Border Security, Asylum and Immigration Bill

Baroness Ludford Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, this is an interesting group with two distinct parts. I must confess that I am not immediately drawn to Amendments 184 and 185 in the name of the noble Baroness, Lady Chakrabarti. They would, in effect, incorporate the refugee convention into the domestic law of the UK, as identified by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. I therefore cannot accept that, given the unhappy experience that we have had of the Human Rights Act and the unpredictable effect of incorporating an international convention into domestic law. I am not tempted to repeat that mistake. I therefore support the Government in their sensible and inevitable rejection of the amendments that the noble Baroness proposes.

I shall not be drawn into a broader conversation about the suitability of the refugee convention, as the noble Lord, Lord Faulks, and the noble Baroness, Lady Fox of Buckley, were. It is clearly an interesting and important debate, which builds on comments made by the noble Lord, Lord Macdonald, about whether, in principle, a well-founded fear of persecution is the correct test for the grant of asylum. These are important and justifiable discussions, but a debate on these amendments in Committee is not the place to have them.

All this takes me to the wording of my Amendment 203I. I invite Members of the Committee who have a copy of the amendment just to look at it for a moment. This amendment emulates the one laid by the noble Baroness in seeking to revise the provisions of earlier statutes. It would amend Section 31 of the Immigration and Asylum Act 1999 by inserting a new subsection (2). This would provide:

“For the purposes of subsection (1) a person is not to be taken to have come directly to the United Kingdom from a country in which their life or freedom were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life or freedom were not so threatened”.


That provision accurately reflects the provisions of Article 31 of the refugee convention.

It is clear that, in 1951, the state parties were of the view that, for an appropriate claim for asylum to be made, it must be made by someone who had come directly from an area where their life or freedom were threatened. The stretching of the term “come directly” to include spending a number of years in another safe country where they could have claimed asylum is a matter of domestic law, which this Parliament is able to revisit. It ties in with my Amendment 203J, which the Committee will recall we debated on 3 September. It is clear that one option open to the Government in creating a disincentive effect is to go back to the original intended wording of the refugee convention.

Amendment 203I is a stand-alone provision because it protects the rights of the United Kingdom as a state party to the convention. It is intended to avoid the deeply regrettable state of our domestic law in respect of this provision of the refugee convention, which has gone far beyond what our international obligations actually are. If noble Lords are worried, as some may be, about our possible repudiation of the refugee convention by some future Government and/or a sizable fraction of the public, they should support measures that reinforce and restate the United Kingdom’s rights as a state party under the refugee convention, and they should align domestic law with the international law.

As Professor Ekins, professor of constitutional law at Oxford, made clear in his 2019 article in the book The Political Philosophy of Refuge, case law has rendered the right afforded to a nation, as stated in Article 31, effectively nugatory. This undercuts self-government and warrants condemnation, I submit, from this Parliament. But its consequences are broader than that, in that, as a consequence, it encourages hundreds of thousands of refugees to become economic migrants, leading to the deaths of potentially thousands at sea; the vast extension of the people trafficking industry, with all the horrors that that entails; and the exposure of European peoples, especially in Greece and Italy, to an ongoing stream of new arrivals, few of whom will ever return home.

The state’s right to exclude asylum seekers and some refugees is an important power that protects the common good of the political community. It preserves the distinction between citizen and non-citizen, on which decent social life and effective self-government depends. The commitments that the states undertook in 1951 in the convention were carefully framed to require refugees to be treated well but not to expose states to an open-ended liability to accept persons fleeing persecution or war, let alone poverty. This amendment restores the meaning—the correct meaning on any reading—of Article 31 of the refugee convention. I commend it to the Committee and the Government.

[Baroness Ludford (LD)]

My Lords, I apologise for not being here right at the beginning. I hope no one will object if I none the less intervene, as I was here for the previous discussion. I think I understand the motivation behind Amendment 184, in the name of the noble Baroness, Lady Chakrabarti. It would not perhaps be regarded by her as necessary if it were not for the nibbling away at the refugee convention in recent years.

I must confess that I am not attracted by the solution of the noble Lord, Lord Faulks, which is to say that we will have a complete disconnect between being a party to the refugee convention—sort of parking it over there—and saying that in domestic law we can do whatever we like. Sorry, I do not wish to parody what he said, but he was basically saying that we will do our own thing in domestic law and Parliament will decide what we want to implement. I am not sure that that really honours being a party to the refugee convention.

I am not quite sure whether my legal analysis matches that of other contributors to this debate but, as I read it, the amendment of the noble Baroness, Lady Chakrabarti, does not seek incorporation in the way that the ECHR was incorporated through the Human Rights Act. It is a bit stronger than the assimilation that we have had, such as in the Conservatives’ 1993 immigration appeals Act, which absorbed some of the definitions and wording of the refugee convention. Perhaps some kind of rather British compromise is going on.

What has happened in recent years is that there has been an attempt to ignore aspects of the refugee convention. I am sure the noble Lord, Lord Murray, is more expert on the refugee convention than I am, but I cannot really follow his assertion that his Amendment 203I would restore the correct reading or interpretation of Article 31. I do not know where he gets that from. Article 31 is worded as it is; it says anyone “coming directly”. It does not incorporate any kind of wording like that in his amendment. It just says someone “coming directly”; it does not say that they have not come directly if they have passed through or stopped in another country. I have a vague recollection that there is case law that says if someone passes through rather quickly—there are probably other qualifications, but with no intention to stay and not staying several years somewhere—then that would be ignored. That would be de minimis and it could still be concluded that they had come “directly” to the UK. I do not think the definition of “directly” has to be absolutist. No doubt the noble Lord will correct me, but I do not understand where this assertion that he is restoring the correct interpretation of the refugee convention comes from.

Rather like with the ECHR, if there is a belief that the convention itself is wrongly worded or not fit for purpose—I do not agree with that interpretation of either the ECHR or the refugee convention—then we should attempt to get an assembly of the state parties to change it. Obviously, there are some people who want to pull out of the ECHR, which is something that I vehemently disagree with, but even going short of that and saying, “We can stay a member but we’ll just make sure that we subvert and undermine it”, seems disingenuous and even dishonest. Be up front: if you want to try to change the refugee convention or the European Convention on Human Rights then try to get all the parties together and attempt to do so, but trying to pretend that we belong but do not really want to implement the provisions seems the worst of all worlds.

For instance, it is true that Article 31 of the refugee convention refers to “illegal entry or presence” but that has morphed, in current terminology, into describing people as illegal—“illegal immigrants”, a term that I will never accept. People cannot be illegal. I prefer the term irregular entry, because if someone arrives, applies for asylum and is granted it, having been described as illegal seems an unfortunate beginning. I am stuck with the fact that the refugee convention uses that term, but it does not refer to the persons themselves as illegal, which is what has happened in modern political and media commentary, which I deplore, frankly. That is just an example. I would prefer the refugee convention to be changed to say “irregular entry and presence”, until it is illegal presence. Once they have been refused asylum and they need to leave, they then have a different status. Anyway, I digress slightly.

--- Later in debate ---

[Lord Harper (Con)]

Parts of the Act are still in force, obviously, but, if what the noble Baroness says were true, there would be no need to have her amendment. The fact is that, if you say that the courts can decide that the convention—as they interpret it—can override legislation, that is damaging. The world is a very different place now from what it was in 1951 when the convention was adopted. You have to reflect that by democratically accountable Ministers and legislators making decisions about how we interpret it in the modern era; that is how you strengthen the principles underpinning it, but in a way that works in the modern world. If you do not do that, you will just have more people thinking that the whole thing is nonsense and that we should pull out of it. Actually, I do not think that we should pull out of it—it needs work and it needs to be amended, but we also need to interpret it correctly. My noble friend Lord Murray’s amendment, which sets out a definition that is relevant in the modern world around people who pass through a number of safe countries then choose to come to the UK, is sensible; it would, I think, have the support of a large number of people in the United Kingdom.

In the end, the decision on whether that is the correct interpretation of the convention should, in my humble opinion, be taken by Ministers and by Parliament. It should not be taken by judges being able to insert their interpretation of the 1951 convention, as it was drafted for a very different world, and how they think it should be interpreted now. That would be a retrograde step and would not do what the noble Baronesses, Lady Chakrabarti and Lady Ludford, are trying to do. I think that they are frustrated that the public do not support the provisions of the convention and they are being chipped away at, but what the noble Baroness is proposing, supported by the noble Baroness opposite, would actually make things worse, not better. If the public think that the asylum system is not under any democratic control and that decisions are taken by courts, not accountable people, the system will become less supported by the public—not more—and the whole thing will unravel. If you believe in an asylum system, which I do, and you want to strengthen it, you have to allow democratic institutions to reflect the world in which we now live, not the world in which the convention was drafted. If you do that and make it a convention that is able to be interpreted in the modern world, you strengthen it and make it more likely to succeed than doing the opposite.

For those reasons, it would strike at the primacy of Parliament to put this into law, but it would also do something that I think, fundamentally, both noble Baronesses would not support: it would weaken public support for the asylum system, which, in the end, they will come to regret.

[Baroness Ludford (LD)]

Before the noble Lord sits down, I think that he is misrepresenting me, but I will not linger too long over that. I have absolutely nothing at all against, for instance, this Government wanting to go to Strasbourg to seek to change the wording of Article 8 of the European Convention on Human Rights —good luck with that—but it is also open to them to analyse, as I think they are doing, whether Article 8 on the importance of family considerations is being wrongly interpreted or implemented in British tribunals and courts. They are then completely able—I do not oppose this being done—to issue guidance to the court on the analysis, interpretation and application of Article 8. I am sure that there are similar articles of the convention where that could be done.

What I think the noble Lord, Lord Murray, is doing in his amendment is rewriting the refugee convention, which is a different matter. I am not up for rewriting things, but I am perfectly prepared to see guidance issued to the courts if they are overly generous or wrong in their interpretation. I certainly want precision and integrity in the law; if the noble Lord is trying to imply that I do not, I reject that.

[Lord Harper (Con)]

I had sat down but, given that the noble Baroness intervened on me, I will make a brief response since we have gone over the time—although that was largely to do with her rather than me.

I was not saying that the noble Baroness was in favour of imprecision; I was saying that it is about who decides what things mean. I think that Parliament should decide what they mean. It can keep the convention updated with the modern world, rather than courts doing that in a way that is not compatible with the views of the public. That is all I am saying; it would fundamentally strengthen the convention that we have signed up to and is likely to keep it in force for longer, with the support of the public. That is the thrust of my argument. I am content to leave it there.