Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2024

Baroness Hamwee Excerpts

Tuesday 5th March 2024 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, this instrument, which was laid before the House on 31 January 2024, would amend paragraph 4 of Schedule 2 to the Data Protection Act 2018, more commonly known as the immigration exemption. The Government are amending these provisions following the Court of Appeal judgment on 11 December 2023, which found the immigration exemption incompatible with provisions in the UK GDPR. The court suspended the effect of the judgment until 11 March 2024 to allow the Government time to make the necessary amendments.

I will briefly outline what the immigration exemption does and the changes being made by these regulations. Parliament included the immigration exemption in the Data Protection Act 2018. It provides a legal basis to derogate from certain data subject rights where their exercise is likely to prejudice effective immigration control. For example, a data subject has the right to request and receive details of what personal data is held about them and how it is being processed. Under the provisions of the immigration exemption, the Government may limit the information provided in response to that request if, for example, the provision of that information would tip off the data subject that they were about to be subject to immigration enforcement. The immigration exemption is therefore an important provision in the DPA 2018 that allows the Government to protect the functioning of the immigration system. This was noted specifically by the Court of Appeal in its judgment.

The Court of Appeal’s judgment noted two technical deficiencies in the current exemption. First, the safeguards to be applied to the immigration exemption needed to be in the legislation itself; this is being amended by the regulations’ new paragraph 4A, which inserts the safe- guards on the use of the immigration exemption previously contained in the immigration exemption policy document into the legislation.

The court also determined that the risks to rights and freedoms of individuals were not sufficiently set out in the legislation. This is being remedied by new paragraph 4A(3), which specifically sets out the rights and vulnerabilities that should be taken into account when exercising the exemption. By including these explicitly in the legislation, we are providing increased clarity on the safeguards that are already applied when exercising the provisions of the exemption.

The Government are also choosing explicitly to include provisions as to the balancing exercise that must be undertaken when determining whether the exercise of data rights is likely to prejudice effective immigration control and, if it is necessary and proportionate, to restrict such rights as a result. The draft regulations were subject to consultation with the parties to the judicial review proceedings as well as the Information Commissioner’s Office. The ICO issued a public response to the consultation confirming that it was content with the regulations.

The Government have acted to meet the requirements of the Court of Appeal’s judgment while continuing to ensure that there are necessary safeguards in the legislation to protect effective immigration control. I commend the regulations to the Committee.

[Baroness Hamwee (LD)]

My Lords, I thank the Minister for that explanation. I have to say that my recollection is that the issue is much wider than the exemption and ensuring that there is no tip-off to somebody who is about to be visited by immigration enforcement. Let me give an example that was borne out after the Act was passed: solicitors acting for data subjects were unable, as we had anticipated, to find out what the Home Office thought it knew—I put it that way deliberately —about their clients.

I have some general points to make; I will do so fairly quickly. It would be optimistic to think that the Home Office had taken from this saga that objections and criticisms—in the form of amendments, obviously—can be helpful because we could have avoided a lot of effort in rectification. My noble friend Lord Clement-Jones will go into some of the history; I must admit, I do not recall much detail except for being teased frequently by the noble Baroness, Lady Williams, when she was the Home Office Minister, because I brought up our objection to the immigration exemption so often.

I feel strongly that it should not have to be for non-governmental organisations that are no doubt strapped for cash to do so much in order to get things right. I appreciate that that is part of our democracy; I do not object at all to the fact that they can do so, of course, but they should not have to. An application, an appeal, another judicial review, another appeal—at what cost to those organisations and the taxpayer! I emphasise that there is an exclamation mark, not a question mark, at the end of that sentence.

This saga is one of those episodes that vindicates the role of the courts, often in language that I, for one, relish. We have spent a lot of time in the Chamber recently discussing the role of the courts in our constitution; to give one example of the language, I really liked the understated use of

“over-broad derogations from fundamental rights”.

As the Minister said, the litigants were consulted before the publication of the SI. The Secondary Legislation Scrutiny Committee reports that it made three points, of which one, on oversight, was rejected by the Home Office and one was regarded by the Home Office as not necessary. Can the Minister tell the Committee what these were and why they were not pursued?

On the detail of the instrument, I note that it will be a matter for the Secretary of State to balance the risks to the individual and the risks to the state. I happen to think that it is in the public interest to apply exemptions with a very light touch, but of course it is no secret that the Liberal Democrats have problems with the Home Office’s immigration policy, and I fear that the reputational ship is well on its way. Clearly, there is an imbalance of power. That is inevitable, but it is not easy for the individual data subject to exercise his rights, and we should be aware of that.

Can the Minister also tell us what the Home Office will do to ensure that there will be transparency of decisions so that it can appropriately be held to account? Mechanisms must be written into the procedures. New paragraph 4B of Schedule 2 provides for a record of decisions and reasons. How will that be published and what will happen to it?

Will the Minister also comment on the capacity of immigration enforcement—and whoever else needs to—to look at prospective decisions on a case-by-case basis for each disapplication? I recognise that that will not necessarily be a straightforward and easy exercise, but it certainly requires a great deal more than, “It’s okay; it’s immigration, so we can just rely on the exemption”. Case-by-case decision-making is very important.

Finally, I note that the Explanatory Memorandum tells us that there is no full impact assessment because the instrument

“does not substantively alter the safeguards and considerations for applying the Immigration Exemption”.

I have to say that I thought that was the point.

[Lord Clement-Jones (LD)]

My Lords, this set of regulations is a step forward, but with all the caveats that my noble friend made, and I have some more.

As the Minister confirmed, these regulations are the result of the Open Rights Group case—the Court of Appeal judgment in the3million & Anor, R (on the application of) v Secretary of State for the Home Department & Anor—which confirms the earlier High Court judgment in March 2023. In broad terms, the Court of Appeal found that the immigration exemption in Schedule 2 to the Data Protection Act 2018 conflicted with the safeguards in Article 23 of the UK GDPR, as the Minister said. This was because the immigration exemption was drafted too broadly and failed to incorporate the safeguards prescribed for exemptions under Article 23 of the UK GDPR. It was therefore held to be unlawful and was disapplied.

These regulations follow two previous attempts by the Home Office to craft an immigration exemption which contained sufficient safeguards to satisfy the requirements set out in Article 23 of the UK GDPR. This is the third shot at it. In order to make the immigration exemption compatible with the requirements of Article 23, as the Minister explained, the Government added a number of safeguards to the exemption which were not there before. These are set out in the regulations. They are worth stating because they are really important requirements, which were omitted previously.

They include requirements to: make decisions on the application of the exemption on a case-by-case basis; make separate decisions in respect of each of the relevant UK GDPR provisions which relates to the data subject; make fresh decisions on each occasion where there is consideration or restriction of any of the relevant UK GDPR provisions in relation to the data subject; take into account all the circumstances of the case, including the potential vulnerability of the data subject, and so on; and apply the exemption only if the application of the particular UK GDPR provision would give rise to a substantial risk of prejudice that outweighs the risk of prejudice to the interests of the data subject, ensuring that the application of the exemption is necessary and proportionate to the risks in the particular case.

You would think it rather extraordinary that those are excluded from the previous regulations. In addition, a record must be made of the decision to apply the exemption, together with the reasons for that decision. There is also a rebuttable presumption that the data subject will be informed of the use of the exemption.

The ICO welcomed them in its letter to the Home Office as, in its view, satisfying the requirements of the Open Rights Group case. In its view, the proposed changes will ensure that the exemption complies with Article 23(2) of the UK GDPR and ensure that there are appropriate safeguards to protect individuals. Since it took part in the case as an interested party, this is of considerable reassurance. I congratulate the Open Rights Group and the3million on not one but two notable successes in court cases which have forced the Home Office to amend the exemption twice.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I did not skate over it at all; I referred to it explicitly and am happy to do so again, if it would help. I do not know if there is any specific redress to the Home Office. I would imagine not, given that it is explicit that data subjects should go via the ICO. If I am wrong on that, I will clarify.

I have no particular data on the subjects who may have been covered by this before the court’s decision, so I will have to find out, come back and write to the noble Lord if there is anything useful to add.

The Home Office already has relevant guidance and training in place for those exercising the immigration exemption provisions, but we are undertaking a review of those materials to ensure that they align with these regulations. That will be completed in time for the 11 March deadline to amend the current exemption. The instrument is making existing safeguards explicit in the legislation, which are already captured in the existing training and guidance, so we do not expect substantive changes to be needed.

The costs of the court case are not yet settled, but I am happy to commit to write once they have been.

There are a couple more bits to say. How often is the exemption used? The honest answer is not very often. I think I referred to this earlier, so it is probably redundant to say it again but, for the record, in the year ending October 2023, the immigration exemption was applied in around 70% of subject access requests received in relation to immigration citizenship and the Border Force. Of those, the vast majority had only a small amount of data redacted under the use of the exemption. So I suppose the answer to the noble Lord’s question is that it will have a very minimal impact on people, but I commit to clarify that.

Finally, the noble Lord, Lord Clement-Jones, asked about the relationship between the DPA and retained EU law. The official answer is that the focus of this SI is the immigration exemption and that discussions of the rules and the implications for the DPA 2018 are probably best debated as part of the DPDI Bill, which will, I believe, come to the House on 20 March. The unofficial answer is that I cannot comment on the noble Lord’s disposition because I did not really understand it and I do not have much knowledge of this subject. However, I note that we have left the EU: the people voted. Our rules can now be amended to our own circumstances, and of course, that applies across the entire legal suite. It was a pretty clear vote by the people of this country; I know that that does not suit the Liberal Democrats.

In closing, I hope that I have satisfactorily answered the points that were made and that noble Lords understand the necessity—

[Baroness Hamwee (LD)]

Before the Minister ends, can I go back to the record the Home Secretary is to keep under the schedule’s new paragraph 4B? It provides that, when he makes a decision, he must keep a record and the reasons for it. In essence, my question is about whether this will be public to any extent or whether transparency will be confined to the data subject. Also, I do not expect the Minister to go into any detail on this now or to comment, because he gave the figure, but 30% seems very high to me. The Immigration Law Practitioners’ Association has commented in the past—not the immediate past but, then again, I have not asked it—about the difficulty data subjects and, in particular, their legal representatives face because they simply do not know what the Home Office thinks it knows about their clients, which is an important starting point for any legal representation and any claim. I make this point because it really needs to be made.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for making her point. As regards what is required of the Home Secretary, for obvious reasons, it will not be public, although I agree that transparency is important when it comes to culture; we talked about that earlier in the context of the police, where similar rules apply. It will, however, be available to the ICO and subject to the usual transparency rules at the ICO’s request.

As I have already noted, we understand the necessity of these changes in order to ensure compliance with the Court of Appeal’s judgment and to increase clarity around the use of the immigration exemption. With that, I commend the draft regulations to the Committee.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Hamwee Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[The Lord Bishop of St Edmundsbury and Ipswich]

My Lords, I support Amendment 42 tabled by the noble and learned Baroness, Lady Butler-Sloss. My right reverend friend the Bishop of Bristol regrets that she cannot be in her place today to speak in support of this amendment, which she has signed.

The question of deterrence is central to the Government’s premise in the Bill. The threat of being removed to Rwanda should, in theory, be sufficient to discourage asylum seekers from taking dangerous crossings in small boats across the channel. Even if we accept that this will work for individuals trafficked to the UK against their will—I have not seen evidence that suggests it will—how can the Bill possibly have a deterrent effect? This point was made repeatedly in Committee, but it has not been adequately addressed.

There are as many as 4,000 people in the national referral mechanism who could potentially be eligible for removal. Can we not give them assurance that we will not subject them to further upheaval? The Global Slavery Index estimates that the rate of modern slavery in Rwanda is more than twice as high as the rate in the UK. Can we be sure that victims will be safe from the risk of re-trafficking?‘

The provisions of the Bill are incompatible with protective obligations, but potential victims will not even be able to put this injustice to the courts under the Rwanda treaty. Not identifying victims or sending them to another country before their claim has been properly assessed will also set us back in our efforts to bring perpetrators of modern slavery to justice. Victims are often the only witnesses of this crime; without them, the case against perpetrators will be significantly harder to make. Safeguarding victims of modern slavery from removal to Rwanda will have a negligible impact on the supposed deterrent effect of the Bill, and every effect on the safety and flourishing of the victims of modern slavery.

[Baroness Hamwee (LD)]

My Lords, my name would have been on the amendment of the noble and learned Baroness, Lady Butler-Sloss, but I was not quite agile enough to get in as number four. The treaty provides at Article 13 that

“Rwanda shall have regard to information provided about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and shall take all necessary steps to ensure that these needs are accommodated”.


If the Home Office rushes through its processes, as it will under the legislation of 2022 and 2023, I doubt that the individual needs will be adequately identified. It is hard enough to do even under the pre-2022 procedures.

Of course, what Rwanda is told is necessary and what it actually can provide are not necessarily the same thing, as has been covered pretty fully today. Its record is not exemplary. Just last year, the 2023 US Trafficking in Persons Report of 2023 told us that Rwanda

“did not refer any victims to services”.

That there were none is, to me, literally incredible.

The report also refers to widespread cultural prejudice, as we have just heard, along with a lack of capacity and resources that inhibits effective procedures, and so on. Referring to the words of the treaty as if that made them actually happen seems simply an extension of the argument of “The legislation says that Rwanda is safe and it therefore is”. What assessment have the Government made of the risks of Rwanda being safe in this respect? What assessment have they made of its capacity to provide services? Do they accept that Rwanda is able carefully to assess each individual’s risk of being re-trafficked? The risk in this country is enough—my goodness, what must it be there? Indeed, what assessment have they made of how those people sent to Rwanda by Israel disappeared? Common sense gives me a likely answer.

[Lord Browne of Ladyton (Lab)]

My Lords, I speak to Amendment 44 in this group, which is in my name and supported by the noble and gallant Lords, Lord Stirrup and Lord Houghton of Richmond, and the noble Lord, Lord Kerr of Kinlochard. Before turning further to Amendment 44, I say that I support the amendments in the name of the noble and learned Lord, Lord Etherton, and the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss. I have had the benefit of hearing about these amendments in Committee and today in your Lordships’ House. I do not plan to say anything further on this, but I cannot for the life of me understand why the Government’s attitude to those who have been trafficked or other victims of modern slavery should be that they were in control of their own decision-making and to categorise them as such, when manifestly they were not. I also support Amendments 31 and 32 in the name of the noble Baroness, Lady Meacher, which I am sure she will speak to immediately after I sit down, and Amendment 25 in the name of my noble friend Lord Dubs.

As the explanatory statement in relation to Amendment 44 makes clear, the new clause proposed by this amendment would exempt from removal to Rwanda people who are in a very special case: those who put themselves in harm’s way in support of His Majesty’s Armed Forces or through working with or for the UK Government overseas. It extends this exemption to their partners and dependants. In Committee on 14 February, responding to a debate on this amendment, the Minister said:

“Of course, we greatly value the contribution of those who have supported us and our Armed Forces overseas, and we have accepted our moral obligation. … Anyone eligible for the Afghan relocations and assistance policy and Afghan citizens resettlement scheme should apply to come to the UK legally under those routes. As regards the specific case of British Council personnel, they are qualified under the third pathway of the ACRS and places are offered to them”.—[Official Report, 14/2/24; cols. 287-88.]


I know and admire the Minister, and he is correct, but his restatement of the eligibility framework and criteria for these schemes does not engage, never mind undermine, the necessity for this exemption. It is clear that we have a moral duty to those who have served at our behest and in our interests. However, despite serving shoulder to shoulder with British troops, most of the Triples were not evacuated in August 2021, and many have subsequently been rejected under the ARAP scheme. We know now that they were rejected because of misunderstandings on the part of decision-makers of the terms of ARAP and, often, the nature of the service of the applicants, despite the existence of compelling evidence to the contrary, and there is now credible evidence suggesting that the UK Special Forces department blocked eligible applicants from being accepted. The group was refused wrongly by the bureaucracy or blocked for self-serving, venal reasons by the country’s Special Forces, whose Government and Ministers have a moral obligation to promise them, and still promises them, sanctuary.

It comes to this: many applied for the status that would allow them a legal route to resettlement in the UK. They were refused in error. Then, fearing what materialised as their comrades were murdered or tortured by the Taliban, they faced the choice of staying in Afghanistan and facing certain death or getting here somehow. They chose to get here somehow. They were in extremis and had no alternative. There was no legal route open to them because of our failures. In Committee, I shared accounts of the experience of five Afghans who were driven to this extreme and acted accordingly. I do not intend to repeat them but they are freely available in open source media, and I am sure many others will become apparent over time.

Shamima Begum

Baroness Hamwee Excerpts

Tuesday 27th February 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The Government keep all these tragic cases under careful review. Where there are compelling circumstances, we will of course look at them again. Decisions on the return of British unaccompanied minors and orphans to the UK, where feasible, and subject to national security concerns, nationality and identity checks, and so on, are made on a case-by-case basis.

[Baroness Hamwee (LD)]

My Lords, does the Minister acknowledge that one reason why there is a call for people to be brought back to this country to stand trial in our courts is that the alleged offender—in this case, she was an appellant—has access to her own advisers and expert witnesses have access to the alleged offender to assess matters such as trafficking? SIAC commented on the distinction between its position and that of the press, which somehow gained access to her.

[Lord Sharpe of Epsom (Con)]

I am grateful that the noble Baroness brought up SIAC—the Special Immigration Appeals Commission. It ruled that the legislation should be construed as requiring the Secretary of State to seek prior representations from an individual, but that in Begum’s case the failure to do so did not change the outcome or invalidate the deprivation decision. The Court of Appeal has ruled that, in fact, the legislation does not require the Secretary of State to seek representations prior to making a deprivation decision. I take the noble Baroness’s point, but SIAC’s ruling was clear.

Protest Measures

Baroness Hamwee Excerpts

Tuesday 13th February 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I have already largely answered that question on face masks, but, for the avoidance of doubt, I will say it again: we are creating a new criminal offence of wearing a face covering for the purpose of concealing identity when the police place a particular authorisation on a protest. The particular authorisation point is surely the key.

[Baroness Hamwee (LD)]

My Lords, the Minister says that live facial recognition is irrelevant to this. I see a very clear intersection with these issues. I agree with him that there are philosophical aspects—I would say ethical aspects—but there are practical ones as well. The public looks at it in both those contexts. I was until recently chair of your Lordships’ Justice and Home Affairs Committee, and the Minister may have seen a letter that we wrote to the Home Secretary very recently on the subject of live facial recognition. I base my questions on that. First, on the issue of how live facial recognition is applied, one police force said to us—we have not been able to obtain any backing from that force for this comment—that the watchlist is made up of people known to have committed offences, or wanted for offences, who may have an intent to commit an offence. So how will a watchlist be made up for the use of live facial recognition of a protest? In particular, will images obtained during a protest or previous protests be used to make up a watchlist for a subsequent protest?

[Lord Sharpe of Epsom (Con)]

First, I did not say that it was irrelevant. I said that this is a very specific set of circumstances and I accept that there is a whole separate debate about facial recognition that we need to have in the near future—I accept that it is a matter of urgency. I cannot honestly recall seeing the noble Baroness’s letter to the Home Secretary. I will track it down and, if I may, I will come back in writing on that question because I genuinely do not know the answer.

UK-Rwanda Partnership

Baroness Hamwee Excerpts

Thursday 7th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I cannot comment on specific numbers of refugees from that particular incident. However, I can reassure the noble Viscount about the safety of the Republic of Rwanda. Clause 4 of the Bill allows that

“Decisions based on particular individual circumstances”


can be specifically exempted from some other aspects of the Bill. I will not read them, as he can read them himself.

[Baroness Hamwee (LD)]

My Lords, many of the problems that we have discussed over the months and years come from the backlog of applications to the Home Office. What does having two Ministers—one for legal migration and one for what the Government badge as illegal migration—do to address this? Also, the previous Home Secretary made it very clear that the Government’s proposals “will not work”, in her words. Is that because of her views about the European convention or does it come from some other inspiration about how to make the system work? If so, has she shared that with colleagues in the Home Office?

[Lord Sharpe of Epsom (Con)]

She is not a colleague so, no, she has not shared it. I am not going to second-guess what she was trying to say this morning; that would be foolish. As regards having two Ministers for Immigration, this is a big subject so, clearly, it deserves two. I suppose I could give a flippant answer: at least they will be able to process these claims twice as fast.

Justification Decision (Scientific Age Imaging) Regulations 2023

Baroness Hamwee Excerpts

Monday 27th November 2023 Lords Chamber

Every single medical intervention, even taking blood, carries a risk which can, on rare occasions, be very serious for the person who is having it. Informed consent means that if we must take X-rays or do MRIs, or any other kind of investigation, we must make sure that we have explained that risk to the patient or to the person. Unless it is a medical procedure, we have to accept that this is not acceptable. I would therefore certainly go through the Lobby if the noble Baroness decides to have a Division on this matter.

[Baroness Hamwee (LD)]

My Lords, I follow all the previous speakers, including that consummate professional, the noble Lord, Lord Kerr of Kinlochard. I have some similar questions for the Minister. I will try to edit as I go so as not to be too repetitive.

I started by wondering whether the Home Office could possibly be in a position to bring forward and implement these instruments. The GOV.UK website shows the Home Office as still seeking to recruit members to the Age Estimation Science Advisory Committee: a behavioural scientist with expertise in interview techniques and someone with expertise in children’s social services. Is that recruitment still going on? The website shows the closing date as having been December 2022. These areas of expertise are surely crucial.

In this contentious area, does bringing forward instruments fall within the “doing everything it takes” message? How far have the Government got in preparing for these biological techniques? A few days before Prorogation, I asked a Written Question about the estimated cost of using X-rays, MRI and any other scientific methods provided by the legislation. The Written Answer, which I was told was a holding answer—because we were of course running out of Session—was:

“The Home Office does not yet hold this information. Work is ongoing to determine the level and type of capacity required to support the imaging service”.


Then on 24 November, a few days ago, I received what was described as “a full response”. I was surprised that it was followed up by letter but here it is. I will not repeat the two sentences I have just quoted, because they are exactly the same. The letter goes on:

“It is anticipated that the service will then”—


that is, after the ongoing work—

“be subject to a competitive procurement process, which will provide final clarity on costs”.

No wonder there is no impact assessment giving costs.

On Report on the Illegal Migration Bill, the noble Lord, Lord Murray, as my noble friend said, talked about the regulation-making power not being exercised

“until the Secretary of State is satisfied that the science and analysis are sufficient to support providing for an automatic assumption of adulthood”.

He also said that the Government will

“continue to seek scientific advice”

to ensure the regulations

“are based on a firm evidential basis”.—[Official Report, 5/7/23; col. 1239.]

Can the Minister say whether the chief scientific adviser to the Home Office and AESAC have provided that basis? One must assume that the Secretary of State—either the Secretary of State in office when the SIs were published or the current one—was appropriately satisfied.

The interim committee in October 2022, which is where the website took me, dealt with proposing an age range and assessing whether the claimed age was possible. I am repeating what my noble friend has said because it is a really important point. The committee also recommended that

“no automatic assumptions or consequences should result from refusal to consent”

to procedures—if that is the right term, because it is certainly not “treatment”. Then, of course, legislation we passed through Parliament allowed for both.

During the passage of the same Bill, the noble Lord, Lord Murray, said, in response to my noble friend Lord Paddick, that refusal to consent can be treated in a variety of ways,

“which will be described in the regulations”.—[Official Report, 12/6/23; col. 1817.]

Where can we find those ways? They are not in the version of the regulations I have been reading. He also said that it is

“crucial that we disincentivise adults from knowingly misrepresenting themselves as children”.—[Official Report, 12/6/23; col. 1812.]

I note the word “disincentivise”; we have heard a lot about deterring immigrants. However, he then said:

“I certainly would not compel any child to participate in age assessment”.—[ Official Report, 12/6/23; col. 1815.]


The problem is that the consequences of refusal are very close to compulsion.

During the passage of the then Nationality and Borders Bill, some of us had a very helpful briefing on age assessment arranged by the Home Office and chaired by the noble Baroness, Lady Black of Strome, who was then, as she described herself, the interim chair of the interim committee. We were given assurances that all information would be triangulated, so I ask for an assurance that the introduction of these techniques does not give them any particular status compared with—to quote an email from the Home Office I received following the briefing—

“views from a psychologist, or any other person with a role in the age-disputed person’s life”.

That speaks for itself.

During the passage of the two Bills the House discussed—not always at a user-friendly hour—the issue of consent linked with capacity and ethical considerations. By definition, the techniques do not benefit the child so it will be interesting to hear how they can be ethical. The House also discussed the culture, background and ethnicity of the young people seeking asylum in the UK who may be subjected to these techniques. I was glad to see that the interim committee report made it clear that socioeconomic factors and ethnicity affect the timing of development.

Home Office guidance acknowledges that

“physical appearance is a notoriously unreliable basis for assessment of chronological age” .

The committee report said that “any methodology should” minimise

“any health risk, whether physical or psychological”,

and that there are many reasons

“not to give consent for biological age assessment … not linked to concealment”.

Is the Home Office guidance being changed to fit the current policy? I doubt that many adults, were they in the same situation, could give informed consent. They could well be too traumatised to do so. We should also be aware that a good many asylum seekers come from countries where “medical procedures” are an instrument of torture.

The Secondary Legislation Scrutiny Committee report, of course in restrained language, was pretty damning. It pointed to the absence of the impact assessment, which has been referred to. The Explanatory Note to the instrument says that

“no, or no significant, impact on the private, voluntary or public sector is foreseen”

as the reason for not producing an assessment. Surely impacts are foreseen; they must be foreseen, including impacts on resources, with staffing and equipment diverted from the NHS for one. If the Minister cannot give a cost or range per person examined, can he give a unit cost for each application of each technique? Can he help the House on whether the health staff are available and whether they are willing to implement these techniques?

The scrutiny committee said that it is “vital”—not a term I can recall seeing before in such a report—

“that the Government closely monitor and review the policy and adapt it as necessary”.

The committee is quite right in saying that

“The House may wish to question the Minister”


on monitoring and evaluation. We do. When can we expect this and what can we expect by way of keeping Parliament updated?

The committee badges the regulations as “politically or legally important”. They are politically and legally contentious too. The techniques are “fraught with difficulty”, to use the words of the Advocate-General for Scotland during debate on the first of the two Bills. The difficulties are not solved by these regulations, which is why we cannot support them.

[The Lord Bishop of London]

My Lords, I promise that I will be brief. I thank the noble Baroness, Lady Brinton, for moving this regret amendment and thank all those who have spoken so far and so well. I thank the noble Lord, Lord Winston, for pointing out that this is not science; it is the use of scientific instruments. My two concerns relate to consent, as many have spoken about, and to the workforce.

We have spent a long time in the health service over the last couple of decades to improve the way we consent and how people are able to give informed consent. Most of us going for tests and operations will have pages of documents that we will be taken through and then sign. I have concerns around whether people will truly consent. The Royal College of Paediatrics and Child Health has said that

“informed consent is fundamental to all medical practice, and by definition must be free from duress … This directly opposes both the principles of informed consent and the recommendations set out by the independent body commissioned to look at the policy—the Age Estimation Scientific Advisory Committee”.

Questions of capacity have also been raised here. Who will make the decision on behalf of a child if they have no legal guardian present? I am concerned about not only the issue of the X-rays but the impact of being asked to do this psychologically, emotionally and mentally. Could the Minister tell us what consideration has been given to safeguarding and support during and after medical examinations, especially in relation to consent and capacity?

My final point relates to capacity. The House does not need to be reminded that the health service at present—both the estate and workforce—is under pressure. The question is: who will take the X-rays? Will it be radiographers or other trained professionals? Where will the kit be that will be used? I also have a concern around those professionals undertaking this. Has the department consulted with professional bodies, such as those for radiographers? Has the Home Office developed plans for capacity? If so, has this been done in partnership with the NHS and professional bodies?

Illegal Immigration

Baroness Hamwee Excerpts

Monday 20th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

First, I agree with the noble Lord about the International Agreements Committee and the previous comments made there. The fact is that the International Agreements Committee is now getting its wish. Legally enforceable treaties should be the vehicle of choice; obviously, it will be scrutinised in both Houses of Parliament. As regards the apparent anomaly between what the Home Secretary has said and what the noble Lord has just pointed out, to respond to that would be to speculate as to what will be in the forthcoming legislation when I simply do not know. I will make sure that point is well made, and I hope to come back to the noble Lord with a strong answer very soon.

[Baroness Hamwee (LD)]

My Lords, the Supreme Court quite rightly emphasised the importance of the experience of the UNHCR, which had been disregarded. Are the Government now consulting with it and with other relevant NGOs?

[Lord Sharpe of Epsom (Con)]

My Lords, the UNHCR was not disregarded by the Court of Appeal; that was really the subject of the Supreme Court’s decision. It very much took the court at its word. As I already said, the Government have made a lot of effort to pre-empt the Supreme Court’s decision by doing some of the things that were suggested by the Court of Appeal. Having said all that, we of course maintain close co-operation with all our international partners whether they be states, NGOs or whatever.

Migrants: Barges

Baroness Hamwee Excerpts

Wednesday 20th September 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The health measures were in place, and it was only at a very late stage that the Home Office was made aware of the findings of Dorset Council. At that time, as I say, the Home Office decided to go beyond the recommended position from the UKHSA, which was not to put any more migrants on the barge, and instead to evacuate it, which was surely the responsible thing to do.

[Baroness Hamwee (LD)]

My Lords, will the Minister take on board—no pun intended—the concern for not only the asylum seekers who were subjected to this but Home Office officials, and presumably contractors, who must also have been exposed to the legionella?

[Lord Murray of Blidworth (Con)]

As I said in my initial Answer, one of our paramount concerns is the health and welfare of migrants and our staff. I can reassure the House that no one has contracted legionnaires’ disease as a result of the finding of this presence in the water supply.

Family Migration (Justice and Home Affairs Committee Report)

Baroness Hamwee Excerpts

Wednesday 20th September 2023 Lords Chamber

Moved by

[Baroness Hamwee]

That this House takes note of the Report from the Justice and Home Affairs Committee All families matter: An inquiry into family migration (1st Report, HL Paper 144).

[Baroness Hamwee (LD)]

My Lords, I am sorry to have driven so many Members away. I should declare my interests: I have introduced Bills on family reunion; I chaired an APPG inquiry that reported in 2013 on the then new rules; and I am a trustee of a charity that assists asylum seekers into university education.

We had a choice of quotes to introduce this report, many of them from senior politicians stressing that family is the bedrock of society. We chose this article of the Universal Declaration of Human Rights:

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”


We found that many families are not protected. This begs the question, what is “family” in the 2020s? We were clear that it is more than the traditional nuclear family of two adults plus two children. Blended families, for instance, may include children from previous relationships. In many cultures, the concept of “family” is very wide, with corresponding responsibilities to family members. The world has shrunk in terms of accessibility and experience, and relationships reflect that.

The principle of the importance of family has fallen foul of current political narratives. The Home Office takes the view that it is a matter of choice if a family cannot be together because of the rules or, as it puts it, whether a family decide to separate. In 2013, I heard a British citizen be told on a radio call-in to go and live in his wife’s country. As he said, “There’s not much call for mortgage broking in Nigeria”.

There is no consistent definition of “family” or “relative” across the immigration pathways. The Government have created bespoke pathways in response to different situations rather than applying one set of principles. Naturally, this causes confusion and resentment. Where there is an apparently family-friendly policy, it is often undermined or negatived by practice and by practical realities, especially the costs—in particular, fees and the health surcharge, which are now rising to considerably more than when they were mentioned in our evidence, as they were frequently.

Of course, the rules barely touch the sides in terms of parliamentary scrutiny. Ministers respond to criticisms of their being too restrictive by saying that, where there are compelling and compassionate factors, we can exercise discretion to grant leave outside the rules. That means uncertainty and unfairness; it also infringes on one of Lord Bingham’s tenets of the rule of law. It is hard not to regard the evidence that the committee received as compelling and requiring a compassionate response.

That is certainly the case where children are concerned. The “best interests of the child” are not just a matter of compassion; they are part of our law. A child’s interests are not paramount, but no other consideration can be treated as inherently more significant. I suggest that the Home Office forgets this last bit; they are not systematically integrated into immigration law. Family law and the family courts deal with these things much better, as they do in recognising the range of people—step-parents, grandparents, uncles and aunts—who are important to a child.

The Islington Law Centre told us:

“We have observed the incredible transformation that young people go through after being reunited with family”.


They

“experience a dramatic upturn in their mental health”

and

“are finally able to focus on their future”.

According to other evidence from professionals on the impact of separation from parents on children, adolescents and young people who have experienced human rights abuses, they are

“vulnerable to symptoms of complex post traumatic stress disorder and developmental difficulties in addition to centrally difficulties in the process of mourning, separation and loss”.

In theory, adult relatives have a pathway to join family in the UK if they need support, but the eligibility requirements are almost impossibly strict. No wonder they are regarded not as a pathway but as a ban. To fulfil them, it is unlikely you would be fit to travel. Responsibility and love do not feature.

One witness and her husband worked in the NHS:

“Yes I can arrange carers, help at home in India, but ask any elderly who would they like to spend time with—the love and care from one’s own children cannot be replaced with even the finest carers”.


Another witness said:

“Do I continue to let my mother get increasingly frail and isolated … with her only family half a world away? But the only alternative is to uproot my family, depriving my son of his links with cousins and maternal grandparents, forcing my wife not to see her aging parents and to abandon her successful career here (not to mention my own)”.


A requirement for an adult dependent relative visa is that the sponsor in the UK must undertake to provide for the applicant’s maintenance, accommodation and care for five years, and confirm that the applicant will not have recourse to public funds. The catch is that if they can do that, they can afford to pay for “care” abroad, which in many places must go in quotation marks because of poor standards and even abuse. Given the undertaking, why are the Government so unyielding on the cost to the state?

This is one of the rules which keeps families out of the UK and loses us valuable members of society, when middle-aged people decide they must leave to care for parents. Notably, it is why non-British citizens working in healthcare are lost to it. As of last November, non-British citizens made up 16.5% of the NHS workforce and 37% of hospital doctors. Can we afford to lose them? We deter the very people we need as part of our labour force and who would contribute to our society. I am sure others will mention postgraduate students.

The impact of the minimum income requirement for spouses and partners is considerable, and that cohort will increase because EU and EEA citizens who are not settled now fall within the rules. Let us not forget pensioners living abroad with a foreign partner who want to return. I have heard shock, distress, anger and outrage: “Is this how my country treats me?”

Women who would sponsor a partner may be at a particular disadvantage because women tend to earn less. Non-British partners who are high earners outside the UK do not have their earnings taken into account.

A partner may be faced with remaining abroad with a child or leaving the child. In 2015 the Children’s Commissioner estimated that up to 15,000 children were separated from a parent by the income requirement. We heard of a child whose mental health was so affected that she was hospitalised. She recovered when her father was able to join her and her mother in the UK after two years.

We heard a lot about

“overly strict, inflexible and very onerous”

evidential requirements for resources to count. The MIR was introduced to promote social cohesion and protect public finances. It fails—a view that the Migration Advisory Committee has recently indicated it shares.

I remember a gentleman who was living in a low-wage area with a disabled daughter who needed a lot of care, so his ability to work was restricted. He remarried to a teacher who could have shared that care and contributed to the household income. He did not reach the MIR, so they made do with her visiting. She was then refused entry because the immigration officer did not believe she would leave. She was sent to Harmondsworth, where she collapsed. There is a culture of disbelief. We recommend a rebuttable presumption in favour of applications to visit close family and the reintroduction of a right of appeal.

Let it not be said, although the Government say it, that contact online is an adequate substitute. How can it be if a child thinks that daddy has no legs because they are not visible on the screen? We heard that:

“Staying in touch online has been a crutch, a necessary evil that we hold onto, like onto a straw while drowning. It certainly does not allow actual relationship to develop and bloom”.


Child refugees cannot sponsor family members to join them. The UK is one of two outliers in Europe on this. We reject the notion of a pull factor and accept evidence of the huge detrimental impact on children who are refugees. Children need their parents and their siblings, at least. Siblings are very important. We heard distressing evidence, and the obvious point that a child’s family will normally still be in the persecuting state; the child will spend most of their time worrying about their family’s safety.

We did not call for comments on Home Office procedures, but we got a great many: about the “punitive” costs, described as some of the highest in the world, which mean some having to choose whose visas in the family can be renewed, or falling off the route to settlement because the fees are unaffordable. We heard how poor the Home Office is at communicating. It is nowhere near proactive. It fails to meet its own standards. The descriptions sounded like the worst of call centres; if you email, you get a standard reply, no matter the question. Ask any MP and you hear the same frustrations about failures to respond. The Home Office is its own worst enemy. It could reduce the burden with less frequent requirements for renewal—and I will not start on backlogs.

Even with more time than most speakers have this afternoon, this is inevitably a quick canter around some of our committee’s 61 conclusions and recommendations. We were united in our disappointment at the Government’s uniform—and, frankly, cloth-eared—rejection. I hope the Minister can be less defensive.

--- Later in debate ---

[Baroness Hamwee (LD)]

Are there any other bids? I am grateful to the speakers who have added their voices to that of the committee. I clearly cannot go through every point the Minister made, but I will say that my noble friend Lord Paddick’s point was not about couples who have not gone through a civil partnership but same-sex couples who cannot cohabit in their own country when a requirement for leave is that they should have cohabited.

I sincerely thank members of the committee for their work on the inquiry. The unanimity was notable; there were no fudges. I also thank our clerk David Shiels, our policy analyst Achille Versaevel, our committee assistant Amanda McGrath, our communications officer Aneela Mahmood, our specialist adviser Helena Wray of Exeter University and, of course, the 100-plus witnesses for their compelling and sometimes distressing evidence. They all helped us to stand in the shoes of the people who are affected by the rules—so far as any of us who are not so affected can.

I will have to see whether I can find any nuggets of cause for optimism in the Minister’s response. I commend to him the point made by the noble Lord, Lord Hunt: empathy is not weakness. I well remember the occasion when the Secretary of State in oral evidence to the committee prayed in aid, “We can’t welcome everyone”. I was quite taken aback: I simply said, “No one is suggesting that”.

We clearly approached the issues from a completely different point of view from the Government and with completely different attitudes. I cannot help wondering about the reference to the rules being based on what the courts have ruled regarding Article 8. There is a series of successful appeals on the basis of Article 8 where the appellant has won against the Government. Immigration is a political issue; family should not be. I beg to move.

Motion agreed.

Illegal Migration Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

[The Archbishop of Canterbury]

My Lords, I will speak very briefly to Motion J1. The amendment put forward under Motion J1 aims to ensure that, not only now but in the future, the Government’s policy is examined. As the Minister said, the current Government’s concentration is on international co-operation and working, although with some hesitation at times, with groups such as the UNHCR and others internationally. The amendment would ensure that that strategy—the way the Government are working—and the context in which migration is being considered are brought in front of both Houses, simply for a debate, with an analysis of the situation by the Government.

The Minister has said very clearly that he does not wish this to happen on the grounds that it is being done now, but this Bill is not about today. It will shortly be an Act, and when it is an Act it will last years—it may last many years. Who knows what will happen in elections in the future, whether they are next year, in 10 years or whenever? We cannot guarantee what kind of Government there will be at that time. That is why we have Acts of Parliament and a system of law which requires changes in the case that people wish to change the way in which this country operates.

It seems to me that the problem with the Bill is that it has not started at the right place. Where it needed to start was on a matter such as this—to have a level of national consensus and agreement on what the aim of our migration and immigration policy will be in the long term. We know what our aims are for other matters. For instance, the NHS is care that is free at the point of delivery to all who need it; it is not a political matter—at least not at the moment. That is something that holds us together, and then we argue about how it is done—fair enough.

The Bill, and the failure to pursue this amendment, seems to me to have four very simple failures. I will not repeat what the noble Lord, Lord Coaker, said so eloquently just now. First, it does not give space and time for the Houses of Parliament—for politics—to generate a consensus on what we do about a problem that the Foreign Secretary himself said last week is one that is global, geopolitical and generational. We have to make time to discuss such threats. We put time aside for threats such as climate change. Much of the migration will be generated by climate change and, in being so generated, it will move literally hundreds of millions of people across borders.

We cannot put into the Bill that we should set time aside once a year in both Houses to look at that context and discuss it and try to generate a consensus across our nation, where so many communities, including in my own diocese, which I serve, are divided, depressed and anxious—reasonably, because so much is said to them that does not have a common, united vision for this nation. That is a failure of reconciliation; it is a failure of vision to leave the structures of migration better than they used to be—because heaven alone knows it is more than 25 years since we could last look back and see an immigration policy that was really working. It is not a party-political thing.

Secondly, the rejection of this amendment—and much of the Bill, as we have heard earlier this evening—diminishes parliamentary accountability. It does not say that the Government must come to the House of Commons and the House of Lords and give reasons for what they say. It does not say that a Minister of whichever party must stand up and face people such as the noble Lord, Lord Dubs. I apologise for embarrassing him, I am sure, but I would venture to suggest that he is probably the most respected man in this House. His own experience of being an unaccompanied irregular migrant is without parallel, but his approach was casually dismissed. That is not how we should listen to the wisdom of so many years and so much experience.

Accountability is diminished. Parliament exists to hold the Executive to account—not just this Executive but future ones. It diminishes our leadership. I shall not repeat what the noble Lord, Lord Coaker, said, but he was right in everything he said about the Modern Slavery Act, as was the former Prime Minister today and as she has spoken over the past weeks, publicly and privately. It also diminishes our flexibility. This Bill pins everything down; it does not give grace periods or enable Parliament and the Government to say that the situation had changed dramatically. Who would have said four years ago that we would have 45,000 people coming across the channel in boats? Of course, we must stop that—I agree entirely with the Minister. Of course, we must stop it, but I fail to see how this legislation does that, and I have not heard anything to convince me.

But that is the view of the other place and I agree that, in the end, on most things, except the most essential, this House must give way to the other place. Therefore, I shall not be seeking to divide the House on this Motion.

[Baroness Hamwee (LD)]

I speak for these Benches, first, on modern slavery and trafficking. The Government characterise victims as fraudulent and frivolous—those are both words that have been used in debate—but you do not get into the national referral mechanism unless you are referred by Home Office-accredited first responders. They are not frivolous and they are not fraudulent.

We are left trying to salvage something from the wreckage that the Government are making of our tackling of slavery and trafficking. The Minister in the Commons today said they would not remove anyone to a country where they are endangered. But we cannot know that traffickers will not be operating in the country to which people are removed. The chances must be very high that they will operate in Rwanda, or wherever, and we will be opening up new markets for the traffickers instead of tackling them as criminals.