Illegal Migration Bill

Lord Purvis of Tweed Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[The Lord Bishop of Durham]

I apologise that I was unable to be present on day one of Committee and I arrived today rather later than I had planned, so was unable to speak earlier. However, I am grateful to my noble friend the right reverend Prelate the Bishop of Coventry for so doing.

In regard to this group, it is particularly Amendments 52A onwards for which I should like to express my support, although I fully support all that has been said around the individual countries and the issue around LGBTQ+ rights. However, there is real concern around naming a part of a country or territory as safe when much of the country might not be. So I fully support Amendment 52A on that basis.

In addition, I support Amendments 52E, 52F and 53, which are not just thinking about the situation in current countries but are looking to the future and how decisions are made in the longer term. It will be vital that we take seriously examining the situations in specific countries as and when they arise. We recognise that countries change and might become safe when they are currently unsafe. Equally, countries that are currently deemed safe may become unsafe. We need this kind of provision and I suggest that on Report we come back with a combination that pulls together all the safeties from those amendments.

[Lord Purvis of Tweed (LD)]

I wish to ask a question of the Minister in regard to Amendment 43, spoken to by the noble Lord, Lord Carlile, regarding Ghana. It relates to the points made my noble friend Lord Scriven.

The Home Office currently proposes that we move away from looking at countries on a case-by-case basis to determine which are safe. However, under the current Immigration Rules, the Government use the country policy and information note as the basis that officers will be able to use when they are considering a case.

The country policy and information note on Ghana regarding sexual orientation, gender, identity and expression, published in May 2022, states that of course each case will be considered on its own merits. That is obvious because that is what we are moving to. However, paragraph 2.4.13 states:

“In general, L, G and B persons are likely to be subject to treatment from the state that by its nature and frequency amounts to persecution”.


So, the Minister’s department for Ghana is saying that the state persecutes L, G and B people in general terms—but for men it is a safe country. So someone fleeing Uganda because of persecution because of their sexual orientation and arriving by an illegal route can now be deported to Ghana, where that very same person is now going to be vulnerable to, as the Government say, treatment from the state that by its nature and frequency amounts to persecution. I just want to ask the Minister why.

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group, including the probing amendments tabled by my noble friend Lady Hamwee. It is quite clear from all sides of the Committee that just listing countries as being safe is not sufficient. The Government have already acknowledged that some countries are not safe to remove women to, for example. Therefore the principle is established that a country may be considered sort of generally safe, but not safe for particular individuals, whether because of their gender or sexual diversity. The noble Lord, Lord Carlile of Berriew, introduced amendments aimed at that. The amendment in the name of the noble Lord, Lord Alton, would ensure that victims of trafficking and modern slavery are not removed to a country where they would not be safe. As both my noble friends said, when you contrast the list of countries in Schedule 1 with the Government’s advice to travellers, for example, there is clear inconsistency between the two, or at least a case for the Government to answer in terms of using the countries in Schedule 1 as a blanket list rather than looking into the specific problems or dangers faced by people who belong to different social groups.

The other concern I have is, if people who arrive by means of what the Home Office calls irregular routes are not to have their asylum claims considered at all, how will the Government know whether the individual concerned is, for example, gay or a lesbian and therefore will be put in danger if they are removed to a country that clearly persecutes people from those groups? If there is going to be no consideration of the merits of an individual’s claim, how can the Government be certain that the person is going to be safe if they are removed to one of these countries?

--- Later in debate ---

The test for adding countries to this list, particularly the words “in general”, is again not new: it is the test set out in Section 94(5) of the 2002 Act. Including a country in Schedule 1 simply requires the Secretary of State to be satisfied that it is considered generally safe. But, of course, if a person is to be removed to such a country, they would still have the opportunity to challenge their removal, on the grounds that they would face a real risk of serious and irreversible harm if removed to that country. The individual would not be removed if there was found to be such a risk. I will come to this point in a moment, particularly in relation to the questions from the noble Lord, Lord Coaker, about the position of the individual—they are perfectly fair. But the procedure for the claim of serious and irreparable harm protects the individual in those circumstances, so the Government do not consider that “in general” should come out of the Bill.

[Lord Purvis of Tweed (LD)]

I wish to probe a little more what the Minister said. I understand his points about certain parts of countries. As I understand it, the Government accept that, in certain parts of countries, the risk to the individual will be such that that person should not be returned or sent to them if they are part of what could otherwise be a safe country. What is our Government’s mechanism to secure a guarantee from that country’s Government that that person would not then be sent to that region?

[Lord Bellamy (Con)]

I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned. I agree that that may not be enough, and the situation may well be such that it is not appropriate to designate a part of the country. All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it. It would still be open to an individual, in a suspensive claim, to say, “I’m still at risk because I might be transferred to the part of the country where it would be too dangerous for me to be sent”. That would be part of the analysis that the tribunal seized of the case would have to make.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government will of course consider that, as we try to consider everything that is said in this House, before Report. I simply reiterate that under Clause 5(3)(d), it still has to be

“a country or territory to which there is reason to believe P will be admitted”—

and that is probably not very likely to be satisfied in the particular countries we are talking about, such as Ghana, for example. Having responded to the noble Baroness, Lady Chakrabarti, the Government will of course consider the position.

[Lord Purvis of Tweed (LD)]

On that very point, what is the point of having Ghana in that schedule? There is no agreement with Ghana at all, so how do the Government know that Ghana would be unlikely to accept someone who is not admissible under the UK scheme? The UK will presumably not necessarily divulge that that person is gay.

[Lord Bellamy (Con)]

My Lords, I sought to explain earlier that Schedule 1 is an amalgam of all the existing schedules that exist. Ghana was already on a list of countries to which people could be sent, and the present practice is not to send people back to places where they are at serious risk. That practice will continue under this Act when you make a suspensive harm application. It is a historical situation, but it has to be dealt with on a case-by-case basis. As I said to the noble Baroness a moment ago, the Government will reflect on what has been said in this debate.

That brings me to deal specifically with the question of Rwanda and the fact that there are currently proceedings pending in relation to Rwanda, as the noble Lord, Lord Cashman, pointed out. So far, the High Court has upheld the position on Rwanda: we will see what the Court of Appeal judgment says. If the case goes further, it will be a matter for judicial decision and we will see how that works out, but we will not take Rwanda out at this stage, while the matter is still pending. I think that is also the answer, if I may say so, in relation to Amendments 43A and 49A on Hungary and Poland. These are ongoing proceedings: let us see what the outcome is and then it can be properly determined whether Poland and Hungary are countries that should remain on the list. That is not clear yet and it depends on the outcome of those pending proceedings.

I think that I am nearly through, except for the very important points raised by the noble Lord, Lord Alton, and others, as to whether we should beef up Clause 6(4)(b), which at the moment places certain requirements on the Secretary of State, in deciding on possible new countries and territories. The thrust of the amendment suggested by the noble Lord and supported by others is that effectively there should be a more detailed list of conventions and other international instruments to which the Government should have regard, with a specific obligation of consultation. The noble Baroness, Lady Chakrabarti, and others wanted in particular to enshrine the obligation to follow the decisions of domestic courts and the Human Rights Act.

The Government’s position on this—and of course, as with other things, we will reflect on it—is that these are effectively de facto covered in the existing Clause 6(4)(a) and (b). They provide that the Secretary of State must—it is a positive duty—

“have regard to all the circumstances of the country”

and

“must have regard to information from any appropriate source (including member States and international organisations)”.

That, in the Government’s view, necessarily requires the Secretary of State to have regard to case law, whether it is domestic or European; to have regard to international conventions and obligations; and to have regard to what international organisations say—and they are not exactly bashful when coming forward in this kind of area. The Secretary of State would be seriously at risk of being found to have acted irrationally or found not to have taken into account relevant considerations, if there was a major international organisation, a major convention or a major decision that had somehow been overlooked. So the combination of the normal duties of rationality and duty to take into account all relevant considerations, plus the actual wording of Clause 6(4), in the Government’s present view, covers the situation adequately.