Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

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

[Baroness Hamwee (LD)]

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

[Baroness Lister of Burtersett (Lab)]

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

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

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

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[Lord Davies of Gower (Con)]

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

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

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


and,

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


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

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

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

[Lord Lemos (Lab)]

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

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[Lord Davies of Gower (Con)]

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

[Lord Hanson of Flint (Lab)]

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

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

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

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

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

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

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

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

Moved by

[Baroness Hamwee]

165: After Clause 48, insert the following Clause—
“Reuniting unaccompanied child refugees with family members(1) Within six months of the passing of this Act, the Secretary of State must by immigration rules make the changes set out in subsections (2) to (6).(2) The requirements to be met by a person seeking leave to enter the United Kingdom as a child relative of a person or persons given limited leave to enter or remain in the United Kingdom, as a refugee or beneficiary of humanitarian protection, are that the applicant— (a) is the child, grandchild, sister, brother, nephew or niece of a person or persons granted limited leave to enter or remain as a refugee or beneficiary of humanitarian protection granted as such under the immigration rules,(b) is under the age of 18,(c) can, and will, be accommodated adequately by the person or persons the child is seeking to join without recourse to public funds in accommodation which the person or persons the child is seeking to join, own or occupy exclusively,(d) can, and will, be maintained adequately by the person or persons the child is seeking to join, without recourse to public funds, and(e) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.(3) The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the close relative of a child with limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection are that the applicant is—(a) a parent, grandparent, sister, brother, aunt or uncle of a child with limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection,(b) joining a refugee or beneficiary of humanitarian protection with limited leave to enter or remain in the United Kingdom who is under the age of 18 and not living with a parent or grandparent, and(c) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds.(4) Limited leave to enter the United Kingdom as an applicant under subsection (2) or (3) may be granted for five years provided that, on arrival, a valid passport or other identity document is produced to the Immigration Officer and the applicant has entry clearance for entry in this capacity. Limited leave to remain in the United Kingdom as an applicant under subsections (2) or (3) may be granted provided the Secretary of State is satisfied that each of the requirements of subsections (2) or (3) is met.(5) Limited leave to enter the United Kingdom as an applicant under subsection (2) or (3) is to be refused if, on arrival, a valid passport or other identity document is not produced to the Immigration Officer and the applicant does not have entry clearance for entry in this capacity. Limited leave to remain in the United Kingdom as an applicant under subsection (2) or (3) is to be refused if the Secretary of State is not satisfied that each of the requirements of subsections (2) or (3) is met.(6) Civil legal services are to be provided to an applicant under subsections (2) or (3) in relation to rights to enter, and to remain in, the United Kingdom pursuant to schedule 1, subsection 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”Member’s explanatory statement
This new clause would require changes to the immigration rules to extend the family members that could apply to join an unaccompanied child refugee in the UK, to include parents, grandparents, sisters, brothers, uncles and aunts, and to allow unaccompanied child refugees to sponsor close adult family members to join them in the UK. It also provides for legal aid to be available in such cases.

[Baroness Hamwee (LD)]

My Lords, in moving Amendment 165, I will also speak to Amendments 166 and 178 in my name and that of my noble friend Lord German. I also have my name to Amendment 177 in the name of the noble Lord, Lord Dubs. I am sure that none of us is taking it personally that the numbers listening have suddenly so reduced.

I would have liked to put forward amendments that built constructively on what is in the Bill, but, not long before the last day in Committee, the Home Office suspended its rules relating to refugee family reunion. It also gave us the prospect of a framework, to be introduced in the spring, even more restrictive than what was in place when the Bill arrived in this House. So I do not have the basis on which many of us have sought to build, over a good while, to enable refugees to be with their families in the UK with fewer restrictions than are in place at the moment—and preferably none.

Without making a Second Reading speech—I am aware that saying that will make it sound like a Second Reading speech—I want to start with some general observations, the first of which is that family reunion is a safe and managed route. I will take my numbers from briefings from some of the many organisations within the sector, which have been so helpful on this subject and throughout the passage of this Bill. In 2024, just over 4,000 separated children claimed asylum in the UK, and there were about 1,400 in the first half of this year. The top nationalities of these children are telling, and they reflect the severity of the crises that they are fleeing: Sudan, Vietnam, Iran, Afghanistan, Eritrea and Somalia. In other words, the vast majority of children arriving irregularly are escaping war, persecution and authoritarian regimes, and most lack access to any recognised regular route to seek protection in the UK.

They are not a threat to the integrity of the refugee system, and these amendments are intended to make the route safer and to make it a safe route for more families and more family members who do not come within the current categories—more than can be achieved by the one-in, one-out arrangement. The risks to unaccompanied asylum-seeking children are obvious. The UNHCR tells us that people smugglers are particularly likely to be resorted to by children who are alone. They are seduced by smugglers when family reunion is delayed or at risk. I recall that the Minister said he would be able to bring the House more information about the Home Office supporting unaccompanied children. I do not know whether he will be able to tell the Committee anything today—or, if not, to tell noble Lords when we might receive more information about the support available.

There are risks to other family members. Children and women are often trapped in very dangerous situations and resort to “small boats”. Families should be together. How often do politicians talk about the importance of family? I have the impression that fewer comments are made to this effect than there used to be. What is the damage if Governments keep them apart? People may be separated en route—children separated from adults and adults separated from children—and it is no wonder that some children present at the border as adults. They have had to learn to look after themselves.

The criteria that we understand are to be applied for the greater admission of family members will include long periods of residence here—that, of course, is not entry; it will be settlement—better facility with the English language, and financial requirements. In our view, all of these will exacerbate the precarious situation that so many family members find themselves in.

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[Baroness Hamwee (LD)]

My Lords, I am conscious that we have many groups of amendments to get through, so I shall resist the temptation to respond to everything that has been said—the Whip is nodding vigorously. However, I shall make just a few points. First, at some points in this debate we have fallen into the trap of conflating asylum and refugee policy with immigration policy, and we should resist that. Secondly, on references to traffickers, smugglers and other criminals, they will find new modi operandi, and legislation is not going to achieve everything, or indeed very much, in that area. That is why proposing safe routes is so important, as it is tackling the issue from the other end.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Monday 8th September 2025 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

Noble Lords will note, being terribly observant, that I am not my noble friend Lady Jones of Moulsecoomb. Around about now, I hope, she is emerging from theatre, having had an operation on her foot. She will not be in the House for a few weeks, so I am afraid that I am picking up amendments from my noble friend. I apologise for not having taken part at Second Reading, but the timing of the operation was uncertain, so this is where we have got to.

I am moving Amendment 136 and will speak to Amendment 187, both in the name of my noble friend. They propose two new clauses which would address the rights of children. Most of us will understand—and I hope and believe that most of us accept—that we in the UK regard the rights of children as enormously important and that, when making decisions, we have always to keep in mind the best interests of the child. These will often be British children or children resident in Britain.

To set out a couple of points of context for this, I note that, as many will be aware, Article 3 of the UN Convention on the Rights of the Child is about the best interests of the child being at the centre of decisions. Article 5 talks about the importance of parental guidance for children and children’s rights, and Article 9 says that separation from parents should be avoided wherever possible.

Let us think about what it means for the child if a parent is deported. I refer to some testimony from an organisation called Bail for Immigration Detainees which talks about what it is like when a child sees their parent facing deportation. Obviously, it is devastating when families are torn apart and children face never seeing their parent in the flesh again. If a parent is deported to, say, Jamaica or India, it will be extremely expensive, perhaps impossibly so, for the child ever to be in their arms again. There are also the practical considerations. Families have arrangements. They take children to school, with employment fitting around it—one parent takes the children to school while the other is working. All those arrangements fall apart very suddenly, and the child is the one who suffers.

That is the context of these amendments, which the two proposed new clauses seek to ensure that the Bill addresses. Amendment 136 would amend the Nationality, Immigration and Asylum Act to address the rights of the child. As the explanatory statement sets out, it

“seeks to ensure that an Article 8 ECHR human rights claim by a foreign criminal sentenced to less than 4 years’ imprisonment can succeed if certain conditions are met”.

This is about a genuine and subsisting parental relationship with a qualifying child. It is about the reality of children’s lives, not just this year or next year but for the whole of their childhood.

Amendment 187 would insert into the Bill a new clause providing a

“Duty to have due regard to family unity”.


Again, this would put the rights of the child front and centre in the exercise of all immigration and asylum functions. It would apply to the Secretary of State, to immigration officers exercising immigration and asylum functions and to the First-tier Tribunal and Upper Tribunal in deciding human rights appeals.

We hear a lot about the problems and difficulties in our society. If we are to be a caring society that prepares our young generations for the future, I put it to the Committee that these two amendments would be a step in the direction of making sure that—as we so often claim to do—we put the rights of children first for the future, for all of us. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I will speak on the two amendments together. Section 117C, on the deportation of foreign criminals, which the noble Baroness is seeking to amend, provides at subsection (1) that this deportation is in the public interest. I suggest that the well-being of children is a matter of public interest. There is a lot of noise about the deportation of foreign criminals at the moment, and the noble Baroness has rightly focused on the position of children. As the noble Baroness has identified, the family unit, about which politicians talk an awful lot, is generally in a child’s best interest. I am not sure about there being public interest in children being properly brought up. I do not disagree with the concept, but I am not sure how you define it.

In Amendment 187, there is a reference to maintaining contact by electronic means. I have been aware over the years that, although the means have developed, “Skype families”, as they used to be called, were desperately distressing for everyone concerned. I heard one example many years ago of a child who thought that daddy had no legs, because they had never seen the father below chest level. So, although it is not Skype these days, the principle remains.

I wish the noble Baroness, Lady Jones, a quick recovery and I thank her for bringing this to the attention of the House.

[Baroness Chakrabarti (Lab)]

My Lords, I too wish a swift and full recovery to the noble Baroness, Lady Jones of Moulsecoomb. Her colleague has ably set out the thinking behind this amendment. I suspect I am more sympathetic to it than some members of the Committee, but I suggest the following additional observation on a point that it demonstrates, even to those who feel very anti anyone who has committed a crime ever being able to stay in the United Kingdom.

The amendment demonstrates that Article 8 of the convention is broadly drawn, so there is room for considerable debate about where the line should be drawn on what is a necessary and proportionate interference—for example, to prevent crime or for the purposes of immigration control. A great deal of latitude has always been allowed to signatory states as to where, in the first instance, democratic politics and the elected Government of the day think that discretion should be framed. For many years, Governments of both persuasions have attempted to structure that discretion—just as the noble Baroness, Lady Jones, is doing in one direction in this amendment—by a combination of primary legislation, Immigration Rules and policy. So, anybody who says that one needs to resile from the European Convention on Human Rights because of Article 8 is either misguided or not misguided at all and is doing this for various political reasons.

I have been a lawyer for only 31 years, but my understanding is that there have been only four removal cases since 1980 in which the UK Government have been found in violation of Article 8. So, if people are upset about the way domestic courts are drawing the line in particular cases, I suggest that that is something for domestic legislation—primary or secondary legislation, rules, guidance and so on. It is in no way a justification for some of the toxic debates about international human rights that we have heard in recent days, weeks, months and years.

[Lord Pannick (CB)]

I too send my best wishes to the noble Baroness, Lady Jones of Moulsecoomb. We shall miss, for a temporary period, her distinctive contribution to this House.

I am puzzled by this amendment, essentially for the reasons my noble friend Lady Chakrabarti mentions. Article 8 of the European Convention on Human Rights is part of our law. There are suggestions that proposals may be brought forward in relation to its application, but it remains part of our law. The Minister will tell me if I am wrong, but there is nothing in the Bill that purports to remove Article 8.

Article 8 requires adjudicators, tribunals and courts to have regard to family law issues and the interests of children and parents—families—and that seems entirely appropriate. There is a balance to be struck in these cases. We are talking about the deportation of criminals. Sadly, there are people here on a temporary basis who commit serious crimes and who need to be removed. It is right and proper that the interests of families are taken into account, but that already happens. I do not see the need for the amendments.

[Baroness Hamwee (LD)]

My Lords, I am sure the noble Lord is aware that there are particular statutory provisions on additional considerations in cases involving foreign criminals, and it is those that I understand the noble Baroness is seeking to amplify.

[Lord Cameron of Lochiel (Con)]

My Lords, I too offer best wishes, from these Benches, to the noble Baroness, Lady Jones, for a speedy recovery.

I am grateful to the noble Baroness, Lady Bennett, for tabling these amendments but, like several other speakers before me, it is our party’s position that the legislation already strikes a careful and considered balance between the public interest in deporting foreign criminals and the need to protect the rights of their partners and children under Article 8. Section 117C of the 2002 Act is clear: in the case of those sentenced to less than four years’ imprisonment, deportation is the default position unless one of two well-defined exceptions apply. Exception 2, to which Amendment 136 relates, already provides that where there is a genuine and subsisting relationship with the qualifying partner or qualifying child, and the effect of deportation on that partner or child would be “unduly harsh”, deportation should not proceed. So the amendment before us appears to restate protections that are already embedded in the legislation, and the courts already have the discretion—indeed, a duty—to interpret and apply that exception.

We have to be mindful of clarity in the law and not introduce duplicating or potentially confusing provisions. In short, with the greatest respect, the amendments would not meaningfully add to the safeguards already in place, and for that reason we cannot support them.

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It is all very simple. It is going to happen. The Government have the opportunity to make this work in a constructive and speedy way without being sued through the courts through judicial review and forced to do it—as will happen if this is not dealt with in this Bill. I commend the amendment strongly to the Committee and thank the noble Lord for moving it.

[Baroness Hamwee (LD)]

My Lords, self-evidently I am not my noble friend Lady Ludford, but her name is on this amendment on behalf of these Benches. The noble Lord described immigration law as labyrinthine. It certainly is. There are easier subjects in which to practise. As a society, we are very lucky that a lot of lawyers are prepared to sacrifice themselves—I do not say this lightly—to ensure that people are advised about the labyrinthine rules.

I am a member of the Constitution Committee of your Lordships’ House. At the moment, we are doing some work on the rule of law. I think we have raised with every witness the issue of access to justice. The committee is paying a lot of attention to that.

I want to pick up the reference to the 30 minutes of advice that is available. It is not 30 minutes; it is less than that, as I discovered when I visited Yarl’s Wood a few years ago. It was explained that you have to take out of those 30 minutes the time needed to bring the detainee to the room where the lawyer is holding a surgery, for want of a better word. Can it really be advice? The first job of a lawyer in this situation is to listen. In pretty much every case, if you were to do it properly, I think it must take longer than 30 minutes to have a detainee explain what has happened and what his or her history is, and not just in one period, taken consecutively. For a number of people—those who have been subject to human trafficking and modern slavery have been mentioned—it takes a long time to be able to tell that story. So there is listening, and then there is advice—or, rather, an explanation and then advice, let alone action. We know that action does not happen. These Benches very much support the noble Lord’s amendment.

[Lord Kerr of Kinlochard (CB)]

My Lords, I support the amendment from the noble Lord, Lord Bach. Had I been awake, I would have added my name to it, but I was sleeping in the Recess. He describes a situation which I do not think it is exaggerating to call critical. The numbers and percentages that he cites are shocking. The case for his amendment can be made on the grounds of fairness, access to justice and, as he said, the requirement for the Executive to carry out the laws that this place has passed. I agree with all that, and I do not think anybody in this House would disagree.

I will emphasise a point that the noble Lord made en passant and the noble Lord, Lord Carlile, made at greater length: we should not just act on this amendment on the grounds of fairness, equity and access to justice, but it makes sense in terms of economy. The costs of the delays in the system, which must in many cases result from inadequate preparation of a case, the wrong grounds being advanced and cases being deferred and having to be heard again, must be considerable. I have no numbers to offer, but I know that, in asylum cases, 50% of initial applicants have no legal representation and, in asylum appeals, 60% have no legal representation. That must prolong the process.

Like the noble Lord, Lord Carlile, I congratulate the Government on the efforts they are making to reduce the queues for the initial application stage and for appeals, getting rid of these backlogs which grew terrifyingly under the previous Administration while the emphasis was on the Rwanda scheme and people were taken off these cases. The Government’s efforts to get the backlogs down are admirable, but they would be assisted by putting into practice what this amendment calls for, so I support it on the grounds not just of equity, which is perhaps in itself sufficient, but economy.

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[Baroness Hamwee (LD)]

My Lords, the noble Lord has left out of his critique the requirement that the happy couple, as he described them, must both be at least 23 years old. When minimum income rules increased the amount of income that had to be shown in 2012, I heard a call-in debate about this on the radio. British citizens were affected; as he has said, it is not just about the foreigner. One person who called in said of the person who had been speaking, “Well, why can’t you just go and work in her country?” He said, very calmly, that it is not easy to find a job in mortgage broking in Nigeria.

[Lord Kerr of Kinlochard (CB)]

My Lords, I thank the noble Baroness, Lady Lawlor, for her interesting statistics. As a former chairman of a university court, I find high student numbers a cause for delight. I am not quite sure why we should see it as bad news; the university sector as a whole finds large numbers of students wanting to apply from abroad rather good news, and so do I.

I would like to put a question to the noble Lord, Lord Davies, about Amendment 198, on which the noble Lord, Lord Pannick, has expressed some doubts. I am struck by the plight of the British Romeo, who happens to go to Verona and meet Juliet. Not only does he have to tell her that they have to wait until they are both 23—the point made by the noble Baroness, Lady Hamwee—but they have to wait until he is earning £37,750 a year and until they have already been married for two years. Even then, they cannot be sure, because they have to get a place in the quota. The quota for Italy will be 7% of an unknown number, to be determined at some future annual date by the Secretary of State. So, they would be well advised to get up very early on 1 January, two years after they got married, and register their application to come to this country. On what basis, I ask the noble Lord, Lord Davies, does one pick 7%, and on what basis is the Secretary of State to pick the annual number?

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[Lord Bach (Lab)]

My Lords, I am not sure that the amendment in my name ought to be in this group, but it has to be somewhere, and it probably does not deserve to be on its own. I hope your Lordships will forgive me for moving away from the topic. The only link I have is that my amendment would add something to the clause that we are discussing, but that is out of convenience as much as anything else.

There seems to have been some confusion between the Home Office and those who have been advising me about this amendment. I do not think I am in a position to speak to it until my noble friend and I have had an opportunity to meet and discuss it. It is not a long amendment, but it is quite an important one. It relates to what the guidance says on immigration bail and what it should say going forward. I do not want to say much more about it now. We have lots of business to complete today and I imagine the Committee has heard too much from me anyway, so I am going to leave it there.

I do not have any intention of moving the amendment, but I invite my noble friend to meet me shortly. It would be a short meeting just to discuss whether there has been some misunderstanding between the department and those who have asked me to table this amendment.

[Baroness Hamwee (LD)]

My Lords, the Committee does not need me to repeat what has been said about Clause 43 by the noble Lords, Lord Anderson and Lord Kirkhope. I agree more than I can say with what they have said. Tagging, curfew, and requiring someone to be or prohibiting someone from being in a particular place at particular times, et cetera—the noble Lord, Lord Anderson, has explained what “et cetera” could mean in this situation—are all huge interferences with life in practical, emotional and psychological terms. It basically means that you cannot live a normal life. For instance, how would an international student pursue a course with these restrictions?

As the noble Lord, Lord Anderson, mentioned, the Constitution Committee made a recommendation regarding this clause in its report on the Bill. We have had a response today from the noble Lord, Lord Hanson, saying that the person affected can make representations to the Home Office and apply for a judicial review, which the Home Office says in its letter would “provide appropriate scrutiny”. That may be the topic for a whole other, long debate. Noble Lords will understand that I do not feel—I say this personally, because the committee has not had an opportunity to discuss this yet—that that is an appropriate or particularly helpful response.

The comments—the assurances, perhaps I should call them—made by the then Minister for Border Security and Asylum have been referred to. I would be surprised if this detail had yet been discussed within the Home Office, but one never knows, so perhaps it would not be out of place to ask the Minister whether the change of various Ministers within the department means that these assurances remain in place. Is this still what the Government think? Would they be able to give some sort of undertaking to this effect? However, I do not think that would completely answer our objections to Clause 43.

[Lord Deben (Con)]

My Lords, in an earlier debate on the Bill, my noble friend Lord Cameron of Lochiel reminded me that it is the purpose of the Opposition to oppose. That is why I find it impossible to understand why the Opposition are not opposing this clause. I thought that Conservatives were wholly against Governments being given powers without very clear parliamentary restrictions.

I understand the argument that, if people are allowed into this country with conditions and they break them, all kinds of things, perfectly rightly, can be carried out; I am not disagreeing with that. But I would have thought that it would not take much, looking around the world at the moment, to see how dangerous it is to have a law which can be used by Governments of any kind to do almost anything that they want to. We can look at the United States and see a President who appears to be trying to do things which the law does not allow him to do. Think what would happen if the law did allow him to make the kinds of decisions this clause suggests. I also say to my noble friends that, if this clause applied without any restrictions to citizens of this country, the very first people to object to that would be the Opposition.

Therefore, I hope that the Minister will be serious in accepting that the argument is not about immigration; it is about what powers the Government should be given, unfettered by parliamentary decision-making and the courts. It seems to me that the powers given to Governments under this clause are unacceptable. I am sure that they would not be misused by the Minister or any of his colleagues, but that is not to say that we do not have in this country politicians whom I would not trust with these powers—some of them, indeed, have been in power, and I would not have trusted them with these powers.

Having been a Minister for some 16 years, I always found it valuable that my decision-making should be kept within particular parameters laid down by Parliament. One was constantly being asked by civil servants and people outside to do this, that or the other, and one was able to say, “That is not within my power”. I do not think this is a suitable clause for a British Parliament to pass. We should rely on the law we have already or, if there is any gap in it, reduce that gap in a clause which is very specifically restricted so that we do not tempt any future politicians to behave improperly.

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Moved by

[Baroness Hamwee]

150: Clause 45, page 42, line 9, at end insert—
“(3A) In section 15, after subsection (7) insert—“(8) The Secretary of State may take such reasonable steps as they consider appropriate to ensure that employers and other persons referred to in section 14A(1) have been made aware of the provisions of sections 14A and 15A.””Member's explanatory statement
This amendment is intended to probe the impact on businesses and employers of this section.

[Baroness Hamwee (LD)]

Tempting as it is to continue the debate we have just had, I will resist. In moving Amendment 150, I will speak also to my Amendments 153 and 203D in this group.

I first make it clear that I support the right to work, which is dealt with in a less narrow way than by my amendments. My noble friend Lord German has Amendments 151 and 152. This is something for which these Benches and many other noble Lords have argued for years, for practical and economic reasons, including using the skills of those concerned, matters of dignity and so on, and because not being able to work should not be a punishment, which is how in some places it is perceived. There are a lot of issues that we could be debating around illegal working, including how vulnerable our laws make some people to exploitation.

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[Lord Hanson of Flint (Lab)]

The noble Baroness raises a number of issues. I start with the question of illegal employment and working. The Government are very exercised to ensure that, both in the Bill and in regular enforcement now being undertaken, we crack down on illegal employment, which effectively undercuts legitimate businesses, exploits individuals in that illegal employment and is not a good use for society as a whole, as a contributory factor. We are very focused on that, and the Bill focuses on a large amount of those elements.

Separately, the noble Baroness raises areas outside my direct responsibility, which are Department for Transport-related issues about enforcement and regulations. I will draw those remarks to the attention of the Transport Minister, who will be able to reflect on them and who is also exercised about the very issues she mentions.

The noble Baroness will also know, I hope, that in the Crime and Policing Bill, which will come before this House shortly, there are also measures to improve police powers on seizure of bikes, rather than prosecution of individuals, where there are digressions from the law. That means going through traffic lights, going on pavements, speeding and all those things where the police, rather than having to give a warning, will potentially now be able to seize an electric vehicle used in those ways under the Crime and Policing Bill. So the three different elements are all there.

In this current piece of legislation, the amendment the noble Baroness has put forward does not meet the requirements I am seeking to achieve. With that, I hope noble Lords will withdraw or not move their amendments.

[Baroness Hamwee (LD)]

My Lords, the Minister, whom I thank, started his response by saying that the Bill is not the right mechanism for the amendments. I think he was applying that comment to the whole group of amendments, not just to Amendment 154A. Without being psychic, I too have had my expectations met. Including a provision for the right to work would be the right thing to do, and it would be enlightened self-interest.

I too have never been persuaded by the idea of the right to work being a pull factor; there are plenty of push factors without one having to think about pull factors. Banning the right to work—as we have done, in effect—does not seem to have been a deterrent. That may answer the point.

I pay tribute to the work of the noble Lord, Lord Rees, in this whole space. He made a very powerful speech, but I thought that his amendment was less persuasive than his speech. I am more ambitious: I want to remove the restrictions so that the reports to the House can be on the impact of changes in the law, not just calling for changes in the law.

Mention was made of voluntary activity. I use the term “voluntary activity” rather than “voluntary work” because a problem for so long for people who want to put a huge amount of effort into volunteering is that it has been designated as work, not as voluntary activity. I was interested to hear the support of the noble Lord, Lord Jackson, for training. That would be a good move forward—it really would be—so I thank him for that.

I will return to overseas domestic workers. They do not, in reality, have the ability to change employers. We are leaving people in appalling situations that they cannot escape. The changes made in 2016 were minimal, and we have failed people whom we should be protecting. I am very sad that we cannot move the situation forward tonight, but I beg leave to withdraw the amendment.

Amendment 150 withdrawn.

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Moved by

[Baroness Hamwee]

155: Clause 46, page 43, line 28, leave out “reasonably practicable to do so” and insert “reasonable or reasonably practicable to do so having regard to other matters before or likely to come before the Tribunal”
Member’s explanatory statement
This amendment is intended to probe whether the resources of the Tribunal and legal aid practitioners are sufficient to ensure cases are heard fairly within this 24-week timeframe.

[Baroness Hamwee (LD)]

My Lords, this need not, I hope, take anything like as long as the last group of amendments. Clause 46 relates to an appeal when a protection claim has been removed, and Clause 47 relates to protection and other human rights. The issue I am probing is the scope that these clauses give for the Government or Parliament to impose deadlines on the tribunal in determining appeals—in this case, a deadline of 24 weeks from the institution of the appeal. I am not arguing that appeals should not be dealt with as speedily as possible; instead, I would like to understand the scope for the tribunal to say, “Sorry, we can’t meet this timeframe”. In particular, how far can regard be had to other cases? Is it just for particular cases?

The wording is

“where the Tribunal considers that it is not reasonably practicable to do so”.

Is that confined to a particular appeal or is it about the workload in general? I am very uneasy about a statutory deadline on how tribunals of the judiciary operate. I know that we will be given some opportunities to be briefed on and to discuss the new procedures that the Government have in mind, but we must deal with this legislation as it is in front of us now. I beg to move.

[Lord Davies of Gower (Con)]

My Lords, at the heart of Amendment 157, in my name and that of my noble friend Lord Cameron of Lochiel, is the fundamental principle that we must reduce the backlog, unblock the immigration system and ensure that people are not left waiting endlessly for a decision on their appeal. It is in no one’s interest that asylum seekers should be kept in hotels and HMOs for weeks on end while decisions are being made on their appeal. Delay does not serve anyone.

The present situation is intolerable. Recently reported statistics cited by the Law Society show that the waiting time for an appeal decision is, on average, nearly 50 weeks. There is almost a year of uncertainty, during which applicants remain in taxpayer-funded accommodation and support. It is in precisely this space that vexatious claims can be lodged, with the appeals process used not to seek justice but to delay removal and prolong the benefit of support. This is not acceptable, and it undermines public confidence in the integrity of the system.

Our amendment seeks to require the Secretary of State, first, to publish a clear date by which he expects appeals to be determined within a 24-week period, and then, within 12 months, to provide a report on how many cases have not met that standard; in other words, the Government would have to set out their ambition and then be held to account for whether or not they deliver it.

Amendments 203F and 203G, tabled by my noble friends Lord Murray of Blidworth and Lord Jackson, and the noble Lords, Lord Faulks and Lord Alton, are fundamentally about transparency, requiring that all judgments of the Upper Tribunal in immigration and asylum matters are published promptly and made accessible to the public. Why does this matter? First, it is because transparency allows us to assess the quality of the initial decision-making process. A high rate of successful appeals is a clear signal that something is going wrong further upstream, either with the application of the law or with the evidential standards being applied. Without clear and timely publication of judgments, it is difficult to see where those problems lie.

These amendments are about shining a light on the system. If the Government have nothing to hide, there can be no objection to Parliament and the public being able to see how decisions are being made. Indeed, such transparency will strengthen confidence that our border security is being upheld in the way that Ministers assure us it is. I hope that the Government will seriously consider this principle in light of the points than I and other noble Lords have raised.

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We all in this Committee wish to speed up and ensure that we deal with these matters in a speedy, timely manner. I suggest that Amendments 155, 156 and 157 would not meet the objectives set by the noble Lords who have proposed them, and I urge the noble Baroness to withdraw Amendment 155.

[Baroness Hamwee (LD)]

My Lords, the Minister has quite fairly answered the Member’s explanatory statement to my amendments. As I say, that is perfectly reasonable, and I am grateful for that. Of course, the new Lord Chancellor will have taken an oath, as did the previous one, to provide resources to the courts. My question, which I accept was probably expressed in a slightly strangulated fashion, was about what the tribunal can take into account in saying what matters it is not reasonably practicable that it should have regard to.

Given that it is now 9.50 pm and there is a lot more we are expected to get through—which we may or may not get through, I do not know—I would be very happy if the Minister could write to me. I beg leave to withdraw the amendment.

Amendment 155 withdrawn.

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By supporting these amendments, the Committee has an opportunity to ensure that, instead, vulnerable children are treated with the care, dignity and protection they deserve. I beg to move.

[Baroness Hamwee (LD)]

My noble friend Lady Brinton added her name to all these amendments. I was happy that she did so. I am also happy to have the opportunity —of course, not at her expense—of expressing my support for them this evening. Inevitably, as the noble Baroness, Lady Neuberger, has said, there is rather a lot of repetition in this over a period of years.

We touched on visual age assessments—I cannot remember on which day in Committee—and the noble and learned Baroness, Lady Butler-Sloss, as she always has done, expressed her clear views about visual assessment being inappropriate. She said she had talked—coming from her cultural and ethnic background; I align myself with her in this—to young males whose looks raised a question in her mind as to what age they were. However hard we try, our own backgrounds leave us with a bias, I suppose—an inbuilt bias, an expectation. We have to put ourselves in other people’s shoes.

I recall being in the education centre of this House, talking to young students who I think were at the top end of primary school. There was one young student who, if you went by facial hair, would have been regarded as twice as old as he actually was. I recall also being very impressed by his presentation; the students were discussing how they would campaign for a change in the law, although I suppose I should not go into that tonight.

My noble friend also has in this group Amendments 180 and 194, supported by, among others, the right reverend Prelate the Bishop of Sheffield. Amendment 180 deals with criminal proceedings, and my noble friend says that a mandatory referral age for age assessment in those proceedings follows from the basic argument regarding assessment for immigration purposes.

Amendment 194, as the noble Baroness has said, is about accommodation. Some people assume that everyone in asylum accommodation is a criminal and a danger to local residents. It is good that we have the opportunity to recognise that a child in adult accommodation, in adult detention, is a vulnerable child, and I just use the amendment to make that point.

[Lord Davies of Gower (Con)]

This is an important set of amendments, but I am sure it will come as no surprise to the noble Lords supporting them that we on these Benches have some disagreements with them.

Amendment 162 proposes that, where there is any doubt as to age, we should simply presume that the individual is a child. I cannot think of a more reckless approach. We all know that children are entitled to greater rights and protections under our law, but those protections exist precisely because children are vulnerable. If we hand them out indiscriminately to anyone who claims to be under 18, we risk creating grave safeguarding failures. There are well-documented cases where individuals who arrived illegally have lied about their age, and as a result adult men were placed in classrooms with teenage girls or in accommodation with vulnerable children. This amendment, whatever its good intentions, would compromise safety, weaken enforcement and put children at risk, and we cannot allow that to happen. Furthermore, Amendment 163 seems to me to be completely impractical in operational terms.

The fundamental point is this: age is one of the characteristics that we need to determine as soon as someone arrives in the UK illegally. This is innately tied to the sort of support they receive, who they are housed with, what services they can access and how they will interact with other migrants and those already in the United Kingdom.

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[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Neuberger, for becoming the noble Baroness, Lady Lister, this evening, particularly at this late hour. I am grateful for her introduction of the amendments. I am also grateful to the noble Baroness, Lady Hamwee, for being the noble Baroness, Lady Brinton. I am still Lord Hanson for the purposes of the discussion before us today.

Age assessment is a difficult area of work and there is no single-combination assessment technique able to determine age with precision. It has already been pointed out by the noble Lord, Lord Davies, that there are serious safeguarding risks if adults are treated as children and placed in settings with children. Similarly, there are serious safeguarding issues if children are treated as adults.

I will turn to the amendments before us and try to weave through them in a way that, I hope, assuages the concerns of the noble Baroness and gives a direction forward. On Amendment 180, tabled by the noble Baroness, Lady Brinton, and spoken to by the noble Baroness, Lady Hamwee, in relation to the completion of age assessments where an individual faces criminal charges, the current approach of the Home Office is that any decision on age made by the Home Office for immigration purposes is not binding on the UK courts. Where an individual is charged with a criminal offence, the CPS is advised of any age dispute issues that have arisen and will decide if it is in the public interest to pursue a prosecution. Once proceedings are instigated, should the presiding judge have doubts about the individual being a child, the courts can take a decision on the age based on the available evidence or request that a substantive age assessment is undertaken.

The Home Office has introduced additional safeguards in criminal cases to mitigate the risk of a genuine child being imprisoned in adult prison for immigration offences. This is something that none of us would want to see. Where an individual who has been assessed to be “significantly over 18” maintains their claim to be a child and is identified for potential criminal charges for immigration offences, the Home Office will provide for an abbreviated age assessment to be conducted by qualified social workers. I hope that on both those counts, the noble Baroness is able to withdraw the amendment before the Committee today.

Amendment 162 is on the suggested use of visual age assessments as part of a safeguarding determination, identifying potential risks and support needs, rather than solely for the purposes of immigration enforcement. The noble Baroness has said that the initial age assessment is an extremely important first step to prevent the detention of children generally, including any accidental detention of someone who is believed to be an adult but subsequently found to be a child, and to ensure that individuals are routed to the correct adult or child immigration process. That is key. It provides that immigration officers may treat an individual as an adult only where they have no credible and clear documentary evidence proving their age, and two members of Home Office staff independently assess that their physical appearance and demeanour very strongly suggest that the individual is significantly over 18. This is a particularly high threshold, and the benefit of the doubt remains key. Where doubt exists, individuals will be referred for further assessment.

As the noble Baroness said, a social worker may be present at the initial age decision stage. Where present, they will play a crucial role in the welfare of the individuals in their care and will support our Kent Intake Unit officers with their initial age decisions carried out at Western Jet Foil. Any views expressed by the social worker at this initial stage will be given a strong weighting, given the expertise they have in regularly working with children.

The Home Office has contractual arrangements with the Refugee Council to provide support to unaccompanied asylum-seeking children who arrive by small boat and are moved to the Kent Intake Unit. That contract sees Refugee Council advisers working directly with unaccompanied asylum-seeking children providing impartial and independent information, advice and guidance to help them navigate the asylum and looked-after children system. These amendments would make it mandatory for the Home Office to publish guidance that includes mechanisms for independent oversight. I note that the Independent Chief Inspector of Borders and Immigration already has oversight of Home Office practices and is not short of bringing forward reports about the areas we are discussing.

Amendment 163, in the name of the noble Baroness, Lady Lister, and Amendment 194 were spoken to by the noble Baroness, Lady Neuburger, and supported by the noble Lord, Lord German, and the noble Baroness, Lady Brinton. They are about whether age assessment in relation to asylum claims should rest with the local authority according to the ADCS guidance. I ask the Committee to bear with me because we need to be mindful of unintended consequences. The amendments as tabled would mean that the Home Office would be bound to immediately notify a local authority in every instance where an individual claiming to be a child has been determined to be an adult and therefore may be placed in adult accommodation. This would apply even when an individual is obviously an adult. This creates the risk that already-stretched local authorities could cause significant safeguarding risks if adults have access, along with genuine and potentially vulnerable children, to children’s services including accommodation and education.

I hope it will reassure the noble Baroness that the Home Office already takes into account best practice within the age assessment guidance issued by the ADCS and the equivalent guidance in Scotland and Wales. Where the Home Office or an accommodation provider have concerns that an individual might be a child, it is now standard practice for a local authority referral to be raised. Even where a referral is not made, this does not prevent the individual from approaching a local authority for further consideration of their age.

As I said at the outset, the Government continue to review all options for age assessment. A parliamentary Written Statement issued to both Houses on 22 July indicated that work was being undertaken in the Home Office to look at science and technology innovation and the age assessment system. We have concluded that the most cost-effective option is to pursue a likely facial age estimation whereby AI technology trained on millions of images is able to produce an age estimate with a known degree of accuracy. Again, I recognise that the noble Baroness raised some concerns about that. I hope I can reassure her that the Home Office is taking this seriously and that further testing and trialling of the technology will be conducted ahead of any integration into the system. It is important that we get that right, but it is also important that we try to find mechanisms to give greater clarity on what that age is over and above the individual eyes-on by a particular officer at the border.

I hope that, with those reasons, the noble Baronesses, Lady Neuberger and Lady Hamwee—the substitutes for the noble Baronesses, Lady Lister and Lady Brinton, respectively—will not press the amendments.

[Baroness Hamwee (LD)]

As the substitute for the noble Baroness, Lady Brinton, I would like to make a point about AI. It is important that the Home Office and others use AI only where it is appropriate and safe. Quite a lot of work has been done across the piece in Parliament about the reliability or otherwise of facial recognition—because that is what this is— including by a Select Committee which I chaired. I have not been satisfied by any comments from the Government Benches since, including on the need for regulation and oversight. That must apply here. I would be deeply worried if we were to go ahead with using AI as a substitute for the human brain without the proper regulation in effect.

[Baroness Neuberger (CB)]

My Lords, I echo totally what the noble Baroness, Lady Hamwee, has just said. In my speech, I asked the Minister whether Parliament would have the chance to look at whether AI is used. Will he reply to that?

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[Baroness Hamwee (LD)]

Can the noble Lord be tempted to express support for Amendment 203C? On his test of support by the British public, there can be no doubt that the British public support Ukrainians who are here.

[Lord Lemos (Lab)]

My Lords, I thank all noble Lords, at such a late hour, for their contributions, and I add my good wishes for a speedy recovery to the noble Baroness, Lady Brinton, and the noble Lord, Lord Alton. In the absence of the noble Lord, Lord Alton, I very much welcome the opportunity to hear from my noble friend—my very good friend—Lady Kennedy of The Shaws.

This group includes Amendments 164, 173, 174, 203B and 203C, proposed by the noble Lords, Lord German, Lord Jackson and Lord Alton, and the noble Baroness, Lady Hamwee, relating to safe and legal routes. I begin by reaffirming the United Kingdom’s proud record of offering sanctuary to those fleeing war, persecution and oppression around the world. It is fundamental, a cornerstone of our international reputation. The UK operates global safe and legal routes for refugees, including the UK resettlement scheme, in partnership with the UN Refugee Agency, the UNHCR. As the noble Lord, Lord German, referenced, the UNHCR assesses refugees living in formal refugee camps, informal settlements and host communities and identifies who would benefit most from resettlement to the UK.

We do not seek to influence the cases referred to us by the UNHCR. This ensures that refugees from across the world can access a safe and legal route to the UK. Alongside this, we have bespoke routes to sanctuary, as noble Lords have mentioned, for those from Ukraine, Afghanistan and Hong Kong. There is no provision within our immigration routes for someone to be allowed to travel to the UK to seek asylum. While we of course sympathise with people in many difficult situations around the world, I am afraid we could not consider protection claims from large numbers of individuals overseas who might like to come to the UK. Those who need international protection should claim asylum in the first safe country they reach. That is the fastest route to safety.

I know that the noble Lord, Lord German, has been concerned about safe and legal routes for a long time. They are an important part of the Government’s wider strategy to restore control over the immigration system. The immigration White Paper published on 12 May 2025 announced a review of refugee sponsorship and resettlement, and further details will be set out. Problems in the asylum system are hardly new, and the Government are determined to restore order to the asylum system so that it operates swiftly, firmly and fairly.

Amendment 173, tabled by the noble Lord, Lord German, and the noble Baroness, Lady Brinton, includes a provision that would enable biometrics to be waived. Biometrics, in the form of fingerprints and facial images, underpin the current UK immigration system to support identity assurance and suitability checks on foreign nationals who are subject to immigration controls. They enable us to have comprehensive checks against immigration and criminality records to help identify those who pose a threat to our national security, public safety and immigration controls, or those who we think are likely to breach our laws if they are allowed to come to the UK. There is, however, I reassure noble Lords, already scope to waive or defer the requirement to enrol biometrics in compelling circumstances.

It is for these reasons that the Government cannot support any amendment which would undermine those efforts and create an unlimited route, adding untold pressures on our decision-makers and accommodation and support systems, as well as the justice system. The number of people we can support through safe and legal routes depends on many factors, including local authority capacity for supporting refugees. I fear a scheme that would be difficult to control, such as this one, would quickly overwhelm our asylum system and have wider ramifications in our entire immigration system. As other noble Lords, including the noble Lords opposite, have mentioned, we worry that that would compromise public confidence.

Amendment 203B from the noble Lord, Lord Alton, seeks to amend the British national (overseas) route into primary legislation, so that any changes restricting eligibility conditions and settlement can be made only with the agreement of both Houses of Parliament through the affirmative resolution procedure, and I have noted the comments made in the Committee about the importance of the commitments we have made. I reassure the noble Lord, Lord Alton, and others, that the Government are firmly committed to supporting members of the Hong Kong community who have relocated to the UK, and those who may yet come here in the future on the British national (overseas) visa route.

The Government recognise the concerns that the White Paper proposals on new earned settlement and citizenship rules have raised, and we are taking steps to ensure that British nationals overseas can share their views during the upcoming consultation. We appreciate how important this issue is to the Hong Kong community, and we will listen carefully to what they tell us.

Given the ambitious nature of the proposals in the White Paper, it is essential that we fully understand their impact on all affected groups before making final decisions. Following the consultation, the Government will outline how the new rules will operate, including which immigration routes they will affect and when the changes will come into force. In the meantime, the current rules for settlement under the BNO route will continue to apply.

Delivering the BNO visa route through the Immigration Rules allows the Government to make swift changes to the route when necessary; for example, should the situation in Hong Kong deteriorate further. This amendment, we on the government side fear, would limit this ability to act quickly and create unnecessary delays. Given the unique circumstances of this group of people whom we support, the flexibility of the Immigration Rules is, in the Government’s view, more appropriate.

Finally, I will address Amendment 203C from the noble Lord, Lord Alton. The purpose of this proposed new clause is to make individuals under the Ukraine scheme eligible for indefinite permission to stay once their permission has expired, even if there is no further permission they can apply for under the scheme. The UK support for Ukraine remains steadfast and, together with our international partners, the UK continues to stand in solidarity with Ukraine and condemns the Russian Government’s unprovoked and premeditated war. That stance has had the very committed support of the entire House and the country as a whole.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Lord Cameron of Lochiel (Con)]

I am very grateful to all noble Lords who have spoken in this debate. Of course, the Minister is correct that, with the prior amendment having been withdrawn, then as a matter of technicality these amendments, if pressed, would struggle. However, I feel it is important to reiterate the general point being made: that the amendments are not rhetorical but seek to reintroduce practical, enforceable tools that were part of a wider strategy to restore control over our borders.

I apologise for not addressing the point made by the noble Lord, Lord Alton, and the noble Baroness, Lady Brinton, before now, but the answer is in Amendment 110 and the proposed new clause under discussion: that the power exercised by the Secretary of State has to be a general one—it cannot take account of a particular individual assessment or scenario. That is why in its first subsection the amendment says that the Secretary of State must be

“satisfied that there is in general in that country or territory, or part, no serious risk of persecution”.

Having made the general point, I would suggest that, thereafter, the Secretary of State is allowed to take into account specificity, in effect, and to say, for instance, that the statement in subsection (1) is true of a country or territory, or part of a country or territory, in relation to a description of person. Therefore, already, a country can be divided into its constituent parts.

Subsection (3) states that the description can include

“sex … language … race … religion … nationality … membership of a social or other group … or… any other attribute or circumstance that the Secretary of State thinks appropriate”.

I suggest to the noble Baroness, Lady Brinton, that this allows a particular attribute or characteristic to come into play. She is right that the various characteristics described in that subsection do not mirror protected characteristics in UK discrimination law. There is an absence of disability; political opinion is not a protected characteristic in UK discrimination law, but it is included in this list. The catch-all in subsection (3)(h) allows that specificity to be created, and for the protection to exist.

In conclusion—

[Baroness Hamwee (LD)]

I am sorry to interrupt the noble Lord, but perhaps I may raise a point which he has referred to but which has not been referred to in the debate, which is “part of a country”? Is it possible to be assured that if one is returning someone to a country where in one part there is a problem, that country—through its internal procedures—will not move somebody into that part?

[Lord Alton of Liverpool (CB)]

I am very happy to butt in and to say that was exactly the point I wanted to make. The noble Lord referred us to subsection (1) in the amendment and the phrase “in general”. That in itself needs to be fleshed out as to what it really means. The noble Baroness, Lady Hamwee, has asked the right question.

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[Lord Murray of Blidworth (Con)]

The noble Lord, Lord Kerr, is of course right to remember those happy exchanges. I draw his attention to the fact that, obviously, there are many examples in the law of presumptions being made if people do not do things: for example, the breath test, as the noble Viscount sitting next to me has just observed. If you say “no comment” in a police interview, inferences will be drawn. It is the same presumption system. There is nothing unusual in terms of the drafting.

[Baroness Hamwee (LD)]

There was discussion about consent, because a child cannot consent. I do not know whether the noble Lord recalls it, but we talked about that fairly extensively.

[Lord Hanson of Flint (Lab)]

I am grateful—again—for the amendments which have elicited this discussion. I want to put a central premise before the Committee: that age assessments, as has been proved by the contributions of noble Lords today, are a difficult area and no single or combination assessment technique is able to determine age with precision. But as the noble Lord, Lord Murray of Blidworth, said, there are serious safeguarding issues if adults are treated as children and placed in settings with children. Similarly, there are serious safeguarding risks in treating children as adults. We have to try to improve the performance on age assessment and get it right. The Government treat this issue with real seriousness and with the importance it demands, and we will continue to explore with partners how we can improve the robustness of age-assessment processes by increasing the reliability of the methods used.

That leads me to the amendments before the Committee today. Amendment 114 seeks to incorporate Section 57 of the Illegal Migration Act 2023, which is subject to repeal, into the Border Security, Asylum and Immigration Bill. The fact that we are already repealing that means that we are revisiting again, as we are on a number of amendments, things that the Government are seeking to repeal. The provision—the noble Baroness, Lady Lawlor, referred to this—concerns decisions relating to a person’s age and would bring into effect measures to disapply the statutory rights of appeal in the Nationality and Borders Act, which, if commenced, enable a person to bring an appeal challenging a decision on their age. The noble Baroness, Lady Brinton, referred to the difficulties of that. The provision applies only to individuals subject to the Section 2 duty to remove in the IMA, which itself is under repeal in the Bill.

I know what the noble Lord, Lord Kerr has said, and I feel that I am going around in a number of circles, but the impact is the same. We are repealing these sections; the official Opposition are trying to put them back in. We cannot put them back in because we are repealing these sections. At the end of the day we are still trying to improve the performance on age assessment for the public and the immigration system. We are committed to focusing on delivering long-term, credible policies and will try to ensure that we do that by retaining only measures of the IMA which we have assessed as offering operational benefit. As I have said, we are repealing most of the measures, including Section 2, the duty to remove. Therefore, Sections 57 and 58, relating to age assessments, which this amendment seeks to reinstate, are both unworkable and indeed irrelevant without the duty to remove. The circular movement continues.

There are robust processes in place to verify and assess an individual’s age where there is doubt. It is important that we do so, and I again emphasise to the noble Lord, Lord Jackson, the Opposition Front Bench, the noble Lord, Lord Murray, and the noble Baroness, Lady Lawlor, that these are important matters to get right. Where an individual claims to be a child without any credible documentary evidence and where there is reason to doubt the claimed age, immigration officers will currently conduct an initial decision on age to determine whether the individual should be treated as a child or an adult. Where doubt remains following the initial decision, which occasionally it does, individuals will be treated as a child and transferred to a local authority for further consideration of their age, in the form of the acknowledged Merton-compliant age assessment.

The Government are committed to improving age-assessment practices to enable all individuals to be safeguarded and treated appropriately, for the very reasons that the noble Lord, Lord Murray has mentioned. We have retained—as again the noble Lord, Lord Murray, has referred to—the National Age Assessment Board, which was launched on 31 March 2023 by the previous Government. It is now being rolled out nationally, continues to offer significant improvements, and has the support now of over 55 expert social workers whose task it is to support local authorities by conducting comprehensive age assessments, increasing capacity, and putting expertise in the system. Since its launch, 77 local authorities have signed up to the work of the NAAB. Greater consistency in age-assessment practice is now the case; improved quality of decision-making is there. Well over 1,137 individuals, predominantly social workers from local councils, are responsible for conducting age assessments, and the training has received positive feedback from local authorities.

Those are all positive things, and I again pay tribute to the hands that laid on those regulations and efforts previously. It is all very good, positive stuff. The Home Office, with the support of the Department for Education, has also commissioned user research into age assessment processes, with participation from Home Office members of staff, non-governmental organisations, local councils, accommodation providers and others. It has already started to implement positive change following the research that we have undertaken, and we are currently reviewing initial decisions on age training that have been received by Home Office staff at, for example, the Western Jet Foil premises in Kent.

Amendment 203H, tabled by the noble Lord, Lord Murray, would, as the noble Baroness, Lady Brinton, and others have said, restrict the jurisdiction of the court to determine applications for judicial review brought against a decision on age made by the National Age Assessment Board on conventional public law grounds such as rationality, reasonableness and procedural fairness. The court would be unable to grant relief because it considers that the board’s decision on a claimant’s age is wrong as a matter of fact. It would also prevent the court from substituting its own decision on age. This is an important point, as it is contrary to the decision of the Supreme Court which held that the court is required to determine for itself the age of the claimant as an issue of fact.

In addition, this amendment would result in a court treating challenges brought against decisions on age made by the board differently from challenges brought against decisions on age made by a local authority.

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[Lord German (LD)]

I will be as brief as I possibly can, given the hour. What is important in this amendment is to try to return to having a service standard. The amendment proposes a three-month service standard to determine asylum decisions. I know that the Minister, and others in the past, have looked at the issue and whether it might be six months. The important question here is whether there should be a service standard for dealing with these matters.

The history of this is that a service standard to decide 98% of straightforward asylum applications within six months was introduced in 2014 after a report which criticised delays in asylum decision-making. Of the claims that were submitted from March 2014 to the end of the year, only 8% received a decision within six months. In the second quarter of 2018, 56% of decisions were received within six months. In the third quarter of 2018, 25% received a decision within six months. Subsequent to that, the service standard was abandoned.

The reasons given by the Government at that time were:

“We have moved away from the six-month service standard to concentrate on cases with acute vulnerability and those in receipt of the greatest level of support, including unaccompanied asylum-seeking children. … Additionally, we will prioritise cases where an individual has already received a decision but a reconsideration is required. … the current service standard does not always allow us to prioritise applications from the most vulnerable people in the system if their claim is ‘non-straightforward’”.


That told me that there is a sort of on-off switch and a whole range of categories, and the Home Office would move the arrow to whichever one it thought was the most concerning at the time. I know that, in the context of things such as accident and emergency departments in the health services around this country, having a service standard is an important way—though it may not be kept—of having that focus.

Therefore, this seems to be an issue of prioritisation. The Home Office says that it can prioritise different targets or different circumstances rather than having a service standard. There was a large backlog of 91,000 at the end of 2024, with the associated costs to the taxpayer and slow decision-making hampering integration. Of those waiting for an initial decision, around 50,000 people had been waiting for more than six months. Arguing for a new service standard means that we could speed things up, because people would have a standard in mind.

I know that the Minister has dealt with this in the past in response to questions, but I would be grateful if he could say whether the Government have reviewed the potential benefits of reintroducing a service standard, what the current prioritisation is for asylum decision-making, and, of course, what the Government are doing to reduce the backlog.

[Baroness Hamwee (LD)]

My Lords, I have added my name to my noble friend’s amendment. I was not proposing to speak to it until recently. I may well have it wrong, but I would be grateful if the Minister could confirm the position. I think I read that arrangements have been put in place for bonuses for caseworkers who meet a standard. As I recall it, it was a very small amount of money, but if the Minister could tell the Committee what the standard is for asylum applications and say something about that bonus, it would be helpful. I am trying to ask that in a very neutral fashion.

I have Amendment 195, to which my noble friend has his name, relating to the use of artificial intelligence in the system. Obviously, artificial intelligence is going to be used. Asking whether it is used is probably like asking whether electricity is going to be used—of course it is these days. As this is about data as well, we start from the position that migrants are not criminals, and they should not be treated as criminals. Immigration, asylum seeking and refugee matters are civil matters, and any interference with privacy must be proportionate and subject to safeguards. I think we would all agree that our data is valuable, it is very precious, and that generally it needs regulation and oversight, and transparency is hugely important.

When I chaired the Justice and Home Affairs Committee, every Home Secretary we questioned assured us that the human would remain in the loop. Frankly, we were sceptical about what that really meant and the efficacy of it. The data subject must know what the authorities know, or think they know, about him. There is a lot more public discourse now about training of AI, but I doubt that we are all completely reassured about that. Immigration decisions are hugely impactful; they are life changing. The amendment would ensure that no machine alone may determine a person’s immigration fate, and that personal data remained insulated from algorithmic training.

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[Lord Hanson of Flint (Lab)]

I am grateful to the Liberal Democrat and His Majesty’s loyal Opposition Front Benches for their amendments.

The noble Lord, Lord German, and the noble Baroness, Lady Hamwee, tabled an amendment to introduce a new service standard. I want to thank them for the amendment, as it helpful to look at that. We absolutely agree that there needs to be a properly functioning, effective immigration system. Our asylum processes should be not just efficient but robust. We are committed to ensuring that asylum claims are considered without unnecessary delay. We want to ensure that protection is granted as soon as possible so that people can start to integrate and rebuild their lives, including by obtaining employment when they have the right to do so. As such, I want to provide reassurance of the important steps we are already taking to achieve this aim.

As I have said on a number of occasions, during the passage of the Bill as well as in Questions and Statements, we have inherited a very large backlog, which we are trying to clear at pace. We are delivering the removals of people with no right to be in the UK, and we want to ensure that we restore the system very quickly. By transforming the asylum system, we will clear the backlog of claims and appeals. We have taken steps to speed up asylum processing while maintaining the integrity of the system. We have put in resources to ensure that we can do that at pace. That is why we are also looking at the efficiency of appeals and decisions, which we see to be of paramount importance.

The Bill proposes setting up a statutory timeframe of 24 weeks for the First-tier Tribunal to dispose of supported asylum appeals and appeals from non-detained foreign national offenders. The measures aim to speed up the appeal decisions, to ensure that we increase tribunal capacity and have a timely consideration of appeals. I hope that the noble Lord and the noble Baroness agree with me that the work that we are conducting at pace is appropriate and is having a real impact now on the size of the backlog. Although we cannot discuss the three-month time scale proposed in the amendment, I can reassure them that it is certainly on our agenda.

Amendment 195 from the noble Baroness, Lady Hamwee, looks particularly at generative AI tools to support caseworkers. I want to emphasise that no immigration decision is made solely by automatic decision-making, for there is still always a human eye on the decision-making. It is important that case summarisation and policy search tools, both of which are designed to help decision-makers, mean that we have improvements and efficiency in that process, which is also helping to reduce the backlog, which we want.

We have had an evaluation of the tools to date. We published that on GOV.UK in May. Therefore, we can demonstrate that the new technologies, such as AI, can potentially save around an hour per case, which is allowing decision-makers to access information more easily and to streamline the asylum process without, I hope, compromising the quality of the decisions.

Ethics and data protection are at the forefront of the considerations—the noble Baroness has mentioned that. The Home Office is taking significant steps to ensure that, where we trial and adopt AI in decision-making, we do so responsibly and in a way that maintains public confidence and that any tools are being trialled and are used to assist Home Office staff. With those assurances, I hope that she will not press her amendment.

The noble Baroness also mentioned other issues, which I will return to in a moment.

Amendment 201 from the noble Lord, Lord Davies, addresses ensuring transparency in the asylum system. I hope he will understand that we think the amendment is unnecessary, not because it is not right that he presses us on this, but because, as we have discussed throughout the scrutiny of the Bill, the cost of accommodating and supporting asylum seekers has grown significantly. I have put those proposals before the House as a whole. This is a due in large part to the strain we have had on the asylum system in recent years, including the number of unprocessed claims and a record number of arrivals via small boats. We are taking steps to reduce the cost and ensure public funds are managed responsibly.

I understand the intention behind this amendment; it aims to enhance transparency and provide Parliament with a clear picture of how asylum support is being delivered. But I note that the information that the noble Lord is requesting is published each year in the Home Office’s annual accounts. The figures are publicly available and subject to parliamentary scrutiny, and we remain committed they are as clear and comprehensive as possible.

The amendment seeks a breakdown of the proportion of asylum seekers who have had their claims denied but are still receiving support. It may be helpful to note that failed asylum seekers can, under certain conditions, remain eligible for support, for example if they are taking steps to leave the UK or face temporary barriers. They are all important issues. I appreciate the spirit of the amendment, but that information is already available.

I will touch on this issue briefly, because I have the information on my phone, which will lose its signal and sign out if I do not look at it immediately. On the issue of rewards and bonuses for staff that was mentioned by the noble Baroness, there is a consistent delivery of high-quality work and professional behaviour. We want to ensure that asylum decisions are subject to stringent quality checks, with individual performance targets agreed with managers and reviewed regularly to ensure that the high standards expected are consistently met. I will give her more information about the bonus scheme—as far as I can—after the discussions today.

I should also say, in passing, that all claimants will receive a written transcript of any interview that has taken place, and they can also have an audio recording of that. I hope that reassures the noble Baroness about the issues she has put before me.

[Baroness Hamwee (LD)]

They have been entitled to receive the transcript; the problem is that people are not told that they are entitled to have it, and I wonder whether the Minister can take that back. I will have to come back in writing on the details of the use of AI. With regard to performance standards and targets and so on, I asked about some details of the scheme. Can he come back to me in writing on that? What he read out, about keeping up standards and so on, I hope we would all take for granted as being exactly the basis on which the work is done, but the detail of the bonuses and so on—

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[Lord Cameron of Lochiel (Con)]

My Lords, this is a busy group of, essentially, probing amendments around the subject of immigration advisers and immigration service providers. I shall do my best to be as brief as possible. There are a lot of probing amendments in this group. I hope the Minister can take this as an opportunity to address some of the questions that my noble friend Lord Davies of Gower and I have raised through these amendments, although it may be—I cannot pre-empt him—that, as he undertook to do in relation to an earlier group of probing amendments, he chooses to do so in writing or tonight in the Chamber.

Amendment 121 seeks to probe the very broad powers in the Bill to amend the definition of what constitutes a “relevant matter” in the Immigration and Asylum Act 1999. As it stands, the text appears to give the Government significant latitude to reinterpret or even redefine that term at will. I ask the Minister what sort of scope he envisages here: how far could this power reach and in what circumstances does he believe it would be necessary to use it? When legislation confers such a wide discretion, it is right that this House seeks clarity on both its limits and justification.

Amendment 122 seeks to understand why the Immigration Services Commissioner would need to give a person who is not a relevant person a penalty notice. This question is somewhat self-explanatory and I hope that the Minister can clarify it in his response.

Amendment 123 would in turn remove the ability of the Secretary of State to amend the amount charged in a variable penalty notice. Variation in the amount charged under such a notice should be clear, justified and open to scrutiny. As it stands, we are being asked to approve a power whose future use and financial impact is presently unknown. Parliament should have some assurance about how we will be kept informed of such changes. Will further variations be subject to debate or are we to accept them after the fact? If we achieve clarity now, I suggest that that would avoid disputes later. I hope, again, that the Minister can provide such clarity.

Amendment 124 would require the Secretary of State to publish a report assessing the impact of the tribunal backlogs on the operation of the monetary penalties that the Immigration Services Commissioner can impose. As with much of our discussion on the Bill, backlogs and delays are central to how effective any enforcement process will be. In the context of appeals, such delays can too often be exploited. Vexatious claims are lodged not with the aim of overturning a penalty but to take advantage of delays, which can prevent prohibitions from being enforced and allow those in breach to avoid consequences for longer than is reasonable. Therefore, we need to be mindful of the role backlogs play, not only as an administrative challenge but as a weakness in the system that can be deliberately abused. This amendment seeks to bring attention to that issue and assure transparency over the scale of that problem in the First-tier Tribunal. The scheme that we are creating here can work only if the appeals process is not allowed to become a flaw in its design.

Amendment 125 is in a similar spirit to Amendment 123 in that it seeks to incorporate greater oversight into the use of the powers granted to the Government to specify fees and amounts. Oversight allows us to do our job as the Opposition properly, namely in holding the Government to account and checking that what is being done is both right and effective. We need this to be built into the legislation as much as possible if it is to work. Again, I hope the Minister can tell us how he will ensure that this happens.

Briefly, Amendments 128 and 129 in the name of the noble Baroness, Lady Hamwee, require little commentary from us as it is a question put directly to the Minister. But I add that it tangentially speaks to the point that we on these Benches are making about proportionality and oversight. Clarity from the Minister on these points would be welcome. Amendment 130 is consequential to the amendment to Schedule 1, page 78, line 9.

To conclude, at its heart this group is about asking questions and probing the Government—one of the most important functions of this House—and any clarity that the Minister can provide will be welcome in order to ensure that there is proper oversight of the powers of the Bill, that proportionality is built into its operation and that the system it creates is both effective and ready to function from day one. I hope the Minister will be able to reassure us of that.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 128 and 129. This issue was brought to our attention by the Immigration Law Practitioners’ Association. I want to make it quite clear that this is not a self-serving pair of amendments. It is about the fees charged for services by the commissioner for things such as competence assessments, registration, training, events accreditation and advice going beyond the cost to the IAA of exercising the function.

The point that ILPA makes is that if the fees charged are a burden on practitioners, which they will be, they should not be more of a burden than they need to be to pay for the functions. That is in itself a barrier to access to justice. When we come to the amendment on legal aid, we will, I am sure, talk about the importance of access to justice, its place in the rule of law and so on. I have made a note for that amendment to talk about the terrifically hard work that it is being an immigration legal practitioner. When I was in practice many years ago, I shied away from immigration work because, even then, it was so difficult.

There is a shortage of practitioners. It is important that they are not deterred from maintaining their staffing numbers, upskilling existing advisers or recruiting. It may sound counterintuitive given that what we are talking about is, in essence, assistance and support from the IAA, but we must not see this impeding the growth in the sector’s capacity and the supply of high-quality advice. That is important in maintaining a good asylum system.

[Lord Hanson of Flint (Lab)]

I am grateful again, as ever, to His Majesty’s loyal Opposition and to the noble Baroness, Lady Hamwee, for their amendments. I give them the general assurance that we are committed to ensuring that those seeking immigration advice and services can access a regulated and competent advice sector, and the clauses in the Bill as drafted will strengthen the availability of good-quality regulated immigration advice and therefore bolster access to justice. Therefore, we hope that the amendments will not be pressed either today or at a later stage, but I just want to explain why.

As she has just completed her comments, let me begin with Amendment 128 from the noble Baroness, Lady Hamwee. It is intended to probe whether access to justice will be impeded if fees are higher than the cost of the services provided under those fees. The amendment tabled would remove the ability of the Secretary of State—that is, my right honourable friend the Home Secretary—and the commissioner to charge fees for a function that may exceed the cost of exercising that function, as well as removing the safeguards related to that ability. The noble Baroness may be aware that under the Treasury’s guidance, Managing Public Money, the basic principle is that fees and charges should be set at a level to recover costs. The fees charged to advisers for applications for registration or continued registration with the commissioner are not currently at full cost recovery levels. Quite frankly, in the current economic climate, that position is no longer sustainable.

Changes to the charging power will reduce the burden on the taxpayer. As drafted, new subsections (3) and (4) will allow for an average of the cost of providing services across organisations to be charged, rather than attempting to make a calculation of the number of hours spent on providing services to one organisation versus another, which would not be feasible. This approach is in accordance with Treasury rules on managing public money. Different fee levels for different types of users should reflect differences in average costs for providing the services to those groups, and ensuring that fees are proportionate to organisation size will, I believe, help bolster access to justice. We may have some reflection on that, but that is the initial point I put to the noble Baroness on her amendment.

There are a number of amendments from His Majesty’s Opposition. I will deal first with Amendment 125 which, with consequential amendments, aims to alter the type of secondary instrument used to charge fees in respect of certain commissioner functions from an order to regulations. This would make regulations specifying the fees chargeable by the commissioner subject to the affirmative procedure under Section 166 of the Immigration and Asylum Act 1999. The measure in this Bill replaces the current power to charge fees by order set out in paragraph 5 of Schedule 6 to the Immigration and Asylum Act 1999. As the new charging power in the Bill is to be inserted into the 1999 Act, the use of an order as a relevant statutory instrument ensures drafting consistency between this Bill and current legislation. The negative procedure is considered appropriate to afford an appropriate level of parliamentary scrutiny, and of course I remind all noble Lords that the negative procedure can be prayed against and there can be a debate accordingly.

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In summary, a fairer charging structure, clarity over the list of regulated matters that immigration advisers may provide advice on and an enhanced ability to penalise those who do not co-operate are all positive things. To that end, the clauses should remain as drafted in their entirety. Noble Lords can examine this again in the cold light of day tomorrow, but I hope that, with those reassurances, they will not press their amendments this evening.

[Baroness Hamwee (LD)]

Is the Minister saying that there is to be an exercise of averaging out the fees, so that we are talking about total cost and total fees, but they might not be absolutely exact for the particular function; however, taken overall, they will not exceed the total amount?

[Lord Hanson of Flint (Lab)]

I will give a one-word answer, which I hope will be helpful. Yes.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I shall speak to my Amendment 203E, to which the noble Lord has just referred. I certainly do not seek to take issue with the noble Lord, Lord Browne.

I appreciate that we are in very topical territory, and I confess that I found it quite difficult to know how to approach this Bill following the Statement on Monday, because there is a lot to come—and I know that the Minister will tell us that we will have the opportunity to debate it, but of course we do not have that much detail and we are being asked to consider a Bill written before that Statement. We will have opportunities to consider the Home Office’s proposals, and today’s debates will give the Minister a flavour—if he needs it, because I do not think that he will be surprised by very much that is said today—of what is to come by way of our responses.

I, too, am grateful to the various organisations that have briefed us on Section 59. They have clearly spelled out the distinction between asylum and human rights claims and, as they say, human rights claims in many cases have nothing to do with a country’s general safety, or perceived safety. They are about someone’s connections to this country and their dependency and family ties here—as I said, this is topical—and are made by people seeking lawfully to enter or remain with their UK-based family. Among other things, this means that there is no right of appeal, because claims are not refused, they are just not considered. Of course—and it is “of course” to me, as the noble Lord, Lord Cashman, said—a country may be safe generally, but not to particular groups or sections of the community. The Supreme Court has recognised that a serious risk of persecution can exist as a general feature of life that applies to a recognisable section of the community.

This amendment takes us back to the 2002 Act, which Section 59 amends. That Act allows for exceptional circumstances, and what they may include is a subject of my amendment, in what would be the proposed new Section 80A(5A), which would provide that they include where

“the claimant is at substantial risk of significant personal harm, either as a member of a minority group or as an individual”.

The amendment would also omit Albania, Georgia and India from the list of countries that are automatically “safe” for everyone.

Noah has been mentioned—and, in fact, he was my example for Georgia, where there is a lack of effective state protection for LBGTQI+ people in the face of considerable violence. To add to what has been said, he said:

“No one can know you are gay. If you are gay, your two options are either hospital or exorcism”.


This man was attacked by his own family, forced to stay in a hospital for people with mental illnesses and subjected to exorcism.

The Home Office country note for India refers to gender-based violence, with women and girls in rural areas or from certain castes and tribes especially vulnerable. Institutional prejudices—violence against Muslims, Christians and certain castes and tribes—go unpunished. Indeed, the country note describes the active involvement of the police. In Albania, trafficking is rife. It is one of the top three nationalities—whether you regard that as the top three or the bottom three—of people referred to the national referral mechanism and recognised to be victims of trafficking. It is internationally recognised that domestic and international trafficking, including trafficking to the UK, is rife, and the families of victims themselves are threatened.

I have been involved with the case of a young man —he was young when he came; his application has not been determined yet—where the threat to his family has been a major factor in his response to what has affected his life. Sexual and domestic violence is widespread in Albania. Wherever we are going in legislative terms with this, we have to recognise the situation that noble Lords have already described.

[Lord Murray of Blidworth (Con)]

I will address Amendment 203J. I declare my interest as a barrister practising in public law and in the immigration space.

As noble Lords will have noticed, Amendment 203J does not sit happily with the other amendments in this group. It is not directly about the inadmissibility of an asylum claim, but it is on a very important point. The refugee convention of 1951 says that, if an asylum seeker has entered the country illegally, he is not to be punished or penalised for doing so, provided he came directly from a territory where his life or freedom was threatened by persecution. Specifically, it says:

“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, in the sense of Article 1”—


the persecution provision in the convention—

“enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

As Professor John Finnis, professor emeritus of law and legal philosophy at Oxford, and I pointed out in our paper published in 2021 by Policy Exchange entitled Immigration, Strasbourg, and Judicial Overreach, the drafting and proper meaning of Article 31(1) of the refugee convention were compellingly expanded by Lord Rodger of Earlsferry and the noble and learned Lord, Lord Mance, dissenting in the case of the Crown v Asfaw 2008, UK House of Lords 31. In doing so, they demonstrated the error of the living instrument interpretation advanced by the majority in that case and by the Divisional Court in the case of the Crown v Uxbridge Magistrates’ Court, ex parte Adimi, 2001 Queen’s Bench 667. The erroneous but reigning interpretation in Adimi is predicated on the notion, plainly rejected by the draftsmen of Article 31 of the refugee convention, that refugees passing through safe country A en route to safe country B and/or C and/or D and/or E should have the option to choose to seek asylum in B, C, D or E.

This is plainly wrong and not what was intended by the state parties when they signed the refugee convention in 1951. It is time that we corrected the law in this regard. Amendment 203J, together with Amendment 203I in my name, which is to be debated in a later group, restores the proper meaning of “coming directly”. In doing so, it provides a solution to the nightmare of the dangerous channel crossings and uncontrolled entry. I suggest that the refugee convention purposefully distinguishes between those who enter directly from a country where they are in danger and those who do not. There is no immunity from immigration law for those not coming directly; this was entirely intentional.

This amendment aims to vindicate the distinction and seeks to bring an end to the practice of widening the refugee convention beyond the terms that the United Kingdom and the other states agreed. Let us look at the terms of Amendment 203J. The Secretary of State would have a duty to refuse a claim for asylum if a person meets the conditions set out. The first condition, in proposed new subsection (2), is that they require leave to enter the United Kingdom and they have done so without such leave, whether illegally or otherwise. The second condition, in proposed new subsection (3), is that

“in entering or arriving as mentioned in subsection (2), the person 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”.

Those words are taken from the convention. Proposed new subsection (4), for clarity, specifies:

“For the purposes of subsection (3) a person is not to be taken to have come directly to the United Kingdom from a country in which their life and liberty were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life and liberty were not so threatened”.


To make it absolutely crystal clear, proposed new subsection (5) says:

“For the removal of doubt but without limitation, for the purposes of subsection (3), a person has passed through or stopped in another country outside the United Kingdom if they depart in a boat, vessel or aircraft from France or any other European coastal state”.


If this provision were enforced, would you risk your life in the channel in a small boat if you knew that your asylum claim would be bound to be refused? You would not.

This amendment—to use the slogan so favoured by the Prime Minister—would smash the gangs by destroying the business model, and do so while we remain a member of the refugee convention. Unlike the timid tinkering around the edges we see in almost all of this rather performative Bill as presently proposed, this amendment proposes a real, beneficial solution and the Home Office should grab it with both hands.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it is not just ordinary people who do not understand it. I do not understand it at all, logically. Mind you, I am an ordinary person.

The discussion so far has been very helpful in raising some key issues that the country is preoccupied with. The sensible way to approach this, which people have started to do, is to say that there should be a proper, open debate on it. We need to have a proper discussion about whether the 1951 refugee convention is appropriate for 2025 and very different circumstances. Some of the amendments have allowed us to reflect on that.

Every word of the speech by the noble Lord, Lord Empey, was on the money—absolutely hear, hear. We sometimes have discussions in this Chamber that bear little relationship to the political, social and cultural context of what everybody else in the country is talking about. There have been times during this debate in which the discussion about what constitutes safety and fleeing unsafe countries gives us a hint as to how we have got into a very serious political crisis in this country. The definition of what constitutes unsafe, the definition of what constitutes asylum and the definition of what constitutes refugee have become so expansive that it is a miracle or a mystery to me that anyone has been deported. If anyone was listening, you would just think, “Oh well, we can’t do anything”.

To give an example of some of the things that were argued, I was involved in a debate on the radio some months ago about whether Albania was a safe country. The example given was one that has been cited here today about the levels of domestic violence in Albania. I pointed out that most of the people that I had seen in the small boats who were Albanian did not look like they were the victims of domestic violence. Given the historic split, sex-wise, in terms of domestic violence, they might well have been the abusers.

I point this out only because, every time you say, “Surely, there is no reason why they should be in this country; they are from a safe country”, people will say, “No they’re not”, and you get left in a situation where you cannot remove them.

[Baroness Hamwee (LD)]

My Lords, I will make the point, before the noble Baroness moves on, that that is exactly the point that many of us are making—you cannot generalise. I will just put it that way.

[Baroness Fox of Buckley (Non-Afl)]

I was about to go on to quote the noble Baroness, Lady Hamwee, who said that a country may be safe generally but not for a particular section of the population. The noble Baroness more or less made the point there that she has just made now about not generalising. I agree that it is difficult to say, “This is a safe country” or “This is not”. The problem I have is that we have a situation where we either say, “These countries are not safe” or “Every country can be safe, but not to some groups of people”. We end up, therefore, saying that the whole world, and sections of the whole world, are likely to be unsafe and the people there can come to the UK. We cannot be in a situation where we open up to everybody from around the world who is in an unsafe situation.

By the way, that would also be true of this country, when it comes to the threat of violence against women and girls. You could say that the UK is a safe country. Let me tell you that it has not been a safe country in hundreds of towns for thousands and thousands of young women, girls and children who were sexually abused and raped in their thousands, in an industrial fashion, in the “safe” country of the United Kingdom. I am not prepared to generalise, but we cannot simply say that, because of the lived experience of those individuals who have suffered at the hands of others in other countries, it should be automatically assumed that they can move to the United Kingdom.

Finally, therefore, I want to ask for some guidance from the Minister on the status of the Bill. I read through a lot of the sections and notes in preparation for what I was going to say today and for other forthcoming days in Committee, and I thought, “Oh my goodness, this Bill is completely out of date”. I do not mean it is out of date as far as I am concerned but rather as far as the Government are concerned. Looking at a number of the amendments I have put my name to, I now look like a lily-livered liberal type in comparison with some of the comments made by Labour Government Ministers on the Front Benches. I suddenly thought, “Oh, I was being rather tentative there on the European Court of Human Rights and so on”. But it is full throttle—the Home Secretary covering herself in Union Jacks and flags, as she has told us. I thought, “I don’t know where to go now”.

In all seriousness, the Government have said, perfectly reasonably, that parliamentary time is short in general, and we all know that the Bill is under a lot of scrutiny. There are an awful lot of amendments to the Bill. Would it be possible for the Government Front Bench to assess all the amendments from across the House in different directions and tick off all those that the Government might now agree with, so that we do not waste parliamentary time on things on which there is general unanimity on the Government Front Bench, if not on their Back Benches?

As we continue to discuss the Bill, we should constantly bear in mind that the reason why there is concern about international conventions, the European Court of Human Rights and so on, is that this Parliament—the whole point of us being here—has to pass legislation it considers to be in the best interests of the people who live in this country and are of this country, the national interest being important. If the will of the people, as expressed in Parliament, cannot happen because of international conventions and human rights laws, as liberally interpreted by a plethora of lawyers, then it means that democracy is threatened. I therefore agree with the noble Lord, Lord Blunkett, when he said we should look at some of this again. I hope the Government will look at it again and that we do not have to waste time on amendments that they will, broadly speaking, agree with.

--- Later in debate ---

[Lord Cameron of Lochiel (Con)]

I am supporting the premise that a genuine asylum seeker should claim asylum when they get to a safe country.

Amendment 193, in my name and that of my noble friend Lord Davies, seeks to incorporate what I believe should be an entirely uncontroversial principle: if someone arrives in this country and needs sanctuary, they should say so, and without delay. This demand is the bare minimum of what a functioning immigration and asylum system should expect. I would argue that this amendment brings clarity and discipline to that expectation. It establishes a one-year window in which claims must be made and it ensures that claims brought beyond that point, without compelling reason, are not entertained.

I want to be very clear: that is a defence of genuine refugees. When our system is flooded with last-minute, opportunistic or tactical claims, it is those with genuine protection needs who suffer. Delays grow longer, the backlogs increase, and the resources stretch thinner. We owe it to those in real danger to ensure that the system works for them and not for those seeking to game it. The amendment is drawn from the new Canadian asylum and immigration rules, which also impose a one-year time limit for claiming asylum. The Home Secretary herself has acknowledged that this is an acute problem. As my noble friend Lord Davies said from this Dispatch Box yesterday, the Government have stated that they want to clamp down on students who come to the UK on a student visa and then claim asylum once they are in the UK, often at the end of their visa. The amendment would prevent that happening, since if a person came to the UK, studied for three years at university and then attempted to make an asylum claim, they would not be able to do so. I look forward to hearing what the Minister says in response.

Finally, Amendment 203E in the name of the noble Baroness, Lady Hamwee, would remove Albania, Georgia and India from the list of safe states in the Nationality, Immigration and Asylum Act 2002. I urge the House to consider very carefully the implications of such a move, not only for the integrity of our asylum system but for our bilateral relations, our immigration enforcement systems and the principle of credible, evidence-based policy. Let us begin with Albania—

[Baroness Hamwee (LD)]

I am sorry, because the noble Lord was obviously about to go through the list. Perhaps he could add France, because I have been wondering about our relationship with France if we were to pursue the route of insisting that any safe country through which an asylum seeker travels should be aware that he pursues asylum.

[Lord Cameron of Lochiel (Con)]

I will continue to go through the list. Let us begin with Albania. The amendment proposes to strike from the list of safe countries a NATO member and a nation with which the United Kingdom has a formal bilateral returns agreement, signed in 2022, that has been a cornerstone of our efforts to tackle illegal migration and organised criminality. It allows for the swift return of Albanians who have no right to remain in the UK and ensures that genuine protection claims are still assessed on a case-by-case basis. According to Home Office statistics, a massive proportion of Albanian asylum claims by adult males are refused. Why? It is because Albania is, by any objective measure, a safe and functioning democracy, so much so that the Prime Minister visited Albania in May to hold talks about returning failed asylum seekers.

Georgia is a member of the Council of Europe, has EU candidate status, and co-operates with a range of international human rights mechanisms—

Borders and Asylum

Baroness Hamwee Excerpts

Tuesday 2nd September 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

As the noble Lord is one of the former Ministers in this House who have dealt with immigration, I know he will understand very clearly the challenges the Government face and the difficulties we have in delivering on these issues. I very much welcome his comments and suggestions.

With regard to family reunion, one of the reasons that we are going to lay the SI very shortly and put a temporary suspension on family reunion is so that we can review how it is being applied at the moment. I mentioned the figures earlier but they are always worth repeating: there was a 111% increase on 2023 and a 378% increase on 2022. Some examination is obviously needed of who is being granted family reunion and why. That is why the temporary suspension is on. We will bring forward legislation to bring that into effect at some point and will review the operation of family reunion. The points that the noble Lord has made will be part of that consideration as a whole.

The noble Lord’s second point is also well made and I will certainly examine those comments. In the interest of time, for now, I hope it will help him to have had some answers to his questions.

[Baroness Hamwee (LD)]

My Lords, I apologise to the House for being a few seconds late; the unexpectedly early start took me by surprise.

Does the Minister agree—I am sure he will at least agree with this point—that it is important that the language everyone uses on this subject is as moderate and careful as it can be? Otherwise, feelings are inflamed and the situation is corrosive. It is important to be positive about the contribution to our society and economy of immigrants. I make this point about language having talked to a friend who attended a protest—a counterprotest, if you like—in support of refugees at a local hotel. She was perfectly clear that there were a lot of people there protesting who were there because they wanted to take part in a general ruck. In fact, one of them said to the highly qualified doctor she was with, “Oh, you ought to learn to read a book”. That is a serious point.

I am glad that we will have the opportunity to debate family reunion because it is, after all, a safe route. It would be perverse if we stopped a safe route. The Minister said we will have the opportunity to discuss the new independent body. Can he tell the House now whether people—I do not know whether they will be called appellants or applicants—will be entitled to legal representation before that body?

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness for her comments and the tone in which she has put them. She is absolutely right about the debate on migration, illegal migration, asylum and border control. In my view it is a challenge and a difficult issue, but I hope that between the three main parties represented here and those individuals from the Cross Benches and others, we can have that debate in a civilised way. I also hope that in the country at large it can be debated in a civilised way.

There is an important issue to discuss about who we allow into the country for immigration purposes and how. There is an important issue of how we stop illegal migration, and an important issue of how we manage and meet our international obligations on asylum. The Government, in these 13 months, have brought forward a White Paper on the first issue, have taken action on the second and are now looking at managing the asylum regime by speeding up asylum claims to get the backlog down. Those are really important issues, and those who seek to divide us are using them in a way that I would not support. The right to protest is always there, but it should be about the tone of that protest accordingly.

We will bring forward further information on the new body in due course. I hope tonight is an hors d’oeuvre for the noble Baroness, as the main course will follow.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Thursday 10th July 2025 Lords Chamber

Moved by

[Baroness Hamwee]

95: Clause 28, page 21, line 14, leave out from “them” to end of line 15 and insert “only for those purposes”
Member's explanatory statement
This amendment is to probe under what further circumstances a person listed under section 27(3)(a) to (f) could use the information supplied to them by HMRC.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, Amendment 95 is about the use of information supplied by HMRC. I acknowledge that many—possibly most—people believe that if information is given to a government official in one part of government, the Government as a whole have it. That is not the case, and we do need to take care with protecting data. Clause 28(1) allows for the use of any of an organisation’s functions, and the amendment would limit it to the functions for which the information is supplied, it being for the purpose of any other functions of the persons in in subsection (3).

I have explained that extraordinarily badly. This comes of thinking that you can write brief notes instead of a complete speech, which I try and avoid for Committee. I refer noble Lords to the authority of the Bill. Basically, I want to limit the use of information provided under the Bill and to ask the Minister how this will work, how it will be policed and what sanctions, what remedies, there are if information is misused.

Amendment 190—in his absence, I thank the noble Lord, Lord Watson—raises again the issue of a firewall to protect vulnerable people. I am afraid that the noble Lord, Lord Katz, is going to hear a repetition of points that I made on the Employment Rights Bill, because they are relevant here too. The objective is to protect workers who are in particular need of protection because of the abuse, the exploitation, they are experiencing. The amendment would restrict the use of information disclosed for enforcement purposes—enforcement against abuse or exploitation—regarding a subject of abuse who is seeking support, and of information regarding a witness to that exploitation. I shall return to witnesses in a moment.

I became aware during the passage of the Modern Slavery Act 2015 of the conditions to which some overseas domestic workers were subject. Slavery was the right term for them, and a change in the rules was made. It was minor and, frankly, quite inadequate. Our law did not and does not protect migrant workers—not just domestic workers but those in agriculture, care, health and so on—as it should. They are particularly vulnerable to abuse, not just because of the consequences if their existence comes to the attention of immigration authorities, but because of their fear of the consequences. People who do not know their way around the system, who are in fear of any authority figure, are very open to unscrupulous employers who can make threats—the threats may have no foundation at all—that the person may be detained or deported, or that the person’s children will be taken away, so they cannot take the risk of reporting abuse and exploitation. I am told by the sector that this fear is not ill-founded. There is evidence that data is often shared between labour market enforcement agencies, the police and Immigration Enforcement.

The current situation has a widespread effect: mistrust by migrant communities prevents police and labour inspectors doing their job properly, which drives down conditions for all workers. It is not impossible to deal with this. Secure reporting has been implemented in the Netherlands and Spain. I understand that Surrey Police has implemented a firewall, and the Greater London Authority is undertaking a pilot. During Committee on the Employment Rights Bill, the noble Baroness, Lady O’Grady, mentioned that the Independent Chief Inspector of Borders and Immigration found that allegations raised during inspections were not investigated by the Home Office. As she said, the rights of all workers are only ever as strong as those of the most vulnerable.

One comment made during that debate was that nobody should fear. Another comment—with which, of course, I agree, and which came from the Conservative Benches—was that one of the gravest human rights abuses is modern slavery and human trafficking, and that vulnerable individuals risk slipping through the gaps. The Minister on that Bill argued that blocking information-sharing

“could have unintended consequences and make it harder for the vulnerable individuals concerned to get the help they need and deserve”,

and that the right balance was

“between protecting vulnerable workers and maintaining the integrity of our immigration system.” ”—[Official Report, 18/6/25; col. 2078.]

I would argue that the system actually deters those vulnerable workers from seeking protection, and the clear view of those working in the sector is that the current position is to their very considerable detriment.

The immigration White Paper states:

“We recognise the challenges migrant victims of domestic abuse can face”—


“domestic” is quite a wide term in this context—

“and we will strengthen the protections in place to support them to take action against their abusers, without fear of repercussion on their immigration status.”

This is an opportunity to make an adjustment that would make a very considerable difference to people who do not always get the help they deserve from those who are in a position to make that difference.

The Conservative Front Bench has tabled Amendment 188. I am really intrigued as to why it wants to amend the Data Protection Act, given paragraph 4 of Schedule 2, which we on these Benches have often opposed. We will see. I beg to move.

[Lord Alton of Liverpool (CB)]

My Lords, I will be brief, because I agree wholeheartedly with the noble Baroness, Lady Hamwee, particularly about the position of domestic migrant workers. This is something we will come back to at later stages of the Bill, but as the noble Baroness has raised it now, I just put on record how much I agree with her. The noble Lord, Lord German, and I recently met with Kalayaan, which does so much extraordinary, wonderful work in this field. We were reviewing with it how things have changed—and what else needs to be changed—in the years that have passed since 2015. I have with me a publication it issued called 12 Years of Modern Slavery, the Smoke Screen Used to Deflect State Accountability for Migrant Domestic Workers.

I know that the Minister agrees with Kalayaan’s 2015 findings, because there is a photograph of the Minister and me, both of us looking considerably younger, alongside our redoubtable friend, now retired from this place, Lord Hylton. We were celebrating the passage of the 2015 legislation but recognising that more still needed to be done. I will not quote at length from the report. If the Minister has not seen it, I will be more than happy to share my copy with him, so that he can study the photographs and see the effects of too much engagement with Bills such as this.

The report says:

“Government data tells us that from 2005 to 2022, the number of visas issued to migrant domestic workers has remained consistent at around 20,000 per year”,


so this does affect a significant number of people doing significant work. Kalayaan urged the Government to take immediate steps to amend the Immigration Rules and reinstate the rights provided for under the pre-2012 visa regime. Among those is the right to renew a domestic worker visa annually, subject to ongoing employment. That is a reasonable demand. I hope that at some stage during the proceedings on the Bill, the Minister will see whether there is a way to address that issue. So I strongly support what the noble Baroness, Lady Hamwee, has said.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

I will look in detail at the Hansard report of the contributions that have been made today and reflect on them, but my assessment is that I can give the noble Lord that assurance. If there is any difference in the detail that he has mentioned, I will double-check with officials to make sure that we are clear on that.

The noble Lord should know, and I think he does know, that one of the Government’s objectives is to turbocharge the removal of foreign national criminals with no right to stay in the United Kingdom after their sentence, and indeed during it, and to ensure that those with offences that are a bar to their entry to the United Kingdom are monitored and acted on accordingly. That is an important principle. Without rehearsing the arguments around that with him now, I can say that the past year has shown that we have had an increase in the number of foreign nationals who have been removed, and it is our objective to try to do that.

To give the noble Lord reassurance, I will ensure that my officials and I examine the Hansard report, and, if the reassurances I have given are not sufficient for him, he has the opportunity to revisit this issue on Report, as does the noble Lord, Lord Cameron. In the light of that, I ask the noble Baroness to withdraw her amendment, and that she and the noble Lord, Lord Cameron, do not press their other amendments.

[Baroness Hamwee (LD)]

My Lords, it might help the noble Lord, Lord Harper, to know that, in the paragraph in the Data Protection Act that sets out an exemption to data sharing, the wide phrase,

“for the purposes of immigration enforcement”,

is one that these Benches have opposed. Given our relative positions, that might be a pretty good reassurance for him.

I am grateful to the noble Lord, Lord Alton, for extending the debate a little. The pre-2012 visa regime was more realistic—if I can put it like that—as to the position of domestic workers. Restricting the period that they could remain in this country after an incident to six months is frankly insufficient to help them recover. You would not employ somebody for six months as, for example, a nanny, if you can find somebody who is able to do the job for longer. I am of course disappointed, but not surprised, by the Minister’s response to Amendment 190.

With regard to the amendment from the noble Lord, Lord Cameron, while I was listening to him, I was struck that we should recognise the agency of people who are affected or abused. The Employment Rights Bill has a clause that raises a very interesting situation: the state can take enforcement action on behalf, and without the consent, of an affected individual. That raises some very interesting and frankly rather troubling issues. However, I beg leave to withdraw Amendment 95.

Amendment 95 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

97: Clause 34, page 29, line 12, at end insert—
“(c) the person is applying for refugee family reunion.”Member's explanatory statement
This amendment, together with Baroness Hamwee’s amendment to page 29, line 27 aims to reduce the risks families encounter to reach a visa centre during the family reunion process.

[Baroness Hamwee (LD)]

My Lords, I beg to move Amendment 97 and will also speak to Amendment 98. I am grateful to the right reverend Prelate for signing these amendments. They would add to the applicability of Clause 34 by increasing the flexibility of arrangements for taking biometric information—I think the Minister needs to send around the photos mentioned earlier so that we can all share the fun. Given my criticism of quite a lot of this Bill, I want to acknowledge that Clause 34 is welcome, but there is always a “but”.

The clause is limited to situations where the Government are facilitating the departure of what the clause’s title refers to as “evacuees etc”. People who, under the UK’s own rules, are entitled to a family reunion—and whom these amendments would extend the clause to include—are often unable to exercise that right because they are not able to get to where they can provide biometric information which is required for a visa. The Government, by definition, recognise that, because that is what the clause is about. I have not heard any news emanating from Downing Street this morning, and I think that these could be issues that we will be discussing fairly soon. I look forward to the Minister explaining how they might work, because a lot of issues have been raised as to the operation as well as policy.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

I have given a broad description. The police have access to terrorist databases with information and biometrics generally. I think it best not to talk, at the moment, about specific databases. I believe the IED database that he mentioned is covered by the proposals, but I will check with my colleagues who have a responsibility for that, rather than inadvertently give the Committee information that proves subsequently not to be as accurate as I would wish.

With that, I would very much welcome the noble Baroness responding and withdrawing the amendment.

[Baroness Hamwee (LD)]

My Lords, I think that is the third time the Minister has asked me to do so, and I will—but not quite yet. I say to those waiting for the next business that I will not be going down the side roads of the summit, what might happen on the northern shores of France or in Syria—much as I would like to, given my own heritage—or my noble friend Lord German’s escapades with portable biometric equipment.

A number of noble Lords, including me, have referred to the reliance on smugglers, which is ironic in the circumstances. I say again to the Committee—to the noble Lords, Lord Harper and Lord Cameron—that we are not opposing Clause 34. In fact, we are positively supporting it. We are not challenging the use of biometrics; we are looking at procedures and the candidates for the application of Clause 34.

The Minister referred to the possibilities of what can be done in exceptional circumstances. That is a term that I always find quite difficult; it seems to me that a family disunited in extreme circumstances should be regarded as exceptional. I understand that, from his point of view, that may be different. Frankly, to travel from Sudan to Saudi Arabia twice would be very exceptional in itself.

Given the support across the Committee for the concept of what is incorporated in these amendments, as the Minister said, I wonder whether this is something we might find a moment to discuss after Committee and before Report. There should be a way of taking forward how the procedures can be used, without disrupting the Government’s concerns. With that, I beg leave to withdraw Amendment 97.

Amendment 97 withdrawn.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Thursday 10th July 2025 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, there is another fine detail which neither noble Lord has mentioned but which worried some of us very much—that, in offloading to Rwanda, we would be enabling a whole new business model for traffickers, because those sent to Rwanda would be such vulnerable prospective customers for the traffickers.

[Lord Horam (Con)]

Like the noble Baroness, Lady Lister, I am a veteran of those dreadful, seemingly endless debates and I too recall them with some horror, including the ping-pong. But let us put this in perspective. That policy was chosen because it replicated the only purely successful means of stopping illegal immigrants coming on boats to a country—the Australian example. Instead of Rwanda, it used Nauru, near the Solomon Islands, and established over 10 years or so a successful arrangement whereby people coming on boats across the Timor Sea to Darwin and so forth were immediately detained and sent within 24 hours to Nauru to be treated. Not only did that immediately stop the boats but it has led to a cross-party arrangement in Australia that is, frankly, to die for here. The Liberal Party brought in those arrangements, the Labor Party then eventually won a general election and abolished them—

--- Later in debate ---

Moved by

[Baroness Hamwee]

103: Clause 38, page 31, line 11, leave out “28” and insert “29”
Member's explanatory statement
This amendment would repeal section 29 of the Illegal Immigration Act 2024, which requires the Secretary of State to remove people who have sought to use modern slavery protections in “bad faith”

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, with this group of amendments we return to issues relating to modern slavery and human trafficking, which we have debated on the basis of what I described, I think, as amendments from the “eminent quartet”, led by the noble Baroness, Lady May of Maidenhead, who has an amendment in this group but obviously is not able to be here. It is very much on the same grounds as our amendments. I too am very conscious of time and of the fact that a number of noble Lords have a distance to get home tonight. It is a pity, because this is an important set of amendments on important issues, but I will do my best to let them catch their trains.

Amendment 103 would repeal Section 29 of the Illegal Migration Act. I really query why the Government are leaving themselves the option to use it. Section 63 of the Nationality and Borders Act allows for the disqualification of victims of trafficking from modern slavery protections on grounds of “bad faith” or “public order”, including convictions which could have been as a result of exploitation.

Noble Lords may recall that the noble and learned Baroness, Lady Butler-Sloss, has talked in debates on this Bill—it is something that we have covered on previous Bills as well—of the inadequate use, if I could put it that way, of Section 45 of the Modern Slavery Act, which deals, inadequately, with offences which victims of modern slavery are compelled to commit. Section 29, if enforced, would make the disqualification a duty rather than at the discretion of the Secretary of State, unless there are compelling circumstances—and it is not easy to get these recognised. It extends the duty to any length, or shortness, of imprisonment.

The IOM has called for its repeal because of the risk of victims who are wrongfully removed being re-trafficked or facing retribution in their home countries—something which is all too frequent a fear. Removal can be while conclusive grounds decisions are awaited. The Minister in the Commons, responding to similar points, said that individual circumstances will always be considered and that the CPS has a discretion not to prosecute. In our view, this is not sufficient protection.

I recall the forensic and very trenchant analysis during the passage of the then Bill that limiting the public order exemption would severely limit the ability to convict perpetrators and dismantle organised crime groups and would increase victims’ vulnerability to further exploitation. Amendment 117 in this group seeks to remove all the sections in the Nationality and Borders Act relating to modern slavery. Removing these provisions would ensure that the UK is acting in a way that is compatible with the international rights of victims under the Council of Europe Convention on Action against Trafficking in Human Beings, or ECAT. I will come back to ECAT, if I may, and to the ECHR.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

My Lords, I am grateful to the noble Baroness for the way in which she has approached the discussion. I hope that I can convince her straight away by saying that the Government are steadfast in their commitment to tackling modern slavery in all its forms and to supporting survivors. That is why we had the debate on Tuesday, in which I re-emphasised that.

Care should be taken to avoid unintentionally weakening the protections afforded to victims of modern slavery and to public order. Repealing the majority of the modern slavery measures in the Nationality and Borders Act 2022 would do just that. That Act put protections of and support for potential victims of modern slavery, stemming from the Council of Europe Convention on Action against Trafficking in Human Beings, into primary domestic legislation for the first time, building on the Modern Slavery Act 2015. The proposed amendments would repeal these.

I come at it from a different perspective from the noble Lord, Lord Harper, and the noble Baroness, Lady Lawlor. In my view, the measures being lost would include the right to a recovery period in the national referral mechanism; the circumstances in which confirmed victims may be granted temporary permission to stay in the UK; and where the rights and protections can be withheld on the grounds of public order or bad faith, in line with Article 13 of the Council of Europe Convention on Action against Trafficking in Human Beings. These measures ensure that support and protections and removal from the modern slavery system are available to all who require them. It is vital to retain them.

Section 29 is the sole modern slavery measure in the Illegal Migration Act 2023 to be retained. It would, if commenced, amend the public order disqualification to allow more foreign national offenders to be considered on a case-by-case basis for disqualification from modern slavery protections on public order grounds. Here, I share the view of His Majesty’s Official Opposition. Section 29 needs to be retained in its current form so that we can examine the national referral mechanism and agree with partners our priorities for long-term reform.

As I mentioned on Tuesday, Section 45 of the Modern Slavery Act sets out a range of measures. It is not necessary to replicate that defence elsewhere in legislation. On restricting information shared in respect of the modern slavery identification, the Modern Slavery Act 2015 provides certain bodies in England and Wales with a statutory duty to notify the Secretary of State. The information provided for that notification enables the UK to fulfil its international and other obligations.

The duty to notify is discharged for consenting adults by making a referral to the national referral mechanism or, where the adult does not consent, by completing an anonymous entry on the digital system. This information allows us to provide a better picture of modern slavery and helps improve law enforcement responses. It does not include information that identifies the person, unless the person consents to that information being included. Child victims do not need to consent. If a person is identified as a potential victim of modern slavery or trafficking, they are eligible for the recovery period that I mentioned earlier. Imposing restrictions on the information provided would be to the detriment of our obligations to such vulnerable people.

I agree that it is vital that the UK complies with its obligations, including as a signatory to the Council of Europe convention that the noble Lord mentioned. Implementation and compliance with these obligations does not require full incorporation into UK law. I say on behalf of the Government that the UK complies with its obligations under the convention by a combination of measures contained in domestic legislation, guidance and the criminal justice system. The modern slavery statutory guidance provides a framework where we can ensure that the convention continues to be monitored through reporting of the Group of Experts on Action against Trafficking in Human Beings.

Finally, the Government are committed to ensuring victims can access the necessary support for whatever length of time it is required. Following a positive conclusive grounds decision, confirmed victims of modern slavery receive support from the modern slavery victim care contract and can continue receiving tailored needs-based support through the recovery needs assessment process via the NHS, local authorities and others. That specialist support also includes assistance to access the labour market, vocational training and education and application support for a national insurance number. The Government do not place an overall time limit on how long a victim can remain in support. Following a conclusive grounds decision, victims of modern slavery are considered for temporary permission to stay. That is all important and gives real support to victims of modern slavery.

I have not mentioned the amendments individually, but collectively that response shows that the Government are committed to their international obligations, want to support victims of modern slavery and believe that the retention of the measures in the migration Act is vital to doing that in a fair and appropriate way. I therefore ask the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Davies, does not disappoint me because these were his Government’s provisions, so of course I would have expected him to speak in support of them. I think that my speech was in fact accurate as to the content of the amendment that he referred to and was fuller than the explanatory statement.

I think that we and Conservative noble Lords start from different points of view; they seem still to demonstrate a culture of disbelief with regard to people who claim that they were victims of modern slavery and as to whether one gives them the benefit of the doubt as a starting point or disbelieves them. Using terms such as “real victims” discounts the fact that there is an NRM procedure with the reasonable grounds and conclusive grounds arrangements that the Minister has referred to. We do indeed have Section 45, which provides a defence in certain circumstances, but regarding only some offences. As I have said, that is inadequate.

I will not go back over the information-sharing arguments because of the time and because we have—well, I have—addressed them today. However, secure reporting is understood to be very important, including by the previous Independent Anti-Slavery Commissioner, and the current anti-slavery commissioner has said:

“We need to be able to give these victims the confidence that if they do come forward their perpetrators will be held to account and that they will continue to receive the support and care that they need”.


The current director of labour market enforcement has also said:

“There needs to be an expectation on the part of workers that if they go to an authority to demonstrate that they are being exploited, that will not prejudice their right to be in this country”.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Tuesday 8th July 2025 Lords Chamber

Moved by

[Baroness Hamwee]

59: Clause 16, page 10, line 18, after “care” insert “, humanitarian support”
Member's explanatory statement
This amendment is intended to probe whether provision of humanitarian support constitutes a “reasonable excuse” as a defence to the offence in this clause.

[Baroness Hamwee (LD)]

In moving this amendment, I will speak also to Amendment 60. This clause, again, is about collecting information and reasonable excuses.

Clause 16(8) provides a non-exhaustive list of reasonable excuses. Our amendment is probing. We would like to see as many good reasons as are likely—I emphasise good reasons—in the legislation, rather than on each occasion being assessed by, in the first instance, someone fairly junior. In Clause 16(8), there is provision for an action or possession being for the purpose of

“providing, or preparing for the provision of, medical care or emergency shelter or supplies”.

Our amendment would insert “humanitarian support”. It seems that there is no difference between us as to the importance of promoting human welfare, so referring to it in the Bill follows from that.

I have been prompted having heard of so many refugees—I do not know whether this is a good example of a humanitarian matter or not—being keen to progress their education, or to work in a profession or another activity for which they have qualifications, but not when they get here being able to prove what qualifications they have. Bringing a document showing those qualifications would not be for the purposes of a “relevant journey”, but it is not irrelevant either to an asylum seeker for his or her future life. As I say, this is a probing amendment.

Amendment 60 concerns a matter raised by the organisation Justice and would except from the offences a person carrying out a legal activity, as defined—in other words, providing legal services. Perhaps I should declare—there have been a lot of declarations this afternoon and evening—that I was a solicitor, but that feels like a million years ago, so it is not personal. Everyone involved in the Bill will be aware of the shortage of good lawyers working in this field and available to undertake work on a legal aid basis or through a charity. The Bill is drafted widely, so it does not necessarily preclude the defence that it is for legal services, but I do not think that would be a huge encouragement to lawyers who might be worried about exposing themselves to a charge.

Lawyers, as a breed, are not always popular and are not always, in this field, trusted by the Government of the day, because the work almost inevitably means challenging the Government. If we are not further to risk access to justice, which is already an issue, we should not add further deterrents to legal practice in the asylum and refugee field. So the amendment proposes a specific exemption from prosecution.

[Lord German (LD)]

My Lords, there are only two amendments in this group, both of which are from my colleague and noble friend Lady Hamwee. They both probe whether providing humanitarian support and legal services is a reasonable excuse in the offence in Clause 16:

“Collecting information for use in immigration crime”.


While we welcome the inclusion of the defence of “reasonable excuse” in Clause 16 and the inclusion of those examples already contained in the Bill, we consider there to be a notable and concerning omission, namely an exception for those providing legitimate legal advice and preparing legitimate legal claims.

Given that I have just received an email from those representing lawyers stating that the Ministry of Justice has increased the amount of pay that it is giving for immigration lawyers—it is not sufficient, I am told by the lawyers’ association, but there is nothing surprising about that—it would be very strange indeed if they were to be subject to any danger from providing that legitimate advice. Because those who represent asylum seekers in the UK provide legal advice about their rights and publicise their work, they should be confident that they will not be caught by one of the offences, given the wide drafting of the Bill. Although the Bill does not necessarily preclude a defence for such individuals, in our view, they should be specifically exempt from prosecution, otherwise those providing legal services to vulnerable individuals will be left in an uncertain position, which, in turn, will create an unjustified risk to access to justice and the rule of law.

--- Later in debate ---

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

My Lords, I am tempted to just say “I agree”, but it is important that we put some points on the record.

I thank the noble Baroness for her amendments. Amendment 59 seeks to include an explicit carve-out in the clause to list humanitarian support as a reasonable excuse. The list of reasonable excuses is already quite wide and includes specific exemptions for those undertaking or preparing to undertake the rescue of individuals from danger or serious harm, as well as for those acting on behalf of organisations that provide assistance to asylum seekers and do not charge for their services. I put to the noble Baroness that the list of reasonable excuses in this clause is non-exhaustive, and the provisions ensure that legitimate humanitarian activity is not captured by the offence. I hope that with that assurance, she will withdraw Amendment 59 accordingly.

Amendment 60, again to Clause 16, also provides a list of very reasonable excuses where a person acts for a purpose that is reasonable in the circumstances. That list is non-exhaustive and the wording is intentionally broad to allow courts to assess on the facts of each case whether an individual’s conduct falls within the scope of legitimate activity, including carrying out legal work. In practice, as previously mentioned, law enforcement agencies exercise investigatory discretion when assessing the circumstances of any case, and the prosecution will apply the public interest test when considering charges. That means that individuals acting within the scope of their legal role will not be targeted for prosecution. I hope that gives the noble Baroness some reassurance on the points that she has raised in the amendment.

The clause as drafted provides robust protection for those acting lawfully while allowing law enforcement to focus its efforts—as I have said in every discussion we have had to date—on the groups facilitating illegal and dangerous crossings. I hope that is a reassurance to the noble Baroness and she will not press the amendment, but essentially these are areas where we think there is clarity. Therefore, I hope she will reflect on those points and withdraw the amendment.

[Baroness Hamwee (LD)]

My Lords, of course I recognise that the lists are not exhaustive. It seemed to me to be fairly helpful to use the term “humanitarian”—but there we are.

I am puzzled by the opposition to the reference to lawyers acting in the field. I wonder whether anybody in this Chamber who provides professional services would like to be dependent on discretion, on the public interest test, particularly when the specific provision in subsection (8)(c)(ii) is that the organisation

“does not charge for its services”.

The legal aid lawyers and others acting for asylum seekers and refugees do not get paid very much, and sometimes they are employed by charities that do not get paid directly for their services, although they raise funds to enable them to carry out those services.

This is not special pleading on the part of the legal profession. It is pleading on behalf of the recipients of legal services, in fact, because of the widespread concern that the relevant legal services are not easily accessed. There are far too many legal aid deserts and far too few people who are in a position to provide advice and representation in this field. I had better not say—I suppose I am about to—that it strikes me a little that “not invented here” is the response to this. That will not win me any friends, but I do not see a damage or a harm that would be caused by including an amendment on the lines of the second in this group.

I am clearly not going to pursue the matter tonight, but it is a concern if this is not accepted and if individuals are told they should just be dependent on discretion and the CPS’s good sense. I beg leave to withdraw the amendment.

Amendment 59 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

68: Clause 19, page 13, line 7, leave out “before or after” and insert “in the case of subsection (3)(b) before or after, or in any other case, after”
Member’s explanatory statement
This amendment is intended to remove the retrospective element of some, but not all, of the offences.

[Baroness Hamwee (LD)]

I also have Amendment 209 in this group. Clause 19 defines “relevant person” for the purposes of search and so on in relation to what these days are simply called “devices”. There are other terms in Clauses 20 to 23. The amendment particularly goes to the point of retrospectivity. The clause provides that a relevant person is someone who has entered or arrived, whether before or after the section comes into force. The amendment would leave in as a subject someone who has entered in breach of a deportation order. It seems to me that there is a rather different flavour to retrospectivity here, because the individual knows what he is doing. Having been on the receiving end of a deportation order, he can hardly ignore that that is going to be relevant.

In the other cases, the wording puts it into the future: if the person

“requires leave … requires entry clearance … is required … not to travel … without an electronic travel authorisation”.

In parentheses, I wondered about the term “entered” compared with “arrived”, which I think might technically be the position, and the Explanatory Notes do not seem to help—but that is by the way. That first amendment would deal in all but one of the cases in this clause with the retrospective element.

Amendment 209 would require the affirmative procedure for regulations under Clause 25, extending powers to persons designated by the Secretary of State. This is a point made by the Constitution Committee, of which I am a member. As we said in our report, the committee has

“previously raised concerns about the extension to persons who are not recognised legal officials of powers which might be used to interfere with individual liberty”.

The Government say that the requirements would not create any new powers; they would extend the cohort of people who can use the powers, and the Secretary of State can impose such safeguards as she considers appropriate. The Constitution Committee reminds the Committee not only that it has previously raised these concerns but that the safeguards about designation of other people should be set out on the face of the Bill, so that this is not left to the discretion of the Secretary of State.

The affirmative procedure is of some assistance in scrutinising—but not really blocking—the provisions. It would, of course, enable parliamentarians to debate and scrutinise in public this power of the Secretary of State to designate whoever it might be.

The Bar Council has raised another issue on the provision that the Bill will allow civil servants, if so designated, to access and keep information found on devices. A police constable exercising powers such as these needs authorisation from a superintendent; that is the usual level of authorisation. This Bill will allow junior Home Office civil servants and immigration officials to do so without oversight.

The Bar Council has briefed on its concern about the potential for violating the rights of privacy and legal privilege of people who may have entered the UK years ago and are engaged in legal proceedings against the Home Office.

So, that is a range of concerns, which I hope would be addressed by my amendment. I beg to move.

[Lord Davies of Gower (Con)]

My Lords, it would be remiss of me if I did not begin my remarks on this group by mentioning the puzzling inclusion of Clauses 20 to 23 in the Bill, given that these powers already exist in statute. Section 15 of, and Schedule 2 to, the Illegal Migration Act 2023 already grant these exact same powers of search, seizure and access for electronic devices. Rather than retain the provisions that are already law, the Government are repealing those parts of the Illegal Migration Act and then re-enacting them through this Bill; I would submit that that does not really make much sense.

In fact, the wording of the sections that the Government are repealing are virtually identical to the clauses in the Bill. Paragraph 3(1) of Schedule 2 to the Illegal Migration Act says:

“An immigration officer may search a relevant person for any relevant article, if the officer has reasonable grounds to suspect that the relevant person is in possession of a relevant article”,


while Clause 20(1) of the Bill says:

“An authorised officer may search a relevant person for any relevant article if the officer has reasonable grounds to suspect that the relevant person is in possession of a relevant article”.


The only difference is that the Bill grants the powers to an authorised officer rather than an immigration officer. I understand the purpose of the distinction, as Clause 19 states that under the Bill the powers will be able to be used by police officers as well as immigration officers. I have no issue with that, but why repeal the whole of paragraph 3 of Schedule 2 to the Illegal Migration Act simply to replace one word?

The similarities continue. Paragraph 4 of Schedule 2 to the Illegal Migration Act authorises the search of vehicles and containers for electronic devices, and Clause 20(6) of the Bill does exact same thing. Paragraph 5 of Schedule 2 authorises the search of premises for an electronic device, while Clause 20(5) does the same thing and has the same wording. Paragraph 6 of Schedule 2 authorises the search the person’s property for an electronic device, while Clause 20(4) does the same thing and has the same wording. Paragraph 7 of Schedule 2 authorises the seizure of electronic devices, while Clause 21(1) of the Bill does the exact same thing and has precisely the same wording. I could go on, but I believe it should be blindingly obvious that there is no practical purpose to Clauses 20 to 23; they are simply regurgitated provisions of already existing statute that the Government are performatively repealing.

I turn to one of the very few aspects of the powers relating to electronic devices that the Government have actually changed. My Amendment 69 is intended to probe the Government’s definition of “relevant articles” from which electronic information can be accessed and stored under Clauses 20 to 23. As drafted, the Bill essentially defines that as any electronic item that could contain information relating to an offence under Section 25 or 25A of the Immigration Act 1971. Consequently, the powers under Clauses 20 to 23 can currently be used only to garner information relating to the facilitation of unlawful entry or the illegal facilitation of the arrival of asylum seekers.

However, those are not the only offences that immigration officers might need to access electronic devices to investigate. For example, what about the information on electronic devices pertaining to offences under Section 24 or Section 24A of the Immigration Act 1971? If the Bill is aimed at tackling illegal immigration and protecting our border security, should it not address that in its totality? Why should immigration officers and police officers not be able to utilise information they have gleaned from the electronic devices of illegal entrants as evidence of the commission of the offences of illegal entry or the use of deception to gain leave to enter or remain? Is the prevention of those offences not crucial to our border security?

The previous Government recognised that these powers need to extend to information relating to a wider range of offences, which is why in the Illegal Migration Act we did not limit the definition of electronic devices in such a way. Rather, relevant articles were defined as anything containing information related to

“any function of an immigration officer, or … of the Secretary of State in relation to immigration, asylum or nationality”.

That offered a far wider-ranging power to investigate the whole plethora of immigration crimes, all of which would fall under the Government’s definition of border security in Clause 3 of the Bill.

The Prime Minister has spoken on many occasions of giving the Border Security Commander counter- terrorism-like powers. I have to say to the Minister that the substance of what is contained in Clauses 19 to 23 is utterly consistent with the tough language that the Government have been throwing around, and if they are indeed serious about matching their rhetoric with their actions then they should accept Amendment 69 and expand the definition of relevant articles in Clause 19.

--- Later in debate ---

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

My Lords, I am grateful for the thoughtful contributions made by the noble Baroness, Lady Hamwee, and the noble Lords, Lord Davies of Gower and Lord German. Amendments 68, 69 and 209 raise important questions about the scope, application and oversight of the powers in the Bill.

I will address the comments made by the noble Lord, Lord Davies, around Clauses 20 to 23 being lifted from the Illegal Migration Act. The noble Lord, Lord German, is smiling already; maybe he anticipates a cracking punchline—but there is not one. It is a simple fact that, clearly, one of the chief intentions of this legislation is to replace the Illegal Migration Act. It was deemed easier in drafting terms to do that and then include certain sections that were deemed worthy of keeping in this Bill, rather than simply have to go back and unpick the Illegal Migration Act in different parts of the Bill. It was felt that this was a cleaner way of doing it. I am not sure if that has made the noble Lord, Lord German, smile; it has not particularly raised a laugh with me, but there we go.

While I recognise the intentions behind each proposal, I will respectfully set out why the Government do not support them. In each case, the current drafting of the Bill is deliberate and proportionate and designed to ensure operational effectiveness, legal clarity and appropriate safeguards.

Amendment 68 seeks to limit Clause 19 by removing what is perceived to be a retrospective effect. I want to be clear that Clause 19(2)(a) does not operate retrospectively in the way suggested by the noble Baroness, Lady Hamwee. The powers in the clause come into effect only after the Bill receives Royal Assent. The clause has been carefully drafted to ensure that powers apply regardless of when an individual entered or arrived in the UK before that date.

This is not retrospective legislation. Individuals who entered the UK without leave did so in breach of immigration laws that were already in place at the time of their entry. The clause does not impose a new penalty for past conduct. Instead, it enables the powers to be used from the moment they come into force, provided that the individual still meets the relevant criteria at that time. This approach ensures that the law can respond effectively to ongoing encounters of individuals who have already arrived illegally in the UK and does not create loopholes that could be exploited by those who may look to take advantage of immigration controls.

The amendment, while well intentioned, would narrow the scope of Clause 19(2)(a) and undermine its operational effectiveness. It would create a two-tier system, in effect, treating individuals differently based on the timing of their entry or whether they are subject to a deportation order, and result in missed opportunities to gain valuable information to stop organised immigration crime groups. In summary, the clause as drafted strikes the right balance: it is not retrospective in its legal effect, and it is forward-looking in its application. It ensures that the Government can act decisively to protect the integrity of UK borders and uphold the rule of law.

I turn now to Amendment 69, which proposes to broaden the definition of a “relevant article” to include any article containing information on the commission of an offence under any of the immigration Acts, as defined in Section 61(2) of the UK Borders Act 2007. While I understand the desire to ensure comprehensive coverage of immigration offences, I must respectfully oppose this amendment too.

The current drafting of Clause 19 is deliberately narrow and targeted. It focuses on offences under Sections 25 and 25A of the Immigration Act 1971, offences that relate specifically to facilitating unlawful immigration and assisting illegal entry. These are the offences most relevant to the operational intent of this clause: to disrupt organised criminal networks and protect the integrity of our borders. Expanding the definition to include all offences under the immigration Acts risks capturing a wide range of minor or administrative breaches, such as overstaying or failing to comply with conditions, which are not the intended focus of this power. Our concern here is that such a broad approach could undermine the proportionality of the measure and expose it to legal challenge.

Amendment 209 seeks to amend Clause 60 so that regulations made pursuant to Clause 25 are subject to the affirmative procedure, as pointed out by the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, and recommended by the Lords Constitution Committee. While we fully respect the committee’s role in scrutinising delegated powers, we respectfully disagree with the necessity of this amendment and the affirmative procedure.

Clause 25 does not create new powers; rather, it allows for the extension of existing powers to a broader cohort of authorised officers. The use of the negative procedure in this context is appropriate and proportionate. Moreover, Clause 25(3) provides an important safeguard that the Secretary of State is required to include such safeguards as they consider necessary. This ensures that any extension of powers is accompanied by appropriate checks and balances. The negative procedure is appropriate for this type of technical and operational regulation, which ensures agility without unduly compromising oversight. Regulations made under the negative procedure are still laid before Parliament and subject to annulment, providing a clear route for scrutiny while avoiding unnecessary delay in operational matters. Conversely, requiring the affirmative procedure in this case would introduce unnecessary delay and complexity into what is a targeted and operationally focused provision that must be able to respond agilely to any challenges. The negative procedure strikes the right balance between parliamentary oversight and practical implementation. For these reasons, I urge noble Lords not to press their amendments.

[Baroness Hamwee (LD)]

My Lords, seeing the back of the Illegal Migration Act will be a great pleasure. I am with the noble Lord on it being better to have an easy-to-read version of this Bill, including provisions, rather than having to refer back to another piece of legislation. I do not think that is entirely the case throughout the Bill, but there we are.

On the retrospectivity amendment, I am not sure that I have followed the argument, since the wording of the clause is

“whether before or after this section comes into force”.

I thought the Minister was talking about a distinction being made because the clause would need to come into force before it had any effect, but I will have to read what he has to say.

The Minister says that Amendment 209 is not necessary, but I think that depends on your point of view. The checks and balances are better scrutinised through the affirmative procedure than through the negative procedure. I have heard what he has to say and I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

--- Later in debate ---

[Baroness May of Maidenhead (Con)]

My Lords, in speaking to Amendment 84, I also wish to speak to Amendment 90. I do not wish to detain the Committee for long.

The principle—sorry, I am looking at the wrong Minister—behind these two amendments is the same as that behind Amendment 49: namely, the circumstances addressed in Clause 21 concern the search of a person and the circumstances addressed in Clause 23 concern the retention of material information that has been copied as a result of that search. In both those circumstances, the material should be so protected on its retention that it is available to the individual should they wish to use it in a court or particularly in a case before the national referral mechanism, so that anybody who is potentially in slavery has access to the information they need to be able to support their case.

The Minister, in responding to Amendment 49, referenced the Police and Criminal Evidence Act. I think he would accept that there have sometimes been incidents where the police’s retention of evidence has perhaps been less than perfect. Therefore, it would be helpful to put this requirement in relation to the retention of information, so that it can be used by potential victims of slavery in national referral mechanism cases, on the face of the Bill. I beg to move.

[Baroness Hamwee (LD)]

My Lords, having supported the noble Baroness on her previous amendments, from these Benches we do so on these, too.

[Lord Davies of Gower (Con)]

My Lords, I will speak briefly on Amendments 84 and 90, tabled by my noble friend Lady May of Maidenhead. These amendments raise a serious and important concern that we believe merits the attention of the Committee. It seeks to ensure that, where personal belongings are retained by the authorities under Clause 23, particularly in the case of potential victims of modern slavery, those items and the information they contain are preserved in a manner that allows them to be relied on as part of a national referral mechanism determination.

For many victims of trafficking, the evidence contained on a mobile phone or similar device may be the only proof they possess of their exploitation, whether that be messages, photographs or location data. To risk the loss, corruption or mishandling of that data would not only undermine the pursuit of justice but could place the individual concerned at even greater risk. We therefore support the principle behind this amendment. These protections are vital.

That said, we also recognise that many of these safeguards may already be provided for under the existing statutory framework, particularly under the Police and Criminal Evidence Act, which governs how evidence is secured and handled. But I accept what my noble friend said earlier about retention by police in some cases. If the Minister can offer the Committee reassurance that those protections already apply in the context of Clause 23 and that the rights of potential victims are adequately safeguarded in practice, that will be most welcome. This amendment raises a proper, necessary point of clarification and we hope the Government will respond accordingly.

Border Security, Asylum and Immigration Bill

Baroness Hamwee Excerpts

Committee stage
Tuesday 8th July 2025 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I did two years of Roman law, which did not stick, but the mens rea in criminal law did stick. The noble Lord, Lord Alton, and I are very much on the same page here. He did not quote the rather neat line from his committee’s report: that it considers that the

“precursor offences would benefit from greater circumscription”.

I thought that was very circumspect, and rather typical of the careful language our Select Committees use.

My Amendments 32, 42 and 53 are, if you like, more instinctive and a bit more amateur; the noble Lord’s are technically better, and I am happy to support them. My amendments go to the words “suspects” and “suspicion” in Clauses 13, 14 and 16. That is a very low threshold, with the burden being on the person charged to show beyond all reasonable doubt that they had a reasonable excuse. I looked up the definition, and the Oxford English Dictionary defines to “suspect” as to

“imagine … on slight or no evidence”,

and

“to believe or fancy to be guilty … with insufficient proof or knowledge”.

The noble Lord, Lord Jackson, on the first day in Committee, working from a superseded group of amendments—although it was not his fault—described all the amendments in the group, which included these, as being “well meaning”. I choose to take that as a compliment, although I am not sure that it was intended quite directly as one. He said that they would

“significantly change the burden of proof in respect of evidence”.—[Official Report, 26/6/2025; col. 447.]

Exactly, and that is the point. These are criminal offences with substantial penalties, and that should require a high burden of proof. I am very uneasy that, in the circumstances, a term that I could describe as casual does not require much from the prosecution. We will come to the content later, but I will raise this point whatever the content of the offence.

[Lord Harper (Con)]

My Lords, I listened very carefully to the noble Lord, Lord Alton, and have a great deal of respect for the side of the argument he is coming from. But the piece missing from his argument, and from that of the noble Baroness, Lady Hamwee, is the concept of deterrence.

What the Government are trying to do, as far as I understand it—the Minister will correct me if I have got this wrong—is to put in place a framework that actually stops the organised criminal groups, as well as those who pay them and those who help facilitate that immigration crime. The intention is to stop them doing these things in the first place, and there is a balance to strike between the criminal law regime you put in place and the penalties. It needs to be sufficiently tough that you actually deter people in the first place.

The Joint Committee’s report says that the

“scope is broad, the thresholds are low, and the penalties are high”.

That is correct, but that is because the Government are trying, I think—and if so, I support them—to set those penalties so that people are deterred from trying to cross the channel. Let us remind ourselves that they are doing so from a safe country. They are not fleeing persecution in France; they are already in a safe European country. They may have been fleeing persecution in the country from which they originally came, but they are now in a safe European country. Of course, we also know that a lot of the people undertaking these journeys are not fleeing persecution at all; they are travelling, perfectly understandably, for economic reasons, but those are not reasons we should allow.

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The danger with the Joint Committee’s report is that it is coming at this from a particular angle—only from the point of view of the person undertaking the journey, not the wider position, which is what we are trying to do by having a border control regime that deters people entering the UK when they do not have a reasonable reason for doing so.

[Baroness Hamwee (LD)]

Is it not sensible to look at it from the point of view of the person who may be undertaking the action? If there is to be deterrence, you have to look at it from that point of view. Whatever your objective, you have to look at it from the point of view of the person who may be affected; otherwise, you cannot assess whether there is a deterrent effect. Does the noble Lord think that people who reach the northern shores of Europe are as aware of the detail of legislation as his argument would require them to be?

[Lord Harper (Con)]

I shall address both the points the noble Baroness has made. On the first, in one sense I am very much looking at it from the point of view of the participants. I want them to be clear that carrying out that particular set of actions would indeed be an offence with a significant penalty, because I want them to then conclude that they do not want to do that and do not want to cross the channel to the United Kingdom from the safe country in which they currently reside. That is the point of the legislation.

On the second point, I am clear, having had some experience of running the immigration regime, and particularly of the development of technology, that the noble Baroness will find that most of the people concerned have mobile telephones and are very well aware of what is going on. There are many groups out there that provide detailed information to migrants about the law and those who can facilitate their being smuggled into the United Kingdom. They are very well aware of changes we make and of the legal position. We were very well aware—I am saying this only because it has just occurred to me—that in the run-up to the election, lots of communications were being made with people in northern France about the likely outcome of that election and whether they should stay put or make the crossing to the United Kingdom. They are very well aware of what is going on, and that is very relevant.

[Lord Harper (Con)]

The noble Lord makes half a good point. I agree with him on people who are victims of modern slavery. I think my noble friend Lady May will speak to some amendments on that in later groups.

I am sorry if this disappoints noble Lords, but the fact that the example in the report was given by Liberty does not strengthen the case, in my humble opinion, but somewhat lessens it. When I was Immigration Minister, Liberty spent most of its time trying to undermine our immigration legislation and argued for not protecting our borders. It failed to understand, importantly, that if the British public do not think that we have a robust immigration and asylum system then they will become increasingly intolerant of protecting people whom I believe should be protected. You command wide public support for people genuinely fleeing persecution, for whom we should provide refuge, by being clear that we have the ability to stop those who are not entitled to that protection coming to our country and making a mockery of our system. Organisations in favour of our looking after genuine asylum seekers and people who would meet the test of being a refugee should sometimes reflect that being uncritical, as I am afraid many of them are, about those people attempting to come to the United Kingdom damages the public’s view and our ability to have a system that genuinely helps those who need it, as everyone then gets swept up because the system is not working.

Finally, I may have misunderstood the noble Baroness—I am very happy to take an intervention if I have it wrong—but, on her amendments probing the removal of the defence, she said that she wanted the prosecution to have to make the argument. She said that the current drafting means that people would have to prove their defence beyond a reasonable doubt. That is not my understanding of how this works. It is for the prosecution to prove beyond a reasonable doubt that somebody is guilty of an offence and the legislation, as drafted, provides that there are defences that people can offer as to why they may have conducted themselves in a certain way. Unless I have misunderstood something very badly, that does not require the person to prove their defence beyond a reasonable doubt—all they have to do is, in setting out the defence, raise at least a reasonable doubt with the court that they were not guilty of the offence. That seems the right place to have the test in our criminal justice system. As currently drafted, the legislation does not have the effect that she thinks it does.

[Baroness Hamwee (LD)]

We debated the reverse burden of proof on the first day in Committee. I certainly do not take it from any of the briefings I have had, or from previous debates on the reverse burden of proof in other Bills, that it is as the noble Lord described it. As I understand it, you are charged and then you have to put forward a defence if you believe you have a reasonable excuse—which you have if there is sufficient evidence of the matter to raise an issue and the contrary is not proved beyond reasonable doubt. It therefore throws the “not proved beyond reasonable doubt” on to the defence. Presumably the CPS, in the usual way, would have to believe that the public interest test is met and so on, but it upends the normal way that we do things.

[Lord Harper (Con)]

I am grateful for that explanation. As I explained to the Committee, I could not be here on the first day but I have read through the debate and I am afraid I did not agree with that then either. I just do not buy that that is what this does. The prosecution has to prove beyond a reasonable doubt that somebody is guilty of the offence. In the legislation as drafted by the Government, somebody can offer a defence and all they have to do for that defence to be successful is create a reasonable doubt in the minds of the jury. That does not reverse the burden of proof at all.

To pick up on the point in the amendment about changing “knows or suspects” to “intends that, or is reckless”, if you know or suspect something untoward is going to take place, that is a reasonably decent idea that someone should not really be doing it. If I know or suspect someone is going to commit crime, it is probably not very wise if I provide them with equipment that would enable them to commit that crime. I do not really see why I would want that test to be much higher. Let us remember that we are not trying to criminalise people who are thinking about doing this; we are trying to say to them, “If you do this, you will be committing a criminal offence and we’d like you not to do it”. That is the purpose of this. Ministers would be delighted if they did not have to prosecute anybody—certainly none of the people contemplating crossing the channel. They want to put in place a deterrent regime that stops them doing it. That is the objective of the legislation. Weakening it would just remove that deterrent effect and we would get back to the position in which we do not have control of our borders, significant numbers of people cross the channel and undertake unsafe journeys, and the British people have no confidence in our immigration and asylum system, which would damage it for the legitimate refugees for whom we want to provide proper protection. We can only do that if there is a system that commands public confidence.

If I have understood what the Government intend to do, I respectfully suggest that the Committee should not support the amendments tabled by noble Lord and noble Baroness. We should stick with the wording in the Bill.

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[Baroness Hamwee (LD)]

I do not think that either of the noble Lords were in the House when we put forward the same arguments about the burden of proof regarding blades and, I think I am right in saying, chemicals which could burn and disfigure, which can also be domestic—

[Lord Jackson of Peterborough (Con)]

Acid.

[Baroness Hamwee (LD)]

I thank the noble Lord— I knew there was a word for it. We do not deny that there are examples on the statute book, but we objected to them at the time.

[Lord German (LD)]

I think the answer is related to the nature of the offence which is before us. An offence which is punishable by a 15-year maximum jail sentence is a very serious and big crime to have committed. To put it simply, the suspicion threshold is seldom applied in our criminal law because such a low threshold —the noble Lord was saying that there are examples—is a disproportionate response to where someone has not been intending to commit a crime and with such a disproportionate sense of what harm they might be doing. The balance between the nature of the offence and the nature of the judgment which creates that offence is what is disproportionate.

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I am grateful to the Committee for bearing with me through this long group of amendments. I have tried to describe as briefly as I can what is in them, but I recognise that there is a lot here to consider. I hope the Minister will at least think about taking them away to look at them further between now and Report, but in any event I beg to move.

[Baroness Hamwee (LD)]

My Lords, I support almost all the amendments from the noble Lord, Lord Alton. I said to him yesterday that I thought that the committee’s work had been—I thought carefully about this word—painstaking.

My name and that of my noble friend Lord German are not to a couple of the amendments because he and I had already tabled amendments on the same point when the noble Lord’s were tabled. My noble friend will pursue the point of a defence of not doing action if one was not doing so for financial gain—the same point, in effect, as the noble Lord, Lord Alton, has made. As my noble friend has said, and we are going to go on saying, the clauses in the Bill should not sweep up asylum seekers, whom one could also describe as victims of smugglers.

I have Amendment 51A, which I picked up from the JCHR report, to add to the list of excepted articles in Clause 15. One of the things that people in this situation, and I am thinking of the asylum seekers now, must feel that they are losing is their dignity. The JCHR suggested adding—“At a minimum”, to use its words—hygiene products. If one is without hygiene products, that adds to one’s sense of a loss of dignity, a loss of looking after oneself as a real person with a proper place in the world, and so on. It is a matter of proportionality.

[Lord Alton of Liverpool (CB)]

The noble Baroness is quite right. This issue was specifically raised by Mr Alex Sobel, Member of Parliament for Leeds, who encouraged us to include those words about hygiene. It was based on exactly what the noble Baroness has just said about our concern for human dignity. We talk a lot during these debates about human rights, but let us also remember human dignity.

[Baroness Hamwee (LD)]

I think one has a right to human dignity, actually. That is probably a point at which I could stop and commend the amendment.

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[Baroness Chakrabarti (Lab)]

Given that my noble friend knows what the noble Baroness, Lady Hamwee, means, and given that he has parliamentary counsel at his disposal, might he consider a government amendment that adds “female sanitary hygiene products” to a list that currently includes food, drink or medical products?

[Baroness Hamwee (LD)]

I understand the point that the Minister is making. The JCHR report actually used the term “hygiene kits”, and I did not understand what those might be. They sound a little bit like the complimentary items you might get in plastic wrapping that you cannot undo in in a hotel. Would the Minister agree that we might have a discussion about this? It would require regulations to change the list of articles in Clause 15. It would be far better if we could talk about this as a sensible, non-political point and get it into the Bill.

[Lord Hanson of Flint (Lab)]

I remind the Committee that this offence criminalises not specific articles but those who supply. I do not see a realistic scenario in which items mentioned in Amendment 51A, when used for their intended purposes, could be used in connection with an offence under Sections 24 and 25 of the Immigration Act and therefore fall within scope of this offence. However, I understand the intent of the noble Baroness’s amendment. There are legal safe- guards, and we can reflect on this and have a discussion around it. I hope she recognises that the points I have made are equally valid, and that she does not move her amendment. We can examine this issue outside of the Committee.

I hope that noble Lords feel able to withdraw or not move their amendments. Once we have responded to the report, the noble Lord, Lord Alton, can return to any of these issues on Report.

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[Lord Dubs (Lab)]

My Lords, I am grateful for the opportunity to speak to several of these amendments, tabled by my noble friend Lord Browne of Ladyton, who regrets he is unable to be here today and has asked me to speak to the amendments on his behalf. I agree very much with what the noble Lord, Lord German, just said in relation to the earlier amendment. I am also grateful to the Law Society of Scotland for some of the briefing it has provided, although I should emphasise that the amendment is not confined to Scotland: it is, of course, a UK-wide amendment.

I will take the argument in summary. Speaking to an earlier amendment a few minutes ago, my noble friend said:

“The gangs are the target, not the refugees”.


The point, particularly of Amendment 50 is, in fact, to give effect to saying the gangs are the target and not the refugees. Amendment 50 seeks to make the legislation consistent with the spirit of the refugee convention, ensuring that vulnerable people are not debarred from refugee protection on the basis of criminal acts they have committed in order to claim asylum in the UK.

Clearly, none of us accepts that traffickers have any legitimate basis at all—they are vile people. But some of the people who cross the channel as a result of their efforts—I hope we can stop these traffickers—are, in fact, refugees. If their only offence is to cross the channel by boat, we are making the vulnerable the victims, and that seems not a sensible thing to do. Elsewhere in the Bill, the Government’s approach is to concede the point, and I do not see why it should not apply in this section. If we do not amend the Bill, we will create a Kafkaesque situation in which we would remove protections on the basis of steps taken by refugees in order to seek these protections in the first place. That seems a fairly clear point, and I would have thought the Government would be willing to tidy up the Bill to achieve this particular end.

I will make it clear that the refugee convention has a provision in it about particularly serious crimes, but it is designed to exclude individuals whose record of criminality rendered forfeit their claim to asylum. But that should never apply to those asylum seekers who are forced because there are no safe and legal routes to enter the country by these other means, which we have labelled in previous legislation as illegal.

If we had safe and legal routes—and I do not want to get into a Second Reading debate on this—the whole system would work in a much better way. Furthermore, Amendment 56 is a limited and, I hope, constructive amendment that seeks to remove an inconsistency within Clause 16. This clause creates a defence of collecting information for use in immigration crime, but subsection (6) has a defence for anyone who does it for the purpose of a journey made only by them. The point of Amendment 56 is that if people are traveling in a family group, they will also be able to have that defence. This is a very simple point indeed, and it goes fully in the spirit of what the Minister said earlier. I repeat: gangs are the target, not the refugees.

[Baroness Hamwee (LD)]

My Lords, we have Amendments 51 and 51B in this group. Amendment 51 would add mobile phones and chargers to the list of relevant articles. The noble Lord, Lord Alton, is just leaving; he may be coming back. There are innocent examples of the use of mobile phones in the JCHR’s report. Mobile phones are very common, and we are looking for proportionality in all this. Some years ago, I quite often heard opponents of asylum seekers and refugees, who were outraged, say, “They even have mobile phones”, as if that was some sort of great luxury and that having them meant they would be perfectly capable of getting, possibly not first-class seats, but certainly seats on a plane, because they were clearly very civilised, well-equipped and moneyed. I have not actually heard that for some time. Mobile phones are not a luxury these days; they enable asylum seekers to keep in touch with their family. I think that is hugely important, not for any sinister reason but because they are a lifeline for mental health, quite apart from more practical examples.

Amendment 51B speaks to the regulations which I mentioned in the last group. The Secretary of State can, by regulations, alter the list of relevant articles, and my amendment would provide for consultation with organisations that aim, without charge, to assist asylum seekers. I think that that point was made by one of those organisations in its briefings to noble Lords. After all, if there is to be a change, it is perfectly reasonable and proper that the people who know what happens on the ground—I am not suggesting that the Government do not—and who have that particular take on it should be consulted.

I have signed Amendment 56, to which the noble Lord, Lord Dubs, has spoken. People travel in groups—not everybody, but some people—and it seems natural, to me anyway, that a husband would perhaps carry documents for his wife and children, or a mother would carry documents for her children. I think that it would be right to make that change.

[Lord Cameron of Lochiel (Con)]

Once again, I am grateful to noble Lords for their contributions to this group of amendments around the safeguards to the offences. As I have already said on previous groups, it is the position of His Majesty’s Opposition Benches that the new criminal offences in the Bill must be as watertight as possible. We know that people-smuggling criminal gangs are incredibly innovative in their efforts to continue running their illegal operations, concocting ever more ingenious methods to circumvent the law. We must do all we can to frustrate that. To do so, we need to ensure that there are no loopholes that could be used to evade legal repercussions.

I turn to the amendments. Amendment 46, in the name of the noble Lord, Lord German, seems, to us, with respect, to be unnecessary. As the Bill stands, the person in question already has a defence if they are able to show that they were carrying out a rescue, or if

“they were acting on behalf of an organisation which … aims to assist asylum-seekers, and … does not charge for its services”.

In my view, if someone has broken a law, as they will have done if they are charged under this clause, without being able to avail themselves of those two specific defences, then they have committed an offence for which they should be held liable. The amendment proposes that we, in effect, waive the law if the person shows that their actions were self-relating. That is a dangerous precedent to establish—that someone acting to benefit only themselves can get away with actions that are demonstrably illegal. If someone knowingly engages in criminal activity and is unable to have recourse to the defences set out in the Bill, we need to be clear that they have committed a crime and should still be liable as a result. In our view, the amendment would blow wide open the rigour and focus of the offences as currently drafted, which is the opposite of the strong message we need to send to those who—we cannot forget—are illegally violating our borders.

Amendments 50 and 62 would mean that, for the purposes of the UN Convention Relating to the Status of Refugees, any offence committed under the relevant clauses would not be regarded as a particularly serious crime. I listened to the noble Lord, Lord Dubs, explain the rationale for the amendments, and I completely understand the concern that lies behind them. I think I am right in saying that the convention talks about constituting

“a danger to the community of that country”,

and I completely accept that that is very strong language, but I think it is important to consider this in context. Illegal migrants enter the UK without going through any checks whatever. It can be almost impossible to find out who such migrants are, where they have come from, what their history is, and, fundamentally, what sort of people they are. Safe and legal routes are safe and legal precisely because they answer these questions. Let us not forget the incident that happened in May, when five Iranian nationals were arrested for planning what the Home Secretary described as a major terror attack. They arrived in the United Kingdom by irregular means, including small boats and a lorry, before claiming asylum. One of those people was taken out of his taxpayer-funded accommodation when he was arrested. Is it not clear that those men constituted a danger to the community of our country? We need to appreciate the risks that we run when faced with this system and with the problem that we have no idea of who those people are or the potential risk they pose. The police and security services were successful in foiling that attack, but we cannot guarantee that that would happen indefinitely. This problem obviously and demonstrably risks the safety of our national community, and we need to engage with the law in a way that reflects this. For that reason, we oppose those amendments.

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[Baroness Hamwee (LD)]

My Lords, we on these Benches support the noble Baroness, who is part of the eminent quartet that has signed the amendment. I had been wondering—but it was one of those thoughts that got away—about somehow trying to get the word “voluntarily” into the Bill in respect of actions taken by people that could be offences, and the first of these amendments certainly reflects a part of that.

As regards Amendment 49, I am sure that, through the briefings that we have received, there has been mention of phones—I will not try to inflame the Minister—which have not been returned by the authorities. They have been held so as to extract information, and they have somehow got lost in what I can understand must sometimes be a pretty chaotic situation. That is not relevant just for the offence but can be a hindrance to the NRM process.

As the noble Baroness was speaking, something occurred to me that may or may not be relevant, but I will just float it. When, some years ago, we were debating young women who were vulnerable to being pushed into forced marriages, they were advised to hide about their person, if they could, something that would be picked up at the border, while they were going through security, which would enable them to talk to the border officials. I simply do not know, but could people who are trafficked try that same sort of trick or device to attract attention when they would be among people who do want attention at the border? I throw that in as a thought. I do not know whether it would be covered by

“acting under the duress of slavery”,

but I express it anyway since it has come into my mind.

[Lord Sentamu (CB)]

My Lords, first of all, I want to congratulate the noble Baroness, Lady May, for getting legislation about modern slavery on to the statute books. I want to say thank you very much, because we have people—some from my own country—coming here under that very disheartening reality. The second thing I want to mention is what the noble Baroness did with the Hillsborough inquiry. She resolved a lot of pain for a lot of people in Liverpool, so I wanted to say thank you for that.

The question I want to ask is this. Under Amendment 47, the line of defence would be that they were

“acting under the duress of slavery”.

What about a member of one of these criminal gangs that are bringing people over? They could easily say as their defence, “I was under duress when I did what I have done”. What would be the response to such a line of defence?