Nationality and Borders Bill

Lord Rosser Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Rosser (Lab)]

My Lords, one of this Government’s favourite slogans has just been repeated, that our asylum system is broken, followed by a claim that a Johnson Government will fix it. Two years ago, the Home Secretary said that her then plan would halve the number of boats crossing the channel in three months and make them infrequent in six months. Needless to say, since then they have increased tenfold. In response, the Home Secretary and the Government have introduced this Bill, which contains no new safe and legal routes, nothing to target ruthless criminal gangs and smugglers, and a number of empty and unworkable solutions.

If we want to know why the asylum system is broken, we need look no further than this Government and the Home Office. The number of initial asylum decisions being made by the Home Office each year has dropped by more than 40% over the last five years. That is why the backlog has increased. Some 67,000—some say it is even more—are still waiting for an initial decision on their asylum claim. Relationships, with France in particular, have reached rock bottom, and there appears to be a general lack of trust within the EU. International development aid has been cut back, contrary to an election commitment. Reducing levels of support will do nothing to prevent people having to leave their home to seek asylum.

This Government continue to be a Government of slogans. A Government of workable solutions they certainly are not, as this Bill all too clearly shows. The Government say that they are motivated by a desire to crack down on the criminal smuggler gangs but then produce a Bill with measures directed at the victims of those smugglers rather than at the gangs themselves. Despite promising safe legal routes as an alternative to dangerous journeys, the Government have cut safe legal routes for family reunion, refugees and asylum seekers in Europe, and have included no safe legal routes in this Bill.

The Government claim that the Bill will stop boats arriving and return people who travel in them. The reality though is that this Government have failed to get in place a single returns agreement with EU countries, and nothing in the Bill changes that. Just five people were returned last year. The Government claim that the Bill will mean pushbacks at sea, even though Border Force officials have said it is dangerous and unworkable. France has refused to agree to receive boats safely back, and so these pushbacks simply cannot happen in practice.

The Government claim that the Bill will mean offshore processing, even though no country has agreed and the cost to the taxpayer would be huge. The Government claim the Bill will fix the asylum system, even though it will add even longer delays to asylum cases being assessed.

The Government claim the Bill will stop trafficking gangs, even though they are cutting protection for modern slavery. In pursuit of the Government’s stated aim of preventing people using a defence of being a victim of modern slavery against deportation, the Bill removes a number of key protections for victims of human trafficking and modern slavery, rowing back on crucial protections created under the Modern Slavery Act 2015. It will make the identification and protection of modern slavery victims more difficult.

Former top police officer and now anti-slavery commissioner, Sara Thornton, has raised concerns about the potential consequences the Bill may have on the ability to prosecute offenders. She said that watering down protection for modern slavery victims, including UK-resident children caught up in criminal exploitation and county lines, will

“severely limit our ability to convict perpetrators and dismantle organised crime groups.”

Mistakes are often made when people are ruled not to be victims of human trafficking or modern slavery. The Home Office’s own data shows that four out of five rejected human trafficking claims challenged in the UK last year were overturned. Out of 325 claims in the Home Office-run national referral mechanism scheme that were appealed, 255 were reversed.

The modern slavery provisions are particularly alarming for the impact they will have on children, including significant numbers of British children who are trafficked and exploited in the UK. Despite that, the Bill does not provide safeguards for children, does not recognise that children need different provisions and protections from adults, and does not make policy that acts in the best interests of the child.

Since 2014 the Government have spent more than £200 million on numerous deals with French authorities—equal to around half a million pounds per week of taxpayers’ money—yet the crossings are increasing as the Government proclaim that Brexit has given us control of our borders. The Government’s mood fluctuates between, on the one hand, denouncing the French for not doing enough to stop the crossings and, on the other, telling us how many such crossings have been stopped by the French authorities as a result of the deals we have done with them. What we do know though, is that the Government’s various deals with the French did not prevent the tragic loss of 27 lives when an inflatable dinghy capsized some six weeks ago, in late November last year.

We need new agreements on joint policing and asylum with France and other EU countries to prevent more of these deadly crossings, and covering all aspects of security co-operation, including exchange of information on tackling criminal smuggler gangs and facilitating safe legal routes and safe returns.

If this Government are serious about cracking down on the criminal smuggler gangs that profit from putting desperate people in flimsy dinghies, neither can they ignore the ways that these gangs lure in vulnerable people online. The Government have not put forward anything to address this, even though it is a huge part of the problem. We should criminalise those who advertise and glamourise deadly crossings online. The Government are continually playing catch-up, as organised criminal networks find new ways to exploit vulnerable people online. We also cannot keep waiting for the Government’s long overdue, much delayed online harms legislation to crack down on social media companies that fail to take down the accounts of those who promote these dangerous journeys on their platforms.

What we got, during the passage of this slogan-driven and ill-thought-through Bill, were 80 government amendments tabled three days before Report stage in the Commons, and an admission from the Government that they had managed to produce a Bill that would criminalise RNLI volunteers for their courageous, life-saving work. The effect of that was to increase public support for, and donations to, the RNLI, as a snub to this Government’s original intentions against the RNLI, from which they have now been forced to retreat. However, the Bill still appears to break international maritime law and the duty for a ship to attempt to rescue persons in danger at sea by requiring passing boats or vessels to ignore people in distress or face criminalisation.

The Bill criminalises someone arriving in the UK to claim asylum, changes the immigration offence of how someone enters the UK and specifies the mode of entry as either legal or illegal. The Bill also makes provision for differential treatment of refugees based on how they arrive into the UK and the point at which they present themselves to the authorities, with those who travel via a third country, do not have documents or do not claim asylum immediately being designated “group 2” refugees. Yet the refugee convention contains a single unitary definition of refugee, solely related according to their need for protection.

The Red Cross has said that this differentiated treatment will not deter dangerous journeys. It points out that, even where people have a choice in their mode of travel, it is rare for a person fleeing to have any idea of their rights or the complexities of the asylum law where they arrive. The Red Cross suggests that removing family reunion rights will increase the number of particularly women and children using illegal routes and will actually shore up the business model of the criminal gangs and smugglers.

The Bill enables the prosecution of individuals intercepted in UK territorial seas and brought into this country who arrive in but do not technically “enter” the UK. The new offence will carry a maximum sentence of four years.

There is no visa or entry clearance application for someone to make to come to the UK to claim asylum. Under this Bill, someone with a well-founded fear of persecution arriving in the UK intending to claim asylum will be committing a criminal offence. Article 31 of the refugee convention provides that states

“shall not impose penalties, on account of their illegal entry or presence, on refugees … where their life or freedom was threatened … they present themselves without delay … and … show good cause for their illegal entry or presence.”

The courts have recognised that it would be hollow if asylum seekers could not rely on this international law protection. If all countries were to take this approach of criminalising those who enter illegally for the purposes of claiming asylum, the entire international system for refugee protection would fall apart.

When we left the European Union, we also left the schemes which gave the UK the ability to return those seeking asylum to safe countries via the Dublin III system. This allowed those seeking asylum who entered the UK to be returned if they had first registered in another country in the European Union. At the moment, not one agreement has been struck between this Government and the 27 member states of the EU, therefore restricting the ability to return individuals who registered elsewhere first. Under the Dublin III regulation, the UK safely returned hundreds of asylum seekers to European countries. Since the Dublin regulation stopped applying to the UK at the beginning of last year, the UK has returned, as I said, just five asylum seekers to European countries, at a time when channel crossings have significantly increased.

The Bill provides for asylum seekers to be removed from the UK while their claims are being processed, opening the door to offshore processing. The Government have previously stated that, among other places, they would use such powers to process claims in Africa and Ascension Island, and on disused ferries and abandoned oil rigs. The reality is that such a system would be ineffective, inhumane and very expensive for the taxpayer. Offshore processing in Australia cost an estimated 1 billion Australian dollars a year to deal with 300 migrants.

Last year, some 28,500 people made the dangerous channel crossing. Research by the Refugee Council suggests that around two-thirds who crossed the channel via small boats and claimed asylum were granted humanitarian protection. Over 70% of people arriving via small boats come from just five countries, namely Iran, Sudan, Syria, Iraq and Vietnam, and Afghanistan was seventh, behind Eritrea—hardly countries free from strife and persecution. Neither has the number of asylum applications suddenly reached an all-time peak. In 2002, the number of such applications was over 84,000.

Looking at international comparisons, we do not seem to be faced with more applications than anywhere else. In 2020 there were around six asylum applications for every 10,000 people living in the UK. Across the EU, there were 11 asylum applications for every 10,000 people. Compared with EU 27 countries, the UK ranks 17th for asylum applications per head of population.

I know that much reference will be made today to Clause 9, which was added in haste and without proper scrutiny in the Commons. Powers to deprive someone of British citizenship have existed since 1914. This Bill, though, also gives the Home Office sweeping new powers to deprive a person of their British citizenship without any notice. This is not acceptable and is causing intense concern among people with dual nationality. In the shadow of Windrush, warm words from the Government about how fairly and responsibly they will use the power just will not suffice.

Children, including unaccompanied asylum-seeking children, can make up almost 25% of those seeking asylum in the UK. Where is the replacement for the Dubs scheme, which this Government closed before it had reached anywhere near its potential to protect children? Where is the provision for a safe resettlement scheme for Afghanistan, which has been promised but not yet delivered?

The Bill will not solve the problem of dangerous boat crossings that are putting lives at risk. Instead, it proposes unworkable solutions that will cost the taxpayer dear and undermine international humanitarian conventions and agreements at a time when co-operation is needed more than ever. The Bill does not improve security co-operation and will not secure returns agreements or create the safe, legal routes the Government have promised. Instead, it will increase the asylum backlog, keeping more people in limbo in accommodation. The Bill will not stop trafficking gangs, as the Government are cutting protection from modern slavery and thus making it harder to prosecute and convict people traffickers.

At heart, the Bill is about a Government and a Home Secretary who know that their policies to date are failing and who, in a bid to attract more favourable headlines, are concentrating their fire even more on the victims of people traffickers and deadly channel crossings, rather than setting out sensible plans to deal with the criminal gangs involved based on co-operation, not insularity. In short, this Bill is a sham.