Border Security, Asylum and Immigration Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Monday 13th October 2025 Lords Chamber

[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.

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[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.

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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.

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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.

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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.

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[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.

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[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.

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[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.

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[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.