Illegal Migration Bill

Debate between Lord Hope of Craighead and Lord Murray of Blidworth

Report stage
Wednesday 5th July 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As my noble friend well knows, under a conventional judicial review challenge, the court will review the process of the decision and whether the decisions made were appropriate, applying the conventional judicial review tests, not balancing the evidence and coming to its own conclusion on the facts. The Government’s position is that it is appropriate for those tasked with assessing a person’s age to be entrusted with that responsibility, subject to review on judicial review principles. As the noble and learned Lord, Lord Hope, said, this includes a test of Wednesbury unreasonableness—a decision so unreasonable that no properly directed tribunal could have reached it.

[Lord Hope of Craighead (CB)]

I want to be absolutely clear: is the Minister accepting my amendment? I have drafted it as carefully as I can to bring it within the scope of that kind of challenge.

[Lord Murray of Blidworth (Con)]

I am coming to the noble and learned Lord’s amendment and will answer that question in a second.

We consider that these provisions are entirely necessary to safeguard genuine children and guard against those who seek to game the system by purporting to be adults. It follows that I am afraid I cannot support Amendments 156A and 158A. However, I assure my noble friend Lord Hailsham that age assessments will, as now, be undertaken in a careful and professional manner. This is not a perfunctory exercise, and it is in everyone’s interests that we get it right.

Illegal Migration Bill

Debate between Lord Hope of Craighead and Lord Murray of Blidworth

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The noble Baroness makes an entirely fair point. In those cases, of course, it would be an imminent feature. As she points out, in those circumstances that is something the courts would be able to have regard to.

The inclusion of “imminent and foreseeable” is intended to prevent the courts from considering risks that are dependent on a series of hypothetical events before the harm might occur. That is the reason, as I understand it, that “imminent” features in the European Court of Human Rights practice direction on interim measures. We cannot allow illegal entrants to be able to thwart their removal based on an unknown risk that cannot be foreseen and may not even arise for many months or years, if at all.

Amendments 102, 103, 104, 109, 111 and 112 would remove the requirement for the risk of harm to be irreversible. These amendments would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the UK. Again, I point out with the greatest of respect to the noble and learned Lord, Lord Etherton, that

“a real risk of serious and irreversible harm”

is the test applied by the Strasbourg court when considering applications for Rule 39 interim measures, as he alluded to during his speech.

Amendments 105, 106 and 107 would remove specific examples of harm, relevant to the availability of healthcare and medical treatment in a third country—a passage that the noble Lord, Lord Carlile, drew the attention of the Committee to—in circumstances that do not or are unlikely to constitute serious and irreversible harm. There is existing case law that indicates that claims based on harm resulting from differing standards of healthcare fall short of the Article 3 threshold. It is simply unjustifiable for those who enter this country illegally to be able to remain here indefinitely and have unlimited access to our healthcare systems solely on the basis that they may not receive the same level of medical treatment in the country or territory they are rightly removed to.

For these reasons, Clause 38 makes it clear that a serious harm suspensive claim based on a risk of harm relating to differing standards of healthcare cannot succeed and, as a result, will not prevent that person’s removal to the safe third country. Clause 38 also makes it clear that a claim based on pain or distress resulting from a lack of medical treatment is unlikely to succeed. By including specific examples of harm that do not or are unlikely to constitute serious and irreversible harm in Clause 38, it is ensured that the courts take a consistent approach in their consideration of the risk of serious and irreversible harm and go no further than intended.

The Bill provides a fast-track process for the consideration of a claim which may temporarily suspend a person’s removal from the UK. Clauses 41 and 42, as the Committee has noted, set out the procedure and timescale for making a suspensive claim and the timescale for a decision to be made on a suspensive claim.

Amendment 113 would remove the requirement for a serious harm suspensive claim to include compelling evidence of the risk of serious harm that a person would face if removed to a third country, as noted by the noble and learned Lord, Lord Hope. Reducing the evidential burden in this way risks the process being abused through spurious and unmeritorious claims, similar to those that we have seen in other immigration applications. Evidence that is compelling is defined as that which is reliable, substantial and material to a person’s claim. I suggest that this is a reasonable requirement and necessary to ensure that the suspensive claims process is not open to abuse.

[Lord Hope of Craighead (CB)]

I am grateful to the noble Lord for setting out an explanation of the word “compelling”. He used three adjectives and my impression is that that explanation is intelligible; it is not quite as alarming as “compelling”. Would it not be better to substitute the three words that he quoted for “compelling”? “Compelling” could be read as setting a very high standard indeed, which I do not think the three adjectives that he mentioned do.

[Lord Murray of Blidworth (Con)]

I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.

Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.

The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.

The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.

The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.

Illegal Migration Bill

Debate between Lord Hope of Craighead and Lord Murray of Blidworth

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

That is consistent with the normal practice in statute.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I might come back to the question asked by the noble and learned Baroness, Lady Butler-Sloss. I think the Minister said that he would write to her with examples of strained interpretation. I sat for many years on the Appellate Committee in the Supreme Court dealing with cases under the Human Rights Act, and I am not aware of any particular case where I was straining the language. I do not think I went very far beyond the ordinary meaning of the words.

I remember we were faced with a very difficult case involving two men who wanted to marry. In those days, the Marriage Act was very specific that marriage was between a man and a woman. We could have strained the language, but we did not do that; we said the provision was incompatible, which I think the Minister would recognise as a perfectly orthodox way to proceed. I think we were quite careful not to stray beyond the bounds of reasonable interpretation. I would be very interested to know whether he has examples of where we really did go beyond the bounds of reasonable interpretation.

[Lord Murray of Blidworth (Con)]

As I said, I will be writing to the noble and learned Baroness, but the House will recall that the noble Lord, Lord Wolfson, set out various examples, including Ullah and Al-Skeini, and there are others. This has been a matter of jurisprudential development since the commencement of the Human Rights Act. It is a well-known evolution in interpretive principle, and it is that which is addressed by the provisions in this Bill.

Illegal Migration Bill

Debate between Lord Hope of Craighead and Lord Murray of Blidworth

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have taken part in this very interesting and far-ranging debate. I am conscious of the time, and I am sure the Committee would not wish me to go over the ground in any detail, and I am not going to do that.

The Minister, with great respect, has not really answered many of the questions that have been raised. We will come back to this, I am sure, possibly in the next group, but certainly these questions will come back on Report and will need to be answered in much more detail. So far as my own amendments are concerned—the definition point—the Minister has pointed out that nothing hangs on these words because they do not reappear elsewhere in the Bill. I was well aware of that when I tabled the amendment, but that raises the question: why brand the actions of these people coming here as unlawful or illegal, unless, of course, they are in breach of specific legislation, which is not always the case? That illustrates the unfortunate wording of Clause 1, which we will come back to.

As far as Amendment 3 is concerned, which deals with the question of guidance, I do not think, with great respect, that the ECHR memoranda amount to the kind of guidance that is needed in a situation where access to the courts is being denied. Something more specific is needed, and that is what the amendment is driving at. Perhaps we will come back to that at some later stage. For the time being, I think the simplest thing I should do, so that we can move on, is beg leave to withdraw Amendment 1.