Safety of Rwanda (Asylum and Immigration) Bill

Baroness Lister of Burtersett Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I refer to the register of interests for support from RAMP. I start by simply noting rather than repeating the concerns I raised in last week’s debate: the incompatibility of the treaty and Bill with our international obligations, the treatment of LGBTQI+ asylum seekers and of children, and the widespread scepticism about claims of a supposed deterrent effect.

Today, I will focus on Clause 3’s disapplication of the interpretive and remedial provisions of the Human Rights Act, in part because of this clause’s contribution to the Bill’s incompatibility with our international obligations, as advised by the UNHCR, with implications for the Good Friday agreement, as the Northern Ireland Human Rights Commission points out in its very critical advice on the Bill, and because of what it means for human rights and for how asylum seekers are seen and treated. Here I echo some of the points made by the right reverend Prelates the Bishop of London and the Bishop of Durham.

A briefing paper from the chair of the Joint Committee on Human Rights warns of the significance of disapplication:

“Human rights are meant to offer a fundamental level of protection for every person on the basis of their humanity alone. As … noted in a previous report, if those protections are disapplied when they cause problems for a policy goal they lose the fundamental and universal quality that characterises them. This is arguably particularly the case when they are disapplied in respect of a particular group”.


While the Government are beginning to make a habit of disapplication to marginalised and unpopular groups, as has just been said, the briefing points out that the disapplication of Section 6, which places

“the obligation on public authorities to act compatibly with human rights, has never before been attempted and represents a significant inroad into human rights protections”.

These concerns are echoed in numerous briefings, including from the EHRC, the Law Society and Amnesty.

Let us stop and think what this breach of the universality of human rights means. In effect, it is saying that asylum seekers are to be treated as less than human—as, to quote the noble Lord, Lord Singh of Wimbledon,

“a lesser form of life”.—[Official Report, 4/12/23; col. 1276.]

Their humanity is not worthy of human rights protection.

“Stop the boats” is the Government’s mantra, but what about the human beings in those boats? Do they somehow stand outside the universality of human rights? The Government have paved the way with the dehumanising language they have used to talk about asylum seekers—the language of “invasion”, “breaking in”, “cannibalise”—language which has helped induce the public concern that the Government cite to justify their policy, a point made by the UN High Commissioner for Refugees when speaking to the BBC last week.

Words matter, as the Migrant Rights Network stresses. Their significance is brought home by Erfan, an asylum seeker who writes how he came to realise

“these are not just words. They build a completely new identity, which then justifies how you will be treated, seen and talked about. The language that dehumanises people makes it seem acceptable to place them in inhumane conditions and cut off from society”.

This language now makes it seem acceptable to deny human rights protection.

A statement from MIN Voices, a group of refugees and asylum seekers, some of whom are from Rwanda or neighbouring countries, ends:

“We are human beings, wanting and seeking a safe future”.


By King, a young client of Freedom from Torture who fled persecution, asked in a recent Big Issue piece about the Rwanda plan:

“Why is the UK government refusing to treat refugees like human beings?”


Perhaps the Minister could give her an answer. Instead of an approach which, to quote the British Red Cross’s VOICES Network of those with lived experience,

“disregards the wellbeing and dignity of vulnerable individuals seeking refuge”,

we need, in its words,

“a more humane and compassionate asylum policy”.

I hope we can help achieve such a policy, because if the current Bill passes unamended, I will feel nothing but shame.

Asylum: UK-Rwanda Agreement

Baroness Lister of Burtersett Excerpts

Monday 22nd January 2024 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I refer to the register of interests for support from RAMP.

We are indebted to the International Agreements Committee for its carefully argued report which, as we have heard, makes a clear recommendation to your Lordships’ House. Having read much of the evidence to the committee and other expert commentaries, including from the Law Society, I am satisfied that this recommendation is well based. The consensus among them is that, despite improvements in the treaty compared with the original memorandum of understanding, the treaty cannot of itself guarantee that the concerns raised by the Supreme Court will be met and that they are unlikely to be so in the short to medium term, as the committee concludes. The kind of improvements sought by the Supreme Court to make it safe will take time. To quote from the updated analysis provided by the UNHCR, referred to by my noble and learned friend:

“Even with the injection of additional resources, and sustained capacity development efforts, the transfer of an unspecified number of asylum-seekers from the UK to Rwanda will inevitably place additional pressure on a nascent and already overstretched system for receiving and adjudicating individual asylum claims”.


This is a system that, according to the Government’s own supporting evidence, has considered only 421 cases in the past five years, rejecting three-quarters of them despite many of the asylum seekers coming from countries such as Afghanistan and Syria that have high acceptance rates in the UK, as we have heard. The UNHCR states:

“As of January 2024, UNHCR has not observed changes in the practice of asylum adjudication that would overcome the concerns”


set out in its original analysis and evidence to the Supreme Court. It therefore continues to have concerns that asylum seekers transferred to Rwanda

“would not have access to fair and efficient procedures for the determination of refugee status”.

Based on its own extensive experience of capacity building, which emphasises system thinking, it warns of the limitations of training without the

“necessary legal framework and implementation capacity”.

Drawing on the evidence it received, the committee underlines the weaknesses of the commitments on training and monitoring, welcome as they might be. It reminds us of the Supreme Court’s point that, however good the monitoring proves to be, it does not help those it identifies as having been turned down wrongly. To quote the Joint Council for the Welfare of Immigrants,

“it would be far too late for the individuals whose lives would already be irreparably and irreversibly harmed”.

At the heart of the UNHCR’s concerns is the belief that, despite all the treaty’s claims, it, like the Bill,

“is not compatible with international refugee law”.

The JCHR observes that:

“The Supreme Court decision relied on evidence that Rwanda had previously failed to comply with international human rights treaties. It is hard to see how turning an agreement into a treaty can answer serious underlying concerns about Rwanda’s compliance with its international treaty obligations”.


Those concerns are hardly assuaged by the recent revelation, already referred to, that six people from Rwanda have been granted asylum in the UK since the original agreement was signed in April 2022. According to the i newspaper, at least one of these decisions was based on sexual orientation. Given Rwanda’s worrying record on LGBTQI+ people, outlined in the Public Law Project’s evidence to the committee, there is very real concern, among groups such as Rainbow Migration and the British Red Cross VOICES Network, about the implications of the treaty and the Bill for LGBTQI+ people seeking asylum in the UK who could be sent to Rwanda.

The treaty is full of assurances about both countries’ commitment to their international obligations with regard to refugees. Survivors of the Illegal Migration Act’s proceedings might recall that our concerns—based on the UNHCR’s unequivocal analysis that that and the earlier Nationality and Borders Bill did not comply with the refugee convention—were dismissed as simply one interpretation of that convention’s requirements. So, in true humpty-dumpty fashion, there is nothing to stop the Government asserting that these obligations are met under this treaty and the accompanying Bill when the experts say they are not, because, for the Government, words mean what they say they mean.

Apparently, according to the Foreign Secretary, as we heard, this represents

“out-of-the-box thinking”.—[Official Report, 16/1/24; col. 316.]

But legitimate asylum seekers, whom the Government wrongly call and treat as illegals, would be safer if thinking remained within the box of the official UN statement of these obligations. The committee is thus right to charge us with the need to consider carefully whether the treaty fundamentally changes the Supreme Court’s assessment regarding Rwanda’s international obligations. I believe all the evidence suggests that it does not.

One of the issues of substantive concern to the committee was the treatment of children. Needless to say, I have not seen any child rights impact assessment—can the Minister tell us whether there will be one before we consider the Bill itself? The committee’s report notes:

“The Treaty envisages that unaccompanied children might be removed to Rwanda if their age is in dispute. If subsequently determined to be children they would be returned to the UK. This might result in children being placed in unsafe situations”.


The potential unsafe situation raised in the ILPA/Justice evidence concerns sleeping arrangements. Can the Minister assure us that no age-disputed child would be required to share a sleeping area with adults?

The report cites witnesses’ arguments that the treatment of age-disputed children would be contrary to our obligations under the UN Convention on the Rights of the Child to prioritise the best interests of children and the UN Committee on the Rights of the Child’s recommendation to the UK to

“ensure that children and age-disputed children are not removed to a third country”.

Instead, there is a very real possibility that they will be removed to Rwanda and, if subsequently found to be under 18, sent back to the UK in a cruel human pass the parcel, which is likely to be very distressing for children who almost certainly have gone through considerable trauma.

Last year, a Written Answer to me gave the assurance that, under the MEDP, established by the original memorandum of understanding,

“No one undergoing an age assessment, or legally challenging the outcome of an assessment, will be relocated until that process is fully concluded”.


Can the Minister please explain why the treaty indicates otherwise? Given the chief inspector’s description of the age-assessment process for those arriving by small boats as “perfunctory”, and given plenty of other evidence, there is a very real danger of a significant number of unaccompanied children being earmarked for removal to Rwanda, despite the treaty’s assurances.

As your Lordships know, there are very real concerns about the introduction of so-called scientific methods in the age assessment of children. I realise that even if age assessment is completed in the UK, unless there is a legal challenge, the assurance I was given last year would not ensure that no child was erroneously relocated—but it would at least provide some protection. Nor would it cover children in families for whom, according to Barnardo’s,

“Forced removal has devastating impacts on mental and physical health and will blight the development and futures of these children”.

Finally, I will say a word about deterrence, which is presented as the treaty’s overarching objective in Article 2. In response to a recent Written Question asking what evidence there is of a deterrence effect, the Minister replied:

“We set out the evidence covering this in the published impact assessment for the Illegal Migration Act”.


Veterans of the passage of that Act may remember that the impact assessment said that:

“The academic consensus is that there is little to no evidence suggesting changes in a destination country’s policies have an impact on deterring people from … travelling without valid permission, whether in search of refuge or for other reasons”.


Refugee Council research supports that conclusion. Moreover, it suggests that, rather than being deterred from travelling, asylum seekers will take even more dangerous journeys to reach the UK and, once here, will be more likely to go underground, as have nearly 6,000 asylum seekers already according to the Home Office. The expert organisations the Refugee Council contacted believe that this will increase rather than remove the power of traffickers and others out to exploit desperate asylum seekers. Journalists from the Times and the i who spoke to asylum seekers in Calais were told that they would not be deterred by the threat of removal to Rwanda.

The Refugee Council research also found a consensus among organisations that the scheme and the state of perpetual limbo it would create for so many would have a very detrimental impact on the mental health of those seeking asylum. This is also emphasised in briefings from the BMA, Médecins Sans Frontières and Doctors of the World. They cite existing evidence of the detrimental effect on mental health of the prospect of removal to Rwanda, where they fear the healthcare will be inadequate because of a critical shortage of skilled health workers. We are talking here about extremely vulnerable people who have already often suffered trauma and even torture.

The latest report of the independent monitoring board expressed concern about the “deep anxiety”, “distress” and

“the increase in self-harm observed during the period when men were being detained for removal to Rwanda”.

On this point, can the Minister explain why, according to the i newspaper, the first 47 asylum seekers selected for relocation to Rwanda more than 18 months ago are still being kept in limbo given that the rules state that applications deemed inadmissible should be considered if relocation is unlikely within a reasonable period of time?

In his oral evidence to the committee, the Home Secretary conceded that

“None of us has an interest in rushing the fence and getting it wrong”,


and that

“If the elements of the treaty are not in place, obviously we will not be able to rely on the treaty for the purposes of asylum process”.


While he expressed confidence that the elements of the treaty will be in place, his confidence is not shared by a wide range of experts nor by the International Agreements Committee. I therefore believe it would be irresponsible of us to call for the ratification of the treaty now, and I hope that your Lordships will support the second cross-party Motion in the name of my noble and learned friend Lord Goldsmith.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

If the noble Lord will indulge me, I have a long way to go and I hope to get to all of his questions.

To question the treaty’s effect is to question both parties’ commitment to the rule of law, so I am grateful to my noble friends Lord Howell, Lord Sandhurst and Lord Wolfson, who made some very good points on this. I was sorry, but not particularly surprised, to hear the noble Baroness, Lady Bennett, cast aspersions in the direction of Rwanda.

Again, I thank the IAC for its report, to which we will respond in writing as a priority; but I must be clear that the Government intend to see the conventional Constitutional Reform and Governance Act process through to the end, as normal. The Government recognise the intent behind the Motion, but we believe it is unnecessary and misguided. The Motion in question is completely unprecedented, as the noble and learned Lord, Lord Goldsmith, noted, and, with all due and sincere respect to the noble and learned Lord, a mischaracterisation of the process. It is unnecessary as it is completely usual for Parliament to complete its scrutiny of a treaty and for the CRaG process to end before a treaty has been implemented. In just one example of this, the free trade agreements that the UK signed with Australia and New Zealand in 2021 and 2022 were laid before Parliament for scrutiny, and in both cases legislative changes were required to implement the obligations in the agreements; those changes were introduced in parallel. The scrutiny debates happened and the CRaG process ended long before those treaties were implemented. The implementing primary and secondary legislation measures were put in place and the treaties were brought into force in early 2023.

It is for any Government to decide, ahead of ratification of any treaty, whether the implementation required for the UK to be legally compliant with its treaty obligations has been duly put in place. I do not believe that the two debates should be confused, as they have been. We urge noble Lords to support the Government in their plans for the treaty to be implemented and ratified by both countries in due course. We have been clear throughout the development of this partnership that Rwanda and the UK must place the utmost importance on the safety of all those who are relocated. The mechanisms in place will ensure that both parties adhere to the obligations under the internationally legally binding treaty. It is vital that we stop the boats as soon as possible. The British people clearly do not want to see any further delay.

It would be remiss of me not to mention at this point the Safety of Rwanda (Asylum and Immigration) Bill, which will reach this House next week and ties in closely with what I have just said. This Bill sits above existing statutory provisions to enable Parliament to conclude that Rwanda is a safe country. The supporting evidence pack, which was released on 11 January, and the supporting policy statement, first given on 12 December, go into great detail concerning the information that gives us the confidence to say that Rwanda is safe. I look forward to noble Lords’ support for the Bill at Second Reading next week.

It is true that Parliament is being invited to conclude that Rwanda is safe based on this treaty and other matters, but that is not what is being debated today. We are debating whether there is anything in this treaty that means it should not be ratified, as my noble friend Lord Wolfson noted. The IAC has made some points about the treaty, but fundamentally it has not identified anything objectionable in the treaty itself. A debate on whether Parliament considers Rwanda safe is a debate that should and will happen in depth in the coming weeks as part of the scrutiny of the Bill. The IAC’s report concludes that the treaty might in time provide the basis for such an assessment—that is, that Rwanda is safe—if it is rigorously implemented. The Government’s position is that the treaty provides that basis, so we invite noble Lords to reject the Motion today and recognise that standard procedure should be followed. Once the treaty is ratified and the Bill passed, we can begin to operationalise the partnership.

I will now try to answer some of the more specific questions to do with the deterrence of the partnership. It was never about Rwanda or any other partner country being a hellhole, as described by the noble Lord, Lord Razzall, which I find quite offensive. It is about organised criminal gangs not being able to sell the UK as a destination. Only by removing the prospect that illegal migrants can settle in the UK can we control our borders and save lives at sea. By sending the clear message that if you try to come here illegally and have no right to stay here you will be returned home or removed to a safe third country we can break the business model of the trafficking and smuggling gangs.

The noble Lord, Lord Hannay, asked me about international comparisons as regards treaty scrutiny. The Government believe that 21 joint sitting days, which in parliamentary terms is likely to be a minimum of five weeks and often somewhat longer, is sufficient for Parliament to scrutinise a treaty. It is difficult to make comparisons between governmental systems, even with other parliamentary democracies, as each has evolved over time in line with its constitutional arrangements, which differ from one state to another. Each system reflects the constitutional make-up and separation of powers in that country. When similar parliamentary democracies are compared with ours, it is clear that our practice is in many respects similar to systems such as those of Canada, Australia and New Zealand. We consider that in many respects our system is in fact stronger than theirs, not least due to the existence in the UK of a statutory framework for treaty scrutiny.

The noble Lord, Lord Kerr, referred to the Supreme Court and Israel and the various comments that have been made about its agreement with Rwanda. We do not agree that it sets a relevant precedent or implies that Rwanda will not adhere to its obligations under our treaty. The terms of the arrangements between Israel and Rwanda are not available for scrutiny, are not transparent and are not monitored in the way that ours are. The scheme referenced was voluntary and open-ended and did not openly commit to guaranteed acceptance or a custodial role on the part of Rwanda. So on the information known, it bears little resemblance to the UK-Rwanda treaty and the lessons there are not directly applicable.

The noble Baroness, Lady Lister, asked a number of questions about children. Article 3 states:

“The Agreement does not cover unaccompanied children and the United Kingdom confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18”.


The treaty does, however, provide for the relocation of children as part of a family. It should be noted that this does not constitute a policy change and is consistent with the principles of the extant memorandum of understanding. I urge those with family links in the UK to seek to come here via the existing safe and legal routes.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt but I asked specifically about age-disputed children, where the protections seem to be less than they were under the original memorandum of understanding.

[Lord Sharpe of Epsom (Con)]

I was just getting to that. As regards children where the age-assessment results are not conclusive, the Home Office will treat an individual claiming to be a child as an adult only after further inquiries by two officers, one of at least chief immigration officer grade or equivalent, have separately determined that the individual’s physical appearance and demeanour very strongly suggest they are significantly over 18 years of age.

The lawfulness of this process was recently fully endorsed by the Supreme Court in the case of BF (Eritrea) from 2021. If doubt remains about whether the claimant is an adult or a child, they are treated as a child for immigration purposes until a further assessment of their age by a local authority or the National Age Assessment Board. This will usually entail a careful holistic age assessment, known as a Merton-compliant age assessment. Only once this assessment is completed could the individual then be treated as an adult if found to be so.

Under the Illegal Migration Act, those wishing to challenge a decision on age will be able to do so through judicial review, although these challenges are non-suspensive and can continue from outside the UK after an applicant has been removed. The treaty provides for the return of anyone who is removed as an adult and later determined to be a child, and appropriate temporary care of such an individual.

A number of noble Lords have referred to the UNHCR report. The first thing to state is that the Government are not abdicating responsibilities, as alluded to by the UNHCR, and as suggested by the noble Lord, Lord Alton, and the noble Baroness, Lady Hayter. This is a partnership with Rwanda, helping to make the immigration system fairer and ensuring that people are safe and enjoying new opportunities to flourish.

As this Government have made clear, tackling the issue of illegal migration requires bold and innovative solutions, and our partnership with Rwanda offers that. Rwanda is a safe country that cares deeply about refugees and currently hosts over 130,000 asylum seekers. Indeed, the UNHCR has signed an agreement with the Government of Rwanda and the African Union to continue the operations of the emergency transit mechanism centre in Rwanda. By temporarily accommodating some of the most vulnerable refugee populations, who have faced trauma, detentions and violence, Rwanda has showcased its willingness and ability to work collaboratively to provide solutions to refugee situations and crises. This agreement has also attracted EU funding, which will support the continued operation of the ETM until 2026.

The Home Office has granted refugee status to nationals from Rwanda, as noted by the noble Lords, Lord Coaker, Lord Kerr and Lord Hannay, and the noble Baroness, Lady Lister. How then can we say Rwanda is safe? People from many different nationalities apply for asylum in the UK. They include nationals from some of our closest European neighbours and other safe countries around the world.

Each case is considered on its individual merits by caseworkers who receive extensive training. All available evidence is carefully and sensitively considered in light of published country information. Asylum decision-makers carefully consider everyone’s protection needs regardless of nationality by assessing all the evidence provided by the claimant, in light of the latest available country-of-origin information. Asylum claims made by persons from Rwanda will have an individual assessment made against the background of relevant case law, policy guidance and the latest available country-of-origin information. Paragraphs 339J and 339JA of the Immigration Rules require decision-makers to take into account all relevant country-of-origin information in making their decision.

The noble Lord, Lord Alton, and the noble Baroness, Lady Lawlor, asked about the Home Secretary and the signing of the Section 19(1)(b) human rights statement. This does not mean that the legislation is incompatible with the ECHR. It means that the Home Secretary cannot say that it is more likely to be compatible than not. That is the consequence of this being an ambitious and novel Bill, which is what is needed to fulfil our commitment to tackle the small boats. There is nothing improper or unprecedented about pursuing ambitious and innovative ways of solving such endemic issues as migration. We believe that it is lawful and we are acting in compliance with our international obligations.

The Supreme Court’s judgment was made on the basis of the facts in June 2022.

Immigration Detention: Brook House Inquiry

Baroness Lister of Burtersett Excerpts

Thursday 11th January 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Baroness Lister of Burtersett (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, it is the turn of the Cross Benches.

[Lord Sharpe of Epsom (Con)]

I will stick to the question at hand, and will happily provide some statistics on the number of people in immigration detention as of 30 September last year. That number was 1,841, including those detained solely under immigration powers in prisons. That was 11% lower than at the end of September 2022, when there were 2,077 people in detention. I think that those numbers are encouraging and heading in the right direction.

[Baroness Lister of Burtersett (Lab)]

My Lords, another of the inquiry’s findings was that vulnerable people in detention are not being afforded the appropriate protections that the safeguards recommended by Stephen Shaw are designed to provide, because of their dysfunctional operation. The latest report of the independent monitoring boards and new clinical evidence from Medical Justice—a core participant in the inquiry—show that the safeguards are still failing, including not identifying people at risk of self-harm or suicide, with serious and sometimes tragic consequences for mental and physical health. What steps are the Government therefore taking, as a matter of urgency, to ensure a more consistent and robust application of the safeguards, as called for in the inquiry report?

[Lord Sharpe of Epsom (Con)]

As I have said, the detailed recommendations remain under review, but a lot of these issues were dealt with in response to Stephen Shaw’s report of 2016, which was then updated in 2018.

Refugees: Notice Period for Home Office Accommodation

Baroness Lister of Burtersett Excerpts

Monday 18th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I will go through the process: all individuals who receive a positive decision on their asylum claim can remain on support and in their accommodation for at least 28 days from when their decision is served. However, as I said in my earlier Answer, current practice is that individuals remain on that support and in accommodation for 28 days from the point of the biometric residence permit being issued. That can be five to seven days after the asylum decision. This means that individuals have longer than the 28 days’ notice after receiving their grant of leave to make onward arrangements. Confirmation of the exact date that an individual’s support and accommodation are due to end will be issued in a notice-to-quit or notice-to-vacate letter from the individual’s accommodation provider. This notice will be issued at least seven days before support and accommodation is due to end. There are at least three opportunities there where the asylum seeker, or the asylum claimant who has received a decision, will be notified. They have plenty of time.

[Baroness Lister of Burtersett (Lab)]

My Lords, last week the Minister said that 28 days was “more than enough” and “perfectly generous”. Has he read the research done over the years, which shows the hardship and heartache that that period causes to newly recognised refugees at the point where they should be delighted because they have got their status? If he has not read the research, please will he do so—and will he undertake to meet those organisations on the ground that know what it is like to have to try to find somewhere in 28 days?

[Lord Sharpe of Epsom (Con)]

My Lords, as I have tried to explain, it is more than 28 days. The underlying aspect of this is that we should be moving to 56 days; I am afraid that we simply do not agree. The asylum accommodation estate is under huge strain, as all noble Lords are aware. Increasing the move-on period would exacerbate those pressures. Therefore, there are no current plans to extend the prescribed period, which is long-standing in our legislation; but we engage with the Department for Work and Pensions and DLUHC on ensuring that individuals can move on as smoothly as possible. I have read some of the research—not all of it—and I will continue to do so.

Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023

Baroness Lister of Burtersett Excerpts

Monday 4th December 2023 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

That this House regrets that the Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023, which increase fees by above inflation for a range of immigration and nationality applications, will (1) increase financial barriers to children securing their rights to British citizenship, (2) cause other individuals to fall out of lawful immigration status and face significant debt and precarity, (3) increase the operational burden on the Home Office, and (4) damage the United Kingdom’s economy; and calls on His Majesty’s Government to consider and develop policies to support individuals, families, and businesses adversely affected by these changes.

Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23.

[Baroness Lister of Burtersett (Lab)]

My Lords, this is only the third regret Motion I have brought in my 12 years in your Lordships’ House, and, like the other two, it concerns the crippling level of fees. I declare my position as a RAMP associate.

I will focus mainly on the 20% increase in the route to settlement, entry clearance and indefinite leave to remain fees for those on a five or 10-year route to settlement, and on the same increase in children’s citizenship fees, which is the subject of the previous regret Motions and a matter of great concern to a group of us who have come to be known as “the terriers”, as we never give up. Unfortunately, however, a number of the terriers who wanted to support the Motion could not be here today.

I will start with some general points. The first raises the procedural criticism voiced by the Secondary Legislation Scrutiny Committee:

“Regrettably, this is the third instrument from the Home Office in just over a month that has breached the convention that at least 21 days should be allowed between laying an instrument and bringing it into effect. In none of the cases has it been clear that urgent action is essential, and in this case the breach seems clear-cut as it resulted from the Home Office’s failure to organise its paperwork in time”.


The committee has written to the Minister concerned to seek assurances that there will be no further unjustified breaches that restrict parliamentary scrutiny in this way, and I hope the Minister can give us that assurance today.

The committee was critical of the failure to publish the impact assessment and equalities impact assessment until after the regulations were laid. Praxis, in its briefing on behalf of a group of 15 organisations working on migration issues—I am grateful to Praxis for its help—argues that the EIA fails to consider properly the impact the fee increases will have on those with protected characteristics, especially where there is no fee waiver. It states:

“Given what we know of the different impact of these fees particularly on women”


and “racialised communities”, and their likely “detrimental and discriminatory impact”, the EIA merely “pays lip service” to the assessment of this impact.

The Home Office has dismissed claims that the visa fees increase will harm business competitiveness, even though the Explanatory Memorandum acknowledges that the impact on business, charities and voluntary bodies is likely to be “significant”. Indeed, the FT ran a story in the summer on how business groups are urging a rethink on the grounds that the increase will damage the UK’s competitiveness. However, it quoted an “ally” of the Chancellor as saying:

“We need this to fund the public sector pay awards”,


which was a reason given for the increase when it was announced.

This brings me to the justification made for these big increases in fees. As funding public sector pay awards is not a permitted reason for raising them, the rationale offered in the Explanatory Memorandum is

“to significantly increase the income generated through … fees for the purpose of meeting costs within the wider migration and borders system … This will in turn allow taxpayer funding that would have otherwise been required to meet those costs, to instead be prioritised elsewhere”.

Later, there is an oblique reference to public sector pay. I am certainly in favour of decent public sector pay awards, but I fail to see why they should be financed by above-inflation increases in the fees charged to groups who are often in vulnerable circumstances, given that the existing fees were already well above the costs of their processing—a point I will return to.

Furthermore, the justification of helping to meet the costs of the migration and border system is totally inappropriate in the case of children’s citizenship fees—a point that the terriers have made over and again. As the Project for the Registration of Children as British Citizens, of which I am patron, points out in its briefing with Amnesty and other organisations, for which I am grateful,

“rights to British citizenship by registration are plainly not concerned with migration. Rather these rights are concerned with ensuring that all people whom Parliament identified as having particular connection to the UK when it passed the British Nationality Act 1981 can be fully and equally recognised as citizens of this country.”

Given this, can the Minister please explain the rationale for raising the registration fees of those whom our nationality laws identify as British?

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

I thank the Minister for answering, but quite a lot of questions were not answered. I hope he will circulate answers to everybody who spoke. In the previous regulations, he sounded quite surprised when he said that he thought he had answered all the questions, because he obviously did not expect to—and he certainly has not this time.

I am very grateful to noble Lords from across the House who have spoken, all—more or less—in support of the Motion. I want to pick out a few points, one of which is process. My noble friend Lord Coaker made the point that these are really important issues with great financial implications, as the noble Lord, Lord German, pointed out. We have to think about how we consider these through statutory instruments, because although the Minister said that there is parliamentary oversight, if someone had not brought this regret Motion, we would not have debated these issues—they would have just gone through—so I do not call that oversight. I laid the Motion because an outside organisation asked me to. We should not leave such important issues to the vagaries of whether a regret Motion is brought.

Perhaps not surprisingly, the Minister’s answer on the process of missing the 21-day rule is exactly the answer that was given to the Secondary Legislation Scrutiny Committee. The committee did not take that answer very kindly. It was not impressed with it. I suspect that noble Lords were not impressed with it either. I am not sure that we had the assurance that it would not happen again which I asked for.

A number of noble Lords made points about the impact on those affected, be it businesses or individuals. I am not sure that they were really taken on board by the Minister. We are talking about some people in very vulnerable circumstances. There may not have been an increase in the number of requests for waivers yet, but these were introduced only in October and it takes a bit of time to percolate through.

A number of practical points were made about waivers. Certainly, there were questions that I asked following the debate that we had last year, which I look forward to the Minister answering in writing. There were also practical suggestions about how waivers could be improved, perhaps through using schools—the right reverend Prelate made a very valuable suggestion there. My noble friend Lady Blower talked about higher education, which brings us to the question of citizenship. I do not think that the crucial point made by the noble Lord, Lord Moylan, to whom I am very grateful, and my noble friend Lady Primarolo was addressed at all. They asked, as I did in a broader context, about this fundamental distinction between immigration and citizenship—the citizenship of young people, many of whom were born here and have lived here for most of their lives. The noble Lord, Lord Moylan, called “wholly odious” the way that this distinction is completely ignored by the Home Office. I am afraid that we have seen another example of it here this evening.

I notice that some of my terriers have arrived since we started the debate. I press the Minister to take this back, because we will come back to this question of citizenship time and again. I have not heard a convincing explanation for why we are raising the fee on the basic right of citizenship by this huge amount—what was huge already is now even more huge. The Home Office must look at this and come up with an answer; there was no answer today. I am disappointed that the Minister has not grappled with this fundamental question that was put so strongly from across the House.

I will leave it at that. The regret Motion was tabled partly to get answers to questions. We got answers to some of them but not others. I look forward to receiving the letter from the Minister. I hope that this will act as a shot across the Home Office’s bow in terms of processes and when it thinks again about raising fees. It is a way of saying that the terriers are still here and that we will still be yapping at the Home Office’s heels. However, on this occasion, I will not seek the opinion of the House. I beg leave to withdraw the Motion.

Motion withdrawn.

Windrush Generation

Baroness Lister of Burtersett Excerpts

Tuesday 28th November 2023 Lords Chamber

[Lord Paddick (Non-Afl)]

My Lords—

[Baroness Lister of Burtersett (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, I think it is the turn of the non-affiliated Bench.

[Lord Sharpe of Epsom (Con)]

The noble Lord will be aware that the former Home Secretary decided not to proceed with three lesson learned review recommendations —hence my use of the word “majority”. I will not say any more on that subject, because I think it is subject to legal proceedings.

[Baroness Lister of Burtersett (Lab)]

My Lords, in her progress report on her lessons learned review, Wendy Williams referred to the “central importance” of the hostile/compliant environment policies to the causes of the Windrush scandal and argued that

“The results of the review of the compliant environment policies remain an essential element in the department’s efforts to demonstrate it is learning from past experience and adopting a more compassionate approach”.


Can the Minister therefore tell us what has happened to the review of the hostile/compliant environment?

[Lord Sharpe of Epsom (Con)]

My Lords, I think I have made it very clear where the Home Office and indeed where the Government stand on this particular subject. As I have said, it was a disgrace and an outrage and it is being corrected through the progress we are making with the Windrush scheme.

Justification Decision (Scientific Age Imaging) Regulations 2023

Baroness Lister of Burtersett Excerpts

Monday 27th November 2023 Lords Chamber

I look forward to hearing the Minister’s response to these issues: the points raised by the Home Office’s AESA committee and where the research that it demanded can be found, given that it tabled the SIs; the Children’s Commissioner’s concerns about the belief that the rights of children can be protected, especially in relation to competence and consent; and why, if this Government want to follow certain European countries, they are not following the safeguards for children that those countries have already put in place. If there are no clear answers, these two SIs are not yet ready to be put on to the statute book. Science and medicine, as well as the fundamental rights of children, are under threat. I urge the Government to withdraw the SIs until the deficiencies of evidence can be presented to Parliament. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am most grateful to the noble Baroness, Lady Brinton, for tabling her regret Motion, which sets out so well why these regulations should be withdrawn. Having challenged the proposals to use X-rays in the sensitive matter of age assessment in both recent immigration Bills in the early hours of the morning, I find it a relief to be debating the matter today at a civilised hour. The noble Baroness, Lady Neuberger—a fellow veteran of those debates—very much regrets that she cannot be here in time to speak but she has authorised me to speak on her behalf. Some of what I say will repeat points that have already been made but they are important and bear repetition.

It is unclear to me why these regulations are being brought forward now, given that the Explanatory Memorandum to the Home Office regulations states that

“the policy and design are still under development”

and gives that as a justification for the lack of an impact assessment, as the noble Baroness, Lady Brinton, pointed out. This clearly did not impress the SLSC, which described it as “sub-optimal policy-making”. It suggested that we might wish to press the Minister on why this approach was taken and to provide a clear indication of the costs and wider implications for health service provision. As the Minister will have read its report, no doubt he is briefed to provide a response, although the Minister in the Commons failed to do so when that point was raised.

The committee was similarly unimpressed with the lack of real consultation. In its written questions to the Home Office, it asked various questions about what the Home Office described as engagement with key stakeholders. The response simply said,

“the MoJ to answer this section”,

but answer came there none in the MoJ statement other than reference to a statutory consultation to which it had just three responses. Can the Minister please enlighten us now about the responses to the engagement with key stakeholders and tell us who they were?

One point raised in response to the MoJ’s statutory consultation that is worth noting here is the poor representation from the dental community on the Age Estimation Scientific Age Committee, considering that dental X-rays are one of the proposed practices. It was the British Dental Association that first contacted me with regard to the age assessment clauses in the then Nationality and Borders Bill. It is just one of a number of professional bodies that have raised concerns—notably, the Royal College of Paediatrics and Child Health, the BMA and the British Association of Social Workers have also done so—together with children’s and refugee organisations. They are surely stakeholders so what engagement was there with them? Why do their concerns appear to have been ignored?

What particularly struck me when we debated the clauses giving rise to these regulations were the ethical concerns raised by the BDA and the RCPCH at the prospect of the use of X-rays on children and young people without any medical justification. Those concerns have not been allayed. One line of justificatory argument used by the Government and the Minister is that the use of X-rays is in line with common European practice. However, the Helen Bamber Foundation, whose earlier work was so important in challenging the Government’s figures on the number of adults posing as children, has questioned that line of argument, as the SLSC notes.

According to the foundation, a growing number of legal decisions in Europe have held that the scientific methodology is not sound enough to be relied on. It quotes the Council of Europe as concluding this:

“There is a broad consensus that physical and medical age assessment methods are not backed up by empirically sound medical science and that they cannot be assumed to result in a reliable determination of chronological age”.


The CoE points to evidence of their harmful impact on the physical and mental health and well-being of those undergoing age assessment and thus advises that their use

“should be reduced to a minimum”

and should

“remain a measure of last resort”.

Although the SLSC did not feel able to assess the strength of the arguments around international comparisons, it expressed its expectation that the Government take into account any changes in the legal position or practical implementation elsewhere, given that they have cited international approaches in support of the policy. Will the Minister give us an assurance that the Government will do so?

Another argument used in the Commons debate on the regulations was that Merton assessments are very time-consuming, yet it has also been emphasised that scientific methods, which all are agreed cannot provide a definitive answer, will be used alongside Merton assessments; presumably that will make the whole process even more time-consuming. Forgive me for my cynicism but I cannot help but fear that, ultimately, the plan is to replace Merton assessments with so-called scientific methods. Can the Minister give us a categorical assurance that that will not be the case?

A critical issue mentioned by the noble Baroness, the SLSC and those submitting evidence to it concerns consent. In its response to the committee’s questions on the subject, the Home Office pointed out that the regulations are made under the Nationality and Borders Act, not the more recent Illegal Migration Act. However, that is not of itself sufficient to assuage concerns. Although it is welcome that the Home Office does not feel ready to go ahead with a lack of consent having automatic consequences, the Children’s Commissioner is pressing for an assurance that the power will not come into force at all.

Refugees and Asylum Seekers: Safe Routes

Baroness Lister of Burtersett Excerpts

Wednesday 22nd November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

The answer is twofold. First, we have welcomed over half a million people, so that is very much a vindication of the Christian principle. Secondly, we are not obsessed with the asylum seekers themselves; we are obsessed with putting criminal gangs out of business, and I make no apology at all for that.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Minister, in a rather throwaway remark, acknowledged there are still children from Afghanistan who are stuck in Pakistan. Can he give us any estimate of just how many children, who should have been able to come to the UK because they are entitled to on the routes set up, are stuck there?

[Lord Sharpe of Epsom (Con)]

I apologise if it sounded like a throwaway answer, but I do not think it was. I am afraid I cannot give you that information, and I do not think it would be wise to do so.

Rwanda: Asylum Arrangements Treaty

Baroness Lister of Burtersett Excerpts

Tuesday 21st November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Yes, I am aware of that.

[Baroness Lister of Burtersett (Lab)]

The Minister did not answer the question of the noble Lord, Lord Clarke. According to the Telegraph, Lord Sumption warned that a new treaty would not prove the country was safe, as Rwanda does not have the institutional strength to observe its own treaty obligations. What changes have happened to give the Government the belief that it has the strength to fulfil its treaty obligations?

[Lord Sharpe of Epsom (Con)]

Again, the noble Baroness is speculating as to what may or may not be in the legislation, which no one has yet seen—apart, perhaps, from the noble Lord, Lord Pannick. However, I would also note that there are 135,000 refugees in Rwanda as we speak.

Asylum Seekers: Sexual Orientation or Gender Identity

Baroness Lister of Burtersett Excerpts

Wednesday 25th October 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As the noble Baroness will recall, as part of the structure of the Illegal Migration Act detention forms an important part of the deterrent effect to dissuade people from crossing the channel. Of course, detention should only be done when it is necessary. In these circumstances the Government take the view that it is.

[Baroness Lister of Burtersett (Lab)]

My Lords, while the Minister’s earlier remarks were very welcome, feeding the culture of disbelief in the Home Office, as the Home Secretary did, too often means that women who claim asylum on the basis of sexual orientation have their claims wrongly refused. What steps will the Government take to tackle this damaging culture of disbelief?

[Lord Murray of Blidworth (Con)]

I do not accept that there is a damaging culture of disbelief. Asylum claims are taken very seriously by the department, as can be seen from the grant rates in asylum cases. We also have a very elaborate appeal structure to independent members of the judiciary, so I do not accept the premise of the noble Baroness’s question.