Illegal Migration Bill

Debate between Baroness Lister of Burtersett and Lord Bishop of Gloucester

Report stage
Monday 3rd July 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I move Amendment 64 and will introduce Amendment 65. One is consequential to the other so I will take them together. I thank the right reverend Prelate the Bishop of Gloucester and the noble Baronesses, Lady Sugg and Lady Gohir, for their invaluable support, and Women for Refugee Women for all its work on the amendments.

The amendments do no more than restore the status quo ante by limiting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This aim is supported by the JCHR, Children’s Commissioner and many organisations.

The existing time limit represented a compromise put forward by the then Home Secretary Theresa May in response to your Lordships’ House voting time and again for the absolute exclusion of pregnant women from detention, as recommended in the government-commissioned review by Stephen Shaw, former Prisons and Probation Ombudsman. Shaw based his recommendation on what he considered to be the incontrovertible evidence of detention’s deleterious effects on the health of pregnant women and their unborn children. His verdict was referenced in a recent letter to the Times from, among others, the CEO of the Royal College of Midwives and the president of the Royal College of Obstetricians and Gynaecologists, calling on us to oppose the removal of the detention limits.

I still await an answer to the question I posed in Committee, citing an unanswered letter from the Independent Advisory Panel on Deaths in Custody to the Home Secretary. Has the Home Office

“carried out a full assessment of the risks linked to the indefinite detention of pregnant women”?—[Official Report, 7/6/23; col. 1494.]

Given that the limits on detention for pregnant women were introduced only seven years ago, and it has been admitted that very few have come over in small boats, there must surely be strong grounds for this change in policy. However, as the noble Baroness, Lady Sugg, exposed so skilfully in Committee, we have been given the flimsiest of justifications, lacking any evidential base. For example, in Committee the Minister declared that he was

“happy to repeat … that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes”.—[Official Report, 7/6/23; col. 1504.]

Could the Minister explain what the Government have in mind here? Are they suggesting that women might deliberately get pregnant to avoid unlimited detention or that people smugglers will be scouring refugee camps for pregnant women?

To be fair to the Minister, he tried to persuade us that pregnant women would be treated well on a case-by-case basis. But let us remember what Theresa May said in 2016:

“This new safeguard will ensure that detention for pregnant women will be used as a last resort and for very short periods”.—[Official Report, Commons, 18/4/16; col. 679WS.]


For a safeguard to be effective, it needs the backing of law. Discretionary case-by-case consideration is simply not enough to ensure the protection of women in very vulnerable circumstances. We can see this from what was happening before the time limit was introduced. Previous Home Office guidance stated:

“Pregnant women should not normally be detained”.


However, under this guidance, nearly 100 pregnant women were detained in 2014, with one-third held for over a month and four held for between three and six months. The gulf between policy and practice has been closed only with the implementation of the statutory time limit.

The Minister also insisted that pregnant women will be protected through categorisation as adults at risk level 3. Yet during the passage of the 2016 Act, the Government ultimately recognised that this approach provided insufficient safeguards. Why are they now arguing the opposite? The Minister further tried to reassure us by pointing out that

“it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days”

or that

“a writ of habeas corpus”—

which, as pointed out in Committee, is very limited in its application—could

“be made at any point”.—[Official Report, 7/6/23; col. 1505.]

But these are women who are likely to be very stressed and may already be traumatised by what they have been through, with damaging effects on their unborn baby. Twenty-eight days in detention is a long time, particularly in the context of a pregnancy.

How realistic is it to expect them to have to engage with the legal system for protection that they receive automatically now? If they did so, why would the Government want to spend time and money on what should be unnecessary legal challenges? This is all in the context of what the JCHR has described as a severe restriction on judicial supervision.

When we debated a similar amendment in Committee, not only did all those who spoke give it unequivocal support but I was aware of a number of noble Lords sitting on the Government Benches and the Cross Benches who were supporting the amendment in silent solidarity. That was quite something, given that it was well past midnight. While I feel passionately about the amendment, it is a very small cog in the wider wheel of the Bill. It is one which the Government could easily concede without undermining the Bill’s objectives, as much as I disagree with them. I very much hope that the Minister will remember what is at stake for pregnant women and their unborn children and will do the right thing today. I beg to move.

[The Lord Bishop of Gloucester]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who expertly outlined why the amendment is needed.

I will not repeat all the points made, but this is an issue of dignity for a highly vulnerable group. I will highlight one or two things that have been said. There is no evidence to suggest that the current 72-hour time limit on their detentions resulted in lots of pregnant women making the crossing. The Government have previously conceded that the adults at risk policy would not adequately safeguard pregnant women, and, in response, the 72-hour limit was brought in. We have research from prior to the introduction of this time limit that highlighted the inadequate healthcare for detained pregnant women. It is hard to believe that any healthcare arrangements would therefore relieve the stress of detention and the damaging impact on both a pregnant woman and her unborn baby.

We have already heard from the noble Baroness, Lady Lister, on the number of medical organisations and people who are opposed to removing the 72-hour limit. I join with them by strongly supporting this amendment, and I urge noble Lords to do likewise.

Nationality and Borders Bill

Debate between Baroness Lister of Burtersett and Lord Bishop of Gloucester

Committee stage & Lords Hansard - Part 1
Thursday 27th January 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak to Amendment 13 in my name. I thank the noble Lord, Lord Alton of Liverpool, the noble Baroness, Lady Stroud, and the right reverend Prelate the Bishop of Durham—who cannot be here today—for their support. I support the other amendments in this group. I am grateful, too, to the Project for the Registration of Children as British Citizens, of which I am a patron, and to Amnesty International UK, for their help. Once again, I pay tribute to them for their continued work to promote children’s citizenship rights.

Essentially, the new clause would ensure that children are not excluded from their right to citizenship by registration by unaffordable fee levels, well above the cost of administering that right. It will also require action to raise awareness of this right.

It feels a bit like Groundhog Day. I have lost count of the number of times we have raised this issue in your Lordships’ House. Indeed, we are now known as “Terriers United”, although I do not think that all the terriers are able to be present today. On our last outing, during debate on the then Immigration and Social Security Co-ordination (EU Withdrawal) Bill of 2020, I warned the Minister that we would be snapping at the Home Office’s heels until we achieved justice for this vulnerable group of children.

I will recap the arguments briefly. We are talking about a group of children who were either born here to parents—neither of whom was, at that time, British or settled—or who have grown up here from an early age and have rights to register as British citizens. A combination of factors, notably the exorbitant fee of more than £1,000—£640 more than the most recent stated cost of administration—lack of awareness of the need to register, and the difficulties faced by local authorities with regard to looked-after children, have resulted in thousands of children being denied that right to British citizenship, even though it is theirs. A High Court judgment, to which I shall return, noted the mass of evidence. As a consequence, many children born in the UK feel alienated, excluded, isolated, second best, insecure and not fully assimilated in the culture and social fabric of the UK.

When we last debated this issue, as part of an amendment calling for a review of the barriers to registration of the right to citizenship, the Minister said:

“I completely acknowledge the points that the noble Baroness makes about citizenship costs; I will not tell her that you do not need citizenship to live here, because your Lordships will not accept that sort of answer.”


Quite right. I trust that there will be no attempt to revive such arguments today. Instead of trying to combat our arguments, the Minister proposed a “task-and-finish activity”. This would involve discussion of the issues in the wider context of societal cohesion and integration, which, sadly, will suffer as a result of this Bill. She then said that she would

“think about how we can then bring that back to the House”.—[Official Report, 5/10/20; cols. 429-30.]

Well, we had one initial meeting. It was very constructive, but it did not really address the substance of the withdrawn amendment, and nothing came back to the House.

In the meantime, there has been a significant development: the Court of Appeal upheld the High Court’s judgment which had found the fee unlawful because of the Home Office’s failure to take account of the best interests of children under Section 55 of the Borders, Citizenship and Immigration Act. It is worth noting a few points from the Court of Appeal’s judgment. First, it spelled out:

“There is no issue but that the recent and current levels of fees have had a serious adverse impact on the ability of a significant number of children to apply successfully for registration.”


It noted that payment of the fee would involve “unreasonable sacrifices” for those on low or middle incomes and, in the case of the children of lone parents on benefits,

“it is difficult to see how the fee could be afforded at all.”

Secondly, it underlined the importance of citizenship. Both these points, it said, were

“not disputed by the Secretary of State.”

Thirdly, and crucially, it said that, because

“no other consideration is inherently more significant than the best interests of the child”,

the Home Secretary

“must identify and consider the best interests of the child … and must weigh those interests against countervailing considerations.”

The judgment gave short shrift to the frankly pathetic Home Office argument that the debate on the fees initiated by Members of both Houses constituted consideration of children’s best interests. The chutzpah of trying to put that argument takes my breath away; anyway, the court would have nothing to do with it.

The case was heard by the Court of Appeal in October 2020 and the judgment was given in February 2021. The Home Office chose not to appeal against the best interests judgment yet, nearly a year later, it still has not published the outcome of the best interests review required by that judgment. However, because of a separate appeal on a different point of law to the Supreme Court in the name of PRCBC, of which I am a patron, and O, whose case it was, judgment on which is still awaited, Ministers now argue that publication of the best interests review must await that judgment. Why, given that the judgment has nothing to do with the best interests review?

As it happens, I understand that the judgment will be given next week. Can the Minister therefore commit to publishing the outcome of the best interests review swiftly following that judgment, and certainly before Report? If not, why not? The longer the continued wait, the more children will be denied their right to citizenship because of the level of the fee. This cannot be right. Please do not use the Supreme Court’s irrelevant judgment as an excuse for rejecting this amendment. These children cannot afford to wait any longer. Every month of delay is another month of exclusion and alienation from British society. The terriers are growing very impatient.

[The Lord Bishop of Gloucester]

My Lords, I will speak on Amendment 13 on behalf of my noble friend the right reverend Prelate the Bishop of Durham, who sadly cannot be in the House until later today. He wishes to declare his interests in relation to both RAMP and Reset, as set out in the register. The following words are his, but I will say that I wholeheartedly agree with every one of them.

My interest comes from my ongoing engagement in this House with issues concerning children and ensuring that their best interests are central to legislation. The Government should be doing everything they can to ensure that all children in the UK have the opportunity to thrive. We should be working to remove barriers that they may face in seeking to reach their full potential. The current British citizenship registration fees create a barrier for many children to being and feeling fully part of society.