Nationality and Borders Bill

(Limited Text - Ministerial Extracts only)

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 1, and do agree with the Commons in their Amendments 1A and 1B in lieu.

1A: Page 7, line 41, at end insert the following new Clause—
“Provision for Chagos Islanders to acquire British Nationality
In Part 2 of the British Nationality Act 1981 (British overseas territories citizenship), after section 17G (as inserted by section 2), insert—
“17H Acquisition by registration: descendants of those born in British Indian Ocean Territory
(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if—
(a) they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date, and
(b) they have never been a British overseas territories citizen or a British Dependent Territories citizen.
(2) An application under this section must be made—
(a) in the case of a person aged 18 years or over on the commencement date, before the end of the period of five years beginning with the commencement date;
(b) in the case of a person aged under 18 on the commencement date, or a person who is born before the end of the period of five years beginning with the commencement date, before they reach the age of 23 years.
(3) In subsection (2), “the commencement date” means the date on which this section comes into force.””

1B: Page 8, line 6, leave out “or 17F” and insert “, 17F or 17H”

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

My Lords, with the leave of the House, I will also speak to Motions B, L, M, T and U.

This is a happy time of the day. I want to return to Lords Amendment 1, which provides for the Chagossians to acquire British citizenship and British Overseas Territories citizenship. We heard some very powerful speeches advocating on behalf of the Chagossians, both in your Lordships’ House and in the other place. I was deeply moved on meeting one of the Chagossians with the noble Baroness, Lady Ludford. The Government accept that the unique position of the Chagossians means that we can accept a unique solution to provide them and their descendants with a pathway to British nationality. For technical reasons we have been unable to accept the amendment agreed by your Lordships’ House. However, we have tabled, and the other place has accepted, two technically correct amendments in lieu, Amendments 1A and 1B. I hope that these amendments will now also be accepted by your Lordships’ House.

Amendment 4 relates to the deprivation of citizenship. On Report, your Lordships’ House did two things in respect of the clause in question. The first was to agree to amendments to it that were tabled by the noble Lord, Lord Anderson of Ipswich. I thank him for bringing his considerable experience and legal expertise to bear on this very important issue, and for tabling amendments that met with the favour of the House. However, your Lordships also deleted the substantive clause, as amended by the noble Lord, from the Bill.

The Government have now accepted the amendments tabled by the noble Lord, Lord Anderson, and re-tabled the substantive clause, as amended by him, in the other place, which agreed to it. I strongly invite your Lordships’ House to support this course of action by not insisting on Amendment 4, which would delete the substantive clause, and by agreeing to Amendments 4A to 4F, which will restore to the Bill the clause as amended by the noble Lord, Lord Anderson.

The noble Baroness, Lady D’Souza, has moved that subsections (5) to (7) be omitted from this clause, which, of course, in the context makes no sense. These subsections relate to existing “without notice” deprivation orders and ensure that they continue to be valid. Omitting these subsections would cast doubt on the validity of these orders and create an unacceptable risk to our security. I therefore invite the noble Baroness to withdraw this amendment.

Amendments 13 to 19 relate to the offence of illegal arrival in the UK, a key element of the Bill. We want to do everything we can to deter people from making dangerous and, sadly, as we have seen, often fatal journeys. That is why we want to change the law to provide prosecutors with additional flexibility when someone has “arrived in” but not technically “entered” the UK. Your Lordships’ amendments would remove this flexibility. The other place has therefore disagreed to these amendments for their reasons 13A to 19A. There is a need to seek prosecutions when there are aggravating circumstances, and where prosecutors agree that this is in the public interest. However, the list cannot be exhaustive, as we need to be able to respond to unforeseen circumstances. I will set out in more detail what the Government mean when we say that we are seeking prosecutions only in the most egregious cases for this offence.

We will take firm action against migrants who put themselves or others, including rescuers, in danger by their actions—for example, where migrants have been seen dangling children over the side of a boat and threatening to drop them into the channel, or dousing themselves in fuel to prevent them being picked up by French search and rescue services because they did not want to be taken back to France. This would apply to instances such as those which occurred in 2020 with the stowaways on the “Nave Andromeda”, which led to the crew locking themselves in the ship’s citadel in accordance with the ship’s safety manual and making a mayday call.

Additionally, we will be targeting for prosecution migrants who cause severe disruption to services such as shipping routes, or closure of the Channel Tunnel. This happened in 2015 when a group of migrants forced their way into the tunnel despite the attempts of French officials and police to prevent them doing so. The migrants’ actions meant that the power supply to the tunnel had to be shut down and rail traffic suspended.

We will also focus on those who have arrived in the UK without permission in cases where they are criminals who have previously been deported from the UK, persons subject to exclusion decisions or persons who have been repeatedly removed as failed asylum seekers. On this basis, your Lordships’ House should not insist on these amendments.

The noble Lord, Lord Coaker, has tabled Amendment 13B in lieu of Amendment 13, which would make it an offence for persons to knowingly arrive in the UK in breach of a deportation order. Although I welcome the recognition that we need to be able to prosecute criminals who seek to evade immigration controls and return to the UK, we cannot accept this amendment, as it is just too narrow. It would not, for example, allow for the prosecution of someone attempting to arrive in the UK who has previously been excluded from the UK on national security grounds. As I have just set out, there are a number of other aggravating behaviours for which we think prosecutions would be appropriate. I therefore hope that the noble Lord will not press his amendment.

Amendment 20 would reinsert the requirement to prove that a person is acting “for gain” if they are being prosecuted for facilitating the entry of an asylum seeker into the UK. I emphasise that this Government do not prevent and have no intention of preventing humanitarian rescues from taking place, and we have built additional safeguards to this effect into the Bill. But the problem here is that proving that someone acted “for gain” is practically very difficult. It means that prosecutors are limited in the action that they can take against people smugglers. The other place has therefore disagreed with this amendment for their Reason 20A. On that basis, I put it to noble Lords that we should not accept this amendment.

The noble Lord, Lord Paddick, has tabled Amendment 20B, in which he proposes that, instead of reinserting the requirement that a person is acting “for gain”, it should be an offence to act “without reasonable excuse”. We have already set out in detail in the Bill how this offence will work, including statutory defences that would effectively provide reasonable excuses, so we do not think that this amendment is necessary.

Amendment 40 concerns the operation of the electronic travel authorisation—ETA—scheme when

“the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.”

The other place disagreed with this amendment for its Reason 40A. The amendment could result in an unacceptable gap in UK border security, which would allow persons of interest or risk who would otherwise be refused an ETA to enter the UK legally. It would undermine the very purpose of the ETA scheme, which is to prevent the travel of those who pose a threat to the UK.

Although I understand the sensitivities engaged here, I reassure noble Lords that the Government stress our continuing commitment to the Belfast agreement, as well as the common travel area. An important part of this is our absolute commitment not to have any checks at the Ireland-Northern Ireland border, and British and Irish citizens will not be required to obtain an ETA. Neither will those who already have an immigration status in the UK—for example, those with a frontier worker permit. However, as now, all individuals—except British and Irish citizens—arriving in the UK, including those crossing the land border into Northern Ireland, need to continue to enter, in line with the UK’s immigration framework. This is a well-established principle of the operation of the CTA, and it applies when travelling in all directions. We are simply extending the principle to individuals requiring an ETA.

For those who require an ETA, the process of applying for one will be quick and light-touch. It will be valid for multiple trips over an extended period, so that this is not disruptive to lives or livelihoods, minimising the burden on those making frequent trips, including across the Ireland-Northern Ireland border, while protecting the common travel area from abuse as far as possible.

On the possible impacts on tourism, I assure the House that the Government are committed to working with a wide range of stakeholders, including Tourism Ireland and Tourism Northern Ireland. This will ensure that the ETA requirement is communicated effectively through targeted messaging and a variety of channels. It will also mitigate any risk of increased barriers to cross-border tourism on the island of Ireland. I therefore ask that this House does not insist on this amendment.

The noble Lord, Lord Murphy of Torfaen, has proposed a further, well-considered amendment, which would exempt residents of the Republic of Ireland. The relationship between the UK and Ireland is an important and unique one, and we are deeply committed to the strongest and closest possible partnership between us. We remain committed to ongoing communication with the Irish Government and other interested stakeholders to navigate their concerns on this matter. I therefore ask that your Lordships’ House does not insist on this amendment.

Finally, Amendment 54 prohibits the use of new maritime powers contained in the part of the schedule to which it applies from being used

“in a manner or in circumstances that could endanger life at sea.”

Noble Lords will know that the Government’s priority is to save and preserve life at sea. Our position has not changed, and as such, as the Government have made clear before, we do not think that we need to put these commitments into the Bill. The other place has disagreed with this amendment for its Reason 54A. I conclude by asking that noble Lords do not insist on this amendment, and I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, on Motion A, I am very pleased to be able to accept Amendments 1A and 1B in lieu of my original amendment. Together with assurances given on the record in the Commons, they will open up entitlement to British citizenship, which will be subject to neither a fee nor a good character test. They therefore meet the objectives of the original amendment. I thank the Minister for whatever part she may have played in helping achieve this change of heart, following the meetings she had with some of us and Rosy Leveque of BIOT Citizens.

I have two questions. When is it anticipated that applications can begin, and can the Minister confirm that it is still the Government’s intention to use some of the largely unspent £40 million Chagos support fund to help Chagossians settle here, and to help those already here who have welfare needs?

As well as the Government, I thank noble Lords from all Benches who gave such strong support to the amendment, and in particular those on the Government Benches, as I am sure their passionate support was key to encouraging the Government to think again. I thank the APPG on the Chagos Islands for helping to build that support. I also pay tribute to Henry Smith MP, who has long championed this cause in the Commons, and to the late and much-missed Lord Avebury, who first raised the issue in your Lordships’ House over a decade ago. His work to remove this and other citizenship injustices has been energetically continued by the BOT Citizenship campaign, especially David Varney and Trent L Miller.

Last but not least, I pay tribute to the Chagossians themselves, who have helped to spearhead the campaign, in particular Rosy Leveque and Chagossian Voices. The joy felt as a result of the government concession is summed up well in an email sent to me and Henry Smith from a Chagossian on Mauritius, who is longing to be reunited with his family in the UK. I will quote briefly a few lines:

“I am writing to you simply to say that words are not enough to express how thankful and grateful I am. I can’t stop crying with joy and happiness, and trust me when I say that many Chagossians in Mauritius and Seychelles are also overjoyed and overwhelmed by this result. Many of us have been keeping our grandparents’ birth certificates in a folder waiting for this day to come.”


The original injustice that deprived the Chagossians of their homeland and that perpetuates their exile remains and will rightly continue to be contested. However, I believe that all those who have contributed to the ending of the citizenship injustice done to the descendants of those for whom the Chagos Islands were home can feel pride today. I am sure that we all look forward to welcoming to the UK as British citizens the Chagossians who have been the victims of this injustice.

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A number of very serious amendments have been put forward. At their heart is the desire of this House to say to the Commons that it needs to think again, providing that they are passed. We seek clarity from the Government on this Bill. That clarity is needed, and that is what these amendments seek to provide.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate.

In moving Motion A, I neglected to thank the noble Baroness, Lady Lister, who also attended the meeting about the Chagossians. I thank her for her kind words and acknowledge the role she has played. It sounds like there is agreement to the proposals we have put forward in Motion A. They were definitely well received by the other place and the Chagossian community. The route will be open in due course. I will keep the noble Baroness and the House updated. The Home Office will need some time to put in place the processes that will allow applicants, wherever they live, to make an application for BOTC and British citizenship. This will include creating access to historical records, which will help applicants demonstrate that they are direct descendants of someone born in the BIOT. I will update the House as soon as we have some clear idea of timescales.

I also confirm that, as the noble Baroness said, there will not be application fees. In the meantime, we will continue to work to deliver the £40 million support package she referred to, and we are working with the FCDO to consider whether we can use these funds to support Chagossians seeking to relocate to the UK, which seems a sensible use of the funds. I commend the measures to your Lordships’ House.

I turn to Motion B. I hope noble Lords will agree, as we have already done on Report, with the amended deprivation of citizenship clause. Thanks here are due to the noble Lord, Lord Anderson of Ipswich. We are simply not talking about measures which could affect 6 million people; we are talking about situations where a naturalised person has acquired citizenship fraudulently, or where this is conducive to the public good. I repeat, deprivation on conducive grounds is used sparingly and against those who pose a serious threat to the UK or whose conduct involves high harm. Appeal rights kick in when a person receives the notice telling them of the decision to deprive them of their citizenship. I also point out that the courts have found that only the deprivation order made without notice in the case of D4 was invalid. They did not find that all such orders are invalid. With respect, I therefore ask the noble Baroness, Lady D’Souza, to withdraw her amendment.

Turning to criminal offences and Motions L and M, I repeat that we want to ensure that prosecutors have maximum flexibility to deal with people arriving in but not entering the UK and also to tackle people smuggling. I have set out the sort of circumstances in which we expect these offences to be prosecuted. Amendments proposed by the noble Lords, Lord Coaker and Lord Paddick, would undermine our efforts to tackle egregious forms of criminality, and I invite the noble Lords not to press them.

Moving on to electronic travel authorisations, in Motion T, I was interested to note that the arguments being made against them are actually the reasons for the Irish to introduce one. Once the EU’s comes into force next year, Ireland will stand out as one of the few countries in Europe without an ETA-style pass, among all the other countries that have them. I am very grateful to the noble Lord, Lord Murphy of Torfaen, for explaining to me—an Irishwoman, with a father from Northern Ireland—the context of his amendment. We accept the need for further dialogue with interlocutors, including the Irish Government, Tourism Ireland and Tourism Northern Ireland. I totally accept that point.

I would also like to tell the House that the secondary legislation that will underpin the scheme, which will include details of fees, will be brought forward once the Bill receivers Royal Assent. I can provide assurances that the fees will be competitive with those of comparative systems run by other countries.

In response to concerns about tourism, I observe that people travel for a whole host of reasons, and while the cost or requirement to obtain an ETA in advance of travel may be a consideration, the experiences of other countries with similar schemes show that it is very unlikely to deter a genuine visitor. Once granted, an ETA will be valid for multiple trips to the UK. The cost is likely to be very small for travellers, relative to the cost of travel and the benefits of visiting the UK, and therefore it is unlikely to deter the majority of visitors. Moreover, many of the UK’s international partners have taken a similar approach to border security—the United States of America, Canada, Australia and New Zealand—meaning it is a very familiar concept for travellers. I invite the noble Lord not to press his amendment.

That leaves us only with Motion U. The preservation of life at sea remains our priority and we do not think we need to put this in the Bill. We therefore hope that noble Lords will not insist on this amendment; it is not necessary.

Motion A agreed.

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 4, and do agree with the Commons in their Amendments 4A to 4F in lieu.

4A: Clause 9, page 11, line 31, leave out “it appears to the Secretary of State that”

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17:24

Division 1

Ayes: 209

Noes: 165

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A.

5A: Because the Commons consider that the provisions of Part 2 are compliant with the Refugee Convention, and that it is therefore not necessary to provide expressly that this is so.

[Baroness Williams of Trafford (Con)]

My Lords, I bring noble Lords’ attention to Lords Amendment 5, on compliance of Part 2 of the Bill with the refugee convention. The other place disagrees with this amendment for its Reason 5A. The Government have made it explicitly clear that everything we do is compliant with our obligations under international law, including our obligations under the refugee convention. Consequently, we do not think it is necessary to set that out in the Bill. I therefore respectfully ask noble Lords not to insist on the amendment.

The noble Baroness, Lady Chakrabarti, has proposed a new amendment which seeks to do much the same as the previous amendment: to clarify that the provisions in Part 2 are compliant with our obligations under the refugee convention and international law. For the reasons I have given, I invite the noble Baroness to withdraw her amendment.

Amendment 6 would remove from the Bill the substantive clause relating to differentiation. The other place has disagreed with this for its Reason 6A. The differentiation of those classed as refugees is a fundamental part of the Bill, and as such the Government cannot accept the amendment agreed by your Lordships’ House. It is right that we take all steps to discourage people from risking their lives at sea, and this clause and the criteria it sets do just that. I respectfully ask noble Lords not to insist on the amendment.

For the same reason, we cannot accept the amendment in the name of the noble Lord, Lord Kerr of Kinlochard, which seeks to remove the list of ways in which group 2 refugees may be differentiated from group 1 refugees, under the presumption that this approach will not uphold our international obligations. The Government have been extremely clear on this point throughout the passage of the Bill. I repeat that all the provisions in the Bill are in compliance with all our international legal obligations, including those under the 1951 refugee convention and the 1967 Protocol relating to the Status of Refugees. With this in mind, I ask the noble Lord not to press his amendment.

Lords Amendment 7 would change our approach to allowing people who are claiming asylum to work by reducing the period in which claimants may not work from 12 months to six months. It would also remove the condition restricting jobs for those who are allowed to work to those on the shortage occupation list. We think that this would allow people to bypass the proper process of applying for visas and paying relevant fees to work in the UK. It could also encourage channel crossings. We recognise the importance of ensuring that claims are settled as quickly as possible, and I am grateful to my noble friend Lady Stroud for the conversations that we have had. We want to see claims settled within six months so that people can get on with rebuilding their lives, and that includes working. However, the Government cannot accept this amendment, which the other place disagrees with for its Reason 7A. As such, I ask that it not be insisted on.

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Along with other noble Lords, I await the Government’s response to this group.

[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord, Lord Rosser, might think the House does not want to hear from him, but it certainly does not want to hear from me either. It never likes what I have to say.

There have been a few disparaging comments about our approach to Ukraine. I have just looked on Twitter, and this is the first comment from President Zelensky:

“The United Kingdom is our powerful ally.”


It must be acknowledged that we have done much to assist Ukraine over the years. We have now issued over 20,000 visas and done some other fundamental things for our friends in Ukraine. We have been training 22,000 troops for years; we have given them 2,000 NLAWs, or, as President Zelensky calls them, “in-loves”—apparently, on their launch, people in Ukraine shout “God save the Queen”. We have also provided them with the Starstreak missile. We have been terribly generous and supportive to Ukraine and will go on being so.

My noble friend Lord Horam said there had been no pre-legislative scrutiny; it may seem a long time ago but, I guess by way of a White Paper, the New Plan for Immigration was published—I know we do not do Green Papers these days; that stopped years ago.

Motions C and D deal with the refugee convention and our policy of differentiation. We have been clear throughout the development of this policy that it fully complies with all our international obligations, including the refugee convention. I will not go over my noble friend Lord Wolfson’s comments, but I know he wrote to noble Lords setting out our legal position on this. However, I should clarify that a person in group 2 would, to gain that status, necessarily already be recognised as a refugee in the UK and would not subsequently have, or be eligible to have, their claim processed overseas. We intend that prosecutions follow only in egregious cases. I therefore ask noble Lords not to insist on their amendments and the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Kerr of Kinlochard, not to press theirs.

It has long been our position that when someone who is claiming asylum has been waiting for a decision on their claim for more than 12 months, through no fault of their own, they should be able to take up one of the jobs on the shortage occupation list. Motion E deals with this issue and, although I have a great deal of respect for my noble friend Lady Stroud and we have spoken at some length over the last few days, we cannot agree to reduce this period to six months, for the reasons I have set out previously. There is not much more I can add to my previous comments other than to point out academic evidence suggesting that economic factors are in play in secondary movements. For all those reasons, I invite my noble friend not to press her amendment.

Motions F and G deal with inadmissibility and overseas asylum processing respectively. It is vital that we have strong measures in this Bill to deter people from making dangerous journeys and to encourage them to seek asylum in the first safe country that they reach. We cannot agree to measures that would undermine these measures, either by restricting our ability to work on a case-by-case basis on returns or making the job of our negotiators more difficult. I therefore ask the noble Lord, Lord Rosser, and the right reverend Prelate the Bishop of Durham not to press their amendments.

On the question the right reverend Prelate asked me about what advanced discussions are taking place and the point that the noble Lord, Lord Dubs, asked about Rwanda, all I can say at this point is that the Government are talking to a range of partners. I am sure that Parliament will be fully informed when any of those discussions are concluded.

The noble Lord, Lord Dubs, has the respect not just of me but of the whole House. Turning to Motion H, I know how strongly he feels on the subject behind his amendment relating to family reunion, but there are risks that the proposed new clause creates a very broad duty that was not intended.

Moving on to Motion J, I also understand the strength of feeling on having a target number for refugee resettlement, noting in particular the amendment tabled by the right reverend Prelate the Bishop of Durham. I also reflect in this context on Motion K and the amendment concerning genocide tabled by the noble Lord, Lord Alton of Liverpool. But I can only say again that we already have generous family reunion offers, that we have numerous safe and legal routes to the UK, and that a person fleeing genocide is already likely to qualify for protection, as I said, under either the refugee convention or the ECHR.

The UK is firmly committed to protecting ethnic and religious minorities in Iraq. We raise this regularly with the Government of Iraq and the Kurdistan Regional Government, and we continue to monitor the situation of the Yazidis and other minority groups in Iraq. But I will take back again those comments on religious bias, because it is not the first time that the noble Lord, Lord Alton, has raised them with me.

I do not think that the amendments tabled to Motions H, J and K are necessary, so I invite the noble Lord, Lord Dubs, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton, not to press their amendments.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords and noble and learned Lords who spoke in such a vital debate. The House will forgive me for not waxing lyrical by way of summary—out of respect for noble Lords, self-discipline and the need to get on and vote. I just say that I heard not a single constitutionally or legally coherent argument against the vital overarching protection for the refugee convention in Motion C1. With that, I ask noble Lords to agree Motion C1.

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19:43

Division 2

Ayes: 189

Noes: 151

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.

6A: Because the Commons consider that it should be possible to accord different treatment to refugees depending on whether they have complied with the criteria set out in clause 11.

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19:55

Division 3

Ayes: 191

Noes: 148

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A.

7A: Because the Commons consider that asylum-seekers (save in limited circumstances) and their adult dependants should not be permitted to work while a decision on their claim for asylum is pending.

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20:08

Division 4

Ayes: 199

Noes: 132

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 8, to which the Commons have disagreed for their Reason 8A.

8A: Because the Commons do not consider it appropriate that the commencement of clause 15 should be dependent on the conclusion of international agreements with other States.

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20:20

Division 5

Ayes: 179

Noes: 152

Motion G

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendments 9, 52 and 53, to which the Commons have disagreed for their Reasons 9A, 52A and 53A.

9A: Because the Commons consider that it is appropriate to allow the removal of an asylum seeker to a safe third country while their claim for asylum is pending.

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[Baroness Williams of Trafford (Con)]

I have already spoken to Motion G. I beg to move.

Motion G1 (as an amendment to Motion G)

[The Lord Bishop of Durham]

Moved by

At end insert “and do propose Amendments 53B, 53C and 53D in lieu—

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20:33

Division 6

Ayes: 176

Noes: 153

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.

10A: Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

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20:45

Division 7

Ayes: 181

Noes: 144

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.

11A: Because the Commons do not consider it appropriate for there to be a statutory requirement on the minimum number of refugees to be resettled in the UK each year.

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20:58

Division 8

Ayes: 159

Noes: 150

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 12, to which the Commons have disagreed for their Reason 12A.

12A: Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendments 13 to 19, to which the Commons have disagreed for their Reasons 13A to 19A.

13A: Because the Commons consider that it should be a criminal offence for a person who requires entry clearance to knowingly arrive in the United Kingdom without such clearance.

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21:11

Division 9

Ayes: 163

Noes: 138

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Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 20, to which the Commons have disagreed for their Reason 20A.

20A: Because the Commons consider that the offence of facilitating the entry of an asylum seeker into the United Kingdom should be capable of prosecution whether or not the defendant was acting for gain.

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21:23

Division 10

Ayes: 162

Noes: 141

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 22, to which the Commons have disagreed for their Reason 22A.

22A: Because the Commons consider that the additional requirements for age assessments, as set out in the new clause, are either inappropriate or unnecessary.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, with the leave of the House, I will also speak to Motions P, Q, R and S. Let me begin with Amendment 22, which inserts a new clause relating to age assessment. I reiterate to the House that assessments are and will only be used when necessary. There is no appetite to use them when there is no doubt of an asylum seeker’s age. As we have discussed in previous debates, failure to ensure proper assessments are conducted on individuals whose age is doubted creates obvious safeguarding concerns. It can also create a plethora of risks to the most vulnerable, to children in our schools and care systems and to asylum seekers themselves.

The problem with this amendment is that it creates numerous restrictions on our ability to use age assessments and risks, perpetuating the very real challenges within the current system. First, this amendment would mean that only local authority social workers would be able to undertake age assessments under the Bill. This would curtail our ability to support overburdened local authorities in this difficult task, given that there is significant variation between local authorities in experience, capacity and resource to undertake age assessments. It is the Government’s intention to establish a national age assessment board with qualified expert social workers employed by the Home Office, specialising in age assessments, to improve the quality and consistency of decision-making and to relieve the burden on local authorities where local authorities choose to refer a case. It is not our intention to increase the percentage of age assessments conducted, and local authorities will retain the ability to conduct these assessments themselves if they wish to do so.

Secondly, the amendment would mean that scientific methods of age assessment are specified in regulations only if they are

“ethical and accurate beyond reasonable doubt”

as approved by relevant professional bodies. The UK is one of very few European countries that does not currently employ scientific methods of age assessment. We have already set up an independent interim Age Estimation Science Advisory Committee to advise on the accuracy and associated ethical considerations of scientific methods. No one method of age assessment is entirely accurate, so this amendment sets an unreasonable expectation for what scientific methods could achieve, especially when they will be used in tandem with other evidence from social workers and others as part of an holistic approach.

In addition, I stress that although there are questions about the accuracy of scientific methods, we simply do not know how accurate or reliable the current approach of the Merton-compliant age assessment is. We are aware of cases where individuals have been assessed to be of vastly different ages when assessed independently by different social workers in different local authorities. Genuine children whose ages are in doubt will therefore benefit from more informed decision-making as a result of supplementing the current age assessment process with scientific methods with known accuracy—or a known margin of doubt, I perhaps might more accurately say—and reducing the risk that children may be misidentified as adults and vice versa.

We also contest the idea that professional bodies should be required to approve scientific methods, because any scientific method proposed will be considered by the independent Age Estimation Science Advisory Committee. The committee, formed by the Home Office chief scientific adviser, will comprise representatives of the relevant professions and will consider the scientific, ethical and contextual issues and provide advice to the Home Office, via its chief scientific adviser, on appropriate methods.

Finally, the amendment would lower the current standard of proof for social worker age assessments from the “balance of probabilities”, which is long established in case law, to a “reasonable degree of likelihood”. Lowering this standard would require social workers to accept as children individuals whom, on balance, they believe to be adults. On this basis, I put it that we cannot accept this amendment, to which the other place disagrees for its Reason 22A.

The noble Baroness, Lady Hamwee, has tabled further amendments on age assessment—Amendments 22B to 22F. Although I recognise the intent behind them, I cannot support their inclusion for a number of reasons. First, I reassure the noble Baroness that social workers conducting age assessments for the national age assessment board will of course be able to refer to comprehensive guidance that, in line with standard practice, will be published and accessible on GOV.UK.

Although the vast majority of age assessments are expected to take place following referral from a local authority, the legislation provides the flexibility to enable other public authorities to refer cases in the event that this becomes necessary for the delivery of their official functions. The specification of any additional public authorities through regulation would of course occur following consultation with them and is therefore not considered to be controversial.

Secondly, we have already commissioned the independent interim Age Estimation Science Advisory Committee to advise on both scientific and ethical aspects of scientific age assessment. In line with the noble Baroness’s proposals, this committee in fact comprises expertise from the relevant disciplines, and the Home Secretary will seek advice from it via the Home Office chief scientific adviser before specifying a method in regulations. On this basis I ask the noble Baroness not to move her Motion.

I now bring back to the House’s attention Amendments 23 and 24, to which the other place has disagreed because of its Reasons 23A and 24A. These amendments remove provisions from the Bill relating to late compliance with a slavery or trafficking information notice—or STIN. The Government are determined to deliver the right outcomes for victims while focusing resources where they are needed. This will ensure that potential victims of modern slavery are proactively identified as early as possible.

However, we have listened to the concerns raised by your Lordships’ House and appreciate that there may be particular vulnerabilities for children, which is why the vulnerability of children will be included in our “good reasons” guidance. This is why the Government have now tabled their Amendment 24B, to exempt from the Bill’s credibility provisions those who were under 18 when the most recent STIN was served. Therefore, if an individual were under 18 on the date of service of the most recent STIN, these provisions would not apply and there would be no obligation on decision-makers to find the individual’s credibility to be damaged. I hope that this reassures the House that the needs of children are being taken into account by this Government when identifying victims of modern slavery. I commend this Motion to the House.

Amendments 25 and 25B in the name of the noble Lord, Lord Coaker, replace the original provision for disqualification from modern slavery protections where an individual is a threat to public order, or has claimed to be a victim in bad faith, with a new clause. Unfortunately, however, Amendment 25 does not provide a definition for “public order” at all, and Amendment 25B defines “public order” as coming into play only when an individual has been convicted of a terrorist offence—and even then, only in exceptional circumstances.

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[Lord Cormack (Con)]

Make it short.

[Lord Stewart of Dirleton (Con)]

With that exhortation from behind me ringing in my ears, I step forward to address the points made by noble Lords from across the House in a further interesting and wide-ranging debate. I will touch first on age assessment.

It is important to stress at the outset that the purpose of setting up a scientific advisory committee is that the Government should receive guidance from it. The consideration of what scientific methods of age assessment should be used, if any, is at the preliminary stage. The Government propose to be guided by the body which has been set up on an interim basis to provide them with advice. The Government are not seeking to compel any member of any profession to take part in any practice which offends that person’s ethical sensibilities, whether individually or as a member of a scientific or professional body. No compulsion can be contemplated as a means of obliging anyone to carry out a particular step.

The noble Lord, Lord Harris of Haringey, raised the issue of the identity of personnel carrying out particular steps, and I assure him from the Dispatch Box that only an appropriately qualified person would be asked to carry out the sort of testing that he discussed which, reflecting his specific area of expertise, related to dentistry.

I do not at this stage give any undertaking as to the constituent members of the committee which, as your Lordships have heard, is set up at the moment on an interim basis. However, it is very much in the way in which such bodies of learned people carry out their work that they will call for additional evidence and support from people skilled in specific disciplines where they feel there is any gap in their expertise which might properly be filled.

Reference was made by two noble Baronesses who participated in this debate to the meeting, in which I participated, with the noble Baroness, Lady Black, the interim head of the interim committee which has been set up. I invite the House to reflect on a number of aspects of the discussion we had with the noble Baroness which, for the benefit of Members who were not present at that electronic discussion, I will now précis. There are anxious discussions being carried out by professionals and academics within the committee, who compass this wide range of academic and professional disciplines, about what may be appropriate to carry out as—I gratefully adopt the phrase used by noble Baroness, Lady Black—a triangulation of methodologies in relation to the critical assessment of the age of a young person, where that is contested or where there is reasonable ground to believe that the age offered is inaccurate.

I interrupt myself to answer a point made by the noble Baroness, Lady Lister of Burtersett. Yes, the parameters within which a decision will be taken are those set out at that meeting. There is no attempt to say that any one method can arrive with any degree of certainty at a specific age, whether expressed in years or months. As the noble Baroness suggested to the House, the matter is whether the scientific expertise can place a person so that the claimed age is possible. I am happy to assure the noble Baroness on that basis.

Noble Lords will also recollect that, in the context of that discussion, the noble Baroness, Lady Black, brought out certain matters which we have discussed in this House at earlier stages. I stress that she pointed out that the very prolongation of testing and interviews under the current regime—perhaps “testing” is the wrong word; “assessment” might be better when referring to Merton-compliant procedures, which your Lordships may well recollect from previous stages and which relate to a series of interviews—and repeated rehearsal of information that might be of a sensitive character and might oblige the person to relate traumatic events, is itself a source of harm. The scientific methodology that the Government have tasked this interim committee to look into is anticipated as serving two functions: to provide for that triangulation of methodologies, and to provide—as I have said on previous occasions to your Lordships—additional information to assist in that difficult process which currently falls exclusively upon the shoulders of social workers. It is not, and has never been argued as being, a means by which some value or accuracy can be ascribed to scientific testing, which we acknowledge it does not have.

None the less, as I have said, these methodologies are used in other places in Europe. Their use is widespread, and the United Kingdom is unusual in not using them. Given the nature of the problems that we face and the nature of the trauma from which people may be escaping—and which may be caused by the mere fact of having to rehearse events earlier in their lives—we consider it incumbent upon us to do what we can to shorten that process, at all times acknowledging the overriding importance of fairness to the persons involved.

I am not in a position to commit to there being a member of any specific profession on the committee, whether in its interim iteration or later on. However, as I said earlier, in the way of these things, it will be for the committee to call for additional expertise to support its working and to allow it to provide conclusions—

[Baroness Lister of Burtersett (Lab)]

I think that we are going backwards because, in the Commons, the Minister said that he would take away this point and look into it, but now the noble and learned Lord seems to be saying that it is enough to be able to call on expertise from outside. Can he take this away and think a bit further about the membership of the committee, including dentists?

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Baroness and was not aware of the remarks to which she referred. If the Minister in the other place has given an undertaking that he will go away and think about it, I will certainly row back from what I said—that it would be more of a matter of leaving it to the committee to say. If an undertaking has been given to revisit the matter, I am happy to depart from what I have said already.

We recognise the strength of feeling in the House about these matters. In particular, we recognise the strength of feeling about the ethical questions that arise out of the application of scientific techniques from which no therapeutic value flows directly—as was said at earlier stages in the debate. However, I repeat that our intention is to be guided by the views of the scientific committee which has been established. For that reason, at this stage, we cannot support the amendments, and we stand by the clauses which we have already tabled for the reasons I have set out.

On the matter of modern slavery, I will consider together Motions P, Q, R and S. I begin by commending to your Lordships’ House the government amendment that will exempt the credibility provisions in this part of the Bill from people who were under 18 at the time when they were most recently served with a slavery or trafficking information notice. But I say again that we cannot accept amendments to other clauses in this part. It is vital, I submit, that we are able to withhold the protections afforded by the national referral mechanism from dangerous individuals. I will not rehearse what I said in my opening submission about the manner in which the amendment as framed restricts too narrowly our scope for investigation. I consider it is not appropriate for me to make any concession to the noble Lord on this point, recognising though I do the principled basis upon which he has addressed the House, at this stage and previously in our deliberations.

With the utmost respect to my noble friend Lord McColl of Dulwich, we consider that the provision of a minimum of 12 months’ appropriate, tailored support to all those who receive a positive conclusive grounds decision and are in need of specific support is appropriate; it is “tailored” in the sense that it is directed to the individual facts and circumstances of the person in question. We do not think his amendment, as with that tabled by the noble Lord, Lord Coaker, is necessary.

On the verge of resuming my seat, I thank the noble Baroness, Lady Hamwee, for doing us the courtesy of contacting us by email and submitting a list of questions, which she went over in the course of her speech. I am greatly obliged to her for taking that step, which has enabled me to curtail my submissions at this stage still further.

[Baroness Hamwee (LD)]

My Lords, with regard to the questions around age assessment, and particularly the role of a dentist in all of this, the noble Lord, Lord Coaker, said it is remarkable that these concerns have to be raised. I would say it is remarkable that they have had to be raised again. There was the exchange in the Commons—I will come to that in a moment—and after the Commons debate on the Lords amendments, I asked about this, not on the Floor of the House; I have not heard.

In the debate in the Commons, in reply to a question about whether the process would include a practising dentist, the Minister, Tom Pursglove, said:

“I know that he has discussed this issue with the Home Secretary separately”—


I had forgotten that. He continued:

“I am not in a position to give … a firm undertaking today, but we will certainly take away and consider that particular point, and perhaps we could remain in contact on it.”—[Official Report, Commons, 22/3/22; cols. 264-65.]


As we have not heard any sort of assurance, I assume that this has not progressed any further.

The noble and learned Lord the Minister made the point that the Government do not appoint a body, interim or otherwise, of such illustrious people without listening to it. Government advisers have been known to have their advice ignored or dismissed. However, very reluctantly, I will not press this, so I beg leave to withdraw the Motion.

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendments 23 and 24, to which the Commons have disagreed for their Reasons 23A and 24A, but do propose Amendment 24B in lieu—

23A: Because it is consequential on Lords Amendment 24 to which the Commons disagree

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 25, to which the Commons have disagreed for their Reason 25A.

25A: Because the Commons consider that the clause proposed by the Lords Amendment provides an unworkable regime for operating the public order and improper claim exemptions to Article 13 of the Trafficking Convention.

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22:45

Division 11

Ayes: 116

Noes: 111

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Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 26, to which the Commons have disagreed for their Reason 26A.

26A: Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

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22:58

Division 12

Ayes: 108

Noes: 107

Motion S

[Lord Stewart of Dirleton]

Moved by

That this House do not insist on its Amendment 27, to which the Commons have disagreed for their Reason 27A.

27A: Because the Commons consider that the clause inserted by the Lords Amendment makes provision in relation to persons under the age of 18 that is not necessary, or not practically workable, or not appropriate.

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23:10

Division 13

Ayes: 101

Noes: 110

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Motion T

[Lord Stewart of Dirleton]

Moved by

That this House do not insist on its Amendment 40, to which the Commons have disagreed for their Reason 40A.

40A: Because the Commons consider that the immigration rules should be able to include provision requiring persons travelling from the Republic of Ireland to Northern Ireland to have an electronic travel authorisation.

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[Lord Murphy of Torfaen (Lab)]

My Lords, in view of the lateness of the night, I do not intend to burden the House by insisting on a vote on this issue, but I ask the Minister to liaise with his counterparts in the Northern Ireland Office to see whether a compromise can be reached on an issue that is extremely important, not just for the people of Northern Ireland but with regard to relations with the Irish Government. I therefore beg leave to withdraw my Motion.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his observations. I was not present in the Chamber but I listened to his submission to your Lordships via the TV link earlier and will make sure that the points he raised are taken up by the Bill team and passed on, as he proposes.

Motion T1 withdrawn.

Motion U

[Lord Stewart of Dirleton]

Moved by

That this House do not insist on its Amendment 54, to which the Commons have disagreed for their Reason 54A.

54A: Because the amendment is unnecessary given that the maritime enforcement powers will in any event have to be exercised in compliance with the European Convention on Human Rights (by virtue of section 6 of the Human Rights Act 1998) and with the UK’s international obligations.