Nationality and Borders Bill

Debate between Baroness Chakrabarti and Lord Bishop of Durham

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[The Lord Bishop of Durham]

My Lords, I shall speak to Amendments 40 to 45 in place of my friend, the right reverend Prelate the Bishop of Gloucester, who greatly regrets that she cannot be in her place. She is very grateful to the noble Baronesses, Lady Lister and Lady Chakrabarti, for their support, and to Women for Refugee Women for its briefings.

Amendments 40 to 44 relate to Clause 31. They are being brought back at this stage because the Government’s response stopped short of providing the reassurances we hoped for. Some 27 organisations with significant expertise in supporting people seeking asylum support these amendments to Clause 31.

In Committee, the Minister stressed that Clause 31 was necessary to provide clarity and consistency of decision-making, the argument being that proving a status of persecution on the basis of reasonable likelihood is too vague and inconsistently applied. Clause 31 seeks to resolve this apparent lack of clarity by instead inserting the balance of probabilities test and a new fear test. This will raise the standard of proof for gaining refugee status, which will have a disproportionate impact on certain vulnerable groups. For women fleeing gender-based violence and those seeking asylum on the grounds of sexuality, providing this increased proof will be difficult and is likely to be highly traumatising, particularly given what we already know of the Home Office’s culture of disbelief and approach to such victims. For this reason, the UNHCR and, indeed, UK courts have consistently applied the reasonable likelihood test. Clause 31 will put us consciously and deliberately out of step with the way the UNHCR believes that the convention should be interpreted and how our own courts, notably the Supreme Court, have interpreted it.

What is most odd, and the reason for pressing this again, is that the Government believe this change will provide clarity. It is not clear why this should be true. There is already a problem with disbelief in the Home Office, which can be readily shown by the fact that 48% of appeals against the Home Office’s decisions to the First-tier Tribunal are successful, and 32% of judicial reviews are settled or decided in favour of claimants. Clause 31 does not seem to provide any additional clarity. Adding two different limbs to the test with different standards of proof seems a recipe for creating more confusion, making it harder for legitimate victims and so inevitably prompting more appeals. Amendments 40 to 44 therefore look to keep the status quo standard of proof and keep us aligned with the UNHCR and existing UK case law.

I turn briefly to Amendment 45, which relates to Clause 32. This was discussed at length in Committee and I will not go over the old ground, but in short, the interpretation of the convention applied in Clause 32 seems punitive towards women and other victims who use the particular social group reason without any clear or positive purpose. As the noble Baroness, Lady Lister, argued in Committee, if Clause 32 is necessary to clarify the “particular social group” definition, there is no reason it could not be provided by clarifying once and for all that the two conditions are alternatives, not cumulative, as has been the understanding in UK law since Fornah and was recognised by the Upper Tribunal as recently as 2020. This would provide clarity without disadvantaging women and other vulnerable groups.

More than 40 organisations in the ending violence against women and girls and anti-trafficking sectors have supported this amendment to Clause 32. This week, three UN special rapporteurs released a statement on the impact of the Bill, in particular Clause 32, on women. I urge the Minister to listen to their plea. As of 2019, only 26% of asylum applications have come from women. Why would we want to make it harder for legitimate victims of gender-based violence and other gender-related forms of persecution to seek help? Might the Minister say why gender is not mentioned in Clause 32 in the way that sexual orientation is, since it is mentioned in the EU directive on which the Government seek to rely?

Clause 32 not only reverses UK case law but does so against the UNHCR’s standards, following an interpretation of EU law that was rejected by our own Upper Tribunal in 2020. The Home Office did not appeal that decision; nor was that change included in the New Plan for Immigration. It seems to have come from nowhere with little scrutiny or expert oversight. As with Amendments 40 to 44, Amendment 45 is not radical. It simply asks that the Bill continue to operate with the status quo interpretation of the 1951 convention, which is well understood and used by UK courts. The alternative is an unnecessarily punitive barrier being put in front of vulnerable groups. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I am rationing my interventions on Report to facilitate the early and many necessary Divisions. I know that other critics of this Bill are doing the same; I am grateful for that.

Given the events in the last century that led to the creation of the refugee convention, it is particularly distasteful that so much of the Bill seeks to rewrite the convention and its jurisprudence against the interests of the refugee. The Government protest otherwise, of course, but all the world’s leading scholars, practitioners and custodians disagree. I am glad to say that your Lordships’ House gave its own view on that general proposition very clearly earlier this week.

Clause 31 is a case in point. I support the right reverend Prelate’s amendments to it, not least because, among other things, they seek to delete the cross-referencing to Clause 34, which absolutely denies refuge to those who do not currently face a well-founded fear of persecution in part of their country. If one looks at the end of Clause 34, there is no discretion there at all. Although we are grateful for the Minister’s earlier comments about Ukraine, convention protection is based on international law, not exceptional executive largesse. If these clauses are not amended, a Ukrainian refugee might well be denied refuge on the basis that they could return to, for example, a part of their country that is not currently occupied or being bombarded by Russia. There is no discretion in Clause 34 at all, despite Ministers waxing lyrical about discretion and case-by-case analysis being so important. This is discretion that works against the refugee, with convolutions and contortions, when it would be for the courts to protect the refugee.

Another trick that has been used in Ministers’ speeches at various times during the passage of this Bill is talking about Parliament having the right to rewrite and interpret the convention—“Parliament this, Parliament that”. However, they use “Parliament” as a euphemism for “the Home Office”, and it is not. I believe I know what your Lordships’ House of Parliament thinks about that.

Nationality and Borders Bill

Debate between Baroness Chakrabarti and Lord Bishop of Durham

Committee stage
Tuesday 8th February 2022 Lords Chamber

[The Lord Bishop of Durham]

I will try to edit my speech as I go. I support Amendment 118, to which I was pleased to add my name. We all agree that we do not want unsafe journeys, and there is no silver bullet: the situation is complex. If a deterrent was really the answer, securitising the Eurotunnel and the ferry ports has not worked; it has just created even more dangerous routes. So we must have more safe and legal routes.

The major reason I support the idea of a humanitarian visa is that it is a further safe and legal route. It also addresses the issue of people coming from the countries where there are smaller numbers who face persecution and so on, for whom bespoke schemes are never going to be created. Last year, only 93 people arrived from Iraq, five from Yemen, none from Iran and 36 from Sudan. That is all those who were resettled last year. The focus became so heavy last year on Afghanistan and Hong Kong, through the BNO scheme, that all other refugees appeared to be forgotten, so we need this kind of visa. I hope the Minister will not pick holes in the way the amendment is worded because the point is that this kind of visa needs to be looked at.

I also speak in favour of Amendment 116—it is very nice to speak with the noble Lord, Lord Horam, on one occasion. During the Syrian crisis of 2015, a target was set of 20,000 and it helped galvanise everybody with a vision of what could be done. It helped local authorities to understand what kind of numbers they might expect and so on. We also saw through that process the creation of the community sponsorship scheme, so we came up with a new thing through a targeted number. Ten thousand is a number widely supported, as the noble Baroness, Lady Meacher, noted, by huge numbers of refugee organisations because the UNHCR has identified that it is, roughly speaking, our fair share across the world. It is not a number plucked out of thin air but from looking at our fair share across the globe. I hope that we will hear positively the idea that it can happily include the Afghan citizens resettlement scheme. I shall stop there because we need to keep moving.

[Baroness Chakrabarti (Lab)]

My Lords, this is the safe-route group and I associate myself with so much of what I have heard already, although I signed the amendments in the names of my noble friend Lord Dubs and the noble Baroness, Lady Kennedy of The Shaws, who is absent. We have heard already about the many ways in which the Government try to have it both ways in the Bill. On a previous group, we heard from the Minister how, for example, European precedent is to be hugged if it is deleterious to the refugee but shunned if it means co-operation and burden-sharing. We have understood that the Government, essentially, want to make it harder with the Bill to get here but if you manage to get here, it will be harder to qualify for protection because we are rewriting the convention.

The Government tell us that they do not want people coming via unsafe routes, in little boats and so on, yet they do not provide adequate safe routes—or maybe they do, but if so they do not want it to be in statute because while it is important to fetter judicial discretion in statute, Home Office largesse should not be similarly constrained, structured or put in law. This group deals with the final two contradictions in particular: providing the safe routes and putting them in statute. For those two reasons I really hope that the Minister, who I know to be a compassionate and logical person, will see the need for something in statute to go with sentiment about safe routes.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Bishop of Durham

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.

[The Lord Bishop of Durham]

That is exactly what it says in the paperwork we have.