Border Security, Asylum and Immigration Bill

Tuesday 11th November 2025 Lords Chamber

Report (4th Day)

Scottish, Northern Ireland and Welsh legislative consent granted.

15:34

Amendment 59

Moved by

[Lord Browne of Ladyton]

59: After Clause 48, insert the following new Clause—
“Amendment to Section 59 of the Illegal Migration Act 2023(1) Section 59 of the Illegal Migration Act 2023 is amended as follows.(2) In subsection (2), for paragraph (a) substitute—“(a) for subsection (1) substitute—“(1) The Secretary of State may declare an asylum or human rights claim made by a person who is a national of a State listed in section 80AA(1) inadmissible.”;”.(3) In subsection (2), after paragraph (c) insert—“(ca) in subsection (4) after “considered” insert “or if the failure to consider an asylum or human rights claim would contravene the United Kingdom’s obligations under the Human Rights Convention”.”. (4) In subsection (3), after subsection (4) of the inserted section 80AA of the Nationality, Immigration and Asylum Act 2002 insert—“(4A) The Secretary of State must by regulations amend the list in subsection (1) so as to remove a State if the Secretary of State is satisfied that the statements in subsection (3)(a) or (b) are no longer true of a state or territory, or part of a state or territory, in relation to a description of person.(4B) In deciding whether the statements in subsection (3)(a) or (b) are no longer true of a state or territory, the Secretary of State must have regard to the circumstances and information listed in subsection (4)(a) and (b).(4C) A description for the purposes of subsection (4A) may refer to—(a) sex,(b) language,(c) race,(d) religion,(e) nationality,(f) membership of social or other group,(g) political opinion, or(h) any other attribute or circumstance that the Secretary of State thinks appropriate.”.”Member’s explanatory statement
This amendment alters the amendments made by section 59 of the Illegal Migration Act 2023 to sections 80A and section 80AA of the Nationality, Immigration and Asylum Act 2002. It turns the duty into a power, to declare as inadmissible a human rights or asylum claim, which may not be exercised if the failure to consider a claim would contravene the UK’s obligations under the ECHR. It also creates a duty to remove States from the Safe States list, if they are no longer safe.

[Lord Browne of Ladyton (Lab)]

My Lords, Amendment 59 is in my name and those of the noble Lord, Lord Cashman, and the noble Baroness, Lady Hamwee, whom I thank for their support. I also thank the noble and learned Lord, Lord Hope of Craighead, and the noble and right reverend Lord, Lord Sentamu, again for their support in Committee, during which I proposed a repeal of Section 59 of the Illegal Migration Act 2023.

I proposed that we bring to an end the proposition that states may be declared safe despite the objective evidence that they are not. I explained why there should be no blanket ban on considering human rights claims when such claims have nothing to do with a state’s safety and everything to do with family unity, ties of dependency and the best interests of children. I have no doubt that banning all family claims of European wives seeking to live with their British husbands and children—when American wives, for example, would face no such impediment—will make us no friends in Europe. However, Section 59 of the Illegal Migration Act 2023 does precisely that. It extends what was a minimal pre-existing duty to declare asylum claims from EU nationals inadmissible to also cover human rights claims from EU nationals and a much wider list of states that the former UK Government called safe.

Despite these anomalies, noble Lords will recollect that I did not push my amendment to repeal Section 59 to a vote. Instead, I promised to return to the issue. From my noble friend the Minister’s response, I understand the Government’s position to be that the retention of Section 59 is worthwhile, given the flexibility it offers in ensuring that unmeritorious claims do not unnecessarily absorb limited resources. However, in my noble friend the Minister’s response to the debate on this amendment he said, in particular to the noble Lords, Lord Cameron and Lord Davies, that the Government are wary of inadmissibility duties that could result in,

“a rapidly growing number of people whose claims would be inadmissible”,

who then

“would be in a holding position, unable to be removed, including those with genuine claims”. —[Official Report, 3/9/25; col. 825.]

For the reasons my noble friend set out, Section 59 inevitably will gather in its net fish we do not intend to catch, including those with meritorious human rights claims whom we cannot lawfully remove. Therefore, although I appreciate that there must be a mechanism to manage claims fairly and efficiently, that mechanism, given the Minister’s own words, is clearly not Section 59 in its current form.

Amendment 59—I assure noble Lords that the numbering is an unintentional coincidence—is an attempt to helpfully suggest to the Government how they might turn Section 59 of the Illegal Migration Act 2023 into something workable and operationally useful. It would alter rather than repeal Section 59. It would further the Government’s objective of keeping a mechanism on the statute book that might be used to increase efficiency while ensuring that it can be operated lawfully and in a manner that does not breach fundamental human rights should the Government ever wish to implement it.

To this end, the amendment would do three simple and minimal things. First, it would turn what would be an unworkable duty to declare claims inadmissible into a workable power so to do. Interestingly, by coincidence, such a change is in harmony with Clause 38, which scraps other unworkable duties in the Illegal Migration Act. In creating a workable power, our amendment would free the hands of the Secretary of State to give her true flexibility over when and in relation to whom the power is exercised. If the Minister disagrees with our amendment, I should be grateful if he would clarify when and why a statutory duty gives greater operational flexibility than a statutory power. If the Minister is able to give an example, that would be greatly helpful to noble Lords.

Secondly, our amendment would provide the simplest and most minimal of safeguards. By “inadmissibility”, the Government are saying, “We do not wish to even consider this claim”. All this amendment would do is say, “You need not consider it if to fail so to do would not result in the UK breaching its obligations under the human rights convention”, a convention to which our Government have committed to remaining a party. Undoubtedly, the courts will not presume that it is the Government’s intention to breach their international law obligations. Rather than leaving the murkiness of exceptional circumstances to save the Government from illegality, it would be much simpler if we—and by “we” I mean Parliament—were to write what we mean in the statute book, rather than hoping that what we mean will be read by the courts into the legal uncertainties of a non-exhaustive list of exceptional circumstances.

I appreciate that if Section 59 were ever fully commenced, the Government would have to issue guidance giving their interpretation of exceptional circumstances, but such guidance is not an aid to statutory interpretation. As this Government intend to comply with their human rights convention obligations, a proposed minimal safeguard should not pose any obstacle to them. However, it would provide guardrails should future Governments have different intentions—and that may be a possibility that is nearer than we would like to think.

If this Government do not intend to implement Section 59, they should amend it if they will not repeal it. If they intend to implement it, they must be prepared for litigation and to be tied up in the courts for the rest of this Parliament trying to explain whether it is compliant with human rights and what they mean by exceptional circumstances. Woolly exceptional circumstances should not be made to do all the hard work and be interpreted expansively to comply with human rights. That will only bring unnecessary criticism down upon our human rights framework and overcomplicate the matter for our courts. I suggest that a matter as important as this should not be left to guidance to be interpreted by the Government of the day. It is our job, it is Parliament’s job, to set the appropriate boundaries. If the Minister disagrees with me on this point, I should be grateful if he would clarify how the exceptional circumstances test would apply to EU nationals making private life claims or even seeking entry to live here with their families. Would they really be considered only exceptionally or would they be considered as a matter of course? How about Georgia? Would protection claims from Georgian nationals be considered only exceptionally? What further exceptional circumstances would the Government need simply to admit the two above claims?

Thirdly, and finally, the amendment would create a simple mechanism for a state to be removed from the safe state list. If the Secretary of State considers that it is no longer safe in general or safe for a recognisable section of the community, in this amendment we have listed the descriptions of persons who may be unsafe because of their sex, language, race, religion, nationality, membership of a social or other group, political opinion or any other appropriate attribute or circumstance. Only truly safe states should be on the list at all. This again would further operational efficiency as it would ensure that caseworkers need not make hard case-by-case decisions about whether to declare a claim inadmissible when the Government already consider that the state generally is unsafe or ordinarily unsafe for minorities. Fortuitously, the Government have already agreed to undertake a continuous review of the safety of the states on the list and to remove from the list states that are no longer safe. Therefore, this amendment is wholly in line with their commitment.

15:45

Also, I urge the Government, if they resist legislative amendment to the status quo, to consider how future Governments might behave and whether they might share in the Government’s commitment continuously to review safety. If future Governments wish to act as if unsafe states are safe because they were added to a list once upon a time, we must be able to have a proper debate in this House. I need not remind noble Lords of the tortuous fiction that followed Rwanda being added to a list of safe states. No state should be legislated as perpetually safe. I know that this Government recognise that fact. Therefore, in Section 59 it is only logical for there to be a clear safety valve, a reviewing mechanism, to avoid repetition of the idea of a state once designated as safe being for ever deemed safe.

I urge my noble friend the Minister to consider these three practical recommendations. This Government need not retain and be haunted by unworkable and performative provisions by past Governments if their intentions are operational flexibility, upholding our obligations under the human rights convention and balancing efficiency against the need for fairness, I beg to move.

[Lord Cashman (Non-Afl)]

My Lords, I will speak in support of Amendment 59—to which I have added my name, along with the noble Baroness, Lady Hamwee —which was moved so effectively and powerfully by my noble friend Lord Browne of Ladyton. In Committee, I spoke about the importance of our amendment then, and the amendment before your Lordships today reflects changes which we believe will make it attractive to the Government, as well as being a balanced and effective approach; I hope the Government will agree with that opinion.

As has been said, once fully commenced, Section 59 of the Illegal Migration Act would make far-reaching amendments to the general inadmissibility of asylum and human rights protection claims from EU and other nationals introduced by the Nationality and Borders Act 2022. We believe this will likely result in violations of the United Kingdom’s international human rights obligations.

As my noble friend said, in Committee our Amendment 104 sought to repeal Section 59 of the IMA in full. It was widely supported and I was particularly pleased by the intervention of the noble and learned Lord, Lord Hope of Craighead, following my recognition of the importance of the 2010 Supreme Court judgment in HJ (Iran) v Secretary of State for the Home Department. As noble Lords will know, he was one of the justices in that case. The concern in Committee and the concern now is about the efficacy and legality of Section 59 of the Illegal Migration Act as currently drafted. The Government have made it quite clear that they believe that Section 59 of the IMA must be retained, hence why we have tabled this new amendment which looks to make changes to Section 59 with the intention of ensuring that it can provide the flexibility that the Government may require, but in an effective and legal manner that has as few unintended consequences as possible.

To put it briefly, the amendment would turn the duty of the Secretary of State into a power. It clarifies the exceptional circumstances test and provides an effective mechanism for the management of the safe states list and the removal of states which are no longer safe. Importantly, it would enable the United Kingdom to uphold the Human Rights Act and the European Convention on Human Rights and would therefore be less likely to be challenged within the courts.

To be safe, a state must be a place

“where its citizens are free from any serious risk of systematic persecution, either by the state itself or by non-state agents which the state is unable or unwilling to control”,

and free from a serious risk of persecution in general. That is from the 2015 Supreme Court judgment in R (on the application of Jamar Brown (Jamaica)) v Secretary of State for the Home Department.

As I said in Committee:

“There can be no general safety presumption if there is a risk of persecution to even one recognisable section of a community”.—[Official Report, 3/9/25; col. 802.]


In relation to the HJ (Iran) Supreme Court judgment, the hard-won legal rights for LGBTQI+ refugees are meaningless if the safety of states does not account for their safety. Such refugees will have to hide fundamental parts of their identity if they cannot leap over the “exceptional circumstances” test currently in place, and are sent back home in contravention of that judgment. But, surely, even if their claims are declared inadmissible this Government will not send them home, forcing them to live in hiding in a state that the UK has called safe but is not in reality safe for them. I therefore look to the Minister to reassure me on that point.

If there is a real risk that a person would suffer inhuman and degrading treatment upon return to their home country, it would be a breach of their human rights to fail to rigorously scrutinise their claim. I believe that such claims must therefore be considered. This means that if the wider inadmissibility test is to be kept, it must be altered. Similarly, hard-won gay marriage rights will mean little if we must still show exceptional circumstances before a national of a safe country may be permitted to live here with their British or settled partner.

These are some of the reasons that we have added to the exceptional circumstances test the requirement for the Government to consider these claims if a failure to consider them would breach the human rights convention—arguably, a minimal safeguard to ask for. I hope the Government will have the courage to do the right thing: accept their human rights obligations and adopt this amendment or, at the very least, further reflect upon it and our submissions. I look forward to the Minister’s response.

[Lord Sentamu (CB)]

My Lords, I supported this amendment in Committee. It has been quite improved and I therefore agree with the comments of the noble Lords, Lord Browne and Lord Cashman. I do not want to go over what they have said because they put the case clearly.

It must be welcome that this amendment would turn

“the duty into a power, to declare as inadmissible a human rights or asylum claim, which may not”

in the end

“be exercised if the failure to consider a claim would contravene the UK’s obligations under the ECHR”.

That to me is the nub of it and, therefore, the Secretary of State, instead of simply having a duty, would actually have a power to do something about it. There is an ability, under the Human Rights Act sometimes, for people to know that this has been breached—but who should then put it right? It seems that this Bill gives the opportunity to turn a duty into a power.

The amendment would also do another thing. It would create

“a duty to remove States from the Safe States list, if they are no longer safe”.

To have a list over which you cannot have the power or duty to do that can really prolong a misnomer. When people may have come from some places that were safe yesterday, but tomorrow are no longer safe, it seems to me that the Secretary of State needs to be given the duty to do so, because we are living in a world that is so changeable.

When South Sudan became independent everybody was full of rejoicing. I was involved with a lot of asylum people coming to Uganda, because I was hearing cases as a judge up in the north. After the sheer carnage that went on in South Sudan, where people’s lives were ruined and destroyed for so many years, peace came and everybody rejoiced. Who would have believed that it would not be long before warring factions were tearing that country apart? The carnage in Darfur was quite unbelievable.

Then what happened? Sudan was being ruled by a real dictator, but then that Government were overthrown, and overnight law and order began to collapse. It was not very long before two warring factions were tearing that country apart. Yes, we hold the pen on behalf of the United Nations, but, my friends, we almost do not have the wherewithal to deal with such brutality.

Therefore, a country that was safe a few months ago could suddenly end up in a real mess. We created a list of safe countries under that Act, so the Secretary of State should have the duty to remove such a country when it is judged to no longer be a safe country. This amendment is in keeping with that. I am very grateful to the Government for saying how much they are going to be ruled and governed by the rule of law. There is nothing here that is not supported by the rule of law, so I support this amendment.

[Lord German (LD)]

My Lords, I will be very brief. First, I apologise on behalf of the noble Baroness, Lady Hamwee, who is still not well. I know that she would have intended to support this amendment as it is now. The noble Lord, Lord Browne, has presented us with a very neat solution to a problem that the Minister espoused in Committee. He has also sought—and I think this is the whole purpose of the amendment—to make sure that previously unworkable and satisfactory legislation is converted into something that has a sense of purpose and direction, and which is understandable and has clarity and definition within it.

In reply to my question in Committee as to why the Government are retaining Section 59 of the Illegal Migration Act, the Minister said that it would be right

“to retain the flexibility to expand the use of inadmissibility in the event that we see asylum claims from individuals from countries that we would generally consider safe”.—[Official Report, 3/9/25; col. 825.]

That was the reason given for retaining that particular section.

I think the noble Lord, Lord Cashman, has just expressed the issue with the words “generally safe”. There are many countries that may be safe for some people but not for all people. The one that currently sticks out an absolute mile is Georgia. If someone has any political thought that has nothing to do with Georgian Dream, they will be imprisoned. I have lost count of the number of politicians who I—and, I know, other noble Lords in this House—have met, who said that the day after we met them they would be going back to go to prison because they were going to be arrested, simply because they were politicians who were elected by the people but who did not speak on behalf of the Government, and who were speaking out against the Government. While “generally considered safe” means that it is generally safe to send people to Georgia, we would be absolutely wrong to send somebody who had a political opinion, because we know the disgraceful ways in which politicians have been treated in that country.

In conclusion, this amendment is a worthy solution to a problem that has been identified. In the context of the Government wanting to retain Section 59 of the Illegal Migration Act, they have before them a workable solution to make sense of it and convert it from an unworkable, unsatisfactory position into something that is exactly the opposite. We on these Benches commend it.

[Lord Cameron of Lochiel (Con)]

My Lords, I thank the noble Lord, Lord Browne of Ladyton, for his amendment and for his submission today, which I listened to carefully, on the case for this change. I have a great deal of respect for him and I acknowledge the intentions behind this amendment, the general issues of which we explored in Committee. That said, I regret that we cannot support his amendment—I do not think that will come as a massive surprise to him—because it would, in our view, weaken the Nationality, Immigration and Asylum Act 2002, which was amended under the previous Government. We are clear that those who come from safe countries should not be able to make asylum or human rights claims. Consequently, we cannot agree with the noble Lord’s attempt to downgrade the duty under Section 80A to a power that “may”, rather than “must”, be exercised by the Secretary of State.

16:00

Despite that, his amendment rightly draws the attention of your Lordships’ House to the list of safe countries under Section 80AA, and that is an important part of the Act. To conclude, I simply ask the Minister a couple of questions about that list. Do the Government have plans to expand the list to better reflect the number of safe countries there are across the world? Will he set out the process of engagement that exists between the Foreign Office and the Home Office to ensure that that list is kept up to date?

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

I am grateful to my noble friends Lord Browne of Ladyton and Lord Cashman for the amendment today, and to the noble and right reverend Lord, Lord Sentamu, for his support. I was pleased to have the opportunity to meet my noble friend outside the House to hear his concerns at first hand. I again wish the noble Baroness, Lady Hamwee, all the best for a speedy recovery and return to this place.

Amendment 59 seeks to change the way in which Section 59—that is confusing, I know—of the Illegal Migration Act 2023 would, if fully commenced, amend the inadmissibility provisions of Sections 80A and 80AA(1) of the Nationality, Immigration and Asylum Act 2002. I am grateful to my noble friends for the consideration they have given to this matter and I acknowledge the importance of the issues raised.

As my noble friend has said, Section 59 of the Illegal Migration Act has not been fully commenced. The Government have been clear that we are retaining it to allow for flexibility—that goes to the point that the noble Lord, Lord German, made—in its future implementation in a way that best assists us to address the significant challenges brought by asylum and migration.

Section 59 itself will, if commenced, amend Section 80A of the Nationality, Immigration and Asylum Act 2002, with the effect that the existing inadmissibility provisions in respect of asylum claims made by EU nationals will extend to human rights claims made by nationals from a wider list of countries set out in Section 80AA(1) of that Act. The first part of the amendment in my noble friend’s name seeks to change the duty at Section 80A to a power, and to add an explicit provision allowing the power to be exercised only where it would not result in a person’s human rights being breached. I understand why my noble friends Lord Cashman and Lord Browne of Ladyton put forward this amendment, but, as I hope to explain, it is not necessary and could prevent us implementing Section 59 in a different, more robust way.

Those bringing this amendment are aware of the provision currently set out in Section 80A of the 2002 Act which displaces the duty to declare an EU asylum claim inadmissible in the event that exceptional circumstances are identified. Although Section 80A(5) sets out some examples of when an exceptional circumstance will arise—currently in respect only to certain EU claims—these examples are not exhaustive or indeed rigid. Exceptional circumstances can already be applied more broadly, on a case-by-case basis, to ensure fairness and lawfulness in all EU asylum claims, and well-established case law already sets this out very clearly.

If Section 59 is commenced in its current form, updated policy guidance will be published to set out clearly how the exceptional circumstances safeguard should be applied for all claim types, taking account of the different considerations due in asylum and human rights claims. This will allow us to robustly and promptly process unmeritorious asylum and human rights claims at the earliest juncture, but—and this is the important point that goes to my noble friend Lord Cashman’s point—whenever necessary, it will allow us to divert claims from inadmissibility action and instead consider them substantively, ensuring that individuals’ rights under the refugee convention and the European Convention on Human Rights are maintained. It is not our objective to not have those rights upheld.

This amendment seeks to impose a duty for the Secretary of State to remove a country from the list at Section 80AA(1) of the Nationality, Immigration and Asylum Act if that country no longer satisfies the rules in that section. I say to my noble friend that the intent of this amendment is clear and commendable. It is well understood—this goes to the point made by the noble and right reverend Lord, Lord Sentamu—that countries’ conditions may change, and that may mean that a country previously assessed as safe can no longer be regarded as such. It is for that reason—the noble Lord, Lord Cameron of Lochiel, was seeking further clarification on the power in Section 80AA(6)(b), under which regulations to remove countries from the list can be made—that if Section 59 of the Illegal Migration Act is commenced in its current form, and the list at Section 80AA(1) has effect, it is unquestionable that a country assessed to be unsafe would be removed from the list by the Secretary of State under regulation. In the short term, however, ahead of regulations being made in such cases, the exceptional circumstances safeguard would apply, displacing that inadmissibility duty and allowing the claim to be considered substantially.

Noble Lords have asked why we are keeping inadmissibility under Section 80A of the Nationality and Immigration Act as a duty, rather than a power. While the exceptional circumstance provision does admit a measure of discretion, allowing for individual risks or changes in circumstance to be taken into account, the overall duty provides for greater consistency and focus in processing such claims.

I hope that, following the meeting I have had with my noble friend on the issues that he has raised and the debate that we have had today, I have reassured him that although his points are valid, they are covered by the discretion in the legislation currently in place. I hope he will withdraw his amendment.

[Lord Browne of Ladyton (Lab)]

I thank noble Lords who have participated in this short debate. I am particularly grateful to my noble friend Lord Cashman for his contribution to the debate and his continued support on these matters. I thank the noble and right reverend Lord, Lord Sentamu, for repeating the points he made when we debated this in Committee very powerfully. I thank the noble Lord, Lord German, on behalf of the noble Baroness, Lady Hamwee. I would be grateful if he would wish her well in these circumstances and thank her for her unstinting support.

I thank the noble Lord, Lord Cameron of Lochiel, for his personal comments. I am disappointed, as he expected I would be, but not surprised at his contribution to the debate. I recollect that, in Committee, although there were numerous contributions from the Conservative Benches behind him, not one speaker supported the provision in Section 59 of the IMA. Today, there are no speakers at all from his party on the Benches behind him even to support it by their presence, if not by their contribution to the debate.

Behind these amendments is not my legal brain—which has been relaxed for many years—but advice that I got from an expert in the Immigration Law Practitioners’ Association. I thank them very much for their support.

I am disappointed by my noble friend’s response. I have no intention of dividing the House on this issue, but I reserve the right to keep it open for the next stage of deliberation. I ask my noble friend, who is generous with his time and support, whether he will reflect on—I think that is the phrase used—the implications of the provisions that I have put before the House and why they are a better resolution to the challenges of Section 59 than the view of those who support him.

I should have thanked my noble friend for his willingness to meet me and others to discuss this. We did our level best to find the time on a very busy day last Wednesday to have that meeting. It probably lasted for about three or four minutes, while I was out of the room—if I remember correctly, I was voting, but then I was voting almost every minute of every day last week. Would it be possible between now and the next stage of deliberation on this Bill to have a meeting at a time when those who have been advising me and those advising him can sit in the same room for a reasonable period of time to go through the implications of the differing approaches?

As I say, I do not intend to divide the House on this matter and therefore withdraw this amendment.

Amendment 59 withdrawn.

Amendment 60

Moved by

[The Lord Bishop of Chelmsford]

60: 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) A good character requirement must not be applied in a manner contrary to the United Kingdom’s obligations under—(a) the Convention on Action against Trafficking in Human Beings,(b) the Convention on the Elimination of all forms of Discrimination Against Women,(c) the Convention on the Elimination of All Forms of Racial Discrimination,(d) the Convention on the Rights of the Child,(e) the Statelessness Conventions,(f) the Human Rights Convention,(g) the Palermo Protocol, and(h) the Refugee Convention.(2) When considering whether a person (P) meets a 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 published by the Secretary of State and in force at the time of such entry or arrival.(3) In this section—“a good character requirement” refers to the requirement or consideration that an adult or young person, applicant, or person who applies for naturalisation or registration is of good character in section 41A (registration: requirement to be of good character), section 4L (acquisition by registration: special circumstances), section 17I (acquisition by registration: special circumstances), and paragraphs 1 and 5 of Schedule 1;the“Convention on Action against Trafficking in Human Beings” refers to the Convention on Action against Trafficking in Human Beings agreed by the Council of Europe in Warsaw on 16 May 2005; the“Convention on the Elimination of all forms of Discrimination Against Women” refers to the United Nations Convention on the Elimination of all forms of Discrimination Against Women adopted in New York on 18 December 1979;the“Convention on the Elimination of All Forms of Racial Discrimination” refers to the United Nations International Convention on the Elimination of All Forms of Racial Discrimination adopted in New York on 21 December 1965;the“Convention on the Rights of the Child” means the United Nations Convention on the Rights of the Child adopted in New York on 20 November 1989;the“Statelessness Conventions” means the Convention relating to the Status of Stateless Persons adopted in New York on 28 September 1954 and the Convention on the Reduction of Statelessness adopted in New York on 30 August 1961;the“Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950 as it has effect for the time being in relation to the United Kingdom;the“Palermo Protocol” means the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, adopted in New York on 15 November 2000;the“Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and its Protocol.””Member's explanatory statement
This new clause would ensure the good character requirement is not applied contrary to the UK’s international legal obligations across a number of instruments. 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 and in force at the time of an adult’s irregular entry or arrival.

[The Lord Bishop of Chelmsford]

My Lords, I declare my interests as per the register. I am grateful to the noble Lord, Lord German, and the noble Baroness, Lady Lister, for their support as signatories and for their guidance, especially as this is the first amendment that I have sponsored to a piece of legislation. My thanks go also to the noble Baroness, Lady Lister, for rightly explaining in my absence in Committee that I have tabled this amendment because I am passionate about the issues it raises: namely, how best to include, not preclude, those with a legal right to be here—those friends, neighbours and colleagues whom we live, work and worship alongside.

The Government’s change to the good character guidance, enacted through secondary legislation with retrospective implementation, in effect makes the “how” of a person’s travel to the UK a determining factor in their character assessment, not the “why” of the reason behind their travel in pursuit of sanctuary. This is a fundamental cultural shift and introduces a factor that bears no correlation to someone’s moral character, their worth and value or the contribution they might make to British society.

I will try not to repeat the issues raised in Committee, but the Minister raised a number of points that deserve our attention. I thank him for meeting me and engaging sincerely. In his response in Committee, he defended the good character test. There are certainly broader concerns about its application that I will not pursue now, but the point of this amendment is not the good character test per se but the addition to it of the manner of entry to this country. I do not believe that the Government have clarified why entry by irregular means is evidence of bad character, particularly when we consider the challenges faced by people fleeing conflict and persecution, which he earlier acknowledged with some compassion that he could never imagine.

It is important also to remember that many asylum seekers have few, if any, options to apply for asylum before making a journey. Even though a territorial system of asylum will always be required, if the Government provided preauthorised travel routes then asylum seekers could look to travel regularly and not fall foul of the recent altered guidance. Does the Minister agree that currently this is not possible?

I bring to the attention of noble Lords that, since Committee, the amendment is now drafted to be more specific as to what the UK’s obligations under international law are: to protect from discrimination refugees, stateless persons, victims of trafficking, women and children. The Minister said in his response in Committee that citizenship should not be afforded to those who have broken the rules and entered illegally, but I respectfully argue that the refugee convention makes it clear that it is not illegal to travel to claim asylum; hence, the state rightfully considers the merits of each claim. Why, then, should a legal act, forced upon many in the most desperate of circumstances, be used as a future test of their character and prevent them from ever truly becoming a full member of British society? It is not just too high a bar but an unattainable and, I suggest, an immoral one.

16:15

It remains the view of many legal experts that the exclusion of refugees from citizenship on the grounds that irregular entry infringes the good character requirement contravenes the convention—a warning issued by the UN High Commissioner for Refugees. Article 31 prohibits people seeking protection from being penalised for entry, provided they present themselves to authorities without delay and show good cause for their action.

We may not be able to agree on this, but perhaps the Minister could consider strengthening the guidance so that, first, it makes it clear that a person must not be refused citizenship on these grounds, if to do so would breach the UK’s international obligations under the refugee convention—which is no more or less than what the Minister says is intended. Secondly, and importantly, perhaps he could consider that the guidance should spell out more explicitly than now that the rules should not be applied to children who entered the UK by irregular means. I welcome the fact that the Government have stated that, given that illegal entry is normally considered to be outside a child’s control, most applicants would not be held accountable for immigration breaches that occurred when they were a minor. Why, then, is it not possible to place this assurance in the guidance? The Minister stated in Committee that discretion gives flexibility, but for this matter I suggest that it will lead only to ambiguity, which is not in the interests of the child.

If I may be personal for a moment, I am very mindful—and indeed thankful—that I have been able to explore my vocation and serve and lead in the Church and wider community as a fully accepted member of British society, having arrived in this country as an asylum seeker when I was 14. Without British citizenship, this journey would not have been possible—indeed, I would not be standing before noble Lords today. If citizenship is to be seen as a privilege, not a right, then surely it is a gift that we should not close off for refugees merely on the basis of how they travelled here. Let us not forget that we are talking about people who have an established and legal right to remain in this country.

The guidance as it stands is needlessly unkind and will, moreover, harm and work against good integration, for the benefit of wider society as well. I cannot help wondering what the long-term impact will be of segregating refugees and British citizens in this manner, especially at a time when some seek shamelessly to exploit division and employ harmful rhetoric. Legislators need to be careful that they do not inadvertently divide us along arbitrary lines which do not properly reflect who we are.

Finally, basic discretion, without stronger guidance and safeguards around how it should be applied, may lead to children being sanctioned. It will needlessly segregate refugees and British citizens, in the end damaging community cohesion. Stating how discretion should be exercised does not nullify the discretionary element of the guidance. Therefore, I implore the Government to commit to look again at the guidance for what I argue are minimal safeguards. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak briefly to express my strong support for everything that the right reverend Prelate said. I will not repeat the principled case I made in Committee, but I thank my noble friend the Minister for the letter he sent me after the debate. In it, he stated that

“it is important to ensure clarity both for applicants and decision makers”.

One way of achieving greater clarity would be to accept the right reverend Prelate’s request that the guidance spell out explicitly that a person must not be refused citizenship because of irregular entry if that were to contravene our international obligations, particularly under the refugee convention, and that anyone who entered as a child should not be barred from citizenship on the grounds of the manner of their entry.

Leaving it to full discretion does not ensure clarity, despite the helpful reassurances provided by my noble friend and other Ministers, with the result that some of those who entered as children might be denied citizenship, even though it is accepted that the immigration breach was outside their control. Indeed, the Project for the Registration of Children as British Citizens, of which I am a patron, has already received reports of refusal on character grounds, based on how the person entered the UK as a child. The PRCBC also contests what my noble friend said in Committee about the guidance providing flexibility; in its experience, the guidance is routinely applied in a rigid fashion.

Therefore, I urge my noble friend not to plead flexibility as a justification for rejecting the very modest request of the right reverend Prelate to spell out in the guidance our obligations under international law, including our commitment to upholding the best interests of children. As the Court of Appeal has advised on sentencing policy, children are not mini-adults. No child who entered the country by irregular means should have that held against them when, subsequently, they would otherwise become eligible for citizenship.

I wish we could strike out completely this unjust and, as the right reverend Prelate called it, immoral rule, which will, as we have heard, impede refugee integration. The amendment would, at the very least, erect some guardrails around the rule’s implementation and thereby mitigate its impact. Failing that, I hope that my noble friend will be able to give the assurances sought by the right reverend Prelate.

[Lord Sentamu (CB)]

My Lords, I find myself persuaded by the right reverend Prelate the Bishop of Chelmsford. Her arguments need to be listened to.

Archbishop Robert Runcie defined a saint as a person whose character has never been fully studied or explored. We all have a dark side to ourselves. If we talk about good character, it may appear in a person’s life only when they have moved away from all the bad stuff that was hanging around them. We carry within ourselves both a sainthood and some not so good characteristics—that is why Archbishop Robert Runcie’s definition of a saint was right.

When I arrived in this country in 1974 and went to Cambridge to study theology and my doctorate, I was so unwell in the first seven months that I was going in and out to see doctors. Eventually, they said that I must have lost a lot of blood through internal bleeding, from the blows received from Amin’s soldiers. I was very angry—extremely angry—that I should be subjected to such terrible things. Of course, that was all bottled up, but I was very angry. Had someone said to me at the time, “We want to know how good your character is, so that we may see whether you can become a citizen”, I would still have been extremely angry in those interviews.

It was not until one night, when I remembered my mother saying, “John, never point a finger at anybody, because when you do, three others are pointing back at you”. Friends, noble Lords, noble Baronesses, this whole question of good character can be very subjective and misleading when the person first arrives, particularly when they come as children. We all have the grace and ability to grow out of some of the not-so-good bits of us, but we still remain a very rough diamond. We are never fully polished until we go through the gate of death.

I find it strange that this country—that I have grown to love, that always shows give and take, that always has this magnanimity of meeting people halfway—would, I am beginning to understand, now use good character as a ground for someone being accepted as a citizen. How do you know that at the time you receive them? They could go on and do some outrageous stuff, because within all of us there is the good and bad. Legislation based on good character as a way of allowing someone to be a citizen has probably not understood that we are on a scale of learning, of growing, of finding ourselves in the future. Even when we die, there will still be lots of stuff that we have not dealt with.

May I plead that when the guidance comes, particularly on dealing with people who arrived here as children, there is more grace than the harshness which I sometimes hear has come into this most green and pleasant land. People become more harsh, more judgmental, more unloving, more uncaring. The legislature should be the guardian against such attitudes and behaviour. I support the amendment.

[Baroness Butler-Sloss (CB)]

My Lords, we listened to the right reverend Prelate talking about coming to this country, as indeed did the noble and right reverend Lord, Lord Sentamu. Just think for a moment: the right reverend Prelate and her parents arrived in this country as refugees from a place they could not go back to, and where, I seem to remember, the right reverend Prelate’s brother had been murdered. If they had come to this country illegally, would we really have sent them back, as being of bad character? If one thinks about it, it is quite extraordinary.

As Members of this House will know, like the noble and right reverend Lord, Lord Sentamu, I was a judge. I spent a lot of my time hearing evidence, often from people of bad character. Bad character is, of course, a wide definition. Technically, I suppose, you are of bad character if you speed: to that I admit—on more than one occasion. Are you of bad character if you are fleeing a place you had to leave because you might otherwise be dead, and are coming to this country by the only means you could? Let us bear in mind that the places people can go to in order to come legally to this country are almost non-existent. Consequently, nearly every refugee to this country comes illegally. Are we to say that doctors, lawyers, nurses, accountants, all people fleeing for good reason, are to be treated as being of bad character? I say to all Members of this House: we really need to reflect every now and again on what comes before this place and what we ought to do.

[Lord Harper (Con)]

My Lords, I am sorry that I am not able to support the right reverend Prelate on the first occasion she has tabled an amendment, and hope that I will be able to do so on future occasions. I will make a few points to balance the argument.

The right reverend Prelate and one or two noble Lords who spoke in favour of the amendment put the case on behalf of the individual seeking citizenship. The amendment refers to citizenship, not to sending people back—that is important to bear in mind. The amendment is also about the decision the Home Secretary and her officials have to make in protecting the rest of the country. They have to make a judgment on whether someone should be granted citizenship. The right reverend Prelate referred to the way in which decisions are made regarding children and the assurance the Minister gave before. Given that over 256,000 people have been granted citizenship this year, it seems that the department is not being overly harsh in its decision-making when it grants citizenship on that scale.

16:30

There is an argument about getting the balance right. From my experience as Immigration Minister, I know it is important that Ministers who remain accountable to this House have the discretion to take into account all the facts. If I have read the amendment correctly, it is about wanting to rule that out. The Minister has previously made it clear that the fact that children have come to this country illegally will not become a determining factor in most cases, but I want the Government to have the power to take that into account with all the other facts. For example, if there were other facts about a person’s conduct then coming to the country illegally might be relevant and I might want the Minister to take that into account. I want those decisions to be made by the Minister—the more these things are prescribed in law, the more we hand decisions over to judges instead of those who are democratically accountable.

Most of the debate so far has been about children; the second part of the amendment is about a test of good character and whether someone came here illegally, also ruling out adults if the details were not set out in guidance. I want the Government to take into account that someone has come to this country illegally as an adult when making a decision. It should be done in the round, in addition to all the other factors, but I do not want it to be ruled out by statute. As I said, the fact that over 250,000 people were granted citizenship in the last year that records are available does not suggest that the Secretary of State and her officials are being unduly harsh when exercising their powers. Respectfully, I would leave the position as it is rather than pursue the amendment.

[Baroness Blower (Lab)]

My Lords, I did not intend to speak, but I feel that I must, particularly about those who arrive here as children. Some in this House will know that I was a teacher in my professional life. I dare say that, on some days, some of those I taught showed bad character, but they were all completely redeemable. It is not a matter of how many people we have granted citizenship to until now; we would be bringing into the lives of these young people undue insecurity about their future. As others have said, this is a moral question, and it is so important that those of us in this House who are making these decisions look at things in the round. If we feel that something is a moral matter, we should stand by it.

[Lord German (LD)]

My Lords, noble Lords will know that my name is attached to this amendment, and I feel very strongly that the House should accept it.

I will not spend time talking about the issues that were raised in Committee: that it is a barrier to people becoming British citizenships, it is very costly, and people may not be able to use their valuable money in order to clarify whether they are part of an exception. We are also an outlier: I listed all the 33 countries—all the big ones in Europe—and nobody else does this. Then there is the whole issue about cohesion and integration, which has been so adequately put on the agenda by the right reverend Prelate.

I draw attention in particular to what will happen if the Government’s policy continues. It may be all right for people to get indefinite right to remain in this country as part of that journey, and it may be that that is where the Government want them to stop—to be people in this country who have only indefinite right to remain. But there are other parties—one of them sitting on my right-hand side here and one of them with a very small representation in the other place—which have a Bill before this Parliament, from the shadow Home Secretary, saying that people’s indefinite right to remain will be removed. So, at a glance, all these people who have entered this country as refugees, who currently have the right to remain in this country and will be given it, will suddenly have that stripped away, according to the Bill before the House of Commons.

The danger then, of course, is this. If the journey to getting citizenship in this country is 10 years—which is what the Government are proposing; it could be somewhat longer than that—and you come as a single person, marry somebody from this country, have children and send them to school, at the end of it all another Government might well say, “Thank you very much. You’re an outlier—you’ll have to go back”, and we would expel them from this country.

Just imagine what the consequence of that policy would be if carried through. This measure started in February this year. We are not talking about people who have come to this country in this immediate time, because it takes time to build up your relationship in this country, to contribute to it in the ways that we have heard from two Members of this House so powerfully today and to build up that good character. To do that, you then have to seek citizenship so that you can become a full member of our society. That journey is one which you will be judged on, but the Government propose to make that judgment right at the beginning, from February. So, people who come may be granted the right to be here because they are refugees and may be granted the right to remain, and they may even be granted the indefinite right to remain, but there are hostile partners in this Parliament, outside government at the moment, who would then say, “No, you cannot become a citizen, and if you’ve got indefinite leave to remain you will lose that right”, after many years.

I ask Members of this House, when they consider this matter, to think of it in the longer term as well as the shorter term. There will be amazing consequences from this right down the track. We are not expecting people who have come here since February to suddenly get citizenship. They have to prove the right to be in this country and that they are part of our society. They have to contribute to our society. It does not take much for us to look around this country and see people who have done just that. We are in danger of splitting up families, splitting up husbands and wives from each other, and leaving children in a state of limbo with a more hostile Government in place in this country. I ask your Lordships to think very carefully about the consequences of not supporting this important amendment.

[Lord Cameron of Lochiel (Con)]

My Lords, I thank the right reverend Prelate for her speech. We recognise the principle behind this proposal. The good character test has been in place since 1981. It asks applicants for British citizenship to be of good character and is controlled by the guidance issued by the Home Office. The test must safeguard the integrity of citizenship but must also be applied with common sense and humanity.

However, while we understand and respect the intention behind this amendment, I am afraid we cannot support it. It would require the good character requirement to be applied in line with a wide range of international conventions. Decisions on who can become a British citizen should be for the UK Government applying national tests under domestic law. More broadly, we are cautious about references to multiple international bodies and agreements that could, in practice, limit the United Kingdom’s ability to manage its own borders and nationality system. Our view is that the UK must retain the freedom to make its own decisions on immigration and citizenship while still acting with fairness, decency and respect for human rights in our own right.

Of course, we are not opposed to the principle of international co-operation, but our domestic framework is set by Parliament and should serve the national interest. For those reasons, we cannot support the amendment in its form.

[Lord Hanson of Flint (Lab)]

I am grateful to the right reverend Prelate the Bishop of Chelmsford for Amendment 60 and in particular for her courage in bringing her personal experience to the Chamber today. I am also grateful to my noble friend Lady Lister of Burtersett, the noble Lord, Lord German, the noble and right reverend Lord, Lord Sentamu, and the noble and learned Baroness, Lady Butler-Sloss, for speaking in support of the amendment.

The noble Lord, Lord German, indicated that there may be different political parties that may at some point in the future have the power to make changes that he and maybe even I would not find palatable. In the event of either of those political parties that he is concerned about winning an election, they could probably do what they wanted in both Houses of Parliament anyway, taking forward those policies that they probably would have won a mandate on. I may not agree with that point, but his argument not to make a change against the right reverend Prelate’s proposal today, because it might open up a gateway for a future party to exploit that amendment’s acceptance, does not seem to be a sensible way forward. If a Government of any political party, not mine, wish to make a change, they would be the Government. Like me standing at this Dispatch Box, they probably would have the numbers in the House of Commons to take that policy through and the numbers in this Chamber to make that case over a period of time for that discussion. So I do not accept that contention.

Having said that, my concerns are different. British citizenship is a privilege, not a right. The requirement for an individual to be of good character is a statutory one that goes back to 1981 and the British Nationality Act. It is considered reasonable and proportionate when assessing whether to grant British citizenship. On the point that the noble Lord, Lord Harper, made, it is for the Home Secretary to make changes to the discretion in that policy. This amendment seeks to limit that discretion by preventing the consideration of illegal entry into the UK if the person was a child when they entered the UK.

Apart from this potentially encouraging people to make false claims about their age to benefit from the provision, the amendment also seeks to ensure that the consideration of good character is compliant with the UK’s international obligations. The right reverend Prelate may not have received it yet, but I sent her a letter this morning which she can have a look at later. In it I say that the good character policy is compliant with our obligations under the refugee convention. Where a person has come directly from a country where they fear persecution, their protection under Article 31 of the refugee convention means that they will not be penalised when their application for citizenship is considered.

I hope that this will partly reassure the right reverend Prelate, but I will say again that the decision-makers are required to take into account the UK’s international obligations, including the refugee convention and the European Convention on Human Rights, when assessing whether a person meets the good character policy. Furthermore, guidance on the good character policy provides for a decision-maker to be able to exercise discretion on a case-by-case basis. It may not find favour across the whole House, but it does include disregarding immigration breaches such as illegal entry if it is accepted that this is outside the applicant’s control. That case is for the applicant to make when they make that decision.

For example, a victim of modern slavery, or a person who is trafficked, or, indeed, going to the very nub of her argument, someone who entered the UK illegally as a child, would not be implicated by the policy and would have that discretion open to them by the decision-maker. I will just emphasise that still further by saying the good character policy does not apply to children under the age of 10 on the date of application.

The amendment would seek also a more generous approach for migrants—

16:45

[The Lord Bishop of Chelmsford]

I am very grateful to the Minister for giving way. On the question of children, the Minister has just said the policy does not apply to children under 10. What is the logic for applying it to children over 10? I do not understand the distinction, and it would be helpful to.

[Lord Hanson of Flint (Lab)]

That is a valid question. I can say to the right reverend Prelate that it will normally—I say “normally”—be appropriate to disregard immigration breaches if it is accepted this was outside the applicant’s control. Given that illegal entry is normally considered outside a child’s control, most children would not be held accountable for their immigration breach. Certainly, as I have said before, no child under the age of 10 at the date of their application would be dealt with in that way. I hope that gives her some reassurance.

I consider that individuals seeking to become British citizens should demonstrate an equal regard to immigration legislation as we expect them to show to other aspects of the law, including the criminal justice system. We do not consider there should be an expectation that a person will benefit in the future from the policy in place when they arrived. This is consistent with the position taken in previous changes to the good character policy, such as the change in 2023 to align the criminality thresholds with the Immigration Rules.

I say again that I am grateful to the right reverend Prelate for bringing her personal experience to the Chamber on Report today, but the Home Secretary makes the policy—they are accountable to the House—decision-makers have discretion, particularly for children aged 10 to 18, and no child under the age of 10 would be impacted.

I hope that gives her the reassurance that the good character test, which the noble Lord, Lord Harper, mentioned, is valid and accountable to the House, but that changing it today would lead to confusion and, potentially, particularly at the borderline areas of the older child, a contention that would cause difficulties for our purpose in life, which is, in the Bill, to try to stop small boats and illegal migrant crossings, and to not provide an incentive for them. I would hope that, on that basis, she could, with all humility, withdraw her amendment.

[The Lord Bishop of Chelmsford]

I am grateful to all noble Lords for their contributions and for engaging in the debate. Forgive me, I am not going to name individuals, but all the contributions—both those for the amendment and those against it—have been very heartfelt and some of them deeply moving, enabling us to reflect even more widely than the issues specifically pertinent to the amendment.

I have listened with care to the Minister and I want to thank him for his thorough response. However, regrettably, I have not received the assurances that I was hoping for, that the character guidance will adequately prevent a scenario where an immigration caseworker is not having to choose whether to break international law or not, or that, without further changes to the guidance, a child’s right to naturalisation will be safeguarded.

It is not right, I believe, that discretion remains to hold a child responsible for their travel to the UK when they had no control over it, even if that is only a small possibility. As I think I have already clearly expressed, dividing access to citizenship in this way for those who have a legal right to remain in the country will have grievous societal and, I believe, cultural consequences, however unintended. Therefore, I would like, with respect, to test the opinion of the House.

16:49

Division 1

Ayes: 89

Noes: 195

17:00

Amendments 61 and 62 not moved.

Amendment 63

Moved by

[Lord Davies of Gower]

63: After Clause 48, insert the following new Clause—
“Age assessments: use of scientific methodsThe Secretary of State must, within six months of the passing of this Act, lay before Parliament a statutory instrument containing regulations under section 52 of the Nationality and Borders Act 2022 specifying scientific methods that may be used for the purposes of age assessments.”Member’s explanatory statement
This new clause would require the Secretary of State to make regulations to specify scientific methods for assessing a person’s age and to disapply the requirement for consent for scientific methods to be used.

[Lord Davies of Gower (Con)]

My Lords, this group speaks to an incredibly important issue in the current asylum system. As it stands, there is no standardised method for verifying the age or identity of those who enter the country illegally. These amendments seek to correct that and give the relevant authorities the power to mandate an age test where they consider it necessary. It cannot be right that a person is automatically assumed to be a child if their age is doubted or they lack documentary evidence. We currently exist within a system that grants people claiming asylum innumerable privileges once their applications are processed. People are given a roof over their head, food, electronic devices and many other amenities. Social activities are often offered. Those who need it have access to healthcare. Children are put into schools. Surely the least we should aim for is ensuring that these privileges are not overprescribed to people who should not qualify for them.

The current process does not, unfortunately, provide for this. If the authorities doubt whether someone is of the age they claim to be, there is no lawful way demonstrably to prove the truth. They must give the benefit of the doubt to the age-disputed person, while the same person can avoid taking a definitive scientific age assessment by denying consent. What is worse, incentives exist for people to lie and game the system. It is well documented that asylum NGOs advise that applying as a child offers a better chance of being accepted. A GB News investigation demonstrated a spike in asylum applications, across all nationalities, of people claiming to be 16 or 17. This is what happens when we offer asylum to children and do not include the necessary safeguards.

The result of this system is that many adults are incentivised to masquerade as children, giving themselves a higher chance of being accepted. The state, in contrast, has no way to challenge these people. The prerequisite of consent essentially gives the age-disputed person control over whether they are found to be lying. The consequences have been dire. Take Lawangeen Abdulrahimzai, a proclaimed 14-year-old Afghan who, unbeknown to the state, had shot and killed two men in Serbia on his way to claim asylum in Britain. He was placed in a secondary school and was moved to another school after being found with a knife, there injuring a pupil. Then, two years after arriving in the country, he fatally murdered aspiring marine Tom Roberts in a knife attack. Abdulrahimzai was actually 19 when he entered the country. I understand that this is an extreme case, but it highlights the importance we must give to verifying the identity of those who illegally enter the country. If someone is willing to lie at the very first hurdle, who is to say we can trust them in society afterwards?

Verifying the person’s age is the first step to solving this. It prevents adults being placed in schools among children and highlights potentially illegitimate claims from those attempting to game our generosity. Amendments 63 and 64 achieve this balance. Those claiming asylum would still be given the opportunity to state their age and would not automatically be required to take an age assessment. However, the discretion would ultimately lie with the relevant authorities. If the age of a person is doubted, powers would exist to scientifically test their age without being obstructed by consent claims. This is the bare minimum we should expect from a system that is being perpetually defrauded. Removing the requirement for consent takes the process out of the hands of the asylum seeker, encourages honesty and trust, and disincentivises fraud. That is what an asylum system should aim for.

I look forward very much to hearing what the Minister has to say about this. In the meantime, I beg to move.

[Lord Harper (Con)]

My Lords, I will speak briefly to support my noble friend Lord Davies. I will also acquaint your Lordships with the information the Government set out in July when the Minister for Border Security and Asylum said what the Government were doing on some of the technology. We discussed in a previous group the potential for artificial intelligence and facial recognition technology to make a big change in this area, and I argued that we should leave open that opportunity. The Minister in a Statement earlier this year confirmed that testing was under way, and said that,

“subject to the results of further testing and assurance … Facial Age Estimation could be fully integrated into the current age assessment system over the course of 2026”.

I do not think the Government’s current position on setting out regulations is that far away from my noble friend’s.

There is a potentially big advantage of this technology, in that previously available scientific tests were not particularly accurate and were medical or invasive in nature, involving MRI scans or X-rays, for example. There are some legitimate reasons why you would not want somebody to be forced to undergo that sort of procedure, and their refusal to undertake such might not be held to be unreasonable. With artificial intelligence and facial recognition technology, there seems to be a very weak case, if any, for refusing to undergo such a test. Subject to the testing being in order, I hope that, if the Government bring it in, they will not give people the opportunity to refuse to undergo it; I see no legitimate case for that. If testing gives Ministers accurate information about somebody’s age, I hope that they will make it mandatory and that if someone refuses to take the test, the presumption of their being a child can be overturned and they will suffer a consequence for not using that technology. So I hope the Minister can update us on how that testing is going and on whether the timeframe the Borders Minister set out earlier this year, hoping that this technology could be rolled out next year, is still on track.

I very strongly support my noble friend’s two amendments.

[Baroness Neuberger (CB)]

My Lords, I feel as if we have been around this one a fair number of times. I am very much looking forward to the Minister saying what he can about AI facial recognition technology, but I want to remind everybody that the Home Office’s own Age Estimation Science Advisory Committee has made it very clear that no method, biological or social worker-led, can determine age with precision. We really need to be very clear about that. Biological evidence can test only whether a claimed age is possible; it cannot set a hard line under or over 18. It is important that we recognise that. AI technology may be able to bring us something, and I know the Minister has said that he is going to tell us more about it. Meanwhile, I think we should resist these amendments very hard.

The reason for that is that the sort of scientific methods, such as X-ray and MRI, that were proposed before—and were on some occasions in use—are unethical. Doctors, nurses and all health professionals will say that using X-ray, in particular, or any kind of radiation for a purpose that is not for the benefit of the individual concerned is unethical. I think many noble Lords know that I have spent much of my working life in and around health services, so I have met a lot of doctors in my time. I have not yet met a single doctor who believes that using either radiation, as X-rays, or MRI for the purpose of age determination is an ethical thing to do.

[Lord Deben (Con)]

I wonder whether that is quite reasonable, given this amendment. I do not think anybody would suggest that I am an extremist on this, but it seems a sensible amendment to me because it is carefully written. I hope that the Minister will take it very seriously. The reason is this: if we are going to get through this difficult period, we have to face those things which the public in general find most difficult. We have discussed before the fact that the public find it very difficult to accept that we do not deport people who have committed crimes in this country. The second thing they find very difficult to accept is when people appear to get away with pretending to be children when they are not. All this amendment does is to ask the Government to take this seriously and to produce, within a reasonable period, the advice that they are going to give. I find it awfully difficult to understand why one could possibly vote against that.

I listened carefully to the noble Baroness, Lady Neuberger, but the amendment does not refer to the insistence that we should use some invasive system. What it asks is that the Government produce a clear statement as to what may properly be used; I find that perfectly acceptable. If we were talking about the details, that would be a different issue—I am not sure I would agree with the noble Baroness, Lady Neuberger, but that is not the issue. I hope that right across the House, whatever view one holds generally, Members will recognise that we have a responsibility to try to meet those points where the public are particularly concerned. If we do not then those on the far right, who have no understanding of what it must be like to be an asylum seeker and who have no care for those people, will have another opportunity to lead other people astray. I very much hope the Minister will take this amendment very seriously.

[Baroness Butler-Sloss (CB)]

My Lords, I very much deprecate people who come to this country and commit crimes. The sooner they are deported, the better. However, I do not really understand why we need these amendments. I am hoping that the Minister is going to tell us, as he previously said he would, how the Government are going to move forward in identifying the age of people. Again, I share the view of the noble Lord, Lord Deben, that those who are not children—and pretend to be—should be found out.

However, as I said at an earlier stage of discussion on the Bill, when I went to a drop-in centre with Safe Passage some years ago, I met two 16 year-old Afghans: one with a beard and the other with a bushy moustache. We need to recognise that boys in other parts of the world mature, particularly facially, at a much earlier age than they do in this country and in western Europe. That is an issue which raises real problems for identification.

[Baroness Brinton (LD)]

My Lords, I agree with the noble Baroness, Lady Neuberger, and the noble Lord, Lord Harper, that, over the last four to five years, we have been round the Houses on this issue, not just in this Bill but in a large number of Bills. It keeps returning because there are concerns.

I want to start by trying to find some common ground on this issue, as we did last week, with the noble Lord, Lord Harper, in particular. Age verification—determining whether someone is 18 or not—is extremely difficult. As the noble Lord, Lord Davies, said, it is completely inappropriate for people who are well over 18 to come into a school system where they are treated as much younger, and even these Benches would not support that.

The difficulty—and the reason why we keep raising this—is that it is clear that no doctor will apply any of the scientific methods. We have had this debate since 2023, when the BMA made it clear that they were unreliable. On that occasion, the noble Lord, Lord Winston, spoke in your Lordships’ House about how hormonal change because of poor diet, and the possibility of hormonal change because of minor and benign tumours, are impossible to tell just from looking at an MRI.

17:15

Amendment 63 asks the Government to set out

“scientific methods that may be used for the purposes of age assessments”.

However, I am reminded that, under the previous Government, regulations were put in place to do that. If it needs to be done again, I would like evidence to show that the situation has changed and that doctors now say it is safe. If doctors say it is not safe, we should not be doing it.

On Amendment 64 and powers to make provision about refusal to consent, time and again we have said that somebody under 18—and we do not always know whether they are—cannot give informed consent, and the UN Convention on the Rights of the Child makes it very clear that that should be taken into account by a state.

In 2023, the then Minister—I think it was the noble Lord, Lord Sharpe—told your Lordships’ House that the Netherlands uses age assessment, but he failed to mention that, in the Netherlands, anyone investigated as to whether they are 18 or under has access to free legal advice to support them through that age assessment and ensure that their rights as a child are not contravened.

That still does not happen here in the United Kingdom, which means that, if the Government have the right to make a decision and speed up a process if a person does not give consent for that examination, that person has no protection under the law. That is worries us on these Benches considerably. With that in mind, and the fact that we do not seem to progress with the scientific evidence, I hope the noble Lord will not press his amendments.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord for tabling these amendments. We have indeed been around the Houses, but in trying to reach some common ground, I agree with every noble Lord who has spoken that we need to have some method of assessing age. Children who are placed in settings with adults are at risk, and adults who are placed in settings with children potentially pose a risk. I think there is common ground across the House today on the need to find some mechanism to establish age verification.

Amendments 63 and 64 refer to scientific methods of age assessment, and Amendment 63 places a statutory duty on the Secretary of State to lay regulations under Section 52 of the Nationality and Borders Act within six months of the passing of the Bill. This is one of the reasons, in addition to those that I have given, that I support the speech of the noble Baroness, Lady Brinton. Regulations have already been made under this power that specify X-ray and MRI methods of age assessment.

Amendment 64 would, in effect, reintroduce Section 58 of the Illegal Migration Act, which the Bill looks to repeal. Under the powers given to the Secretary of State in Section 52 of the Nationality and Borders Act, the Secretary of State would not make regulations to the effect that this amendment seeks to achieve unless and until the specific scientific methods in question were sufficiently accurate to mean that applying the automatic assumption in cases of refusal to consent would be compatible with the ECHR. The specified methods—that is, X-ray and MRI images of certain body areas—do not currently meet this threshold. I think that the noble Baroness, Lady Neuberger, also emphasised that point, as did the noble Lord, Lord Harper, to some extent.

That does not mean that the Government do not wish to have age verification measures in place. I can assure the House that, in the context of the Government’s wider work to reform age assessment systems, as was mentioned by the noble Lord, Lord Harper, the then Minister for Security and Asylum set out in a Written Ministerial Statement in the House of Commons, which I repeated in this House in July, that this Government have commissioned work to determine the most promising new and emerging methods of age assessment to pursue them further. As a result of that, currently the work to operationalise X-ray and MRI methods of age assessment have been stood down, because facial age estimation methods—this goes to the point of the noble Baroness, Lady Neuberger—are less intrusive, cheaper and faster, and there is no requirement for a physical medical procedure. As I mentioned in Committee, we are not there yet, but facial age estimation technology is currently being explored by the Home Office. It is a potential assistive tool in the age assessment process, and we have commissioned further testing and trialling with the intention of implementing the technology during 2026 if it proves a worthwhile addition to our armoury.

[Baroness Brinton (LD)]

The last Government produced an expert report in the run-up to our 23 debates on various amendments. Will the Government undertake to have an expert report from doctors and scientists, which would then be published in full, so that Parliament and the wider community can actually see the detail? The Minister is absolutely right to say that AI age assessment is not there yet, and I always worry about passing something that might mean that we do not see the detail when doctors are unhappy.

[Lord Hanson of Flint (Lab)]

I say to the noble Baroness, Lady Brinton, that it is in the interests of the Government to get technology in place that is less intrusive and more accurate and does not rely on X-rays and MRIs, as we have now, for that physical contact. The question of what that development will be is something that we are working through at the moment, and I am expecting that in the latter part of 2026 I will be able to come to this House—if still in post—to argue the case for the implementation of a better facial age estimation technology. I will, on the basis of what the noble Baroness has said, make sure that I can put into the public domain whatever information I think does not compromise the operation. That is the best I can give her today, but I will reflect on what she said and look at whether I can agree to her request. I do not want to give her an immediate response, because there may be reasons why it is not in our interest to put some of that information into the public domain, because people will always try to subsume facial recognition technology or any other method. I will just reflect on that, if I may.

The key point is that these emerging new methods and the regulations applying the automatic assumption of adult provision for refusal to consent to methods of scientific age assessment as set out in the IMA cannot be laid until the specific methods are sufficiently accurate. Because we do not believe that they are going to be, these amendments are not necessary. For those reasons, I hope that we can share common ground with the noble Lord: his objective, my objective, and I think that of every noble Lord who has spoken, is to ensure that we have accurate age assessment. The methodology he has brought forward in these amendments is not the way forward, but I give an assurance to the House that the exploration of other methods is under way and I will report back when those tests are complete. I urge him, therefore, to withdraw his amendment.

[Lord Davies of Gower (Con)]

My Lords, this has been a short but important debate, and I am grateful to those noble Lords who have contributed. As I said in my opening remarks, there is clear evidence of adults pretending to be children in order to gain refugee status in the United Kingdom. As boat crossings rise, so does the number of fraudulent asylum claims. This means that there is a high number of unchecked people who should not be here and, perhaps more importantly, a high number of adults in children’s schools. This is a crisis that the Government can and must face head on. Ensuring that people are the age that they claim to be is just one step that we must take to end this crisis, but it is an important step, and Amendments 63 and 64 offer a framework for how it may be done.

Amendment 64 would provide a fair and balanced approach to age assessments. It would not provide the state with overreaching powers to assess anyone who enters the country, but it also would not retreat to the position where the age-disputed person is given the right to deny any form of comprehensive assessment. It would give the relevant authorities the discretion to enforce a scientific test where there are no reasonable grounds not to consent to one. This measure would allow for a fairer immigration system that incentivises honesty, rather than one that rewards fraud.

However, if we are to take away the right to consent when there are no reasonable grounds, then it is just that we also specify which methods may be used to assess age. As I have said, assessing age has become a necessary measure in certain cases, which is why Amendment 64 is so important. Amendment 63 is just as important, as it would allow the Secretary of State to lay out a clear and comprehensive list of scientific methods that may be used to achieve this end.

The current system in place incentivises dishonesty and puts children across the country at risk as a result. These amendments provide a comprehensive framework that goes a long way to resolving that problem, and I hope the Minister considers taking them on board. I have heard what he has said about finding common ground for age assessment, and for now I beg to leave to withdraw the amendment.

Amendment 63 withdrawn.

Amendment 64 not moved.

Amendment 65

Moved by

[Lord Davies of Gower]

65: After Clause 48, insert the following new Clause—
“Refusal of asylum claims from illegal entrants(1) The Secretary of State must refuse without consideration an asylum claim, protection claim or a human rights claim made by any person to whom this section applies.(2) This section applies to a person who—(a) commits an offence under sections 24 or 24A of the Immigration Act 1971, or(b) did not come directly to the United Kingdom from a country in which the person’s life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion.(3) For the purposes of subsection (2)(b) a person is not to be taken to have come directly from a country in which their life and liberty were at risk if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life and liberty were not so threatened.(4) Subsection (2)(b) does not apply if a person—(a) entered the United Kingdom lawfully,(b) at the time the person entered the United Kingdom lawfully the person came directly from a safe country, and(c) whilst the person has remained in the United Kingdom the person’s home country has become an unsafe country.(5) Where subsection (4) applies to a person and the person makes an asylum claim, protection claim or human rights claim, the Secretary of State must consider the claim.(6) For the purposes of subsection (4)—(a) a country is a “safe country” if in general a person’s life and liberty would not be threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion;(b) a country is an “unsafe country” if in general a person’s life and liberty would be threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion;(c) a person entered the United Kingdom lawfully if the person entered the United Kingdom in accordance with the Immigration Acts.(7) A claim refused under subsection (1) cannot be considered under the immigration rules.(8) This section applies to any asylum claim, protection claim or human rights claim that was made by a person to whom this section applies on, after or before the day in which this section comes into force.”Member’s explanatory statement
This amendment would require the Secretary of State to refuse any asylum, protection or human rights claim made by a person who enters the United Kingdom illegally.

[Lord Davies of Gower (Con)]

My Lords, in 2013, 20,587 people travelled illegally by boat to Australia. The Australian Government instituted Operation Sovereign Borders, whereby illegal migrants entering by boat are either turned back to their point of departure, returned to their home country or transferred to a third country. Australia established an asylum processing centre in Nauru for this purpose. None of them was allowed to stay in Australia. The year after this policy was introduced, the number of small boat arrivals fell to 450. They went from 20,587 to 450; that is how you successfully protect your borders. That is how you prevent illegal migration and people smuggling. It is done not by handing illegal migrants hotel accommodation, giving them money and then permitting them to make all manner of spurious asylum, protection and modern slavery claims. It has been tried and tested before; it can be done. Yet there are political parties in this country—the Government and Liberal Democrats, here in this Chamber—which still refuse to support such action that has been proven to work.

The Government’s policies on border security, illegal migration and asylum have so far failed. My Amendments 65 and 77 would give the Government the opportunity finally to get a grip and follow the positive example of Australia. They are intended to work in tandem with each other to permit the Government to refuse asylum claims from illegal migrants and remove them to a third-country processing centre.

Amendment 65 would place a duty on the Secretary of State to refuse, without consideration, any asylum protection or human rights claim made by a person who has entered the country illegally. My noble friend Lady Maclean of Redditch’s Amendment 65A includes modern slavery claims within that list, and I support that inclusion. The amendment also includes any person who has not come directly from a country where their life or liberty was threatened within the meaning of the refugee convention. My noble friend Lord Murray of Blidworth has spoken in detail about that during Committee, and I again echo his arguments. Subsection (4) of the new clause proposed in the amendment includes a crucial safeguard for persons who enter the UK legally but whose home country has become unsafe while they have been in the UK and they subsequently make an asylum or protection claim. In this case, their claim would be able to be considered in the usual manner. This ban on asylum claims from illegal migrants would absolutely act as a deterrent for illegal migration. People will not make the journey across the channel if they know their claims will be automatically refused and they will be swiftly deported.

Amendment 77 follows on from this. It would require the Home Secretary to establish third-country removal centres where we would be able to send those who cannot be returned to their home country. Australia has done this with Nauru and the United States has done it with Uganda, Honduras and Rwanda. The Government claim that the previous Government’s policy of sending illegal migrants to Rwanda was unworkable, yet the United States has done precisely that, and it has worked. Illegal crossings across the US southern border have fallen by 89% in one year. Australia and the United States prove that illegal migration can be stopped, yet we are constantly told that we cannot do the same in this country. That is false. We can replicate their success—all it requires is a recognition of the concerns of the British electorate and a desire genuinely to end illegal entry to the UK. I beg to move.

17:30

Amendment 65A (to Amendment 65)

Moved by

[Baroness Maclean of Redditch]

65A: In subsection (1), after “protection claim” insert “, modern slavery claim”

[Baroness Maclean of Redditch (Con)]

My Lords, I strongly support the amendments in this group and will briefly speak to mine, which would strengthen the amendments laid by my noble friends on the Front Bench. They have the objective of restoring public confidence in our asylum system. Amendment 65A would ensure that no modern slavery claim could be made by those who arrive under the conditions set out in Amendment 65 and that we eliminate loopholes where we know or suspect that a strong risk exists of bogus asylum claims. Amendment 77A would make it clear that the proposed third-country removal centre would also process any modern slavery claims for those who could not be returned to their home country, for whatever reason.

As a package, in addition to my amendments that I discussed earlier in these debates—I will not repeat myself—this would ensure that the public have confidence that we are supporting genuine victims of modern slavery, not those who seek to use our generous provisions to prey on vulnerable people or those who, for their own evil reasons, decide to exploit our asylum laws to get a fast track into the country under the guise of being modern slaves and then go on to lodge bogus asylum claims. The public are rapidly losing trust in the state to protect our borders and we need to take determined, radical action. I beg to move.

[Lord Harper (Con)]

My Lords, I rise briefly to support the amendments put down by my noble friend Lord Davies. I will focus in particular on proposed new subsection (2)(b) in his Amendment 65, which would make it clear that, if someone does not come directly to the UK from a country in which they were threatened, they are not covered by the refugee convention. I strongly support that and we have debated it earlier on this Bill.

It may or may not surprise your Lordships to know that it is also the view of the Government. In a letter that the noble Lord, Lord Katz, sent to the noble Baroness, Lady Chakrabarti, following our debate in Committee on Monday 13 October, in response to suggestions she made in her amendments, he said that the refugee convention

“is quite clear about the need for migrants to ‘come directly’ to benefit from the protections it affords them. In reality, not a single small boat that has reached the UK has set out from a dangerous country where migrants could not be reasonably expected to claim asylum. France, Belgium and the Netherlands are all signatory to the Convention and are entirely safe countries with functioning asylum systems of which migrants are able to avail themselves”.

I could not agree more with the Minister in that interpretation of the refugee convention, which is effectively what my noble friend has set out in his amendment. Given that the Government’s view is that Article 31 of the refugee convention should be interpreted narrowly in that sense, I hope the Minister will support my noble friend’s amendments and, even if he feels that something in their drafting is not absolutely spot on, he will none the less come forward at Third Reading with an amendment that would correct the drafting and put into statute the sentiments set out in that letter, with which I entirely agree.

[Lord Pannick (CB)]

My Lords, it is all very well saying that people who have come from a safe third country are not entitled to asylum here. That is the law; there is no doubt about that. The difficulty is in removing such people. These amendments provide no assistance in relation to that. People who have come here from France and Belgium, which are of course safe countries, cannot be removed to those countries—those countries will not have them back, other than under the scheme that the Government have agreed with France. So they cannot be removed there.

They are also not to be given asylum under these amendments, so are they to be removed to their own country? Are we really going to remove people who have arrived here unlawfully to countries where they face persecution? That seems intolerable to me. The problem is not saying that these people are not entitled to asylum; the problem is removing them from this country and these amendments make no contribution to that.

[Lord German (LD)]

I strongly support that intervention. The noble Lord, Lord Harper, referred to his interpretation of the letter. I prefer to rely on Section 31 of the Immigration and Asylum Act 1999, which I am sure the noble Lord, Lord Katz, will refer to later, as the defence against the offence that he allegedly conducted in his letter.

These amendments target asylum and modern slavery claims made by those who have entered the UK irregularly. They risk compounding injustice and playing directly into the hands of the very criminals we seek to defeat. First, focusing on restriction of access to modern slavery protections for individuals, particularly those identified as illegal entrants, risks undermining the UK’s reputation for compliance with our international obligations, notably with the Council of Europe Convention on Action against Trafficking. We must remember that victims of trafficking are frequently coerced into criminal activity and that extending disqualification criteria or imposing restrictions disproportionately affects genuine survivors of modern slavery.

Secondly, if these amendments aim to limit the judicial scrutiny of claims made by irregular arrivals seeking protection, they threaten the balance of fairness that underpins our legal system. Any such attempt would introduce legal uncertainty and risks violating individual human rights. Asylum legislation and decision-making must prioritise the principles of compliance with human rights obligations. We resist the temptation to craft legislation based on a political narrative that disregards the plight of those fleeing persecution and violence.

We must focus finite resources on those who truly need our help: the victims of torture, persecution, war and trafficking. For these reasons, based on principles of compassion, international compliance and operational effectiveness against criminal exploitation, we reject these amendments.

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

My Lords, taken together, Amendments 65, 77 and 84 from the noble Lords, Lord Davies and Lord Cameron, further amended by the noble Baroness, Lady Maclean of Redditch, in Amendments 65A and 77A, can be seen as another attempt to reinstate certain aims and objectives of the Illegal Migration Act 2023 and the Rwanda plan. Again, as was the case with amendments discussed on the second day of Report, these proposals at points take a more unworkable approach than what has come before, as the noble Lord, Lord Pannick— I hope he does not mind my praying him in aid—argued in his short but focused contribution.

The noble Lord, Lord Davies, said that our policies had failed. I simply point out to him that, whereas, as he mentioned, 400 asylum seeker hotels were in use under the previous Government, now it is around 200 and we have a plan to close them all by the end of the Parliament. We have seen more than 5,000 foreign national offenders deported over the last year, a 14% increase on the 12 months before. If that is what the noble Lord and his colleagues see as failure, that is perhaps a clue as to why their approach to tackling asylum and immigration failed so much itself.

I emphasise again that this Government have been clear in their approach to the Illegal Migration Act and its policy intentions. This Bill repeals it, aside from the six sections where we have identified operational benefit for retention. The Bill, as promised in our manifesto, fully repeals the Safety of Rwanda Act 2024 —a wholly unworkable scheme which cost this country around £700 million and which saw only four people leave the country, all of whom left voluntarily.

Amendment 65 seeks to reinstate Sections 2 and 5 of the Illegal Migration Act in a different form. This amendment would mandate the Secretary of State to refuse any asylum, protection or human rights claim made by a person who enters the United Kingdom from a safe third country illegally, provided they do not come directly from a country in which their life and liberty were at risk, and regardless of the nature of the person’s claim. Amendment 65A, tabled by the noble Baroness, Lady Maclean of Redditch, would mandate refusal of a modern slavery claim on the same basis. This blanket approach would fail to factor in considerations around vulnerable groups, including children.

On Amendments 77 and 77A, I thank both noble Lords and the noble Baroness, Lady Maclean, for their interest in the Government’s approach to third-country removal centres. However, I respectfully submit that these amendments are unnecessary. As the Prime Minister set out on 15 May, we are already actively exploring the establishment of return hubs with international partners. Our approach will be guided by what is workable. These hubs will facilitate the swift and dignified removal of failed asylum seekers who have exhausted all legal avenues to remain in the UK while they await redocumentation by their country of origin.

The effect of Amendment 77, together with Amendment 35A, discussed on day 2 of Report, would be to return to the Rwanda model by removing individuals whose asylum claims have not been determined and who are subject to the aforementioned duty to remove to a third country. The return hubs proposal is fundamentally different: it does not outsource asylum decision-making but instead targets those whose claims have already been fully considered by the Home Office and the courts and been found wanting.

We are committed to developing this policy in a way that is both workable and legally robust. As such, the Government cannot be held to timeframes on third country negotiations as set out in Amendment 77. Details of any agreement and associated policy will be made publicly available when the time is right. I therefore urge noble Lords not to move their amendments, on the basis that they not only duplicate work already in train but constrict that work and militate against the Government’s aim to conclude a mutually beneficial partnership in a timeframe that works for both parties.

These amendments would undermine the integrity of the UK’s immigration and asylum system and put the UK in conflict with its obligations under the refugee convention, the ECHR and the anti-trafficking convention. They would serve only to prevent asylum decision-making, increase the backlog of asylum cases awaiting an outcome and put impossible pressure on asylum accommodation, with significant costs to taxpayers. We also cannot ignore the fact that these amendments fail to take into account the needs of vulnerable individuals, including children and victims of modern slavery. I therefore invite the noble Lords, Lord Davies and Lord Cameron, and the noble Baroness, Lady Maclean, not to press their amendments.

[Baroness Maclean of Redditch (Con)]

I beg leave to withdraw my amendment.

Amendment 65A (to Amendment 65) withdrawn.

[Lord Davies of Gower (Con)]

My Lords, the Government have, of course, decided to abandon the Conservative policy of removal to a third country, for which we had an agreement. We urge the Government to retain the Rwanda agreement. As I detailed earlier, the Australian model was a great success.

This week, we have seen the second migrant deported in the one-in, one-out scheme returned to the UK. We have also heard that the Government will be handing asylum seekers £100 a week to move out of hotels and move in with family and friends they may have in the UK. These measures will not deter illegal migration. Channel crossings have continued at an even faster rate.

It does not have to be this way. If we leave the ECHR, ban asylum protection, human rights and modern slavery claims, and deport all illegal migrants then we can establish third-country removal centres and replicate Australia’s success. The Government’s policies do not carry the support of the British people. I wish to test the opinion of the House on Amendment 65.

17:44

Division 2

Ayes: 201

Noes: 238

17:55

Amendments 66 and 67 had been withdrawn from the Marshalled List.

Amendment 68

Moved by

[Lord Davies of Gower]

68: After Clause 48, insert the following new Clause—
“Exclusion of judicial review of asylum and immigration decisions(1) Subsections (2) and (3) apply where— (a) the Secretary of State has made an initial decision in respect of a relevant immigration decision, or(b) the asylum and immigration review board (“the review board”) have made a final decision in respect of a relevant immigration decision under section (Abolition of appeals for immigration decisions).(2) The decision is final, and not liable to be set aside in any court.(3) In particular—(a) no application or petition for judicial review may be made or brought in relation to an initial decision by the Secretary of State or a final decision by the review board;(b) the review board are not to be regarded as having exceeded their powers by reason of any error made in reaching the final decision.(4) Subsections (2) and (3) do not apply where the Secretary of State or the review board is acting or has acted in such a manner which exceeds the Secretary of State’s or the review board’s powers under the Immigration Acts.(5) In this section—“the Immigration Acts” has the same meaning as in section 61 of the UK Borders Act 2007;“relevant immigration decision” means—(a) a decision to make a deportation order under—(i) section 5(1) of the Immigration Act 1971,(ii) section 32(5) of the UK Borders Act 2007, and(iii) section (Duty to deport illegal entrants) of this Act,(b) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),(c) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),(d) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),(e) a refusal to revoke a deportation order under section 5(2) of that Act,(f) a decision to reject an asylum claim, protection claim or human rights claim,(g) a decision to refuse support under section 95 of the immigration and Asylum Act 1999 or section 17 of the Nationality, Immigration and Asylum Act 2002,(h) a decision to certify a protection claim or human rights claim as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002,(i) a decision to revoke a person’s asylum status or protection status, and(j) a decision not to grant immigration bail.”Member's explanatory statement
This amendment would prevent judicial review of any immigration decisions, except in a case where the Secretary of State or review board have acted ultra vires.

Amendment 68A (to Amendment 68) not moved.

[Lord Davies of Gower (Con)]

My Lords, Amendment 68 relates to the exclusion of judicial review of asylum and immigration decisions. It has already been debated. I wish to test the opinion of the House.

17:56

Division 3

Ayes: 207

Noes: 240

18:06

Amendment 69 not moved.

Amendment 70

Moved by

[Lord German]

70: After Clause 48, insert the following new Clause—
“Humanitarian travel permit(1) On an application by a person (“P”) to the appropriate decision-maker for entry clearance, the appropriate decision-maker must grant P entry clearance if satisfied that P is a relevant person, subject to subsection (2).(2) The Secretary of State may by regulations establish a monthly cap of the number of applications that may be granted under subsection (1).(3) For the purposes of subsection (1), P is a relevant person if—(a) P intends to make a protection claim in the United Kingdom,(b) P’s protection claim, if made in the United Kingdom, would have a realistic prospect of success, and(c) there are serious and compelling reasons why P’s protection claim should be considered in the United Kingdom.(4) For the purposes of subsection (2), in deciding whether there are such reasons why P’s protection claim should be considered in the United Kingdom, the appropriate decision-maker must take into account—(a) the extent of the risk that P will suffer persecution or serious harm if entry clearance is not granted,(b) the strength of P’s family and other ties to the United Kingdom,(c) P’s mental and physical health and any particular vulnerabilities that P has, and(d) any other matter that the decision-maker thinks relevant.(5) For the purposes of an application under subsection (1), the appropriate decision-maker must waive any of the requirements in subsection (5) if satisfied that P cannot reasonably be expected to comply with them.(6) The requirements are—(a) any requirement prescribed (whether by immigration rules or otherwise) under section 50 of the Immigration, Asylum and Nationality Act 2006, and(b) any requirement prescribed by regulations made under section 5, 6, 7 or 8 of the UK Borders Act 2007 (biometric registration).(7) No fee may be charged for the making of an application under subsection (1).(8) An entry clearance granted pursuant to subsection (1) has effect as leave to enter for such period, being not less than six months, and on such conditions as the Secretary of State may prescribe by order. (9) A condition under subsection (8) must include the provision of biometric information under section 34 of this Act.(10) Upon a person entering the United Kingdom (within the meaning of section 11 of the Immigration Act 1971) pursuant to leave to enter given under subsection (7), that person is deemed to have made a protection claim in the United Kingdom.(11) For the purposes of this section—(a) “appropriate decision-maker” means a person authorised by the Secretary of State by rules made under section 3 of the Immigration Act 1971 to grant an entry clearance under paragraph(1),(b) “entry clearance” has the same meaning as in section 33(1) of the Immigration Act 1971,(c) “protection claim”, in relation to a person, means a claim that to remove them from or require them to leave the United Kingdom would be inconsistent with the United Kingdom’s obligations—(i) under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention (“the Refugee Convention”),(ii) in relation to persons entitled to a grant of humanitarian protection, or(iii) under Article 2 or 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950 (“the European Convention on Human Rights”),(d) “persecution” is defined in accordance with the Refugee Convention, and(e) “serious harm” means treatment that, if it occurred within the jurisdiction of the United Kingdom, would be contrary to the United Kingdom’s obligations under Article 2 or 3 of the European Convention on Human Rights (irrespective of where it will actually occur).”Member’s explanatory statement
This new clause would create a new “humanitarian travel permit”.

[Lord German (LD)]

My Lords, this amendment would remove the smugglers’ business by creating a safer legal route. I wish to test the opinion of the House.

18:07

Division 4

Ayes: 66

Noes: 175

18:18

Amendment 71 not moved.

Amendment 72

Moved by

[Lord Jackson of Peterborough]

72: After Clause 48, insert the following new Clause—
“Duty to remove foreign offenders(1) The Secretary of State must make a deportation order against any person to whom this section applies.(2) This section applies to a person (“P”) who—(a) is not a British citizen,(b) has been sentenced to a term of imprisonment in the United Kingdom, and(c) has completed their term of imprisonment and been released accordingly.(3) The Secretary of State must make the deportation order against P within the period of seven days after P’s release from imprisonment.(4) A deportation order made under this section is not subject to appeal under—(a) section 15 of the Immigration Act 1971,(b) section 82 of the Nationality, Immigration and Asylum Act 2002, or(c) any other enactment.(5) A deportation order made under this section is final and not liable to be set aside in any court.”

[Lord Jackson of Peterborough (Con)]

My Lords, this amendment was comprehensively debated last week. It is, for the avoidance of doubt, about the efficacious deportation of foreign national offenders who have been released after serving a custodial sentence. On the basis of an unsatisfactory response from the Minister, I would like to test the opinion of the House.

18:18

Division 5

Ayes: 193

Noes: 236

18:30

Amendment 73

Moved by

[Lord German]

73: After Clause 48, insert the following new Clause—
“Temporary asylum processing units(1) The Secretary of State may, by regulations made by statutory instrument, make such provision as is necessary to enable him or her to develop and provide temporary facilities for the expedited assessment of asylum applications or to enable other persons to do so and for the subsequent cessation of such use and the restoration of land.(2) Before making regulations under this section the Secretary of State must consult any local authorities likely to be affected and such other persons as he or she considers appropriate.(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member's explanatory statement
This amendment would enable the creation of ‘Nightingale’ processing units to speed up the process of clearing the backlog of asylum applications.

[Lord German (LD)]

This amendment seeks to set up processing centres to clear the backlog and remove the need for asylum hotels. I wish to test the opinion of the House.

18:30

Division 6

Ayes: 68

Noes: 169

18:40

Amendment 74

Moved by

[Baroness Chakrabarti]

74: After Clause 48, insert the following new Clause—
“Defence under Article 31 of the Refugee Convention(1) Section 37 of the Nationality and Borders Act 2022 is repealed.(2) Section 31 of the Immigration and Asylum Act 1999 (defences based on Article 31(1) of the Refugee Convention) is amended as follows.(3) Omit subsection (2).(4) After subsection (3)(c) insert—“(d) section 24 of the Immigration Act 1971 (illegal entry and similar offences).”(5) After subsection (4)(d) insert—“(e) section 24 of the Immigration Act 1971 (illegal entry and similar offences).”(6) Omit subsection (4A).”Member's explanatory statement
This amendment alters the statutory defence for refugees to ensure compliance with Article 31 of the Refugee Convention which prevents penalisation of refugees who transit in a country on their way to receiving sanctuary in another country, if they have come directly from a place where their life or freedom was threatened and they have good cause for their irregular entry or presence. This amendment restores the common law position and repeals section 37 of the Nationality and Borders Act which sought to overturn it. It also expands the defence to cover not only offences relating to those who enter with false documents but also those who enter without any immigration documents.

[Baroness Chakrabarti (Lab)]

My Lords, noble Lords will recall that in Committee I proposed replacing Section 31 of the Immigration and Asylum Act 1999 because it is incomplete. That section attempts to comply with Article 31 of the refugee convention by providing statutory defences for refugees who have irregularly entered or are present in the UK but who have come directly from a country persecuting them; they have presented themselves to the authorities without delay and shown good cause for their unlawful entry or presence. However, as described by our Joint Committee on Human Rights in its report on this Bill, the statutory defence

“is not fully compliant with the Refugee Convention”.

Strangely, the defence is available only to refugees who have used false documents; it does not extend to refugees who arrive, enter, or are present here irregularly, with no documents at all.

It is unclear to me why our country would privilege the refugee arriving by plane on a false passport over the stateless person or refugee with no passport or visa. Refugees are often compelled to flee with nothing but the clothes on their backs. What little they have may be stolen or lost along the way. I raised this anomaly in Committee, and my noble friend Lord Katz said that he understood what he called this “specific inconsistency”, very kindly agreeing to write to me on the point—that was on 13 October, at vol. 849, col. 113 of Hansard. As my noble friend helped explain to the Committee, also in col. 113, the defence is also imperfect and incomplete because it fails to protect from prosecution the refugee who, in fleeing persecution, stops in another safe country.

Sadly, those who drafted my noble friend’s letter to me of 24 October demonstrated neither his logic and compassion nor, frankly, any acknowledgement of what he actually said at the Dispatch Box. Indeed, the letter would be more fitting in support of opposition amendments proposed by, for example, the noble Lord, Lord Murray of Blidworth, and rejected by the Government and my noble friend that day in recognition of refugees who transit countries en route to the United Kingdom. The Home Office letter said:

“The Convention is quite clear about the need for migrants to ‘come directly’ to benefit from the protections it affords them. In reality, not a single small boat that has reached the UK has set out from a dangerous country where migrants could not be reasonably expected to claim asylum. France, Belgium and the Netherlands are all signatory to the Convention and are entirely safe countries with functioning asylum systems of which migrants are able to avail themselves”.


It is as if last year’s general election never happened.

Therefore, almost all who arrive in the UK, even if eventually found by the authorities, by the Home Office or the appeal system, to be refugees, have no statutory defence to protect them from criminalisation and prosecution. That is contrary to a good faith interpretation of the refugee convention.

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The United Nations High Commissioner for Refugees, the guardian of the refugee convention, recently issued guidelines on Article 31. These make clear that, just because a refugee has transited an intermediate country, that does not mean they have not come directly from their country of persecution. Rather, the directness of their travel needs to be assessed against the realities and context of journeys which often require circuitous, delayed and interrupted travel over land and sea.

The late noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Bingham of Cornhill, helped establish this purposive interpretation of our common law. My Amendment 74 simply seeks to restore that position. The reality of today’s world means the refugee may need to transit an intermediate country. Even before my own days as a Home Office lawyer, we had carriers’ liability. The impact of this is that commercial carriers fear financial penalties. Airlines do not allow refugees to board safe planes directly from their country of persecution. If they did, refugees would not risk perilous journeys across the Mediterranean, the continent or the channel; smugglers are far more expensive than aeroplane tickets.

If noble Lords cast their minds back three years to the prior borders Bill, they will recall that the roots of criminalising the act of arriving to seek asylum began there. I would remind my noble friends in government that, in opposition, we rejected that Bill in its entirety at Second Reading. My noble friend Lord Coaker, now a Minister, called it “wrong and unethical”—that was on 27 April 2022, at col. 306 of Hansard.

Labour in opposition supported every one of the Lords amendments, and noble Lords defeated the then Government 19 times, seeking to mitigate the worst excesses of that Bill, which sought to reinterpret and chip away at the refugee convention—it criminalised the act of arriving as a refugee. Since then, 556 people arriving by small boat were charged with illegal arrival and 455 were convicted. The vast majority of those charged and convicted had ongoing claims for asylum, as well as experiences of trafficking and/or torture. When noble Lords decided against sending the Nationality and Borders Bill back to the other place for a fourth time, my noble friend Lord Coaker promised that the battle

“and the campaign for a proper refugee system will carry on”.—[Official Report, 27/4/22; col. 308.].

Amendment 74 is my attempt to carry on that campaign by making the most technical and legal of changes to ensure compliance with the refugee convention and to restore the common law position. It seeks to rid us of the false notion that a refugee who merely stops in another country can be punished and penalised. However, it would retain the requirement that a refugee must come directly from a place where their life or freedom was threatened, and the term “come directly” must be interpreted in line with our common law tradition.

The amendment would add irregular entry and arrival to the list of offences for which refugees may have a statutory defence and not be criminalised for arriving in search of sanctuary. For those who are not refugees, the offence is untouched. It would repeal Section 37 of the Nationality and Borders Act 2022, with its bad-faith interpretation of the convention. Apart from anything else, is it really a good use of a criminal justice system that is on its knees to prosecute even recognised refugees for illegal entry? This borders Bill and this Government might finally put clear blue water between a fair asylum system and the failed performative cruelties of the recent past. I beg to move.

[Baroness Ludford (LD)]

My Lords, I do not know whether the Opposition want to come in on this, but I may as well jump in. I support the noble Baroness, Lady Chakrabarti. Her amendment is simplified from her one in Committee. She is quite right that this Government ought to wish to stick to Article 31 of the refugee convention. That is what they maintained over the last few years, and it would be sensible and right to come back to that position. As she said, we can rely on the common law position, which I think was contributed to by the late Lord Brown of Eaton-under-Heywood, and rely on the court to understand what “directly” means. It can sometimes include short stops in transit— I think we can all understand why that might be—but it is a question of assessment in any individual situation. It is important to go back to the refugee convention definition and understanding for reasons of fairness and justice.

In the closing part of her remarks, the noble Baroness picked up on something that I was keen to ask the Minister. She repeated the statistics that she gave us in Committee: 556 people arriving by small boat were charged with illegal arrival and 455 were convicted, and the vast majority of those charged and convicted had ongoing claims for asylum. In her remarks just now, she added that a lot of these people who were prosecuted had refugee status. I wonder: what is the point of adding new pressure on the criminal justice system, particularly in the light of all the demands on it that we heard about in this House yesterday? It cannot cope. Surely the important thing is to get on with assessing someone’s claim so that you can decide whether they have a valid refugee or other humanitarian claim and are allowed to stay—or not, in which case they ought to be deported. What is the point of wasting time, resources and energy, and putting people who may well get refugee status through that process, when you go on to grant them refugee status anyway? What is the point of the diversion? I have never understood this, to be perfectly honest.

The noble Baroness is offering a way to get back to a sensible position. Of course people who are guilty of smuggling and trafficking offences might still get caught by this, but we have a baroque arrangement at the moment. We need to cleave to the refugee convention, which has been the traditional position of the Labour Party in opposition—and ought to be in government—and not waste resources, time and everything else in prosecuting people instead of just getting on with the asylum determination and removing those who have no claim. The present situation does not make any sense, in justice or in practicality. I hope the Minister can give a positive response to the noble Baroness’s amendment.

[Lord Cameron of Lochiel (Con)]

My Lords, I listened very carefully to the noble Baroness, Lady Chakrabarti, whose long and well-known experience in these matters I greatly respect. I have sympathy for the underlying principle of her amendment, but I fear that, though well-intentioned, it would take us back to the position that, in our view, Parliament quite rightly sought to clarify in the Nationality and Borders Act 2022.

Section 37 of that Act was introduced for a very clear reason: to ensure that the UK, while complying with its obligations under the refugee convention, could define in domestic law how those obligations should be interpreted and applied. This amendment would lead to the repealing of Section 37 and the expansion of the statutory defence and, in our view, would go far beyond what the refugee convention requires.

Article 31 exists to protect those who come directly from danger and present themselves without delay. It does not exist to provide a blanket immunity for all irregular entrants, including those who have travelled through safe countries and have not claimed asylum there.

In our view, there has to be a system that is firm, not open to abuse and, above all, determined by Parliament. Diluting the provisions of the 2022 Act would undermine confidence and encourage, not reduce, the dangerous business of people smuggling. For those reasons, although I acknowledge the sincere spirit in which this amendment is brought forward, I respectfully urge noble Lords to oppose it.

[Lord Katz (Lab)]

My Lords, Amendment 74, tabled by my noble friend Lady Chakrabarti, seeks to remove the requirement that asylum seekers must come directly to the UK to benefit from the defence provided by Article 31 of the refugee convention. Furthermore, it seeks to expand the list of specific offences set out in Section 31 of the Immigration and Asylum Act, which asylum seekers who arrive illegally have a statutory defence against. I thank my noble friend for her amendment, while noting the previous amendments she suggested during the passage of the Bill, and for her kind words about my response to the debate on her previous amendment in Committee.

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. Indeed, all our asylum-related legislation, rules and guidance will continue to fully comply with all our international obligations. I hope that provides a level of assurance for the avoidance of any doubt. All claims which 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 the background of published country information.

The Government consider that those fleeing persecution should seek asylum in the first safe country in which it is reasonable to do so. This is in the asylum seeker’s best interest, serves to reduce the risk inherent in making further dangerous attempts to reach the UK illegally, and prevents further profit going to criminal people and those who organise the terrible criminal offences the Bill is designed to stop.

Providing a statutory defence to illegal arrival and illegal entry would, in effect, provide a defence to virtually all individuals who reach the UK by illegal means. It is difficult to see how this could be seen to support the Government’s stance on enforcing the law on illegal migration. Again, it would only undermine the confidence of UK citizens in our wish to maintain a fair and safe immigration system.

Both my noble friend Lady Chakrabarti and the noble Baroness, Lady Ludford, raised the question of recognised refugees being prosecuted for illegal entry, so I will spend a bit of time explaining the grounds when considering whether or not to make an arrest. In that case, Immigration Enforcement criminal and financial investigators must consider whether or not the suspect is likely to benefit from the statutory defence in Section 31. They must consider the defence as set out in the Immigration and Asylum Act 1999, as well as the published CPS guidance on statutory defences. If it is deemed that the individual would benefit from the defence, they are not to make an arrest. If evidence suggests that a prosecution would be possible then continuous liaison between investigators and the relevant asylum caseworker must be undertaken throughout the asylum claim process.

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A decision about whether a Section 31 defence applies must not be made without discussing and agreeing the decision with a supervising officer at chief immigration officer level or above. All details of the subsequent assessment and decision-making process must be recorded on the case management system. When referring a case to the CPS or devolved equivalent in the event that a prosecution is deemed to be appropriate, the investigators must pass on all relevant information about the suspect’s personal status and circumstance, including age and any physical or mental health conditions, as well as their status in the UK. The CPS must be updated on any progress in the asylum process.

This is all to say that the decisions to pursue prosecutions in cases where there is an active asylum claim are not taken lightly and to give some assurance that there is a process in place to ensure that those who stand to benefit from the defence in Section 31 are not prevented from doing so. I hope that detail provides some extra level of assurance to my noble friend Lady Chakrabarti and to your Lordships’ House. The Government remain committed to the protection of refugees and to their obligations under the refugee convention 1951. Given that, I invite my noble friend Lady Chakrabarti to withdraw this amendment.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords for even being in the Chamber, let alone participating in this short debate. I am particularly grateful to my noble friend for his courtesy and sincerity once more.

As to the advice that he has been given, I am afraid there is a circularity about saying, “Do not worry, because we will look very carefully at whether someone has a defence”, when, on the basis of the correspondence I have been sent and this legislation, there will be no defence, even for a genuine asylum seeker or a recognised refugee who came in a boat. To me, that is a huge contradiction: “Welcome to Britain. You are a refugee and the beginning of your life in the UK will be criminal prosecution”.

None the less, I know my arithmetic, and I do not want to test noble Lords’ patience much longer— I know that there is other business. I am afraid this will have to be sorted out by the DPP or in the criminal and appeal courts. Perhaps in the longer term, the Government may think again—who knows? For now, I beg leave to withdraw my amendment.

Amendment 74 withdrawn.

Amendment 75

Moved by

[Baroness Jones of Moulsecoomb]

75: After Clause 48, insert the following new Clause—
“Duty to have due regard to family unity(1) A relevant authority must, in the exercise of relevant functions, have due regard to the need to promote the unity of the family.(2) Without prejudice to the generality of subsection (1), a relevant authority must, in the discharge of its duty under that subsection, have due regard to—(a) the public interest in children being properly brought up,(b) the right of children to be cared for by their parents unless this would be contrary to the child’s welfare,(c) the right of children to have direct contact, in person, with members of their families, unless this would be contrary to the child’s welfare, and(d) the principle that maintaining contact with family members by electronic means of communication is not an adequate substitute for direct contact in person.(3) This section is subject to section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children); and nothing in this section requires or authorises a relevant authority to do anything which is contrary to the welfare of any child (whether that child is in the United Kingdom or not).(4) Nothing in this section—(a) requires or authorises the Secretary of State or an immigration officer to refuse to grant a person leave to enter or remain in the United Kingdom where they would, apart from this section, have granted such leave, or(b) requires or authorises the First-tier or Upper Tribunal to find that a ground of appeal under section 84(1)(c) or (2) of the Nationality, Immigration and Asylum Act 2002 is not made out when it would not, apart from this section, have so found.(5) In this section—“child” means a person under the age of 18, and “children” shall be construed accordingly;“relevant authority” means—(a) the Secretary of State,(b) the First-tier Tribunal, and(c) the Upper Tribunal;“relevant functions” means—(a) any function of the Secretary of State in relation to immigration or asylum;(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer in relation to immigration or asylum;(c) any function of the First-tier or Upper Tribunal in connection with the determination of any ground of appeal under section 84(1)(c) or (2) of the Nationality, Immigration and Asylum Act 2002.”

[Baroness Jones of Moulsecoomb (GP)]

My Amendment 75 would insert a new clause after Clause 48 to place a duty to have due regard to family unity on the Secretary of State, immigration officers, and the immigration and asylum tribunals. This is supported by the organisation Bail for Immigration Detainees. The purpose of this amendment is to ensure that, in the exercise of immigration and asylum functions, those charged with making decisions have due regard to the need to promote the unity of the family. It is a modest but vital safe- guard to ensure that decisions affecting people’s lives are made with a clear understanding of the human consequences.

Subsection 1 of the proposed new clause sets out the core duty that every relevant authority, in carrying out its functions, must have due regard to the need to promote family unity. Subsection 2 then provides helpful clarification of what that means in practice. These principles are rooted in common sense and compassion. They simply reflect what every parent, teacher and social worker knows: that children who have the love, stability and presence of their families can thrive.

This proposed new clause would complement the existing duty under Section 55 of the Borders, Citizenship and Immigration Act 2009, which already requires regard to be had to the welfare of children. Subsection 3 makes that explicit. The new duty would sit alongside Section 55 and be subject to it, ensuring that the welfare of the child remains paramount.

Equally importantly, proposed new subsection 4 provides clear limits. It ensures that nothing in this clause would require or authorise the Secretary of State or a tribunal to refuse leave to enter or remain, or to allow or dismiss an appeal contrary to what they would otherwise have done. In other words, this clause does not create new rights to remain in the UK. It simply creates a duty of consideration and a framework for fairer, more humane decision-making.

This amendment would not diminish the Government’s ability to control immigration. It would simply require that, when exercising discretion or assessing proportionality, decision-makers take proper account of family unity and children’s rights to grow up in the care of their families. By including the First-tier and Upper Tribunals within the scope of this duty, we would ensure that the principle applies consistently across the whole system, from the Home Office desk to the final appeal. It would give tribunals a clear statutory steer that family relationships are not peripheral to human-rights decisions but are central to them.

The UK has long recognised through international commitments and domestic law that the family is the fundamental unit of society. This amendment would give practical effect to that principle in the immigration and asylum context. It reflects our obligations under Article 8 of the European Convention on Human Rights and under the UN Convention on the Rights of the Child, both of which emphasise the importance of maintaining family life. It does so in a proportionate way, respecting the primacy of the child’s welfare and the proper limits of executive power.

I hope the Minister will see that this amendment would strengthen rather than weaken the integrity of our immigration system by ensuring it operates with fairness, consistency and humanity. I beg to move.

[Lord Cameron of Lochiel (Con)]

My Lords, the importance of family life and family unity is a principle that no one in this House would dispute. The principle already has a firm statutory protection. Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes a clear duty on the Secretary of State to have regard to the need to safeguard and promote the welfare of children in the United Kingdom. It is a duty embedded in every decision taken by immigration officers and by tribunals that consider appeals.

With the greatest respect to the noble Baroness, the amendment before us would, in effect, duplicate these existing safeguards and reduce them in a way that risks generating uncertainty and inconsistency. It would open the door to litigation and invite the courts to revisit and reinterpret established principles of immigration law. For those reasons, I respectfully urge the House to resist the amendment.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Jones, for her Amendment 75. As she outlined, it would impose a duty on the Secretary of State to have due regard to the unity of family in exercising immigration functions. She has raised an important point, but the amendment is unnecessary. I will try to explain for her the reasons why.

The important protections it seeks are already firmly embedded in legislative frameworks and policies, such as Section 55 of the Borders, Citizenship and Immigration Act 2009, the Human Rights Act 1998, and the public sector equality duty derived from the Equality Act 2010. As announced in the immigration White Paper in May, we are exploring further reforms to the family route. As she mentioned, there is already a statutory duty to promote and safeguard the welfare of children in Section 55 of the Borders, Citizenship and Immigration Act 2009. That places a duty on the Secretary of State to make arrangements to ensure that immigration, asylum, nationality and general customs functions are discharged having regard to the need to safeguard and promote the welfare of children in the UK. That every child matters is set out in our statutory guidance.

The Immigration Rules balance the right to family and private life under Article 8 and the right to respect for private and family life under the European Convention on Human Rights. Under Part 5 of the Nationality, Immigration and Asylum Act 2002, Parliament set out the view of what the public interest requires in immigration cases, engaging the qualified right to respect for private and family life under Article 8. It requires the courts to give due weight to this public interest when deciding such cases.

Where an applicant under the family rules does not meet all the core eligibility requirements, the decision-maker will consider whether there are exceptional circumstances which would render refusal a breach of Article 8. This involves considering whether refusal would result in unjustifiably harsh consequences for the applicant or, indeed, their family. Under Section 149 of the Equality Act, which I mentioned earlier, the Secretary of State must have due regard to eliminating discrimination, advancing equality of opportunity and fostering good relations. Due regard for family unity must not limit the ability of the Secretary of State for the Home Office to remove serious criminals who would do us harm. Article 8 claims, as we will discuss, will succeed only if a deportation’s impact on a qualifying child is unduly harsh. The immigration White Paper confirmed plans to legislate for easier removal of such offenders under Article 8, but not in other circumstances. For those reasons, I respectfully invite the noble Baroness to withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

I hear so often in this Chamber that the amendments the Opposition have brought are completely unnecessary, it is already in law, and we do not have to worry our pretty little heads about it as it will all be fine. The fact is, it is not. This issue, in particular, will continue to make an awful lot of money for lawyers, who will fight what the Government are doing. However, on that basis, I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Amendments 76 and 77 not moved.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

I cannot call Amendment 77A, as it is an amendment to Amendment 77.

Amendment 78

Moved by

[Lord Cameron of Lochiel]

78: After Clause 48, insert the following new Clause—
“Rights of Chagossians(1) Notwithstanding the provisions of any agreement or treaty between the United Kingdom and Mauritius, or any change in the sovereignty status of the British Indian Ocean Territory, the immigration rights of Chagossians with respect to the United Kingdom may not be altered or amended in any way.(2) In this section—“the immigration rights of Chagossians with respect to the United Kingdom” means any visa, indefinite leave to remain or immigration status, with respect to the United Kingdom, granted to a Chagossian or the descendant of a Chagossian;“Chagossian” means a person who was a citizen of the United Kingdom and Colonies by virtue of the person’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.”Member’s explanatory statement
This amendment would ensure that any change in the status of the British Indian Ocean Territory would not change the UK immigration rights of Chagossians.

[Lord Cameron of Lochiel (Con)]

My Lords, Amendment 78 is a saving provision to protect the immigration rights of the Chagossian community, notwithstanding any agreement the Government may make with Mauritius. This is neither the time nor the place to revisit the arguments made in this House and the other place regarding the Diego Garcia military base Bill, but I thank the Government for agreeing not to proceed with Report stage of that Bill until the new year, following calls from these Benches for additional time for further scrutiny. We fundamentally disagree with the Government’s agreement with Mauritius, but if it is to be implemented, the Chagossians must have their say and Ministers must listen.

This new clause would give the Chagossian community the peace of mind and security of immigration status they deserve, and I urge the Government to take this opportunity to do the right thing and protect the Chagossians from any future weakening of their immigration rights as a result of any agreement with Mauritius. I beg to move.

[Lord German (LD)]

My Lords, we support this amendment because it would protect the rights of Chagossians. After the treaty enters into force, Chagossians will not be able to apply for British Overseas Territories citizenship under the route that was set up in 2022. Those who currently hold British Overseas Territories citizenship through their connection to the British Indian Ocean Territory will not be able to pass it down to descendants born after the treaty enters into force. If any Chagossian who has claimed BOT citizenship has a child born before entry into force, that child will automatically hold British Overseas Territories citizenship and does not need to make an application under the 2022 route before entry into force. If any member of the Chagossian community does not already have British Overseas Territories citizenship and would like to claim it based on their connection to the British Indian Ocean Territory, they will be able to do that through the 2022 route until the treaty enters into force. That is the issue about which we need an explanation. That protection of rights ends when the treaty comes into force.

I remind the House that the International Agreements Committee, of which I am a member, discussed this matter and took evidence from Ministers. The summary of the evidence received was as follows:

“We regret that members of the Chagossian community feel that their interests were not sufficiently taken account of in the negotiation of this agreement”.


With that knowledge, it is important that we secure the rights of Chagossians—not just resettlement in the Chagos islands themselves, but that the status the United Kingdom has given them is protected.

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

My Lords, Amendment 78 aims to prevent changes to the UK immigration status held by Chagossians and their descendants, regardless of any agreement or treaty between the United Kingdom and Mauritius or any change in the sovereignty status of the British Indian Ocean Territory. Under UK law, as noble Lords noted, Chagossians and their descendants are either automatically British citizens or have a right to apply to be registered as British citizens. As British citizens, they are free to make their home in the UK without being subject to immigration control.

The Government have been very clear that the Diego Garcia Military Base and British Indian Ocean Territory Bill will protect British nationality rights, so I give the noble Lord, Lord German, that assurance. The treaty and the Bill make no changes to the citizenship that Chagossians currently hold or to their right to claim British citizenship. As the noble Lord, Lord Cameron, mentioned, this is being debated in respect of other legislation. All Chagossians will remain eligible for British citizenship and free to make their home in the UK should they wish to. The immigration status of Chagossians living in the UK who do not wish to take up British citizenship will not be impacted by the agreement between the UK and Mauritius.

In the Government’s view, this amendment is therefore unnecessary and would prevent the UK Government exercising their lawful power to amend or alter the immigration status of those subject to immigration control in the UK—for example, if the basis upon which someone’s immigration status was granted changes, or, as we have debated many times in your Lordships’ House, if an individual is convicted of a criminal offence for which they receive a custodial sentence of 12 months or more. Furthermore—this is the salient point—the amendment would also effectively prevent Chagossians applying to amend their immigration status and prevent them exercising their right to apply for British citizenship, should they so choose. I therefore ask the noble Lord, in the light of my comments and the assurance I have given, to withdraw the amendment for the reasons outlined.

[Lord Cameron of Lochiel (Con)]

My Lords, I am grateful, especially to the noble Lord, Lord German, for his support for this amendment. I am delighted finally to be on the same page as him on this Bill, after many days of Committee and Report. He made a compelling argument for the basis of this amendment, and it is a topical question. In our view, it is an opportunity to do right by the Chagossians and give them the statutory certainty they deserve, but in the light of what has just been said by the Minister, I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

19:18

Consideration on Report adjourned until not before 7.58 pm.