Safety of Rwanda (Asylum and Immigration) Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for their contributions to this debate. I will turn first to Amendment 39, tabled by the noble Lord, Lord Blunkett. As I set out in Committee, we do not consider it necessary to make this amendment.

Clause 1 sets out the obligations that the Government of Rwanda have committed to under the new treaty. The addition the noble Lord proposes does not reflect the arrangements under the treaty. Enabling persons whose claims are successful in Rwanda to return to the UK would be entirely inconsistent with the terms and objectives of the treaty. Those relocated to Rwanda are not intended to be returned to the UK, except in limited circumstances. Article 9 of the treaty clearly sets out that Rwanda shall process claims for asylum in accordance with the refugee convention and this agreement.

Since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. Human rights have been a key consideration throughout this work, including the treaty, to confirm the principles for the treatment of all relocated individuals in an internationally binding agreement and strengthened monitoring mechanisms to ensure practical delivery against the obligations. For example, individuals, once relocated, will have freedom of movement. They will not be at any risk of destitution, as they will be accommodated and supported for five years. They will have access to a generous integration package so that they can study, undertake training and work, and access healthcare.

For those who are not registered as refugees, Rwanda shall consider whether the relocated individual has another humanitarian protection need. Where such a humanitarian protection need exists, Rwanda shall provide treatment consistent with that offered to those recognised as refugees and permission to remain in Rwanda. Such persons shall be afforded equivalent rights and treatment to those recognised as refugees and shall be treated in accordance with international and Rwandan laws. For those relocated individuals not recognised as refugees or granted protection, Article 10 of the treaty provides that Rwanda shall regularise their status in the form of a permanent residence permit and provide equivalent treatment as set out in Part 2 of Annex A.

It is the Government of Rwanda, and not the UK Government, who will consider asylum or protection claims and who will grant refugee or protection status to those relocated to Rwanda under the treaty that will underpin the migration and economic development partnership. As is made clear in the agreed terms of the treaty, those relocated will not be returned to the UK except in limited specified circumstances. Obtaining refugee status in Rwanda does not grant that person any rights within the UK, as would be the case for any other person granted refugee status in Rwanda who had not been relocated from the UK. Anyone seeking entry to the UK in the future would have to apply through legal routes, such as the work or family route, with no guarantee of acceptance.

Amendments 9 and 12 tabled by the noble Lord, Lord Anderson, and Amendment 19 tabled by the noble Baroness, Lady Chakrabarti, seek to qualify the requirement for decision-makers, including courts and tribunals, to conclusively treat Rwanda as a safe country, thus allowing individuals to challenge removal decisions on the grounds that Rwanda is not a generally safe country.

The treaty, the Bill and the evidence together demonstrate that Rwanda is safe for relocated individuals and that the Government’s approach is tough but fair and lawful. The Government are clear that we assess Rwanda to be a safe country, and we have published detailed evidence that substantiates this assessment. This is a central feature of the Bill, and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic courts. The conclusive presumption in the Bill that Rwanda is generally a safe country is not, as the noble Lord suggested, a “legal fiction”.

The courts have not concluded that there is a general risk to the safety of relocated individuals in Rwanda. Rather, the Supreme Court’s findings were limited to perceived deficiencies in the Rwandan asylum system and the resulting risk of refoulement should any lack of capacity or expertise lead to cases being wrongly decided. As we have repeatedly set out, the treaty responds to those key findings. The assurances we have since negotiated in our legally binding treaty with Rwanda directly address these findings by making detailed provision for the treatment of relocated individuals in Rwanda, ensuring that they will be offered safety and protection, with no risk of refoulement.

We have been clear that the purpose of this legislation is to stop the boats, and to do that we must create a deterrent that shows that, if you enter the UK illegally, you will not be able to stay. We cannot allow systematic legal challenges to continue to frustrate and delay removals. It is therefore right that the scope for individualised claims remains limited, to prevent the merry-go-round of legal challenges and enable us to remove from the UK individuals who have entered illegally. We cannot allow illegal entrants to be able to thwart their removal when there is a clear process for the consideration of a claim based on a risk of serious and irreversible harm. We cannot allow the kinds of spurious legal challenges we have been seeing for far too long to continue.

It is for this reason that I cannot accept Amendments 23 and 27 tabled by the noble Baroness, Lady Meacher, which seek to lower the threshold for a claim or appeal brought on the grounds that Rwanda is unsafe to succeed. These amendments undermine the core principle of the Bill, which is to limit challenges brought against the safety of Rwanda. The Bill makes it clear that Rwanda is generally safe and that decision-makers, as well as courts and tribunals, must treat it conclusively as such. This reflects the Government’s confidence in the assurances of the treaty and in Rwanda’s commitment and capability to deliver against these obligations. As I have set out, the UK Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system.

Following on from my previous point with regard to relocated individuals in Rwanda being offered safety and protection with no risk of refoulement, I now turn to Amendments 11, 14, 15 and 29 tabled by the noble Lord, Lord Coaker. I consider these amendments to be unnecessary. As I have just stated, yes, the Supreme Court did find deficiencies in the Rwandan asylum system that meant there was a risk that those relocated under the terms of the previous memorandum of understanding with Rwanda could be refouled. However, the UK and Rwanda have since worked closely together to address the court’s conclusions.

As noble Lords are aware, the Supreme Court could consider evidence only up to summer 2022, which was not reflective of the current evidential position. Not only could the court not consider additional work undertaken with the Government of Rwanda to build capacity in the Rwandan asylum system, but it had not had the opportunity to consider the terms agreed under our new legally binding treaty with Rwanda. The treaty makes very clear that no one relocated to Rwanda will be returned to another country, except, in very limited circumstances, back to the UK. This expressly addresses the court’s conclusions by eliminating the risk of refoulement.

As I have said previously, and as I stated in my letter to the noble Lord, Lord Kerr, following the debate on this matter in Committee, the treaty contains, among other provisions, a definitive undertaking from the Government of Rwanda that they will not remove any person relocated under the MEDP, except to the UK, in accordance with Article 11(1).

[Lord Kerr of Kinlochard (CB)]

Can the Minister confirm that the arrangement described in Article 10(3) of the treaty has been devised: that is, the arrangement to ensure that refoulement does not in practice occur? The treaty imposes an obligation on both parties to agree a process. Has it been agreed, and can we see it?

--- Later in debate ---

[Lord Stirrup (CB)]

My Lords, having tried earlier in the day during Questions to be supportive of the Minister, let me now seek to redress the balance. I have appended my name to Amendment 44 for two reasons: first, because I regard it as essential that we meet the obligations we have undoubtedly accrued to those who have supported the UK’s overseas endeavours in the past; but, secondly and equally, because we need to protect our ability to garner such support in future—support that will be crucial in many instances to the success and safety of our own Armed Forces. It is for this reason that faster and better handling of currently outstanding issues, such as those pertaining to the Afghans, will not resolve the issue.

The Bill has passed the other place and will undoubtedly become law. This amendment does not in any substantive way affect the powers and arrangements set out in the Bill. It carves out a limited exemption. The Government will undoubtedly argue that the more exemptions, the weaker the Bill. That may be, but it seems to me that is a pretty important exemption. That really is the question before your Lordships: would the harm done to the UK by not agreeing this amendment outweigh the impact that agreeing it would have on the Government’s objective of ceasing illegal immigration? The answer, it seems to me, is an overwhelming yes, and therefore I believe we should agree the amendment. The Minister will undoubtedly disagree. My proposition to your Lordships is therefore this: let us pass the amendment and send the issue back to the other place and let us then see what importance it attaches to the safety of those who have hazarded their security and their very lives in support of global Britain’s overseas endeavours.

[Lord Kerr of Kinlochard (CB)]

My Lords, there is an irrefutable case, in my view. It is very odd when you think about it. We had three days in Committee and a long Second Reading, and the Government have heard nothing from us which is of any interest to them. There are no government amendments on the Marshalled List today, not a single one, and the Government have shown no signs of picking up, improving, adjusting, or taking advantage of any of the amendments tabled by anyone all around the House. I am tempted to say it is rather contemptuous. We have taken their Bill seriously. I am not sure that they have taken seriously what we have said about the Bill, but now we come to the test because this group contains nothing which would in any way detract from what the Government are trying to do.

Having heard the explanation by noble and learned Baroness, Lady Butler-Sloss, of the modern slavery amendment, that it cannot be right to treat the victims of modern slavery as perpetrators and it cannot be right to penalise victims; having heard the arguments advanced by noble and learned Lord, Lord Etherton, who has drawn attention to what clearly is a lacuna—not a large lacuna, but a real lacuna—in the Bill; and having heard the noble Lord, Lord Browne, explain what seems to me to be a debt of honour, it would not cost the Government very much to say, “Okay, we have heard you. Maybe we want to adjust your wording, but we are prepared to incorporate your thoughts because you hit on three real points, not seriously damaging to our Bill, where changing our view would be the honourable course to take”.

I very strongly support the amendment from the noble Lord, Lord Browne. The service that I was privileged to lead is a small service, which, in my time, employed more than 10 locally engaged staff for every single member of the Diplomatic Service in our high commissions and embassies around the world. The vice-consuls, the clerks, the drivers, the security guards, the messengers: many of them worked for us for a lifetime. In certain countries, at certain times, having worked for us puts such people in grave danger. One thinks nowadays of Russia, Belarus, Iraq, Iran and, of course, Afghanistan.

I strongly support the case for doing the right thing for those who have assisted our military, but those who have assisted the King’s servants on the ground in diplomatic missions, without diplomatic immunity, and who are now, as a consequence, at risk deserve the same degree of support. It is a matter of honour; not to pick up the amendment of the noble Lord, Lord Browne, would be dishonourable.

[Baroness Coussins (CB)]

My Lords, I strongly support Amendment 44 in the name of the noble Lord, Lord Browne of Ladyton, to which I would have been more than happy to add my name had there not been a limit of four sponsors for each amendment.

As we have already heard, one of the groups of Afghans to whom this exemption would apply would be the interpreters who worked with the UK Armed Forces in Afghanistan, whose predicament at the hands at the Taliban I have been highlighting in your Lordships’ House for over 10 years now. I am happy to say that many thousands of Afghan interpreters have succeeded in being relocated to the UK with their family members, but there are others whose claims under the various schemes have been unfairly or inexplicably rejected and who still live in fear, as do their family members. Only two weeks ago, I was contacted by one such individual, who had worked as an interpreter and translator. He said it was common knowledge in his community that he had been working for the British, so he felt forced to flee to a third country where he is now living in hiding, in fear of his life, with his mother and younger brother.

The importance of this proposed new clause to this individual and others like him is that his application under ARAP was refused on the grounds that he was not directly employed by HMG. His employment as an interpreter and translator was with a global agency under a contract that that organisation had with DfID to provide translation and interpreting services to the Armed Forces and to UK government projects in Afghanistan. So he would clearly fall under the terms of proposed subsection (1)(b) of this new clause in relation to indirect employment, and his family would fall under Clause 1(c).

To me he appears to be typical of the brave linguists who worked with pride for the UK but who, in the end, may feel forced to seek access to the UK by what would be treated as illegal means. In no way should he then have to face the indignity of being further removed to Rwanda. His loyalty is to the UK.

I am equally concerned about those who worked for the British Council as well as the so-called Triples, whom the noble Lord, Lord Browne, mentioned. Some of these Afghans are also in hiding, in fear of kidnap, violence and death threats at the hands at the Taliban. If forced to seek asylum here other than through an official route, they also deserve our gratitude, respect and protection. I appeal to the Minister to accept the amendment and to undertake to review all ARAP rejections, not just those of the Triples.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Kerr of Kinlochard Excerpts

2nd reading
Monday 29th January 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I greatly admire the noble Lord, Lord German, but I cannot support his amendment. I dislike the Bill as much as he does. I explained at length in last week’s debate why I dislike it. In the time available today, I just want to add two points.

First, on sequencing, I was struck as a member of the International Agreements Committee by Rwanda’s rejection rate for asylum seekers from Afghanistan and Syria. It is 100%. Rwanda has always rejected them all, out of hand. That was one of the reasons why the IAC recommended, and the House last week resolved, that the new treaty should not be ratified until the reforms prescribed in the treaty have been implemented.

The Government clearly accepted the Supreme Court’s ruling that, without those reforms, their Rwanda scheme would be unsafe. The House agreed, adding that fine words would not be enough; what mattered would be implementation. Until the new systems are up and running, and none of them yet are, Rwanda cannot be deemed safe for those the Government want to send there. Yet that is precisely what Clause 2 of the Bill does. We are asked to deem Rwanda already safe now, today; and we are asked to require everyone—individuals and courts—from the moment the Bill becomes law, to treat Rwanda as safe.

This is Lewis Carroll country. In Alice, the Queen believes six impossible things before breakfast. To make sense of the nonsense, we have to get the sequencing right. It has to be: first, implementation, when Rwanda reforms; secondly, ratification, when Parliament is satisfied that Rwanda has reformed; and third, legislation—a Bill, maybe this Bill, when all are clear that Clause 2, on the determination of safety, is based on real facts and not Trumpian “alternative facts”. If the Government insist on reversing the right sequence, they must surely consider amending Clause 9 to introduce appropriate commencement conditionality, so that our Looking Glass world aligns with reality.

My other point concerns deterrence. Clause 1 of the Bill says that its purpose is to

“prevent and deter unlawful migration”,

and the Government make much play with the deterrent effect. I cannot see it. The Home Office Permanent Secretary could not see it either, or at least he could not quantify it and so justify the Rwanda scheme as providing value for money, just as the lawyers will not let the Home Secretary claim that it is compatible with convention rights.

Those seeking asylum here are fleeing from war, torture, famine and persecution. In the year to last September, 93,000 applied, with 46,000 having arrived on small boats. Much the largest groups came from Afghanistan, Iran, Eritrea, Sudan and Syria. Of those in these groups whose cases were considered—there is still a backlog of 165,000, 75% of whom wait for more than six months—the large majority were granted refugee status, over 99% in the case of Afghans and Syrians.

Our rejection rate verges on zero, while the Rwanda rate is 100%. It is hardly surprising that it verges on zero, as we knew all about the Taliban and the ayatollahs, the atrocities and the bombing. It is absurd to suggest that those people would not have tried to come here, risking the Channel passage, if they had heard about our Rwanda scheme. If you are an Afghan, now in Pakistan and at risk of being sent back, you have already faced far greater dangers than the Channel. Crossing the Mediterranean kills many more than the Channel. If you have made it to Calais, and 9,000 Afghans did last year, would you turn round and go home if we passed this Bill? Of course, you would not.

Let us suppose the Government had been able to send 200 people to Rwanda last year, as they hoped. That is 200 out of 46,000 people who arrived on small boats, so it is less than a 0.5% risk of Rwanda. If you had heard about it in Calais, it certainly would not have deterred you. Of course, there would be some deterrent effect if the Rwanda system stays unreformed, maintaining its 100% rejection rate, but the reforms, if they are implemented, will eliminate that. Any vestigial deterrence disappears as Rwanda reforms; the policy eats the policy. It is a Goya; Saturn is devouring his children.

I profoundly believe that the deterrence argument just does not stack up. The Rwanda scheme will not break the smugglers’ business model. What would put them out of business, as the noble Lord, Lord German, said, is new, safe and legal routes, but there are none in the Government’s Section 61 report, despite what we were led to expect. Like the Italians in Albania, we could try offshore processing but instead of offshoring, we are offloading, with a treaty that offloads responsibility in defiance of convention commitments and a Bill to create “alternative facts” in Africa. Next step, shall we legislate the sky green and the grass blue?

Asylum: UK-Rwanda Agreement

Lord Kerr of Kinlochard Excerpts

Monday 22nd January 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a privilege to take part in this debate and I am very grateful to the Government for allowing us to have it within the CRaG period. It was also a privilege to be a member of the International Agreements Committee. Thanks to our excellent chairmanship and the wonderful work done by our staff, we were able to complete this report within the CRaG period despite the Christmas Recess.

I used to work in international relations and was until recently a trustee of the Refugee Council, so I cannot debate this treaty without recording my profound objection to an arrangement that is incompatible with our responsibilities under the 1951 refugee convention, its 1967 protocol and, of course, the European Convention on Human Rights. But I acknowledge that that is more for next week’s debate than today’s. My concern is primarily with the policy and the Bill that we will be looking at next week, not the treaty, which is intended to salvage the policy from its Supreme Court shipwreck.

On the policy, I will make just one point. I simply remind the House yet again that there is no precedent for the way it dishonours our convention commitments. The Government keep referring to what the Australians did in 2012, but that was different: the asylum seekers they diverted to Papua New Guinea were not handed over to the Papua New Guinea authorities. Australian officials went and heard in Papua New Guinea their claims for admission to Australia. Like the arrangement the Italians have been considering with Albania, this was offshoring; what we are talking about is offloading. Those we offload to Rwanda are never to get a hearing for their claim to asylum in this country. We intend to wash our hands of them and declare them inadmissible: Rwanda’s responsibility, not ours. This is unprecedented and unconscionable.

On the treaty itself, I have only three points to make. First, as a member of the International Agreements Committee, I of course support the report we unanimously agreed. It follows the scope and logic of the Supreme Court’s reasoning. As the noble and learned Lord, Lord Goldsmith, explained, in considering whether Rwanda would be safe for those sent there, it focuses on the court’s assessment of the risk of refoulement—enforced return to the country they first fled. I would have wished to draw the canvas a little broader, looking beyond the procedural reforms that Rwanda has apparently agreed to make and trying to judge how safe for refugees wider Rwandan society actually is. Without looking back to the genocide 30 years ago, when more than half a million in Rwanda lost their lives, I might have noted, as the Supreme Court did, that only three years ago our Government were criticising the Rwanda Government in the UN Human Rights Council for

“extrajudicial killings, deaths in custody, enforced disappearances and torture”.

I might have asked whether it is Rwanda that has changed or whether we have just found it convenient to change our tune for domestic political reasons. I might have picked up the State Department’s damning country report two years ago on Rwanda’s human rights record. I would certainly have wished to note Rwanda’s 100% rejection rate for asylum claims there by applicants from Afghanistan or Syria, according to UNHCR, and contrasted that with our 99% acceptance rate, according to the Home Office, for people from those two tragic countries who manage to lodge their claims here. I might have asked what it says about the safety of Rwanda that we are still accepting claims from Rwandan citizens for asylum in this country, as the noble Lord, Lord Purvis, pointed out. Allowing them refugee status here means that we have determined through our processes that they have a real and well-founded fear of persecution back home.

All these issues are relevant, although they are not in the IAC report, but I in no way resile from the report. We agreed it unanimously, and we all acknowledged the efforts the two Governments have made to address the issues raised by the Supreme Court. But—this is my second point—the committee was clear that resolving these issues will take time to assess whether the 10 steps that the Rwanda Government have agreed to take, listed in paragraph 45 of the report, have been taken, are working and are proving sufficient to set at rest the concerns raised by the Supreme Court. None of the 10 steps has yet been taken. There is no new Rwanda asylum law, first instance body or appeals court, no judges have been appointed and no training has been done. It will all take time.

I believe that if the new arrangements set out in the treaty and its annexes are implemented and bed down, the situation for asylum seekers in Rwanda will genuinely improve, but clearly the Government themselves are not confident that these improvements will be sufficient to set Supreme Court minds at rest. If they thought the treaty would crack the problem, why would they now be legislating to prohibit our domestic courts independently assessing whether it has cracked the problem? Why a belt, if the braces are not broken?

Thirdly, Article 10(3) of the treaty states that no one we have transported to Rwanda can be sent on to a third country, whether or not they have asked for asylum in Rwanda and whether or not asylum in Rwanda has been granted. The only place they can be sent to is back here, if we decide we want them back. On the face of it, that is a reassuring fail-safe if the new procedures prove inadequate to prevent removal to a third country. Actually, it is not—because, as the report points out at paragraph 37, Article 10(3) goes on to lay an obligation on us and Rwanda

“to agree an effective system”

to ensure that removals do not in practice occur and to check on where the refugee in question now is. Hang on, that is the clock striking 13 times, casting doubt on all that has happened before. It shows the Rwanda Government acknowledging in the treaty that, despite all the assurances in the treaty, it is possible that refugees will in practice be sent back to the countries from which they originally fled—and well might the Rwandans admit that possibility, because that is exactly what happened with their arrangement with Israel, causing the Israelis to break it off.

So we and they are to agree an effective system to ensure that that does not happen again; but we have not done so, and the task will not be easy given Rwandan geography and society. It is one of the unfulfilled promises listed in paragraph 45 of the report. In the absence of an effective system, up and running and proving effective, Article 10(3) cannot be even minimally reassuring to Parliament or, I would imagine, to the Supreme Court.

In conclusion, the considerations of international law and national reputation, which I mentioned at the outset, convince me that it would not be right to ratify this treaty at any time; and arguments from history suggest that it would be very reckless to do so any time soon. But these are my personal views. The IAC read its remit rather narrowly. What we did was consider whether the treaty can be said now, today, to meet the Supreme Court’s concerns. Our unanimous answer—I repeat, our unanimous answer—based on the overwhelming weight of the evidence that we received, was no: not today, not yet. Our unanimous recommendation is to delay ratification until the outstanding tasks have been carried out and the new systems proven in practice. So I support both Motions in the name of the noble and learned Lord, Lord Goldsmith.

Sir Edward Heath: Operation Conifer

Lord Kerr of Kinlochard Excerpts

Wednesday 17th January 2024 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I echo those who have paid tribute to the noble Lord, Lord Lexden, for his persistence and eloquence. I am very glad that the noble Lord, Lord Waldegrave, referred to Robert Armstrong, who was equally persistent and once told me that this slur on Mr Heath and the inability to get it put right was one of the things that most disappointed him about his career in public life.

I did not know Prime Minister Heath; I was much too junior. My only contact with him was when I did some work for him and he went out of his way to thank me for it. Although it was not a particularly good piece of work, he maintained that it was. That is my only credential for taking part in this debate—so I thought I had better read the Operation Conifer report, or at least the published version that is available to us.

It is the most extraordinary document. It is 109 pages long but immensely repetitious. It is a long, self-justificatory description of what the police did, not of what they found—and it seems pretty clear that that is because they found absolutely nothing. They list who they interviewed. Judging by this debate, those interviews must have been very interesting. They interviewed 132 policemen who had carried out protection duties for Sir Edward, 43 private secretaries, 34 crew from his boats, and various household and nursing staff. At the end of each of those sections of the report, there is the sad sentence that “no information relevant to the allegations was found”. All those people were interviewed but no information was found. What deduction might one draw from that?

The report draws no deductions—and the language throughout is prejudicial, as the noble Lord, Lord Hunt, said. All along, it talks of “disclosures by victims”—not allegations but disclosures, as if these were facts. The conclusions are astonishingly prejudicial, including the revelation about seven of the allegations. There were 42 allegations, but it turns out that there were actually only 40 people alleging, because one of the fantasists used three names. So it comes down to 40 allegations, of which seven would have justified an interview under caution.

I am no expert on this, but I am standing in front of a great expert who just explained how meaningless that is—yet that is what will have stuck in the public mind. It is a slur on the reputation of a distinguished Prime Minister who did great work for this country and I strongly agree with the noble Lord, Lord Waldegrave, who said that if these slurs are allowed to stand, it will be more and more difficult to persuade good people to go into public life—so I strongly support the Motion.

I point out that the police and crime commissioner for Wiltshire said five years ago that what is needed now is:

“A sharply-focused statutory inquiry, with powers to question witnesses and scrutinise documents”.


If that was what the police and crime commissioner was asking the Home Office to do—he said he had asked several times—I really do not think it is enough for the Home Office to go on saying that it has been looked at frequently. Yes, it has been looked at by the police, but they have marked their own homework and found that they did a jolly good job. That is irrelevant to the question of whether Mr Heath’s reputation has been wrongly attacked. That should be put right by an inquiry now, exactly as the noble Lord, Lord Lexden, proposes.

Immigration Detention: Brook House Inquiry

Lord Kerr of Kinlochard Excerpts

Thursday 11th January 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I thank my noble friend for that; I agree with him. I would also point out that Stephen Shaw, as I mentioned earlier, wrote a report, which he updated in 2018, on welfare in immigration detention. He said the following:

“The current Government position is to oppose a time limit (whether of 28 days or any other period), but Parliament may at some point take a different view … at present, the case for a time limit has been articulated more as a slogan than as a fully developed policy proposal”.


I am afraid that I agree with that.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Baroness Lister of Burtersett (Lab)]

My Lords—

[Baroness Williams of Trafford (Con)]

My Lords, it is the turn of the Cross Benches.

[Lord Kerr of Kinlochard (CB)]

Will the noble Lord tell the House how many asylum seekers are now held in detention, in limbo, with their cases unheard by us—or never to be heard by us? Is he at all ashamed that Médecins Sans Frontières is having to look after them?

[Lord Sharpe of Epsom (Con)]

I will stick to the question at hand, and will happily provide some statistics on the number of people in immigration detention as of 30 September last year. That number was 1,841, including those detained solely under immigration powers in prisons. That was 11% lower than at the end of September 2022, when there were 2,077 people in detention. I think that those numbers are encouraging and heading in the right direction.

Pakistan: Afghans Eligible for Resettlement in UK

Lord Kerr of Kinlochard Excerpts

Monday 18th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I cannot say that unequivocally, no. As I have just said, it is on a case-by-case basis. In principle, of course that is the case, but with the caveat that it depends on the case under discussion.

[Lord Kerr of Kinlochard (CB)]

The Minister is a little short on numbers on the Afghan citizens resettlement scheme. When the scheme was introduced two years ago, the promise was that it would bring in 20,000 people a year. We know that thousands are lurking in hotels in Peshawar, Islamabad and Lahore, now with their permission to stay likely to be withdrawn. We know too that thousands of them have been accepted for resettlement here but are not allowed to travel because the accommodation has not been provided. They are supposed to arrange, from Peshawar, accommodation for their families in this country, which is absurd. Does the Minister accept that this may be one cause of Afghans being by far the largest group by nationality—8,600 last year—coming in small boats across the channel at grave risk to themselves? Does he not think that is a disgrace?

[Lord Sharpe of Epsom (Con)]

My Lords, the fact is that if people are not eligible under ARAP, they should not be coming on small boats and claiming asylum. Why would you forgo a legal and safe route to support a criminal gang’s activities? That rather eludes me. I do, however, understand why people are desperate to get out of Afghanistan in particular, but I go back to what I said earlier: the Government of Pakistan have co-operated, largely, with the UK, high-level negotiations are ongoing and as yet no one has been deported.

UK-Rwanda Partnership

Lord Kerr of Kinlochard Excerpts

Thursday 7th December 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

From the noble Lord’s last remark, it sounds like he has answered his own question. However, as I said in my opening remarks, the numbers are uncapped. I do not know the context of the Court of Appeal judgment in this regard, so I cannot comment on that.

[Lord Kerr of Kinlochard (CB)]

I have two questions for the Minister. First, Article 19 of the treaty says that we are under an obligation to take a “portion”—an odd word—of Rwanda’s “most vulnerable refugees”. A two-way flow of people is envisaged, some going from here to Rwanda, some going from Rwanda to here. Can the Minister give us a forecast ballpark figure of how many Rwandans are coming? Secondly, he will remember that last year the State Department found the Government of Rwanda guilty of arbitrary murder, torture, cruel and inhuman and degrading punishments, arbitrary detention in harsh and life-threatening prison conditions, carrying out murders and kidnappings abroad and harassing domestic and international human rights groups. Our Bill requires us to deem Rwanda a safe country. Will he tell us why the State Department is wrong?

[Lord Sharpe of Epsom (Con)]

In answer to the first part of the noble Lord’s question, Section 19 of the treaty indeed says that the UK will resettle refugees from Rwanda to the UK. This is not new; it was also set out in the MoU. As I have mentioned before from this Dispatch Box, Rwanda currently hosts and provides for around 130,000 refugees from across the region, and as part of our joint commitment to the principles of the refugee convention, and through the partnership, we have offered to settle particularly vulnerable refugees hosted in Rwanda, whom we could better support. Rwanda is leading in supporting the UNHCR and neighbouring regions with those in need of resettlement, and the UK will support these best efforts as its partner. We expect the number to be small. However, the UK resettles many refugees each year, through safe and legal paths from those first safe countries which accommodate many people who seek their sanctuary. As the MEDP has not yet been operationalised, there have not yet been any refugees from Rwanda resettled in the UK as part of it.

The second part of the noble Lord’s question was on the State Department. We have also just published a new treaty, which contains many legally binding elements. In the light of that, I imagine the State Department will reconsider.

Justification Decision (Scientific Age Imaging) Regulations 2023

Lord Kerr of Kinlochard Excerpts

Monday 27th November 2023 Lords Chamber

In conclusion, I strongly support this amendment, for the reasons set out in it and that I have discussed, but also because the whole exercise is based upon a false premise about the proportion of age-disputed children found to be adults and apparent lack of concern about the safeguarding issues arising when children are wrongly classified as adults, as raised by the interim AESAC. Newspaper reports have suggested that this can lead to children wrongly being put in adult detention centres, or even adult prisons containing sex offenders, or made to share hotel rooms with adults. I have yet to hear a convincing response to the ethical concerns raised by professional bodies, some of whose members may be called on to operate medical procedures that they believe to be harmful in this context. I hope that today’s debate will cause the Government to think again.

[Lord Kerr of Kinlochard (CB)]

I know the convention of the House is that I should say it is a pleasure to follow two such brilliant speeches from the noble Baronesses, Lady Brinton and Lady Lister, but it is not actually a pleasure—it is intimidating; one fears the contrast. Mine will be an amateur contribution after those of two professionals.

I am grateful to the Secondary Legislation Scrutiny Committee for its report, particularly because it draws our attention to the evidence the Home Office gave in answer to its questions. The answers from the Home Office struck me as a little unsatisfactory and, in one or two cases, astonishing. With your Lordships’ permission, I will give just one example, on the question raised by the noble Baroness, Lady Brinton, about the absence of the impact assessment. Here was the Home Office’s answer:

“The Home Office has not produced”


an impact assessment

“due to the uncertainties regarding wider implementation”

of scientific age assessment

“within the end-to-end age assessment model”.

If you can understand that, you are smarter than me. But it gets better:

“It is the Home Office’s view to wait until we have an appropriate level of detail to better reassure and inform the public of our plans, especially given the controversial nature of the policy. As policy and operational development continues, the Home Office will take a view as to when it is appropriate to produce an impact assessment”.


Well, that is nice of them. If you are buying a house, it is quite a good idea to have the survey done before completion of the deal. If one is buying shares, it is quite nice to see the prospectus for the sale of the shares before one makes the investment. And the purpose of an impact assessment is to accompany the legislative proposal and inform the legislator.

It is, of course, very important that the Home Office should monitor how these age assessments work out, but that is a completely different question from the need to provide an assessment ab initio of what the impact is expected to be. For the Home Office to say that it is better

“to wait until we have an appropriate level of detail to better reassure and inform the public of our plans, especially given the controversial nature of the policy”,

is frankly absurd.

I have four questions for the Minister. The first is really a question from the Children’s Commissioner in the evidence we have seen: can a child truly consent to a procedure if they know they may be punished if they do not consent? The Children's Commissioner thinks not. The young refugee, threatened with X-rays, might be bewildered, traumatised, frightened, and may not understand English; he may not understand the questions put to him or anything of what is going on. The Age Estimation Science Advisory Committee advised in January that

“no automatic assumptions or consequences should result from refusal to consent”.

Why have the Government ignored what the committee said?

My second question is: how safe is the procedure? The committee is clearly uneasy. It says:

“The use of ionising radiation must be limited, with the ultimate aim of eradicating it”.


That is the position of the Government’s official advisers. The Council of Europe says that that the use of radiation for age assessment is

“in conflict with medical ethics and potentially unlawful”.

My third question is: how reliable is the procedure? As the noble Baroness, Lady Lister, has mentioned, the British Dental Association does not like it at all. It believes that assessment using X-rays is inaccurate and unethical, and, as the noble Baroness mentioned, the Royal College of Paediatrics and Child Health, the BMA and the BASW all share that concern. As the noble Baroness also said, the Government themselves are aware, and admit, that the science is inaccurate. In their evidence to the committee explaining why they are not using the draconian automaticity procedures in Section 58 of this year’s Illegal Migration Act but are instead using the provisions in last year’s Bill, with the negative inference provision, they say that the procedure is not sufficiently accurate to permit using the 2023 Act. If that is so, how can it be accurate enough for using the 2022 Act, with the negative inference result detrimental to the interest of the refugee?

My last question is: who is to be responsible for carrying out this procedure? Last week, there was some alarm among local authorities when the Minister for Immigration seemed to suggest that the responsibility would fall to them. Who is to be in charge and if it is the Department of Health and the NHS, are they relaxed about the extra workload coming their way? An impact assessment might have looked into that.

The Government should shelve the regulations until they can: tell us how they are to work; conduct a proper public consultation; provide a normal impact assessment in advance; and answer our questions. I should have said at the outset that I used to be a trustee of the Refugee Council but I mention that now. Of course, I strongly support the regret amendments in the name of the noble Baroness, Lady Brinton.

[Lord Winston (Lab)]

My Lords, in strong support of the noble Baroness, Lady Brinton, and the others who have already spoken in this debate, I would argue that this is primarily a matter of science. On the idea that this is a scientific assessment, it is not. We are using instruments developed by science but the assessment is certainly not a scientific one. I have six questions for the Minister.

First, with regard to bone age and the assessment, can the Minister give us the range for any particular ages? What assessment has been made of the confidence limits and the error bars in this? Without those statistics, you cannot possibly have such a test. I do not believe that these have been published but perhaps I am wrong and he can tell us otherwise.

Secondly, can the Minister tell us what the preceding situations are with those immigrant children? For example, what diet were they on before they came in? Did they have normal calcium in their diet or were they deficient in it? Did they have other issues which might have changed their bone age? That is quite possible.

Thirdly, what is their hormonal status? As we know, some children have pituitary tumours which will change their bone age and these would not be discovered by an X-ray of the wrist or, necessarily, of the lower part of the skull and the jaw. There would be no reason for that child to have symptoms, so that would have to be dealt with as well. There are many reasons why age changes, not least because of mitochondrial activity. Is the noble Lord aware—he might have realised this—that about a year and a half ago we had a Select Committee inquiry on ageing? The ageing process starts very early in life and among the things we had were the hallmarks of ageing. Horvath’s clock, which includes mitochondrial age, for example, has 353 different points which give rise to ageing, yet we still cannot determine somebody’s age accurately within about five years on any of these bases. Of course, it is better with X-rays but certainly not something which we should really be considering in this situation. The diet of that child is most important.

I also suggest to the noble Lord that we have used an assessment in pregnancy which is now regarded as fallible. For a long time, we looked at bone age of babies in utero; for example, by looking at the length of the femur. We now know that all those publications, which resulted in us again and again delivering babies at a certain time, are totally flawed and those assessments are no longer used. It is a great pity that the noble Lord, Lord Patel, who has great experience in this area, is not here but he and I absolutely agree on that. Again, we say that we have to be very much aware of bone assessment.

There are two other issues which have not come up in this debate. I am going to be quick. The risk of ionising age radiation is serious. How do we know that a child might not need another X-ray later on for a medical condition, in which case there will be an accumulative risk, or perhaps has had ionising radiation before getting to the United Kingdom or on their way here? That is one of the issues.

Lastly, the issue of informed consent has not been fully described here and we need to discuss it. The autonomy of the child, or the parent on behalf of the child, is critical here. What does the noble Lord suggest is done if, for example, they X-ray the baby or child’s wrist and find a tumour in the bone? Do they then proceed to undertake some form of medical treatment? Suppose that that tumour is totally benign and could be living there indefinitely, without any harm to the child, but the child then has surgery which would not actually be necessary. That is not just a pretend risk. We really have to consider the risk of scanning people without clear medical evidence.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I am not familiar with the case that the noble Baroness refers to, so I am afraid I will have to look into it.

Individuals will be assessed for their fitness to undergo scientific age assessment, which will include consideration of both mental and physical health. The individual will not undergo scientific age assessment if they refuse to consent. Reasonable grounds for refusal will be set out in guidance and considered on a case-by-case basis. Appropriate adults, translators and others will be available to support the young person. If a young person is assessed as lacking the capacity to consent, they will not undergo any such methods and a negative credibility inference will not be taken.

Provisions under the Nationality and Borders Act 2022 allow for decision-makers to make a negative inference. As I have said, the Home Office considers negative inference to be proportionate to prevent individuals deliberately frustrating the system. There is precedent in other legislation of negative consequences being applied where an individual refuses to submit to a medical examination. For example, an individual may be asked to undergo a medical examination to determine their eligibility for employment and support allowance. If they fail to undergo such an assessment, they will be treated as ineligible. Therefore, consent can still be informed and freely given even if there is a negative consequence for a refusal to give that consent.

It is important to note that taking a negative inference from a refusal to consent does not result in an automatic assumption that the individual is an adult. Rather, the negative inference is taken into account as part of the overall decision on age. A decision-maker can still assess an individual to be a child following the holistic age-assessment process, even if they refuse to consent to scientific methods without good reason.

I will answer the questions from the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Hamwee, about monitoring and review. The Ministry of Justice will monitor and review the Home Office’s use of X-rays approved by this instrument and compliance with the conditions as per Regulation 10 of the Justification of Practices Involving Ionising Radiation Regulations 2004.

I would like to reassure the House that, as this is a new practice in the UK, the Home Office will monitor and review the policy to evaluate its success and make any changes necessary for its effective operationalisation. The Home Office will not do this in isolation but will continue to seek advice from the Age Estimation Science Advisory Committee and key stakeholders to support the process. Quarterly datasets including age disputes are already published on GOV.UK and, when scientific methods of age assessment are introduced, the Home Office will ensure that the relevant statistics are published alongside them.

The noble Baroness, Lady Brinton, questioned whether these regulations should be made before a full impact assessment and costings have been laid before Parliament. As I stated, scientific methods will be integrated into the current age-assessment process. A full impact assessment has not been produced at this point as it would not provide the rigour of economic value required at the early stage. The Home Office recognises the importance of transparency—please be assured that a full impact assessment will be prepared when appropriate, as my right honourable friend the Immigration Minister said in the other place.

I will go into the costs in a little more detail. As I have said, we could not provide the rigour of economic value that the impact assessment would require. Instead, the Home Office has produced an economic note that pertains to the narrow focus of the SI—the impact of introducing the specified methods for age-assessment purposes. We have decided not to publish this yet, as the information provided would be isolated from wider plans; it is the Home Office’s view to wait until we have an appropriate level of detail to better reassure and inform the public of our plans. As policy and operational development continue, the Home Office will take a view on when it is appropriate to produce the full impact assessment.

[Lord Kerr of Kinlochard (CB)]

I am rather surprised that the Minister has repeated the bits of the Home Office written evidence that struck me as a bit odd. The clue, surely, to the timing of an impact assessment is in the name: impact. It should be there at the start. We are not terribly interested in an impact assessment two or three years down the line. We would have liked to have one today.

[Lord Sharpe of Epsom (Con)]

I take the noble Lord’s point; obviously, I will take it back to the Home Office and make sure that it is well understood.

On the use of X-rays, I remind the House that the Ministry of Justice has determined the practice is justified under the Justification of Practices Involving Ionising Radiation Regulations 2004. The Ministry of Justice made this decision to justify the practice independently from the Home Office, as they are functionally separate on the policy of age assessment as required by the 2004 regulations.

Your Lordships will know that X-ray scans are commonly used in the UK for medical purposes by doctors and dentists. Although age assessment is for non-medical purposes, images will be taken by qualified professionals who are trained to minimise exposure to ionising radiation and any other potential risks. We expect all professionals to abide by their own professional guidelines, as well as any set out in Home Office guidance, but medical professionals are required by the relevant legislation for ionising radiation.

The Age Estimation Science Advisory Committee suggests that any risk associated with this low level of exposure to ionising radiation is minimal when compared to the benefits of swifter, more informed age assessment in terms of both safeguarding and well-being.

Refugees and Asylum Seekers: Safe Routes

Lord Kerr of Kinlochard Excerpts

Wednesday 22nd November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I do not think that it was declared unlawful by the courts. The fact is that there were some issues with regards to a particular county, and, as far as I understand it, the courts basically reaffirmed that there is a statutory duty on local authorities to look after unaccompanied asylum-seeking children. In terms of the support that is available to those councils, we have made a considerable amount of money available, and we are working very closely with the councils that are involved in order to make that happen.

[Lord Kerr of Kinlochard (CB)]

My Lords, why do the Government continue to turn down repeated French offers to facilitate our establishing a processing centre for asylum seekers in France?

[Lord Sharpe of Epsom (Con)]

My Lords, I do not know that that is true. I have not seen any evidence that we have turned down French offers. I will investigate again, and if I am wrong, I will definitely correct myself.

Illegal Immigration

Lord Kerr of Kinlochard Excerpts

Monday 20th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

If my noble friend is right in his assertions, yes, they should be convicted, but I do not what has happened with prosecutions and convictions in that space. I will endeavour to find out.

[Lord Kerr of Kinlochard (CB)]

Does the Minister recall that the International Agreements Committee criticised the form taken for the previous agreement with Rwanda—a memorandum of understanding—and thought it should have been a treaty, partly because it was so weighty and partly to provide this House and the other place with an opportunity to scrutinise it properly. I think this new agreement will be scrutinised properly in this House so I am very glad that it is taking the form of a treaty, which will enable us to do that. The Statement said that it will be amended

“to make it clear that those sent”—

to Rwanda

“cannot be sent to any country other than the UK”.

That is what the Home Secretary said in the other place. How is that consistent with our Illegal Migration Act, which says that those who come illegally, in its terms, to this country can never be admitted to this country, will be sent to Rwanda and will be processed there by Rwanda for asylum in Rwanda?

The Minister said that other countries are seeing what we are doing and following suit. With respect, that is not the case. We are the only country that is saying, “If you come by a route that we do not like, we refuse to look at your claim”. We are telling people they may claim asylum in Rwanda but they can never come back here. No other country is doing that. Other countries are considering outsourcing the process and having the processing done abroad, but then the people could go on claiming asylum in the country they intended to go to. How does the Minister reconcile the statement that these people will never be sent to any country other than the UK with the Act, which we spent so long debating here and which I thoroughly disagreed with, that says they can never be sent back to the UK?

[Lord Sharpe of Epsom (Con)]

First, I agree with the noble Lord about the International Agreements Committee and the previous comments made there. The fact is that the International Agreements Committee is now getting its wish. Legally enforceable treaties should be the vehicle of choice; obviously, it will be scrutinised in both Houses of Parliament. As regards the apparent anomaly between what the Home Secretary has said and what the noble Lord has just pointed out, to respond to that would be to speculate as to what will be in the forthcoming legislation when I simply do not know. I will make sure that point is well made, and I hope to come back to the noble Lord with a strong answer very soon.