Border Security, Asylum and Immigration Bill

Committee stage
Monday 13th October 2025 Lords Chamber

Committee (6th Day) (Continued)

20:54

Debate on Amendment 184 resumed.

[Lord Garnier (Con)]

My Lords, I will continue where other noble Lords left off. In particular, I commend the words of the noble Lord, Lord Faulks, who gave a very perceptive analysis of the problems that the noble Baroness’s amendment revealed. As he said, the amendment is legally coherent, and I also note that it is well motivated.

I add only this. We have adhered to the convention since 1951 or thereabouts, and it has not been domesticated into our law, as the European Convention on Human Rights has been, through the Human Rights Act 1998. I recall, when I was on the Opposition Front Bench in the other place, when discussing the Human Rights Bill, as it then was, and the then Government’s proposals to domesticate that convention into our jurisdiction, that one of the points I made was that one could be entirely in favour of our membership of the European convention—and I remain in favour of it—without necessarily supporting bringing it within the British domestic legal system.

I say in relation to the 1951 convention that one could be entirely in favour of our remaining a member of it without introducing the problems that are caused when these international treaties become part of domestic law. I said in 1998 that by bringing the European convention into our law and permitting British courts to adjudicate on cases which had to do with disputes under the convention would introduce a dangerous political element into the deliberations of our courts. I do not think I was wrong to say that. The last 25 or 30 years or so have demonstrated that a number of highly political cases have found their way through the courts, both at the lower court level, but also right the way up to the Supreme Court. Whether that has been to the advantage of the litigants or to the development of justice policy and to the development of the law in this country is a matter of debate, but it has created inconveniences, and it has created clashes between Parliament and the courts, and that is not to be wished for.

I gently urge the noble Baroness, when she comes to consider the good sense of her amendment and whether to push it, that she might find it better to leave things as they are. We have adhered faithfully, I think it is fair to say, to the 1951 convention since we ratified it, and there have been immigration and asylum statutes passed by Governments of both parties—the Labour Party and the Conservative Party—since, which have not, in my view, been unfaithful to the convention, either in its spirit or its implementation. I leave it there. I urge her to think carefully about what the noble Lord, Lord Faulks, and others have said, and perhaps to allow the convention to exist as a convention and to allow Parliament, this Government and any future Government to make up its or their own mind about the way in which it should be implemented on the local stage.

21:00

[Lord Murray of Blidworth (Con)]

My Lords, this is an interesting group with two distinct parts. I must confess that I am not immediately drawn to Amendments 184 and 185 in the name of the noble Baroness, Lady Chakrabarti. They would, in effect, incorporate the refugee convention into the domestic law of the UK, as identified by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. I therefore cannot accept that, given the unhappy experience that we have had of the Human Rights Act and the unpredictable effect of incorporating an international convention into domestic law. I am not tempted to repeat that mistake. I therefore support the Government in their sensible and inevitable rejection of the amendments that the noble Baroness proposes.

I shall not be drawn into a broader conversation about the suitability of the refugee convention, as the noble Lord, Lord Faulks, and the noble Baroness, Lady Fox of Buckley, were. It is clearly an interesting and important debate, which builds on comments made by the noble Lord, Lord Macdonald, about whether, in principle, a well-founded fear of persecution is the correct test for the grant of asylum. These are important and justifiable discussions, but a debate on these amendments in Committee is not the place to have them.

All this takes me to the wording of my Amendment 203I. I invite Members of the Committee who have a copy of the amendment just to look at it for a moment. This amendment emulates the one laid by the noble Baroness in seeking to revise the provisions of earlier statutes. It would amend Section 31 of the Immigration and Asylum Act 1999 by inserting a new subsection (2). This would provide:

“For the purposes of subsection (1) a person is not to be taken to have come directly to the United Kingdom from a country in which their life or freedom were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life or freedom were not so threatened”.


That provision accurately reflects the provisions of Article 31 of the refugee convention.

It is clear that, in 1951, the state parties were of the view that, for an appropriate claim for asylum to be made, it must be made by someone who had come directly from an area where their life or freedom were threatened. The stretching of the term “come directly” to include spending a number of years in another safe country where they could have claimed asylum is a matter of domestic law, which this Parliament is able to revisit. It ties in with my Amendment 203J, which the Committee will recall we debated on 3 September. It is clear that one option open to the Government in creating a disincentive effect is to go back to the original intended wording of the refugee convention.

Amendment 203I is a stand-alone provision because it protects the rights of the United Kingdom as a state party to the convention. It is intended to avoid the deeply regrettable state of our domestic law in respect of this provision of the refugee convention, which has gone far beyond what our international obligations actually are. If noble Lords are worried, as some may be, about our possible repudiation of the refugee convention by some future Government and/or a sizable fraction of the public, they should support measures that reinforce and restate the United Kingdom’s rights as a state party under the refugee convention, and they should align domestic law with the international law.

As Professor Ekins, professor of constitutional law at Oxford, made clear in his 2019 article in the book The Political Philosophy of Refuge, case law has rendered the right afforded to a nation, as stated in Article 31, effectively nugatory. This undercuts self-government and warrants condemnation, I submit, from this Parliament. But its consequences are broader than that, in that, as a consequence, it encourages hundreds of thousands of refugees to become economic migrants, leading to the deaths of potentially thousands at sea; the vast extension of the people trafficking industry, with all the horrors that that entails; and the exposure of European peoples, especially in Greece and Italy, to an ongoing stream of new arrivals, few of whom will ever return home.

The state’s right to exclude asylum seekers and some refugees is an important power that protects the common good of the political community. It preserves the distinction between citizen and non-citizen, on which decent social life and effective self-government depends. The commitments that the states undertook in 1951 in the convention were carefully framed to require refugees to be treated well but not to expose states to an open-ended liability to accept persons fleeing persecution or war, let alone poverty. This amendment restores the meaning—the correct meaning on any reading—of Article 31 of the refugee convention. I commend it to the Committee and the Government.

[Baroness Ludford (LD)]

My Lords, I apologise for not being here right at the beginning. I hope no one will object if I none the less intervene, as I was here for the previous discussion. I think I understand the motivation behind Amendment 184, in the name of the noble Baroness, Lady Chakrabarti. It would not perhaps be regarded by her as necessary if it were not for the nibbling away at the refugee convention in recent years.

I must confess that I am not attracted by the solution of the noble Lord, Lord Faulks, which is to say that we will have a complete disconnect between being a party to the refugee convention—sort of parking it over there—and saying that in domestic law we can do whatever we like. Sorry, I do not wish to parody what he said, but he was basically saying that we will do our own thing in domestic law and Parliament will decide what we want to implement. I am not sure that that really honours being a party to the refugee convention.

I am not quite sure whether my legal analysis matches that of other contributors to this debate but, as I read it, the amendment of the noble Baroness, Lady Chakrabarti, does not seek incorporation in the way that the ECHR was incorporated through the Human Rights Act. It is a bit stronger than the assimilation that we have had, such as in the Conservatives’ 1993 immigration appeals Act, which absorbed some of the definitions and wording of the refugee convention. Perhaps some kind of rather British compromise is going on.

What has happened in recent years is that there has been an attempt to ignore aspects of the refugee convention. I am sure the noble Lord, Lord Murray, is more expert on the refugee convention than I am, but I cannot really follow his assertion that his Amendment 203I would restore the correct reading or interpretation of Article 31. I do not know where he gets that from. Article 31 is worded as it is; it says anyone “coming directly”. It does not incorporate any kind of wording like that in his amendment. It just says someone “coming directly”; it does not say that they have not come directly if they have passed through or stopped in another country. I have a vague recollection that there is case law that says if someone passes through rather quickly—there are probably other qualifications, but with no intention to stay and not staying several years somewhere—then that would be ignored. That would be de minimis and it could still be concluded that they had come “directly” to the UK. I do not think the definition of “directly” has to be absolutist. No doubt the noble Lord will correct me, but I do not understand where this assertion that he is restoring the correct interpretation of the refugee convention comes from.

Rather like with the ECHR, if there is a belief that the convention itself is wrongly worded or not fit for purpose—I do not agree with that interpretation of either the ECHR or the refugee convention—then we should attempt to get an assembly of the state parties to change it. Obviously, there are some people who want to pull out of the ECHR, which is something that I vehemently disagree with, but even going short of that and saying, “We can stay a member but we’ll just make sure that we subvert and undermine it”, seems disingenuous and even dishonest. Be up front: if you want to try to change the refugee convention or the European Convention on Human Rights then try to get all the parties together and attempt to do so, but trying to pretend that we belong but do not really want to implement the provisions seems the worst of all worlds.

For instance, it is true that Article 31 of the refugee convention refers to “illegal entry or presence” but that has morphed, in current terminology, into describing people as illegal—“illegal immigrants”, a term that I will never accept. People cannot be illegal. I prefer the term irregular entry, because if someone arrives, applies for asylum and is granted it, having been described as illegal seems an unfortunate beginning. I am stuck with the fact that the refugee convention uses that term, but it does not refer to the persons themselves as illegal, which is what has happened in modern political and media commentary, which I deplore, frankly. That is just an example. I would prefer the refugee convention to be changed to say “irregular entry and presence”, until it is illegal presence. Once they have been refused asylum and they need to leave, they then have a different status. Anyway, I digress slightly.

21:15

The noble Baroness, Lady Chakrabarti, has good intentions with Amendment 184. I can see that it is probably not going to gain a lot of traction with the Minister, but I think that she has been pushed towards this position because there is such undermining of our commitment to the refugee convention. Speaking personally—I do not know whether my Front Bench colleague, my noble friend Lord German, agrees with me because I am afraid I have not checked with him—I see considerable merit in the wording of Amendment 185 because it seems to me that it should be a broad defence to prosecution that someone comes under the terms of Article 31(1) of the refugee convention, yet what we have at the moment is a patchwork, and the noble Baroness well described it. Someone who comes with forged papers is treated in one way, and someone who comes with no papers is treated in a completely different way, and that seems to me to be an unsustainable position. I think a clean assertion without all these caveats and exceptions has considerable merit, but, again, I fear that the Minister might not be persuaded. I have a lot of time for the motivation and some of the wording of what the noble Baroness, Lady Chakrabarti, is trying to do. I think she would not have to mount this effort if it were not for the assaults that are taking place on the refugee convention.

[Lord Harper (Con)]

My Lords, I am perhaps not as warm towards this amendment as the noble Baroness, Lady Ludford, just was. It seems to me that it does give away its intention in the title,

“Primacy of the Refugee Convention”,


which fundamentally is an assault on whether we think Parliament has primacy in our view. Of course I will give way, although I have not got very far in my argument.

[Baroness Chakrabarti (Lab)]

As a point of information, does the noble Lord realise that the title,

“Primacy of the Refugee Convention”


is directly adopted from the Conservative’s Asylum and Immigration Appeals Act 1993, as brought forward by the noble Lord, Lord Clarke of Nottingham, and implemented by the noble Lord, Lord Howard of Lympne?

[Lord Harper (Con)]

I was not aware of that, but I am not sure it changes my argument. As we have just discovered by listening to the debates about Article 31 of the convention, part of the issue here is that the interpretation of the words is contested, as we heard from the points my noble friend Lord Murray set out when he talked about restoring what he feels is the original definition—indeed, that has already been done in the Nationality and Borders Act, which I think has about half-a-dozen interpretation sections interpreting parts of the convention—and from what the noble Baroness said when she disagreed that that was the original intention.

The whole point is that, if there are disputes about what the convention means, somebody has to decide what it means. It can be either be courts and judges or Parliament setting out what we think we have signed up to and being clear about that, and Parliament has done so in a number of cases. If you put this amendment into statute, it would effectively say that judges could assert that what Parliament said was not the interpretation of the convention and a judge would decide what to do.

The noble Baroness, Lady Chakrabarti, said that she has been careful to word this amendment so that the court could not strike down primary legislation. If I may say so, I do not think that is a terribly good safeguard, because an enormous amount of our immigration legislation is not primary legislation but secondary legislation. All the Immigration Rules are secondary legislation made by Ministers using primary legislative powers, so unless there is something explicitly in the primary legislation which gives Ministers powers to make Immigration Rules that specifically forbids a court being able to do this, if this amendment were carried, a court could strike down our Immigration Rules.

That would in effect mean judges, not Ministers, making the decision. Of course those Immigration Rules are not just made by Ministers; Ministers draft them, but they are put before both Houses of Parliament and approved by Parliament. In the end, my contention is that, if you want to have an immigration system that carries the support of the public, decisions have to be made by people who are accountable to the public.

The noble Baroness, Lady Ludford, talked about the convention being chipped away. Part of the issue is that a large number of members of the public do not think that it works for them. They think that people can come to this country as economic migrants, put their hands up and say that they are asylum seekers, and that that somehow gives them a free pass.

When I was Immigration Minister, I argued that we should have a tough system that lets people with a good claim stay but is clear that, where people do not have a good claim, we will kick them out. All that the charities that end up supporting them do is damage the public’s support for our asylum system. If people think that this is a way of getting around the system for economic migrants who get here, and that courts interpret the legislation in a way that is not intended by Ministers who are accountable to Parliament, it damages public support for the very principle that the noble Baroness is setting out; that is incredibly damaging.

[Baroness Chakrabarti (Lab)]

I thank the noble Lord for giving way a second time. My point is on not the big stuff around public opinion but the specific question of the danger of courts striking down the Immigration Rules. Does the noble Lord realise that the 1993 Act, which he said a moment ago does not really matter, is still in force; and that the provision I cited already prohibits the Immigration Rules breaching the refugee convention?

[Lord Harper (Con)]

Parts of the Act are still in force, obviously, but, if what the noble Baroness says were true, there would be no need to have her amendment. The fact is that, if you say that the courts can decide that the convention—as they interpret it—can override legislation, that is damaging. The world is a very different place now from what it was in 1951 when the convention was adopted. You have to reflect that by democratically accountable Ministers and legislators making decisions about how we interpret it in the modern era; that is how you strengthen the principles underpinning it, but in a way that works in the modern world. If you do not do that, you will just have more people thinking that the whole thing is nonsense and that we should pull out of it. Actually, I do not think that we should pull out of it—it needs work and it needs to be amended, but we also need to interpret it correctly. My noble friend Lord Murray’s amendment, which sets out a definition that is relevant in the modern world around people who pass through a number of safe countries then choose to come to the UK, is sensible; it would, I think, have the support of a large number of people in the United Kingdom.

In the end, the decision on whether that is the correct interpretation of the convention should, in my humble opinion, be taken by Ministers and by Parliament. It should not be taken by judges being able to insert their interpretation of the 1951 convention, as it was drafted for a very different world, and how they think it should be interpreted now. That would be a retrograde step and would not do what the noble Baronesses, Lady Chakrabarti and Lady Ludford, are trying to do. I think that they are frustrated that the public do not support the provisions of the convention and they are being chipped away at, but what the noble Baroness is proposing, supported by the noble Baroness opposite, would actually make things worse, not better. If the public think that the asylum system is not under any democratic control and that decisions are taken by courts, not accountable people, the system will become less supported by the public—not more—and the whole thing will unravel. If you believe in an asylum system, which I do, and you want to strengthen it, you have to allow democratic institutions to reflect the world in which we now live, not the world in which the convention was drafted. If you do that and make it a convention that is able to be interpreted in the modern world, you strengthen it and make it more likely to succeed than doing the opposite.

For those reasons, it would strike at the primacy of Parliament to put this into law, but it would also do something that I think, fundamentally, both noble Baronesses would not support: it would weaken public support for the asylum system, which, in the end, they will come to regret.

[Baroness Ludford (LD)]

Before the noble Lord sits down, I think that he is misrepresenting me, but I will not linger too long over that. I have absolutely nothing at all against, for instance, this Government wanting to go to Strasbourg to seek to change the wording of Article 8 of the European Convention on Human Rights —good luck with that—but it is also open to them to analyse, as I think they are doing, whether Article 8 on the importance of family considerations is being wrongly interpreted or implemented in British tribunals and courts. They are then completely able—I do not oppose this being done—to issue guidance to the court on the analysis, interpretation and application of Article 8. I am sure that there are similar articles of the convention where that could be done.

What I think the noble Lord, Lord Murray, is doing in his amendment is rewriting the refugee convention, which is a different matter. I am not up for rewriting things, but I am perfectly prepared to see guidance issued to the courts if they are overly generous or wrong in their interpretation. I certainly want precision and integrity in the law; if the noble Lord is trying to imply that I do not, I reject that.

[Lord Harper (Con)]

I had sat down but, given that the noble Baroness intervened on me, I will make a brief response since we have gone over the time—although that was largely to do with her rather than me.

I was not saying that the noble Baroness was in favour of imprecision; I was saying that it is about who decides what things mean. I think that Parliament should decide what they mean. It can keep the convention updated with the modern world, rather than courts doing that in a way that is not compatible with the views of the public. That is all I am saying; it would fundamentally strengthen the convention that we have signed up to and is likely to keep it in force for longer, with the support of the public. That is the thrust of my argument. I am content to leave it there.

[Lord German (LD)]

Let me go briefly through my quick summing up of what I have heard.

It seems that there are those who wish to leave things as they are; those who wish to have a more relaxed regime in terms of getting further from the convention; and those, such as the noble Baroness, Lady Chakrabarti, who want to lock them together. We have just heard those three different positions but I have never heard, except from my noble friend Lady Ludford behind me, the view that what you can do is to seek to change, alter or amend while seeking definitions of “internationally”. After all, this is an international document that we signed up to. If we believe that we are on our own in this world and that there is nobody else who will support us in making any changes, then, surely to goodness, we are not going to be stuck in saying that everybody else is out of step except us. That is not an argument I can accept.

The crucial issue here is how we make the best use of the convention and of our laws with it together. Whether or not we change from the position where we are now to a more fundamental change, in wrapping the two together, is an issue that requires a lot of debate and discussion—and by wise heads who are in this area—but it seems that what we have is a suspicion, which I can hear from those on my right, that we need to slacken our application of the refugee convention. In the sense that we have not tried to seek accommodation with others who might feel the same way, that strikes me as an incorrect way of dealing with something that has been integral to our law and integral to the way in which we operate for such a long time.

21:30

[Baroness Lawlor (Con)]

My Lords, I am sorry not to get in before the noble Lord, and I am grateful for the tolerance of the House. I will be as brief as I can. I support Amendment 203I in the name of my noble friend Lord Murray. He has explained the reasons for his amendment, which seeks to restore the initial intention behind the refugee convention, on which Section 31 of the 1999 Act is based. This is an important amendment because as we have seen, even today, there is a lack of clarity on and a great deal of debate about the refugee convention, its status and its very meaning. I will touch on two of the problems I see, which my noble friend’s amendment would overcome.

The first is the problem of the convention itself. It does not oblige the refugees themselves to seek refuge in the first country; it is an agreement between states, and therefore it is for the states, not the individuals. That has given rise to a lot of the discussion we have heard about whether they have to make a claim in the first safe country. The second problem is the guidance, updated by the Home Office on 27 June this year, which explains the inadmissibility rules in respect of safe third countries and where asylum should be claimed if asylum has been claimed, should be claimed or could reasonably have been expected to be claimed,

“(or, for claims made before 28 June 2022, where exceptional circumstances didn’t prevent such a claim), provided there is a reasonable prospect of removing”

the claimant—which I understand is to reflect the case law. Therefore, we have all kinds of obstacles and not very much agreement on the problem.

I recognise how far the Government have gone to tackle the problems of historically high levels of not only immigration but asylum claims, and the small boat arrivals pose a particular problem, with people crossing the channel from the French coast, having travelled through France and probably a number of other safe countries in the EU, as has been stated. We paid France £476 million to deal with this problem and try to control their coastal departures but, sadly, it has not worked. This year we added the one-in, one-out agreement, but so far that has not paid many dividends: as of last Thursday, we have seen 26 people sent to France and nine people come in from France, which is a drop in the ocean of the 32,000 recorded in September.

We have a problem, and so do the French. Their immigration figures are higher than ours: last year, 1.6 million people came in from outside Europe—that is, non-EU citizens—and they had 157,000 asylum claims compared to our 110,000. They have a much less stable regime at the moment, with President Macron unable to command a majority in Parliament and losing Prime Ministers regularly. So, I cannot blame the French, either. Migration is top: the party with the majority is Madame Le Pen’s.

Good though the Government’s intentions are—and they are good intentions—returns agreements will not work as well as a proper legal amendment, such as that proposed by my noble friend Lord Murray, which would control the problem at source, in the law, of whether or not we admit claims from people who have passed through a safe country. That is why I support it.

[Lord Sandhurst (Con)]

My Lords, this group is certainly a tale of two halves. We on these Benches are unable to support the first two amendments. The United Kingdom’s problems with the current migration crisis stem not necessarily from the refugee convention itself. Rather, the problems lie with the metaphorical scaffolding which has been built around the convention. First, the Government are unable to carry out the will of the British people and turn away those who arrive here unlawfully. To all intents and purposes, the convention already has primacy in United Kingdom law. Those who qualify as asylum seekers have their subsistence paid for by the British state. They have an army of lawyers to hand.

Secondly, the problem lies with processing. Because this Government have continued to expand the incentives for people to come here, asylum processing remains severely backlogged. Removing legal safeguards against illegal migration will only make this problem worse. We already know the impact the Human Rights Act is having on our ability to control our borders and end this crisis. We will debate that Act further in a later group, so I will not go further now. Suffice to say that further incorporating treaties and conventions into domestic law is not the right way to reduce crossings by small boat.

Amendment 185 is another attempt to promote a world view divorced from reality. It is a measure that would allow people claiming to be asylum seekers to face no penalty for illegally entering this country regardless of the country they directly came from. It would open the door to even wider and more egregious exploitation of our already generous system. Let us consider what the effects of this amendment would mean. Asylum seekers, having arrived in France or a similarly safe third country, would have no disincentive to make the dangerous crossing over the channel. Not only would they be enticed by free board and lodging which we provide, alongside many other amenities on offer, but they would face no recourse to justice should they be forging their identity or embellishing their story.

What is the result? More money on the taxpayers’ bottom line, more stigmatisation and scepticism of actual and true asylum seekers, and more casualties among those crossing the channel. Our legal system, so long as we are part of this convention, should be practical and prudent. We cannot decriminalise all illegal migration so that we may feel virtuous when discussing refugees. We should reject this amendment.

Amendment 203I tabled by my noble friends Lord Murray of Blidworth, Lord Jackson of Peterborough and Lady Lawlor is very pertinent. It seeks both to clarify and vindicate the rights of the United Kingdom under Article 31 of the refugee convention. It does so at a time when, as we have heard, its provisions are under increased scrutiny. While other Members of this House—those on the Benches opposite—attempt to dilute our sovereign right to control our borders, I am grateful to those on this side who have the resolve to prioritise Britain’s interests while keeping us in line with our international obligations.

This is a moderate and necessary amendment. As it makes clear, only asylum seekers fleeing genuinely dangerous and war-torn countries will be able to enter the United Kingdom without fear of persecution. Those who pass through or stop in another country where their freedoms were not so threatened will not be able to claim in a court of law that they were fleeing persecution, for the evident reason that they will have chosen not to stop in a prior safe country. This should be our starting point.

The refugee convention exists to provide respite for those fleeing persecution and violence; it is a measure that was born not out of necessity but from pragmatism and benevolence. However, unending benevolence, which gives every person who enters our country the benefit of the doubt and allows everyone the same defences in court regardless of their last country of departure, will undermine confidence in the asylum system. It damages the national interest and endangers national security.

This amendment is in the national interest. We have seen for too long the effects of an over-lenient legal system that has not adequately dealt with those who arrive here illegally, those who seek not true refuge but our generosity. By articulating and vindicating the United Kingdom’s rights under Article 31 of the convention, we do a service not only to people of this country but to those who are genuine refugees who flee persecution.

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

My Lords, this has been an extensive and wide-ranging debate—certainly for the last day in Committee. None the less, I shall try to address the major points raised in the debate while being brief, given the hour.

Amendment 184, tabled by my noble friend Lady Chakrabarti, seeks to require that legislation, Immigration Rules and guidance are to be interpreted in compliance with the 1951 refugee convention. Where any such provision may be found by a court to be incompatible with the convention, it may make a declaration of that incompatibility.

I wish to thank my noble friend for her amendment, also noting the reflections that she made during Second Reading, including on how the refugee convention was a direct result of some of the worst atrocities seen in the last century. I might note that possibly Second Reading was a better place to have a long discussion of the rights and wrongs of the refugee convention and its fitness in this day and age than is Committee. I make it clear on the record, in addressing the comments of many noble Lords, including the noble Lord, Lord Faulks, and the noble Baroness, Lady Fox of Buckley, that the Government remain committed to ensuring that all asylum claims in the UK are considered in accordance with our international obligations under the 1951 refugee convention.

I say to the noble Lord, Lord Faulks, that I have not had the pleasure of reading the Times as extensively as maybe I should have done at the weekend, but even so I shall not be drawn into commenting on leaked memos. However, I take this opportunity to thank the noble Baroness, Lady Fox, for mentioning, although it was not entirely germane to the debate but an important thing to register on this day, the international developments, particularly the release of hostages. I take this opportunity to join her, as I am sure that all noble Lords would wish to, in welcoming that development.

To go back to the Bill, all claims that are admitted to the UK asylum system will continue to be considered on their individual merits by assessing all the evidence provided by the claimant against a background of published country information. We assess that Section 2 of the Asylum and Immigration Appeals Act 1993 as already drafted on the statute book, which sets out the primacy of the refugee convention in relation to Immigration Rules, is already a sufficient safeguard for ensuring that we remain compatible with our international obligations. As such, we do not consider this amendment necessary.

My noble friend’s other amendment, Amendment 185, seeks to amend Section 31 of the Immigration and Asylum Act 1999 by applying Article 31 of the refugee convention directly. In effect, this would require the courts, when considering whether a refugee is entitled to a defence provided by Article 31 and should not be convicted of an immigration offence, to make their good faith interpretation rather than interpreting the will of Parliament, as set out in Section 31. That picks up on some of the comments made by noble Lords opposite, particularly the noble and learned Lord, Lord Garnier, and the noble Lord, Lord Harper.

Section 31 provides a defence for refugees charged with certain document-related offences if they entered the UK directly from a place where their life or freedom was threatened, presenting themselves to the authorities without delay and claiming asylum as soon as reasonably practical. This defence is conditional on the refugee not having reasonably been able to seek protection in another country en route. While the defence under Section 31 of the 1999 Act provides important protection for refugees, it applies only in the circumstances outlined above—namely, to those who come directly from a country where their life or freedom was threatened or who could not reasonably be expected to seek protection en route. In practice, we know that very few migrants will meet these criteria. Most will have transited through multiple safe countries where they could have sought protection, and therefore do not qualify under Section 31.

21:45

To turn to the amendment from the noble Lord, Lord Murray, and to the comments made by him and by the noble Lord, Lord Sandhurst, in responding for the Opposition Front Bench, this would practically mean that we would take next to no one in, and I am not entirely sure that this could be reasonably described as the policy of the previous Government, despite some of the legislation that we saw emanating from them. It is certainly not the policy of this Government. Amendment 203I from the noble Lord, Lord Murray, seeks to amend Section 31 of the Asylum and Immigration Act 1999 in the other direction, in a sense, to make it more closely aligned to the wording in Article 31. The Government remain committed to the protection of refugees and to our obligations under the refugee convention of 1951. Article 31 of the convention is already sufficiently set out in domestic legislation through Section 31 of the Asylum and Immigration Act. This Act adequately reflects subsections set out in Article 31, and for this reason we do not consider Amendment 185 to be necessary.

I understand the point that my noble friend Lady Chakrabarti was making in response to a specific inconsistency, and I am happy to write to her with more detail on that.

I turn now substantively to Amendment 203I from the noble Lord, Lord Murray of Blidworth, also spoken to by the noble Baroness, Lady Lawlor. This would narrow the UK’s current interpretation of Article 31, preventing refugees who travelled to the UK through a safe third country from relying on a defence under Section 31, even when it was not reasonable for them to have sought protection in that country. This amendment risks undermining the intention of Article 31 of the convention. As I said, I am not entirely clear how, if we were applying that principle in good faith, we would be taking in many potential asylum seekers at all.

[Lord Murray of Blidworth (Con)]

The noble Lord says, rather speedily, that it would undermine the intention of Article 31. How does he know what the intention is if it uses the words “coming directly”?

[Lord Katz (Lab)]

I think we know from our experience of asylum seekers and migration that, generally speaking, one cannot take that almost continuous journey through many countries from a place, as indeed my noble friend Lady Chakrabarti set out in greater detail and with a greater grasp of geography than I can muster at this time of night, where people could potentially not be seen to have stopped in a safe country. We know that that does not happen and I think it would be a reasonable interpretation, not so much of the convention but just of the reality of what happens, that if we were to take on the interpretation as set out in the noble Lord’s Amendment 203I, we would be taking in practically nobody. That is not, as I say, the intention of this Government’s policy towards asylum seekers, refugees and migrants.

[Lord Harper (Con)]

The Minister is presenting one counterfactual, which is that we would take almost no one in. The alternative is to do what we did, which is Ministers make decisions about quite large groups of people that we take in. I just point to our Afghan schemes and our schemes for Ukrainian refugees and British national passport holders from Hong Kong. Those were very significant and there is something very important about them: because they were decisions taken by people who were democratically accountable, supported by Parliament, they were largely supported by the vast majority of the British public. I think that is a better model than having a convention which is interpreted by courts in a way that the public do not support. I think that is a better alternative model and one which we delivered in practice with considerable public support. It is a better model, and I urge him to support it.

[Lord Katz (Lab)]

To be clear, I was not talking about schemes that were set up for specific groups of people in specific situations, such as those from Hong Kong, Ukraine or Afghanistan, which the noble Lord mentioned. Indeed, I am absolutely clear as well that I do not disagree with him or the noble and learned Lord, Lord Garnier, on the principle that we would not want to leave that purely up to the courts rather than having it as part of legislation that has been proposed by Ministers and supported by both Houses of Parliament. I do not disagree with that, but the counter-counterfactual is also the case: if we excluded anyone who passed through any country in which they could reasonably stop, as a safe port of call, then we would not be taking anybody else in outside those established schemes. I do not think that is a reasonable, practical interpretation of the facts on the ground. For that reason, I am afraid that we will not be able to support Amendment 203I from the noble Lord, Lord Murray of Blidworth.

Before I finish, the noble Baroness, Lady Jones of Moulsecoomb, had the courtesy to say that she would not be able to be in her place until the end of this stage of the debate. She took the opportunity when speaking to rail against the increasing authoritarianism and blaming of refugees for all the ills of this country. I urge her, and indeed all noble Lords, if they think this is the case for this Government, to read carefully the words of our Prime Minister in his leader’s speech to the Labour Party conference. He set out a clear case, with humane and progressive reasons, for controlling borders. Indeed, I point to the words of our new Home Secretary, Shabana Mahmood. She is very clear that for people from, as she says, an ethnic minority, having a controlled system of borders is a good thing. There is nothing progressive about insecurity, whether insecurity of income, on our streets or on our borders. This Government were elected to tackle all three things, and we are determined to tackle them.

Given that, and given the time of night, I will conclude and ask the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Murray, not to press their amendments.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords for their engagement in this group, even though some engagement was with a rather broader brush than ideally one would like in Committee. The noble Baroness, Lady Jones, did not need to be self-deprecating about not being a lawyer, nor did other noble Lords need to damn my amendments with faint praise for being surprisingly “legally coherent”, even though they disagreed with the substance.

Some noble Lords were of course going to use these amendments for the big debate that rages in our countries at the moment around the refugee convention. However, to go to the detail of my amendments, neither of them would affect the big debate about whether we should be in or out of the refugee convention, or whether we should be in it but periodically ignore it. My amendments were attempting to achieve some coherence in our statute book, which I think is what a Committee stage on a borders Bill should be about.

There are anomalies in the way that we are half-pregnant with the refugee convention at the moment. The noble Lord, Lord Harper, did not quite believe me when I said that Section 2 of the 1993 Act already provides that the Immigration Rules may not conflict with the refugee convention and therefore courts may decide on that matter. I would like him to believe me or, if he does not, to look at the statute, because Section 2 of the 1993 Act is still in force. The noble Lord then said that if what I say is correct, we would not need my amendment, but of course the rules are just the rules. Underneath the Immigration Rules there are executive decisions and guidance, and above the rules there is legislation.

The noble Baroness, Lady Fox, rightly and understandably brought up the question of democracy, and other noble Lords engaged in the age-old debate about what democracy is and the relationship between elected parts of the constitution and the courts. There must be a relationship between the two because there is no democracy without the rule of law and arbitrary decisions could be made. The moment you legislate, you are passing some role to the judiciary. Some of us are happy with that and some of us do not want quite so much of that, but my amendments would expressly preserve parliamentary sovereignty as the overriding principle in our legislation, even under the Human Rights Act.

On Amendment 185, I am grateful to my noble friend the Minister for identifying the point I make about the anomaly in the current position. I am sorry to the noble Lord, Lord Sandhurst, because clearly I did not make myself clear enough in my opening remarks; he said that my amendment would be a licence for people to come with forged papers. The anomaly I refer to is that, as a refugee with forged papers, you get protection from prosecution now, but not as a refugee with no papers. That is the detail of what I was trying to achieve in these specific amendments, notwithstanding this very general debate, and I am grateful for that. For the moment at least, I beg leave to withdraw my amendment.

Amendment 184 withdrawn.

Amendment 185 not moved.

Amendment 186

Moved by

[Baroness Lister of Burtersett]

186: After Clause 48, insert the following Clause—
“Good character requirement for citizenship(1) Part 5 of the British Nationality Act 1981 is amended as follows.(2) After section 41A, insert—“41B Good character requirement(1) The good character requirement must not be applied in a manner contrary to the United Kingdom’s obligations under international law relating to immigration and asylum.(2) When considering whether a person (P) meets the good character requirement, the Secretary of State may not take into account P’s illegal entry to or arrival in the United Kingdom—(a) if P was under the age of 18 at the time of such entry or arrival, and(b) except to the extent specified in guidance on the good character requirement published at the time of such entry or arrival.(3) In this section "the good character requirement" refers to the provision regarding a person being of good character in section 41A (Registration: requirement to be of good character), section 4L (Acquisition by registration: special circumstances), and paragraphs 1 and 5 of Schedule 1 to the British Nationality Act 1981.””Member's explanatory statement
This new clause would ensure the good character requirement is not applied contrary to the UK’s international legal obligations. It also ensures that an assessment of good character may not take into account a person’s irregular entry or arrival to the UK if they were a child, and it may only be taken into account to the extent specified in guidance published at the time of an adult’s irregular entry or arrival.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will introduce Amendment 186 on behalf of the right reverend Prelate the Bishop of Chelmsford, who very much regrets that she cannot be in her place as she feels strongly about this issue.

The amendment concerns a change in official guidance for immigration staff assessing good character in nationality applications. Refugees claiming citizenship after 10 February who entered the UK “illegally” will now normally be refused regardless of when they entered the country. The policy change, in effect, reintroduces sections of the Illegal Migration Act, which this Bill repeals. That repeal was described by the United Nations High Commissioner for Refugees as

“a positive step that recognises the importance of naturalisation, both for the individuals concerned and for social cohesion”.

Without this amendment, this Bill is one step forward only for guidance to take us one step backwards.

Following a Private Notice Question tabled by my noble friend Lord Blunkett, there was considerable criticism of the new guidance. The noble Lord, Lord Tyrie, commented that

“this is a major change that deserves much more substantial consideration and scrutiny by both Houses of Parliament before it comes into force”.—[Official Report, 12/2/25; col. 1256.]

There was no such scrutiny, but this amendment provides such an opportunity now. It would do three simple things. First, it would ensure that the good character requirement is not applied in a manner contrary to the UK’s international obligations. Secondly, it would uphold the best interests of children by prohibiting consideration of a child’s irregular entry to the country. Thirdly, it would remove retrospectivity further to uphold the rule of law. I will consider each in turn.

First, in a letter to ILPA, to which I am grateful for its assistance with the amendment, the then Minister Dame Angela Eagle said that

“the Secretary of State may choose to apply discretion to grant citizenship … where necessary to comply with our international obligations”.

I will return to the discretion question later. Here I simply note that the amendment seeks to turn “may” into “must”. In the PNQ debate, my noble friend Lord Boateng warned that the policy contravenes Article 34 of the refugee convention, which calls on states to facilitate the assimilation and naturalisation of refugees as far as possible. The UNHCR makes the same point, citing a similar provision in the 1954 Convention Relating to the Status of Stateless Persons. It also expresses concern that the policy may result in breaches of Article 31 of the refugee convention, discussed in the previous group, which clearly states that countries

“shall not impose penalties, on account of their illegal entry or presence, on refugees”.

According to the UNHCR, Article 31 is central to the object and purpose of the refugee convention because it ensures that refugees can gain access to international protection and the rights associated with it without being penalised for breaches of immigration and other laws.

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Secondly, I welcome my noble friend the Minister’s confirmation in a Written Answer that:

“When assessing good character, it is normally appropriate to disregard immigration breaches if it is accepted this was outside of the applicant’s control”;

thus,

“most children would not be held accountable for their immigration breach. The … amendments to the good character policy did not alter this position”.

However, this does not provide a guarantee—hence the amendment. At the very least, I ask my noble friend to revise the guidance to make the position regarding children clear, for at present it is not, and it is the guidance that guides decision-making.

Thirdly, the amendment would remove retrospectivity by ensuring that irregular entry or arrival may be taken into account only to the extent specified in guidance published when a person entered the UK. As it stands, the new guidance applies even if at the time a person came here irregularly, however long ago, the guidance in force did not bar them from citizenship. If the rule of law means something so minimal as that the law should be capable of guiding human conduct, then the guidance change is contrary to it. People cannot not now go back in time to alter their conduct to meet these new requirements; in this way, it is contrary to the rule of law. It is too late to act as a deterrent for those who arrived before the change and simply represents a penalty in breach of the refugee convention. The Refugee Council estimates that there are up to 71,000 who have already been granted status but who could now be denied citizenship. As one of them has said:

“We haven’t done anything wrong; we shouldn’t be punished for taking the only option we had left when other legal ways to survive just weren’t available”.

This also raises the question as to what the purpose of the change is. I asked this in a Written Question, but the response, though detailed, did not answer the Question. In the PNQ debate, my noble friend Lord Dubs asked the same question and expressed scepticism if the purpose was to act as a deterrent to irregular entry. The Minister responded that:

“The Government are trying to set down some basic red lines”,

one of which is that,

“British citizenship is not a right but a privilege”,—[Official Report, 12/2/25; col. 1254.]

which comes only with entry through legal routes. However, that does not explain why citizenship should now be confined to those who entered through legal routes, given that entry by such routes is virtually impossible for most asylum seekers.

The IPPR suggests that the move

“appears to be a reaction to Conservative criticisms of Labour’s repeal of the Illegal Migration Act’s citizenship restrictions, but … There is no evidence that punitive citizenship restrictions prevent irregular migration”.

Moreover, such restrictions are likely to undermine the Government’s own objectives of integration and community cohesion, which was a concern raised by my noble friend Lord Blunkett in his PNQ. Indeed, the IPPR warns that

“it weakens Labour’s ability to present a credible vision for citizenship, belonging, and community cohesion”.

The change also plays into the right’s conflation of asylum seeking and illegal or irregular migration in a way that is very harmful to the whole debate about asylum and migration. Given that asylum seekers have a long-standing right under international law to seek asylum, they are not so-called illegal migrants and should not be treated as such. We are talking here about people who are subsequently accepted as refugees. Why should the manner of their entry have any bearing at all on their eventual application for citizenship? Why is the manner of that assessment relevant to an assessment of good character? It could be argued that someone who has had to overcome traumatic experiences—including, sometimes, torture in their home country and during their journey to the UK in the absence of safe and legal routes—has shown qualities such as resilience and courage. To me, this smacks of good character.

Instead, a refugee affected by the guidance changes will have to live with the knowledge that the society they are trying to belong to has ruled that they are of bad character, regardless of any contribution they have made to it. This is likely to have negative implications for their self-worth and sense of identity. As a refugee told the APPG on Refugees, he now has to explain to his friends why he cannot have the same rights as them. Refugees are being told they can never be full members of society with the rights that citizenship bestows. They will not even be second-class citizens but will face insecurity and exclusion. As Together With Refugees puts it:

“Citizenship is not just a legal status; it is a tangible fulfilment of the promise of safety, dignity, and opportunity. When refugees become citizens, they feel a greater sense of belonging as full members of their communities with a stable future for themselves, their children and generations to come”.

We know from refugee organisations the damaging psychological impact that the announcement has had on refugees. To quote just one of them:

“Now I feel like no matter how hard I try, I’m never really going to be part of this society — it’s like I’ll always be an outsider who’s been added on but doesn’t truly belong. I also feel this constant sense of insecurity, like at any moment my status could be compromised”.

I know my noble friend the Minister will remind us that it is still open to refugees to apply for citizenship, as the Secretary of State retains the discretion to grant it in exceptional, compelling or mitigating circumstances, a point he made repeatedly during the PNQ debate. But who will risk a non-refundable fee of over £1,500 in the hope that their circumstances will be deemed exceptional, et cetera? This was a point made also by the UNHCR.

Perhaps even worse still, I have been given examples by ILPA of people who have applied for citizenship in good faith since the changes to good character were introduced but who have been refused, even though they entered the country legally—nothing to do with small boats or lorries. In one case, Lana—not her real name—who was fleeing persecution, entered on a valid visit visa, which was stamped at the border. She then tried to claim asylum immediately but was advised by the asylum intake unit to wait as she did not need asylum support. After several attempts, she lodged her claim and was subsequently granted refugee status, but when she recently applied for citizenship, she was refused on the grounds that she failed to disclose her true intention to the immigration officer on entry and therefore did not present herself to the UK authorities without delay with her intention to claim asylum.

Similarly, Tanya, a very young woman, entered on a family reunion visa and lived with her aunt, who was like a mother to her, for the first year. When her circumstances changed, she claimed asylum, as she was unable to return to her country of nationality due to fear of persecution. She, too, was granted refugee status and then settlement, but when she came to apply for citizenship recently, she was refused on account of alleged illegal entry and failure to make a claim for asylum as soon as was reasonably practicable after her arrival in the UK.

In both cases, the women had assumed the new guidance would not apply to them, so it was a real shock when they were refused. The more refugees hear of such examples, the less likely they are to risk the cost of an unsuccessful application, even when there are exceptional, compelling or mitigating circumstances, especially as there is no formal right of appeal.

In conclusion, the IPPR has described this as a worrying misstep that is neither good politics nor good policy. Its research, like that of others, has consistently shown that the public has little appetite for punitive citizenship policies. Nearly 150 organisations, including faith groups, condemned the change in an open letter when it was announced. Personally, I feel ashamed that my Government have taken this misstep. This amendment would at least mitigate its impact. I beg to move.

[Lord German (LD)]

My Lords, I do not want to repeat all that the noble Baroness, Lady Lister, said, but I agree with every word. If we wish people to become full citizens of, or to integrate into, our country, looking back at the way in which they came into the country actually damages that process. People who could have been working here for years, and brought families up together, are being denied that opportunity.

It is quite clear that this is a case of one step forward, one step back. The repeal of some of the provisions of the Illegal Migration Act, in Clauses 38 and 39 of the Bill, was absolutely the right thing to do. But then the Secretary of State overturned that by stating simply that, from 10 February 2025, individuals applying for citizenship who arrived by “a dangerous journey”, or who entered the UK irregularly, “will normally be refused” British citizenship, with no carve-out for refugees, stateless persons, victims of trafficking or children—and it is retrospective to people already in the United Kingdom.

Because it is such an important issue, I managed to ask whether Britain was standing alone on this matter. I have arranged, through a system in this Parliament that I did not know about, to ask all 46 Parliaments of the Council of Europe a question. When considering a citizenship application from an individual who is legally recognised as a refugee, to what extent does the method by which they entered the country impact their eligibility for citizenship? For example, does entering national territory without permission normally make an applicant ineligible for citizenship, including if they are later recognised as a refugee?

That was dealt with by the Parliaments of the Council of Europe, and we received responses from 31 member countries. Not one of them has the rule that the Secretary of State has just applied to this system. I will read out the names of those countries, because they ought to be on record: Albania, Armenia, Austria, Bosnia-Herzegovina, Canada—which is an associate of the Council of Europe—Croatia, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Moldova, North Macedonia, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and Ukraine. None of them carries out this policy.

Why are we standing alone? Why are we the ones who are marching out of step with everybody else? Why is it that we do not want these people, who are coming here and spending their lifespan here, to be integrated fully and granted citizenship? They have worked their way through our society. It is absolutely shameful and the Government ought to rescind the Secretary of State’s statement and fall back on what is done in this Bill. In the Bill, we have done the right thing. By contrast, the Secretary of State’s statement needs to be re-dealt with, so that we can fall in line with every other country in Europe that decided to respond to this. Incidentally, it was only the small countries that did not respond, such as San Marino and Andorra; all the big countries of Europe are in there.

[Lord Davies of Gower (Con)]

My Lords, I shall speak briefly about the first amendment in this group, in the name of the right reverend Prelate the Bishop of Chelmsford and moved by the noble Baroness, Lady Lister, before moving on to those in my name and those of my noble friends.

The “good character” assessment may, in the view of some noble Lords, have a slightly antiquated name, but let me take a moment to go into some more detail. A person will not normally be considered to be of good character if there is information to suggest that any of the following apply: if they are a criminal, if they are a terrorist, if they have failed to pay tax, if they are dishonest or if they have breached immigration laws. That is not an exhaustive list, but those are the main points set out by the Government.

I know that the amendment is well intentioned, but we on these Benches believe that the requirements currently set out to be considered a person of “good character” are not only valid but important for maintaining national security and the safety and well-being of our citizens. For us to say that a person should not be a threat to national security, that they should be honest and that they should seek to nurture our community rather than harm it, as a prerequisite, is, I am sure all noble Lords will agree, an entirely valid principle. I therefore cannot support any measures that threaten the watering down of this principle and cannot back the amendment.

I turn to the amendments in this group in my name and those of my noble friends Lord Cameron and Lord Jackson of Peterborough. We need to acknowledge in this debate that, despite our various disagreements on the Bill and, to some extent, on how we approach the issue of migration more widely, we share the same fundamental ambition to see our country succeed. We all want a country in which everyone contributes, in which communities thrive and work together, and in which our economy and public services are properly supported. But, if we are to get closer to achieving this ambition, we must face up to the reality that our social security and welfare systems are not limitless. They exist to protect the vulnerable here at home and to support those who fall on hard times. That is why these amendments are so vital.

22:15

Amendment 192 sets out clear restrictions on visas and the granting of indefinite leave to remain. It requires that applicants, including those on spousal visas, must not draw on social protection, including housing and benefits, as defined in the Treasury’s public expenditure statistical analysis. It also requires that an applicant’s annual income must not fall below £38,700 for six months or more during the qualification period. If these conditions are breached, the visa is void. We want those who come here to be self-sufficient and economically independent and to contribute to the society that they wish to join.

We are of course a benevolent country and we are rightly proud of the extraordinary generosity that the British people have shown to those fleeing genuine persecution and war. That is why in these amendments we have specifically exempted those arriving under the Ukraine visa scheme, the Afghan citizens resettlement scheme, the Afghan relocation and assistance policy and the British National (Overseas) visa route.

We recognise where our support is both necessary and right, but our support must not come at such a cost that the system itself is weakened and left unable to help anyone: neither those from abroad nor British citizens in need. Amendment 193 extends the qualification period for indefinite leave to remain to 10 years for the principal skilled, talent and partner visa routes. This is a measured step to ensure that permanent residency is granted only once there is a proven record of long-term self-sufficiency, contribution and integration. It rightly abolishes the so-called long residence route, which allows indefinite leave simply by virtue of having lived in the UK for 10 years, irrespective of one’s ability to contribute.

Finally, Amendment 195 ensures that indefinite leave to remain is not untouchable. If a person is found to be a foreign criminal under Section 32 of the UK Borders Act 2007, if they breach the new qualification rules, if they or their dependents rely on social protection or if their income falls below the required threshold for a sustained period, their indefinite leave is revoked. Again, exemptions remain in place for those coming from Ukraine, Afghanistan or Hong Kong under the special schemes. This ensures that our compassion is safeguarded and our system is not undermined.

The purpose of these amendments is straightforward. They are about responsibility: making sure that our migration system works for the long term, that it has the capacity to help those who truly need it and that it does not collapse under its own weight. Unless we are clear that indefinite leave to remain is a right earned through contribution and self-sufficiency, not an entitlement, we will create a system that fails everyone. These amendments strike the right balance: firm but fair, compassionate but responsible. They reaffirm that Britain remains open to those who will contribute and share in our national life, while ensuring that our generosity is not abused.

[Lord Hanson of Flint (Lab)]

My Lords, I am grateful to my noble friend Lady Lister of Burtersett for proposing the amendment and for the support that she had from the noble Lord, Lord German, in relation to the contribution that he has made. I shall deal initially with Amendment 186, which was tabled by my noble friend, the noble Lord, Lord German, the noble Lord, Lord Kerr of Kinlochard, and the right reverend Prelate the Bishop of Chelmsford. My noble friend has made a very strong plea to the Government, but I remind her that British citizenship is a privilege, not a right. The requirement for an individual to be of good character is a statutory one, which is considered reasonable and proportionate when assessing whether to grant British citizenship.

As my noble friend knows, the British Nationality Act 1981 provides for the Home Secretary to determine the good character policy. Changes to the policy are at the discretion of the Home Secretary, and the amendment proposed by my noble friend and other Members in Committee seeks to limit that discretion.

I hope my noble friend recognises that the good character policy is compliant with our international obligations, including those under the refugee convention. Guidance on the good character policy is clear that decision-makers have the ability to exercise discretion on a case-by-case basis. This includes disregarding immigration breaches if it is accepted, and I think my noble friend accepted this, that they were outside the applicant’s control—for example, if the person was a victim of modern slavery or trafficking or if they had entered illegally when they were a child. I argue that an explicit exemption in legislation is not necessary, as the existing policy guidance already provides flexibility.

My noble friend asked why we brought this in. The good character requirement is set out in the British Nationality Act 1981. Each citizenship application will always be considered on its individual merits, and the Secretary of State may choose to apply discretion to grant citizenship on an exceptional basis where there are exceptional, compelling or mitigating circumstances, or where it is necessary for us to comply with our international obligations. Small boat crossings and other dangerous journeys to the UK put lives at risk and undermine our border security. The change to the good character policy is part of the Government’s strategy to strengthen the asylum and immigration system, ensuring that those rules are respected and enforced. There is a legal basis for that, and discretion for the Secretary of State accordingly.

Amendment 191 was tabled by the noble Lords, Lord Davies, who is not currently in his place, but I will continue to address his amendment. It places specific conditions on those applying for permission to enter, stay or settle in the UK, and removes the Secretary of State’s discretion to grant leave outside the Immigration Rules. The Government recognise and value the contribution that legal migration makes to our country and believe that the immigration system needs to be properly controlled and managed.

The immigration system controls access to benefits already. The policy of no recourse to public funds is a long-standing principle adopted by successive Governments. Most migrants will become eligible to access public funds only at the point when they gain settlement. The expectation under our current policy is that temporary migrants coming to the UK should be able to maintain and accommodate themselves without recourse to public funds. This approach reflects the need to maintain the confidence of the general public that immigration brings benefits to our country rather than costs to the public purse.

There is an ability to apply for the condition of no recourse to public funds to be lifted. This relates to the safeguards that exist to protect the most vulnerable in certain circumstances. I say to the noble Lord, Lord Davies, that this is not the correct legislation for a debate about the requirements for visas and settlement. We set out our plans to restore control over immigration in the White Paper.

I turn briefly to Amendment 196, which was also tabled by the noble Lords, Lord Davies and Lord Cameron of Lochiel. It proposes to restrict settlement in the UK to a handful of economic routes and to partners of British citizens, and to set the qualifying period for settlement at 10 years. Although settlement in the UK is a privilege, not an automatic entitlement, the immigration system needs to account for people in a range of circumstances beyond those specified in this amendment.

The expectation is that people should serve a period with temporary permission before being eligible to apply for settlement. There is currently a range of periods of time that people need to spend in the UK before they can qualify for such settlement. Most of these are five years, with shorter periods for exceptional work routes and longer 10-year qualifying periods where, for example, we require people to demonstrate close ties with the UK over a longer time. There are also exceptions in place for the most vulnerable, which this amendment does not recognise. The provisions for settlement are set out in the Immigration Rules, so again I tell the noble Lord, Lord Davies, that this is not the correct legislation for a debate about the requirements for settlement.

What we are looking to do with the Bill is strengthen our borders, go after smuggling gangs—which have caused much damage to migrants’ lives already—and secure our borders from systematic abuse. However, noble Lords will have seen that the Government have set out proposals for earned settlement within the immigration White Paper. As part of this, we will set a baseline qualifying period of 10 years for settlement in the UK, with the possibility of settlement being gained earlier based on contribution or skills. That will be subject to consultation later this year—I hope that will assist my noble friend Lady Lister—if people wish to express particular views, not just in this House but elsewhere. That consultation will be produced later this year.

Amendment 197, which the noble Lords have also tabled, would automatically revoke settlement in a wide range of circumstances, including where a person’s income falls below £38,700. I suggest to the noble Lord—I hope he takes this in the spirit in which I put it—that the amendment is unworkable and would lead to injustice. Let us give an example of a situation where a person relies on the benefits system for a very short period but has paid tax and national insurance contributions for decades. The amendment, if passed and in legislation, would mean that that person would have their settlement revoked. I do not think it can be fair that a short period of unemployment might well lead to the revocation of settlement.

I should note that most migrants become eligible to access public funds only at the point at which they gain settlement—namely, indefinite leave to remain. A migrant’s access is subject to the same eligibility criteria as any other claimant, including the need to be habitually resident, meaning that they will have made the UK their home in addition to having a legal right to claim benefits. Furthermore, provisions also exist to invalidate any leave granted to a foreign criminal who has been made the subject of a deportation order. Where a deportation order is not made, settlement can be revoked for acts of criminality, such as deception or fraud in obtaining a settlement, as well as other significant non-conducive reasons. Settlement, of course, can also be revoked where a foreign national is liable to be deported but cannot be because of the UK’s obligations under the ECHR or the refugee convention.

So, in summary, the Government are fully committed to making our communities safer by deporting those who break our laws, but, for the reasons I have outlined, I respectfully ask that my noble friend and the noble Lords, Lord Davies and Lord Cameron of Lochiel, do not press these amendments now. Obviously, we can, if they wish, return to them on Report.

[Lord Kerr of Kinlochard (CB)]

The noble Lord referred to the extension to 10 years of the period of waiting on indefinite leave to remain while seeking citizenship. That does not, I hope, apply retrospectively to people arriving now—people who came in on the understanding that the waiting period would be five years. I hope the Minister can confirm that, for them, the waiting period will still be five years.

[Lord Hanson of Flint (Lab)]

The proposals will be set out shortly, subject to consultation. I hope the noble Lord can await that formal consultation on those proposals.

[Baroness Hamwee (LD)]

We can wait, but the people who fear that they will be affected are becoming increasingly anxious.

[Baroness Lister of Burtersett (Lab)]

That is an important point. I was going to say we have been asking this question for many months and are still waiting for an answer to it.

I thank the noble Lord, Lord German, for his very strong support for the amendment and particularly for his really helpful research in the Council of Europe. It is still not clear to me why we are out of step and are the only ones doing this.

I thank my noble friend the Minister for his response. There was one particular thing I asked—which I will not ask him to pursue now because it is late, but perhaps he could write to me—on the guidance, which does not make clear the position of children. Perhaps he could look at Hansard and write to me and to the right reverend Prelate about that.

22:30

On the point that the good character test is compliant with our international obligations, we are not arguing about the good character test generally. I know there are some issues with the good character test, but that is not the point here, which is that we have now added the way one enters the country to it. According to the UNHCR, that is in contravention of Article 31 of the refugee convention. I remind my noble friend of what he said on 3 September. I am afraid I was not here, but I have read Hansard. He made a very good point. He talked about

“the real funnel of pressures that are coming, which are driven by terrorism, starvation, war and poverty. People who make that journey and claim asylum have very often faced challenges that I could never imagine”.—[Official Report, 3/9/25; col. 842.]

Yet he is now trying to justify taking away the right to claim citizenship from those people.

I will leave it at that. The right reverend Prelate may very well want to come back to this on Report, not least so that such an important issue is not discussed at this ridiculous hour of past 10 pm, but for now, I beg leave to withdraw the amendment.

Amendment 186 withdrawn.

Amendments 187 and 188 not moved.

Amendment 189

Moved by

[Lord Davies of Gower]

189: After Clause 48, insert the following new Clause—
“Disapplication of the Human Rights Act 1998 for immigration legislation(1) For the purposes of any provision made by virtue of this Act or the relevant immigration legislation, and for any decision, action or policy made under this Act or the relevant immigration legislation, the Human Rights Act 1998 does not apply.(2) Where a court or tribunal is considering any decision under the relevant immigration legislation, the court or tribunal must disregard the Human Rights Act 1998.(3) For the purposes of this section “the relevant immigration legislation” means—(a) the Immigration Acts as defined by section 61(2) of the UK Borders Act 2007, and(b) the Immigration Rules made under section 3(2) of the Immigration Act 1971.(4) In the Human Rights Act 1998—(a) in section 3, after subsection (2), insert—“(3) This section does not apply to any provision made by or by virtue of the relevant immigration legislation as defined by section (Disapplication of the Human Rights Act 1998 for immigration legislation) of the Border Security, Asylum and Immigration Act 2025.”;(b) in section 6— (i) in subsection (2)(a) omit the last “or”(ii) after subsection (2)(b) insert—“(c) the authority was exercising powers or fulfilling functions conferred on the authority by the relevant immigration legislation as defined by section (Disapplication of the Human Rights Act 1998 for Immigration Legislation) of the Border Security, Asylum and Immigration Act 2025.”(5) In the Immigration Act 1971—(a) in section 8AA—(i) in subsection (2), omit “Subject to subsections (3) to (5)”,(ii) in subsection (2)(a)(i) omit “, or”;(iii) omit subsection (2)(a)(ii), and(iv) omit subsections (3) to (6), and(b) in section 8B, omit subsection (5A).(6) In the Asylum and Immigration Appeals Act 1993, omit section 2.(7) In section 84 of the Nationality, Immigration and Asylum Act 2002—(a) in subsection (1) after “must” insert “not”,(b) in subsection (2) after “must” insert “not”,(c) in subsection (2) for “section 6” substitute “any section”, and(d) in subsection (3) after “must” insert “not”.(8) In the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 in section 2 (offences relating to entering the United Kingdom without a passport), in subsection (12) for the definition of “leave or asylum interview” substitute—“leave interview” means an interview with an immigration officer or an official of the Secretary of State at which a person seeks leave to enter or remain in the United Kingdom.(9) Where the European Court of Human Rights indicates an interim measure relating to the exercise of any function under the legislation identified in subsection (1)—(a) it is only for a Minister of the Crown to decide whether the United Kingdom will comply with the interim measure under this section, and(b) an immigration officer or court or tribunal must not have regard to the interim measure.”

[Lord Davies of Gower (Con)]

My Lords, we now turn, in my submission, to probably one of the most important groups of amendments on the Bill, which I am sure will promote some discussion and likely much disagreement. That is perhaps something to be welcomed.

The stated aim of the Human Rights Act, when it was introduced, was to bring rights home. It incorporates 16 rights derived from the European Convention on Human Rights into domestic law and was itself enacted to satisfy the obligations placed on the British Government by Article 1 of the ECHR. This was all to satisfy a noble purpose: to make sure that human rights in the United Kingdom were protected and upheld. But we have seen the corruption of this noble purpose no more keenly than when we see how it has been applied to matters of immigration and deportation.

To give an example, noble Lords will no doubt be familiar with the horrific abuses inflicted on girls by the Rochdale grooming gangs. Two of the Rochdale grooming gang ringleaders, Adil Khan and Qari Abdul Rauf, fought deportation by claiming their right to a family life under Article 8 of the European Convention on Human Rights, which is also Article 8 of the Human Rights Act. Rauf even gave up his Pakistani citizenship just to make sure that we could not deport him. He lost his appeals, yet he is still here: still in Rochdale, still living among the people whose lives he destroyed.

It is clear that, under the straitjacket imposed on us by the Human Rights Act, our country has lost control of the asylum system. Hundreds of thousands of people have come here claiming to be refugees—far more than politicians before us ever imagined—almost all passing through neighbouring countries which are perfectly safe. Tens of thousands of them will receive taxpayer-funded legal aid, which is spent on lawyers competing to devise ever more ingenious legal arguments to keep them in the country.

Let me give your Lordships some more examples. One woman, who was refused leave to remain, deliberately joined a terrorist organisation to manufacture a claim that she risked imprisonment back home. A convicted paedophile evaded deportation by claiming he was gay and that his life would be at risk in his home country. And let us not forget the Albanian criminal who claimed in February that he could not be deported because of his son’s sensitivity around food, the sole example given in court being his aversion to foreign chicken nuggets. The immigration tribunal ruled that his deportation would breach his Article 8 rights, as it would apparently have an “unduly harsh” impact on his son.

Every day we see these kinds of cases reported, and tens of thousands of illegal immigrants, mainly adult men, take the risk of crossing the channel in small boats because they know that we cannot remove even criminals and terrorists. Indeed, we pay their legal fees to help them stay. We have seen this unjust situation unfold further with the Government’s returns deal with France. The week before Parliament broke for recess saw the first two flights leave with no migrants on board. Those who were due to be deported on those flights had their deportation orders halted by the High Court due to concerns about human trafficking and torture. The new Home Secretary herself admonished those trying to use the Human Rights Act and the ECHR to prevent their deportation as

“making a mockery of our laws”.

How can this situation be a reflection of the laudable aims that heralded the incorporation of the ECHR into our statute book in 1998? The simple answer is that it is not. The dream has become a nightmare, and the time has come for us to do something about it. That is why I and my noble friends on these Benches have tabled this amendment.

There is a point I wish to clarify here. After the excellent, thorough report of my noble friend Lord Wolfson of Tredegar, the Conservative Party has committed itself to repealing the Human Rights Act and leaving the ECHR. While it is no longer the policy of the Official Opposition simply to disapply the Human Rights Act for immigration cases, this Bill does not present us with the opportunity to repeal the HRA. To do so would require a Bill of its own. This amendment is therefore the avenue through which we are able at this stage to facilitate discussion on the impact of our continued membership of the ECHR.

I know that some noble Lords in your Lordships’ House today will disagree with me. As I have already said, the debate is welcome, but I ask those who disagree whether our situation now, this minute, is one that the Human Rights Act is working to improve. Has the Human Rights Act protected the victims, their families and communities in Rochdale? Has it protected our people from the paedophiles who continue to languish in the United Kingdom because we cannot deport them? Does it help or hinder people smugglers who use it to reassure the people they are transporting that they will not be removed? The answer is clear: the Human Rights Act in this context does not uphold human rights. It aids and abets abusers in their abuse. Trauma is continued and renewed because of the Act. The rights of our people come second to the rights of child abusers and terrorists, who hide behind the Act to remain on our shores, to remain a threat to our people and to remain a source of terror and pain for the people they have already harmed. We are prevented from deporting those who show flagrant disrespect for the laws passed by our sovereign Parliament, but even more fundamentally it prevents us enacting the wishes of the British people. This is an untenable situation that we must swiftly seek to remedy.

I further welcome the amendments to Amendment 189 tabled by my noble friend Lord Murray of Blidworth; they perform an important function in strengthening its purpose. While that amendment would disapply the Human Rights Act from immigration legislation, my noble friend’s additions would ensure that the mechanisms contained in Sections 4 and 10 of the Human Rights Act are also expressly excluded. In practice, this means that the courts would not be able to issue declarations of incompatibility in relation to immigration law; nor would Ministers be able to use remedial orders to alter such legislation on human rights grounds. That would close off any backdoor reintroduction of Human Rights Act challenges into this field, and it would provide the clarity and certainty that are essential if this policy is to be delivered effectively. I therefore strongly support these amendments as a logical and necessary reinforcement of the central principle of Amendment 189.

As has been said in the other place, now is the time for radical decisions. This is an amendment the Government should welcome if we are to stand up for the rights and well-being of the British people. I beg to move.

[Lord Murray of Blidworth (Con)]

My Lords, as foreshadowed by my noble friend Lord Davies of Gower, I have two amendments in this group that seek to amend the Front Bench disapplication provision for the Human Rights Act. Of course, disapplication feels rather “yesterday”; the Overton window on the question of human rights law is now clearly swinging in favour of repeal of the Human Rights Act, following the excellent report produced by my noble friend Lord Wolfson of Tredegar and the announcement of the party’s new policy. Be that as it may, for the purposes of this Bill, the correct approach, which I suggest the Minister should grasp with both hands, is to disapply the effect of the convention and the operation of the Act in the sphere of immigration decisions.

Disapplying the Human Rights Act from this area is not unprecedented. As the Minister will recall, this provision was incorporated, in a slightly different form, in the Safety of Rwanda (Asylum and Immigration) Act, and it was clearly a matter that passed both Houses of Parliament. It is both a precedented and a necessary step.

I turn briefly to the context for my amendment. The amendment itself would add two further provisions to the amendment proposed by my noble friend Lord Davies: that is, to include in the operation Section 4 of the Human Rights Act, which is the court power to make a declaration of incompatibility, and Section 10, which is a power to remedy any incompatibility by means of a statutory instrument. As Policy Exchange observed in its paper on the Safety of Rwanda (Asylum and Immigration) Act in December 2023, that disapplication provision did not mention Sections 4 and 10 and was the worse for it, because the experience has been that, where a court can make a declaration of incompatibility, those matters are taken almost automatically by the Government as warranting some sort of remedial step.

No Government so far have ignored a declaration of incompatibility, to my knowledge. For example, in the recent case where the Northern Irish High Court found an incompatibility in the legacy Act, the decision of the Government was to bring forward a remedial order to have the effect of suspending the operation of the provisions of that Act without waiting for primary legislation, itself a controversial move. To avoid that situation recurring, I have tabled these amendments to exclude from any potential challenge to immigration-related decisions a decision by a court to make a declaration of incompatibility, or a decision by a Government to attempt to remedy it by making a remedial order under Section 10 of the Human Rights Act.

It is clearly time that we took back control of the United Kingdom’s borders. This Government, and particularly this Home Office, know the difficulties that trying to operate within the constraints of the Human Rights Act has generated as it has evolved. I encourage the Minister to accept a provision similar to this so that he can implement the policies of his Government.

[Lord Faulks (Non-Afl)]

My Lords, when the Government first came into power last year, great emphasis was placed by the Prime Minister and his Attorney-General on the importance of the rule of law and in particular respect for international law. We were told that there was no way the Government would revisit the Human Rights Act or seek to amend the ECHR. Attitudes appear to have changed.

The previous home secretary, Yvette Cooper, said that the Government would bring in

“a clear framework set out by parliament that then can be much easier for the courts to interpret”.

I am not quite sure what that means, but she was talking about the application of human rights guarantees to various claims for asylum, in particular in relation to Article 8. It may have been a coincidence that this statement followed quite shortly after Reform had announced its policy on asylum claims.

22:45

Time has moved on and now we have a new Home Secretary who has announced, in effect, that nothing is off the table. I think I might be forgiven for having wondered, when I heard this, how it would go down with the human rights zealot, the noble and learned Lord, Lord Hermer, but he too seems to have modified his approach. There may, apparently, be a concerted effort to try to change the terms of the ECHR. This will not be easy, despite the apparent enthusiasm of some other members of the Council of Europe for the taking of such a course. Giving evidence to a parliamentary committee, the noble and learned Lord, Lord Hermer, expressed the view that it would take not far short of 10 years to achieve this. I am sorry to inform him that there is a possibility that his party will not then be in power.

I very much doubt that the Government will accept this amendment but it is time, I suggest, for them to give us some clue as to the direction of travel, so I ask the Minister this. First, can he rule out any amendment to the Human Rights Act? Secondly, can he rule out any short-term changes to the ECHR? In which case, all that appears to be left is some form of guidance to be given to judges, or decision-makers at a lower level, as to the correct approach to asylum claims. It is absolutely correct for the Government to emphasise, as they have done in a number of contexts, the importance of judicial independence, so I am troubled by the prospect of the Government telling judges how to approach these cases. What they really want to tell them is to be less indulgent to rather doubtful claims under Article 8 and perhaps even under Article 3. Putting this into an acceptable or useful format will prove challenging. Nevertheless, I suggest that the Minister owes it to this House to explain at least in general terms what is planned.

Perhaps noble Lords will forgive me for a moment’s personal reflection on this topic. A few years ago I was debating, at the Cambridge Union, the future of human rights in this country and I dared to suggest that we might have to look again at the ECHR. The Labour Peer on the opposite side of the debate told the students that this sort of argument was last heard in 1930s Germany. I tried not to take offence, but I suppose it should be a matter of some modest satisfaction that what was once characterised as a neo-Nazi approach is now to be, or might be, Labour Party policy.

[Lord Hanson of Flint (Lab)]

I am grateful, as ever, for the opportunity to have this discussion. I have to say straight away to the noble Lords, Lord Davies of Gower and Lord Murray of Blidworth, that we are not really going to find common cause this evening on this issue. I suspect that we will have to reflect on this on Report and that we will have a Division in the House. I suspect that we will be on opposite sides in that Division, because this Government are committed to ensuring that we comply with our international law and protect our human rights.

We are committed to the European Convention on Human Rights, which underpins international agreements that we have with partners, including the Good Friday agreement and the France returns agreement. We recognise the importance of an independent and impartial judiciary, going to the points that the noble Lord, Lord Faulks, mentioned, in determining its applications. That does not mean that, at the end of the day, we cannot examine some issues, on which I hope I will satisfy the noble Lord in a moment, in dealing with these matters before us.

I say straightaway to the noble Lords, Lord Davies and Lord Murray, that we will not agree on this. That is where we are. We do not have to withdraw from the ECHR or disapply the Human Rights Act to create what I would call meaningful reforms of our current system and processes. The Government have set out plans to reform the immigration system in the immigration White Paper. We will reform the framework for family migration, including strengthening the public interest test, to take back control—to use the phrase that the noble Lord, Lord Murray, used—over who comes to and stays in the United Kingdom.

I hope to assure the noble Lord, Lord Faulks, that we will legislate to reform our approach to the application of Article 8 in the immigration system so that fewer cases are treated as exceptional. We will set out how and when someone can make a claim. We are also reviewing the application of Article 3—

[Lord Faulks (Non-Afl)]

I know that the Minister is in some difficulty because he has not been given clear riding instructions, but this is a fundamental point for the British public. They need to know the general direction of travel. The Minister has been good enough to be clear that there is no way the ECHR will be deviated from and that there will be no amendment to the Human Rights Act, so how will the legislation be framed so that it changes the courts’ approach, given the Minister’s correct acknowledgement of the importance of the independence of the judiciary?

[Lord Hanson of Flint (Lab)]

Again, this may or may not satisfy the noble Lord—I apologise if it does not do so—but work is under way to review the application of Articles 3 and 8 in immigration cases. We will bring forward legislation on how Article 8 of the European convention is implemented in immigration cases to give courts the further clarity that they need so that our Immigration Rules are respected. As we have always said on migration, we will secure our borders and, if we need to go further, we will. In a sense, I am trying to give the noble Lord clarity by saying that we will reform Article 8 approaches and review the application of Article 3, but that will be in legislation brought before both Houses, which will then be considered and accepted, amended or rejected by both Houses.

The point is that this is where the water—I am not sure whether we should call it blue or red water—between the Government on this side of the Chamber and His Majesty’s Official Opposition exists. I do not see a situation whereby withdrawal from the ECHR or human rights legislation is tenable or desirable or will assist in the processes that noble Lords opposite seek. The agreements that we have with France, the Good Friday agreement and other agreements are dependent on that co-operation on international regulation, supplied and backed up by that legislation.

That may or may not assist the noble Lord, Lord Faulks, but I say to him that the direction of travel is clear: further examination and potential legislation to assess that down stream versus the commitment to maintain our human rights as we have them under the current legislative framework, which noble Lords are trying to disapply with their amendments.

[Lord Faulks (Non-Afl)]

I would be grateful for one final intervention; I hope that the Minister will forgive me, as I appreciate that it is late. The Labour Party had 14 years in opposition to disagree with the policies of the coalition and the Conservative Party, yet now, more than a year later, there is nothing in the border security Bill before us—and there has been nothing in any manifesto—about rewriting Articles 8 or 3. Why has it taken so long?

[Lord Hanson of Flint (Lab)]

We are identifying challenges that the Government have responsibilities to identify and work on. The challenges that we are identifying exist for some of the reasons mentioned by the noble Lord, Lord Davies. Issues to do with applications of Articles 3 and 8 are causing some challenges.

That does not mean we have to withdraw from human rights or ECHR legislation. We can either work with further UK amendments, to support changes to that legislation while retaining the spirit of the law that we apply, or—I was going to go on to say this before taking the intervention—actively engage with our European partners and the Council of Europe to consider what international reforms could restore the right balance between individual rights and wider public interest in controlling migration. As the noble Lord will know, this is a shared challenge. The basic rights set out in the ECHR and Human Rights Act are still valid today, but this does not mean that it is a static, permanent document that cannot be looked at in certain areas. As I have said, work is under way on reviewing the application of Articles 3 and 8 in immigration cases.

[Lord Murray of Blidworth (Con)]

I am grateful to the Minister for giving way. In this new piece of legislation on Articles 3 and 8, will the Home Office be able to certify in its new Bill that the new provision will be compatible with the convention rights, or will it certify that they are not?

[Lord Hanson of Flint (Lab)]

I suggest that the noble Lord tests me on these matters when we have, as I have said, undertaken the work, reviewed potential legislation, brought forward proposals and put them before both this House and the House of Commons. Either I or a Minister in the House of Commons will have signed the Bill at that stage, in terms of those issues, but we are a number of steps away from that.

At the moment, we have assessed—this goes back to the point that the noble Lord, Lord Faulks, mentioned—that Articles 3 and 8 have some challenges, but the principle is not to do what the Opposition seek, which is to withdraw from this in its entirety and, in doing so, withdraw from a range of international obligations that we share with many countries and which underpin the work of this United Kingdom in so many areas. That is not my natural approach to this challenge. With due respect to noble Lords, let us have that debate and, if need be, let us have that vote at some point. We will be on different sides of that argument.

To the noble Lord, Lord Faulks, I say this: bear with us. We will bring forward the points that I have tried to make in tonight’s debate on Articles 3 and 8. They will be examined when the Government have had an opportunity both to examine them in detail—now that we are in government, as opposed to being outside the tent in opposition—and to bring forward proposals that will help in a way that builds consensus with our partners on what ECHR reform could look like. At the recent European Political Community Summit, 17 nations, including the UK, agreed to work together to ensure that the ECHR and other international frameworks are implemented in a way that safeguards against abuse so that Governments can tackle modern challenges.

The UK is committed to complying with international law. If we accepted the amendments from those opposite, we would not be, in my view, complying with international law. That includes implementing judgments of the European court and complying when it indicates binding interim measures in pending cases; when the court has reformed and improved its approach to interim measures, which I currently welcome, we will abide by those also.

In summary, I hope that the noble Lord, Lord Faulks, can be patient. To the noble Lords, Lord Davies and Lord Murray, I say this: I am sorry that we are not going to agree, but I hope that I have explained the reasons why.

[Lord Davies of Gower (Con)]

My Lords, as expected, that created a good discussion on the amendments in this group; I am thankful to the noble Lords who took part in it. I am disappointed that, after all the legitimate deportations that have been blocked, the Government are still resisting these sensible proposals—if not, perhaps, a little confused by the Government’s variety of views as to where they are going with this.

I shall not detain the Committee for much longer, but I must stress that the Human Rights Act is not supporting or upholding the rights and freedoms that it was meant to enshrine. The Human Rights Act has become a shield behind which criminals, terrorists and abusers hide. We are clear that this is not at all right.

Let us not forget that varying degrees of this policy are supported by many of those on the Government’s own Benches. The noble Lord, Lord Blunkett, has publicly called for the Government to suspend parts of the ECHR to allow for more illegal migrants and foreign criminals to be deported. Another former Labour Home Secretary, Jack Straw, has proposed decoupling human rights laws from the ECHR to permit more deportations. I note that the Government have committed to reforming how Article 8 is interpreted under UK law and we have heard that commitment again from the Minister. But the simple fact is that this is not sufficient. If we reinterpret Article 8, crafty defence lawyers will find a workaround for the new interpretation or will start using other provisions of the Human Rights Act to block deportation. We say that only a wholesale repeal will resolve the issue of vexatious legal challenges and allow us to regain control of our asylum system.

23:00

Now is the time for us to look beyond the letter of the law to see its effects in practice. The Home Secretary was right when she said that the current situation is making a mockery of our laws. But it does not have to be this way; we have presented the Government with a solution, which is here in black and white. We can put an end to this madness; the Government just have to be brave enough to listen. This is an issue that we will return to on Report, but for now I beg leave to withdraw the amendment.

Amendments 189A and 189B (to Amendment 189) not moved.

Amendment 189 withdrawn.

Amendments 190 to 203E not moved.

Amendment 203F

Moved by

[Lord Murray of Blidworth]

203F: After Clause 48 insert the following new Clause—
“Upper Tribunal (Immigration and Asylum Chamber)(1) All judgments of Upper Tribunal (Immigration and Asylum Chamber) must be published on a Government website within three days of being made.(2) Judgments published under subsection (1) may be anonymised to the extent considered necessary by the Tribunal.”

[Lord Murray of Blidworth (Con)]

My Lords, Amendments 203F and 203G deal with the publication of tribunal decisions. First, I thank my supporters in this amendment, the noble Lords, Lord Faulks, Lord Jackson of Peterborough and Lord Alton of Liverpool. These amendments deal with an important issue and I should outline what the current position is in relation to the publication of judgments.

In the First-tier Tribunal (Immigration and Asylum Chamber), decisions of the judges are not routinely published. In the Upper Tribunal, which hears appeals from the First-tier Tribunal (Immigration and Asylum Chamber), decisions are published, although not all decisions may be reported. Bearing that in mind, I then invite the Committee to note that the noble and learned Baroness, Lady Hale, sitting judicially in the case of Cape Intermediate Holdings v Dring, 2019, United Kingdom Supreme Court 38, found that the purpose of the open justice principle was twofold.

The first purpose is to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that judges are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken. The First-tier Tribunal (Immigration and Asylum Chamber) is one of the largest of the seven chambers of the First-tier Tribunal. Of the other chambers, the Tax Chamber, the Property Chamber, formerly the Lands Tribunal, and the General Regulatory Chamber, which deals with Information Commissioner matters, among other things, all routinely publish their decisions on the website. Furthermore, the Employment Tribunal, which, although not part of the First-tier Tribunal, is a tribunal of even jurisdiction, also publishes all its decisions on the website. But the First-tier Tribunal does not do that. Its decisions are made behind what is effectively a curtain of secrecy.

This is no small number of cases. In 2020-21, the First-tier Tribunal (Immigration and Asylum Chamber) disposed of 20,000 appeals. In 2021-22, it disposed of 41,000 appeals. In 2022-23, it disposed of 38,000 appeals and in the last year we have numbers for, 2023-24, it was 39,000 appeals. It will come as no surprise that it is plainly in the public interest to have openness and transparency of decision-making. There should be public scrutiny of the decision-making of the First-tier Tribunal (Immigration and Asylum Chamber). There is no basis for there not being transparency and publication of judgments of the First-tier Tribunal.

It is of course open to litigants in the First-tier Tribunal to apply to the tribunal for an order that the identity of everybody in the case be anonymised in the decision, so no risk to anyone participating in the case would be occasioned by the publication of the decision. The Supreme Court, in the case of Kambadzi in 2011, made it clear that, while anonymity needed to be justified in each case, there is now an expectation that in asylum cases there are frequently anonymity orders. So there is no argument that the non-publication of First-tier Tribunal decisions is to protect the people participating in the cases. There is, in fact, absolutely no coherent basis for not publishing these decisions, and this is made all the worse because there is very significant public interest in this decision-making.

I venture to suggest that the judges of the First-tier Tribunal would welcome the additional openness and transparency. We hear cases reported in the press: for example, the famous “Case of Theresa’s cat”, as it was called in the Daily Mail, and the “Chicken Nuggets Case”. We can all think of cases which have been reported by reason of matters which are identified as amounting to a breach of Article 8 or Article 3 of the convention. If the decisions were published in an accessible way on the internet, like all the other decisions in the other tribunals I listed, the press could immediately go to the decision and see whether that particular feature was, in fact, decisive in the decision-making.

And it cuts both ways. Not only would it be open to a journalist or researcher to analyse the methods by which decisions are taken by the judges of the First-tier Tribunal; they could analyse it by reference to the individual judge. Allegations of bias may be rebutted, or indeed it may be found that particular judges are refusing all cases. It does not favour one side of the argument or the other; it is simply fair and appropriate that these judgments be published.

The only reason which I can discern that these decisions are not published at present is that it has been the practice hitherto. Since 2007, on the formulation of the First-tier Tribunal (Immigration and Asylum) chamber, there has been a practice direction. There is nothing in statute, and the judges one speaks to can see no good reason why those decisions are not published. We know the tribunal service can manage it, because it manages it in the tax chamber, the property chamber, the general regulatory chamber and in the employment tribunal; it is the same tribunal service. Furthermore, it has all the judgments electronically in any event, so there is no cost argument and no process argument.

This is an amendment whose time has come. The Government should accept it at this stage and appreciate that this is something that warrants careful consideration. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, it is not obvious how there could be any sensible objection to this group of amendments. They are all concerned with open justice. There are many well-known judicial utterances about the importance of this, as we have heard from the noble Lord, Lord Murray, quoting the noble and learned Baroness, Lady Hale. I like a recent one from a Scottish judge, Lord Carloway, who said this:

“Open justice has two key elements. The first is that proceedings are heard and determined in public. The second is that the public should have access to judicial decisions, including any reasons given for them and the identity of the parties. As a proxy for the wider public, the media have an important role. Reporting on court and tribunal cases is vital to ensuring public confidence in the justice system and the rule of law. The public would lose confidence in the courts if they could not understand what decision had been reached and why it had been reached”.


The 188-page report from the noble Lord, Lord Wolfson, has already been mentioned on more than one occasion. Referring to these decisions, in paragraph 48 he said this:

“A further difficulty in this area is that many of these decisions are not reported, making accountability difficult, and often these only come to light on appeal to the Upper Tribunal”.


There, he is referring to the First-tier Tribunal. In paragraph 50 of the same report, he said

“there may well be low-quality decision making going on in the initial stages, much of which is never corrected”.

In whose interests can it be to keep these decisions out of the public domain? For those who defend the decisions, they can illustrate the point; for those who attack them, they will have much better evidence. It cannot seriously be doubted that the decisions at the moment are of particular importance. Please can the public know what is being decided and why?

[Baroness Lawlor (Con)]

My Lords, I have a short intervention. If the First-tier Tribunal is open, as I understand from my noble friend Lord Murray it is, I see no reason for not allowing publication in the interests of confidence in our tribunal system.

[Lord Sandhurst (Con)]

My Lords, the amendments in this group raise a serious and important issue. As we have heard, tens of thousands of decisions of real importance to both the individuals and the wider public go unreported every year. We on this side are most grateful to my noble friend Lord Murray of Blidworth for bringing these amendments and to the noble Lords, Lord Faulks, Lord Jackson of Peterborough and Lord Alton, who unfortunately is not well at the moment, for their support for them.

23:15

I echo my noble friend Lord Murray of Blidworth’s explanation of why such judgments should be published. It was a matter of some astonishment to me when I learned that this was the position. As has already been mentioned during Committee, clarity, openness and accurate information are all very important. It is a principle of good government that information is accessible to voters and the wider population so that everybody knows what is being done in their name. Is it going seriously to be argued that the public should not know what decisions are being taken and what are the reasons of the judges? Is it to be argued that this is too awkward or expensive? If so, we ought to have chapter and verse and know exactly what the hurdles are which will prevent such publication, above all because it prevents misreporting and bias.

We need to be aware of what is going on in these tribunals. We need to know that the system, like all other parts of the court system, operates transparently, openly and honestly. It is a duty we owe to everyone in this country. I am glad that these amendments recognise the importance of clarity and transparency and how important it is that this information is provided in a timely manner.

We need to be honest and open about the fact that the situation which we face today is not what the architects of human rights law and immigration law intended. No one foresaw, as has been said several times in this Chamber today, that mass migration and instant communication would exist as they do today, let alone that international criminal gangs would be exploiting the position. Over time, protections and defences have been stretched. Some on this side of the House would say they have been distorted. Labour’s Human Rights Act has become a tool which forces our courts not simply to interpret United Kingdom law through the changing lens of the so-called living instrument of Strasbourg but to change the meaning of some laws entirely. It is a matter of very real concern for us on these Benches. This sort of lawfare puts our national security and sovereignty at risk.

This concern is not confined to us in this place. We need wider confidence in the system to deliver the border security that I believe everyone in this Chamber feels is seriously wanting. I will not dwell on the more controversial matter at hand—the nature of the appeals system and the continued existence of the immigration and asylum chamber of the tribunals. Suffice it to say that, as long as these courts and tribunals exist, transparency in respect of their judgments is absolutely necessary. It is a core plank of our judicial system and I cannot think of any serious lawyer who would argue against it. It is a vital mechanism by which we can trust what is proceeding and allow the public, and above all Parliament, effective oversight. Not least, it will ensure that the press have a proper eye to what is going on and can report and ensure that the law is being upheld as it was originally intended. I commend these amendments to the Committee.

[Lord Katz (Lab)]

My Lords, I thank the noble Lords, Lord Murray of Blidworth and Lord Faulks, for their Amendments 203F and 203G, which seek to introduce mandatory publication of immigration and asylum judgments from the First-tier Tribunal and the Upper Tribunal. I agree that accountability and transparency are absolutely vital for building trust and credibility in the immigration system. However, it remains the case that the judiciary is responsible for decisions on publishing individual judgments, including judgments of the immigration and asylum chamber of the First-tier Tribunal. The Government do not consider it necessary to legislate to change the current arrangements.

Members of the public and the media can still apply to the First-tier Tribunal for a copy of the judgment in a specific case, and the request will be considered by the president of the immigration and asylum chamber of the First-tier Tribunal. On the other hand, judgments of the immigration and asylum chamber of the Upper Tribunal, which determines appeals against First-tier decisions on points of law, are already routinely published online. Appeals to the Upper Tribunal are made on points of law, meaning that these decisions are likely to be of most interest and use to practitioners of the law and to the public through the lens of media outlets. Given the status quo, we see no reason to change it, and we feel that it is not simply a matter of transparency but of independence of the judiciary—

[Lord Murray of Blidworth (Con)]

I thank the Minister for giving way. Is it the Government’s position that they would like to see the publication of these decisions, but it is a matter for judges to decide? Or is it the Government’s position that they would not like to see the publication of these decisions? If it is the former, what are the Government going to do to encourage judges to make that change, if they will not accept this amendment?

[Lord Katz (Lab)]

Members of the public or any interested parties can apply to have decisions of the First-tier Tribunal published, and it is the case that that can be decided by members of the judiciary. We see no reason—to sidestep the binary choice the noble Lord presents—to enforce that position on the judiciary.

[Lord Sandhurst (Con)]

How does a member of the public ask about a decision and say, “Can you publish a decision in this case?”, if they do not know the name of it and do not know that it has been decided? The whole point of this exercise and these amendments is so that they are all there and you do not have to know about a case; you can look at a case and you say, “That is an excellent decision” or “That is an interesting decision” or “That is a very strange decision”. But if you do not know that the decision has been made, because you are sitting there like we all are here, how are you going to know to ask for it, other than to ask for every single decision to be published?

[Lord Katz (Lab)]

I remind noble Lords that, in April 2022, the National Archives and the Ministry of Justice launched Find Case Law, which is an online service allowing everybody to access freely accessible court judgments and tribunal decisions.

It remains the case—I suppose it ill behoves me to point this out, but this is something that the Opposition Front Bench is a sudden convert to—that, in various passages of immigration law that the previous Government put through your Lordships’ House, Members opposite could have made this proposal. It is convenient that they have now decided that this is a worthy thing to do.

I do not think it is unfair to suggest that people with an interest in accessing judgments can make the application. Those persons are most likely to be interested journalists or other legal practitioners. I am sure that it is the case that, despite some of the other tribunals that the noble Lord, Lord Murray, enumerated for us, such as the land tribunal, just because it is openly accessible that does not mean that everybody is regularly searching through it.

We see no reason to change the status quo; it is for the judiciary for decide whether to publish decisions. This suited the previous Government, and this suits us as well. That is why I ask the noble Lord, Lord Murray, to withdraw his amendment.

[Lord Faulks (Non-Afl)]

The noble Lord said that it “suits us”. What does that mean? Is he happy with a situation where the general public do not know, because the previous Government apparently did not make much of a fuss about this? Is that what he is saying?

[Lord Katz (Lab)]

No, I am simply saying that cases in the Upper Tribunal are regularly published, which are the cases that present the most case law which is actually of use to legal practitioners and of interest to the media and the public. We should protect the independence of the judiciary in being able to make its own decisions about it.

[Lord Faulks (Non-Afl)]

I have one further question, if I may. We understand from the Minister’s colleague that there is likely to be legislation coming telling tribunals how they should make these decisions and how, in particular, they should perhaps be changing their approach to Article 8 and Article 3. In order to inform themselves as to how this is going, in terms of the First-tier Tribunal, would it not be rather useful if the Government at least knew what they were deciding on a regular basis?

[Lord Katz (Lab)]

It would probably ill behove me to predicate my answer on legislation that I have yet to see. As and when we get to the passage of that legislation, we can perhaps revisit this conversation, and he might want to bring back my words to haunt me, but as it currently stands, I cannot talk about legislation that, frankly, I have not seen.

[Lord Murray of Blidworth (Con)]

I thank the Minister. I am obviously familiar with how difficult life can be at that Dispatch Box, and I have a great deal of respect for the Minister, who is of course deputising for the noble Lord, Lord Hanson. However, I am afraid his answers were not very satisfactory. In fact, if you had asked a First-tier Tribunal judge whether they would accept submissions made on the basis that “We like it how it is”, I suspect that you might get short shrift.

Therefore, although I am of course content to withdraw the amendments for now, I anticipate that we will bring them back on Report. I anticipate that this House will pass these amendments—it is obviously very interested in open justice and in the publication of judgments—so the world can see how our human rights decisions are made in immigration claims. Would the Government really try to overturn this in the House of Commons on the basis that “This is how it has been done, so we will leave it”? I find that difficult to believe. I beg leave to withdraw the amendment.

Amendment 203F withdrawn.

Amendments 203G to 203K not moved.

Amendment 203L

Moved by

[Baroness Lawlor]

203L: After Clause 48, Insert the following new Clause—
“Refusal of certain asylum claims (2)(1) The Secretary of State must declare an asylum claim or a human rights claim made by any person to whom this section applies inadmissible.(2) Subsection (1) applies to a person who—(a) entered the country on a student visa, and(b) made the asylum claim more than two days after entering.(3) A claim declared inadmissible under subsection (2) cannot be considered under the immigration rules.(4) A declaration under subsection (3) that a claim is inadmissible is not a decision to refuse the claim and as such no right of appeal under section 82(1) (right of appeal to the Tribunal) of the Nationality, Immigration and Asylum Act 2002 arises.(5) For the purposes of this section, the Human Rights Act 1998 does not apply.(6) A declaration under subsection (3) is final and not liable to be questioned or set aside in any court.”

[Baroness Lawlor (Con)]

Amendment 203L, on the refusal of certain asylum claims, seeks to exclude asylum claims made after two days from those who entered the country on a student visa. The aim is to prevent the abuse of the system, whereby those entering on the student visa to study on a course in the UK—perhaps, or perhaps not, in good faith—subsequently make an asylum claim.

The figures are significant. Of the 111,000 claims made in the year ending June 2025, the highest figures since comparable records began in 1979, apart from the 43,600 which came on small boats, 41,000 came from those who entered the UK on a visa or other leave with relevant documentation, including an electronic travel authorisation to visit from 2024 onwards. Of those, 14,800 were on a study visa, so well over one-third of the 41,000 claimants were on a visa or entered on another type of permission.

23:30

The problems to which visa swapping gives rise are many, and I will touch on those arising from a person switching from a student visa to an asylum claim. First, there are problems for the academic institutions. Universities, other higher education institutions and some colleges or schools will lose out when places become empty. When a course is abandoned after it starts, and it is too late to fill a place with another student, there are a number of costs. It is demoralising for students and staff to have half-full classes. Indeed, the very dynamic of interactive teaching often depends on having a good number of students present, and that is prepared for. A significant overhead is also lost—not only is it costly to organise classes and timetables to suit different demands but fee income is lost. It is on fee income that a university’s fees may depend.

Although this is not part of the debate, the impact of an abandoned place ultimately places strain on the ability of universities to keep going and will require significant overheads in juggling the type of courses offered with the numbers taking up a course and likely to stay the course. This may affect the wider communities of local and not-so-local students who now travel daily from home to attend. They may find courses cut and institutions closing because of default. Here I speak of those universities, as an example, to which many students now commute daily because it is cheaper for them not to pay accommodation costs. It is a great way for students who come from a family background with no experience of a university education to become the first in their families able to afford the fees, go to classes and finish their degrees. They sometimes travel, as I have seen, many miles on the train when commuting daily. They may lose their courses, because the planning has been such that, ultimately, the course must close.

Secondly, the asylum system itself suffers in relation to its ability to focus on those fleeing for their lives and liberty, some of whom come on safe and legal routes, including those we have already discussed in Committee. With 111,000 asylum claims in the year ending in June 2025, the UK’s asylum system is overstretched, despite all the great efforts the Government are making to try to clear it and deal with asylum claims.

As well as the processing of claims and the investigation each claim needs—the administrative overheads, the appeal system, dealing with or otherwise deporting those whose appeal fails and the additional headache of trying to get home countries to take them back—there are other costs, including, for instance, those incurred in asylum support for housing. The escalation of numbers has meant that the Government have not been able to close asylum hotels as they intended. There are just too many asylum seekers to be housed, while other accommodation such as rented flats and houses, some in multiple occupancy, is also overstretched. Local councils and police forces have their work cut out for them— on straitened finances, as we now know to our cost—in meeting the demands of an influx of asylum seekers dispersed across the country as a result of government policy. Many of them are made up of entrants who were formerly on student visas and who then claim asylum.

Finally, there is the taxpayer who pays the bill and is facing rising taxes, with a significant proportion of public funds diverted from the services for which they pay to fund the overhead. Just to refresh our memories here, £27.9 million was spent by the Home Office in 2024-25 for asylum support and resettlement, with accommodation costs of £4.53 billion, another £1.2 billion for the Migration and Borders Group, another £0.36 billion on immigration enforcement and so on.

We are now talking about a significant cohort of asylum claimants who place a cost on this country in many ways: on its universities, on the system itself and on the taxpayer. Given the significance of the costs to those groups—universities, the system and taxpayers—there are strong reasons to disallow claims from people who entered on a student visa. My amendment would none the less allow those desperate to escape imprisonment or worse for their political or religious views to make an asylum claim, provided it was made within two days of arrival, as, for instance, might happen with a Hong Kong person had there not been that scheme for safe and legal entry.

In all, it gives a workable solution to a serious problem which has a wide impact on universities, communities and the taxpayer. I understand that the Government recognise this problem and hope to tackle it, but I hope this amendment will be helpful towards a solution. I beg to move.

[Lord Murray of Blidworth (Con)]

Perhaps I may add one brief point in support of my noble friend’s amendment. The statistics clearly show that the abuse of student visas by people who come here, have a period as a student or as a purported student, and then choose to try to extend their time here by claiming asylum is a significant problem. The amendment would force a genuine asylum seeker to lodge their claim once they reached the safe country of Britain, and two days is plenty of time to do that. On their arrival, they can make that claim for asylum. Having this rule in place would provide a significant deterrent for those who seek to abuse our asylum system in an attempt to extend their stay in the United Kingdom. For that reason, I certainly support this amendment.

[Lord Sandhurst (Con)]

My Lords, I shall speak broadly in favour of Amendment 203L, tabled by my noble friend Lady Lawlor. At its core, this amendment seeks to prevent the abuse of the student visa route by using it as a back door to asylum. This recognises an important principle. Those who enter the United Kingdom in one set of circumstances should not then be permitted to rewrite those circumstances once they have got here.

A student visa is granted on trust. It is granted to those who come here to study, not to those who claim asylum. When someone applies for such a visa, they do so on the clear understanding that they are entering this country for educational purposes. If, once here, they make an asylum claim that was not mentioned at the point of entry and, indeed, do so days, weeks or months later, they are by definition acting under false pretences unless there is a good reason for it—and I will come to that in a moment. The asylum system exists to protect those who are genuinely fleeing persecution, not to reward those who seek to manipulate our visa system for other ends. Where individuals apply dishonestly, where they misrepresent their reasons for coming to the United Kingdom, we cannot simply turn a blind eye and reward that deception with the right to remain.

On this side, we on the Front Bench have a qualification: we cannot be blind to the fact that circumstances in someone’s home country may change after arrival. A student in the United Kingdom on a student visa may find that, in their absence, their home country becomes unsafe for them personally to return. They may therefore become eligible for asylum during the time they are in the United Kingdom on a student visa.

The amendment as drafted prevents any asylum claim being made if someone has entered on a student visa. That is a strong prohibition. If this were clarified in some way, with a carve-out for those who can establish that the situation has genuinely changed in their home country while they are here, we would commend consideration of an amendment to address that situation. So I ask my noble friend Lady Lawlor to consider whether the amendment should be redrafted.

For their part, the Government must stop the abuse of student visas under the current system. They should equally ensure that, in the appropriate but, I hope, reasonably exceptional circumstances where there has been a genuine change, such people are protected.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Lawlor, for Amendment 203L. I am also grateful for the latter point made by the noble Lord, Lord Sandhurst, because it is very possible that someone arrives as a student and finds that the situation in their home country has changed since their arrival. I remember that, when I was at university, which is an awfully long time ago now, there were students who arrived when there was one regime in Iran and left when there was another regime. The flexibility to which the noble Lord, Lord Sandhurst, referred is very important, and this is one of the particular holes—dare I say it?—in the proposal brought forward by the noble Baroness, Lady Lawlor. However, I have to say that there are several more holes in the argument that she put forward. If I point those out to her as part of this debate, I hope she will accept them in good faith.

The amendment seeks to widen the scope of existing inadmissibility powers, so that any claim made by a holder of a student visa that was lodged more than two days after they arrived in the UK must be declared inadmissible. We had a large debate on inadmissibility on day 4 of the Committee, and we considered five amendments then. This is a very late amendment to this discussion, so we have had limited time to consider it. However, it is not an approach the Government consider appropriate.

The likely consequence of the amendment, as well as that pointed out by the noble Lord, Lord Sandhurst, would be to refuse to admit claims to the UK’s asylum system, but without any obvious way in which to return individuals who make those claims. It would leave affected individuals in a state of limbo, with no certainty as to whether they qualify for refugee status or whether they should be returned to their home country. On the basis of that contention, it could prove both costly and ineffective.

Furthermore, in affording a more favourable position to those students who claim asylum within two days of first arriving in the UK, the amendment also risks benefiting those students who are more likely to have deliberately used the visa system as a way to access the UK’s asylum system.

The Government cannot support the amendment. I respectfully suggest that it does not achieve the objective that the noble Baroness proposed, and it is certainly open to the wide hole which the noble Lord, Lord Sandhurst, pointed out to the Committee today. So I ask the noble Baroness to reflect on what the noble Lord said and, in general terms, to withdraw the amendment.

[Baroness Lawlor (Con)]

I am grateful to the noble Lords who spoke in the debate and particularly to my noble friend Lord Sandhurst for spotting this. I had thought about it in respect of other amendments, but I did not include it in this one, and that is indeed a gap—I agree with the Minister. Certainly, if I am to bring it back on Report, I will take account of that.

But my overall position remains that, with provision for the problems pointed out by my noble friend Lord Sandhurst, I really cannot see that we can tackle the problem of visa switching by those who enter in, or not in, good faith. There are indeed reports of students who came here and fraudulently deceived the university authorities, saying they would take a course when they subsequently admitted that they had no intention of doing so. This is a problem, and we have no way of dealing with it. Unless we crack down quite strictly on people claiming asylum when they have no reason to other than a desire to stay in this country, and when they have made this clear subsequently—it is clear from the evidence—then we will not tackle this problem. It is very grave for our universities, student communities and taxpayers. So I will consider this. Perhaps I can work something out with my noble friend Lord Sandhurst. I hope to bring this back again on Report.

Amendment 203L withdrawn.

23:45

Clause 49: Articles for use in serious crime

Amendment 204

Moved by

[Lord Davies of Gower]

204: Clause 49, page 47, line 14, leave out “5” and insert “14”
Member’s explanatory statement
This amendment seeks to standardise the punishment for offences relating to articles used in serious crime in this clause with the punishment for offences relating to articles used in immigration crime in clauses 13 and 14.

[Lord Davies of Gower (Con)]

My Lords, this is a simple group with some simple amendments. As we are close to reaching the end of six rather long days of Committee on this Bill, I will be brief. Amendment 204 seeks to standardise the punishment for offences relating to articles used in serious crime in Clause 49 with the punishment for offences relating to articles used in immigration crime in Clauses 13 and 14.

It is slightly strange that Part 3 has found its way into this Bill. The provisions around serious crime prevention orders and articles for use in serious crime were part of the previous Government’s Criminal Justice Bill, which unfortunately fell due to the election. Although it is welcome that this Government are taking these provisions forward, it would have made more sense to include them in the upcoming Crime and Policing Bill, which we will consider later this week, rather than in an immigration and border security Bill. But, since these clauses have found their way into this Bill, there is good reason to consider them holistically as part of the general measures aimed at deterring immigration offences. That is what the amendments in this group aim to achieve.

Amendment 204 therefore changes the maximum period of imprisonment for possession of an article for use in a serious crime from five years to 14 years. This would be the same as the maximum imprisonment for the new offences of supplying or handling an article for use in immigration crime. Similarly, Amendments 204A and 204B would expand the class of applicants for a serious crime prevention order to include the directors-general of Border Force and Immigration Enforcement, as well as the Border Security Commander. This would permit those senior officials to apply for these prevention orders as part of their duties in protecting our border security and enforcing immigration laws.

Amendment 208B would expand the definition of a “serious crime” for the purposes of the Serious Crime Act 2007. Currently, the only crime under any of the immigration Acts considered to be a serious crime is the offence of assisting unlawful immigration and helping an asylum seeker enter the United Kingdom. If a serious crime prevention order can be given for these offences, why can one not be given for all offences under Sections 24 and 24A of the Immigration Act 1971? Certainly, why can one not be given under the new immigration offences in Clauses 13 and 14 of this Bill?

These amendments, taken together, are intended to strengthen the ability of the authorities to tackle immigration crimes by giving them the necessary legal tools. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendment 207 in this group. I agree with the noble Lord, Lord Davies of Gower, that it is rather odd that the serious crime prevention provisions are in this Bill. I wondered whether it is because the Crime and Policing Bill was “overloaded”—would that be the term to use? But that is the extent to which I agree with the noble Lord.

I am not alone on these Benches: the noble Lord, Lord Paddick, and I have raised a number of times over the years our concern about civil orders morphing into crime without any finding of guilt. The Bill extends serious crime prevention orders with the inclusion of electronic monitoring and the creation of interim orders, extends the list of parties who can apply for an order—the noble Lord, Lord Davies, would extend it further—and gives the Crown Court jurisdiction in this area. So it will be no surprise to anyone who has heard us before to see this amendment.

It is not only the extensions that make the need for a review all the more important. There is very little evidence or data, if any, to show that the orders work. They overlap with other orders, so there is some confusion. There is inconsistency in their use, which I have become very aware of in the context of modern slavery and human trafficking, where it became clear that some police forces were not even aware that they could pursue equivalent orders. There is a lack of resourcing and infrastructure to monitor and enforce orders. Breaches are common, which is not surprising, because individuals do not have adequate support to comply with the restrictions and requirements that orders can contain and so, as has been put to us, they are set up to fail.

The Joint Committee on Human Rights made recommendations with regard to these provisions:

“Given the severe infringement on the right to privacy posed by the imposition of electronic monitoring, the test should be one of ‘necessity and proportionality’, not whether it is ‘appropriate’”,


and,

“To ensure respect for Convention rights, the prosecuting authorities and the courts must be careful to only seek and impose these interim orders where risks are imminent”.


Rather than proposing those provisions specifically, we on these Benches feel that it would be helpful and important for there to be a review of prevention orders in the round before we make piecemeal additions to them, and a review would certainly extend to the issues of necessity and proportionality.

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

My Lords, I am grateful to the noble Lords, Lord Davies and Lord Cameron, in the first instance, if I may, for their careful consideration of these new provisions and for tabling Amendment 204. I recognise that the amendment stems from a shared commitment to robustly address serious crimes. With regard to objectives, I think we are largely on the same page here. I am hoping that I am going to be able to explain why the provisions are framed as they are in a way that will satisfy the noble Lords.

This amendment seeks to align the sentencing framework for this new offence with that of Clauses 13 and 14, which deal with articles intended to for use in immigration crime. The articles for use in immigration crime offences require that the individual charged knew or suspected that what they were supplying or handling was for use in immigration crime. People, such as smuggling gangs, know that, although the items involved may be very everyday items, they are being supplied and sold to vulnerable people, and in doing so they contribute to the tragic loss of life at sea and in the back of refrigerated lorries. This is a serious crime leading to endangerment and loss of life and, as such, combined with the mens rea threshold, the sentence is set appropriately and proportionately high.

By contrast—this is the distinction, because it relates to both the amendments that I want to clarify—the new offence in this clause targets items that are rarely if ever used for lawful purposes. There is a strong justification in the Government’s view for shifting the evidential burden in those cases. I will come in a moment to the question of reviewing and monitoring that was raised by the noble Baroness, Lady Hamwee. For example, where someone is found with a 3D firearm template or a pill press, the suspect will need to demonstrate a lawful purpose, which will obviously be very difficult. Standardising the punishment across these two offences would ignore those important differences and, with that in mind, while I understand the intent behind the amendment and the seriousness with which we take the commitment to address the issues in both immigration crimes and serious crime prevention orders, I urge the noble Lord to withdraw the amendment at this stage.

Turning now to the amendment tabled by the noble Baroness, Lady Hamwee, I am grateful to her and the noble Lords, Lord German, Lord Davis and Lord Cameron, for their careful scrutiny of these provisions and for tabling Amendments 204A, 204B, 207 and 208B. Amendments 204A and 204B, tabled by the noble Lords, Lord Cameron and Lord Davies, propose expanding the list of agencies that can apply for a serious crime prevention order to include Border Force, Immigration Enforcement and Border Security Command. I reassure the noble Lords that the Government share their intention to ensure that front-line agencies can apply directly to the High Court for an SCPO and therefore remove some of the difficulties. That is why the Bill is already expanding the list of agencies to include the police in all cases, as well as the National Crime Agency, HMRC, Ministry of Defence Police and British Transport Police. It is likely that, in many cases where criminal proceedings are not being pursued, these agencies, in our view, will be best placed to lead the process of applying for an SCPO as they will already have an in-depth knowledge of the case.

However—I come to the point of the amendment from the noble Lord, Lord Davies of Gower—to add these three Home Office commands to this list would be ineffectual. That is because we believe they are not resourced to monitor and enforce SCPOs effectively. Rather, their focus is rightly on protecting the UK’s border while working alongside law enforcement agencies. I think we are suggesting that, without stating it too baldly, there is a conceptual difference in our mind between border security and pursuing that and law enforcement and monitoring that. We think their focus should be on protecting the UK’s border while working alongside law enforcement, such as the National Crime Agency, referring cases and sharing intelligence as appropriate. Therefore, on that basis, I ask the noble Lords not to press their amendment.

Amendment 207, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, proposes the appointment of an independent reviewer to conduct a formal review of the use of civil orders to prevent serious crime. I should start by saying that the concerns set out by the noble Baroness, Lady Hamwee, are ones that I clearly understand. I know that there is a long history of raising such concerns, particularly those around civil powers morphing into criminal penalties. So I take seriously and understand the concerns that are being raised, and I reassure the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, that the Government are committed to accountability and oversight in this area. We recognise that these are serious powers and we want them to be used, as the noble Baroness has suggested, in a proportionate way.

SCPOs already have built-in safeguards—they must be applied for by relevant authorities and authorised by the High Court or the Crown Court, and they are subject to appeal—but we will monitor the effectiveness of the orders. As I have said, they are serious orders, and this is a serious change in order to address the problems that we are discussing. We will therefore monitor through detailed data collection, including rates of compliance with orders, breach proceedings and related enforcement actions. That data will be analysed not only for operational insight but to help to shape future policy.

We believe that the proposal in the amendment would duplicate, or at least overlap with, existing oversight and reporting provided on existing civil orders. For example, in relation to terrorism prevention and investigation measures, these already form part of the statutory remit of the Independent Reviewer of Terrorism Legislation, who provides an annual report to Parliament, as well as the Government publishing the annual Counter-terrorism Disruptive Powers Report, which provides transparency on the use of such powers.

On slavery and trafficking risk and prevention orders, our ambition is to ensure that law enforcement agencies have the right tools and use them to pursue perpetrators, prevent modern slavery and protect those at risk. Although we will always keep under review the effectiveness of all our tools for disrupting serious crime, the Government believe that placing a statutory requirement for an independent reviewer would introduce additional bureaucracy without clear operational benefit. We believe that the current oversight framework strikes the right balance between judicial scrutiny, operational effectiveness and proportionality. I therefore urge noble Lords not to press their amendment.

Amendment 208B, tabled by the noble Lords, Lord Cameron and Lord Davies, seeks to increase the list of offences for which an SCPO may be imposed to include illegal entry; obtaining entry by deception; and the new offences in this Bill of the supply and handling of articles for use in immigration crimes, to which I have already referred. As I have said, SCPOs are a powerful and flexible tool, and we do not in any way minimise the seriousness of what we are doing here. These orders are made under Part 1 of the Serious Crime Act 2007 and are used by law enforcement partners to manage and disrupt some of the most harmful individuals involved in serious and organised crime, including organised immigration crime. The orders allow agencies to monitor and place restrictions on individuals without a conviction in a way that would not otherwise be possible, as the noble Baroness, Lady Hamwee, noted.

Given the seriousness of this, in order to impose an SCPO, the court must have reasonable grounds to believe that the order would protect the public from serious crime. Illegal entry or entry by deception do not in themselves represent behaviour or activity that would require public protection in the same way as existing offences in Schedule 1, such as firearm or drug supply offences, do; this goes to the point made by the noble Baroness, Lady Hamwee, about proportionality. The Government do not, therefore, consider them suitable for inclusion at this time.

With regard to the new offences of supplying and handling articles for use in immigration crime, we recognise that the noble Lords, Lord Cameron and Lord Davies, are making an important suggestion. However, at this stage we do not feel there is evidence to suggest that extending SCPOs to cover them would deliver any serious, tangible benefits. These offences are entirely new in their nature and it is therefore more proportionate to first implement them, monitor how they operate in practice and then assess whether further measures are needed.

The Home Office will work closely with law enforcement partners post-implementation to evaluate whether the addition of these offences to Schedule 1 would materially bolster the response to dismantling organised immigration crime networks. I reassure the noble Lords that should evidence emerge that these measures would be beneficial, the Government have the ability to widen the list of offences in Schedule 1 through secondary legislation.

I hope that I have given the noble Lords, Lord Davies of Gower and Lord Cameron, some reassurance on the seriousness with which we all take this and that I have given the noble Baroness, Lady Hamwee, some reassurance on the proportionately and safeguards that we are introducing with these changes. On that basis, I ask the noble Lord to withdraw. I should add a clear commitment that we will keep the House updated, both on the issues of the seriousness of the offences which the noble Lords, Lord Davies and Lord Cameron, have raised and on the proportionality question.

[Baroness Hamwee (LD)]

My Lords, that has to some extent answered the point I was going to make, but the noble Lord has made me realise that we missed a trick in not seeking to leave out the power to extend these provisions, as he has just mentioned. He said that the use will be monitored and that there will be data. I take it that that will be published. Will the evaluation of the monitoring be published, because monitoring without assessing what is going on is not terribly helpful? Does it fall within the reporting to the House? He may not in a position to answer that this evening—or rather this morning—but perhaps he can write to me on that.

[Lord Lemos (Lab)]

I am very happy to write on that point but, speaking as a practitioner of the dark arts of evaluation, I am generally in favour of its publication.

[Lord Davies of Gower (Con)]

My Lords, I thank the noble Lord for his response and will be very brief in closing this group. The amendments considered here all focus on provisions drafted by the previous Government and continued by this one, so it is not surprising that I support them. My amendments in this group do not signify my opposition to these clauses of the Bill. Rather, they serve as suggestions to further improve and expand the ability of immigration authorities to combat immigration crime—although I perhaps take issue with what the noble Lord said in respect of Amendment 204B. Perhaps that is a debate for another time. I understand his view on this and I beg leave to withdraw.

Amendment 204 withdrawn.

Clause 49 agreed.

Clauses 50 to 53 agreed.

Schedule 2 agreed.

Clause 54: Applicants for making of orders and interim orders

Amendments 204A and 204B not moved.

Clause 54 agreed.

Clauses 55 and 56 agreed.

Amendments 205 to 207 not moved.

Amendment 208

Moved by

[Lord Berkeley]

208: After Clause 56, insert the following new Clause—
“Duty to enforce maritime safety in United Kingdom waters or the UK search and rescue region(1) The Secretary of State must take all reasonable steps to enforce the provisions of Part IV of the Merchant Shipping Act 1995 (safety) against any migrant vessel operating in United Kingdom waters or the UK search and rescue region that is dangerously unsafe and being used to transport persons to the United Kingdom.(2) The Secretary of State must issue guidance to maritime enforcement authorities (including the Border Force, His Majesty’s Coastguard and Maritime & Coastguard Agency) about the exercise of powers under sections 95 and 98 of the Merchant Shipping Act 1995 (detention of, and offences relating to, dangerously unsafe ships) in relation to migrant vessels in the English Channel.(3) It shall be the duty of any designated maritime enforcement authority to act in accordance with the guidance issued under subsection (2) and to cooperate in the detection, detention and prosecution of migrant vessels and persons who commit an offence under section 98 of the Merchant Shipping Act 1995 (owner and master liable in respect of dangerously unsafe ship) in respect of a dangerously unsafe migrant vessel.(4) For the purposes of subsection (1)—“dangerously unsafe” has the meaning given in section 94 of the Merchant Shipping Act 1995;“migrant vessel” means a ship being used for the unlawful or clandestine carriage of persons by water with the intention of facilitating their entry into the United Kingdom (whether or not those persons intend to claim asylum);“ship” has the meaning given in section 313 of the Merchant Shipping Act 1995 and includes any small boat or other vessel used in navigation for carrying persons by sea.”Member’s explanatory statement
This amendment seeks to impose a clear duty on the Government to leverage existing maritime safety law as a deterrent against dangerous small-boat crossings in UK waters.

[Lord Berkeley (Lab)]

My Lords, in moving Amendment 208 in my name and that of my noble friend Lord Dubs, I will also speak to my Amendment 208A. This is a rather odd end to this part of the Bill, but it relates to the issue of saving lives across the channel, regardless of whether the people whose lives may be saved are asylum seekers, illegal immigrants, people in fishing boats who have sunk, or whatever. It comes from a very interesting report that I received earlier this year from Captain Matthew Schanck, Integrated Maritime Policy for Managing Maritime Migration in the English Channel: A Comprehensive Approach. If my noble friend has not read it, he can have my copy when I have finished with it. The captain raises two issues, both of which need further study.

The first is that we have a duty in this country to save people’s lives if they are at risk in the sea. The Merchant Shipping Act 1995 already prohibits taking dangerously unsafe vessels to sea, with quite severe penalties—two years’ imprisonment and £50,000 fines, I believe. Of course, this would cover most if not all of the vessels that come across, which many people want to try to deter, shall we say. What amazes me—perhaps my noble friend can confirm this—is that there seem to have been no prosecutions since the 1995 Act, apart from one, of a gentleman called Ibrahim Abah, which led to an arrest but under different merchant shipping legislation. Those people who are coming across in whatever vessel in whatever direction for whatever purpose should have a safe captain or skipper on board, and if they do not, they are liable for prosecution. Perhaps my noble friend will be able to inform me why there have not been any prosecutions, as far as I can gather.

The second amendment relates to search and rescue—SAR—enabled boats, which I am afraid are not fit for purpose. At the moment, the Royal National Lifeboat Institution does a wonderful job, mostly from the Dover lifeboat station, picking people up out of the sea, as does the coastguard, the security ships and things like that, but it is very difficult picking large numbers of people out of the sea, as some noble Lords will know. We have nothing that makes that particularly easy. Captain Schanck produced some very interesting statistics. Greece has 250 SAR-enabled boats, 8,000 staff and 8,500 miles of coastline. Italy has a similar number. We have no SAR-enabled boats, 400 staff, who of course are all shore based, and a 7,700-mile coastline. I am not being critical of the coastguard, because it does a fantastic job, as does the RNLI, but it lacks the right equipment and control to do the job properly. One example is that the coastguard, which is responsible for co-ordinating rescue, has no ships of its own, so it has to call on other ones.

Reading Captain Schanck’s excellent paper, one suddenly realises that, yes, there is a lifeboat, but getting people to climb over the side of a lifeboat when they are in their 50s, or 100s, is actually very difficult. It is possible to procure or build specialist SAR equipment when it is necessary, which they have done in other countries, but we have not. My noble friend will probably say—if he is still awake and listening to me; I am sorry about this—“Well, who is going to fund this new equipment?” I think the coastguard should be put in charge of all the rescue arrangements, including having the equipment to deal with it.

00:15

Some years ago, I got involved with a previous Minister over who paid for the lighthouses around the country. It must have been nearly 100 years after the Republic of Ireland got independence, but UK ship owners and shipping lines were still paying the cost of maintaining the lighthouses around the Republic of Ireland. When I challenged the Minister on this, she said that they were not very keen to talk. Well, they wouldn’t be, would they? Since then, it has improved; it has been done.

There should be a small addition to the dues system, which all ships coming into the UK would have to pay. According to Captain Schanck it would be about £900 per ship call. That would fund enough for craft to be able to rescue people from the sea in a safe manner. Why they are in the sea, what they are doing there and what we do with them is nothing to do with this proposal. It is something to give the coastguard real control over everything that goes on and to give the poor old lifeboat people in Dover a little bit of rest from their very hard work.

I am not expecting the Minister when he responds to say, “Yes, it is a wonderful idea and we will do it tomorrow”, but I hope he will at least consider it and see if it is a way of saving lives. I do not care whose lives they are; that is something completely separate, but you still have a duty to save lives. On that basis, I beg to move.

[Lord Davies of Gower (Con)]

My Lords, I will deal with Amendments 208 and 208A tabled by the noble Lords, Lord Berkeley and Lord Dubs. I begin by saying that we on these Benches agree very much with the underlying principle: the importance of taking action against those who endanger lives at sea.

We appreciate the passion behind this amendment. Indeed, I fully appreciate it, having been a maritime Minister. That is a principle that we have strongly supported. Indeed, it is one already reflected in the amendments we have tabled to this Bill. There can be no doubt that the small boat crossings in the channel are dangerous, reckless and exploitative. Time and again we have seen the devastating consequences of criminal gangs putting men, women and children into overcrowded and unseaworthy boats, knowing full well the risks to life that this involves.

However, this amendment as drafted, we believe, is flawed. It appears to rest on an assumption that some of the vessels are safe and some are not, and that it is the task of enforcement authorities to distinguish between the two. That is not a distinction that exists in reality. The simple truth is that one endangers lives at sea purely in the act of getting into one of these boats in the first place. Every single vessel making an illegal crossing of the channel is, by definition, dangerously unsafe. Everyone involved in launching or boating those vessels, from the organisers to the passengers, is participating in an inherently perilous act which should be treated as such under the law.

We cannot afford a situation in which authorities must first determine whether a vessel is dangerously unsafe before intervening. We cannot wait for tragedy to occur before action can be taken. The legal position must be absolutely clear: all such crossings are unsafe, unlawful and unacceptable. That is the principle that underpins the approach that we have advocated throughout this Bill and the one that we believe that the Government must continue to uphold.

On Amendment 208A, I appreciate the noble Lord’s intention to ensure effective co-operation between the Border Force’s maritime command and His Majesty’s Coastguard. However, it is not clear that the creation of an additional co-ordinating body, as this amendment proposes, would make any practical difference on the ground. The Border Force and the coastguard already operate under well-established protocols for joint working through the Joint Maritime Security Centre. We must trust the professionals on the front line, the experts in the Border Force and the coastguard, to exercise the powers granted to them safely, responsibly and in the national interest.

The answer to the challenges in the channel lies not in expanding bureaucracy or creating new administrative structures but in ensuring that the powers and resources that we have already legislated for are used effectively. Both these amendments proceed from understandable and serious concerns, but in our view the right way forward is not to introduce new uncertainty into the law nor to create additional layers of oversight but to maintain clear, firm principles—that all small boat crossings are inherently unsafe and that those charged with policing them must be trusted to act decisively and professionally to prevent loss of life and secure our borders.

[Baroness Hamwee (LD)]

My Lords, I was intrigued to know what points the noble Lord, Lord Berkeley, was going to raise. After listening to him, it occurs to me to ask the Minister whether HM Coastguard is a partner authority under Clause 3 of the Bill:

“a public authority with functions in relation to threats to border security (whether exercisable in the United Kingdom or elsewhere)”.

Of course, partner authorities have a duty to co-operate with the Border Force commander—so I am asking about context.

[Lord Hanson of Flint (Lab)]

I am grateful to my noble friend Lord Berkeley for bringing forward his amendment and for taking the care to put on record in Committee the concern that he has on behalf of those people who are, sadly, dying or being put at risk at sea. I can give him the assurance that, if he wants to pass me Captain Schanck’s report at some point, I shall make sure that it is put into the system so that we can examine the detail and, if there are issues to which I can respond post that, I shall certainly do so.

The purpose of this Bill is several-fold, but there are two particular examples in the Bill that are of importance in relation to what he has put on the table before the Committee. The first is the role of the Border Security Commander, which I shall come on to in a moment—and will, I hope, answer the points that the noble Baroness, Lady Hamwee, has raised as well. But I draw his attention to Clause 18, which we considered earlier, which provides a specific new offence of endangering another during sea crossings to the United Kingdom.

Amendment 208 would introduce a duty to take all reasonable steps to enforce provisions of maritime law relating to the safety of vessels in relation to small-boat migrant vessels, and to introduce guidance on maritime powers. As the noble Lord, Lord Davies, said, I do not think that it is responsible for us to regulate the use of small boats across the channel; our job is to smash the gangs and the business model that is driving people to use those small boats. But there is also—and I hope that it is helpful to my noble friend to say this—existing maritime law in force. We should use all tools available, legislative or otherwise, to address unsafe vessels and particularly to deal with the protection of crew, passengers and other water users for whom small boats can also provide some concern and danger for life at sea.

Turning to Amendment 208, the strengthening of the border command is important, and this goes to the point made by the noble Baroness, Lady Hamwee. The new border command established by the Bill is responsible for co-ordinating border forces, maritime command and His Majesty’s Coastguard for the purposes of border security. The Border Security Command established by the Bill provides strategic cross-system leadership across current and future threats, not just for Border Force, but for all agencies playing a vital role in protecting our borders and going after the people-smuggling gangs. That is, I think, the spirit of what the amendment is seeking, and that is what Border Security Command is trying to do.

In addition, my noble friend will be aware that the Joint Maritime Security Centre, established in 2019, is designed to co-ordinate and consolidate maritime security activity and information under the sponsorship of the Home Office Border Security Command, but also involving the Department for Transport and the Ministry of Defence. The JMSC is the UK’s centre of excellence for maritime security. I have myself had meetings at its headquarters in the past 12 months. It provides 24/7 monitoring and reporting of global waters, it plans the response to maritime events, and it looks at UK global maritime threats and sanctions-related understanding. To achieve this, the JMSC engages with a range of national and international maritime security partners, including military and law enforcement partners, and will also discuss with voluntary organisations such as the RNLI what is happening in the channel. So I understand why my noble friend has brought this amendment forward, but I argue that the new body would be essentially a duplication and is not required. The Border Security Command will be drawing together expertise across the border security system to ensure effective collaboration and a strong response to border security threats, building on the expertise and collaboration of relevant local agencies.

I say again to the noble Baroness, Lady Hamwee, that in relation to Clause 3, DfT is on the board of the Maritime and Coastguard Agency, so there is that link and the assumption is that there will be close co-operation.

I am grateful to my noble friend for bringing this amendment forward. I will certainly make sure that the Home Office Minister responsible for this policy area gets sight of the report referred to, but I hope that, with those assurances, my noble friend is able to withdraw his amendment.

[Lord Berkeley (Lab)]

My Lords, I am very grateful to my noble friend for his comprehensive responses, which I shall read with great interest. On first reflection, it all sounds like a positive way forward, although I will have to investigate whether the right equipment is being procured and used, because people cannot rescue large numbers of people floating in the sea if they do not have the right equipment. But on that basis, I am very grateful to him and to other colleagues who have responded, and I beg leave to withdraw my amendment.

Amendment 208 withdrawn.

Amendments 208A and 208B not moved.

Clauses 57 to 59 agreed.

Clause 60: Regulations

Amendment 209 not moved.

Clause 60 agreed.

Clauses 61 and 62 agreed.

Amendment 210 not moved.

Clause 63 agreed.

House resumed.

Bill reported with amendments.

House adjourned at 12.29 am.