Nationality and Borders Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Rosser (Lab)]

As my noble friend Lady Lister of Burtersett said in moving this amendment, Clause 11 provides that to be a group 1 refugee you must have presented yourself to the authorities “without delay”. This amendment would provide that vulnerable groups are not subject to this time constraint. As one sees from reading the amendment, this would include, though not exclusively, children, survivors of torture, sexual violence and gender-based violence, LGBT refugees, victims of modern slavery and disabled refugees. This is a probing amendment to find out more about how the “without delay” provision will work in practice. As has been said, traumatised people, for example survivors of sexual or gender-based violence, who are largely, but certainly not exclusively, women, do not always feel —to put it mildly—in a position to unburden themselves to the first complete stranger or border, immigration or other government official that they meet on arrival.

The position of single men and sexual orientation has also been raised. The noble Baroness, Lady Neuberger, referred to the article in the Times about single men who arrive from across the channel being detained and locked up. In a previous debate, I asked whether the Minister could say whether that Times article was true. I ask again: is that article true or false? It is important that we get an answer because it relates to this amendment as well.

As well as answering that question, I hope the Minister will give some indication of how the “without delay” provision will work in relation to the vulnerable groups covered by the amendment, what kind of leeway or otherwise the Government intend there to be and what exactly “without delay” means in this context.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate for what have been very thoughtful contributions. I will directly address the question that the noble Lord asked me in the previous group about locking single males up. I have not seen the Times article. If he will allow me, I will look at it and respond in due course.

Although the policy is intended to deter dangerous journeys and encourage people to claim asylum in the first safe country, I assure noble Lords that we have been very careful to strike the right balance between how the policy achieves its aim and protecting the most vulnerable, which is what noble Lords have spoken about this evening. Before I explain why I think statutory exemptions are probably not needed, I will offer a few thoughts in relation to how the “without delay” element of Clause 11 is anticipated to operate.

There are two broad categories under which I envisage the exercise of discretion is most likely to be appropriate. The first is where a person finds themselves unable or unwilling to present themselves to the authorities for any reason that pertains to their proposed asylum claim. In such instances, there will need to be very careful consideration of whether it was reasonably practicable for that person to have claimed without delay. For example, if they had been tortured—noble Lords have given this sort of example—suffered sexual violence at the hands of state authorities or, indeed, feared admitting their sexual orientation due to state persecution on those grounds, this sort of situation would trigger very careful consideration.

The second category is where a person was simply not in control of their actions. In such circumstances, we would also be very careful to consider the facts of that case when determining whether it was reasonably practicable for that person to have claimed without delay. I think primarily of victims of human trafficking, unaccompanied children, and those suffering serious physical or mental disabilities.

The noble Baroness, Lady Lister, asked about statistics. I do not have them to hand, but I will try to get them.

On the guidance and training, one of the things that I looked into in great detail way back, when we talked about LGBT people in the detention estate, was how practitioners went about establishing claims made on the basis of a person’s sexual orientation. It is fair to say that, back in the day, “clunking” would probably have been a charitable word to use—some of the ways people were questioned were on the verge of being inhumane. We really went to extraordinary lengths to try to change that and make it a much more humane process. It is now about establishing the reasons why someone is making a claim, not proving it, so our policies and training are now designed to support claimants in being able to explain their claim in a very sensitive and safe environment. Our approach, I can confirm, is trauma informed.

Our guidance on sexual orientation and gender identity, as I said previously, was developed to take these issues into account—UNHCR, Stonewall and Rainbow Migration contributed to its development—and we will review and update our training and guidance where necessary to support people who are LGBT+. I confirm again that this will take people’s experiences into account, including the trauma that they have suffered. I thank those organisations, particularly Stonewall, Rainbow Migration and UNHCR, that have helped to make the process far more humane so that people’s very difficult journeys and experiences are eased somewhat by our attitude and approach.

[Baroness Lister of Burtersett (Lab)]

I thank noble Lords very much for their support for this amendment—their willingness to apply some lipstick to the pig that I think we would all like to be rid of. Some very powerful speeches made the case very strongly for why the groups which are listed may well have good reasons for delay. I take the point that any asylum seeker is, by definition, likely to be vulnerable, but we are talking here about those who have particular vulnerabilities.

I thank the Minister for giving more of a sense of what will happen. It is late and I need to read what she said, but I think that the powerful speeches from noble Lords and the Minister’s response justified our taking this as a separate amendment. As I have said, it was not interrogated in the Commons; this has given us a chance to do that.

I thank the Minister for saying that she will look into the statistics—it was I, in fact, who raised it; I think Women for Refugee Women would value having whatever statistics are available. However, just last week, the British Red Cross produced research suggesting that, for all the better training and guidance, women asylum seekers are still treated very badly, with a lack of gender sensitivity and trauma sensitivity. I would encourage the Minister to read this research, think about it and see what more needs to be done.

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[Lord Rosser (Lab)]

My Lords, one of the ways that the Government can differentiate under the Bill between group 1 and group 2 refugees is to apply “no recourse to public funds”. The two probing amendments in this group would remove that provision. I listened with interest to what the noble Baroness, Lady Stroud, had to say, as I did to my noble friend Lady Lister of Burtersett in moving the amendment. The noble Baroness, Lady Stroud, asked what the policy intent of NRPF is—I think she asked that twice during her contribution. Having heard the view of the noble Lord, Lord Hunt of Wirral, I will be interested to hear what the Government’s view is of the policy intent behind no recourse to public funds being applied to group 2 refugees.

We fully agree with these amendments, which are probing. A question was put to the Minister, and I simply want to support that ask of the Minister to set out in detail when the Government would consider this an appropriate differentiation to use, and in what cases. To whom within group 2 refugees do the Government expect this differentiation on no recourse to public funds to be applied, and in what circumstances? Against what criteria will that decision be made?

We are not talking about applying no recourse to public funds to persons without a valid refugee claim or economic migrants. Clause 11 applies solely to people the Government recognise as refugees with a valid right to be here and to seek safety. Bearing that in mind, it would be interesting to find out in what circumstances they think it appropriate to apply no recourse to public funds to people in the group 2 category.

[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords for explaining their Amendments 46 and 54. As I have said elsewhere, I hope I can reassure the Committee that the powers under Clause 11 are both broad and flexible.

To come first to the question of the noble Lord, Lord Rosser, there is no obligation to exercise the provisions and, where they are exercised, there is no requirement to do so in any particular way. We will of course produce guidance and rules in this respect in due course, but those products will reflect the flexibility in the clause by providing appropriate discretion to take into account people’s individual circumstances.

The same therefore applies to no recourse to public funds. Details will be set out in due course, but I reassure noble Lords that we will take particular care to take into account relevant factors when considering the imposition of the condition, if it is imposed at all, including the impact on families, children and other vulnerabilities that have been raised elsewhere. In addition, we are mindful of potential impacts on local authorities and wider civil society. The policies in the Bill are of course subject to an impact assessment in any event. I stress that no one will be NRPF if they would otherwise be at risk of destitution. If they are, they can apply for a change of conditions to remove the condition.

I shall pick up on a few points. The first was about the policy intent, which is to disincentivise dangerous journeys. My noble friend Lord Hunt of Wirral is right: we have to disincentivise people from risking their lives.

My noble friend Lady Stroud talked about safe and legal routes. She was probably not in the Chamber when I laid out absolutely all of them. I refer her to the letter I sent to the noble Lord, Lord Dubs, setting all of them out, including several routes for family reunion; I hope she will take a look at that. I commend her on coming up with the solution, yet again, of working with the French. I agree that we need to work not only with the French but with other countries because this is a global problem that now requires a global solution from each and every state on the globe.

I turn to push factors versus pull factors. Push factors do not explain secondary movement, there is no doubt about that. If push factors were all, people would stop in the first safe country that they reached—that is an absolute fact. We must keep all options on the table to stop illegal migration. I hope, but doubt, that I have reassured the noble Baroness that I appreciate and understand her concerns, and the requisite levels of discretion and sensitivity will be exercised with respect to—

[Baroness Stroud (Con)]

I thank my noble friend for giving way. I would like to clarify one point. I think she is saying that the removal or application of, or access to, public funds is discretionary. If that is the case, who has the discretion to apply or withdraw them? It is unusual for the welfare state to be quite so discretionary and, in effect, subject to subjective judgment. It would help to have clarity as to who can say this person will have access to public funds and that person will not.

[Baroness Ludford (LD)]

Before the Minister answers—I am sorry to prolong the debate; I was going to leave this point until group 8 on the right to work—she talked about pull factors being an absolute fact, but the Migration Advisory Committee said in its annual report in December:

“To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made.”

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness, but I disagree.

To answer my noble friend’s intervention about who decides, it is caseworkers.

[Lord Rosser (Lab)]

I may have misunderstood the thrust of what the Minister has said on behalf of the Government, but it came over to me that the reason why we have no recourse to public funds is to disincentivise dangerous journeys—that is, people will know that there is no recourse to public funds, and if they know that it may make stop them making those journeys.

If that is the case, why cannot the Government tell us the circumstances in which no recourse to public funds will apply? Their response has been, in effect: “Someone will draw up guidelines later on, but we do not know at the moment what they will say or the circumstances in which there would be no recourse to public funds.” In that situation, it just is not credible to say that something where the Government do not know how it will be applied would act as a disincentive on dangerous journeys.

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[Baroness Williams of Trafford (Con)]

Yes, my noble friend is absolutely right. It is not unusual for guidelines to be drawn up after legislation has been brought in.

[Lord Rosser (Lab)]

It is true that it is not unusual for guidelines to be drawn up subsequently but, presumably, in including the provision in the Bill, the Government had at least some idea of the circumstances in which it would be applied. The answer I am getting now is that they cannot tell us any circumstances in which it will definitely apply.

[Baroness Williams of Trafford]

It might be helpful to the noble Lord if I outlined situations in which it might be applied, as opposed to putting them in the Bill. I am very happy to go away and look at that and write to him with some examples of where it might be applied—I get his point on that.

[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who have spoken. There have been some very powerful arguments for the amendment. I am particularly grateful to the noble Baroness, Lady Stroud: she put it better than anyone else could, drawing on her knowledge of these issues. I thank the Minister but I must say that I am disappointed. The whole point of the amendment was to try to get a bit of clarity—my noble friend Lord Rosser has been trying, without success—but, to be honest, I am none the wiser now than I was at the beginning as to who will and will not be subject to the “no recourse to public funds” rule.

The noble Baroness, Lady Stroud, made the point that discretion involves subjective judgment. I have been involved in social security for a long time. There was a reason why we reduced the element of discretion in it: because subjective judgment may be used in ways that we do not feel very happy with. It can be negative as well as positive. All that we know about the culture of disbelief in the Home Office, the refugee system and so on does not fill me with great hope.

I am glad that the Minister said that she will write to my noble friend; I hope that she will copy it to everyone who has taken part in this debate. I hope that she will look at Hansard and the questions I asked to see whether she can answer some of them. If she cannot, it suggests that, as my noble friend said, this has been put in the Bill without a clue as to what it will actually be used for—and that is not good.