Immigration and Social Security Co-ordination (EU Withdrawal) Bill — House of Lords, 2020-09-14
Topic: Immigration
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, I have my name to this amendment on behalf of our Benches. The subject matter of this amendment, and that of later Amendment 62, are very close. Amendment 62 is about family reunion, and the noble Baroness, Lady Primarolo, in particular, referred to that. It will not escape the Committee that there is a particularly persuasive factor to Amendment 48, and that it is led by the noble Lord, Lord Dubs, whose track record in leading the House on issues relating to refugees, particularly child refugees, is second to none I do not want to repeat points that have been made about push and pull factors, or about children’s experiences. I am very clear about the moral issues that have been referred to. As the noble Lord, Lord Alton, has rightly reminded the House, the Government has not done nothing. It will, however, be hearing the call to do more I want to make some technical points. Ministers tell us they are working hard—I do not mean to impugn anything there—to ensure that unaccompanied asylum-seeking children are looked after in the best possible way after we leave the Dublin regulations. As we have heard, they have referred to the draft negotiating document, the draft working text for an agreement between the EU and the UK on the transfer of these children, but there are two problems. First, there is nothing firm about that text: member states "may" make a request to transfer a child, and the UK "may" make a request to member states. Secondly, the EU has no mandate to negotiate on behalf of member states on this. To deal with the latter first, the Security and Justice Sub-Committee of the House’s Select Committee on the European Union took evidence on the text in July from witnesses, including the noble Lord, Lord Dubs, and Professor Elspeth Guild, who explained the position to us. In the political declaration of last October, which is the basis for the commission’s negotiations—it has been given a mandate to negotiate on that basis—there was only one section on what is called illegal migration, which in turn is the basis for a draft agreement. That provides for co-operation to cover only three subject areas which do not include this issue. When I first read the political declaration I wondered whether illegal migration covered refugees at all because they are not illegal, but since one of the three issues is tackling problems upstream, that suggests that refugees come within it. However, I will not challenge a professor of law with posts at two prestigious institutions, and I follow her argument. The EU has no mandate in negotiations, but that is not the end of it. The UK cannot negotiate an agreement member state by member state, because this is, counter-intuitively in view of what I have said, a fully exercised competence of the EU, so it is not open to member states to negotiate with the UK. It is counter-intuitive and a Catch-22 situation. Professor Guild said: "The idea that we would be able to negotiate with each member state an equivalent of Article 6 of the Dublin regulations seems to me … astonishingly naive." It would need a lot of political will on all sides to sort this out through the UK-EU negotiations. We are all aware that matters are somewhat tense—would that be the right description? I, like others, am not optimistic about a positive outcome In January 2019, when the House was considering this issue, the Minister wrote to noble Lords that: "negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas", referring to "the traditional division between Government and Parliament" Given what we all know, or maybe do not know but suspect, about what is going on, is it wise to rely on the possibility of negotiation Apart from the principle, there are some shortcomings in the draft text of the provisions: the "may", not "must". It also says that no rights can be directly invoked in the domestic legal systems of the parties. That alone would make it hard to go along with the text. However, we can sort this out in domestic law, hence the amendment. The noble Lord, Lord Dubs, has been as persuasive as ever. The noble Lord, Lord Kerr, has been clear about channel crossings. I will not go on; I agree with pretty much everything—possibly everything—that has been said. Immigration Bills come along quite frequently, but we should not wait for the next one. The amendment is not a big ask; its objective, in proposed new subsection (5), is clear, but it requires strategy and clarity about reaching that objective. Crucially, it refers to the "child’s best interests". We should take this opportunity to provide this safe and legal route for children.