Safety of Rwanda (Asylum and Immigration) Bill

Lord Sharpe of Epsom Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I wonder whether the Minister would care to comment on whether he agrees with the analysis from the noble Lord, Lord Lilley, of the status of this Bill we are debating. The noble Lord said it was inconceivable that there would be any refoulement and that it is okay to proceed without the various recommendations in place. In the longer term, they would need to be in place—because it was in the longer term, I think, that he was suggesting that there might be justification in the suspicions that have been raised. I think that was the point the noble Lord was making.

I thank the noble and learned Lord, Lord Hope, for tabling these amendments and for his constructive communication before doing so. In Committee there was clear interest in developing a mechanism to ensure that the terms of the treaty are and continue to be adhered to. I hope the House will see that there is value in how he has integrated these ideas into these amendments. Amendments 4 and 7 together provide a clear framework for ensuring the ongoing safety of Rwanda, rooted in the terms of the treaty the Government have negotiated. I will not say any more, because the noble and learned Lord set out the terms of his amendments very clearly.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords for their contributions. The partnership between the UK and Rwanda is rooted in a shared commitment to develop new ways of managing flows of irregular migration by promoting durable solutions, thereby breaking the existing incentives that result in people embarking on perilous journeys to the UK. We saw again only last week how perilous those journeys are, as my noble friend Lord Hodgson noted. The UK and Rwanda share a vision on the need for the global community to provide better international protection for asylum seekers and refugees, emphasising the importance of effective and functioning systems and safeguards that provide protection to those in most need.

Noble Lords will know that Rwanda has a long history of supporting and integrating asylum seekers and refugees in the region, for example through its work with the United Nations High Commissioner for Refugees to host the emergency transit mechanism. It has also been internationally recognised for its general safety and stability, strong governance, low corruption and gender equality. My noble friend Lord Hodgson noted this, and my noble friend Lady Meyer gave her very welcome perspective on her recent visit. I say gently to the noble Lord, Lord German, that I heard a great deal in her comments about structures and systems.

As the noble and learned Lord, Lord Hope of Craighead, has explained, these amendments seek to allow Parliament to deem Rwanda to be safe only so long as the arrangements provided for in the Rwanda treaty have been fully implemented and are being adhered to in practice. The UK Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. In advance of agreeing the treaty, we worked with the Government of Rwanda to respond to the findings of the courts by evidencing Rwanda’s existing asylum procedures and practice in standard operating procedures relating to and reflecting the current refugee status determination and appeals process.

Amendment 7 imposes a duty on the Secretary of State to obtain a statement from the independent monitoring committee confirming that the objectives specified in Article 2 of the treaty have been secured. This is unnecessary; the Government will ratify the treaty in the UK only once we agree with Rwanda that all necessary implementation is in place for both countries to comply with the obligations under the treaty. We have assurances from the Government of Rwanda that the implementation of all measures in the treaty will be expedited, and we continue to work with the Rwandans on this. The legislation required for Rwanda to ratify the treaty passed the lower house of the Rwandan Parliament on 28 February and it will now go to the upper house, as my noble friend Lord Murray noted in the debate on the previous group. Once ratified, the treaty will become law in Rwanda. It follows that the Government of Rwanda would then be required to give effect to the terms of the treaty in accordance with its domestic law as well as international law.

The Bill’s provisions come into force when the treaty enters into force. The treaty enters into force when the parties have completed their internal procedures. These amendments therefore confuse the process for implementing the treaty with what is required for the Bill’s provisions to come into force. The Bill builds on the treaty between the UK and the Government of Rwanda signed on 5 December 2023. It reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty to people transferred to Rwanda in accordance with the treaty. Alongside the evidence of changes in Rwanda since summer 2022, published this January, the treaty will enable Parliament to conclude that Rwanda is safe and the Bill provides Parliament with the opportunity to do so. I say to my noble friend Lord Deben that that is the truth.

[Lord Deben (Con)]

I accept everything the Minister says, but it is all about what will happen in future. He is asking me to accept that what will happen in future has happened now. That is the only argument. He would not ask me to do that in any other circumstances. Can he explain why I have to do it now?

[Lord Sharpe of Epsom (Con)]

My Lords, I have been extraordinarily clear on this subject. As I said, the Bill provisions come into force when the treaty enters into force. The treaty enters into force when the parties have completed their internal procedures, and these amendments therefore confuse the process for implementing the treaty with what is required for the Bill provisions to come into force.

[Lord Clarke of Nottingham (Con)]

My noble friend says that it will confuse it; it is actually perfectly straightforward. If everything happens as smoothly as he says it will happen—and I hope it does, because I do not object to the safe country policy that is being pursued if we can find a safe country—the monitoring committee will presumably confirm that it has happened. Why is he resisting it, except to save the Secretary of State having to send a letter asking for the monitoring committee’s principle? Why is this amendment a threat to the Government’s stated policy?

[Lord Sharpe of Epsom (Con)]

I say to my noble friend that I am about to come on to the workings of the monitoring committee in great detail, if he will bear with me.

I turn to the points raised with regard to introducing a duty on the Secretary of State to consult with the monitoring committee every three months during the operation of the treaty. The committee is independent of both the UK and Rwandan Governments. It was always intended to be independent, to ensure that there is a layer of impartial oversight of the operation of the partnership. Maintaining the committee’s independence is an integral aspect of the design of the policy, and, as my noble and learned friend Lord Stewart of Dirleton set out, the treaty enhances the monitoring committee’s role.

The committee will ensure that obligations to the treaty are adhered to in practice and, as set out in Article 15(4)(b), it will report to the joint committee, which is made up of both UK and Rwandan officials. As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations it sees fit to the joint committee. Therefore, these amendments are both unnecessary and risk disturbing the independence and impartiality of the monitoring committee.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting the Minister. Could he confirm to the House that the Minister, which I assume means the Secretary of State for Home Affairs, will not seek to bring the Bill—the Act—into force until he is satisfied that all the provisions of the treaty have been implemented and are being properly operated?

[Lord Sharpe of Epsom (Con)]

I think I have already answered that. The Bill provisions come into force when the treaty enters into force, and the treaty enters into force when the parties have completed their internal procedures.

[Lord Falconer of Thoroton (Lab)]

Sorry for interrupting again, but that is not quite an answer to my question. Could the Minister give the House an assurance that the Home Secretary will bring the treaty into force only once he is satisfied that the treaty’s provisions have been implemented and it is operational?

[Lord Sharpe of Epsom (Con)]

My Lords, I disagree. I am afraid that is an answer to this particular question. I think it is. To assure noble Lords further, the joint committee met on 21 February to discuss implementation and readiness for operationalisation and, as set out in the published terms of reference for the joint committee, minutes will be produced after each meeting for agreement by the co-chairs.

The monitoring committee will undertake daily monitoring of the partnership for at least the first three months to ensure rapid identification of and response to any shortcomings. This enhanced phase will ensure that comprehensive monitoring and reporting take place in real time. As I set out in earlier debates, during the period of enhanced monitoring, the monitoring committee will report to the joint committee in accordance with an agreed action plan, to include weekly and bi-weekly reporting as required.

During the enhanced phase, the monitoring committee will place particular emphasis on monitoring asylum procedures, asylum case assessments, and any asylum decisions made in this timeframe. The monitoring committee will ensure that decisions are objective and based on a legally sound foundation in accordance with international laws and convention.

The following minimum levels of assurance have been agreed by the monitoring committee for the enhanced phase: two visits to the UK to see the selection process; observing two boardings and two disembarkations; observing three induction sessions; weekly visits to accommodation and reception centres; monthly visits to health and education facilities; observing education and language training sessions; observing interviews and appeal hearings; reviewing the process and paperwork for all individuals relocated to Rwanda in this phase; monitoring the status of people relocated to Rwanda, captured through the quarterly reporting process and visits to resettlement areas; reviewing a sample of at least 25% of complaints, including all serious incidents; investigating all complaints received directly; and interviewing on a voluntary basis a sample of one in 10 relocated individuals at various stages of the process.

The published terms of reference are accompanied by a detailed monitoring plan—as agreed by the monitoring committee—which was published on 11 January. These documents provide a comprehensive and transparent framework for the operations and procedures of the monitoring committee, starting from the immediate departure period of the first cohort of relocated individuals and including the details of the enhanced initial monitoring phase.

The plan provides an overview of the monitoring committee’s specific activities, monitoring techniques, and the personnel involved. It also outlines reporting procedures—

[Lord Hannay of Chiswick (CB)]

I am most grateful to the Minister, who has given us a great deal of new information about the monitoring committee. But all he has told the House demonstrates that the monitoring committee is extremely well placed to provide the Government the information they need to act as in my noble and learned friend’s amendment. What is holding them back? The fact of the matter is that the monitoring committee has no means of reporting to this Parliament, but the Government do. That is what this amendment suggests is the right thing to do.

[Lord Sharpe of Epsom (Con)]

I hear what the noble Lord says, but I have answered this in considerable detail now.

[Lord Clarke of Nottingham (Con)]

The more detail the Minister gives about the virtues of the monitoring committee, the stronger his argument is in favour of the amendment proposed to this House by the noble and learned Lord, Lord Hope. The briefing he has been given is totally contradictory to the conclusion that he is trying to invite us to reach.

[Lord Sharpe of Epsom (Con)]

I am afraid I disagree again.

[Noble Lords]

Oh!

[Lord Sharpe of Epsom (Con)]

My Lords, as set out in the monitoring plan, the monitoring committee will ensure that there is a daily presence of the support team on the ground through the initial enhanced phase. For the enhanced phase, a minimum of two monitoring committee members will be actively engaged in the monitoring.

Implementation continues at pace, including of the support team for the monitoring committee and the new appeals body. I put on record my thanks to all officials, including those in the Government of Rwanda, for all their hard work in implementing the treaty and delivering the crucial partnership. The partnership is one important component of a much broader bilateral relationship. We co-operate closely with Rwanda on a number of issues, including the Commonwealth, climate change, education, trade, governance, and conflict issues, and delivering a successful and long-standing development partnership.

To conclude, we have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system. These assurances and commitments provide clear evidence of the Government of Rwanda’s ability to fulfil its obligations generally and specifically, to ensure that relocated individuals face no risk of refoulement. I therefore respectfully ask the noble and learned Lord—

[Lord Carlile of Berriew (CB)]

Before the Minister sits down, I return to the question I asked him earlier: will he now tell the House which of the nine provisions highlighted in paragraph 45 of the International Agreements Committee’s report are now completed?

[Lord Sharpe of Epsom (Con)]

My Lords, as has already been discussed, the lower house of the Rwandan Parliament passed its treaty ratification only earlier this week. As I have just tried to explain, implementation continues at pace. I do not yet have the very specific information the noble Lord requires, but, as I have also explained, we will not implement until all the treaty obligations are met.

I therefore respectfully ask the noble and learned Lord to not press his amendment, but, were he to do so, I would have no hesitation in inviting the House to reject it.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to all noble Lords who have taken part in the debate. I do not want to take up time by going over the issues all over again, but I want to pick up two points made by the noble Lord, Lord Hodgson of Astley Abbotts.

First, I think the noble Lord suggested that my amendments were treating Rwanda as a country that is untrustworthy; I absolutely refute that. When I introduced the amendments in Committee, I made it absolutely clear that I do not, for a moment, question the good faith of Rwanda, and I remain in that position. I absolutely understand that both parties to the treaty are treating each other on that basis. I am certainly not, in any way, questioning the good faith or commitment of Rwanda to give effect to the treaty; what I am talking about is implementation.

Secondly, I think the noble Lord said that my amendment would make the Bill unworkable. I simply do not understand that. I cannot understand why relying on the word of the monitoring committee in any way undermines the effectiveness or purpose of the Bill. For those reasons, I wish to test the opinion of the House.

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[Lord Coaker (Lab)]

My Lords, we very much support Amendments 9 and 12, which the noble Lord, Lord Anderson, has led on. They would allow the presumption that Rwanda is a safe country to be rebutted by credible evidence presented to decision-makers, including courts and tribunals. If he were to test the opinion of the House, we would support him.

I will refer to my Amendment 29, which I hope gives some evidence of the need for the amendments from the noble Lord, Lord Anderson. Amendment 29 would take out Clause 4(2). I tabled it because Clause 4(2) says that

“subsection (1) does not permit a decision-maker”—

however that is defined, whether it is the Secretary of State, a court or a tribunal—

“to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its … obligations”.

In other words, an individual cannot put before the court or a tribunal not that they “may” be refouled but, using the Government’s own words in Clause 4(2), that they “will” be refouled. I could just about understand it if it had “may”, but if an individual cannot even argue that they “will” be then I would find that quite astonishing. Therefore, I suggest that my Amendment 29 highlights why Amendments 9 and 12, in the name of the noble Lord, Lord Anderson, are needed.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords for their contributions to this debate. I will turn first to Amendment 39, tabled by the noble Lord, Lord Blunkett. As I set out in Committee, we do not consider it necessary to make this amendment.

Clause 1 sets out the obligations that the Government of Rwanda have committed to under the new treaty. The addition the noble Lord proposes does not reflect the arrangements under the treaty. Enabling persons whose claims are successful in Rwanda to return to the UK would be entirely inconsistent with the terms and objectives of the treaty. Those relocated to Rwanda are not intended to be returned to the UK, except in limited circumstances. Article 9 of the treaty clearly sets out that Rwanda shall process claims for asylum in accordance with the refugee convention and this agreement.

Since the partnership was announced, UK officials have worked closely with the Government of Rwanda to ensure that individuals relocated under the agreement will be safe and that their rights will be protected. Human rights have been a key consideration throughout this work, including the treaty, to confirm the principles for the treatment of all relocated individuals in an internationally binding agreement and strengthened monitoring mechanisms to ensure practical delivery against the obligations. For example, individuals, once relocated, will have freedom of movement. They will not be at any risk of destitution, as they will be accommodated and supported for five years. They will have access to a generous integration package so that they can study, undertake training and work, and access healthcare.

For those who are not registered as refugees, Rwanda shall consider whether the relocated individual has another humanitarian protection need. Where such a humanitarian protection need exists, Rwanda shall provide treatment consistent with that offered to those recognised as refugees and permission to remain in Rwanda. Such persons shall be afforded equivalent rights and treatment to those recognised as refugees and shall be treated in accordance with international and Rwandan laws. For those relocated individuals not recognised as refugees or granted protection, Article 10 of the treaty provides that Rwanda shall regularise their status in the form of a permanent residence permit and provide equivalent treatment as set out in Part 2 of Annex A.

It is the Government of Rwanda, and not the UK Government, who will consider asylum or protection claims and who will grant refugee or protection status to those relocated to Rwanda under the treaty that will underpin the migration and economic development partnership. As is made clear in the agreed terms of the treaty, those relocated will not be returned to the UK except in limited specified circumstances. Obtaining refugee status in Rwanda does not grant that person any rights within the UK, as would be the case for any other person granted refugee status in Rwanda who had not been relocated from the UK. Anyone seeking entry to the UK in the future would have to apply through legal routes, such as the work or family route, with no guarantee of acceptance.

Amendments 9 and 12 tabled by the noble Lord, Lord Anderson, and Amendment 19 tabled by the noble Baroness, Lady Chakrabarti, seek to qualify the requirement for decision-makers, including courts and tribunals, to conclusively treat Rwanda as a safe country, thus allowing individuals to challenge removal decisions on the grounds that Rwanda is not a generally safe country.

The treaty, the Bill and the evidence together demonstrate that Rwanda is safe for relocated individuals and that the Government’s approach is tough but fair and lawful. The Government are clear that we assess Rwanda to be a safe country, and we have published detailed evidence that substantiates this assessment. This is a central feature of the Bill, and many of its other provisions are designed to ensure that Parliament’s conclusion on the safety of Rwanda is accepted by the domestic courts. The conclusive presumption in the Bill that Rwanda is generally a safe country is not, as the noble Lord suggested, a “legal fiction”.

The courts have not concluded that there is a general risk to the safety of relocated individuals in Rwanda. Rather, the Supreme Court’s findings were limited to perceived deficiencies in the Rwandan asylum system and the resulting risk of refoulement should any lack of capacity or expertise lead to cases being wrongly decided. As we have repeatedly set out, the treaty responds to those key findings. The assurances we have since negotiated in our legally binding treaty with Rwanda directly address these findings by making detailed provision for the treatment of relocated individuals in Rwanda, ensuring that they will be offered safety and protection, with no risk of refoulement.

We have been clear that the purpose of this legislation is to stop the boats, and to do that we must create a deterrent that shows that, if you enter the UK illegally, you will not be able to stay. We cannot allow systematic legal challenges to continue to frustrate and delay removals. It is therefore right that the scope for individualised claims remains limited, to prevent the merry-go-round of legal challenges and enable us to remove from the UK individuals who have entered illegally. We cannot allow illegal entrants to be able to thwart their removal when there is a clear process for the consideration of a claim based on a risk of serious and irreversible harm. We cannot allow the kinds of spurious legal challenges we have been seeing for far too long to continue.

It is for this reason that I cannot accept Amendments 23 and 27 tabled by the noble Baroness, Lady Meacher, which seek to lower the threshold for a claim or appeal brought on the grounds that Rwanda is unsafe to succeed. These amendments undermine the core principle of the Bill, which is to limit challenges brought against the safety of Rwanda. The Bill makes it clear that Rwanda is generally safe and that decision-makers, as well as courts and tribunals, must treat it conclusively as such. This reflects the Government’s confidence in the assurances of the treaty and in Rwanda’s commitment and capability to deliver against these obligations. As I have set out, the UK Government and the Government of Rwanda have agreed and begun to implement assurances and commitments to strengthen Rwanda’s asylum system.

Following on from my previous point with regard to relocated individuals in Rwanda being offered safety and protection with no risk of refoulement, I now turn to Amendments 11, 14, 15 and 29 tabled by the noble Lord, Lord Coaker. I consider these amendments to be unnecessary. As I have just stated, yes, the Supreme Court did find deficiencies in the Rwandan asylum system that meant there was a risk that those relocated under the terms of the previous memorandum of understanding with Rwanda could be refouled. However, the UK and Rwanda have since worked closely together to address the court’s conclusions.

As noble Lords are aware, the Supreme Court could consider evidence only up to summer 2022, which was not reflective of the current evidential position. Not only could the court not consider additional work undertaken with the Government of Rwanda to build capacity in the Rwandan asylum system, but it had not had the opportunity to consider the terms agreed under our new legally binding treaty with Rwanda. The treaty makes very clear that no one relocated to Rwanda will be returned to another country, except, in very limited circumstances, back to the UK. This expressly addresses the court’s conclusions by eliminating the risk of refoulement.

As I have said previously, and as I stated in my letter to the noble Lord, Lord Kerr, following the debate on this matter in Committee, the treaty contains, among other provisions, a definitive undertaking from the Government of Rwanda that they will not remove any person relocated under the MEDP, except to the UK, in accordance with Article 11(1).

[Lord Kerr of Kinlochard (CB)]

Can the Minister confirm that the arrangement described in Article 10(3) of the treaty has been devised: that is, the arrangement to ensure that refoulement does not in practice occur? The treaty imposes an obligation on both parties to agree a process. Has it been agreed, and can we see it?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know the answer to that question. I will find out and come back to the noble Lord on whether it has been agreed and where we are.

We therefore believe that there is no need for this to be considered when making individualised assessments as to the safety of Rwanda.

The treaty also enhances the role of the independent monitoring committee, which we discussed on the previous group. The monitoring committee will provide real-time, comprehensive monitoring of the end-to-end relocation and asylum process, ensuring delivery against the terms of the agreement and in line with both countries’ international obligations. This will prevent the risk of any harm to relocated individuals, including potential refoulement, before it has a chance to occur.

Rwanda is one step closer to ratifying the treaty, as discussed, which has passed through its lower house in Parliament. Once ratified, the treaty will become law in Rwanda. It follows that the Government of Rwanda would be required to give effect to the terms of the treaty in accordance with its domestic law, as well as international law. Those in genuine need of safety and security will be provided with it in Rwanda.

Turning to Amendment 16 tabled by the noble Baroness, Lady Lister of Burtersett, we do not accept that individuals relocated to Rwanda would be at risk of torture or any other form of inhumane or degrading treatment. The Government’s assessment is that Rwanda is a safe country that respects the rule of law. Rwanda is a signatory to the United Nations convention against torture, the convention on refugees and other core UN human rights conventions. It has also signed the treaty with us which guarantees the welfare of all those relocated under the partnership. The enhanced monitoring committee will be in place to robustly monitor adherence to these obligations. Should somebody with a particular vulnerability be relocated to Rwanda, there will be the necessary treatment and specialist support available, with safeguarding processes in place.

Furthermore, Clause 4 preserves the ability of individuals to challenge removal due to their particular individual circumstances if there is compelling evidence that Rwanda is not a safe country for them. That is the appropriate mechanism to ensure that an individual’s circumstances have been considered.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt. What investigations have the Government made of whether that support is available in Rwanda? This is not a criticism of Rwanda but an acceptance of the fact that it is a country that has poor provision, as we heard from the noble Lord, Lord Scriven, and others. On being able to say that it is not safe for an individual, as the Minister’s colleague said in Committee, the Government expect this to be successful very rarely, so that is no safeguard, really.

[Lord Sharpe of Epsom (Con)]

I was about to answer the noble Baroness’s questions, because safeguarding arrangements are set out in detail in the standard operating procedure on identifying and safeguarding vulnerability, which states that, at any stage in the refugee’s status determination and integration process, officials may encounter and should have due regard to the physical and psychological signs that can indicate that a person is vulnerable. The SOP sets out the process for identifying vulnerable persons and, where appropriate, making safeguarding referrals to the relevant protection team.

Screening interviews to identify vulnerability will be conducted by protection officers who have received the relevant training and are equipped to competently handle safeguarding referrals. The protection team may trigger follow-up assessments and/or treatment as appropriate. In addition, protection officers may support an individual to engage in the asylum process and advise relevant officials of any support needs or adjustments to enable the individual to engage with the process. Where appropriate, the protection team may refer vulnerable individuals for external support, which may include medical and/or psycho-social support or support with their accommodation. Where possible, this should be with the informed consent of the individual.

As regards capacity, of course it will be in place. The policy statement sets out at paragraph 135:

“In line with our obligations under the Refugee Convention and to ensure compliance with international human rights standards, each Relocated Individual will have access to quality preventative and curative primary and secondary healthcare services that are at least of the standard available to Rwandan nationals. This is provided through a comprehensive agreement between the Government of Rwanda and medical insurance companies for the duration of 5 years and through MoUs with hospitals in Kigali”.


I also say at this point that it would be in the best mental health interests of those seeking asylum who are victims to seek asylum in the first safe country that they come to. Why would they risk their health and mental health crossing the channel in much more grave circumstances than they need to?

Noble Lords will know that over 135,000 refugees and asylum seekers have already successfully found safety in Rwanda. International organisations including the UNHCR chose Rwanda to host these individuals. We are committed to delivering this partnership. With the treaty and published evidence pack, we are satisfied that Rwanda can be deemed a safe country through this legislation. I would ask the noble Lord to withdraw his amendment.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have participated in this fast-paced debate, and for the generous and constructive contributions that we have heard from all corners of this House. I shall not dwell on them individually, but I will single out the contributions that we heard from the noble Baronesses, Lady Lister and Lady D’Souza, and the noble Lord, Lord Cashman, on the subject of torture. Although my amendments are broader than theirs, theirs serve as a reminder that even evidence of widespread torture would be off limits if Clause 2 were not amended as they and I wish.

I say to the noble Lord, Lord Murray, that I am delighted by what he says he has seen in Rwanda. However, with great respect to him, the points that he makes in no way remove the desirability of ensuring that, should protections not prove to be adequate—including, for example, protections against the risk of refoulement contrary to the terms of an agreement, as we saw when the Rwanda/Israel agreement was in force—the decision-makers and courts should be able to take those matters into account. That is all that these amendments contend for.

I agree with the noble Lord, Lord Horam, that it is operational measures that will make the difference; he must be right about that. Those are the sorts of measures that were identified by the International Agreements Committee in its list of nine or 10, and in Article 10(3) of the treaty. As the noble Lord, Lord Kerr, pointed out, these will be unfinished business even when the treaty is ratified. The purpose of the courts is simply to check that those measures meet the minimum thresholds laid down by law.

The Minister made the point that the concerns expressed by the Supreme Court were limited to specific issues regarding refoulement and suggested that, had they not been resolved already, those issues would be easily resolved in the near future. The Minister asks us to take a good deal on trust. I understand that a letter has been circulated this afternoon; it certainly did not reach me. Whether that includes, for example, full details relating to the Rwanda asylum Bill, which nobody seemed to have seen when we debated this in Committee, and whether it contains full details of the arrangements to ensure non-refoulement, which are referred to in Article 10(3) of the treaty, I cannot say.

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[Lord Coaker (Lab)]

My Lords, as we come to the end of today’s consideration of the Bill before us, I start with the important point that the noble Lord, Lord Kerr, mentioned. I raised it in debate on the first group of amendments, when I said that the constitutional position is that the Government have the right to get their Bill through, but the House of Lords also has a constitutional position, which is the right for it to expect that its views and the amendments that it passes are considered properly by the Government. Unless I got it wrong, the noble Lord, Lord Kerr, was saying—it is certainly what I think—that our belief is that the Government are simply saying, “We’re not going to change the Bill at all. We don’t mind what the amendments are or what inconsistencies are brought forward, or how illogical what we are saying is. Such is our determination that we are going to drive this through and use our electoral majority to do it”. To that extent, the Government are undermining the constitutional conventions on which our Parliament is based.

I have been lectured, as many of us on this side of and across the House have been, on the Government’s right to get their Bill through. Indeed, the Home Secretary was at it again this morning in a newspaper, warning of the consequences of us not allowing the Bill through. Why would the Government simply ignore what the House of Lords is saying, which appears to be the intention? It may not be the intention of the noble and learned Lord, Lord Stewart, or the noble Lord, Lord Sharpe, but it will be interesting to see what amendments, if any, the Government make in response to what has happened in your Lordships’ House in Committee and, more importantly, in the votes that have taken place today.

I would appreciate us having some understanding of the Government’s view of what is being done here. As the noble Lord, Lord Kerr, mentioned, and as I am sure many other noble Lords feel, we have a right to be heard—and, at times, for our amendments to be acted upon—rather than simply ignored and dismissed as people who do not understand the problem and are simply trying to get in the way of dealing with the boats.

I started with that important point, notwithstanding the fact that some really important points reflecting on the Bill have been made on this group of amendments, as with many other groups. This group of amendments deals with individual claims and exemptions that may be made with respect to the general principle of the law. As somebody who has great respect for the law, although not a lawyer myself, it has always been my understanding that not many good laws do not have exemptions within them. A good law may have a generality of application to the population—the noble and learned Lord, Lord Stewart, will know this better than me, in his current position—but it will have exemptions within it because the impact of a general law on an individual may be such that justice is not served. Because of that, law therefore has to have exemptions built into it. As it stands, the Government are simply not able to have any exemptions within this. There is a blanket application of the law to particular individuals, whatever their circumstances.

We heard three very passionate and moving speakers leading on these amendments. The noble and learned Lord, Lord Etherton, supported by my noble friend Lord Cashman, outlined the circumstances that may occur with a particular social group. My noble friend mentioned the LGBT community, and the noble and learned Lord, Lord Etherton, will also appreciate that. Does that need to be considered within the Bill? We will have to see, but it appears to be another thing that the Government will just dismiss.

We heard from the noble and learned Baroness, Lady Butler-Sloss, about her amendments with respect to victims of modern slavery and trafficking. People who are trafficked have no choice. They do not say “Yes, traffic me”. That is different; that is smuggling. We are talking about people who are trafficked and have no part in the decision. The Government’s Bill just does not care about that. Those people will be subject to automatic deportation or going to Rwanda. As the noble and learned Baroness, Lady Butler-Sloss, said, quite rightly, surely that could be considered for exemption under the terms of the Bill.

My noble friend Lord Browne’s amendment, supported by the noble and gallant Lord, Lord Stirrup, and others, pointed out that a consequence of the Bill as it stands will be that people who served this country and put their lives on the line for us will simply be treated as illegal and deported to Rwanda. Does the Minister think that is right? Does he actually agree with that? It would be interesting to know whether he thinks that somebody, as my noble friend Lord Browne pointed out, who has fought for this country, served this country and put their life on the line, and who has had to come because of the situation in Afghanistan that my noble friend outlined, should be deported. Who in this House thinks that they should be deported to Rwanda? I do not believe the Government Front Bench think that. It is a rhetorical question; I will save the Minister from answering it. If they do not think that, then they should sort it out.

We are not playing at this; these are things that affect real people’s lives. The point the noble and gallant Lord, Lord Stirrup, made, is really important. What credibility will this country have if it finds itself in a similar situation in the future and says, “Work with us because we will ensure that you are protected”? What possible credibility would we have as a country or as part of an alliance? If we said to people, “If you serve with this country, do not worry about the consequences of it, because you will be protected”, what will we be able to say to them when, as the noble and gallant Lord pointed out, they simply turn around and say, “That is not what happened with those who served in Afghanistan”? Many of them were forced to stay and the consequences of that for some of them have been very severe.

The Government need to act on my noble friend Lord Browne’s amendment. We do not need warm words such as, “Yes, we need to consider this and think about it. It is a very important, interesting point that has been made”. The Government make the law. With respect to this, they should change the Bill to make sure that those people are protected and they should change the Bill in the way the noble and learned Baroness, Lady Butler-Sloss, has outlined, with respect to victims of modern slavery and trafficking. As my noble friend Lord Cashman and the noble and learned Lord, Lord Etherton, said, the Bill needs changing with respect to LGBT people—although I note my noble friend’s Amendment 33, which we will consider on Wednesday, may be a way of doing that. We will leave that for Wednesday.

This is a very important group of amendments dealing with individual claims and exemptions. This is not only about the law; it is about the way that justice works in this country. Justice demands these changes and I hope the Government respond.

[Lord Sharpe of Epsom (Con)]

My Lords, these amendments go to the issue of whether it is safe to relocate a person to Rwanda for particular individuals. It remains the Government’s view that these amendments are not necessary. I will again set out the Government’s case. Before I do, on the comments from the noble Lord, Lord Kerr, regarding amendments from noble Lords, obviously I cannot pre-empt what the other place will do or what that will prompt. I am sure that noble Lords will understand that.

Amendments 22, 24, 26, 28 and 30, tabled by the noble and learned Lord, Lord Etherton, would undermine one of the core principles of the Bill, which is to limit the challenges that can be brought against the general safety of Rwanda. The Government do not accept that these amendments are required to safeguard claims against removal to Rwanda on the basis of an individual’s LGBT identity, or indeed for any other characteristic, such as religious belief. These amendments would unnecessarily and significantly broaden the Bill’s provisions.

The Bill provides appropriate safeguards to ensure that decision-makers will make a case-by-case decision about the particular circumstances of each case. The Bill also allows decision-makers and the courts to consider certain claims that Rwanda is unsafe for an individual person due to their particular circumstances, despite the safeguards in the treaty, if there is compelling evidence to that effect.

As in all cases, decision-makers will make case-by-case decisions about whether the particular circumstances of each case would mean that an individual would be at real risk of harm were they to be relocated to Rwanda. That consideration would include an assessment of whether individuals faced a real risk of harm as a result of their sexuality. Furthermore, for LGBT individuals, that consideration would include any assessment of any compelling evidence reviewed in line with the principles outlined by HJ (Iran)—to which many noble Lords referred—that being LGBT would mean that Rwanda was not safe for them in their particular circumstances.

--- Later in debate ---

[Lord Scriven (LD)]

Can the Minister tell the House what legal provisions are on the statute book in Rwanda for the “T” part of “LGBT” in particular?

[Lord Sharpe of Epsom (Con)]

No, I cannot. I will have to come back to the noble Lord.

Rwanda is a signatory to the 2011 United Nations statement condemning violence against LGBT people, and it has joined nine other African countries to support LGBT rights. As part of the published evidence pack, the updated country policy information note gave careful consideration to evidence relating to the treatment of LGBT individuals in Rwanda. The Rwandan legal protection for LGBT rights is generally considered more progressive than that of neighbouring countries, as has been alluded to.

Amendment 25, tabled by the noble Lord, Lord Dubs, relates to claims on religion or belief grounds being taken into consideration for whether Rwanda is a safe country. The amendment specifically mentions an individual’s “religion or belief”, but the effect would be to permit the Secretary of State to consider whether an individual who is due to be relocated to Rwanda has any refugee convention reasons why Rwanda would not be safe for them, including on grounds of religion or belief. In effect, this would be considering a protection claim for a third-country national whose home country is not Rwanda.

A number of noble Lords raised concerns about religious tolerance in Rwanda and sought to argue that it would be unsafe for individuals who followed minority faiths or had no faith at all. The Government disagree with this contention. As our policy statement and the country information note on human rights make clear, and as I set out in my letter following Second Reading, the Rwandan constitution provides protection for individuals of different religions and faiths, as well as prohibiting discrimination of the grounds of religion or faith. Taken with the appropriate safeguards, which are set out in the Bill and elsewhere in our partnership with Rwanda, decision-makers will be in a position to consider the particular circumstances of each case, including where they involve an individual’s religious beliefs.

As I set out during an earlier debate, the Bill, along with the evidence of changes and the treaty, makes it clear that Rwanda is safe generally, and decision-makers, as well as courts and tribunals, must treat it conclusively as such. This ensures that removals cannot be delayed or frustrated by systemic challenges on safety. For this reason, I cannot accept Amendments 31 and 32 tabled by the noble Baroness, Lady Meacher.

Amendment 31 would remove the need for the risk of harm, when a serious and irreversible harm test is carried out, to be imminent. If accepted, this would enable a court or tribunal to delay or prevent a person’s removal to Rwanda based on a risk of harm that may not materialise for many months, if not years, after the person’s removal to Rwanda. 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. These provisions are consistent with the measures introduced in the Illegal Migration Act, agreed by this House last year. “Imminent” features in the European Court of Human Rights’ practice direction on interim measures. Clause 4(4) is not out of step with the Strasbourg court.

Amendment 32 would disapply Section 54 of the Illegal Migration Act, enabling the UK courts to grant an interim remedy preventing removal to Rwanda in cases where the duty to remove applied. This would undermine the suspensive claims procedure provided for in that Act. It risks vexatious claims being brought at the last minute in an attempt to frustrate removal, which would weaken the effectiveness of that Act. These amendments ultimately undermine the core principles of the Bill, and the Government cannot support them.

I turn to the position of potential and confirmed victims of modern slavery. The UK has a proactive duty to identify victims of modern slavery. We remain committed to ensuring that, when indicators that someone is a victim of modern slavery are identified by first responders, they continue to be referred into the national referral mechanism for consideration by the competent authorities. For all cases, steps will be taken to identify whether a person may be a victim of modern slavery. If a person is referred into the national referral mechanism, a reasonable grounds decision will be made.

The amendment proposed would act to impede the provisions already passed in the Nationality and Borders Act and the Illegal Migration Act, which introduced the means to disqualify certain individuals from the national referral mechanism on grounds of public order before a conclusive grounds is considered. Furthermore, the amendment is unnecessary, because it is important to be clear that the Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health and gender-based violence.

If there is a positive reasonable grounds decision in a pre-Illegal Migration Act case, the provisions in Part 5 of the Nationality and Borders Act will protect the person from removal pending a conclusive grounds decision, unless they are disqualified on the grounds of public order.

As I set out in my letter to the noble Lord, Lord Purvis, under Article 5(2)(d) of the treaty the United Kingdom may, when necessary for the purposes of relocation and when UK GDPR compliant, provide Rwanda with

“the outcome of any decision in the United Kingdom as to whether the Relocated Individual is a victim of trafficking”,

and this includes positive reasonable grounds decisions. Under Article 13(1) of the treaty, Rwanda must

“have regard to information provided about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and … take all necessary steps to ensure that these needs are accommodated”.

[Lord Scriven (LD)]

The Minister has just said something at the Dispatch Box that is not factually correct. He said that under Article 13(1) on trafficking Rwanda must take all necessary steps. The treaty actually says that it

“shall take all necessary steps”.

Those are two very different things.

[Lord Sharpe of Epsom (Con)]

Is that correct? It sounds very moot to me, legally. I said that Rwanda must

“have regard to information provided about a Relocated Individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and … take all necessary steps to ensure that these needs are accommodated”.

That sounds very much the same to me.

All relocated individuals, including potential and confirmed victims of modern slavery, will receive appropriate protection and assistance according to their needs, including referral to specialist services, as appropriate, to protect their welfare. So it is simply not correct to assert that the Government do not care.

Finally, if, despite those safeguards, an individual considers that Rwanda would not be safe for them, Clause 4 means that decision-makers may consider a claim on such grounds, other than in relation to alleged onward refoulement, if such a claim is based on compelling evidence relating specifically to the person’s individual particular circumstances, rather than on the ground that Rwanda is not a safe country in general.

I turn to Amendment 44, tabled by the noble Lord, Lord Browne of Ladyton, and spoken to by the noble and gallant Lord, Lord Stirrup. Although this amendment is well intentioned, it gives rise to the possibility that criminal gangs operating in northern France and across Europe will exploit this carve-out as a marketing model to encourage small boat illegal entry to the UK. The terms “agents, allies and employees” will likely result in people who have arrived illegally falsely claiming to be former agents and allies as a tactic to delay their removal, completely undermining this policy’s priority to stop the boats and promptly remove them, either to their home country or to a safe third country such as Rwanda.

The Government deeply value the support of those who have stood by us and our Armed Forces overseas. As a result, there are established legal routes for them to come to the UK. For example, those who enlist and serve in His Majesty’s Armed Forces are exempt from immigration control until they are discharged from regular service. After this time, non-UK HM Armed Forces personnel can apply for settlement under the Immigration Rules on discharge when their exemption from immigration control ends.

There are also provisions for family members of HM Armed Forces personnel to come to the UK legally. Anyone eligible for the Afghan relocations and assistance policy and the Afghan citizens resettlement scheme should apply to come to the UK legally under those routes.

I take what the noble Lord, Lord Browne, and the noble and gallant Lord, Lord Stirrup, say very seriously, and His Majesty’s Government regret that so many cases need to be reassessed. The MoD is taking the necessary steps to ensure that all future decisions are made in accordance with the enhanced guidance being produced for the review to which the noble Lord, Lord Browne, referred. This was recently announced by the Defence Secretary and while many former members of Afghan specialist units, including the Triples, have been found eligible under ARAP and safely relocated to the UK with their families, a recent review of processes around eligibility decisions demonstrated instances of inconsistent application of ARAP criteria in certain cases. In light of that, the MoD is taking the necessary steps to ensure that the ARAP criteria are applied consistently through reassessments of all eligibility decisions made on ineligible applications with credible claims of links to Afghan specialist units on a case-by-case basis.

This review will move as quickly as possible, but we recognise that ARAP applications from this cohort present a unique set of challenges in assessing their eligibility. These units reported directly into the Government of Afghanistan, which means that HMG do not hold employment records or comprehensive information in the same way we do for many other applicants. It is essential that the MoD ensures this is done right and provides the opportunity for applicants to provide further information—which I note can sometimes take time—from these individuals.

[Lord Browne of Ladyton (Lab)]

Will the Minister answer the question I asked in February when this review was announced: will anyone who is eligible for ARAP but was told they were ineligible—and acted in a way in which a small number of them did in extremis to protect themselves from possible death—be disqualified from being allowed to become eligible on review? Will they be excluded from the requirement of the Illegal Migration Act and this Bill if it becomes law that they must be deported to Rwanda?

[Lord Sharpe of Epsom (Con)]

As I understand it, they will be deported to Rwanda.

In conclusion, the Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities. The Bill already includes adequate safeguards which allow decision-makers to consider certain claims that Rwanda is unsafe for an individual due to their particular—

[Baroness Butler-Sloss (CB)]

In relation to modern slavery, is there any law in Rwanda that protects those suffering from modern slavery or human trafficking?

[Lord Sharpe of Epsom (Con)]

I am unable to comment on Rwandan law, but, of course, the treaty takes care of this and I went into detail on that earlier. Under Article 5(2)(d) of the treaty, the United Kingdom may where necessary for the purposes of relocation provide Rwanda with

“the outcome of any decision in the United Kingdom as to whether the Relocated Individual is a victim of trafficking”,

and that includes a positive reasonable grounds decision. Under Article 13(1) of the treaty, Rwanda must have regard to information provided about a relocated individual relating to any special needs that may arise as a result of their being a victim of modern slavery or human trafficking, and must take all necessary steps to ensure that these needs are accommodated.

I have to answer the noble and learned Baroness, Lady Butler-Sloss, by saying that at the moment I do not know whether it has those laws enshrined in domestic laws, but when the treaty is ratified, it will.

[Baroness Butler-Sloss (CB)]

As far as I know, there is no legislation to that effect in Rwanda.

[Baroness Coussins (CB)]

My Lords, will the review of ARAP decisions apply to the Afghan interpreters and translators and not just to military personnel?

[Lord Sharpe of Epsom (Con)]

When I was explaining the ARAP situation, I pointed out the difficulty of assessing and accessing some of the records, but I will certainly make sure that is taken back to the Foreign Office, which, as I understand it, administers a large part of the ACRS, which is the agreement under which the Afghan interpreters come to this country. I will find out the answer.

[Lord Scriven (LD)]

The Minister will not be able to answer this, but I would appreciate it if he could write to me and the House on it. He keeps referring to the treaty saying “must”. There is a difference between “must” and “shall”. In law, “must” is an absolute obligation. Article 13(1) says that Rwanda they “shall” take necessary steps, not “must”. Will he write to me, as I have the treaty here and it says something different from what he has said three times from the Dispatch Box?

[Lord Sharpe of Epsom (Con)]

I am advised by my noble and learned friend Lord Stewart of Dirleton that “must” and “shall” both have a mandatory quality, but I will of course write to the noble Lord.

If there is compelling evidence, despite the safeguards in the treaty, decision-makers will be able to consider certain claims that Rwanda is unsafe for an individual due to their particular circumstances, as we have discussed a number of times. However, I say again that these amendments are unnecessary. On that basis, I invite the noble and learned Lord to withdraw his amendment and urge other noble Lords not to press theirs.

[Lord Etherton (CB)]

I am very grateful to the Minister for that analysis of the speeches made and the Government’s response to them. I am also grateful to all noble Lords who have spoken in this debate, which has raised some important points about people who are extremely vulnerable.

The noble Lords, Lord Kerr and Lord Coaker, articulated the point that all these amendments dealing with exemptions are objectively extremely reasonable and important, and do not involve huge numbers of people such as to undermine the effectiveness of this proposed legislation. Descending to details to say that they are not necessary, when it is plain that they are, shows a certain lack of not only sensitivity to the Chamber but a spirit of humanity which should underlie the Government’s response.

Turning to my Amendment 22 and its consequential amendments, I find it difficult to understand how the Government can justify dropping and effectively disfranchising one of the expressly specified categories of refugee in the convention. There is nothing in the policy statement issued by the Government when the Bill was published or in the Explanatory Notes to say that they would do this. I would have thought that dropping a specific category of refugee defined by this convention which we have signed up to is an extraordinary move.

The justification seems to be that the Government will not permit reference to groups because it would significantly enlarge the number of those entitled to claim. However, if they are entitled to claim by virtue of a convention which we have signed up to, the Government must accept that, like all the other 149 states signed up to it. You cannot simply say, “We’ll ignore this or that category of refugee” or “We’ll just rely on this category of refugee”. There must be an ability, in one way or another, for all those mentioned as refugees to explain why removal would result in persecution and serious harm.

Leaving that matter aside, I will comment on the intervention by the noble Lord, Lord Murray, on comments made by the noble Lord, Lord Cashman, about the situation of LGBT people in Rwanda. I do not want to go through this again, but there are two factors on which the noble Lord, Lord Murray, did not comment, and in fact have never been commented on appropriately by the Government, by way of some sort of excuse in relation to LGBT people and the risk that they face in leading an openly gay life in Rwanda.

First, the travel information provided by the Foreign, Commonwealth and Development Office remains the same as it always has done, as it was at the time of the Illegal Migration Act: there is a danger to LGBT people living openly as such in Rwanda. Secondly, and importantly, no reference has been made to something that I mentioned in Committee: the country report on Rwanda of the US State Department, which was published only one year ago, and which talks about persecution and the possibility of physical harm to LGBT people. The Government have never addressed those points at all, but I am not going to go further into that.

As to the others, I personally strongly support all the other exemptions, which seem to me to be reasonable, humane and entirely appropriate, not designed to undermine the Bill but really rising to the level of morality which we should display as a country in relation to these categories of people. Having said all of that, and having heard the Minister, the best thing that I can do is to leave it to the amendment in the next group, tabled by the noble Baroness, Lady Chakrabarti, which contains reference to groups. For my part, having had this debate will have been useful in honing the points that will have to be met in relation to that. On that basis, and that basis alone, I beg leave to withdraw my amendment.