Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

My Amendment 183 asks the Government to publish this overdue review in full and, in the light of that report, to reconsider whether this scheme should be ended or restricted and policed more tightly.

[Baroness Lister of Burtersett (Lab)]

My Lords, the noble Lord makes a very strong case, but I rise to strongly support Amendment 174, to which I have added my name. I am grateful to my friend Professor Fiona Williams, an important researcher on this issue, and Kalayaan, to whom I pay tribute for all their work on behalf of migrant domestic workers and for their briefings.

As we have already heard, it is clear that the 2016 reforms are not working. Rather than listening to overseas domestic workers and reinstating the original ODW visa, the 2016 changes ignore the need for workers to be able to exercise their rights before exploitation escalates. Support organisations such as Kalayaan and Voice of Domestic Workers report the bind in which the current situation leaves many such workers. Do they risk leaving before abuse escalates? If this abuse does not equate to trafficking, they could be left destitute, without a reasonable prospect of finding work and without access to public funds or legal aid to challenge mistreatment. The desperate need to remit money to one’s family and pay off debts means that workers may not feel able to risk leaving exploitative labour situations.

Professor Williams argues that key to understanding the problems faced has been the shift from placing ODW protection within an employment and immigration rights frame to a trafficking frame. The problem with the latter is that it puts the onus on the worker to prove that they have been trafficked when their exploitation may come from daily infringements of what should be their rights as workers. It leaves them more vulnerable to these infringements, not less.

Kalayaan has given me a recent case study that exemplifies the problem. I will go into some detail because it makes the case rather well. Jenny—not her real name—is from the Philippines. She comes from a poor family but, having won a scholarship to train as a teacher, she was unable to finish her training for various reasons. She later married and gave birth to a daughter who caught an aggressive form of pneumonia, which needed specialist costly private treatment. Jenny and her husband had to borrow money to pay for it. Their joint income could not cover the loan repayments, which prompted Jenny to look for work abroad.

Jenny moved to Lebanon to work as a cleaner. Her employer gave birth to a third child; Jenny was instructed to look after the baby as well as continue her cleaning duties, which was not in her contract. She worked longer hours than expected and was on the go and on call for much of the day. She had wanted to return home at the end of her first contract but was persuaded to stay when the family relocated to London. She was offered shorter working hours and pay at the national minimum wage.

Jenny arrived in the UK last year on a visa. In contravention of UK published policy, she was issued no information on her rights as a worker in the UK, either during the visa application process or on arrival. She worked the same long hours as before and, although she was paid a little more than in Lebanon, her hourly rate was less than half the national minimum wage. Her employer told her that she would be arrested if she left. Nevertheless, she did leave because she was exhausted from her long working hours for pay less than she had been promised.

Jenny approached Kalayaan when her visa had two weeks before it expired, having only just heard of the organisation. Kalayaan explained to her that her visa was non-renewable and that while she had permission to work in the UK, it would only be while her visa remained valid—for the next two weeks—after which she would be subject to the UK’s hostile/compliant environment for migrants. On the basis of Kalayaan’s assessment, it did not consider Jenny to be a victim of trafficking or slavery, so could not refer her to the NRM.

It is worth noting here that even cases that Kalayaan has judged appropriate for NRM referral are frequently turned down on the grounds that, while the working conditions may have breached employment terms, they do not constitute trafficking or slavery. Yet calls for the reinstatement of the original ODW visa are repeatedly met with the response that workers who have suffered abuse can avail themselves of the NRM.

Despite experiencing labour law violations, Jenny’s right to change employer was in practice of no use to her, given that she was not allowed to renew her visa. Had she entered the UK on the original kind of ODW visa, she would have remained visible to the authorities by renewing her visa annually, while contributing in taxes and visa renewal fees. Jenny’s case underlines how unhelpful it is to require maltreated migrant domestic workers to fit themselves into the slavery or trafficking frame, and how their rights would be better protected through the restoration of the original ODW visa.

Professor Williams also argues that the issue should be seen in an international context, where there have been very important advances in employment rights for domestic workers. In particular, ILO Convention 189 on domestic workers has been ratified by 35 countries—but not the UK. Ironically, when the convention was voted on, the UK Government abstained on the grounds that the UK already had a progressive policy—the OWD visa—which they then went on to withdraw. Will the Government therefore now rethink their position and restore the ODW visa without further delay?

[Lord Green of Deddington (CB)]

My Lords, I support Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire, which I am cosponsoring along with the noble Baroness, Lady Bennett, and the noble Lord, Lord Rooker. I do not always agree with the Lib Dems, but I think the noble Lord’s arguments were very powerful and need to be listened to. The effect of this route is to sell permanent residence in the UK, and later even citizenship, to anyone who turns up with a couple of million to spare, with no questions asked about where that money came from. It is an extraordinary outcome. I can see why one might have thought this was a good idea initially, but it has turned into a nonsense.

As the Committee may know, this route is for individuals able to make an investment of £2 million. The applicant does not need a job offer or sponsor, and the visa includes all immediate family members. The tier 1 investor visa is initially granted for three years and four months and can then be extended for another two years by providing evidence of an investment of the required amount. The funds must be invested in UK gilts, bonds and equities only—of course, the money can be taken out of those afterwards, so it is a very convenient little entry for your money.

Currently, if you invest—so called—£2 million, you will get your permanent residence in five years; if you have £5 million to spare, it is three years; and if you have £10 million in your pockets, it is two years. The whole thing is just absolutely absurd, frankly. Indeed, between 2008 and 2020 it has led to a total of more than 12,000 such visas being issued. There is not even any economic benefit to the UK in this. According to Sir David Metcalf, a former chair of the Migration Advisory Committee, in 2014,

“the main beneficiaries are the migrants. Investors benefit from, for example, rule of law, property rights and access to efficient markets. Second, at present, the investment is a loan, not a gift.”

A MAC report from 2015 noted that the main proponents of this type of visas are—guess what—law firms, accountants and consultancies that help organise the affairs of such extraordinarily wealthy investors. There are also speculative concerns around whether this investor visa is being used by criminals. In an October 2015 report, Transparency International UK argued that it was highly likely that substantial amounts of corrupt wealth stolen in China and Russia had been laundered into the UK via this visa programme.

It is not clear what will happen to the tier 1 investor visa under the new points-based system—at least, it is not clear to me—but it seems that it will remain in place. I suggest that a thorough review is in order and, meanwhile, the route should be closed, as set out in this amendment.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I thought it might be helpful to slightly unpick the two types of workers—the difference between domestic workers in households and those who work for UK-based diplomats. Obviously they are different groups with different needs, the latter being served by the temporary worker international agreement route, which permits dependants. This is not the only aspect of our domestic immigration system that already provides what the amendment proposes. Both groups of workers are free to change employers; in fact, our existing arrangements already go further than the amendment proposes, and I will outline why.

We do not expect domestic workers to register with the Home Office because we want a worker to be able to leave as soon as their mind is made up to do so, so we must avoid anything that may act as a barrier to exercising that right. Imposing an extra condition now risks undermining changes that have been made for the better. We have already made provisions under which both groups of domestic worker can obtain a two-year extension of stay if they are found to be a victim of modern slavery. I think these arrangements strike the right balance, ensuring that those who find themselves in an abusive employment situation are able to escape it by, first, finding alternative employment and, secondly, encouraging them to report that abuse through the appropriate mechanism.

On the point made by the noble Baroness, Lady Lister, on overseas domestic workers who are not slavery victims, very similar to the case that she has pointed out, but are actually exploited, the Immigration Rules are deliberately designed to prevent the importation of exploitive practices—for example, they set out that they should be paid the national minimum wage. I hope that helps on her point. I appreciate that the case she outlined seemingly falls between the cracks, but the Immigration Rules are very clear on that.

[Baroness Lister of Burtersett (Lab)]

The fact is that I do not think it is an unusual case; I asked Kalayaan for a recent case study and that is what it came up with. The Immigration Rules are not working in that respect. We have overseas domestic workers who are being exploited but, even when they are referred to the NRM, are told that it is not slavery or trafficking. Would the Minister be willing to look at that again? There is a problem, as she put it, of some people falling through the cracks.

[Baroness Williams of Trafford (Con)]

I am not going to look at it again but I will perhaps explore it further and see why what is happening is happening. That is probably fair enough.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

56: Clause 12, page 15, line 39, at end insert—
“(4A) In section 16 of the Nationality, Immigration and Asylum Act 2002 (Establishment of centres), after subsection 2 insert—“(2A) Accommodation provided under this section must—(a) have a capacity of no more than 100 residents, and(b) provide any non-related residents at the centre with an individual room in which to sleep, such that residents are not required to share sleeping quarters with people to whom they are not related.”” Member’s explanatory statement
This amendment would amend the 2002 Act to ensure that accommodation centres are not too large and that residents are not required to share sleeping quarters with anyone they are not related to.

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak also to Amendments 57, 59 and 60 in my name and those of the noble Baronesses, Lady Neuberger and Lady Hamwee, and the right reverend Prelate the Bishop of Durham. I also express broad support for the other amendments in this group. The amendments reflect the concerns of the British Red Cross together with many other organisations, and I am grateful to them for their help. Together, the amendments would place restrictions on who could be accommodated in the accommodation centres proposed under Clause 12 and for how long, the numbers to be accommodated in a centre and the sleeping arrangements, and would ensure that if children were ever accommodated in those centres, they would not be prevented from attending local maintained schools.

Under Clause 12, as signalled in the new plan for immigration, accommodation for asylum seekers will move from what has been the dominant dispersal model, in which asylum seekers are housed in local communities, to accommodation in reception centres, using a power provided by the Nationality, Immigration and Asylum Act 2002. No detail has been provided, so one purpose of the amendments is to try to elicit more detail than was provided in the Commons. In particular, how many accommodation centres are planned, and where? Will they be purpose-built or will they use existing sites such as Napier barracks? What criteria will be used to decide whether such existing sites are designated as accommodation centres or contingency accommodation?

What the Government have made clear is that they will use Napier as asylum accommodation for a further five years, and that this will allow testing and piloting to inform the final design of how accommodation centres will operate. In view of the High Court judgment about the inadequacy of the accommodation provided, and having sat on an inquiry held by the APPG on immigration detention into quasi-detention centres, I find the idea that Napier could provide the model for future accommodation centres profoundly worrying.

The evidence we received—both from stakeholder organisations and from those with experience of living in Napier or in another centre, now closed—was overwhelmingly negative. Typically, such centres are in remote areas. This spells isolation and a lack of easy access to support services. It is not conducive to integration. On the contrary, it creates what HOPE not hate describes as “targets of hate”. It warns that the use of such centres is likely to lead to increased harassment of asylum seekers.

As noted in the joint evidence from Doctors of the World, the Helen Bamber Foundation, Forrest Medico-Legal Services and Freedom from Torture, the use of dormitory-style accommodation means a total lack of privacy. This can be particularly problematic for LGBTQ+ residents. It also results in serious sleep deprivation for many. The impact of this deprivation on mental health and well-being was described very powerfully in evidence to the inquiry by those with experience of Napier barracks.

The use of former military barracks can be retraumatising for those who have suffered abuse and torture. As a dozen organisations, including Doctors of the World, the Helen Bamber Foundation, the BMA and various royal colleges warned the Home Secretary in a joint letter, this makes them inappropriate for people seeking asylum. They also warned that the kind of accommodation centres envisaged represent a real public health risk and impede adequate medical care.

It was clear from our inquiry and from the experience of a range of health and refugee organisations that such accommodation is bad for mental and physical health. It undermines any sense of agency and hope. According to the Helen Bamber Foundation,

“the use of institutional accommodation of this type is extremely harmful to survivors of torture”

and its features

“have the same impact as open prisons with groups of people with little to motivate or occupy themselves becoming increasingly desperate.”

It is not surprising, therefore, that the Refugee Council has warned:

“Proposals to extend these forms of accommodation are ill-thought out and dangerous, and undermine the UK’s duties to support and protect those making asylum claims.”


It advised that international examples of the use of congregated settings, including in the Republic of Ireland, have shown that this kind of accommodation is completely inappropriate for housing those seeking asylum.

The amendments will not prevent the use of such accommodation centres—the power for which stems from earlier legislation, as I said—but they would go so way towards addressing their most inhumane features. Amendment 57 would, with some additions, give legislative force to what is supposed to be current policy—of not housing groups with particular vulnerabilities in such accommodation. Our inquiry, British Red Cross research and the experiences of stakeholders all indicate that, all too often, people with vulnerabilities are housed in such accommodation. It is therefore essential the safeguards are spelled out in the legislation. In the absence of such legal safeguards, what assurances can the Minister give that the use of accommodation centres will be accompanied by more robust screening and protection than exist at present?

With regard to children, in the Commons Committee, the Minister assured Members that the Government had “no intention” and “no plans” to accommodate children. Welcome as such assurances are, they are far from a cast-iron guarantee. We need to spell it out in the legislation. I do not see why the Government would resist this—if this is their intention. I invite the Minister to give an absolute assurance on the record.

Without a firm—preferably legal—guarantee, Amendment 60, which assures children’s access to local maintained education facilities, is still needed. At present, Section 36 of the 2002 Act prevents a child who is resident in an accommodation centre being admitted to a maintained school or nursery. Section 29 allows for education to take place within the centres. The prior information notice for accommodation centres, published by the Government last August, includes provision for education services. It surely cannot be in the children’s best interests to segregate them from children in the local community in this way.

Amendment 56 would limit the number of residents in any one centre to 100. The larger such centres are, the less the residents feel that their humanity is recognised and the more likely the centres are to attract hostile attention and to work against social cohesion and integration. In the Commons Committee, the Minister said that such a limit would undermine a key objective of resolving asylum cases more quickly on site. It is not clear how it would do so. Could the Minister please explain?

The other part of the amendment would ensure that residents were not required to share sleeping accommodation with anyone to whom they were not related. This reflects a recommendation made five years ago by the Home Affairs Select Committee—that room-sharing should be phased out across the asylum estate. It would help address lack of privacy and public health concerns.

The Minister was rather dismissive of this in the Commons Committee, but he did not seem to appreciate what it is like for people seeking asylum to be housed in dormitory-style accommodation, as opposed to sharing a bedroom in accommodation in the community. It is all very well saying, as he did, that torture survivors receiving treatment should not share sleeping quarters, but in practice, all too often, inadequate screening means that torture survivors and others who are vulnerable do so.

Amendment 59 would remove the power given to the Home Secretary in Clause 11 to increase the maximum period for which someone can be accommodated. At present, there is a limit of six months in most cases. The Explanatory Note gives no indication as to how the new power might be used, other than to argue that it provides flexibility. The UNHCR has expressed concern that, unless there are necessary safeguards and support services, prolonged accommodation in such centres is likely to harm well-being, increase the need for future support and delay refugee integration. The 90-day limit in the amendment reflects current practice at Napier. We know the damaging impact on mental health caused by the absence of any clear time limit. It should not be replicated in accommodation centres.

In conclusion, I will quote from residents of Napier and of Penally, which is now closed. One told the APPG inquiry:

“When I arrived, the fear completely overwhelmed me. The design of the camp was oppressive, the high fences, the sheer numbers of people, the security who … looked like they were from the military. It was terrifying and I could feel it through my whole body. It reminded me of the military camps in [my home country]. I was in complete shock for the first few days. I did not sleep at all … It reminded me of [my home country] and I could not function.”


Another suggested:

“It would be difficult to design a system that more perfectly delivers despair and deteriorating human health and mental capacity than these asylum camps.”


A third said:

“I did not feel like a person when I was there.”


These quotes show quite clearly the experience of dehumanisation. The JCHR suggested, in one of its reports on the Bill, that such dehumanisation and distress are not inevitable in accommodation centres. It also made it clear that it was imperative that the Government learn from the poor treatment of asylum seekers housed in former military barracks. The amendments in this group give the Government the opportunity to demonstrate that they have learned from the overwhelming evidence of the damaging impact of such accommodation. I beg to move.

[Lord Horam (Con)]

My Lords, I strongly welcome my noble friend’s initiative in building and setting up reception centres of this kind. I appreciate that the amendments tabled by the noble Baroness, Lady Lister, and others, are, in effect, probing amendments to find out more about the Government’s exact intentions. I fully understand that. It is perfectly reasonable.

I do not think that the noble Baroness objected to the principle of reception centres of this kind. At the moment, first of all, people are visited on local authorities, which are asked to accommodate them. Inevitably, these are not local authorities in London and the south-east, where accommodation costs are very high, but in areas such as the Midlands, the north-west and the north-east. I come from the north-west, so I know it particularly well. Here there is the largest concentration of people of this kind in council flats and so forth. They are, in effect, in competition with local people on the council waiting list, who may be rather resentful if they find they are asked to wait rather longer because of the need to accommodate people who have just come across the channel on a boat. This is not conducive to good community relations, as well as being quite unfair on people who have long been resident in this country.

Secondly, if they cannot be accommodated by local authorities—indeed, it is increasingly difficult to find appropriate council accommodation because of the shortage of housing, even in areas such as the north-east and north-west—they are sent to local hotels. I know this particularly well because I happened to spend part of my youth in Southport. Southport has a splendid main street called Lord Street. The Committee may not know it, but it was visited by Louis Napoleon, the Emperor of France, when he was in exile in this country before he became the emperor. On the basis of Lord Street, he created the Champs-Élysées in Paris. In Southport we always think of the Champs-Élysées as being the French Lord Street.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt the noble Lord but, according to the Refugee Council, which did a very careful analysis of those coming over on boats—and this was an analysis, not just throwing out statistics in the way the Home Secretary did, perhaps—the great majority would be expected to receive refugee status. So, yes, of course, there are always going to be some people who are not “genuine” asylum seekers, but surely the assumption should be that they are until proved otherwise, rather than that they are not until it is proved that they are. The noble Lord seems to be assuming that they are not genuine asylum seekers and there is no evidence to support that.

[Lord Green of Deddington (CB)]

I think we need to be careful not to make an assumption in either direction. I was quoting the Home Secretary in the expectation that she has information to back that up. Even without that, and the noble Baroness did not address this point, the historical record is that 50% over the last 10 years have had their cases refused. I leave it at that. My point is clear on that matter.

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[Baroness Williams of Trafford (Con)]

I think I said right at the outset that I do not have a figure at this point in time. In terms of speeding up claims and decision-making, we are dealing with a sustained high level of new asylum claims, including from those who arrive in small boats who noble Lords have been talking about. That is creating an additional pressure on the asylum system, but we are committed to ensuring that asylum claims are considered without unnecessary delay and that those who need protection are granted it as soon as possible. We have in place a transformation programme. We are developing existing and new technology. We are digitising casework. We are building a high-performing team, and we are investing in training and supporting staff in professional development to aid staff retention, which we so desperately need.

A key objective of setting up accommodation centres is to resolve asylum cases faster by putting casework and other services on-site. As my noble friend Lord Hodgson of Astley Abbots said, there is no rationale per se for restricting the number of people in each site to 100, as Amendment 56 seeks to do. It is only likely to make it much more difficult and expensive to set up the centres, meaning that fewer asylum seekers will benefit from the efficiencies that we are trying to achieve. There is also no reason that unrelated residents of accommodation centres cannot share sleeping quarters provided they are the same sex, as this is already allowed in the asylum accommodation system. I take the point made by the right reverend Prelate the Bishop of Durham about the noise and probable brightness within the facilities, and I will most certainly take that comment back.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt, but I was so struck when we took evidence about sleep deprivation from people who had been in Napier. It really got me, as someone who hates being deprived of sleep, because it clearly is such a fundamental issue for their mental health. It is not just noisy. They cannot sleep because of the noise.

[Baroness Williams of Trafford (Con)]

The noble Baroness and I share more in common than I thought, because sleep deprivation, which I have been a bit subject to recently, is not something I find very easy at all. I am going to take those comments back and provide more commentary, on the back of the right reverend Prelate’s questions, on what we were doing and what we are doing now, if the noble Baroness will bear with me.

As I said, there is no reason that unrelated residents of accommodation centres cannot share sleeping quarters. In fact, the right reverend Prelate conceded that some people like sharing sleeping quarters with others. It is the peripheral issues that he has brought to my attention that I will take back.

[Baroness Williams of Trafford (Con)]

Okay, I thank the right reverend Prelate for being so specific. However, I do not think that, fundamentally, there is a reason that unrelated residents cannot share. This amendment clearly provides effective action to alleviate this burden and seeks to restrict the introduction of efficiencies, already mentioned, to the system.

Amendment 57 is unnecessary because there are no current plans to place those with children in accommodation centres, and all other individuals will be placed in an accommodation centre only following an individual assessment that it will be suitable for them and they will be safe.

[Baroness Lister of Burtersett (Lab)]

Will the Minister at this point make a firm, absolute assurance not only that there are no current plans—I get very suspicious when I hear that, because a plan can be thought up in a few weeks’ time—but that no children will be placed in such centres?

[Baroness Williams of Trafford (Con)]

I do not think I can go further than saying that there are no current plans because if a child was destitute and there was a place for the night, I could not say we would not put the child in an accommodation centre.

[Baroness Lister of Burtersett]

Could the Minister at least give an assurance that, except in the most exceptional circumstances, no child will be put in such a centre? I hope she can understand why saying that there are no current plans is not sufficient to satisfy us.

[Baroness Williams of Trafford (Con)]

I understand the noble Baroness’s point. I cannot go beyond saying there are no current plans, but I can think further about the point she is making and perhaps give her more detail on it, if she will allow me to do so, but that is as far as I can go. She might be further comforted by some of the things I am going to say about vulnerability, et cetera.

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[Baroness Williams of Trafford (Con)]

I repeat that these are not detention centres. There may be specific conditions—for example, if an asylum seeker needs to attend an interview about their claim, they will be required to be there—but they are not detention centres.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt—I know that there is a lot to cover—but I want to follow on from that important point. Again, we were given an example of a specific reason. The person may just want to go for a walk. They may want to go into the local town, if they can get there. Will they be free simply to go out when they want to?

[The Lord Bishop of Durham]

I can assist the Minister here.

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[Baroness Williams of Trafford (Con)]

There is a limit to both the resources and the geography of this country. That is why the system needs to run in a way that accommodates the most vulnerable people. People whose claims are not upheld need to leave.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank Committee Members for their kind words and, more importantly, those who made strong contributions in support of these amendments. It is not appropriate to cover them all in detail, but what is important is that the case was made for decent accommodation for asylum seekers that promotes their welfare and is based on a recognition of their common humanity.

While to an extent it is true that, as the noble Lord, Lord Horam, said, I am not opposed to accommodation centres in principle, I am opposed to what I think is envisaged. I am sorry if I did not make that clear. It is one thing to have small, homely centres; it is another to have things based on military barracks or their equivalent.

I will refer to what two noble Lords said before turning to the Minister. First, the noble Lord, Lord Hodgson, asked me a specific question about why 100 residents. To be honest, I do not know the answer. The British Red Cross suggested 100 and I have great respect for its work in this area, but the specific number is not important. What is important is that people at such a centre can feel that it is their home for a while. That point was made powerfully by the right reverend Prelate the Bishop of Durham. There is a real danger that big centres—this is what HOPE not hate is afraid of—will attract the kind of hostility that residents of Napier have faced. The noble Lord made the point that it would be easier to accommodate families, but the Minister herself said that this is not the intention; these are not appropriate for families. I have not come up with an actual answer, but the noble Lord, Lord Hodgson, also had the grace to acknowledge that his argument was based on anecdote that people might prefer to be in larger groups. But I have been using the evidence from both research and organisations working on the ground.

I also want to pick out what the right reverend Prelate said, partly because he made an important point at the outset about how, not in all but in many cases, we are talking about future citizens. He made a wonderful remark: he said that we should treat them as

“a gift to us rather than a problem”.

Too much of this debate has been based on the assumption that these people are problems. Please bear in mind what the right reverend Prelate said.

[Lord Green of Deddington (CB)]

Does the noble Baroness agree that there should be a distinction between those who have had their cases examined and are refugees and those whose cases have not yet been examined? That is all I am asking for.

[Baroness Lister of Burtersett (Lab)]

No, I am sorry; I do not, because they are all people. We should start by accepting their common humanity, and then we can see how people fare in the system. That is my working assumption and I think it is the right reverend Prelate’s too.

It was helpful that this debate was postponed, because it was originally supposed to have been while the right reverend Prelate was at Napier. In fact, I am supposed to be at Napier today with the APPG. I was struck by what he said and that there have been improvements. That is welcome and we should acknowledge it. However, he said that—I am paraphrasing—despite the improvements, he could not help getting the impression of a prison camp rather than a place of safety. We should be creating places of safety, not prison camps. That is my other working assumption.

I am very grateful to the Minister. She was on her feet responding for nearly an hour and I appreciate how she has really tried to address many of the points made. All noble Lords appreciate that. It is very difficult with so many amendments and so many questions. I am still very worried about children because, despite being pressed, the Minister said that there could be circumstances when children would be accommodated. My fear is that this would open the door, but she said that she would take this away and look at it. We will have to come back to lots of these aspects on Report, that one in particular. If the amendment about children’s education is unnecessary and there is no intention for these centres to provide education, I do not understand why the prior information notice included how they should be able to provide education facilities. I am not asking the Minister to respond now, but perhaps she could look at that.

Despite the Minister’s valiant attempts to answer them, a number of questions went unanswered. I will not push them now, but perhaps she could write one of her famous letters—and make sure that it actually gets sent. I have been asking the Library about one of them and it knew nothing about it, but I am glad it has been sent now. I am also worried about the emphasis on individual assessment, because that is supposed to happen now yet we find that many people in vulnerable circumstances end up in places like Napier. She might want to look at that and we might want to come back to it.

I am conscious that we have spent a lot of time on this and rightly so, because it is such an important issue. I am very grateful to every noble Lord who contributed and to the Minister for her engagement on the issues, even if I am left dissatisfied, because I am not sure we have moved on much further than the Commons in answering the questions asked—even though she tried very hard to do so. I suspect we will come back to at least some aspects of the accommodation centres on Report. Having said that, I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

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[Lord Alton of Liverpool (CB)]

My Lords, I was trying to intervene on the noble Lord’s speech, and I apologise to him for doing that. As I am also going to be involved in the other business going on in Grand Committee a little later on, I might not be able to be here to hear the Minister’s reply, so I am going to have to forego the opportunity of speaking on this group of amendments. However, I wanted to register my strong support for them, not least because, in 2016, I moved an amendment on the six-month issue and this House passed it by 218 in favour to 195 against. One point that the noble Lord might also like to register is that Article 23 of the 1948 Universal Declaration of Human Rights specifically sets out the right to work. That is something that this House has an obligation to consider, but I thoroughly endorse everything that the noble Lord has said. I should mention that I am patron of Asylum Link Merseyside, which has made representations on this subject.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 65, in the name of the noble Baroness, Lady Stroud. She is very sorry that she is unable to be here today, not least because she feels so strongly about this issue. I hope that the three of us who are supporting signatories will act as effective understudies.

The general case has already been made very persuasively by the noble Lord, Lord Paddick. The main difference, as he explained, between his amendment and this one is that our amendment proposes the right to work after six months, which is the usual time period proposed and is probably more realistic. It also ensures that that right allows an asylum seeker to take up employment on grounds no less favourable than those of a person with recognised refugee status. This means they would not be confined to the highly restrictive shortage occupation list, as they now are when they are finally allowed to work.

It has already been said that there is great support for asylum seekers’ right to work, including from business and the general public. Even the Deputy Prime Minister has said that he is open-minded on the subject. Home Office Ministers repeatedly claim to be committed to refugee integration, a point made by the noble Lord, Lord Paddick. As the Migration Advisory Committee made clear, the right to work after a reasonable period—and I think six months is one—in a job not limited to the shortage occupation list, represents one of the key foundation stones of integration. The committee also challenged the pull-factor argument put forward by Ministers, an issue that we debated at some length on Tuesday, and noted that the recent

“parliamentary statement regarding analysis of the employment ban … contained no evidence on the ‘pull-factor’.

It suggested that,

“To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made.”

In the interests of good policy-making, then, will the Minister now undertake to publish that evidence, because all the evidence that I have seen, including academic studies, does not support the pull-factor argument?

As well as its implications for integration, the denial of the right to work can take a toll on mental health and feelings of self-worth. I recently attended a Zoom meeting at which members of MIN Voices, part of the Maryhill Integration Network, talked about what it meant for them. One talked about his life being frozen; another about being made to feel helpless and useless. The Government should recognise such sentiment, given the weight that they attach to paid work, especially in their social security policy.

I would like to finish by reading a statement from MIN Voices that makes the case much more powerfully than I am able to. It says:

“Remember, we are Human Beings first, and we have dignity. Asylum Seekers who came here had to leave everything behind. Security for asylum seekers is not only shelter and health but also work, the ability to contribute to their own life and other people’s. Who will give back the five years of my life I lost in the asylum claims process? Who will give me back my skills and my health? Not being able to work makes us feel less human. We are living in constant worry, feeling worthless, frustrated, in pain and fearful. Not knowing the future. Not being able to plan for the future. If we can work, it will help with integration and allow us to live in a dignified and a healthy life. If we can work, we will feel less stressed, have a sense of control over our life, have better mental and physical health, and feel at home … Being able to work is important for self-respect and dignity. If we can work, we belong to something and do not live in complete limbo. If we are not allowed to work, if we cannot even study, then what are we allowed to do? When we can work, we could pay tax, look after our families and children. Many of the problems will disappear. See us as human beings not a number.”


That is very relevant to the last debate we had, when we were constantly talking about numbers and forgetting we are talking about fellow human beings.

“See us as human beings not a number. Let us build our life and future and not waste our time and skills.”


So I hope that, like the Deputy Prime Minister, the Minister will be open-minded to the growing calls for this very basic right: the right to work.

[Baroness Prashar (CB)]

My Lords, I rise to support the amendment tabled by the noble Baroness, Lady Stroud, and supported by the noble Baronesses, Lady Lister and Lady Ludford, and myself. The noble Baroness, Lady Lister, in her usual manner introduced it fully and spoke movingly, as did the noble Lord, Lord Paddick.

As we heard, asylum seekers wait months or even years for a decision on asylum claims, and sometimes decades. This condemns them to poverty, uncertainty and fear. It leaves them in a limbo, experiencing poverty and destitution. If they are allowed to work, this would improve family life, give them better prospects for their lives in the UK, and they would be able to rebuild their lives in the UK and eventually integrate better. It also, of course, as we have heard from the noble Lord, Lord Paddick, makes economic sense. As we have already heard, the Migration Advisory Committee, which advises the Government on migration policy, in December 2021 recommended that the Government should look again at this policy. It also recommended giving asylum seekers the right to work after six months and not restricting them to the jobs on the shortage occupation list. Perhaps the Minister can explain why they are not paying heed to the advice of their own advisory committee?

The committee also states that the argument that this right would be a pull factor, as we have heard already, is not supported by evidence. The benefits of allowing asylum seekers to work outweigh the unfounded fears expressed by the Government. Therefore, I urge the Minister to accept this amendment, which has very wide support.

--- Later in debate ---

[Lord Green of Deddington (CB)]

My Lords, we have heard eight speakers on one side of this debate, and I think a word is in order from the other side. We are back to the same point: should we or should we not assume that all those who come here to seek asylum are genuine? It is, to me, no answer to reply that we are all human. Of course we are, but so are the population of this country and the constituents of those who were MPs.

In the medium and longer term, any asylum system has to have the support of the public. That could be brought into doubt if they saw increasing numbers of mainly young men arriving in this country, as others have mentioned, in a very visible fashion. As for public opinion, that will depend very much on the outcome of the next months and years. If that is a bad outcome from the point of view of numbers—numbers who are not perhaps genuine—that will decide itself.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt the noble Lord, and it may be that he was going on to acknowledge this, but the noble Lord, Lord Alton, and I think the noble Baroness, Lady Ludford, quoted actual public opinion surveys which showed big majorities in favour of the right to work for asylum seekers.

[Lord Green of Deddington (CB)]

Yes, I heard that opinion poll mentioned a couple of times. I would actually like to see the question and the context in what it was put. Any opinion poll needs to be looked at very carefully, but it may well be the case—I do not know, I have not looked at this particular one—if you ask the public that question today, they will say “Okay, sounds sensible”. What I am saying is that, if we set the asylum system in such a manner that the numbers will increase significantly month after month and year after year, that will change. So we need to be careful about what we do with this amendment at this point.

We know that the system is already under considerable pressure; we have talked about that. We know that the present conditions on work are very tight, as other noble Lords have mentioned. They are deliberately tight. The case must have been undecided for 12 months —there are far too many of those now—and the job must be on the official shortage occupation list, which is barely relevant to the qualifications of most asylum seekers.

My argument is that it would be a serious mistake to abolish both these requirements as the amendment proposes. It would make for a very clear incentive to spin out the claims process—not that they need to at the moment, but in the longer term—to get permission to work in any capacity. With the current delays in the system, additional numbers would get permission, thus adding to the pull factors at the channel.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, it is based on a calculation. I shall not try to bluster my way through what that calculation is, but I shall get the details to the noble Lord. As I said to the noble Baroness, Lady Meacher, people who are destitute will have things like council tax and utility bills paid for them by the Home Office.

[Baroness Lister of Burtersett (Lab)]

I hate to say it, but I have just checked my phone and there is no evidence there of that letter having arrived.

[Baroness Williams of Trafford (Con)]

My Lords, we often say that we will not provide a running commentary, but I will provide a running commentary on said letter. When we break for the Statement at 3.30 pm, I shall look to the Box as to the whereabouts of the letter —which I did clear some time ago.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

66: After Clause 12, insert the following new Clause—
“Prescribed period under section 94(3) of the Immigration and Asylum Act 1999
(1) The Asylum Support Regulations 2000 (S.I. 2000/704) are amended as follows.(2) In regulation 2(2) (interpretation) for “28” substitute “56”.(3) Subject to subsection (4), this section does not prevent the Secretary of State from exercising the powers conferred by the Immigration and Asylum Act 1999 to prescribe by regulations a different period for the purposes of section 94(3) (day on which a claim for asylum is determined) of that Act.(4) The Secretary of State may not prescribe a period less than 56 days where regulation 2(2A) of the Asylum Support Regulations 2000 (S.I. 2000/704) applies.”Member’s explanatory statement
When an individual is granted refugee status, their eligibility for Home Office financial support and accommodation currently ends after a further 28 days. This amendment would extend that period to 56 days or allow the Secretary of State to set a longer period.

[Baroness Lister of Burtersett (Lab)]

My Lords, Amendment 66 is also in the names of the noble Baronesses, Lady Hamwee and Lady Jones of Moulsecoomb, whom I thank. I speak at the risk of being called a Stakhanovite by my noble friend Lady Chakrabarti.

The aim of the amendment is to extend from 28 to 56 days what is called the moving-on period, which sets a deadline by which those recognised as refugees are required to move on from asylum support to mainstream social security support and housing. As I said the other day, it feels like Groundhog Day, because I think it was six years ago that the noble Baroness, Lady Hamwee, and I first raised the difficulties created by the moving-on period during the passage of what became the Immigration Act 2016. I have lost count of how many times I have raised it since but have certainly had at least one meeting with the Minister about it. I pay tribute to the British Red Cross for continuing to press the issue with us.

The case for the change rests on the fact that it is extremely difficult for newly recognised refugees to make the transition to mainstream support in 28 days. Not only do they have to sort out all sorts of complex administrative issues that would try any of us at the best of times, and not only does research by the BRC and others show that it is virtually impossible to achieve within 28 days, but there is also a basic incompatibility between a moving-on period of 28 days and the 56 days that local authorities usually have to support those at risk of homelessness and the 35 days it takes from application to receipt of a first universal credit payment. In case the Minister has been briefed to respond to this issue, I point out that an advance payment that has to be repaid out of basic benefit is not an inviting prospect for someone already on the breadline.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

That is not in dispute; I was just echoing the point made by my noble friend Lady Stowell about respect, because I think it is always a good thing to be promoting.

I too listened to “More or Less” yesterday—the programme that the noble Baroness, Lady Jones of Moulsecoomb, referred to—and I think the conclusion was that it depended on how you looked at it. So everyone was right and everyone was wrong, all at the same time; I think that was the conclusion. But I very much enjoyed listening to that calculation.

Anyway, before I cause any more controversy, I will start by saying that it is very clear that individuals leaving asylum support following a positive immigration decision receive the assistance that they need to obtain other housing and apply for other benefits, such as universal credit, that they are entitled to. We do not think it is sensible to increase the length of time they remain eligible for asylum support from 28 to 56 days, and I will explain why.

The asylum accommodation estate is under huge strain and demand for normal asylum dispersal accommodation —that is to say, flats and houses obtained from the private rental market—is exceeding supply. The only way to meet this demand has been to use hotels, and there are currently around 26,000 people accommodated in them. A programme of work is under way to drive down the use of hotels by obtaining more dispersal accommodation and introducing accommodation centres. This clause would impede this work—I hope that answers the question put by the noble Lord, Lord Coaker, about “Why not 56 days?” In simple terms, the longer that successful asylum seekers remain in asylum accommodation, the fewer beds will be available for those entering the asylum system, including those temporarily accommodated in hotels at great expense to the taxpayer.

We are aware of reports that some refugees do not access UC, as it is called, or other benefits or adequate housing within 28 days. The reasons for this are complex, but the problem is not solved by increasing the 28-day move-on period, for reasons I have explained, and that is why our focus has been on implementing practical changes with the aim of securing better outcomes for refugees within the 28-day move-on period. The noble Baroness, Lady Lister, talked about some of the things that have been done during the pandemic that have actually improved the situation. These include ensuring that the 28-day period does not start until refugees have been issued with a biometric residence permit, the document that they need to prove that they can take employment and apply for universal credit, and that the national insurance number is printed on the permit, which speeds up the process of deciding a UC application.

We also fund Migrant Help which, as noble Lords will know, is a voluntary sector organisation that contacts refugees at the start of the 28-day period and offers that practical, move-on assistance, including advice on how to claim UC. I think this is a big change from the last time the noble Baroness and I spoke on the subject. We offer advice on the importance of an early claim; on other types of support that might be available; on booking an early appointment at their nearest DWP jobcentre, if needed; and on how to contact their local authority for assistance in funding alternative housing. We did evaluate the success of the pilot scheme that booked an early appointment with the local jobcentre for those who wanted one. The evaluation showed that all applicants for UC in the survey received their first payment on time—that is, 35 days from the date of their application—and that those who asked for an earlier advance payment received one, although I take her point about the advance payment. This assistance is now offered to all refugees leaving asylum support and is provided by Migrant Help, which again, as the noble Baroness knows, is a voluntary organisation funded by the Home Office.

Asylum accommodation providers are under a contractual duty to notify the local authority of the potential need to provide housing where a person in their accommodation is granted refugee status. Refugees can also apply for integration loans which can be used, for example, to pay a rent deposit or for an essential domestic item or work equipment, or for training.

We have a proud history of providing protection to those who need it, and I can reassure the Committee that this Government are committed to ensuring that all refugees are able to take positive steps towards integrating and realising their potential. We keep the move-on period under review, but we must consider the strong countervailing factors that make increasing it very difficult at this stage. For the reasons that I have outlined, I hope that the noble Baroness will withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank everyone who spoke in support of the amendment, and I thank the Minister. I did ask some questions that she did not answer. I will not push them now, but I would be grateful if she could write to me, particularly about the potential implications of the Bill for the numbers affected—but I am conscious that we all want our lunch so I will not press her to reply now.

I said that hope springs eternal, but hope constantly gets dashed, does it not? It is the same old arguments. I was aware that there had been improvements since I last raised this with the Minister, so I asked the British Red Cross to brief me on what those improvements were and what the effects had been—and, yes, they have had some effect. But there are still problems, otherwise the British Red Cross would not be asking us to put this amendment. So why does the Home Office think that everything is hunky-dory? I take the point about accommodation, although, as I pointed out, if you leave newly recognised refugees without accommodation there are knock-on costs for other statutory services. But that point is not valid for UC. So even if one accepted the point about accommodation —which I do not—why cannot newly recognised asylum seekers receive asylum support for longer before they get UC?

It is not complex; it is quite simple. As the noble Baroness, Lady Hamwee, said, just do the maths. It is simple arithmetic: there is not enough time. I actually think it is a territorial issue about who is paying. I ask the noble Baroness—I am sorry, I need my lunch and I am sure the Minister does too—the Minister to take this back to her department and the DWP and look again at the basic incompatibility with universal credit. If nothing else, I think there is a strong case for continuing financial support for longer than 28 days to ensure that people can claim UC. I will leave it at that, and I beg leave to withdraw the amendment.

Amendment 66 withdrawn.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

40: Clause 11, page 13, line 44, at end insert—
“(2A) For the purposes of subsection (2)(b), the following will be regarded as having presented themselves “without delay”— (a) people who have experienced sexual violence;(b) people who have made a protection or human rights claim on the basis of gender-based violence;(c) people who have made a protection or human rights claim on the basis of sexual orientation, gender identity, gender expression or sex characteristics;(d) people who are a victim of modern slavery or trafficking;(e) people who are a victim of torture;(f) people who are suffering from a mental impairment;(g) people who are suffering from a serious physical disability;(h) people who are suffering from other serious physical health conditions or illnesses;(i) people who were under 18 years of age at the time of their arrival in the United Kingdom.”Member’s explanatory statement
This probing amendment seeks to ascertain whether and to what extent certain vulnerable groups would be covered by the “without delay” condition.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Neuberger, and my noble friend Lord Cashman for their support and for hanging on in there, as well as to Women for Refugee Women for its help with the amendment. The amendment sets out a number of groups in vulnerable circumstances who should be deemed to meet the condition that they have presented themselves to the authorities to claim asylum without delay. This is a probing amendment, which does not imply acceptance of Clause 11, which, as I made clear earlier, I totally oppose; rather, it addresses one specific aspect of it that was not interrogated in the Commons.

As the UNHCR advises:

“There is nothing in the Refugee Convention that defines a refugee or their entitlements under it according to … the timing of their asylum claim.”


At present, the Bill does not provide any exceptions to the “without delay” condition relating to their potential vulnerability, although, if I understood her correctly, I think the Minister said on Amendment 39 that there is some flexibility, so I look forward to hearing more about that.

The amendment covers a range of groups who could be adversely affected by the clause. It reflects a warning made by Freedom from Torture that:

“Penalising refugees who do not present their claim ‘without delay’ following arrival risks further punishing the most vulnerable. It is clinically recognised that an experience of torture or trauma will lead to avoidance behaviours and interfere with the person’s ability to disclose.”


I shall focus mainly on women fleeing gender-based violence. The “without delay” condition is one of a number of provisions that will, contrary to ministerial claims, disproportionately adversely affect women, as more than 50 organisations warned the Home Secretary in a letter in which they argued that more women will be wrongly refused asylum, re-traumatised and placed at risk of violence and abuse. LGBTQ+ asylum seekers will also be at particular risk as a result of the “without delay” condition. I think my noble friend is going to say more about that.

Women for Refugee Women’s research has documented how many women seeking asylum in the UK have fled gender-based violence in their countries of origin, including rape, female genital mutilation and forced prostitution. Many were abused again on their journeys to safety. In the organisation’s experience, many of these women are heavily traumatised when they arrive and need time to feel safe before they feel able to share their experiences with a government official. This is endorsed in a legal opinion from Garden Court Chambers, which states:

“there may well be very good reasons to explain why … their claim was delayed … which relates to the particular forms of persecution to which women are subject, and their experience of gender-based violence and inferior social status.”

British Red Cross research published just last week reinforces the point and demonstrates how insensitive the asylum system already is to gender-related trauma and women’s needs. The Bill will only make this worse. In Women for Refugee Women’s experience, survivors, many of whom have experienced serious trauma, move at their own pace with regard to disclosure. No amount of legal or mental health support can guarantee a willingness to disclose without delay.

Preliminary findings from research into LGBT+ women carried out by Rainbow Sisters, a group supported by Women for Refugee Women, found that 20 out of 25 women did not claim asylum within the first month of entering the UK. The great majority of those who gave reasons said they were too traumatised by past experiences of persecution or scared to come forward, and many had not even realised that they could claim asylum on the basis of their sexual orientation.

The Home Office is well aware of such barriers to disclosure, because it acknowledges them in its own current guidance, which gives a number of reasons for reluctance to disclose information at the outset, including

“feelings of guilt, shame, and concerns about family ‘honour’, or fear of family members or traffickers, or having been conditioned or threatened by them.”

It notes the impact sexual assault can have on the ability to present one’s case. The same policy guidance says that late disclosure should not automatically prejudice a woman’s credibility.

The same considerations apply to failure to present oneself without delay. So, why does the Bill not reflect this clearly? On Second Reading, the Minister acknowledged these arguments in relation to the provision of late evidence, saying:

“We will set out in guidance what can constitute good reasons”—[Official Report, 5/1/22; col. 668.]


for late evidence. But no provision seems to have been made for good reasons for failing the “without delay” condition. Why is that? I know the “without delay” phrase is carefully taken from the convention—an example of what the UNHCR calls “selective echoes” from it—but that does not obviate the point. So, do the Government intend to protect the groups covered by the amendment in the guidance?

Can the Minister also provide some information about statistics, if necessary, in a subsequent letter? First, do the Government collect statistics on the number of women who claim asylum based on sexual or gender-based violence in their country of origin? If yes, what proportion of overall claims did these represent? Secondly, do they collect statistics on when survivors of gender-based violence make an asylum application? If yes, what do those statistics show? Thirdly, do they collect statistics on the number of women subject to sexual abuse on their journeys to the UK? Again, if so, what do they show?

I hope the Minister will be able to provide some clarity and, better still, an assurance that the “without delay” condition will be applied in a way that does not impact adversely on those in vulnerable circumstances—if Clause 11 survives. I beg to move.

[Baroness Neuberger (CB)]

My Lords, I rise to support the amendment in the name of the noble Baroness, Lady Lister of Burtersett, supported by the noble Lord, Lord Cashman. I would have said almost everything the noble Baroness has said, so I will just add a few other points.

One is that we have to recognise the nature of asylum seekers arriving in the country and the evidence presented by Doctors of the World and others. Asylum seekers often arrive suffering from considerable ill health. It is important we realise that, because that makes them the sort of people who ought to be included in the list provided in the amendment. According to Doctors of the World’s experience of running a clinic, 70% of patients with an outstanding asylum claim have at least one chronic medical condition, 30% have a psychological condition, almost a quarter present with an acute condition, and over 40% report their health as being “bad” or “very bad”. These are therefore people whom one might class as vulnerable, and this is the issue we are probing. Like my noble friend Lord Kerr, I am a bit worried about lipstick on pigs. Nevertheless, I think we will need to tease this out a little more, and we know the health conditions of asylum seekers are considerably worse than those of the general population.

I also want to pick up on what the noble Lord, Lord Coaker, said about the piece in the Times, which I also saw, and I want to reflect on some personal experience. We run a very small charity in memory of my parents. My mother was an asylum seeker, a refugee from Nazi Germany, and in my parents’ name we run this small charity to provide opportunities for education for asylum seekers who are not entitled to get student finance. I have therefore interviewed, over the last 20 years, quite a large number of asylum seekers, the majority of whom have been young men.

Without exception, they report being traumatised. They do not come as dangerous would-be criminals; they have seen their parents be killed before their eyes, have been forced into armies of appalling dictatorships, have been involved in civil wars and have been persecuted because they are bisexual—whatever it may be. None of them come and apply for a scholarship in the first period after they arrive in this country. We probably do not see them until a year, 18 months or two years in, and only then are they beginning to be able to talk about their experiences. Therefore, because they are clearly vulnerable, would they be classed as people who could be regarded as making an application “without delay”?

The Home Office’s guidance on gender-based violence and women who have suffered that kind of issue being treated favourably, if you like, and being allowed to wait until they are able to speak out is moderately generous—perhaps I would not go that far but would just say “possibly” generous, but whatever. I want to know whether we can extend that principle to those who have been traumatised in all sorts of other ways and have major mental health issues, often brought on by the trauma of what they have experienced.

Would the Minister be willing to entertain the prospect of those who are vulnerable for a whole variety of reasons being treated in the same way, if you like, as the Home Office guidance? We cannot see it within the Bill, but it would be wonderful if that were the case.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate for what have been very thoughtful contributions. I will directly address the question that the noble Lord asked me in the previous group about locking single males up. I have not seen the Times article. If he will allow me, I will look at it and respond in due course.

Although the policy is intended to deter dangerous journeys and encourage people to claim asylum in the first safe country, I assure noble Lords that we have been very careful to strike the right balance between how the policy achieves its aim and protecting the most vulnerable, which is what noble Lords have spoken about this evening. Before I explain why I think statutory exemptions are probably not needed, I will offer a few thoughts in relation to how the “without delay” element of Clause 11 is anticipated to operate.

There are two broad categories under which I envisage the exercise of discretion is most likely to be appropriate. The first is where a person finds themselves unable or unwilling to present themselves to the authorities for any reason that pertains to their proposed asylum claim. In such instances, there will need to be very careful consideration of whether it was reasonably practicable for that person to have claimed without delay. For example, if they had been tortured—noble Lords have given this sort of example—suffered sexual violence at the hands of state authorities or, indeed, feared admitting their sexual orientation due to state persecution on those grounds, this sort of situation would trigger very careful consideration.

The second category is where a person was simply not in control of their actions. In such circumstances, we would also be very careful to consider the facts of that case when determining whether it was reasonably practicable for that person to have claimed without delay. I think primarily of victims of human trafficking, unaccompanied children, and those suffering serious physical or mental disabilities.

The noble Baroness, Lady Lister, asked about statistics. I do not have them to hand, but I will try to get them.

On the guidance and training, one of the things that I looked into in great detail way back, when we talked about LGBT people in the detention estate, was how practitioners went about establishing claims made on the basis of a person’s sexual orientation. It is fair to say that, back in the day, “clunking” would probably have been a charitable word to use—some of the ways people were questioned were on the verge of being inhumane. We really went to extraordinary lengths to try to change that and make it a much more humane process. It is now about establishing the reasons why someone is making a claim, not proving it, so our policies and training are now designed to support claimants in being able to explain their claim in a very sensitive and safe environment. Our approach, I can confirm, is trauma informed.

Our guidance on sexual orientation and gender identity, as I said previously, was developed to take these issues into account—UNHCR, Stonewall and Rainbow Migration contributed to its development—and we will review and update our training and guidance where necessary to support people who are LGBT+. I confirm again that this will take people’s experiences into account, including the trauma that they have suffered. I thank those organisations, particularly Stonewall, Rainbow Migration and UNHCR, that have helped to make the process far more humane so that people’s very difficult journeys and experiences are eased somewhat by our attitude and approach.

[Baroness Lister of Burtersett (Lab)]

I thank noble Lords very much for their support for this amendment—their willingness to apply some lipstick to the pig that I think we would all like to be rid of. Some very powerful speeches made the case very strongly for why the groups which are listed may well have good reasons for delay. I take the point that any asylum seeker is, by definition, likely to be vulnerable, but we are talking here about those who have particular vulnerabilities.

I thank the Minister for giving more of a sense of what will happen. It is late and I need to read what she said, but I think that the powerful speeches from noble Lords and the Minister’s response justified our taking this as a separate amendment. As I have said, it was not interrogated in the Commons; this has given us a chance to do that.

I thank the Minister for saying that she will look into the statistics—it was I, in fact, who raised it; I think Women for Refugee Women would value having whatever statistics are available. However, just last week, the British Red Cross produced research suggesting that, for all the better training and guidance, women asylum seekers are still treated very badly, with a lack of gender sensitivity and trauma sensitivity. I would encourage the Minister to read this research, think about it and see what more needs to be done.

[Baroness Hamwee (LD)]

I apologise—I was not quick enough to my feet. I wanted to get in before the noble Baroness withdrew her amendment to ask the Minister if she might be able, after today if not tonight, to answer my question about how Clauses 11 and 36 work together. That could inform our debate when we get to that later clause. Again, I apologise to the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

There is no need—I am glad that the noble Baroness said that. I had made a note to mention it and then, of course, completely forgot or could not read my handwriting, or both. Anyway, it is late, and I realise that people want to get on. I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

46: Clause 11, page 14, line 13, leave out paragraph (c)
Member’s explanatory statement
This probing amendment, along with another amendment to Clause 11, would amend the list of examples of ways in which refugees, or their family members, can be treated differently depending on whether they are in Group 1 or Group 2 by removing reference to the attachment of no recourse to public funds requirements so as to probe when this requirement would be attached.

[Baroness Lister of Burtersett (Lab)]

My Lords, it is me again, I am afraid. I rise to move Amendment 46, and I am grateful to the noble Baronesses, Lady Jones of Moulsecoomb and Lady Stroud, my noble friend Lord Blunkett—who had to leave—and the British Red Cross and Praxis for their support.

Again, this is a probing amendment. Together with Amendment 54, it would delete reference to the “no recourse to public funds” condition from the listed ways in which group 1 and group 2 refugees and their families could be treated differently under Clause 11. In other words, it would remove one source of potential discrimination from the list of examples of the discriminatory treatment of group 2 refugees. It is a probing amendment because while I am totally opposed to Clause 11 standing part of the Bill, it is important that we have more information about how the “no recourse to public funds” condition will be applied.

In fact, questioning the application of the no recourse condition reinforces the case against Clause 11. UNHCR makes it clear that denying refugees recourse to public funds is a clear violation of Article 23 of the refugee convention, which states in unambiguous terms:

“The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”


Given that Ministers constantly claim that the Bill is compatible with our international obligations, does the Minister believe that UNHCR is wrong, and if so, on what grounds?

Similarly, the JCHR points to a violation of Article 24 of the convention, which specifically cites the right to social security. It argues that the differentiation policy, including specifically restrictions on recourse to public funds

“raises serious questions of compatibility with Article 14 ECHR—the prohibition on discrimination in the enjoyment of other Convention rights.”

It concludes that the policy is

“arguably disproportionate to achieving the stated aims.”

In fact, as the committee notes, the aim of dissuading asylum seekers from travelling to the UK other than by safe and legal routes ignores all the research, including that of the Home Office, which indicates that it is rare for asylum seekers to know what support is available.

To repeat something that my noble friend Lord Rosser said, UNHCR warns:

“The adverse consequences of a ‘No Recourse to Public Funds’ condition will fall not only the refugees themselves, but also on their families, including on any children who travel with them, are able to join them later, or are born in the UK. These consequences have been documented in numerous studies as well as in the context of litigation. They include difficulty accessing shelters for victims of domestic violence, denial of free school meals where these are linked to the parents’ benefit entitlement”—


—although this is currently suspended, and a very long review is taking place; this policy has been under review for 15 months now—

“and de facto exclusion from the job market for single parents (largely women) who have limited access to government-subsidised childcare, as well as significant risks of food poverty, severe debt, sub-standard accommodation, and homelessness.”

It also notes that public funds include payments specifically for children, such as child benefit, and for those in particularly vulnerable circumstances, such as carers and disabled people. It warns of the adverse consequences for integration and for local authorities which may have to pick up some of the tab for children and those with care needs.

Its conclusions chime with evidence from a range of organisations, including a recent Citizens Advice survey that documents the severe poverty and destitution caused by the rule, with children, women and people of colour disproportionately affected and with what it describes as a “devastating impact” on mental health. Likewise, the BMA has raised concerns that the rule’s effects can compound physical or mental health conditions among those with particular vulnerabilities fleeing violence or trauma.

There are real fears now that the Bill will increase significantly the numbers affected by the “no recourse” rule. There is also a lack of clarity as to whom among group 2 refugees it will be applied, both in the short term and each time their status comes up for renewal. I hope that the Minister will provide some clarity and not fob us off with the response that details will be set out in the guidance and rules that follow, as was said in the Commons.

What was made clear in the Commons was that those already in receipt of Section 95 asylum support will not face restrictions on access to public funds. However, this is not made clear in the Bill itself. Can we be confident that most asylum seekers will have been in receipt of Section 95 asylum support? What about those refugees who face destitution but were not receiving Home Office support, such as those who choose not to enter the asylum support system and rely instead on informal networks of support because of accommodation being allocated on a no-choice basis? What about those who fall into destitution after being granted refugee status, which will be a greater risk as a result of this clause?

It is currently difficult to get the “no recourse” rule lifted on the grounds of destitution because the concession applies only to a minority of those affected and involves a difficult, complicated process. Citizens Advice warns that

“in our experience these limited exemptions for destitution give too little help too late”,

with a decision typically taking more than four weeks, according to the Minister in the Commons. Can the Minister tell us who exactly among group 2 refugees will in practice not be subject to the “no recourse to public funds” rule? What is the Government’s estimate of the proportion of group 2 refugees who will be subject to it? What will happen when their status is up for renewal? Will the destitution exception be open to any group 2 refugee or only to certain groups, as is the case now? Will access to the concession be made easier than it is currently?

In recent oral evidence on the “no recourse” rule to the Work and Pensions Committee, the Minister, Tom Pursglove, refused to answer questions about the Bill’s implications, stating that policy work is ongoing. This elicited the response from the committee chair that, given that the Bill had already completed its passage through the Commons, surely we ought to know what its implications are—indeed. Surely by now the Home Office should be able to answer what are some pretty basic questions about how Clause 11(5)(c) and (6)(d) will work. It is crucial that we have this information should Clause 11 continue to stand part of the Bill, although I fervently hope that it will not, not only because it contravenes the refugee convention but also because it will spell hardship and insecurity for many group 2 refugees—who will be very much class 2 refugees. I beg to move.

[Baroness Stroud (Con)]

My Lords, I want to take the opportunity afforded by Amendments 46 and 54 in the name of the noble Baroness, Lady Lister, to which I was pleased to add my name, to probe the Government’s exact intention regarding the outworking of Clause 10 and the application of NRPF.

I have long been concerned about the NRPF policy, but I have profound concerns about its application to group 2 refugees. According to the Home Office’s own guidance, the NRPF condition must not be applied in circumstances where a person is destitute or at risk of becoming so. Can the Minister confirm that this understanding is correct, or would group 2 refugees not be able to receive asylum support and be subject to NRPF? Can the Minister also clarify what would happen should such a person qualify for the destitution test?

There are a number of areas where I would encourage the Minister to consider the impact of applying NRPF to group 2 refugees. I know that Members of this House would be happy to work with her if that is helpful. First, on the impact on local authorities, if the NRPF condition is extended to refugees subject to the new temporary protection status, the increase in the number of individuals subject to NRPF would increase the pressure on already overstretched local authorities. Such increased pressure could lead to more families with NRPF being wrongly refused assistance by local authorities. This would have a devastating impact on the health and development of children in these families and would counter any efforts to develop integration. In addition, it would affect already vulnerable families who have the same characteristics as those who are permitted to access public funds. This is an area of concern to me: they have just arrived here via different routes, but there is no difference in their vulnerability.

Imposing an NRPF condition will cause refugees to live without access to welfare benefits and housing support. When we are considering NRPF, we often think of out-of-work benefits, but this also affects in-work benefits. You could have the extraordinary circumstance of two auxiliaries working in a hospital, one being able to claim in-work support, and the other not. He or she would not be able to survive in those circumstances, even if they were doing everything right. There is also evidence from those already subject to the NRPF condition that this restriction can cause destitution and lead children to experience homelessness, hunger and mental health conditions.

If, as seems to be the case, group 2 refugees would be subject to NRPF, this policy may not achieve its intent. I would value the Minister setting out the exact policy intent of NRPF, as I have found it hard to find what the intent of no recourse to public funds is.

My work as chair of the Social Metrics Commission, a cross-party commission which measures poverty in the UK, finds that no recourse to public funds is a significant cause in driving poverty, homelessness and destitution. NRPF has been shown to have significant mental health consequences, including for children. It makes finding stable work more difficult, accessing education harder, and securing stable housing a challenge. These are all things we want to see for this community of people.

It is important for us to really understand who we are talking about. We are not talking here about asylum seekers or economic migrants. We are talking about people the Government recognise as bona fide refugees—that has already been decided—who have fled conflict, war or famine and arrived in Britain hoping to find a place of refuge. By tabling this probing amendment, I want to ensure that, purely by virtue of the route by which refugees arrive here, they will not be subject to profound insecurity, at a time when we are committed to ending rough sleeping, levelling up the UK and defining the character of the nation we want to be.

As this is a probing amendment, I ask the Minister to clarify whether group 2 refugees would or would not be able to receive asylum support. Would they be subject to NRPF, even when qualifying for a destitution test? If so, what is the exact policy intent of NRPF for this group of people? How would group 2 refugees have been provided for during Covid, when they would not have had access to furlough or universal credit? Finally, in what way is the Government’s commitment to ending rough sleeping, and NRPF for group 2, compatible?

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[Lord Hunt of Wirral (Con)]

As with all questions affecting our colleagues in France, it is very difficult to answer that.

[Baroness Lister of Burtersett (Lab)]

My Lords, what evidence are the French basing this view on? The academic evidence that I am aware of, and certainly the evidence that the JCHR draws attention to, does not support the view that public funds, or welfare more widely, somehow acts as a pull factor. The pull factors were set out by the noble Baroness, Lady Stroud —family commitments, language and so on—and the evidence shows that the push factors are much more important. I would be very interested to know what evidence the French base this on because it may well be just reading our newspapers, which is probably not very good evidence.

[Lord Hunt of Wirral (Con)]

Would the noble Baroness, Lady Lister, please ask the French?

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[Baroness Williams of Trafford]

It might be helpful to the noble Lord if I outlined situations in which it might be applied, as opposed to putting them in the Bill. I am very happy to go away and look at that and write to him with some examples of where it might be applied—I get his point on that.

[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who have spoken. There have been some very powerful arguments for the amendment. I am particularly grateful to the noble Baroness, Lady Stroud: she put it better than anyone else could, drawing on her knowledge of these issues. I thank the Minister but I must say that I am disappointed. The whole point of the amendment was to try to get a bit of clarity—my noble friend Lord Rosser has been trying, without success—but, to be honest, I am none the wiser now than I was at the beginning as to who will and will not be subject to the “no recourse to public funds” rule.

The noble Baroness, Lady Stroud, made the point that discretion involves subjective judgment. I have been involved in social security for a long time. There was a reason why we reduced the element of discretion in it: because subjective judgment may be used in ways that we do not feel very happy with. It can be negative as well as positive. All that we know about the culture of disbelief in the Home Office, the refugee system and so on does not fill me with great hope.

I am glad that the Minister said that she will write to my noble friend; I hope that she will copy it to everyone who has taken part in this debate. I hope that she will look at Hansard and the questions I asked to see whether she can answer some of them. If she cannot, it suggests that, as my noble friend said, this has been put in the Bill without a clue as to what it will actually be used for—and that is not good.

[Lord Paddick (LD)]

I am sorry to intervene, but will the Minister include in the letter to noble Lords how this measure, which will be broad and flexible—I think that is what she said—and at the discretion of the Home Office, will amount to a deterrent?

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

That is a very good question, but it has taken away my train of thought. What I wanted to say was that this really is not good lawmaking. The noble Baroness, Lady Ludford, quoted the Migration Advisory Committee, which I was planning to quote as well in relation to the right to work, and pointed out that it is not good policy-making not to provide evidence. The Minister said she disagreed, but I hope she did not disagree with the fact that one should provide evidence for policy, which is what I challenged the noble Lord, Lord Hunt, about. I would be very interested to see this evidence the French are using. I do not think it exists.

Anyway, it is late. I am disappointed, because I am none the wiser as to how this potentially very dangerous power, which could cause immense hardship if we are not careful, is going to be used. But I hope that the Minister’s letter will show some clarity about how the Government are thinking about how they plan to use this power. With that, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Ludford (LD)]

But that is why we need family reunion routes.

[Baroness Lister of Burtersett (Lab)]

Can I just point out that the Refugee Council, for example, has made the point that cutting back and restricting family reunion rights, which the Bill will do—this is one of the key safe and legal routes—will particularly affect women and children? Plenty has been written about what safe and legal routes might look like—it is family reunion; it is humanitarian visas. Is the noble Lord really suggesting that we have no responsibility to the kind of people that my noble friend talked about? No one is suggesting that everyone comes over here, but much poorer countries than this country are taking responsibility for asylum seekers, and we will not take any responsibility.

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[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I listened carefully to the noble Baroness, Lady Ludford, and she quite rightly reminded the House that we are talking about asylum seekers. I have to say that, after that, our paths diverged quite considerably.

In listening to a debate covering 16 amendments and a clause stand part, I discerned three angles. The first, what I might call the ultras, led by the noble Lord, Lord Kerr, want to remove the clause completely. The second angle is to take the clause to pieces, as in the amendments from my noble friend Lady McIntosh, moved by the noble Lord, Lord Griffiths of Burry Port. Thirdly, there are the other amendments, described by, I think, the noble Baroness, Lady Hamwee, as picking at the scab. If you leave aside the point that the clause should not exist and take the other two, the inevitable result is that what we are doing, maybe imperceptibly, is widening the opportunity for asylum seekers to come to this country. How many and whether it is a good or a bad thing can be debated, but that is going to happen if we accept the amendments put forward in this group.

That, in turn, raises a couple of issues for me about fairness. First, there is fairness to those who have so far followed the scheme for tier 1 and are therefore going to find their position disadvantaged by the arrival of more people who would otherwise have been in tier 2. Once that thread is broken and the rules become more judgmental, then there are obviously issues of fairness for those who have the clearest position.

The second question of fairness is about the contract with the British public. In the debate on Clause 9 at the last meeting of the Committee, I discussed the nature of what I call “informed consent”. I described it as a concept that Peter Bauer had expressed to me half a century ago in a debate at my business school. Here, I touch very much on the point made by my noble and learned friend Lord Clarke, and the noble Baroness, Lady Fox. There is a question of informed consent. The informed consent is not absolute; it is conditional. One of the reasons I think we have had reasonably satisfactory race relations so far is the point made by my noble and learned friend Lord Clarke that the public have felt, though stretched, often badly stretched, their consent is still there. But, as I say, it is not absolute and we need to make sure that the British public is able to see rules that are clear, unequivocal and comprehensible in their impact on them, their families, their communities and the society in which they live. The more complex the rules become, the greater the chances of cases emerging that will endanger and maybe break that informed consent.

My second point of concern about this is what I call “foreign shopping”. For a number of years I was a trustee of a charity called Fair Trials International—the name is self-explanatory—which does excellent work in many areas but in particular as regards extradition. We came across the extremely unattractive practice of people seeking extradition going round looking for the best jurisdiction, the best legal system or the best court to enable them to be successful. I think we have to be very careful to ensure that similar practices, which may already exist now, do not grow further as regards asylum seekers.

Again, my noble and learned friend Lord Clarke referred to it. He said, “If I was in Nigeria with my noble friend Lord Horam and we were deciding we were a couple of likely lads and we thought the future looked better outside Nigeria, we would look around at all the jurisdictions that might offer us the best prospects.” Now, I think the United Kingdom is an extremely attractive place to go to. We have had a long debate tonight and I am not going to go through the reasons why I think it is. They include a series of things, not least that people can see that the Parliament of the United Kingdom spends time talking and thinking about it and is concerned about it. What better way to try and find your way into a country that has the interest and the focus to make sure that even the lowest person is looked after and their rights are protected?

When my noble friend the Minister comes to wind up, I hope she will be able to say that the Government are going to look very carefully at the impact of more asylum seekers of variable abilities, perhaps—more people who may risk breaking the informed consent of the British people. For all these reasons, we need to be very careful before we widen the aperture and widen the opportunities any further than proposed in the Bill as presently drafted.

[Baroness Lister of Burtersett (Lab)]

My Lords, I oppose Clause 11 and simply want to pose four questions, the answers to which I hope might help clarify the mind of the noble and learned Lord, Lord Clarke of Nottingham—my home city.

First, how is it possible to decide a priori whether someone is an economic migrant or a refugee on the basis of how they arrive in the country? It appears to be a key assumption on which Clause 11 and much of the Bill is based. The evidence—in particular the Refugee Council’s analysis of channel crossings—shows that most of those crossing the channel irregularly, and therefore deemed illegal, are likely to be recognised as in need of refugee protection. That does not support the assumption.

I recently met virtually with members of the Baobab Centre for Young Survivors in Exile and was told that, in their 32 years of work, they had never met an unaccompanied young person who had arrived by a safe and legal route, yet all had been fleeing danger, with many having seen family members killed and many traumatised. A constant refrain among the young survivors themselves was that they wished Ministers would put themselves in their shoes—a refrain we have heard before this evening—and that they felt the proposed policy was based on a lack of compassion and trust.

Secondly, what assessment has been made of the likely impact on integration—an issue raised by the noble Baroness, Lady Ludford, which Ministers claim is still a goal—of creating a second-class group of refugees with no security and only very limited rights?

Thirdly, what assessment has been made of the case made by a number of organisations, including the UNHCR, that placing restrictions on the right to family reunion for this group will, in the words of the Refugee Council, “all but destroy” the

“main safe route out of conflict for women and children at risk”.

Fourthly, and finally, why should we accept the Government’s interpretation of the refugee convention over that of the body with global supervisory responsibility for it? The UNHCR has provided detailed legal observations in support of its claims that the Bill is

“fundamentally at odds with … the United Kingdom’s international obligations under the Refugee Convention”.

Likewise, Freedom from Torture has published a joint legal opinion from three chambers which states that

“this Bill represents the biggest legal assault on international refugee law ever seen in the UK”

and

“is wrong as a matter of international refugee law.”

To my knowledge, the Government have not published the legal advice on which their claims that Clause 11 is compatible with international law are based. Will they now do so, particularly in light of the very important speech from the noble and learned Lord, Lord Brown?

[Lord Green of Deddington (CB)]

My Lords, I shall be extremely brief; this has been a long debate. I just want to commend the noble Lords, Lord Horam and Lord Hodgson, and the noble Baroness, Lady Fox. They all pointed out the need to take full account and understanding of public opinion. I agree with that; I do not need to repeat it. As for Clause 11, it is clearly a legal problem. I suspect that it will also be a policy problem, but we will come to that later.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I hope that, through the course of my response here, I will lay out the rationale for why we are doing what we are doing. We disagree with the UNHCR and we feel that, as a sovereign nation, it is up to us to interpret the 1951 convention.

[Baroness Lister of Burtersett (Lab)]

If the Government’s argument is to be that they have a different interpretation, it is not clear why we should accept their interpretation over the UNHCR’s interpretation. I asked if the Government would publish the legal advice on which their interpretation rested. Then we can judge against other interpretations.

[Baroness Williams of Trafford (Con)]

I think the noble Baroness knows that we do not do that. I am not going to commit to publishing the legal advice. I am, however, going to come to her questions later if the Committee will be patient.

Can I get on now to pull factors? They are complex, but it is reductive to claim that asylum seekers do not ever make decisions about their destination based on policy calculations. They are like the rest of us; they do not simply respond to one or two factors such as family or language in making a choice. Many more factors come into play in this respect, as my noble friend Lord Hodgson of Astley Abbotts mentioned, and one of those will very naturally concern how to rebuild the life they lost after being forced to flee their country of origin. But to defend the first safe country principle for the reasons I have set out, we must do everything we can to deter dangerous secondary movements from countries that are already safe and provide perfectly good means for a flourishing life.

Noble Lords have mentioned Denmark, Australia and Japan. We have seen large reductions in spontaneous intake in both Denmark and Australia, following similar approaches to that which we intend to take. In fact, Australia resettles the single largest number of refugees in the world.

--- Later in debate ---

[Baroness Ludford (LD)]

Before the noble Baroness responds, I add that I do not think that the noble Lord, Lord Rosser, is confused: I fear that the Minister is being mildly disingenuous with us. Can she confirm that there is a difference in the intended treatment of group 1 and group 2 refugees as concerns family reunion? Otherwise, what is the point of Clause 11(6):

“The Secretary of State or an immigration officer may … treat the family members of Group 1 and Group 2 refugees differently, for example in respect of … whether to give the person leave to enter or remain”


et cetera? What is the point of this being in the Bill if there is no intention to treat group 2 refugees differently? The Minister told us about how this will not breach the refugee convention and so on. I asked specifically about the comments on Article 8, and I look forward to her replying specifically on that. But can she confirm whether their intention is to treat group 1 and group 2 refugees differently in terms of rights to family reunion?

[Baroness Lister of Burtersett (Lab)]

May I just add to that? Clause 11(5) says:

“The Secretary of State or an immigration officer may treat Group 1 and Group 2 refugees differently, for example in respect of … whether leave to enter or remain is given to members of the refugee’s family.”

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

11: After Clause 4, insert the following new Clause—
“Provision for Chagos Islanders to acquire British nationality
(1) Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.(2) After section 17H (as inserted by section 7), insert— “17I Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.(2) An application under this section must be made before the date specified in subsection (3).(3) The specified date means—(a) in the case of a person aged 18 years or over on the date of coming into force of this section, five years after the date of coming into force of this section, or(b) in the case of a person under the age of 18 years on the date of coming into force of this section, before they reach the age of 23 years.(4) A person who is being registered as a British overseas territories citizen under this section is also entitled to be registered as a British citizen.(5) No charge or fee may be imposed for registration under this section.””Member’s explanatory statement
This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle, and the noble Lord, Lord Woolley of Woodford, for their support for the amendment. The amendment would extend the right to register as citizens to the descendants of Chagossians exiled from their homeland, subject to a time limit. I am grateful to Rosy Leveque of BIOT Citizens for her help with it, and to Chagossian Voices for its briefing.

To understand the case for this amendment, a bit of history is necessary. Back in the 1960s and early 1970s, the inhabitants of the Chagos Archipelago—a British Overseas Territory which became part of the British Indian Ocean Territory—were evicted by the then British Government to make way for a US airbase on Diego Garcia, the largest of the islands. They have never been allowed to return. Not only did they lose their homeland, but their grandchildren and other descendants have no right to British Overseas Territory citizenship and, therefore, to British citizenship. Only those born on the islands and the first generation born in exile have such a right. I should perhaps make it clear that the right to citizenship should not be confused with the quite separate right of return, which is not affected by this amendment, important as it is.

The Chagossians were deported to Mauritius and the Seychelles and now around 4,000 live in the UK, but because of the unjust citizenship rules many are undocumented and children have been and continue to be deported. Families have been broken up and communities are divided, as some members have access to citizenship rights while others do not. This has caused hardship for many and has aggravated the trauma associated with exile. The lack of citizenship rights has created insecurity and made it harder to integrate into local communities.

In the Commons, in Committee, the Minister, Tom Pursglove, expressed some sympathy for the case made for the extension of citizenship rights and acknowledged that

“the Chagossians present a unique case.”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; col. 644.]

He said he would “reflect further”. It all looked rather hopeful but when the Conservative MP, Henry Smith, raised the issue on Report, what looked like a half-open door was slammed shut by the Immigration Minister, Kevin Foster, which was very disappointing. Mr Smith emphasised the anomalies created, the injustices caused and that we are talking about no more than a few hundred to the low thousands of people who would benefit. So far, BIOT Citizens has identified 500 descendants. What is at stake is a small concession but one that would make a huge difference to the lives of those affected. It would also have symbolic importance for a people who have lost their homeland through no fault of their own.

Mr Smith’s amendment was rejected in a single paragraph. There appear to be two strings to the Government’s case. The first is that the amendment

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories, creating quite a major precedent.”—[Official Report, Commons, 7/12/21; col. 258.]

I am sure noble Lords can spot what a specious argument this is in this context. The only reason the Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British Oversees Territory. Forced and continued exile prevents them from meeting these long-standing conditions. It is not clear that the Government really understand this, but as the Junior Minister acknowledged in Committee, it is “a unique case” so no precedent would be set, unless the Government have plans to evict others from their British Overseas Territory homelands. I hope and trust that, if the noble Baroness—I think it is the noble Baroness—the Minister has been briefed to use this argument, she will scrap it now.

The second government concern is more credible. They do not want to create an open-ended right in the way that the Commons amendment did, and I think that is reasonable. This amendment therefore creates a five-year time limit for applications, following the Windrush precedent in the British Nationality Act 1981. Those aged under 18 at the time of enactment will have up until the age of 23. I am offering the Minister an opportunity to add something positive, that would be widely welcomed, to a Bill that—with very few exceptions to be found in this part of it—has been widely condemned. If this particular way of capping entitlement is not to the Government’s liking I am, of course, open to discussions about alternative means, such as a generational cap. I very much hope that the Minister will accept the amendment or a revised version of it for Report. Is she willing to meet virtually with me and other signatories to the amendment and those advising me to discuss how we might proceed? I plan to return to the issue on Report to try to put right what Henry Smith MP correctly described as an “appalling injustice”. I beg to move.

[Baroness Ludford (LD)]

My Lords, I thoroughly endorse what the noble Baroness, Lady Lister, has said, and I am very pleased to co-sign this amendment. In the first two groups that we discussed this morning, we talked a lot about righting injustices. This is an opportunity to right a gross historic wrong—a forced eviction and exile that was, indeed, ruled illegal by the International Court of Justice in 2019.

I was one of those who raised this issue very briefly at Second Reading. I do not think the Minister referred to it in her response, although I know she had a lot of issues to cover. It should be noted, though, that the amendment in the other place from Henry Smith MP at Report stage, which the noble Baroness, Lady Lister, referred to, had the sizeable support of 245 Members, displaying the strength of feeling about the trauma and hardship of the Chagossian community that the noble Baroness, Lady Lister, referred to.

The all-party group on Chagos is a strong and active group that has long campaigned to right, in so far as is possible, the wrongs of the 1960s when, having resisted independence from Mauritius, of which Chagos was part, Britain secretly acceded to an American request to make one of the islands, Diego Garcia, available on a long lease as a “communications hub”. Of course, it later became notorious as a site for rendition flights. Anyway, the then British Government of, I am afraid, Harold Wilson, detached Chagos from Mauritius and then emptied Chagos, chucking out its inhabitants. This appeared, apparently, to be compensation for the Americans for the UK declining to get involved in the Vietnam War.

The saga is littered with lies and about-face. The UK told the UN that the Chagos Islands had no permanent population and the Chagossians were merely contract labourers. The British Indian Ocean Territory—BIOT—comprising all the Chagos Islands was detached from Mauritius and, between 1968 and 1973, the entire population of Chagos was removed. Some 2,000 people were deported to Mauritius, some went to the Seychelles and some arrived in the UK, particularly in Crawley, perhaps because it is near Gatwick, in Sussex.

As was discussed this morning, the purpose of Part 1 of this Bill is to address long-standing discrimination in British nationality law. I put to the Committee that Amendment 11 fits perfectly in this context. The original appalling injustice of the late 1960s and early 1970s perpetrated against the Chagossians has been compounded ever since, not only by their continuing enforced exile from their homeland but by the deprivation of their descendants of their citizenship rights. Had they not been evicted but had stayed in BIOT, they would have passed British Overseas Territory citizenship from generation to generation and some would have had the entitlement to be registered as British citizens or at least benefited from the Home Secretary’s discretion to so register them.

As the noble Baroness, Lady Lister, said, Ministers in the other place have provided no justification for resisting the rectification of this injustice suffered by the Chagossians. The Government simply rely, in a sense, on the injustice of eviction to perpetuate the injustice. Because we had chucked them out, they were not BIOT citizens and so they cannot benefit from any subsequent citizenship rights. The Government now have an opportunity with this new clause to make substantial amends—hardly complete amends—for the wrongs done half a century ago. I suggest that it is wrong to seek to assert that correcting the nationality law consequences of this wrong would create any wider precedent, as the noble Baroness said.

By the way, if anyone wants to read the history of the UK’s perfidious treatment of the Chagossians, I recommend this booklet of a lecture by Professor Philippe Sands QC entitled Chagos: The Last British Colony in Africa – A Short History of Colonialism, a Modern Crime Against Humanity? and I will give this to Hansard so it can correctly identify it. I urge the Minister to give a positive response.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank everyone who has contributed to this debate. It is fair to say that there is unequivocal support across the Committee—perhaps not for the exact wording of the amendment, but for what it is trying to achieve. Noble Lords spoke very strongly. It is unusual for nothing to be said in opposition to what is trying to be achieved.

The Minister expressed her sympathy and empathy. I am afraid that butters no parsnips when it comes to what the Chagossians rightly want. As other noble Lords have said, this is a question of justice and human rights. My noble friend Lady Chakrabarti asked a pertinent question about the distinction between those who choose to leave a British territory and those who are forced out. The Minister has accepted that a wrong was done. Whichever Government were in power—I know it was my party—we share the shame. Here is an opportunity, not to put it right but at least to do something tangible that will go some way towards putting one aspect of it right.

I am desperately disappointed that the Government are still using the argument that, because the Chagossians are in the wrong place, they are subject to a long-standing principle of British law. What other group of people has been forcibly evicted in this way? As I said, we are not setting a precedent because I assume we are not planning to evict anybody else.

I thank the Minister for the offer of a meeting. Perhaps we could take a cross-party delegation to reflect the strength of feeling across the House. I hope she will think again. If not, I shall want to bring this back on Report.

My noble friend Lady Whitaker has been supporting the Chagossians for many years; I am relatively new to this issue and the legal position is extremely complicated. I may not have it completely right but there is a principle of justice and human rights, which has been recognised across the Committee. We must use this legislation to put it right. As a number of noble Lords have said, there is no better place than this part of this Bill, which is about putting right historical discrimination in nationality and citizenship law. Having said that, I beg leave to withdraw the amendment for now.

Amendment 11 withdrawn.

--- Later in debate ---

Could some of the sharpest corners in this legislation be smoothed off? I do not know, but it is because of those millions of silent majority who would see many of the objections to Clause 9 to be perverse, unfair, unreasonable or possibly all three, that I think the Government have so far got the balance right in what they are seeking to achieve in Clause 9 and why I support it.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am not a lawyer either, but like my noble friend Lady Blower I have read the Bingham Centre’s report on this. I want to draw your Lordships’ attention to one aspect of it, which I do not think has been mentioned—I apologise if it has. There have been so many good speeches, particularly from the other side of the House, and across the House.

According to the report, the clause includes a retroactive power which would allow what was not lawful at the time to be made lawful now. The report suggests that this is retroactive lawmaking of the worst kind and particularly offends the rule of law. I think we should do away with the clause altogether. I have also read an article by Dominic Grieve, the much-respected former Conservative Attorney-General, on the “ConservativeHome” blog, which I must admit is not normally at the top of my daily reading list. It is an instructive piece. I will not read at length, because time is getting on, but he calls it,

“using legislation as a form of propaganda”

That is from a former Attorney-General and worth taking note.

I also draw attention to the fears that this is creating in the wider public. I have just had an email saying that over 100 organisations have written an open letter to the Prime Minister asking that this clause be removed. I hope that, when we come to Report, the House will remove this clause, which offends the rule of law.

[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

--- Later in debate ---

[Lord Dubs (Lab)]

My Lords, I again refer to my membership of the Joint Committee on Human Rights. We have produced detailed reports on many aspects of the Bill, including on this matter.

It is surely a basic right that nobody should be stateless. This is fundamental. Stateless people have fewer rights—they have virtually none—and they are vulnerable. I have tabled this amendment to avoid statelessness.

As things stand, stateless children born in the UK are covered by this provision in the Bill. Prior to the British Nationality Act 1981, all children born in the UK were British under jus soli. As I said earlier, I served in the Commons at the time—indeed, I was on the Public Bill Committee which dealt with this Bill for many long weeks—and we had a long discussion about jus soli, and I only hope that the position I took then is the same as the one I am taking now—in other words, in opposition to the provision. I think I can claim that I have been consistent over 40 years; I hope so, but if anyone wants to look it up in order to disprove it, I will listen to them.

Clause 10 has a new requirement that will make it more difficult for stateless children to acquire British citizenship. It puts another hurdle in the way of acquiring that citizenship. The onus will now be on children—or, if they are very young, the people responsible for them —to produce the evidence, unless the Home Secretary is satisfied that the child is unable to acquire another nationality. The provision will effectively mean that a child born in the UK, or their parents or carers on their behalf, will have to prove that they could not reasonably have acquired another nationality—so the onus is on the child, or the parents or carers, to prove that. That may be quite a difficult point to prove, and the onus is switched in allocating the burden of responsibility. That could be especially hard for children who do not have significant support or access to the relevant documents. For example, the children of refugees might find it very difficult to have the necessary documentation or to be able to produce the evidence, so it would put a significant additional burden on them.

It is an anomaly that when children become adults they can apply. It remains an oddity that a child can remain stateless for some years until they become an adult, when they can then apply. What is the advantage to anyone of having a child stateless for that period? It certainly cannot be in the best interests of the child, and that surely must be the bottom line. The United Nations Convention on the Rights of the Child always talks about what is in the best interests of the child; Article 7 says that a child should be registered as having a nationality immediately after birth. That is fairly clear. Furthermore, it says that a contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless. With this clause, the Government are going against these provisions in the Convention on the Rights of the Child.

It is difficult to see how Clause 10 complies with the United Kingdom’s obligations under both the 1961 United Nations Convention on the Reduction of Statelessness and the Convention on the Rights of the Child. It is an unnecessary measure that makes things even more difficult. I can see no argument, not even the security arguments that the Minister advanced in the previous debate, for putting this hurdle in the way of children who might otherwise be stateless. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support my noble friend Lord Dubs and the proposal that Clause 10 should not stand part of the Bill. I put on record my thanks to the Joint Committee on Human Rights for the very helpful work that it has done on the Bill, with a whole raft of very useful reports. According to ILPA and the Bar Council, this clause contravenes the 1961 UN Convention on the Reduction of Statelessness, and that should give us pause for thought. Research by the European Network on Statelessness shows how some children in very vulnerable circumstances will be affected, as my noble friend said, and found that there can be good reasons for delays in registering a child’s nationality.

To my mind, the justification that the clause is needed because there has been a significant increase in the number of registrations of stateless children smacks of the culture of disbelief and suspicion criticised by Wendy Williams in the Windrush report. Surely it is to be celebrated that more children are exercising their rights—no thanks to the Home Office, which has been dilatory in making children and their parents aware of these rights and in removing the barriers to registering them. It is thanks to the hard work of organisations such as the Project for the Registration of Children as British Citizens that more children and parents have become aware of the right to registration. As I say, this is to be commended, not cracked down on as if it were some kind of crime.

As the JCHR observes, and Amendment 31 addresses —a point made also by my noble friend Lord Dubs—it is difficult to see how this clause is compatible with the UN Convention on the Rights of the Child. While the Home Hoffice human rights memorandum states that it has considered the best interests of the children affected, it is not clear from it how such a clause is in their best interests, so can the Minister spell out exactly how this clause meets the best interests of children affected?

[Baroness Ludford (LD)]

My Lords, as a member of the Joint Committee on Human Rights, I agree with the noble Baroness that we have done good work on the Bill. On a more serious note, perhaps I may say how much we appreciate the chairmanship of the right honourable Harriet Harman MP, whose recent bereavement has saddened us so much.

I will speak to both Amendments 30 and 31. As has been said by other noble Lords, Clause 10 amends the British Nationality Act to introduce new requirements for the registration of a stateless child—a child born in the UK—and could make it even more difficult for them to acquire British nationality, to which there are already significant hurdles. I could not agree more with the noble Baroness, Lady Lister. Why should it be a problem that children are becoming stateless and ceasing to have the security of nationality?

Under Clause 10, the Home Secretary has to be satisfied that the child is unable to acquire another nationality. That puts that child in the position of having to prove that they could not reasonably have acquired another nationality. The policy rationale seems to be a suspicion that parents are wilfully causing their child’s statelessness—the culture of disbelief that the noble Baroness, Lady Lister, referred to. As colleagues and the JCHR say, it is difficult to see how the best interests of the child, as required by the 1961 UN Convention on the Reduction of Statelessness, are served by the new test in this provision. How is it in that child’s interests to be left stateless?

Indeed, asserts the JCHR, Clause 10

“risks punishing the child for a perceived failure”

on the part of their parent or carer, which is obviously through no fault of their own. However, the UN convention does not impose a requirement on the parent to exhaust all avenues to seek the citizenship of another state. So Clause 10 could move the UK away from the convention. I was interested that the noble Baroness, Lady Lister, quoted ILFA and the Bar Council as saying that they do indeed think that this is a contravention of the convention, and I can see why. Amendment 30 is an attempt to move the UK back towards the intention of the convention by saying that British citizenship could only be withheld

“where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.”

Amendment 31 aims to make the best interests of the child central to the decision-making.

Finally, in addition to the risk of alienation from our society of individual children, it cannot be in the interests of British society as a whole for young people born here to be excluded from sharing citizenship and thus rootedness in their community.

Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I welcome the long overdue ending of the injustice done to those deprived of the right to citizenship because their British Overseas Territory father was not married to their mother. I pay tribute to Trent Miller and David Varney for their years of battling to make this happen. Sadly, this positive citizenship step is overshadowed by making it harder for stateless children to acquire British nationality, the last-minute introduction of the power to remove citizenship without notice and the very disappointing response in the Commons to attempts to remedy the gross injustice done to the Chagossians, evicted permanently from their homeland by the British Government, with their descendants denied citizenship rights. I hope we can rectify that and rectify the long- standing overcharging of children’s citizenship fees.

I turn to the asylum sections of what has been justifiably dubbed the “anti-refugee Bill”. Contrary to government claims, the Bill, as we have heard, is, in the words of the UNHCR,

“fundamentally at odds with … the United Kingdom’s international obligations under the Refugee Convention”.

First, through criminalisation; secondly, through the application of inadmissibility rules which, according to the UNHCR, rely on a

“fundamental misapplication of … the Refugee Convention”,

in particular a non-existent “first safe country” principle; and thirdly, by the creation of two refugee classes, the Bill effectively denies most asylum seekers the rights afforded by the convention. Moreover, through the prospect of offshoring, discredited by Australian experience, it strips them of their dignity and humanity.

The temporary protection status that awaits “group 2” refugees is likely to mean the kind of barracks-style accommodation found to be dehumanising and injurious to mental health by an APPG on Immigration Detention inquiry, of which I was a member, together with a significant increase in the numbers with no recourse to public funds, spelling serious hardship, including for children. In short, to quote the UNHCR, group 2 status is

“a recipe for mental and physical ill health, social and economic marginalisation, and exploitation.”

This is all in the name of the all-important but, at present, very limited safe and legal routes. Yet, as the UNHCR observed, resettlement programmes, crucial as they are, cannot on their own compensate for the abdication of global responsibility that this Bill represents. Moreover, far from expanding such routes—for instance, through humanitarian visas—the Bill’s weakening of family reunion rights will reduce them.

One consequence, the UNHCR warns, will be that more women and children are likely to attempt dangerous journeys. The ministerial mantra that women and children are being elbowed aside by young men is used to suggest that the former will benefit from this legislation. How is it, then, that Women for Refugee Women and more than 50 other organisations have written to the Home Secretary to warn that more women will be wrongly refused asylum, retraumatised and placed at risk of violence and abuse? Among their concerns are the consequences for women fleeing gender-based violence, more restrictive rules governing asylum interviews and the definition of “particular social group” which women often use to make their case. We have here the institutionalisation of the culture of disbelief that has long marred the asylum process. Children’s organisations share many of these worries, as well as expressing alongside professional organisations strong opposition to the proposed changes to age assessments.

I have two questions for the Minister. First, the Bill, as we have heard, is premised on the assumption that those entering the UK unlawfully, particularly in small boats, are not genuine asylum seekers. How can the Government make such an a priori assumption, particularly given the Refugee Council’s analysis that shows that most of those crossing the channel are likely to be recognised as being in need of refugee protection? Secondly, why should we accept the Government’s interpretation of the refugee convention over that of the body with supervisory responsibility for it?

In conclusion, I cite a refugee who contributed to a Refugee Action consultation following the Government’s failure to take adequate account of refugees’ lived experience in their own consultation. She asked that we look through the eyes of those affected so that we do not create rules that will in future fill us “with shame and regret”. If we let this pernicious Bill pass unamended I, for one, will feel both deep shame and intense regret.

Police, Crime, Sentencing and Courts Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak to Amendment 57, which is in my name, those of the noble Lords, Lord Bourne of Aberystwyth and Lord Alton of Liverpool, and that of the right reverend Prelate the Bishop of Manchester, whose support I am very grateful for.

First, however, I express my support for other amendments in this group, in particular the one in the name of my noble friend Lady Whitaker, who, as has already been said, has been such a long-standing and doughty campaigner on these issues. I also wish to make clear my opposition to this part of the Bill, on the grounds of social justice and human rights, which, as we made clear last week, should not be subject to a process of so-called “gold-plating”. I will not, however, repeat the arguments that I made in Committee, and unfortunately I do not think, realistically, that we can excise these clauses, damaging as they are. I say that with apologies to the noble Baroness, Lady Bennett of Manor Castle, who has made a very strong case for doing so.

As I warned the Minister in advance, the purpose of this amendment is not quite what it says on the tin, which reflects what the Public Bill Office considered to be in scope. The phrase “entrenched inequality” is taken from a June 2019 press statement for the launch by the then Communities Minister, Lord Bourne, of a national strategy to tackle the inequality experienced by the Gypsy, Roma and Traveller communities. Thus, what this amendment seeks to do is facilitate a debate about what has happened to this much-needed and overdue strategy, and to push for some action on it. It is framed in the way that it is because Part 4 should not have effect until the strategy, which should address Part 4’s likely impact on entrenched inequality, has been published, with a report laid before Parliament for debate.

The announcement of the proposed strategy in June 2019 followed a blistering report from the Women and Equalities Select Committee. It concluded that Gypsy, Roma and Traveller people have the worst outcomes of any ethnic group across a huge range of areas, including education, health, employment, criminal justice and hate crime—to which I would add housing, which it chose not to look at. The committee observed:

“While many inequalities have existed for a long time, there has been a persistent failure by both national and local policy-makers to tackle them in any sustained way.”


The committee deplored the lack of leadership shown by the relevant ministry and the failure to develop a cross-departmental strategy. It was also critical of the reliance on pilot projects that did not seem to go anywhere. In a letter to the then Minister, the committee welcomed the announcement of the proposed strategy as “a very positive step”, but noted the lack of detail. More than two years later we still await that detail, despite repeated ministerial assurances that they remain committed to a strategy to tackle the inequalities identified by the committee and others.

In Committee, I asked the Minister for an update and an assurance that the long-awaited details would be published before Report. The Minister responded that she understood that the department for levelling up, et cetera, was

“working closely with other government departments to progress the strategy, which will be published in due course.”—[Official Report, 3/11/21; col. 1333.]

She then predicted that I would roll my eyes at the phrase “in due course”—and how right she was. She assured noble Lords, however, that the Government remained firmly committed to the strategy’s delivery.

I am afraid that simply is not good enough, especially in the face of legislation that is widely predicted to entrench further the inequalities suffered by the GRT communities. I gave the Minister notice of the purpose behind this amendment in the hope that she might have been able to extract something more substantial than “We’re working on it” from the department for levelling up et cetera, and answer questions such as: what are the parameters of the proposed strategy? Will there be targets? When will it finally be published? Answers to such questions are the very least we—and, more importantly, members of the GRT communities—can expect at this stage. I hope the Minister will be able to provide some answers.

Windrush Compensation Scheme

Baroness Lister of Burtersett Excerpts

Wednesday 24th November 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

As I said previously in Questions about the Windrush scheme, we have reached out not just to communities where we think applications might be forthcoming but to communities and faith leaders overseas, because we want as many people to apply as are entitled to—not just entitled to but deserve—the compensation for their suffering. To go back to the noble Baroness’s previous question, moving the scheme out of the Home Office would risk significantly delaying vital payments to those affected.

[Baroness Lister of Burtersett (Lab)]

The Home Affairs Committee report said:

“We can only conclude that four years on from the Windrush scandal, vital lessons have still not been learned by the Department.”


It is four years on. What is the Minister’s explanation for this shameful failure?

[Baroness Williams of Trafford (Con)]

My Lords, it was possibly a year ago, even two years ago, that I stood up and acknowledged that the scheme was not running as swiftly as it could, that people were not getting the compensation that they should and that we needed to do more to reach out. I fully accepted that criticism.

But, as I said to the noble Baroness, Lady Benjamin, we continue to make improvements to the scheme. The result of this is evidenced in the amount of compensation paid out rising from less than £3 million, which it was at the time, to over £31.6 million, with a further £5.6 million having been offered. We have brought in some new support measures to those claiming on behalf of relatives who have passed away. We have also increased our number of caseworkers to over 80, with another 34 coming online shortly. For those needing more support in applying, we have funded an organisation to provide free independent claimant assistance to individuals.

Police, Crime, Sentencing and Courts Bill

Baroness Lister of Burtersett Excerpts

Lords Hansard - part two & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[The Lord Bishop of London]

My Lords, I have listened with interest to what noble Lords have said on this group of amendments, and I rise to add my support to them, particularly Amendment 149.

In 2019, the General Synod, the parliament of the Church of England, held a serious and lengthy debate on the treatment of Gypsy, Roma and Travelling communities. It noted the long and ugly history, going back at least as far as the Egyptians Act, passed by your Lordships’ predecessors in 1530, which sought to ban further immigration from Romani Gypsies and to deport resident Gypsies.

In preparation for that debate, a paper was circulated, entitled Centuries of Marginalisation; Visions of Hope. This was both sobering and a call to action. It was a challenge to the Church to do more, including providing sites and freeing up land. We have not made enough progress on the promises made at that time. In all humility, I should say that the Church, like so many other social institutions, has too often fallen short or even been complicit in the discrimination and marginalisation felt by these communities. That has been a failing on our part, and it was chastening to listen to the stories in that debate and to hear the level of abuse, discrimination and pain which has been caused. The synod’s resolution called on the

“Bishops in the House of Lords to continue to speak out boldly against legislation that seeks to further marginalise Gypsies, Irish Travellers and Roma”.

It is in that vein that I feel the need to address the Committee today, because I fear we are in danger of making the situation still worse.

It is 10 years since Michael Hargreaves and Matthew Brindley wrote in Planning for Gypsies and Travellers, a publication by the Irish Traveller movement, that

“There are no stopping places, few transit sites, no emergency sites and families on the road face constant eviction”.


The lack of permanent sites and the difficulties of getting planning permission due to local opposition, egged on by a hostile media, is the single biggest issue facing the Gypsy and Traveller communities. Not only has this not changed in the intervening decade but the Bill risks significantly exacerbating the situation.

Amendment 149 would be a small but necessary remedy to that exacerbation, returning us, as several have already noted, to a previous status quo. It would remove the current tyranny of the majority problem, which sees sites for Travellers weighed against electoral concerns. Unauthorised encampments are a consequence of inadequate authorised ones. This is not new, nor is it surprising, but it is possible to remedy—and I would urge Ministers to give serious consideration to this amendment.

Repeatedly, Ministers have told your Lordships’ House and Members in the other place that the Bill does not represent an attack on the Gypsy, Roma and Traveller way of life. Yet that sentiment is clearly not shared by many in those communities who have written to Bishops, and, I am sure, to other Members of your Lordships’ House, in advance of this Bill. It is certainly not the opinion of the Churches Network for Gypsies, Travellers and Roma, to which I would like to add my thanks, along with my friend the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Whitaker. I hope that it is not too late for the Government to take steps to ameliorate what is presently proposed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 136, to which I have added my name, but I support all these amendments, which attempt to mitigate the injurious effects of Part 4 on one of the most marginalised communities in our society. I will leave to the end my more general comments relating to the clause stand part debate, and I apologise for not being able to make it to Second Reading, because I was away.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate on Clauses 62 and 64. I am grateful to have had discussions with the noble Baroness, Lady Whitaker, and am happy to have further discussions with the noble Lord, Lord Young of Norwood Green, before Report.

These clauses deliver on a clear manifesto commitment to tackle unauthorised encampments. It is worth quoting directly from the Conservative manifesto, as the commitment was in explicit terms. The manifesto said:

“We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence”.


The noble Baroness, Lady Lister, and others have challenged me to say, if I was not talking just about the Gypsy, Roma and Traveller community, who I was talking about. It is anyone who sets up camp on unauthorised land and causes significant damage, disruption or distress. My noble and learned friend Lord Garnier gave us an example, and he was not even sure who the individuals were. When I go on holiday to Cornwall, I see examples of unauthorised encampments, and I do not know who the individuals are. It is a wider problem than just Gypsy, Roma and Travelling communities.

We have brought forward the measures in Part 4 because we understand the challenges many locations across the country face when individuals cause significant damage, disruption or distress to communities, businesses, and landowners. The financial cost of cleaning up sites and repairing damage can also be significant. It is not a sound assumption to say that landowners will have sufficient resources to be able to clean up after some of the damage that is caused to their land. The measures are a proportionate means of protecting the rights of communities. While we must ensure fair and equal treatment for Travellers, and recognise that the majority are law-abiding, as the noble Lord, Lord Young of Norwood Green, said, we are equally clear that we will not tolerate law-breaking and we are determined to ensure that the police have the powers they need to support and serve their communities. That is why we are introducing this new criminal offence as a proportionate means of protecting the rights of communities.

It is very important to recognise that the threshold for the new offence is high. The act of taking a vehicle on to someone else’s land without their permission is not in and of itself criminalised by this clause, nor is an “unauthorised encampment” in itself an offence. There are several conditions to the offence, all of which must be satisfied for someone to be found guilty of the offence. Most importantly, the offence requires conduct or residence that causes, or is likely to cause, significant damage, disruption or distress. I would hope that no one in your Lordships’ House would condone such conduct.

I move now to the amendments. The three government amendments in this group, Amendments 134, 146 and 148, are simply clarificatory in nature so I do not propose to say more on them at this stage.

Amendment 133 in the name of the noble Baroness, Lady Whitaker, would have the effect that no criminal offence is committed unless the police make the request to the trespasser to leave. This would remove the ability of a landowner to trigger the offence by requesting that trespassers leave their land, and would slow the enforcement process down, while using more police resource.

As I have said, the new offence targets only those who cause significant damage, disruption or distress and who do not leave when asked to do so. It is right that on those occasions where significant harms have taken place, enforcement action should be taken to protect citizens and businesses. This amendment would remove the ability for police to act more quickly where they need to in response to unauthorised encampments causing significant harm, disruption or distress.

Noble Lords have raised concerns that this means that those on unauthorised encampments could be criminalised simply because the landowner does not want them there or because they hold prejudiced views towards people. This is simply not the case. The police will need to continue to collect evidence to form reasonable grounds for suspecting that the offence has been committed, and the offence will apply only where specific conditions have been met. In addition, we expect that the police will continue to have regard to their duties under the Human Rights Act 1998 and to their duty to safeguard the vulnerable before and when taking enforcement decisions.

A few noble Lords referred to the word “significant”, specifically the noble Baroness, Lady Brinton. It is widely used in legislation, and examples are set out in the draft statutory guidance. This type of qualifying term is used for other offences without government guidance; for example, the Public Order Act 1986 refers to

“serious disruption to the life of the community”,

and Section 14A of that Act, on prohibiting trespassing assemblies, refers to “significant damage”.

On the Human Rights Act, the Government believe that the measures are compliant with the ECHR and the Equality Act 2010. We respect the rights of the Traveller community to follow a nomadic way of life, in line with their cultural heritage. Enforcement action will not be based on race or ethnicity. Anyone who causes significant harm, disruption or distress and does not leave when asked to do so will commit the offence.

Amendment 135 in the name of the noble Lord, Lord Rosser, seeks to provide that the offence is committed only when a suitable site has been offered. There is no justification for causing significant harm, disruption or distress—the lack of availability of a pitch on an authorised site cannot be an excuse for such conduct. As I have said, the fact of the unauthorised encampment is not in itself an offence. If significant harms are being caused, it is only right that the police have powers to tackle those harms, and that those harms should incur enforcement action in the way that any other criminal behaviour would.

Amendment 136 in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville—I know she has had to leave, or else she will not get her last train home—would require a senior police officer to conduct a welfare assessment before considering if enforcement action is proportionate. I can assure the Committee that, in making decisions around the seizure of property, the police will need to take into account welfare considerations and vulnerabilities, and, where possible, should liaise with local authorities regarding suitable accommodation, just as they currently do.

Therefore, we do not think that this amendment is necessary. The police already give full consideration to their responsibilities under their public sector equality duty, and to the potential impact that issuing a direction to leave, or utilising powers of arrest and seizure, may have on the families involved, before they reach a decision on taking enforcement action. Each case will be dealt with on its own merit and according to the evidence.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt. Perhaps at this point the Minister could say what is meant by not gold-plating these considerations, because it gives the impression that, ultimately, they can be put to one side.

Domestic Abuse Bill

Baroness Lister of Burtersett Excerpts

Report stage
Wednesday 17th March 2021 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

88: Clause 73, page 58, line 19, at end insert—
“( ) section (Controlling or coercive behaviour in an intimate or family relationship),”Member’s explanatory statement
This amendment is consequential on the proposed new Clause in the name of Baroness Lister of Burtersett that amends section 76 of the Serious Crime Act 2015.

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Moved by

[Baroness Lister of Burtersett]

91: Clause 73, page 58, line 32, at end insert “and any strategy to end violence against women and girls adopted by a Minister of the Crown.”
Member’s explanatory statement
This amendment ensures that statutory guidance issued alongside the Domestic Abuse Bill takes into account any violence against women and girls (VAWG) strategy adopted by the Government, so that efforts to prevent and address domestic abuse are linked to integrated and coordinated responses to tackle VAWG.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, I speak to Amendment 91 in my name and those of the right reverend Prelate the Bishop of Gloucester and the noble Baroness, Lady Hodgson of Abinger. I am grateful for their support on this important issue. I am also grateful to the End Violence Against Women Coalition, which has helped with the amendment.

The amendment is very modest. It simply ensures that the statutory guidance on the Bill takes into account any violence against women and girls strategy adopted by the Government, to ensure that efforts to prevent and address domestic abuse are co-ordinated and integrated with wider VAWG strategies.

We have retabled this amendment on Report, in part because it rather got lost in debate on the lead amendment it was grouped with in Committee, but more importantly because we were at a loss at to why the Government did not feel able to accept an amendment which does no more than give legislative underpinning to what they claim is their intention.

We are extremely grateful to the Minister, who found time to see us and for the frank discussion we had. However, we came away even more puzzled because it seemed that we agreed on all the arguments relating to the amendment other than the need for the amendment itself.

The amendment has the support of the domestic abuse commissioner-designate and is also one of a small number of amendments that the EHRC have briefed in support of. The latter points out the overlap between domestic abuse and many other forms of VAWG, such as rape and sexual assault. They cite statistics that show that most rapes and sexual assaults are carried out in the context of domestic abuse. Indeed, a Home Office fact sheet on the domestic abuse commissioner states:

“We believe that there is merit in introducing a Domestic Abuse Commissioner specifically to focus on the issues affecting victims of Domestic Abuse. However, we know that a large proportion of sexual violence occurs within a domestic context, and the Commissioner will play an important role in raising awareness and standards of service provision across all forms of Violence Against Women and Girls.”


Why is there resistance to an amendment that simply reflects this position?

The Home Office statement shows that it is quite possible to make an explicit link with to VAWG without in any way diluting the focus on domestic abuse. Moreover, the Minister acknowledged in Committee that

“domestic abuse is, at its core, a subset of wider crimes against women and girls”,—[Official Report, 10/2/21; col. 427.]

which is not to deny that men and boys can also be victims. So in the interests of coherence and a holistic approach, it surely makes sense for the statutory guidance explicitly to reflect that.

The Minister also said in Committee:

“We know that victims’ needs must be at the centre of our approach to domestic abuse.”—[Official Report, 10/2/21; col. 425.]


As the Minister well knows, as evidenced by the lived experience of organisations on the ground, in practice those needs all too often cannot be neatly separated out into domestic abuse and other forms of VAWG. Again, this needs to be recognised in the statutory guidance. Yet in Committee, the Minister said that the amendment was not necessary and that Clause 73(3), which the amendment seeks to augment, is sufficient. That really was her only argument against it. The existing subsection, which was inserted by the Government in response to calls for an explicitly gendered approach, requires account to be taken, so far as is relevant, of the fact that the majority of domestic abuse victims are female, but it says nothing about violence against women and girls as such. The amendment would complement and strengthen the subsection.

The EHRC certainly does not agree that the existing clause is sufficient, nor do the many organisations on the ground working with women subjected to violence in its many forms, including domestic abuse. I will not repeat their wider arguments about the separation of the domestic abuse and VAWG strategies that I made in Committee, but it is important to understand the sector’s concern about this because it provides a context for the amendment. Indeed, EVAW and 11 other specialist organisations with expertise in supporting survivors of domestic abuse and other forms of violence against women wrote to the Minister last week urging her to support the amendment. Please do not underestimate the message it is sending out to these and other stakeholders, which are already very unhappy about the separation of the strategies. If the Government continue to hold out against this minimalist amendment, I am pretty sure that it will be taken as evidence that, for all their fine words, they will not pursue an integrated approach to violence against women and girls and domestic abuse. Symbols matter, and refusal to accept the amendment will be seen as a pretty negative symbol.

Even if the sector’s fears are unfounded, there is another reason why the amendment is necessary. We all appreciate the commitment of the noble Baroness, Lady Williams, and Victoria Atkins, the other Minister with responsibility for these matters, but Ministers do not remain in their positions forever. Indeed, I have already read speculation that the latter might be heading for the Cabinet. Future Ministers might not share their understanding of the symbiotic relationship between VAWG and domestic abuse. Requirement by law of explicit reference to that in the guidance would future-proof the guidance. Moreover, it would help to ensure compliance with Article 7 of the Istanbul convention, which requires

“a holistic response to violence against women”,

which of course includes domestic abuse.

At a time when public attention is rightly focused on violence against women in the public sphere, it is all the more important that the Bill, through the statutory guidance, makes explicit the link between domestic abuse and the many forms of violence against women that are even more prevalent in the private domestic sphere. It is not too late for the Government to accept this extremely modest amendment, or to signal that they will bring forward their own amendment at Third Reading. There really is no convincing argument against it and recent distressing events have strengthened the arguments for it. I beg to move.

[Baroness Hodgson of Abinger (Con) [V]]

My Lords, I shall speak in support of Amendment 91, to which I added my name, and which has been so ably moved by the noble Baroness, Lady Lister. I note my interests in this area as declared in Committee.

I too am very grateful to my noble friend the Minister for finding the time to talk to us about this. However, as I have said before, it is important that the VAWG strategy is referenced in the Bill, because separate domestic abuse and violence against women strategies, albeit complementary ones, will not be more effective than an integrated one. As we have already heard, it is something that a number of organisations working in this space have highlighted as a gap that is very important to address, especially in the light of the events of this past week. This short amendment would neatly remedy this issue, and I hope that the Minister will undertake to think again and accept it.

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[Baroness Williams of Trafford (Con) [V]]

My Lords, I start by acknowledging the comments of the noble Baroness, Lady Fox, on what Helena Edwards said—that is something upon which we should all reflect.

As the noble Baroness, Lady Lister, said, Amendment 91 relates to the linkages between domestic abuse and wider violence against women and girls. The Government are working on two new strategies, due to be published later this year, the first of which is a violence against women and girls strategy, replacing the old one, which expired in March 2020, followed by a complementary domestic abuse strategy. The amendment seeks to ensure that any guidance issued under Clause 73 of the Bill takes into account

“any strategy to end violence against women and girls adopted by a Minister of the Crown.”

The main concerns raised by proponents of the amendment centre around the Government’s decision not to produce a single, integrated violence against women and girls strategy that includes domestic abuse. This has wrongly been interpreted as an attempt to downplay the gendered nature of domestic abuse.

It is irrefutable that, while anyone can be a victim of domestic abuse, it is a crime of which the majority of victims are women. We recognise the gendered nature of domestic abuse, and the Bill acknowledges this in Clause 73(3), which provides:

“Any guidance issued under this section must ... take account of the fact that the majority of victims of domestic abuse ... are female.”


The draft guidance we have published does just that. We have been clear that the two strategies will complement each other and that the Government fully recognise that domestic abuse is a subset of violence against women and girls.

The Bill is focused on domestic abuse, and for good reason. Domestic abuse is one of the most common crime types, with 2.3 million victims a year, and the cause of tackling it and providing better support and protection for victims is deserving and indeed requires its own Bill, commissioner and strategy. We are producing a separate but complementary domestic abuse strategy in order to continue working on the excellent provisions created by the Bill because, as I have said, domestic abuse deserves this unique consideration.

I reiterate that, in producing a discrete domestic abuse strategy, the intention is to create space to focus on this high-harm and high-prevalence form of VAWG, while allowing space for other VAWG crimes to be considered as part of the VAWG strategy. The two strategies will work together to drive down VAWG crimes and their impact on society, and both strategies will continue to recognise the gendered nature of these crimes. As I have said, the strategies will complement each other and share much of the same framework and evidence.

We recently concluded the call for evidence for the violence against women and girls strategy, through which we also welcomed evidence on domestic abuse. However, as I said in the previous debate—I now have an updated figure—we have reopened the call for evidence for two weeks to allow a further opportunity for everyone’s voice to be heard. As of last night, the call for evidence had received just shy of an incredible 137,000 responses, and I hope that we will now receive many more.

As such, we fully acknowledge the direct link between domestic abuse and violence against women and girls, but the Government do not think that this amendment is necessary or appropriate for a domestic abuse Bill. The Bill already recognises the gendered nature of domestic abuse, and we do not think that a reference to a separate VAWG strategy is directly relevant to the Bill. If it were to refer to any strategy, it should be the planned domestic abuse strategy, but, for the avoidance of doubt, I am not advocating an amendment to this effect.

I do not think that I have persuaded the noble Baroness; I hope that I have and that she will be content to withdraw her amendment.

[Baroness Lister of Burtersett (Lab) [V]]

I thank noble Lords and all who spoke in support of this amendment. I was puzzled by the intervention of the noble Baroness, Lady Fox, because most of it did not seem to be relevant to this amendment at all. I am even more puzzled and disappointed by the Minister’s response—I think she knew very well how I would respond. As far as I can see, the arguments have not moved on since Committee, whereas our argument has.

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Moved by

[Baroness Lister of Burtersett]

93: Clause 74, page 59, line 23, after “section” insert “(Controlling or coercive behaviour in an intimate or family relationship) or”
Member’s explanatory statement
This amendment is consequential on the proposed new Clause in the name of Baroness Lister of Burtersett that amends section 76 of the Serious Crime Act 2015.

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Moved by

[Baroness Lister of Burtersett]

96: Clause 75, page 59, line 35, after “section” insert “(Controlling or coercive behaviour in an intimate or family relationship) or”
Member’s explanatory statement
This amendment is consequential on the proposed new Clause in the name of Baroness Lister of Burtersett that amends section 76 of the Serious Crime Act 2015.