Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024

Debate between Lord German and Baroness D'Souza

Tuesday 19th March 2024 Lords Chamber

[Lord German (LD)]

My Lords, I declare my interest in the register—I am supported by the RAMP Project. This regret amendment is not about whether Georgia and India are safe countries for trade or tourism, but safe from a serious risk of persecution of nationals of these countries, and where removal to India or Georgia of nationals of those countries would contravene the United Kingdom’s obligations under the human rights convention. It may well be that, for certain groups of people, a return to these countries would fail these tests.

There are two main issues at fault with this legislation: one of process and one of policy. I will deal with process first. Currently, as the Minister said, the list of safe countries is all those in the EEA—the European Economic Area—plus Switzerland and Albania. Being included in the list of safe states means that an asylum or human rights claim from an Indian or Georgian national must not be considered unless exceptional circumstances apply.

It is very unusual for the Secondary Legislation Scrutiny Committee of this House to lay such an extensive report before us, but its conclusion is:

“These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.


My supposition is that the Government are adding some countries to the safe list because more people can be returned to their home countries without their asylum claim being even considered; and that this legislation was produced in haste, without the necessary conditions for scrutiny being fully considered.

The Secondary Legislation Scrutiny Committee states that consideration of

“the operation of ‘exceptional circumstances’ is critical to understanding and scrutinising the policy”.

In reply, the Government said they would issue guidance in—those famous words—“due course”. Given that this statutory instrument was laid on 8 November 2023, and that we are now discussing it more than four months later, I submit that “due course” has run out, as no such document has appeared.

In response, the Secondary Legislation Scrutiny Committee said:

“At a minimum”—


I use that word carefully—

“the guidance describing how it will operate in practice should have been published alongside the instrument. However, we have also consistently taken the view that factors that will influence critical decisions about a person’s life or benefits should be included in the legislation considered by Parliament, not left to guidance”.

It adds that

“proper scrutiny is not possible if the guidance is not published before the debate on these Regulations takes place”.

No such document has been produced and, as a result, the Government have failed to meet the appropriate parliamentary standards required for processing this statutory instrument.

I now turn to the policy issues raised by this. As the Minister said, the criteria for deeming a country to be safe are set out in Section 80AA of the Nationality, Immigration and Asylum Act 2002, as amended by the Illegal Migration Act 2023. The rules by which the Secretary of State may add a state are that they must be satisfied that

“there is in general in that State no serious risk of persecution of nationals of that State, and … removal to that State of nationals of that State will not in general contravene the United Kingdom’s obligations under the Human Rights Convention”.

Those are the two reasons why it can be put forward. But, in deciding that they are substantially true, the Secretary of State

“must have regard to all the circumstances”—

not just some—

“of the State (including its laws and how they are applied), and … must have regard to information from any appropriate source (including member States and international organisations)”.

We have just heard two things from the Minister: first, “exceptional circumstances” was repeated and, secondly, we heard that the information has been taken from many sources. But, crucially, we got no detail—because, of course, we are discussing this after it has been to the committee that would look at this detail—about exactly where these sources of information are, where they have come from and how balanced they are. So, this House can draw only on conclusions that we think would be appropriate for judging whether these countries are safe.

I will draw only on the United States of America and the Home Office—the very department that makes this decision. The SLSC quoted the United States Government’s 2022 country report on human rights practices in Georgia:

“Significant human rights issues included credible reports of: torture or inhuman, cruel, or degrading treatment; arbitrary arrest or incarcerations … substantial interference with the freedom of peaceful assembly and freedom of association; refoulement … crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons and activists”;


crimes involving violence or threats of violence targeting members of national, racial, ethnic and minority groups based on religious affiliation, social status or sexual orientation; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer and intersex persons; and the existence of forced and compulsory labour.

The Home Office’s country policy and information note on Georgia says:

“High-profile government opponents and managers of media channels opposed to the government may be subjected to politically-motivated prosecution and detention with a politically-biased judiciary”.


That is from the United States and our Home Office. There are plenty more examples. You must add to that the position of South Ossetia in Georgia, which is under Russian control, and the considerable interchange of information between the Russian secret services and Georgian officials.

The Home Office’s country note on India says:

“Human rights abuses, including rape, torture, and deaths in custody are reported to be widespread and conducted with impunity. Excessive force by security forces in areas of conflict are also reported, including extra-judicial killings, rape, torture, arbitrary detention, kidnappings and destruction of homes”.


Finally, there were the comments and responses from Members and Ministers representing the Foreign, Commonwealth and Development Office here last Thursday about concerns over Muslims, Dalits and other groups in India.

These facts demonstrate that, for some groups of people, there will be a risk of persecution or a failure to provide them with human rights security under our international obligations. Since the Illegal Migration Act was passed, we do not give people the sort of interview we would need to work out whether they are subject to that persecution. In response, the Government say that these are all “isolated incidents”, not general matters of concern—“isolated” and “general” are two important words here.

Just look at the contradictions within the Home Office, let alone between government departments, on this response. Home Office view A is that human rights abuses, including rape, torture and deaths in custody, are reported to be widespread and conducted with impunity; contrast that with Home Office view B that “isolated incidents” may have been reported but the “scale and extent” of concerns were not such that the test under the Act was failed. There you have it —the Home Office looking in both directions at the same time. Widespread or isolated—both cannot be right.

I have some questions for the Minister. Are the “widespread” and “significant” human rights abuses reported by the Home Office and the US Department of State consistent with the requirements of the 2002 Act, as amended? Why has the promised guidance not been produced in the four months between the laying of this SI and this debate? Given that a significant proportion of recently processed claims from Georgia were accepted, can the Government’s description of applications from Georgian nationals as “unfounded” be justified? Given the backlog of claims from these two countries, will existing claims continue to be processed as previously or will they be deemed inadmissible retrospectively, whenever these regulations come into practical effect? Finally, why are the regulations being introduced now, when they will have no practical effect until the relevant provisions in the Illegal Migration Act 2023 are brought into force? Unless the Minister can answer these questions satisfactorily, this statutory instrument has surely stepped over the line in terms of both parliamentary process and policy. I beg to move.

[Baroness D’Souza (CB)]

My Lords, India is indeed a safe country if you are a straight male Hindu citizen. It is far less safe if you happen to be female—women from religious and cultural minorities face the most gender-based violence—Muslim, Dalit, Adivasis, Sikh, Christian or a member of the LGBT community. These sectors of the population constitute about 280 million people. More than 10,000 people have been arrested under the Unlawful Activities (Prevention) Act, the majority from minority groups.