Illegal Migration Bill

Baroness Hamwee Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I heap plaudits on the shoulders of the noble Lord, Lord Carlile of Berriew. That was worthy of a legal lecture. I hope the noble Lord, Lord Wolfson, caught his plane, but that was a common-sense lesson in the law spoken with a great deal of humility. I will not call it a lecture because it was too humble and too articulate for that. I associate myself with all those remarks. I have signed only some of the amendments, but I am happy to endorse all the amendments that are against retrospection in the Bill. Our position on retrospection comes from common decency, common sense and common law before we get anywhere near ECHR obligations and other international obligations. Do not change the rules after the game has begun.

I notice that the noble Lord, Lord Hodgson of Astley Abbotts, is back in his place. He is a great one for the Clapham omnibus. I think this idea of changing the rules half way through the game is something that anyone on the Clapham omnibus or any lay person anywhere in our country would completely understand, and that is why all the amendments tabled by the noble Lord, Lord Carlile, are so important. It is profoundly unfair to say to people who are already in this country, who have already come to claim asylum, whether they will eventually succeed in their claims or not, should be subject to this new, punitive, retrospective regime.

The noble Lord, Lord Carlile, is clear and articulate, but he is also forensic because there are some extreme situations in which retrospection is permissible and even I would support retrospection. The famous one is marital rape. We know that once upon a time in our country it was not considered rape for a man to rape his wife. That position was changed in the courts in relation to a particular case. This had been brewing for some time. People thought the law was out of step with contemporary views on equal treatment of women and what is acceptable even within marriage. That was changed in a single case in which a man was successfully prosecuted for raping his wife. He took his claim all the way to the European Court of Human Rights in Strasbourg, and the court said no, this rape is so profoundly contrary to our international accepted norms that in this case we will accept that retrospection did not offend the common decency principle that you should not punish people retrospectively.

That is the kind of case we are talking about, in which it is acceptable to do that—not in this context. These are very vulnerable, desperate people. Whatever the views of noble Lords in this Committee about the acceptability of this regime, and we will disagree about that, in my view and that of many Members, as we have heard today, applying this to people who came here in good faith, and in many cases in desperation, on the understanding that the refugee convention would be applied in one way, is punitive and discriminatory, contrary to the convention. Retrospection adds insult to injury. I hope the Committee will not accept it and will instead support all the amendments that deal with retrospection in the name of the noble Lord, Lord Carlile of Berriew.

[Baroness Hamwee (LD)]

My Lords, I am glad to have been able to add my name to the noble Lord’s amendments. I am grateful to him for introducing them so clearly. I am conscious that my name is among those of noted advocates in different contexts.

We are already in an Alice in Wonderland—although I am not sure it is really a wonderland—world, where we are told that asylum seekers will know enough about UK restrictions and provisions to be deterred from trying to get here. I do not recognise that proposition. Added to that is the idea that people who are already here should have known what is in the Bill even before most MPs had an opportunity to pick up a copy of it.

The noble Lord referred to legislation coming into effect when it gets Royal Assent. Yes, of course it does, but very often—almost invariably—in a limited way. Some clauses come into effect, usually the jurisdiction and that type of thing, but many of the provisions and most of the legislation that we deal with have to wait for secondary legislation: that is, the provisions that implement what is in the primary legislation.

I absolutely agree with what has been said about certainty, clarity, predictability and so on. This Bill displays a casual attitude, which goes against not only legal principles but, as I think has been said, common decency. If I were to ask the Minister what is so compelling about the Bill that it should be an exception to all this, I have no doubt that I would be told, “We’ve got to stop the boats”.

As the noble Lord just said, the Nationality and Borders Bill—now Act—had the same policy objective, yet the channel crossings kept on rising and they have gone on rising. If I wanted evidence that retrospectivity had an effect in practical terms, I would have expected to find that they had come down in number since 7 March—but they have not.

I have two amendments in this group; my noble friend Lady Bakewell of Hardington Mandeville also has her name to the first of these, Amendment 9, which proposes to leave out Clause 2(7). Subsection (7) provides that

“limited leave to enter or remain given”

to an unaccompanied child “is to be disregarded”. It says, in effect that, for the purposes of Clause 3(1), we are to disregard what has already happened. It is another bit of retrospectivity. What use is the leave that is referred to in Clause 2(7)? To disregard it is unprincipled. Such leave should be taken into account in determining whether a child has leave to enter or remain; the Government have given it.

I will raise a point that the noble Baroness, Lady Finlay, the noble and learned Baroness, Lady Butler-Sloss, and myself, were discussing during the dinner break—it justifies our having had a dinner break, I think—and that is the question of adoption. I have not seen the comment made by the Children’s Commissioner, which no doubt the noble Baroness, Lady Finlay, will talk about, but I understand it suggests that, in the case of a child who has been adopted, and who falls within the provisions of the Bill as currently set out, that adoption in some way could be undone, despite the fact that the child has become a member of a British family.

I would have thought that the four conditions would not have been met, but we must be absolutely clear about this. If someone with the credentials of the Children’s Commissioner suggests that there is an issue here, we must have an absolutely clear statement from the Dispatch Box that that is not so and, preferably, an amendment from the Government making it clear that it is not so.

Migrants: Housing

Baroness Hamwee Excerpts

Wednesday 3rd May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

There has been no intention to set aside any provision of the Children Act. As the noble Lord will have seen on his careful reading of the Illegal Migration Bill, there are provisions set out that deal with the transfer of responsibility for children and the approach to be taken to unaccompanied asylum-seeking children who arrive after 7 March of this year.

[Baroness Hamwee (LD)]

My Lords, there are so many questions arising about the standards that will apply in the “facilities”—if I can use that term—around safeguarding, how families with or without children will be dealt with, and how children alone will be dealt with, and around facilities for medical provision, legal advice and so on. Will the Government publish the contracts that they are entering into with private sector providers, so that one can keep an eye on what standards are being required of them?

Short-term Holding Facility (Amendment) Rules 2022

Baroness Hamwee Excerpts

Tuesday 18th April 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I first thank the noble Baroness, Lady Lister, for tabling this Motion to Regret, and echo her call for these rules to be withdrawn—they are unacceptable.

I think it is useful to put this in the context of Oral Questions earlier. We heard the noble Lord, Lord Ahmad of Wimbledon, speaking for the Government on their plans for the Council of Europe summit in Reykjavik. The noble Lord said that this was

“an important opportunity for member states to renew their commitment to human rights, democracy and the rule of law”.

Yet here we are, debating regulations that clearly fail to meet basic standards of human rights. Basic standards are being denied to people in the UK. That is horrifying in its own moral terms but, thinking about the state of the world and the role the UK Government say they wish to play in it, it is definitely going to damage our status and our ability to have impact in the rest of the world.

It might be said that it is some of the usual suspects in your Lordships’ House who are saying these things, but we are reflecting the conclusions of the Secondary Legislation Scrutiny Committee. These regulations remove important safeguards and reduce standards, including for children and vulnerable adults, and the Government have

“not provided an adequate policy justification”

for or consulted on these changes. This was brought in while the House was in recess. There are blows everywhere to democracy, the rule of law and all the things that the Government say they are standing up for.

I want to briefly reflect, drawing on a report by Amelia Gentleman in the Guardian last month, on what was happening at Manston and what is apparently being regularised. The journalist quoted a Home Office employee who said that what was happening in Manston

“had got way beyond what was ethical and humane … There were people who’d been sleeping on a mat on the floor of a marquee for 20 days”.

Some families had been

“shut inside tents without access to fresh air”

for seven days. This is unacceptable.

One of the other issues was private security contractors. It is a particular concern where we see removal of democratic oversight through outsourcing and privatisation. A company that usually does security for festivals and shopping centres suddenly had staff, clearly not trained for the practices, who had to deal with a very difficult situation.

There is a lot to say, but we have limited time, so I want to focus on a couple of issues. There are much broader issues around immigration detention and the fact that the UK is one of the very few countries in the world that locks up for an indeterminate period—sometimes for years—people who have not even been accused of any crime. I ask the Minister directly, under the RHR regulations we are debating, why is there no maximum legal time limit, as there is to an STHF? Will the Government commit to introducing a time limit?

What kind of system have we now arrived at? Will the Minister confirm that the current changes will see a dramatic change in the amount and form of detention being used in the UK in the coming months and years? Is the Minister concerned about increasing breaches of human rights, in particular the right to be protected from arbitrary detention, torture and inhumane and degrading treatment?

[Baroness Hamwee (LD)]

My Lords, if I did not speak to this Motion and support it, I think I would be haunted by the ghost of the late Lord Eric Avebury, for whom improvement of the conditions in which people are held at the border was something of a mission. I appreciate that I am speaking of a Member of this House who died some time ago, but his legacy lives on with some of us.

The noble Baroness, Lady Lister, has been very thorough. I hope that the Minister managed to note all her questions. If I repeat any of them, I apologise to the House; I do not think my editing quite kept up with all she had to say. The noble Baroness said that the House did not need reminding of the concern there has been, and which remains, about conditions at Manston and the number of people held in those conditions. Perhaps we should not be surprised that, instead of changing “facilities”—a term which I find rather inappropriate in this context—to fit the rules, the rules are being changed to fit the facilities.

--- Later in debate ---

The enduring solution to this challenge is to stop the illegal, dangerous and unnecessary small boat crossings that are beginning to overwhelm our asylum infrastructure. That new legislative regime—as the House is well aware—is the Government’s ultimate objective. The recently introduced Illegal Migration Bill, which will shortly arrive in your Lordships’ House, will change the law so that those arriving in the United Kingdom illegally may be detained and then promptly removed to a safe third country or their home country. In the meantime, the creation of residential holding rooms will give our hard-working Border Force officers the time they need to undertake their vital work and keep our country safe. In light of all that, I ask the noble Baroness to withdraw her Motion.

[Baroness Hamwee (LD)]

My Lords, before the noble Baroness responds, I asked a question about DBS checks. I wonder whether the Minister is able to answer it.

[Lord Murray of Blidworth (Con)]

Certainly. It remains my understanding that those who have dealings with unaccompanied asylum-seeking children would be the subject of DBS checks. Whether it is the case that all of those working at the Manston site have DBS checks—those working with adults—I cannot answer at this point, but I would anticipate that is the case. I will certainly write to the noble Baroness in respect of that.

[Baroness Hamwee (LD)]

I am sure the Minister will understand that vulnerable adults need safeguarding as well—it is much wider that children.

[Lord Murray of Blidworth (Con)]

Of course; I entirely accept that.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2023

Baroness Hamwee Excerpts

Monday 20th March 2023 Grand Committee

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

My Lords, I am very pleased to be able to present these draft rules, which deal with two vitally important issues, to the Committee. I will first touch on the provisions in relation to deprivation of citizenship in this instrument.

Keeping the public safe is a top priority for the Government. Deprivation of citizenship, where it is conducive to the public good, is reserved for those who pose a threat to the UK or whose conduct involves very high harm. It is key to our ability to preserve the UK’s national security. The Committee will recall that the deprivation measures in the Nationality and Borders Act attracted much considered and thorough debate. This House and the other place agreed that, in cases where the Secretary of State intends to make a deprivation order on the grounds that it is conducive to the public good without giving notice, an application must be made to the Special Immigration Appeals Commission, or SIAC, which will consider the Secretary of State’s reasons not to give notice.

In November 2022, we took a first step towards implementation of this process by amending the Special Immigration Appeals Commission Act 1997, giving the Lord Chancellor powers to amend procedure rules in relation to these applications. We now intend to make the required amendments to the Special Immigration Appeals Commission (Procedure) Rules 2003, which is the purpose of this instrument.

This instrument sets out a clear framework for the Special Immigration Appeals Commission and the Secretary of State when dealing with such applications. It makes clear the information an application is required to contain and makes provision for the Secretary of State to vary or withdraw an application. It confirms the Secretary of State as the single party to proceedings and makes provision to appeal a determination of the Special Immigration Appeals Commission where necessary. The instrument also sets out that the commission must give a determination within 14 days of receipt of an application or its variation. This reflects the fact that the Secretary of State may have to act quickly in the interests of national security. The instrument is the final stage in implementing the safeguards relating to Section 10 of the Nationality and Borders Act 2022, which were agreed in the passage of that Act.

Turning to credibility statements, Sections 19 and 22 of the 2022 Act create additional behaviours that should result in an asylum or human rights claimant’s credibility being damaged. These includes a requirement for decision-makers to consider the late provision of evidence in response to an evidence notice or a priority removal notice, without good reasons, as behaviour that should be damaging to a claimant’s credibility.

As part of this suite of measures being introduced to encourage the timely provision of evidence in support of asylum and human rights claims, Sections 19 and 22 of the 2022 Act also establish a requirement for both the Special Immigration Appeals Commission (Procedure) Rules and the asylum and immigration chamber procedure rules to secure that when judges dispose of asylum and human rights decisions, and where credibility issues arise, they must include in their decisions a statement on how they have taken account of all potential credibility-damaging behaviours when reaching those decisions. These changes to the Special Immigration Appeals Commission (Procedure) Rules effectively secure in rules what judges are already required to do, according to the current case law.

The instrument and the creation of new procedure rules, however, make it abundantly clear what judges are required to do. This will assist in making sure that there is clear and efficient decision-making. I commend these rules to the Committee.

[Baroness Hamwee (LD)]

My Lords, I hope that the Committee and the Deputy Chairman of Committees will understand that my sitting down today is not a sign of any disrespect to any Member or to the Committee. I thank the Minister for his introduction to this instrument. I do not think he will be surprised to know that I am not thanking him for the instrument itself, and very much not for the Nationality and Borders Act.

Those of us who find difficulty with proceedings in any number of areas, particularly when they are closed, are generally assured by the Government that we should not worry because there is judicial oversight. I cannot recall whether this was so in the case of Section 10 of the Nationality and Borders Act, but the instrument points up the hollowness of such an argument. As the Minister explained, Section 10 provides that the Secretary of State does not have to give notice of deprivation of citizenship in certain circumstances, and, if she

“reasonably considers it necessary, in the interests of”

certain matters,

“that notice … should not be given.”

That is in new Section 40(5A)(b) of the 1981 Act, which includes

“the relationship between the United Kingdom and another country”.

I understand the Minister to have included that in his list of high harms. It is quite easy to think of examples of what might be necessary so as not to annoy another state, which I think would come within the relationship between the UK and another state. Can the Minister tell the Committee whether he expects this power to be used very narrowly, and confirm that proportionality will apply?

We are reliant on the commission to assess the reasonableness of the view of the Secretary of State but even the commission does not have a free hand. Under Section 25E in the new Part 4A,

“The Commission must determine the application on paper without a hearing”.


My second question is: why is it “must” and not “may”? If we are to have any confidence in the process as a whole, should we not trust the commission to decide for itself whether determination on paper is appropriate? Can the Minister explain this? Can he explain to the Committee what will happen if the commission, having seen the paper application, has questions of the Secretary of State and wants to hear from counsel on her behalf?

I admit that I have no experience in this, other than debates in your Lordships’ House over the years and briefings from professionals and others involved in the process, but it seems that it is all too easy for such an application to become completely formulaic. Once there is a formula which is considered to pass the not “obviously flawed” threshold or test, that will go to the commission without, apparently, its being able to say, “Yes, but”. The “obviously flawed” test is in the new Schedule 4A. Is it beyond the bounds of possibility that the Home Secretary herself could want a hearing? We will never know because there is no one to ask. We are not even getting that close to the territory of closed hearings and special advocates here.

I find it difficult to understand what role this appeal court would be left with. We will know next to nothing—probably nothing—about the use of these powers. Paragraph 14 of the Explanatory Memorandum tells us:

“As the Home Secretary decides each case personally and due to the very low number of cases expected to be affected by these provisions, no specific monitoring or review of these measures will be undertaken.”


In this situation, reporting is almost a synonym for monitoring. Can the Minister at least give an assurance that there will be reporting? I cannot see that it could be very difficult. What harm would be caused? I do not think that I need to spell out why a report in the public domain is desirable and essential. So often we are told, not only by Home Office Ministers but from the Dispatch Box, that there is no need for a review of a provision in primary legislation, because there is an automatic, periodic review of all legislation that the Government put through. However, no review of the measures means no review of Section 10. In our view, there should be reporting, not just of numbers but, for instance, of whether men or women are affected by deprivation orders, and, importantly, whether each individual has, or is considered to have, dual nationality. Indeed, can the Minister confirm—I appreciate that it is a bit beyond this instrument—whether the powers will be used only in the cases of individuals who are citizens of another state? Does the appetite for secrecy really mean that the state is protecting us?

I have been doing my best to avoid reference to an ongoing case, and I do not seek to draw the Minister into it—I know that he will not be drawn in—but it is justifiable to ask about the cohort of women known to be in a camp in Syria, who are held there because of their IS connections. Can one really say of them that their whereabouts are unknown? They are not going anywhere; they are known to be in the camp, although they cannot contact lawyers. For reasons the Grand Committee will understand, given his widely reported comments last month regarding a case before SIAC, have the Government consulted the current Independent Reviewer of Terrorism Legislation? This is about legislation; Jonathan Hall is independent.

I have referred to judicial oversight. What I take from the instrument is that oversight of the process can be no more than minimal, and therefore oversight of the process is eliminated.

[Lord Coaker (Lab)]

My Lords, I thank the noble Baroness, Lady Hamwee, for her remarks; I agree with much of what she said.

I will confine myself to dealing with the SI before us, notwithstanding what many of us thought about the Nationality and Borders Act. As the Minister told us in his helpful introduction, the SI makes two required amendments to the Special Immigration Appeals Commission after the introduction of the Nationality and Borders Act. They are two amendments which many of us sought to introduce. We all support keeping our nation safe, but as a democracy, even in circumstances of national security, safeguards need to be built in. We all agree that citizenship is a privilege and a right, but in depriving someone of their citizenship, some checks are needed, to say the least. We therefore welcome the changes to the process, although I may have comments about how we actually got here.

The amendment requiring the Secretary of State to make an application to SIAC when making an order to deprive someone of their citizenship is important and welcome. That application must include an explanation as to why it is necessary for that order to be made without providing notice to the individual, and SIAC will then be required to determine whether the Secretary of State’s view is “obviously flawed”.

I have some questions for the Minister. What does “obviously flawed” mean? Can he give an example of what is meant by that? Can the Minister say who can advise the Minister that such a deprivation of citizenship is necessary? Is it only the Home Secretary who can apply to SIAC, or can the Foreign Secretary, for instance, do it? I think that I know the answer, but, as I mentioned to the Minister outside the Grand Committee, it is sometimes necessary to put those things on the record. As the noble Baroness, Lady Hamwee, referred to, are such applications made public in any way, either when they are made, or during or after any SIAC determination?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

Indeed, as with any court.

In respect of the noble Lord’s question on Rule 47 as to credibility, the question being whether a claimant’s good reasons for responding late to a priority removal notice would be taken into account in cases that go to SIAC, the answer is yes.

To pick up one point from the noble Baroness, Lady Hamwee, on the use against dual citizens, it is right and clear in the statutory regime that an order using a deprivation power cannot be made that would have the effect of rendering a person stateless, hence the need for two nationalities, except that there is a very limited provision in Section 40(4A) of the Act, but that power has not been used to date. In any event, deprivation on conducive grounds is used sparingly and against those who pose a serious threat to the UK. It is correct that the conducive power is limited so that it can be applied only to those who are dual citizens or where there are reasonable grounds for believing that the person can become a national of another country. Parliament chose to enact the power on that basis to avoid the prospect of leaving individuals stateless, which would be contrary to the UK’s commitments under the 1961 statelessness convention.

[Baroness Hamwee (LD)]

If the Minister is coming to his closing paragraph to urge this instrument, then I am afraid that I have a number of questions to remind him of. However, I am glad to hear what he said about dual nationality. I was concerned because I thought he used the phrase “potential nationalities”. I do not know how one can potentially be a national of a particular country.

I will run through some points that I do not think he has been able to pick up. I raised the proportionality point in connection with Section 40(5A)(b)(iv), which is when the Secretary of State considers it necessary in the interest of the relationship between the UK and another country. I hope the Minister can confirm that there will be proportionality in that, rather than the general point he made.

I do not think the Minister answered the question on “must” deal with the matter on the papers rather than “may”, nor my question on whether the commission can call for more information and can even ask to hear from the Secretary of State.

The Minister referred to paragraph 14 of the Explanatory Memorandum. He might need to take this away, but to repeat, we are told by this that, because there is expected to be a “very low number” of cases,

“no specific monitoring or review … will be undertaken”.

My question was about reporting and the Minister answered on reporting in a general way. I would be glad to hear that there will be specific reporting on these deprivation without notice applications.

[Lord Murray of Blidworth (Con)]

In relation to Rule 25E, the noble Baroness is quite right. It is imperative that the commission determines the application on paper and without a hearing. As I elucidated a moment ago, that process is deliberately framed so that it can be resolved quickly because of the national security issues implicit in a deprivation decision. I am afraid that it is a “must” for a reason, and not a “may”. Clearly, SIAC, like any court, is able to make a decision on the information available to it and, if it feels that it lacks information, it is entirely open to it to ask for further information from the party appearing before it. I hope that that answers the question.

On the dual nationality point, the word “potential” is significant. The question in the statute is whether a person is eligible for citizenship of another country. That gives rise to the power to deprive under Section 40(4A), which is the power that I mentioned, which has yet to be deployed to date. As to reporting, I hear the noble Baroness’s question and I shall find out further detail and write to her in respect of it. I hope that I have therefore addressed the questions posed.

I want to be absolutely clear that the power to deprive an individual of citizenship has been possible for over a century. Section 10 of the Nationality and Borders Act does not change the reasons for which a person can be deprived of their citizenship, nor does it remove a person’s right of appeal. It is simply about the mechanics of how a deprivation decision is conveyed to the individual concerned and recognises that, in certain exceptional circumstances, it may not be possible to give notice.

The Home Office will always try to serve any deprivation notice at the point of a decision, including providing information about the person’s statutory appeal rights. Where that is not possible, and the person later makes contact with the Home Office, they will be issued with a decision notice and an explanation of their appeal rights. Section 10 of the Nationality and Borders Act clarifies that the timescales for lodging an appeal in these cases starts from when they are given the notice of the deprivation decision and not when the decision was first made.

In conclusion, this instrument is in the final stage of implementing the safeguards, as noble Lords noted, which will hold the Government to account in relation to decisions to deprive a person of citizenship without first giving them notice. It will also ensure that the Special Immigration Appeals Commission is required to include credibility statements in any relevant decisions that it makes that dispose of asylum and human rights claims. I commend the regulations to the Committee.

Authority to Carry Scheme and Civil Penalties Regulations 2023

Baroness Hamwee Excerpts

Tuesday 21st February 2023 Grand Committee

The additions to the 2023 scheme which I have outlined will ensure that the authority to carry policy continues to operate effectively and will reflect the wider developments of the UK’s border security measures, particularly the introduction of the electronic travel authorisation for non-visa nationals. Like the previous authority to carry schemes, the proposed 2023 scheme will be an important element of our multilayered approach to border security, alongside the visa regime, universal permission to travel and our checks at the border. The Government are committed to ensuring the continued safety and security of the UK border. This new authority to carry scheme is central to that effort. I commend these regulations to the Committee .

[Baroness Hamwee (LD)]

I thank the Minister for explaining the regulations and the scheme in such detail. I am afraid I have some questions—even though I know he takes the view that debates are opportunities for debate rather than asking questions.

I appreciate and understand that the scheme is to align with the electronic travel authorisation system. The regulations and therefore the scheme come into effect when the instrument is made, as I understand it. I spoke to the Public Bill Office about this this morning, because I wanted to be clear about it. The Minister has just said that when the new scheme comes into effect, the 2021 scheme will be revoked. That seems to suggest that there has to be some very careful timing. As the regulations are not replacing earlier regulations, if there is a problem under the earlier scheme, the new regulations can cope with it smoothly. That is how the PBO explained it. Is that actually the case? Does the timing have to align with the EU’s new border arrangements? Most particularly, when will the ETA come into effect? I know we still await details of it: how it will be implemented, its cost and how its application will be approved. There is obviously a lot of concern about practical aspects for both carriers and travellers.

Paragraph 14(d) of the scheme provides that authority to carry may be refused for individuals

“in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.

In other words, it can bite before an order is made. Do I have that right? If so, can that be right? The Secretary of State surely needs to make an order; it is not automatic.

It is similar for individuals who—the Minister has used this terminology already—

“would be refused entry clearance or a visa”

under the new rules and for individuals who

“would be refused an ETA”,

entry clearance or a visa under the rules. That is even further away from the decision. Perhaps the Minister can tell the Committee—because I assume that quite a lot of this replicates the earlier schemes, so they are not just hypotheticals—how this is proper. Immigration Rules are subject to change without parliamentary involvement. What right of appeal is there, particularly if there is a refusal before the Secretary of State has reached a decision? It does not feel comfortable to me.

We are told in the Explanatory Memorandum that an ETA may be cancelled when that is in the public interest, and that, under the earlier schemes, authority has been refused in respect of—it has now gone up to—11,200 individuals. That is a lot of individuals, each one of whom, and their family in many cases, is no less affected. As the Explanatory Memorandum points out, as a percentage of all arrivals it is quite small—but it is a lot of individual people. Does the Minister know how many of the 11,200 were UK residents? How will the Government ensure that certain nationalities or ethnicities will not be disproportionately affected by the scheme? The Minister also mentioned revocation of leave. If or when that happens, will the individual be notified? Will he be aware of that revocation?

There has been praise for the bespoke schemes for Ukrainians fleeing the war. How will the travel authorisation schemes operate to ensure that the UK’s response to other humanitarian crises is not hindered? Sadly, there are many other conflict areas and an awful lot of people affected by the earthquake in Turkey and Syria.

I am sure the Minister is not thrown by having a number of questions raised without notice; I looked at this only over the weekend. The questions I raise may sound like matters of detail, but I think that in fact they are all matters of principle.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. The SI replaces the 2021 no-fly scheme that prevents terrorists, serious criminals and others travelling into the UK via aircraft, ships or trains. The scheme was introduced in 2012 and was updated by statutory instrument in 2015 and 2021.

The 2023 scheme extends the range of people who carriers can be refused authority to carry to those refused an ETA or those travelling without a valid document or travelling on the document of another person. Penalties of up to £50,000 were put in place on carriers that breached the terms of the scheme. The maximum penalty has not increased since the original scheme in 2015. Is there any scope for increasing this maximum, along the lines of inflation or something like that? This question was asked in 2021, but I am not sure that my noble friend who asked it got a reply.

The ETA scheme has not been introduced, nor have details been released on how it would work, who would need to apply for it, how much it would cost or on what grounds it would be revoked. As we have heard, the Government have stated that it will be in place by the end of 2024. Can the Minister confirm that that is still the case for when it will be introduced?

The noble Baroness, Lady Hamwee, asked a number of pertinent questions about the alignment of the ETA with EU regulations and how it will work with the wider carrier network, if I can put it like that.

In response to questions raised in the Commons this month, the Minister stated that 23 penalties have been imposed over the seven years of the scheme and that the number of people prevented from travelling has stayed consistent over this time. The figures given were that 1,702 people were prevented from boarding in 2016-17 and 1,700 in 2022-23. In the 2021 Lords debate, the Minister did not respond to questions about whether some carriers had been repeat offenders. I do not know whether the Minister has any information on whether particular carriers are repeat offenders when fines are given to them.

The Explanatory Memorandum states:

“Updated guidance will be provided to industry”,


but no detail has been provided on when that will take place. Can the Minister tell us when that updated guidance may be available?

Finally, there is the status of transit passengers. How are they brought into the scope of these regulations and will they be affected? Having said that, we support the statutory instrument.

--- Later in debate ---

The 2023 scheme applies to all carriers operating on international routes to and from the UK, including the common travel area, which have been required to provide passenger and crew information in advance of departure. As such, it is an important part of the UK’s border security arrangements.

[Baroness Hamwee (LD)]

As the Minister is coming to the end of his response, I remind him about my questions on how it will work when there is to be a refusal in relation to someone whom the Secretary of State is in the process of making a decision about or where someone would be refused entry clearance or would be refused under the rules and so on. These are issues of quite considerable importance and principle because they are proposing that refusals may be made before the Secretary of State has made a decision. Can the Minister say anything about that?

[Lord Murray of Blidworth (Con)]

Forgive me: I covered that in my own mind when I explained the scheme, but I realise that I should have spelled it out more clearly, which I will now do. Those parts of the scheme are unchanged; these changes do not affect that part of the scheme, but I can certainly answer the noble Baroness’s question.

Where the Secretary of State is considering somebody’s application, they cannot travel. They can travel only once they have authority to enter the United Kingdom. It is not the position that we are refusing their application because we are still considering it; the point is that that passenger should not be trying to travel without a valid authority to travel. In the event that somebody applies for a visa and it is refused, it is open to them to apply to review that decision, internally or by legal proceedings. Of course they are entitled to do that, but people will not, and passengers do not, try to travel while their decision is still being determined because they do not have permission at that point to travel.

[Baroness Hamwee (LD)]

The scheme uses language such as:

“Individuals … in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.


That does not seem completely to reflect what the Minister said. Perhaps I am just not sufficiently familiar with scheme-speak.

[Lord Murray of Blidworth (Con)]

This is the reference in paragraph 14(d) of the draft scheme. Clearly, this is not being added by these changes. However, I can reassure the noble Baroness that the courts have found in favour of decisions to refuse authority to carry where the Secretary of State is in the process of making a decision to exclude. Obviously, if a person has made an application and the exclusion order is not made, they are free to travel once they have their visa. It does not have the effect of precluding their travelling; it simply means that they cannot travel on that occasion. If, however, they are the subject of an exclusion order, repeated applications will simply result in the same outcome: they will be refused authority to travel by the carrier.

Asylum Seekers: Accommodation in Hotels

Baroness Hamwee Excerpts

Tuesday 21st February 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

My noble friend is right that breaking the business model of the people smugglers is vital, and the agreement we recently made with the French Government will go some way to achieve that. The other aspect will be the forthcoming Bill in relation to stopping the small boats, and I look forward to the support of all those in the House when it comes before your Lordships.

[Baroness Hamwee (LD)]

My Lords, we have hotels accommodating young asylum seekers, although we want to bring that to an end. Are the Government satisfied that their contracts with the providers deal properly with their safeguarding responsibilities? Will the Minister publish the results of the Home Office’s monitoring and supervision—as I hope that it is doing—of the providers’ performance, including checking that the many staff involved are properly DBS checked?

[Lord Murray of Blidworth (Con)]

The contracts with the three providers, who then engage the hotel accommodation, are of course commercially sensitive and the Home Office cannot therefore publish their contents. However, I am satisfied that sufficient safeguards are built into those contracts, and I reassure the noble Baroness that there is a requirement that all staff are appropriately DBS checked.

Children Seeking Asylum: Safeguarding

Baroness Hamwee Excerpts

Monday 23rd January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

Clearly, the move into hotels is as swift as we can make it once the unaccompanied asylum-seeking child comes to the attention of the authorities. The hotels have staff consisting of team leaders and social workers, all of whom are fully trained and able to work with the young people. All the children receive a welfare interview, which includes questions designed to identify any potential indicators of trafficking or safeguarding issues. I assure the right reverend Prelate that the steps are taken seriously among the staff of the hotels to assist the children in so far as they can.

[Baroness Hamwee (LD)]

My Lords—

[Lord Austin of Dudley (Non-Afl)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, I think it is the turn of the Liberal Democrat Benches, then we will be delighted to hear from the noble Lord.

[Baroness Hamwee (LD)]

I thank the noble Baroness. I hope that the Minister will be confirmed in his pursuing of my noble friend’s point about corporate parenting by the chorus of approval that the suggestion received. Sadly, children going missing from care is not a new issue, as the Minister said. What is being learned from the two situations? What information and experience are being swapped, including on identifying the fact that traffickers, criminals and other dodgy people are hanging around outside different establishments hoping to catch a hold of their victims, as I shall call them as well as children?

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for her question. An important feature of the hotel accommodation specifically provided for UASCs is the security for each hotel facility. Clearly, that security then matches the layout of each hotel and, as I say, residents are asked to sign in and out. Any suspicious activity identified by the security contractors is reported to the police and should be investigated by them if they think that there are grounds to do so.

Asylum Seekers

Baroness Hamwee Excerpts

Tuesday 17th January 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, in speaking just before Christmas to the Justice and Home Affairs Committee of your Lordships’ House, which I am lucky enough to chair, the Home Secretary said that guidance for caseworkers was to be made shorter and easier to use. Can the Minister reassure the House that the Home Office is consulting experienced counsellors and therapists in the redesign so that the individual circumstances and experiences of each applicant can be properly assessed?

[Lord Murray of Blidworth (Con)]

Yes. Any such revised guidance will take into account input from a whole range of stakeholders, no doubt including those of the type mentioned by the noble Baroness.

Asylum Seekers: Local Authority Accommodation

Baroness Hamwee Excerpts

Monday 16th January 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, do the Government recognise the connection between this issue and the points raised by the Question asked by the noble Lord, Lord Young of Cookham? There is a shortage of private rental accommodation, and that goes back to the shortage of housing. The two need to be thought about together, and steps taken that many noble Lords are suggesting.

[Lord Murray of Blidworth (Con)]

The noble Baroness is of course correct.

Migration and Economic Development Partnership with Rwanda

Baroness Hamwee Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

The Government’s view is that the method of the agreement that was reached with Rwanda was lawful and appropriate, and so, with respect, I am afraid I must disagree with the noble Baroness.

[Baroness Hamwee (LD)]

My Lords, the Minister said that each person will be considered on a case-by-case basis, and quite right too, provided that that is not simply a swift tick-box exercise. He was perhaps lucky enough to have missed the long and late debates in this House on the age assessment of young people. I have to say that, to my mind, even for a young person aged 18 and a half, it would be inappropriate to send them to a place which, as I understand from my noble friend, has no child facilities as part of the arrangements. If there is to be no removal where removal would be inappropriate to the individual, how will that affect getting through the backlog that we have heard about recently from the Home Office?

[Lord Murray of Blidworth (Con)]

As we have seen from the judgment given by the court, there is nothing in principle unsafe about Rwanda, and few indeed will have reasons relating to them as to why Rwanda would be unsafe for them.