Lord Murray of Blidworth
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Illegal Migration Bill
Lord Murray of Blidworth ExcerptsMonday 12th June 2023
(1 year, 5 months ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-V Fifth marshalled list for Committee - (12 Jun 2023)
Lord Ponsonby of Shulbrede (Lab)
My Lords, as we have just heard, Clauses 29 to 36 place a permanent bar on those who fall within the scheme outlined in Clause 2 from lawfully travelling to the UK or securing settlement or British citizenship through naturalisation or registration; this is subject only to exceptions to comply with international agreements or where there are compelling circumstances. If the Bill fails to succeed in its aim of removing people, there will likely be a whole class of people stuck in the UK for extended periods without access to a system through which they can obtain lawful status. Therefore, they will be unable to work or rent a home. The noble Baroness, Lady Ludford, expanded on this point eloquently. To sum up the noble Baroness’s speech: she wants compliance with international law. We support her Amendment 98EA.
The noble Lord, Lord Moylan, gave a clear exposition of the Government’s intentions with this Bill, and on the different statuses on the second step, as he put it—the ban on acquiring citizenship by naturalisation but also by registration. As he said eloquently, registration is not a concession or a reward for good behaviour but an entitlement. His amendment seeks to address that point, with particular examples given in his speech.
The noble Baroness, Lady Brinton, also spoke about the specific cases of Hong Kongers and BNOs, and how this Bill could cut across—or seems to cut across—their potential rights. My noble friend Lady Lister, who added her name to the amendment in the name of the noble Lord, Lord Moylan, attacked the problem from the perspective of concern for children who could be subject to this ban because of the actions of their parents. As she rightly argued, this is not fair on those children; she wants to revert to the original wording of Clause 35.
We support the amendments in this group. I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I thank all noble Lords who have spoken in this short debate. It has been particularly illuminating; I have noted the quality of the speeches and hope that I can answer the questions that have been put in relation to these clauses.
Clauses 29 to 36 prevent a person who has entered the United Kingdom unlawfully, and meets the conditions in Clause 2, being able to lawfully re-enter the UK, secure settlement or become a British national through naturalisation or most registration routes. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Settlement in the UK confers significant benefits, such as the freedom to study, work and access healthcare and public funds; of course, it is also a pathway to British citizenship which, in turn, confers further benefits.
Allowing someone who arrives in the UK illegally to settle clearly creates an incentive for people to make those dangerous journeys. It is a vital part of the deterrent effect that those categories should be included. This is because people taking advantage in that way is unfair. It is unfair on those who play by the rules and come here legally, it is unfair on those who are genuinely in need, as it constrains our capacity to help, and it is unfair on the British public.
Clause 29 precludes people who meet the conditions in Clause 2 from ever settling here and, once removed, being able to re-enter. This is achieved by preventing them from being granted any form of permission through the immigration system. We do, however, recognise there will be occasions when we will need to waive the bans and grant permission; for example, as the noble Baroness, Lady Lister, noted, where not granting permission would contravene our obligations under the European Convention on Human Rights. Clause 29 balances our need to disincentivise people from making dangerous journeys to the UK by ensuring that there is no benefit to be gained from entering the UK illegally, while recognising there may be a limited number of scenarios in which it is appropriate to grant permission. I put it to the noble Baroness, Lady Ludford, that this is a proportionate and balanced provision. Therefore, I do not recognise her description of the Bill as “wielding a sledgehammer”.
Clause 30 sets out that a person will not be eligible for British citizenship, British Overseas Territories citizenship, British overseas citizenship and British subject status if they enter the UK unlawfully and meet the criteria in Clause 2. The ban will also apply to someone who enters a Crown dependency or British Overseas Territory unlawfully in a similar way. We have included the other types of British nationality as we do not think it is right that illegal entry should allow a person to acquire any form of British nationality, but also to prevent a person using it as a stepping stone to register as a British citizen. Illegal entry into the UK, a Crown dependency or an overseas territory will have the same effect. We do not want people to be able to enter illegally in any of those locations and use that as a way to acquire citizenship and, ultimately, a right to enter and live in the UK.
Clauses 31 to 34 set out the routes to which the citizenship ban will apply. The key citizenship route which will be affected is naturalisation, as my noble friend Lord Moylan noted. This is the main way in which adults born outside the UK can acquire British citizenship and British Overseas Territories citizenship. The ban will also apply to certain registration routes. However, those applying under provisions that address historical inequalities in British nationality law will not be affected. This includes people born before 1983 to British mothers, those who missed out on citizenship because their parents were not married or those applying on the route for descendants of Chagossians.
Clause 35 allows us to exempt a person from the citizenship ban if treating them as ineligible for citizenship would contravene our obligations under the human rights convention. This means that if a person can demonstrate that, for example, their right to a family or private life can be met only by us considering a grant of citizenship, we will not exclude them from applying. We do not think that acquiring citizenship will usually be essential to allow a person to have a private or family life in the UK; other options, such as leave to enter or remain, may satisfy that. However, in very exceptional cases where considering a grant of citizenship is needed to prevent us breaching our ECHR obligations, Clause 35 may apply. We will publish guidance for nationality caseworkers setting out how to assess human rights in the nationality context.
The amendments tabled by my noble friend Lord Moylan would remove registration routes for British citizenship and British Overseas Territories citizenship from the ban so that it applies only to naturalisation. They would also remove the bans on becoming a British overseas citizen and British subject through registration. My noble friend Lord Moylan has described registration as an “evidence-based process”, with decisions not based on the Secretary of State exercising discretion. I am afraid to say that I disagree with my noble friend as this is not universally the case: some registration routes are dependent on ministerial discretion and there is no automatic entitlement.
Let me explain this further. As my noble friend Lord Moylan said, not all registration routes are included in the ban. Those that allow people to acquire British nationality they missed out on because of previous unfairness are not included; nor are the specific routes for children born in the UK or stateless persons. However, registration routes that rely on residence or specifically for children born outside the UK are included in the ban, as we expect people who want to become citizens to have followed a compliant pathway, including having entered lawfully.
For example, Section 4(2) of the British Nationality Act 1981 allows people who already hold another form of British nationality to register as a British citizen on the basis of five years’ lawful residence in the UK. The residence requirements mirror those for naturalisation: the only significant difference between the routes is that other British nationals wanting to register under that route do not need to meet the knowledge of English and life in the UK requirements. Given that the residence requirements are the same as for naturalisation, it would be appropriate for them to be subject to the ban in the same way as naturalisation applicants. This is the route that BNOs can use if they come to the UK under our scheme and become settled: they can go on to apply for citizenship. It is right that those who apply and come through legal routes should have the right to become citizens, but we do not think it is right that those who enter unlawfully should benefit.
The registration routes for children who are subject to the ban include two routes for children born abroad to British citizens by descent. Both have a residence element: either that the parent lived in the UK for a period of three years before the child was born or the family lived in the UK for the three-year period before applying to register the child. We do not anticipate that children of British citizens would be brought to the UK on a small boat when there are routes available to them as family members, but should that happen, the child will not be able to register as a citizen.
The other child route that is included in the ban is registration of children at the Home Secretary’s discretion. The only statutory requirements are that the child is under 18 and is of good character if over 10. However, guidance sets out expectations about when a child will be registered. The normal expectation is that the child will be settled in the UK, and that the parents will be British, or at least settled. It is unlikely that children who enter the UK unlawfully would be able to meet the normal expectations of having a British or settled parent, being lawfully present and having completed a period of residence, as under the Government’s proposals, children who have entered illegally will be removed. The citizenship ban will, however, prevent a child being registered under this provision unless there are ECHR grounds. This fits with the Government’s intention to discourage parents from bringing children to the UK via dangerous methods, including crossing the channel in a small boat, and that such a child cannot become a British citizen and create a means for the family to stay.
My noble friend raised, quite rightly, the issue of compassionate cases. As I have said the ECHR exemption will allow us to consider registering, in rare and exceptional cases, where a person meets the statutory requirements and granting citizenship would be essential to allow them to exercise their family or private life.
Baroness Chakrabarti (Lab)
I have two short questions. First, how can a child be culpable? The whole point of the Bill, as I understand it, is that people should not be encouraged to come by illegal means, they should not jump the queue, et cetera. We disagree about that, but none the less, in that conversation about culpability, how can a child be culpable? Secondly, why should the ECHR take on the slack of compassion? There are many members of the Minister’s Government who do not think we should even be signatories of the ECHR any more, and now the ECHR is being relied on for discretion and for slack and compassion. How can that sit well with this Government?
Lord Murray of Blidworth (Con)
On the first point, there is no suggestion that these measures impute culpability in the way that the noble Baroness suggests. On the second point, I would have thought that the noble Baroness would approve of the fact that the statute relies upon the convention rights as being the pressure valve for exceptional circumstances in the way that I have described.
Baroness Lister of Burtersett (Lab)
It may be that I have not quite understood what the noble Lord is saying, but the noble Baroness, Lady Ludford, and I specifically asked the kind of question that was posed by the JCHR. Why have the Government narrowed the reference down from the original wording of the clause to the ECHR, when originally it was to any other international agreement to which the United Kingdom was a party? Why has that gone?
Lord Murray of Blidworth (Con)
The answer, which I will turn to in a moment, is that it was considered that greater clarity and concision was needed. In that respect, it is the Government’s view that the test set out in Clause 35 meets that requirement. That was the reason for the change.
Turning now to Amendment 98ZA—
Lord Moylan (Con)
Before my noble friend turns to that amendment, I am of course not a lawyer but really quite a simple soul, who is struggling to catch up in some ways with the things he has explained to us. But it seems—forgive me if I have grasped this entirely wrongly—that we are now talking about two quite separate Bills. In one Bill, if your pestilential foot is set upon English soil the Home Secretary, as the Secretary of State, has a duty to remove you forthwith. That duty having been satisfied, the question might arise in your mind: are you in fact entitled to registration as a British national on the facts of your case? I fully accept that a degree of discretion is always involved in judging these facts, because they will rarely be compelling either way. You would be doing this, presumably, from your new home in Rwanda or whatever country it is to which you have been safely deported.
On the other hand, the Bill my noble friend is describing is one through which these people will, having landed illegally, already have acquired some sort of settlement here—the Home Secretary, presumably, having failed entirely in the duty that we are imposing on her to remove them. They will be exploiting the advantages of that settlement and clocking up hours on the clock, qualifying increasingly for British nationality, which my noble friend thinks—I rather agree with him—is a little unfair because you are getting ahead of the queue by getting in illegally. Then the clock is running and you would be accumulating all the benefits. Which Bill are we discussing here? The Bill I thought I was discussing was one through which the vast majority of the people who would be making a claim for registration of British nationality, with very few exceptions, would already have been subject to the duty to remove. How many does my noble friend think will not have been subject to it?
Lord Murray of Blidworth (Con)
I thank my noble friend for that contribution. The position, as he outlined in his speech, is that the deterrence effect takes its force from a number of sections in the Bill: the first, obviously, being the detention and removal, as he rightly identified; the second being the bans on the ability to settle or stay here, the idea being that that disincentivises people from entering illegally using dangerous routes. I do not accept that there are two Bills in the way that my noble friend identifies. The reality is that the question of registration of citizenship, which he raises, is unlikely to arise in as many cases as the naturalisation circumstance—I think we can agree on that—so it is natural that what we are talking about is probably an exceptional state of affairs, in any event. That is potentially why my noble friend perceives a dissonance between the deterrent effect and the two factors, but in fact there is no such distinction.
Amendments 98ZA and 98EA, tabled by the noble Baroness, Lady Ludford, seek to expand the circumstances in which the bans on settlement and citizenship are to be disapplied. The noble Baroness, Lady Lister, also touched on this issue. We consider that the circumstances in which a grant of settlement or citizenship would be an appropriate remedy are wholly covered by the ECHR, so our view is that the addition of other international agreements is unnecessary, hence the amendment, as we have already canvassed.
I turn now to Amendment 98I tabled by the noble Baroness, Lady Brinton. This seeks to provide a broader protection for those holding British national (overseas) status. We do not believe this is necessary. The clauses which prevent people from obtaining various forms of British nationality already do not mention British national (overseas) status. This is for the simple reason that no one has been able to obtain that status since 1997 and, consequently, there is no need to ban people from obtaining it should they arrive illegally.
We already have in place a dedicated migration route for people from Hong Kong and, as the noble Baroness knows, it has been a significant priority for the Government and the department to offer this route to British national (overseas) people from Hong Kong in response to the situation there. We have done a great deal for the citizens of Hong Kong and hope to continue to do so. As cited in my response to my noble friend, Lord Moylan, a route to citizenship exists under Section 4(2) of the British Nationality Act 1981. There should therefore be no reason for a person holding British national (overseas) status to arrive illegally in the manner which would mean they fall under this Bill’s provisions.
Baroness Kennedy of The Shaws (Lab)
I was just going to posit to the noble Lord that some of these people having to flee are aged 16 and 17 and were involved in demonstrations and so on and then fled by unusual routes out of Hong Kong. Some of them are making their way via Europe to join family members here in the United Kingdom. Would they automatically, under this Bill, be deprived of ever joining their families?
Lord Murray of Blidworth (Con)
I thank the noble Baroness for raising that. In fact, I was just turning to that very issue.
The noble Baroness, Lady Brinton, asked a couple of specific questions about the children of BNO passport holders—the issue that the noble Baroness now raises again. These address issues which fall outside this Bill; none the less, I can advise the noble Baroness and others interested in this topic that dependants of BNO status holders who themselves do not hold BNO status do not need a valid Hong Kong Special Administrative Region passport to renew their BNO visa. However, I am afraid that renewal of Hong Kong Special Administrative Region passports is not something the UK Government can assist with and until they qualify for British citizenship, such children are not eligible for a British passport.
The Government’s view is that this is not relevant to this clause, but I am, however, very interested in this topic and can entirely understand the concern that has been expressed. I would be content to meet the noble Baroness and perhaps the right reverend Prelate, the noble Baroness, Lady Lister, and some BNOs to discuss this issue because it is obviously important. I suggest that this amendment is not the mechanism for us to discuss this, but I entirely understand that clarification and explanation is needed.
Baroness Brinton (LD)
I am very grateful for the Minister’s answer. One of the reasons why I wanted to lay this probing amendment is that BNO paper-holders feel they are getting a clear message from Border Force and immigration officials that their children do not have that protected status. It is that hole that we are trying to get the answer to, and we have not had it yet. I am very grateful for the meeting, but they need to know because at the moment some of them are being told that their children have no rights and should have Chinese travel documents. If the Government’s officials are saying that, surely that is wrong.
Lord Murray of Blidworth (Con)
My Lords, clearly this needs to be looked into and I hear what the noble Baroness says. After the conclusion of the Committee we can have that meeting, explore the issue and I can respond in full. I am certainly not unsympathetic to the points raised.
The benefits of permanent settlement and British citizenship should not be available to those who come to the UK illegally. These clauses serve to underline our core message that if you come to the UK unlawfully, you will not be able to build a life in this country. I commend Clauses 29 to 36 to the Committee and invite the noble Baroness to withdraw her amendment.
Baroness Ludford (LD)
My Lords, our debate on this group has given me a new respect for nationality law, which is at least as confusing as I ever imagined. It has always been a rather “Here be dragons” subject for me; that has been fully confirmed by this debate. I need to try to make sense of my scribbles.
One thing still puzzles me: I do not really understand why the Government are excluding registration for some forms of British citizenship but not for others. I remain bemused by that; I shall have to read exactly what the Minister said in Hansard. Perhaps the noble Lord, Lord Moylan, grasped that explanation better than I did.
I have sympathy with the particular issues raised by the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, on registration. I happen to think that there is more commonality with the issue of excluding routes to naturalisation than the noble Lord, Lord Moylan, wishes to acknowledge or give any quarter to, but on the issue of registration he made some important points. I wish him well in his pursuit of those issues with the Minister, but I also believe that there are serious issues around excluding people from the right to remain and a route to citizenship.
I did not grasp the Minister’s explanation of why the phrase “other international agreements” was taken out by the Government. Why did you—I do not mean the Minister personally; I mean the Government and the Home Secretary—put it in the original draft of the Bill a few months ago and then take it out if it did not meet the tests of clarity and concision? I think that was the Minister’s explanation. I accept that taking out those few words makes the clause more concise, but I do not think that doing so makes it clearer because we are then left wondering how the Government are going to secure compliance with those other international agreements —including the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child—which are not referred to in the Bill.
In answer to the noble Baroness, Lady Chakrabarti, the Minister tried to explain that hanging fast to the ECHR was some new discovery by the Government. As I said last week, we tend to find it quite confusing as to when the Government like the ECHR and when they do not. They appear to act rather fast and loose on this subject.
I applaud the probing amendment in the name of my noble friend Lady Brinton. I hope that she gets a fruitful meeting with the Minister because, as she and other noble Lords said, this issue seems to be the subject of considerable muddle and is having a severe impact on people’s lives. It is giving them extra anxiety. They have had to leave home and come to this country, but now they are being given the runaround by Home Office staff.
I was left unclear, it has to be said, on the situation raised by the noble Baroness, Lady Kennedy. What will happen to the dependants of BNO status holders who are having to leave Hong Kong irregularly and perhaps also arrive in this country irregularly? I am not clear whether we are sure about how their welfare and status will be assured. The Minister said that BNOs are not covered by this Bill, but if somebody who is not a BNO but is a dependant of one arrives in this country irregularly, surely they will potentially be subject to the Clause 2 duty to remove.
Also—and almost finally—the noble Lord, Lord Moylan, highlighted a very interesting contrast between the Government wanting a duty to remove people but wanting only a discretion to be fair to them in legal and human rights terms. That does not seem very consistent. So I end by saying that I still feel very firmly that the duties under Clause 29 and 35 should be expressed in terms of not a discretion but a duty to obey our international legal obligations under the ECHR and other international treaties that we have signed.
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Murray of Blidworth at page 5, line 38.
Lord Murray of Blidworth (Con)
My Lords, Clause 37 provides for two types of suspensive claims, which have the effect of suspending a person’s removal—a factual suspensive claim and a serious harm suspensive claim. A factual suspensive claim is a claim that a mistake was made in deciding that a person meets the four conditions set out in Clause 2. A serious harm suspensive claim is a claim that a person would, before the end of the relevant period, face a risk of serious and irreversible harm if they were removed from the UK to a country other than their country of origin. As the noble Lord, Lord Carlile, noted, the risk must be real, imminent and foreseeable. The serious and irreversible harm test is designed to be a high threshold, reflecting the test of the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39.
These amendments seek to change how Clause 38 defines the risk of harm, lowering the threshold for a serious harm claim to succeed. In responding to the amendments tabled by the noble and learned Lord, Lord Etherton, I start by making the general observation that suspensive claims are relevant to people who have received a third-country removal notice. In this context, an asylum claim would not be relevant. Therefore, they do not impact the definition of “refugee” in the way that he suggested.
Amendments 100 and 108 would remove the requirement for the harm to occur in the period that it would take for any human rights claim or judicial review to be determined from the third country. If accepted, these amendments would enable people who receive a third-country removal notice to raise serious harm suspensive claims against their removal, based on a risk of harm that many not materialise for many months, if not years, after the person’s removal to the safe third country. This cannot be right. We cannot have a position whereby a person’s removal from this country is prevented based on a risk that does not currently exist and may not exist until a significant amount of time has elapsed after the person is removed.
Amendment 101 would remove the need for the risk of harm to be imminent and foreseeable. If accepted, this would have a similar effect to Amendments 100 and 108, enabling a person to successfully challenge their removal based on a risk that may occur a long time in the future.
Baroness Kennedy of The Shaws (Lab)
A great deal of research has gone into the risks associated with countries where the law still criminalises homosexuality. The research of the Inter-American Court of Human Rights has shown that those countries permit levels of murder of gay men and women, violence towards them and discrimination against them in many different forms. The violence experienced by people who are part of the LGBT+ community in those countries is exponentially greater than anywhere else, even in countries known for high levels of violence. The idea the Minister is talking about—risk that is far down the line and many years ahead—is not what we are talking about here. For many people going to those countries, there will be risks almost immediately.
Lord Murray of Blidworth (Con)
The noble Baroness makes an entirely fair point. In those cases, of course, it would be an imminent feature. As she points out, in those circumstances that is something the courts would be able to have regard to.
The inclusion of “imminent and foreseeable” is intended to prevent the courts from considering risks that are dependent on a series of hypothetical events before the harm might occur. That is the reason, as I understand it, that “imminent” features in the European Court of Human Rights practice direction on interim measures. We cannot allow illegal entrants to be able to thwart their removal based on an unknown risk that cannot be foreseen and may not even arise for many months or years, if at all.
Amendments 102, 103, 104, 109, 111 and 112 would remove the requirement for the risk of harm to be irreversible. These amendments would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the UK. Again, I point out with the greatest of respect to the noble and learned Lord, Lord Etherton, that
“a real risk of serious and irreversible harm”
is the test applied by the Strasbourg court when considering applications for Rule 39 interim measures, as he alluded to during his speech.
Amendments 105, 106 and 107 would remove specific examples of harm, relevant to the availability of healthcare and medical treatment in a third country—a passage that the noble Lord, Lord Carlile, drew the attention of the Committee to—in circumstances that do not or are unlikely to constitute serious and irreversible harm. There is existing case law that indicates that claims based on harm resulting from differing standards of healthcare fall short of the Article 3 threshold. It is simply unjustifiable for those who enter this country illegally to be able to remain here indefinitely and have unlimited access to our healthcare systems solely on the basis that they may not receive the same level of medical treatment in the country or territory they are rightly removed to.
For these reasons, Clause 38 makes it clear that a serious harm suspensive claim based on a risk of harm relating to differing standards of healthcare cannot succeed and, as a result, will not prevent that person’s removal to the safe third country. Clause 38 also makes it clear that a claim based on pain or distress resulting from a lack of medical treatment is unlikely to succeed. By including specific examples of harm that do not or are unlikely to constitute serious and irreversible harm in Clause 38, it is ensured that the courts take a consistent approach in their consideration of the risk of serious and irreversible harm and go no further than intended.
The Bill provides a fast-track process for the consideration of a claim which may temporarily suspend a person’s removal from the UK. Clauses 41 and 42, as the Committee has noted, set out the procedure and timescale for making a suspensive claim and the timescale for a decision to be made on a suspensive claim.
Amendment 113 would remove the requirement for a serious harm suspensive claim to include compelling evidence of the risk of serious harm that a person would face if removed to a third country, as noted by the noble and learned Lord, Lord Hope. Reducing the evidential burden in this way risks the process being abused through spurious and unmeritorious claims, similar to those that we have seen in other immigration applications. Evidence that is compelling is defined as that which is reliable, substantial and material to a person’s claim. I suggest that this is a reasonable requirement and necessary to ensure that the suspensive claims process is not open to abuse.
Lord Hope of Craighead (CB)
I am grateful to the noble Lord for setting out an explanation of the word “compelling”. He used three adjectives and my impression is that that explanation is intelligible; it is not quite as alarming as “compelling”. Would it not be better to substitute the three words that he quoted for “compelling”? “Compelling” could be read as setting a very high standard indeed, which I do not think the three adjectives that he mentioned do.
Lord Murray of Blidworth (Con)
I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.
Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.
The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.
The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.
The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.
Lord Etherton (CB)
Before the Minister sits down, there were two specific questions that I raised at the end of what I said that I would like an answer to. I do not believe that he has answered them at the moment.
The first is confirmation that there is nothing in the Bill that in any way derogates from the decision of the Supreme Court in HJ (Iran) that a person qualifies as a refugee under our jurisprudence if they would face persecution living openly as an LGBT person. This is relevant to the question of serious irreversible harm, the question being whether it is the Government’s view that you would have to, if necessary, act discreetly and that, if you acted discreetly, the harm would not be suffered. Is it intended, through the Bill, to undermine this landmark decision of the Supreme Court?
The second point on which I would like a specific answer was similarly in relation to the UNHCR’s latest advice—from 2023, I think—about what constitutes an appropriate flight alternative. Where would it be appropriate to deny refugee status because there is a place within a territory or country where there would be no persecution and where it would be reasonable for the person in question to live in an ordinary way?
Lord Murray of Blidworth (Con)
I thank the noble and learned Lord for repeating those questions. He is entirely right that I should have answered them; I apologise for not doing so.
The short answer is that this is a separate strategy regime to the one that the case of HJ (Iran) was decided under. Of course, although the findings in that case and the line of cases concluding in that case would be relevant, the decision will always be taken on the facts of each case. I cannot, I am afraid, give the noble and learned Lord an undertaking on what he might perceive to be an inconsistent decision in relation to that case. I am happy to look into it further and will write to him about that, but that would certainly be my instinctive reaction.
In relation to the further report from the UNHCR, again, each of these matters is fact-sensitive to each serious harm suspensive claim. It would not be right for me to try to predicate at this Dispatch Box what the outcome might be.
Lord Etherton (CB)
I am sorry to come back on this, but it is important. The Government must give some guidance to the judges of the Upper Tribunal who try these cases with these novel and, if I may say so—I am adopting the approach of the noble Lord, Lord Carlile—complicated provisions. These are new provisions that are not found anywhere else in our jurisprudence or in anybody else’s. We are talking about a special type of irreversible harm that has to be predictable. Any guidance that we can give on how the existing jurisprudence and UNHCR advice would still apply will be extremely important for the actual mechanics of delivering justice in these cases.
Lord Murray of Blidworth (Con)
I can only repeat that the Supreme Court decision in HJ (Iran) and the other documents provided by the UNHCR are not relevant in this context because they do not deal with the same mechanics. Those cases were asylum or protection claims, whereas this deals with the specific statutory category of serious and irreversible harm. Of course, although there may be some crossover in the arguments deployed, ultimately they address a different issue. I cannot provide the type of assurance that the noble and learned Lord seeks, I am afraid.
Baroness Ludford (LD)
My Lords, if two noble and learned Lords and one learned with a small “l” noble Lord—if I may call the noble Lord, Lord Carlile, that—are frowning and struggling to understand what the Minister has just said, there is no hope for me. I must confess that I found it pretty difficult to understand. I would be most grateful if the Minister could put the letter that he has promised the noble and learned Lord, Lord Etherton, in the Library so that the rest of us can try to understand.
It would be of great concern if the worry that the noble and learned Lord raised was to be shrouded in doubt in terms of the status of the Supreme Court case, which said that you cannot expect a gay person to have to live in a closeted fashion—that is, you would expect them to be able to live openly for a country to be considered safe. If that precedent were to be put in any doubt, it would have serious implications, as would the concerns that were raised about healthcare; I am not sure what point we have precisely got to on that subject.
The overall concern, if I may put it like this, is if it ain’t broke there is no need to fix it. The courts seem to have got a handle on these issues, and what the Government are doing with their word salad is creating quite a lot of instability and confusion in something that is being handled pretty competently by the courts. They have reached some position on how to assess issues such as risk, foreseeability and reality of risk—and here the Government come, like a bull in a china shop, trying to upset and disturb all that. I am rather minded to think that the Government would do better just to leave it to the courts.
The Minister was not very persuasive in his argument that the wording in the Bill is necessary to stop projections of hypothetical risk. Surely, the courts can be relied on to filter out fantastical imaginings when they assess the reality of risk. I am afraid I found his responses on this group pretty unpersuasive. He keeps coming back to this hoary old chestnut that the use of detention is necessary to ensure swift removal. The idea that this Government are going to ensure swift removal of a lot of people strikes most people living in the real world, to use that phrase again, as for the birds. However, with that said, I shall not oppose the clause standing part.
“Procedure for Tribunal Procedure Rules(1) The first time after the passing of this Act that Tribunal Procedure Rules are made for the purposes of any of sections 43 to 48 (appeals in relation to suspensive claims), the Rules may be made by the Lord Chancellor rather than by the Tribunal Procedure Committee.(2) Before making Tribunal Procedure Rules by virtue of subsection (1), the Lord Chancellor must consult—(a) the Senior President of Tribunals,(b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session, and(d) the Lord Chief Justice of Northern Ireland.(3) The Lord Chancellor is not required to undertake any other consultation before making Tribunal Procedure Rules by virtue of subsection (1).(4) A requirement to consult under subsection (2) may be satisfied by consultation that took place wholly or partly before the passing of this Act.(5) Tribunal Procedure Rules made by virtue of subsection (1) are to be made by statutory instrument.(6) A statutory instrument containing Tribunal Procedure Rules made by virtue of subsection (1) must be laid before Parliament after being made.(7) Tribunal Procedure Rules contained in a statutory instrument laid before Parliament under subsection (6) cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(8) In calculating the period of 40 days, no account is to be taken of any whole days that fall within a period during which— (a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(9) If Tribunal Procedure Rules cease to have effect as a result of subsection (7)—(a) that does not affect the validity of anything previously done under the Rules, and(b) subsection (1) applies again as if the Rules had not been made.(10) In this section “Tribunal Procedure Committee” means the committee of that name constituted under Part 2 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007.”Member’s explanatory statement
This new Clause provides for the first Tribunal Procedure Rules made after the passing of the Bill for the purposes of any of Clauses 43 to 48 to be made by the Lord Chancellor and to be subject to the made affirmative procedure.
“(b) in subsection (9), at the beginning, insert “Subject to subsection (10),”;(c) after subsection (9), insert—“(10) A statutory instrument containing the first rules made for the purposes of section 2AA (appeals in relation to the Illegal Migration Act 2023) must be laid before Parliament after being made.(11) Rules contained in a statutory instrument laid before Parliament under subsection (10) cease to have effect at the end of the period of 40 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(12) In calculating the period of 40 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(13) If rules cease to have effect as a result of subsection (11)—(a) that does not affect the validity of anything previously done under the rules, and(b) subsection (10) applies again as if the rules had not been made.””Member’s explanatory statement
This amendment provides for the first rules made by the Special Immigration Appeals Commission under section 5 of the Special Immigration Appeals Commission Act 1997 for the purposes of section 2AA of that Act (inserted by Clause 51(5)) to be subject to the made affirmative procedure.
Member’s explanatory statement
This amendment and the amendments in the name of Lord Murray of Blidworth at page 54, line 1 and page 54, line 7 modify Clause 52 so that a tribunal (as well as a court) may not grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of a person from the United Kingdom under the Bill.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I think everybody is really waiting to hear what the Minister has to say about this. It has been a fascinating debate and, as the noble Lord, Lord Carlile, said, it appears that Government, whatever the rights and wrongs, accept Rule 39—the Minister made that very clear in what he read out—and yet we have had the silence about Clause 52. I do not think I can add anything of substance to the debate at this stage and I look forward to what the Minister has to say.
Lord Murray of Blidworth (Con)
My Lords, Clause 52 underpins the suspensive claims and appeals process by prohibiting the courts from granting interim remedies in relation to any other proceedings which would prevent or delay the removal of an illegal entrant subject to the duty. Amendments 116 and 117 would require the Home Secretary to provide a statement to Parliament, on a case-by-case basis, explaining why the courts should prevent the granting of an interim remedy and for this to be approved by the other place—and only the other place, I note—before the restrictions set out in Clause 52 could come into effect.
These amendments seriously risk undermining our efforts swiftly to remove illegal entrants from the UK. To prevent the courts granting an interim remedy and delaying removal, it would be necessary to seek parliamentary approval in every case subject to the duty to remove. This, I am sure the Committee will agree, is simply not practicable; nor is it necessary or appropriate.
These amendments are fundamentally misconceived. They proceed on the basis that there is an individual rationale for barring interim remedies in each case, but the rationale is universal; namely, that the Bill itself provides for a mechanism for a person subject to the duty to remove to challenge their removal and for removal to be suspended while the claim and any appeal to the Upper Tribunal have yet to be determined. That being the case, it is the Government’s contention that there is no case for the courts separately to grant interim remedies. The blanket approach taken by Clause 52 is therefore entirely appropriate, and I suggest to the Committee that that is an entire answer to the second point made by the noble Baroness, Lady Chakrabarti.
Clause 52 will encourage compliance with the suspensive claims process. It also provides an effective safeguard against other types of legal challenges being brought in an attempt to thwart removal. This will ensure that our ability promptly to remove those with no legal right to be in the UK is not undermined.
Turning then to what may be seen as the main event, Clause 53, I want to make it clear from the outset that the UK is fundamentally committed to the international rules-based order and there is nothing in this clause which requires us to act incompatibly with our international obligations. Under Rule 39, an interim measure may be indicated by the European Court of Human Rights where there is an imminent risk of irreparable harm. The inclusion of Clause 53 reflects the concerns we have raised with the Strasbourg court about its interim measures process, as identified by the noble Baroness, Lady Chakrabarti.
We want the interim measures process to have greater transparency and fairness to ensure the proper administration of justice, reflecting what we would apply in a domestic scenario, as identified by the noble and learned Lord, Lord Hope. This includes clear and reasoned decisions and an opportunity to make meaningful representations before and after a decision is made. It cannot be right that our ability to control our borders is undermined by an opaque process conducted at the last minute, with no formal chance to put forward our case or to appeal that decision. This process risks derailing our efforts to tackle the people smugglers and prevent people making dangerous, illegal and unnecessary journeys across the channel.
Clause 53 affords the Home Secretary, or other Minister of the Crown, personal discretion to suspend the duty where an interim measure has been indicated. This will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law to do so. This will be dependent upon the individual facts of each case. For broader context, I direct noble Lords to the recent and well substantiated paper by Professor Ekins of Policy Exchange, already discussed by the Committee, together with its valuable forewords written by Lord Sumption and the noble and learned Lord, Lord Hoffmann. The key arguments made by Professor Ekins were helpfully summarised and powerfully expanded upon by my noble friends Lord Sandhurst and Lord Wolfson, who I know will have given great consideration to the Strasbourg court’s jurisdiction and procedural rules in their preparation for the Committee.
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 53, line 40.
Member's explanatory statement
See the explanatory statement for the amendment in the name of Lord Murray of Blidworth at page 53, line 40.
Member's explanatory statement
This amendment corrects the references to the Clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the Tribunal Procedure Rules made for the purposes of those Clauses.
Lord Murray of Blidworth (Con)
My Lords, as we have heard, these clauses and amendments take us on to the provisions regarding age assessments. As I set out last week, the duty to make arrangements for removal in Clause 2 of the Bill does not apply to unaccompanied children until they reach adulthood. There is a power to remove them, but the Bill provides, as the Committee well knows, that this may be exercised only in very limited circumstances, such as for the purposes of reunion with a parent or where removal is to a safe country of origin.
Given that unaccompanied children will be treated differently from adults under the Bill, and the obvious safeguarding risks of adults purporting to be children being placed within our care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces accessibility of these services for genuine children who need them.
Assessing age is inherently difficult, as the right reverend Prelate identified. However, it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children, given that unaccompanied children will be treated differently from adults under this Bill. Our data shows that between 2016 and March 2023 there were 8,611 asylum cases where age was disputed and subsequently resolved following an age assessment, of which nearly half—47%, 4,088 individuals—were found to be adults. Accordingly, Clause 55 disapplies the yet to be commenced right of appeal for age assessments, established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in Clause 2 of this Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, but that review will not suspend removal and can continue from outside the UK after they have been removed.
In addition, Clause 55(5), identified by the noble and learned Lord, Lord Hope—
Baroness Brinton (LD)
The Minister referred to the figures increasing for disputed children, because the figures in 2021 had increased. I am looking at the information from the Helen Bamber Foundation. The foundation makes the point that in 2021, the Home Office started publishing statistics which included children who were being treated as adults by the Home Office after a short visual assessment only, but the actual data has not been disaggregated beyond that. Does the Minister recognise that it is apples and pears—it is not looking at the same thing? A different group of children were being included within the data.
Lord Murray of Blidworth (Con)
I do not recognise those statistics, but I will of course look at the Helen Bamber Foundation report that the noble Baroness identifies. The facts are stark. As I have already identified, a large proportion of disputed age-assessment cases result in the applicant being found to be over 18.
Clause 55(5), as commented upon by the noble and learned Lord, Lord Hope, seeks to ensure that age assessment judicial reviews will be considered by the courts on normal public law principles such as rationality, public law unreasonableness and procedural fairness. Such a challenge on these grounds is not as restrictive as the noble and learned Lord, Lord Hope, has suggested. However, Clause 55(5) will seek to ensure that the court does not consider age as a matter of fact and will not substitute its own decision on age, distinguishing itself from the position of the Supreme Court in the judgment of R (on the application of A) v London Borough of Croydon 2009.
Amendments 121 to 123, tabled by the right reverend Prelate the Bishop of Durham, and the noble and learned Lord, Lord Hope, seek to negate these provisions by omitting Clause 55(2), (4) and (5). They are not amendments which I can commend to the Committee. The right reverend Prelate the Bishop of Durham asked whether a person would be returned to the UK if a judicial review was successful. This would depend on the nature of the court’s judgment and any associated order. We will, of course, comply with any order of the court.
Amendments 124 to 126, tabled by the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Durham, would similarly have the effect of neutering Clause 56. Clause 56 again seeks to disincentivise adults from knowingly misrepresenting themselves as children by making use of scientific age-assessment methods already employed in many other European countries, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. Specifically, Clause 56 will enable us to bring forward regulations to provide that a person is to be treated as an adult if they refuse to consent to specified scientific methods for the purpose of age assessment, and the clause already provides that this would be the case only if the refusal was without good reason. I assure the noble Baronesses, Lady Lister and Lady Brinton, and other noble Lords that the regulation-making power will not be exercised until the science is sufficiently accurate to support providing for an automatic assumption of adulthood.
Given this, it would be premature to provide draft regulations as to the level of parliamentary scrutiny to apply to those regulations. We note the Constitution Committee’s recommendation that the affirmative procedure should apply—a point raised by the noble and learned Lord, Lord Hope—and we will respond in advance of the next stage.
Lord Coaker (Lab)
Can I just pick up something before the Minister leaves this point? If I understood the noble Baroness, Lady Neuberger, correctly, she wanted to know how a child could consent to a scientific assessment that assesses their age.
Lord Murray of Blidworth (Con)
They participate in the particular type of medical scan that is utilised. That is the practice adopted by our European partners.
Baroness Brinton (LD)
Whether it is adopted by our European partners or not, Gillick competence is the key UK law that is used to decide whether a child can or cannot do it. It is not just Gillick competence; it is about whether they have the language to understand what is being asked of them. Could the Minister respond on the Gillick competence point, please? That is UK law.
Lord Murray of Blidworth (Con)
The provisions in the Bill are clear, and, as I say, in due course draft regulations will be provided, and they will be subject to scrutiny by this House. I am afraid there is little point speculating in the abstract on questions of Gillick competence in the absence of the regulations. But the point is clear that it would be contrary to the purpose of these provisions if an applicant was able simply to refuse to participate in scientific age assessment and that were to have no consequences; that would rob such provisions of efficacy, as the noble Baroness would have to concede, I suggest.
Lord Coaker (Lab)
It is quite astonishing to hear a Minister of the Crown say, from what I can understand, that a child can therefore be forced to comply with some scientific method of age assessment. In every area of public life in this country, the competence of a child to make a decision is structured in a way that takes into account the fact that they are children, even if, as in this case, they are potentially children. What the Minister is saying is quite astonishing. I have no idea what it means regarding how you assess the age of a child and ensure that that child in some way gives consent. Is there a social worker? Is there someone acting in loco parentis? Is there some sort of structure that means that you cannot just force a child to take part in some sort of scientific method that looks into their age?
Lord Murray of Blidworth (Con)
I fear that we are speaking at cross purposes. I certainly would not compel any child to participate in age assessment.
Baroness Lister of Burtersett (Lab)
The whole point is that they are, in effect, being compelled. This point was made by the interim age advisory committee—a committee set up by the Government. Why are the Government ignoring its advice? They are doing the opposite of what it says should be done. It said:
“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.
That is exactly what is happening.
Lord Murray of Blidworth (Con)
It is difficult to debate these measures. As I say, in the event that the situation is advanced by the development of these scientific methods and regulations are brought forward, we can have further discussions about the provisions on that occasion. However, in principle, there is nothing wrong with having available a protection that would mark the fact that, if you have scientific age assessment, simply saying “I don’t consent” would provide you with an opportunity not to adhere to the scheme that applies to everyone else. For those reasons, at an abstract level, there is no reason you could not have a situation where willingness to undertake a scientific age assessment is given full weight by a decision-maker in a way that, if someone refused to participate, it might not be. It always depends on the circumstances in regulations.
Baroness Neuberger (CB)
I am sorry but can the Minister explain how this can be acceptable when subjecting young people—children—to investigations such as X-rays that are not at all for their benefit is inherently unethical? How can this be justified in the way he has just done?
Lord Murray of Blidworth (Con)
I am not sure that I agree with the allegation that this is unethical because, as the noble Baroness may recall, on a previous occasion when the principles of age assessment were discussed in this House, my noble friend Lord Lilley observed that the radiation risk in taking an X-ray is comparable to that of a transatlantic flight. I suggest that, as long as the appropriate safeguards are in place, there is nothing in principle wrong with inviting an applicant who says that they are under 18 to participate in an X-ray procedure.
Baroness Brinton (LD)
It may be that the noble Lord, Lord Lilley, has expertise that the Committee is not aware of but the Royal College of Paediatrics and Child Health is very clear that every single doctor registered with the GMC—and the equivalents for X-ray technologists and others—would be required, under the terms of their registration, to consider whether the work that they were doing was ethical. It is absolutely confident that it would not be, so one further question here—I do not want us to go into it now because we do not have time—is: how will the Government deliver this measure if all registered professionals are told by their registration bodies that they should not do this work?
Lord Murray of Blidworth (Con)
As the noble Baroness rightly says, now is not the moment to discuss this hypothetical but it is notable that our European neighbours operate such schemes and clearly have professionals who participate. These are all matters that would need to be looked at in the event that the scheme—
Baroness Brinton (LD)
Has the Minister had discussions with the GMC and social workers, for example?
Lord Murray of Blidworth (Con)
The noble Baroness now invites me to embark on a discussion that she just said she did not want to have. I agree with her first position because it is not relevant to the amendment that she raises.
Amendment 127 in the name of the noble Lord, Lord Coaker, would place a duty on the Secretary of State to publish an annual report on scientific age assessment methods, the attendant scientific advice and the statistics relating to their use. The Home Office already publishes such information: quarterly datasets including age disputes are available on GOV.UK—we have heard references to those in Committee this evening—and, when scientific methods of age assessment are introduced, the Home Office will ensure that we report and monitor that information. The Age Estimation Science Advisory Committee continues to provide scientific advice to the Home Secretary and the Home Office’s chief scientific adviser. Their first report was published on GOV.UK, as the noble Baroness, Lady Lister, identified, and the Government will continue to seek advice from the committee. Given that we already publish the kind of information and data proposed by the noble Lord, I submit that his amendment is unnecessary.
Baroness Lister of Burtersett (Lab)
What is the point of seeking advice if it is then ignored? While I am on my feet, because I was not quick enough earlier, the Minister gave some figures that the right reverend Prelate, other noble Lords and I disputed, but it is as if we have not spoken. The evidence we presented was just ignored. It suggests that government Ministers tend to wildly exaggerate the proportion of children who are wrongly assessed as adults presenting themselves as children. We want the Minister to engage, if not now then in writing, with the figures that we came up with. I am appalled that the Minister has not even read the Helen Bamber Foundation report, because that is the best report on age assessment that there is. I very much hope that at least his officials have read it, but I will leave it at that.
Lord Murray of Blidworth (Con)
Of course we consider the advice provided by the Age Estimation Science Advisory Committee and the Home Office’s chief scientific adviser, and we will continue to do so. It is because we are in the process of awaiting such advice that the age assessment process is not fully operational. That demonstrates that we take and appreciate the advice that we are given.
As to the information questions, I will look at the statistics that the noble Baroness raises. I do not recognise them immediately, which is not to say that they are not properly reflective. There are a lot of statistics published on the Home Office website, so I appreciate that there may be some conclusions to draw. I will certainly look at that.
Government Amendment 123C is a clarificatory amendment that simply ensures that Clause 55 applies to any decisions following the regulations made under Clause 56, which automatically assumes someone to be an adult as a result of their refusal to consent to a scientific age assessment. It includes a decision as to whether an individual has reasonable grounds to refuse consent to a scientific age assessment.
We cannot escape the fact that almost half of asylum seekers claiming to be children were found to be adults. Those seeking to game the system in this way create clear safeguarding risks to genuine children and delay their removal. Clauses 55 and 56 are a necessary part of the framework of the Bill to ensure that we can swiftly remove those subject to the duty in Clause 2. I therefore invite the right reverend Prelate to withdraw his amendment.
Lord Paddick (LD)
The Minister did not allow me to intervene earlier, so will he allow me to intervene now? In what world can he say that a child freely consents to a scientific assessment on the basis that, if that child does not consent, they will be treated as an adult and removed from the United Kingdom?
Lord Murray of Blidworth (Con)
We have already canvassed these topics, but there are many ways for a decision-maker to take a refusal to consent into account. It need not be an automatic presumption that somebody is of age; it can be treated in a variety of potential ways, which will be described in the regulations. They will be subject to debate at that time. I am afraid that that is the answer to the noble Lord’s question.
The Lord Bishop of Durham
I thank all noble Lords for contributing to the debate and for interjecting during the Minister’s response with many of the questions that I noted. I repeat what I said earlier: the Minister of State justified the inclusion of Clauses 55 and 56 in the Bill by saying that
“around 50% of those people who are assessed are ultimately determined to be adults”.—[Official Report, Commons, 26/4/23; col. 777.]
To be fair, the noble Lord, Lord Murray, said just under 50%, which is a slight change.
However, I went on to ask whether the Minister could confirm that this figure is misleading, given that it includes individuals subsequently found to be children after referral to a local authority. He has not answered that question, but please do not try to do so now; please write. The Helen Bamber Foundation found that 1,386 individuals were referred to local authorities in 2022, of whom 867 were found to be children. That is about 62% to 63%. Clearly, several of us are going to read Hansard very carefully and we would like the Minister to go away and reflect on the figures a bit further.
For all the reasons that have been raised by colleagues, who I thank for all their support—I also thank the noble and learned Lord, Lord Hope, for his additional proposal, which makes complete sense—the Minister will not be surprised that we are likely to return to this on Report, because we think these things matter enormously.
I think there is an assumption made by the Home Office that it is adults pretending to be children; most of us come at it the other way round, and are worried about children who are deemed to be adults and are therefore placed in unsafe places. Somewhere, the two have got to meet and talk with each other and consider each other. I suggest that the Home Office has some very good conversations with the DfE, social workers and health professionals about how to understand children and how they work, including children who are 16 and 17 years old, because they are still not adults. However, I beg leave to withdraw my amendment.
Member's explanatory statement
This amendment and the amendment in the name of Lord Murray of Blidworth at page 56, line 36 supplement references in Clause 55 to the court with references to the tribunal.
“(iii) at the appropriate place insert—““national” includes citizen;”;”Member's explanatory statement
This amendment modifies the amendments to section 80A of the Nationality, Immigration and Asylum Act 2002 in clause 57. The new amendment to section 80A inserts a definition of “national” which applies to references to a person who is a national of a State (in that section and section 80AA of that Act) so that citizens of that State are included. This is for consistency with the freestanding provision in the Bill.
Lord Coaker (Lab)
My Lords, I will be interested to hear what the Minister has to say to many of the questions raised. We will then consider what to do between now and Report.
Lord Murray of Blidworth (Con)
My Lords, I thank all noble Lords who have spoken: the noble Baronesses, Lady Lister and Lady Ludford, and the noble Lord, Lord Hacking.
The measures in Clause 57 aim to deter claims from nationals from safe countries who seek to abuse our asylum system and do not need to seek protection in the UK. It will consequently reduce pressure on our asylum system and allow us to focus on those most in need of our protection.
Treating asylum claims from EU nationals in this way is not new, as I think all noble Lords recognised. It has been a long-standing process in the UK asylum system and is also employed by EU states. However, EU states are not the only safe countries. It is right that we expand these provisions so that they apply not only to nationals of the EU but to other safe countries that we have assessed as generally safe. At this time, the list has been expanded to include the other European Economic Area countries, Switzerland and Albania. This clause also includes powers that would allow us to expand this list further to other safe countries of origin in future.
Furthermore, these provisions will expand this approach to include human rights claims. If a country is generally safe, it stands to reason not only that asylum claims should be declared inadmissible but that any related human rights claims should be treated likewise. If a person has other reasons for wishing to come to the UK, they should apply through the appropriate routes. People should not seek to use our asylum system to circumnavigate those routes.
However, even if a country is generally considered safe, it is acknowledged that there could be exceptional circumstances in which it may not be appropriate to return an individual. If the person does not meet the conditions of the duty and makes an asylum or human rights claim, and there are exceptional circumstances as a result of which the Secretary of State considers that a claim ought to be considered, then their claims will be considered in the UK. If a person meets the conditions of the duty and makes a protection and human rights claim, and the Secretary of State accepts that there are exceptional circumstances which prevent removal to their country of origin, they will instead be removed to a safe third country. Therefore, it is considered that these provisions incorporate appropriate safeguards to ensure that we will not return an individual where it would not be safe to do so.
Amendment 128A in the name of the noble Baroness, Lady Lister of Burtersett, seeks to remove Albania from the list of safe states for the purposes of Section 80A. For a country to be added to the list of safe countries of origin, it must be assessed as safe, as per the test set out in new Section 80AA of the 2002 Act. We are satisfied that, in general, Albania—a NATO member, an ECAT signatory and an EU accession country—meets that test. Indeed, the cross-party Home Affairs Committee, chaired by Dame Diana Johnson, said in its report published just yesterday:
“Albania is a safe country and we have seen little evidence that its citizens should ordinarily require asylum”.
Furthermore, as already set out, the provisions incorporate appropriate safeguards, should it be accepted that there are exceptional circumstances why an Albanian national should not be returned there.
As I have indicated, these sensible extensions to the inadmissibility arrangements which currently apply to EU nationals will help to reduce the pressures on our asylum system and enable us better to focus on those most in need of protection. I commend the clause to the Committee and invite the noble Baroness to withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am grateful to those who have spoken, especially my noble friend Lord Hacking; he has been extremely noble to stay this late to speak, and he speaks from his first-hand experience of Albania.
The noble Lord, Lord Hodgson of Astley Abbotts, said that if there had not been so much repetition, we would not still be here at this time. However, the Minister, in his reply, has shown why sometimes there is repetition: because there is no evidence that the Minister listens. I talked about the Home Affairs Committee and why the response to it was not good enough, but he read his speech about the Home Affairs Committee as if it had not been mentioned. This happens time and time again. The main repetition I heard this evening was from the Government Benches giving very detailed information about the Policy Exchange report over and again. We could have done without that.
It is late, and I do not think that we want to go beyond 2 am, if we can possibly help it; I am shaking with tiredness. The Minister has not engaged at all with the arguments put that, while Albania may be a safe country for many people, it is not safe for everyone. It is just not good enough to say, “Well, in exceptional circumstances, their claims can be considered”. There are some very vulnerable people—people who have fled extremely difficult circumstances that none of us would want to face—who have sought asylum here and been granted asylum here for good reason. I sometimes wonder what the point is of us standing up saying these things, when the Minister then stands up and gives us a response that takes no account whatever of what has been said. That said, I beg leave to withdraw the amendment.