Illegal Migration Act: Northern Ireland

Wednesday 15th May 2024 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 14 May.

“Let me start by expressing the Government’s disappointment at this judgment. We continue to believe that our policy is lawful, that our approach is compatible with international law and, specifically, that the Illegal Migration Act proposals are compatible with Article 2 of the Windsor Framework. The Government will take steps to defend their position, including through an appeal. We have consistently made it clear that the rights commitments in the Belfast/Good Friday agreement should be interpreted as they were always intended and not expanded to cover issues such as illegal migration.

This judgment changes nothing about our operational plans to send illegal migrants to Rwanda this July or the lawfulness of our Safety of Rwanda (Asylum and Immigration) Act 2024. We continue to work to get regular flights off to Rwanda in the coming weeks, and nothing will distract us from that or from delivering to the timetable I have set out. We must start the flights to stop the boats.

The Government have consistently applied immigration law on a UK-wide basis. It is important to remember that those who have been served a notice for removal to Rwanda are being considered under the Nationality and Borders Act 2022 and the safety of Rwanda Act. This judgment relates to the Illegal Migration Act and so does not impact our operations or planning for Rwanda.

Preparations to begin flights within weeks are continuing at pace. As the Prime Minister made clear, ‘nothing will distract us’ from the job of implementing the Rwanda policy. We must start the flights to stop the boats. That is the fair thing to do, it is the right thing to do for our country and it is the humane thing to do. Our conviction that the Rwanda scheme is lawful and necessary is unchanged. We are acting in the national interest and we will not be deterred.”

15:50

[Lord Coaker (Lab)]

Can the Minister confirm that, if this Belfast judgment stands, we will be in the chaotic and damaging situation of asylum seekers having different levels of protection in different parts of the UK? How on earth have the Government let it come to this? What assessment has been made of that discrepancy in the movement of asylum seekers across the UK?

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I start by expressing the Government’s disappointment at this judgment. We continue to believe that the policy is lawful, that our approach is compatible with international law and, specifically, that the Illegal Migration Act proposals are compatible with Article 2 of the Windsor Framework. The Government will take all steps to defend their position, including through an appeal. We have consistently made clear that the provisions in the Belfast/Good Friday agreement referred to in the Windsor Framework were developed specifically against the background of Northern Ireland’s unique circumstances. They do not concern, and should not be brought into, the complex debate on illegal migration.

[Baroness Suttie (LD)]

My Lords, does the Minister still acknowledge that the European Convention on Human Rights is an essential part of the Good Friday/ Belfast agreement? In that context, will he reconfirm the Government’s commitment to upholding the rights of all people residing in Northern Ireland?

[Lord Sharpe of Epsom (Con)]

My Lords, I have made it very clear—but I will say it again—that all the provisions in the Belfast/Good Friday agreement referred to in the Windsor Framework were developed specifically against the background of Northern Ireland’s unique circumstances. They do not concern, and should not be brought into, the complex debate on illegal migration.

[Lord Dodds of Duncairn (DUP)]

My Lords, whatever the rights and wrongs of people’s views on the Rwanda Act or the Illegal Migration Act, it has always been a clear principle that immigration law is a matter for application on a UK-wide basis. This is the latest in a string of rulings in the High Court in Belfast that says that Acts of Parliament not only are incompatible with the human rights convention but can be struck down and disapplied by the Windsor Framework agreed by the Parliament of this United Kingdom. Surely the Government have to deal with the fundamental problem. They said in the Safeguarding the Union Command Paper that the Windsor Framework did not deal with anything other than trade or goods—that is clearly and totally false: there will be a people border if this continues. Will the Minister deal with the fundamental, underlying problem of the continued supremacy of EU law over vast swathes of the economy and other areas of society in Northern Ireland?

[Lord Sharpe of Epsom (Con)]

The noble Lord makes the very good point that immigration is a reserved matter and that the Government have consistently applied immigration law on a UK-wide basis. This judgment relates to the Illegal Migration Act, so it does not impact our planning or operations for Rwanda. I am afraid that I cannot speculate as to the other matters that he raised.

[Lord Hannan of Kingsclere (Con)]

Will my noble friend the Minister follow through on the implications of what he just said? As the noble Lord, Lord Dodds, pointed out, the Windsor Framework was sold in this House and in the other House as something that would apply only to pork pies and technical standards. If it is now being interpreted that the Windsor Framework can be used to strike down primary legislation passed in our Parliament, surely that is not operating as we understood it. Does it not call into question the whole basis of it and make the case for a fundamental renegotiation of the entire agreement?

[Lord Sharpe of Epsom (Con)]

My Lords, as I stated in my original Answer, which I will repeat to my noble friend, the Government intend to take all steps to defend their position, including through an appeal. Of course, these are the matters that will be debated in that appeal.

[Baroness Chakrabarti (Lab)]

My Lords, long before the Windsor Framework, there was the Good Friday agreement, which was hard won, not least by people from all communities in Northern Ireland. Can the noble Lord confirm that if this decision of Mr Justice Humphreys in the Belfast High Court is upheld in our Supreme Court, the Government will respect that decision, protect the Good Friday agreement—which is an international treaty signed up to by this country and the Republic of Ireland and supported by our closest ally, the United States—and protect the peace and human rights in Northern Ireland?

[Lord Sharpe of Epsom (Con)]

My Lords, again, I was very clear at the start; we have consistently made it clear that the provisions in the Good Friday agreement, referred to in the Windsor Framework, were developed specifically against the background of Northern Ireland’s unique circumstances. That position has not changed.

[Lord Rogan (UUP)]

My Lords, the Minister will recall that last week in this House I raised my concerns about the Irish Government’s plan to mobilise 100 Garda officers to stop asylum seekers crossing into the Republic of Ireland from Northern Ireland, in effect, creating a hard border on the island. I asked the Minister directly to clarify what His Majesty’s Government were doing to remedy this situation, and his response was that he did not think it was appropriate to

“comment on the internal policies of another country”.—[Official Report, 9/5/24; col. 315.]

Given the potential consequences for Northern Ireland of the Belfast High Court judgment, does he now believe that it is time for the Government in general and the Prime Minister in particular to prioritise the well-being of the people of the Province of Northern Ireland over the shallow quest for voters in Great Britain?

[Lord Sharpe of Epsom (Con)]

My Lords, I would go back to my original answer of last week: I still do not think it is appropriate to comment on the internal policies of another country. As I have repeatedly said—and as I will continue to say as often as I am asked—the Government will take all steps to defend their position, including through an appeal. I would also say that this is not about prioritising one part of our country over another. It is about maintaining the UK’s border integrity.

[Baroness Berridge (Con)]

My Lords, the Illegal Migration Act is the basis on which the Home Office has any authority to accommodate children. I understand from my noble friend that the Government are appealing, but is the Act disapplied and, if it is, what does that do to the authority of the Home Office to accommodate any unaccompanied asylum-seeking children in Northern Ireland?

[Lord Sharpe of Epsom (Con)]

My Lords, obviously the Government are still seeking advice on all aspects of what the judgment means, but we will be appealing. I should also say that the final order will not be handed down for another two weeks, so an appeal cannot be lodged until after that final order is handed down.

[Lord Dubs (Lab)]

My Lords, in the meantime, what is the position of asylum seekers in Northern Ireland who no longer come under the Illegal Migration Act? Are they able to apply for asylum?

[Lord Sharpe of Epsom (Con)]

No, I do not believe they are. I do not think this has any impact on, for example, the safety of Rwanda or relocation to Rwanda under existing legislation. As noble Lords will be aware, migrants currently in Northern Ireland can be relocated under the NABA.

[Lord Bellingham (Con)]

My Lords, the Minister said that the Government were going to appeal the decision when it is finalised. How quickly could that be brought on and, if indeed the Government lost the appeal, could they then legislate?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not understand or know anything about the workings of the court processes, so I am afraid I cannot answer that question.

[Lord Hain (Lab)]

My Lords, I understand that the Minister is a Home Office Minister. However, the noble Lord, Lord Caine, will be able to educate him on the fact that anybody who knows the primary legislation implementing the Belfast/Good Friday agreement will not be in the least surprised by the High Court judgment.

[Lord Sharpe of Epsom (Con)]

That may be the case, but, as I have repeatedly said, the Government intend to appeal the decision. Until that appeal is heard, I do not know that there is much else to say on this.

[Lord Purvis of Tweed (LD)]

My Lords, the Illegal Migration Act gives Ministers the power to detain those who have arrived in small boats. My understanding is that that is still not yet in force after a number of months—since last July. What prevents anybody who has arrived on a small boat since last July then travelling to Northern Ireland?

[Lord Sharpe of Epsom (Con)]

My Lords, we do not believe that this will induce people to go to Northern Ireland. The cohort we are detaining has been considered under existing legislation, so those who are part of that cohort can and will be removed to Rwanda. There would be no benefit to their going to Northern Ireland to avoid this removal. The NABA cohort is anyone who arrived in the UK on or after 1 January 2022 and who received a notice of intent prior to 29 June 2023, which informed them that their asylum claim may be considered inadmissible and that they may be removed to Rwanda.

[Baroness Lister of Burtersett (Lab)]

My Lords, until any appeals in relation to the Northern Ireland cases are concluded, will the Minister undertake not to commence Section 57 of the Illegal Migration Act, concerning age assessment, which has now been disapplied in Northern Ireland?

[Lord Sharpe of Epsom (Con)]

I cannot make that commitment. I will come back as and when I have more to say on the subject.

[Lord Morrow (DUP)]

My Lords, during the passage of the Rwanda Bill, my party flagged up these concerns. Of course, we were told that we were wrong. It now transpires that we were right. Surely the quick and efficient way to satisfactorily resolve this issue is an urgent but short piece of legislation that asserts without doubt that we control our own borders. Does the Minister agree?

[Lord Sharpe of Epsom (Con)]

The noble Lord makes an interesting point but, as I say, the first step in this process is to appeal the judgment. I am sure that all other considerations will then be taken as to what might happen in the future.