Nationality and Borders Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Lord Etherton (CB)]

My Lords, the provisions for an admissible asylum claim, where there is a connection —as defined in new Section 80B, which is to be inserted into the 2002 Act—are quite plainly contrary to the refugee convention and a breach of the UK’s obligations under it. In particular, the conditions in new Section 80C(4), which is where a claim could have been made to a third state—the claimant was present in a state eligible to receive and offer a safe space for him or her—and new Section 80C(5), where the claimant should have made a claim to a safe third state whether or not he or she had ever visited or been associated with it, are both plain breaches of the convention and find no place in its wording.

Condition 4 in new Section 80C is really another way of stating the coming directly from the country of persecution requirement in Clause 11 and Clause 36(1). On Monday this House rejected the Government’s interpretation of Article 31 of the convention in relation to that requirement, by rejecting Clause 11 as part of the Bill. With regard to condition 5 there is nothing whatever in the convention to justify rejecting as inadmissible a claim to asylum by a refugee as defined by the convention in the circumstances specified there. The only explanation, or example, given in the Explanatory Notes, is where the asylum seeker has close family members in the safe third country, whether or not there is another connection of any kind whatever.

Both these conditions are a rewriting of the convention and not a legitimate interpretation of it. The fact that Clause 15 provides, in new Section 80B of the 2002 Act, that a decision that a claim is not admissible because of an asylum seeker’s connection to a safe third state is not subject to a right of appeal, makes Clause 15 an all the more egregious breach of the convention. There is, in effect, no legal redress for the refugee if the Secretary of State has declared the asylum claim inadmissible under the proposed safe third state provisions.

Logically this leads to the conclusion that Clause 15 should be left out of the Bill. I am content, however, to support the alternative approach of the noble Lords, Lord Rosser and Lord Paddick, in Amendment 32, which is to fix a start date for the Clause 15 provisions if a formal returns agreement has been reached between the United Kingdom and a third state to which it is said the asylum seeker has a connection.

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

My Lords, I thank noble Lords for their contributions. I say at the outset that the Government have been consistent and clear about their belief that people who require international protection should claim asylum in the first safe country they reach, rather than make dangerous and unnecessary journeys to the UK to claim asylum here.

Inadmissibility processes, in particular the first safe country principle, are well established, both in the UK, through long-standing measures in the Immigration Rules, and internationally, including as part of the Common European Asylum System. For example, the procedures directive recognised at recital 22 that

“Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country.”

An overriding objective of these processes is to prevent secondary movements by those who have already reached safety. By definition, that is not about denying safety to those who need it but about having rules which aim to reduce unnecessary travel across borders by those who are already safe.

Amendment 31 seeks to remove third-country inadmissibility powers from primary legislation altogether. It would weaken our ability to deploy inadmissibility processes appropriately and decisively within a strong legal framework, and with that, erode our ability to deter unsafe migration and focus our resources on those most in need of our help.

We are confident that the measures in Clause 15 are fair, appropriate and fully in line with our international obligations. The clause sets out the strict circumstances in which a person’s behaviour or circumstances could lead to inadmissibility action. It requires decision-makers to take account of exceptional mitigating factors that may apply when considering those circumstances. It sets out minimum criteria that must be met by any country before it can be regarded as a safe third country of return, including it being one where a person would not be at risk of persecution, would not experience a breach of Article 3 ECHR rights, and would not be sent to another place where they would be persecuted.

The primary protection afforded refugees under the refugee convention and its protocol is non-refoulement, including no onward refoulement. It is therefore clear that non-refoulement is the primary requirement of “safety”. The same is true for protection afforded under Article 3 of the ECHR. Furthermore, an individual may not meet the definition of refugee under the convention but still require protection. A state may still be safe for them where they will not be refouled, even though they are not a refugee. Therefore, our criteria for determining whether a country is safe, and for subsequently making a claim inadmissible, upholds the UK’s obligations under international law.

Nothing in Clause 15 requires extensive delay in processing inadmissibility decisions. It is right that we consider inadmissibility action and, where appropriate, seek the agreement of the relevant third country, or countries, for the person’s admission there. In some cases, particularly where we are reliant on case-by-case requests to partners, this may take some time, but we have not operated, and will not operate, the inadmissibility system in a way that puts someone in indefinite limbo, as the noble Lord, Lord Paddick, talked about—able to access neither the asylum system in the country of proposed removal nor the UK system. That would be contrary to the object and purpose of the refugee convention. Our existing processes, which Clause 15 strengthens, are clear that where return cannot be arranged within a reasonable period, the person’s claim would be admitted to the UK asylum system for substantive consideration. That ensures compatibility with the refugee convention.

Individuals will have an opportunity to explain their actions and circumstances prior to claiming asylum in the UK, and that explanation will be carefully considered in deciding whether an inadmissibility decision is appropriate. They will also be able to make representations on why any safe third state is not safe in their particular circumstances. Any decision to declare a claim inadmissible and remove an individual will be subject to the standard principles of public law, including rationality. The inadmissibility provisions are therefore compatible with the refugee convention. For these reasons, I do not agree with the amendment seeking to leave out the clause.

Turning to Amendments 32 and 86, as we have stated on previous occasions, the UK-EU joint political declaration made clear the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements on issues around asylum and illegal migration. We continue to do that with EU member states on these issues. We have been clear that formal agreements, though valuable, are not the only way in which an inadmissible asylum seeker may be accepted for removal by a safe third country. I think it is right to seek removals on a case-by-case basis where appropriate and, with the consent of the relevant country, make that removal. This approach has formed part of our inadmissibility process since the changes to the Immigration Rules in December 2020—and, until the Bill’s provisions come into force, we will continue to rely on the Immigration Rules.

The structure of case-by-case removal arrangements will not be uniform for each country of removal. A wide range of factors will still affect the formality and administration around such removals, not least the diverse organisational structures in place in the third country, the levels of centralised and decentralised decision-making, and other circumstances that may be specific to the individual. These arrangements will inevitably vary, but the framework in which cases are considered, within which third countries are assessed for safety and claimants are progressed to removal, will not. We have a clear and consistent approach to these fundamental and important issues, and we stand by our international obligations.

I do not agree that these provisions are unworkable without formal agreements in place. We aim to make the process work as a whole and to return people where appropriate. Where it becomes clear that an individual cannot be removed to a safe country, either because we do not have formal returns agreements in place or because a case-by-case removal cannot be agreed within a reasonable period, the individual’s asylum claim will be considered in the UK. To go back to the assertion made by the noble Lord, Lord Paddick, I say that this will ensure that we do not keep people in limbo, in accordance with our obligations under the refugee convention. I do not think this amendment is required and ask that it be withdrawn.

[Lord Paddick (LD)]

Before the Minister sits down, can she clarify? She insists that the Government’s intention is not to put asylum seekers into indefinite limbo; in other words, if the Government attempt to send them back to a safe third country and fail to do so, at the moment there is a six-month time limit on that. Can the Minister confirm that there is nothing in the Bill to prevent an indefinite status of limbo?

[Baroness Williams of Trafford (Con)]

Given what I have already stated about an indefinite state of limbo, surely the Minister’s words would have some sort of weight. I have also said that any decision to declare a claim inadmissible and remove an individual will be subject to standard principles of public law, and that we will consider their obligation within a reasonable time.

[Lord Rosser (Lab)]

I thank the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton, for their contributions to the debate. I also thank the Minister for her response. I appreciate that there are two amendments down: one takes the clause out and the other seeks to amend the clause to provide for safe return agreements to be put in place. I appreciate that other noble Lords can ask for a vote, but I will not be seeking a vote on taking the clause out. Instead, I intend to seek a vote on the amendment we have put down.

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16:17

Division 1

Ayes: 221

Noes: 172

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[Lord Coaker (Lab)]

My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.

As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.

There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.

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

My Lords, I am grateful to my noble friend Lady Neville-Rolfe for raising the issue and of course I understand the concerns that lie behind it.

Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where, conversely, there are good reasons for providing evidence late, that would not affect the claimant’s credibility.

The concept that certain conduct should be damaging to credibility is not new. Decision-makers must already consider the claimant’s conduct. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. The focus of Clause 18 is, therefore, the Home Office and then the judicial decision-making process. It is intended to address the issue of late evidence raised in unfounded protection and human rights claims and put beyond doubt that behaviour designed to abuse the system will be taken into account. Clause 18, therefore, is intended to apply to those individuals who have made a protection or human rights claim and have been issued with an evidence notice as per Clause 17. It is not intended to apply, for example, to individuals immediately when intercepted in the territorial waters of the United Kingdom.

Against that background, I suggest that Amendment 33 is unnecessary. The destruction, alteration or disposal of a passport without reasonable explanation, or the failure to produce a passport on request to an immigration officer or to the Secretary of State—again, without reasonable explanation—are behaviours to which Section 8 already applies. The good faith requirement in the Bill is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Specific instances of a lack of good faith are necessarily caught by the broader provision that refers to good faith: the greater includes the lesser. Therefore, there is no need to single out the behaviours prescribed in this amendment.

As to the detail of the amendment, I say that verification of someone’s identity normally takes place on land. However, should a claimant be in possession of their passport or identity document and fail to provide this when requested by an immigration officer, Section 8 will apply, as I said. Moreover, where evidence is provided late following receipt of an evidence notice in a protection or human rights claim—again, without good reason—this should be taken into account as damaging the claimant’s credibility.

As this amendment refers to specific examples of behaviour designed to abuse the system, and that type of behaviour as a whole is already caught by the provisions of the Bill, I respectfully suggest that the amendment is necessarily unnecessary. For those reasons, I respectfully invite my noble friend Lady Neville-Rolfe to withdraw it.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank those who have spoken in this brief debate. The very real problems of refugees, noted by the noble Lord, Lord Hylton, and of course the fact that some people do not have passports are very well understood by me. That is why my proposal is to add an extra factor that needs to be taken into account, not least to reduce the power and profiteering of the traffickers. As has been said, tribunals and officials can then take a fair view.

Having said that, I think that there seems to be a chink of light in some of the comments from my noble friend Lord Wolfson on how this would work. Perhaps we could discuss further before Third Reading what the Government’s approach will be, the associated regulations and so on. I am very conscious that we need time for many votes today, especially as the electronic system seems a bit slow, so for today I beg leave to withdraw my amendment.

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[Lord Coaker (Lab)]

My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.

The amendment relates to Clause 25(2), which says:

“Unless there are good reasons why the evidence was provided late”.


It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.

At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.

As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.

[Lord Wolfson of Tredegar (Con)]

My Lords, I thank the noble Baroness, Lady Coussins, for her engagement with me, as the House will have heard, on the amendment, which she has redrafted since Committee, for the reasons she set out in her speech. I am also grateful to the amendment’s co-sponsor, the noble Baroness, Lady Lister of Burtersett.

We have a proud history of providing international protection to those most in need. This is a responsibility that we take seriously, but we need a system that is efficient as well as effective. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers have regard to the principle that minimal weight is given to evidence that is late following the receipt of either an evidence notice or a priority removal notice without good reason. The House will appreciate that Clause 25 is therefore essential to the architecture of this part of the Bill. However, at the same time, it is important not to tip the balance too far. Decision-makers in the Home Office and the judiciary will maintain their discretion as to whether, having considered the principle and in the absence of good reasons for lateness, it is appropriate in all the circumstances of the particular case to apply minimal weight to late evidence, taking into account the claimant’s particular claim and any specific vulnerabilities.

I have been asked to define “good reasons”. This has not been defined in the Bill for, if I may say so, a good reason. We cannot legislate for every case type where someone may have good reasons for providing late information or evidence in relation to their protection claim. To do so would be impractical and would detract from the important principle that decision-makers are best placed to consider an individual’s particular vulnerabilities on a case-by-case basis. I say this because “good reasons” can include both objective factors, such as practical difficulties in obtaining evidence—for example, where the evidence was not previously available—and subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental and physical health. Decision-makers must be able to respond on a case-by-case basis.

I contrast that with Amendment 34, which would place an obligation on decision-makers not only in the Home Office but in the judiciary to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. I suggest that this would undermine the principle that we want decision-makers and the judiciary to apply their discretion on a case-by-case basis. By setting out a non-exhaustive list—I appreciate that it includes the words “not limited to”—of potential experiences or categories of claimant, it is true that this amendment does not exclude those not listed in the amendment from having good reasons. However, in any non-exhaustive list, there is a risk of focusing attention on the factors in the list, thus putting other applicants with different issues at a relative disadvantage.

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[Baroness Lister of Burtersett (Lab)]

Just before the noble Lord sits down, can he say whether there will be any consultation on the guidance? Can someone write to me on that point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not have the detail at my fingertips, but I can certainly undertake to write to the noble Baroness. I was just about to sit down after inviting the noble Baroness, Lady Coussins, to withdraw the amendment for the reasons that I have set out.

[Baroness Coussins (CB)]

My Lords, I thank the Minister for his reply and all other noble Lords for their support on this amendment.

I was very happy to hear the Minister’s commitment, having discussed it with the Home Office, that there would be new guidance. Assuming that this new guidance on late evidence is genuinely expanded and strengthened, this has the potential to go a long way towards meeting my objectives. However, I underline the point just made by the noble Baroness, Lady Lister, that it would be very helpful to be consulted on a draft before the two-month cut-off point when the new guidance would come into force. I would be very grateful if Home Office colleagues could take that on board. Although the noble Lord is an MoJ Minister, can he please keep on this as well, and ensure that the Home Office does not lose sight of this guidance in the greater scheme of things?

Assuming that this will be on track, it amounts to a satisfactory way of meeting my objectives and would give vulnerable and traumatised refugees some of the comfort that they deserve. On that basis, I beg leave to withdraw the amendment.

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I fully sympathise with what the noble Baroness, Lady Stroud, said in reiterating that a number of questions had been asked in Committee and we have not had a response. Quite honestly, if the Government are not prepared to tell us what they intend to do and why, and answer legitimate questions raised by Parliament, which surely has a right to know the answer, then I sincerely hope that Amendments 35 and 37 get carried if they are put to a vote. I have tabled amendments about leaving out Clause 28, but we would be prepared to support the amendments spoken to by the noble Baroness, since they take out the worst parts of Clause 28.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I thought it might be helpful, although we will be dealing with this in further groups, to start off about Ukraine and our support for our friends and colleagues there. I know that things are moving quite quickly, and noble Lords may not have caught up with the latest, so I thought it might be helpful to outline it.

We are establishing an expansive Ukrainian family scheme that will allow British nationals and settled people in the UK to bring a wide group of family members to the UK, extending eligibility to adult parents, grandparents, children over 18, siblings and their immediate family members. We are committing to establishing a humanitarian sponsorship pathway, which will create a new route to the UK for Ukrainians. These will be fee free; no fee will be required for any of the elements of the packages we are offering.

In terms of other support, we have extended visas for Ukrainian temporary workers in some sectors so that they can now stay until at least 31 December 2022, if they cannot return to Ukraine. We are providing £40 million-worth of humanitarian support to provide Ukrainians with access to basic necessities. This will be on top of the £100 million-worth of ODA funding that has already been pledged for energy, security and reform.

We have deployed a team of UK humanitarian and military logistics experts to the countries neighbouring Ukraine. We have called on Russia to enable humanitarian access and safe passage for civilians to flee the violence. We also have 1,000 troops on standby to support the humanitarian response in the region. We stand ready to further support Ukraine’s economy through £500 million- worth of multilateral development bank guarantees. I think that demonstrates that we are trying to do everything we can to help our Ukrainian friends and colleagues.

Before I turn to the amendments, I will update the noble Baroness, Lady Lister, on the letter. I will not assert that it was sent at 3 pm, but that is my understanding. Given my record on letters in this place, I know that the noble Baroness will come back to me if she has not received it—

[The Lord Bishop of Durham]

I say to the Minister that 3 pm today is far too late for this debate, and we have not received it.

[Baroness Williams of Trafford (Con)]

I do not deny that 3 pm is too late, but that was my understanding. I will chase it, if indeed it did not go. I am glad I did not assert that comment, because I have been proved—

[Baroness Stowell of Beeston (Con)]

My Lords, it may assist my noble friend to know that I have received the letter.

[Baroness Williams of Trafford (Con)]

I am so pleased that my noble friend has been able to confirm that to me. I was just trying to be helpful.

In terms of these amendments, I will remind noble Lords from the outset that changes within Clause 28 via the schedule do not enable overseas asylum processing. The final arrangements will depend on our negotiations with like-minded partners. The arrangements will of course be compatible with our domestic and international obligations—this goes to the point made by the noble Baroness, Lady Jones of Moulsecoomb. On the face of the Bill, we set out the requirements a state must meet for us to remove a person with a pending asylum claim there.

I turn now to the amendments. Changes within Clause 28 via Schedule 3, which the noble Lords, Lord Paddick and Lord Rosser, and my noble friend Lord Kirkhope propose, relate to two policies. The first is to improve our ability to remove individuals with no right to remain in the UK to safe third countries. The second supports our future objective of enabling asylum processing overseas by making it possible to remove someone overseas while their asylum claim is pending and without having to issue a certificate under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 in every case. I will now consider each policy in turn.

At the moment, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative, and in some cases unfounded, Article 3 human rights claims. The changes we propose will ensure we continue to adhere to our obligations under the ECHR, while preventing unnecessary delays to removal. The introduction of a rebuttable presumption that an individual’s rights under Article 3 will not be breached in certain specific safe countries, upon their removal there, is intended to prevent speculative, unfounded human rights claims from delaying removals—although individuals will be able to present evidence to overturn this presumption to prevent removal. It will also make changes to simplify the current legislative drafting in relation to asylum claim appeals, although the effect remains the same: an individual has no right of appeal against the decision that removal to the specified countries would not breach the UK’s obligations under the refugee convention. I cannot support Amendments 36 and 39 which, perhaps unintentionally, block these important improvements to our ability to swiftly remove individuals who have no basis to remain in the UK.

As I made clear in Committee, we are currently undertaking discussions with like-minded partners which seek to establish overseas asylum processing. This policy is novel and has garnered significant attention as a result. The fact that discussions are ongoing means that I cannot give any particulars on how the process would work or how the costings would pan out. Many of these matters are for the negotiating table. I will reiterate that this policy will only ever be operationalised in accordance with our international obligations. We are committed to ensuring that overseas asylum processing is both humane and safe, taking into account circumstances which may mean that overseas processing is not appropriate for particular individuals.

For far too long, we have allowed people smugglers to decide where and how people cross borders and claim asylum. These uncontrolled and unsafe routes have led to terrible tragedies off our shores—as we have all seen. The key aim of the Government is to destroy the business model of the people smugglers. One facet of achieving this is to reduce demand for smugglers’ services by making it easier to remove individuals who undertake dangerous journeys or otherwise abuse the asylum system. We believe that access to protection in the UK should be based on need and focus primarily on people who remain in regions of conflict.

My noble friend Lady Stroud and the noble Lord, Lord Rosser, talked about Australia to this end, and I will illustrate the point. The Australian high commissioner gave evidence on 23 September 2021 in which he clearly explained that, within 9 months of Operation Sovereign Borders, flow had

“ceased completely. Since then, there has not been a single irregular maritime arrival on Australia’s shores, as far as we can tell.”

The high commissioner stated that the most important thing was to

“drive the people smugglers out of business by depriving them of a product to sell and destroying their cash flow.”—[Official Report, Commons, Nationality and Borders Bill Committee, 23/9/21; cols. 76-78.]

That is a very clear message, and it is precisely what the new plan for immigration is designed to do.

The agreements that we are pursuing will have these principles at their core. They will be based on a shared commitment to finding fair and sustainable solutions to address global migration challenges, and to protect the most vulnerable. We are working to establish an effective, functioning system which provides protection to those in need while simultaneously preventing abuse.

Noble Lords will want to know who will be removed overseas for asylum processing and who will be exempted from this. Some noble Lords have already referred to the fact that, in the other place, my right honourable friend Minister Pursglove made clear that unaccompanied asylum-seeking children would not have their claims processed overseas. This demonstrates our commitment to safeguarding and promoting the welfare of children, as expressed in Section 55 of the Borders, Citizenship and Immigration Act 2009. This is one example of how this policy will only be operationalised in accordance with our domestic and international obligations—and, of course, there are other examples.

After a fuller consideration of issues pertaining to vulnerability, we have determined that we should not be drawn further into listing particular exemptions to removal, partly because exemptions depend on the particular circumstances of the countries with which we are working. More importantly, however, being definitive about exemptions from the policy at this stage is likely to hamper its potential to be effective and would incentivise people smugglers to target the most vulnerable in the hopes of keeping their operations viable. It is essential that we do not curtail our efforts to undercut the business model of people smuggling and discourage other dangerous or unwanted behaviours by eroding the policy before it has even begun.

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[Lord Paddick (LD)]

On a point of clarification, the Minister said that the Minister in the other place had given an undertaking that children would not be offshored under this scheme. Does that mean that if a family arrives on UK shores the parents of the child could be sent overseas—offshored—while the child remained in the UK, because of that undertaking?

[Baroness Williams of Trafford (Con)]

I thought that I had made it clear that unaccompanied asylum-seeking children would not be offshored.

[The Lord Bishop of Durham]

Can we be absolutely clear: the Minister is not saying that children could not be offshored if they are members of a family?

[Baroness Williams of Trafford (Con)]

I have gone as far as I am willing to go by confirming that unaccompanied asylum-seeking children would not be subject to offshoring, but on some of the wider vulnerabilities it would be wrong to be drawn at this point.

[Baroness Lister of Burtersett (Lab)]

I have been trying to read the letter on my phone, but it did not arrive until after 4 pm and the Minister’s office did not have the courtesy to reply to my email. If I had had the letter at 3 pm I would have been able to read it. So I may have missed this, but I am not clear—and I apologise if the Minister explained this right at the very end—what happens to an asylum seeker who has been offshored, a horrible term, and is deemed to have refugee status by whatever country they have been sent to. Will they be sent back to the UK, or not?

[Baroness Williams of Trafford (Con)]

My Lords, it would depend on the circumstances of the case.

[Baroness Stroud (Con)]

My Lords, it is clear that a number of very serious outstanding questions about this policy need to be answered before we can give the Government these powers. In response to the point made by the noble Lord, Lord Horam, I agree that it is right to explore every possible policy, and that some of them will turn out to be impractical—or even, as he stated, impossible. But that process is undertaken before you bring in legislation and take powers like this: you do not bring in the legislation and then work out whether it is impractical or impossible. So I believe it is right to test the will of the House on this policy.

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18:05

Division 2

Ayes: 208

Noes: 155

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords who propose these amendments: the right reverend Prelate the Bishop of Gloucester, speaking through the right reverend Prelate the Bishop of Durham, and the noble Baroness, Lady Chakrabarti. I agree of course with the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the refugee convention. However, we do not agree with these amendments which, when taken together, will effectively maintain the current standard of proof for all elements of the well-founded fear test.

There are other undesirable implications of the amendments which I will set out briefly. The House has heard short speeches supporting a number of these amendments. I have obviously got to reply to all of them, so I hope that the House will indulge me. I will try to address them in a comprehensible order, because some of the points are related and some are discrete.

I come first to the point made by the right reverend Prelate the Bishop of Durham, who asked how Clause 31 would produce clarity. Clause 31 is drafted to introduce a step-by-step process for decision-makers, considering whether an asylum seeker has a well-founded fear of persecution. The central point I would make is that currently there is no such clearly structured test.

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[Lord Etherton (CB)]

I have one more point of clarification. Could the Minister explain what the position will be for refugee asylum seekers who are under 16 and for whom any sexual relations would be a criminal offence?

[Lord Wolfson of Tredegar (Con)]

I was coming to each of those points in my speech. I am not going to do so just yet, because I was, it is fair to say, on a different point, but I will come to those points in due course when I deal with the manuscript amendment.

Before the noble and learned Lord’s intervention, I was setting out the definition of “particular social group.” I was making the point that there is no universally agreed definition and no authoritative definition of that phrase. There is, as I have said, conflicting tribunal-level case law. For example, the right reverend Prelate the Bishop of Durham referred to the Fornah decision of this House in its former judicial capacity. The point there is that it is obiter. That is really important, because that bit is obiter: it is not part of the ratio of the decision. That really underlines my point that we cannot, with great respect, cherry-pick passages of decisions which are obiter, particularly decisions of the Upper Tribunal. Ultimately, it is for the UK, as a member state and signatory, and, for this Parliament—not the Home Office—to interpret the refugee convention. That is what we have sought to do here.

There are two clear conditions, and let me underline the following point: this is not a change in government policy. These conditions do not change the position—they reflect current government policy. The first condition is that members of the group share either an innate characteristic, a common background test that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.

The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. The amendment would mean that a group need meet only one of the characteristics to be considered a particular social group. Obviously, that would significantly widen the scope of people who could qualify as a refugee but, relevantly for this debate, it 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 such as an individual’s occupation, and that, we say, is incompatible with very purpose of the refugee convention.

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[Baroness Kennedy of The Shaws (Lab)]

Will the noble Lord give way?

[Lord Wolfson of Tredegar (Con)]

I am not sure that one generally takes questions on Report. I am newer than the noble Baroness, and I do not want to be rude; equally, I want to maintain the approach of the House.

[Viscount Younger of Leckie (Con)]

My noble friend is correct on that. Noble Lords are guided not to speak after the Minister.

[Lord Wolfson of Tredegar (Con)]

I want to respond to the concern expressed in Committee about the impact the clause would have on vulnerable groups—particularly, for example, female claimants fleeing gender-based violence—and to respond to the right reverend Prelate the Bishop of Durham. Victims of gender-based violence may still be considered to be members of a particular social group for the purposes of making an asylum claim if they meet the conditions in Clause 32(3) and (4). In response to the noble Baroness, Lady Lister, this clause does not therefore mean that women who are victims of gender-based violence are less likely to be accepted as a member of a particular social group: all cases are assessed on a case-by-case basis.

I cannot say, of course, that all women fleeing gender-based violence will always be found to be refugees, if that was the nature of the point that was being put to me. What I can say with certainty is that the structure of the definition does not preclude it. I think I heard, in the way the noble Baroness put the question, that the example was of a woman with “good grounds”. If she is asking, “Will this application be accepted?” good grounds is not the test and therefore, if good grounds is part of the question, I am afraid that that is why I necessarily gave the answer I did. I think if the noble Baroness looks at Hansard, she will see that I have now, again, answered the question directly.

I turn to Amendment 45A from the noble and learned Lord, Lord Etherton. It is vital that we provide protection to those in the UK who require it as a result of persecution they would face due to sexual orientation, but I suggest that it goes without saying that protection must not be afforded on the basis of one’s sexual orientation where the acts in question are criminal in the United Kingdom. I shall deal with both his points.

First, I note the explanatory statement on the amendment. For those who have not seen it, I shall summarise it. The obviously well-meaning intention of this amendment is to prevent applicants under the age of consent in the UK being excluded from refugee protection—I hope I have understood that correctly. I reassure the noble and learned Lord and the House that line 9 of Clause 32 does no such thing. That is because, although an asylum applicant may be under the age of consent in the UK, they can still be persecuted as a result of their sexual orientation. For example, a 15 year-old homosexual applicant may still be recognised as a member of a particular social group should they meet the requirements of Clause 32, even though they are not legally able to consent to sexual activity in the UK. I distinguish in this regard—I hope this is helpful to the noble and learned Lord—between sexual orientation and sexual activity. In that context, I come to the other point.

Let me say what should not need to be said—of course this is not the noble and learned Lord’s intention—but we are concerned that, as drafted, the amendment could allow convicted paedophiles and other convicted sex offenders to be granted refugee status in the UK, solely on account of their criminal acts relating to their sexual orientation. Of course, that is not the intention of the amendment: we are concerned that it is an unintended consequence of it. I hope that what I have said already deals with the intention behind the amendment and reassures the noble and learned Lord.

Lastly, I come to Amendment 46. Clause 36 provides the interpretive framework for Clause 11, which sets out Parliament’s position on Article 31(1) of the refugee convention. Clause 36 is still relevant in terms of providing the UK’s interpretation of key terms in Article 31 of the convention, such as immunity from penalties, so it is not just there to serve Clause 11, which was the first point made by the noble and learned Lord. The convention does not define what is meant by coming “directly” or “without delay”. Again, we have taken the opportunity to define those terms. We have taken into account that group 2 refugees will still be protected and not refouled, and will receive relevant entitlements so that the object and purpose of the convention are upheld.

Clause 36 is clear that there is discretion not to grant differentiated entitlements where a person could not reasonably be expected to have claimed in another safe country or where a person made a claim as soon as reasonably practicable. I made points earlier as to discretion and individual assessment. So this does not necessarily rule out the position taken by the House of Lords in R v Asfaw; it will all turn on the particular facts of the case.

Finally, I will prevail on the Home Office, I hope, to write to the noble Baroness, Lady Lister, on the point she raised. For these reasons, and with apologies that it has taken a little longer than I anticipated, I respectfully invite the right reverend Prelate to withdraw his amendment.

[The Lord Bishop of Durham]

My Lords, I thank the Minister for his very full and considered response and all noble Lords for their contributions. The strength of feeling is strong and again I make the point that these clauses are overly punitive towards women and victims of gender-based violence. I fear that that concern was not answered in the very full answer we were given. In particular, I still do not think that the responses given take any awareness of the trauma of so many of the women who come forward. I fear that to talk about “sufficiently detailed interviews”, as the Minister did at one point, would raise hackles on that front.

I have no doubt that my right reverend friend the Bishop of Gloucester will read Hansard very carefully and may well write off the back of that. I thank the Minister for making the promise to the noble Baroness, Lady Lister—I was about to ask him to, but he got in there before us. It is rather regrettable that we have not been able to persuade the Government on these points, and the Bill will not now adequately protect those who are subject to gender-based violence. That is the deep concern. That said, with deep regret, I will withdraw the amendment.

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Many of these amendments are worthy of support and I hope the Government listen to what has been said. I will finish with this: when the Government are told by everybody that there is a problem with the legislation before us and they need to change some of it, it is sometimes a good idea for them to listen.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all the noble Lords who spoke in this debate. To take the point made by the noble Lord, Lord Coaker, I sometimes wish that people would listen to the points I make, but sometimes, because it is politics, they choose not to.

On Amendment 47, which relates to refugee family reunion, we have a comprehensive framework to manage cases that fall outside our rules. For example, refugees can sponsor children aged under 18—including siblings, nieces and nephews—to come here where there are serious and compelling circumstances, and there is further discretion to consider any other familial relationship as necessary. As part of the 2021 safe and legal routes review, we sought to clarify in our Immigration Rules which exceptional circumstances may be engaged for children whose applications are being considered outside the rules. This will bring further consistency and transparency to our policy.

Regarding allowing child refugees to sponsor family members under this new clause, I cannot stress enough the objectionable consequences this could create. It risks incentivising more children to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK, playing into the hands of criminal gangs who exploit vulnerable people, which goes against our safeguarding responsibilities. I know that noble Lords would not want to see that outcome.

I thank the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Dubs, for tabling Amendment 48, which is about safe routes for those seeking to claim asylum in the UK, including unaccompanied children, to travel from countries in Europe to join family in the UK. I know that the noble Lord, Lord Kerr, and the noble Baroness, Lady Ludford, also support this proposed new clause, but I cannot. It tries to create a scheme similar to the EU’s Dublin regulation in UK law with respect to those who are in a European country but have family members in the UK. However, unlike the Dublin regulation, where the asylum claim is initially made in the EU country they are in, this new clause attempts to introduce a route for those who are in safe European countries to come to the UK to claim asylum.

On the Dubs scheme, we did not end it; we completed what we set out to do, which was to take 480 children under the Dubs scheme. On family reunion under Dublin, noble Lords will see in the table I sent the noble Lord, Lord Dubs, and which I distributed to all Members of your Lordships’ House, that Dublin had about a tenth of the number of our refugee family reunion scheme over a similar period. The noble Lord also talked about the Safe Passage cases. I understand that the Home Office asked him to send details of them. We would be very happy to receive them should he see fit to send them.

In response to the noble Lord, Lord Kerr, noble Lords will be aware that the UK sought to negotiate on these matters, specifically for unaccompanied asylum-seeking children, but it was not possible to reach an agreement with the EU on family reunion. When the UK was seeking to raise these matters with the EU, our proposals had very clear safeguards for children. This new clause has none and fails to consider the individual needs of children, which raises significant issues. While the noble Lords who tabled the new clause might have good intentions, it is not drafted with a child’s interests as paramount. It creates entitlements to come to the UK to claim asylum if the individual has the specified UK relatives but does not consider whether this is in the unaccompanied child’s best interests. That is a really important fact. Neither does it consider whether the UK relative can actually take care of the child, nor does it involve any consideration of whether the child would be better placed with a relative, potentially an even closer relative, in another European state.

I cannot ignore the fact that this new clause would encourage asylum seekers, including vulnerable unaccompanied children, to make dangerous journeys to Europe to benefit from its provisions. By the same token, it would discourage asylum seekers, when in Europe, who wish to travel to the UK to interact with the care and support mechanisms or the asylum systems of those safe European countries which should provide them with the safety and protection they are entitled to under the same international legal obligations that the UK abides by.

I have been very clear that we will not consider a more favourable approach to family reunion in the Immigration Rules for those in the EU, including unaccompanied children, as opposed to those in the rest of the world who want to join family here in the UK. A single global approach to family reunion—as taken by our current refugee family reunion policy—is fair and does not encourage what are often dangerous journeys into Europe, facilitated by smugglers and traffickers. As I have said many times, European member states are safe countries with international obligations towards protecting asylum seekers and children, as we do here in the UK, affording all asylum seekers in Europe an opportunity to access the rights to which they are entitled.

The right reverend Prelate talked about community sponsorship and my articulated support for it. That does not diminish; I would like to see far more schemes develop here in the UK. He also linked it to the Ukraine humanitarian pathway. The two are not the same. I am sure we will get more detail on the latter in due course, but I think it is a really good idea.

I thank my noble friend Lady Stroud, on behalf of my noble friend Lord Kirkhope of Harrogate, for speaking to Amendment 49. The Government have time and again demonstrated their commitment to helping people in need of international protection. To date, our resettlement schemes have been non-legislative, operating outside of the Immigration Rules and on a discretionary basis. Operating in this way has effectively enabled us to respond to both protracted and emerging humanitarian crises and has seen us resettle over 27,000 vulnerable people since 2015. The noble Lord, Lord Green of Deddington, outlined why that was so workable in the Syrian context.

Last summer, the UK undertook the biggest and fastest emergency evacuation in recent history, helping over 15,000 people to safety from Afghanistan. The Government have recently opened, on 6 January, the Afghan citizens resettlement scheme, which will provide up to 20,000 women, children and others at risk with a safe and legal route to resettle in the UK. This scheme is in addition to the Afghan relocations and assistance policy, which has already seen over 8,000 people relocated to the UK, with an estimated additional 11,000 likely to be eligible to be relocated under this route. ARAP is neither time limited nor capped, which is a good thing.

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20:21

Division 3

Ayes: 178

Noes: 130

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20:35

Division 4

Ayes: 169

Noes: 122

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20:48

Division 5

Ayes: 172

Noes: 120