Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

We are country with a proud reputation of accepting refugees. Unaccompanied children do not just leave their country of origin for anything other than exceptionally dire circumstances. We should be protecting them, and removing Clause 2(7) is a start in the right direction.

[Lord Cashman (Lab)]

My Lords, I speak in favour of the amendments in this group, including my Amendment 8; I thank the noble and learned Lord, Lord Etherton, for adding his name to it. My amendment deals specifically with Clause 2(4) and would include persecution of a person on the basis of gender, sexuality and gender identity for the purposes of the third condition under which a person could be removed. However, I wish to now speak against Clause 2 and the duty to deport.

As we have heard from other noble Lords, the Bill seeks to give unprecedented powers to the Home Secretary to deport people without even a fair hearing of their case. The Home Secretary is in fact compelled to carry out that duty, even when it conflicts with human rights protections. The Bill seeks to limit the circumstances in which legal challenges could prevent a removal and allows the Home Secretary to add or remove countries to the list of so-called safe countries. This is even more worrying, looking at Schedule 1. At present, four of the countries on that list are not signatories to the UN convention, and some may not even have a functional asylum system. I will come back to this later on a further grouping but, if a person were deported or returned to most of the countries on the list in Schedule 1, they would face discrimination on the grounds of their sexual orientation or gender identity. Nigeria is one that springs to mind.

Without the requirement to make individualised assessments about whether it is safe to remove a person seeking asylum, and in providing very limited opportunities for individuals to present evidence of the risks that they could face, there is a real concern that many refugees will be deported to a country where their safety is at risk, or returned to their home country where their life could be threatened again, as I have said. The refugee convention makes it clear that return is prohibited to any country where a refugee could face persecution and not just their own.

I return now to the thinking behind my own amendment. In passing through a so-called safe third country, I refer to the internationally accepted definition of a refugee, which makes reference to five possible grounds for persecution: race, religion, nationality, membership of a particular social group, or political opinion: UN General Assembly 1951, page 137. These grounds are also recognised as covering persecution on the basis of sexual orientation or gender identity and gender-based human rights abuses.

Such examples also illustrate that persecution may happen where the state is not itself the perpetrator. Although some definitions have in the past required this, it is not universal. I believe it is therefore right to expand within the Bill the acceptance of individuals becoming refugees both when persecution is perpetrated by the state and where there is a failure of the state to provide protection against persecution by others. On that basis, I commend my amendment to noble Lords.

[Baroness Ludford (LD)]

My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?

The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention, under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.

I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.

The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.

To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.