Illegal Migration Bill

(Limited Text - Ministerial Extracts only)

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 1B, 7B and 90D to which the Commons have disagreed for their Reason 90E.

90E: Because Amendment 1B is unnecessary, as the courts should have regard to the UK’s international legal obligations in interpreting legislation; because Amendment 7B is inappropriate because the Bill already provides for two classes of suspensive claims with a right of appeal to the Upper Tribunal, so an application for judicial review should not provide an additional route for suspending removal; and because Amendment 90D is contrary to the purpose of the Bill to prevent and deter unlawful migration.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, before I get into the detail of the amendments, it is worth reiterating why we are here again debating this Bill late at night. The United Kingdom has a proud history of providing protection to those who genuinely need it through our safe and legal routes. The United Kingdom is one of the largest recipients of UNHCR-referred refugees globally, having resettled 28,000 through UNHCR resettlement schemes between 2015 and 2022. This places the United Kingdom second only to Sweden in Europe.

However, the volume of illegal small boat arrivals has overwhelmed our asylum system. We have a duty to house those arriving illegally, but that is now costing £6 million a day and £3.6 billion a year. With over 45,000 people making dangerous channel crossings last year, this is simply no longer sustainable. If people know there is no way for them to stay in the UK, they will not risk their lives and pay criminals thousands of pounds to arrive here illegally. It is therefore only right that we stop the boats and break the business model of the criminal gangs exploiting vulnerable people, ultimately enabling the Government to have greater capacity to provide a safe haven for those at risk of war and persecution.

We have spent many an hour debating these issues. That is, of course, as it should be, but your Lordships will have also seen that the elected House has today reconsidered amendments a second time, and by a significant majority disagreed with the Lords amendments. I suggest we therefore respect the will of the elected House and the British people by passing this Bill.

I turn to the amendments. As I have set out throughout the passage of the Bill, and as the Immigration Minister has set out in the other place, the Government take their international obligations, including under the European Convention on Human Rights, very seriously. There is nothing in the Bill that requires any act or omission that conflicts with the United Kingdom’s international obligations.

In her speech last week, the noble Baroness, Lady Chakrabarti, in referring to her revised amendment, talked of “softening its requirements”, but the words in Amendment 1B,

“and any acts and omissions made as a result”,

mean that it was not simply an interpretive clause. The effect of those words would be that these conventions would, in effect, be incorporated into our domestic law. A Lords amendment to a purported interpretation provision is not the right place to effect something so constitutionally significant.

Amendment 90F seeks to address this concern by substituting new wording, namely:

“In interpreting this Act, regard shall be given to the United Kingdom’s obligations under”


the various specified conventions. I suggest that the revised wording still presents the same challenges I outlined earlier. Either the new clause has substantive effect or it serves no purpose, and the noble Baroness’s intent is clearly the former.

On Amendment 90H, the Bill creates a bespoke suspensive claim and appeals process which will allow illegal migrants to make a suspensive claim if they consider that a mistake has been made in applying the duty, or if they would face a risk of serious and irreversible harm if removed to a third country. These are the only claims that should suspend removal, and limiting the ability of any other claims to prevent removal is necessary to deliver the essence of the Bill, ensuring that illegal entrants are promptly removed following the determination of any suspensive claim and appeal.

The Commons has now considered and rejected amendments similar to this on three occasions. It is time to restore the original Clause 1 to the Bill, with its clear statement of purpose: to avoid and deter unlawful migration, and to create certainty. It is time to respect the clearly expressed view of the elected House by endorsing Motion A. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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[Lord Coaker (Lab)]

My Lords, I support my noble friend Lady Chakrabarti’s Motion A1. We believe it to be a very important Motion.

The only comment I will make in response to the Minister’s opening remarks on the passage of the Bill in the other place is this. We have always said that the Government have a right to get their legislation, but this place also has a right to put forward amendments and to ask for revisions and consideration. It does not help us to believe that this place receives proper consideration of its amendments when the Minister in the other place announced at the end of last week, even before proper consideration, that no concessions would be made with respect to what this House is proposing. That is not the way for business to be conducted. This place has a proper constitutional role to play, which includes sometimes saying to the Government that they should think again, and even sometimes saying it twice.

[Lord Murray of Blidworth (Con)]

My Lords, I simply cannot accept the proposition advanced by the noble Baroness, Lady Chakrabarti. As the House will remember from the last occasion, a court always has regard, if possible, to the international treaties binding the United Kingdom, as was made clear by Lord Dyson in the Supreme Court in the Assange case.

The noble Baroness’s amendment is simply unnecessary, and, in addition, it would have the effect of changing the constitutional relationship of our law and international law. I am afraid, therefore, that I cannot accept her proposed Motion. I invite noble Lords to vote against it in the event that it is not withdrawn.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords. I have moved Motion A1 and I ask noble Lords to approve it.

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22:33

Division 1

Ayes: 200

Noes: 217

Motion A agreed.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 9B, to which the Commons have disagreed for their Reason 9C.

9C: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I beg to move Motion B that this House do not insist on its Amendment 9B to which the Commons have disagreed for their Reason 9C. I will also speak to Motions C, D and E.

Amendment 9B was rejected by the Commons for the second time earlier today by an increased majority. The elected House agrees that declaring asylum and certain human rights claims to be inadmissible is a core part of the scheme provided for in the Bill which must not be reversed. It is not a proportionate or considered amendment and simply creates a perverse incentive whereby people exploit every opportunity, including through protracted legal challenges facilitated by the early amendments, to reach the six-month point.

I note Amendment 9D has an additional provision, but this does not substantially change the effect of the earlier version of this amendment. Having debated this Bill for many hours, we will all be familiar with one of the key objectives of it—to remove illegal entrants in days and weeks, not months or years. That should be our start and end point. As such, this amendment is not only wrong but it is not needed.

I turn to Amendment 23B. The noble and learned Lord, Lord Etherton, suggested last week that the Government’s case against this amendment was simply to provide an assurance that,

“this will all come out in the wash”.—[Official Report, 12/7/23; col. 1826.]

There is rather more to it than that. The legislation is clear and affords the necessary protection for LGBT people fearful of persecution if they are removed to a particular country.

Throughout the debates in this House, I have been clear that it is simply not the case that anyone who meets the conditions in Clause 2 can be sent to any of the countries listed in Schedule 1 without further ado. The schedule needs to be read with the provisions in Clause 5, which determine whether a person can be returned to their home country, and with the provisions later in the Bill which enable a person to make a serious harm suspensive claim where they are being removed to a third country.

As to the noble and learned Lord’s point about Rwanda and the ongoing litigation, I point him to the terms of the Commons reason, which states that the amendment is not necessary

“because removal of any person to any country will only be done where the arrangements to do this are lawful”.

The Bill therefore already contains sufficient safeguards. This was recognised by the Commons when they voted for a second time to reject this amendment.

The noble and learned Lord, Lord Etherton, and the noble Lord, Lord Cashman, are doughty defenders of LGBT rights, and I entirely understand their desire to get clarity and certainty on this issue. I believe that the Bill provides the necessary clarity, and on that basis, and in view of the further vote by the Commons to disagree with the amendment, I hope that the noble and learned Lord and the noble Lord will now be content to support Motion C.

The detention powers in the Bill are fundamental to achieving its objectives. We need a robust scheme which broadly applies to all and does not allow the system to be gamed. The Bill is designed to be operated both quickly and fairly, and our aim is to ensure that people are not held in detention for longer than is absolutely necessary to effect their removal from the UK.

With regard to Amendment 33B and the detention of families for no more than 96 hours, or the new Amendment 33D, which sets a time limit of 120 hours, I put it to the right reverend Prelate the Bishop of Bristol that these amendments risk creating a significant loophole in the system. We will see criminal gangs putting together fake family groups, more adults seeking to pass themselves off as children, and genuinely unaccompanied children being put at risk.

On Amendments 36C and 36D, I remind noble Lords that unaccompanied children are not subject to the duty to remove. The power to remove them in Clause 3 will be exercised only in limited circumstances. Therefore, for the most part, unaccompanied children will not be detained under the provisions of the Bill but will instead be quickly transferred to local authority accommodation.

Where an unaccompanied child is detained, this will be for the shortest possible time, in appropriate detention facilities and with relevant support provisions in place. Such a person will be detained in age-appropriate accommodation, as the law already provides. As I informed the House previously, this is already set out in the Detention Centre Rules 2001.

The elected House has now on three occasions endorsed the Government’s positions on the detention powers in the Bill. Indeed, the votes earlier today delivered increased majorities for the Government’s position. Your Lordships’ House should be under no illusion that the position would change if new Amendments 36E and 36F, which only marginally change the earlier amendments, were returned to the other place. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord, Lord Etherton, has asked me to give a short commentary. He did not put an amendment down, but he wanted me to say, first, that the Government have never denied that the specified countries in the Bill are unsafe for LGBT people, and that includes Rwanda. He also asked me to say that it is reasonable that there should be no removals to Rwanda so long as there is litigation in process, and that prohibition on removal in the case of countries facing a proposal of proceedings under Article 7 is right in principle and mirrors the existing provisions regarding return under Section 80A. He wanted me to make those points even though he has chosen not to table a further amendment.

We have heard all the movers of amendments give a full explanation of their amendments. The noble Lord, Lord Kerr, spoke about common humanity—I of course agree with that—and about trying to support people who will potentially be kept in limbo through this Bill. The noble and learned Baroness, Lady Butler-Sloss, gave four examples of why she will be moving her amendment. The one that resonated most with me was her second point about needing to get an emergency protection order for a medical intervention for a child. As a family magistrate, I occasionally do those orders. I find it really quite shocking that, even for relatively routine orders, the Home Office would have to go to court to get a medical intervention. She made other points as well but that is the one that particularly resonated with me.

The right reverend Prelate the Bishop of Bristol introduced her amendment about a time limit of 120 hours, or up to seven days when authorised by a Minister; we will support the right reverend Prelate should she choose to move to a vote.

[Lord Murray of Blidworth (Con)]

My Lords, His Majesty’s Government cannot accept any of the proposed amendments. I shall deal first with the matter raised by the noble Lord, Lord Kerr, in relation to his Motion B1 and his amendment concerning a proposed subsection (3C) where subsection (3) would not apply

“if the reason that the person has not been removed from the United Kingdom can be attributed to the actions of that person”.

I suggest that that phrase would generate a tidal wave of litigation were this amendment to be accepted. It would make the statute wholly uncertain and, I suggest, open a very large loophole in the scheme of the Bill.

I turn to the points raised by the noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate the Bishop of Bristol in relation to the provisions concerning the responsibility in respect of children. I can reassure both the noble and learned Baroness and the right reverend Prelate that we are working closely with DfE on the implementation of this Bill, but I am afraid that I cannot accept the other propositions that they advanced.

Finally, in response to the noble Lord, Lord German, it is not our intention to “lock up children”, as he put it, under this Bill. It is our intention to have the power to do so should that be necessary in very rare circumstances. For those reasons, I invite the House to reject these amendments in the event that they are not withdrawn.

[Lord Kerr of Kinlochard (CB)]

The Minister said at the outset that Motion B1 contained no substantive change. He has now asserted that it contains a change that would be unworkable, wrecking and mammoth. He ought to make up his mind; but I hope the House’s mind is made up that we are not prepared to see sine die incarceration. I ask to test the opinion of the House.

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23:09

Division 2

Ayes: 193

Noes: 213

Motion B agreed.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 23B, to which the Commons have disagreed for their Reason 23C.

23C: Because the Amendment is unnecessary as an LGBT person who is a national of a country specified in the Amendment and who makes a protection claim will not be returned to their home country and can make a serious harm suspensive claim in the event that it is proposed to remove them to a safe third country, and because removal of any person to any country will only be done where the arrangements to do this are lawful.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its disagreement with the Commons in their Amendments 36A and 36B; and do not insist on its Amendments 36C and 36D.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion D. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

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23:21

Division 3

Ayes: 200

Noes: 207

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 33B, to which the Commons have disagreed for their Reason 33C.

33C: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion E. I beg to move.

Motion E1 (as an amendment to Motion E)

Tabled by

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 56B, to which the Commons have disagreed for their Reason 56C.

56C: Because the Bill already makes sufficient provision to enable a potential victim of modern slavery to remain in the UK where the Secretary of State considers it necessary for the person to do so for the purpose of cooperating with a public authority which is investigating their exploitation.

[Lord Murray of Blidworth (Con)]

My Lords, in moving Motion F, I shall speak also to Motions G, H and J. As regards Amendment 56B, this Bill provides an important exception to the application of the public order disqualification where it is necessary for a potential victim of modern slavery to remain in the United Kingdom for the purpose of co-operating with a law enforcement agency in connection with the investigation of their exploitation.

While there is indeed a presumption that it is not necessary for such co-operation to take place within the United Kingdom, the presumption does not apply where there are compelling circumstances to the contrary. In deciding whether there are such compelling circumstances, caseworkers will be guided by statutory guidance, and we are committed to such guidance having particular regard to persons believed to have been victims of slavery or human trafficking in the United Kingdom. Noble Lords will therefore appreciate that this guidance will effectively achieve the aims set out in this amendment.

The guidance will be published ahead of commencement of the relevant provisions of the Act. Statutory guidance assists decision-makers by providing them with detailed information and examples to consider when making judgments. It allows for flexibility in its implementation, which can be adapted to different situations while still adhering to the overarching legal framework, and plays an important role in supporting the interpretation and application of legislation. My noble friend and I are therefore of a similar mind as to the support offered to victims of exploitation that takes place in the UK. The Government’s view is that statutory guidance is the appropriate way to achieve this aim.

Amendment 103B seeks to confer an explicit statutory function on the National Crime Agency to combat organised immigration crime connected to illegal entry into the United Kingdom via the channel. As the noble Lord, Lord Coaker, will be fully aware, the NCA’s functions already extend to combating all types of organised crime, including organised immigration crime. Following the pledge made by the Prime Minister last December to stop the dangerous small boat crossings, the Government have doubled the funding for the next two years for the multiagency organised immigration crime task force, of which the National Crime Agency is a leading component. Our determination to tackle the criminal gangs that facilitate the channel crossings is not in doubt. It remains the case that this amendment is not needed.

We have debated at length what the Government are doing, and by when, to establish additional safe and legal routes. Therefore, in response to Amendment 102B, I will simply repeat what my noble and learned friend Lord Stewart set out last week. These commitments are on behalf of His Majesty’s Government and not just an individual Minister. I therefore hope that this amendment will not be pursued.

Finally, returning to the amendment proposed by the most reverend Primate the Archbishop of Canterbury, I remain wholly sympathetic to the need for an holistic approach and action in dealing with large-scale displacement crises and the abhorrent crimes of modern slavery and human trafficking. We work relentlessly to identify victims of modern slavery and human trafficking, delivering personalised, needs-based support and assisting recovery to rebuild lives for some of the most vulnerable in our society. Alongside this, we collaborate with a wide range of domestic and international partners to enhance awareness of modern slavery and human trafficking, bolster resilience and minimise opportunity for exploitation, supporting our ability to take a long-term approach to this issue.

The Government have already embedded actions to tackle refugee crises through existing cross-government strategies, including the international development strategy and the humanitarian framework. Much of this work has effectively and appropriately been spearheaded by the Foreign, Commonwealth and Development Office due to its focus beyond our borders. We also continue to collaborate with state and non-state actors, such as the United Nations High Commissioner for Refugees and non-governmental organisations. As noble Lords will be aware, the UNHCR has a global mandate to protect and safeguard the rights of refugees. We will continue to work with the UNHCR, as we have done many times before, to respond to displacement crises globally and offer safe and legal routes to protection in the United Kingdom. Furthermore, we have played a key role in intergovernmental processes that have shaped the way the international community responds to displacement crises, such as through the Global Compact on Refugees adopted by the international community in 2018. We continue to work to find durable solutions for refugees with like-minded international partners.

I agree with many of the points made previously on the Bill by the most reverend Primate and other noble Lords. I wholeheartedly recognise the importance of addressing the underlying drivers and taking a long-term approach to tackle these issues, and believe that our ongoing efforts already embody a commitment to an extensive and strategic approach.

Our dedication to tackling these challenges and to finding sustainable solutions remains unwavering. However, the immediate focus of this Bill is stopping the boats. As I set out at the start of this debate, it is only through stopping the boats that we can enable the Government to have a greater capacity to provide a safe haven for those at risk of war and persecution.

The House has fulfilled its proper role within our constitutional framework in relation to the Bill. Your Lordships have asked the elected House to examine these issues again—not once, but now twice. The answer has again come back from the Commons that it disagrees with the Lords amendments. It is time to leave it there. I beg to move.

Motion F1 (as an amendment to Motion F)

Moved by

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The most reverend Primate’s amendment is exactly what we are told by some of those who criticise opposition to the Bill. It is exactly what he is proposing and what we should be dealing with. He has attempted to require through the means of legislation a wide and long view of the issues, and the Government have rejected that. We will be supporting the amendments to the Motions that are moved.

[Lord Murray of Blidworth (Con)]

My Lords, as I indicated in my opening remarks, I agree with my noble friend Lord Randall—from his speeches in earlier stages of the Bill—and much of what the noble Lord, Lord Coaker, said, that we are of a similar mind as to the support offered to victims of exploitation that takes place in the United Kingdom. It remains the Government’s view that statutory guidance is the appropriate way to achieve this aim, and for that reason the Government resist the amendment proposed by the noble Lord, Lord Coaker.

Moving on to deal with the revised Amendment 103D, to which the noble Lord, Lord Coaker, spoke, he seeks to confer an explicit statutory duty on the NCA director-general to produce a report within a period of three months, beginning with the day on which the Act is passed and every three months thereafter. I am sure that noble Lords will join me in thanking the officers of the National Crime Agency, who consistently bring their expertise and dedication to combating serious and organised crime and making the UK a safer place. With regard to publishing reports, surely noble Lords can agree that the NCA’s time is better spent focusing on reducing serious and organised immigration crime and arresting the criminals behind it rather than producing reports. One has only to read the NCA’s annual report to appreciate the range of activities it is already engaged in to help tackle the cross-channel people-smuggling gangs. The NCA has also published its annual plan for 2022-23, which sets out priorities for the year ahead and how it will deliver them. I commend it to noble Lords.

On Amendment 107E, proposed by the most reverend Primate, I welcome the fact that he has put forward a new amendment which no longer seeks to provide for a 10-year strategy but rather a one-off debate. However, I am afraid that the Government remain unpersuaded of the case for his new amendment, and it is not accepted by the Government. It is not for the United Kingdom in isolation to assess the effectiveness of the refugee convention, as the amendment appears to suggest.

For all those reasons, I invite the House, in the event that any of these matters are put to a Division, to oppose them.

[Lord Coaker (Lab)]

My Lords, for the reasons that I outlined earlier, and for the reasons that I gave with regard to the Modern Slavery Act, I beg to move my Motion F1 and wish to test the opinion of the House.

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00:06

Division 4

Ayes: 193

Noes: 205

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 102B, to which the Commons have disagreed for their Reason 102C.

102C: Because the Amendment is unnecessary as the Government has already committed to implement additional safe and legal routes as proposed in the report to be published under clause 59 as soon as practicable and in any event by the end of 2024.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion G. I beg to move.

Motion G agreed.

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 103B, to which the Commons have disagreed for their Reason 103C.

103C: Because the Amendment is unnecessary as section 1 of the Crime and Courts Act 2013 already provides for the National Crime Agency to have functions (including duties to publish information) in relation to combating organised crime; this function encompasses organised immigration crime.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion H. I beg to move.

Motion H1 (as an amendment to Motion H)

Moved by

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00:18

Division 5

Ayes: 166

Noes: 201

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 107B and 107C, to which the Commons have disagreed for their Reason 107D.

107D: Because the Amendments are unnecessary as the Government already works in collaboration with the UN High Commission for Refugees and others in response to refugee crises and in tackling human trafficking.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion J. I beg to move.

Motion J1 not moved.