Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, when I tabled these amendments, I had sought to seek a greater reassurance from my noble friend the Minister than I achieved in Committee. Obviously, I realise, given the result of the last few votes, it may be that Amendment 28, in the name of the noble Lord, Lord Kerr of Kinlochard, and others, will find greater favour with the House. However, I shall take this opportunity to set out my opposition in principle to what the Government are seeking to do here: it is not just the fact that two groups are being created, but the way in which those two groups will be treated differently.

Perhaps the most offensive provision in Clause 11 is subsection (5). The Explanatory Notes refer to it as

“differential treatment of refugees based on their group. Differences may, for example, apply in terms of the duration of their permission to remain in the UK, the availability of routes to settlement, the ability to have recourse to public funds, and the ability of family members to join them in the UK. There is no obligation for these powers to be exercised and discretion may be applied.”

The greatest difficulty that I have is that it is not clear that there will be discretion or, indeed, how that discretion will be applied.

I hate to say it to my noble friend, but I find it offensive that this differential between groups 1 and 2 has been created. In taking the two groups out and substituting the general term “person”, I draw attention to Amendment 27, which asks for “reasonable discretion” to be exercised. I believe that is the key to all the amendments before us. This comes directly from the advice that I have received from the Law Society of Scotland as to how the provision will apply, if the original clause is left unamended. It says:

“We take the view that how a person enters the UK should not impact on family reunion. Safe and legal routes have been reduced since the UK left the European Union with the removal of the Dublin III Regulation. This provision appears to be actually reducing the prospect of families using one of only the two safe and legal routes the Asylum seeker has i.e., refugee family reunion – the other being UNHCR resettlement. Fewer safe and legal routes are likely to result in more unsafe and perilous journeys.”


Given the new situation arising daily in Ukraine, and the dreadful humanitarian crisis that we see there, I hope that the Government will resist the provisions in the clause and look favourably on my amendments and think again—but I fear that perhaps the House will favour the amendment in the name of the noble Lord, Lord Kerr of Kinlochard. I beg to move.

[Lord Kerr of Kinlochard (CB)]

My Lords, I welcome the new clause proposed by the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Judge, but we need to do a belt-and-braces job here. I am afraid we have to go back to the issue of compatibility and “Oh yes it is; oh no it isn’t.”

In Clause 11, we are introducing something entirely new. This two-class categorisation of refugees—the real refugees who came direct and the class 2 refugees who did not—is not anywhere in the refugee convention. None of that is in the refugee convention. The Government say that it is all perfectly compatible with the convention and assert that it is our right to interpret the convention in this new way, differently from the way that it has been interpreted up to now by our courts, differently from the way that the UNHCR, the custodian of the convention, interprets it in its authoritative judgment on our Bill, and differently from the way in which 146 signatory states interpret it.

We did the “Oh yes it is; oh no it is not” game at length in Committee and the Government stuck to their view, but I think it is fair to say that the Committee found it rather hard to understand the Government’s view. I wondered whether the Minister perhaps let the cat out of the bag when he told us:

“It may … be”—


to be fair, he did put it tentatively—

“that a convention entered into in 1951 is not absolutely suitable for the world of 2022.”—[Official Report, 8/2/22; col. 1463.]

Tonight, we heard the Minister seeming to hint that it might be time to review the convention as if it was in some way out of date. I could not disagree more.

I refute the Minister’s contention in one word: Ukraine. Life itself—zhizn’ sama, as a Russian would say—refutes the Minister’s contention. In the world of 2022, we see these hundreds of thousands of people—now over 500,000, the UNHCR says—abandoning their homes, trudging the motorways, crowding on to the trains, fleeing the tanks and rockets, and streaming into Poland and Hungary, Slovakia, Moldova and Romania. Are they refugees? Yes, of course they are refugees, just like the Hungarians in 1956 and the Czechs in 1968. Are they entitled to refugee convention rights? Yes, of course they are. But if the Bill, including Clause 11, is enacted or had been enacted, any of them who wanted to come to this country could be only group 2 refugees, without full convention rights, because they had not come directly from Ukraine and could have asked for asylum in Poland or Hungary. That is even though there are no direct flights from Ukraine, and even though we say Ukrainians have to have visas to come here—although we do not issue visas to asylum seekers.

The key point for the House tonight is that there is nothing in the convention or, as I understand it, subject to correction from the legal authorities round me, anywhere in international law requiring an asylum seeker to apply in the first safe country they reach. This, the rationale for Clause 11, is a Home Office invention. The convention sets only one test: not how the refugee got here, but why. What was it that drove him to come here? Was it a well-founded fear of persecution back home? That is the question. But if Clause 11 is approved, that question or test becomes redundant and irrelevant because, no matter what horrors he is fleeing from, if a refugee did not come here directly he could be only a group 2 refugee, subject to the harsher regime, detention and offshore processing set out in all the subsequent clauses that we are also going to have to look at closely, in my view. This just will not do.

My concern is with the refugees but also for the reputational damage we do to ourselves, if we go down this road, and the practical consequences for the refugee convention. Suppose our new invention caught on and other countries started following suit. Well over 20 million refugees are in countries contiguous to their homelands—just across the border—and nearly all these countries are developing countries. Suppose the convention were in future to be interpreted by all and sundry to mean that the exiled Syrians and Iraqis must always stay just across the frontier in Lebanon or Jordan, and that the Afghans must always stay in Pakistan, but the developed world can wash its hands of these problems and leave it to the Jordans and Pakistans, because the refugees could never move on and obtain asylum elsewhere. The only places they could obtain asylum were in the Jordans and the Pakistans.

What would the consequences of that be? They would be disastrous for the first host country; there are 1.5 million people in Lebanon from Iraq and Syria, and more than that from Afghanistan in the camps around Peshawar in Pakistan. We would be saying that Pakistan and Jordan are going to be stuck with that for ever, as far as we are concerned. It would be disastrous for the refugees, too.

If this doctrine caught on—if it were the general reading of international law that first hosts had sole responsibility—anyone seeking to flee persecution would find the gates of freedom clanging shut in their face. If we leave Clause 11 in the Bill, we do not just betray our values and trash our reputation, we could kill the refugee convention, sadly, though we need it in the world of 2022 as much as ever. I propose that Clause 11 be deleted.

[Lord Horam (Con)]

My Lords, we had a long debate on this subject in Committee, so I shall be brief. We ought to remember throughout what the Bill was originally about. It is fundamentally about stopping, or curbing, the channel migrants. Obviously, we hope to do it in a sensible way. If we could have an agreement with the French, the Belgians or the Dutch to deal with this in a bipartisan way, that would be ideal, but none of us is very optimistic, particularly before a general election in France and so on.

We need other options: a plan B, or maybe a plan C. I agree that some of them stretch the credibility of what any Government would want to do, because the problem of the cross-channel migrants is indeed very difficult to deal with. You have to deal with them separately because, however sympathetic one may be with people in the hands of traffickers coming across the channel for whatever reason, it is a difficult way to come across. It is unsafe, they are clearly behaving illegally—it is against the law to enter this country in that way—and they are doing so in a very public way. Every night on television, you can see people coming across the channel and on to the beaches in Kent and so forth. They add to the number of people the Government have agreed to accept by proper routes—the Chinese from Hong Kong, the Afghans and, now, Ukrainians. Like the noble Lord, Lord Kerr, I hope we will have a generous scheme to allow Ukrainians who wish to come here to do so, just as I hope that Europe will have a generous scheme. I suspect and hope that they will come here only temporarily.

Coming across the channel is an open-ended and uncontrolled method and, if successful, encourages even more to come. Last year, 29,000 came; the prediction is that 60,000 will come this year. That is more money for the traffickers. The traffickers now make more money out of human beings than they do out of drugs, which will increasingly be the case. If we allow that to carry on uncontrolled, it makes it more difficult for local authorities, which have to deal with these people—housing them, making welfare arrangements, schooling their children and dealing with their families.

They add to the problems in the most disadvantaged parts of the country. It is not the leafy areas of Hampstead where these people end up; it is in places such as Blackpool, Stoke-on-Trent, Middlesbrough and Doncaster. I was talking to a red wall MP from the north-west. Blackpool has five of the eight poorest wards in the country; it has real problems. There is fury on the streets of Blackpool at the way they are being dumped on with people such as the migrants who come across the channel. They do not understand why they have to receive them.

The levelling-up agenda, which is central to this Government, is set at nought when that situation is arising in the areas of this country which need to be levelled up. It makes a proper, organised, rational immigration policy more difficult. As my noble friend Lord Hodgson said in a previous debate, informed consent—the consent of the people—is essential for a rational, substantiated and long-term immigration policy. If we do not have a policy that people are comfortable with, in the long run, we will not sustain it.

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Moved by

[Lord Kerr of Kinlochard]

28: Leave out Clause 11

[Lord Kerr of Kinlochard (CB)]

My Lords, there are two ways in which to break a treaty, and I think that, looking back on it, I rather preferred the Brandon Lewis way—the straightforward, “Yes, we’re breaking a treaty, in a specific and limited way.” This rather weaselly approach, whereby the Government say, “Oh well, we’re perfectly entitled to interpret the treaty as we choose, and no, as a matter of fact we’re not in breach of it”, seems to me unconvincing and undesirable, and rather bad for our international reputation and for refugees.

I have not heard an answer to the key point, which is that, if I were coming from Ukraine, I could not be a group 1 refugee because I cannot come directly. The clause says that the requirement of being a group 1 refugee is that you have come to the United Kingdom directly from the country or territory where your life or freedom were threatened. So nobody from Ukraine can be entitled to full refugee convention rights in this country, if this becomes the law. I do not think that is right, so I think I have to test the opinion of the House.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Berkeley of Knighton (CB)]

My Lords, it is a pleasure and privilege to make this trio of noble Lords—of naughty boys—into a quartet led by the noble Lord, Lord Wallace, because I strongly support all the points that have been made. On this occasion, I am talking not about people with millions of pounds, but about domestic workers, mentioned in the amendment from the noble Baroness, Lady Hamwee. Here, there is another financial imperative for the Treasury, because I have long thought that we force people into the black economy because they simply cannot find a legal way to stay here.

I suggest to the Minister that this amendment would at least help a lot of people to come out into the open and pay taxes. If they could extend legal visas, those people would not go into the black economy and extend that uncontrolled area of work.

[Lord Kerr of Kinlochard (CB)]

I support all three amendments in this group and particularly that of the noble Lord, Lord Wallace, for two reasons. First, it gives me a rare and particular pleasure to say that I strongly support an amendment in the name of the noble Lord, Lord Green of Deddington, among others. His dedication has been remarkable throughout these debates, and this is the first time I have agreed with what he has said.

Secondly, there is just one element missing from the powerful case for this amendment made by the noble Lord, Lord Wallace. It is partly filled by the remarkable speech made by the noble Lord, Lord Faulks, and it is about reputation. The noble Lord said that we have become a laughing stock worldwide but, in America and large parts of continental Europe, it is worse than that. People are not laughing; they think it is beyond a joke. I strongly recommend this amendment to the Minister.

[Earl Attlee (Con)]

My Lord, I strongly support the basic thrust of Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire. I do so having regard to the negative effects of the system of tier 1 visas, both in our own country and overseas. The first undesirable effect of this dirty money is on the economy of London; in particular, the cost of housing being pushed up to unaffordable levels by foreign so-called businessmen seeking secure investments, as explained by the noble Lord, Lord Wallace. My noble friend Lord Faulks identified a lack of progress by the Government in this area.

I accept that there may be some business opportunities in meeting the demand and providing both professional and artisan services to tier 1 investors. Personally, I would not want to earn my living from dirty money, in effect stolen from people of overseas countries. The noble Lord, Lord Wallace, explained this with his usual skill. Not only do some of these tier 1 investors illegally suck money and assets out of their own country to enjoy in ours but they take full advantage of our well-developed system of justice and the rule of law—JROL. This means that they can keep their assets secure and also enjoy a reliable means of passing them on to their offspring. Of course, they have no incentive to seek to implement any decent form of JROL in their own country because it is not in their interests to do so. The lack of JROL and the negative effects of corruption mean that countries such as Russia, and many developing countries, will never be able to achieve their full economic potential.

For instance, defence equipment apart, I cannot think of any manufactured product that comes from Russia. No wonder it has an economy the size of Italy’s, despite its natural wealth, larger, if declining, population, and vast space. It is not for us to interfere with the internal arrangements of other sovereign states, but if we denied oligarchs, the super-rich and despots of countries without JROL the safety and advantages of a safe landing and base in UK and other similar countries, they might be more inclined to seek to put their own countries in order. This would have enormous economic benefits and other benefits for the people of those countries.

I turn to the problem of Ukraine. It is clear that any invasion by Russia will result in severe sanctions against Putin’s regime, including Russian tier 1 investors in the UK who are judged to be close to Putin. I am confident that the Government are planning such potential sanctions as we speak, although the likely targets will already have taken precautionary action. However, if our worst fears are realised, we should go much further and hit all Russian tier 1 investors, whether they are President Putin’s friend or foe. That way, they might be more inclined to get off their posteriors and put pressure on Putin and maybe even think about improving JROL and press freedom in Russia. Furthermore, this course of action would not adversely affect the inhabitants of Russia.

We cannot continue to allow filthy, dirty money to come into the UK via the tier 1 investor visa route, because it pollutes our economy, damages the economies of other countries, and seriously erodes our soft power position.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

Yes, I totally concur with the noble Lord’s point.

I turn to the judgment on Napier, mentioned by the noble Baronesses, Lady Lister and Lady Neuberger, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Dubs. The judgment on Napier was reached on the basis of the conditions on site prior to the significant improvement works we carried out and the measures we put in place as a result of the Covid-19 pandemic. The court did not make any findings that the accommodation centres were unsuitable for providing support to asylum seekers who would otherwise be destitute. Indeed, the Nationality, Immigration and Asylum Act 2002 specifically provides for this type of accommodation. The Napier site provides full-board facilities with meals and other essential items provided, as well as access to essential local services such as healthcare. I have been through the improvements that have been put in place. I am most grateful to the right reverend Prelate the Bishop of Durham for reporting back on his visit there last week. He did not have me wandering around after him showing him the best bits; he was free to go in, report and make suggestions to me on the back of that visit.

I hope I have given a fulsome response to the Committee, for the reasons that I have outlined, about the need to ensure that we can support asylum seekers appropriately but also encourage—

[Lord Kerr of Kinlochard (CB)]

The Minister is valiantly dealing seriatim with the qualms that so many of us have about accommodation centres, but I have not yet heard an answer to the fundamental question: why accommodation centres? What is the purpose of this? Why would it improve the asylum system? Is it cost savings? I hope it is not deterrence. Is it the advantages for the Executive of the concentration of cases in one particular place? If we are going to deal fairly with asylum seekers, surely the best thing to do is to speed up the process of hearing their cases and get more of the initial decisions right so that fewer go to appeal.

Surely the accommodation should be empty local authority housing. Why are 12,000 of the 16,000 August Afghans still in hotels? Is there some hold-up in the system which means that local authorities, some of which are quite keen to get some revenue from the presently empty accommodation, cannot deal with them? Is that not the answer, rather than building these concentration centres—or is there some reason that I have just completely missed that would make an accommodation centre the answer? What is the underlying rationale of the proposal?

[Baroness Williams of Trafford (Con)]

I am very grateful to the noble Lord for asking that question. When someone arrives in this country, they go first into initial accommodation and then into dispersed accommodation. Depending on whether their claim is allowed or denied, either they are welcomed here as an asylum seeker with their claim accepted or, if their claim is rejected, they might ultimately be asked to leave. These are initial accommodation centres; this is not move-on or follow-on accommodation. I hope that helps to explain the difference.

[Lord Kerr of Kinlochard (CB)]

As long as the queue is three, four or five years long, it is not really just a question of initial accommodation. This is pretty long term.

[Baroness Williams of Trafford (Con)]

The noble Lord is absolutely right, and this goes right back to the beginning of this discussion. We need to process claims quickly, grant asylum if the claims are valid, and ask people to leave if they are not. He is absolutely right and we agree with each other on this point: people’s claims need to be done expeditiously. Without making excuses, I say that the pandemic really held back the smooth running of our asylum system, as I am sure it did in other countries. I hope the noble Lord is satisfied. For the reasons I have outlined—so that we can both support asylum seekers appropriately and encourage that throughput that he was just talking about, by freeing up spaces in the asylum spaces— I hope noble Lords do not press their amendments.

--- Later in debate ---

In light of the above, I remain of the view that this is not a policy amendment that we can possibly support. We must focus our resources on fixing the broken asylum system—as noble Lords have acknowledged—reducing pull factors, speeding up asylum claims and ensuring that our policies do not encourage people to undercut the resident labour market or our economic migration visa routes. I hope on that basis that noble Lords will not press their amendments.

[Lord Kerr of Kinlochard (CB)]

I support these amendments, because they are good economics and good social policy, but if the Government resist them and insist that those people may not work, we are under a duty to make sure that sufficient subsistence money is paid to them to keep them alive. We pay them about £40 a week. Could the Minister get by on £40 a week? I know that I could not. It is £39.63 today; it is going to go up to the princely sum of £40.85 a week, an increase of 17p a day. My elementary maths makes that an increase of just about 3%; inflation is running at about 5.5% to 6%. Why have we increased it by such a small sum?

[Baroness Williams of Trafford (Con)]

My Lords, it is based on a calculation. I shall not try to bluster my way through what that calculation is, but I shall get the details to the noble Lord. As I said to the noble Baroness, Lady Meacher, people who are destitute will have things like council tax and utility bills paid for them by the Home Office.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

Amendment 36 is also saying “Let’s deal with the people who seek to exploit misery”. Too much of the Bill deals with the victims: those who are fleeing persecution or seeking sanctuary. Deal with the criminals; do not criminalise those being exploited by the people smugglers. Support the victims and deal with the smugglers. Amendment 36 seeks to address that, as does my Amendment 129. Let us go after the people smugglers and stop criminalising the victims.

[Lord Kerr of Kinlochard (CB)]

I agree with the noble Lord—he made the point comprehensively—except that he pulled his punches. Yes, the last line of Amendment 36 is very important, for the reason he gave, but it is a paradox because the effect of the Bill, if we pass it in its present form, will be to increase people smuggling. It will produce more deaths in the channel because, instead of opening safe routes, we are criminalising unlawful arrival. We are criminalising people who come undocumented and seek asylum. We are putting into group 2, where they are to be discriminated against, people who come indirectly even if they come by a regular route—say, on an airline. Tell me: how do you come directly from Kabul? How do you come directly from Syria, if that is your country of citizenship but you are one of the 3 million Syrians who are in Lebanon and Turkey?

It is a Catch-22 situation, since 90% of asylum seekers who come to this country do so from countries where we insist that the people coming must have visas or entry certificates, but we do not issue entry certificates to people who want to come and seek asylum. The effect of this Catch-22 is to make safe routes impossible and close them down. The only way to stop deaths in the channel is to create more safe routes but the effect of the Bill, if passed in its present form, will be to produce more deaths there. I entirely agree with the noble Lord, Lord Coaker, when he says that we do not solve the problem by passing laws but, if we pass the Bill in this form, we will make the problem a lot worse.

[Lord Alton of Liverpool (CB)]

My Lords, I rise to briefly support what the noble Lord, Lord Kerr, has just said to the House about the importance of creating more safe routes and dealing with the Catch-22 he described. The noble Baroness, Lady Williams, will recall that I raised with her the position of British embassies in parts of the world of the sort the noble Lord has just referred to and the role they might play in sorting out genuine asylum claims, which people cannot make. I gave the noble Baroness examples of the Yazidis and others in northern Iraq, which I visited in 2019, who, if they could have gone to a British post or embassy and had the matter dealt with on the ground, would have been saved much misery. I appeal to the noble Baroness to look at this question of safe routes and how we bring about a way in which incredibly vulnerable people are able to be sorted out and given a chance to come to places of safety and sanctuary.

I want to support what the noble Lord, Lord Coaker, said as well. So much in this Bill is about what can be described as the pull factors that the Home Office always refers to, but we have failed to give sufficient attention to the push factors that bring some of those more than 80 million who are displaced or refugees in the world today. There was a Cross-Bench debate only last month where Members from all sides of your Lordships’ House called for greater international efforts to be made, co-ordinating a campaign by the great nations in the way we have done over issues from COP 26 to Covid. Eighty million people displaced or refugees worldwide requires international action. We should be convening an international conference on that subject alone, and I would love to see this country taking the lead on that.

I would also like this country to take the lead in standing up to some of the internet companies that are referred to in Amendment 129, from the noble Lord, Lord Coaker, and the noble Baroness, Lady Neville-Rolfe. It is outrageous that companies believe they can be above the law and do as they wish in enticing people—the kind of people the noble Lord, Lord Coaker, described—who feel they are destitute and at risk with advertisements for illegal routes to countries such as the United Kingdom. That is against the law; it should not require a new Act of Parliament to deal with it. I hope when the noble Lord, Lord Sharpe, comes to reply to the debate, he will be able to tell us that more is going to be done about that now.

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A refusal to accept the two-tiered proposals, as put forward in these amendments, would be a small but important step in the right direction. I commend these amendments to the Committee. I beg to move.

[Lord Kerr of Kinlochard (CB)]

I would like to say a word in support of the spirit of these amendments. Specifically, I would like to speak in support of Amendments 37, 38 and 42, in the name of the noble Baroness, Lady McIntosh, introduced brilliantly by the conscience of the House, the noble Lord, Lord Griffiths. Yet, my heart is not in this game. This is what Americans call “putting lipstick on a pig”—it is still a pig.

The only element of this group which I can whole- heartedly support is that Clause 11 should not stand part of the Bill. Our Constitution Committee gave us a choice: it said that we should either remove or redraft Clause 11. I understand what all these redrafting amendments are trying to do, but it is not a good idea. This is not a case for “death by a thousand cuts”; it is a case for a “short sharp shock”. We need to take Clause 11 out of the Bill.

Why? Because the refugee convention matters; it is an important plank in the international legal order. Clause 11 flies directly in the face of the refugee convention, because it creates two classes of refugees: one with convention rights, and one without convention rights. The charge that it is a breach of the convention is put authoritatively not only by our Law Society and the Law Society of Scotland, but by UNHCR in its 72-page memorandum. That is a pretty authoritative source; indeed, it is the authoritative source. When we set up the refugee convention, we asked UNHCR to be its guardian, to supervise its application, and to report to the Secretary-General on laws on refugees in the signatory states. Therefore, it was not interfering, but doing the job which we, when we wrote the convention, asked it to do. I find it a shaming thought that its report on this Bill will have been seen by all 147 signatory states.

Why is UNHCR so sure that the Bill undermines the convention? Clause 11 is the heart of the matter. UNHCR believes that creating a two-tier system for handling asylum seekers—one class legitimate, one illegitimate—conflicts with the simple definition of a refugee in Article 1 of the convention. A refugee, says the convention, is someone who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

That is all: he is outside his country of origin. The definition says nothing about any requirement to seek asylum in a particular place, and nothing about regular or irregular routes; it contains no suggestion that he is out of order if he does not seek asylum in the first safe country—there is no such requirement anywhere in international law.

A refugee is a refugee is a refugee, and must be treated as such, according to the provisions of the convention, however he got there. That is what the convention says and that is what we have believed down the years. Stretching the meaning of Article 31, as the Government seek to do, cannot change or qualify what Article 1 says, or add something that it does not contain. I have set out the definition of a refugee. There are no two categories; the definition is very simple.

I am no lawyer, and here I am surrounded by eminent, terrifying legal expertise—even including the noble and learned Lord, Lord Clarke of Nottingham; as his former private secretary, I am horrified to see him there—but the definition of a refugee, and of our sin in this Bill, from the UNHCR and the law societies, must be right, because I cannot see how 147 countries would have signed up to the convention if they had thought it meant what the Government now say it means. Four in every five refugees are in developing countries adjacent to their country of citizenship. Would host countries have agreed that guests should never move on, and that they should be required to apply for asylum only in their first host country? Would the developing world have agreed that the developed world could wash its hands of the problem of looking after refugees because they were going to have to stay in the first safe country they reached on fleeing over a frontier? I do not think so. It plainly was not what those who signed up to the convention thought it meant, and the attempt to have an expansive reading of Article 31 and so change the meaning of the convention as a whole, in particular Article 1, looks quite a legal stretch. I agree with our Constitution Committee, the law societies and, importantly, the UNHCR.

I feel for the Minister, because the case she is asked to make on the legal position and the convention seems as eccentric and unconvincing as the claim of the noble Lord, Lord Frost, that you can extinguish the role of the CJEU in Northern Ireland by using Article 16 of the Northern Ireland protocol. I will stay away from the law—this is a rash foray—but I will stick with the UNHCR, the law societies and the conventional reading of the convention, which is how 146 countries still read it, and say that we really need to get rid of Clause 11.

[Baroness Hamwee (LD)]

My Lords, Clause 11 is the most objectionable clause in this whole objectionable Bill. It has to go, and not just because of what the convention says, our having signed and supported it and so on. It is not just because there is a convention but because the convention is right. However, we have to pick at the Bill. We will have the debate that the noble Lord, Lord Kerr, has started us off on so well on Report, but this is our opportunity to see whether there is any give in the Government’s position and whether there is anything we can, quite bluntly, take apart on Report in a way we have not yet thought of.

My noble friend Lord Paddick, the noble Lords, Lord Rosser and Lord Blunkett, and the right reverend Prelate the Bishop of Durham have indicated their objection to the clause standing part. Had we been able, under the procedures of this House, to add more than four names, I think there would have been a very long list.

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[Lord Horam (Con)]

I will not take another intervention, if the noble Baroness does not mind, as I have given way twice and want to finish what I am saying. I do not want to go on too long.

This House has to take into account that the silent majority have very clear views about this which they have held consistently for a long period and which have not been heard, and this has had a major effect on the policy positions of the country. In my view, it has had a deleterious effect, unfortunately; I would rather we had stayed in the European Union, but that is the fact we have to face.

It is generally admitted that we are now dealing with a very difficult, specific problem, one aspect of the whole immigration problem, namely illegal crossings of the channel. It is a small part of the problem that creates a bigger problem. Many people have raised wholesale migration, which I understand is a huge issue which is tackled in many different ways—through international development policies, as well as immigration policies, and so forth. However, there is a specific problem here which any Government of any colour would have to tackle, namely people smuggling people—not brandy, tobacco or commodities, but people—into this country illegally, day after day, against the law. That is something that no self-respecting Government can ignore; they simply cannot.

[Lord Kerr of Kinlochard (CB)]

The noble Lord, Lord Horam, makes a fair point: we must certainly take account of public opinion. But I think he should take account of the extent to which political leaderships affect public opinion. The history of the last decade is a history of one of our great parties swinging right on issues of immigration. It is a history of a referendum campaign, where one side argued that 80 million Turks were going to come and there was nothing we could do to stop them. It is a history of a period in which we have constantly been told that we are beleaguered and the target of innumerable people who wish to come here. As the noble Lord, Lord Paddick, explained earlier in the debate, we are well down the league table in per capita terms for hosting immigrants of any hue. It is not good enough just to say, “There go my people. I am their leader; I must follow them.” We are capable of influencing public opinion and that is what we should be trying to do. I will give way in a second—

[Lord Horam (Con)]

Can I just—?

[Noble Lords]

Intervention!

[Lord Kerr of Kinlochard (CB)]

I am not sure who is interrupting whom. If I am interrupting the noble Lord, I will stop.

[Lord Horam (Con)]

With due respect to the noble Lord—I really do have great respect for him—I do not think we want to go through the whole business of Brexit again. My point is a simple one: we have to pay regard to British opinion. It is not as though people are manipulated; they have their own views. They are perfectly capable of taking a sceptical view of some of the people who have tried to make them do things in the past, frankly. They can form their own views—I am sure the noble Lord would agree. I was trying to narrow it down to this particular point on the problem of illegal immigration which, in my view, any Government would have to deal with, whatever their nature or colour.

As the noble Lord who initiated this debate said, many countries are tackling this problem in quite horrific, awful ways. In comparison with what they are doing, what we are doing is completely rational and sensible. It is trying to make a distinction. There are those who are coming in legally and properly, by the routes which are well known. We have a very good record on that, despite what the noble Lord, Lord Paddick, said, in comparison with the rest of Europe. We have not only a reasonable number of people coming in by the normal asylum-seeking routes each year but also the consequences of the Commonwealth, for example our links with Hong Kong, with up to 90,000 people having already accepted the chance to come here from Hong Kong. That is something which Germany, France and so forth do not have the same problem with.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I have been requested to confirm that I did not send a note to the noble Lord, Lord Green of Deddington. I confirm that I did send him a note. There is no law against it, and I am not sure why I was asked. I sent him a note to tell him that he was right.

I welcome my noble and learned friend Lord Clarke to this debate; I am very pleased to see him here and welcome his comments. The Committee will be very well served by listening to him, to my noble friends Lord Horam and Lord Hodgson of Astley Abbotts, and to the noble Baroness, Lady Fox, although she concluded that she was not sure that she could support Clause 11. The points that they made around how generous, warm and welcoming this country is and how we must be careful to take public opinion into account are pertinent. The noble Baroness, Lady Jones of Moulsecoomb, said that if you asked the British public, they would bring back hanging; actually, it was because of public opinion that hanging was abolished in this country, so I do not agree with her premise.

As the noble Baroness, Lady Ludford, said, this group is not, largely, about the 1951 convention but about the point on differentiation. There will be three groups further on dealing with the 1951 convention, but I will answer a couple of points on it now. The noble Lord, Lord Griffiths of Burry Port, said that we should be working with UNHCR. Other noble Lords have made the point that UNHCR disagrees with us. We do not think that there is only one interpretation of the refugee convention. It is for Parliament to decide, and I say to the noble Lord, Lord Kerr, that I do not think that is eccentric. It is democracy. It is for Parliament to decide, subject to the general principles of the Vienna convention on the law of treaties.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to Article 31 flowing from Asfaw and Adimi, and asked why we were altering that. Parliament’s original intention regarding Article 31 is clear in Section 31 of the Immigration and Asylum Act 1999 that a refugee will not be determined to have come directly if they stopped in a third country outside the United Kingdom unless they can show that they could not reasonably have been expected to be given protection under the convention in that country. The courts have interpreted this more generously and we are therefore taking the opportunity to reset the definition to the original intention of Parliament.

The noble and learned Lord, Lord Etherton, made a point about the proposed interpretation of “coming directly” under Article 31 of the convention in Clause 36 not being how it was intended by the convention. We have been very clear that people seeking protection must claim it in the first safe country they reach. That is the fastest route to safety. We will not tolerate criminal smugglers exploiting vulnerable people to come to the UK when a claim could easily have been made in another safe country. The convention does not explicitly define what is meant by coming directly and therefore, it is ultimately for our sovereign Parliament to set out its interpretation of international obligations subject only to the principle of treaty interpretation of the Vienna convention.

The noble and learned Lord also talked about LGBT+ communities, which again we will come to later. We know that they can have difficulties in making and evidencing a claim. That is why our policies and training are designed to support claimants in being able to explain their claim in a sensitive and safe environment.

[Lord Kerr of Kinlochard (CB)]

If I understand the noble Baroness aright, there is nothing to stop this sovereign Parliament setting out how it interprets the refugee convention in future. She enumerated four Members of the Committee who had spoken supportively. I think it is the case that none of them argued that the Bill was not a breach of the convention. We had some powerful legal advice that it was a clear breach of the convention. I ask her to remember that the last time this House was asked to pass a Bill that broke an international commitment was on the internal market Bill, and it took the very clear view that pacta sunt servanda mattered and that we should stick to our word.

[Baroness Ludford (LD)]

I was not clear about the noble Baroness’s reference to me. The fact that I did not actually say that I believed Clause 11 breaks the refugee convention does not mean that I do not think that it does, because everybody else had said it. I was not quite clear what she meant.

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I categorically reject the contention that the UK does not do its fair share. As the noble and learned Lord has pointed out, since 2015 we have resettled more than 25,000 people, half of whom were children, and that is the most in Europe. That is under national resettlement schemes. We are the fourth highest in the EU in terms of asylum applications to the EEA, EU and Switzerland in the year to June 2021. Our family reunion scheme has seen a further 39,000 people settle in the UK. I want to hold up a prop—

[Lord Kerr of Kinlochard (CB)]

I apologise to the Minister, but it will not do. The noble Lord, Lord Paddick, corrected a misapprehension earlier. The numbers she is citing for resettlement are the numbers from the resettlement schemes run by UNHCR. She is not citing the number of people who have come to Turkey, to Lesbos, to Italy or to Spain and have been settled across Europe. It is a narrow definition of “resettlement” that is most misleading. We are taking relatively few, relative to our size, compared to others across Europe.

[Baroness Williams of Trafford (Con)]

My Lords, I was at pains to say that this is under national resettlement schemes. I have not tried to mask the figures. I have been very clear about how many people we have taken under national resettlement schemes.

I was about to hold up a prop, although I know that is not done in your Lordships’ House. I wrote to the noble Lord, Lord Dubs, who had to go, as did the noble Baroness, Lady Fox; she apologised for that. I wrote to noble Lords about the safe and legal routes, and I think the reason that some noble Lords do not want to acknowledge it is that they do not accept what we have done. I have looked at how many different family reunion schemes we have. We have four, including refugee family reunion. I will spend a moment to really spell this out, because some noble Lords just seem to not want to hear it. We have granted over 39,000 refugee family reunion visas since 2015, of which more than half were granted to children. Comparing that to the Dublin scheme, under the Dublin regulation, we transferred 714 people to the UK in 2019. In the same year, we issued 7,456 visas under our family reunion rules. It does not take a genius to work out that is 10 times the amount. Part 8 of the Immigration Rules—paragraph 319X—allows relatives to sponsor. We also have paragraph 297 and Appendix FM. Under Appendix FM, in 2020 there were 40,255 family-related visas granted. Please do not keep talking about us undermining family reunion, because we just have not. It is not true. I ask noble Lords to refer back to the letter that I sent to the noble Lord, Lord Dubs—I think that was last week.

Migrants

Lord Kerr of Kinlochard Excerpts

Thursday 25th November 2021 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

It really is not a pleasure to follow the noble Lord, Lord Desai, because he raises the bar far too high. I am grateful to the noble Baroness, Lady Hoey, for this appallingly well-timed debate, to which I would just like to contribute three sets of facts. First, overall refugee numbers are currently running at about half of where they were 20 years ago. We are not the preferred destination in Europe. We are, as the noble Baroness, Lady Hamwee, said, well down the list of preferred destinations.

Secondly, yes, small boat numbers are up, partly for the reason the noble Lord, Lord Berkeley, adduced—the fences, patrols and heat sensors around the train tracks and marshalling yards mean that people are now driven to the even more dangerous sea route. But the principal reason clandestine numbers are up is that official resettlement routes are shut. Our schemes, in practice, no longer exist. We have closed the Syrian scheme, we have scrapped the Dubs scheme, we have left Dublin III and we have not got an Afghan scheme up and running. The largest group crossing the channel in the last 18 months, by nationality, were Iranians. In the last 18 months, 3,187 Iranians came. In the same period, one got in by the official route. How many came from Yemen in these 18 months? Yemen is riven by civil war and famine. None came by the official route —not one.

My third set of facts is as in the point made by the noble Baroness, Lady Bennett. The Home Secretary says that 70% of channel crossers are

“economic migrants … not genuine asylum seekers”.

That is plainly not true. Her own department’s data show that, of the top 10 nationalities arriving in small boats, virtually all seek asylum—61% are granted it at the initial stage and 59% of the rest on appeal. The facts suggest that well over 70% of asylum seekers coming across the channel in small boats are genuine asylum seekers, not economic migrants.

That is hardly surprising because the top four countries they come from are Iran, Iraq, Sudan and Syria—not Ghana, I say to the noble Lord, Lord Lilley. These people are fleeing persecution and destitution, and the sea route from France is the only one open to many of them. Why not have a humanitarian visa, as the noble Baroness, Lady Hamwee, said? The noble Viscount, Lord Waverley, gave the answer to the objection of the noble Lord, Lord Lilley. Those who had a valid claim for asylum would not be at peril on the sea.

Unless we provide a safe route, we are complicit with the people smugglers. Yes, we can condemn their case and we mourn yesterday’s dead, but that does not seem to stop us planning to break with the refugee convention. Our compassion is well controlled because it does not stop us planning, in the borders Bill, to criminalise those who survive the peril of the seas and those at Dover who try to help them. Of course, we can go down that road. But if we do, let us at least be honest enough to admit that what drives us down that road is sheer political prejudice, not the facts, because the facts do not support the case for cruelty.

EU Borders: Refugees from Afghanistan

Lord Kerr of Kinlochard Excerpts

Thursday 9th September 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

One thing I can assure the noble Lord of is that today the Home Secretary is meeting EU Commissioner Johansson and that migration, including the provision of safe and legal routes, is also being discussed today at the G7. An EU resettlement forum, also attended by the US and Canada, is also due to take place on 27 September. Finally, let me say to the noble Lord that anyone who makes a journey to Europe should claim asylum in the first safe country that they reach.

[Lord Kerr of Kinlochard (CB)]

In our mid-August debate, I asked—without getting an answer then or since—about the fate of the 3,200 Afghan asylum seekers already here in this country. They are unable to work, they have to subsist on £5 a day and most of them must be traumatised by events back home. They are stuck in this limbo of a backlog of asylum cases that is now longer than ever before. Clearly, it is now as impractical to send them back as it would be immoral to do so. Clearly, they need to be given permission to stay. Clearly, their cases should now be approved en bloc. Can the Minister tell us when that will happen?

[Baroness Williams of Trafford (Con)]

The noble Lord talked about a mid-August debate—I do not recall, but I may have misheard him. On asylum seekers, I certainly agree with him on several fronts, including that asylum applications should be expedited as quickly as possible. However, I do not agree that we should grant asylum to people en bloc because we need to be very sure that the people we welcome here are not a threat to this country.

Napier Barracks Asylum Accommodation

Lord Kerr of Kinlochard Excerpts

Monday 14th June 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I fully concur with my noble friend that any journey across the channel is perilous and, as we have seen on many occasions, leads to people who take those journeys dying or ending up in the sea. The only people who benefit from those journeys are the criminals who facilitate them. We continue to work with the French to ensure that people do not take those journeys from the French coast. To that extent, we hope that things will improve.

[Lord Kerr of Kinlochard (CB) [V]]

I declare my interest as a trustee of the Refugee Council. Asylum seekers in Napier barracks, who came via continental Europe, are now being told by the Home Office that before their cases can even be considered, they must spend six months in limbo—six months before they join the queue, lengthening steadily since 2015 and, by March, a record and scandalous 40,000 strong, of those awaiting an initial decision on their claim, not allowed to work and subsisting on £5 a day. Will the Minister answer two questions? First, will she explain how the new limbo is consistent with our refugee convention obligations, given that there is no convention rule requiring applications in a safe transit country? Secondly, will she tell us how sending these people back to continental Europe could be contrived, given that we have left the Dublin convention and have no replacement bilateral agreements in place?

[Baroness Williams of Trafford (Con)]

The key phrase used by the noble Lord is “continental Europe”. These people are coming from safe countries; Europe is a safe set of states. We believe that the inadmissibility rules are consistent with the refugee convention. They have not been dreamt up by us recently, but are long standing. We are currently in discussions with other countries on sending people back who should not have applied for asylum, coming from a safe country.

Refugees: Napier Barracks

Lord Kerr of Kinlochard Excerpts

Thursday 11th February 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I can echo the words of my right honourable friend the Home Secretary, who has said that the asylum system is broken. Over the next few months, we will see how we will change the immigration and asylum process to be firm and fair, while ensuring that it absolutely clamps down on those facilitators of illegal migration, who are criminals.

[Lord Kerr of Kinlochard (CB) [V]]

The 600-plus people in Napier and Penally are only the unacceptable tip of an unacceptable iceberg of over 60,000 asylum seekers now waiting for an initial decision on their case. They are not allowed to work, they are expected to survive on less than £40 a week, and three-quarters of them have been waiting for more than six months. It is not just the virus; the numbers more than doubled in the two years before the virus struck. As the Minister said, it is the system that is broken. NGOs such as the Refugee Council—I declare my interest as a trustee—try to mitigate the consequences, but only the Government can mend the system. Can the Minister assure us that the Government now intend to act to make the asylum system fair?

[Baroness Williams of Trafford (Con)]

I refer the noble Lord back to the answer that I have just gave to my noble friend Lord Balfe, and the answer is yes.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

In my experience, human beings are able to put up with very difficult conditions if there is some hope at the end of the road for them, but where is no hope, there is only despair. Refugees and people wanting to claim asylum will do very dangerous things to find safety. If passed—I hope that it will be—this amendment will give hope to many child refugees in Europe. I beg to move.

[Lord Kerr of Kinlochard (CB) [V]]

It is a pleasure to follow the noble Lord, Lord Dubs, although he is also a bit of a pain because he has made such a powerful case that there is nothing really left to add. My speech should be seen as a footnote to his.

I declare my interest as a trustee of the Refugee Council. I followed the noble Lord there too; for a long time, he was the driving force and inspiration behind the Refugee Council. I want to get my revenge on him for stealing all the arguments that I was going to make by embarrassing him in telling the House that the Refugee Council now meets in its new headquarters in Alf Dubs House in east Stratford. I want to get that on the record just to embarrass the noble Lord.

At the end of the Committee stage, the Minister kindly wrote us a letter to pick up on some of our points. In relation to this issue, the Minister confirmed that it remains the Government’s goal to negotiate new arrangements for family reunion for unaccompanied asylum-seeking children. I should hope so, because we will fall out of the Dublin III regime at the end of the year and new arrangements will be needed if we are to fulfil our responsibility for these vulnerable children, stuck on their own in continental Europe, and unite them with their families here.

As the noble Lord, Lord Dubs, said and as my Refugee Council experience confirms, there is considerable evidence that the country would like to see us do so. Of all the asylum issues on which there is considerable public interest and support, family reunion is the one where public opinion is most strongly in favour of us doing our job.

I have to tell the Minister that her letter reads a little disingenuously. It repeats our government line, which has lost all credibility because there is no relevant ongoing discussion about new arrangements. There is no negotiation on this subject with the EU 27; the issue was not addressed in the first Frost-Barnier negotiations, which led to the withdrawal agreement; and it is not being addressed in the current negotiations, which might lead to a free trade agreement, and it now cannot be—Monsieur Barnier has no mandate to discuss it because our Government failed to include it in the joint political declaration a year ago.

The joint political declaration was, understandably, taken by the EU as the basis for the mandate for the present negotiations. We tore up the political declaration. We decided that on foreign policy, governance and, notoriously, on the level playing field, we no longer meant what we had subscribed to, but the other side took it as defining the negotiation that is now going on. Also, there was nothing about replacing the Dublin regulation in it.

So there can now be no bilateral UK-EU arrangement from January; nor can there be UK bilateral agreements with individual EU member states, because this is a subject on which we and they decided some time ago to empower the Commission to act on our behalf. Therefore, what will be needed is a new free-standing, EU-UK negotiating track. That does not exist now and will have to be established. We could of course have sought to establish it at any time but we did not, presumably because the subject was not particularly high on the list of the Government’s priorities. The amendment would change that, but we too can change it: we can put it on the Government’s priority list, bypassing this amendment, and I very much hope that we will.

Because the Minister would be very disappointed if I did not raise it, I shall say a word about the camp on Greece and the 400 unaccompanied children sleeping rough because the camp burned down. The Government’s line, as set out in the Minister’s letter, is that we are in regular touch with EU member states, including Greece, which are responsible for arranging transfers. That is the standard line, relying on the Dublin regulation, from which we are pulling out, and there is nothing proactive at all. There is nothing about going to find those of the 400 who would like to join their families here. It really is shaming when one thinks of what the Germans are doing, and it really is extraordinary given British public opinion on family reunion.

I strongly support the amendment and I hope that, when she speaks to it, the Minister will at last be able to tell us that we will do something about the unaccompanied children who are vulnerable and sleeping rough on the island of Lesbos.

[The Lord Bishop of Southwark]

My Lords, it had been the intention of the right reverend Prelate the Bishop of Durham to speak to this amendment, tabled in his name as well as that of the noble Lord, Lord Dubs, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kerr of Kinlochard, and but for the hiatus in the voting technology when the House last considered the Bill on Report, he would have done so. He regrets that he is unable to attend today’s proceedings.

When we previously considered this amendment, in Committee, the right reverend Prelate the Bishop of Durham reminded us of the story of the good Samaritan. It is not just, or principally, a story of instinctiveness goodness, or we would soon tire of hearing of it. It recounts several characters, including a person who needs help, those who do harm and those who have choices about their actions in response—doubtless all individuals who paid their taxes, counted their accomplishments, did well by their families and friends, and obeyed the law. It was the victim’s instinctive enemy who did right by him in showing compassion. Sometimes the choice we all face is whether or not to exercise generosity of heart.

We read in the helpful letter from the Minister of 30 September about the scale of refuge granted to vulnerable children proportionate to the European Union. Such welcome, especially to the most vulnerable, is to be acknowledged, as is the Government’s attempt to reach an agreement with the EU on post-transition arrangements. However, given the sheer scale of raw human need that exists in the area of vulnerable children and family reunification, will the Minister please explain to the House what she believes the disadvantages would be of importing into our domestic law the very wholesome provisions of Regulation (EU) No. 604/2013? The regulation is entirely sensible and reasonable in requiring the Government to consider the best interests of the child.

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[Lord Kerr of Kinlochard (CB) [V]]

I am very grateful to the Minister for her courtesy in responding to my point. I want to make sure that there is no misunderstanding between us. I did not challenge the statement in her letter that

“it remains our goal to negotiate”

new arrangements. I said that there is no current negotiation of these new arrangements. I recall the proposal the Government made before the summer; my view of it was similar to that expressed by the noble Lord, Lord Dubs, in this debate. However, the important point is that the EU had no mandate to discuss it and it is not being discussed.

I have two questions. First, does the Minister agree that there is now no negotiation of Dublin III successor arrangements for the United Kingdom? Secondly, does that mean that there will be no family reunion arrangements on 1 January unless we pass this amendment?

[Baroness Williams of Trafford (Con)]

I think I quoted the noble Lord, Lord Kerr, saying that he did not think it was a priority for the Government. He made a point about there being no mandate. I cannot comment on the minutiae of negotiations; all I can say is that there is a sincere and genuine offer on the table, and we stand ready to progress those negotiations.

The noble Lord asked me to confirm that there will not be a successor to Dublin III. We are not trying to create Dublin; we are trying to create a system in which we can bilaterally—by which I mean between us and the EU—ensure the transfers of people.

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[Baroness Bull (CB)]

My Lords, I fully support all the points so eloquently argued, once again, by the noble Lord, Lord Oates. I will speak briefly only to reiterate the points I raised in Committee, which were not fully addressed by the Minister in her response.

My first point relates to people in abusive and coercive relationships. I pointed out then, and remind the House now, that a common strategy in coercive control cases is to deprive the victim of access to phone and internet use. This raises the question of how someone who escapes a relationship with a coercive partner will be able to prove their status in future if, as is likely, it was the abusive partner who managed the process of claiming settled status in the first place. In seeking to rent a safe place to live, or to get a job in order to pay the rent, they would be obliged to contact the partner they are likely to have struggled so hard to leave. This is not a sidebar issue. Coercive control is now, quite rightly, a criminal offence in the UK. In the year to March last year, there were 17,616 offences recorded by the police in England and Wales. Can the Minister explain what protection there will be for victims of coercive control or abuse, so that they are not forced back into contact with their abuser in order to prove their immigration status?

My second concern is for people with impaired mental capacity, who are unlikely to have been able to navigate the application system alone, or to have been able to enter into mobile and internet accounts in their own names. Given the fluidity of the social care workforce, there is no guarantee that, at a later point in life when they are applying for a job or to rent a home, they will still be connected with the carer or caseworker who provided assistance. Mental capacity changes over time. Someone who has mental capacity when they apply may lack it at a later date, without the moment at which this change takes place being immediately clear. Can the Minister explain how people who lack mental capacity, now or in the future, are to be protected?

In response to these concerns, which I articulated in Committee, the Minister reiterated the Government’s commitment to

“delivering a service that reflects the diverse needs of all users.”—[Official Report, 14/9/20; col. 1094.]

Given everything that noble Lords have argued on this question, this evening and previously, does she not agree that delivering a service that reflects the diverse needs of all users will include, first, an assessment of which members of society would be disadvantaged by the lack of a physical document; and, secondly, an assessment of the impact of accessibility issues on all potential service users?

I know that the Minister will agree that equality of access should be at the heart of every government policy. This tiny amendment—a simple slip of paper and only if requested—does nothing more than ensure that this is the case. For this reason, it has my support.

[Lord Kerr of Kinlochard (CB) [V]]

I congratulate the noble Lord, Lord Oates, on his rather brilliant introduction of this amendment, which I strongly support. The case for it would be made very succinctly were John Stuart Mill or Jeremy Bentham with us. The task of government is to engender the greatest happiness for the greatest number. People want physical proof and, as the noble Lord, Lord Polak, said, our inboxes demonstrate how unhappy so many are at the prospect of being denied it. I can understand why.

We are talking about people—some are vulnerable, some short of digital skills—who are now all already facing a period of unexpected but inevitable uncertainty. Every time they want to apply for a job, rent a place to live, seek medical help, or board a plane home, they, and the potential employer, landlord, healthcare provider or foreign airport employee, will have to go through a multistep process involving passport, date of birth, a unique, one-off, code sent to a phone, and the email address and business details of the employer, landlord, doctor or airport employee. They will both, separately, have to access the Government’s website, relying on having all the relevant information to hand, the wi-fi signal being good and the website not going down. It is hardly surprising that some of these people worry that the employer or the landlord would prefer to skip the hassle and instead take on someone who has physical proof of their status.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I hope the Government do not want to put these visits, exchanges and language schools in jeopardy, which clearly is the fate that will befall them unless the Government are prepared to give this further consideration. I hope the Minister will agree to take this back to give it one further look.

On the question of security—I know he commented on this in Committee—he should note that this amendment allows juniors to travel for single short-stay visits of less than 30 days. We know many of these juniors will receive new ID cards in the coming years, with added security features such as biometric information. The aspiration of the EU countries is for all new ID cards of this kind to be made available by 2021. Most of these young people will be travelling in groups co-ordinated by one or more passport-carrying teachers or group leaders and will remain part of this group for the duration of their time here.

On the other point raised in Committee, which was the Minister’s suggestion that collective passports be used, I understand, from those who travel from the UK using collective passports, that this can be a very bureaucratic and cumbersome procedure. Collective passports have not been used in many EU countries in recent years, so this is not a practical solution.

At the end of the day, this is a very valuable business in the UK, with so many language schools, and we have huge benefits from young people going from the UK to EU countries and vice versa. Surely the Home Office would want to do what it could to help this. I hope the Minister will just agree to give this some further consideration.

[Lord Kerr of Kinlochard (CB) [V]]

I too will be very brief, given the hour. This is a very modest amendment, admirably introduced by the noble Baroness, Lady Prashar. What she proposes is cost free and risk free. Children coming in in school parties and on exchange visits for no more than 30 days and no more than once a year are not a substantial threat to the sceptred isle. The amendment will also do a lot of good. Free movement, Schengen and identity cards mean that large numbers of continental children do not have passports. If schools considering bringing them here face the prospect of insisting that they first get passports or go to the considerable trouble of getting a group passport, a significant proportion of schools will prefer to take the class somewhere else. The amendment would prevent that happening.

More generally, losing free movement inevitably means a diminution of personal contacts. We and our continental friends will be further apart. That is a great pity. Any cost-free, risk-free measure to limit this continental drift should be welcomed, so I welcome the amendment.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Lords, Lord Naseby and Lord Blunkett, have withdrawn, so I call the noble Lord, Lord Paddick.

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[Lord Roberts of Llandudno (LD) [V]]

What a privilege it is to share these arguments with people some of whom have been here for many years. I must say how much I appreciate the work that my noble friend Lady Hamwee has done over the years in leading the Liberal Democrat camp.

What sort of world are we aiming for? When we look at what the present Home Secretary proposes, it is even more harsh. She does not propose any end to detention—it is indefinite. Instead she is leading a discussion—I hope it does not come to more than that—on transporting or deporting people to distant islands. The whole thing breaks the spirit of all those people who for some reason or another have found themselves in this detainee situation. The UK should be the leader in building a humanitarian approach to what will be an increasingly difficult situation as climate change and other things affect the areas of Africa that grow the grain and feed the people. The people will move. They will want a new home. Should the UK not join other nations in leading to try to find an honourable way, not one that is so heart-breaking to so many people? I ask the Government to take another look. Let it be a humanitarian look and let us go on to be rather proud not of what we have done in hostility but of what we have done in caring and hospitality.

[Lord Kerr of Kinlochard (CB) [V]]

I support Amendment 20 and will address the asylum angle. Ms Patel is quite right that the asylum system is broken, but the repairs that are required need not—must not—mean recourse to water cannons or wave machines, disused oil rigs or ferries, Ascension Island or Papua New Guinea, all of which would mean further breaches of international law, this time the refugee convention.

The problem is not the one that Ms Patel addressed yesterday. The realm is not at risk from the summer surge in small boat arrivals. Although as a proportion more are coming that way, overall numbers of asylum applications are sharply down—by 40% compared to one year ago. No doubt that is partly related to Covid-19, but it shows how absurd is talk of invasion. The real problem is how to make the system more efficient and more humane. Ms Patel does not need to think outside the box. The tools are in her hands now. Making it more efficient means putting more resources into tackling the backlog and reducing the queue and providing better guidance to those who have to take the decisions.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Kerr of Kinlochard Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Lord Kerr of Kinlochard (CB) [V]]

My Lords, I congratulate the Minister on her stamina and courtesy in enduring a lot of Second Reading speeches earlier. I wonder whether, like me, she misses Lady Mar, who was very good at intervening on Report to criticise those making Second Reading speeches. This debate is rather different and I sympathise with the Minister for a different reason: she has a very difficult task in answering the question from the noble Baroness, Lady Hamwee, repeated again tonight.

The oddity of this debate is that we are seeking to avoid discrimination against UK citizens. The EU citizen who is here now or will be coming here by the end of this year has, quite rightly, the right to keep here or bring in family members, but from 2022 the UK citizen living abroad, where he or she went exercising legitimate expectations, will have that right withdrawn. I agree with everything that the noble Lord, Lord Oates, has just said.

I find it hard to understand the response that the Minister gave to the question from the noble Baroness, Lady Hamwee, last time. I am particularly puzzled by the Catch-22 situation: from 2022, the accompanying partner will have to satisfy the minimum income requirement, but how will the returning partner be able to demonstrate the six-month history of earning in order to satisfy the requirement? It seems to be a really rather vicious Catch-22.

However, the core of the matter is the extraordinary callousness of requiring our citizens living abroad to make the difficult choices that are spelled out in our email inboxes these days: whether to break up the family, to favour looking after a dependent relative in the country of residence somewhere in the EU 27, or to come back to look after a dependent relative in this country. Those are the only three options available. It really is extraordinary that we should put our citizens in that position. They exercised their legitimate expectations and expected to lose none of their rights—and were told that they would lose none of their rights—when they chose to marry and live somewhere in the EU 27, or 15 or 12, or whatever it was at the time.

We need a proper answer to the question from the noble Baroness, Lady Hamwee. If we do not get one—and I feel sorry for the Minister, because I do not think that she will be able to answer satisfactorily—then I will certainly vote for this amendment.

[Lord Judd (Lab) [V]]

My Lords, the noble Lord, Lord Oates, was absolutely right. Do we want to be a society based on compassion and concern, or to become a nation without a beating heart on humanitarian issues of this kind? As far as the European Union is concerned, there is of course a special challenge because citizenship means citizenship, going right back to classical times, but we took away what people in good faith had come to understand as their citizenship and the rights that followed from it when they went to make lives, futures and careers overseas. They never dreamed that they were breaking links with their home base. Many of them wanted to return at some point and of course, as we have heard from one speaker after another, many have families rooted here for which they feel responsible; they want to be able freely at a time of crisis to return and succour the needs of such people.

It is altogether good news that the noble Baroness, Lady Hamwee, has moved this amendment; it represents the kind of Britain in which I want to live, given the values behind it. Do we believe that families are fundamentally important psychologically, for mental health more generally, for physical health and to the well-being of citizens, or not? Do families provide a unit of stability in the midst of an increasingly complex, demanding and unpredictable world, or do they not?

What are we doing with this Bill? It is almost impossible to understand how the Government have got themselves into this position. I hope we stand very firmly behind the noble Baroness this evening, or whenever it is we are allowed to vote on this matter.

--- Later in debate ---

[The Lord Bishop of Durham [V]]

My Lords, I too speak in favour of this amendment and support fully the explanation of why it is needed by the noble Lord, Lord Dubs, but also the very helpful interventions by the noble Baronesses, Lady Meacher and Lady Smith, who asked for clarification of just what the objection is. Like the noble Baroness, Lady Smith, I do not read the amendment as declaratory. It is about being granted indefinite status but, as both noble Baronesses said, if the Government can come up with slightly better wording, fine.

I simply remind the Minister and the Government that it is their responsibility to protect the most vulnerable children in our society, which surely includes children in care. They have an added vulnerability when they have uncertain status, so it is absolutely the Government’s responsibility to ensure that these children are not left with anything indefinite at all about their standing, and that their welcome as part of our society is clear.

In the Psalms, the King is told that he is to

“defend the cause of the poor of the people”

and

“give deliverance to the children of the needy”.

The King in those days, of course, had absolute rule. For our current purposes, it falls upon the Government to defend the cause and give deliverance to the children of the needy. I hope the Minister will agree that this amendment is necessary and that if it needs altering, she will bring back the relevant changes at Third Reading.

[Lord Kerr of Kinlochard (CB) [V]]

I refer to my interests as recorded in the register. In the letter that the Minister was good enough to send us at lunchtime today, she said of this amendment that

“it would risk putting children in a more vulnerable position because they would effectively be required to prove that they were once a child in care every time throughout their adult life that they were required to prove their status. We cannot put our most vulnerable children in this precarious position and the Government is adamant it will not do so”.

Yes, but I would like to encroach, very rashly, on the territory of the right reverend Prelate the Bishop of Durham and refer to King Herod. I am sure King Herod was quite adamant that it would be entirely wrong to make all boys in and around Bethlehem prove throughout their adult life that they were not the King of the Jews, particularly when a simpler remedy was at hand. The statement in the letter is odd.

I supported this amendment in Committee because it seemed to me that there was a real risk of these children falling into a crack and that we had a duty to make sure that they did not. I do not think that their problem, if this amendment were now carried, would be that they had, for the rest of their lives, to carry proof that they had once been in a care home. I do not see that at all. I listened very carefully to the noble Baronesses, Lady Meacher and Lady Smith, and it seems to me that they would be carrying proof of their status, which would have been established; that would be the proof they would carry, not proof that they had once spent time in a care home.

If there is a technical problem with the drafting of the amendment that enables the drafter of the Minister’s letter to conclude or pretend that we who support this amendment are ready to see people having to prove, for the rest of their lives, that they were in a care home, let us correct it. I think the amendment does not indicate that this is the risk; it requires local authorities to act in loco parentis and, if it is in the best interests of the child, to get the process under way to give children the proof of the status that they will enjoy like anybody else who has citizenship, pre-settled or settled status, leave to remain or whatever. That would be the proof they would need to carry and, yes, that might be quite onerous, but the Minister could assist us on this when we come to Amendment 18 and agree with those of us who think that it would be a kindness to allow physical proof.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I am always attracted to any amendments put down by the noble Lord, Lord Dubs, as he is inestimable in this field. I was going to ask my noble friend on the Front Bench some questions, but they have already been asked.

We have one advantage—or I do—which is that, because we are talking about a deferred Division on Monday, I can listen to my noble friend the Minister’s replies and, more importantly, have the weekend to digest them before I decide whether I shall support the noble Lord, Lord Dubs, in this amendment. I agree with those who say that, if the amendment is deficient in some ways, I would like to hear that something will be brought forward that could rectify this and make it possible for the sentiments in the amendment to be raised.