Border Security, Asylum and Immigration Bill

Debate between Lord Faulks and Lord Davies of Gower

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, before the Immigration Appeals Act 1969, passed by the Labour Government of Harold Wilson, there was no general right of appeal against Home Office immigration decisions. After the establishment by that Act of the system of adjudicators and the Immigration Appeal Tribunal, we have had several revisions of the system of appeals. We had the Immigration Appellate Authority, the Asylum and Immigration Tribunal, established in 2005, and then the current asylum and immigration chamber of the First-tier Tribunal and the Upper Tribunal was created just five years later. With all these revisions and the litany of law that has grown out of immigration and asylum matters, we have ended up in a situation whereby the entire system is held in perpetual limbo.

The system as it stands incentivises endless appeals, procedural delays and the recycling of unfounded claims, all at the expense of the British taxpayer. We know the appeal and judicial review systems surrounding asylum and immigration cases have become a tool used by illegal migrants who should be deported to prevent their removal. There are cases where people have made repeated claims over time, covering human rights, modern slavery and asylum. These claims are often made at the last minute to prevent removal and are sometimes on completely contradictory grounds. For example, one man made a claim as an Iraqi and, when that was rejected, then made a further claim saying he was in fact Iranian. It took eight years to deport a Somali man, Yaqub Ahmed, who gang-raped a 16 year-old girl in 2008 following his release from prison. He used multiple modern slavery, human rights and asylum claims, costing taxpayers huge sums before eventually being deported in 2023.

Amendment 46 would abolish the immigration and asylum chambers of the First-tier and Upper Tribunals. This would prevent any person bringing a judicial appeal to a court or tribunal. Amendment 47 would remove the ability of any person to make an appeal to a court or tribunal in respect of an initial decision for an immigration or asylum matter. The decisions that cannot be appealed include any deportation order or removal directions; a decision to decline immigration bail; a decision to refuse asylum support; or a decision to refuse an asylum or protection claim.

The amendment includes a right of administrative review to a review board in the Home Office, which would consider initial decisions where there is an error in application of the law or rules but could not reconsider the substantive material of the decision. It would be able to overturn the initial decision if and only if it was satisfied it was made in error. The Secretary of State would have to make provisions about the review board by way of regulations subject to the negative procedure. The underlying principle here is that the judicial system should not have any role in the immigration and asylum process. As I have already stated, this used to be the norm. Instead, all reviews of any immigration decision will be decided by the review board in the Home Office.

Amendment 68 takes us to the logical conclusion: the removal of the ability to judicially review immigration decisions. The only exception here would be where the Home Secretary has acted outside their powers under the Immigration Acts. Importantly, it would not include review on the grounds of unreasonableness, proportionality, or the merits of a particular case. The current system diverts scarce resources away from those in genuine need. Every pound spent on repeat litigation is a pound not spent on border security, faster processing or refugee support. True compassion is helping the genuine and deterring abuse of the system. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, there cannot be any doubt that the system which has been working—if that is the right word—for some considerable time is very unsatisfactory. I think that is probably recognised by the Government and was certainly recognised by the previous Government. The noble Lord, Lord Davies, summarised the complex system that currently prevails, whereby applications are made and there are appeals and the like.

I should perhaps add that, until relatively recently, it was possible to judicially review the decision of the Upper Tribunal. The Supreme Court, in a case called Cart, had decided that, so there was yet another avenue available to those who wished to use the full possibilities inherent in the system. Parliament decided that that Supreme Court decision ought to be reversed. I declare an interest as having been chair of the Independent Review of Administrative Law. We recommended that and it was, in fact, supported by a number of judges who had sat on the decision itself. It became law, so these things are not sacrosanct.

As far as judicial review generally is concerned, I simply ask the Minister this. The ouster clause, as they tend to be described, in Amendment 68 is not a complete ouster but it is a substantial one. There was an indication in remarks that the Minister made earlier that any sort of ouster might be considered to violate the rule of law. Although there have been various obiter dicta of judges—I think in particular of the well-known case of Privacy International—suggesting that the courts could ultimately refuse to recognise an ouster clause, the Independent Review of Administrative Law took the view that Parliament was ultimately sovereign. It may or may not be a good idea to oust the courts, and that is a matter that Parliament will have to consider on the specific facts. I would very much like to know what the Government’s general view on that is.

What I want to address at this moment is the amendment in the name of the noble Lords, Lord Murray, Lord Jackson and Lord Lilley, in relation to the Human Rights Act. This Bill, entitled “Border Security”, was the Government’s first response to the various attempts by previous Governments to cope with illegal migration. The opposition to the various Bills that went through this House was firm, but I was never quite clear what the policy was on the part of the Labour Party. Ultimately, it came down to the idea that the Government would crack down on the smuggler gangs. The word “crackdown” came often into the debates, and the future Prime Minister, Sir Keir Starmer, was held out as being just the man to crack down because of his experience as the Director of Public Prosecutions. Now, I yield to no one in my admiration for his discharge of that role, but I was always somewhat confused by the idea that someone who was in charge of macro decision-making as the Director of Public Prosecutions was in some way fitted to crack down on smuggler gangs.

The crackdown was apparently to start straight away when the Government came into power some 15 months ago, but I think it is fair to say that it has not been a success. We can see the figures, and I do not wish to weary the House with what those figures are. The Bill, which in some ways is uncontroversial, gives a little extra power to allow that crackdown to take place, but what we really have here is a complete vacuum of policy on the part of the Government. We know they did not like the Rwanda scheme, but what is to replace it? The position of those who opposed the previous Government was that we could not do anything to in any way amend the ECHR or the Human Rights Act, both of which obviously play a significant part in the whole process of gaining asylum, and anyone who suggested as much was considered almost to be in the headbanger category.

Things have moved on a bit, and a number of senior Labour figures are saying that we really need to think again about the ECHR. Indeed, I think 17 nations, members of the Council of Europe, are considering trying to do something about the ECHR in view of the fact that so many European countries do not find it to be working satisfactorily. When the Attorney-General, the noble and learned Lord, Lord Hermer, gave evidence before a committee, he said that that might take as much as 10 years, but this is an emergency, and I am sure the Government will acknowledge that.

As for the amendment of the Human Rights Act, when I asked the Minister in Committee, he confirmed that there was no way in which there would be any amendment of the Human Rights Act—I have on me what he said in Hansard—nor would there be any deviation from the ECHR. That begs the question as to what is going to happen. What is going to fill the policy vacuum? The previous Home Secretary, Yvette Cooper, made some noises to the effect that the situation was far from satisfactory and something needed to be done, and her successor, Shabana Mahmood, has said that nothing is off the table. We know that nothing is off the table but we are entirely unclear as to what is on it, and it really is time that we knew.

I can remind the noble Lord that he said in Committee, on 13 October:

“I hope to assure the noble Lord, Lord Faulks, that we will legislate to reform our approach to the application of Article 8 in the immigration system so that fewer cases are treated as exceptional. We will set out how and when someone can make a claim. We are also reviewing the application of Article 3”.—[Official Report, 13/10/25; col. 132.]


How is that going to happen? Apparently there is going to be no amendment of the HRA and any changes to the ECHR are in the far distant future, yet he said to the Committee that there was going to be legislation. The only form of legislation that seems to be at all possible is some form of legislation that says that these decisions are not satisfactory and so the approach has got to be changed—in other words, guidance to judges. I am concerned about that, as it would be interference with judicial independence. The Government ought to have the courage, if they think the law is wrong, to change it. The Human Rights Act is a domestic statute and can be amended.

I come with help, I hope. The amendment in the names of the noble Lords, Lord Murray, Lord Jackson and Lord Lilley, provides for the suspension of the Human Rights Act in the face of this emergency. It is a domestic statute, and the powers of the Government enable them to do that if necessary. It may be that that will at least help. I do not pretend that changes to the Human Rights Act are the complete answer to the almost intractable problem that we face, but it is a very real suggestion. It is contained in the amendment and I suggest that the Government should take it seriously.

Border Security, Asylum and Immigration Bill

Debate between Lord Faulks and Lord Davies of Gower

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, I will also speak to Amendments 107, 108 and 111 standing in my name. They are all linked to the amendments in the previous group and once again are aimed at understanding exactly why the Government are repealing each of these clauses.

First and foremost, Amendment 106 rightly acknowledges the unique vulnerability of unaccompanied children. Unlike adults, these children do not have the benefit of parental guidance, support or protection, which fundamentally changes the context in which any immigration or removal decision should be made. The exemption from removal under proposed new subsection (1) reflects the humane principle that children, especially those who arrive without guardians, require special consideration. At the same time, the amendment incorporates a balanced discretion for the Secretary of State to make exceptions, but, crucially, only in narrowly defined and principled circumstances. This discretion is limited to cases of family reunion or removal to a safe state to which the child has a clear connection, such as nationality or passport holding. This would ensure that the state maintains the ability to act in the best interests of the child and public policy without resorting to indiscriminate removals.

Amendment 107 would bring much-needed clarity and accountability to the handling of European Court of Human Rights interim measures, in relation to the duty to remove under Amendment 105. Interim measures, often issued to prevent irreparable harm while a full hearing is pending, are a critical tool in safeguarding human rights. However, this amendment rightly recognises that these measures must be balanced with national sovereignty and the Government’s responsibility to manage immigration effectively. First, the amendment would establish that the decision to give effect to a European Court of Human Rights interim measure is the discretionary personal responsibility of a Minister of the Crown. This personal involvement emphasises the gravity of the decision, ensuring that it is not delegated lightly or handled bureaucratically. Such a provision would enhance political accountability, requiring Ministers to engage directly with complex legal and humanitarian issues rather than allowing automatic suspension of removal without sovereign consideration.

Furthermore, by restricting the obligation of immigration officials, courts and tribunals to give effect to the interim measure where a Minister has chosen not to recognise it, the amendment would prevent conflicting mandates within the system. This avoids a confusing legal limbo where different authorities might take contradictory positions regarding removal actions that undermine coherence and efficiency in immigration enforcement. This provision strikes a pragmatic balance between respecting international human rights obligations and preserving the Government’s capacity to maintain effective border control. It avoids rigid, automatic enforcement of interim measures that could paralyse immigration functions while still providing a structured framework to engage with the European court’s decisions.

Amendment 108 is a crucial step towards ensuring the duty in Amendment 105 is not needlessly hobbled, and that anyone who enters illegally is removed no matter who they are. It would tackle head-on abuse of asylum and human rights claims, a process that can delay removals and undermine the integrity of the immigration system. The amendment would make it clear that, for individuals meeting the statutory conditions for removal, any protection claim, human rights claim, trafficking or slavery victim claim or application for judicial review cannot be used to delay or frustrate the removal process.

This is vital. Currently, the system is frequently exploited through repeated and sometimes frivolous claims, causing prolonged uncertainty, administrative backlog and resource drain on the Home Office and courts. Declaring claims inadmissible at the outset when conditions for removal are met would significantly reduce abuse. It sends a strong message that these legal routes are not loopholes for indefinite delay. This also enables faster removal decisions, preserving our ability to control our borders effectively.

We have also included a judicial ouster clause in this amendment to prevent courts from setting aside inadmissibility declarations, promoting legal certainty and finality in removal proceedings. This avoids protracted litigation and vexatious legal challenges, which often tie up judicial resources without improving outcomes for genuine claimants.

Finally, Amendment 111 addresses the question of what support, if any, is available to individuals whose asylum or related claims are declared inadmissible under these amendments. By amending the Immigration and Asylum Act 1999 and related legislation, the proposed clause ensures that the withdrawal or withholding of support aligns consistently with the inadmissibility framework. This is essential for legal clarity and operational coherence. Without these amendments, there would be a disconnect between the removal of rights to remain and the removal of support, potentially creating gaps or confusion in how support is administered. The amendment ensures that, when a person’s claim is declared inadmissible under the new rules, the support framework adjusts accordingly, reflecting that the individual is no longer entitled to certain forms of state assistance. It also protects the integrity of the asylum support system by preventing those whose claims do not meet the admissibility criteria from accessing support intended for genuine asylum seekers. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I know that the Government vigorously opposed the Rwanda Bill, and indeed the Prime Minister described it as a gimmick, or words to that effect. I understand that that is the Government’s position, and I do not expect them to change their mind. But the point worth making is that, although the Rwanda scheme as a whole may not have found favour with the Government, it does not follow that some of the provisions in that Act are not appropriate to whatever policy the Government ultimately may think is appropriate. I know that this is something of a moving picture, as the Minister acknowledged.

I will not repeat what I said in the wrong group in relation to Amendment 107, but I place particular emphasis on that amendment because that issue was a pretty obvious excess of jurisdiction on the part of the European Court of Human Rights. This Government, whatever the final form their policy takes in statutory terms, may find that they have an interim ruling from the European Court of Human Rights that offends natural justice. The fact that—as the noble Lord, Lord Davies, quite rightly said—it needs a Minister before a decision is taken to reject it is an important safeguard. It is not a question of casting it aside and ignoring it; it is considered at an appropriate level, having regard to the unsatisfactory nature of the interim order that the court made under Rule 39. It is important that that provision should be inserted, whatever form the policy takes.