Nationality and Borders Bill — House of Lords, 2022-02-08
Topic: Immigration
David Wolfson (Conservative, Centre-right): 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.