Nationality and Borders Bill — House of Lords, 2022-02-03
Topic: Immigration
Terence Etherton (Crossbench, Unknown): My Lords, I support the proposal from the noble Lord, Lord Rosser, to exclude Clause 15 from the Bill, for a wide variety of reasons First, if a claim is deemed to be inadmissible but to satisfy the convention, that seems effectively to be saying that the person is not a refugee within the convention. That does not make sense. If they satisfy the definition of refugee within the convention, they have a claim. It can be dismissed, and then there will be a right of appeal. What cannot be said—which is effectively what is being said here—is "We’re not going to hear you at all, even though you are a refugee within the strict terms of the convention". So I take issue with the very idea of inadmissibility with no right of recourse at all by way of an appeal Secondly, the terms of Section 80C to be inserted into the 2002 Act in relation to four and five seem completely contrary to both the wording and principle of the convention. My understanding of Clause 4 is that it is, in some way or other, intended to be made analogous to the Dublin III regulation There are a number of points to be made about that. First, we are no longer part of the EU or of the Dublin regulation. Perhaps more importantly, EU member states themselves have recognised that the Dublin regulation has failed. On 23 September 2020, the European Commission adopted what they called the New Pact on Migration and Asylum, following consultations with the European Parliament, member states and various stakeholders. The PR notice from the European Commission, which is available on the internet, states: "The new pact recognises that no member state should shoulder a disproportionate responsibility and that all member states should contribute to solidarity on a constant basis." It has failed because the effect of the Dublin regulation, when strictly applied, means that certain states are overwhelmed with refugees because they are inevitably the first state on the way through to somewhere else. What is happening at the moment is that the Commission is proposing to replace the Dublin III regulation with a new regulation on asylum and migration management. So, frankly, there is no point in referring to the Dublin III regulation. It has failed in practice, and we should not be emulating it Furthermore, proposed Section 80C(4) is inconsistent with the terms of the convention itself. There is nothing in the convention, in Article 31 or anywhere else that makes this "connection" mean that a refugee claim would fail I have another point about condition 4, and I would welcome clarification from the Minister on it. The description that would render a connection with the state, and therefore the claim, inadmissible is exactly the same as the definition of arriving "directly" for the purposes of Clause 11. Clause 36 effectively amplifies Clause 11 and paragraph 1 of Article 31 of the convention. It says: "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." On this particular approach, you are never going to get anywhere near Clause 11 because you will be knocked out under Clause 15—so I do not understand that contradiction. Once you fall within condition 3, which is the same as condition 4—which is the same as not arriving directly under the definition in Clause 36 —you are knocked out. So which is it—are you knocked out or do you still have some right under Clause 11, admittedly, to show that you could with good cause fall within either group 1 or even group 2? I am left confused by that Condition 5, on which the noble Lord, Lord Rosser, and others have eloquently spoken, provides "that, in the claimant’s particular circumstances, it would have been reasonable to expect them to have made a relevant claim to the safe third State (instead of making a claim in the United Kingdom)." Nothing in the Dublin regulations says that, even if they were to apply—and there is certainly nothing in the convention that would make such a condition apply to exclude a claim So I support the suggestion that Clause 15 should be excluded because, with respect, it seems to be a muddle in a whole series of different respects—legally, practically and in principle.