Nationality and Borders Bill

Debate between Lord Etherton and Lord Green of Deddington

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Green of Deddington (CB)]

My Lords, I will not move Amendment 76 and will consider the Minister’s comments on it.

[Lord Etherton (CB)]

My Lords, I am extremely grateful to the Minister for battling so valiantly in relation to all the points that have been raised, and am extremely grateful for all the amendments that have been spoken to. What has become clear from this discussion is that there are, on any footing, immense practical difficulties in relation to Clauses 14 and 15. In effect, I think the Minister accepted that it is not going to be straightforward to repatriate people with inadmissible claims to other EU countries without any agreement. The expression “window dressing” has been used. It is going to be very difficult.

I hope I correctly interpreted the Minister in getting my crumb of comfort from Clause 14. I think she reassured me that the exceptional circumstances specified were not closed. As a statement from the Dispatch Box in Parliament, recorded in Hansard, that is quite an important point. If Clause 14 remains, it will give at least some people some succour at any event, particularly in the circumstances I mentioned: an EU country which does not prevent those who are citizens, resident or present within the country, from persecuting others belonging to a social group, or for some other reason.

I am afraid that the overwhelming sentiment—and certainly my view—was that whatever may be said by the Government about adopting existing expressions which are generally used or have been previously used, in vital respects Clause 15 is inconsistent with the convention. This is not in a complex way, but in an obvious way. I am sorry to say this, but to my mind as a lawyer it is an egregious contravention of the convention. I ask the Minister about, for example, condition 5 in new Section 80C. Not only is that not in the convention, but I do not know where it comes from. I can see it is there as a matter of policy but it is not in the Dublin regulations, so far as I can recall. As I pointed out, in any event the Dublin regulations are being revised, so there is no point in going back to them.

There are a number of difficulties. There is one point I was hoping the Minister might be able to reply to that she has not. I would be grateful if she could explain perhaps in communication with me. How does one reconcile condition 4, which is failing to make a claim in the first country—thereby rendering you having a connection and the possibility of inadmissibility—with one of the requirements under Clause 11 to satisfy Article 31, which is arriving directly, because you never get there if you are rendered inadmissible? At the moment I do not see how the two fit together. I am not suggesting it is a straightforward and easy point; it is a lawyer’s point, but an important one. It shows a muddle somewhere along the line. But, on the basis of everything that has been said, I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Green of Deddington (CB)]

My Lords, the noble Baroness is right to say this is the detained fast track brought back again, in effect. I simply say that this is a very good idea. Leaving aside the detail, if experienced officials can see that a case is really very unlikely to be a genuine one, there should be a fast track and the person should be detained. The details can be sorted, but it is the right way to go. It is what we need to do, given the enormous wave of applications we are now receiving.

[Lord Etherton (CB)]

I speak in support of the amendment in my name in relation to Clause 26, Amendment 98. It is that

“The Secretary of State may not give … certification if the appellant claims to have a protected characteristic … which is innate or immutable, and that the characteristic is relevant to the appeal.”


Cases in which the appellant is an asylum seeker who has an innate and immutable protected characteristic that is relevant to the appeal are not appropriate for the very short timescale set out in Clause 26(3). I think the noble Lord the Minister himself acknowledged, and the noble Baroness the Minister accepted earlier, that many of these cases raise difficult issues and that guidance that we wait to see will be issued to provide assistance. The paradigm case again is that of the LGBTQ+ asylum seeker. Establishing whether or not they are in fact LGBTQ, the adequacy of the evidence in support on that issue—whether or not there is a genuine fear of persecution because of that characteristic, whether what they have done in relation to pursuing their claim has been reasonable, even if it was not always in compliance with the required time limits—makes their appeal inappropriate for an accelerated appeal.

Once again I say, as others have said, that this conclusion is reinforced by the significant proportion of successful appeals that have been brought by LGB refugees. That is something we simply cannot ignore. Nearly 40% of appeals taken in the period from 2015 to 2018 succeeded.