Nationality and Borders Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Etherton (CB)]

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.

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

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”.

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[Baroness Williams of Trafford (Con)]

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 Lord Bishop of Durham]

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.

[Baroness Williams of Trafford (Con)]

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—

[Lord Rosser (Lab)]

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?

[Baroness Williams of Trafford (Con)]

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.

[Baroness Lister of Burtersett (Lab)]

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.

[Baroness Williams of Trafford (Con)]

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—

[Lord Cormack (Con)]

My Lords—

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[Baroness Williams of Trafford (Con)]

I will not take the intervention just yet. I do not generally make misleading comments standing at the Dispatch Box. I will further write.

[Lord Cormack (Con)]

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?

[Baroness Williams of Trafford (Con)]

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.

[Baroness Stroud (Con)]

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?

[Baroness Williams of Trafford (Con)]

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—

[Lord Paddick (LD)]

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?

[Baroness Williams of Trafford (Con)]

The noble Lord talks about deportation; we generally refer to deportation in the context of criminals. No, it is not under those provisions.

[Baroness Lister of Burtersett (Lab)]

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.

[Baroness Williams of Trafford (Con)]

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.

[Lord Kirkhope of Harrogate (Con)]

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.

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[Lord Rosser (Lab)]

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?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

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.

[Baroness Jones of Moulsecoomb (GP)]

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.

[Lord Wolfson of Tredegar (Con)]

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—

[Lord Green of Deddington (CB)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Alton of Liverpool (CB)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Ludford (LD)]

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.

[Baroness Hamwee (LD)]

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?

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Chakrabarti (Lab)]

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?

[Lord Wolfson of Tredegar (Con)]

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—

[Lord Anderson of Ipswich (CB)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Brown of Eaton-under-Heywood (CB)]

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?

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Rosser (Lab)]

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?

[Lord Wolfson of Tredegar (Con)]

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.

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[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Ludford (LD)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Kerr of Kinlochard (CB)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness McIntosh of Pickering (Con)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Brown of Eaton-under-Heywood (CB)]

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”.

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Lister of Burtersett (Lab)]

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?

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Rosser (Lab)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Rosser (Lab)]

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?

[Lord Wolfson of Tredegar (Con)]

The pressure has come from the people of the United Kingdom, who elected this Government with an overwhelming majority.

[Lord Berkeley of Knighton (CB)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Chakrabarti (Lab)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Lister of Burtersett (Lab)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Paddick (LD)]

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?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Dubs (Lab)]

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.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Paddick (LD)]

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?

[Lord Wolfson of Tredegar (Con)]

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—

[Lord Sentamu (CB)]

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—

[Lord Sentamu (CB)]

I am giving an example of why Article 31, without the amendment, does not work.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Paddick (LD)]

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.

[Lord Wolfson of Tredegar (Con)]

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.

[Lord Kerr of Kinlochard (CB)]

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?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

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.

[Baroness Ludford (LD)]

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.

--- Later in debate ---

[Lord Coaker (Lab)]

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.

[Baroness Williams of Trafford (Con)]

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.

[Lord Dubs (Lab)]

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.

[Lord Hylton (CB)]

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?

[Baroness Williams of Trafford (Con)]

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.

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[Lord Rosser (Lab)]

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.

[Baroness Williams of Trafford (Con)]

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.

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[Lord Alton of Liverpool (CB)]

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.

[Baroness Williams of Trafford (Con)]

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.

[The Lord Bishop of Durham]

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.

[Baroness Williams of Trafford (Con)]

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.

[Baroness Chakrabarti (Lab)]

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—

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

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—

[Baroness Chakrabarti (Lab)]

It is always me.

[Baroness Evans of Bowes Park (Con)]

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.

[Baroness Jones of Moulsecoomb (GP)]

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.

[Baroness Chakrabarti (Lab)]

The intervention was on me—

[Baroness Evans of Bowes Park (Con)]

I am sorry; I did not mean it to be about the noble Baroness.

[Baroness Chakrabarti (Lab)]

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.

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[Baroness Evans of Bowes Park (Con)]

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.

[Lord Rosser (Lab)]

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.

[Lord Dubs (Lab)]

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—

[Baroness Williams of Trafford (Con)]

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.

[Lord Dubs (Lab)]

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.