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.

Rwanda: Memorandum of Understanding

Lord Kerr of Kinlochard Excerpts

Monday 6th February 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

They did not say so at the time but the Government now maintain that the CRaG Act 2010 overruled the previous understanding that the Government would also draw to Parliament’s attention agreements not given treaty form but which bind the nation and

“involve international obligations of a serious character.”

I argue that the Rwanda agreement, and perhaps Prime Minister Johnson’s agreements with Sweden and Finland on security, match that description, but the Government say that the 99 year-old Ponsonby rule is dead.

The Government also reject the International Agreements Committee’s proposal to agree criteria for deciding whether an agreement should be a memorandum of understanding or a treaty. They say that that would restrict the royal prerogative. Yes, it would; I understand the argument, although of course it would depend on what the criteria were. What I do not understand is that they also reject the alternative course of agreeing criteria in determining which non-treaty agreements are so significant as to justify parliamentary scrutiny—the scrutiny Ponsonby promised. There would not be very many. I recall from my past life that most MoUs are routine—updating, renewing and not amounting to very much. They are small beer, certainly not worth Parliament’s attention. But there are some that are very important, and I would say that the Rwanda agreement is one of them. So I urge the Minister to ask the FCDO to look again at the idea of agreeing criteria for separating the many sheep from the few Rwanda-type goats. Substance matters as much as form—I would say, more so.

Asylum Seekers

Lord Kerr of Kinlochard Excerpts

Tuesday 17th January 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The 1951 convention describes the categories of people who might seek protection from their native country, and, as a result, they are entitled to make a claim for asylum. There is nothing in the text of the convention which limits the receiving nation state’s obligation to consider applications from various classes of nations. That is why we have international agreements; for example, when we were members of the European Union, there was an agreement that other European Union member nations were not able to lodge asylum claims within the United Kingdom.

[Lord Kerr of Kinlochard (CB)]

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?

[Lord Murray of Blidworth (Con)]

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. Legally allowing people to work would increase the pull factors for them to embark on dangerous and illegal journeys across the channel.

Migration and Economic Development Partnership with Rwanda

Lord Kerr of Kinlochard Excerpts

Tuesday 20th December 2022 Lords Chamber

[Lord Murray of Blidworth (Con)]

The judgment about which these questions are being asked relates to those removed to Rwanda. Of the 40,000-odd people who have crossed the channel illegally during the past 12 months, 13,000 have been Albanians, and a large proportion of them have been single young men. It is the Government’s intention, following the recent agreement with the Government of Albania and decisions taken in such cases, to return them to Albania in the light of the assurances provided by the Albanian Government. Clearly it is cheaper to remove to Albania than it is to Rwanda. I should note that Albania is not only a NATO member but an EU accession country and a signatory to the European convention against trafficking. It is our hope to use both devices to bear down on illegal crossings of the channel.

[Lord Kerr of Kinlochard (CB)]

My Lords—

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble Lord but I do not believe that he was here at the beginning of the Statement.

UK Asylum and Refugee Policy

Lord Kerr of Kinlochard Excerpts

Friday 9th December 2022 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, the quality and quantity of contributions to this debate show how grateful the House is to the most reverend Primate for choosing this subject and introducing it so inspiringly. I thank him.

I think it was in Sebastian Haffner’s wonderful memoir Defying Hitler that I read the story of the south London Germans—mainly Jewish—who were rounded up in 1939 and taken to the Crystal Palace football ground en route to internment on the Isle of Man. Haffner, being a German, was used to German efficiency. He was surprised when the transport failed to turn up and even more surprised when the speaker politely invited all those sitting on the pitch to go home and come back tomorrow, please. It is a nice story, with the incompetence taking the edge off the cruelty. Alas, it does not seem to work that way now. The incompetence of our asylum system compounds its cruelty.

Just as the 1939 round up of those who particularly wanted to resist Hitler was a bit perverse, so in today’s economic circumstances it is very perverse to spend £1.5 million per day not allowing able-bodied asylum seekers to take a job. The Isle of Man was no Rwanda and the fear of invasion then was well founded, whereas rhetoric about “invasion” now is totally unjustified. We get eight asylum applications per year for every 100,000 of us. The French get more than twice as many and the Germans three times as many—a point rightly made by the most reverend Primate.

The effects of Home Office practice are a stain on our society but, giving the benefit of the doubt, I do not believe that is deliberate. I think it is the unintended consequence of inefficiency. Consider the facts: in the year to September there were 86,000 new applications for asylum, including 5,000 from unaccompanied children. Only 16,000 of those were decided, so the queue of those waiting for an initial decision grew to 143,000. In the year to October, over 3,000 children were housed in unsuitable hotel accommodation. Currently, over 200 of those placed in hotels are known to have gone missing. That is shocking; it shames us.

It gets worse. The Refugee Council, where I used to be a trustee, tells us that of the 140,000 now waiting for their cases to be considered, 98,000 have waited for over six months, 41,000 for between one and three years and an astonishing 10,000—including over 150 children—have been waiting for over five years. That is longer than internment on the Isle of Man. It is shocking and it shames us. Remember, we are not talking about appealing an initial decision. These numbers are just those waiting and hoping that one day the Government will get around to looking at their claim. Remember, too, that 77% of claims are found valid and accepted, as are over 50% of those that go to appeal, so in the main we are not talking about fraudsters and chancers.

More than nine out of 10 of those in the queue will in the end be found to have a valid case, and a genuine and well-founded fear of persecution, having fled oppression, violence, war or famine. I have to tell the noble Lord, Lord Lilley, that the reason why they have come here is because they speak our language; they have family here, or they have heard—alas, it seems that it is not always the case—that we are still a friendly and hospitable people. Actually, I believe that we are, but we have been let down by a system that is not deliberately callous. The Home Office knows that the delays have no deterrent effect. The system is callous in effect because of inefficiency. That means that the problem is fixable—and, indeed, it is relatively easy to see what we need to do.

I have two questions for the Minister. First, when will the Government implement the recommendations on asylum casework made over a year ago by the Independent Chief Inspector of Borders and Immigration? Why not streamline the system? Secondly, is not it time to set up a dedicated task force to clear the backlog, prioritising the most vulnerable and those who have waited longest? It really is not rocket science. Given clear ministerial instruction, the admirable Permanent Secretary at the Home Office could reallocate the resources tomorrow. Yes, we should also shut down the scandal of small boat channel crossings, but that is also soluble. People would not risk their lives if they had the option of a safe, official route. At present, unless you are from Ukraine, Afghanistan or a UNHCR camp in Syria, there is no safe route, as the most reverend Primate pointed out.

You can ask for asylum only when you get here, and we will not give you a visa to come here if it is asylum you seek—Catch 22. Why not have a humanitarian visa? Why not process applications in France, as the French keep suggesting? Getting back to our values means tackling the backlog. I repeat that I believe that it springs from inertia and not malign intent, but sins of omission are sometimes the worst. These problems are all soluble, so let us solve them and, as so many in this debate have said, while people wait in the queue, let us allow them to work. It would be good for them, for the Exchequer, for the economy and for our consciences.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My apologies; he is the only Sikh on the Labour Benches.

I also share the sentiment of both the noble Lord, Lord Sahota, and the right reverend Prelate the Bishop of Leicester in hoping that their elevation will be an omen for the success of the English football team on Saturday.

I will make one further point, as a fairly recent entrant to the House myself. The three new Members will have noticed that there is a tendency in the House for noble Lords to make speeches in Question Time when they should be asking questions, and for them to ask questions in debates when they should be making speeches. So I ask for the House’s indulgence, as I will not be able to answer all the questions that noble Lords have asked me today, but I will endeavour to answer as many as possible. I am sure that those I do not answer will be converted into Written Questions in due course.

I also thank my noble friend Lady Nicholson for her heart-rending history of the Yazidi position, and welcome her special guest to the House today.

It is no secret that the UK’s asylum system has, of late, come under severe strain. This year, we have seen around 40,000 people arriving by small boats. Around 100,500 individuals are currently on asylum support. The cost of accommodating asylum seekers in hotels has reached more than £5 million a day. Clearly, something has got to change.

The Government have been clear on their priorities; namely, first, tackling small boat irregular arrivals by encouraging claims to be made in the first safe country and deterring unnecessary, dangerous journeys to the UK; secondly, alleviating pressures on accommodation, including by tackling lengthy stays in processing centres, while of course taking the safety and welfare of those in our care extremely seriously; thirdly, delivering our migration and economic development partnership with Rwanda; and, finally, providing safe and legal routes for people in need of protection and combating the asylum application backlogs. In doing that, we will seek to streamline the asylum decision-making process.

On safe and legal routes, while we are clearly grappling with significant challenges, the UK has maintained our long and proud record of welcoming refugees and people in need of protection through various resettlement schemes. Under the 1951 convention, people should claim asylum in the first safe country which they reach—that is the fastest route to safety. While we know that many people are in difficult situations around the world, the UK cannot possibly accommodate everyone who might wish to come here, as the most reverend Primate identified.

We have adopted a proactive stance in responding to world events. In the wake of Russia’s appalling aggression, we introduced the Ukraine Family Scheme and the Homes for Ukraine scheme. Since January 2022, those schemes have received a total of 220,225 applications, of which 85.8%—that is, 189,131—were granted. I thank the noble Earl for commending the efforts of the department in relation to those schemes.

We continue to welcome people through the existing global UK resettlement scheme, community sponsorship, mandate resettlement scheme and the Afghan resettlement schemes. The Government’s refugee resettlement schemes are focused on those with the greatest need as determined by the UN Refugee Agency. The UNHCR has well-established procedures and submission categories for identifying and resettling the most vulnerable refugees. The UK’s refugee resettlement schemes aim to do exactly what my noble friend Lord Horam has pointed out: to bring those to the UK who are considered refugees as per the UNHCR’s criteria.

Since its expansion in September 2015, a total of 20,103 people have been resettled in the UK through the vulnerable persons resettlement scheme, or VPRS, across more than 300 local authorities. Alongside the VPRS, we ran the gateway protection programme, which has resettled more than 9,939 people. The VPRS closed in February 2021 and is succeeded by the global United Kingdom resettlement scheme, which has since its creation settled some 1,882 people. We have also resettled more than 800 through the community sponsorship scheme since it began in 2016.

The noble Baroness, Lady Hamwee, asked what the actual number of Afghans assisted is. The Afghan citizens resettlement scheme, or ACRS, was formally opened in January of this year, with pathways 2 and 3 launched in June. This will provide support for up to 20,000 people affected by events in Afghanistan. This is in addition to those coming under the Afghanistan relocation and assistance package. Operation Pitting was the largest UK military evacuation since the Second World War and saw around 15,000 individuals evacuated to the UK, some of whom were the first to be settled under the ACRS.

In the year following the evacuation, around 6,000 people had arrived in the UK via neighbouring countries under a combination of ARAP and the ACRS pathway 1. The number of vulnerable and at-risk individuals granted leave under pathway 1 now stands at over 6,300. Therefore, to say we have not welcomed anyone through the Afghan citizens resettlement scheme and the Afghan relocation and assistance policy is simply not true.

In addition to these routes, the Government provide a safe and legal route to bring families together through their family reunion policy. This allows a partner or spouse and dependent children to join their refugee family members in the UK if they formed part of the family unit before the sponsor fled their country.

On asylum decision-making, which has been a topic of many speeches in your Lordships’ House, we agree with the point that many have made today that it is unacceptable that there are so many outstanding claims awaiting a decision. The asylum system has been under mounting pressure for several years. Increased and sustained intake and a growing number of people awaiting a decision have led to significant delays in concluding asylum claims. Current efforts are focused on deciding older claims, high-harm cases, and cases with extreme vulnerability such as mental health, child cases, new claims and those in receipt of support since the Nationality and Borders Act came into force on 28 June of this year.

I thank my noble friend Lord Horam for his insightful comments about the impact of excessive immigration on communities. Prioritisation is the answer. We cannot favour those who can afford to pay the people smugglers over other asylum seekers. I also thank the most reverend Primate for his suggestion of triaging asylum claims and removing those who are not going to be granted asylum immediately in order to speed up decision-making, an idea also canvassed by the noble Lord, Lord Carlile of Berriew. In practice, however, while we endeavour to remove individuals as quickly as possible, delays to removal occur due to legal barriers such as fresh claims, further representations, modern slavery claims and judicial reviews, all of which must be considered before removal.

[Lord Kerr of Kinlochard (CB)]

Before the Minister leaves consideration of how to improve the working of the system, can he tell us what has happened to the recommendations from the reviewer in the independent review of 13 months ago?

[Lord Murray of Blidworth (Con)]

Those considerations are being studied in the department and will feed into future policy on this issue.

Where an individual’s claim is unsuccessful, they would need to be removed to their country of citizenship or another destination where they would be accepted.

It was apparent that there was a tension between the suggestion of the most reverend Primate the Archbishop of York and the most reverend Primate the Archbishop of Canterbury on whether we should extend our Ukrainian policies to all nationalities. As the most reverend Primate the Archbishop of Canterbury rightly noted, it is of course not immoral to have a limit or restrictions on immigration. While we sympathise with the many individuals who are in difficult situations around the world, the United Kingdom simply cannot help everyone who may like to come to this country.

We have introduced the asylum transformation programme, which aims to bring the system back into balance and to modernise it. It focuses on increasing productivity by streamlining, simplifying and digitising processes to speed up asylum decision-making and increase efficiency and output. Since the programme was established in the summer of 2021, a number of positive steps have been taken. More decision-makers have been recruited, alongside steps to keep experienced staff in post.

We have also tested a range of initiatives aimed at reducing the time it takes to interview and decide asylum claims. Changes in recent trials have doubled the number of decisions made per week; we are looking to roll these initiatives out nationwide as a result. This is undoubtedly a significant task, but I assure the House that efforts to address the backlog and alleviate the current pressures will continue in earnest. I hope this assures my noble friend Lord McInnes that the changes we are making will fix the issues with the asylum decision-making process.

Many of those arriving in the UK claim to be children and do not have clear evidence, such as a passport, to back this up. Decision-making is very challenging, and the current process is very subjective and can be disputed in long and expensive legal proceedings. The United Kingdom typically receives more than 3,000 asylum claims from alleged unaccompanied asylum-seeking children per year. Many of those arriving in the UK who claim to be children do not have evidence. Between 2016 and September 2022 there were 7,357 asylum cases in which age was disputed. In the subsequent resolution, some half—3,696 individuals—were in fact found to be adults. If there is doubt whether a claimant is an adult or a child, they are referred to a local authority social services department for a careful, case law-compliant age assessment. They will be treated as a child until a decision on their age is made. I do not need to remind noble Lords that one of the consequences of an adult being treated as a child is that this has the potential to expose those in local authority care to risk.

Beyond our domestic reforms, we are working closely with our international partners to deter small boat arrivals and put an end to the practices of people smuggling and clandestine travel into the United Kingdom. I entirely agree with the comments from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who pointed out the nonsensical position that Albanians can prioritise themselves by crossing the channel in a small boat and, on that basis, effectively jump the queue. It is incumbent on us to prevent that sort of self-selection and queue jumping. The noble Baroness, Lady Prashar, and others overlook the basic fact that not all those who claim to be refugees are actually refugees. It is not immoral to point this out. As my noble friend Lord Robathan stated, we must be sensible and not naive about this.

While legal challenges are ongoing, we remain committed to delivering the migration and economic development partnership between the United Kingdom and Rwanda to address the shared international challenge of illegal migration and break the business model of the people-smuggling gangs. This policy does not subcontract or outsource our responsibilities to Rwanda. Instead, the United Kingdom and Rwanda working together will help make the immigration system fairer and ensure that people are safe to enjoy the new opportunities to develop. It is by reforming the asylum system and taking bold international action to address the global migration crisis that we can keep providing protection for those who need it through safe and legal routes.

I would like to respond to the assertions of the noble Lord, Lord Browne of Ladyton, on our assessment that found Rwanda to be

“a fundamentally safe and secure country with a track record of supporting asylum seekers.”—[Official Report, 14/6/22; col. 1518.]

This is set out in the relevant country policy and information notes available on GOV.UK. These assessments are kept under review and updated periodically to reflect any significant new issues or evidence. We regularly monitor and review the situation in Rwanda and are working closely with the Foreign, Commonwealth and Development Office.

Last month the United Kingdom and France signed a new agreement further to bolster our combined efforts to prevent dangerous channel crossings, including through strengthened operational co-operation and investment in cutting-edge surveillance technology. The UK remains committed to addressing illegal migration with France via our enduring relationship. We continue to engage with our French friends at all levels, political and operational, supporting the meeting of our shared strategic aims with the provision of technology and sharing of intelligence. France and other EU countries are safe countries and, like the UK, have asylum systems that provide protection to those who need it.

[Lord Murray of Blidworth (Con)]

I hear what the noble Baroness says. I commend to her the excellent Policy Exchange paper From the Channel to Rwanda: Three Essays on the Morality of Asylum. On page 14 of that excellent paper, Professor Finnis reminds us that

“the Rwanda scheme does not sub-contract anything. The UK as a founding party to the Refugee Convention, did not undertake to receive or process or admit refugees. Its contractual undertaking and obligation is (a) to give certain rights and privileges to those refugees whom it has chosen to admit and given leave to stay, and (b) not to deport anyone to an unsafe country.”

[Lord Kerr of Kinlochard (CB)]

The difficulty with that argument is that the refugee convention imposes on us the duty to hear the claim. If we deport someone to Rwanda on the basis that even if their claim were justified, that will not be established and they will not be allowed to return. They will be investigated in Rwanda to see whether they may have asylum in Rwanda, but they will be unable to pursue their claim to asylum in this country. That is clearly contrary to the refugee convention.

[Lord Murray of Blidworth (Con)]

Hesitate as I do to disagree with the noble Lord, that matter is currently before the High Court, and the Government’s position is clearly at odds with his assessment.

I crave the indulgence of the House to carry on for a few more moments, if I may.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I attended throughout the debate on the Bill yesterday and remained completely silent, and I arrived today intending to follow that good advice again, because I was actually unable to attend the earlier stages of the Bill at any scale and thought it would be quite wrong for me to join so late. But this is an important issue, which I have listened to very carefully, and I would quite like to register my views.

Yesterday, I voted with the Government against all the amendments to the Bill, because I think we have reached the stage where the opinion of the Commons should prevail, and I am not fundamentally against them trying this new innovation of offshoring illegal immigrants. I very much doubt that it will work, but I think they are allowed to have their way and see what happens. But I did vote yesterday in favour of the amendment from the noble Baroness, Lady Chakrabarti, and the more I listen to the debate, the more it seems to me that there are hugely important constitutional issues here. We are not getting a satisfactory reply, and we are not even getting, in the House of Commons, any very considered response from the Ministers available.

We all know that the present Government particularly dislike their important subjects being subject to judicial review: they were very upset when their Prorogation was overturned. Many other Governments have rather regretted it, but I think it is a vital protection. The Government’s view that what they are doing complies with our international legal obligations and with our own unwritten constitution—which has no force if the courts could not sometimes apply it—is very unwise. I think we should just defend that essential protection. The idea that the opinion of the Attorney-General, whoever he or she may be, in a Government of whatever complexion, if accepted by the Government, should not be a matter that goes any further or be a subject either for Parliament or for the courts, is sweeping and, with the greatest respect, slightly absurd, because no Attorney-General, however distinguished, has ever been infallible on these matters. So I do believe that, among the many important provisions of the Bill, this is the most important of all because of its wider constitutional questions.

I congratulate the parliamentary draftsmen on their ingenuity in producing terms that exclude the jurisdiction of the courts entirely on such matters. I am sure that, if it were done this time, we would find it happening with ever more regularity, in Bill after Bill presented by future Governments to this House. We should make one last attempt to stop that and I am afraid that I have not been persuaded to turn away from my support for the noble Baroness, Lady Chakrabarti, if she presses her amendment again.

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a great challenge as well as a great honour to speak after the noble and learned Lord, Lord Clarke. I shall speak to Motion B1, which again seeks to bring the Bill into line with our international commitments. I believe there is a very important point of principle at stake here. There may actually be two points of principle—I am not sure about the second one—but the key one is pacta sunt servanda. The rules-based system works only if the rules are respected by all. We have just heard again—and we could hardly have heard more authoritatively —that this Bill is in breach of our commitments under the refugee convention.

The noble Lord, Lord Coaker, reminded us yesterday that UNHCR, to which we gave the job of supervising the interpretation of the convention, has confirmed yet again, authoritatively, in the strongest possible terms, that the Bill breaches that convention. We have heard from the Government Front Bench chop logic about how the Vienna Convention on the Law of Treaties allows conflicting national interpretations—but that really will not wash, as the noble Lord, Lord Pannick, has reminded us. We agreed to UNHCR’s supervising role: it is in the convention. We can complain from the stands when the referee rules our man offside, but we are not allowed to send on a substitute referee, and the referee’s ruling stands. So, it is not surprising that this House has voted three times to remove or improve Clause 11, which is where the breach of the convention is crystallised.

Yesterday, we heard from the Conservative Back Benches suggestions—I think it was just one suggestion—that all this was foreshadowed, and so legitimised, in the 2019 Conservative manifesto. Not so. I have checked. What the manifesto says is:

“We will continue to grant asylum and support to refugees fleeing persecution”—


and, later on:

“We will ensure, no matter where you come from, your rights will be respected and you will be treated with fairness and dignity.”


“Fairness” and “dignity” are fine words, but how can they be reconciled with depriving desperate people of their convention rights and their access to public funds, condemning them to destitution without even the miserable £5 a day subsistence that we pay to those stuck for years in the asylum process queue? Can we honestly say that those to whom we would in future be giving nothing at all would be being treated with fairness and dignity? No: Clause 11 is wrong in principle—pacta sunt servanda—and it would be shaming in practice.

My second point I put much more tentatively. Again, it is one the noble Lord, Lord Coaker, touched on yesterday. I put it tentatively because I have never served in the other place, but he has, with some distinction. It seems to me that this House is being treated with contempt. Of course, the elected Chamber must have the last word, but its view must surely be informed by an understanding of the considerations that led the revising Chamber to propose the changes it did. If I am right, are the Government, with all due respect, not cheating when they blandly assert no incompatibility the convention, when they make no attempt to refute—but simply ignore—this House’s demonstration that there is clear incompatibility, and when they allow minimal time to discuss an issue that is so important to our reputation as a law-abiding country?

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I shall speak to Motion F2, which stands in my name. Perhaps I might make three preliminary points. First, I apologise to your Lordships for having come late to this debate. I was moved to table Motion F2 by the Government’s announced decision to enter into the agreement to offshore responsibility for asylum seekers to the Government of Rwanda; that is what has moved me to participate. Secondly, as alluded to by the right reverend Prelate the Bishop of Manchester, the substance of Motion F2 is in fact drawn from the Motion moved by the right reverend Prelate the Bishop of Durham, which successfully passed in this House on 4 April. Lastly, on a point alluded to by the right reverend Prelate, Motion F1, which he tabled, is of course to be considered before F2. I am sure that the right reverend Prelate, and certainly myself, will listen very carefully as to the sense of the House, as to whether there is support for either or both and, if so, in which order; that doubtless will influence us in deciding whether to test the opinion of the House.

The purpose of Motion F2 is a simple one: to ensure that the designation of a state as a safe country requires a resolution of both Houses of Parliament. As to the merits of the policy, I have very grave reservations about the cost and practicality of the Rwanda proposals. The experience of the Israeli Government, when they tried something rather similar, is not encouraging. I have great reservations about the legality of what is proposed. I accept of course that the noble Lord, Lord Pannick, has much greater expertise in this field than I do.

I note, of course, that Ministers have repeatedly said that the policy is consistent with international law and our obligations under the 1951 convention. Ministers repeatedly said that the policy of turning back the boats of asylum seekers was both legal and practical. However, it seems that, in the face of legal challenge as to both the practicality and the legality of the policy, the Home Office yesterday backed away from that position. I view the advice from this Home Office on these matters with very great caution.

Above all, my reservations about the Rwanda policy are based on my concerns as to its propriety. Can it be right to offload to somewhere else the responsibility for individuals who, for a time, have come into our jurisdiction? By doing so, we will have ensured that Ministers who are responsible for where they have gone are not accountable for the way in which they are treated, and I am finding myself extraordinarily uncomfortable with that concept. I might say, as someone who was here yesterday morning when the Minister had to answer a Private Notice Question on this matter, that I think she would agree the House was deeply concerned about that proposal.

However, if the Government wish to proceed with this policy, I can see no reason in principle why they should not seek as a precondition the express authority of Parliament. If I have correctly interpreted the Minister’s remarks in the debate on 4 April with regard to the 2004 Act, the principle of the affirmative resolution as a precondition to adding states to the list of safe countries has already been conceded. As I understand the 2004 Act—and it is not an easy one to understand—in respect of transfer to safe countries it provided for individual certification in respect of specific persons, whereas the present Bill is general in its application. But the principle of the affirmative resolution has been conceded; it is in legislation. So by all means have a debate about necessity but let us not have a debate about the principle, because that has been conceded.

The express parliamentary sanction for this policy is what Amendment F2 proposes—nothing more, nothing less. Before that consent will be given, the Government will have to satisfy Parliament that the criteria in paragraphs (a), (b) and (c) of new subsection (2B) contained in Schedule 3 are complied with.

The position of the Government as set out on the Order Paper is that it is not necessary to make the designation of a safe state by order dependent upon a statement as to costs. That was the position in the amendment moved by the right reverend Prelate the Bishop of Durham but it is not the position today, because the requirement for an assessment of costs has been removed from Amendment F2, which stands in my name.

In my view, it comes down to this: decisions of this kind, which affect the future and liberty of subjects of other countries but who have come here, is a matter that should be resolved by a vote of Parliament, not by the sole decision of the Executive. It is in furtherance of that view that I hope your Lordships, if circumstances allow, will support Amendment F2 in a Division.

[Lord Kerr of Kinlochard (CB)]

I shall speak to Motion C1, which takes us back to the refugee convention. The House may well think that, after the learned crescendo from the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, there is nothing left to say on the subject—but I will try. The fact is that the biggest and most blatant breach of the convention in this Bill is in Clause 11; this brings in the two-class system, with the underclass not allowed convention rights or access to public funds because they did not come directly from the country where they feared persecution.

I have to say to the Minister that the safeguard of Clause 36 is insufficient. You cannot come directly from Asmara, Sana’a, Kabul or Kyiv—and in any case, of course, the convention does not allow for such segregation. When we signed up to it, we agreed that the only check made would be whether the asylum seeker’s fear of persecution was real and well founded. That is what we have always done. Among those asylum seekers arriving by irregular routes—I note that, in every one of the last 10 years, there have been asylum seekers coming from Rwanda—75% of those coming by irregular routes have been found by the courts to be genuine asylum seekers and have been granted asylum. Their fears were well founded, but this Bill would put all of them in the underclass, with no convention rights.

This House has twice, by large majorities, thought that wrong, and that we should continue to honour the convention deal. As the noble and learned Lord, Lord Brown, reminded us, noble and learned Lords have repeatedly challenged the Government to explain why they see no incompatibility between the Bill and the convention. The Government’s silence has been eloquent. In the other place, on 20 April, a junior Minister took two sentences to dismiss our views. Our principled objections to Clause 11 were not refuted, explained, or even mentioned.

My amendment today concedes the differentiation that the Government want, but diffuses it. They can have their two classes, provided that the distinction takes account of the fact that you cannot come directly from a warzone, and provided that those in the underclass are not made destitute, losing all their convention rights. Although the Government say that it is, this is not about small boats in the channel. Illegal, inhumane differentiation would have no deterrent effect because these are desperate people. The way to defeat the traffickers is to open safe routes and not to close the family reunion route as this Bill seeks to do.

I am no lawyer, as is probably obvious, but I have served my country for long enough to see how international reputations are built over time and destroyed overnight. Britain’s reputation on humanitarian issues is a national asset, which should not be lightly thrown away. And for what? As the noble Lord, Lord Paddick, keeps reminding us, asylum seekers represent 4%, or sometimes 5%, of the annual immigration flow.

Finally, I have to say to the Minister that the Vienna Convention on the Law of Treaties does not permit a free-for-all of conflicting national interpretations, and it is misleading to imply that it does. In this House, we tend to insist that the rules-based system and international law matter. On the internal market Bill, we insisted, and our insistence carried the day. I think we must again insist that the other place finally address the big issue—better late than never—and think again about Clause 11. So, I am afraid, it is once more unto the breach, dear friends.

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Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendments 6D, 6E and 6F in lieu—

6D: Page 13, line 44, at end insert—
“(2A) A refugee is not to be regarded as failing to comply with the requirement in subsection (2)(a) if, in coming to the United Kingdom, they have stopped in another country outside the United Kingdom with the intention that the stopover in the intermediate country was to be a brief transit on the way to the United Kingdom.
(2B) A refugee is not to be regarded as failing to comply with the requirement in subsection (2)(b) if they had good cause to delay the point at which they presented themselves to the authorities.”

6F: Page 14, line 32, at end insert—
“(8A) In accordance with section 2 of the Asylum and Immigration Appeals Act 1993, no such immigration rules shall lay down any practice or differentiate in any way which would be contrary to the Refugee Convention.
(8B) Immigration rules implementing this provision must take due account of the best interests of children and the fundamental right to family unity in all cases.””

[Lord Kerr of Kinlochard (CB)]

I beg to move Motion C1.

UK-Rwanda Asylum Partnership Arrangement

Lord Kerr of Kinlochard Excerpts

Monday 25th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I think I said to the noble Earl that I would clarify the point.

[Lord Kerr of Kinlochard (CB)]

Will the Minister comment on another possible reason, in addition to the one advanced by the noble Lord, Lord Coaker, for this not being a treaty? If it were a treaty, it would have to be registered at the United Nations, and there might be some embarrassment in seeking to register a memorandum of understanding governing an arrangement that is clearly totally inconsistent with the refugee convention, for which the United Nations is responsible. Can the Minister tell us in addition, since the agreement says that it is not justiciable in international law, how is it to be justiciable?

[Baroness Williams of Trafford (Con)]

My Lords, I am sure that people will find ways and means of doing that should they be motivated to do so. I go back to the point about both the EU and UNHCR engaging with Rwanda on the relocation of asylum seekers and refugees.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Finally, at Third Reading, the noble Baroness, Lady Stowell of Beeston, for whom I have the greatest respect and no little liking, cautioned us, with some justification I felt, against a tendency to treat those opposed to this Bill, as we are, as “kind and generous” in feeling and those promoting and supporting it as uncaring and ungenerous. Indeed, I for my part would accept that, on occasion, some of us do seem to fall or succumb to the temptation of what I think we can call virtue signalling, rather than facing up to harsh realities. However—I really cannot overemphasise this—I assert that standing up for the rule of law, internationally as well as domestically, is not virtue signalling, but rather our constitutional duty. The only way to achieve this in the Bill and to even have the opportunity of testing the Bill for compliance in future is by including this clause, the subject of Motion C1. We need to stand up and be counted. I support this group as a whole, but if ever one cannot afford to lose a provision, this is it.

[Lord Kerr of Kinlochard (CB)]

My Lords, after two such learned speeches and such fireworks, I fear it falls to me to make an unlearned speech on the Motion in my name, Motion D1. Most of my arguments have just been pre-empted, of course, because the case for Motion C1 applies in full to Motion D1. I would not dare to go into the law as powerfully as the two previous speakers have done. However, it is perfectly clear that the 146 states party to the refugee convention, the courts of the United Kingdom and the UNHCR have all applied the convention in one way up to now and, if we pass this Bill, we will have decided that it should be applied in a different way. There is nothing in the refugee convention about how the individual reaches the country in which he seeks sanctuary. There is nothing in the refugee convention which provides a basis for differentiation and the creation of two classes of refugees, which Clause 11 of the Bill introduces. The only question one asks is: does the would-be asylum seeker have a well-founded fear of persecution back home? If so, under the convention, he is entitled to seek our protection and, since 1951, we have been committed to providing it. That, in layman’s terms, is what is wrong with Clause 11 of this Bill and that is why we struck it out by a large majority.

What happened then is really rather bizarre—and very similar to the description from the noble and learned Lord, Lord Brown, of the debate on Clause 9 in the House of Commons. The arguments that have just been made by two distinguished learned Members of this House, and the argument that I am making, had been advanced over several days of debate in this House. They were dismissed in three sentences in the other place. The Minister simply said, without attempting to refute anything that had been said here, that the new differentiated approach was needed to deter dangerous journeys to this country. That is not so. We all know that the way to stop tragedy in the channel is to open a safe route. We all know that if somebody from Kyiv, desperate and despairing of our creaking bureaucracy, were to turn up here without a visa it would be quite wrong to refuse her full rights to refugee protection. Her well-founded fear of persecution would be all too obvious, yet Clause 39 might criminalise her and Clause 11 would guarantee that, if she were accepted as a refugee, she could be only a class 2 refugee, subject to offshoring and all the nastiness that follows in the subsequent clauses of the Bill, and those who had helped her could face criminal charges. With respect, the Minister in the other place was wrong. Clause 11 would not deter her from coming here; it would simply penalise her for doing so. I do not believe that the country would think that right.

The same goes for those coming from Kabul. Like from Kyiv, there is no direct route, so they automatically all fall into class 2, as with those fleeing famine in Ethiopia, Eritrea and the Yemen, the great majority of those now trafficked across the Channel. Since we do not issue humanitarian visas, there is no official route open to them. The way to put the traffickers out of business is to open such a route. For us to treat with group 2 inhumanity those who the traffickers have exploited and endangered would be rather immoral and would certainly be a breach of the refugee convention. I think we got it right the first time in taking the clause out. I think the concern across the country about the way that the Government are treating the victims of Putin’s war in Ukraine shows that we are more in tune with the national mood than the Home Office.

I have been advised, however, that I should offer a compromise, hence Motion B1, which concedes to group differentiation but only if it does not rob group 2 of any of their rights under the convention. It would permit the Secretary of State to privilege group 1, if she so wished, but it would mean that we did not betray our traditions or breach international law. I hope that, given another chance, the other place may be willing to consider the legal arguments so thoroughly explored in this House and by the two preceding speakers.

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Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendment 6B to the words so restored to the Bill—

6B: Page 14, line 7, leave out subsections (5) to (8) and insert—
“(5) The Secretary of State must make provision within the Immigration Rules to—
(a) guarantee Group 1 and Group 2 refugees all of their rights under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and international law, without distinction;
(b) ensure that the classification of a refugee as a Group 1 or a Group 2 refugee does not affect the ability to maintain the unity of that person’s family.””

[Lord Kerr of Kinlochard (CB)]

I beg to move.