Nationality and Borders Bill

Viscount Younger of Leckie Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Lord Etherton (CB)]

I am afraid that I have been caught rather short on procedure, so I hope the House will indulge me. I did not address Clause 32(5), which is the focus of my manuscript Amendment 45A, but the Minister is now dealing with Clause 32. It would not be appropriate in the circumstances to make a speech on this, but I ask the Minister to respond to two questions.

First, in general terms, what are these acts that are referred to in Clause 32(5) that are criminal and, in some way or other, said to bear upon a quite different issue: sexual orientation, which is an identity? At the moment, it seems as though Clause 32(5) is mixing apples and pears—one on identity, to live a life freely and openly and without fear of persecution, which is what orientation is, and then we have some exclusion or cutting down on acts. I assume that we are not going back 100 years and saying that all those people who are LGBTQI have some inclination to paedophilia: I hope that we are not saying that.

Secondly—

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble and learned Lord, but I think my noble friend is able to answer the questions that he is posing. Moreover, this is Report, so although noble Lords can rise for small points of clarification, it should be no more than that.

[Lord Etherton (CB)]

I have one more point of clarification. Could the Minister explain what the position will be for refugee asylum seekers who are under 16 and for whom any sexual relations would be a criminal offence?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am not sure that one generally takes questions on Report. I am newer than the noble Baroness, and I do not want to be rude; equally, I want to maintain the approach of the House.

[Viscount Younger of Leckie (Con)]

My noble friend is correct on that. Noble Lords are guided not to speak after the Minister.

[Lord Wolfson of Tredegar (Con)]

I want to respond to the concern expressed in Committee about the impact the clause would have on vulnerable groups—particularly, for example, female claimants fleeing gender-based violence—and to respond to the right reverend Prelate the Bishop of Durham. Victims of gender-based violence may still be considered to be members of a particular social group for the purposes of making an asylum claim if they meet the conditions in Clause 32(3) and (4). In response to the noble Baroness, Lady Lister, this clause does not therefore mean that women who are victims of gender-based violence are less likely to be accepted as a member of a particular social group: all cases are assessed on a case-by-case basis.

I cannot say, of course, that all women fleeing gender-based violence will always be found to be refugees, if that was the nature of the point that was being put to me. What I can say with certainty is that the structure of the definition does not preclude it. I think I heard, in the way the noble Baroness put the question, that the example was of a woman with “good grounds”. If she is asking, “Will this application be accepted?” good grounds is not the test and therefore, if good grounds is part of the question, I am afraid that that is why I necessarily gave the answer I did. I think if the noble Baroness looks at Hansard, she will see that I have now, again, answered the question directly.

I turn to Amendment 45A from the noble and learned Lord, Lord Etherton. It is vital that we provide protection to those in the UK who require it as a result of persecution they would face due to sexual orientation, but I suggest that it goes without saying that protection must not be afforded on the basis of one’s sexual orientation where the acts in question are criminal in the United Kingdom. I shall deal with both his points.

First, I note the explanatory statement on the amendment. For those who have not seen it, I shall summarise it. The obviously well-meaning intention of this amendment is to prevent applicants under the age of consent in the UK being excluded from refugee protection—I hope I have understood that correctly. I reassure the noble and learned Lord and the House that line 9 of Clause 32 does no such thing. That is because, although an asylum applicant may be under the age of consent in the UK, they can still be persecuted as a result of their sexual orientation. For example, a 15 year-old homosexual applicant may still be recognised as a member of a particular social group should they meet the requirements of Clause 32, even though they are not legally able to consent to sexual activity in the UK. I distinguish in this regard—I hope this is helpful to the noble and learned Lord—between sexual orientation and sexual activity. In that context, I come to the other point.

Let me say what should not need to be said—of course this is not the noble and learned Lord’s intention—but we are concerned that, as drafted, the amendment could allow convicted paedophiles and other convicted sex offenders to be granted refugee status in the UK, solely on account of their criminal acts relating to their sexual orientation. Of course, that is not the intention of the amendment: we are concerned that it is an unintended consequence of it. I hope that what I have said already deals with the intention behind the amendment and reassures the noble and learned Lord.

Lastly, I come to Amendment 46. Clause 36 provides the interpretive framework for Clause 11, which sets out Parliament’s position on Article 31(1) of the refugee convention. Clause 36 is still relevant in terms of providing the UK’s interpretation of key terms in Article 31 of the convention, such as immunity from penalties, so it is not just there to serve Clause 11, which was the first point made by the noble and learned Lord. The convention does not define what is meant by coming “directly” or “without delay”. Again, we have taken the opportunity to define those terms. We have taken into account that group 2 refugees will still be protected and not refouled, and will receive relevant entitlements so that the object and purpose of the convention are upheld.

Clause 36 is clear that there is discretion not to grant differentiated entitlements where a person could not reasonably be expected to have claimed in another safe country or where a person made a claim as soon as reasonably practicable. I made points earlier as to discretion and individual assessment. So this does not necessarily rule out the position taken by the House of Lords in R v Asfaw; it will all turn on the particular facts of the case.

Finally, I will prevail on the Home Office, I hope, to write to the noble Baroness, Lady Lister, on the point she raised. For these reasons, and with apologies that it has taken a little longer than I anticipated, I respectfully invite the right reverend Prelate to withdraw his amendment.