the Bill. On a previous group, we heard from the Minister how, for example, European precedent is to be hugged if it is deleterious to the refugee but shunned if it means co-operation and burden-sharing. We have understood that the Government, essentially, want to make it harder with the Bill to get here but if you manage to get here, it will be harder to qualify for protection because we are rewriting the convention The Government tell us that they do not want people coming via unsafe routes, in little boats and so on, yet they do not provide adequate safe routes—or maybe they do, but if so they do not want it to be in statute because while it is important to fetter judicial discretion in statute, Home Office largesse should not be similarly constrained, structured or put in law. This group deals with the final two contradictions in particular: providing the safe routes and putting them in statute. For those two reasons I really hope that the Minister, who I know to be a compassionate and logical person, will see the need for something in statute to go with sentiment about safe routes.
My Lords, I speak in support of Amendment 116 in the name of my noble friend Lord Kirkhope, to which it was a pleasure to add my name. Listening to the noble Lord, Lord Alton, I was persuaded by his arguments as well on Amendment 119B. I too shall edit along the way, given the speeches already made As we debated last week, I have grave concerns about the creation of a two-tiered refugee system but was encouraged to hear my noble friend the Minister agree that creating a two-tiered system can make sense only if there are adequate and consistent safe and legal routes. As my noble friend set out in the debate last Tuesday and circulated in her note, the Government have taken steps in recent years to create some safe and legal routes, as we have heard, through the refugee family reunion scheme, the Afghan resettlement scheme and the vulnerable persons resettlement scheme I am encouraged that the New Plan for Immigration charts a road map for resettlement, albeit without setting an annual target. It states: “The UK’s commitment to resettling refugees will continue to be a multi-year commitment with numbers subject to ongoing review guided by circumstances and capacity at any given time.” It also confirms the Government’s objectives that “programmes are responsive to emerging international crises” This amendment is not intended to say that there are currently no safe and legal routes; we have heard that there are some. Instead, it pushes for greater consistency in our approach to ensure that there are pathways for the most volatile situations in the world. If we want to be responsive to emerging international crises, we need the infrastructure in place to do so, as the noble Lord, Lord Kerr, pointed out One of our greatest challenges for Afghan arrivals has been that we do not have the capacity or infrastructure to take such a big influx so quickly. This is largely because we do not have that infrastructure for welcome and integration in place. The success of the Canadian approach to refugee resettlement lies in its consistency. There is strong integration infrastructure, well-resourced civil society groups and genuine expertise in local authorities. This is why the Government setting a baseline target of the number of refugees who will be resettled by safe and legal routes could help to build and maintain the infrastructure that is required If the response to Afghanistan proves one thing, it is that we need to guarantee consistency to both the local authorities and civil society groups which do so much to ensure smooth transitions for asylum seekers. A predictable but flexible global resettlement model in which the Government retain control over how many places are allocated enables the Home Office to react swiftly to international refugee crises in a co-ordinated fashion with local authorities to scale provision in line with demand if required My noble friend the Minister will observe that the four named supporters of this amendment sit on the Conservative Benches. This is not because other Members of this House were not supportive, but because the strength of support on the Conservative Benches meant that we got there first. A basic target of 10,000 would ensure that every year we are joining the international community in what needs to be a global response and ensures the Government can say with integrity that it is not only firm, but fair.
My Lords, this is another group of positive measures that are intended to provide an antidote to the other measures in this Bill. As the noble Lord, Lord Dubs, explained, Amendment 115 would be akin to a replacement for the Dubs scheme that provided a safe route for unaccompanied children from countries in Europe to come to the UK Amendment 116, as we have heard, sets a minimum target for the number of refugees resettled in the UK of 10,000. There appears to be some logic and reasoning behind that. A number of organisations have suggested that number. We discussed before in Committee how an agreed number of refugees accepted by the UK each year could be arrived at, taking into account such matters as the number of claims per 10,000 population compared with other European countries. As the noble Lord, Lord Kerr, said, we are in the middle of the pack as far as Europe is concerned, at the moment We agree and, as my noble friend Lady Ludford said, the 10,000 number happens to be Lib Dem policy as well. Of course, that could be flexible on the basis of the capacity of the country to take refugees and the number of refugees being taken by our allies. It is a global problem that requires the UK to play its part, along with other countries both inside and outside Europe, one also addressed by Amendment 119E in the name of the noble Lord, Lord Rosser, which seeks to provide a statutory general UK resettlement scheme I have spoken before about the Government’s ambition to “break the business model of the people smugglers” and how the unintended consequences of the measures in this Bill are reinforcing that business model, making it more and more difficult for genuine asylum seekers to get to the UK without people smugglers’ help. Amendment 118 is a way to seriously damage the people smugglers’ business model. As my noble friend Lady Hamwee said, the amendment seeks to pre-screen would-be UK asylum claimants and allow those with a realistic prospect of success, and who have serious and compelling reasons for coming to the United Kingdom, to come to make a claim for asylum and remain temporarily while their claim is considered.
My Lords, our Amendment 119E, seeks to put a global resettlement scheme on a statutory footing. In that sense, it is very similar to the new Dubs scheme, if I can call it that, for unaccompanied children. I also speak to Amendment 116, which was tabled by the noble Lord, Lord Kirkhope of Harrogate The Government’s stated intention through this Bill is to prevent people risking their lives taking dangerous journeys to the UK, but instead of talking about differential treatment, inadmissible claims, pushbacks, offshoring, reinterpreting the convention and other measures, we should be talking about safe and legal routes. If a person fleeing conflict, torture and persecution has a safe route by which to get here, they will take it. If they do not, they will take other, dangerous routes. Suggesting that other measures have or may have any deterrent effect is frankly not an answer when there is no international evidence, and the Home Office has recognised that asylum seekers often have no choice in how they travel and face exploitation by organised crime groups. If the Government want people to travel here by safe, alternative routes and break the business model of the people smugglers, their efforts need to be focused on providing those routes, which the three amendments I refer to do I will concentrate the rest of my remarks, which will be brief, on resettlement schemes. The argument for the Dubs scheme has been made before and was made very powerfully again tonight by my noble friend Lord Dubs. Initially, the Dubs scheme, passed into law by a Conservative Government, was envisaged to take 3,000 unaccompanied children who had fled unimaginable horrors and were travelling or in refugee camps on their own. It has been said tonight that, in reality, the scheme was capped at 480 children, and fewer children were actually resettled before the scheme was closed down. Where is the Government’s commitment to taking unaccompanied children who are in desperate need of safety? Does the Minister accept that, without this route, some children will have turned, and will continue to turn, to people smugglers instead Our earlier Amendment 114, Amendment 116 tabled by the noble Lord, Lord Kirkhope of Harrogate, and my Amendment 119E all deal with a global resettlement scheme. Amendment 119E seeks to put the UK resettlement scheme on a statutory footing and would require the Secretary of State to report annually to Parliament on the operation of the scheme and the number of people resettled under it. For now, it does not include a target, unlike Amendment 116. As the Opposition, we have raised concerns that the 5,000 people due to be resettled under the Afghan resettlement scheme may not be enough of a commitment in response to that crisis So there are questions about how a target would be designed, but the aim is the same as Amendment 116. It is, first, to create an active global resettlement scheme that can respond flexibly and at speed to needs, as they emerge; and, secondly, to ensure some kind of mechanism to hold the Government to account. This is to ensure the scheme is actually resettling people at the rates and numbers expected and is not simply announced in a press release then left to lie dormant or underperform Announcing the UK resettlement scheme, which was launched after the closure of the Syrian scheme, the then Home Secretary confirmed that “the UK plans to resettle in the region of 5,000 of the world’s most vulnerable refugees in the first year of the new scheme” Since that announcement, as I understand it, the scheme has settled less than a fifth of that number each year, with an annual average of 770 people. How do the Government expect the other 4,230 of the world’s most vulnerable refugees each year to travel here? Do they expect them to go elsewhere or not go at all If we share the aim of ensuring people who are fleeing the worst can do so safely—and I am sure everyone in this House does—we need to work together to provide a reliable, active, responsive route to do so. Currently, the Bill is silent on this and, in answer to questions from the Commons, the Government gave no details about their plans. I hope the Minister is able to give more detail tonight The Government should, in this Bill or alongside it, commit to an expanded proactive resettlement route. The mechanism for doing that is provided in both Amendments 116 and 119E.
My Lords, I thank everyone who has taken part in what has been quite a full debate. Amendment 115 seeks to introduce a safe route for unaccompanied children from countries in Europe to come to the UK. We all want to stop dangerous journeys in small boats and avoid a repeat of the distressing events of 24 November last year in the channel, where 27 people tragically lost their lives. We all know that children were impacted by that event, and I am sure that every noble Lord in this Committee is concerned about vulnerable children. I think we can also agree that European countries are safe countries. Together, EU countries operate the Common European Asylum System, which is a framework of rules and procedures based on the full and inclusive application of the refugee convention. Its aim is to ensure the fair and humane treatment of applicants for international protection. There is no need for an unaccompanied child in a European state who needs protection to make a perilous onward journey to the UK, because that protection is already available to them I therefore argue that these proposed clauses would put vulnerable children in more danger by encouraging them to make dangerous journeys from outside Europe into Europe to seek to benefit from the scheme. They would create a new pull factor, motivating people to again entrust themselves to smugglers. While they might avoid the danger of a small boat, we know that journeys over land—for example, in the back of lorries—can be equally perilous. We cannot and must not do anything that supports the trafficker’s model. I am resolute on that. I know that is not what the noble Lord, Lord Dubs, intends, but it is the reality of this proposed new clause The UK does its fair share for unaccompanied children. According to the latest published statistics, there were 4,070 unaccompanied asylum-seeking children being cared for in England. In 2019, the UK had the most asylum applications from unaccompanied children of all EU+ countries and had the second highest in 2020. The Government met their one-off commitment to transfer 480 unaccompanied asylum-seeking children —we did meet that commitment—from Europe to the UK under Section 67 of the Immigration Act 2016, which is referred to as the Dubs scheme. This is essentially that scheme again in all but name The clause also fails to take into account the reality for unaccompanied children entering the UK domestic system right now. I am very grateful to the many local authorities who have been able to provide support on a voluntary basis to the national transfer scheme, introduced to enable the transfer of unaccompanied asylum-seeking children from one local authority to another, which aims to deliver a fairer distribution of unaccompanied children across the UK. Due to the extremely high intake of unaccompanied children over recent months, particularly as a result of small boat crossings on the south coast, and pressures of entry on local authorities, the national transfer scheme has been unable to keep up with demand. The unprecedented demand resulted in the exceptional decision to accommodate new arrivals of unaccompanied children in hotels to ensure that their immediate safeguarding and welfare needs could be met, pending their transfer to longer-term care placements. It is not ideal and it is not in the interests of those children who are currently waiting in hotels for local authority placements to agree to this clause. We need to prioritise finding long-term placements for those children already in the UK and ensure that we have a sustainable transfer scheme to deliver long-term solutions I must pick up the noble Lord, Lord Dubs, on one point. He talked about 1,500 places being pledged. He will know that, over the years, I have constantly challenged local authorities to come forward to the Home Office if they have places, and those numbers have not been forthcoming. Unfortunately, places pledged to a charity do not necessarily translate into places. His comments do not reflect our experience on the ground, given that we are using hotels for some newly arrived UASCs while urgently seeking care placements. The Government have mandated the national transfer scheme to ensure that we prioritise care placements for those unaccompanied asylum-seeking children who are in the UK Turning to Amendment 116, I understand the desire that Members of this Committee have to establish a minimum number of resettled refugees each year. Our current schemes are non-legislative, operating outside of the Immigration Rules and on a discretionary basis. Operating in this way has seen us resettle over 26,000 vulnerable people since 2015 It is important that we take into account our capacity in the UK to support people, so that we can continue to resettle people safely and provide appropriate access to healthcare, education, housing, et cetera, without adding to the significant pressure that those services are already under. This amendment seeks to bring in a statutory minimum of 10,000 refugees each year within one month of Royal Assent. We already have over 12,000 refugees and people at risk who we are in the process of resettling permanently and integrating into society I turn now to Amendments 118 to 119B. I assure the Committee of my support for the humanitarian intentions behind these proposals and sympathise with the many people across the world who currently face danger and persecution. For resettlement, the UK works according to the humanitarian principles of impartiality and neutrality, which means that we do not take into consideration the ethno-religious origin of people requiring citizenship, as we resettle solely on the basis of need. That is not to in any way decry what the noble Lord, Lord Alton, has said, but we settle on the basis of need, as identified by the UNHCR.
I am very grateful to the Minister for responding to some of the points that I made earlier, but would she accept two things—first, that this is not about people who are vulnerable but about people who are subjected to genocide, and we have legal commitments in international law under the 1948 convention on the crime of genocide? I would be most appreciative if she could take that back to her officials so that we can look at it further. Secondly, I asked her specifically whether she could identify, under the existing arrangements, whether we had taken a single Yazidi or Assyrian from northern Iraq as a consequence of them not being able to enter through the existing routes. I would appreciate it if she could write to me on that.
I will probably refer to my colleagues in the FCDO for further information on that, but I shall certainly take those points back It is important at this stage to take into account our capacity in the UK to support people, as I have said, so that we can continue to resettle people safely and provide that appropriate access to healthcare, et cetera. Sorry, I have just gone back on my speech; I was talking to the noble Lord about the VPRS and the whole issue of genocide. I shall provide further information on all that—but I would add that we cannot support these amendments, which would create an uncapped route, whereby anyone anywhere could make an application to enter the UK for the purposes of making an asylum claim. The UN estimates there to be around 82.4 million displaced persons worldwide. Under these proposals, UK caseworkers, who already have a stretched workload, would be bound to undertake an in-depth examination of hundreds of thousands, if not millions, of individuals’ circumstances to assess the likelihood of their protection claim being granted, as well as seeking to understand factors, including the individual’s mental and physical health, their ties to the UK, and the dangers that they face. This suggestion is totally unworkable I remind my noble friend that the number of people we are able to support through safe and legal routes depends on a big variety of factors, including local authorities’ capacity for supporting refugees. The noble Lord, Lord Kerr, acknowledged that, and acknowledged the extreme stress that they are under. An unlimited, uncontrolled scheme such as that which my noble friend proposes would overwhelm our already very strained asylum system, as well as our justice system, and put significant pressures on to our local authorities Finally, Amendment 119E seeks to bring the UK resettlement scheme into statute and produce a report on refugees resettled through the scheme annually. In a non-legislative way, we have already done resettlement schemes operating outside of the Immigration Rules and on a discretionary basis, providing the flexibility to respond to changing international events. As demonstrated through the VPRS, we have stuck to and exceeded our commitment, and we will continue to build on the success of previous schemes; the numbers resettled annually will depend on a variety of factors. I hope, with that, that the noble Lord, Lord Dubs, will feel happy to withdraw his amendment.
At Second Reading, we were encouraged to come forward with proposals for new routes and so on. We have done so. It is not good enough for the Government to say that we need more safe and legal routes, and then knock down every idea that we present and not present alternatives themselves. Will the Minister undertake to give us some examples on Report of safe and legal routes that the Government will support? She knows what we will do otherwise.
What I encouraged noble Lords to come up with at Second Reading were solutions, not new routes. I have consistently said, and written to noble Lords on this, that we have a number of very good safe and legal routes.
Before the Minister sits down—to use the convention, although I am glad she is resting for a moment—she talked about this group being about uncapped routes and visas, but many, if not most, of these amendments are probing, as she will appreciate. She will also appreciate, because of her experience in the department, that visas do not have to be uncapped. For example, my noble friend Lady Kennedy’s amendment about emergency visas for human rights defenders is probing that the Secretary of State must do something in the rules about human rights defenders; it is not saying that every human rights defender in trouble around the world must be allowed in as if it is a new human rights defenders convention—my noble friend is just probing and asking the Government whether we can do something in the rules or in some kind of statutory form. The Minister has this massive brief, and I sympathise with her. On the police Bill, she has taken special measures for front-line emergency workers to get extra protection—
Will the noble Baroness ask a question? It is getting very late at night; can we please try to focus points? We absolutely accept that we need everyone—
It is always me.
It is genuinely not the noble Baroness, but we also need to work together —please—to get this Bill through. It is an important Bill. All noble Lords absolutely have the right to say what they want, but we also need to get this through. I am sorry, but can we please focus on that? We will let everyone speak, but please be aware of the time and what everyone else needs to be doing tonight.
Why do we need to get the Bill through? Why can we not leave it until after the recess? I do not understand. This is the Government’s problem—they have created this problem for us.
The intervention was on me—
I am sorry; I did not mean it to be about the noble Baroness.
I am sorry, but this is not the first time this has happened. I have been here all through Committee with the Minister. This is the second time the Leader of the House has done this when she has not been here—she has come in and it is beginning to feel a bit personal. I want that on the record. The Minister knows what I am getting at and I do not think she thinks I have been taking up too much time in this Committee this evening.
I am very sorry to the noble Baroness; that was not my intention at all and I am very sorry she feels that way. It is absolutely not the case. All I can say is that we have now reached the time we are at. We must try to make progress; we must all work together to do that. I say on the record that I am very sorry to the noble Baroness—it is nothing to do with her and I am very sorry she feels that way.
There are only five days scheduled in Committee on this Bill. This is by no means the longest Committee stage for a piece of legislation. Perhaps there ought to be a reflection on the Government’s side as to whether they did not seriously underestimate the number of days that were needed for Committee stage.
I will say from these Benches that, if the Government insist on bringing forward such controversial legislation, they cannot expect anything other than a number of noble Lords wanting to speak on these issues. If it were uncontroversial, noble Lords would not be queuing up to speak on the Bill. This is why we are in this situation, and we need more time so that we can adequately scrutinise this very controversial Bill.
My Lords, I am grateful to all Members who have contributed to the debate and to the Minister for her stamina in continuing and continuing. I am sure she will go on until the early hours with great strength I will comment very briefly, as is my right. First, we had a very unusual thing happen tonight—
I am sorry to the noble Lord, Lord Dubs, but I should respond to the noble Baroness, Lady Chakrabarti, because I think he is about to wind up. We have generally done specific schemes for specific purposes and in responding to specific crises. We have the VPRS, the VCRS, the UK resettlement scheme and the ARAP scheme, and we will be doing the ACRS. They have all been non-statutory and I was trying to explain that we will be continuing in that vein for specific purposes, so that we can accommodate the most vulnerable. I hope that partly answers her question.
I had already begun saying my thanks and praising the Minister for her stamina. I will comment very briefly that something amazing has happened this evening. Amendment 116, in the name of four Conversative Members of the Committee, is much more radical than anything produced by the Cross-Benchers, the Lib Dems, the Greens, the Labour Party or the Bishops’ Bench. It is amazing and I wonder what is happening to the Conservative Party here. I welcome Amendment 116 I will comment very briefly on my Amendment 115. It very clearly says, “in consultation with local authorities”. There is no number set and no obligation, other than to consult with local authorities and set the number accordingly. Of course, I welcome the national transfer scheme. It should not be instead of the principles in Amendment 115, but it is very important that not all the pressure is on Kent and Croydon. Lastly, the Minister mentioned the large number coming in lorries across the channel, but the figures will show—I am sorry that I do not have the full figures here—that, in recent years, the number coming in the back of lorries has been higher, but they have been replaced by the ones coming on boats. The total numbers are actually fewer, even though the ones in boats are more obvious I again thank Members of the Committee for the part they played in this debate, and I beg leave to withdraw my amendment.
My Lords, Amendments 119C and 119D propose a code of practice for professionals involved in the assessment and care of people seeking asylum. Refugees and asylum seekers often have complex health needs influenced by experiences prior to leaving their home country, during transit or after arrival in the UK. Common examples include untreated communicable diseases, accidental injuries, hypothermia, malnutrition, poor maternity care and inadequately treated mental illness. These are made worse by the barriers to assessment and treatment that they face right from their arrival in the UK to the conclusion of the process and beyond. One common risk factor for poor health and well-being among this community is trauma. This may be the very trauma that they are fleeing from, the trauma of the journey or the psychological distress of overcrowding, the lack of privacy and the absence of culturally appropriate community support upon their arrival The World Health Organization reports double the rate of depression and anxiety in a humanitarian crisis; that is worth noting. Mental illness can influence the ability of asylum seekers to present their claims in a coherent way. The assessment of credibility is a fundamental aspect of the asylum decision-making process, and the decision-making immigration officer needs information to make their decision but they may be faced with a person with symptoms associated with a mental disorder and the psychological effects of trauma, such as memory loss, an inability to express or even feel emotions or profound guilt and shame at what they have experienced. Such trauma, which disproportionately affects women, may also lead to a reluctance or delay in disclosure that can negatively affect the application, as already highlighted in Amendment 40, moved by the noble Baroness, Lady Lister of Burtersett The current government policy, as set out in the guidance on adults at risk in immigration detention, centres on indicators of vulnerability, including persons suffering from a mental health condition or impairment; victims of torture; those who have been a victim of sexual or gender-based violence; those who have been a victim of human trafficking or modern slavery; and those suffering from post-traumatic stress disorder Once a person has been identified as having an indicator of risk, the “adults at risk” policy identifies levels of evidence for that risk. The level of evidence is used as a measure of the degree of risk, which is then weighed against a range of immigration factors when making decisions regarding the immigration process, particularly the detention of the person. However, the Royal College of Psychiatrists has raised concerns that people with significant mental illness may have difficulty in being effective self-advocates or may lack a full appreciation of the extent of their own vulnerability. They may lack the mental capacity to make decisions relating to their immigration situation. Many do not have access to a robust assessment process or, if identified as lacking relevant capacity, to a system designed to safeguard them or advocate for them in their best interest The Helen Bamber Foundation says that in its experience persons with significant mental illness, as well as those with evidence of past torture, sexual gender-based violence and those with PTSD, are being detained despite their mental-health-related vulnerability. The assessment and identification of mental health problems requires appropriately trained staff in a facilitative environment as well as close multidisciplinary working For some, the treatment of mental illness will require specialist trauma-focused therapeutic support. I am told that this is not happening in existing facilities, such as Napier Barracks. It is intended that through these amendments the mental health, mental capacity and physical health of asylum seekers would be assessed and considered properly on arrival and throughout the asylum claim processes, and that the treatment and care of asylum seekers would be sufficient to ensure their health and well-being by standardising and regulating a process that would apply to numerous agencies, public, independent and third sector The Secretary of State said in the other place that the Bill will increase the fairness of our system so we can better protect those who are in genuine need of asylum and continue to strengthen our proud record of supporting those in need. The amendments seek to support the Government in achieving just that. I beg to move.
My Lords, my name is on this amendment. The noble Baroness, Lady Hollins, knows whereof she speaks, so I shall not attempt to do more than support her. To me, this is a matter of professional judgment, which she has brought, but also of common sense. What I hope is my common sense has been informed by what I have heard over quite some years, including, very significantly, in the debate that we had last week. It is clear that in the UK—it may in this context be England and Wales—the systems, if they can be called systems, for assessing the health needs of asylum seekers are patchy and often inadequate It is also common sense that assessment should start from a solid, informed base, incorporating the best, up-to-date understanding and experience, so a review is important. So is consultation with those who are expert in the field. I support the amendments.
My Lords, I support these amendments, to which I was pleased to add my name. I thank the Royal College of Psychiatrists and the Helen Bamber Foundation for their help Many of us have already highlighted how provisions in this Bill will seriously harm the mental and physical health of people seeking asylum, through, for example, leaving group 2 refugees living in limbo with uncertain status or by placing people in vulnerable circumstances in accommodation centres that function as quasi-detention and have been shown to have a terrible impact on health The amendments are a positive step that aims to ensure that the physical and mental health needs of people seeking asylum are prioritised and that there is a comprehensive, co-ordinated approach to addressing those needs in line with our obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966 to “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. Numerous reports and work by organisations such as the Helen Bamber Foundation, Freedom from Torture, the Royal College of Psychiatrists and the Equality and Human Rights Commission show that people seeking asylum face barriers in accessing services, including health services, throughout the asylum process, from their arrival in the UK to the conclusion of the process and beyond. They are also more likely to have specific healthcare needs caused by distressing experiences in their country of origin and traumatic experience during their journey seeking refuge As the noble Baroness, Lady Hollins, explained, there are numerous points in the asylum system where the physical and mental health of people seeking protection affects their ability to engage in the process or is worsened by the system we have in place. One particularly troubling example is the detention system, which the noble Baroness has talked about and is the subject of a later group of amendments—I shall scrub what I was going to say about that, given the lateness of the hour I am aware that the Home Office is currently engaging with the NHS, NGOs and other stakeholders through groups like its asylum seeker health steering group and associated subgroups. This is welcome, but much more is needed. The current guidance is inadequate and its implementation patchy. Codes of practice focused on the health and care of people seeking asylum and the responsibilities of all those engaging with them in the asylum system would not only increase the fairness and efficiency of the system but provide better protection and support to those in need of asylum I hope that the Minister will look kindly on these amendments, which I think are part of the solution.
My Lords, I rise with great pleasure in following the three noble Baronesses who have proposed this amendment Outside Yarl’s Wood detention centre, at the “Set Her Free” protest, I listened to some incredibly powerful and moving speeches from women who had been detained in that centre and had then come back to protest. They spoke about what the experience was like and what they had been through. They showed huge bravery. We talk a lot about trauma in your Lordships’ House; you could hear the trauma in those women’s voices I see that the noble Baroness the Minister will not be answering this question, and I do not necessarily expect her to remember this, but in June 2020 when I was still a new Member of your Lordships’ House, she was kind enough to have a one-on-one call with me after I went with the South Yorkshire Migration and Asylum Action Group to Urban House in Wakefield, where the conditions were absolutely dreadful. We saw SYMAAG trying to pick up the pieces after the failure of government services to meet the most basic provisions That is why I want to make this particular point: much of the provision covered by the noble Baroness’s amendment is currently being filled, patchily and inadequately but desperately bravely and with huge effort, by voluntary groups such as SYMAAG, as well as many others like them around the country. They cannot possibly do an adequate job, but they do an amazing job. The point I want to make to the Minister is that, with adequate government provision, those groups could do so many other positive things to build communities and be an active growth force instead of just trying to plug the Government’s gaps There is a real long-term cost. If we look at the financial cost of the lack of provision that this amendment provides for, the long-term cost is far greater than the cost of providing care for desperate people who are in our society and are our responsibility.
My Lords, as the noble Baroness, Lady Hollins, explained, these amendments seek to ensure that the mental and medical needs of asylum seekers are addressed. They would require the Secretary of State to issue codes of practice to ensure that “the United Kingdom’s obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights 1966” are fulfilled in relation to asylum seekers Whether their claims are deemed to have merit or not, asylum seekers are entitled to be looked after while they are in the United Kingdom. For the reasons that the noble Baroness explained, they are likely to be more vulnerable and in need of greater care than the general population. God forbid we engage in offshoring —either exporting refugees to a third country while they application for asylum in the UK is considered or, even worse, doing so for them to pursue their asylum claim in that country. That should not absolve the United Kingdom of its obligations under the 1966 covenant. We support these amendments.
The two amendments in the name of the noble Baroness, Lady Hollins, would require the Secretary of State, first, to lay before Parliament codes of practice providing for guidance to assess the mental and physical health needs of any asylum seeker; and, secondly, to consult before preparing those codes Article 12 of the International Covenant on Economic, Social and Cultural Rights, to which reference has been made, provides that states recognise “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” I am sure that the Committee is grateful to the noble Baroness, Lady Hollins, for the opportunity to have this debate because the trauma experienced by people who have suffered violence, persecution, forced displacement and separation from loved ones has been a focal point of our debates on many clauses in this Bill. Recent experience has shown, to put it bluntly, a distinct failure by the Home Office to screen or properly care for the physical and mental health of people who arrive to seek asylum The figures showed, I think, that one in five people placed in Napier barracks had to be transferred out owing to vulnerabilities that the department should have screened for and responded to; these included people who had been trafficked and tortured. The Independent Chief Inspector of Borders and Immigration said: “There was inadequate support for people who had self-harmed.”
My Lords, I thank all noble Lords who have taken part in this brief debate. I thank the noble Baroness, Lady Hollins, for her amendments, which would insert two new clauses concerning the introduction of codes of practice to underpin the Secretary of State’s approach to identifying physical and mental health needs in the asylum system. It may assist if I clarify why the Government believe that these amendments are unnecessary Asylum seekers are already entitled to access medical services, including those related to mental health, that are provided by the NHS, in the same way as British citizens and other permanent residents. The Home Office provides accommodation and subsistence support to all asylum seekers who would otherwise be destitute, but medical services—including those related to mental health and trauma—medical assessment and treatment are provided by the NHS. At every stage in the process, from initial arrival to screening, and to the substantive asylum interview, our approach is to ensure that the healthcare needs and vulnerabilities of asylum seekers are identified and taken into consideration where it is appropriate to do so. We ask a broad range of questions —in answer to the noble Lord, Lord Rosser—in the screening interview to establish a claimant’s needs, including any vulnerabilities or well-being needs. Claimants have signposted to them additional sources of support and advice as appropriate. Where any safeguarding concerns are identified, the Asylum Safeguarding Hub will look to make referrals to relevant bodies and signpost relevant organisations to the claimant As I say, where needs are identified we ensure that there is access to professional care, and assessments are conducted by professionally trained healthcare providers. While the Home Office clearly considers it vital to safeguard all aspects of asylum seekers’ health, the responsibility for assessing health issues rests with the statutory agencies of the NHS and social services. Therefore, we do not believe there is any need for further regulation in this area. Asylum seekers have every opportunity for their needs to be identified. The standard of care they would receive as a result of those needs is identical to that received by a British citizen—we should all, at this point, pay tribute to the work of the NHS. Therefore, I ask the noble Baroness, Lady Hollins, to withdraw her amendment.
Before the noble Baroness responds, it may be that this amendment could be worded to put more emphasis on the guidance of those who come into contact with asylum seekers, rather than just assessment. Does the Minister accept that this is a very specialised area? Without for a moment being critical of the NHS, I suggest that that specialism needs to be recognised and learning from it made available to those who come into contact with the cohort we are discussing.
My Lords, I cut my speech rather, because of the time, and I feel that maybe I did not manage to explain adequately. These are people with complex health needs. They are not just like any other patient in the NHS. They have had very difficult experiences and have difficult mental health needs. It is difficult for them to try to explain about their trauma to the first interpreter or the first person assessing them that they meet. This is something where it often takes years for people to trust sufficiently to be able to explain the impact on their situation, their circumstances, and their life chances. This is not just having an assessment and a conversation. It is about building a relationship of trust when people have experienced the most terrible circumstances. That is the difficulty I will give one quick example. One still very troubled lady, whose asylum claim was successful, described her claim and subsequent requests for ongoing support as “seriously retraumatising”. The paperwork that she received was confusing and negative in tone, with any success hidden somewhere in the small print. She asked, “Why do they do that to me? Why can’t they communicate with me? Why should I struggle so much? I feel like I’ve been through another fight”. This lady feels like giving up, despite the fact that her claim was eventually successful These amendments seek to see people treated fairly, compassionately and with more skill and understanding, so that they have the best hope of healing and settling in the UK. I thank noble Lords who have supported these amendments. I hope that the Minister will think again and accept the spirit of what I have proposed; otherwise, I and others will bring these amendments back on Report I beg leave to withdraw my amendment.
My Lords, if Amendment 120 is agreed, I cannot call Amendment 121 because of pre-emption Amendment 120
My Lords, the effect of Clause 39 is to criminalise the act of seeking asylum in the UK, even if the person has no option but to flee. Clause 39 makes arriving in the UK without leave, without ever actually entering the UK, a criminal offence. I am therefore moving Amendment 120, with the invitation of the noble Lord, Lord Dubs, which would remove the relevant part of Clause 39 I note that whereas a person violating Clause 39 could get a sentence of four years in prison, I recently saw in the media a case of modern slavery which attracted a suspended sentence. So having the temerity to arrive to claim asylum is considered multiple times more serious than enslaving and exploiting someone Clause 39 criminalising arrival would cover people intercepted in UK territorial waters and brought into the UK, and presenting themselves to an immigration official to claim asylum. They would arrive, even if they do not enter. Note that this is not targeted at traffickers and smugglers but at the sorry individuals being smuggled and seeking asylum. Why should they be criminalised? Remember that no visa exists for the purpose of claiming asylum—the noble Lord’s amendment wants to rectify that—and it is impossible to claim asylum without coming to the UK. It is a classic Catch-22 situation The clause is inconsistent with Article 31 of the refugee convention, which obliges signatories to “not impose penalties, on account of their illegal entry or presence, on refugees … present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” This non-penalisation is at the core of the refugee convention—even Australia has never considered criminalising irregular entry Of course, if an asylum seeker becomes a criminal as soon as they arrive, this can have implications for their future as a refugee. They will have a criminal record and be deemed to be not of good character, and this will impact on their ability to integrate, to settle and, down the line, to acquire British citizenship As we discussed on an earlier group, the definition of “particularly serious crime” is being lowered to a 12-month sentence. Since they could get a four-year sentence under Clause 39, or 12 months on a summary conviction, the person could lose their protection against expulsion and refoulement simply as a result of arriving in the UK to claim asylum. It is pernicious to criminalise someone who simply arrives in, not enters, a country— there has always been a distinction between the two. I am afraid that it is somewhat Kafkaesque—I maybe overuse that phrase—as well as pernicious and unnecessary. I beg to move.
My Lords, I rise to speak to Amendments 121 and 122. I thank the noble Baroness, Lady Hamwee, for lending her support in signing Amendment 122. As the noble Baroness set out, and as we heard from the Deputy Chairman, if Amendment 120 carries favour with the Committee, Amendments 121 and 122 could obviously not be moved I intend these amendments to probe my noble friend the Minister. The thinking behind this is that it represents the concerns expressed to me by Law Society of Scotland, to which I am grateful for drafting the amendments and the wording that it has used. Rather than just deleting the offending wording in new subsections (D1) and (E1), I am proposing to delete “arrives in” from the relevant sections of Clause 39 and insert “enters” instead Clause 39 of the Bill adds a new component to the existing offence of illegal entry, and subsection (2) thereof adds new subsections to Section 24 of the Immigration Act 1971. New subsection (D1) makes it an offence for someone who “requires entry clearance” to arrive in the UK without “a valid entry clearance”. An entry clearance is a visa issued before travel, because it becomes leave to enter when the person enters the UK. The burden of proving that a person holds valid entry clearance lies on that person. This is of concern, given that EU citizens are not routinely given any physical evidence of their entry clearance if they apply using the UK Immigration: ID Check app—no visa vignette is placed in their passport. So the key addition to the offence provision is to make arrival an offence The Explanatory Notes clearly state: “The concept of ‘entering the UK without leave’ has caused difficulties about precisely what ‘entering’ means in the context of the current section 24(1)(a) of the 1971 Act.” Entering is defined in Section 11(1) of the Immigration Act 1971, which I recall studying at the University of Edinburgh some time ago, as disembarking and subsequently leaving the immigration control area. Arrival is not given any technical legal definition, so it will simply mean reaching a place at the end of a journey or a stage in a journey. So it is unclear whether a person needs to reach the mainland in order to arrive in the United Kingdom My first question to my noble friend is: can she clarify at what point a person arrives in the United Kingdom? The Explanatory Notes and the separate definitions of the United Kingdom and United Kingdom waters seem to suggest that arrival on the mainland is necessary. The new provisions will allow prosecutions of individuals intercepted in UK territorial waters and brought into the UK, who arrive in but do not technically enter the UK, as set out in paragraph 388 of the Explanatory Notes.
My Lords, I strongly support the noble Baroness, Lady Ludford, in what she had to say, but I would like some clarification. She said clearly that the effect of this clause is to criminalise the act of seeking asylum in the UK, which was the conclusion reached by the JCHR, of which she is a member. Does the Minister agree with the conclusion that this is what Clause 39 means? If she does not agree, what does it mean? If she does agree, I have a conundrum that is a variation of what the noble and learned Lord, Lord Etherton, has twice rehearsed now. He made the point that if an asylum seeker is deemed inadmissible, how do they even get to Clause 11 to be affected by the differential I have the same conundrum around criminalisation. If the very act of seeking asylum makes someone a criminal, how do they even get to Clause 11? I do not understand how Clause 11, inadmissibility and criminalisation interact with each other. It is rather late to go into this but, if the Minister cannot do it now, a letter to all the members of the Committee would be very helpful to clarify this interaction.
My Lords, the fact that I am going to say that I could not agree more with my noble friend Lady Ludford and will not add to that should not be taken to reduce the strength of that view I added my name to Amendment 122 from the noble Baroness, Lady McIntosh, for the reasons she explained. After I did, I realised that there is a question to be asked about new subsection (E1), which makes it an offence for someone knowingly to arrive in the UK without an ETA, an electronic travel authorisation; I would say that it would be the same to enter, but I am not sure it would be possible to enter the UK without an ETA I feel very uncomfortable about new subsection (E1) which makes it an offence to do something under the ETA rules when we do not have those rules. The ETA is not in effect yet. Your Lordships may think it right, when we see what the scheme is, that an offence be created—but not at this stage.
My Lords, like others, I entirely agree with the noble Baroness, Lady Ludford. I have to put it on the record that it is now 11.04 pm and we are debating major legal innovations with massive consequences I want to ask the Minister just one question. Let us imagine a person caught in these circumstances, who has gone on a small boat, been intercepted by the Royal Navy and brought to shore, arrived in the UK and put in jail for four years. That person is very likely from a country in a state of turmoil to which it is utterly impossible to return them for any conceivable time in the future after their four-year jail term. How does the Minister imagine the fate—the life—of that person proceeding from the point they walk out of the jail doors?
I shall intervene very briefly because, as the noble Baroness, Lady Bennett, has reminded us, it is 11.04 pm. I am concerned about the impact of this amendment, if accepted, on fairness. We want to try to encourage people to go through the major routes, first, because it is fair and everyone is treated equally and, secondly, because if they try unofficial ways then they put themselves at risk from people smugglers, the Channel and other methods of illegal entry. I ask the noble Baroness, Lady Ludford, and indeed the Minister whether this would not undermine a fairness element of the system by allowing people who choose to behave in a certain way to jump the queue and take advantage. If that is the case, surely that is undesirable from the point of view of both policy and their personal safety.
My Lords, it is late but that does not make this clause or these amendments any less important, although whether at this hour I make any sense is another issue The amendments in this group seek to stop the proposed change from it being a criminal offence to “enter” the United Kingdom without a valid entry clearance to “arriving” in the UK without a valid entry clearance. I may have got this wrong but perhaps the Minister will confirm that an example of that is someone transiting through Heathrow Airport who remains airside and then departs on another flight without going through immigration control. The UK border is the e-passport gates and the staffed Border Force control points, so someone transiting has clearly arrived in the UK but has not entered it, or at least they will not have entered the UK unless and until they have passed through the UK border. Similarly, those detained or granted immigration bail are not considered to have entered the UK even after they have left the immigration control area. With the change that the amendments seek to prevent, anyone who claims asylum in the UK territorial seas or at the UK border will be committing a criminal offence, whereas now they do not The Government have made much of the “first safe country” principle, which does not actually exist, wrongly interpreting it to mean that people cannot even transit through another country in order to claim asylum in the UK without their claim being deemed inadmissible. This change goes even further. Even if an asylum seeker flies direct from a war-torn country, or a country where they are being persecuted, and arrives on a flight at Heathrow, for example, they will commit a criminal offence. Arguably, that is the case even if they have a visa or do not need one but arrive in the UK for a different purpose—that is, to claim asylum. For example, someone coming from a country where a visa is not required to visit the UK as a tourist for six months or less who then claims asylum at the UK border could be regarded as not having valid entry clearance, as they are allowed to enter the UK for the sole purpose of visiting as a tourist. As I said on a previous group when I drew the analogy with the misuse of drugs, almost all the provisions in the Bill are targeted at the users—asylum seekers, the victims of war, of persecution and of people smugglers—and not the real criminals of the piece, who are the dealers, or in this case the people smugglers. When I was a police commander in Lambeth, I got into trouble for using undiplomatic language when I suggested on social media in relation to drugs that we needed to help the users and screw the dealers. The more serious point here is that criminalising victims is not the way forward. We support all the amendments in this group that seek to change that. Amendment 124 seeks to extend the statutory defence based on Article 31 of the refugee convention to any new offence—but the new offence should not stand part of the Bill.
My Lords, it is late but this is an incredibly important clause and set of amendments, so we need to spend some time discussing them—the same goes for some of the amendments that are still to come. We strongly oppose the clause and support the amendments and all the noble Lords who have spoken so far The clause criminalises people for seeking asylum. It will impact on modern slavery victims. It is unenforceable—indeed, the Government’s defence in the Commons was that it would not be used a lot. It criminalises people who have a right to protection for pursuing the only option available to them. As noble Lords have pointed out, the JCHR concluded that the effect of the clause is to criminalise the act of seeking asylum in the UK. Indeed, the Select Committee on the Constitution, another important body of this House, says: “Compliance with the United Kingdom’s international obligations is a constitutional issue. We endorse the Joint Committee on Human Rights’ recommendations” on this clause. These are serious points being made by bodies of this House, made up of Lords from across the House who are questioning the Government’s compliance with the constitution with respect to the JCHR’s findings that Clause 39 as it stands criminalises people seeking asylum. I cannot believe that that is what the Government intend. As my noble friend Lady Lister asked, are they saying, “We’re right and everyone else is wrong”? Are they saying that the JCHR, the Select Committee on the Constitution and all noble Lords who have tabled amendments are wrong and that this does not criminalise people seeking asylum? If that is the case, we as a House need to hear the Government’s justification so that we can compare their arguments with those being put forward by these various bodies and noble Lords The Minister may not have this information, but it would be interesting to know what percentage of people granted asylum in the UK in the past five years would have been criminalised under this provision so that we can understand the difference it would have made. I appreciate that the Minister may not have those figures available but it would be useful for the House to understand what the impact of this change to the law would have been in the past so that we can make some judgment about how it may go in future. Criminalising a person who is trafficked to our shores will not break the business model of traffickers; it will tighten the control that traffickers have on their victims. We heard in earlier debates that the Government have lowered the threshold for what is deemed a “particularly serious” offence in order to allow the protections of the convention to be disapplied to a refugee, as we see in Clause 37. How does that interact with Clause 39? Will the effect be that arriving in the UK to seek asylum, despite having a totally valid claim, is a serious enough offence to be sent back again? I do not know The Government have failed to answer the question that has been asked again and again: how does an asylum seeker arrive in the UK? If the Government’s presumption is that you have to stop in the first country where you can get protection, how on earth do you get here? As the noble Lord, Lord Paddick, says, presumably the only way is to fly, but under this offence it may well be that you will be criminalised even if you fly into this country with a visa. So how does anyone claim asylum? I am going to ask this again: how on earth do you claim asylum if you have to stop in the first safe country where you can get protection? How does anyone then get here? Because we are an island, you cannot get here by land without passing through a safe country unless you fly—and Clause 39 will apparently criminalise even those who fly. So how does an asylum seeker arrive here?
My Lords, I thank again all noble Lords who have spoken to these amendments. I will start by addressing Amendment 120. I am grateful to the noble Lord and the Joint Committee on Human Rights for drawing attention to this complex problem caused by changes in the way that people have sought to come to the UK through irregular routes, particularly through the use of small boats Many of the individuals involved are intercepted in UK territorial seas and brought into the UK because they are in distress and need help. It is right that we do so, but the interception means that legally they arrive in, but do not enter, the UK. The effect of this amendment is to prevent the prosecution of those arriving migrants who are visa nationals and whose actions mean that they did not and could not arrive in the UK and seek entry as required The UK is currently experiencing a serious problem of small-boat arrivals with migrants crossing from the continent, sometimes in the process recklessly and unnecessarily endangering themselves and others in small craft which are unseaworthy or wholly unsuitable for the crossing. Many of these vessels break down or founder and are intercepted and rescued by UK personnel on safety of life at sea grounds. The rescued migrants are generally brought to Dover, including pregnant women and children We need to reduce the allurement of the UK as a destination of choice for those who disregard readily available opportunities to seek refuge at earlier points in their journey, and thereby call into question their motives for travel to the UK. We wish to encourage migrants to apply for asylum in the first safe country they reach At this point, I want to be absolutely crystal clear about our intentions regarding the offence of arrival without entry clearance. This new offence for people arriving in the UK without the required entry clearance applies to everyone who requires entry clearance for entry on arrival to the UK. This offence will cover all asylum claimants who arrive without the necessary entry clearance. As a matter of law, refugees will be in scope of the offence, but decisions on prosecutions are a matter for the relevant UK prosecution body, which will take into account the public-interest test The noble Lord, Lord Coaker, asked whether every illegal entrant would be liable for prosecution the moment that they arrive in the UK. This is not an attempt to prosecute every illegal entrant. Prosecutions will focus on egregious cases, such as cases where the individual has entered in breach of a deportation order or was previously removed as an illegal entrant or an overstayer. We intend to take a firm stance on such cases in order to prevent inadvertently rewarding such individuals with granted leave, rather than punishing their abuse of the system.
I am sorry to interrupt the noble Baroness. The Minister seems to be suggesting that this offence is going to be focused on the most egregious cases, but surely that is not a decision for government; that is a decision for the Crown Prosecution Service. Are the Government therefore giving instructions to the independent Crown Prosecution Service on which cases should be prosecuted and which cases should not?
I was just going to go on to say that we would be working the Crown Prosecution Service with regard to the new offences in the Bill. Although I related the press release referred to by the noble Lord, Lord Coaker, to new offences, the press release that he referred to is related to the existing offences, and not the proposed new offences. I just thought that I would clarify that.
My Lords, I have a very simple question for clarification. The Minister said that the current Government’s intention is only to prosecute egregious cases. Does not the law, as written on the face of the Bill now, create the possibility to prosecute every single case with no defence?
I have just outlined our policy intent. I was just going to go on to answer the question of the noble Baroness, Lady Bennett. There is a need to seek prosecution where there are aggravating circumstances. For those who arrive without permission and who are not granted refugee status, Immigration Enforcement will continue to remove such individuals from the UK as soon as reasonably possible. On the prosecutions, the aggravating circumstances might include: causing danger to themselves or others, including rescuers; causing severe disruption to services, such as shipping routes or closure of the Channel Tunnel; or cases of persons who have previously been removed from the UK, such as failed asylum seekers. We will take firm action against those who put others in danger by their actions or against those who have arrived in the UK without permission on previous occasions.
This is from a non-lawyer, so it may be absolute rubbish. The legislation says, “This is an offence” again and again. It does not say, “We will treat it as an offence only if it is an egregious matter.” Should not the law itself make that clear? Otherwise, any overzealous—
Forgive me. I hesitate to rise, for obvious reasons, but I will rise anyway because I am a lawyer and this is important. I know that the Minister knows this, because she has a brief that covers other matters, including criminal matters, and she has her noble and learned friend next to her. This is the definition of an overbroad criminal offence. When a Minister has to stand up and say, “Yes, this offence is really broad but don’t worry because we intend for it to be prosecuted only in a subset of places”, that is the very definition of an overbroad criminal offence, and it should be tightened up to cover the egregious cases that are on the Minister’s mind.
I take both noble Baronesses’ point but I hope I have tried to signal what the intent is through my explanation On Amendments 121 and 122 in the name of my noble friend Lady McIntosh of Pickering, I thank her for drawing attention to the problem under UK law caused by the difference between entering the UK and arriving in the UK. I should explain that “entry” is defined by Section 11 of the Immigration Act 1971 and involves disembarking in a non-approved area or disembarking and subsequently leaving the immigration control area. Where a person is detained and taken from the area or granted immigration bail, they are not deemed to have entered the UK. The Court of Appeal has held that an asylum seeker who merely attempts to arrive at the frontiers of the UK to make a claim is not entering or attempting to enter the country unlawfully in accordance with the definition of entry in Section 11. This means that individuals who are subject to immigration control and who step foot in the UK because their small boat was rescued by Border Force in the English Channel do not enter the UK in a technical sense—they simply arrive. To provide the CPS with the ability to prosecute appropriate cases when proportionate and in the public interest, Clause 39 must refer both to those who enter the UK and to those who arrive in the UK I appreciate the concerns raised today but I am convinced that the amendment, if accepted, would simply encourage others to make those journeys across the channel and encourage those who facilitate that journey.
Would my noble friend say, then, that the person in the boat does not have to reach the mainland? If the boat is apprehended, does that fall within the new provision?
I will go on to explain that in just a minute, if my noble friend will bear with me. In fact, I will explain it now. When do you arrive in the UK? Basically, it happens when you reach the UK’s internal waters. The new offence will be attempting to arrive in our territorial waters, which is 12 nautical miles out. To clarify, internal waters are defined by UNCLOS. On Amendment 123, at the forefront of our minds are the migrants whose lives are being placed at risk by criminals who act to exploit and endanger them. Clause 39(4) is aimed at those criminals. We must take action to prevent and prosecute people-smuggling. The law as it currently stands accounts only for unlawful “entry” and not “arrival” into the UK. A person who facilitates the arrival of migrants rescued at sea and brought to a UK port where their only intention is to claim asylum, in accordance with a recent Court of Appeal judgment, does not commit an offence under Section 25 of the Immigration Act 1971. The Court of Appeal ruled that this is because the intention of the migrants is not to enter the UK illegally.
My Lords, I am sorry to labour the point, but may I just confirm that my noble friend is saying that the Government will go after the criminal gangs but will not seek to criminalise the innocent refugees in the boats?
I am saying that a person who facilitates the arrival of migrants rescued at sea and brought to the UK port where their only intention is to claim asylum in accordance with that Court of Appeal judgment does not commit an offence under Section 25 of the Immigration Act 1971. The Court of Appeal ruled this because the intention of the migrants is not to enter the UK illegally. I am glad I have clarified that again.
I am sorry to interrupt the noble Baroness again but surely it must be possible to draft an offence specifically to target the facilitation of someone seeking asylum, rather than potentially criminalising everyone who arrives in the UK seeking asylum.
My Lords, people do it for different reasons and that is where the difficulty lies. If we do not extend the offence of facilitating a breach of immigration law to include facilitating arrival, we cannot hold people smugglers to account for such actions. Organised criminal gangs are sophisticated. As I said, they know that if they ensure that their human cargo is put into the unenviable situation of requiring rescue, the facilitators behind such events can escape prosecution and this is the loophole that we are trying to close I have spoken to Amendment 124 and think it is sufficient to rely on the existing safeguard of prosecutorial discretion to meet our international obligations, rather than to provide an express defence for Article 31 to be applied. In cases where a statutory defence is not available to a refugee, the purposive and humanitarian aims of the refugee convention should be borne in mind by the CPS when considering the public interest test. With that explanation, I hope, the noble Baroness will feel free to withdraw her amendment.
I am left rather breathless by some of that, as I think some other noble Lords are. Section 25A of the 1971 Act, on helping an asylum seeker to enter the UK, makes it an offence if a person “knowingly and for gain”—that is another issue of course— “facilitates the arrival or attempted arrival in, or the entry or attempted entry into, the United Kingdom … and … knows or has reasonable cause to believe that the individual is an asylum-seeker” Are we are being told that that is inadequate? I am really puzzled by the need for this provision in the Bill as expressed this evening—even if expressed in a way intended to reassure those of us who see the provision as a very big problem. Can the noble Baroness give us an explanation of where the lacunae are in Section 25A and precisely how this new offence will be operated?
Maybe I was not being clear, but I was trying to describe the law as it currently stands. I have just repeated twice to my noble friend Lady McIntosh that, as it currently stands, anyone who facilitates the arrival of migrants rescued at sea and brought to the UK port where their only intention is to claim asylum does not commit an offence. Clearly—under Section 25A of the Immigration Act 1971, and because the intention of the migrants is not to enter the UK illegally—it creates a lacuna for the organised criminal gangs, because they can get round it in that way.
I just realised that what I meant to ask was whether the Minister has any comment on my point about creating an offence relating to the ETA before we really know how the ETA will operate.
I had a note about that but I was so fixated on answering the other question from my noble friend and others that I forgot to answer the noble Baroness. She said that she was uncomfortable about making it an offence to breach ETA rules before they have even been commenced. The offence will not come in before we have the rule.
Before we know what the scheme is, in fact.
Correct.
My Lords, the noble Baroness has, in her normal manner, made a very good attempt to justify Clause 39, but I think she is on a very sticky wicket. All noble Lords who have questioned, critiqued or criticised this clause have made a very good case. I am not persuaded that the breadth of this, which could criminalise everybody who arrives seeking asylum, is necessary. The Minister has talked about egregious cases of people who were already deported as failed asylum seekers as well as smugglers and traffickers. I still did not understand her reply to my noble friend, because the read-out of Section 25A of the Immigration Act as it stands refers to arriving as well as entering—perhaps I will need to read Hansard to understand that As of now, I must admit that I am not persuaded of the need for this extremely broad power. As the noble Baroness, Lady Chakrabarti, said, it is the last resort of—I will not say “scoundrel”—a Government who want to cover all the bases, however unjustified. To then leave it up to the CPS whether it prosecutes within such a wide range of possibilities seems unwise. The bottom line is that it is against the refugee convention, which I have read out, to penalise someone who seeks asylum. As others have said, Clause 39 in effect makes it impossible for someone to arrive to claim asylum without attracting the possibility of criminal penalty. That is, frankly, outrageous under refugee law and practice. I am afraid I remain as horrified by this clause now as I was when I moved the amendment, but at this stage I beg leave to withdraw it.
My Lords, Amendment 140 in my name and those of the noble Baroness, Lady Meacher, and the noble Lords, Lord Rosser and Lord Paddick, asks the Committee to consider again the debates that we had during the passage of the Domestic Abuse Bill. Indeed, this amendment was passed in your Lordships’ House last year, only to be rejected by the Commons In short, the issue is that immigration enforcement and the sharing of data too often serve as a significant barrier, preventing survivors of domestic abuse coming forward and receiving the help they need. Research from the Latin American Women’s Rights Service, to which I am grateful for its support and briefings, has repeatedly shown that in cases of domestic abuse and other forms of violence against women and girls, victims with insecure immigration status are unlikely to approach the police because they believe that the police will prioritise their lack of legal status instead of protecting them as victims of a serious crime. As many as 50% of domestic abuse victims never report the crimes committed against them Immigration enforcement is not perceived as a neutral or safe space for victims, or one conducive to safeguarding, but as an agency concerned primarily with enforcement, which defaults to detention and deportation as its primary tools. How could it be the opposite when the focus of the Bill and years of policy from the Home Office have been weighted towards deterrence, enforcement and hostility? In seeking to eliminate abuse, too often the cost of the hostility in the system is borne by the genuine victim in need of help. Every front-line agency has been consistent in making this point; indeed, the Government themselves concede it. The Domestic Abuse: Draft Statutory Guidance Framework states that perpetrators routinely use immigration status as a tactic of coercive control towards migrant women. The evidence therefore that fear of immigration enforcement serves as a barrier is overwhelming It is worth emphasising again that this fails victims, who are often trapped in abusive situations, but also fails law enforcement. If victims are not confident in their ability to come forward, they cannot access valuable intelligence needed to identify and prosecute abusers and exploiters. This situation results in migrants being denied safety and justice, and offenders going unpunished and remaining free to abuse others, creating a significant threat to public safety During the passage of the Domestic Abuse Bill, the Minister answered that the Government were waiting for the results of the Home Office review of the treatment of victims of domestic abuse and argued that data sharing is necessary for safeguarding. On both points, I believe the debate has moved on since we were last here and I hope that the Government may be more amenable on this occasion Since the passage of the Domestic Abuse Act, the independent domestic abuse commissioner has published her review Safety Before Status, which states in its recommendations: “The Home Office’s data-sharing review and Code of Practice should … establish a firewall between the police and the Home Office, alongside safe reporting mechanisms and funded pathways to support and legal advice” We have already heard that this comes in the wake of the super-complaint submitted by Liberty and Southall Black Sisters, which ruled that this data sharing and confusion of function between enforcement and safe- guarding causes “significant public harm”. It is extremely disappointing that, faced with the super-complaint and the independent domestic abuse commissioner’s report, and with the evidence from front-line agencies, that the Government continue to argue that this data sharing is necessary. The government response to the super-complaint put before Parliament last December lays out some legitimate details about the practicalities of creating a firewall and I do not dispute that there is work to be done on finding the best practical route forward However, the proposed remedy—the immigration enforcement migrant victim protocol—,is not a credible alternative. It is extraordinary that in response to fears over the ties between police and immigration enforcement, the solution should seek to actually expand the role of immigration enforcement in the process with proposed visits from immigration enforcement officers. That does nothing to allay the fears of victims, and it ought to be of enormous concern that so many key agencies in the sector have refused to engage further in the development of the protocol It is not too late to take an alternative path. Amendment 140 has the support of the sector and would provide a route to a more effective firewall between data use for the purpose of seeking or receiving support and assistance and immigration enforcement. I beg to move.
My Lords, I rise with a heavy heart and no optimism to support most strongly Amendment 140 in the name of the right reverend Prelate the Bishop of London. I also support Amendment 124A in the name of the noble Lord, Lord Coaker Amendment 140 would provide the single most important protection for migrant victims of domestic abuse by preventing the sharing of information between police and the immigration service if a victim reported that a crime had been committed against her. The Government know very well the coercive and controlling behaviour to which migrant victims are subjected, whether or not they have insecure status. The perpetrator can quite happily threaten the victim, who is probably unaware of the rules of immigration. Apart from protecting these victims of crime, the amendment would have an important value to society: if victims felt empowered to report their abuse then criminal perpetrators could be brought to justice, and others would be protected from their criminal behaviour My reason for pessimism is that, with strong support from the Latin American Women’s Rights Service and others, I tabled a very similar amendment to the Domestic Abuse Bill, which became law in 2021. The Government rejected that amendment, arguing that they needed to wait for the outcome of the then ongoing Home Office review of the effects of the continued co-operation between the police and immigration enforcement. At that time the Minister proposed a compromise clause providing for a statutory code of practice relating to data processing for immigration purposes At that time we were hopeful of some progress, but the Home Office published the findings of its review and argued that data sharing with immigration enforcement was essential to protect victims; I do not think I quite get that, but that was the argument. It rejected the possibility of establishing a firewall that would have allowed victims with insecure immigration status to approach the police to report crimes and, at the same time, to feel safe. Instead, it proposed an immigration enforcement migrant victims protocol, as the right reverend Prelate the Bishop of London has mentioned. We do not accept that as a safe alternative to a firewall I have questions for the Minister. First, will the Government check whether it remains the case that one in two migrant victims with insecure immigration status does not report crimes against them to the police for fear of disbelief, destitution, detention and deportation? Secondly, the Government plan a medium-term—why medium-term, I am not sure—piece of work to identify safeguards to mitigate the deterrent effect of data sharing. When will that “medium-term” work begin, and when it will end? Thirdly, will the results of that work be reported to Parliament? That seems to me to be vital Lastly, when the job of immigration enforcement officers is to deal with migrants who are in the UK illegally, what immediate steps are planned to stop them undertaking their role in relation to vulnerable, possibly trafficked, migrants with insecure status? I look forward to the Minister’s response.
My Lords, there are two amendments in this group. The first, Amendment 124A, is about offences under Clause 39, which cover the majority of immigration offences. It seeks to provide a mechanism whereby victims of crime can safely report offences to the police without fear of the police sharing that information for the purposes of enforcing offences under Clause 39. As the noble Lord, Lord Coaker, explained, if the Government are serious about going after the people smugglers, they need to protect the victims of those people smugglers so that those people can come forward and give evidence against them and convict them Amendment 140 is specifically about preventing the personal data of victims of, and witnesses to, domestic abuse from being used for any immigration control purpose. This is not just about domestic violence but about rape and sexual exploitation, all of them offences where victims are reluctant to report to the police what has happened to them for fear of not being believed. They are offences where there is universal agreement that more needs to be done to encourage victims and survivors to come forward, to charge those responsible and to convict the guilty I was a serving senior police officer when I was the victim of domestic violence and even I did not report it, so imagine what it must be like if victims or witnesses are also concerned, rightly or wrongly, about their immigration status, particularly where the perpetrator exploits those concerns to threaten the victim or witness that if she reports the abuse to the police, he will make sure that they are reported to the immigration authorities —let alone about the police passing on information unprompted by the suspect It is about priorities. I know that everything is a priority for this Government—whatever the Oral Question is about, the Answer is invariably “X is a priority”—but surely it is more important that a perpetrator of domestic violence and other unreported offences is convicted than that those instrumental in bringing the offender to justice are deported or removed. Of course, some might find that their concerns about their immigration status are unfounded, but you should not have to be a victim of crime to find that out The Government must do two things. First, they must not allow, as the amendments suggest, the personal data of migrant survivors of domestic abuse and other underreported crimes that are provided or used for the purposes of seeking or receiving support or assistance to be used for immigration control purposes Secondly, the Government should establish safe and confidential ways for people to establish their immigration status so that they can make informed decisions about taking steps to regularise their situation. That might even mean voluntary return, but they would maintain control. In other countries, helping overstayers to leave voluntarily is shown to be very effective compared with enforced removal. We strongly support the amendments.
My Lords, I thank the noble Lord, Lord Coaker, and the right reverend Prelate the Bishop of London for having tabled their Amendments 124A and 140, and for again giving the Committee a chance to discuss this important topic. Noble Lords will recall that this issue was debated at some length during the passage of the Domestic Abuse Bill, as referenced by the right reverend Prelate Indeed, Section 81 of what is now the Domestic Abuse Act requires the Home Secretary to review the processing of domestic abuse data carried out by certain public authorities for immigration purposes, to prepare and publish a report setting out the findings of that review and to lay a copy of that report before Parliament. We conducted that review last year and the report was published on 15 December. The review examined the legal framework and policy considerations concerning the data-sharing arrangements between the Home Office and police in respect of migrant victims and witnesses of crime with insecure immigration status, as well as the wider considerations of public policy relating to policing and crime, including domestic abuse. During the review we engaged extensively with the police, the domestic abuse and modern slavery sector, the domestic abuse commissioner and the Independent Anti-Slavery Commissioner Taking all that into account, and all the evidence provided, the Home Office review recommended establishing an Immigration Enforcement migrant victims protocol, which has been referred to in this debate, to give greater transparency to migrant victims and their dependants on how their data will be shared. The protocol will set out that no immigration enforcement action should be taken against that victim while investigation and prosecution proceedings are ongoing and the victim is receiving support and advice to make an application to regularise their stay. It will set out, in line with the code of practice for victims’ rights, what information and signposting could be offered to migrant victims to help them regularise their stay and thereby reduce the threat of them being subjected to coercion and control.
My Lords, my noble friend referred to the National Police Chiefs’ Council producing guidance. This is not a statutory body, and one of the issues I have with the amendment from the noble Lord, Lord Coaker, is that the guidance and positioning in relation to parliamentary scrutiny needs to be very clear because, as has been pointed out, it is a very important matter. When I hear that a tertiary body which is actually a limited company—it is not even a quango—is going to be involved, my confidence is not increased. I hope that, if we are going to talk further about this, we are going to make sure that a proper degree of parliamentary scrutiny occurs both if the noble Lord, Lord Coaker, pushed his amendment and if my noble friend wanted to proceed along the lines he described to the Committee just now.
I thank my noble friend for that intervention. I remember the debate on the fact that it is not a statutory body. I also remember that it is being reviewed at the moment, I think by the chief executive, so there will be more to say on that in the future The Government are of the view that the amendment is unnecessary, given the provisions in the Domestic Abuse Act, the findings of our review, our plans to publish an immigration enforcement migrant victim protocol and the joint code of practice with the NPCC, notwithstanding the points that my noble friend has made. For those reasons, I ask the noble Lord to withdraw his amendment.
My Lords, I thank the Minister for his reply and for the care he took to try to answer the various questions. Of course, I will withdraw the amendment at this stage, but I have to say to the Minister that there is a very real issue out there around immigration enforcement vis-à-vis victims, those who have been trafficked or those who have been trafficked and subjected to domestic abuse. The system at the moment commands no confidence or trust among a wide range of people who need our support and help. They are terrified of the immigration system. They are terrified that, as soon as they co-operate with the police to help bring criminal gangs to justice, they will be put before an immigration tribunal and forced to leave the country. That may be wrong and there may be protocols that say that that is not correct and police officers who reassure them, but that is the reality of victim after victim I meet and no doubt many others in this Chamber meet. I am sure the Minister will have met victims who say exactly the same. Despite the reassurances, that is what they feel. These are the victims that we speak to—goodness knows how many others there are who hide away for fear of authority and for fear of that enforcement process. The Government are clearly aware of it and believe that what they are doing will change it. To be frank, I have my doubts, but we will see where it gets to. With those comments, I beg leave to withdraw the amendment.
I beg to move Amendment 125 on behalf of m noble friend Lord Rosser. Again, it is unfortunate that we debate this incredibly important group of amendments and incredibly controversial clauses. Essentially, this group of amendments deals with and looks at the Government’s proposals to criminalise those who assist asylum seekers for no gain of their own, including potentially saving lives at sea and what colloquially we now call pushbacks Clause 40 would remove the words “and for gain” from Section 25A of the Immigration Act 1971. Presently, under Section 25A(1) it is an offence if a person “knowingly and for gain facilitates the arrival or attempted arrival in, or the entry or attempted entry” of an asylum seeker into the UK. Amendment 125, in the name of my noble friend Lord Rosser, opposes the removal of “for gain”. I am grateful to Peers who have also put their names to the amendment This amendment—the so-called Nicholas Winton provision—has become famous as part of the Bill which would have criminalised Sir Nicholas for saving the lives of hundreds of children had it been law at that time. The Government, showing some of the confusion that reigns around this part of the Bill, accepted that their original proposals could have criminalised the saving of lives at sea and introduced amendments on Report in the Commons to clarify that an offence is not committed if the act is done “by or on behalf of, or co-ordinated by … Her Majesty’s Coastguard” or an overseas equivalent. It is quite astonishing to realise that, in the first place, it was going to penalise the people they wanted to operate the law on their behalf. That clarification is welcome, but it is worrying that the issue needed to be clarified in the first place. But it does not address all the issues. Facilitating entry for your personal gain—including, for example, monetary gain—targets this power on those who smuggle and traffic people as part of a business model. The Government’s change breaks that model and extends the offence to people who provide aid to those in distress The amendments in the group demonstrate the remaining issues. Amendment 126, in the name of the noble Baroness, Lady Jolly, to which I am pleased to have added my name, addresses the duty on a master of a ship to assist those in distress at sea. International Maritime Organization guidance provides that the master of a ship “has an obligation to render assistance to those in distress at sea without regard to their nationality, status or the circumstances in which they are found. This is a longstanding maritime tradition as well as an obligation enshrined in international law.” What does the master of a ship do if they are acting on their own initiative? Are we certain that the clause, as it stands, means that anyone in any circumstances, who is not operating under the co-ordination of the coastguard or under any authority of the state but is simply sailing their boat, yacht or ship, can stop and help someone, even if that means facilitating a group of people in a dinghy who are on their way to the UK? Are the Government saying that this is fine Amendment 128, in the name of the noble Baroness, Lady McIntosh of Pickering, raises the question of what happens when the coastguard does not co-ordinate or ask for intervention but a boat assists people in distress at sea. She has asked me to mention this amendment, which I support, as she is unable to be here. This is the situation that the Government have put us in: that we have to clarify issues concerning rescue at sea. The Government are in a mess about this. We need to understand exactly what the Government are saying, and what they are saying to those who are in command of boats or ships and save lives at sea. The Minister might like to tell us what it means with respect to both our own territorial waters and outside of those. What happens if we were 13 miles off the coast, which is outside our territorial waters, picked up somebody and then came back with them? Is that illegal? What happens in those circumstances? There is complete confusion from start to finish about what all of this means If that was not enough, we then come to the powers astonishingly included in the Bill: the powers to “stop, board,”—and the one that cause a huge amount of disquiet —“divert and detain”, included in primary legislation in Schedule 6 to the Bill. Amendment 132, in the name of my noble friend Lord Rosser, would provide that the powers set out in Schedule 6 “must not be used in a manner or in circumstances that could endanger life at sea.” My noble friend Lord Dubs and the noble Baroness, Lady Ludford, have added their names to the vital Amendment 131, which would prevent these powers being used against unseaworthy vessels including dinghies. Do the Government agree, or does the structure of the ship matter? It would be interesting to have clarification from the Minister We have already discussed the Dublin III regulations today. We used to have civilised, reciprocal arrangements for the safe return of asylum seekers to neighbouring states, where appropriate. We should be talking about bilateral negotiations, not about turning dinghies around in the middle of the channel by unsafe methods.
My Lords, I am very grateful to have the support of the noble Lord, Lord Coaker. I introduced Amendment 126 and 127 to bring the Bill into line with international and domestic law regarding the duty of the master of a vessel to respond to a distress signal at sea if he, or she, is able to do so. By removing the words “for gain” from the facilitation offence, a dilemma is created. Those who help asylum seekers are likely to be prosecuted, yet there is also a duty on the master of a vessel to respond to a signal of distress at sea. This dilemma was recognised, in part, by the Government, and an amendment was introduced on Report in the other place—but it does not go far enough. It does not fully recognise the unique duty placed on the master of a vessel to respond to a distress signal without delay New Section 25BA of the Immigration Act 1971, as introduced by this Bill, provides protection from prosecution only if the rescue is co-ordinated by HM Coastguard or another search and rescue organisation. This may not always be the case, even in genuine situations of distress, especially for small vessels that are not equipped with modern communications equipment and methods of raising electronic distress alerts The United Nations Convention on the Law of the Sea is clear. Article 98 states: “Every State shall require the master of a ship flying its flag ... to render assistance to any person found at sea in danger of being lost” The Safety of Life at Sea Convention’s Regulation 33 states: “The master of a ship at sea which is in a position to be able to provide assistance on receiving a signal, from any source, that persons are in distress at sea, is bound to proceed with all speed to their assistance” The Assistance and Salvage at Sea Convention of 1910, which is still current, states: “Every master is bound, so far as he can do so without serious danger to his vessel, her crew and her passengers, to render assistance to everybody, even though an enemy, found at sea in danger of being lost.” This long-standing duty of a master to render assistance to those in peril at sea in customary and in conventional international law is brought into effect through the distress messages regulations, which say: “It shall be the duty of the master of a ship, on receiving at sea a distress alert, to proceed with all speed to the assistance of the persons in distress” Noble Lords will detect that these quotations have a common theme: that it is a specific duty on the master of a vessel to respond to a distress message without delay. It does not matter whether a search and rescue organisation is involved or not. Of course, it would be preferable that it was, but the duty on the master of a vessel to act immediately remains in all circumstances. In my view, it would be wrong to prosecute the master of a vessel for doing what the law requires him to do Similarly, there are specific duties on the masters of vessels when requisitioned, in distress situations and following a collision at sea. Although the Government amendment provides a defence for rescuers, it cannot be right that in obeying the very clear duties from the distress signals regulations, the master of a vessel may then face prosecution from another area of domestic law In times of conflict, the first Additional Protocol to the Geneva Conventions specifically prohibits the prosecution, conviction or punishment of a person for rescuing anyone in peril at sea. I believe that this protocol sets a minimum baseline for how one human being should treat another, whatever their status or circumstances. It cannot be right that we should adopt a lower standard in times of peace than we do in times of war. I beg to move.
My Lords, I rise to speak to this group of amendments. My noble friend Lady Jones of Moulsecoomb has added her name to Amendment 125, which has broad cross-party support. There are lots of different ways of approaching the same problem here. In some ways, it seems to me that Amendment 125 minimises the offence to making it only if it is done for financial gain. That is one way of coming at this, but, as we can see from the number of amendments—the Committee will be pleased to know that I will not run through them all—there is a huge amount of concern about this. When we look at the people who have signed some of the amendments, it is a pity that they are not able to be here tonight, for a variety of reasons. I will quote the noble Lord, Lord West, on the issue of pushbacks, who is on the record as saying that “someone is likely to end up dead” That is the reality of what we are talking about here The noble Baroness, Lady Jolly, referred to the UN Convention on the Law of the Sea, under which every state is required to render assistance to any person found at sea in danger of being lost and must proceed with all possible speed to the rescue of persons in distress. I do not think that there is any way that pushback can be lined up with that However, it is interesting that the amendment in this group signed by the noble Lord, Lord West, states: “Nothing in this paragraph authorises any action or measure which is inconsistent with … international or legal obligations.” What conditions have we got to when we have to write an amendment saying that we will follow international law I do not know which of these amendments is the right one. In some ways Amendment 132A would seem to cover it, because it says we should obey international law, but, as the noble Lord, Lord Coaker, said in his energetic introduction—I want to come back to one more point—it is not just the Ministers who appear to disagree with different parts of the Government A tweet from the MoD five days ago stated that: “The @RoyalNavy and @RoyalMarines will not be using push back tactics in the English Channel” I can only applaud that. However, the next part of the tweet is curious: “although a military commander will retain the existing ability to instruct Border Force to use them when appropriate.” I come back to the point about not breaking international law while saying that something is unacceptable for the Navy but is acceptable for Border Force under the instructions of the Navy. As the noble Lord, Lord Coaker, said, what an absolutely disgraceful mess we are in.
My Lords, Amendment 132A is in the name of the noble Baroness, Lady Kennedy of The Shaws, to which I and the noble Lord, Lord West, have added our names. It would require that nothing in Schedule 6 “authorises any action or measure which is inconsistent with the United Kingdom's international legal obligations.” The reason for this amendment is that there appears to be a grave risk that pushbacks, as they have become known, would be inconsistent with certain international legal obligations that the United Kingdom has entered into. That is because they may easily conflict with the right of those fleeing persecution to seek asylum, the prohibition on collective expulsion, the duty to render assistance to those in distress at sea and the prohibition on refoulment As the noble Lord, Lord Coaker, made clear, pushbacks also raise the spectre of other rights violations, including violation of the right to life. This is because such manoeuvres are likely to be extremely dangerous, with a high risk of damage, injury or even drowning. Those who are familiar with the English Channel know that it is not a hospitable place, and we all know that the craft used by these refugees are flimsy and unseaworthy. So this policy, if it were ever to be implemented, courts disaster. It would take just one tragedy to expose this and, I assume, to shame our country before the world The policy is probably unworkable for two reasons. First, boats can be returned to French territorial waters only with France’s consent, which has not been forth- coming and is unlikely to be so in the future. Secondly—some may say to their credit—it seems quite unlikely that Border Force officers would agree to implement the policy. I would like the Minister, if she would be so good, to explain how the pushback policy would be consistent with the right of those fleeing persecution to seek asylum, the prohibition on collective expulsion, the duty to render assistance to those in distress at sea and the prohibition on refoulment. If it is not consistent with those obligations, it is not consistent with international law.
My Lords, it is right to put on record that the noble Lord, Lord Macdonald, has been sitting here for over nine and a half hours in order to say that. It adds to the weight of his points, which I very much support, and I know that colleagues will speak to this.
My Lords, I will speak to Amendments 130, 131, 133 and 135, which all stem from JCHR reports Amendment 130 aims to restore the Government’s original intended drafting. That said that the Secretary of State could authorise action only in respect of certain vessels if the UN Convention on the Law of the Sea, which my noble friend Lady Jolly mentioned, permitted it. However, a government amendment in Committee in the other place deleted that provision. The Minister might like to explain to us why the Government did that. In any case, Amendment 130 prefers to restore compliance with international law in giving orders to foreign ships. After all, the Ministerial Code requires Ministers to comply with the law, including international law, and that must surely include the UN Convention on the Law of the Sea Amendment 133, like Amendment 132, is designed to ensure that powers in maritime enforcement, including any force used, cannot be used in a manner that would endanger life at sea—which is pretty self-explanatory. If the Government cannot accept that, it would be rather shocking Amendment 131 seeks to ensure that pushbacks are used against unseaworthy vessels—again, a bit of a no-brainer Amendment 135 aims to put liability in any civil proceedings squarely with the Home Office, not with an individual immigration or Border Force official. There are significant risks that the powers introduced in Clause 44 and Schedule 6 may break human rights law. The Bill seeks to remove civil as well as criminal liability from officers. This means that anyone suffering harm would have no recourse to an effective remedy. The Government would escape being held to account for killing or injuring a person through negligence or gross negligence. Such impunity is unjustified. It is contrary to various provisions in the European Convention on Human Rights and the HRA. Amendment 135 clarifies that, although individual officers may not personally be liable, the Home Office retains responsibility, accountability and liability in any civil proceedings. I suggest this is where it should lie.
My Lords, justice and immigration offences should make a distinction between those seeking illegal entry and desperate people seeking asylum or who eventually receive it. Immigration offences must also make a distinction between the trafficker and the rescuer. They are two completely different creatures. Surely there is wit and wisdom in government to be able to make a distinction in the Bill in relation to these two categories of humanity I too congratulate the noble Lord, Lord Macdonald of River Glaven, on his patience and his eloquence about why putting people’s lives at risk at sea is contrary to international law. I fear that international law is not always the most persuasive argument with the Government so instead I just say: let us not put people’s lives at risk at sea. It is cruel and inhumane. It is not who we are. It is just plain wrong.
My Lords, I have been disciplined in my responses to previous groups. This group of amendments is so diverse and of such importance that I am left with no choice but to cover the ground comprehensively Amendment 125 seeks to prevent the change proposed in the Bill from targeting people smugglers who seek to exploit victims of war and persecution for profit to making it a criminal offence knowingly to facilitate the arrival, attempted arrival, entry or attempted entry into the United Kingdom of an asylum seeker, whether the person profits from the exercise or not. The only exemptions from the offence are where Her Majesty’s Coastguard—or a similar overseas organisation—or those acting on behalf of or co-ordinated by such an organisation are involved Can the Minister confirm that those on a vessel which by chance, unprompted, comes across a sinking boat filled with asylum seekers would have to seek permission from the coastguard before attempting to rescue and save the lives of those in danger of drowning—otherwise they would commit an offence I understand that new Section 25BA of the Immigration Act 1971 would provide a defence for the person charged with a facilitation offence. That is not an exemption from committing the offence, or even being charged with it. Surely, at the very least, a person who assists someone in danger or distress at sea should be exempt from this offence Amendments 126 and 127, in the name of my noble friend Lady Jolly, restrict such an exemption to the master of a ship. As my noble friend explained, under both domestic and international law, it is the master who is under a legal obligation to respond to a distress signal. It could be anyone who comes across such a situation and acts out of a moral duty to save lives. I am not sure what the legal definition of a master of a ship is. As my noble friend has said, the coastguard may not be aware or involved at the critical initial phases of an emergency at sea. Lives could be lost if emergency action is delayed Amendment 128 makes a similar point to include cases where the coastguard would have become involved if it had known about the incident. My noble friend Lady Hamwee asked for an explanation of what is meant by “first in danger or distress at sea” Although that may seem obvious, it may be a subjective judgment. When does an overloaded boat change from placing the occupants at risk to placing them in danger? Does the boat have to start sinking before they can legally be rescued? Are the Government really saying in new Section 25BA(3) that a ship on its way to a UK port that picks up asylum seekers who are in danger of drowning and are 49% of the way across the Channel from France to England must divert to a French port because “the United Kingdom was not the nearest place of safety on land to which the assisted individual could have been delivered” This needs a serious rethink before we get to Report As my noble friend Lady Hamwee explained, Amendment 129A is about the penalty to be imposed for failure to secure goods vehicles and for carrying clandestine entrants, and seeks to probe whether there will be consultation on that penalty Clause 42 is about those working in UK waters, who are to be regarded as having arrived in or entered the United Kingdom by being in UK waters. Can the Minister explain why this clause is necessary and whether there will be consultation on these regulations? This is in reference to Amendment 129B Schedule 6 is about maritime enforcement. Can the Minister explain how a UK enforcement officer can exercise powers in foreign waters or international waters, even against a foreign ship or a ship registered under the law of a relevant territory? Amendment 130 adds the safeguard—which is in existing Section 28M in Part 3A of the Immigration Act 1971—that authority for the exercise of powers must be given only if enforcement action complies with international maritime law. Similarly, Amendment 132A would ensure that nothing is done that is inconsistent with the United Kingdom’s international legal obligations Amendment 131 tries to ensure that enforcement action, such as pushbacks, could not be taken against unseaworthy vessels. Amendment 132 aims to ensure, more broadly, that enforcement action cannot be used in a manner that would endanger lives at sea. As my noble friend Lady Ludford said, this would appear to be a no-brainer We then come to legal immunity, both criminal and civil. Section 3 of the Criminal Law Act 1967 states that: “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.” Whether the use of such force is reasonable is a matter for a court to decide, and it is the sole responsibility of the person using that force. An armed police officer, for example, whatever they are ordered to do, retains legal responsibility for firing his or her gun. Are the Government saying that an armed police officer who believes that he has been ordered—as in the case of Jean Charles de Menezes—to shoot a suspected suicide bomber, still retains legal responsibility for his actions, but the Border Force officers who push back and sink a boat containing asylum seekers who then drown are not legally responsible? Why should Border Force officers receive immunity in the exercise of potential lethal force, but police officers do not? Is there a difference between those against whom the potential lethal force is likely to be used? Can the Minister explain why there is a difference? My Amendment 134 would remove such immunity. Amendment 136 removes immunity from criminal proceedings only, as the JCHR proposes a different way of dealing with civil claims in Amendment 135, making the Home Office responsible for any civil claim, rather than individual officers. Can the Minister say whether such an amendment is necessary, if civil liability were to remain? Chief constables have vicarious liability for the actions taken by their police officers and staff in the execution of their duty in the event of a civil claim; that is, the chief police officer is sued rather than the individual police officer.
My Lords, I will start with Amendment 125. I agree with the need to protect those acting with good and honest intentions in bringing asylum seekers to the UK and to see that they are not treated in the same way as organised criminal facilitators. I am grateful to the noble Lord, Lord Coaker, for raising this point Noble Lords will know that, historically, individuals have felt compelled to take compassionate action, and the Government applaud all those who acted throughout history, often at grave personal risk, to bring people to safety. It should also be noted, however, that they were often working with the knowledge of the Home Office and charitable organisations. We have always worked with and listened to humanitarian individuals and bodies that aid and assist refugees, victims of modern slavery and other vulnerable people, and we will continue to do so I reassure the Committee that those working openly and transparently with the published aims of an organisation that does not charge for its services to assist asylum seekers, and under its direction, need not fear these measures. However, individuals taking action that ignores lawful controls may well be liable to prosecution. We will very carefully examine the individual circumstances of each case and work with the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland, and the Public Prosecution Service for Northern Ireland, which will determine whether a prosecution is proportionate and in the public interest. That relates to the point made by the noble, Lord Paddick, and I will come to that point when we talk about turn-arounds later To be clear, in answer to the noble Baroness, Lady Ludford, our purpose in removing gain from this offence is more readily to target people-smuggling, where organised crime gangs will conceal their tracks and make it as difficult as possible to prove that they are gaining financial reward to the standard required for a successful prosecution. We also note that the amendment we tabled at Report in the other place to protect members of the RNLI from the scope of the offence of facilitation, while acting in line with the principles of saving lives at sea, was welcomed by the Joint Committee on Human Rights.
Unless my brain has gone completely to mush at this late hour, I do not think that I objected to that at all. My point was about the UN Convention on the Law of the Sea and breaching international law.
My brain has also gone to mush—let us all just reveal here—but I thought that she originally asked about the purpose of the provision, and I thought I was answering that. Hopefully, I will also get on to answering her points later The bodies or individuals who provide assistance in search-and-rescue missions and who are acting on behalf of, or co-ordinated by, Her Majesty’s Coastguard, are protected from prosecution for the offence of facilitation. A defence is also provided for seafarers acting in good faith, where their assistance is not co-ordinated by the coastguard. This puts it beyond doubt that organisations and individuals who rescue those in distress will not be convicted of people-smuggling offences. A separate defence is also available for masters of ships who discover stowaways on board after leaving port and who then dock in the UK, as long as they appropriately notify the authorities It should also be noted that we are retaining the defence available to persons acting on behalf of organisations whose aim is to assist asylum seekers and who do not charge for their services The noble Lord, Lord Coaker, asked me about people acting outside UK territorial seas. If the act is co-ordinated by HMCG or equivalent, they are protected from the offence. If they are intercepted and brought into territorial waters, we would not prosecute unless there were egregious factors such as the ones we talked about earlier. However, it is right that, in investigating a serious offence, all available evidence be considered and all relevant behaviours taken into account. We are at present limited by an unrealistic requirement to show financial gain that does not take account of the reality of international organised crime. Under the amendment, by retaining for gain we would place an unrealistic burden on our law enforcement officers and prosecutors in seeking to bring to justice those engaged in these activities I turn to Amendments 126 to 128. I understand the concern expressed by the noble Baroness, Lady Jolly, that in such circumstances the masters of vessels should not be charged with a facilitation offence. I assure her that those international obligations were taken into account, including the one she mentioned, in drafting new Section 25BA of the 1971 Act. If the masters of vessels act independently of Her Majesty’s Coastguard, we have provided a defence for persons who show that they had to assist an individual in danger or distress at sea at the time between their first being in danger and their being delivered to a place of safety on land. To the noble Baroness’s point, that defence means that we will assume that, in such circumstances, masters of vessels are telling the truth and acting in good faith unless we can disprove it beyond all reasonable doubt, but it is right that we should be able to investigate in any event. That is designed to stop people smugglers from pretending to rescue migrants with the intent of escaping prosecution.
On that specific point, it looks as though that is a defence. Therefore, the burden would be on the rescuer to demonstrate these things about the moment when the individual was in distress at sea, et cetera. That is very different from saying that these people are not covered by the offence, because the burden shifts on to the person who has potentially been arrested and charged and is having to make out the defence, does it not? I do not think the burden switch is quite what the Minister wants to happen.
What I was trying to say was that, unless we can disprove it beyond all reasonable doubt, the defence has to establish that someone assisted an individual in danger or distress at sea in that time. Therefore, the burden is higher on us than it is on the defendant.
I am terribly sorry to interrupt the noble Baroness, but there is no exemption for a rescuer from the offence. The person could be arrested and charged, because the defence is only for someone who is charged. Any rescuer is at risk of being arrested and charged, and having to prove in court that they were a genuine rescuer.
It is probably important to be clear here that an offence has not been committed. There is no defence to the offence. There is defence in court, and it could be established by the courts only that an offence had been committed. On the point made by the noble Baroness, Lady Chakrabarti, it is an evidential burden only. If I can move to Amendment—
My Lords, I am sorry, but I feel that there is something really important here. I am not a legal expert, but it seems to me that there is a comparison with where a householder has sought to defend themselves against a burglar. A number of laws have been introduced. This Government, I believe—certainly Governments of a similar hue over recent years—have brought in attempts to ensure that people are not charged in that situation.
Yes. The point I am making, in response to the point made by the noble Baroness, Lady Chakrabarti, is that the defence would be to the evidential burden only and we would have to prove beyond reasonable doubt—the burden is different.
My Lords, I am sorry but this is so important and I do not want to be bullied into submission because of things that happened earlier. The bottom line is that Her Majesty’s Coastguard is protected: it does not commit the offence. But there is a different formulation for those other rescuers. It is a defence for them, if they are charged, to show—they have to prove—these factual matters. They are in the loop; they are in the zone of being convicted and that is just not right. That is not fair. That is like saying, “You commit the offence of breathing but don’t worry, your defence will be that you weren’t raping and breathing at the same time.” This is a flip of the burden and it is very dangerous for those innocent rescuers.
Rescuers have to prove to the evidential burden. In order to prosecute, we have to prove beyond reasonable doubt. In proving to the evidential burden, there is no offence committed if the defence is proved. Noble Lords look confused.
My understanding is that the Crown Prosecution Service makes decisions on the basis of the public interest and whether there is a 50% or more chance of conviction. To convict somebody, the case has to be proved beyond reasonable doubt. For the person to be charged and to face a court hearing, that is not the standard of proof the Crown Prosecution Service applies. It is when it believes it has a 51% or more chance of conviction.
I do not know what the noble Lord’s question is.
The Minister is talking about evidential levels: the evidential level the prosecutor has to prove, versus the evidential level the defence has to prove. That is not what we are talking about. We are talking about Her Majesty’s Coastguard being exempt—it does not commit an offence under this legislation. Anybody who is operating outside of working with it is not exempt. They can be arrested and charged, and then they have to prove that they were a genuine rescuer. That is the point.
Would the Committee be content if I wrote further on this matter? Excellent I am not quite sure where I had got to. Amendment 128A in the name of the noble Baroness, Lady Hamwee, gives me the opportunity to explain the defence provided to persons who are not acting under the co-ordination of HMCG but who can show that they assisted an individual in danger or distress at sea at any time—I think I have just said that It is appropriate to set a clear timescale of when the defence will apply to assistance to those in danger or distress. This means a starting point from when the person was first in danger or distress at sea and ending at the time when the person was delivered to a place of safety on land. It does not include assistance given before the assisted individual is first in danger or distress. This is to make it more difficult for unscrupulous criminal gangs to benefit from the defence by either changing their operations to pick up migrants immediately after they have left the French coast and then ferrying them to the UK, or claiming that they are assisting migrants before they reach a point of being in danger or distress at sea by providing life jackets—possibly at additional cost—when they begin their crossing.
I thank the Minister for her response, but I must say to her that a letter will not do on the question of people at sea. Her Majesty’s Coastguard is exempted; others are not. It is as simple as that when it comes to saving life at sea. The evidential tests, and everything else the Minister referred to, will not be solved by a letter. The Government will need to bring forward an amendment to the Bill which deals with this situation, otherwise the confusion will continue. We all look forward to the letter, but it will not solve the problem the Minister was trying to solve when addressing the various questions raised about why others should feel protected when they are not exempted in the way the coastguard is. How will they operate when it comes to approaching a boat that is in trouble and full of, say, migrants or asylum seekers? We can only imagine what will be going through their minds. I am sure they will rescue people, but they should not be in the position of not knowing whether they are committing an offence by doing it. That is what the case will be. In certain situations, they actually will be committing an offence. It is not good enough. This matter should be solved by primary legislation, not by a letter, however well intentioned, from the Minister. It will have to be looked at I will also say to the Minister that some of the other things she was saying, about what will happen and who is doing what, are confusing. Let me give one example about the MoD and the Home Office. What is the line of command there, and who is in charge? Will a naval commander report to the Home Secretary on how it is operated? I do not think so. Again, this needs to be clarified. Who is controlling the Border Force? That will go through the Home Office, but what will the MoD expect? The confusion is immense. It is a very real problem with which the Government are trying to deal, and we all appreciate that. I will withdraw the amendment but there is a lot of confusion, which needs to be resolved. The usual surefootedness of the Minister on a couple of those matters will require, as I say, more than warm words and a letter.
Amendments 137A, 137B, 137C and 137D relate to removal notices. They seek an assurance, if that is possible—I do not think the Bill suggests otherwise—that the destination of a person liable to be removed is not changed during the process. Change can be benign if it is “from” somewhere to which a person has no connection or their experience there is one of persecution, but of course it could be “to” such a place. That is the first couple of amendments By proposing an amendment to the period of notice given, I hope to understand what considerations go into the period of notice. The Bill proposes five working days and I have suggested 15, but, as I say, this is a probing amendment. I raise this not just out of curiosity but because the person being removed will have to get his life in order and will need to know the date. I do not want to tread—at least not very much—on the toes of my noble friend Lady Ludford regarding the opposition to Clause 47 standing part, which is in this group, but perhaps I may say a word about that now. Immigration bail is not a privilege that can be removed due to lack of co-operation, as is the term. That could include anything from the most trivial act. Immigration bail should be the default position and detention the last resort. I recall, a little hazily, that bail was not being operated as was intended, and the Government addressed this some years ago. Obviously, they did not like what had been happening because, as I understand it, the Government wrote to the president of the First-tier Tribunal expressing surprise at the level of grants of bail. The president felt it necessary to remind the Home Office that, as an independent judiciary, it is the courts that decide bail applications, in accordance with the law Why do the Government think that this change is necessary? Previous compliance—“co-operation” is the term used in the Bill—is already taken into account by the Secretary of State and tribunal judges when deciding whether to grant bail. Bail hearings are already unequal. One quite often hears the lawyers in this House talking about the need for an equality of arms; there is not one here, and the Government are introducing in the Bill more procedural requirements for applicants to meet at various points in the process—points at which they might be accused of being unco-operative The clause is likely to prolong the detention of people who will be released at the end of their detention —we know that; we have debated it on other occasions—and detention is harmful to the individuals and costly to the public purse. Compliance with immigration bail is actually very high—I will not tax the Committee by reading out the figures I have here. Expanding the use of detention to enable it to be used as a punishment for non-compliance, without procedures and protections arising from the rule of law, is notable. Detention is an administrative rather than a criminal process. It should not be used as punishment or deterrence; its use should be to effect removal from the UK, and a lack of co-operation should not be a reason to incarcerate or punish. I beg to move.
My Lords, I shall overlap with my noble friend in speaking to the proposal that Clause 47 should not stand part, in the name of the noble Lord, Lord Dubs. It is about immigration bail and immigration detention—I am starting to feel that I am in detention myself The JCHR expressed in a report a few years ago its “serious concerns about the detention decision-making at the Home Office”, and recommended that such decision-making should be independent, to distance it from decisions on removals and deportations. The fact that over a period of three years, from 2019 to 2021, the Home Office paid out £24 million in compensation to 914 people that it was found to have locked up unlawfully bears out the wisdom of the JCHR’s recommendations Clause 47 adds additional matters to the existing practice to which Home Office decision-makers and the First-tier Tribunal must have regard when making decisions on immigration bail. Clause 47 says that nonco-operation with the immigration process should be a factor, but detention should be used only if it is necessary and proportionate. Given that the decision-maker must already consider whether a person is likely to comply with bail conditions—as my noble friend mentioned—failure to co-operate can be taken into account in that context if relevant. Taking it into account when not relevant could result in arbitrary detention, in breach of Article 5 of the ECHR The NGO Bail for Immigration Detainees observed to the JCHR that, since Part 2 introduces new strict procedural time limits, people who fail to comply with them would be at risk of being deemed to be nonco-operating with the immigration process, and thus at risk of being and staying detained rather than getting bail. This appears both unjust and expensive, and I therefore suggest, in my name and that of the noble Lord, Lord Dubs, that Clause 47 should be struck out of the Bill.
My Lords, my noble friend Lady Hamwee’s amendments seek clarification on the destination to which a person is to be removed and propose that the notice of removal should be 15 and not five days, to give enough time for the person to put their affairs in order, among other things, before removal —whether the notice is a first notice or a replacement notice. As my noble friends have explained, Clause 47 is about immigration bail and, again, as in previous clauses, directing decision-makers to place inference on whether a person has failed without reasonable cause to co-operate There is no need, other than for propaganda purposes, to place such a requirement in primary legislation. A bail decision, like all other bail decisions, should be based on the likelihood of the subject to surrender to bail. The behaviour of the subject—for example, a lack of social ties or a fixed address, or the fact of having absconded in the past—may give indications as to whether they are likely to surrender to bail, but this clause is unnecessary, other than for the purpose of a right-wing Government crowing about how they are going to be tough on those fleeing war and persecution. It should not stand part of the Bill.
My Lords, on Clause 45 there are concerns about priority removal notices, but I am aware that at least part of the clause, to standardise the five days’ notice before removal, was welcomed by the JCHR. I welcome the questions put forward by the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, and I look forward to the Minister’s response to them One reason the Government have given for standardisation is to ensure that there is time built in for the person to seek legal advice. However, the clause does not include any practical guarantee of access to legal advice. Can the Minister explain how the Government will ensure that legal advice will be provided? As has been discussed in previous debates, the legal aid sector is under pressure, so it will be interesting to know how the Government expect that to work There are also concerns over Clause 47, as the noble Baroness, Lady Ludford, just outlined. Detention is a tool that should be used where it is purposeful, needed and proportionate. The deprivation of liberty is significant, and it is also a tool which, as we know, is exceptionally expensive to the taxpayer. Where a person’s previous conduct is relevant, such as where it makes them likely to abscond, that is already taken into account. We have also already taken into account where the person may have a detrimental effect on the community, such as by being a threat to public health or public order, or where we need to protect another person. So what does this provision add, other than to use detention, and charge it to the taxpayer, where it may not be strictly necessary Currently, we are not getting the use of detention right, as the Minister will know. Can she confirm how many cases there have been of unlawful detention in the past few years, and at what cost that has been to the public purse? In the other place, it was said that more than 500 people were wrongly detained, causing the Home Office to pay out more than £15 million over the past two years. Also, is it not the case that the majority of people in detention are released rather than removed, with their costly detention having served no purpose? At this stage, we are not convinced that this suggested change will improve things rather than making them a bit worse.
My Lords, first, in answer to the question from the noble Lord, Lord Coaker, I am sure that the figures that my honourable friend gave in the other place must be correct I will start with Amendments 137A and 137B. I am grateful to the noble Baroness, Lady Hamwee, for drawing attention to the framework on destination and route for removing migrants who do not have required leave to remain in the UK. Under Clause 45, the migrant must be given a written notice called the “notice of intention to remove”, which informs the migrant of their five working days’ minimum notice period, during which they cannot be removed from the UK, and the destination to which they are to be removed Prior to the migrant’s removal, we must also give them a written “notice of departure details”, which informs them of the date of removal to the destination stated in the notice of intention to remove. Where the destination differs, or there is a change in route that involves a stopover in a country that is not designated as safe, we must give the migrant a further notice period so that they have time to seek legal advice regarding this new information. It seems that the goal of Amendments 137A and 137B is to ensure that the destination stated in the two notices is the same. Clause 45 already provides a safeguard to ensure that applicable changes to destination or route require a separate notice period, and therefore the amendments will not make any difference to the status quo Turning to Amendments 137C and 137D: the sole purpose of the notice period is to give migrants time to seek justice. But we must balance the common law right to access justice with the need to be able to operate an effective immigration control that involves the enforced removal of migrants who have been found to be in the UK unlawfully and have not departed voluntarily. The current position on notice periods is that most migrants are given a minimum of 72 hours, although some get five working days. We want to make the system simpler and more straightforward so that migrants and their legal advisers know what to expect and so as to reduce any confusion over whether the migrant is given the correct amount of time The impact of Clause 45 is that some people will get more time to access justice than is currently the case. It should be noted that this is a minimum timeframe. The current timeframe has not been directly challenged in the courts, and the courts have not found a minimum period of 72 hours to access justice to be unlawful. But it is clear that sufficient time to access justice must be provided, and the Secretary of State therefore has discretion to extend this on a case-by-case basis if justified by the circumstances We must also keep in mind the impact of the notice period on the length of time a migrant might spend in immigration detention. At present, in most scenarios, the migrant is in detention during the notice period. The justification for the detention is often based on the imminence of the migrant’s removal and hence the heightened risk of their absconding. Of course, each case is considered on its own merits and a decision to maintain detention takes into account numerous factors, such as vulnerability, family ties, et cetera I do not think that many in the Committee would be in favour of increasing the time a migrant spends in detention, especially taking into account the cost to the taxpayer and the potentially adverse effects of continued detention on the migrant. Five working days strikes the right balance and provides more protection to migrants as compared with the status quo On Amendment 137D, I understand that the noble Baroness, Lady Hamwee, may be concerned that this process will be open-ended—that a removal date may be pushed back so that the migrant may be left in no man’s land indefinitely and detained for a long period, having no regard for access to justice for any changes of circumstances in that time. That is not the Government’s intention. If a removal date is deliberately moved back, and not within the provisions of proposed new Sections 10B, 10D or 10E, we will give the migrant a fresh notice period. This will be set out in our policy guidance published on GOV.UK Clause 47, as it stands, does not change our powers of detention. We will not detain indefinitely, and this will not mean that people will be detained solely due of non-compliance. For detention to be lawful for the purpose of removal, there must always be a realistic prospect of removal within a reasonable timescale. Nor does it mean that bail will automatically be refused for all people who are non-compliant with immigration and removal processes without reasonable excuse. It is just one of several factors that we think should be considered when deciding whether to grant immigration bail The current system incentivises non-compliant behaviour: a person can deliberately create obstacles to their removal in order to significantly improve the likelihood that they will be granted bail. It is not right that a person’s non-compliance enables their release, and it should be taken into account as a factor when considering whether to grant immigration bail. We are aware that the tribunal may already consider a person’s compliance with immigration processes when deciding whether to grant bail, but there is nothing currently in place that ensures that this behaviour is considered consistently or indeed given focus equal to the factors already particularised and considered in every case.
My Lords, given the hour, I shall say simply that I am grateful to the Minister, as always; her careful and detailed responses deserve to be read properly when one can see the print. I beg leave to withdraw the amendment.
My Lords, in moving my amendment I shall speak also to the other amendments in the group. The contention of many noble Lords and many NGOs, including the UNHCR, is that the measures contained in the Bill will not achieve the objectives the Government hope will result. In addition, tightening immigration controls, including ending European Union free movement, is believed to be having a detrimental impact on the UK economy and public services. Worker shortages in the National Health Service and social care, and shortages in the agriculture, hospitality and construction sectors, are all believed to be the result of changes made to the Immigration Rules since the end of the Brexit transition period A points-based immigration system may allow unlimited numbers of highly paid workers to enter the UK, but what about lower-paid but essential workers who are now excluded? Amendment 138 requires an independent report to be laid before Parliament on the impact on the UK economy and public services of changes to the Immigration Rules since December 2020, and further requires that the immigration control provisions in the Bill are not brought into force until that has been done As I have said in debate on previous groups, a decade ago, the Home Office was processing more than twice as many asylum claims as it is now but had fewer delays and fewer successful appeals against its decisions. For the record, in 2002, 84,132 people sought asylum in the UK and in 2019 it was 35,737. There are also far fewer removals and far more illegal immigrants living in the UK than there were then. It appears that the Home Office is less efficient and less effective than it was a decade ago Amendment 141 calls for an independent operations management review of the processing of asylum claims in the Home Office and of the removal mechanisms for those whose leave to remain has expired. The review should be about accuracy and fairness as well as efficiency. My consultancy fees are very reasonable, but the Home Office might not consider me independent enough to carry out such a review. But seriously, we need to understand why the Home Office is not as effective and efficient as it was The Minister repeatedly cites the impact of the coronavirus pandemic on the ability of the Home Office to operate effectively, although the number claiming asylum dropped significantly because of Covid as well. If the hold-ups are due to the short-term impact of the pandemic, there is no need for all this draconian legislation aimed at reducing the numbers claiming asylum. We need to establish the real reasons for long delays in initial decisions, and for the failure to remove those whose asylum claims have failed The Minister talked about what people voted for in 2019, by which I presume she meant “taking back control of our borders”. Not only has visa-free entry from the EU and EEA countries continued since we left the EU, but citizens of 10 more countries have been added to those EU and EEA citizens who can now use the e-passport gates at airports, for example. Whereas before, these individuals would have had to supply the address of where they would be staying and demonstrate that they had sufficient funds to sustain them during their visit without working illegally, now they just waltz in, no questions asked. Of course, with no record of where in the UK they are going and no active follow-up if they fail to leave, it is possible for these individuals to remain in the UK indefinitely and to work in the grey market Amendment 191 would require the Secretary of State to publish a report on the number of people living in the UK in the past five years without leave to remain. The report would have to contain information on those entering with or without a visa, the type of visa if they entered using one, and the number of such persons who have been removed. If there are too many immigrants in the UK—the facts are contested, and I accept that public opinion may not reflect the facts—the public need to know how many of these overstayers are the result of failed asylum claims and how many are overstayers for other reasons Taking back control of our borders does not mean throwing them open to even more people and taking no effective action to remove those who overstay. Our contention is that asylum seekers are being unfairly targeted and stigmatised by this Government and this Bill. The reality is very different, but without the facts, no one can be certain. Amendment 193 in the name of the noble Baroness, Lady Neville-Rolfe, makes a similar point, although the data she would require to be published is itself targeted on asylum seekers Before we take drastic measures that target the 6% of immigrants to this country who are asylum seekers, we need to know what is going on with the other 94% and with the people—estimated to be over a million—who are no longer legally in the UK. I beg to move Amendment 138.
My Lords, I will speak to Amendment 193 in my name, and I am grateful to the noble Lord, Lord Green of Deddington, and my noble friend Lord Hodgson of Astley Abbotts for their support. Indeed, I should say that I am grateful to the noble Lord, Lord Green, more broadly, as he has been kind enough to speak more brilliantly than I could have done to amendments in my name during my lonely period of Covid isolation. I am also grateful for the good wishes of others in my absence Noble Lords will know of the importance that I attach to numbers and to reporting in all Bills that we scrutinise in this House. My Amendment 193 would require the Secretary of State to ensure that information is regularly published on immigration, including data on both asylum and other immigration—just to clarify to the noble Lord, Lord Paddick—and also weekly figures on those entering the UK across the English Channel. I note that I might have drafted that more generously to include other sea routes used by small boats bringing migrants to the UK, as the dreadful people smugglers shift to any viable sea route I have tabled the amendment for two reasons. First, many years ago when I was the home affairs adviser in the Downing Street Policy Unit, I discovered just how difficult it was to get up-to-date figures out of Croydon. The International Passenger Survey improved things, but I believe that it is no longer routinely completed at UK points of entry. I need to understand from my noble friend the Minister what data the department is now collecting on immigration and asylum, how often this is published and how up to date it is when it is published. Since Brexit, the system has changed. It makes it doubly important to have proper data, and to have it regularly—I think there is agreement across the Committee on that. I worry that that is now lacking. This matters, whatever your position on immigration. It is vital to have adequate provision of housing, schooling and other aspects of the care and employment of migrants. We also need to know how the population is growing or steadying Secondly, there have been reports in the media that the regular daily or weekly count of migrants crossing the channel might be discontinued, possibly as part of a move to give the Royal Navy control of enforcement. I have no issue with the latter—my son is in the Navy Reserve and the British Navy warms our hearts. However, I cannot accept this needless reduction in transparency It is too late to argue about what has been said by the previous speaker, but I have sympathy with some of the amendments in this group, in so far as they relate to the provision of proper data. Everyone—from the Secretary of State herself to hard-working Members of this House—needs to have reliable and regular facts. Brexit is an enormous change and we need to be sure that the flow of migrants—some welcome, some less so—is turning out as anticipated.
My Lords, I have put my name to Amendment 193. I last spoke at 11.04 pm and it is now 1.30 am, so I understand that I need to push on My noble friend has made the case for Amendment 193 and the importance of data. As some Members of your Lordships’ House know, I am very interested in demography and the overall shape of the population of this country: how it is growing and the impacts of that, and the long-term impacts, because these things take 25 or 30 years to reach their full impact. In judging the population growth of this country, there are really only two hard numbers: the number of births and the number of deaths and the natural increase. The rest are, to a greater or lesser extent, all estimates My noble friend referred to the International Passenger Survey. It is of course voluntary, so people do not have to answer. It is a statement of intent when they do answer, so they may say, “I am going to be carpenter in Birmingham”, but end up a carpenter in Cardiff, because that is where the jobs are. It is very imprecise in the quality and quantity of its data. We need a major drive on getting accurate figures, because that would dispel some of the accusations, allegations and anecdotes that tend to bedevil discussion of these matters. In that sense, I support what my noble friend wishes to achieve in Amendment 193 I also support what the noble Lord, Lord Paddick, is trying to achieve, particularly in Amendment 141A, on overstay. That is another issue about which the public is very concerned and we do not have a clear picture. A clear picture would be really valuable in lowering the temperature and getting some transparency I also want to speak to his Amendment 138. When I first saw it, I thought that the noble Lord, Lord Paddick, had had a damascene moment. Then I saw that he had swerved away from the real implications of what he could have sought to achieve with this amendment. If we are to have a sensible discussion about immigration, population change and impact, it needs to be wider than what the noble Lord is seeking to achieve in Amendment 138. It needs to think about the impact on our demand for housing, as referred to by my noble friend Lady Neville-Rolfe. We live 2.1 people per dwelling, so if we have 40,000 asylum seekers, we will need 17,000 homes; and if we have 250,000 immigrants, as we have at the moment, we will need 100,000 homes. There are wider implications which our fellow citizens are rightly concerned about. There is also the impact on our environment, building, the green belt, farmland and our ability to feed ourselves, and our ability to reach our climate change goals, all of which are of great concern to different interest groups around the country I have just had some polling done ahead of my Private Member’s Bill. Some 71% of the people questioned feel that this country is overcrowded. Some 63% think the Government do not have a plan in place to do anything about it. If the polling is rescheduled just to address the minority population, 64% of them think it is overcrowded and are concerned about what may lie ahead during the coming years.
My Lords, I am sure the Committee will be pleased to hear that I am not going to engage with all the ways in which I disagree with the perspective of the noble Lord, Lord Hodgson of Astley Abbots. I will address these amendments specifically While I do not necessarily disagree with the intention in Amendment 138 to seek more information, this is entirely in the wrong place and creates confusion. Despite the Long Title of the Bill being about immigration, it is overwhelmingly focused on issues of asylum and refugees. As we have said in other debates, mixing up the right to asylum and the refugee commitments we have made over the course of decades with issues of migration is a real category error. Amendment 138 should not be here I particularly want to comment on Amendment 141, which is a call for a report on the operation and effectiveness of the Home Office. In relation to subsection (1) of the proposed new clause, a disturbing perspective is that one of the Home Office’s great problems is that it has two jobs: one is to police and control; it is also supposed to facilitate and assist people coming to the UK when they arrive here. Given its association with the phrase “hostile environment”, it is known for controlling and policing, rather than for facilitating and assisting. Following the Windrush scandal, the Green Party proposed that the Home Office should be split into a ministry of the interior, focused on law and order, and a department focused on providing support and assistance for refugees and migrants. That would make a lot of sense. Subsection (2) of the new clause proposed in the amendment tabled by the noble Lord, Lord Paddick, which talks about efficiency including fairness, addresses this to some degree. However, if we are to have any kind of assessment of the Home Office, we cannot look at one side without looking at the other Given the hour, I shall stop there.
My Lords, the noble Lord, Lord Paddick, has picked up a number of important points with these amendments. I think the crucial one is Amendment 141, which is for an independent review of the efficiency of the system for processing claims. The backlog of asylum claims, as we have talked about—and as the Government actually accept—is one of the biggest challenges we face in this area. We could resolve that problem by speeding up the process, and getting the appeals process right—where I think over half the claims are successful—would do a lot to help the system. If the Government do not accept Amendment 141, what plans do they have to address the problem that it seeks to overcome Every amendment in the group is about fact-finding, evidence and asking the Government to be transparent with data, which is absolutely fundamental to confidence and trust. We all have the problem with data: I quote one figure; the Minister quotes another; you look somewhere else and there is another figure—partly because people use different start dates, different timeframes, et cetera. But getting the data right is really important so that the public can see what is going on, for good or bad In respect of that, Amendment 193 is particularly important, especially proposed new paragraph (b), which seeks to probe. What are the Government going to do about the daily migrant figures in respect of those crossing the channel? We know that the news is extremely bad at the moment. The numbers have increased dramatically and now we read that the Home Office is preparing to stop publishing daily figures and go to quarterly figures. That is talked about as a possible plan. What are the plans with respect to that? It looks like burying bad news. They are embarrassing figures, particularly to the Home Secretary, who says consistently that she will bring the migrant crossings under control. All we have seen is them go up and now we see that the way the Government are going to solve it is by refusing to publish the figures daily in the way that they are now. What is the truth of that, what are the plans and what is going to happen with that? At the end of the day, what is at stake is not whether or not it is embarrassing for the Government but the confidence and trust that the British public have in the figures that we produce and in the Government of the day in dealing with this problem.
My Lords, I thank the noble Lord, Lord Paddick, for tabling Amendment 138, which I will deal with first Before the introduction of the new points-based system, the Government commissioned the independent Migration Advisory Committee—the MAC—to advise, over three reports, on the impacts of EEA migration on the economy and society in the UK, how to align the immigration system with a modern industrial strategy, what best practice could be used to attract the skills from around the world that the UK labour market needs, and issues around salary thresholds in the context of the immigration system. When undertaking its work, the MAC looked at impacts on the economy and public services, as well as on the welfare of the resident population, as a matter of course In addition, the Home Office published detailed impact assessments for the main features of the new points-based system, setting out the policy objectives, intended effects and likely impacts, including for the skilled worker route, the global talent route and the graduate route Both the Home Office and the independent MAC keep the operation of the immigration system under regular review, and the Home Office will fully evaluate the new immigration system in due course. The MAC published its second annual report on 15 December, which looked at a range of topics, including the current labour market and the role of immigration. Its next commissioned report to be published and laid before Parliament, expected in April, will be a review of the impact of the ending of free movement on the social care sector. On the ending of free movement, it is worth noting that while it has tightened requirements for EU and EEA nationals coming to the UK to work, the broader skills threshold and lower salary threshold have benefited non-EEA nationals who want to come to the UK. The global market is not focused just on the EEA On Amendment 141, the Government of course recognise that we should always be striving for maximum efficiency. Making decisions quickly and accurately is in the best interests of the individual concerned, as well as representing value for money for the taxpayer and, where there is abuse of the immigration system, ensuring that it is dealt with effectively The Government do not think, however, that paying management consultants to look into these matters later this year is necessary, well timed or a good use of public money. I must observe that when we are talking about consultants, we are usually abused by the Opposition Benches for overspending on them. Reports by the Independent Chief Inspector of Borders and Immigration, the National Audit Office and others continue to provide insights and good practice to build on, as well as highlight the complexities and frustrations of the system within which Home Office staff have to operate I should like to assure noble Lords that, as part of our work to operationalise the Bill, we are drawing up plans to monitor and evaluate its impacts and to develop the evidence base to support further policy work. We also publish immigration quarterly statistics, including on asylum and returns I turn to Amendments 141A, 191 and 193. I can assure noble Lords that the Home Office publishes a whole range of immigration data on a regular basis and has done so for many years. We regularly publish statistics on data collected under the exit checks programme, which shows the proportion of people known to have left the country or obtained further leave to remain by the end of their visas. It cannot, however, show the number of people who have overstayed their visas, as they may have left the country and their departure has not been linked to their visa We regularly review the statistics that we publish as a department in line with the code of practice for statistics and, where it is clearly in the public interest to do so, we will publish new statistics and amend existing statistics to ensure that they continue to provide transparency around key government policies. We have recently announced our intention to publish a quarterly statistics report on irregular migration, which will include statistics on the number of people crossing the English Channel in small boats. In answer to the question of the noble Lord, Lord Coaker, the first release will be February—this month Where it is clearly in the public interest to have more frequent releases of information, we will consider that, as we have done with the EU settlement scheme, for which we publish monthly statistics. However, we must weigh up the need for more statistics against other considerations. This includes the practicalities and costs of producing robust, assured data derived from our operational systems, presenting data in a way that enhances the public’s understanding of key issues and puts the data into appropriate context, as well as the need to prioritise the department’s resources I turn to the specific elements of Amendment 141A. The noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, also asked for reassurance as to the steps taken to monitor the operation of each visa regime. The UK keeps its visa regime under regular review. Decisions on changes are always taken in the round and a range of factors are considered. As part of this, we assess both visa national and non-visa national schemes in terms of risk and reward to UK interests, using data from a range of sources that span across immigration and national security interests The Government are committed to strengthening the security of our borders by ensuring that everyone who wishes to travel to the UK, except British and Irish citizens, has permission to do so before they travel. To fill the current gap in advance permissions, we will introduce an electronic travel authorisation scheme—the ETA scheme—which has been referred to already, for visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling, which will be discussed in more detail on the last day of Committee Noble Lords further asked for details on how overstayers are tracked and monitored within the UK. The Home Office uses a multifaceted approach to tackling illegal migration, balancing the most effective measures with ensuring the proper and efficient use of taxpayers’ money. I was asked why it is so difficult to remove people who have overstayed. We deal with significant and complex challenges when seeking to return those with no right to be in the UK to their country of origin or lawful place of return. They can include travel documentation, late applications, late appeals and broader non-compliance with a lawful returns process. The Government are doing everything possible to reduce legal challenges and to increase the numbers of those not entitled to remain in the UK being removed In answer to a question, somewhat tangentially, on the Covid-19 pandemic, it has affected our ability to remove as many people as in previous years. That is obviously due to travel restrictions being in place, among other things, including fewer scheduled airlines operating, and significant disruption to other services that support the removal of failed asylum seekers, such as court closures and delays Overstaying is against the law, unnecessarily costs the taxpayer money and is unfair on law-abiding migrants who come to the UK through the legal channels. Those who have no right to remain in the UK and do not return home voluntarily should be in no doubt of our determination to remove them. The Home Office takes its responsibilities to uphold the law with the utmost rigour. This Bill and the wider New Plan for Immigration, the most comprehensive reform in decades, will provide the path to fixing this broken asylum and illegal migration system There will always be some who refuse to comply with the Immigration Rules without contact with the relevant authorities and I assure the Committee that the Home Office never gives up trying to trace those individuals and act against them. For those in the UK with no right to stay, we offer an in-house voluntary return service to aid their removal from the UK. Ultimately, there are those who will not leave the UK; we will arrest, detain and remove those who are most resolute in maintaining an unlawful presence in the UK. Given all that, I ask the noble Lord to withdraw his amendment.
I thank my noble friend for the helpful tour d’horizon, but I think he was saying that the weekly figures for the numbers of those entering the UK across the channel will now cease and be replaced by quarterly figures. If I have misunderstood that, perhaps he could let me know. It would be helpful before Report to see some examples of the various statistics that he outlined, to see whether they actually supply the data that we feel we need for the future, to monitor developments in this important area.
That is right, yes. We will publish those statistics as my noble friend said.
It would be helpful to access them; it is very difficult as a Back-Bencher. The quarterly/weekly point was the key one.
I just want to be clear: the Government are moving from daily statistics on the number of migrants crossing the channel to publishing those quarterly. When is that going to happen? Has it happened already? Where was it announced? What is the reason for the change?
I think I said that the first set of statistics of that type will be published this month, in February. Discretion needs to be maintained to ensure that we can respond to new and emerging issues. I do not know when the decision was originally taken.
But that means that we will no longer get daily or weekly figures. We will get only quarterly figures in future.
Yes, that is my information.
Why is it happening? So far as transparency and trust in the Government’s figures on migration and what is clearly a difficult problem are concerned, why do they believe that the public would see this as anything other than burying bad news? Does the Minister believe that the Government would have changed the figures to quarterly if they were really good?
I am not sure that I can answer that question.
My Lords, I thank the Minister for his comprehensive reply, although clearly some of the answers have not met a favourable response from the Committee. I have a couple of points. First, we need to understand why the Home Office appears to have been much more effective and efficient 10 years ago than it is now in the number of claims processed, the backlog and the number of successful appeals. Despite his reply, we are still no further forward in understanding why that was the case and he gave no indication that we would ever know. It is important to know, because a lot of the Bill is about reducing the number of asylum claims to relieve the pressure on the Home Office—but it was dealing with twice as many claims 10 years ago The noble Lord, Lord Hodgson of Astley Abbotts, was concerned about the statistics I was asking for not being comprehensive. He talked about concerns about overcrowding. Some 94% of immigrants to this country are not asylum seekers and refugees, and 94% of this Bill is about asylum seekers and refugees. Having said that, I beg leave to withdraw the amendment.
My Lords, Amendment 139 is another suggestion from the Joint Committee on Human Rights. I move it in the name of, and at the invitation of, the noble Lord, Lord Dubs I am not sure why this amendment is in this place because it actually refers to Part 1 of the Bill, but anyway, that is a mystery. Clause 7 allows the Secretary of State the discretion to grant British citizenship or British overseas territory citizenship to adults where they would have had that citizenship but for historical unfairness or other exceptional circumstances. Clause 7 specifies that it applies to adults only where they are “of full age and capacity” Requiring a person to be of full capacity in order to benefit from these provisions would seem to discriminate, potentially, against people who do not have full capacity. Section 44A of the British Nationality Act provides that where full capacity is required, it may be waived if that is “in the applicant’s best interests.” This is obviously welcome, but it is not immediately obvious why those lacking full capacity should not always have the requirement for full capacity waived if it is in their best interests. Hence, the proposed amendment is to Section 44A of the BNA so that the Secretary of State “must”, not “may”, waive the requirement for a person to have full capacity if it is in the applicant’s best interests, so as not to unfairly disadvantage those lacking full capacity.
My Lords, we support this amendment for the reasons that my noble friend has explained.
My Lords, we have little to add. This seems to be a common-sense change that embeds an existing waiver, so that it applies in all cases where it is in a person’s best interests. It would be helpful if the Minister could detail for the House what is practically understood by “full capacity” and give examples of situations in which this requirement may be waived.
My Lords, the Secretary of State has discretion to waive the full capacity requirement, and the introduction of this amendment would make it a statutory requirement rather than a discretionary power for the full capacity requirement to be waived if doing so would be in the applicant’s best interests I know that prior to the change made in 2006, UKVI sometimes had to refuse an application even where, in the opinion of the applicant’s carer or responsible family member, it would have been in the applicant’s best interests to grant it and the applicant met all other relevant criteria. This was clearly an undesirable position and we think it has been rectified successfully by the introduction of the current discretionary powers, since when no applications have been refused solely on full capacity grounds. This indicates that the 2006 change has been more than adequate in allowing decisions to be taken in the best interests of the applicant, in line with the principles set out in the mental capacity legislation and the Adults with Incapacity (Scotland) Act 2000 It is not the only area of nationality law that is discretionary. It is right that the Secretary of State’s ability to waive the full capacity requirement is discretionary in nature, to allow her fully to consider all the relevant factors which apply to the applicant. But where it is in an applicant’s best interests, we expect UKVI to continue to exercise discretion over the full capacity requirement, employing the necessary sensitivity and flexibility in the consideration of applications. We do not believe the proposed amendment would serve any more practical benefit than is already derived from the existing provisions. I hope the noble Baroness, on behalf of the noble Lord, Lord Dubs, will withdraw the amendment.
My Lords, the Home Office is inordinately fond of discretion rather than the clear rules which would mean that applicants and other users knew where they stood. This reminds me of the debate we had last week on comprehensive sickness insurance: although there was a welcome concession by the Minister on one aspect—family reunion—she said that no application for naturalisation had been refused on the ground of a historical lack of CSI. The Home Office was relying there on “we have never refused it”, just as it is here. Well, if you have never refused it, you do not need the discretion, and it could become a rule, as Amendment 139 specifies. That would mean that everybody was clear about their rights and did not have to gamble, sometimes paying fees, without knowing how the discretion will be used. However, the Home Office turns round and says that it has never refused anybody, which is meant to earn Brownie points. It seems to me that it is all one way: the Home Office wants to keep its discretion, keep people in the dark and maybe make them pay fees, without knowing if they will get what they are paying for It is late and I am quite cross—and on that note I hear what the Minister says and I beg leave to withdraw the amendment.
My Lords, I remarked some time ago that the noble Lord, Lord Macdonald, had sat through nine and a half hours of debate. I think the noble Baroness, Lady Neuberger, has sat through over 11 hours waiting to speak to this group of amendments, and I really feel I should let her go first—but I am not going to. My noble friend Lord Paddick and I oppose all the clauses in Part 4 standing part. I am well aware that noble Lords would like something quite cursory, but in opposing this whole Part of the Bill, I think I need to explain why The first of the clauses is Clause 38, which is, you might say, pre-sequential on the other clauses. The basis for all our objections may be summed up in the heading to Clause 51, “Use of scientific methods in age assessments”. This is not a scientific subject. Any noble Lord who has looked years later at school photograph will understand that. I was always at the back because I was one of the tallest in the class. My best friend, two months older than me, was tiny and she had to sit on the ground in front of the first seated row. We are not all the same and we do not all develop in the same way and at the same rate We are told by the Refugee and Migrant Children’s Consortium, a coalition of more than 60 organisations—and the point is made by others in the sector—that even those from similar ethnic backgrounds, who have grown up in the same social and economic environment, display significant physical, emotional and developmental differences. It says: “These differences can be exacerbated by experiences of adversity, conflict, violence and the migration process.” I am glad that it mentioned that last. Noble Lords will appreciate that those are all factors which, as far as I know, were not experienced by a class of girls in Manchester in the 1960s, so that did not account for all the differences.
My Lords, I speak to Amendments 146 and 148 in my name and that of the noble Baroness, Lady Neuberger, who has sat there so patiently—well, I am not sure about patiently, but she has sat there so long, getting increasingly frustrated, I think, at the late hour, and understandably so. I am really grateful to her for staying to give her support. I speak also in support of Amendment 147, to which I have added my name. I have tabled my amendments on behalf of the British Dental Association, which also supports Amendment 147, and I am grateful to the association for its help. Its grave concerns echo those of many relevant professional bodies such as the BMA, the Royal College of Paediatrics and Child Health, and the British Association of Social Workers, together with children’s and refugee organisations, the UNHCR and the JCHR It is regrettable that the entire content of Part 4 was added towards the end of the Commons Committee stage, meaning there was no pre-legislative scrutiny of the controversial measures in this part, making it impossible for MPs to table amendments to it in Committee. This was quite rightly criticised by the Constitution Committee. It is adding insult to injury that we are now expected to scrutinise these important clauses in the middle of the night—at 2.20 am. I just want that noted in Hansard: 20 past two in the morning. These are really significant clauses, and this is absolutely ridiculous. I want that put on the record. An issue as important and sensitive as this deserves detailed and in-depth scrutiny, and the Government have made it very difficult to deliver that. Just notice how many noble Lords there are left here. I am amazed that there as many as there are, but this is not the kind of scrutiny these clauses deserve, and it will be important that we scrutinise them better on Report than we otherwise would have Reading the briefings from various professional organisations, I think that two clear messages recur. First, the use of so-called scientific methods to assess age in this context involves a wide margin of error. Secondly, it is unethical. I repeat that: it is unethical. The method mentioned most often in the Home Office communications is dental X-rays. I remind the Minister that the British Dental Association has been unequivocal in its condemnation of the use of dental age checks and has vigorously opposed the use of dental X-rays to establish the age of young asylum seekers. It considers this method highly inaccurate for assessing age, but crucially points out how unethical it is to expose children to radiation when there is no medical benefit. X-rays might not be considered an invasive procedure, but they carry a small risk of long-term physical impact, the association tells me. This risk is cumulative. Successive exposures increase the risk, meaning each exposure over a lifetime must be clinically justified. The BDA says that: “For this reason best practice in this area dictates that exposure to radiation should be kept as low as reasonably possible … X-rays should be carried out … only where there is a well-defined potential clinical benefit, which must always outweigh the potential clinical harm.” Clearly, if used for age assessment, an X-ray carries no clinical benefit. Importantly, this method is also not nearly as accurate as the Home Office would have us believe. The BDA points out that: “Numerous studies have shown that, despite improving technologies, the use of dental X-rays can over- or under-estimate the age of adolescents significantly … The rate of dental maturation can be affected by factors such as nutritional status, infections … which are highly variable among migrant populations in particular. Genetic factors and ethnicity can also cause variation.” While a number of European countries have been using dental X-rays for age assessments, many are showing a desire to move away from this method. For example, in Italy, dental age checks were used widely until 2017. However, the difficulty in interpreting results, especially considering medical factors such as malnutrition as well as ethical concerns over the procedure, meant that the country moved towards a broader spectrum of examination, and now any radiological tests have to be authorised by court order as a last-resort measure. Dentists and doctors are health professionals, not border guards. They should be allowed to put their patients’ health first and not be put in a position to make judgments that are clinically or ethically inappropriate In the light of all this, I am very concerned about these clauses, particularly Clause 51. It states that the scientific methods that will be used for age assessment will be specified in regulations only after the Government have sought scientific advice that the method is appropriate for assessing a person’s age, but it does not specify what would constitute “scientific advice” for this purpose. The supposed safeguard needs to be significantly strengthened to ensure that the relevant medical, dental and scientific professional bodies are consulted, not just on the accuracy of the proposed methods but on whether the method is appropriate and ethical. Amendment 146 ensures that there are stronger safeguards in this respect I am also concerned that Clause 51(9) dictates that age assessment methods which are not specified in regulations under subsection (1) can nevertheless still be used. This means that, even if a method were considered inaccurate, unethical and/or otherwise inappropriate when the Government sought scientific advice, it could still end up being widely used. I would appreciate the Minister’s explanation as to why he believes that such a loophole is necessary and why we would want to allow methods which, after careful consideration, were deemed by experts not to be appropriate still to be used. I urge the Government to delete Clause 51(9) as my Amendment 148 does Finally with reference to Amendment 147, under Clause 51(6) and (7) an age-disputed person would have little choice but to agree to any proposed method. That is not free, informed and genuine consent—a key legal requirement before any medical procedure is carried out. This is, as the BDA says, quite simply coercion. I urge the Minister to consider the potential scenario where an underage asylum seeker who might well have suffered abuse, including possibly sexual abuse, is considered not credible because they refuse to undergo an invasive dental examination, and I urge him to delete Clause 51(6) and (7) Finally, I also urge the Minister to ensure that the newly created Age Estimation Science Advisory Committee, which will give guidance to the Government on scientific methods of age assessment and set out best practice on the use of such methods, includes members representing all the relevant dental, medical and scientific national bodies. I hope he can give us an assurance on that point.
My Lords, I support the noble Baroness, Lady Lister of Burtersett, in her Amendments 146 and 148. I thank her and the noble Baroness, Lady Hamwee, for their sympathy, but they too have been sitting here for a very long time, whereas I got here relatively late—admittedly after quite a long day, and I will be here late tomorrow This part of the Bill is seriously concerning. We know, as the noble Baronesses already said, that age assessment techniques are notoriously inaccurate. These so-called scientific techniques are opposed by the BMA, the UNHCR, the Refugee Council, the medical and dental royal colleges and all sorts of associations and many others; I am immensely grateful to all those organisations that have provided briefing on this matter It is very late indeed, and I am extremely glad that we have the time on the record in Hansard. However, I want to quote the Minister in the other place, because it is important that we concentrate on this. The Minister said that “the Secretary of State may only specify a scientific method of age assessment in regulations once she has sought scientific advice and determined that the method in question is appropriate for assessing a person’s age. I expect that scientific advice to also cover related ethical considerations”.—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 559.] This kind of age assessment is unethical per se; therefore, we need to question this quite deeply The use of these techniques, as the noble Baroness, Lady Lister, said, does not benefit the children or young people concerned, so how on earth can they be justified and ethical? We already know that medical methods used for age assessment can be invasive and potentially harmful—ionising radiation is one example. To make it all worse, the evidentiary burden on local authorities assessing age is increased in the Bill, and they may be compelled to provide evidence to the Home Office even where no doubts have been raised about a child claimant’s age. That means that there is the potential to increase the number of unnecessary age assessments conducted, and the risk that children are incorrectly assessed as adults and diverted to adult reception and immigration processes, which might include detention This really is unethical. Other countries may be doing it—although they are increasingly desisting from it on ethical grounds. I do not believe that we should allow it. It was confirmed in Committee in the other place that the Government will determine that any scientific method is appropriate for assessing a person’s age and comply with all relevant frameworks in relation to the scientific methods chosen. Given this, will the Government put a commitment to obtain written approval from relevant medical and dental bodies on the face of this Bill? That is the very least that we can expect of something that is, on the face of it, so unethical.
My Lords, I rise to support Amendment 151, which is in the name of the noble Lord, Lord Green of Deddington, and speak to my Amendment 151A. I think it is fair to say that I have been utterly appalled by the number of asylum seekers pretending to be children—more than 1,100 migrants in the 12 months to September 2021, according to Migration Watch. I understand that this represents a big rise in this fraud, with 66% of concluded decisions in the year to September 2021 being persons who are 18 or over. This is despite the fact that many arrivals arrive without documents. The number will of course grow as the numbers across the channel in boats grow—assuming we can get at those numbers There are also substantial incentives for adult asylum seekers to be treated as children, such as the granting of housing and wider support. However, it is the wider implications that are worrying me. Mature boys put alongside vulnerable girls in schools can wreck their progress and even lead to abuse. Mixed ages in social care are a recipe for disaster. And it can be worse than that: the Parsons Green bomber pretended to be 16 when he was much older The noble Lord, Lord Green, tabled his amendment because he believes that the system for checking the age of asylum claimants is so loose that it gives the benefit of the doubt to those saying, without proof, that they are minors. So I think there is some agreement that there is a problem here. But all of that is a long way of saying that we must have an extremely rigorous system of age assessment, and I look forward to hearing from my noble friend how this will be achieved in practice. I particularly support new subsection (3) proposed by Amendment 151 which, if adopted, would prevent those of undetermined age being placed alongside minors in schools or accommodation, because this is at the heart of my concern From listening to today’s debate, it is obvious that this is an area of widespread concern—and for different reasons, depending on your perspective. I therefore tabled Amendment 151A, which would require a review of the age assessment provisions after two years to ensure that they are effective in providing a robust system of age verification. A report will be made to Parliament so that we can all assess progress. I hope that this simple idea will find favour with the House.
I will speak to Amendment 147 in the name of the noble Lord, Lord Dubs, and support Amendment 151C in the name of the noble Lord, Lord Coaker. I share the dismay of others that we are discussing a whole part of the Bill between 2.15 am and, maybe, three in the morning. We are being punished because we want decent scrutiny of this Bill. The refusal of the Government to allow us the extra day we need in Committee is disgraceful Anyway, given the difficulties with assessing age, occasionally young adults may be treated as children. However, as long as there is good supervision in children’s placements, this is less of a risk than when children are incorrectly treated as adults and placed in immigration detention alone, accommodated with adults and with no safeguarding measures A significant number of disputes are not actually about whether an individual is a child or an adult but about whether they are a 15 or a 17 year-old child, so they are not relevant to whether the individual will be categorised as an adult or a child. Current Department for Education statutory guidance states that local authority age assessments should be carried out only when there is reason to doubt that the individual is the age that they claim, and “should not be a routine part of a local authority’s assessment” The Association of Directors of Children’s Services says that they should not be undertaken unless “absolutely necessary”. Clause 48 would result in almost every child without recognised documentation going through the age assessment process. That is excessive Amendment 147 would delete Clause 51(6) and (7), as the noble Baroness, Lady Lister, said, so that refusal to consent to scientific procedures should not feature in an assessment of credibility. The British Association of Social Workers calls that part of Clause 51 “grotesque coercion”—I think that another organisation also referred to coercion—and one can see why. Amendment 151C, which was tabled by the noble Lord, Lord Coaker, and supported by me and the noble and learned Baroness, Lady Butler-Sloss, would rightly impose strict conditions on any procedure. I expect that we will hear more about that Age assessment is not susceptible to a scientific silver bullet. It needs a multiagency holistic approach. Scientific methods can be very invasive and even traumatic for a young person, and are hugely controversial. The Government seem to be seeking a quick fix, but it will not work and is neither legitimate nor—as the noble Baroness, Lady Lister, said—ethical. In addition, the Government are leaving themselves a lot of scope to legislate by regulations. If it were not this time in the morning, I would have said more, but I will leave things there.
My Lords, I express the Green group’s support for everything said by the noble Baronesses, Lady Hamwee, Lady Lister, Lady Neuberger and Lady Ludford, and for all the attempts to rein in the Government’s intention here. We have all received many briefings addressing this, but I shall refer to that from the British Association of Social Workers, which speaks of the Government “ploughing ahead despite warnings from the sector” As the noble Baroness, Lady Lister, said, those warnings of course include the absolute medical experts in this area. If we were to take advice here from either the medical experts or Migration Watch, I know which I would take I want to make one observation and take the Chamber back 12 hours to when the noble Lord, Lord Purvis of Tweed, in an Oral Question on international development, spoke about a child being born in Sudan on the floor, with the umbilical cord severed with a stick. Think about what the life of a child growing up in those circumstances is like. That child will probably look, sound and behave differently from a gently nurtured child in the British environment. It may be hard to identify their age, but they are still developmentally a child. They still have the vulnerabilities of the British child; indeed, given all the experiences that they have likely been through, it is not hard to imagine that they have far more vulnerabilities, which we have a responsibility to protect. That responsibility is moral, but also legal.
I have just two sentences, really. I think it is unfair of the noble Baroness, Lady Bennett of Manor Castle, to disregard Migration Watch’s evidence in the off-hand way that she does. If she thinks it is inaccurate, that is one thing, but as an organisation it produces figures for which there is an evidential basis. It should not be disregarded just because it raises uncomfortable truths I understand the ethical concerns raised by the noble Baronesses, Lady Lister and Lady Neuberger, and others. On the other side of the scale is the question of maintaining public trust and confidence. We have a system that works clearly. It is important that we should bear that in mind, so the provisions of Amendment 151 seem to have some sense. In particular, I think that my noble friend Lady Neville-Rolfe’s suggestion of a review when we have had a chance to see how it all works, watch the evidence, hear the experts, look at the problems, and see what works well or not so well is an excellent idea. I therefore hope that the Government will think about Amendment 151A as providing some bridge between the two sides of this particular argument.
My Lords, like the tightening of restrictions on claims of modern slavery, which we will come to in a future group, here we have another solution in search of a problem, although here the proposed solutions are dubiously credible, as noble Lords have said Yet again, the Home Office statistics are misleading. In cases where the age of the child is in doubt, it transpires that the person concerned was in fact an adult in less than half of cases in 2019, and that was only in cases where those concerned were suspected of being an adult. Instances of adult asylum seekers claiming to be children in the hope of preferential treatment certainly does not justify the measures set out in Part 4; they are disproportionate to the problem they seek to solve I am surprised that we have got this far in the debate and that nobody has mentioned the Royal College of Paediatrics and Child Health—
I did.
Perhaps I was not listening—I do apologise. It says that puberty assessment and bone age assessment have been proved scientifically to be unreliable and that paediatricians should not be involved in age assessment. The RCPCH and other medical practitioners, such as dentists, as we have heard, consider it to be unethical to expose anyone to radiation from X-rays unnecessarily for non-clinical purposes. It also believes that age assessment requires informed consent, as other noble Lords have said, which it does not believe vulnerable young people such as asylum seekers are able to give No other child would be required to undergo such intrusive and potentially harmful procedures without the consent of a parent or guardian, yet the Government propose to subject unaccompanied child refugees to such procedures where consent would be given by “another person, of a description specified in regulations made by the Secretary of State”. Can the Minster explain who such a person might be and in what circumstances they would be able to give consent on behalf of the child, or is this yet another case of, “We can’t see how we can get around this problem, so let’s just say we’ll put it in regulations” Clause 51(7) says that refusal to undergo age assessment without a reasonable excuse should be taken as damaging to the credibility of a person. As others have said, this is coercion, plain and simple. In any event, the Royal College of Paediatrics and Child Health provides reasonable excuses for not engaging in the kind of scientific methods the Government are proposing, so there is no point in the Government pursuing scientific methods to establish age; there is a reasonable excuse for refusing to engage in the process Part 4 should not stand part of the Bill. To be clear, Clauses 48 to 56 should not stand part of the Bill, and the rest is window dressing.
My Lords, it is late, but we need to spend a little time on this whole part of the Bill. Notwithstanding the lateness of the hour and the few Peers who are here, we should not underestimate the number of people across the country who read our deliberations and debates and use them to inform their own views and to find out where the Government and others stand. It is important that we do this.
My Lords, I begin by thanking noble Lords who have tabled amendments and contributed to the debate for the thoughtful reflection on the clauses in the Bill which those amendments embody Many people who claim to be children when arriving in the UK do not have any definitive documentary evidence to support their claimed age. Unfortunately, some individuals seek to take advantage of the benefits of being treated as a child. A person’s age has serious consequences for their eligibility to access services under children’s legislation, and it also has significant ramifications for their treatment under the immigration system, so it is absolutely vital that the Home Office has sufficient information about a person’s age There are serious safeguarding risks associated with wrongly allowing adults to access services and spaces that should be properly reserved for genuine children, and vice-versa. It can also incur considerable financial costs to the taxpayer and undermine the integrity of the system. It has social costs, as parents and children become uneasy about the classrooms that their children inhabit—I am referring to the concerns raised by my noble friend Lady Neville-Rolfe. These reforms are intended to be a package of separate but complementary reforms designed to mitigate those risks. It is likely that the full implementation of these measures will take some time and occur in stages after the Bill has passed. It is also important to note that the age assessment provisions apply only to those individuals who are subject to immigration control As part of these reforms, the Government are establishing a decision-making function in the Home Office known as the national age assessment board, which will have the power to conduct age assessments on people whose claimed age is in doubt. It will not apply to every child or people who are obviously children but to those whose claimed age is in doubt. This is an important measure that will provide local authorities with three options upon encountering an age-disputed person. In such circumstances, the local authority can voluntarily refer the person to the NAAB, carry out an age assessment itself or inform the Home Office that it is satisfied that an age-disputed person is the age they claim to be. The Government want this to be a collaborative effort between central and local government, so that improvements in the system can be driven forward. I assure the Committee that age assessments will be conducted only where there is reason to doubt an individual’s claimed age. Under Clause 52, the Secretary of State may make regulations setting out the principles and processes to be followed by those undertaking age assessments. These regulations will apply to local authorities and the NAAB will create a clear and uniform set of standards and support decision-makers in achieving greater consistency Many noble Baronesses in the Committee expressed concerns about the scientific aspect of these tests. Let me make it abundantly clear: the Government do not claim that any scientific method in contemplation is, of itself—to borrow a phrase expressed by a noble Lord opposite—a silver bullet. Even where age assessments are conducted thoroughly and reach reasoned conclusions, they are fraught with difficulty. The Government recognise that. That is why we see these scientific methods, if they are found to come up to scratch, as potentially augmenting a process of understanding and giving a view as to a person’s age. At present, such methods have a wide margin of error. There have been examples where such assessments have been conducted on the same individual by different social workers and which came to different conclusions about that person’s age. Given that context, the use of scientific age assessments represents an additional and important source of evidence to help decision-makers in what we accept is a difficult task. In answer to the noble Baroness, Lady Hamwee, we make no claim that any method provides a complete answer. Rather, methods are complementary to one another and build up the available data Reference has been made to practice elsewhere. As stated by the noble Baroness, Lady Lister, I point out that various scientific methods of age assessment are already in use across most European countries. In Finland and Norway, for example, X-rays are taken to examine development of the teeth and the fusion of bones in the wrist. Given the challenges of assessing an individual’s age, we see no good reason why the use of such techniques should not also be properly explored in this country. Again in answer to the noble Baroness’s point in relation to ionising radiation, I should say that dental X-rays are an acknowledged diagnostic tool used by dentists in this country and the use of ionising radiation in this country is tightly regulated.
I apologise if the Minister was about to come on to this, but they are not being used as a diagnostic tool here. The whole point is that it is unethical to use such techniques when there is no clinical reason for doing so—but perhaps the Minister is going to address the point about the unethical nature of what is being proposed.
The point I was making is that they are used as a diagnostic tool in ordinary dentistry. I apologise to the noble Baroness if I—
Of course, but that is for a clinical reason. I realise that is what he meant, but my point is that then there is a reason for it because there is some problem with the child’s teeth, which is why they are using it as a diagnostic tool. Here, there is no problem with the child’s teeth; it is being used for a completely different reason, and the British Dental Association and others say that that is unethical.
As the noble Baroness anticipated, I will be going on to deal with the point that she raises There has been criticism of the unscientific basis for this. We have recently set up a new Age Estimation Science Advisory Committee to provide the Home Office chief scientific adviser with independent scientific and associated ethical advice recommendations for best practice and advice relating to issues raised by stakeholders on the implementation of scientific methods. The Home Secretary will decide about scientific methods only after considering the Home Office chief scientific adviser’s advice. The range of experts included in that committee is broad and includes medical statisticians, paediatric social workers, anthropologists, paediatricians, radiologists and psychiatrists As for the matter of allowing for an adverse inference to be drawn by a decision-maker if an individual refuses to undergo a scientific age assessment as specified in regulations without reasonable grounds, the Government recognise that there may be good reasons for refusing to undergo such a scientific age assessment but, where there are no good reasons for refusing consent, it is entirely right that the decision-maker can make that negative inference. Failure to provide for this would allow someone who deliberately and falsely claimed to be a child to simply refuse to co-operate and face no consequence, and that would undermine our ability to mitigate safeguarding risks. The drawing of negative inferences has precedent—for example, in measures bearing on access to welfare assessment In answer to a point raised by the noble Lord, Lord Paddick, the figures that I have are that, in relation to age disputes in the years 2016 to 2020, where such disputes took place, in the majority—54%—the result of the evaluation was that the person claiming to be a child was an adult.
My Lords, the figure that I quoted was for 2019, which is the most up-to-date figure. That is perhaps why there is a difference between the figures that the Minister has and the figure that I quoted.
I hear what the noble Lord has to say. As I say, the figures that I have bear on a broader field, from 2016 to 2020. Perhaps the discrepancy, if there is one, can be explored in terms of writing, if the noble Lord is content These reforms also provide for a right of appeal where there is a dispute as to each age assessment, and such an appeal will be heard in First-tier Tribunal, which will replace the current route of judicial review, which we anticipate will find a more cost-effective and quicker way of hearing these important matters In relation to Amendment 148, there is nothing in existing law precluding the ability of decision-makers to use scientific methods of age assessment in appropriate cases. We are aware of a number of cases in which dental X-ray examinations have been used. Clause 51(9) clarifies the pre-existing legal position that scientific methods that may not have been specified by the Secretary of State under subjection (1) may continue to be used where appropriate. However, a negative inference from a person’s refusal to undertake a non-specified method cannot be taken under this clause.
My Lords, I have no wish to delay the House at this late hour, but this is an important provision on which I am seeking assurances from my noble friend the Minister The purpose of my amendment is to ensure that any visa provisions in future trade agreements can come into effect only if they are approved by both Houses of Parliament. The need for this has arisen because of reports that the Secretary of State for International Trade plans to grant visas in trade agreements; for example, to Indian nationals as part of the proposed trade agreement with India. As I remember from earlier discussions on trade with India, with which I was involved some years ago, this is what that Government have always wanted I am uneasy about this. Visas, whether for study or anything else, are a matter for nationality law, not for trade agreements, and would need to be separately approved, as I have proposed. In the absence of assurances, I will want to return to the matter on Report. I beg to move.
My Lords, my noble friend Lord Paddick and I have registered our opposition to Clause 69 standing part of the Bill. These are penalties for unco-operative countries—refusing entry clearance, treating an application as invalid, levying extra fees—in fact, two pages of provisions if the country does not co-operate in the return of its nationals by the UK. I knew it would be late by the time we got to this group. I did not anticipate 3.07 am, but here goes Clause 69 says a lot about how we see our place in the world. Global Britain we are not. This is more about imperialist Britain—“We know best, and if you do not co-operate with us, we will penalise your citizens” —an excellent way to make friends and influence people and so useful when negotiating a returns agreement. Frankly, I am ashamed. Will that do?
My Lords, the noble Baroness, Lady Hamwee, was utterly to the point and delivered a very clear message which left me slightly surprised in how quickly she managed to do it We are talking about penalising individuals who might want to visit a grandchild, or come to study, who do not have control of their country’s visa regime. We are saying that we are going to cut those people off on that basis. We are saying, “Country X has to do what it is told.” As the noble Baroness said, this is no way to be a global citizen, as, indeed, is the case with many parts of this Bill However, I will finish this evening, given the hour, by agreeing with the noble Baroness, Lady Neville-Rolfe, on democracy and trade agreements. I hope she will embrace democracy around all elements of trade agreements.
My Lords, as my noble friend Lady Hamwee said, we do not believe that Clause 69 should stand part of the Bill. The clause allows visa penalties to be imposed on a country if the Home Secretary thinks—forms an opinion—that the country is not co-operating in relation to the return to the country from the United Kingdom of any of its nationals who require leave to enter or remain The penalties include not granting entry clearance to the UK to the country’s nationals, suspending entry clearance, requiring any application to be considered invalid, or to require the applicant to pay £190 in addition to the normal fee. Can the Minister explain how the Government arrived at £190? As the noble Baroness has just said, why should the ordinary citizens of a particular country be penalised for the actions of their Government, either by fining them or refusing them entry to the UK? What consultation has there been—and will there be—with the Foreign Office about the wider diplomatic picture concerning relations with countries that the Home Secretary intends to target with these measures I cannot imagine the Foreign Office being too impressed with a vengeful Home Secretary upsetting the diplomatic apple cart because she cannot have her way on deporting foreign nationals. A decade ago, there was no need for such measures. Why is there a need for them now? As Amendment 151B suggests, while the Home Secretary is making peace with the Foreign Office, perhaps she could ask it not to trespass on her territory by making trade agreements that include granting visa-free entry to the UK as part of the deal. I too agree with the noble Baroness, Lady Neville-Rolfe. I look forward to the Minister’s reply.
My Lords, I will not say much about this amendment, but the title of Clause 69 is astonishing: “Removals from the UK: visa penalties for uncooperative countries” Although we are rushing through clauses such as this, we will have to come back to it on Report. There are significant questions to be answered. Significant powers are given to the Government in the Bill How is pressure to be applied on the Governments of unco-operative countries with a view to improving their co-operation on removals from the UK? Where has this come from? What assessment have the Government made of it? Who else does it? What effect has it had? These are the sorts of things that, in Committee, you should go into real detail and find out about I have one specific question, which was also raised in the Commons. There is concern that the measure could shut down safe and legal routes to the UK by impacting on the granting of family reunion visas from certain countries as part of a resettlement scheme. This type of visa is overwhelmingly granted to women and children. When I read Hansard, I was grateful that the Minister in the Commons put on record and assured honourable Members that “given talk of penalties and exemption, family reunion will be an exemption to the penalties”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 567.] included in Clause 69. Given the importance of family reunion, as has been outlined in our discussions, will the Minister repeat this commitment—that Clause 69 will not, in any way, impact on the visas given for family reunion, even those from designated unco-operative countries?
My Lords, I thank my noble friend Lady Neville-Rolfe for explaining her Amendment 151B. We should recognise that the Immigration Rules and decisions about visa requirements are sovereign national powers which rest with the Home Secretary. I sympathise with my noble friend’s desire to retain national control over visa policy. We took back control of our borders when we left the European Union. We now have the freedom to set our own rules in the interests of the UK Trade and immigration are separate policy areas. The UK does not routinely discuss immigration in trade negotiations. Comprehensive free trade agreements typically include provisions on so-called mode 4 trade in services. These set the terms for the temporary movement of service providers between parties to the agreement. Immigration policy, as opposed to mode 4, is our overarching approach to long-term immigration and border controls My noble friend has expressed concerns about the Government’s free trade negotiations with India. As is standard in such agreements, I expect we shall explore more mode 4 provisions. These could support British and Indian businesses and consumers in our negotiations with India. It is not a one-way conversation. UK business stakeholders have identified mobility issues affecting UK service suppliers seeking to go to India. We may seek to address these in our negotiations, just as we have done in our free trade agreements with other partners, such as Japan, Australia and the EU. We would expect to do the same in any future comprehensive free trade agreements. Any agreement will be consistent with the points-based immigration system. We will not compromise the principles or functioning of this system.
My Lords, I thank my noble friend for his comments on visa penalties and for the debate. I found what he said about trade reassuring on sovereignty. I am less happy on the application of CRaG, because of course that gives us a vote only on a whole trade agreement. It is the provisions on visas or immigration that worry me. If a favourable trade agreement were presented to Parliament, obviously Parliament would not want to vote against that, so we have a little problem. It is late; perhaps I can reflect further on the matter in the coming weeks before we come back on Report. I thank my noble friend for his answer, and beg leave to withdraw my amendment.
My Lords, just before we go, I say on behalf of us all a very big thank you to clerks, staff of the House, the doorkeepers, the team in the Box and all the officials who have helped us tonight.