Support for Migrant Victims

Lord Kerr of Kinlochard Excerpts

Wednesday 12th July 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

Noble Lords can rest assured that I will take this back. However, I have heard in many debates in the House in recent weeks calls for more evidence. The fact is that we have evidence and we are considering it carefully. Noble Lords should applaud that.

[Lord Kerr of Kinlochard (CB)]

There is a degree of urgency in this that the Minister is not acknowledging. We do not ratify Article 59 because it is still the Government’s policy that, other than those who benefit from the little pilot scheme, local authorities are not allowed to permit migrant women who are subject to domestic abuse to access shelters. This disgrace is going on and we should stop it as soon as possible.

[Lord Sharpe of Epsom (Con)]

My Lords, I have just outlined some of the other options available to the migrant women the noble Lord describes. They are far from without support. As I have alluded to, there is also a migrant victims protocol detailing other aspects of the work being done that will be published towards the end of this year.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for the way he introduced the government amendments to Clause 59, but I am sorry that they were limited in scope. When we had an exchange in Committee and I argued that the revision of the cap should take account of exogenous as well as endogenous factors, he told me that he thought he and I were not far apart. The cap level should not be determined simply by consultation with local authorities. It should take some account of famine, war, massacre, earthquake and natural disasters abroad, which are what tend to encourage the demand for asylum. He told me he did not think we were far apart and agreed to look at it, but I see no amendment. I regret that, but I guess that is where we are.

I support Amendment 163 and I particularly support Amendment 164, proposed by the noble Baroness, Lady Stroud. I congratulate her, the noble Lord, Lord Kirkhope, and the noble Baroness, Lady Helic, on their courage in coming forward with such a sensible amendment.

Clause 60, which the Government have put in the Bill, is welcome, but the report it foresees is a purely descriptive document. It is not prescriptive. Amendment 164 calls for a further report which will be more purposive. The amendment is however quite modest; it does not attempt to point to any particular type of safe and regular route which the Government should explore. It does not suggest we take up the French offer of a processing centre in France, although for the life of me I do not know why we do not. It does not suggest we reconsider what seems to be a systematic reduction now going on in the number of family reunion cases we are allowing. It does not consider —this would fall foul of the ruling of the noble Lord, Lord Kirkhope—that we should change our advice to UNHCR on the number and types of resettlement cases that we will be prepared to take.

About 5,000 people from Iran who came into this country in 2022. It is an astonishing fact that 5,642 arrived by irregular routes and 10 by the regular resettlement route. That seems absurd and can be only on the basis of instructions to keep the flow to a minimum. The amendment does not suggest that we sift new applications for asylum in the same sensible way that the Home Office is now sifting those already in the queue from people who are here, waiting to have their case heard. There is no reason why a similar sift should not be conducted remotely.

If you are a young woman who has demonstrated in Tehran and is now on the run, and wanted by the authorities, there is no remote way in which you can register your wish for sanctuary in this country. We allow remote access to people who want to get into our immigration system, but we do not allow remote access to our asylum system. If you are safe where you are but simply want to live and work here, you may apply remotely on the internet or via diplomatic representation, although the internet is the more likely route. But if your life is at risk, if you are on the run, if you are in Kabul or Khartoum and you are wanted, if you are starving or if your tribe is being massacred, we will not consider your case for asylum in this country, unless you get here directly by some route that does not exist. That seems to me shaming. We cannot put that on our statute book; if we have to do so, let us at least add Amendment 164.

It is hypocrisy to pretend that the aim of the Bill is to stop the small boats. The most obvious way of stopping the small boats is to open new, regular routes. If we can do it for immigrants, by sifting their applications remotely, why can we not do it for asylum seekers? To refuse to do it for those fleeing for their lives—to refuse them even the possibility of applying for sanctuary here—seems a bit immoral, a bit illegal under international law, a bit hypocritical and entirely ineffectual, because it will keep the small boat men in business. I strongly support Amendment 164 in the name of the noble Baroness, Lady Stroud.

[Baroness Butler-Sloss (CB)]

My Lords, I agree with everything that the noble Lord, Lord Kerr, has said and I particularly support the amendment in the name of the noble Baroness, Lady Stroud. During last year and this year, one of the criticisms we have heard in this House of the small boats and those coming across has been that they should have taken safe and legal routes; but as the noble Lord, Lord Kerr, has demonstrated extremely clearly, there are absolutely no safe and legal routes at the moment, unless you go through UNHCR. For people like the woman fleeing Tehran, whose case was given as an example by the noble Lord, Lord Kerr, there is no way she could get here.

If I may respectfully say so, it is hypocritical of the Government to suggest that there are routes that could have been taken to avoid taking the small boats. I deplore the small boats. I do not want to see any more of them. The dangers are appalling and I recognise the problems that the Government have but, as the noble Lord, Lord Kerr, has said, they need to provide safe routes. To suggest that these may be ready by the end of 2024 seems a nonsense; we need them now. If we are to get rid of the boats, we absolutely must have well-known, safe routes from somewhere in Europe.

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The right reverend Prelate the Bishop of Durham and I have discussed this many times and agree about many things, but when he argues for excluding certain existing programmes—as he does in Amendment 162—we as a House need to remember that 60% to 70% of our fellow citizens think that this country is already crowded. Therefore, we—they—are entitled to know the overall number that this House thinks we can and should take. They are all terribly worth while and all ghastly experiences—the way people are treated will make your hair stand on end—but a number is important.

[Lord Kerr of Kinlochard (CB)]

Does the noble Lord agree that we are talking about admission to the system, or admissible cases? We are not saying that all applicants’ asylum requests must be granted; we are talking merely about admissions into the system. I have not heard the noble Lord answer my argument for remote admissions.

[Lord Hodgson of Astley Abbotts (Con)]

The issue with remote admissions is that you completely lose control of the system, because it is run on a multibased system around the world. We need, quite simply, to be clear about the number we could admit into this country, under all these worthwhile systems—they may be run in the way the noble Lord, Lord Kerr, wishes, or the way the noble Lord, Lord Alton, wishes—and keep faith with the country’s ability to absorb it without undue social and economic strain.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I support Amendment 139 in the name of the noble Baroness, Lady Chakrabarti. I have put my name to Amendments 134 and 135 in the name of the noble Lord, Lord Coaker, and I will leave it to him to speak to them if he wishes to do so at any length. I support these amendments to ensure that we have accountability and review, and I do so on a probing basis.

I think the Minister who will reply to this debate, the noble Lord, Lord Sharpe, has been in the Chamber when the noble Lord, Lord Murray of Blidworth, has been subjected to a considerable amount of attrition on the Bill—which he has treated with commendable control and self-restraint. Few have been provoked as much as he has in this Chamber in recent years. That said, I think the noble Lord, Lord Murray, would confirm in his private conversations with the noble Lord, Lord Sharpe, that there is real concern in your Lordships’ House and in certain well-informed sectors in the country about the consequences of the Bill.

In the recent past we have had reviews—I and my noble friend Lord Anderson have been part of this in relation to terrorism—which have reported to Parliament in relation to controversial pieces of legislation that cause great concern, particularly to Members of the other place. I understand that, having been one. I simply ask the Government to take into account that such reviews are necessary in some form and to provide for accountability and review of the consequences of the Bill, if it becomes an Act of Parliament.

[Lord Kerr of Kinlochard (CB)]

My Lords, I disagree with the noble Baroness, Lady Chakrabarti. She made her case for transferring this responsibility from the Home Office to the Foreign Office on grounds of efficiency and good administration. In my totally unbiased view, it is of course the case that the Foreign and Commonwealth Office is a model of efficiency and good administration. But on practical grounds, I really do not agree with this.

There is a Foreign Office role. The role of the treaty section is monitoring, ratification procedures and quality control over the treaties that we sign. There is a role for legal advisers, referred to by the noble Baroness, monitoring the Government’s respect for their treaty obligations and, if necessary, reminding other departments of the obligations that we have taken on.

There could be a role for our posts abroad. I strongly support the proposal in Amendment 130 for the safe passage visa. It would be very good if our posts abroad were allowed, say, to filter out applications that are clearly not unfounded and to assist applicants with the electronic application system. That would be very good, but the trend in the Home Office, which the noble Baroness in my view correctly described, to move more and more to being a department of the interior, with a bit of homeland security, would be increased if responsibility for carrying out our treaty obligations in respect of asylum seekers were transferred to another department.

Moreover, the Foreign Office really is not equipped to take on the enhanced teams required to deal with 178,000 applicants in the asylum queue. So, although I understand the noble Baroness’s motives and applaud her praise for the Foreign and Commonwealth Office, I am against this proposal.

[The Lord Bishop of Durham]

My Lords, the Minister ought to welcome Amendments 132, 134 and 135, because they simply ask for transparency of reporting back on the success of the Bill. The introduction says:

“The purpose of this Act is to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes”.


Most of the arguments have been around the Government’s conviction that this is the right way to stop the boats. Many of us in this Committee believe that it will not stop the boats, that we will end up with large numbers of people being detained for indefinite periods and that it will cost a huge amount of money.

I quite happily accept that the Minister will probably say that practically these amendments cannot work with one month and might need a different timescale and so on, but they are basically saying, “Please report that this is doing what the Bill set out to do”. Really, I cannot see how the Government can object to being required to report on their own successes.

--- Later in debate ---

[Baroness Ludford (LD)]

I was pleased to hear the contribution of the noble Lord, Lord Kamall, who added another sensible and rational Conservative Back-Bench voice to the earlier remarks of the noble Lord, Lord Kirkhope. Good heavens, I have just remembered that they are both former MEP colleagues of mine—not from the same political group, obviously—and perhaps that is where they learned a sensible approach to policy.

At first blush, the inclusion of this amendment with others about the asylum backlog might not seem the right context, but the rationale of the grouping is that, with such a big asylum backlog, the impact of not allowing asylum seekers to work is all the greater; not only are more people left to stew, unable to support themselves, but for longer. Some people wait not only months but years—many years in some cases—for resolution of their asylum claims.

To pick up something I said earlier, all of these attempts—most of them from the opposition parties but not entirely; there was lots of contribution from the Cross Benches—are trying, perhaps in a piecemeal way, to construct a more sensible asylum policy than is in this Bill or last year’s Bill. Many of us think that the Bill is not designed to work and that the mess will, I fear, be dumped on the next Government—I see the noble Lord, Lord Ponsonby, smiling. The Bill is designed to get the Government through the next election.

Some of us are trying to suggest elements of a more sane asylum policy—the Government could, with all the information resources at their disposal, go out and put a case to the public for why you need more sensible things to manage asylum. That is where this amendment, on the ability of asylum seekers to work, fits in. I happen to have put in the amendment that it would be after three months, but I am not particularly insistent on the time—it could be six months. The point is that, after the initial processing, and people having the ability to focus on something else, it makes sense to put people to work and give them the opportunity to contribute.

At the moment, people seeking asylum in the UK are effectively prohibited from working, such that they are forced to subsist on asylum support of £5.66 a day while they wait for a decision on their asylum claim. A lot of the public assume that such people are able to access welfare benefits and are just sitting idly in clover, but that is far from the case. They can apply for permission to work only if they have waited for a decision for over 12 months, and only for jobs on the Government’s highly restrictive shortage occupation list. This has not always been the case: until 2002, people were able to apply for permission to work if they had waited for a decision for more than six months, and only in 2010 was the right to work restricted to jobs on the shortage occupation list. Today, almost seven in 10 people who are waiting for a decision on their asylum claim have been waiting for more than six months.

This forced inactivity is totally at odds with government policy, which, in most instances, aims to move people away from any kind of dependency and into work. It also increases the difficulty of integration for those who are eventually permitted to stay. I remember as an MEP dealing with a refugee from the Middle East. I never saw the end result of his case, but he came to me after about three and a half years. He was a doctor, but his skills were obviously deteriorating and he was losing status in his family because he could not support them, and generally he was in a very deteriorated state—mentally, physically and in his whole ability to live any kind of decent life. That is a personal and social tragedy.

Not being able to work increases the difficulty of integration for those eventually permitted to stay and puts an unnecessary cost on the public purse, even with £5.66 a day. The Lift The Ban coalition, which I applaud for its campaigning, estimates that reform of this policy could lead to a gain to the public purse of almost £200 million, about three-quarters of which would be from tax and national insurance contributions. A study by British Future found that 71% of the public supports the right to work after six months—my amendment says three months but, as I say, I am not hung up on that figure. One of the members of the Lift the Ban coalition is the CBI. I heard its new director-general, Rain Newton-Smith, on the Laura Kuenssberg Sunday morning programme the Sunday before last, calling for asylum seekers to be able to work, so this is not just the cause of those with a lefty-liberal axe to grind. Mind you, I look at the right reverend Prelate the Bishop of Durham, and I would not dare put him in that category. It is because it makes sense, and makes sense for employers.

We have seen articles in the Financial Times saying the same thing. An article in Mach said that it is

“a human disaster for the refugees involved, and it hurts the economic prosperity of the places where asylum seekers live while waiting to have their claims processed”.

Another article of just over a year ago, under the headline,

“Keeping asylum seekers in limbo is bad for everyone”,


said:

“‘Human capital’ is damaged when people are shut out of labour markets”.


The article also made the point that:

“The UK stands out internationally for its reluctance to let asylum seekers work. In the EU”—


I remember, because I worked on that directive, and there was a fight over it—

“the law specifies they must be allowed access to the labour market after a maximum of nine months”.

The UK, which could choose whether to opt in, refused to opt in to that directive, for reasons that we will come to. The article continued by pointing out that many countries have shorter periods, with Sweden giving immediate access to its labour market, while Portugal puts just a one-month stay on it.

The argument for reform is that it would ensure that many people seeking asylum who have skills and experience in keyworker roles and the desire to contribute are able to do so. I know that we sometimes overuse the phrase no-brainer, but I suggest that this is one of those.

Another point is made by Professor David Cantor, director of the Refugee Law Initiative at the University of London, who says that the Government’s approach seems designed to push refugees into illegality. He asks:

“Why would a refugee present herself in good faith to the authorities on arrival, or stay in touch afterwards, if there is no prospect of protection, only detention and lack of status? If released on bail, why not simply disappear into irregularity?”


The ability to work would keep people plugged into the system, paying tax and national insurance, and they would necessarily be in touch with the Home Office—they would also have an incentive. They would not disappear into the shadows, but come forward and lawfully await the determination of their claim. That would put more order and sense into the system.

In January, the noble Lord, Lord Murray of Blidworth, replied to the following oral question from the noble Lord, Lord Kerr of Kinlochard:

“Would the Minister agree that it would be better if those waiting in that internal queue were able to work—better for them, the Exchequer and the country?”—


very succinct. The noble Lord, Lord Murray, said:

“I am afraid that I must disagree with the noble Lord. It is clear that one of the major pull factors for people crossing the channel is that they hope to work in Britain”.—[Official Report, 17/1/23; col. 1700.]


This is replicating a debate that we had on the Nationality and Borders Bill last year. I should have mentioned it at the beginning, but in that debate, we were discussing an amendment led by the noble Baroness, Lady Stroud. She told me earlier that she would have liked to be here to participate in the debate today because she continues, with admirable consistency, to support this cause, but she unfortunately had another commitment that she had to go to. However, I remember —and I am afraid that I am going to repeat—a citation that I made a year or so ago of the report from the Migration Advisory Committee. That is an independent committee that advises the Government. In a report of December 2021—some of us know this bit by heart—it took issue with the Home Office’s assertion about a pull factor. The report concluded:

“To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made”.


In other words, it is not made by making unsubstantiated assertions that every other commentator rebuts.

Indeed, the Home Office itself rebutted that assertion in a research report from September 2020 called Sovereign Borders: International Asylum Comparisons Report. It was produced by a unit called Home Office Analysis and Insight, and delightfully subtitled, Informing Decisions Through Evidence—which is what I think many of us would like the Home Office to do. One of its conclusions was:

“Economic rights do not act as a pull factor for asylum seekers. A review of the relationship between Right to Work and numbers of asylum applications concluded that no study reported a long-term correlation between labour market access and destination choice … Denied the right to work, many migrants may be forced to turn to clandestine work in highly insecure jobs in both the formal and informal labour markets to meet their basic needs”.


Perhaps it is not surprising that this report was labelled “Official Sensitive”, since if it got out into the public domain, it would be used to undercut the Government’s completely unsubstantiated assertions that the pull factor is the reason why they will not allow asylum seekers to work. Their own internal research, along with the independent Migration Advisory Committee, says: “You haven’t got a leg to stand on”.

There is no argument, except a gesture politics one, against allowing asylum seekers to work. Allowing people to work presses so many buttons in terms of their own personal well-being, the well-being of society and the well-being of the Exchequer. I hope that I will hear something positive from the Minister about this subject.

[Lord Kerr of Kinlochard (CB)]

My name is on Amendment 133, and I had planned to make a speech debunking our friend the pull factor. Unfortunately, my speech has just been made rather brilliantly by the noble Baroness, Lady Ludford. Let me try something slightly different on the Government: since we last debated this issue during the passage of the Nationality and Borders Act, the economic arguments for allowing asylum seekers the right to work have surely strengthened considerably. Our productivity problem is greater than it then was.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Lister, for her clarification of the statistic used in the earlier debate on age assessments.

Turning to the remarks of the right reverend Prelate the Bishop of Durham, I am heartened to hear, and indeed I entirely agree with him, that this group particularly highlights a point on which all across the Chamber are agreed—that there should be safe and legal routes—and the question is about the mechanics of that safe and legal route and how it fits with the scheme in the Bill to deter people embarking on dangerous journeys across the channel. It is in the spirit of that consensus that I conclude this debate.

Before I turn to the amendments, it may assist the Committee if I say a little about Clauses 58 and 59, not least as this will provide important context for the examination of the amendments. This Bill will introduce for the first time a cap on the number of people entering the UK through safe and legal routes based on local authority capacity. Clause 58 sets out how that cap will be developed and agreed. In answer to the question posed by the noble Baroness, Lady Chakrabarti, the cap is being introduced in recognition of the limited capacity that local authorities have to house and support through integration and local services, such as health and education, those in need of resettlement in the UK, a point well made by the noble Lord, Lord Green.

In recent years, following the fall of Kabul and the war in Ukraine, we have welcomed and provided sanctuary to larger numbers of people than we could comfortably manage because it was the right thing to do, and I appreciate the remarks that the noble Baroness, Lady Chakrabarti, made in relation to that. Going forward, it is right that both Houses have the opportunity to debate and approve through the affirmative procedure—which I can confirm to the noble Lord—the numbers to be admitted to the UK each year through safe and legal routes. That is the purpose of Clause 58. Local authorities have been required to provide accommodation for these large cohorts and subsequently there is no longer sufficient capacity in our system for our UNHCR-referred global settlement schemes to function in the way in which they were intended.

At this point, I wish to clarify this route for the benefit of the noble Lord, Lord Purvis. The UK’s global resettlement schemes do not involve an application process. Instead, those who have sought sanctuary in the first safe country should on arrival register with the relevant authorities as a person in need of international protection. The UNHCR is expertly placed to help the UK authorities identify and process vulnerable refugees who would benefit from resettlement in the UK and has responsibility for all out-of-country casework activity relating to our resettlement schemes.

I remind the Committee, especially my noble friend Lady Helic, that even under our current constraints between 2015 and March 2023 the UK resettled more than 28,400 individuals under UNHCR resettlement schemes, around half of whom were children. I should be clear that the cap does not remove any routes or change our willingness to help. However, consulting on capacity and developing the cap figure based on the response is the right way to continue offering resettlement pathways to the UK for those in need of our protection as part of a well-managed and sustainable migration system.

[Lord Kerr of Kinlochard (CB)]

I apologise for missing the start of this debate as I was in a committee. Will the Minister explain why Clause 58 imposes a cap on the maximum number of people who may enter the United Kingdom, not the maximum number of asylum seekers, using safe and legal routes—in other words, tourists, businessmen, or whatever? They tend to come by safe and legal routes. I do not understand the drafting. Secondly, will the Minister consider the cart and horse problem? He has said more than once—I hope I have got it correctly—that once illegal immigration is under control the Government will create new safe and legal routes. However, the way of getting the illegal immigration problem under control is by creating safe and legal routes. Will he address that point?

[Lord Murray of Blidworth (Con)]

I appreciate that the noble Lord was unable to be here at the beginning of the debate. I hope that Clause 58(1) makes it clear that the regulations must specify

“the maximum number of persons who may enter the United Kingdom annually using safe and legal routes”.

There is a cross-reference to subsection (7), where noble Lords will see that “safe and legal route” is a defined term. It means

“a route specified in regulations made by the Secretary of State”.

Those regulations will clarify what that term means.

[Lord Kerr of Kinlochard (CB)]

I understand the Minister’s point, but it does not answer the question that I asked: why does the clause talk about “persons” rather than asylum seekers?

[Lord Murray of Blidworth (Con)]

It is because that is the structure of the legislation, and it simply makes for good parliamentary drafting. There it is. Forgive me: I shall make some progress because we have a lot of groups to deal with.

Clause 58 provides for the Home Secretary to consult local authorities, and any other organisation or person deemed suitable, to understand their capacity. The cap figure, and by extension the routes to be covered by the cap, will be considered and voted on in Parliament through a draft affirmative statutory instrument. The cap will not automatically apply to all current and new safe and legal routes that we offer or will introduce in the future. The policy intention is to manage the accommodation burden on local authorities, and my officials are currently considering which routes are most suitable to be included within the cap.

Alongside the cap on safe and legal routes, Clause 59 further requires the Home Secretary to publish a report on existing and any proposed new safe and legal routes. In response to the right reverend Prelate, we will continue to work with the UNHCR and other organisations as the Secretary of State considers appropriate in devising proposed additional safe and legal routes.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

In due course— I am very grateful. All these questions make it clear that bringing up legal migration is irrelevant to the Bill, a point that relates to comments made by the noble Lord, Lord Paddick. The issue for the Bill is that the UK Government and local authorities have limited capacity to provide or arrange accommodation, hence a sensible cap is needed. There are other questions we need answers to. Are these safe passage visas to be given to young single men at the expense of those in more pressing need of sanctuary in the UK?

[Lord Kerr of Kinlochard (CB)]

I hope the Minister will reflect before Report on the point made by the noble Lord, Lord Winston. I do not recall a cap on Czechs in 1968 or on Hungarians in 1956. There was no cap on Germans and Austrians in 1938 and 1939. The reputational damage to this country done by the idea of a cap would be considerable. It could be defused if the Government would consider an amendment to Clause 58(3) which made it clear that a change of international circumstances, as well as a change of domestic circumstances, could create the need to change the number. To me, the horror is that we are doing this all endogenously, as if needs have nothing to do with what happens exogenously in the world out there—so if something awful happens in the world, we will pay no attention because we will be concerned about the consultation we had with local authorities about houses.

[Lord Murray of Blidworth (Con)]

I am not sure the noble Lord and I actually differ on the points raised by the noble Lord, Lord Winston. It seems to me that the impact on the national reputation of Britain is not relevant, given the provision for the cap to be varied in the event of an international emergency such as he outlined. As he will see, Clause 58(3) states:

“the Secretary of State considers that the number needs to be changed as a matter of urgency”.

He can provide that regulation to both Houses of Parliament without consulting, and therefore the matter will be capable of discussion and approval and the cap lifted. In reality, I do not think there is any risk to our national reputation as a place which takes its obligations of international protection seriously.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Lord Murray of Blidworth]

Forgive me, I have taken an awful lot of interventions, and I am very conscious of the time. I ask the noble Lord to keep this intervention until the end and allow me to make some progress.

I will return to the amendment. If, on the other hand, some numerical limit is envisaged, these schemes will not stop the boats and they are not an alternative to the Bill. Those who do not qualify for a safe passage visa will continue to be exploited by the people smugglers, all too ready to continue to take their money on the false promise of a new life in the UK.

As I have set out, we are ready to expand existing safe and legal routes as we get a grip on illegal migration, and the Bill already provides for this. That is the way forward, not amendments which exacerbate the current challenges. I commend Clauses 58 and 59 to the Committee and invite the right reverend Prelate to withdraw his amendment.

[Lord Kerr of Kinlochard (CB)]

I was very encouraged by the answer the Minister gave. He seems to be saying that the needs referred to in Clause 58(3) could be exogenous as well as endogenous: that the cap could be raised in response to an urgent need even if that need had nothing to do with housing here but something to do with massacre or war abroad. If that is the case, could that not be made clear in the Bill by a government amendment to Clause 58(3)?

[Lord Murray of Blidworth]

I can certainly think about that. I will take it away, but I do not think we are terribly far apart.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, allow me to add a few words about law enforcement. It seems to me that the problems the Bill intends to confront would best be solved by international co-operation, including international rules of law, but also by firm domestic law enforcement against the traffickers. That is a critical component.

It is very difficult for me to conceive of successful cases against traffickers without the co-operation of their victims. Persuading victims of crime in some categories of crime, including human trafficking, to give evidence against their tormentors is difficult, complex, sensitive, time-consuming work for the most obvious of reasons—the victims themselves feel under threat. This Bill gives those co-operating witnesses, who are showing enormous courage, no encouragement, no succour, no assistance, no help whatever. It will undoubtedly, in my judgment, make successful cases against traffickers less likely. This Bill is not simply anti-asylum but anti-prosecution.

[Lord Kerr of Kinlochard (CB)]

The strongest argument, apart from the legal and moral arguments, is the practical one that has just been made. How do you persuade victims of slavery to come forward and assist in a case if, when they do so, they are declared inadmissible and dispatched abroad? It is simply counterproductive and destructive of the whole basis of the Modern Slavery Act.

I would like to start as the noble Lord, Lord Coaker, did, by pointing to the Government’s announcement last week—there seemed to be some other things going on at the end of last week. It would have been better to make the announcement in this House, but it slipped out that the two-tier system for handling asylum introduced by the Nationality and Borders Act was being abandoned. We spent weeks pointing out that it would not work. However, better the sinner that repenteth, and I warmly welcome the Government’s decision to drop it. I think they were absolutely right.

The asylum queue now, at about 178,000, is 20,000 longer than when, with objections, we passed the Nationality and Borders Bill. A principal reason for it getting longer is the two-tier system that was introduced, which is administratively unworkable. I warmly welcome the Government changing their mind, but it is a shame that it remains a stain on our statute book—a clear breach of the UN refugee convention, as the UNHCR confirmed at the time. Of course, it was a smaller breach of the refugee convention than this Bill, as the UNHCR has confirmed.

If I could have the Minister’s attention, I ask him to at some stage correct the record on the UNHCR’s role in these matters. In the first day in Committee, asked about its views on the Bill, he acknowledged:

“Some parts of the UNHCR have views on the Government’s position”


but said that the UN

“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]

He might want to reconsider that. Under Article 35 of the convention, the duty is laid on the UNHCR of supervising the application of the convention and all parties to it have an obligation to co-operate with the UNHCR. As for “some parts” of the UNHCR commenting on the Government’s position, it has published and formally conveyed to the Government its formal position and legal observations on the Bill in the exercise of its responsibilities under Article 35. That is what it is required to do and what it has done. To suggest that criticisms of the Bill come from “some parts” of the UNHCR but are not its institutional view is wrong.

I come back to the modern slavery amendments. Mine was taken in the middle of the night, unbeknown to me as I rashly went home shortly before midnight. One of the charms of being a Cross-Bencher is that you never have the faintest idea of what is going on. The usual channels rarely have a tributary around these parts. My amendment was crucial, but it would be out of order for me to speak to it now. However, I can praise the Joint Committee on Human Rights for its magisterial report that came out over the weekend. Its conclusion on the clauses we are looking at is exactly the same as that which the noble Baroness, Lady Meacher, came to:

“It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived … through an irregular route”.


It says—correctly—that Clause 21 breaches Article 10 of the convention against trafficking and formally recommends that it should be removed from the Bill. I agree. It seems to me that that is what we should do, so I shall support the noble Baroness, Lady Hamwee, when we consider whether it should stand part.

My general view is in line with that of the noble Lord, Lord Cormack: I do not like this debate, for a number of reasons, partly because the best debates have two sides to them. This is tennis with nobody on the other side of the net and I am fed up with it.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Kerr. I agree with him about that form of tennis and, seriously, about both the timing of the Government’s announcement of their plans for the Nationality and Borders Act and the fact that this is a U-turn that needs to be applauded. If the Government point themselves in the right direction, people should not jump up and down and point a finger and go “U-turn, U turn”. It is better than not U-turning. We have heard many powerful speeches in this debate, but I think the Committee will join me in commending all Members on the Government Benches who have shown both courage and compassion in getting up and opposing the Government’s plans for victims of modern slavery.

I agree with both the noble Lord, Lord Cormack, that the whole Bill should go, and the noble Baroness, Lady Hamwee, that all these clauses should go, but I actually signed a number of the amendments in the name of the noble Lord, Lord Coaker—a package which has helped us interrogate what the Government are now doing and the impact that it will have. In that light, I shall ask the Minister three specific questions that in some ways draw on what has been said before, but also go in slightly different directions.

My first question concerns the situation if the provisions under the Bill, as the Government plan, essentially end the protection for victims of modern slavery. Imagine a police officer now, crouching down beside, say, a frightened young man who has been forced to work in an illegal marijuana farm, behind locked doors where the whole thing could have caught fire and killed him at any moment; a young woman forced by threats to stay in a nail bar; a young man who has been trapped for months in horrendous conditions at a hand car wash; or indeed a young woman who has been forced into sexual exploitation. Currently that police officer can crouch down beside them and say, “It’s all right, you’re safe now”. What does the Minister think a police officer would be able to say if the Bill goes through as drafted? What could that police officer say to the victim of modern slavery? I ask the Committee to think how the police officer might feel about being in that situation.

My second question concerns one of the things that that police officer would probably do, perhaps not immediately but soon after that. They would start to say, “Can you tell me what is happening here? Please, tell me what is happening. A bit down the track, would you think about testifying against the person who put you into this situation?” If we think about even the intelligence gathering, let alone the prosecution, what would the passing of this law do?

My third and final question is: have the Government really considered this? Let us think about the kinds of illegal operations I referred to—illegal enterprises that are a stain on our communities, that compete with and thrust out honest, decent businesses, that are a rotten core in the community and have all sorts of nasty effects. What will allowing those operations to continue, which is what the Government’s plans would do, do to our communities?

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord German (LD)]

My Lords, to help the Minister with the questions he has just been asked, can I add a quite straightforward and simple one? Is it the Government’s intention that return and removal agreements will be made with every country in Schedule 1 to the Bill to which they are seeking to remove people?

[Lord Kerr of Kinlochard (CB)]

My question is even more simple: where is the impact assessment? I think the purpose of impact assessments is to inform the legislative decision. We hear that there will be an impact assessment and it will be produced shortly, but it seems unlikely to be produced while this Bill is being considered in this House. I think that is rather insulting, particularly as the Government rest their intellectual case on the deterrent effect. They say that the numbers will go down as word gets about of how people are to be treated, what “inadmissibility” means and how it is to be applied.

I am strongly against that on legal grounds—I think we should honour our international commitments—and humanitarian grounds, but it is impossible just to consider this argument on its merits if we cannot see the assumptions underlying the Government’s judgment of the impact. The questions from the noble Lord, Lord Coaker, are all extremely apposite and I look forward to the answers to them, but it seems to me that in relation to the deterrent effect, the impact assessment—wherever it is, whenever we will see it—will have to consider why people leave their home country and seek asylum far away. Why are they coming here? Will they be deterred by talk of us getting more brutal? We are going to get more brutal if we pass this Bill, but we are not going to get half as brutal as the conditions of the countries from which they are fleeing—75% of those seeking asylum in this country are found by the processes to have a well-founded fear of death or persecution back home.

Talk of pull factors is all nonsense: it is all about push factors. They are fleeing from horrors, from famine, from massacre, from murder and from war. It is difficult to see the deterrent factor as likely to be to be large, given the scale of the factors that are bringing about the flow. The impact assessment may prove me wrong. Certainly, the Government should, if they have the courage of their convictions, produce the evidence and the assumptions that underlie these convictions, and they should do it before we finish considering the Bill.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that one of the underlying provisions that we should know about is the safe and legal routes that we are told will deal with any number of people? Situations change so fast. I am not sure we had quite started the Bill when Sudan flared up as it did. There is an awful lot we need to know in order to know how the Bill will work.

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[Lord Kerr of Kinlochard (CB)]

I am grateful to the noble Baroness; I should have mentioned the point myself. I am concerned that the Government keep saying that the UNHCR runs safe and legal routes and that it is perfectly possible for someone in Iraq, Syria or Afghanistan to register with UNHCR, which will see them right. It is simply not true. UNHCR has again said so, formally and on the record. It does not run a clearing house. It does not run a general scheme open to all. It is able to cope with approximately, it says, 1% of the demand.

It is the case that if you are a persecuted young woman in Iran, there is no safe and legal route by which you can come to this country. If you are fleeing in Sudan from the war that the noble Baroness, Lady Hamwee, referred to, there is no safe and legal route to the United Kingdom. UNHCR does not stand up the Government’s story that it is the fallback, the clearing house, that we can always turn to. It says it cannot do that. Obviously, it cannot do that; it is not resourced to do that. I agree that the impact assessment, in considering the deterrent effect on what the Government call illegal immigration, must address the question of how people from war-torn, famine-struck, civil war countries can achieve a legal route.

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow such a distinguished former Permanent Secretary to the Foreign department. To return to my noble friend’s amendment, it may seem a little counterintuitive or surprising for me to welcome a probing amendment about removal and about a duty to negotiate removal agreements, but I do. The reason is that there is actually a greater and stronger link between the principles that we have been discussing and the practice that my noble friend is considering here, because in this neck of the woods, in particular, the two go together.

I say, with respect to the Committee, that it would have been wise for the Government to have thought about a duty to negotiate removal agreements before they proposed to legislate for a duty to remove. The sin is to have duties to remove with nowhere to remove people to, and duties to detain with no ability to remove, because that leads to indefinite detention.

There were all the arguments that we had on the last illegal Bill, and the arguments that we will have again about whether refugees and asylum seekers should be allowed to work after a period of time. People argued about pull factors, and some of us said that there were push factors, not pull factors. But if people’s claims were being considered quickly, including of those who did not qualify for asylum—who were genuinely illegal migrants and never qualified for asylum—some of us would have no problem with the principle or practice of having a short period of arrest and detention for the purposes of facilitating a lawful removal.

My noble friend Lord Coaker has really hit the nail on the head. What is the practice here? If there is no practical agreement to remove people to whichever country they are from, and people are in practice irremovable, that is where the cruelty comes in. That is a cruelty towards people who are detained for lengthy periods, quite possibly at great public expense, in inappropriate accommodation; this could include accompanied or unaccompanied children not being housed or detained appropriately, not being educated, and so on. That is the sin—the terrible maladministration and lack of good practice, which is then translated into this culture war via more draconian legislation for a general election that will no doubt be sloganed, “Stop the boats”. We do not stop the boats, but we do not welcome the vulnerable people either, so we perpetrate this great swindle on the British people. We toxify a debate that needs to be handled much more temperately, and we do not achieve anything very much at all.

The final link between principle and practice in this area is that, in this amendment, we are talking about a duty on the Secretary of State to negotiate these practical removal agreements for those people who do not meet the tests and do not qualify in the end as refugees. In this probing amendment we are talking about that duty and asking whether it does not need to be a duty because the Secretary of State genuinely wants to negotiate. To go back to what the noble Lord, Lord Patten, said before the break, whether that is the case or not, who will negotiate with us? We have heard some flummery from the Benches opposite about how international law is not real law—“We have a dualist system and let me not give you a law lecture, but it’s not real law, it’s only international law”. If our word is not our bond, who will negotiate with us?

There is currently a contradiction at the heart of government between those who want to be leaders on the world stage, with all the challenges that have to be met internationally at the moment, and those who want a culture war. My understanding is that the Prime Minister is now saying not only that we are going to be part of the Council of Europe and honour our international commitments but that we are going to be the architects of new ones. London is apparently going to be at the heart of regulating artificial intelligence—this is where it is all going to happen. But why should anyone allow us that moral leadership on the world stage, if we will not honour international law?

I look forward to the answers to my noble friend’s questions about the moment when principle really does need to meet practice.

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[Lord Murray of Blidworth (Con)]

I am afraid I cannot do more than say that the impact assessment will be published in due course.

[Lord Kerr of Kinlochard (CB)]

The Minister really should say whether an impact assessment was produced. I apologise for reverting; I was the one who raised the question of the impact statement. I am not terribly happy with the message that the Minister is conveying. The noble Baroness, Lady Lister, put her finger on it. Presumably the Government did their own assessment of the impact of the policy that is reflected in the Bill; therefore, an impact assessment of some kind existed. If it did not exist, I do not know how the Government could have decided to adopt this policy. If it does exist—I am sure it does, in some form or another—the noble Lord, Lord Cormack, and the noble and learned Baroness, Lady Butler-Sloss, are surely right. We are being asked to take a decision without knowing its effect. We do not know—other than breaking humanitarian law and international commitments—what practical effect the Bill will have. Therefore, before we finish Committee, the Minister should change his line and let us have it.

[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the noble Lord. The point about the Bill is that we know that deterrence has effect, and we have seen that, as the Prime Minister announced this morning, in relation to the effect of our returns agreement with Albania.

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[Lord Kerr of Kinlochard (CB)]

My Lords, it is a challenge for a mere male to follow the three previous speakers, but my name is on Amendment 22, so I must attempt it. Amendment 22 would prevent unaccompanied children being automatically deemed inadmissible if they came by an irregular route.

Overall, 86% of the unaccompanied children currently going through the asylum process are given permission to stay, including nearly 100%—over 99%—from Afghanistan, over 99% from Eritrea and over 96% from Sudan. But only 6% of these children granted protection and found to have a valid case for asylum here came through the official government schemes. They had to come by an irregular route because there was no other way for them. Putting these two facts together, the Bill asks us to rule out the possibility of even considering the vast majority of unaccompanied children’s cases. That seems not to be in keeping with British tradition, and it is certainly not in keeping with Articles 3 and 22 of the UN Convention on the Rights of the Child 1989.

Therefore, although I support all the amendments in this group, I strongly support the amendment in the name of the noble Lord, Lord Dubs, to which I added my name.

[Lord Cormack (Con)]

My Lords, the noble and learned Baroness, Lady Butler-Sloss, spoke movingly about her connections with the Conservative Party. Along with my good and noble friend Lord Tugendhat, I was privileged to enter the other place on 18 June 1970, almost 53 years ago, along with her brother Michael Havers, who of course became a distinguished Lord Chancellor and, tragically, died very young. But, when she made those references, I thought of him and us, and I thought that our motivation could be summed up in that well-known term “one-nation Conservative”. I am extremely proud of what my party has done over the centuries—it has a long history—and I am troubled about some of the Bill’s implications.

I apologise for not being able to take part at Second Reading, because of my wife’s illness. This is my first full day back, as it were, although I will be off again soon. I thought of those great figures of the past: my parliamentary hero, William Wilberforce, as well as Shaftesbury and others. They could not have signed up to what is before us today.

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[Lord Murray of Blidworth (Con)]

To my mind, I have set out the detail, but of course I will go back and give it further thought.

[Lord Kerr of Kinlochard (CB)]

The Minister made a slightly unconvincing effort to persuade us that what is envisaged is in the best interests of the child. It rested on a couple of planks. One was that the safest route for the child will be to stop in the first safe country they come to. Hundreds of thousands of them do. If you go to look at the camps in Turkey, Greece or the Lebanon, you see that there are hundreds of thousands of unaccompanied children who have fled from conflict zones and are there. I am not sure that it is in their best interests to be there. There is a minuscule number who come here, perhaps because they speak English and not Greek or Turkish, perhaps because they have family or connections here, or perhaps they have the possibility of a home here. I cannot see why it is in their best interests to go into the camps in the first safe country they come to you and not come to their connections, family or prospects in this country.

[Lord Murray of Blidworth (Con)]

I know that the noble Lord and I do not agree, but the international law position is that children, and indeed asylum seekers, cannot be selective about where they wish to seek asylum. It is not an evaluative decision that an applicant can make. That is not the way the refugee convention works and, as we made clear at Second Reading, and as I think was widely accepted across the House, we sadly cannot take everyone who would want to come here—and that, I am afraid, is almost the logical corollary of what the noble Lord suggested.

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The answer will give us an opportunity to understand whether that assertion is correct, but one thing it proves for certain is that, if this is an emergency, it has gone on for more than a decade. What we are faced with is the position that most of the people who would therefore have had a right to remain here because they were genuine asylum seekers will now find themselves in limbo or deported to a country where you cannot speak out against the Government.

[Lord Kerr of Kinlochard (CB)]

My Lords, sensing an overwhelming desire in the House to discuss the National Health Service (Dental Charges) (Amendment) Regulations, I shall be very brief. I do not know whether we still do it, but we used to send some people to jail on conviction at His Majesty’s pleasure. They had, of course, their day in court. They had access to legal support. Had they been convicted, they could have appealed. What Amendment 23 is trying to do—the amendment from the noble Lord, Lord Dubs, to which I have added my name—is ensure that we are not sending asylum seekers whose cases we are refusing to consider into detention at His Majesty’s pleasure; that is, an indeterminate sentence. That is how I read the Bill and how the noble Lord, Lord Dubs, reads the Bill. That is what the Government have in mind. I cannot believe that it is right to send people into limbo of that kind.

I do not know whether the right answer to the question is the one in the amendment: a six- month time limit. If the Government have not found somewhere to send them and if they have not found someone to take them, they must consider the case under the Immigration Rules after six months have passed. It seems to me a reasonable proposition, but perhaps the Government have another one. One way or another, one has to avoid creating the situation where people are in limbo outside our systems—in effect, stateless because they cannot go back to their own home for fear, and we are keeping them locked up, so they cannot take part in our society. We cannot let that run for ever. We cannot pass that into the law of the land as a desirable, or even a permissible, situation. The Government must come up with some answer if they do not agree with the noble Lord’s amendment, as I do.

[Lord Horam (Con)]

My Lords, before we move on to the interesting dinnertime discussion, I just want to raise a point as a non-lawyer about Amendment 20, in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti. Its purpose is to

“enable an application for judicial review to be made while the applicant is in the UK”.

We had a very interesting point from the noble Lord, Lord German, about what he described, fairly accurately, as Daily Mail sidebar accusations about the nature of judicial review. It was very helpful to have that short seminar from the noble Lord, Lord Carlile, on what actually happens in the Administrative Courts and how it is not a question of lawyers making lots of money out of rather dodgy cases. I think he is right. Although I have never been to the Administrative Court, but I am sure he reflected that very faithfully.

Surely, however, if this amendment is passed, it will drive a coach and horses through the main purpose of this Bill, which is to deter people from crossing the channel in small boats. If you then give them the opportunity when arriving in this country in a small boat of immediately seeking judicial review, and that is in the Bill designed to stop them coming across the channel, will that not destroy the whole purpose of the Bill? I merely put that question as a non-lawyer; it seems to me inimical to the very heart of the Bill, whatever one’s view.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

It will have two major effects. First, we will not get the prosecutions because we will not have the witnesses. It is essential that we prosecute the perpetrators. It is an aspect of human trafficking and modern slavery that there are prosecutions, and there are not enough. Secondly, the person being trafficked is not going to come forward to say they have been trafficked if they are told by the perpetrators, their exploiters, that if they go forward and tell the police what has happened, they will be immediately deported to Rwanda or somewhere else. This is going to have a disastrous effect on the already far too small number of prosecutions in this country. It is crucial that we establish the ability to stop the perpetrators from their evil deeds.

[Lord Kerr of Kinlochard (CB)]

The noble and learned Baroness makes a very strong case and I give her my full support.

My name is on Amendments 80 and 91 in this group. Amendment 91 is concerned with victims of human trafficking, but both fall at the hurdle of retrospection, as has been explained by the other signatories, in particular, my noble friend Lord Carlile, and by the noble Baronesses, Lady Chakrabarti and Lady Hamwee. I have the luxury of being able to add virtually nothing to the arguments already made.

I think the best description of the case against retrospection is in my noble and learned friend Lord Hope’s explanation of Amendment 39, which

“seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.

What is the conceivable good reason? What are the very exceptional circumstances that the Constitution Committee suggested might excuse retrospection?

The noble Baroness, Lady Hamwee, suggested that the Minister might try to say that stopping the boats is so exceptional as to justify retrospection. But there are a lot of other ways of dealing with that; for example, the safe passage visa argued for at Amendment 130. The Minister might say that that it is the cost of housing those who have come across the channel or in the back of a lorry and have been apprehended. But the costs of detaining and deporting those declared inadmissible under this Bill will be much higher.

That is the point the Refugee Council made in its impact assessment and estimate of the costs. It estimated a cost of £9 billion over the first three years. The Minister says that he does not recognise those numbers. That is not a sufficient argument. He needs to tell us what is wrong with those numbers and what his numbers are. It is not good enough just to sit there and say, “Well, I’m not going to engage in this debate because I don’t recognise the numbers”. I think retrospection is fundamentally unacceptable.

A few years ago, when I was driving up Headington Hill in Oxford, I forgot that, eccentrically, the set speed limit there is 20 miles per hour. I was required to present myself in Milton Keynes four months later for a speed awareness course, because I had been travelling at 27 miles per hour. Eccentrically, because I am a very eccentric person, I failed to ask my wife to see whether I could have a personal course. Nevertheless, I would have been very taken aback if, when I got to Milton Keynes—it was extremely hard to find the place and I was driving rather fast trying to find it—I had been told on arrival, “Actually, we have changed the penalty and we are going to export you to Rwanda”. I would have objected, and I object to retrospection.

[Baroness Lister of Burtersett (Lab)]

My Lords, I agree with everything that has been said so far, but I will focus on the opposition to Clause 2 standing part of the Bill. This clause is, in many ways, the nub of the asylum ban to which the Bill gives effect. To place a duty on the Home Secretary to remove virtually all those who seek asylum through irregular routes is an unprecedented step going far beyond simply giving her the power to do so. Here we are talking about those arriving not only by boats but by any irregular route; the boats are used as a justification for the Bill, because the Government know that we all want to see an end to those very unsafe journeys. The fact that it is a power only when it comes to children is a small mercy, given that they will be removed when they reach the age of 18. However, I will leave the treatment of children to a later debate, because there is still a lot to be said about the impact on children.

Calling those affected “illegal migrants” does not alter the fact that the majority are exercising their right in international law to seek asylum. That goes back to the point that the right reverend Prelate the Bishop of Chelmsford made earlier. In the words of the UN rapporteurs that I quoted earlier,

“the act of seeking asylum is always legal, and effective access to territory is an essential precondition for exercising the right to seek asylum”.

When she first introduced the Bill, the Home Secretary accused critics of naivety in suggesting that

“everybody coming here on a boat is a genuine asylum seeker fleeing for humanitarian reasons. The reality is that many of these people are economic migrants who are abusing our asylum system, and that is what this Bill aims to stop”.—[Official Report, Commons, 7/3/23; col. 174.]

Could the Minister give us the evidence on which that assertion is based? It has been reported that the Home Office does not have that evidence, but, if it does, now is the opportunity to provide it.

No one is suggesting that everyone who comes here on a small boat has a genuine case for asylum, but we know that the majority are likely to have such a case. According to the Refugee Council’s analysis of official data, six out of 10 of those who crossed the channel in small boats last year stood to be recognised as refugees—yet they will no longer be able to make their case.

The Home Secretary has argued that the Bill’s critics

“ignore the fact that our policy does in fact guarantee humanitarian protection for those who genuinely need it”.—[Official Report, Commons, 13/3/23; col. 576.]

However, many of those whom she has given herself a duty to remove will genuinely need humanitarian protection. Yet there will be no mechanism for ascertaining whether that is the case before they are simply removed to be dealt with elsewhere, like a parcel marked “don’t return to sender”. To quote the UN rapporteurs again,

“any steps taken to legalize policies effectively resulting in the removal of migrants without an individualized assessment in line with human rights obligations and due process are squarely incompatible with the prohibition of collective expulsions and the principle of non-refoulement”.

The Government talk as if we take a disproportionate number of asylum seekers, yet the opposite is the case— that point was made earlier today, though it seems a long time ago now. As I asked earlier, what happens if other countries follow our lead and also put up the “no asylum seekers here” sign? The chances are that the numbers seeking asylum in the UK will go up, not down.

In practice, the general view, including that of the Law Society, is that removal of those deemed inadmissible will be very difficult in the absence of adequate third-country agreements, making the Bill, in effect, unworkable. The fear of the Refugee Council, the UNHRC and others is that it will mean many thousands left in semi-permanent limbo, at risk of destitution. As I said at Second Reading, the mental health implications are likely to be serious, as spelled out by the Royal College of Psychiatrists, which has many concerns about the Bill’s impact on mental health. For those who are removed to a third country, there is no guarantee that the country will be equipped to assess their asylum claim, so again they could be living in limbo, but out of sight and out of mind of the UK Government. How can all this be described as compassionate and humane, as Ministers repeatedly do?

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[Lord Murray of Blidworth (Con)]

I am afraid that I again find myself at odds with the noble Lord. The reality is that the UN itself relocates refugees to Rwanda. As I say, there is no suggestion that people’s asylum claims will not be dealt with under this scheme; their asylum claim will be dealt with in Rwanda once they are removed, and that is entirely compatible with the convention. There is no requirement on a member state of the convention to determine asylum claims within its own territory. That is abundantly plain.

[Lord Kerr of Kinlochard (CB)]

The Minister says there is no requirement in the convention for a convention state to handle an asylum request on its own territory, but surely the deal with Rwanda rules out our ever hearing these cases. In Rwanda, people are allowed to apply for asylum in Rwanda, but their case for asylum in the United Kingdom will never be admitted. Is that not correct?

[Lord Murray of Blidworth (Con)]

That is entirely correct, yes. Their asylum claim will be determined by the Government of Rwanda. That is the system that the High Court found to be entirely lawful in December.

If Amendment 7 were agreed, removing the third condition, the duty to remove would also apply to those who had come directly from a country where their life and liberty were threatened, and I am sure that is not what the noble Lord would want.

Amendment 8 in the name of the noble Lord, Lord Cashman, also relates to the third condition. I put it to the noble Lord that the wording in Clause 2(4), referring to threats by reason of a person’s race, religion, nationality, membership of a particular social group or political opinion, reflects the definition of a refugee in Article 1 of the refugee convention. We have heard a lot today about adherence to the refugee convention and other international treaties. There may be a case for amending the definitions in the convention to reflect the world of today rather than what it was in 1951, but we should not put the cart before the horse and insert wording in the Bill at odds with the current wording of the convention.

I add that the reference to membership of a particular social group may, on the facts of a particular case, cover a person fleeing persecution on the basis of their gender, sexual orientation or gender identity. Lastly, it is not right to suggest, as the noble Lord does, that the Bill removes individualised assessments. It does not. Officials will make assessments and those can be challenged, including by way of suspensive claims, as we have already discussed.

Amendment 9 tabled by the noble Baroness, Lady Hamwee, would remove subsection (7). This ties in with the fourth condition, which is that a person requires leave to enter or remain in the UK but does not have it. We will have a fuller debate about unaccompanied children later in Committee, but subsection (7) recognises that the duty to remove does not apply to unaccompanied children, and where they are not to be removed under the power conferred in Clause 3, the expectation is that they will normally be provided with temporary permission to remain in the UK until they are 18 years old under provisions to be made in the Immigration Rules. If subsection (7) is removed from Clause 2, an unaccompanied child given this temporary permission to remain would not then satisfy the fourth condition, thereby undermining our approach to unaccompanied children. As I say, we will have a fuller debate on this issue when we get to Clause 3, which feels like some time away.

The noble Baroness, Lady Hamwee, also has Amendment 10, requiring the Home Secretary to inform people when it has been decided that the duty to remove applies to them. Such information would include providing details of any evidence relied upon to make that decision. We have already provided, in Clause 7(2), for a person to be issued with a removal notice detailing, among other things, their right to make a suspensive claim. It is implicit in these provisions that the issue of a removal notice follows a determination that the person satisfies the four conditions in Clause 2. The four conditions relate to issues of fact. A person in receipt of a removal notice will themselves know, or ought to know, whether the conditions apply. If they have compelling evidence that the Home Secretary has made a mistake of fact, they can submit a factual suspensive claim to challenge the removal notice. We will return to those provisions, too, in due course in Committee.

Amendment 11 was spoken to by the noble Lord, Lord Coaker, and others. As we will come on to in later clauses, we have made particular provision for potential victims of modern slavery who are co-operating with law enforcement agencies, and it is necessary for them to remain in the UK in furtherance of such co-operation. In later debates, we will address the wider issue of the progress being made by the NCA and others in tackling the criminal gangs that are not perpetuating human trafficking but are engaged in people smuggling. It is worth also noting, in response to the noble and learned Baroness, Lady Butler-Sloss, that if an individual who had been trafficked came forward, they would be sent only somewhere where they would be safe—whether their own home country, if it was safe, or a safe third country. In all cases, they would no longer be in the control of their trafficker.

A key purpose of the Bill is to break the business model of the people smugglers. That will not happen if we undermine the central tenet of the Bill: that if you come here illegally you cannot stay, and instead you will be liable to detention and promptly removed. If we build exceptions and loopholes into the fabric of the Bill, it will be undermined and will not work. If those coming over on small boats have information that will assist in the investigation of people-smuggling offences, they can provide it, but this cannot be a reason to delay removal. Any co-operation with law enforcement agencies can, if appropriate, continue from abroad. If the experience of the pandemic has taught us anything, it is that a lot can be achieved remotely. Indeed, our domestic courts and law enforcement are well used to this by now.

Finally, Amendment 12 in the name of the noble Baroness, Lady Ritchie of Downpatrick, deals with the issue of entry into the United Kingdom over the Irish land border. We discussed this at length during the dinner break business yesterday in relation to the recent SI on electronic travel authorisation. I note that this is a probing amendment relating to the concerns that have been raised regarding tourists and other people who inadvertently arrive in the UK from the Republic of Ireland via the land border with Northern Ireland. As is currently the case, tourists from countries requiring visas to come to the UK as visitors should obtain these before they travel. That is as it should be. That said, I recognise the issue she has raised and accept that some individuals may, entirely unwittingly, enter the UK without leave via the Irish land border, as I said yesterday.

We are examining this issue further. I would point the noble Baroness to the regulation-making power in Clause 3, which will enable us to provide for exceptions to the duty to remove where it would be appropriate to do so.

The noble Baroness, Lady Finlay, asked me about the status of a child born in the UK to a woman who meets the conditions in Clause 2. The short answer is that the child will not satisfy the conditions in Clause 2, but I will write to her with a more detailed explanation.

The noble Baroness, Lady Ludford, asked about compatibility with article 2 of the Windsor Framework. There is a later amendment to which she has added her name, Amendment 137, on this very issue. We will come on to that later in the Committee.

As I indicated at the start, this clause provides the foundations for the Bill as a whole. It is fundamental to the effective operation of the scheme and my fear is that the amendments put forward would serve only to weaken the effectiveness of the scheme. On that basis, I invite the noble Lord, Lord Carlile, to withdraw his amendment.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

The most reverend Primate is exactly right: we have failed to start the conversation across the country as to what the number we can reasonably absorb is. Once we have had that conversation, the second stage of the conversation is: how does that number divide up between, as the most reverend Primate has just referred to, people who are coming here to fulfil jobs we cannot do and people who are coming here because they have money or ideas or are brilliant academics? That way, the people of this country would have some understanding of what is in store for them. I certainly accept that 40,000 people—but it may be 80,000 people—is only a fraction, a small part, of the problem that we face.

I turn, without further delay, to the rule of law. I need to begin by stating that I am an enthusiastic supporter of the rule of law, a rule of law that interprets the views of Parliament and provides the framework under which our society can operate with confidence, our freedoms are protected and our property rights are respected. Indeed, at various times since I joined your Lordships’ House, we have had debates on the importance of the rule of law which I have been pleased to participate in. At this point, Members of your Lordships’ House who are of a judicial turn of mind will no doubt be pleased by what I have been saying. I am afraid that what I am about to say is going to be rather less acceptable.

As I have explained, I am not a lawyer, but I think the rule of law is too important to be left entirely to lawyers to speak about and interpret; there are wider societal consequences. I do not wish to get involved in legal niceties and drafting. I have heard the Government’s view, expressed by my noble friend the Minister, that the UK will be in compliance. I have heard endless briefings about how the UK will not be in compliance. Let me explain from a non-lawyer’s point of view what I think the man on the Clapham omnibus thinks, which is that the rule of law is not a stand-alone, immutable entity. To be effective and accepted, it needs to be well integrated into the civil society which it seeks to protect. Specifically, in my view, to carry public confidence the rule of law needs to meet four tests: it needs to be relevant; it needs to be open to scrutiny; it needs to be applied in accordance with the original purpose of the law; and it needs the informed consent of the British people. I shall deal briefly with those points.

The first is relevance. Of the list in Amendment 4 of five conventions, two are 70 years old, one is 60 years old, one is 30 years old and only one was signed this century. The noble Baroness, Lady Chakrabarti, proudly read them out. In 1950, in the aftermath of the appalling events of the Second World War, the challenge of refugees, in terms of numbers, scale and distance, bears no relation to the situation we face today. Of course, I accept that there are areas of read-across from 1950 to today, but to see a direct comparison in every aspect stretches public credibility.

The second is openness and scrutiny. Again, as a non-lawyer, I expect there to be open hearings, with pleadings by both sides, followed by a detailed reason for reaching a particular decision by an identified judge or judges. I am not clear that this has invariably been the situation in some of the key aspects that form the background to the Bill.

The third is applicability. I was an enthusiastic supporter of the Modern Slavery Act—which is not on the list in Amendment 4—but now I see it being misused as a means to frustrate the proper operation of our immigration system and so devalue and undermine the original purpose of the Act. I find it hard to believe that the increase in case load from an anticipated 3,500 cases per annum to the current 17,000 cases last year can all be based on genuine circumstances.

Fourthly and finally is informed consent. I return to a point I covered a bit earlier: successive Governments have never been courageous or honest enough to explain candidly to the British people the implications of these conventions. It has been easier to present the country with a series of faits accomplis and then wonder why there is a degree of public cynicism and toxicity about the process.

I hope that my noble friend the Minister will reject amendments that place excessive weight on the narrow interpretation of the rule of law. I respectfully suggest that Members of the Committee who have amendments in this group reflect on how the outcome of their decisions and discussions may serve across the country to undermine the credibility of and public confidence in a concept—the rule of law—which we can all agree lies at the heart of our society.

[Lord Kerr of Kinlochard (CB)]

My Lords, I largely made at Second Reading all the points I would have wished to make in this debate, and they were admirably made earlier by the noble Lord, Lord Hannay. I look forward to the Minister’s response to the challenge from the noble Lord, Lord Carlile of Berriew, to construe for us the meaning of the Section 19(1)(b) statement. The Minister made a sporting shot at it at Second Reading when he said:

“I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious”.


One can say that again. He continued:

“as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect”.—[Official Report, 10/5/23; col. 1921.]

I find that a slightly sinister statement. It seems to carry the ring of, “And the court had better find for us, or else”—and we all know what the “or else” is that is talked about in some quarters. To be fair to the Minister, he did not try to argue that, in a dualist state like us, breaching international law is a legitimate action, but some he cited in his speech are so arguing.

I say to the noble Lord, Lord Hodgson of Astley Abbotts, that if one thinks that these conventions are a bit old and wants to change them, the way to go about that is to call for an international conference and put down proposals for amendments to the conventions. The refugee situation and the problems of asylum are not less now than they were when the conventions were created, so the need to defend and perhaps develop them—there is a case for trying to develop them—is more important now than it was even when they were first set up.

I strongly support Amendment 4. I also support Amendment 2.

[Lord Hacking (Lab)]

My Lords, I support Amendment 4 for all the reasons that almost every Member of the Committee has expressed in the debate, but I will not repeat any of those arguments. I am a little disappointed that we have not heard from the noble Lords, Lord Sandhurst and Lord Wolfson, both of whom are sitting on the Government Benches. As a fellow lawyer, I would be interested to know their position on Amendment 4. I think that I saw the noble Lord, Lord Sandhurst, attempt to stand up, so I may get an answer to that question.

I am going to read to your Lordships a short quotation from the brief I have just received from Justice. I should tell your Lordships that I am on the council of Justice and have been a member for many years. It reads as follows:

“This is a perilous moment for human rights protections in continental Europe, as the war in Ukraine continues and Russia is expelled from the Council of Europe (the leading human rights organisation on the continent). The UK’s reputation is strengthened not only by being a party to the European Convention on Human Rights but an active leading member of the Council of Europe. Now is the moment for the UK to take the lead”.

Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Wednesday 8th March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

Last year, 50% of those who crossed the channel came from only five countries—Afghanistan, Eritrea, Syria, Sudan and Iran. If I were a young woman in Iran being hunted by the authorities for demonstrating and had relatives in this country, how could I come here? What safe and legal route is open to me? I believe that there is none. If we want to put the smugglers out of business, as of course we all do, the way to do it, contrary to what the Minister has just said, is to open safe and legal routes. It is absurd to suggest that a flow of 100 million would come in; that is just wild and ridiculous talk.

Has the Minister considered the likely cost of this policy? It seems to have three defects: first, it wrecks our reputation; secondly, it will not work because it will not put the smugglers out of business; and, thirdly, it could have considerable economic costs. Has the Minister considered Article 692 of the trade and co-operation agreement with the EU? If the EU believes that we have broken the European Convention on Human Rights—and the Home Secretary says in the Bill, as the noble Lord, Lord Coaker, pointed out, that she cannot confirm that we have not—and if it turns out that we have, as I believe we have, the Commission has the right to denounce the trade and co-operation agreement. I do not know how much of that it would denounce, but it has been in the press this afternoon that a commissioner contacted the Home Office today. Could the Minister tell us what assessment he has made of the form of action that the Commission would ask the European Union to take against us, and what economic cost that would have?

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for his questions. First, I can reconfirm that safe and legal routes exist. As I have repeatedly told the House—

Public Order Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of my noble friend Lord Coaker and of my friend the distinguished former police officer and consistent advocate for rights and freedoms, the noble Lord, Lord Paddick. Stop and search is always a vexed question; even stop and search with reasonable suspicion is a vexed question. Of course, we must sometimes have it in a democracy, when people are reasonably suspected of various crimes, but even that becomes difficult because the threshold of reasonable suspicion is so low. Stop and search with reasonable suspicion in this Bill is problematic because certain offences in it, for example locking on, are so vague. Therefore, the range of items for which you could be stopped and searched on reasonable suspicion include, as the noble Lord, Lord Paddick, pointed out, things that you might pick up in John Lewis. They could include, for example, your mobile phone if that might be used in connection with the offence of locking on, and so on.

However, my priority is of course stop and search without suspicion. As the noble Lord, Lord Paddick, has rightly pointed out, this has classically been for things such as terrorism and carrying weapons, rather than carrying things such as bicycle chains or mobile phones. Noble Lords will see the problem, which is particularly vexed in the context of the statistics, year on year, on the disproportionate numbers of black and brown people who will be subject to stop and search. Too many young people, boys in particular, have had their first experience of the state and the police service via a racially discriminatory stop and search, because that, unfortunately, has been the culture of policing for too long. We now add a new layer: that there will be lots of young women, not least today, who are particularly concerned about being stopped and searched by the police. That is not a happy thing to have to report, but I am afraid it is the reality.

When I was a young director of Liberty, the National Council for Civil Liberties, almost exactly 20 years ago, what was then Section 44 of the Terrorism Act allowed suspicionless stop and search where it was considered expedient to preventing acts of terrorism. When an arms fair took place in Docklands, large numbers of protesters, not terror suspects but protesters, were prevented from getting anywhere near that fair. They were hassled and detained, sometimes under Section 44 of that Act. Initially, the Metropolitan Police denied that they would ever use such powers in such a way, until questions were asked in Parliament, including in your Lordships’ House.

I sent a young lawyer from Liberty down to Docklands; he came back with large numbers of notices that had been issued to protesters and journalists, and predominantly to black and brown people, under Section 44 of the Terrorism Act. That was stop and search without suspicion. It took many years to take that case all the way to the European Court of Human Rights in Strasbourg, where of course it was found that that power was just too broad. Suspicionless stop and search is very ripe for abuse, so I urge—

[Lord Kerr of Kinlochard (CB)]

I have great sympathy for the noble Baroness’s argument and that advanced by the noble Lord, Lord Paddick, but could she explain whether her objection to Clause 11 would be removed if subsection (7) were removed? It is in Clause 11(7) that what seems to be highly objectionable language occurs. It says that the constable

“may … make any search the constable thinks fit whether or not the constable has any grounds for suspecting that the person … is carrying a prohibited object”.

Supposing that that provision were not in the Bill—is the rest of Clause 11 objectionable?

[Baroness Chakrabarti (Lab)]

This being not Committee but Report, the simplest and speediest answer that I can give to the noble Lord’s question is that Clause 11 is about suspicionless stop and search. He has picked out a particular subsection in the scheme, which would have been interesting in Committee. But the crucial thing is that Clause 11 is on stop and search without suspicion, not in the context even of terrorism, where it can come with greater justification—for example, when everybody is stopped and searched on their way into the Peers’ Entrance if they are not a Peer, or at the airport, where everybody is treated the same. But, by definition, that will not be the case in this scheme. This broad power will be used against young people all over London on the day of a protest. It will cause such strife and will poison relationships between the police service and the people it serves. For that reason, I urge all noble Lords to reject in particular this power to stop and search without suspicion even of the protest offences to which I object in the Bill.