Border Security, Asylum and Immigration Bill (Twelfth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThe Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 13 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 14 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 12 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 12 - Question accordingly negatived.
Matt Vickers (Stockton West) (Con)
Liberal Democrat new clause 27 seeks to repeal provisions in the Nationality and Borders Act 2022 passed by the previous Conservative Government. By attempting to repeal section 29 of the Act, the Liberal Democrats are seeking to prevent the Government from removing people, including criminals, to a safe third country.
Rewind back to 2022 when 45,000 people crammed into small boats, flimsy rafts teetering on the channel’s unforgiving waves—a swarm, spurred by the hope of slipping through our borders, hammering coastal towns and stretching security to its limits.
The Minister for Border Security and Asylum (Dame Angela Eagle)
Did the hon. Gentleman really mean “swarm” in that context? That is quite emotive language.
Matt Vickers
Well, hot air is required in this room this afternoon, and I intend to provide it.
We fought back with the Nationality and Borders Act third-country removals, which helped the Government to deter crossings by 36% in 2023 from 45,000 to under 29,000—not by chance, but by design, sending a message to traffickers and migrants alike that Britain is no soft touch or guaranteed prize. Now, the Liberal Democrats barge in with new clause 27, desperate to repeal section 29 to shred that deterrent and plunge us back into chaos, flinging the channel wide open not just to the weary but to every chancer or criminal. That is not tweaking policy; it is torching a firewall, inviting all those to Dover’s cliffs and Deal’s shores and erasing every inch of progress that we have clawed from the crisis. The Lib Dems owe us hard answers. How many boats—50,000 or 60,000?
The Albania deal delivered a masterstroke of border control. That pragmatic triumph has turned a torrent of illegal crossings into a trickle through sheer diplomatic grit. Back in 2022, Albanians dominated the small boats surge. A 12,000-strong, relentless wave of young men were lured by traffickers with promises of easy UK entry for £3,000, clogging Dover’s processing centres and fuelling tabloid headlines of chaos. Then came our 2023 pact with Tirana—a no-nonsense agreement that flipped the script with fast-track returns, joint police operations and a clear signal: Albania is safe and you are going back.
By 2024, the results were staggering. Weekly flights were whisking deportees home, with each jet a nail in the coffin of the smuggling networks that once thrived on our porous borders. That was not luck or loud threats but cold, hard execution, bolstered by UK-funded cameras on the Albania-Kosovo frontier and Albanian officers embedded in Dover.
Matt Vickers
His writing seems to be going quite well at the moment. I do not know that I have the cash for him.
What I have described is not asylum. We cannot pretend that the EU’s 27 nations and its vast tapestry of safe, stable and prosperous lands—we can take our pick of France, Italy, Spain, Sweden and so on, each a bastion of peace and plenty—somehow warrant the same desperate lifeline that we reserve for those fleeing real and genuine chaos. This is the same organisation that the Liberal Democrats supposedly want to build closer ties with. They also want the UK to grant asylum to people who come to this country having already been in a country where they have claimed and been granted asylum. Why are the Liberal Democrats encouraging people to cross the channel when they already have asylum or can claim asylum in a safe third country?
Just like the Labour Government, the Liberal Democrats want to remove sections of the Nationality and Borders Act 2022 that allow local and public authorities to conduct an age assessment on an age-disputed person. As we discussed before when the SNP did not wish those who claim to be a child to be treated as an adult, every European country apart from ours uses scientific age assessment techniques such as an X-ray of the wrist. As we have said, there are also other methods. More than 50% of those claiming to be children were found to be adults after an age assessment in the quarter before the election. Without a scientific age assessment method, it is very hard to determine age. Given the horror stories in this area, why do Liberal Democrats want to put the people of this country at risk, and blindly allow unverified people into the UK?
Let us now talk about a nightmare unfolding right under our noses: one that the Liberal Democrats seem hellbent on making worse. In the first quarter of 2021 alone, 560 adults—grown men with stubble, receding hairlines and years behind them—had the gall to pose as kids, slipping through the cracks until scientific age checks, such as wrist X-rays and dental scans that every sensible European nation uses, caught them red handed and stopped them cold.
The Lib Dems’ new clause 27 would axe those checks and rip out the one tool keeping us from dumping people who are 25 years old or even older into classrooms alongside children. That is not some abstract risk. It has happened and it is real; it means men in their 20s sitting at desks meant for teens, all because we have let sentiment trump science. That would not protect children, but endanger them—a reckless gamble that would turn schools into hunting grounds and parents into nervous wrecks, all so the Lib Dems can pat themselves on the back for being compassionate. If they get their way, every classroom will have a question mark. How many 25-year-olds will slip through before the damage is done?
What do the Liberal Democrats believe should happen if the authorities believe a migrant who is claiming to be under 18 is actually an adult? Do they believe that such people should be placed in schools with schoolchildren? Again, it seems as though the Liberal Democrats want to strip the Government of any power to control who comes to the country. That would see net migration drastically increase.
The issue cuts deeper than policy, however; it is about what people expect, and the Liberal Democrats’ new clause pulls hard against that grain. Voters have signalled what they want loud and clear, with 68%—nearly seven in 10—backing tougher border controls in surveys: a call echoing from Dover to Folkestone, where residents live with the reality of arrivals day by day. That is not a passing opinion; it is a steady demand—rooted in years of debate, from the 2016 Brexit vote to the 2019 landslide—for a system that prioritises their say.
Dame Angela Eagle
I do not know what the hon. Gentleman had for lunch, but perhaps we should find out and get some of it ourselves. We can then all compete with the poet laureate and the virtuoso performance that we have just heard.
I am going to talk about the new clause, however, which is in respect of the Nationality and Borders Act 2022. The hon. Member for Mid Dunbartonshire is proposing that numerous sections of the 2022 Act be repealed under the Bill.
I should start by making it clear that we are determined to restore order to the asylum system, so that it operates swiftly, firmly and fairly, and ensures that the rules are properly enforced. That is a financial necessity to deal with the backlogs that we have inherited—the permit backlog in particular, but also others, especially in the appeals space—so that the costs do not continue to mount up at the expense of the taxpayer. Getting the system moving again is an important part of what we have been doing.
Following the election, the Home Secretary acted rapidly to change the law to remove the retrospective application of the Illegal Migration Act 2023, which allowed decision makers to decide asylum claims from individuals who arrived in the UK from 7 March 2023. Previously, there was a ban on that, because of the duty to remove, which was never going to be sensibly put into effect.
I am not going to speak to every section of the Nationality and Borders Act, but the hon. Member for Mid Dunbartonshire wants us to repeal very large chunks of the Act under the new clause. I will mention only a few, and I hope that she will forgive me for not talking about every section.
The introduction of the national age assessment board, for example, in March 2023, relies on a piece of the Nationality and Borders Act that the hon. Lady wishes to repeal. In the interim, since that Act has come into being, we have introduced the national age assessment board and made it available across the country. It continues to offer significant improvement to our processes for assessing age, including creating greater consistency in age assessment practices, which can be very inconsistent in the practical delivery of Merton-compliant assessments in different local authorities—some are more experienced and some better at it than others. The national age assessment board creates a standard and a bar below which it is hard to go. It sets important standards in age assessment, improves quality and ensures that ages are recorded correctly for immigration purposes.
The Nationality and Borders Act also placed protections and support under the Council of Europe convention on action against trafficking in human beings on a legislative footing for the first time in the UK. That includes the right to a recovery period in the national referral mechanism, during which potential victims of modern slavery and trafficking are eligible for support and are protected from removal from the UK. The Act provides the means to disqualify individuals—I suspect that this may be the bit that the hon. Member for Mid Dunbartonshire objects to—from protections or support on the grounds of public order or bad faith. However, that is in line with article 13 of the convention; that part of the Nationality and Borders Act put the convention into UK law. I am surprised she is suggesting that we should remove it.
The Act also sets out the circumstances in which confirmed victims of slavery and trafficking may be granted temporary permission to stay in the UK. The Government will be launching a public consultation, before summer recess, on how we can improve the process of identifying victims of modern slavery. We will provide details on that consultation in due course.
Matt Vickers
Liberal Democrat new clause 29 requires that within six months of the date on which this Act is passed, the Secretary of State should lay before Parliament provision for leave to enter or remain in the UK to be granted to family members of people granted refugee status and of people granted humanitarian protection. In the new clause, family members include: a person’s parent, including adoptive parent; their spouse, civil partner or unmarried partner; and their child or sibling, including their adopted child or adoptive sibling, who is either under 18 or under 25, having been under 18 or unmarried
“at the time the person granted asylum left their country of residence to seek asylum”.
Further, it can be taken to mean
“other persons as the Secretary of State may determine, having regard to…the importance of maintaining family unity…the best interests of a child…the physical, emotional, psychological or financial dependency between a person granted refugee status or humanitarian protection and another person.”
If those provisions were not already incredibly vague, the Liberal Democrats have included a proposal that other persons can be determined by the Secretary of State. That could obviously result in a huge number of spurious claims made by family members who will say that they have a dependency on another person so they must be allowed to come to the UK under the provision. We already have judges completely stretching the definition of “right to family life” under article 8 of the European convention on human rights. The Liberal Democrat clause would be subject to even more abuse.
Beyond the vagueness, new clause 29 risks piling unbearable pressure on an economy already creaking under migration’s weight. Each new family member, however loosely defined, brings costs—in housing, where shortages already top 1.2 million units, in healthcare, with NHS waits stretching past 7 million, and in schools, where 9 million pupils squeeze into overstretched classrooms. The costs of supporting asylum for individuals run into the tens of thousands of pounds. Multiply that by thousands of dependants under this elastic clause, and we are staring at billions more siphoned from taxpayers, who have already seen their council tax spike. The Liberal Democrats do not set a cap; they fling the door open ever wider, ignoring how finite our resources are. Britain’s compassion has no bounds, but its resources certainly do. Our generosity must have limits. New clause 29 pretends otherwise, and working families will foot the bill when the system groans under the strain.
The new clause does not just invite claims; it opens a legal floodgate that could drown our courts in precedent-setting chaos by letting the Secretary of State define “family” on a whim. Whether we are talking about emotional ties or financial need, new clause 29 hands judges a blank slate to scribble ever-wider interpretations, building on the already elastic right to family life under article 8.
We have seen what has happened. As has been mentioned, an Albanian stayed because his son disliked foreign chicken nuggets. A Pakistani offender lingered, citing harshness to his kids. Let us now imagine dozens or hundreds of cases stacking up, each further stretching dependency—cousins, in-laws, distant kins—all cementing new norms that bind future policy. The Lib Dems would not just be tweaking rules; they would be unleashing a judicial snowball that would roll over border control for years to come. “Family unity” sounds noble, but the sprawl under new clause 29 could stall integration in its tracks—a challenge we cannot ignore when one in six UK residents was born abroad. Bringing in broad swathes of dependants, potentially with limited English skills or ties, risks clustering communities inward, not outward.
If we look across the channel, we see that Germany tightened family reunification after 1.1 million arrivals, capping it at 1,000 monthly for refugees’ kin, citing overload. We are not outliers for wanting clarity. Other nations prove it works, yet the Lib Dems chase a boundless model, ignoring how allies balance compassion with capacity, leaving us to pick up the pieces when this experiment fails.
The Parliamentary Under-Secretary of State for the Home Department (Seema Malhotra)
The hon. Member for Mid Dunbartonshire proposes an amendment that seeks to significantly change the current refugee family reunion policy, and to expand the current eligibility to include siblings, children under the age of 25 and any undefined family member.
The Government fully support the principle of family unity and the need to have provisions under the immigration rules that enable immediate family members to be reunited in the UK when their family life has been disrupted because of conflict or persecution. Accordingly, in recognition of the fact that families can become separated because of the nature of conflict or persecution, and because of the speed or manner in which people may be forced to flee their homes, communities and country, our refugee family reunion policy is extremely important and generous. The route enables those granted a form of protection in the UK to sponsor their partner or child to come to the UK, provided that they formed part of that family unit before they sought protection. Increasing numbers of visas have been granted through this route under the current policy, and indeed under the previous Administration. In 2024, 19,710 people were granted family reunion visas—twice the number in 2023, when around 9,300 visas were granted.
On the specific proposals in the new clause, it should be noted that any expansion of the existing approach without careful thought, including where such an expansion would allow an undefined family member to be brought to the UK, could significantly increase the number of people who qualify to come here, and runs the risk of abuse of those routes. That would have an impact on the taxpayer and could result in further pressures on public services and local authorities, which may have to accommodate and support the new arrivals.
We believe that introducing a rule that allows children to sponsor their relatives would risk creating incentives for more children to be encouraged or even forced, as we know can happen, to leave their families and risk hazardous journeys to the UK across the channel in small boats. That is a serious and legitimate concern regarding the best interests of those children.
Susan Murray
I thank the Minister. It is good to hear that the Government support the principle of family reunion, but we will press the new clause to a vote.
Question put, That the clause be read a Second time.
Seema Malhotra
I am pleased to speak about new clause 32, which would mean that people who are settled in the UK had that status automatically revoked in a wide range of circumstances. Irrespective of any other relevant factors, such as how long a person has lived here, settlement could be automatically revoked when a person earns less than £38,700, has received benefits or would not meet requirements for settlement that have subsequently changed.
We have heard important contributions from hon. Members across the Committee about why that is unworkable, for a range of reasons. I understand why the Government are seeking to bring this forward—[Interruption.] Sorry, the Opposition—it was a slip of the tongue. I also understand that the shadow Minister is seeking to continue his run of speeches—with his new tie today—in this Committee sitting, but let me lay out a couple of circumstances that clearly show that the new clause would be unworkable.
The proposals would create injustice in certain cases. People who are settled and have been paying tax and national insurance contributions for decades could have their settlement revoked because they temporarily fall on hard times. Let us imagine, for example, a couple—a British man with his American partner—who have been living together in this country for many years. He gets badly sick and he cannot work. She ends up having to look after him in local authority housing. I guess that under the Opposition’s rules, when he dies, she would be banned from settling in the UK. That is the sort of circumstance that would logically follow.
It is important to note as well that most migrants become eligible to access public funds only at the point at which they gain settlement—mainly ILR. The expectation is that temporary migrants coming to the UK should be able to maintain and to accommodate themselves without recourse to public funds. That approach reflects the need to maintain the general public’s confidence that immigration brings benefits to our country, rather than costs to the public purse. I can understand that as an underlying driver for some of today’s debate, but it is important that we keep this in the context of an immigration system that is fair, controlled and managed. The no recourse to public funds policy is a long-standing principle adopted by successive Governments. There is also an ability to apply for the no recourse to public funds condition to be lifted in certain circumstances, so there are safeguards for the most vulnerable.
Let me turn to the new clause’s other core condition, on revoking the ILR of a “foreign criminal”—the shadow Minister referred specifically to that. As we have said before, and throughout this Committee, settlement in the UK is a privilege, not an automatic entitlement. Settlement conveys significant benefits and provides a pathway to British citizenship. Settlement can be revoked for criminality, deception or fraud in obtaining settlement, or other significant non-conducive reasons. A person’s settlement is also invalidated if they are deported. The Government have been clear—in fact, we could not have been clearer—that foreign criminals should be deported from the UK whenever it is legal to do so. Any foreign national who is convicted of a crime and given a prison sentence is considered for deportation at the earliest opportunity.
I want to emphasise another point—Government Members, in particular, have mentioned this—about the figures from the Centre for Policy Studies. It is worth repeating that figures in that report refer to a period of historically high levels of net migration under the previous Government. For that and many other reasons, they are not a sound basis for an evidence-based discussion.
Seema Malhotra
I will—I expect the hon. Lady to make the point she made earlier.
Seema Malhotra
I just mention that we have the upcoming immigration White Paper, in which we will set out our approach to the immigration system and how to support it to be better controlled and managed for the future. We are clear that net migration must come down. She will know that under the previous Government—to which she was a special adviser—between 2019 and 2024, net migration almost quadrupled. That was heavily driven by a big increase in overseas recruitment. A properly controlled and managed immigration system, alongside strong border security, is one of the foundations of the Government’s plan for change. It is extremely important to have a debate based on tackling those root causes and issues, rather than tinkering around the edges and having a scenario in which the partner of a British citizen, who subsequently falls ill and dies, has her ILR revoked. It is important to understand what the Opposition tabling such amendments means for people’s lives and fairness in our society.
Tom Hayes
Briefly, prompted by the Opposition, we are inching towards a more interesting debate, on how to assess the financial benefits and costs of migration, while grounding that in available and high-quality data. In 2021, in Australia, the Treasury undertook a fiscal assessment and has repeated that annually. I know, too, that the Migration Advisory Committee is looking to improve the quality of data, because over 14 years we have had such poor-quality data on which to make assessments. It is starting to look at different categories of workers in order to assess whether they are net contributors or net drags. That is a really positive step.
One of the reasons why we are relying on “best” or “only” reports is because we had a Government who could have improved the quality of the data to make managed assessments of what controlled immigration that benefits our economy would look like, but instead, unfortunately, we had the borders thrown open with no sense of what our economy ought to be or what the skills ought to be, which is regrettable. Will the Minister comment on the importance of the White Paper to drive forward the immigration system that we actually need, grounded in the data that we need?
Seema Malhotra
My hon. Friend highlights a crucial point about the importance of evidence-based policy and of good data, which was sorely lacking across the whole immigration system when we came into office. The utter chaos, with backlogs in every part of the system, put huge pressure on it and made it much harder to get information about where the backlogs were and who was in them in order to try to exert some control over the system and get that important data to inform future policy.
My hon. Friend is right to point to the Migration Advisory Committee, which continues to do important work to engage with stakeholders and to work across Government. That is an important part of the work that we are doing to use evidence in a much better way to inform how we link skills policy and visa policy. The work to restore order to our immigration system has been under way since we came into office. We will set out our approach, as he has intimated, in our upcoming immigration White Paper. I am grateful to have had the opportunity to explain why we will not support the amendment, and I respectfully suggest that the hon. Member for Stockton West may wish to withdraw it.
Katie Lam
I welcome the Minister’s response, particularly her words about the importance of settlement and citizenship being earned. The Opposition are excited to see the immigration White Paper, and particularly any data and fiscal impact analyses that it may contain. I apologise if this information is already publicly available and I am not aware of it, but can the Minister tell us when the White Paper is due to be published? Can she also set out a scenario in which it would be preferable for a foreign criminal to remain in this country after having been convicted of a crime, and why she considers the new clause to be unworkable?
Seema Malhotra
We have said that we hope to publish the immigration White Paper later in the spring. I have made some remarks in relation to foreign criminals; the Government are clear that they should be deported from the UK whenever it is legal to do so. Any foreign national who is convicted of a crime and given a prison sentence is considered for deportation at the earliest opportunity.
Seema Malhotra
I thank the hon. Member for that point. I have laid out the argument about needing an immigration system that is subject to rules and that can recognise different circumstances. I have also laid out the point about foreign criminals and where it is legal to deport them. Anyone who is convicted of a crime is considered for that.
The hon. Member will also understand that there can be complexity in people’s arrangements. Anything that becomes automatic in the way that she describes needs to be subject to much more debate than a new clause in this Bill Committee. We are not debating immigration; we are debating a system to stop the gangs and improve our border security. It is important that we see the purpose for which this legislation has been designed.
The Chair
Before I call the Minister, I will just point out that Erskine May urges us not to be critical of judges in UK superior courts. I am sure hon. and right hon. Members will wish to be circumspect in their remarks.
Dame Angela Eagle
I am not sure how much of the debate we could have heard, Dr Murrison, had you made that observation at the beginning of it.
I do not think this Government wish to join Belarus and Russia among those who are not signed up to the European Court of Human Rights. The Government are fully committed to the protection of human rights. When we talk about human rights, that means all people who are human: everybody, applied universally.
As the Prime Minister has made clear, the United Kingdom is unequivocally committed to the European convention on human rights. The Human Rights Act is an important part of our constitutional arrangements and fundamental to human rights protections in the UK. To start taking those away on a bit-by-bit basis, particularly beginning with people who are very unpopular and have done difficult or bad things, could be the start of a very slippery slope if we are not careful. That is why I am proud that our Border Security, Asylum and Immigration Bill has printed on its front cover that it is compatible with convention rights. This Government will always do things that are compatible with convention rights.
The paradox of some of what has been said in the debate we have just had is that it politicises decisions. That is a very different approach to judicial issues from the one we have seen for very many years, where, in effect, a lot of the powers on particular issues that used to sit with the Home Secretary have been taken by judges who are publicly accountable for their decisions. I do not think that this Government would want to see that reversed. The paradox of new clause 33 is that all those who potentially had a human rights claim, whatever their circumstances, could go straight to the Strasbourg court, which would clog up that court. As the hon. Member for Perth and Kinross-shire pointed out, that is not taking back control, it is abrogating it, and would flood the Strasbourg court with decisions that could have sensibly been taken here.
That is not to say that any one of us would not be frustrated by particular individual decisions, but I caution against using decisions that have been only partially covered or talked about on the front pages of The Daily Telegraph, which often takes decisions in cases out of context. We have talked a lot about chicken nuggets, and I would just put on the record that that case is being appealed, and judicial activities on that case have not yet finished.
With that commitment to human rights and European convention rights, I hope that Opposition Members will think about some of the potential consequences of what they are suggesting in chopping up human rights and wanting to put us in the same company as Belarus and Russia; about the way convention rights were developed; and about the benefits that adhering to human rights frameworks has given us as a democracy over the years.
Matt Vickers
I am sure that the Minister must disagree with some of the examples that we have seen, and agree that they undermine public trust in the judiciary, legal institutions and the frameworks we have. What is the solution? Must we grin and bear the appalling outcomes of those cases or is there a solution? How does she propose to stop such things happening?
Dame Angela Eagle
I would respectfully say that the hon. Gentleman’s party had many, many years to think of a solution, and most of the cases that Opposition Members have raised today had their genesis in the years that they were in power. Close to the very end, as they became more and more frustrated, they started coming up with more and more outlandish approaches.
Obviously, one wants the entire judicial process to be used, as speedily as possible, and if the Home Office wishes to appeal a particular case, it will do so. We keep a constant eye on the issues and we think about reforms that we could make. Obviously the hon. Gentleman will be the first to hear if we decide to make changes, but we do not wish to abrogate from the Human Rights Act, the ECHR and the human rights framework. That is where we and other Opposition parties differ from him and his party. That is why I do not accept new clause 33 and I hope that the Committee will vote against it if it is pressed to a vote.
Katie Lam
I hope it was clear in my remarks, but for the avoidance of doubt or ambiguity I want to say that the Opposition do not criticise our judges. Indeed, as my hon. Friend the Member for Stockton West said, they are doing the best they can with the rules and precedents under which they operate. That is why the new clause seeks to change those rules—
Matt Vickers
Currently a prison sentence of one year is required before a foreign national who is a convicted criminal can be deported. Even then, removal can be frustrated by asylum and human rights claims. New clause 34 would prevent a foreign national who is convicted of any offence from remaining in the UK, as well as anyone who has been charged with or convicted of an immigration offence under section 24 of the Immigration Act 1971, and would disapply the Human Rights Act from those cases. We believe that the protection of British citizens is paramount and should be the overriding priority for Government. If a foreign national has been convicted of any offence, they should lose their right to remain in the UK.
Dame Angela Eagle
On that point we agree, so why was his Government so tardy at actually deporting foreign national offenders when they were in office?
Matt Vickers
We have just had a lengthy discussion about the Human Rights Act and the impact it has on deportations. However, if she agrees so wholeheartedly on the principle, I am sure she might consider backing our amendment.
There are a number of countries where the UK has a significant number of foreign national offenders currently serving in British prisons. However, we deport only a small number of those foreign national offenders each quarter. Our new clause 42 would require the Secretary of State to use a visa penalty provision if a country is not co-operating in the removal of any of its nationals or citizens from the UK, or in relation to the verification of their identity or status. We have done this by amending the Nationality and Borders Act, so that the ability to impose visa sanctions is not discretionary but mandatory. We know that there are countries that are hard to secure returns to. We believe strongly that that should not be without consequences for those countries.
New clause 34 shifts the lens to where it belongs—on the victims left in the wake of foreign offenders, not the perpetrators gaming the system. In 2024, theft offences alone averaged just 8.1 months—a shopkeeper’s livelihood dented, a pensioner’s purse snatched, or a family’s peace of mind and sense of security destroyed. Public order crimes averaged just 9.6 months, with more huge consequences for the wellbeing of victims who are left with a fear of entering public spaces or unable to go about their ordinary lives. Yet the one year deportation bar enables those culprits to linger, post-sentence, free to reoffend while victims wait for justice that never comes.
This clause says, “Enough.” Any conviction, for shoplifting or worse, triggers removal—no Human Rights Act excuses—because every day a foreign offender is allowed to stay is another day a British victim’s trust in the system erodes. Why are the Government okay with that shadow hanging over our streets? New clause 42 would force nations to play ball uphill. We see too many countries dither and delay in refusing to take back offenders. Mandatory visa sanctions flip that script. No co-operation, no UK visas for their elite. Watch fast how passports materialise when there are real consequences. Why is Labour soft-pedalling when we could wield this stick, clear the backlog and reduce pressure on prison places?
Katie Lam
In that case, I am happy to reassure him that I wrote every word.
The short answer to the question about Albania is yes. We think that would be completely appropriate. Why would Albania refuse to accept one of its own citizens that should, by our rules and our laws, be returned to that country? If it refuses to do so, we would absolutely consider that to an appropriate trigger for that response.
To continue what I was saying, new clause 40 amends section 70 of the Nationality and Borders Act, and it expands the Act to cover both nationals as well as citizens. We consider that it should be a basic and fundamental principle that we should be able to remove from this country those who break our rules. That is harder than it might sound, particularly when individuals are determined to lose their documents and obfuscate their identity and origin in every way they can. What we propose here will align other countries’ incentives with our own. It will create substantial pressure on other nations to co-operate with us to secure our border, and we strongly hope that the Government will consider adding it to the Bill.
Dame Angela Eagle
New clauses 34 and 42 reprise some of our debate on the last group of new clauses, but they also introduce the idea of the visa penalty that, as the hon. Member for Weald of Kent has just explained, is encompassed in new clause 42. New clause 34 seeks to extend automatic deportation to any foreign national convicted of an offence in the UK, or charged with an immigration offence, without consideration of their human rights. We dealt with some of that in the last debate. It would remove protections for under-18s and victims of human trafficking, and it seeks to extend the automatic deportation provisions to certain Commonwealth and Irish citizens who are currently afforded exemption from deportation.
I do not believe these new clauses would be workable. They are unrealistic and would undermine our international obligations. We already have the power to deport any foreign national on the grounds that doing so would be conducive to the public good, regardless of whether they have had to serve the 12-month prison sentence that the UK Borders Act 2007 requires. If they are subject to a 12-month prison sentence, it is a duty to deport them.
The hon. Member for Weald of Kent was a special adviser in the Home Office, so she knows about these things, and the hon. Member for Stockton West is a spokesperson in the shadow Home Office team. The Conservatives talk a lot about deportation, but they did not do a lot about it when they had the power to do so.
Chris Murray
It was interesting to hear the hon. Member for Weald of Kent setting out her argument articulately, and it was good to hear her say that she recognises that the last Government made a lot of mistakes on immigration, and that the evidence shows that. Sadly, although it is good to have that recognition, it does not seem as though very much has been learned from the Conservatives’ experience in office, based on each of the new clauses that they have set out.
First, on the spousal visas, quite a lot of what is in new clause 35 actually exists already. There are already salary thresholds and things like that. It is unlike me to praise the previous Conservative Government on immigration, but, actually, across previous Administrations, both Labour and Conservative, very good work has been done on issues such as sham and forced marriages. What is new in new clause 35, which is a very strange and horrible power to give Ministers, is the ability to either restrict the nationalities that British people can marry or set thresholds on them. I have huge respect for my ministerial colleagues in the Home Office, but I do not think that they should be able to choose what nationalities I am allowed to marry. We got rid of anti-miscegenation laws in the 20th century; we do not want returning through the back door, through measures such as this. Most of all, this arbitrary figure of 7% is very strange; if I were to marry, say, an Australian or an American, I would have to hope that I was not in the 8th percentile of people to do that. That would be a very strange way for us to ask British citizens to live their lives and fall in love with people.
Opposition Members also made the point about how the legislation needs to look backwards and make sure that migrants are net fiscal contributors over their lifetimes. I would say, again, that that is not a realistic thing to ask Governments to do. We will only know whether we have been net fiscal contributors when we die, so we cannot really ask people to make those projections.
Finally, there is the numerical visa cap in new clause 40. Again, that is a gimmick that is not addressing the actual structural problems in the immigration system. First, it treats all migrants the same, as one big monolithic whole, yet we know that the impact of migrants on communities is different, whether they are spouses, students, doctors, lorry drivers or refugees.
If we are going to have this kind of cap, how do we prioritise? Will it apply throughout the whole of the year? How will businesses plan if they want to recruit from overseas? As my hon. Friend the Member for Bournemouth East said, what if emergencies mean that there are more people coming in? The last Conservative Government set a cap for tier 2 visas, then, of course, ended up hitting it and just exempting doctors and nurses from it anyway. Is it not inevitable that we will just be condemned to repeat history if we do that here? We have talked a lot about public trust in the immigration system and how that has been so deeply sapped by failures on immigration policy. The Conservatives had a net migration target of 100,000 a year, which they consistently failed to meet and had to revise. This proposal is just advocating that we repeat that exact mistake, but hoping for a different outcome, which seems bonkers to me.
Seema Malhotra
A number of the issues raised regarding these new clauses have already been debated in relation to other measures, so I will keep my remarks fairly brief on some of the additional issues.
Katie Lam
New clause 36 would give access to asylum accommodation centres to our immigration enforcement officers. Members of the public may be surprised to learn that this power does not already exist. It seems to me common sense that when a person has come here illegally and is being housed by the state, immigration enforcement—an arm of that state—should be able to enter that accommodation to carry out their work.
As my hon. Friend the Member for Stockton West rightly set out, these accommodation centres exist because the volume of those coming here illegally is such that it is not possible to hold everyone in immigration detention. There are therefore substantial numbers of people on immigration bail, and a reasonable number of those are held in accommodation centres. Immigration decisions are made elsewhere, but this is the criterion set out in current legislation. In our view, this is a quirk of the current system, and not how one would design it if starting from a blank page. These sorts of accommodation centres did not exist when our rules were written, and we think that this corrects that quirk.
I echo the question asked by my hon. Friend the Member for Stockton West: does the Minister think that this would be of operational benefit to immigration enforcement officers? If so, will she include it, and if not, why not?
Dame Angela Eagle
New clause 36 seeks to provide a right of access upon request for Home Office teams working within immigration enforcement to asylum accommodation centres in order to visit those centres and residents at any time.
Matt Vickers
I think the public will be stunned to hear that immigration enforcement officers have challenges in accessing asylum accommodation centres, as outlined by Tony Smith, the former director general of UK Border Force. We will therefore seek to press the new clause to a vote.
Dame Angela Eagle
The new clause talks about accommodation centres, which do not exist. What does the hon. Gentleman mean by accommodation centres?
Martin Vickers
We have had provision for accommodation centres. We have had accommodation centres.
Martin Vickers
I know there are 8,500 more in hotels now, but this was a measure that was put in place to reduce that hotel dependency, to stop us increasing the number of people in those hotels by 29%.
Dame Angela Eagle
I want to put something on the record before we vote. There is a specific meaning in law for the phrase “accommodation centres” under the Nationality, Immigration and Asylum Act 2002. Since that law was passed, no Government have actually stood up accommodation centres under that specific meaning. Therefore, the shadow Minister in his new clause 36 is asking for powers to enter something that does not exist.
Pete Wishart
While the Minister is on her feet, could she perhaps ask the Opposition spokesperson whether he actually means hotels?
Dame Angela Eagle
I thank the hon. Gentleman for that. I was trying to help the shadow Minister, because I thought he might be trying to talk about accommodation generally. If that is the case, we already have the powers we need to enter when and where we wish. This power is much broader, and we would not like to see it put into effect, which is why I hope the Committee will vote against the new clause.
Question put, That the clause be read a Second time.
Katie Lam
We have spoken many times today, and over the course of this Bill Committee’s proceedings, about the fundamental principles of fairness upon which we believe that our immigration system should be built. We have also spoken extensively about the generosity of the British state, and how much it costs to support those who, according to our rules, cannot support themselves. But that generosity, while admirable in what it says about our approach to our fellow man, costs the British taxpayer dearly. As my hon. Friend the Member for Stockton West set out, it costs many billions of pounds a year. It also causes additional pressure on infrastructure and public services, which is not covered by what we suggest here.
We consider that new clause 37, which would introduce the asylum support repayment scheme, is a totally fair way of proposing that people who come to this country are responsible for contributing for the services that they receive. That includes the accommodation that they live in. We do not see any reason why that should be viewed as a negative change, and we really hope that the Government include it in their Bill.
Dame Angela Eagle
New clause 37 would give the Secretary of State regulation-making powers to set out arrangements for asylum seekers to receive loans towards their maintenance and accommodation—but, as we have discussed in this Committee during scrutiny of the Bill, the costs of accommodating and supporting asylum seekers has grown significantly. The reason for that increase is that the Government inherited an asylum system under exceptional strain, with tens of thousands of cases previously at a complete standstill—the perma-backlog, which we have referred to on many occasions during our proceedings in the past few weeks—claims not being processed, and a record number of people having arrived on small boats in the first half of the year.
While immediate action was taken to restart asylum processing, we cannot resolve the situation overnight. It nevertheless remains our commitment to reduce the cost of asylum accommodation, including by ending the use of asylum hotels. The size of the existing backlog, particularly in appeals, means that we are forced to use hotels in the meantime. That is not a permanent solution, but it is a necessary and temporary step to ensure that the system does not buckle under exceptional strain.
Increasing the speed at which asylum claims can be processed and dealt with is the best way of dealing with this issue of cost, in my view. I think on all sides we want to see the costs come down. We want to see a properly functioning immigration system that delivers fair, timely decisions and manages public funds. Hotel costs have actually dropped from over £9 million a day to under £6 million a day. Overall the Department is planning to deliver £200 million of additional in-year savings in 2024-25, and £700 million of savings against 2024-25 levels during the following financial year, on asylum costs. These measures, taken together, would represent a saving of over £4 billion across 2024-25 and 2025-26 when compared with the previous trajectory of spending.
The Home Office has a legal obligation, as set out in the Immigration and Asylum Act 1999, to support asylum seekers—including any dependants—who would otherwise be destitute: “destitute” is the word that people need to remember there. Asylum seekers can apply for accommodation, subsistence, or both accommodation and subsistence support when they are destitute. Once official refugee status has been given, the individual is able to work in the UK.
Although asylum seekers generally do not have the right to work in the UK while they are waiting on a decision about their asylum claim, there are some instances in which they can apply for permission to work. They are eligible to do so if they have waited over 12 months for an initial decision on their asylum claim, or for a response to a further submission for asylum, and they are not considered responsible for the delay in decision making.
In that context, the new clause proposed by the hon. Member for Stockton West is an interesting one. I would welcome clarification on how such a loan scheme would operate alongside or instead of the current system, and the details of any assessment of the practical or economic benefit of such a scheme. Further scoping would be necessary in order to establish whether it is a feasible option. As such, its inclusion in this Bill is premature.
Katie Lam
I welcome the Minister’s response. Might she please commit today to a date by which the Home Office at least aims for all migrant hotels to be closed, as per her party’s manifesto commitments? I also welcome what she had to say about bringing down costs. She is right to say that the best way to minimise the Home Office’s bill for asylum accommodation is to process applications as quickly as possible. Where asylum applications are approved, though, most of those costs transfer to the welfare system, so I would be interested to hear her response on who in Government is currently responsible for tracking and understanding that cost.
Dame Angela Eagle
We inherited a system that was very siloed, where work was not really cross-departmental at all. One example that occurs to me is that the system dealing with all the legacy applications, which the previous Government embarked on dealing with at first-tier tribunal in 2023 and then boasted about having achieved. However, that was only the initial decision in the system; if it was granted, I suppose people felt lucky, but those who were not granted appealed the decision. While the Home Office, under the previous Government, congratulated itself publicly on dealing with that legacy system, many people were actually still in the system.
One important thing we have done since coming into government has been to begin working cross-departmentally to develop metrics on how to deal with an end-to-end system. We are not there yet, and we understand that costs can sometimes be transferred to other areas; that is why I am working closely with the Local Government Association, the Ministry of Housing, Communities and Local Government and the MOJ to try to get the system working more effectively end to end.
I cannot give the hon. Member for Weald of Kent a date on when hotels will close, but I can say that we are doing our best. Given the huge cost and the fact that the contracts for providing them that we inherited from the Conservative party are so expensive, it will certainly be in the interests of saving a lot of money to close them as soon as we can, and we certainly aim to do so.
Katie Lam
Again, rightly and reasonably, the Minister talks about lowering costs, but might she say a few words about fairness and the principle that this new clause seeks to speak to: should those who have lived in that accommodation, who have benefited from that provision by the state, ultimately pay it back, if they can afford to?
Dame Angela Eagle
The hon. Lady will have noticed that I have not dismissed the idea completely, but I do not think the idea is anywhere near a position where one could talk about how it might be practicable, and certainly it is not at a stage where one could consider putting it into primary legislation.
Matt Vickers
State support is not a right and, if a person is able later to contribute by paying some of it back, we believe it is right for them to do so. We wish to press the new clause to a Division.
Question put, That the clause be read a Second time.
Matt Vickers
I beg to move, That the clause be read a Second time.
New clause 38 would require the Government to make changes to arrangements for leave outside the immigration rules. It would require the Secretary of State, within three months of the passing of this Act, to consult on reforms to arrangements for leave outside the immigration rules. The consultation must consider how best to ensure that leave outside the rules is granted only in the most exceptional circumstances, in which a reasonable person would consider it unacceptable to refuse entry to the United Kingdom. Within 18 months of the passing of this Act, the Secretary of State must, by regulations, make changes to the immigration rules to implement the required reforms to leave outside the rules.
We have tabled this new clause because we are concerned about the Government’s response to the recent decision in the upper tribunal to allow a family from Gaza to obtain permission to come to this country using the Ukraine family scheme. The appellants were Palestinians who, at the time of the decision under challenge, were residing in al-Mawasi, the humanitarian zone of Gaza.
The first and second appellants were husband and wife, and had lived in Gaza since 1994. They were the parents of the remaining four appellants, who at the time of the decision were 18, 17, eight and seven years of age. The sponsor for the application was the first appellant’s brother, who had moved to the United Kingdom in 2007 and is now a British citizen.
The first-tier tribunal declined the application and the decision was appealed. The main issues to be decided by the first-tier tribunal were whether there was family life under article 8(1) between the appellants and the sponsor in the UK, whether the respondent’s decision interfered with any family life and/or any private life enjoyed by the sponsor, and whether any such interference was disproportionate.
The upper tribunal did not agree with the Home Office’s argument that the first-tier tribunal judge had erred in finding that there was family life between the appellants and sponsor. It found that there was family life and that the Home Office decision not to allow the family leave outside the rules was a disproportionate interference with the family life of the appellants and the sponsor.
When the Leader of the Opposition challenged the Prime Minister about this particular case at Prime Minister’s questions, he responded that he did not agree with the decision of the upper tribunal, and said that the Government were
“looking at the legal loophole that we need to close in this particular case.” —[Official Report, 12 February 2025; Vol. 762, c. 249.]
The new clause makes a suggestion about what that “legal loophole” might be, but it is extremely important that the Minister is able to answer the following questions. Did the Home Office decide not to appeal the upper tribunal decision? If so, why? What is the legal loophole that the Prime Minister said the Home Secretary was closing? Can the Minister be extremely precise about that, please? Can she explain when the House will be updated on this issue? Finally, if there is a legal loophole to close, why is that not being done through this Bill?
Seema Malhotra
I find this a very interesting debate and an important one in a number of respects. New clause 38 would require a consultation on the Government’s approach to the exercise of discretion to grant leave outside the rules in what any reasonable person would consider to be the most exceptional circumstances to warrant such a grant, with a requirement for a change to the rules to follow, to regulate on the basis of what discretion may have been exercised.
The rules set out the main purposes for which a person may enter or stay in the UK, and the requirements to be met for them to be granted permission to do so. Exceptional circumstances are already considered. The rules are intended to apply, and be applied, in most circumstances to ensure transparency and fairness between individuals, but the existing policy approach recognises that there are some circumstances that they simply cannot cater for, and it is in the most exceptional circumstances that consideration is given to leave outside the rules under the Immigration Act 1971.
A period of leave outside the rules would usually be granted for a short, one-off period of permission to stay, suitable to accommodate or overcome the exceptional circumstance, if compassionate or compelling grounds are raised in the individual case. A person may request an exercise of discretion. Factors considered may be related to, for example, emergencies, unexpected events, a crisis, a disaster, an accident that could not have been anticipated, or a personal tragedy. The Government will continue to consider where and when there is need to exercise discretion outside the rules. By its very nature, that is considered only in the most exceptional of circumstances.
It is probably not appropriate for me to go into the case that the hon. Member for Stockton West raised, beyond what has been said in the House. He asked some very specific questions, and I am happy to come back to him with what I can in writing. It is important to say that this is not the correct legislation for a debate about the requirements for discretion to grant leave outside the immigration rules, nor is it the correct place to define the parts of immigration policy on which the Government should consult.
Matt Vickers
On that case and on the loophole, which Minister does not think is relevant to this legislation, what does she identify that loophole as, and why does she not feel that that broader issue is relevant in considering this Bill?
Seema Malhotra
The shadow Minister understands extremely well that the Bill is about ensuring we stop the criminal gangs and that it introduces new powers to do so. On other new clauses that he tabled, I have given the same response in relation to aspects of the immigration rules. This is not the correct legislation to define parts of immigration policy or to try to determine what the Government should consult on.
As I said, the Government continue to consider where and when there is a need to exercise discretion outside the rules. By its very nature, that is considered in only very exceptional circumstances. I have shared what some of those factors might be: unexpected events, a crisis, an accident that could not have been anticipated, or a personal tragedy. I am sure he understands those matters, considering that he has served in office.
Matt Vickers
This is a valuable and important debate because many people felt strongly about this issue. The decision in that case flew in the face of the values of the Ukraine scheme. It could undermine commitments to future such schemes, so it is of great consequence.
Seema Malhotra
I thank the shadow Minister for her comments. I am not disputing that there can be a debate on them. What I am saying is that the Bill has a clear and defined purpose, and it would not be appropriate to extend it to be more than what it is designed to be when there are other mechanisms by which immigration rules are debated in the House.
Seema Malhotra
I thank the shadow Minister for asking what the Bill is about, but we are just at the end of scrutiny of it, so I am sure she is aware that it is about increasing powers, in particular, to be able to better tackle the criminal gangs that are undermining our border security and putting lives at risk. We are making sure that we have bodies such as the Border Security Command on a statutory footing. We have had many other debates in the House about this.
Matt Vickers
Often with amendments we want to bring things out into the light. One thing I have not quite heard is what the Government are doing in the light of the issues with the Ukraine scheme, in particular to prevent what happened in the case I mentioned from happening again. We have this big borders Bill coming through, which will hopefully be the answer to the world’s problems and improve the situation, but are the Government doing anything about the misapplication of the Ukraine scheme to ensure that the case I mentioned will not happen again?
Seema Malhotra
The hon. Gentleman is right, and the Prime Minister laid out the view that it was the wrong decision. We do need to find a way to tighten up how Parliament understands the rules and how they are interpreted, but as I say, that scheme is not a matter for this Bill. We are at the very end of debating the Bill and now I am being asked what it is for. I am sure that the shadow Ministers do not want to go all the way through the line-by-line debate again. Suffice it to say that the matters they are seeking to extend the legislation to cover stray into broader aspects of immigration that in our view are not appropriate for inclusion in this Bill. There are other mechanisms for us to seek to debate and change immigration rules.
Katie Lam
I thank the Minister for responding to me earlier. The Opposition’s view is that the various ways by which people come here illegally and stay is fundamentally important to smashing the gangs, and that leave outside the rules and the ways it may be abused are a big part of that. That seems to us to be part of the fundamental point that we are discussing. Will the Minister comment on that?
Seema Malhotra
The hon. Lady is right. I have raised a number of times during the debate we have had the ways in which we see routes abused; indeed, the way that routes have been designed has left them open to more abuse. We are now reaping the results of that, in terms of some of the measures and the tightening up that we are doing. She will be aware that we have raised this as a matter that it is important for us to bring under greater control as part of an immigration system that is fit for the future and more controlled, more managed and fairer, and the aspects that we believe can and should be considered for a future immigration system will be the subject of the immigration White Paper. I look forward to debating that with her.
Question put, That the clause be read a Second time.
Katie Lam
Throughout our long history, Britain has been an unusually compassionate place. From time to time, people have come to this country to seek sanctuary from tyranny and authoritarianism elsewhere in the world. My county of Kent became home to many of the Huguenots who fled religious persecution in France in the 16th century. Indeed, Canterbury cathedral still hosts a French-language service every Sunday, in honour of those who came to this country in search of tolerance and religious freedom.
My grandmother came to Britain in 1937 at the age of 13, as a refugee from Germany. Her grandfather was a state senator and a fierce critic of the Nazis. When Hitler came to power, the whole family were stripped of their citizenship and several were arrested. After years imprisoned and various daring prison escapes, the family first made it over the border to Czechoslovakia, where they set up a resistance radio station broadcasting back into Germany. One night, that was raided by the SS and one of the operators was shot dead. They then fled to England and to freedom.
We should be proud of our history. There are so many Brits like me who would not be here and would never have been born without the past generosity of this great country. But as I said earlier, we must also be realistic about the very many ways in which our system can be exploited by the cynical and the sinister. There are, of course, people who come to these shores legitimately seeking asylum, but we must also be honest about the fact that not everyone who comes to this country and applies for asylum has a legitimate case for doing so. We can see that evidenced in the fact that not all claims are approved.
Too often, asylum is used as an immigration route for those who otherwise would not be able to come here. Our compassion is therefore exploited by those who are in no real danger at all, a sad truth made clear by the fact that many would-be asylum seekers regularly return home without issue. The bar to claiming asylum should rightly be high. People should be in serious danger in their home country to qualify. Government Members are right to say that the new clause might cause difficult and, in some instances, heartrending situations, but that in and of itself does not make it the wrong thing to do.
Last December, as I mentioned earlier when discussing our human rights legislation, a Turkish heroin dealer was allowed to stay in the UK after first seeking asylum here in 1988. Despite claiming that he would be persecuted in his home country, the man had returned to Turkey at least eight times since arriving in Britain. On one of those trips, he even got married to a woman with whom he had been having an affair, despite already being married with children in the UK. Nevertheless, he escaped deportation, as it was ruled that deporting him would interfere with his right to a family life. That kind of scenario is clearly wrong and contributes to the persistent feeling that so many ordinary British people have that our asylum system is broken and unfair.
Dame Angela Eagle
New clause 41 would require the revocation of protection status or leave, or discontinuation of asylum claims, where an applicant returns to their country of origin. The Government are in absolute agreement on the principle behind the new clause. Although we are committed to providing protection to those who genuinely need it for as long as it is needed, in accordance with our obligations under the refugee convention and the European convention on human rights, such protection status must be granted only when it is required. As such, I want to reassure Opposition Members that, under our existing policy, where an individual returns to their country of origin, we consider whether they have re-availed themselves of the protection of that country. Where that is the case, we seek to revoke their protection status under the appropriate provision set out in the immigration rules.
We are also clear that asylum claims may be discontinued and withdrawn where the applicant fails to comply with the asylum process, which includes leaving the UK before a decision is made on their claim. I hope Opposition Members are therefore assured that the immigration rules enable protection status to be revoked already and applications to be discontinued where an applicant has returned to their country of origin. As such, new clause 41 is not required.
Matt Vickers
We wish to press the new clause to a Division.
Question put, That the clause be read a Second time.
Katie Lam
I beg to move, That the clause be read a Second time.
This is a probing amendment tabled by the Father of the House, my right hon. Friend the Member for Gainsborough (Sir Edward Leigh), to tease out what he feels are important issues to discuss in the context of the Bill. I would like to make it very clear that the Opposition are neither supporting nor opposing this new clause. Ideally, my hon. Friend the Member for South Northamptonshire would have spoken to this new clause, but she has Parliament-related business elsewhere today, so I am standing in.
The background to the new clause is that various international treaties impose, or have been interpreted as imposing, an obligation on states not to send people back to a country where they would face harm. This is known as non-refoulement. However, not all non-refoulement obligations are the same, and there are important differences. The new clause seeks to tease out the differences between the ECHR on the one hand, and the refugee convention and torture convention on the other. One key difference is whether there are any exceptions to the principle of non-refoulement, which is to say: are there any circumstances in which someone can be sent back to a country where they would face a real risk of relevant harm?
Under the refugee convention, the obligation not to refoul is not absolute; it is subject broadly to two exceptions. The first of those is the article 1F exclusion from protection of the refugee convention. That exclusion applies to those who have committed war crimes, crimes against humanity, serious non-political crimes abroad and acts contrary to the purposes of the United Nations. The second exception is provided for in article 33(2), which concerns those who pose serious risk to the security of the host country and those who have been convicted of particularly serious crimes, and therefore pose a danger to the community of the host country.
As the UNHCR said in respect of article 1F exclusions, the rationale is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. The Court of Justice of the European Union has said that its purpose is to maintain the credibility of the protection system, and as Professors Hathaway and Foster have noted, the realpolitik reason was that the drafters of the refugee convention were persuaded that if states parties were expected to admit serious criminals as refugees, they would simply not be willing to be bound by the convention.
The same is presumably true of the article 33(2) exceptions. It would be surprising if states would have been willing to sign up to a duty not to refoul if there were not that exception for those who were a threat to their countries. In 1987, the UN convention against torture came into force. It now has 173 states parties. Article 3 of the torture convention provided for an absolute non-refoulement rule in cases of torture.
Although the convention also dealt with cruel, inhumane and degrading treatments, states were careful to limit the absolute non-refoulement rule to torture. The result is that even if an individual falls in the scope of article 1F or article 33(2) of the refugee convention but would face a real danger of torture, they cannot be removed. It was felt by states that torture was such an absolute evil that the credibility of the international protection system would be undermined by preventing the removal of such individuals if they faced torture.
While the refugee convention and the torture convention both explicitly addressed non-refoulement, the ECHR did not. It prohibits states from engaging in torture or cruel, inhumane and degrading treatment, but it says nothing about refoulement. That is not surprising, as the ECHR was drafted at the same time as the refugee convention, and arguably it was felt that those issues were best addressed by the refugee convention. None the less, in the late 1980s, the Strasbourg court interpreted article 3 as prohibiting refoulement. It did so not just for torture, but for all forms of treatment contrary to article 3, and it held that the rule was absolute. As the court put it:
“The conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.”
The consequence is that the protection afforded by article 3 is broader than that provided for in articles 32 and 33 of the 1951 United Nations convention relating to the status of refugees. That interpretation by the Strasbourg court completely negated the careful balance struck by the international community with the refugee convention and torture convention.
The new clause posits that that interpretation threatens the legitimacy of international human rights law and that the conclusion by Strasbourg is the means by which that happens. The KM case provides a good illustration. KM was a police officer in the Democratic Republic of Congo. He entered the UK illegally in 2012 and applied for asylum. His application was refused by the Home Secretary on the grounds that he had been involved in torture. The upper tribunal upheld that finding and held that he should be excluded from protection under article 1F of the refugee convention. However, because of article 3 of the ECHR, as interpreted by the Strasbourg court, he could not be removed.
There are many more cases of serious criminals and terrorists—people who are a threat to those who live in the UK—who could be deported under article 33(2) of the refugee convention but cannot due to article 3 of the ECHR. In Saadi v. Italy, two Strasbourg judges wrote that they would not be surprised if some citizens of Europe
“find it difficult to understand that the Court by emphasising the absolute nature of Article 3 seems to afford more protection to the non-national applicant who has been found guilty of terrorist-related crimes than to the protection of the community as a whole from terrorist violence.”
Indeed, the Father of the House, were he here, would say that he suspects that the vast majority of Britons and Europeans would be baffled by that conclusion. That is also precisely the reason why the drafters of the refugee convention saw fit to include exceptions for criminals and terrorists: they knew that with rights come responsibilities, and that those who act in this way completely violate the social contract and cannot properly claim its protection. The interpretation that Strasbourg has given has, in the view of the Father of the House—at least, he would like us to debate this—weakened the legitimacy of the international humanitarian protection system.
The new clause, tabled by the Father of the House, seeks to find a solution to the problem—one that he says will restore common sense. The first step of the new clause would put a duty on the Secretary of State through careful litigation before our courts to identify cases of individuals who could be deported under the refugee convention and torture convention but would be blocked under the ECHR. He sees cases such as KM, which I discussed, as exemplars of that. The new clause would disapply the duty on the Secretary of State to comply with the Human Rights Act in such cases. That is to ensure that the Secretary of State can proceed to deport such people, and if they want to challenge their deportation, their recourse will be to bring a case to Strasbourg.
I know that the Father of the House would be comfortable with putting a duty on Ministers to still deport such individuals even the face of a Strasbourg judgment or rule 39, but he knows that the firm commitment that the Government have to international law mean that they will refuse to do so—although he also said that we should ask why they would privilege the ECHR over the refugee convention. Instead, the new clause would allow the Government to comply with Strasbourg, while requiring them to argue with Strasbourg that it is wrong to interpret article 3 in a way that negates the provisions of articles 1F and 33(2) of the refugee convention.
Were Strasbourg to apply the principle of lex specialis properly, it should conclude that it cannot be unlawful for states to rely on articles 1F and 33(2) of the refugee convention in order to deport criminals. The Father of the House would be interested to hear from the Minister whether the Government would be interested in running such an argument before the Strasbourg court. Even were we to lose in such efforts to be reasonable, he feels that the new clause would allow the Government still to decide to comply with the flawed jurisprudence from the Strasbourg court; however, it would require that, were they to do so, they must be transparent with the British public and publish a report telling us who the criminals are whom we could have deported under the refugee convention, had the Strasbourg court’s flawed interpretation of the ECHR not prevented us from so doing.
I will not press the new clause to a vote, and I repeat that I did not table it, but I look forward to hearing what the Minister has to say.
Dame Angela Eagle
I compliment the Father of the House on his ingenious approach to the slightly different signals, as the hon. Lady set out, that the international conventions, with their judge-made law, have left us with over the years. The new clause would create a duty to remove people who are not protected by the refugee convention, irrespective of our obligations under the Human Rights Act and the European convention on human rights as it has developed. The hon. Lady set out that issue extremely well.
We will always seek to deport or remove foreign nationals who pose a threat to the UK or whose behaviour is such that they are not entitled to international protection. Where the UK’s obligations under the European convention on human rights prevent us from doing that, we will consider granting restricted leave, sending a clear message that the person is not welcome in the UK and will be removed as soon as possible. As the hon. Lady will remember, we amended the Bill to allow us to closely monitor people who pose a threat to the public but cannot be deported because of our obligations under domestic and international law. She will remember that that involves such things as curfews, and inclusion and exclusion zones.
The Government are clear: Britain will unequivocally remain a member of the ECHR, and work with international partners to uphold human rights and international law. Leaving would undermine protections for UK citizens and isolate Britain from its closest allies. The new clause would provide a mechanism to disregard a ruling of a court or tribunal that removal from the UK will breach a migrant’s human rights. That would place the UK in direct conflict with the European Court of Human Rights. The law does not permit us to operate with one foot in and one foot out; we are either in, as signatories to the ECHR, or we join Russia and Belarus as countries that do not accept its jurisdiction.
The law does not permit us to operate in that way; nor can it be said that the ECHR takes precedence over the refugee convention. They are distinct treaties of international law that deal with different issues. The new clause would therefore create a situation that would be wholly unworkable. I know that the Father of the House will look at this in due course. He has had a good go. We do not think that the proposal is workable. I therefore hope that it will not be pressed to a vote.
Dame Angela Eagle
It is at this occasion, traditionally, that those who have shouldered the burdens under your expert guidance of the Committee, Dr Murrison, thank all the officials—both the House officials and my own—for their sterling work.
I thank all members of the Committee for their contributions, all of which have come from positions of principle and concern. We have had some robust debates during our time in Committee; we have even had a bit of fashion commentary. I think we will all be pleased to get out of Committee today, because the room is getting colder as the week goes on—goodness knows where we would be if we had to come back on Thursday to finish our deliberations. I hope that members of the Committee have enjoyed scrutinising the Bill and having these debates as much as I have.
Bill, as amended, accordingly to be reported.