Nationality and Borders Bill

Lord Davies of Stamford Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the United Kingdom has a long history of being open to the world. That includes providing sanctuary to people fleeing conflict, tyranny and oppression. There are countless historical examples of this country extending the hand of friendship to men, women and children in their hour of need and several Members of your Lordships’ House are alive today only because of that.

However, I will not delay the House with a history lesson, not least because this is not only a matter of history; it is also about what we are doing right now. Since 2015, we have resettled more than 25,000 people, half of whom were children, and our family reunion scheme has seen a further 39,000 people settle in the UK. Over 88,000 British national (overseas) status holders and their family members have chosen to apply for the BNO route, with over 76,000 granted so far.

Some 15,000 people were airlifted out of Afghanistan to the UK from mid-August under Operation Pitting, over and above the earlier transfers of around 2,000 locally employed staff and their families under the Afghan relocations and assistance policy. Our Afghan citizens resettlement scheme aims to welcome a total of 20,000 people.

Against that background, and right at the outset, I want to make two important points. First, providing sanctuary and refuge is not inconsistent with a fair asylum and immigration system; such humanitarian measures are possible only if we have a fair asylum and immigration system, capable of providing both welcome and integration. Secondly, an approach to immigration which refuses admission to anyone under any circumstances is obviously inhumane. However, the corollary must also be rejected. Being humane does not mean allowing everyone in, and I remind the House that there are some 80 million displaced people around the world today.

I will start with a basic reality: the current system is not working. It is not working for those people who genuinely need protection and refuge. Those in genuine need and in places of conflict should be our priority, not those who are already in safe countries such as France, Belgium and the Netherlands. Nor is the current system working for the people of this country—so the status quo is not a viable option.

That is hardly surprising, as there have been radical changes since the current system was put together. The prevailing legal framework was not designed to cope with the type—and certainly not the scale—of the mass migration we have seen in recent years. But some things have not changed: the British public remain generous and kind and there is no question about that.

However, that generosity and kindness does not mean that they are willing to accept uncontrolled immigration—and nor should we expect them to. The truth is that we cannot hope to properly control our borders unless we address illegal entry. That requires comprehensive reform of the asylum system and this Bill is fundamental to delivering the change that is so badly needed.

Some people—and I respect their honesty, although I think they are profoundly misguided—are opposed to any form of immigration control whatever. That position is intellectually coherent, albeit pragmatically incoherent. But for everyone else, who recognises that we have to control our borders, we must also recognise the reality that this means addressing, tackling and reducing illegal entry.

Too many people profess a desire to control our borders but then, when it comes to putting that professed desire into practice, oppose any and every measure designed to do so. That is what one might call a Marxist approach to the problem—not Karl, but Groucho:

“Whatever it is, I’m against it.”


Because, if you will the ends, you cannot oppose all the means, all the time. So I look forward to contributions to this debate which, if they disagree with the Government’s proposals, set out precisely what steps should be taken to achieve the objective of controlled immigration that many profess to support.

When we talk about illegal entry, the illegality does not begin—and certainly does not end—with the migrants themselves, who have often been exploited by criminal gangs. These days, illegal entry is a business. It is run by criminals, who exploit vulnerable people and profit—in the form of hard cash—from human misery. It is a growing business. There were more than 25,000 irregular arrivals in 2021—a fivefold increase over 2018.

Your Lordships have seen the TV pictures. We know all too well that these crossings are often dangerous and sometimes fatal. The loss of those 27 lives in the Channel in November laid bare in devastating fashion why we must do everything possible to make this route unviable. We must reduce the pull factors which lead people to leave other safe countries and risk drowning.

But beyond this, the system is under strain in terms of numbers, time and cost. In the year to March 2021, the UK received more than 33,000 asylum applications, which is more than at the height of the European migration crisis in 2015-16. Because of Covid, efforts to move people through the system, and to remove them from the country, have both been slower.

As a result, waiting times are on the rise. At the end of June last year, there were more than 120,000 cases categorised as “works in progress” in the asylum system, including cases awaiting appeal decisions and some 40,000 failed asylum seekers who are subject to removal from the UK but have not yet left or been removed. This includes foreign national offenders who have been found guilty of serious crimes such as murder, rape and child sex offences. The cost is also considerable. The asylum system now costs more than £1 billion a year to run. So, on any reasonable analysis, the status quo is not sustainable. An overhaul is long overdue. Inaction is simply not a responsible option.

This Bill has three key objectives: first, to increase both the fairness and the efficiency of our system; secondly, to deter illegal entry to the UK; and, thirdly, to remove more easily from the UK those with no right to be here. I shall speak to each of these objectives in turn.

First, it is high time we took action to make our immigration and asylum system fairer and more efficient. Again, fairness and efficiency are not inconsistent. An inefficient immigration and asylum system is fair to nobody. So we will introduce a new form of temporary permission to stay in the UK for those who do not come directly to the UK or claim asylum without delay once here, but who have none the less been recognised as requiring protection. This status will afford only basic entitlements, while still meeting our international treaty obligations.

We will establish accommodation centres for both asylum seekers and failed asylum seekers who require support, so that they have simple, safe and secure accommodation to stay in while their claims and returns are processed.

A new and expanded one-stop process will ensure that asylum and any other protection matters are made and considered together, ahead of any appeal hearing. This will prevent repeated, last-minute claims that are often devoid of legal merit but are designed to frustrate proper removal, with the result that people with no right to be here are still here months and even years later.

At the same time, we will expand provision of legal aid to support individuals who have been served with priority removal notices, so that all relevant issues can be raised at one time. We will also set out in primary legislation for the first time the circumstances in which confirmed victims of modern slavery will receive temporary leave to remain. This will give them, for the first time in domestic primary legislation, clarity on their entitlements.

[Lord Davies of Stamford (Lab)]

I thank the Minister for giving way for just a moment. On the important matter of accommodation centres, who will be responsible for assigning a particular place or centre to an immigrant or failed immigrant? Will it be possible for the applicant or failed immigrant to leave an accommodation centre, or will he or she essentially be forced to remain in that centre?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord. I am setting out the general principles. I have heard his question and my noble friend Lady Williams will deal with both those points in her wind-up speech.

I said that confirmed victims of modern slavery will receive temporary leave to remain. We will be clear through the Immigration Rules and guidance what “temporary” means in this context. Temporary leave to remain will be provided for any length of time necessary to enable victims to engage with authorities to help bring their exploiters to justice. Taken together, these measures will ensure protection for those in need, while weeding out those who seek to abuse this route. We will also bring in a range of age assessment tools, in line with many countries around the world, to ensure that we protect children in need of support, while rooting out adults who masquerade as children under 18. We will also reform nationality law to make it fairer and to address some historic anomalies.

Secondly, as well as making the system fairer and more efficient, we need to send a message that illegal entry will not be tolerated. In the Bill, criminals who engage in people smuggling will face new life sentences. The maximum penalty for entering the country illegally will rise from six months to four years in prison.

We are also providing Border Force with additional powers: to stop and divert vessels suspected of carrying illegal migrants to the UK and return them to where their sea journey to the UK began; to search unaccompanied containers located within ports for the presence of illegal migrants using them to enter the UK; and to seize and dispose of vessels that are intercepted. We will also crack down on other dangerous routes. Drivers will face a fine for every illegal entrant concealed in their vehicle, regardless of the steps that they have taken to secure that vehicle. We will use the electronic travel authorisation scheme, similar to what many noble Lords will recognise—the USA’s ESTA scheme—to stop the entry of those who present a threat to the UK. We will make it possible to remove someone to a safe third country, where their asylum claim will be processed.

Thirdly, failed asylum seekers and foreign criminals cannot be allowed to stay here indefinitely. Such an approach would rightly be unacceptable to the public. It would also undermine confidence in our immigration system. Ultimately, the system depends on the public’s confidence in it. When someone has no right to be in the UK, it is entirely appropriate for the Government to seek their removal. So the Bill contains a number of measures designed to strengthen our ability to do that.

We will confirm that the UK may remove people, including foreign criminals, to a safe third country. Expedited processes will enable the rapid removal of those with no right to be here, while visa penalties could be imposed on countries that do not co-operate on removals. We will also ensure that failure to comply with the asylum or removal process without good reason must be considered in deciding whether to grant immigration bail. We will widen the window in which foreign national offenders can be removed from prison under the early removal scheme for the purposes of removal from the UK.

We will also make a change to the long-standing power—and it is of long standing—to deprive someone of British citizenship in the most serious incidences of terrorism, war crimes or fraud to ensure that the power can still be used when, because of exceptional circumstances, it is not possible to notify the person of that decision. But that is not a policy change: the grounds on which that decision can be taken and the statutory right of appeal from it remain unchanged.

Before I finish, I want to emphasise a point that that should need no emphasis but I am going to emphasise it anyway. We remain fully committed to our international treaty and other obligations, including the refugee convention, the European Convention on Human Rights and international maritime law.

The principle behind this Bill and the New Plan for Immigration is simple. It is based on fairness—first and foremost to those fleeing persecution, of course, but fairness also to the British public, on whose support the legitimacy of the system ultimately relies. Access to the UK’s asylum system should be based on need, not on the ability to pay people smugglers, and no one should be able to jump the queue and place themselves in front of people who really need our help. There is no overnight fix. These are long-term problems, but the need for reform could not be clearer. The public are not prepared to accept the current situation, and neither are the Government. Through this Bill, we will deliver a system that works in the interests of the UK. We will keep our doors open to the highly skilled and to people in genuine need, and we will break the business model—because that is what it is—of the evil people-smuggling gangs.

I end on a more personal note. I need no persuasion as to the importance of asylum or the benefits of immigration. There are some in this House who can trace their family’s presence in this country back many centuries; in some cases to a date even before this House first met. Many others, like me, are descended from, or are, more recent arrivals. I hope that my family and others like us have contributed to, as well as benefited from, this country. I want to live in a country where others, yet to arrive, can similarly contribute positively to the UK. My background makes me all the more aware of the importance of providing sanctuary and refuge. I want others to have the opportunities that my family has had, and from which others in the Chamber today have also benefited, but that will not happen, at least not in any fair and proper manner, unless and until we reform the current broken system.

I end where I began. Providing sanctuary and refuge are not only not inconsistent with a fair asylum and immigration system; they are only possible under a fair asylum and immigration system. For those reasons, I beg to move.

--- Later in debate ---

[Lord Davies of Stamford (Lab)]

My Lords, it has been a most interesting debate. I was rather surprised to hear the noble Lord, Lord Hodgson, refer to a consensus emerging on this subject this afternoon. There has certainly been no consensus in the debate I have listened to; rather, a set of very different, diametrically opposed views based on different moral assumptions. There is nothing inherently wrong about that, but I think we have discussed the matter pretty comprehensively.

It is quite difficult to draw clear conclusions as to the central indicators thrown up by a debate such as this, but there are one or two things that stand out. First, it is very important that we have a policy that is humane, that we can be proud of and that we can defend around the world because it clearly is humane. Secondly, it follows that we have to make sure that we do not split families. It seems to me that there should be an overriding criterion that we should do everything possible to keep families together. That does not happen at the present time, but it should. Thirdly, it is very important that the policies we come up with are coherent—in other words, they are not in contradiction one with the other. We should not have a situation in which you win on the left-hand side but lose on the right-hand side at the same time.

There are some very peculiar things about our law at the present time, not least that you have to be in this country already in order to make an application for asylum here. That does not make any practical sense at all to me, because it is impossible to come into this country and be here for five seconds without being an illegal immigrant, breaking the law and risking a four-year prison sentence. Therefore, in my view, that has to be changed. We must change that system to have a policy that we can reasonably defend.

It is also terribly important that what we say is said in good faith. If, for example, we want to argue that we do not have any space for immigrants, it is no use, in my view, using the argument, as happens at the present time, that there are just terrible delays at the Home Office and we cannot do anything about it, or that there is just a large queue of people waiting to be looked after. That is not the case and it should not be used as an excuse. We instead should make sure that the Home Office becomes a bit more efficient. Efficiency in government is a good thing in principle, and there must be ways of making sure that you can reduce the time taken to process applications in the Home Office, or indeed other ministries.

We really must be prepared to get rid of and replace the extraordinary system we have at the present time under which you have to be resident here when you make an application for asylum, which is surely unnecessary—and incredible. If you get rid of that, you have to ask yourself what you would do instead. I think that means that you take these applications as they come, make sure that you maintain a minimum standard for response times and make sure that your officials live up to that by accepting targets and perhaps receiving bonuses that are subject to achieving the targets, or that sort of thing. That is and ought to be a part of good government in many areas.

Finally, a good solution that has elements of all these things would be for the Government to set up some office in different parts of the European Union—the obvious places would be Dunkirk, Calais and Boulogne-sur-Mer—where officials of the Ministry of Justice or the Foreign Office could examine applications, come to a preliminary conclusion, discuss matters with the applicant where necessary and make some progress, which is not happening at the present time, in the solution of individual cases.