Nationality and Borders Bill (Seventh sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 21st October 2021 Public Bill Committees

[Anne McLaughlin]

I would absolutely support that. I had no intention of speaking for any more than five minutes, but Members keep on interrupting and goading me. I want to make two more little points, if I may. The Bill is being brought in because there is a mistaken belief that asylum seekers across the world are desperate to get to the UK. I am not sure why they would be if they ever watch parliamentlive.tv, but the fact is that most people coming to Europe as a whole think that Europe is one homogenous place. They do not think in terms of countries. This is not anecdotal; studies have been done on people who come to live here. Similarly, people often think that Africa is a country, when it is more than 50 countries.

Asylum seekers are not looking to go to a particular country. If they choose to come to the UK, it is perhaps because they have family or friends here, which is hugely important, or because they speak the language. They do not speak French or German, but they do speak English and do have family here. Imagine the turmoil when people’s city is bombed. They do not recognise the streets any more, and they do not know where their family are. They know that they could be raped, tortured or murdered at any moment. Imagine the trauma from that. People know that they have to get away. Of course they do not want to leave, but they have to do so. We should all think about that happening to us. We are so lucky that it will probably never happen to us. If it did, we would want to be with people who made us feel safe. If someone has family or friends in the UK, they should be able to join them. Yes, that is a pull factor, as is the language. There is also a mistaken belief that the great British empire was all-welcoming, all-democratic and all-supportive of human rights, which is another reason why people come to the UK.

The truth is that most people who arrive by boat have not decided that they are coming here; the smugglers have decided it. As my Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East said, we should be targeting the smugglers, not their victims. We should take away their market, and the only way to do that is to provide the safe and legal routes on which we apparently all agree. But where are they?

I will make one more point, which is about France. We have established that, under the international legislation that the UK played a major role in developing, there is no requirement to claim asylum in the first so-called safe country that somebody arrives in. However, it is important to understand why someone fleeing persecution, and probably suffering from mental health impacts such as post-traumatic stress disorder, might not want to claim asylum in France—I am using France as an example. Why would an asylum seeker choose to make a dangerous crossing? As I said, most people are not choosing; the people smugglers are choosing. Why might they choose to make a dangerous channel crossing, when they could claim asylum in France? I have spoken about the fact that people do not choose their route, but it is well established that the asylum system in France has a reputation for being harsh. I know there are Members present who like the idea of harshness, but we do not.

A 2020 ruling by the European Court of Human Rights condemned France for inhumane living conditions for asylum seekers. Having spent a few days with my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East in the jungle in Calais a few years ago, I saw exactly what the court meant. France might take in many more people than we do in the UK—I believe that we do not treat asylum seekers as well as we should do when they arrive here, and we certainly will not do so if the Bill passes—but France is not where I would want to be if I needed international protection, especially if I had to recover from trauma.

Even during the pandemic last year, when we all agreed that there should be a break in evictions and that everyone should have a roof over their head, asylum seekers sleeping in tents in France where thrown out of their tents and tear-gassed, no doubt triggering terrible memories for many of them. When I was in the jungle, parents there told me that their children no longer played in the little playpark nearby because far-right activists set off fireworks to terrify them, and terrify them it did, as these kids fled, thinking that they were being bombed again.

In addition, the housing situation for asylum seekers in France has only got worse, with asylum seekers such as Hussain, interviewed by the New Humanitarian in April, being forced to sleep rough on the streets of Paris over a year after he submitted his application. The French National Consultative Commission on Human Rights went so far as to say:

“It is true that the conditions in France make people want to leave”.

Nicolas De Sa-Pallix, a French asylum lawyer, condemned the French Government’s approach, and his words should act as a warning for Government Members:

“They talk about being both humane and tough in migration policies, but these don’t go together…You can’t have both.”

I agree, so why not just respond to the plight of these people, facing things that none of us will ever have to face, with humanity?

[Bambos Charalambous (Enfield, Southgate) (Lab)]

We have heard two excellent speeches, and the Opposition totally support the position of the Scottish National party.

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[Tom Pursglove]

I simply cannot in all conscience support anyone of any nationality putting their lives in the hands of evil people-smuggling gangs, and I think that that would be the unintended consequence of what the hon. Lady is trying to achieve. I do not doubt the generosity of spirit behind the amendment, but I do not think that putting it into the Bill is the right thing to do. It is right that we continue to develop the safe and legal route as quickly as possible, and make sure that people are able to come here. I cannot, in all good conscience, support an amendment that would simply afford opportunity to evil criminal gangs. With that, I ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw it.

[Bambos Charalambous]

The Afghan resettlement scheme would have a cap of 5,000 per year. If that 5,000 limit had been met, anyone who came here via other routes would be deemed to be in one of the group 2 categories, and they would have fewer protections. On guidance, which my hon. Friend the Member for Bermondsey and Old Southwark mentioned, the issue around how they would be treated would certainly be in play. They would be treated as group 2, and we must bear in mind that the guidance would say that they could not return to Afghanistan. Does the Minister have any comments on that?

[Tom Pursglove]

I am grateful to the hon. Gentleman for the intervention. I think there is a timing issue here. We are debating this Bill in Committee today and we have several more weeks of Committee, and then Report and Third Reading in the Commons, followed by Lords consideration in full, and consideration of any amendments that those in the other place wish to send to us. As a result, we are some way away from this Bill becoming law. By that time, I fully expect that the safe and legal route will have been established and people will be able to avail themselves of it. The overriding point is that all cases are considered on a case-by-case basis, taking into proper account all the relevant considerations.

Nationality and Borders Bill (Eighth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 21st October 2021 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 161, in clause 10, page 13, line 40, at end insert—

“(10) Nothing within the Act or this section authorises any treatment or action which is inconsistent with the UK’s obligations under the Refugee Convention.”

This amendment seeks to ensure consistency of clause 10 with the UK’s obligations under the Refugee Convention.

Clause stand part.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

The Opposition strongly oppose the clause. We believe that it contravenes the 1951 refugee convention, that it sets a dangerous precedent by creating a two-tiered system for refugees and that it is deeply inhumane. The clause seeks to dehumanise refugees in many insidious ways, and I believe that it threatens our very sense of who we are as a civilised nation. I will set out all the ways in which the clause does that, but before I begin, I would again like to thank the many organisations from across the refugee and asylum sector for their invaluable help in our scrutiny of the clause.

I will talk first about the differential treatment of refugees in groups 1 and 2. As all members of this Committee will know, at the heart of clause 10 is the creation of two tiers of refugee under UK law. Only those refugees who meet specific additional “requirements” will be considered group 1 refugees and benefit from the rights currently granted to all refugees by the refugee convention. Under clause 10 of the Bill, the requirements for group 1 refugees are that

“they have come to the United Kingdom directly from a country or territory where their life or freedom was threatened (in the sense of Article 1 of the Refugee Convention), and…they have presented themselves without delay to the authorities.”

The clause also states:

“Where a refugee has entered or is present in the United Kingdom unlawfully, the additional requirement is that they can show good cause for their unlawful entry or presence.”

Other refugees, who are not deemed to meet the criteria, will be designated as group 2 refugees. The Secretary of State will be empowered to draft rules discriminating against group 2 refugees with regard to the rights to which they are entitled under the refugee convention, as well as the fundamental human right to family unity.

To explain this differentiation between refugee groups further, clause 10 makes provision for different treatment of people recognised as refugees on the basis of how they travelled to the UK and the point at which they presented themselves to authorities. Those who travelled via a third country, do not have documents or did not claim asylum immediately would routinely be designated as group 2 refugees. The clause goes on to set out how the length of limited leave, access to indefinite leave, family reunion and access to public funds are likely to become areas for discriminating against group 2 refugees.

The Opposition strongly argue that such an approach is deeply flawed and fundamentally unfair. Furthermore, the attempt to create two different classes of recognised refugee is inconsistent with the refugee convention and has no basis in international law. The refugee convention contains a single, unitary definition of refugee, which is found in article 1A(2). That defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition and is not excluded is a refugee and entitled to the protection of the refugee convention. We heard in evidence from the United Nations High Commissioner for Refugees representative to the UK that in her opinion this clause and the Bill were inconsistent with the UN convention and international law.

[Anne McLaughlin (Glasgow North East) (SNP)]

The hon. Gentleman mentions the UNHCR, which is the guardian of the refugee convention. Does he agree with me that on that basis, if we are to listen to anybody’s opinion about this issue, it would be the UNHCR and that should be therefore the final word on it?

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[Bambos Charalambous]

The hon. Lady makes an excellent point. It is not just the UNHCR. It is the custodian of the UN refugee convention, so we should listen to what it says, but many other commentators across the board have commented on how this clause and the Bill breach international law, and we need to heed what they say. I have yet to see the Government’s legal advice that says that they do comply with international law, but hopefully that will be available.

I will set out for the Committee the reasons why the distinction between groups of refugees is so unfair and inhumane. I will start by addressing the issue of distinguishing between refugees on the basis of how they arrived in the UK. By penalising refugees for how they were able to get to the UK, the Bill builds walls against people in need of protection and slams the door shut on many seeking a safe haven. Most refugees have absolutely no choice about how they travel, as people on all sides of the political divide understand.

Do the Government seriously intend to penalise refugees who may have found irregular routes out of Afghanistan? In fact, Government Ministers have been on national news programmes in recent weeks, urging such a course of action for those wishing to flee Afghanistan. Are the Government saying that people are less deserving of our support if they have had to take dangerous journeys? Is an interpreter from Afghanistan who took a dangerous journey to our shores less deserving than a refugee who was lucky enough to make it here on one of the flights out of the country?

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

Does my hon. Friend share my concern that those who fought alongside or were trained by UK forces, or who guarded our diplomatic personnel in Kabul, were betrayed in being left behind and are being doubly betrayed by the provisions in the Bill?

[Bambos Charalambous]

My hon. Friend makes an excellent point, and he is absolutely right. People linked to my constituents are Chevening scholars who were told to go to Kabul airport. They got no assistance and are still stuck in Afghanistan, with no way to get out. It is deeply concerning, and they feel let down.

It clearly makes no sense to seek to penalise and, in some cases, even criminalise those who have been forced to take dangerous journeys. In our view, it is an insidious way of dehumanising a group of people who deserve our support—it is victim blaming of the most crass and immoral type. Penalising people for how they have arrived in the UK has particular implications for already vulnerable groups of refugees, such as women and those from LGBT communities. Women are often compelled to take irregular routes to reach safety, as we can see only too clearly in Afghanistan. There are simply no safe and legal routes that exist. Even the Government’s much-vaunted resettlement scheme relies on women escaping from a regime in which they are forbidden to walk around freely in the streets.

In many cases, even if the Government created new safe routes from dangerous parts of the world, they would simply not be available to all those in need of protection. Many women would not be able to safely reach an embassy or cross a border to access a resettlement programme, if those routes did indeed exist. Some women would be able to disclose their need for protection only once they reached a country that they considered safe. Under the proposed changes, however, women who arrive irregularly, including through a safe third country, would be penalised. Furthermore, a woman could be prosecuted, criminalised and imprisoned for one to four years. All these obstacles apply to those from LGBT communities as well. We simply ask the Government: how on earth does this draconian and inhumane treatment of vulnerable groups sit alongside British values of fairness?

Another huge flaw in this part of clause 10 is that many of the journeys facilitated by people smugglers are undoubtedly dangerous. Much attention has been directed by the Home Secretary and certain sectors of the press to the minority of people who enter the UK’s asylum system via boat crossings of the channel. However, that is far from the only dangerous journey that is made to enter the UK; the Home Secretary emphasised that when referring to the tragedy of the 39 Vietnamese people who lost their lives in a container found by Essex police in 2019.

Again, as the Home Secretary identified in her speech, the dangers are not limited to the journeys but are also a feature of the violent and exploitative treatment by people smugglers, traffickers and other abusers. Moreover, many of the people who make dangerous journeys to reach the UK from the continent will already have made dangerous journeys by land and sea, including across the Mediterranean.

The fallacy of the Government’s position in penalising people for making irregular routes to the UK is the same as the fallacy inherent in the stated objective of breaking the business model of people smugglers. Unless the Government can provide safe routes—they plainly have not done so in the case of Afghanistan and elsewhere—penalising people for making unsafe journeys is simply cruel. By not providing safe routes, the Government are also fuelling the business model of people smugglers and then penalising the victims they have a responsibility for creating. Do they not understand or are they simply willing to turn a blind eye? In America in the 1920s, prohibition drove the sale of alcohol underground, and a similar thing will happen here: more people smuggling will take place rather than less. The Government are fuelling the people smuggling business model.

It appears that Ministers and those advising them do not appreciate the compulsion to make these journeys, which is strange because they clearly acknowledge that the journeys are very dangerous and sometimes fatal. They are often highly traumatic, physically and mentally, and generally involve at some point extremely violent and cruelly exploitative people.

To give one example, it has long been documented that there is a practice among the women and girls seeking to cross the Mediterranean from Libya of taking contraceptive medication prior to the journey. That is because those women and girls anticipate that they will be raped. Do Ministers have any idea of the desperation involved in making the decision to take such medication? It is clear that although the women and girls fully understand the danger involved in the journeys, they are still compelled to make them, because the alternative of not doing so is even worse.

If people truly had a reason to believe that they were or would be safe where they are, they would not make the journeys. Simply making the journey more dangerous or the asylum system more unwelcoming will not change that. A salutary lesson ought to be taken from the example in 2014 when pressure from the EU, then including the UK, led to Italy’s decision to abandon its organised search and rescue operations in the Mediterranean. The immediate impact over several months before the Government relented was a huge increase in the number of people dead. The need for the journeys had not changed, so the journeys continued. The dangers of the journeys were greatly increased, so hundreds more people lost their lives. Discriminating against refugees obliged to arrive spontaneously will not prevent desperate people from making dangerous journeys. There is strong evidence that a policy focused on closing borders forces migrants and refugees to take more dangerous journeys and leaves them more vulnerable to traffickers.

That brings me to section 2(a) of the clause, which states that group 1 refugees must have

“come to the United Kingdom directly from a country or territory where their life or freedom was threatened”.

In other words, the Government are setting an expectation that to be a refugee who is supposedly deserving of the support usually afforded, the UK must be the first safe country in which they have sought asylum. I cannot state strongly enough how requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian and co-operative principles on which the refugee system is founded. The UK played a key role in developing those principles 70 years ago when it helped draft the refugee convention, and, together with the other members of the United Nations General Assembly, it recently reaffirmed them in the global compact on refugees.

The proposed clause designed around the maxim that asylum seekers should claim asylum in the first safe country they reach and can be penalised if they do not, including by being designated as group 2 refugees, will impact not only refugees but fellow host states and the ability to seek global, co-operative solutions to global challenges.

The expectation that refugees should claim asylum in the first safe country they reach is also unworkable in practice. The Government are aware that there are 34.4 million refugees and asylum seekers worldwide, and the vast majority—73%—are already hosted in countries neighbouring their countries of origin. Some 86% are hosted in developing countries. Low-income countries already host 86% of the world’s refugees compared with the UK, which hosts just 0.5%. To insist that refugees claim asylum in the first safe country they reach would impose an even more disproportionate responsibility on the first safe countries both in Europe and further afield, and threaten the capacity and willingness of those countries to provide protection and long-term solutions. In turn, that would overwhelm the countries’ hosting capacity and encourage onward movement.

It is also worth noting that even within Europe most of the countries that refugees pass through on their way to the UK already host significantly more refugees and asylum seekers per population than the UK does. According to the Home Office’s own statistics, the UK is 17th in terms of the numbers it takes, measured per head of population.

[Mike Wood (Dudley South) (Con)]

Does the hon. Gentleman recognise that very few other countries resettle as many refugees as the United Kingdom or take as many through safe channels from United Nations camps in some of the most troubled parts of the world?

[Bambos Charalambous]

Since Dublin 3 ended, there are very few resettlement routes available. That is one of the problems. Unless there are safe resettlement routes, we are just fuelling dangerous journeys.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is repeatedly asserted that the UK has an exceptional record in terms of resettlement. It has a decent one; it is about mid-ranking in the European Union, in terms of the number it has taken per head of population over the years. Similarly, it is mid-ranking in terms of the number of asylum cases it assesses. It is good, but it is not exceptional and it is not a justification for the measures in this Bill.

[Bambos Charalambous]

The hon. Gentleman is absolutely right. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the UK.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

As we have already discussed, the majority of the people who come to our shores come from France. There is a safe route from France. Is the hon. Gentleman suggesting we should give these people Eurostar tickets?

[Bambos Charalambous]

France takes three times more asylum seekers than the UK, as does Germany. As I mentioned, the UK is 17th by population in the number of asylum seekers it takes. The right hon. Gentleman is being slightly disingenuous. There are many other countries—Lebanon, for instance, has taken 1.9 million refugees from Syria. Jordan has taken 1 million over the last 10 years. Turkey has taken 4.3 million refugees. We are talking about a tiny fraction of those numbers. I think we need to stand up and take our share of the refugees. These countries will collapse if they are forced to take refugees because they neighbour countries where there is conflict.

[Neil Coyle]

Does my hon. Friend agree that there is a bit of a dichotomy here? People talk up the tradition and reputation of the UK at the same time as presenting legislation that undermines that reputation. Does my hon. Friend share my concern that global Britain seems less compassionate, less generous and less Christian than the Great Britain that proudly helped draft the refugee convention?

[Bambos Charalambous]

My hon. Friend makes an excellent point. The refugee convention was enshrined in UK law in 1954 when Winston Churchill was the Prime Minister. It was one of his beliefs, and that of the Government of the day, that it was a very important part of the UK’s global position in the world. We should not do anything that would trash our reputation, because we will all be diminished by that.

The clause makes no practical or moral sense at all. Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. As Members across the political divide know, most refugees are hosted in developing countries and the UK receives fewer asylum applications than most other European countries. Furthermore, it is an important aim of the refugee convention that there should be no penalisation of refugees who arrive irregularly. It is very important to make that point and to repeat the point that the refugee convention does not state that refugees must claim asylum in the first safe country they come to; it permits refugees to cross borders irregularly to claim asylum.

Let me give the Committee an example to illustrate why this part of the refugee convention is so vital. This is a real-life scenario that faced a refugee to the UK, who, in this situation, I am going to call Aaron.

Aaron is a refugee who travelled to the UK via other countries. He was a young teenager when he had to leave Eritrea without his family. His father had been conscripted into the country’s brutal military service and came home to see his family. When he left again, he told his family that he was going back to his base, but he never showed up there. The family did not know anything about his whereabouts. The military came to Aaron’s house looking for his father and told Aaron’s mother that they would take her children, including Aaron, if they could not find his father. Aaron had no choice but to leave. He says:

“People really suffer. They don’t want to leave their country but their country forces them because military service in Eritrea is the worst thing. You have to serve the military forever. There is no life, there is nothing.”

He left Eritrea and spent two years looking for safety before arriving in the UK. He travelled via Sudan and Libya, both of which were very dangerous. He then went to Italy, where he felt unsafe sleeping outside under bridges, and to France, where he ended up in the Calais jungle. He explained:

“They didn’t treat us like human beings”,

Aaron came to the UK in the back of a lorry. “I wasn’t expecting anything,” he remembers,

“I just escaped to keep my life, to be safe. That’s the most important thing.”

He was initially refused asylum and had to submit a fresh claim. He was in the UK asylum system for seven years before finally being recognised as a refuge—and as having been one all along. He now plans to study IT.

Under international law, the primary responsibility for identifying refugees and affording international protection rests with the state in which an asylum seeker arrives and seeks that protection. The idea of seeking asylum in the first safe country is unfair, unworkable and illegal in international law.

That brings me on to the suggested strictures on group 2 refugees in clause 10(6), which sets out a non-exhaustive list of ways in which refugees who arrive irregularly may be treated differently, with reduced leave to remain, more limited refugee family reunion rights, and limited access to welfare benefits. The explanatory notes for the Bill state:

“The purpose of this is to discourage asylum seekers from travelling to the UK other than via safe and legal routes. It aims to influence the choices that migrants may make when leaving their countries of origin—encouraging individuals to seek asylum in the first safe country they reach after fleeing persecution, avoiding dangerous journeys across Europe.”

However, the Government have provided no evidence to show that the stated aim will result from the policy.

Evidence from many refugee organisations suggests that refugees seek asylum in the UK for a range of reasons, such as proficiency in English, family links or a common heritage based on past colonial histories. Many sector organisations have told us that refugees do not cite the level of leave granted or other elements of the asylum system as decisive factors. In fact, it seems likely that those are not even details refugees would tend to be aware of.

However, the proposed strictures will certainly result in a refugee population who are less secure, because they have a shorter amount of leave and are less able to integrate because they have reduced access to refugee family reunion. They will punish those who have been recognised, through the legal system, as needing international protection—girls fleeing the Taliban in Afghanistan, Christian converts fleeing theocracy in Iran or Uyghurs fleeing genocide in China.

These strictures are likely to retraumatise people who have already been subjected to horrific abuse. To take one example in more detail, clause 10(5) gives the Home Secretary broad discretion to set the length of any limited period of leave given to group 2 refugees, such that they may be indefinitely liable for removal. Both the new plan for immigration and the Bill’s explanatory notes confirm that group 2 refugees who have a well-founded fear of persecution will be given only temporary protection status—no more than 30 months, according to the new plan—after which they will be reassessed for return or removal. The extreme uncertainty that this will cause, along with the inability for people to move forward with their lives, is tantamount to inflicting mental cruelty.

The explanatory notes also state that 62% of asylum claims in the UK up until September 2019 were from people who entered irregularly. This means the policy intention is to impose strictures on the rights and entitlements of the majority of refugees coming to the UK, even though we take fewer than comparable countries, as has been noted.

Furthermore, these strictures would deny recognised refugees rights guaranteed to them under the refugee convention and international law. They would also create a series of significant civil and criminal penalties that would target the majority of refugees who will seek asylum in the UK. Those penalties would target not just those who had entered the UK irregularly or who had made dangerous journeys, but all those who have not come directly to the UK—regularly or irregularly—from a country or territory where their life or freedom was threatened; those who have delayed claiming asylum or overstayed; and even those who arrive in the UK without entry clearance and who claim asylum immediately.

In short, these strictures can only be seen as cruel and as a way to obstruct integration. Barriers to resettlement in the UK would force refugees to live under the perpetual threat of expulsion, denied a chance to rebuild their lives. Subjecting refugees to no recourse to public funds conditions would leave refugees vulnerable to destitution and exploitation. Meanwhile, reducing family reunion rights interferes with the right to family life, and is cruel. It constitutes a reduction of safe, managed routes for people seeking sanctuary.

I will now look in more depth at the practical consequences of the strictures of group 2 status that have just been outlined. It is worth stating that this clause envisions that group 2 status will be imposed on recognised refugees—people who are at risk of persecution, who have been forcibly separated from their homes, families and livelihoods, and who in many cases have suffered trauma. The mental health challenges they face are well documented, yet this clause will stigmatise them as unworthy and unwelcome, and if the intentions expressed in the explanatory notes were carried out, it would maintain them in a precarious status for 10 years, deny them access to public funds unless they were destitute, and restrict their access to family reunion. Multiple studies have shown that that precarious status itself is a barrier to integration and employment, yet despite these challenges, the Bill would specifically empower the Secretary of State to attach a no recourse to public funds condition to the grant of leave to group 2 refugees, and according to the explanatory notes their status

“may only allow recourse to public funds in cases of destitution.”

The adverse consequences of no recourse to public funds conditions will fall not only on the refugees themselves, but on their families, including children who travel with them, who are able to join them later or who are born in the UK. Those consequences have been documented in numerous studies, as well as in the context of litigation. They include difficulty accessing shelters for victims of domestic violence; denial of free school meals where those are linked to the parents’ benefit entitlement; and de facto exclusion from the job market for single parents, largely women, who have limited access to Government-subsidised childcare, as well as significant risks of food poverty, severe debt, substandard accommodation and homelessness. These consequences in turn hinder integration and increase the financial cost to local authorities, which in many cases have statutory obligations towards children and adults. The Home Office’s own indicators of integration framework identifies secured immigration status as a key outcome indicator for stability, which is

“necessary for sustainable engagement with employment or education and other services.”

It is also worth noting that among the public relief measures defined as public funds in this context are those specifically intended to support children, such as child benefit, and the particularly vulnerable, such as carer’s allowance and personal independence payments. Moreover, children born to group 2 refugees in the UK normally have no right to British nationality for 10 years, or until their parents are granted settlement; given that refugees may put their status and perhaps their security at risk were they to approach the embassy of their country of origin to register their children, many would have no effective nationality at all. With the possibility of applying for family reunion foreclosed, more women and children are likely to attempt dangerous journeys, either at the same time as the men who might previously have sponsored them under current laws, or joining them afterwards. That risk has been recognised by the Council of Europe, among others, and has been borne out in Australia, where the abolition of family reunion rights for holders of temporary protection visas was followed by a threefold increase in the percentage of refugees trying to reach Australia who are women and children.

I will now turn in more detail to how clause 10 contravenes the refugee convention. As a party to the convention, the UK has a binding legal obligation towards all refugees under its jurisdiction that must be reflected in domestic law, regardless of the refugee’s mode of travel or the timing of their asylum claim. The obligations in the convention are set out in articles 3 to 34. They include, but are not limited to, the following obligations that are directly undermined by clause 10: providing refugees who are lawfully staying in the country with public relief on the same terms as nationals, which is article 23, and facilitating all refugees’ integration and naturalisation, which is article 34.

The Bill is inconsistent with those obligations in at least three significant ways. First, it targets group 2 refugees, not only for unlawful entry or presence but for their perceived failure to claim asylum elsewhere or to claim asylum promptly, even if they entered and are present in the UK lawfully. Secondly, it would empower the Secretary of State to impose a type of penalty for belonging to group 2 that is at variance with the refugee convention: namely, the denial of rights specifically and unambiguously guaranteed by the convention to recognise refugees. Thirdly, it would empower the Secretary of State to impose a penalty on group 2 refugees that would be inconsistent with international human rights law: namely, restrictions on their rights to family unity. There are many other ways in which the Bill as a whole contravenes the refugee convention in clauses other than clause 10, as we will discuss in later debates.

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[Neil Coyle]

Does my hon. Friend share my concern that, once again, the Government will extend the number of people in the UK subject to no recourse to public funds conditions, requiring emergency support from councils and creating a new burden for local authorities of every political colour up and down the country, which will have to provide millions more pounds in support, when people could be supporting themselves and moving on with their lives?

[Bambos Charalambous]

My hon. Friend is exactly right. The burden will fall on all local authorities looking after asylum seekers and their families; they will have no choice but to provide that service. The Government have stayed silent on what provisions they will make for local authorities. I am not sure how far they have even consulted local authorities as to whether they accept what has been proposed.

Clause 10(6) would give the Secretary of State the same power to discriminate against family members of group 2 refugees. At present, the Secretary of State’s powers in that regard are constrained by section 2 of the Asylum and Immigration Appeals Act 1993, which states:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention”,

which would appear to preclude the adoption of some of the immigration rules set out in the explanatory notes.

It is worth restating that nothing in the refugee convention defines a refugee or their entitlements under the convention according to their route of travel, choice of country of asylum or the timing of their asylum claim. The Bill is based on the premise that

“people should claim asylum in the first safe country they arrive in”.

That principle is not found in the refugee convention, and there is no history of it in the convention.

[Mike Wood]

The shadow Minister says that there is no history of distinguishing between refugees depending on their route into the country, but that was not the approach taken by the previous Labour Government with the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Baroness Scotland said:

“When a person leaves their country through fear, we consider that, as a general principle, such a person should seek protection in the first safe country where they have the chance to do so. It has been said that nowhere in international law is such a requirement imposed. There may not be such a law, but that does not dilute the argument that a person who is in genuine fear should seek shelter at the earliest opportunity.”—[Official Report, House of Lords, 5 April 2004; Vol. 659, c. 1683.]

She was right, wasn’t she?

[Bambos Charalambous]

I do not know the context in which Baroness Scotland said that, but I disagree with her. I very much believe that that would have been breaching international law, as I have stated throughout my speech.

[Neil Coyle]

Perhaps Government Members would have greater standing on the issue if they were not betraying their own manifesto and cutting aid to countries where people might be able to seek support or stay longer if UK support was not retracted.

[Bambos Charalambous]

My hon. Friend makes an excellent point.

[Mr Goodwill]

Just for the record, did the hon. Member for Enfield, Southgate just say that the last Labour Government was breaking international law?

[Bambos Charalambous]

Nice try. No, I did not say that.

The clause represents a fundamental change to the principle of refugee protection in the UK, introducing a two-tier system where any refugee reaching the country who has not benefited from a place on a resettlement programme may have their claim deemed inadmissible and be expelled to another country, or eventually granted temporary status with restricted rights to family reunification and financial support.

It is worth pointing out here that the UNHCR, the guardian of the 1951 refugee convention and the 1967 protocol relating to the status of refugees, tells us that the core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. That is now considered a rule of customary international law. Clause 10 therefore represents the shameful undoing of the commitment to the refugee convention and the British values that led to that commitment in the first place.

[Anne McLaughlin]

It is clear to all on the Opposition Benches that if this goes ahead, we will be breaching our international legal obligations. Does the hon. Gentleman share my concern that in doing so, the damage done both to the UK’s reputation as a global legal centre and to its trade strategy will be immense, at a time when we really need to find new trading partners?

[Bambos Charalambous]

I very much share those concerns. It is clear that some countries wishing to trade with the UK may also insist on certain measures in relation to visas and access, and in some of the new clauses tabled by the Government more recently there is a suggestion that they would be willing to withdraw visas to some countries. I do not know who they have discussed it with, but that seems contrary to the intention of trading with other nations.

There is no doubt, therefore, that the clause stands in clear contravention of the refugee convention—no small thing, given that the convention, sometimes known as the Geneva convention of 1951, anchors the status of refugees in international law. Around the most desperate and terrorised people on earth, the convention throws the shield of international protection. Since the horrors of the second world war, it has been an article of faith for every decent society, as required today as it was 70 years ago by all those fleeing war, torture and persecution of all kinds, and by all those women and girls who undertake their journey in the knowledge that they may well be raped en route to finding safety.

The Opposition are clear that accepting this clause would set a dangerous precedent by creating a two-tier system for refugees that is deeply inhumane. Furthermore, we hold that its consequences, intended or not, would undermine our binding legal obligations to all refugees. We oppose it because we believe the 1951 convention and all that goes with it speaks profoundly to the core values of the British people. Given the multiple, deeply negative consequences of the clause—mental ill health, poverty, debt, substandard accommodation and homelessness, to say nothing of the financial costs to local and national Government—it should be removed from the Bill.

In short, group 2 status is not only inconsistent with the refugee convention; it is a recipe for mental and physical ill health, social and economic marginalisation and exploitation. The human cost to refugees and their families, including their children, is obvious enough, and it should shame us that this Bill would actively cause harm if clause 10 is adopted. We will oppose clause 10 stand part.

[Paul Blomfield (Sheffield Central) (Lab)]

I congratulate my hon. Friend the Member for Enfield, Southgate on his comprehensive critique of clause 10. I want to add only a few points on what is clearly at the heart of the Government’s approach in this Bill: seeking to create a hostile environment for refugees and splitting them into the two groups of which my hon. Friend spoke.

I was interested to hear the Minister talk earlier about the Bill as just one part of a multifaceted approach to tackling the problem, of which international diplomacy was at the core. I would welcome his reflections, when he comes to make his remarks, on how far he thinks our position in international diplomacy is strengthened by a Bill that the UNHCR, the guardian of the 1951 convention, denounces in clear terms as

“The creation of an unlawful two-tier system in which most refugees are denied rights guaranteed by the Refugee Convention and essential to their integration”.

I think that our position in terms of how we play our cards in international diplomacy will be weakened by setting ourselves against the international community. This proposal appals all organisations that have worked with those coming to our country to flee war, terror and persecution, and Labour shares their view. However, I appreciate that this Government, in contrast with previous Conservative Administrations, revel in setting themselves against the international consensus and are happy tearing up treaties to which they have been signatories.



We should examine the clause in the context of the Government’s own objectives. They say it is part of a deterrent to break the business model of people smugglers by dissuading those seeking asylum from taking what the Government consider to be irregular routes. We are all agreed on the objective of breaking the appalling business model of people smuggling and we all agree that we want to end the situation that leads people to take the most desperate journeys across the channel. As I said earlier, and clearly the Minister struggled to respond to that point, even the Government’s own impact assessment says,

“evidence supporting the effectiveness of this approach is limited.”

I know that he had a problem with evidence when we were talking about clause 9 under part 1.

--- Later in debate ---

[Bambos Charalambous]

The hon. Gentleman talked about the broken asylum system, but we actually have more people working in it and processing fewer cases. May Bulman, the journalist from The Independent, wrote an article recently in which she identified 399 people who have been waiting 10 years for their asylum claim to be processed. How can it be that the system employs more people but is processing fewer claims? How can it be allowed that people are waiting 10 years for their claims to be processed? That is the broken system. If it were a business, it would be bankrupt.

[Jonathan Gullis]

The issue is that we inherited a ruinous backlog from the Labour Government, and we have gone through a multitude of challenges recently—covid, for example, which brought the very challenging situation of working from home. I understand—I am a constituency MP like everyone else. We all do our bit and write to the Home Office. We get frustrated by the time that certain cases can take to process, but ultimately, we are trying to fix the system. That is one strand, and there are other parts of the Bill that we will examine, such as offshoring, which I support. There are other methods to help to deal with the backlog and speed up the processing of asylum claims.

I am more than happy to welcome genuine asylum seekers; what I am unhappy about is the illegal economic migrants continually crossing our channel, coming to our shores and costing millions of pounds to the British taxpayer, and the lawyers obsessed with taking money out of the British purse to stop people being deported. Let us not forget, there are convicted criminals dragged off the plane at the last minute, leaving the UK taxpayer to pick up the tab. They are criminals who should not be here and rightly should be deported. Sadly, I see too many Labour Members celebrating those lawyers’ work to prevent those people from being deported from our country. It is a very sad state of affairs to see those letters written to the Home Secretary. I hope clause 10 will stay as is and will be a part of a wider strategy to deter.

--- Later in debate ---

[Tom Pursglove]

One thing that occurred to me throughout the debate was why any Member of this House would feel that it was necessary for anyone to get into a small boat on the French coastline in order to come to the United Kingdom. France is without doubt a safe country, and I like to think that we could recognise that across the House. Those journeys are completely unnecessary against that backdrop. I am staggered that that point is not recognised more widely. Based on some of the remarks we have heard, one might think that that was not the case. In my mind and those of my colleagues, there is absolutely no need for anyone to get into a small boat to try and cross the English channel or to take irregular journeys.

On the point about what this relates to, the principle is fundamental in the common European asylum system. Without enforcement of it, we simply encourage criminal gangs and smugglers to continue to exploit vulnerable people, and I make no apology for my determination, and that of the Home Secretary and the Government as a whole, to bring these evil criminal gangs to justice and to stop the dangerous channel crossings. We have to stop them, for the reasons that my hon. Friend the Member for Stoke-on-Trent North alluded to. We have a moral obligation to do that, and that is what the measures in the Bill, and the wider package of measures that we talk about very often in the House, are seeking to achieve.

[Bambos Charalambous]

The clause does no such thing. It actually encourages people to make unsafe journeys and to contact criminal gangs, because there are no safe routes. That is the crux of it. If safe routes were available, fewer people would make the journeys, but nothing that the Government have said creates any safe routes. Since Dublin III ended, there are no safe routes for people to come to the UK to claim asylum.

[Tom Pursglove]

I am afraid that I just do not accept that characterisation. As I have said on several occasions in Committee, we continue to resettle genuine refugees directly from regions of conflict and instability, which has protected 25,000 people in the last six years—more than any other European country. It is central to our policy that we advocate safe and legal routes and put them at the heart of our policy making. I have talked about several of them. Of course, this is something that we keep under constant review as the international situation evolves and as needs require. I have no doubt that that will continue to be the approach that we take—establishing routes that are appropriate to the circumstances that we find ourselves in.

--- Later in debate ---

[Stuart C. McDonald]

I am grateful, because that clarifies the issue. Amendment 104 is in the name of our Labour colleagues, but it has our full support. It makes the point that it is essential that accommodation centres are not de facto detention centres or prisons, in the way that Napier has been, with basic liberties and freedoms more theoretical than real. It raises a crucial question about how we can ensure that such places have accountability and oversight.

The Government will be using sections of the 2002 Act that are not yet in force to implement many of their policy goals, but there is still dubiety about precisely which ones. Section 33 of the Act would have created advisory groups for each accommodation centre, with powers to hear complaints from residents and report to the Home Office. Is that section to be commenced? If not, what alternatives do the Government propose to ensure that such centres are subject to appropriate oversight? I will leave it to the shadow Minister to flesh out that point.

Amendments 102 and 160 take us back to how the Home Office engages—or, rather, does not engage—with other tiers of Government. The Minister was perhaps asleep at the wheel earlier, because his answer was short on detail about engagement with local authorities, and in particular, the devolved Administrations. I accept that asylum is reserved, but these institutions touch on all sorts of powers and services that are the remit of devolved Governments and Parliaments or local authorities, including planning policy and the provision of health, social or other welfare services and education services. In particular, consistent with our championing of local government autonomy and the idea that local government should be seen as a partner rather than an assistant of the Home Office, amendment 102 demands that these centres not be built in a local authority’s territory without consent from that local authority.

The way in which local councils were treated in relation to both Napier and Penally was disgraceful. The Home Office did not even consult Folkestone & Hythe District Council and Kent County Council about the extension of planning permission at Napier because, it said, of urgency, and yet as the House of Lords Delegated Powers and Regulatory Reform Committee notes, it must have known for at least 12 months that planning permission would have expired. It had 12 months in which to carry out consultation, but that was still the excuse.

As I said at the outset, we pose all these questions with a view to ascertaining what precisely the Government intend and why there are not greater constraints in the Bill, but ultimately we believe that this is not the right direction of travel. We support community dispersal—improving that system, making it work better, and involving more councils. We hope that the Government come back to that view and make that system work instead.

[Bambos Charalambous]

I will speak to the three amendments that are in my name and the names of others, but I will start by speaking to amendment 104.

No one on this Committee can fail to have seen the extremely worrying track record of the Government when it comes to accommodation for asylum seekers. The appalling headlines in connection with Napier Barracks cannot have failed to reach anyone who takes any sort of interest in the news. We are deeply concerned, therefore, that in clause 11 there are provisions for creating asylum accommodation centres. The clause suggests a possible wide-scale replication of the type of accommodation seen at Napier Barracks. That is because clause 11 gives the Government powers to house different groups of asylum seekers in undefined accommodation centres. It seems that these centres will involve congregated living in hostel-type accommodation, which has been shown to be unsuitable to house people in the asylum system for long periods. Such a move away from housing in the community is likely to impede integration prospects and will make access to needed support and services more difficult.

Clause 11 also creates new powers to provide different types of housing—namely, accommodation centres—for those at different stages of their asylum claim, including those with “inadmissible” asylum claims. The rationale given in the explanatory notes to the Bill is that that will

“increase efficiencies within the system and increase compliance”,

although again no evidence is given to support that claim.

The term “accommodation centre” is not clearly defined, although the implication is that it will mean that more people seeking asylum will be living in large-scale congregated settings. It is important to state clearly that this represents a wholescale move away from the current dispersal system, whereby people live in homes in the community across the country.

There is therefore a clear indication that the Government are seeking to replicate the kind of inhumane accommodation that we have seen at Napier. As I will set out, this prison-like, isolated and dystopian accommodation provides an extremely poor environment for engaging with asylum claims. There is strong evidence that such accommodation is likely to retraumatise extremely vulnerable people and hinder future integration.

The Government may seek to deny that a punitive approach is part of their agenda, but such a denial would not tally with the actions of the Home Secretary in August, when she visited the notorious reception centre on the Greek island of Samos; campaigners have described it as “prison-like” and “inhumane”. It is shocking that, having visited the Greek reception centres in the summer, the Home Secretary appears to wish to emulate the system whereby more than 7,500 refugees, including 1,700 children, are being detained in refugee camps in unsanitary and inhumane conditions.

However, the evidence that that is indeed the intention seems clear, because in August the Home Secretary also published a prior information notice for the procurement of new accommodation centres, with initial submissions invited by the end of September 2021. The details of the tender are subject to commercial confidentiality and therefore the details are known only to potential contractors who have signed non-disclosure agreements. What is public is that the contract is to be delivered in accordance with part 2 of the Nationality, Immigration and Asylum Act 2002, and it is stated that it is for housing up to 8,000 people for periods of up to six months. The tender raises serious concerns about how that approach will interact with provisions set out in clause 11, given that contracts will be awarded before the Bill receives Royal Assent. There are also clear concerns about how accountability and standards can be maintained in asylum accommodation when there is no public access to these contracts.

It is also worth stating for the record that since April 2020, the Home Office has been using two large-scale accommodation centres for asylum-seeking men who have arrived in the UK by boat—Napier barracks in Kent, and the Penally camp in Wales, which is now closed. A report by the all-party parliamentary group on immigration detention noted that, although legally speaking, those are not detention centres, they none the less replicate

“many of the features found in detained settings—including visible security measures, shared living quarters, reduced levels of privacy, and isolation from the wider community”.

Our amendment would take away the detention element of those accommodation centres, as we feel that those de facto detention conditions are completely cruel and wholly inappropriate, and will hinder future integration.

[Neil Coyle]

It is not just the detention centres. The Government seem to have learned nothing from Napier. Most recently, they put 500 men in a 73-bed hostel in my constituency.

[Bambos Charalambous]

That is deeply concerning and shows that the Government have not learned any lessons from Napier.

Before I come to the specifics of the amendment, I will first set out exactly why the Government’s record on Napier barracks, alongside the provisions in clause 11, sets such alarm bells ringing. In doing so, I will demonstrate why the amendment is so necessary.

Organisations from the refugee sector that have worked with people held in Napier have identified and documented the following conditions:

“A pattern of spiralling mental health among people placed at Napier. Many people arrive already struggling with self-harm and/ or suicidal ideation, so this is a profoundly harmful context for them.

Chronic sleep deprivation among residents at Napier.

Conditions that are cold and dirty and afford no opportunity for privacy or social distancing.

An isolated and prison-like setting.

A total lack of mental health support onsite; very minimal healthcare onsite, and problems for residents in accessing healthcare in the community.

A sense among residents, in line with HMIP’s observation, of being trapped on site.

Profound vulnerabilities and histories of trauma among residents at Napier are not always obvious on the surface and can be difficult for individuals to disclose in general. Napier is then a very poor context for disclosure, as the prison-like setting is not conducive to building trust. We are therefore concerned that it is not possible to create a screening mechanism for Napier that would pick up all relevant vulnerabilities.

There is very little communication with residents about their asylum case.

Additionally, it is very difficult for individuals to access adequate legal advice, and they frequently go ahead with asylum interviews without having consulted a legal adviser. Virtually no one placed at Napier is able to access face to face meetings with legal advisers, and this seriously obstructs identification and disclosure of trauma.”

Residents of Napier and Penally who have given evidence to the APPG on immigration detention have described the Napier and Penally sites as feeling “prison-like”. Prison conditions have a traumatising effect on people who are already vulnerable as a result of previous experiences that have forced them to seek protection. Ministers must surely be aware that there are bound to be serious concerns about the potential use of such draconian accommodation centres for asylum-seeking men.

[Tom Pursglove]

I might be able to help the hon. Gentleman. The accommodation centres that we are proposing are not detention centres. Individuals can leave the centres at any time—they may have obtained accommodation with friends or family, for example.

[Bambos Charalambous]

I welcome the Minister’s comments, but it would have been helpful if that information had been provided beforehand, because we are still in the dark about what the accommodation centres will be like.

[Holly Lynch (Halifax) (Lab)]

While acknowledging the Minister’s point, Napier and Penally barracks may not have been detention centres, but a number of freedoms and rights were impeded at those sites, and that is why we need to press this point.

[Bambos Charalambous]

My hon. Friend makes an excellent point. She is absolutely right: even if rights are only restricted, that is not acceptable.

[Neil Coyle]

On a quick point of clarification, I said “500 men in a 73-bed hostel”, but that is certainly not what the Home Office has done in my constituency. They are 73-bed rooms.

The Minister has made a claim that is not the lived reality of the people the Home Office has placed in my constituency, including those 500 men. They have stewards, in effect, who have been telling those people not to leave hotel and hostel accommodation. They were not provided with interpreters; they were not provided with any means of accessing the internet; and the Government have prevented inspectors from going in, including Bishop Paul Butler and the Refugee, Asylum and Migration Policy project, who were promised access to Napier barracks and other accommodation by Ministers. The Government have rescinded that commitment. Perhaps the Minister could tell us why bishops and others are being kept out? What are the Government trying to hide?

[Bambos Charalambous]

My hon. Friend is right about those conditions not being conducive to being able to make a claim with any confidence or certainty.

I was talking about asylum-seeking women. As we highlighted in the debate on clause 10, many such women are survivors of rape and other forms of gendered violence, and such large-scale accommodation is characterised by a lack of privacy. The APPG on immigration detention further notes that at Napier and Penally,

“The lack of private space was also forcing residents to hold sensitive discussions, for example with lawyers, within earshot of other residents and/or staff.”

For many asylum-seeking women who have experienced rape and other gender-based violence, disclosure of their previous experience can be very difficult as a result of the shame and stigma they feel. Accommodation centres lacking privacy is likely to have a specific impact on them, and make it particularly difficult for them to get their claims to protection recognised.

Coupled with that, the punitive detention-type elements of the centres as they are currently run are likely to be retraumatising. We are therefore deeply concerned that clause 11 seeks to expand inappropriate large-scale detention-style accommodation centres. In short, it seems like a way of actively inflicting increased harm on already vulnerable people. Our amendment seeks to ameliorate some of those centres’ worst aspects.

Given everything that has been outlined, it is hardly surprising that the High Court made a damning assessment of Napier barracks. Mr Justice Linden ruled on 3 June 2021 that the accommodation at Napier barracks was inadequate, in that it did not meet the minimum standards required by the Immigration and Asylum Act 1999. Both the process for selecting people to be sent to Napier barracks and the process for monitoring its ongoing suitability while those people were there were flawed and unlawful, and from 15 January 2021, the residents were given an order to not leave the site until they were permitted to do so. The claimants were unlawfully detained, both under common law and the European convention on human rights.

Similarly, the independent chief inspector of borders and immigration and Her Majesty’s Inspectorate of Prisons’ report on Napier and Penally raised a number of serious concerns about Napier, including, inter alia, the following: the screening of potential residents for physical and mental health problems was “wholly inadequate”, with all of those interviewed at Napier reporting feeling depressed and a third feeling suicidal, and extremely poor communication with the people accommodated at Napier. Again, we argue that our amendment is necessary to ensure safeguards that will prevent similar future judgments.

Of course, we know why the Government are taking a more draconian approach to asylum accommodation: it is part of the continuing hostile environment ethos that takes a punitive, negative stance on all matters relating to asylum. Their approach is also clearly fuelled by the misguided idea that taking such a punitive stance will act as a deterrent to those seeking asylum. However, as we stated in the debate on clause 10, there is no evidence that that is the case. Desperate people who are determined to make dangerous journeys will not be deterred when their lives are at stake. The idea that the kind of accommodation awaiting them at the other end has any bearing on people seeking refuge is laughable. People escaping for their lives are not weighing up accommodation in the same way that Ministers might weigh up the merits of a Hilton hotel versus a Travelodge. The idea that making accommodation punitive could in any sense act as a deterrent shows a fundamental misunderstanding of why refugees are prepared to risk their lives to find safety.

However, the kind of accommodation that awaits refugees can do extreme damage if it hinders integration and retraumatises vulnerable people. When the accommodation provided—as in the case of Napier—dehumanises people, puts them in danger of covid-19 and is found to be unlawful, that corrodes the values that make us a civilised society, undermines our reputation as a tolerant and welcoming nation, and gives the nod to some of the most undesirable attitudes that would seek to demonise those in need.

[Neil Coyle]

Does my hon. Friend share my concern about increased criminality by gangs targeting the accommodation to get people involved in criminal activity? That is a direct result of policy from the Department that is meant to oversee law and order.

[Bambos Charalambous]

My hon. Friend is absolutely right. These are vulnerable people, and they are subject to being exploited if appropriate measures are not taken to prevent that from happening. Having them all in one place allows criminals to prey on them.

I come on to the specifics of amendment 104. As I have set out, we have the gravest doubts about the clause. I find it disturbing. Our amendment seeks to ameliorate some of the worst aspects. I will set out each of its aims in more detail.

Presently, persons held in barracks and hotel accommodation are sometimes prevented from entering or leaving their place of accommodation at certain times and some places of accommodation prevent visitors from entering. The amendment addresses this inappropriately draconian situation by inserting proposed new section 22B into the Immigration and Asylum Act 1999. It would qualify that the measure—in new section 22A, which relates to accommodation provided under sections 95A and 98A of the 1999 Act—to allow for the provision of accommodation in an accommodation centre, must allow for persons to be supported to enter or leave the accommodation centre at any time.

Although some controls on entry may be required to prevent persons hostile to residents of accommodation centres from entering, we believe that those held in such centres should be allowed to invite their own visitors. They should also not be precluded from communication with the outside world. The amendment would therefore introduce the right for the supported person

“(b) to receive visitors of their choice at any time; or

(c) to use communications equipment such as telephones, computers or video equipment.”

People working with persons supported in accommodation centres report that some persons in accommodation centres are unaware of their conditions of bail and may not have been provided with the conditions of their bail in writing. That places them at risk of arrest and detention for unknowingly breaching those conditions, or being unable to evidence their identity. The amendment would therefore introduce the provision that persons supported in accommodation centres must be provided with a written document setting out any conditions of bail.

Where controls or restrictions on freedom of movement of supported persons or their visitors are in place, a process for submissions by way of a complaints procedure needs to be in place, and the amendment would introduce a complaints procedure relating to the conditions of the accommodation and a procedure for appealing any decisions that may restrict the person’s freedoms, which will not apply to their bail conditions.

As has been argued, legal action taken against the Government over the suitability of Napier barracks for certain vulnerable groups has shown that the existing system has failed to maintain appropriate safeguards. The possibly widespread expansion of the system that the clause seeks to implement is very alarming and should be deeply concerning to any Member of this House.

The move away from community-based housing is poorly defined. Accommodation centres will unquestionably lower living standards for those seeking asylum. That is not an accident—it is the very design of the Bill and the clause. By the same measure, they will impede integration and advance a more draconian, prison-like setting for asylum seekers, who are, by their very definition, already traumatised individuals. If we do not agree our amendment, asylum seekers will find themselves in cold, dirty, isolated conditions, with all but no support services.

Given the widespread denunciations of the Home Office’s decision to house asylum seekers in Napier barracks, not least by the High Court, it is remarkable that the Government now seek to replicate it elsewhere. It should be noted that Mr Justice Linden criticised what he called the “detention-like” setting for the men there. Our amendment seeks to take away the detention element of the accommodation centres. They are de facto detention centres with prison-like conditions, which are cruel, wholly inappropriate and damaging to the individuals concerned. They can do nothing but increase harm and stress on already marginalised and vulnerable people whom we are beholden to protect under our international treaty obligations.

To speak plainly, the Government have got the wrong end of the stick. Clause 11 helps no one. They will find themselves on the wrong side of history with their ever-more draconian and hostile approach to asylum accommodation and, unamended, this clause starkly highlights that point. Amendment 104 should be supported to rectify that situation and ensure safeguards for the future. It would be utterly shameful if the clause, as it stands, enabled a repetition of the appalling situation at Napier barracks.

Without amendment, clause 11 will undermine the UK’s duty to support and protect those making asylum claims. We believe that the current dispersal system, whereby people seeking asylum live in regular housing in the community, is much better for supporting future integration and ensuring that people seeking asylum are able to access services that they need. We would rather see safeguards in place than the kind of appalling situation seen at Napier.

[Anne McLaughlin]

We heard that the devolved Governments were prevented from taking part in the consultation because it took place during purdah in the run-up to their elections. However, Shona Robison MSP, the Cabinet Secretary for Social Justice, Housing and Local Government in the Scottish Government, wrote a comprehensive response last month, in which she stated:

“This Government is clear that people should be supported to integrate within our communities from day one of arrival in line with the key principle of our New Scots refugee integration strategy. We are committed to the principle of community based integration for refugees and people seeking asylum. The New Scots approach is not compatible with use of remote and institutionalised camps. Such asylum accommodation will also not fix the underlying issues causing shortages in the asylum estate, which include the fairness, quality and timeliness of the asylum application and decision process.”

The position of the Scottish Government is the complete opposite of that of the UK Government, but their hands are tied. We cannot do what we want to do in Scotland to support our asylum seekers. That cannot be right.

Shona Robison also said:

“The Independent Chief Inspector of Borders and Immigration’s report highlighted significant issues”,

as we have heard,

“with the management of Napier Barracks and Penally, their suitability, safety and the impact this type of accommodation had on people living there. The report also raised concerns about contingency of healthcare if people are moved around the asylum estate. I would add to this contingency of legal representation, essential services and support networks, which must be considered.”

However, we are not talking only about barracks; there are many other types of accommodation that people had to live in. People were taken out of their homes where they were settled and put into Glasgow hostels and hotels last year. The Minister says things like, “This is not our intention.” I do not imagine that it was anyone’s intention for the men I met in the hostel close to where I live to be living in dirty accommodation, but they were, because they had nothing to clean up after themselves with. What most upset them the day I first met them was that they had nothing to clean their toilets with. They were living in tiny rooms, and if they did their washing in the tiny sink in what we will call the en suite—the toilet was in the room—they had to leave their wet clothes on the bed to dry off. I can tell hon. Members that, in Glasgow, that does not happen quickly; our temperatures are slightly different. They said that they could not keep the toilets clean and that there was no support. They were not looking for people to clean up after them, but because their access to finance had been taken from them, they could not even go and buy a toilet brush and bleach. It was a pretty awful situation.

There is also the so-called mother and baby unit that Mears has set up on behalf of the Home Office in Glasgow. I spoke to women who, without any notice, got a visit and were told, “Pack your bags. You and the baby”—or the bump; some were pregnant, some had just given birth—“are moving”. They were settled in communities among friends, they knew where the GP and the shops were and they knew how much things cost, but they were taken out of those communities at almost no notice. Many of them were told that they could take two carrier bags’ worth of goods and no more. These people had babies. I do not know anybody with a baby who can leave the house with fewer than two bags, but they were told by agents acting on behalf of the Government that they could take two carrier bags of stuff.

One of them said, “I was living in Pollok”, on the south side of Glasgow, “and was surrounded by wonderful neighbours. It was my baby’s first Christmas and all the neighbours had come round with Christmas presents.” That is why we want community dispersal. We want people to be part of a community. It benefits not just asylum seekers but everybody in the community—and that community certainly supported that woman and her baby. They took round Christmas presents, but then she was told to leave them behind because there was no room for them in the mother and baby unit. She was devastated because those presents were a symbol of acceptance and love from her community.

Nationality and Borders Bill (Sixth sitting)

Bambos Charalambous Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[Tom Pursglove]

The amendment remedies a drafting issue. The clause as a whole creates a route to register as a British citizen for people who have registered as a British overseas territories citizen under the new routes introduced by clauses 1 and 2. The British Overseas Territories Act 2002 made BOTCs British citizens as well, so it is right that we allow those who missed out on British overseas territories citizenship to become British citizens as well. However, we also want to cover those who have already taken steps to become a British overseas territories citizen, such as through registration or naturalisation in a territory. The amendment introduces the wording of section 4K(3). As that section is currently worded, it means that only those who have been registered as a BOTC can register as British citizens using this clause. The amendment will mean that people who have naturalised as a BOTC will also qualify.

More broadly, on clause stand part, this is an important change aimed at giving British citizenship to those who become British overseas territories citizens under the provisions introduced by clauses 1 and 2. As we have heard, two groups missed out on becoming BOTCs because of anomalies in British nationality law: people born to BOTC mothers before 1983, and people born to unmarried fathers before 1 July 2006. Clauses 1 and 2 will correct this, giving them the opportunity to acquire the BOTC status that they should have had.

We also recognise, however, that changes to the law in 2002 mean that they should also have become British citizens. Under the British Overseas Territories Act 2002, on 21 May 2002 all British overseas territories citizens who had that citizenship by connection with a “qualifying territory” became British citizens. For children born in a qualifying territory after 21 May 2002, British citizenship is acquired automatically if either parent is a British citizen or settled in that territory. This means that this group have missed out on both BOTC and British citizenship, so we need to create a route for them to acquire both.

We recognise that some people who did not become BOTCs automatically may have already taken steps to acquire that status by applying for registration or naturalisation in a territory. Some may also have applied to become a British citizen under existing provisions, but for those who did not, this clause allows a person who would have become a British citizen, had women and unmarried fathers been able to pass on status at the time of their birth, to register as a British citizen if they are now a BOTC.

Home Office officials are working with territories to develop the process for these applications, including in respect of whether this can be a done as a “one-stop” approach, with a person being able to apply for BOTC and then also opt in to apply to be a British citizen at the same time.

We regularly receive representations on this issue, from individuals and governors, and so understand the strength of feeling. We are aware of families where cousins have different statuses because women and men could not pass on citizenship in the same way, or because a child’s parents did not marry. Those in this position understandably feel that they have been unfairly prevented from holding a status that they should have acquired by birth. It is therefore important that we make this change, and I commend clause 3 to the Committee.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to serve under your chairmanship, Ms McDonagh.

Opposition Members will not oppose amendment 59, and I will speak primarily to clause 3 stand part. The clause refers to the creation of the new statutory entitlement for British overseas territories citizens who have been affected by the injustices that we have heard about this morning in relation to clauses 1 and 2 to become citizens by registration. While all those with BOTC status additionally became British citizens in 2002, by virtue of section 3 of the British Overseas Territories Act 2002, we know of the loopholes that have existed due to the fact that women could not pass on citizenship, or because their parents were not married, and as a result many were unable to become British citizens under the 2002 Act. I am pleased that the Government are committing to new routes for adult children of British Overseas Territories Citizen parents to be registered as BOTCs and, in turn, as British citizens.

Clauses 1 to 3 would benefit people born to BOTC mothers and BOTC unmarried fathers who could not pass on citizenship to their child due to nationality laws at the time of the child’s birth, which, as we have heard this morning, is deeply unfair and is rightly being addressed in this legislation. Clause 3 creates a route to becoming a British citizen for people who registered as a BOTC under the new routes introduced by clauses 1 and 2.

However, we must also discuss the implementation of clauses 1 to 3. Accessibility is all-important and while we welcome the changes made to British nationality law outlined earlier today, I have concerns about rights being inaccessible, which we have seen time and again in the UK, with devastating consequences. If we take perhaps the clearest and most heartbreaking example of the Windrush scandal—one of the most shocking and contemptible episodes in the UK Government’s history—I am sure colleagues across the Committee will agree that the Windrush generation were treated shamefully after a lifetime of working hard, paying their taxes, bringing up their families and contributing to our society. They were left facing uncertainty about their legal status in the UK and lost access to their homes, jobs and healthcare, through no fault of their own.

As last year’s “Windrush Lessons Learned Review” highlights, changes made to British nationality law in the 1980s

“progressively impinged on the rights and status of the Windrush generation and their children without many of them realising it.”

Therefore, to avoid repeating the mistakes of the past, the rights that are to be established for British overseas territories citizenship must be accessible. The Home Office must provide assurances as to when and how these rights will be made public and widely publicised for those affected. I make the point around accessibility now as we discuss clause 3, and I hope we can return to it later on, as I believe it is very important.

Overall, the Opposition none the less support clause 3 as it provides the framework to tidy up inconsistencies in British nationality law and acknowledges those who have suffered under UK law due to loopholes outlined in clauses 1 and 2.

Amendment 59 agreed to.

Amendment proposed: 10, in clause 3, page 8, line 18, at end insert—

“(4) The Secretary of State must not charge a fee for the processing of applications under this section.”—(Stuart C. McDonald.)

This amendment would prevent the Secretary of State from charging a fee for British citizenship applications by certain British overseas territories citizens.

Question put, That the amendment be made.

Question negatived.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4

Period for registration of person born outside the British overseas territories

Question proposed, That the clause stand part of the Bill.

[Tom Pursglove]

We have been clear that the nationality provisions within the Bill seek to tackle historical unfairness and inequality in British nationality law. As with earlier clauses, this legislation gives us the opportunity to amend provisions for British overseas territories citizens to mirror the comparable requirements already in place for British citizens.

Section 17(2) of the British Nationality Act 1981 provides a registration route for a child whose parent is a BOTC by descent where that parent had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application to register a child under this route must be made within 12 months of the child’s birth. However, the parallel provision for British citizens, section 3(2) of the 1981 Act, was amended in 2010, replacing the requirement for an application to register a child to be made within 12 months of the child’s birth, with a requirement for the application to be made while the child is a minor.

Clause 4 seeks to amend the BOTC registration route in the same way. Rather than requiring applications to be lodged within 12 months of the birth, the clause would allow an application to be made at any time before the child’s 18th birthday. Consequently, the provision for the Secretary of State to exercise discretion to extend the registration period from 12 months to six years in section 17(4) will be removed as it is no longer needed.

Entitlement remains limited to children with a particular parental and residential connection to the relevant territory. In line with the British citizenship route, we do not propose extending the route to adults. Other adults seeking to become BOTCs, such as by naturalisation, must demonstrate a personal connection with the territory and cannot rely merely on the residence of their parents, and we want to ensure that this amendment remains consistent with other existing provisions. The aim is to ensure fairness across British nationality law, not to create further discrepancies. Clause 4 will bring the provisions for BOTCs in line with those already in place for British citizens.

[Bambos Charalambous]

Clause 4 also refers to an additional aspect necessary to align British citizenship and British overseas territory citizenship. The clause removes a requirement that applications for registering a child as a BOTC must be made within 12 months of birth, amending section 17(2) of the 1981 Act. As the Committee will know, section 17(2) provides a registration route for a child whose parent is a BOTC by descent and had been in a territory for a continuous period of three years at some point before the child’s birth. At present, an application under this route must be made within 12 months of the child’s birth; however, the same provision for British citizens was extended throughout childhood with the Borders, Citizenship and Immigration Act 2009, which replaced the requirement for the application to be made within 12 months of the child’s birth with a requirement for the application to be made while the child is a minor.

Clause 4 amends the BOTC registration route in the same way, so the same extension from within 12 months of the child’s birth to throughout childhood is applied to BOTCs. The Opposition support this clause and would be interested to know how many people will be affected once clauses 1 to 4 have been implemented.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Disapplication of historical registration requirements

Question proposed, That the clause stand part of the Bill.

[Tom Pursglove]

This clause seeks to amend British nationality law to remove historical registration requirements and to reflect recent case law. As we have already heard, before 1983 women were unable to pass on British citizenship, and before 1 July 2006 unmarried fathers were unable to pass on citizenship. Under the previous legislation, the British Nationality Act 1948, citizenship could normally only be passed on to one generation of children born outside of the UK and colonies.

However, section 5(1)(b) of the 1948 Act permitted transmission through a father to a further generation if the child was born in a foreign country and their birth was registered within a year at a British consulate. The period could be extended at the Secretary of State’s discretion. An example of this might be where the child’s grandfather was born in the UK and their father was born in the United States of America: the child’s birth could be registered at the British consulate in the United States and they would have become a citizen of the United Kingdom and colonies as a result. However, a British mother or unmarried British father could not register their child’s birth at a consulate, because they were unable to pass on citizenship at that time.

There are already measures in place for people to register as a British citizen if they would have been able to acquire that status automatically if women and unmarried fathers had been able to pass on citizenship under the 1948 Act. This clause means that a person will not be prevented from registering under those provisions if the only reason they cannot qualify is that their parent was unable to register their birth at a consulate.

[Bambos Charalambous]

As we move through part 1 of the Bill, we turn to British citizenship in clause 5. This clause again seeks to correct historical problems in British nationality law concerning discrimination against women. The current statutory language has caused significant problems in implementation. Under the 1948 Act, citizenship could normally only be passed on for one generation to children born outside the UK and colonies, but section 5(1)(b) of the Act permitted it to be passed on to a further generation if the child was born in a foreign country and the birth was registered within a year at a British consulate. The child of the British mother or unmarried British father could not be registered because they were unable to pass on citizenship at the time.

British women, therefore, although able to inherit their fathers’ nationality when born abroad, have historically been denied the right to pass it on to their own children in the same circumstances. Although when it came into force on 1 January 1983 the British Nationality Act 1981 equalised the rights of men and women as regards the nationality of their children, it did nothing to remedy the discrimination against women that had persisted up to that point. That discrimination was demonstrated in the Supreme Court on 9 February 2018, in the Advocate General for Scotland v. Romein. Ms Romein was born in the USA in 1978 and her father was a US citizen. Her mother was born in South Africa to a Scottish mother and a Welsh father, from whom she inherited her British national status. Despite her family’s connections to the United Kingdom on both sides, as a result of the discrimination inherent in British nationality law—specifically, at that time, section 5 of the British Nationality Act 1948—she was unable to pass her British national status on to her own child, despite wishing to do so.

Clause 5 therefore amends eligibility requirements for registration under section 4C and 4I of the British Nationality Act 1981, to disapply the requirements for a birth to have been registered at a British consulate within 12 months. In effect, it will tidy up the language of British nationality legislation to make clear the Supreme Court’s judgment in Ms Romein’s case, which confirmed the right of British women to pass their nationality on to their children born abroad. The Opposition support the clause, which creates no new rights, but rather makes clear the existing rights in UK law. We welcome that.

Question put and agreed to. 

Clause 5 accordingly ordered to stand part of the Bill. 

Clause 6 

Citizenship where mother married to someone other than natural father  

Question proposed, That the clause stand part of the Bill.

[Tom Pursglove]

Picking up on the earlier question that the shadow Minister asked, I should say that my understanding when it comes to this amendment is that the clause will affect only a small number of people. But it is an area of law out of touch with modern society, so it is right that we should make this change.

The issue is that in British nationality law the mother’s husband is the child’s father, even if she has been separated from him for years and the child is not biologically related to her husband. That can create difficult cases—for example, when a child’s biological father is a British citizen, but their father for nationality purposes is the mother’s estranged non-British husband. The child misses out on British nationality as a result.

Generally, we think it is right that the mother’s husband should be treated as the child’s father for nationality purposes. The common law presumption is that a child born during a period of marriage is the child of the mother’s husband, unless shown otherwise. For nationality purposes, however, there should be certainty about a child’s status, which should not be subject to change at a later date if paternity is disputed. But we need a solution for the child whose father is not the mother’s husband, so that they do not miss out on becoming British through their natural father.

Until now, we have been registering such children as British citizens using the discretion that the Home Secretary has to register any child under the age of 18 under section 3(1) of the 1981 Act. We recognise that those children would have been British automatically were it not for their mother being married to someone else, so we made that a fee-free route last year.

However, the inconsistency has been highlighted by the courts. In the case of K, the court ruled that, although it was a correct interpretation of the legislation for the child not to be a British citizen automatically, the fact that the only remedy was through discretionary legislation was incompatible with the European convention on human rights.

We must take this opportunity to create a specific route for children in this position to be able to acquire British nationality. That is achievable by removing from existing registration provisions the requirement for children of unmarried fathers to have been born before 1 July 2006. People in this position may not see any practical difference, as they can currently make a fee-free application under section 3(1), but the important point is that the provision gives this group a legal entitlement to registration, rather than their having to rely on the exercise of discretion.

We are also using the clause to allow a child of a non-British member of the British armed forces to make an application to register as a British citizen, despite their mother being married to someone other than their biological father at the time of their birth. That will bring them in line with other children whose parents were serving overseas at the time of the birth.

[Bambos Charalambous]

It is deeply regrettable that British statutory law has long discriminated against children born out of wedlock, preventing British nationality from being derived from a British father if he was not married to the child’s mother. The British Nationality Act 1981, when first passed, did not correct that discrimination relating to British citizenship, but since then there have been various attempts to remove it. Those amendments have created rights to be registered as a British citizen for some of the people affected by that discrimination. However, no corresponding right has been introduced for people who would have become British overseas territory citizens. As we have seen, clause 2 is intended to correct this omission, and the Opposition support it.

However, clause 2 is not sufficient in itself to correct the discrimination relating to British citizenship; indeed, the relevant legislation has led to an anomaly. That anomaly, which is to be corrected by clause 6, which we also support, is that people who would have been born a British citizen but for their father not being married to their mother now have the right to be registered as a British citizen if they were born before 1 July 2006. That applies whether or not the mother was married to someone else at the time of the person’s birth.

However, people born on or after that date, who would similarly have been born a British citizen but were not because their father was not married to their mother, do not have a corresponding right. The courts have declared that discrimination to be incompatible with the Human Rights Act 1998. Clause 6 is intended to correct that injustice, and we therefore support it. It does so only for British citizenship. That is because the correction for British overseas territories citizenship is built into clause 2.

As has been said, our primary concern with clauses 1, 2, 3, 5 and 6 is not with the text or with the fundamental intentions behind them but with the fact that, when commenced, the rights that are to be established must be accessible. There are too many examples of British nationality rights being inaccessible. The Windrush scandal is but one especially painful relevant example.

The following matters are therefore crucial. We would like the Minister to give assurances as to how these rights will be made public and will be sufficiently widely publicised, not least because many of the beneficiaries will be in other territories or countries.

Ministers must equally give assurances that evidential and procedural obstacles will, to the fullest extent practical, be removed or reduced. Biometric registration and overseas and mandatory citizenship ceremonies, for example, must not be prohibitive to the exercise of these rights, as they have been in the past. Biometric registration must not be prohibitively expensive or inaccessible. Ceremonies can be waived, and that should be done where a person wishes to do that, or where a ceremony cannot be offered without undue cost or delay to the person being registered.

Where relevant information is available and can be confirmed by the Home Office or the Passport Office, that should be done. People must not be obstructed by unreasonable demands for evidence. It must be understood that, for some people, there may be considerable obstacles to securing evidence of their rights so many years after the original injustice—for example, due to age, somebody passing away, or separation, including by reason of abuse or violence. The Home Office or Passport Office must be as helpful as possible to facilitate the exercise of these rights.

In conclusion, we support the clause and the intention behind it, but it is of great importance that the Minister also ensures that these rights are fully accessible.

[Tom Pursglove]

Let me respond briefly to the point that has understandably and rightly been made. As I said in response to earlier clauses, there is a very constructive working relationship between the Home Office and the various overseas territories for which these provisions are relevant, as well as with the various governors. There is good engagement, and we are keen to see this information cascaded.

The point I would strongly make is that we are seeking through the provisions in the Bill to put right past injustices, and we would want this information to be as readily available as possible to people who may find themselves affected. The hon. Member for Enfield, Southgate has my undertaking that I will take that point away and monitor it very closely to ensure that that happens.

In the discussion on an earlier clause, my right hon. Friend the Member for Scarborough and Whitby showed an interest in relation to proof of paternity. In relation to this clause, regulations will set out what can be accepted as proof of paternity—first, being named before 10 September 2015 as the child’s father on the birth certificate issued within 12 months of the birth and, in all other cases, any evidence such as DNA test reports, court orders or birth certificates considered by the Secretary of State to establish paternity. I know that my right hon. Friend had an interest in that issue in relation to the earlier clause, but I thought that it would be useful to say something about it here as well.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7

Citizenship: registration in special cases

[Bambos Charalambous]

I beg to move amendment 35, in clause 7, page 9, line 36, at end insert—

‘(1A) In section 1 (acquisition by birth or adoption) subsection (5)—

(a) in paragraph (a), for “minor” substitute “person”; and

(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.’

This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 13, in clause 7, page 9, line 40, leave out “may” and insert “must”.

This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.

Amendment 30, in clause 7, page 10, line 25, at end insert—

‘4M Acquisition by registration: equal treatment

(1) Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.

(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered under subsection 4L(1) and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.

(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’

This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.

Amendment 14, in clause 7, page 10, line 30, leave out “may” and insert “must”.

This amendment would require the Secretary of State to approve applications for British citizenship by people who have previously been denied the opportunity to acquire it on account of historical legislative unfairness, an act or omission of a public authority, or exceptional circumstances.

Amendment 31, in clause 7, page 11, line 8, at end insert—

‘17I Acquisition by registration: equal treatment

(1) Where a person (P) is registered as a British Overseas Territories citizen under subsection 17H(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.

(2) In each Parliamentary session, the Secretary of State must lay before Parliament a report of any historical legislative unfairness on the basis of which any person has been registered and which remains to be corrected by amendment to the British Nationality Act 1981 or such other legislation as may be required.

(3) The report required by subsection (2) must both explain each case of historical legislative unfairness to which it relates and set out the period within which the Secretary of State intends to make the necessary correction to the British Nationality Act 1981 or other legislation.’

This amendment requires that the Government publicise any change in policy or guidance in order to ensure that there is no unfairness in treatment of British Overseas Territories citizens or those who are applying to be registered as British citizens. It also requires the Secretary of State to report and explain any historical legislative unfairness.

Amendment 34, in clause 7, page 11, line 8, at end insert—

‘(4) After section 23 (Citizens of UK and Colonies who are to become British overseas territories citizens at commencement), insert—

“23A Acquisition by registration: special circumstances

(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British Overseas citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British Overseas citizen but for—

(a) historical legislative unfairness,

(b) an act or omission of a public authority, or

(c) exceptional circumstances relating to P.

(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies, or a British Overseas citizen, if an Act of Parliament or subordinate legislation (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person’s nationality status—

(a) treated males and females equally,

(b) treated children of unmarried couples in the same way as children of married couples, or

(c) treated children of couples where the mother was married to someone other than the natural father in the same way as children of couples where the mother was married to the natural father.

(3) In subsection (1)(b), “public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.

(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.”’

This amendment seeks to extend the remedy in Clause 7 to those who would have been British Overseas Citizens but for historical unfairness.

Clause stand part.

[Bambos Charalambous]

It is the view of the Opposition that British nationality law is out of kilter with adoption law in England and Wales and needs to be rectified. In those countries where an adoption order has been made by a court, it may be made where a child has reached the age of 18 but has not yet reached the age of 19; yet such an adoption order confers British citizenship automatically only where the person adopted is under 18 on the day the order is made. It seems evident to the Opposition that that is a slip that results in unnecessary unfairness.

The adoption law as it stands was enacted some 20 years after the relevant nationality law, and apparently the inconsistency that it created was overlooked. It has never been suggested that the adoption law and British nationality law should be out of step where a court in England and Wales authorises a person to be adopted by a British citizen parent. It is important for every member of the Committee to know that the stated problem is not merely a theoretical one; it generates victims in real life, including a university graduate who was 18 but not yet 19 when she was adopted by her aunt after her mother died of cancer, and who will have no basis on which to enjoy family life in the UK with her new adopted mother once her student status has ended.

We therefore believe that the position needs correcting. The Bill is the right vehicle to make that correction, which is not controversial and which we do not believe should divide Committee members on party lines. The amendment, which should command cross-party support, would bring British nationality law in line with adoption law, so that where our courts make an adoption order in respect of a person who is 18 but not yet 19, and the adoptive parent was a British citizen, British citizenship is conferred automatically on the person adopted. No adoption order may be made in respect of a person who has reached the age of 19, so the proposed amendment affects only those who are 18 but not yet 19 when the adoption order is made.

It is also important to point out that it is no answer to the problem to say that an 18-year-old adopted by a British citizen will be able to apply for registration by an adult as a British citizen at the Secretary of State’s discretion under proposed new section 4L of the British Nationality Act 1981, provided for in clause 7. The problem relates to those persons who should be treated as British citizens automatically from the date of their adoption by a British citizen. Where the only solution is a subsequent application for British citizenship at the Secretary of State’s discretion, there is the risk that such an application may be overlooked, or refused on another basis, such that the intention of Parliament to confer British citizenship on a person adopted by a British citizen will be frustrated. We therefore believe that the sole solution is to make this simple amendment to align British nationality law with adoption law.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairship, Ms McDonagh. I will speak in support of amendments 13, 14, 30 and 31. I also support amendments 34 and 35. Amendment 35 in particular seems to make perfect sense—although it relates exclusively to England and Wales. I confess that I have not managed to ascertain whether a similar issue arises in relation to either Northern Ireland or Scotland and, depending on what the Minister says in response, that is perhaps something we can all do our homework on before Report stage.

On the other amendments, this brings us back to the point I made when making the case for no fees for introducing applications, or at least restricted fees. These fees put people off from accessing their rights, especially when there is discretion or subjective criteria are used that mean people can have only a limited idea about whether paying a fee and making an application will result in anything positive happening. If they can afford it and if they know that they meet the criteria, people will pay a fee, but this would not necessarily make it easier to see in advance whether they would be able to show historical injustice or exceptional circumstances, or that the fault lay with the public authority.

We have already debated the fee aspect and made the case for lower fees to ensure that people are not put off from seeking to fix injustices that they have suffered. These amendments taken together address the other side of the coin: what can be done to make the criteria more transparent so that people can feel confident with their applications?

Amendments 30 and 31 seek to ensure that both officials and the victims of injustice are aware of how the provisions brought about by clause 7 are being implemented. If a new type of injustice in UK nationality law is discovered, or circumstances are deemed so exceptional that the Secretary of State decides that registration is merited and she grants such an application, she will first need to ensure that policy and guidance are updated so that those processing other similar applications are aware of that fact and people applying in the same circumstances are successful. More than that, she will also be required to take steps to try and ensure that people who might be entitled to register in the same circumstances know that they can do so.

Again, as I said earlier, we know from Windrush how important taking such action to make people aware of their rights can be. In short, people will have a greater understanding of whether their application will be successful and those who meet the criteria set out in policy will apply. Those who are making decisions will be aware that in previous cases similar applications have been granted and those applications will therefore be successful.

Amendments 13 and 14 challenge a Minister to explain why the provisions introduced by clause 7 are expressed entirely as “may” rather than “must”. If a person proves they are a victim of an injustice, which is carefully defined in the clause, then why should the Home Secretary still have a totally unlimited power to refuse registration in any event? Similarly, if a person shows they were denied citizenship because of an act of omission by a public authority or by exceptional circumstances, why should the Home Secretary have a totally unfettered power to say no?

The big fear is that the Secretary of State has the broadest discretion possible regardless of whether a person meets other criteria. Who will make an application, particularly if there is a fee involved? I can see possible flaws in going completely the other way to a situation where it is a requirement and a must, but that would be better than the totally unlimited discretion that is in the Bill right now. I simply challenge a Minister to come up with a better form of this.

[Bambos Charalambous]

On amendment 30, we want to make sure that the Secretary of State is required to take all reasonable and necessary steps to ensure that the right to registration under clause 7 is made accessible to all its intended beneficiaries. We also want to ensure that historical legislative unfairness is corrected. We do not believe that it is sufficient to rely on that being done ad hoc, subject to the discretion of any particular Secretary of State.

As has been obvious from discussions on previous clauses, several injustices have been identified in British nationality law in our policy and practice over the years. Important provisions in the Bill are necessary to correct some of that, including changes to previous amendments to the British Nationality Act 1981, which only partially corrected a particular injustice.

The Opposition understand and accept that the broad purpose of clause 7 is to provide the means to correct further injustices, and we broadly support its aims. We are concerned, however, about the implementation of the clause, and the amendment serves to address that.

Hon. Members will be aware that clause 7 introduces a new discretion to register adults as British citizens or British overseas territories citizens where that is immediately necessary or appropriate in view of some historical injustice, an act or omission by a public authority, or other exceptional circumstances. As it stands, that provision is welcome and reflects the underlying purpose of all rights of registration under the British Nationality Act 1981 to ensure that citizenship is the right of all persons connected to the UK or the British overseas territories.

However, given that clause 7 relates to historical legislative unfairness, it raises a concern that it may be relied on by Ministers to avoid making necessary future amendments to the 1981 Act, required specifically to correct such injustice. We are deeply concerned, because when such an injustice is identified, Ministers must take the appropriate action to correct it in the Act. It is not enough to rely on the opinion of any particular Minister or group of Ministers. For that reason, we want to insert the following in clause 7:

“Where a person (P) is registered as a British citizen under subsection 4L(1), the Secretary of State must—

(a) ensure that other persons applying to be registered are so registered where the same unfairness, act or omission or circumstances apply unless there are material factors relevant to their applications that were not relevant to P’s application;

(b) amend or make policy or guidance in line with the registration of P;

(c) make that new or amended policy or guidance publicly available; and

(d) take such other steps as may be reasonably necessary to draw attention to that new or amended policy or guidance among other people affected by that same unfairness, act or omission or circumstances.”

Clause 7 must genuinely be given real practical effect—it must not become a mere token statutory provision. Registration requires someone to make a formal application, so the clause will be ineffective if uncertainty over the result of an application, coupled with any cost or other impediment to do so, deters people from making applications. In such circumstances, clause 7 could stand redundant on the statute book because no one to whom it ought to apply knows about it or is sufficiently encouraged or enabled to apply for the discretion to be exercised.

For those reasons, the following matters must, at a minimum, be addressed. It is generally inappropriate, as with registration more generally, for the Secretary of State to charge prohibitive and above-cost fees to prevent people from exercising their rights to British citizenship. The fees are made even more prohibitive if it is not possible to assess in advance that an application will be successful because there are no fixed criteria by which the right to be registered will be assessed.

Ministers should also be pressed to give an assurance that when an individual application is successful, there will be positive action to ensure that other potential applicants are made aware of their equal or similar right to register at their discretion. Under amendment 30, if an unfairness, act or omission by a public authority or exceptional circumstances are identified that make it necessary to exercise discretion, appropriate publicity must be given to it, and there should be a formal updating of public-facing policy. It must be made clear that others in the same circumstances will succeed with their applications to register, if they make them; otherwise, people will continue to be excluded from citizenship in circumstances where it is clearly intended that they should not be.

--- Later in debate ---

[Anne McLaughlin]

I was speaking in support of all the amendments in the group and will use evidence given to the Committee by Amnesty International and Free Movement before adding a couple of points. The clause introduces the discretionary route for registration as an adult. Discretion can be exercised where, in the Secretary of State’s opinion, that person would have been able to become a British citizen if it were not for a number of things. I want to look first at the exceptional circumstances.

Free Movement’s concern, shared by a number of people, including me, is about the reference to the Secretary of State’s opinion. A future Secretary of State—let us not say the current Secretary of State, because we would not want to personalise this—may hold an opinion generally considered to be disproportionate, unreasonable or ridiculous. They may not be from the current party in government—I am not saying that it is more likely to happen under one particular party—but where does it end? There is nothing to say that their opinion can be curbed. I am wondering what is meant by that reference. How could a legal challenge be mounted against a decision that the Secretary of State is allowed to make based on their opinion? I would like something from the Minister on that.

I turn to historical legislative unfairness, which we have talked about a lot today. It has been defined with specifics. We have talked about the unequal treatment of mothers, children of unmarried couples, and children of mothers married to someone other than their natural father, but the list does not include discrimination on the basis of ethnicity and race. The list is not definitive. Is there scope to consider the role played by such discrimination in terms of historical unfairness? I would like the Minister’s thoughts on that.

On the act or omission by a public authority, it is always useful to say when we think somebody has got it right—and we have said that a number of times today. I want to reiterate that, as Free Movement has said, there have been a number of concerns that local authorities responsible for children who become entitled to British citizenship under their care do not always get the applications made on those children’s behalf. Sometimes that is because there has been a misunderstanding, and at other times it is deemed to be not in the child’s interest at that time and it is not always included in their care plan. By the time they are an adult, it is too late for them to make that decision themselves, so I am quite supportive of measures to deal with that.

I want to talk about a concern that Amnesty has expressed—I am sure the Minister has seen this—which is that clause 7 has to be given real, practical effect, and that the measure will be ineffective if uncertainty over the result of an application, along with the excessive fees that we have talked about, deters people from making applications in the first place. I know that my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has made those points.

Amnesty has asked for the following matters to be addressed. First, we have talked about fees at length, but I reiterate that several organisations are very concerned about the fees. Secondly, Amnesty has asked for assurances that where an individual application is successful, the Government will take positive action to ensure that other potential applicants are made aware of their equal or similar right to register at discretion. This means that where an example is identified of, as the Bill says, unfairness, an act or omission by a public authority or exceptional circumstances on which it is right or necessary to exercise the discretion, there should be publicity and awareness raising. We have talked a lot about that, but Amnesty wants to know that that will happen, and that members of the public who could use the legislation to the same positive effect will have that information. Lastly, Amnesty has asked for an assurance that awareness raising will apply equally to British citizenship and British overseas territories citizenship.

[Bambos Charalambous]

I want to speak to amendment 34, which deals with people who would be British overseas citizens today but for historical unfairness in the law, an act or omission of a public authority or other exceptional circumstances. The Opposition welcome the fact that clause 7 attempts to rectify the position for those who would be British citizens or British overseas territories citizens today but for such an error. However, the clause does nothing for people who would be British overseas citizens today, and that is wrong.

Those who would be BOCs but for such an error should not be excluded from the proposed remedy. They have suffered from historical unfairness, just as those who would be British citizens or BOTCs today have done. Prior to 1983, there was one substantive class of British nationals, citizens of the United Kingdom and colonies. When the British Nationality Act 1981 came into force on 1 January 1983, CUKCs were divided and reclassified into three categories: British citizens, connected to the UK; British dependent territories citizens—now BOTCs—connected to the remaining British overseas territories, such as the Falkland Islands and Gibraltar; and BOCs, connected to the former British colonies.

The Home Office acknowledges that past unfairness in British nationality law includes where men and women were unable to pass on citizenship equally, and where unmarried fathers could not pass on citizenship. The Home Office acknowledges that in the case of people who could be British citizens or BOTCs, but many persons who would be overseas citizens today also suffer from such prejudice. As a result of the British overseas expansion and later decolonisation, there are pockets of BOCs around the world—for example, in Kenya, Malaysia, South Africa and anglophone west Africa, including places such as Sierra Leone. The category of BOC was created under the British Nationality Act, and it gave effect to the fact that BOCs were British nationals and should remain so. The newly created status gave no home or right of abode in the UK or any other remaining British territory.

Although BOCs have no right to come to the UK or a remaining British overseas territory, the status still has real value. It enables a person to seek to use the UK BOC passport, and possession of such a passport enables BOCs to seek UK consular assistance in a third country and to seek residence and permission to work in third countries under local laws. It may be useful where the passport of another nationality that those people hold is considered unreliable, and where their children are born stateless, to benefit from UK laws that reduce statelessness.

BOCs around the world make active use of that status. For example, many persons of Somali heritage born in Aden in Yemen when it was a British colony are reliant on BOC status, as they were, and are, shut out from the Yemeni nationality. Their BOC passports enable them to obtain lawful residence and permission to work in Gulf states, and to secure a visa to study in other countries. The Home Office proposal in clause 7 helps those affected by historical unfairness in British nationality law, an act or omission of a public authority, or exceptional circumstances to become British citizens or BOTCs. However, potential BOCs would also have suffered from such historical unfairness in British nationality law, acts or omissions of public authorities, or other exceptional circumstances. All those classes of British nationals were CUKCs prior to the British Nationality Act 1981, and all suffered from these problems. Clause 7 should therefore be supplemented to provide for registration as a BOC on the same basis as it enables registration as a British citizen or BOTC.

[Tom Pursglove]

I will deal with each of the amendments proposed, and then I will of course pick up on a number of the points, questions and challenges that have been raised throughout the course of this debate.

I thank the hon. Members for Enfield, Southgate and for Halifax for having tabled amendment 35, which would allow a person to become a British citizen automatically following their adoption in the UK if the order was made after the age of 18 but before the age of 19, but the adoption proceedings started before their 18th birthday. I have noted the unusual situation, highlighted by hon. Members, in which newly adopted young people can find themselves as a result of differences between the Adoption and Children Act 2002 and the British Nationality Act 1981. An adopted person can automatically acquire British citizenship, provided they are under 18 on the date the adoption order is made. However, under the 2002 Act, it is possible for an adoption order to be made where someone is already 18 years old but has not yet turned 19.

I am aware of cases in which individuals are affected by those nationality provisions, and I have some sympathy for them. However, I am also conscious that a person aged 18 will normally be capable of making their own life choices. At 18, someone can purchase alcohol, accrue debt, join the Army, or vote in an election. From a legal standpoint, at 18, an individual is fully fledged and can theoretically live independently of other family members. It is therefore consistent that a person aged 18 or over who is seeking to acquire British citizenship should normally do so only on the basis of their personal connections with this country, not those of their new family.

I must consider the wider position of adopted children, and I am satisfied that to extend the nationality rules to cover persons who have attained the majority would move nationality out of step with immigration routes. For example, young people over the age of 18 must meet the requirements of the immigration category they are applying in, and are unable to rely on other family members for a claim to residence. I have sympathy for those young adults who feel that they have lost out, but other routes are available that would allow them to choose whether they wish to naturalise or register as British citizens.

Turning to amendment 13, again I thank hon. Members for tabling the amendment and for drawing attention to clause 7, which we believe is a positive move that will allow the Home Secretary to grant British citizenship to those who have missed out on acquiring it, potentially due to reasons beyond their control. Clause 7 will apply to anyone who

“would have been, or would have been able to become, a British citizen but for—

(a) historical legislative unfairness,

(b) an act or omission of a public authority,”

or their exceptional circumstances. This means that the clause covers not just those who would have become citizens automatically, but those who might have had an entitlement to registration or could have registered or naturalised at the Home Secretary’s discretion. As such, we think it right that the provision remains discretionary, to allow the Home Secretary to take into account the criteria that she might have taken into account at the time.

--- Later in debate ---

[Tom Pursglove]

The point that I would make is that we keep evolving circumstances and individual cases under review. It is right that we consider cases individually and properly take account of their individual circumstances. That is why we are arguing strongly that the discretionary means of tackling this is the correct way to do so. I am confident that through the provisions, we will right many historical injustices and wrongs, and that is something we should all welcome.

In the light of the debate that we had about fees, whether or not applications will be free under the clause is an important point. That will be an issue for the appropriate fees regulations in due course. As I set out when dealing with earlier clauses, those regulations will be subject to parliamentary scrutiny. I note the views that have been strongly expressed today. Members will have heard what I have said about this previously, and I would be very happy to engage with them in the development of those regulations that we would then bring forward. With that, I would ask hon. Members not to press their amendments.

[Bambos Charalambous]

I wish to press amendment 35, and all other amendments in my name and in the names of the other Members.

Question put, That the amendment be made.

--- Later in debate ---

Another example could be that of someone from the Windrush generation who had lived in the UK for many years but was prevented from returning and was able to do so only four years ago. Despite their long connection with the UK, this requirement creates a barrier to naturalisation. The clause rectifies this, and quite rightly so, enabling the Secretary of State to waive the requirement for a person to have been physically present in the UK or British overseas territory at the start of that residential qualifying period. It will allow us to grant citizenship in compelling circumstances. We will set out in guidance when we might expect to exercise discretion, as we do for other requirements in which there is discretion. This is a positive change that could benefit those who have close connections with the UK but were outside the UK five years prior to their application, particularly when the absence was down to circumstances beyond their control.

[Bambos Charalambous]

The clause seeks to enable the Secretary of State to waive requirements for naturalisation as a British citizen under section 6, naturalisation as a British overseas territories citizen under section 18, or registration as a British citizen under section 4 of the British Nationality Act 1981. At present, there is no power to waive the requirement to have been present in the UK at the start of the qualifying period except in relation to applications for naturalisation as British citizens from current or former members of the armed forces, which presents a barrier in otherwise deserving cases.

The immediate necessity for the clause arises from the circumstances of people of the Windrush generation, many of whom were deprived of their rights to register their British citizenship by the Home Office’s failure to ensure that people were aware both of their rights and of the need to exercise them. It has since become necessary to use naturalisation without a fee as a means to put people in the position they should have been in all along as British citizens. However, since some people were wrongly exiled from the UK, the remedy has been inadequate for some people who were only recently able to return.

The main barrier stems from the requirement for naturalisation that a person must be present in the UK at a fixed point five or three years before the date of their application to naturalise. The clause therefore seeks to amend the 1981 Act to allow the Secretary of State to waive the requirement that the individual must have been present in the UK or relevant territory at the start of the qualifying period in the special circumstances of a particular case. The waiver will be introduced in relation to the requirements to naturalise a British citizen under section 6 of the 1981 Act, to naturalise as a British overseas territories citizen under section 18 or to register as a British citizen under section 4.

The clause would not have been necessary had the Windrush scandal not happened in the first place, and we wish to place on the record our concerns that it happened because of the hostile environment that was created by the Home Office. Although we welcome clause 8 and will support it, we wish that it had never been necessary because of the injustice of what happened to all those people.

[Stuart C. McDonald]

I want to pick up on one thing the shadow Minister mentioned in his speech. He is right that the most profound implications of the clause relate to the correction of wrongs that were done to the Windrush generation, but I slightly disagree with him when he says that it would not have been necessary but for that.

Certain nationality applications always have caused some awkwardness. In the dim and distant past, when I was one of these wicked immigration lawyers, I would have people come to me who were applying to register, and the requirement that they had been in the country five years ago at the start of the residency period would sometimes cause problems. I do not know what I was doing five years ago today, and sometimes it would require a hell of a lot of checking to work it out.

There were the odd occasions where the Home Office kindly returned the applications, because it was going to have to refuse them as the person had perhaps gone abroad for a couple of weeks five years ago. If the Home Office had not done that, it could have just banked the fees and refused the application. The most profound implication is in relation to Windrush, but I think overall that this is a good thing to do anyway and a slightly broader discretion is welcome.

--- Later in debate ---

[Tom Pursglove]

As I have said, we are aware that this is happening. We think it is right to take steps through the Bill, so that those going through the process are not disadvantaged relative to those who are seeking to make use of this loophole.

[Bambos Charalambous]

We believe that clause 9 will disentitle many stateless children who were born and grew up in the UK from their existing statutory right to British citizenship. I have heard what the Minister said. I think it would require a fair bit of cunning and conniving to conceive a child, wait for five years and not register them before applying for citizenship. This applies not just to children aged five, but to children aged five to 17. There may be many children caught up in those circumstances. We therefore strongly oppose this clause and believe that it should be removed.

Let us be absolutely clear about what the Government are trying to change with this clause. The existing law in section 36 of the British Nationality Act 1981 gives effect to schedule 2 expressly for the “purpose of reducing statelessness”. Paragraph 3 of schedule 2 is designed to prevent children born in the UK from growing up without nationality. As Ministers made clear during the passage of the 1981 Act, the provision was needed to ensure continued compliance with our international obligations under the UN convention on the reduction of statelessness, to which the Minister referred. In accordance with that convention, the provision entitles someone under the age of 22 born stateless in the UK who has lived in the UK for five continuous years at the point of application and who has always been stateless to register as a British citizen.

Clause 9 inserts a new paragraph 3A into schedule 2 of the 1981 Act for stateless children aged five to 17, requiring the Secretary of State to be satisfied that the child was unable to acquire another nationality before the child is permitted to register as a British citizen. It considers that a child can acquire a nationality where the nationality is the same as that of one of the parents, the person has been entitled to acquire that nationality since birth, and in all circumstances it is reasonable to expect them, or someone acting on their behalf, to take steps to acquire that nationality.

We oppose clause 9 because it is unethical and puts children’s rights in jeopardy. It unnecessarily restricts a vital safeguard intended to protect the rights and best interests of a small group of marginalised children born in the UK. For those affected, statelessness can mean problems accessing rights and services, denied opportunities, unfulfilled potential and a sense of never quite belonging. As worded, the new provision would give the Secretary of State wide discretion to prevent a stateless child born in the UK from acquiring British citizenship, perpetuating their statelessness. The Opposition believe that clause 9 creates an additional and unjustified hurdle to stateless children’s registration as British citizens and to satisfying the Secretary of State that they cannot secure some other nationality. This is in addition to the child having to show that they were born stateless in the UK, have remained stateless throughout their life and have lived at least five continuous years in the UK at the point of exercising their statutory entitlement to be recognised as a British citizen.

For many years, the existing requirements have together proved a high barrier to stateless children securing citizenship of the UK, which is where they were born, where they live and where they are connected to. Clarification of the relevant law by the High Court in 2017 and awareness raising by the Project for the Registration of Children as British Citizens, the European Network on Statelessness and others have enabled several children to apply to be registered under statutory provisions that are expressly intended to reduce statelessness. Prior to this, applications were so few as to be negligible. That indicates the profound inadequacy of the Home Office’s previous operation of the provision, and the strong likelihood that there have been a growing number of children living stateless in the UK, in contravention of the original parliamentary purpose, and following the UK’s international commitment to reducing statelessness.

The purported justification for the draconian clause 9 bears no relation to any matter over which the child has any control or influence, or for which they have any responsibility. It is suggested that some parents may choose not to exercise a right to register their child with the nationality of another country, and may leave their child stateless for the purpose of securing British citizenship, but no evidence has been presented for the idea that some parents may choose not to exercise the right to register their child with the nationality of another country. In any event, an application for registration of a stateless child’s entitlement to British citizenship is a complex matter, and that itself has been an effective and unjust deterrent to the exercising of the right.

The UK Government have provided no evidence to justify restricting children’s rights in such a way. In fact, the leading organisations in the field have evidence to show that stateless children and young people born in the UK already face significant barriers to acquiring British citizenship under existing law, and that has a significant detrimental impact on their wellbeing. Young people have described how their inability to acquire British citizenship leaves them feeling alienated and excluded.

Nationality and Borders Bill (Fifth sitting)

Bambos Charalambous Excerpts

Committee stage
Tuesday 19th October 2021 Public Bill Committees

[The Chair]

Good morning, ladies and gentlemen, and welcome to what will be for some of you the first sitting of a Committee for a very long time, and for others probably the first sitting of a Public Bill Committee. Please switch electronic devices to silent. I am afraid that food and drink are not allowed in the Committee Room, so if any Member feels obliged to get a coffee or something, I am afraid they have to drink it outside in the corridor. Water, of course, is permitted.

Members are encouraged to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering. I shall mainly not be wearing a mask, I am afraid, because my glasses steam up and I need to be able to see my papers. I mean no discourtesy to any Members who feel either inclined or obliged to wear a mask. Hansard will be grateful if Members could email their speaking notes to [e-mail].

The format of the Committee Room this morning is slightly changed as a result of the pandemic. It is a sadness to me and to the Clerks that civil servants are now required to sit in the Public Gallery rather than where they would normally sit, along the side. That makes life slightly difficult for parliamentary private secretaries, who may wish to communicate messages from the civil service to the Minister. I gather that that is now done electronically, but if there is a problem please let me know. I hope that the system will work, but we need to know if there is a difficulty.

We are about to commence line-by-line consideration of the Bill. Before we do that, at the risk of teaching granny to suck eggs, I will give a very modest tutorial. I am fully aware that, as Committees have not sat for some time, there will be Members present who have never sat on a Public Bill Committee. Even those who have and, dare I say it, even Chairmen sometimes get things wrong or do not understand what is going on. It is a fairly arcane process. All the papers that are needed, in case you have not already worked this out for yourselves, are on the table in front of me. You are not supposed to walk in front of the Chair, but I will not bite your head off if you suddenly find that you need a paper that you do not have, so feel free to come and get it. I should have said at the start that when I am in the Chair—this may not be the case with Ms McDonagh; it is up to her to decide—if Members wish to remove their jackets they may do so. Given the weather, you may not wish to.

Coming to the selection list, which I hope you all have a copy of, you will note that amendments are grouped by subject of debate, which may or may not be in the order that the Bill dictates. The order is dictated by subject matter, not the sequence in which amendments have been tabled. That is why you will find that the groupings appear to be out of order. The first grouping—amendments 29 and 84—relates to clause 1, so that is pretty straightforward. The second grouping under clause 1 relates not only to clause 1 but to other clauses. If you wish later to move an amendment, only the lead amendment may be moved. Therefore, amendment 29 may be moved, but not amendment 84, and amendment 8 but not the rest of the group. The other amendments may be moved when they are reached in the Bill. The amendments to clause 10 will be debated now but moved formally when we reach clause 10.

I am sure that is as clear as mud, but it will become clear. If Members have doubts about this or any other procedure, please do not hesitate to ask; like the man from the Inland Revenue, we are here to help you.

Not all amendments will be moved. All Government amendments will be moved, but if an Opposition Member wants to move an amendment that does not appear at the start of a group, please tell us. The Clerk will note it and you will be asked to move it at the right point in the Bill.

I hope that is relatively clear. Unlike in proceedings on the Floor of the House, any Member who wishes to speak should indicate as much to the Chair—I do not have second sight. We will try to accommodate you. You may intervene more than once in Committee, whereas only one speech may be made of the Floor of the House.

At the end of clause 1 there will be a stand part debate, offering an opportunity to debate the whole clause, as amended. If I consider that every conceivable thing that can, should or needs to be said about clause 1 has already been said, I shall not permit a stand part debate: that is in my gift, not yours. I always say that you may have one bite of the cherry, but not two. I normally allow a fairly wide-ranging debate on the first group of amendments—Siobhain might take a different view—but please bear it in mind that if you avail yourself of the opportunity I am unlikely to permit a stand part debate: you cannot say the same thing twice.

I shall try to guide you as we go along, but I am probably no less rusty than you. Let us see how we get on.

Clause 1

Historical Inability of Mothers to Transmit Citizenship

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I beg to move amendment 29 in page 2, line 10, leave out “parents been treated equally” and insert

“mother been treated equally with P’s father”

[The Chair]

With this, it will be convenient to debate amendment 84 page 2, line 14, leave out

“had P’s parents been treated equally”

and insert

“had P’s mother and P’s father been treated equally”

[Bambos Charalambous]

It is a pleasure to serve under your chairmanship, Sir Roger.

I thank colleagues from across the refugee and asylum sector for their considerate and constructive scrutiny of all the proposals made in the Bill’s evidence session in September.

As part of the Opposition’s detailed scrutiny, we will express our serious concerns about the Bill, which we believe does nothing to address the crisis in our broken asylum system and seeks to penalise the most vulnerable people in our society.

I shall first consider the Bill’s impact in addressing historical injustices in British nationality law concerning discrimination, specifically in relation to British overseas territories citizenship. We generally support the proposals in clauses 1 to 5, which seek to close important loopholes.

I pay tribute to the efforts of the British Overseas Territories Citizenship Campaign, which has campaigned tirelessly over many years for the nationality and citizenship equality rights of the children of British overseas territories citizens who have suffered under UK law owing to loopholes that we shall discuss in detail. These people feel a strong connection to the UK and deserve our support.

British nationality law can be complex. Some of the complexity arises from the British history of empire and Commonwealth. In passing the British Nationality Act 1981, Parliament created British citizens and British overseas territories citizenship. In doing so, it abolished citizenship in the UK and colonies—abbreviated to CUKC—which was a unifying citizenship for all persons of the UK and its colonies. This meant that the status of some children had the potential to be changed to overseas citizens, even though they had been born and raised in the UK.

Persons unified by CUKC were therefore separated by the 1981 Act into two groups, but amendments made since mean that the two groups are no longer aligned in British nationality law.

The Bill’s early clauses seek to bring into line the two elements of British nationality—British citizenship and British overseas territories citizenship. For the benefit of those on the Committee, I point out that British overseas territories citizenship is the citizenship of people connected to the territories that the UK has retained. It includes the following territories: Anguilla, Bermuda, the British Antarctic Territory, the British Indian Ocean Territory, the British Virgin Islands, the Cayman Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, and the Turks and Caicos Islands.

Clause 1 would create a registration route for the adult children of British overseas territories citizens and for mothers to acquire British overseas territories citizenship. Before the 1981 Act commenced on 1 January 1983, British nationality law discriminated against women, whose children could not acquire British citizenship through them. The Act removed that discrimination, but did not address the impact of that discrimination prior to the Act. Many people, therefore, would have been born British but for this discrimination and continue to be excluded from British nationality after the passing of the Act.

It is clear that a historical anomaly was created. Changes were made under section 4C of the 1981 Act to rectify the situation of children of British citizens, but no such rectification was made for the children of British overseas territories citizens. Members of the Committee will know that under the 1981 Act a number of cases arise in which an individual who would have qualified for automatic British overseas territories citizenship, British citizenship or the right to register or naturalise as a citizen is unfairly prevented from doing so through no fault of their own, as has been the case with the adult children of British overseas territories citizens.

We need to rectify that injustice. The historical inability of mothers to transmit citizenship should be corrected, and I am glad that is being addressed in the Bill. Clause 1 sets out to correct that and create a registration route for the adult children of British overseas territories citizen mothers to acquire British overseas territories citizenship.

The Opposition generally support the changes proposed in clause 1 to close that important loophole. None the less, our amendment refers to a technical matter in relation to the drafting of clause 1—specifically, that it does not follow the language previously accepted to address the injustice, as used in section 4C of the 1981 Act.

I am sure that the Committee will agree that clarity is crucial in matters of citizenship and nationality law. The language used in clause 1 is not sufficiently clear. I will explain why. For example, the clause introduces proposed new section 17A, subsections (a) and (b) of which include the terms “had P’s parents been treated equally”. As Amnesty International and the Project for the Registration of Children as British Citizens outline, the difficulty with such wording is that it tells us nothing about the direction in which equality is to be achieved or indeed in what place.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

Does my hon. Friend agree that clarity is absolutely crucial, given the mistrust of the Home Office that often exists because of its high error rate in some citizenship and wider visa decision making processes?

[Bambos Charalambous]

My hon. Friend makes an excellent point. Citizenship, clarity and consistency in the law are essential, which is why we seek to rectify the position. The provisions of one Act cannot be inconsistent with those of another.

The amendment would address the difficulty by inserting the wording,

“had P’s mother been treated equally with P’s father”,

in clause 1. It would clarify the clause and the positive intention behind it. I think that there is broad agreement in the Committee on the need to address the historical inability of mothers to transmit citizenship.

[The Chair]

Ordinarily, unless the Minister wishes to intervene, we now have a debate in which any Member may take part. At the end of the debate, the Minister exercises his right to respond and the mover of the motion decides whether he wishes to press the amendment to a Division or withdraw it. If it is the latter, I seek the leave of the Committee for him to do so.

--- Later in debate ---

[Tom Pursglove]

The short answer, based on my understanding, is no. The connected provision in the Act talks about parents and not the mother and the father, so that is why we think this is the appropriate route to take for BOTCs. I am satisfied that the current wording does what is required so I ask hon. Members not to press their amendments.

[Bambos Charalambous]

I have heard what the Minister has said, but we could avoid going down the path of seeking to clarify the current wording if the same wording that was used in the 1981 Act were used here. We do not see what the problem would be. If the wording in the 1981 Act is adequate, why not just repeat it in the Bill? It would provide clarity and stop problems occurring in the future. Our belief is that everyone should be treated equally, and we should not have a separation, which the amendment tries to correct, between British overseas territory citizens and British citizens. Regrettably, we will press the amendment to a vote.

--- Later in debate ---

[The Chair]

The hon. Gentleman has been entirely in order throughout his remarks. He has quoted from a number of documents. Would he please make sure that paper copies—or electronic copies, preferably—are made available for Hansard? Thank you.

[Bambos Charalambous]

I will be brief. I entirely support amendment 8 and the associated amendments on fees. The starting point is rectifying the injustice that has been done, and fees should not be a barrier to rectifying that injustice. We support the waiver of fees in those cases, because there has clearly been an anomaly that has disproportionately affected the people in this case. Fees should never be used as a barrier and they will clearly be a barrier in this instance, and that is why we support amendment 8 and the associated amendments in the group. If the intention is to make it easier for people to acquire citizenship, we want to remove barriers, not add them. That is what the amendment would do and that is why we support it.

There has been discussion about the cost of the administration of fees. My hon. Friend the Member for Bermondsey and Old Southwark has made the point that the Government are meant to be carrying out a review following legal challenges. I hope that we see the fruits of that review before the Bill goes through its parliamentary stages, so that we can have greater certainty. I am sure the Minister will clarify that. We also need to make sure that awareness is raised about the access to rights to citizenship and the impact that the fees will have. For those reasons, we commend the amendments.

--- Later in debate ---

[The Chair]

There is no need to have a stand part debate on clause 2. There are no amendments to clause 2, but I do not wish to curtail debate if hon. Members have anything they wish to say.

[Bambos Charalambous]

I have some remarks, which I will try and keep as brief as possible. As outlined in the Committee, opening clauses 1 to 5 seek to close the important loopholes in British nationality law. As we have already heard, British nationality law has discriminated against women and that will be corrected by clause 1 and the Opposition amendments. Clause 2 deals with children born out of wedlock, who have been prevented from deriving nationality from a British father if unmarried. That is another historical injustice and I am glad it is being considered in the Bill.

As Committee members know, before 1 July 2006, children born to British unmarried fathers could not acquire British nationality through their father. Registration provisions have since been introduced to rectify that issue for the children of British citizens through sections 4E and 4I of the British Nationality Act 1981, but that was not changed for children of British overseas territory citizens. Let us pause for a moment to reflect on the impact of the inconsistency: a child has no control over its parents’ choices, yet British overseas territories children, now adults, have been discriminated against because their parents were unmarried. Due to a loophole in British nationality law, those children would not automatically acquire British overseas territory citizenship as the law failed to provide unmarried fathers with the ability to transmit citizenship. Therefore, through no fault of their own and without knowing why, that group of British overseas territories children did not acquire rights as British overseas territories citizens—rights they deserved and should have been entitled to, including, for example, holding a British passport or gaining consular assistance from the UK.

As we know, injustices that relate to nationality and citizenship span generations, and it is right the Government seek through clause 2 to correct the historical inability of unmarried fathers to transmit citizenship. The clause will insert new sections 17B and 17G to the British Nationality Act to provide for registration as British overseas territories citizens for persons born before 1 July 2006 to British overseas territories citizen fathers, where the parents were unmarried at the time of their birth. The provisions provide an entitlement to be registered for those who would have become British overseas territories citizens automatically had their parents been married at the time of their birth and for those who would currently have an entitlement to registration were it not for the fact that their parents were not married at the time of their birth. As the clause creates a registration route for the adult children of unmarried British overseas territories citizen fathers to acquire British overseas territories citizenship, the Opposition welcome and support clause 2. It shows that the adults who have slipped through the cracks in UK nationality law over many years are no longer punished and, instead, are finally placed on an equal footing with mainland UK children born under the same circumstances.

[Tom Pursglove]

Following clause 1, this clause also seeks to rectify a historical anomaly in British nationality law for people who would have become British overseas territories citizens. The purpose of the clause is to insert a new registration provision for people who, first, would have become BOTCs automatically had their parents been married and, secondly, would currently have an entitlement to registration as a BOTC but for the fact that their parents are not married. That has long been awaited. We are aware of people who would have become British had their parents been married and see citizenship as their birthright.

Oral Answers to Questions

Bambos Charalambous Excerpts

Monday 18th October 2021 Commons Chamber

[Tom Pursglove]

I thank my hon. Friend and neighbour for his question. It will not surprise him to hear that only a couple of weeks ago I received a note from Sir David congratulating me on my appointment. It is something that I will absolutely treasure in the years ahead. His encouragement was always second to none. The truth is that people like he and I campaigned in the referendum for a global immigration system, which is exactly what we have delivered. I genuinely believe that that is the right approach to immigration for the years ahead, based on skills—recruiting the skills that we need, but making sure that we do right by the domestic labour market and people in this country by improving skills, opportunity, training and terms and conditions, and making sure that we can recruit more readily to these roles.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I, too, wish to pay my tributes to Sir David and James Brokenshire and pass on my deepest condolences and sympathies to their families. They were two of the kindest, most decent parliamentarians I have ever met. I will certainly miss my conversations with Sir David by the lifts in 1 Parliament Street, always with a smile.

The National Farmers Union has told MPs that there is a chronic shortage of butchers and agriculture workers that has led to 150,000 pigs being backed up on farms. Will the Government add butchers and agriculture workers to the shortage-occupation list, and will the Government agree to review the list earlier than 2022, as is the current plan?

[Tom Pursglove]

The hon. Gentleman raises an interesting question. He should know that the Home Office and Ministers in the Home Office are working constructively with DEFRA, which is regularly engaging, no doubt, with the National Farmers Union around these matters. Following last year’s SOL review by the Migration Advisory Committee, the Government set out their response, stating that the labour market is changing as a result of covid and that it is important to assess changes in the labour market before making widespread changes to the SOL. This is particularly true at a time when so many British people still face uncertain times with the ending of furlough. We are committed to addressing these challenges and we have taken steps in the short term to do so, but, as I say, such steps are really not the long-term solution to those challenges. Of course, we are responsive as the situation develops.

Nationality and Borders Bill (Third sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[The Chair]

We shall now take evidence from the Hon. George Brandis QC, high commissioner for Australia to the United Kingdom. We have until 12.45 pm for this session. Good morning, Sir, and thank you for joining us. Could you please identify yourself for the record?

George Brandis: Good morning, Mr Chairman. Good morning, ladies and gentlemen. My name is George Brandis and I am the high commissioner for Australia to the United Kingdom.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Q108 Thank you, High Commissioner, and welcome to today’s session. I would like to ask some initial questions about the timeline of the borders policy in Australia, or what became Operation Sovereign Borders. What the Bill before us tries to achieve happened in Australia over a period of time, so I would like to establish the timelines.

George Brandis: Yes, I can tell you that. Operation Sovereign Borders was a policy introduced by the Government of Mr Tony Abbott, which was elected in September 2013, and administered under the leadership of the then Minister for Immigration and Border Protection, now the Prime Minister, Scott Morrison.

Perhaps it would be helpful if I gave the Committee a little context. The purpose of Operation Sovereign Borders was to address a problem that had grown increasingly acute in the previous years: the arrival or attempted arrival by boat—almost always ramshackle, small, unsafe boats—across the seas, particularly the Timor sea, to the north-west of Australia, of irregular maritime arrivals. In the years prior to Operation Sovereign Borders coming into effect, there had been more than 50,000 illegal arrivals to the north-western coast of Western Australia in 827 vessels. That is the number of people we know about who made the journey.

We also know that a large number of people who attempted to make that journey drowned. There will never be a reliable figure for what that number was, because we simply do not know how many there were, but because we have counted, sadly, from the corpses, we know of 1,204 people who drowned. Whether the actual number was a multiple of that, or many hundreds more, it is impossible to tell, but certainly more than 1,200 people drowned.

Operation Sovereign Borders was introduced to address that dreadful problem. The implementation phase lasted approximately nine months, during which the flow continued. However, as the policy began to take effect and be effective, that flow dwindled to a point where some nine months later, by July 2014, it had ceased completely. Since then, there has not been a single irregular maritime arrival on Australia’s shores, as far as we can tell.

[Bambos Charalambous]

Q You said that these boats were coming to the north-western part of Australia. Where were they coming from?

George Brandis: Primarily the southern shores of Indonesia.

[Bambos Charalambous]

Q How far is Indonesia from the north-western shore of Australia?

George Brandis: It is a great distance. I cannot give you the exact figure, but it is certainly more than 1,000 km.

[Bambos Charalambous]

Q Other aspects of the immigration policy before Operation Sovereign Borders were offshoring and detention accommodation. Do you recall when those were introduced?

George Brandis: They were part of Operation Sovereign Borders. There were three elements to Operation Sovereign Borders: disruption and deterrence activities; turnarounds, where it was safe to turn the vessels around; and offshore processing. I will speak briefly to each of those elements.

With the co-operation of the Indonesian authorities, the people smugglers’ activities were disrupted at the points of embarkation on the southern shores of Indonesia, so it became more difficult for them to publicise and assemble the clientele to embark on these unsafe vessels. Generally, they were run-down fishing vessels.

The turnaround operation, which was conducted in international waters, repelled the vessels and returned them to the Indonesian shore, where it was safe to do so.

Regional processing, through a series of agreements that Australia made with Nauru and New Guinea in particular, meant that people who were not turned around and were taken onboard Australian vessels—they were rescued, in effect, because they could not be safely turned around—were processed offshore in countries where they were not at risk.

It is important to stress that Australia’s obligations under the 1951 refugee convention were complied with at all times, for several reasons. First, Indonesia in particular was a transit country for these people—none of them claimed to have been persecuted by the Indonesian Government. Secondly, the countries to which they were sent for regional processing were safe countries, where they were not exposed to the perils against which the refugee convention protects. Lastly, Australia observed its non-refoulement obligations at all times.

[Bambos Charalambous]

Q In relation to the offshoring in Papua New Guinea, is it correct to say that Papua New Guinea declared the transfers illegal, so offshoring had to stop because of the decision made there?

George Brandis: There was litigation in New Guinea about the agreement between their Government and the Australian Government in relation to a particular processing centre on the New Guinea mainland. It is not my understanding that that affected the other processing centre within New Guinea, on Manus Island.

[Bambos Charalambous]

Q But there was a class action brought by people from Manus Island in relation to the way they were treated. Do you recall the outcome of that?

George Brandis: I am not in a position to speak in relation to that, but I make the point that that is entirely a matter for the Government of New Guinea. From an Australian point of view, the legal and constitutional validity of the offshore processing arrangements were challenged in the High Court of Australia, which in the Australian system is the equivalent of your Supreme Court. The High Court ruled that under the regional processing agreements that existed between Nauru and Australia, and between New Guinea and Australia, the regional processing centres were not Australian centres; they were in no respect under the jurisdiction of the Commonwealth of Australia. They were centres operated by the Governments of Nauru and New Guinea respectively.

[Bambos Charalambous]

Q But was that not part of the reason why Australia was reported to the International Criminal Court for processing in Nauru and New Guinea?

George Brandis: I do not think that is correct. I think it would be correct to say that there was a complaint made by people who disagree with the policy to the United Nations Human Rights Council.

[The Chair]

This will have to be your last question, Mr Charalambous.

[Bambos Charalambous]

Q Do you have any figures on the cost of offshoring?

George Brandis: I do not have those figures in front of me. Under the regional processing agreements that Australia entered into with Nauru and New Guinea, the establishment of those centres, which required capital works and so on, was contributed to by Australia.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Q Thank you for giving up your time this morning, Mr Brandis. On the capacity of the offshore centres, am I right to say that it would be in the region of around 3,000 offshore places in total?

George Brandis: There were always more in Nauru than in New Guinea. Whether at the maximum point they reached as many as 3,000, I am not sure, but I would not be surprised if it was roughly that figure.

Nationality and Borders Bill (Fourth sitting)

Bambos Charalambous Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[The Chair]

We will now hear from Rossella Pagliuchi-Lor, United Nations High Commissioner for Refugees representative to the UK, and Elizabeth Ruddick, senior legal associate, both representing UNHCR UK. We have until 2.30 pm for this session. Will you please both introduce yourselves for the record?

Rossella Pagliuchi-Lor: Good afternoon to everyone. My name is Rossella Pagliuchi-Lor. I am the UNHCR representative to the United Kingdom.

Elizabeth Ruddick: Good afternoon. My name is Elizabeth Ruddick. I am a senior protection associate with the UNHCR in the United Kingdom.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Q137 Welcome, Elizabeth and Rossella. I will ask you a few questions, primarily about the legality of the Bill in relation to international law. In your opinion, do various clauses in the Bill comply with international law?

Rossella Pagliuchi-Lor: Thank you very much for this question, but I would like to start with a short statement, which will also cover that. It is, of course, one of the areas of particular interest and concern to us.

You know, of course, that UNHCR has already published two sets of opinions: one on the policy document and the other on the Bill. I want to start by saying that we actually support the broad intent—the broad aims—of this Bill: combating smuggling networks, having fairer and faster procedures, and facilitating the return of those who are found not to be in need of international protection. However, we believe that the Bill is unlikely to achieve those aims, and may further exacerbate some of the identified issues.

Our concerns revolve around three areas. The first concerns the breach of international law, as the Bill contravenes the UK’s obligations under the 1951 refugee convention. The Bill revolves around the notion that refugees are required to seek asylum in the first safe country they find. To be clear, that principle is not found in the refugee convention, and it is not a requirement in international law. It is also unworkable because it would further increase pressure on those few countries that find themselves at the frontier of a crisis. The risk, of course, is that they would be overwhelmed, and that might impact on both their capacity and their good will to provide protection and solutions.

The Bill, as it stands, will cause significant suffering to people who are guilty of nothing more than seeking asylum in the UK. It makes unauthorised arrival and presence in the UK a crime punishable by up to four years in jail, without the defences that are actually provided for by the 1951 convention. It would also keep refugees in a situation of enforced precarity for up to 10 years, with no access to public welfare unless destitute, and under threat of removal to another country, if that were possible. This is really going to create massive problems not only for these individuals at a personal level, but for their communities, local councils and the NHS.

Lastly, the system as described would exacerbate the current backlog and increase costs by making procedures longer. That will delay the integration of those who are eventually found to be refugees, and will hamper the return of those who are not found to be in need of protection. It will have a number of unintended negative consequences that will impact on the very aims that the Bill purports to pursue.

[Bambos Charalambous]

Q Just to paraphrase, you think that the Bill will not achieve its objectives because it will mean that people stay here longer, and because it does not comply with international law as you see it?

Rossella Pagliuchi-Lor: Absolutely. As I said, there is no requirement in international law that refugees should seek asylum in the first safe country they find. We believe that there will be consequences if countries start reneging on or trying to diminish their responsibilities and commitments under the convention. There is a risk of triggering a race to the bottom. We have to perceive that every time we make it harder or try to discourage refugees from reaching our shores, we are diverting them to another country. It risks creating a chain in which refugees will find it harder and harder to find asylum anywhere. The international system is based on the good-faith application of the commitments that have been freely undertaken by states. When states do not fully embrace those commitments, the result is the erosion of international law. International law is nothing more than a contract between states, and it lives or dies by states’ willingness to comply with it.

Yes, we are very concerned, and we are concerned also because we are frankly in a position of constantly advocating for asylum and doing so with countries that have way more refugees than the UK. The element that has been lost in this discussion is that the UK, by reason of its geographical position and its relative distance from crisis countries, in fact receives a pretty small number of refugees. I am not suggesting that this is something you want, and there are certainly more than you would wish for, but in the big scheme of things it is a relatively small number. This is also true, by the way, of countries around you. The UK has a fairly stable number of asylum seekers in the range of 35,000 per year. France has just under 100,000 per year, with some variations. Germany has around 150,000, and Spain, Greece and Italy all receive more applications than the UK. Of course, I am not even mentioning countries closer to the crisis. Let us not forget that 73% of all refugees and asylum seekers remain in countries neighbouring their own, and that about 85% or 86% remain in developing or middle-income countries. I would like to encourage you to look at this matter in perspective. The channel crisis is certainly a challenge, but I think it has to be looked at in a broader perspective of a global challenge for all countries with respect to displacement.

[Bambos Charalambous]

Q Just to follow up about other countries that neighbour areas where there are war zones and conflicts, can you talk about an example of one of the countries that border Syria, such as Jordan or Turkey?

Rossella Pagliuchi-Lor: Turkey at the moment has the largest number of refugees, as you know. We are talking about upward of 4 million or maybe even more. At one stage, Lebanon had one Syrian refugee for every four people; a huge percentage of its population were refugees. If you are talking about Afghanistan, there is a registered population of Afghan refugees of 780,000 in Iran, plus probably 1.5 million—maybe more—who are non-registered. Likewise, Pakistan has, between registered and unregistered, well above 2 million people. It has, I think, 1.4 million registered and maybe quite as many unregistered. So you are talking about numbers that are, frankly, enormous, relative to the numbers who come to Europe and, even more so, to the ones who come to the UK.

[Bambos Charalambous]

Q As you have indicated, the Bill seeks to punish people on how they arrive in the UK, by giving them less temporary protection. Are you aware of any other countries that do that apart from Australia? We heard this morning from the high commissioner for Australia.

Rossella Pagliuchi-Lor: There have been attempts by other countries, and of course the case that comes to mind is Denmark, which has been in the media, particularly in relation to the question of returns of Syrians. But I would like really to focus on the UK, rather than on other countries, if you will allow me. First, obviously there are principles that are applicable across the board. Obviously, we are asking all countries to act in a manner that is consistent with their international obligations. I think that we tend to forget that situations are sometimes different in terms of the practical applications. I know that you had the Australian high commissioner here this morning, even though I did not listen to his presentation. But of course the situation in Australia is very different from the situation in the UK. In any case, I would strongly recommend you not to follow that example, frankly.

[Bambos Charalambous]

Q The vulnerable persons resettlement scheme closed. Do you think that the closure of schemes like that has an impact on the increased numbers of people seeking asylum in places like the UK?

Rossella Pagliuchi-Lor: Yes and no. Having resettlement schemes and other legal pathways, such as a well-functioning and perhaps slightly more generous family reunion mechanism, will certainly allow certain people to come legally where they might otherwise have been tempted to do so irregularly. However, the reality is that resettlement programmes—even a generous and well-run resettlement programme such as the VPRS—are really a bit of a drop in the bucket. You have to consider that, in any given year, we manage to resettle a fraction of 1% of the refugees who would be in need of resettlement. There is really a vast disproportion. That is why we say that resettlement is extremely valuable, is a life-saving mechanism—and we really commend the UK for its efforts in this sense—but is not an offset for granting asylum.

[Bambos Charalambous]

I know other colleagues wish to come in, so I will leave my questioning there. Thank you very much.

--- Later in debate ---

[The Chair]

Welcome to all our witnesses. Who would like to start?

[Bambos Charalambous]

Q The purpose of the Bill is to increase fairness, better protect people seeking asylum, deter illegal entry to the UK, break the business of human trafficking and remove more easily those who have no right to be in the UK. In your opinion, does the Bill achieve those aims? Can I start off with Lisa?

Lisa Doyle: In our opinion, it does not meet those aims. Previous witnesses you have heard from in the last few days have also said this. There is little evidence that putting deterrents in place actually stops people arriving in the UK. People are pushed into situations where they seek safety. Research that we have conducted, and that the Home Office conducted a while ago, showed that people often did not have information about the rights and entitlements they would be greeted with in the UK.

Because there are not enough safe and regular routes for people to come to the UK, they are forced to rely on smugglers and others to reach here, and they get different types of information. The deterrents do not work. There is not evidence that they work. Our concern with lots of the provisions in the Bill is that they seek to punish or disadvantage or make vulnerable people even more vulnerable, rather than giving them the protection they need.

Mariam Kemple-Hardy: Thank you very much for having me today. I want to say that I will be giving evidence based not just on the work that Refugee Action do as a service provider. Over July and August we held a series of focus groups with refugees and people in the asylum system to consult with them on what they thought the impact of the legislation would be.

First, at Refugee Action we have really welcomed the warm words of the Government recently in response to the Afghanistan crisis. They have said that they want to give a warm welcome to refugees fleeing that horror, and we welcome that. However, that warm rhetoric is not matched by the harsh reality that we see in this Bill.

As Lisa has said, the Bill is about punishment. It is not about protection. We understand there are two key objectives of this legislation, the first being to make a fairer asylum system and the second being to deter people from making dangerous crossings. We believe the legislation fails on both counts.

When it comes to making a fairer asylum system, what we actually see is this legislation creating a deeply unfair system, where, for the first time ever in UK law, refugees will be judged based on how they enter the country, not on their protection needs.

Secondly, when it comes to deterring dangerous journeys, this legislation is likely, as per the Government’s own equality impact assessment last week, to make people take even more dangerous routes. Far from breaking the business model of people smugglers, this legislation plays into that business model. If you make it harder to enter the country, smugglers can charge more and encourage people to take even more dangerous routes. We are likely to see more people losing their lives as a result of this.

The key disrupter to that business model is providing safe routes to safety, but we do not see anything said about that in this legislation. There is nothing to increase refugee resettlement, nothing to increase access to family reunion and nothing about humanitarian visas. It is all about punishment. It is not about protection.

Alphonsine Kabagabo: Thank you for giving us this opportunity. We will be focusing on the impact of this Bill on women, because we represent that area. We are an organisation that supports women to safety in the UK and defends their rights. As other people have already said, this new Bill will have a great impact on women.

As you know, quite a lot of women in our network have survived gender-based violence. They have been traumatised through being raped, being forced into marriage, being forced into sexual exploitation or through FGM. For them to access a safe route has got to be an option for me, because it is not a choice. It is an issue that they cannot avoid. This Bill makes it even harder for those victims to access safety.

We are also concerned about some of the detail, such as providing evidence when you arrive, as soon as possible. Women who have been traumatised, because they have been violated, raped and all that, cannot provide that evidence straight away. They need time to heal, to be protected, to access mental health support. They need time to understand the system, so that is retraumatising them even more.

We are also very concerned because there is even a clause about being a member of a particular social group, and gender is not one of the groups. That really will absolutely affect some of the women we are fighting for. We were also surprised that the Bill is at odds with the Government policy on violence against women and girls, which proposes to support survivors of gender-based violence. Instead of offering safety and support, this new Bill will actively harm and traumatise women. So, I will say that, but my colleague Priscilla might want to add something. Over to you, Priscilla.

Priscilla Dudhia: That was fantastic—nothing to add.

[Bambos Charalambous]

Q Picking up on what Alphonsine mentioned about late provision of evidence and disclosing evidence, which is mentioned in clause 23, and about people being penalised for not disclosing evidence that they may not be willing to share straight away, what are your thoughts on that? Also, what are your thoughts on the inadmissibility clause and about clause 10, the two-tier clause about treating people differently based on how they arrive?

Lisa Doyle: In terms of the two-tier system, it seems incomprehensible that you would treat somebody differently based on their mode of arrival, not because of their protection needs. You could have a perverse situation with next door neighbours from Afghanistan, with one fortunately finding their way on to the formal resettlement route and the other being forced to take the decision to make a dangerous journey, then, on reaching UK shores, getting a different level of protection and rights than their next door neighbour, even though they are fleeing the same persecution and threats. People’s protection needs are not based on how they travel, how much money they have or what their identity is—in terms of whether men might be more prone to travel or not. People make decisions, when they are forced to rely on smugglers, about who they will prioritise to send to a country, and then hope that they can apply, through refugee family reunion, for others to join them afterwards. Having differential treatment based on mode of arrival seems grossly unfair.

Mariam Kemple-Hardy: I agree with everything Lisa has just said. Afghanistan is a really instructive example. In August, the whole world witnessed what it is like when a country enfolds itself in crisis—how chaotic it is. We saw how few and how precious those places on those planes were.

It is fantastic that the Government have committed to taking in 20,000 refugees from Afghanistan over the next two years, but we know that that is a drop in the ocean. We saw people clinging to the sides of planes. That is how desperate they are to reach safety. Although we welcome the fact that the Government have said that they will take in 20,000 Afghan refugees, we are very concerned about what will happen to the 20,001st Afghan refugee who arrives after this legislation. That Afghan refugee, as Lisa says, will be fleeing the same horror, but they will be treated as a second class of refugee.

When we spoke to our focus groups, they said that if they were to get this second-class version of refugee protection, their life would be one of “You can’t. You can’t. You can’t.” They said, “Look, this temporary protection is no protection at all.” They thought that, with very unstable immigration status, all the building blocks of rebuilding your life—being able to access a job, to rent somewhere, to send your children to university—would be far, far beyond them. As a result of that, we believe that this whole concept of temporary protection is, as I said, no protection at all. It is a system of punishment, not protection.

[Bambos Charalambous]

Q I ask the same question to Alphonsine and Priscilla.

Priscilla Dudhia: Without repeating what has already been said, we would like to highlight that, as well as distinguishing between refugees based on their mode of arrival, the Bill also distinguishes between refugees based on the point at which they claim asylum and punishes those who have not claimed asylum “without delay”.

As an organisation that, as Alphonsine highlighted, supports a large network of women who have survived the most horrific cases of sexual and gender-based violence, we are concerned about the fact that women who had survived that violence would be punished by this. We know that women who have experienced that kind of violence have issues in disclosing that.

Those issues are well acknowledged in Home Office policy. That policy talks about the barriers that feelings of shame and guilt can create, the stigma that comes with sexual violence and the fear that some women might have of reprisals from community and family members. That same policy goes on to say that late disclosure should not automatically prejudice a woman’s credibility. In clause 10, we have a direct contravention of that acknowledgement of the very real challenges that women who have fled gender-based violence face in sharing their experiences.

Alongside that, there are other situations in which women might not be able to claim asylum at the earliest opportunity. For instance, many of the women to whom we have spoken in our network had no idea that they could claim refugee protection on the basis of the gender-based violence that they have faced. There are other women who have fled violence and did not intend to stay in the UK for a long time—who came here on a visa, wanting to escape persecution but with the intention of going back—but later discovered that, “Actually, no, there is a grave threat to my safety still, and I need to stay.”

I would like briefly to share the story of one such woman, called Agnes, who is a refugee from a west African country. Agnes fled political persecution. She fled her country—she was in danger—and eventually decided to go to the UK, where her daughter was studying. She was the only family member that she could be with. She wanted to return, but once she was here she realised that political opponents were still being targeted. A lady for whom Agnes was working as an assistant was in prison at the time when Agnes was in the UK, and she realised that it was not safe for her to go back.

Agnes said that she was expecting to go back home quickly, but she could not: “When I realised my visa was going to expire, I went to Croydon to ask what to do to apply for asylum, and that is what I did.” Unfortunately for Agnes, she was locked up in detention, which she found hugely traumatising given her previous experience of incarceration. Her claim was refused at the initial stage and on appeal, and she had to lodge a fresh claim. Today Agnes has refugee status and we are immensely honoured to say that she is part of our team at Women for Refugee Women, where she works as a detention campaign spokesperson. I say all this to highlight that there may be legitimate reasons why vulnerable women are not able to claim right away, and we do not think that it is acceptable to be punishing them.

[Bambos Charalambous]

Q Thank you. I have one more question on something that Priscilla touched on, about how the Bill will increase the need for asylum accommodation. We have heard about the issues at Napier Barracks. People from Afghanistan are being kept in hotels at the moment. What are your thoughts on the clauses to do with accommodation and their impact? I will ask Lisa first.

Lisa Doyle: At the Refugee Council we are really concerned about having large-scale accommodation centres set up where people are kept away from communities that, should they get refugee status, they would want to be able to integrate into, so they will have little contact with friends, neighbours and volunteers. Those kinds of things are a real worry. The dispersal policy as it works now is that people are housed within communities. There are little details about the accommodation centres, and we are aware that the Home Office has started to tender out for those, but a lot of the detail on that is privileged to those who want to bid. We want to know who would be put into those centres. Napier Barracks is a really good case of looking at suitability for people. We know that with covid there were particular risks, and independent inspectorates showed that parts of Napier were not fit for human habitation.

In terms of vulnerability, the Home Office has alluded to the fact that it would not necessarily put vulnerable people into large-scale accommodation centres, but it does not have a very good track record of identifying vulnerable people at an early stage. Many people were removed from Napier because of their vulnerabilities, because non-governmental organisations and charities took legal cases against the Home Office and then the Home Office removed them. The safeguards are not there. If people are outside communities, there is not oversight and that will really damage people’s chances to integrate and rebuild their lives should they get refugee status.

Mariam Kemple-Hardy: The first thing to say is that asylum accommodation has been in crisis for years. In the last 12 months, five of our clients have had the ceilings where they live fall on them. The two-year-old toddler of one of our clients was hospitalised because their head was split open. We have had whole families having to live in just one room. We have had people stuck in hotels for years. There is a crisis of accommodation. However, what we see in the Bill is that it doubles down on that injustice that we see.

When it comes to accommodation centres, we are against them on a point of principle and also because of the practice at Napier and Penally Barracks over the last 12 months. When it comes to the point of principle, as Lisa says, the idea of segregating part of our society and othering them is something that we disagree with. It takes people away from the communities that they want to integrate into; it takes them away from the healthcare that they may need to access—they are very traumatised people who have particular mental health and physical needs in many instances; and it takes them away from opportunities to get education and so on. On a point of principle, we are very much against that practice. However, in terms of actual practice, over the last year in Napier and Penally Barracks, we have seen appalling situations where people have tried to take their own lives. We saw, at the height of the pandemic, people being forced to live with 28 other strangers in dormitories. In Napier Barracks, there was an outbreak when 197 people tested positive for covid-19. Traumatised people in Penally Barracks were next to an active firing range. In terms of the way this has been put into practice, we are deeply concerned about the plans.

I want to make two quick final points about the how the legislation is currently drafted. First, the legislation would give the Home Secretary the ability to extend the maximum amount of time that someone can be in an accommodation centre. At the moment, the maximum is six months. The Bill does not say how long someone could be in the accommodation centre—arguably, it could be unlimited.

Secondly, the Bill also allows people in those conditions to be put under residence conditions, such as being told that they were not able to leave that accommodation for a certain period of time during a day. We are seeing the potential for unlimited de facto detention as a result of the Bill. Someone in our focus group said, “Let’s be honest; it’s not a camp, it’s a prison. Let’s call a spade a spade”. This is not something that we want to see in our refugee protection system.

[The Chair]

I am terribly sorry to our witnesses on Zoom, but I would like to get some more questions in, if that is okay. I call Jonathan Gullis.

--- Later in debate ---

[Paul Howell]

I agree that it is a difficult one either way—children to adult or adult to children. It is just a question of where the boundaries sit and making sure we get those in the right place.

[Bambos Charalambous]

Q I have some questions for Adrian about enforcement and the legal parts of the Bill. I will start with clauses 23 and 24. This is about the late provision of evidence, giving weight to the late provision of evidence and then, following on from that, appeals. What are your thoughts in relation to that? You probably need to look at it in conjunction with clauses 16 to 20. Just give us your assessment of those clauses.

Adrian Berry: This is an attempt to be prescriptive on the way in which, first, the Home Office and, secondly, judges will assess credibility in a range of situations in relation to claims on human rights grounds and asylum claims. It is not the first time that we have had credibility clauses put into Bills to tell judges what their job is and how to approach witness evidence. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 tried to do that, and now we see a range of these provisions spattered across the Bill. The problem is that they always set early cut-off dates for providing evidence and then say, “Well, if you provide the evidence late, you’re penalised on credibility.” But the obvious question is this: what is the instrumental connection? If the evidence is good and proves that you are in need of international protection, why is your credibility damaged? You have done what you are supposed to do, and the UK obligations are engaged.

It attempts, effectively, to usurp the judicial function, to take it away from judges, who are expert at assessing past facts of what has happened in foreign countries, foreign laws and protection risks, and to say, “Well, here we’re going to discipline the task for you, regardless of the merit of the application, and penalise a person who may have difficulty getting evidence, who may be traumatised by their journey to the UK and who may lack funding to get things properly translated or to commission expert reports.” It says to them, “We’re going to penalise you, regardless of the merits of your claim, because we have set an early cut-off date and you haven’t met it.” It is introducing yet one more hurdle. It has not worked before, under the 2004 Act, and it is unlikely to work in this Act.

[Bambos Charalambous]

Q I also want to ask about the impact on appeals, because there is a limit on where you can appeal to. What do you think the impact of that will be on decision making?

Adrian Berry: Severe, in fact. If you look at the provision for priority removal notices and expedited appeals, there are some serious concerns. If you introduce a claim for asylum and you provide evidence after the cut-off date given, in a priority removal notice you are given what is called an expedited appeal. That begins in the upper tribunal. Your first punishment is that you lose your right of appeal and hearing in the first-tier tribunal. The second punishment—much more serious—is the return of the ouster clause. It is that the upper tribunal hearing is final; there is no onward appeal to the Court of Appeal. That is something that was first tried in clause 11 of the 2004 asylum and immigration Bill, before it became the 2004 Act. And it is wrong—one first-instance appeal on human rights grounds or asylum grounds in the upper tribunal. Mistakes happen. They need to be corrected. There would be a reason for the Court of Appeal to be available, and thereafter the Supreme Court. And there is no vice in allowing that, because of course the appeal tests, for permission to appeal, are tightly controlled and policed by judges making permission decisions. An expedited appeal leaves you with one shot—no rights of appeal. It has serious implications for the rule of law that the first-instance tribunal decision cannot be reviewed.

[Bambos Charalambous]

Q Adrian, still on the issue of telling judges and courts what to do, clauses 62 and 63 are on wasted costs orders. I just wondered what your thoughts were on those clauses.

Adrian Berry: There are three things. First, there is no need for them. We already have three ways of controlling advocates in court. First, there are case management powers in the tribunal system to regulate conduct of a case. Secondly, under section 29 of the Tribunals, Courts and Enforcement Act 2007, there is a wasted costs and unreasonable costs jurisdiction, which is applied in the tribunals. Thirdly, there is the ability of tribunals and courts to refer practitioners who are considered to have behaved improperly or negligently to their regulatory bodies, such as the Solicitors Regulation Authority. We already have all those constraints.

Adding in charges, which would be paid to the state, rather than being costs between the parties, and making provisions for unreasonable costs orders, is absolutely unnecessary. There is not any evidence in the explanatory notes as to why that needs to be done, because there is no evidence of any deficiencies in the existing three mechanisms that I have outlined. It will chill the ability of other people to take difficult points on behalf of vulnerable people.

[Bambos Charalambous]

Q Looking at the enforcement part of the Bill, I am looking at clause 41, which is about maritime enforcement and introduces new schedule 5, which relates to the Immigration Act 1971. It is to do with pushbacks and other associated measures. What is your interpretation of what this clause does and how effective it will be?

Adrian Berry: Maritime enforcement provisions butt up against the United Nations convention on the law of the sea and its article 98 duty of rescue. That is a part of customary international law. If you are at sea as master of a ship and see someone at risk of losing their life because they are in an insecure vessel or are in distress and they ask for assistance, you are obligated to help them. That is the basic position. This provision not only creates powers to allow Home Office vessels to leave UK territorial waters and enter international and foreign waters, but it enables them to stop, board and then divert vessels away from the UK and back to foreign ports.

That creates a situation where there may be a risk to life and limb, because these vessels are often very insecure. Although Home Office staff may not board them, in circling them and trying to press them back, they are making those lives insecure. There may be a question of extraterritorial jurisdiction under the Human Rights Act 1998 for such behaviour. It also risks their lives. It cuts across the duty of rescue, which applies not just to the Royal National Lifeboat Institution or to merchant vessels; it also applies to those very Home Office vessels. They, too, are subject to the duty of rescue, regardless of the fact that they are trying to hustle asylum seekers back out of UK territorial waters.

[Bambos Charalambous]

Q There is a clause in the Bill that removes the words “for profit” from one of the pieces of legislation on rescuing, so that would clearly impact on anybody rescuing anybody in distress. Is that your reading of it?

Adrian Berry: Yes, that is clause 38, which removes the “for gain” provision from assisting an asylum seeker to enter the United Kingdom. That could prejudice a prosecution that is brought on people who are involved in search-and-rescue operations, which is also part of the UN Convention on the Law of the Sea, by the way. In addition, an asylum seeker who might be piloting an unsecured vessel across the channel could be prosecuted, even though they too are an asylum seeker. There is no article 31—of the refugee convention—defence to that criminal charge, and it would undoubtedly be a penalty, because it would be frustrating the operation of the refugee convention, in terms of the UK’s obligations under that.

[Bambos Charalambous]

Q A number of clauses seek to interpret the 1951 refugee convention, particularly clauses 27 to 36. By trying to do that, does it put the UK in a better position or would that be laughed out of court, for want of a better phrase?

Adrian Berry: Judges are not necessarily meant to laugh in court, but the question is: what is the purpose of it? When we were in the European Union and had the common European asylum system, we had a system of common standards, so the refugee qualification directive specified the way in which refugee convention terms were to be applied, because we needed to have common methods and systems throughout the European Union. We have left, as we all know, and the status quo ante ought to apply, where we just apply the refugee convention as determined by our courts and the provisions thereunder.

This specification in primary legislation is unnecessary. These terms are well understood. The only attempt here is to change the settled law, including from the highest judicial courts—the previous judicial House of Lords, now the Supreme Court—and other decisions of binding authorities. We see an attempt to change the standard of proof for the assessment of past facts in refugee cases from “reasonable chance” to “the balance of probability”. That cuts straight across binding authority in this jurisdiction in the case of Karanakaran v. Secretary of State for the Home Department. We see an attempt to revise the definition of “particular social group” so that the two tests are now cumulative rather than the alternative. Again, that cuts across binding authority. It is an attempt to write out the settled view of the courts on the interpretation of the United Kingdom’s international obligation, where the UK courts’ interpretation is consistent with international practice and the terms as defined in the Bill are not.

[Bambos Charalambous]

Q A final question from me. Looking at the Bill as a whole, bearing in mind that it seeks to make the system fairer, to deter people from using illegal routes and to break the smuggling model, do you think that it will achieve any of those objectives?

Adrian Berry: No, not at all. If you want to end smuggling routes, you have to open safe and legal routes to claim asylum in the UK, which may mean humanitarian corridors. It may mean bringing people to the UK to claim asylum rather than allowing them to be exploited by smugglers and traffickers. It may mean improving and having a fast and fair procedure in the United Kingdom that allows claims to be determined swiftly and robustly. The main reason why there is a smuggling industry is that there are no safe and legal routes, and therefore one can make a profit out of these vulnerable people.

[The Chair]

Thank you. I call the Minister.

Nationality and Borders Bill (First sitting)

Bambos Charalambous Excerpts

Tuesday 21st September 2021 Public Bill Committees

[The Chair]

[Bambos Charalambous (Enfield, Southgate) (Lab)]

[The Chair]

--- Later in debate ---

[The Chair]

[Bambos Charalambous]

[Bambos Charalambous]

[Bambos Charalambous]

[Bambos Charalambous]

[The Chair]

Nationality and Borders Bill (Second sitting)

Bambos Charalambous Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

Q 23 I ask the witnesses to please introduce themselves.

Lucy Moreton: Good afternoon. My name is Lucy Moreton, and I am the professional officer for the ISU, which is the union that represents borders, immigration and customs staff.

Zoe Gardner: Good afternoon. My name is Zoe Gardner. I am actually policy and advocacy manager at the Joint Council for the Welfare of Immigrants—I think my title was communicated wrongly before. JCWI is one of the oldest organisations in the country representing migrants and refugees going through the UK immigration system.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Q The premise of the Bill, according to the Government, is to fix the broken asylum system. In your opinion, will the Bill do that? If not, what needs to happen to fix the system?

Lucy Moreton: I think that if we knew how to fix the system, we would all have much quieter and easier lives. The Bill addresses some of the issues with the current asylum system, but without a significant underpinning of resources it will not make the difference that is anticipated. We have reached the situation that we have with the structures, both above and below the border, breaking, if not in fact broken, because of under-resourcing. You can set up an additional fast-track appeals process, for example, but if you do not resource the courts to enable them to have the rooms to hold the hearings, the judges to make those adjudications and the clerks to promulgate them, it will make no difference. You can express wishes in a Bill to return migrants to a safe third country, process them offshore or turn them back before they reach UK waters, but all that requires the co-operation of international partners, and if you cannot achieve that, it is nothing more than words on a bit of paper.

[Bambos Charalambous]

Q Zoe, do you have a response to that?

Zoe Gardner: Yes. Thank you for the opportunity to speak to you today. The short answer is that the available evidence does not support the approach being taken in this Bill. The aims of the Bill that the Government have put forward are to create a fairer asylum system and to discourage the use of irregular journeys by asylum seekers using smuggling routes. A fair asylum system would provide protection to refugees based on their need. The Bill does not propose a system that would do that. Furthermore, the evidence from similar policies enacted in other countries, or previously enacted in the UK, shows us that this approach is unlikely to deter people from seeking to come to the UK using irregular means, because it does not provide meaningful alternative ways for people to travel. In short, the Bill will not work. The only people who will be celebrating its implementation will be the criminal smuggling gangs.

[Bambos Charalambous]

Q Lucy, according to a recent report there are 399 asylum claims in the system that have taken 10 years and still not been processed. Is that more than just a resourcing issue?

Lucy Moreton: I do not know the details of those 399 cases. If they have been in the system for more than 10 years—about 10 years ago, I was an asylum decision maker—it is likely that there will be other elements within that that are more complex. It is possible to repeatedly delay conclusion of a case through the late submission of evidence, for example. Whether that is the case in any or some of that group, I do not know. Clearly, the needs of anyone genuinely seeking protection in the UK are not served by being stuck in the system for months, let alone years.

[Bambos Charalambous]

Q Clause 10 treats people differently based on how they arrive. If you arrive via regular routes, you are given protection. Lucy and Zoe, do you think that achieves the aims of the Bill?

Lucy Moreton: My understanding is that the stated aim is to deter irregular migration. I cannot see how some theoretical change, which is what it is at the moment, to how you might eventually be treated when you are finally granted asylum here would deter irregular migration. One element proposed for the group 2 refugees —the ones who have entered irregularly—is that it may limit their family reunion rights. Absolutely accepting the political balancing act that has to be done here, if you prevent people from travelling through a regular route, they will use an irregular route, so that alone seems to be circuitous.

Zoe Gardner: I agree with that assessment. The available evidence shows that the people who are making these journeys in order to seek asylum do not know the detail of different refugee protection regimes in different countries. They base their decision making on where to go. Either they do not make the decision at all themselves and it is in the hands of the smugglers who transport them, or they make the decision based on their connection to a country—so having family members in a country, speaking the language, or having other connections. In the case of Afghans at the current time, they might be ex-colleagues who have worked with the British military in Afghanistan. That might be a reason for their trying to come to the UK. The details of the system will not deter anybody.

With regard to the aims of the Bill, which is concerned with fairness, if we look at how the inadmissibility rules have operated so far, in the first six months of their operation since January, 4,500 people have been issued with a notice of intent under the inadmissibility rules, and 173 of those are from Afghanistan. This means that in effect their asylum claim has been put on hold for at least six months while the Government seek to find another place to send them—anywhere else but here. That is obviously not in the interests of fairness when it comes to people from Afghanistan who are clearly fleeing a dangerous situation.

JCWI has a client from Syria who is 19 years old. He was individually targeted by the Syrian military and was forced to flee at a moment’s notice. He had no other option but to take an irregular route. He has two sisters living here in the UK, so that was what motivated his choice to pay a smuggler to make a desperate escape and come to the UK. He is now in the inadmissibility process, and his mental health is deteriorating because of his fear that he will be sent away. The Government have told him that they are considering his removal to Austria or France or to anywhere else—anywhere else being somewhere that has no legal obligation to take him in and where he will have no family members. If he were to be removed, we would potentially be giving the smuggling gangs a repeat customer, because he would obviously have reason to seek to come back to the UK.

It also does not make any sense to pause that client’s claim for the time being, and the claims of 4,500 others—probably more at this stage—and have them wait in this limbo system, at great cost to the taxpayer and great harm to their mental health, on the basis of agreements to return people here, there or anywhere that we do not actually have yet. This approach is not going to achieve its aims whatsoever. The only thing it will achieve is cruelty, delay, additional bureaucracy and, as I say, lining the pockets of the smuggling gangs.

[Bambos Charalambous]

Thank you. I will let other Members ask questions now. If there is time, I would like to ask some more later.

[The Chair]

I call Stuart McDonald.

--- Later in debate ---

[Stuart Anderson]

Thank you.

[Bambos Charalambous]

Q Mr Kirby, I want to ask about the issue you raised of people raising a defence and there being a delay. The national referral mechanism is meant to make decisions quite speedily, nut it is not doing that. Do you agree that if the NRM were to make decisions more quickly, that would stop this practice?

Assistant Chief Constable Dave Kirby: I think that would assist hugely. The delay can still be there, because people can choose when to bring the defence, and sometimes that is even at trial. But, yes, more speedy decisions from the civil competent authorities would be helpful, because investigators—we all know that resources are very stretched in every force area—could then focus on the areas they really need to.

[Bambos Charalambous]

Q What international co-operation do you have with Europol or countries such as Albania in trying to stop international gangs trafficking people in the first place?

Assistant Chief Constable Dave Kirby: At a national level, we have had some quite good interaction and support from Albania and other countries, including Lithuania—in fact, my own force in Derbyshire has had a joint investigation with the Lithuanian authorities around forced labour exploitation. So I would say that the support is good; in general, it is conducted in conjunction with Europol or the National Crime Agency. Given the complexities in achieving that level of co-operation, it tends to be for our higher level investigations, where we have mapped organised criminality working at an international level, as opposed to the day in, day out criminality and exploitation that we uncover.

[Bambos Charalambous]

Q Final question from me. Do you not think it is right that somebody who claims to be a victim of trafficking should be treated as a victim and that if they choose to disclose something later, that should not count against them?

Assistant Chief Constable Dave Kirby: I think what you are getting at is correct. The reason is that some of these people are under a huge amount of duress, including their families being threatened. Their families remain in Albania and other countries, so they cannot protect them, and violence is often used by these groups. If people are told not to claim that they are a victim and to go through the criminal justice process, and then at some point change their minds for whatever reason, I think that needs to be allowed and not counted against them. The difficulty is, of course, those who would exploit the system and raise a defence at a late stage in order to cause complications for the prosecution and who are in fact criminals, sometimes at a fairly high level. That is where the police and other agencies always need to be cognisant that that defence can be raised and to run those parallel investigations.

[Anne McLaughlin]

Q Good afternoon. I will start by saying that none of us here can possibly understand how complex the work is that you and your colleagues do. I am trying to understand some of it. I know that recently you said that you have spotted a trend of people who were arrested in drug busts claiming to be victims of slavery when you did not believe that to be the case. I think that, as a result of those concerns, the Home Secretary is overseeing plans to roll out a new public order definition that will allow police forces to refuse NRM protection to those committing serious crimes.

That turns the presumption of innocent until proven guilty on its head. Do you think that that is the most helpful way to go forward and, if so, are there other circumstances in which we should not offer support to people because we do not believe them, before they have had the opportunity to prove otherwise? If you do not think that it is helpful, how would you amend the legislation to be more helpful, while recognising that we do not know whether people are victims of slavery at the point at which they are arrested?

Assistant Chief Constable Dave Kirby: There are a few areas there. First, the existing legislation does not apply to a lot of crime types in any event—some of the more serious crime types that you mentioned, such as kidnapping and manslaughter, and lots of offences included in the Offences Against the Person Act 1861 and firearms legislation, so some of that is there already. I do not think that it is right to say that policing is turning the presumption of innocent until proven guilty on its head. What I would say is that, where we already have information and intelligence in relation to individuals and their place within a criminal hierarchy, at that point it may be appropriate to turn that presumption on its head.

To illustrate, there is a recent case in Derbyshire where an Albanian gang has been dismantled only in the last couple of weeks. There have been 24 arrests, and I think 12 of those people were Albanians, running cannabis growers and other types of criminality in the region. More than one of those people claimed to be victims, but we had a covert investigation behind us that showed their level of control, their ability to communicate, the resources that they had and various things that clearly went against that claim. Absent that information and intelligence, I do not think that we would say, “We don’t believe this person,” in the first instance. An investigator should, and in all investigations does, go into that situation with an open mind. This person could be a victim or could, in fact, be a criminal. They start at that point, not on one side or the other.

The other part of your question was about what we do to make things easier for investigators to understand the true position. I think that, again, that would be some sort of duty to co-operate, because it is quite difficult if somebody claims to be a victim and then, for example, refuses to provide a phone passcode, and so on. Perhaps a duty there would assist us. I mentioned whether a person should have to declare straightaway, because often there are delays, but I think that a lot of genuine victims would suffer that way.

--- Later in debate ---

[Tom Pursglove]

Thank you, that is very helpful.

[Bambos Charalambous]

Q I have some follow-up questions to that. You mentioned the Balkan states, in particular Albania and Lithuania. Is it generally the Balkan states which are involved in the criminal gangs you have come across?

Assistant Chief Constable Dave Kirby: At the moment, there is a heightened threat from people from those areas. That is what we are seeing most of in terms of foreign national offenders in Derbyshire and the east midlands, and I am fairly confident that is also the pattern elsewhere. To illustrate, we used to see Vietnamese organised criminals involved in cannabis growing, sex trafficking and other issues, but more often than not we now see Albanians in control, potentially exploiting those Vietnamese people, or, if not, working together. Some alleged groups are so well-organised and disciplined that they are able to effectively out-perform other criminal gangs. That is the threat we are seeing most in terms of foreign national criminality.

[Bambos Charalambous]

Q On the issue of how often the slave defence is being used, how much of a problem do you see it as being? Does it happen all the time, not at all, by many people, or a few?

Assistant Chief Constable Dave Kirby: It is happening very regularly. However, we are uncovering victims very regularly, so in their cases that is a very positive thing. Forgive me, could you repeat the last part of the question?

[Bambos Charalambous]

How often is it occurring? How much of a problem do you see it as being?

Assistant Chief Constable Dave Kirby: I think it is occurring a lot, but whether I would classify it as a problem or not is another issue. When it is being used genuinely for victims in some of the most terrible circumstances imaginable, I would not classify that as a problem. However, the abuse is real; it is actually organised and, in some cases, quite systematic.

[Bambos Charalambous]

Q You mentioned that when you find these criminal gangs, you come across many victims as well. How do you differentiate between the two?

Assistant Chief Constable Dave Kirby: From a domestic point of view, we would look at things like if they have access to communications, do they have their own phone or not? Have they got an evident network of contacts or friends? Have they got control of their own finances? Have they got control of their own documents? Are they able to come and go, or are they locked into a premises, for example? There are not many people within the sex-trafficking area of exploitation who are there voluntarily, of course, so we look at all of those factors.

Really, we are looking at someone’s freedoms; their access to resources, including money, telephones, that kind of thing; and whether they have a normal pattern of life, a normal pattern of life for a criminal, or if they are very much restricted in what they can do. That is one of the ways we can identify people as victims. We would also conduct more detailed work around finances. For example, if benefits are being claimed, who are they being collected by? Which accounts are they being paid into? Are we seeing the same account more than once, which might show an element of organisation and coercion? Those kinds of things.

[Bambos Charalambous]

Q Is there not a danger, with some of the clauses, that you will also catch genuine victims of trafficking if they do not disclose something early on?

Assistant Chief Constable Dave Kirby: Again, I think it is really important that victims are allowed to make that claim at any point. I say that because of the coercion that exists, including threats to family members and so on. If somebody is arrested for whatever offence and know that they are a victim, they dare not claim to be so because their bosses say, “Don’t do that.” They know that if they plead guilty, and indicate that they will do so, the investigation is likely to be stopped short, saving further investigation into the organised crime group. The person is told to toe that line because of the threat to their family. It is difficult to say that they must declare early in those circumstances.

[Bambos Charalambous]

Q But the Bill does not distinguish between the genuine victims and those who are trying to evade the system.

Assistant Chief Constable Dave Kirby: No, it does not, and again, it is down to the skill, knowledge and understanding of the investigators and other agencies to spot the signs and be alive to the fact that they are not just investigating whatever criminality is reported; they are also investigating the status of those involved.

[Bambos Charalambous]

Thank you.

[The Chair]

If there are no further questions, I thank our witness for his evidence. We will move on to the next panel.

Examination of witnesses

Councillor Roger Gough and Councillor Rachael Robathan gave evidence.

[Chair]

We will now hear oral evidence from Councillor Roger Gough, from Kent County Council, who is joining us virtually, and Councillor Rachael Robathan, from Westminster City Council, who is here in person. We have until 4pm. Would the witnesses introduce themselves for the record?

Councillor Roger Gough: I am Roger Gough. I am the leader of Kent County Council. I also chair the South-East Strategic Partnership for Migration.

Councillor Rachael Robathan: I am Rachael Robathan, I am leader of Westminster City Council.

[Bambos Charalambous]

Q I thank both witnesses for coming today to give evidence. I just wonder about your experience of the pressures of having to look after asylum seekers in your respective authorities. I know that it will be different for each of you but what pressures have your councils been under?

Councillor Rachael Robathan: Just to give a current picture; we have 638 Afghan refugees who have come in as part of the current settlement in one hotel on the Edgware Road. We have a further 589 refugees who were in Westminster prior to that, spread across five hotels. Our experience is that clearly there is a lot of pressure on local services in terms of identifying health, educational and other support needs. There is not always the advance warning that local authorities would wish to have in terms of knowing about the placements before they arrive. Clearly, as much notice as we can be given from the Home Office, Clearsprings or whoever is placing the asylum seekers is very much to our advantage so that we can prepare and know what we are dealing with.

The other thing to stress is that there are particularly significant issues that arise. For example, over a third of the current Afghan refugees placed in Westminster are children and of those 10% are not with their parents or guardians, and have not travelled with them, so there is an immediate safeguarding issue, which the local authority needs to step in and deal with. While there is funding for the people placed in the hotels, there are undoubtedly significant pressures and concerns about how we support other people. It is unclear how long those refugees will be staying in those hotels. We are working on three months, but it could be longer than that, or it could be less. Those are the main things.

The current Afghan refugee settlement has been more co-ordinated than previous asylum-seeker placements, because there has been more of a joined-up approach. Westminster has a lot of tourist hotels in the centre of our city, which currently are not as full as hopefully they otherwise would be, so in areas where there is an availability of hotels there tends to be a disproportionate placement of asylum seekers, without necessarily the recognition of the pressure that that puts on the surrounding area.

Councillor Roger Gough: As you indicated in your question, clearly we have a very specific set of circumstances in Kent which relate to the Channel crossings and in particular to unaccompanied asylum-seeking children. Taking asylum overall first, most of the adult and accompanied child asylum seekers who arrive in Kent do not spend very long in Kent. There has been an exception to that for the last year, which is the use of the Napier Barracks near Folkestone, which has been a source of some challenge and controversy throughout its period of use. Most adult asylum seekers are rapidly moved on and dispersed. For us, the big issue has been unaccompanied asylum-seeking children. As you may know, we have twice in the last year had to suspend full operation of our statutory duties. Between August and, I think, early December last year and again between June and earlier this month, we did not collect young people from the port because our services at that point were put under extreme pressure.

To give an idea of what that means, there was great pressure on accommodation capacity since, this year in particular, we started to see more younger young people––under-16s––than we had in previous years. That certainly put pressure on fostering placements. For the slightly older young people, there was also pressure on some of the accommodation that they were placed in. That meant that young people were being placed outside the county, which clearly has significant impact in terms of oversight, safeguarding and so on. You must then add to that the fact that case loads and the pressure on our social work teams were reaching levels that we viewed as unsafe. Those are the sort of pressures that we were seeing in that area, and we have been working with the Home Office to try to make that a more manageable situation.

Turning to some of the wider areas, adult asylum dispersal, with the significant exception of Napier Barracks, has not been a factor for us very much in recent years. In terms of resettlement schemes, Kent, along with other parts of the south-east, played a full role in the Syrian scheme and is now looking to do so to the greatest possible extent with the Afghan scheme. We have three hotels in Kent that are being applied to Afghan families who are arriving.

[Bambos Charalambous]

Q I have a follow-up question for you, Councillor Gough. You mentioned the issue around children. The adults, apart from at Napier Barracks, are dispersed: they come in, get processed and are taken to another part of the country. In relation to the children, do you get any additional resources from the Government to deal with the problem? Is it enough or do you need more resources to deal with the issues that you face?

Councillor Roger Gough: Historically, resources in the sense of money have been an issue for us. That has changed in the last year and a bit. Historically, we carried a loss, if you like: a difference between what we received from the various grants—chiefly Home Office grants—and what we spent of between £1.5 million and £2.5 million a year. In the summer of last year, there was a significant increase in the rates paid by the Home Office, particularly targeted on those of us in authorities with large numbers of unaccompanied asylum-seeking children. As part of the launch of the latest version of the national transfer scheme, there were some further enhancements to rates including some things on the care leavers area. That has made a real difference to us financially, so the point that I have made constantly is that when we speak about pressure and the areas in which Kent is feeling the impact, it is to do with the capacity of our services to respond. It has not been a case of financial resources this year or last, but historically it was.

[Bambos Charalambous]

Q Councillor Robathan, you mentioned the pressure of unaccompanied asylum-seeking children on Westminster City Council’s resources. Can you give me an idea of those pressures and whether you have had additional support to deal with that from the Government?

Councillor Rachael Robathan: As Councillor Gough mentioned, it is not currently so much around the financial support; it is more to do with the wider pressure on services across the piece. For example, at the moment, we in Westminster, like Kent, have more than our allocated number of unaccompanied asylum-seeking children, which represents a significant responsibility because of the length of time that they are likely to be in receipt of services. There is a very significant pressure there, but it is more the wider pressure on overall services.

At the moment, we have 638 Afghan refugees in one hotel on the Edgware Road. We are having to put significant resources into trying to understand exactly who is there and what their needs are—all that information we need to gather in order to be able to look after those people safely while they are here. There is also the question of uncertainty. We do not know how long they will be within the borough and in need of our services. There are issues around education. Do we provide education within the hotel for those children? Clearly, if they were to go into our schools, that is disruption for the school and for the children themselves, as well as for the other children in that school.

So there are a number of other issues that need to be taken into account so that we can look after the children properly. That is why there needs to be more planning on where the asylum seekers are placed, and full co-ordination between the Government and local authorities on this.

[Bambos Charalambous]

Q On dispersal and asylum accommodation elsewhere, many councils, including those of many of the Members sitting around the table here, take asylum seekers and they are resettled in those council areas, but some do not. Do you think that all councils should have to take their fair share?

Councillor Rachael Robathan: Yes, I think there should be a balanced approach to the whole process. Recognition needs to be made of the services and the housing accommodation that is available in different areas. Clearly, in inner-city areas there is more pressure. For example, the current Afghan refugees that we are seeing tend to have larger families, so there is more of a need for four-bedroom or even five-bedroom properties, which are under more pressure in an inner-city area than in other areas. Some balance needs to be made. Absolutely, in terms of dispersing and further placement, that needs to be balanced.

[Bambos Charalambous]

Q Councillor Gough, what is your view?

Councillor Roger Gough: I agree with that. What we have to remember is that there are different schemes for different groups of asylum seekers and others being resettled. The rhetoric that is always applied by central Government and the authorities is a place-based approach. Many of us would say that in practice that does not always work out.

When it comes to unaccompanied asylum-seeking children, in Kent we have been vociferous that the scheme should be mandatory. At the moment, the Government are still very much committed to a voluntary scheme. We will have to see how that works out. The Government are seeking to make it work, but we have a view on that.

On adult asylum seekers, part of the difficulty is that you have a very different mechanism being applied and very different responsibilities for the authorities or areas that are taking part. For instance, the south-east is massively under-represented in terms of adult asylum seekers within its population by comparison with, say, the west midlands or the north-west. The problem is not so much that the authorities are unwilling to step up to the plate. It is much more to do with the cost and availability of housing and developing the infrastructure. To some extent, once you have established the infrastructure, it can support more arrivals; it is getting it started that can be the issue. That has generated a slightly vicious circle, in terms of where you get concentrations of asylum seekers. That is something that the Home Office and groups such as the regional migration partnerships were working on over the last couple of years. It was quite a major strand of work prior to the pandemic striking. There is very much a variation.

The other key point, which fits in with what Councillor Robathan has just mentioned, is engagement with local authorities. Many of us would say that the resettlement scheme—what started as the Syrian scheme—has been a great model of very effective engagement with local authorities, and that has been reflected in the fact that authorities across the country have played their part in it. Not all schemes work quite as well.

[Bambos Charalambous]

Q I have one final question for Councillor Gough. You mentioned Napier Barracks in Kent. The Government announced that they want to extend the period of time that they are using Napier Barracks for asylum accommodation. I just wondered what your thoughts were on that, and how it has gone down locally.

Councillor Roger Gough: Clearly, it is not welcome that we have another element of this particular picture in a part of the country that very visibly experiences large numbers of arrivals. In a sense, having a presence of this kind in east Kent is not ideal, and we have always been clear—both Kent County Council and our colleagues in the local district council, Folkestone and Hythe—that this is a decision taken by the Home Office, not by the local authorities, and is not something we were in support of.

That said, I think that a great deal of work has been undertaken to seek to address some of the problems that produced the real crisis in and around Napier Barracks in the early part of this year, where we saw some disorder and a significant covid outbreak. Significant steps have been taken on that, although there are still concerns about that facility.

[Paul Howell]

Q Can we change the direction slightly? We have heard lots about the stresses that illegal immigration is putting on local councils. Looking at the Bill as it stands, can you tell me whether there are things in there that help the situation for you, and are there things that you would like to have seen in there—things that would have helped if they had been put in? I am trying to see what difference the Bill would actually make to your life.

Councillor Rachael Robathan: Yes, there are certainly some things that we would welcome, although it would be good to see some more detail when the secondary legislation comes forward. Just to back up slightly, a further issue that we have in Westminster, as many of you will be aware, is the significant number of rough sleepers. Our latest count was 171, which is actually fewer than there have been previously. We worked very closely with Government on the Everyone In programme and so on last year, which was very successful, but we still have 70 in a bridging hotel within Westminster, so there is a significant issue around rough sleeping.

Over half of those people have no recourse to public funds. All of the asylum seekers in Westminster have come through the sanctioned route, so they would be in category 1 under this Bill, but one of the concerns for us would be if there is more clarity, if you like, in terms of no recourse to public funds for category 2, whether some of those people who would have no recourse to public funds might slip into rough sleeping. There is always a draw to the centre of Westminster: it is known that an aggressive beggar can make up to £500, or sometimes more, on our streets in Westminster, so if people find themselves on the street, there is an economic pull into the centre. That could lead to increasing numbers within Westminster.

Speaking very specifically about Westminster, the issue is that we then have an issue with tented accommodation, and the point about tented accommodation—I have had a number of meetings with the Home Office and the Ministry of Justice about this—is that there is a very high bar for the police or others to be able to gain entry to the tents. Not only is it difficult to enforce against those who would be illegally there but, much more importantly, it is very difficult to address issues around trafficked women and other people who are on the streets and need support and help, because we are unable to deliver that. That is a concern.

One of the things that we would welcome—I think this has come through in what both Councillor Gough and I have said—is a more organised approach to the way asylum seekers are looked after and accommodated. More planning around the process would help. I think we have also both said that the Afghan resettlement has been much better in terms of being able to have planning and co-ordination with local authorities, so that is something we would welcome.

Also in Westminster, I welcome the measures around modern slavery, but also the greater sanctions to stop people coming back into the country if they have been convicted of criminal activity. Once again, we have people on the streets in Westminster who engage in criminal activity to earn money. That activity is not at a very high level, but they are still things that have a real impact on our residents’ lives. We would welcome the moves around electronic travel authorisation and other measures to make re-entry into the country more difficult for those people who are here to commit criminal activity.

Councillor Roger Gough: I would endorse what Councillor Robathan has said; I agree with all those points. There are a couple of specifics from our side. One slightly begs the question as to how effective the measures will be, ultimately, because others looking at the Bill can judge that better than me. The basic principle of seeking to promote safe and orderly routes at the expense of those that involve things like the small boat routes would be very welcome. There is no doubt, and it has been much emphasised, that that route is very dangerous. It creates a degree of political tension because it is so visible. It is something that we very much wish to avoid. Those issues come home to those of us who are border authorities, particularly in the case of the small boats in areas such as Kent. The measures to try to shift the balance between the two ways in which people get here would in principle be very welcome.

The second area I want to touch on relates to age assessment. Broadly, the direction there seems to me to be a favourable one. The attempt to create a national body, not to carry out or provide support to local authorities, unless it is requested, so much as to provide some consistency and regularity to a very time-consuming process that can wrap up huge amounts of time from very qualified social workers and which often has no very obvious end to it because it is relatively loosely guided, is welcome. Establishing best practice as well as providing support for local authorities, many of which will be less experienced in this area than authorities such as mine, would be very welcome.

--- Later in debate ---

[The Chair]

We will now hear evidence from Tony Smith, from Fortinus Global Ltd, who is joining us virtually. We have until 4.30 pm. Could the witness please introduce himself for the record?

Tony Smith: Good afternoon, everybody. My name is Tony Smith. I am now an independent international border management consultant, but I am probably better known as a former director general of UK Border Force, with 40 years’ experience of working in the Home Office in immigration and border applications.

[Bambos Charalambous]

Q Mr Smith, thank you very much for agreeing to give evidence today. We very much welcome your insights, with your many years of experience. The premise of the Bill is to fix the broken asylum system. You have mentioned your 40 years of experience, and some of that was as an immigration caseworker, I understand. I just wondered what your ideas were about what needs to be fixed to fix the broken asylum system and whether you think the Bill achieves that.

Tony Smith: I think there is a broad consensus that the system is broken. I spent a great many years working in the areas of immigration enforcement, border control or immigration control, and asylum. I think what has happened recently has been a new method of gaining entry to the UK. This channel crossing was not an issue in my time. I retired in 2013, and at that time most of our energies were devoted to securing the port of Calais and preventing illegal migrants from concealing themselves in vehicles, to reduce that route.

In some respects, we have been victims of our own success, in that the smugglers will not give up; they constantly try new methods to get around our controls. This method has been used only in the last two or three years; they have found a gap in our defences. I think, therefore, the Bill is right to try to distinguish those asylum seekers that enter in this way—coming across the English channel in small vessels and claiming asylum on arrival—many of whom have spent a good deal of time in another safe third country, from those that are being evacuated by the UNHCR or through the Afghan programme. I think the Bill does that. It does attempt to distinguish the method of entry by redefining article 31 of the refugee convention, and to distinguish those people that are immediately fearing persecution from those that are not, so that we can get back some form of control of that part of our border, which at the moment I fear we have lost.

[Bambos Charalambous]

Q You mentioned people coming in via lorries. Clearly, that is still going on. It is not just the channel crossings that are the issue; it is also people who would be coming in via that route.

Tony Smith: Yes, but as I say, I worked in senior positions in the immigration service when we had our really big asylum influx, which was in 2001. I am afraid corporate memory in the Home Office is not all that it might be, but at that time we were on the cusp of introducing the juxtaposed controls in northern France, because over 100,000 came in 2001 and the Government of the day saw it as a priority to reduce asylum intake from France. The effect of the juxtaposed controls was that by moving the UK border to Calais, it was not possible to claim asylum in the UK, because the applicants were not within the jurisdiction, so people were originally coming on forged passports—initially by air and then by ferry—and claiming asylum. Once we introduced those measures, they resorted to concealment in vehicles. We were then able to establish an agreement with our friends in France that we would have a British control zone in France, which would enable us to conduct our own searches in the UK zone. Subsequently, I was involved in a lot of the berthside checks to prevent people pervading through the fences and getting on to the vessels berthside.

We did a lot of work to secure that part of the border and in collaboration with our colleagues in France. That worked in terms of the targets, which were to reduce asylum intake via these methods, coupled with other measures that were taken, such as the third country unit to return people to safe third countries. We had the detained fast track system for manifestly unfounded cases. A lot of these things were tried previously and did work to an extent. As I say, the maritime environment is an extraordinarily complex one, as the Committee will no doubt be hearing, in terms of the complexities of international law and what we can do in our domestic law to manage that. I do think the attempt is a bold one to make this distinction, because I think we are conflating two different issues here, in terms of people who are travelling across between two safe third countries, and those that are genuinely in need of resettlement—of whom the numbers far outweigh the levels that the western world is prepared to take, I am afraid.

[Bambos Charalambous]

Q You mentioned the juxtaposed controls from 2001. That was done in co-operation with France, but clearly things seem to be very different now. I just wondered what your take was on the need for international co-operation to resolve the issue of illegal migration.

Tony Smith: After the first signs of Brexit, we did have an APPG, more on freight rather than people, about what we were going to do about the border with France. I participated in that with some French officials and a number of MPs. The ending of free movement is in itself a significant challenge for that border. There were certainly some overtures from French politicians that they wanted not just to retain the juxtaposed controls but to work with us on joint enforcement measures because they really did not want international organised crime groups working in the Hauts-de-France region. Nor did they want large numbers of irregular migrants, shall we say, who are already in the Schengen zone––as you know, there are no borders in the Schengen zone––effectively migrating into the Hauts-de-France in the hope of being able to get across to the UK.

I did think there was an element of goodwill there, in terms of continuing to work with them, and we have seen some of that. We have persuaded the French police to conduct checks on the beaches and to prevent people boarding small vessels to get across. The difficulty we have is that once they are seaborne, the French position is that they will not intervene because they see this as a search-and-rescue operation, which is covered by international conventions. The migrants do not want to be rescued by the French police or coastguard because they would be taken back to France. They want to be rescued by the UK Border Force. For the UK Border Force, our primary mission at sea ought to be the preservation of life on both sides. Once we bring people aboard a Border Force vessel, they are within our jurisdiction, they can claim asylum and that just fuels the business model that the human smugglers are exploiting.

[Bambos Charalambous]

Q On the Border Force issue, what the Bill suggests doing is pushbacks, which many people would agree would be a dangerous activity. What are your thoughts about pushbacks and how that sits with maritime law?

Tony Smith: I think it is highly dangerous. I am in touch with former colleagues from the Australian Border Force, which is often held up as a model for pushbacks. That was an entirely different model from the one that we are proposing. These are dangerous waterways and very vulnerable vessels. I fear for the worst. We have already had drownings. They are not as well reported as they should be but we have had them. We do not know how many, of course, because bodies have not always been retrieved. We will certainly see the smugglers resort to tactics, as we saw in Australia, such as vessels literally being holed so that they sink and lifejackets being thrown overboard in the trust, hope and expectation that those on board will then be rescued, which we have an international duty to undertake.

The only real way out of this is to come to an accommodation with the French Government, which I have been advocating for some time. There is provision under article 98 of the UN convention on the law of the sea for countries to establish regional arrangements, so it is possible, with political agreement with France, that we could have joint patrols on the English channel. We could have British officers on their vessels and they could put French officers on our vessels, but the premise would be that if you are returned to either side, there is no risk of refoulement because both countries are signatories to the 1951 refugee convention and you would get a full and fair asylum hearing on either side. I do think that is possible, but there is a reluctance on the part of the French Government to go down that road at the moment because they have significant immigration problems of their own. They cannot control their own southern border because they are part of the Schengen group and there is a significant lobby in France saying, “Why would we stop people crossing to the UK when we have plenty of irregular migrants already coming into France?”

[Anne McLaughlin]

Q Good afternoon. You have already answered some of what I was planning to ask you about. I read recently that you said the preservation of life should be the UK’s top priority. You have repeated that today, so I do not need to ask you the question about whether you support the pushing back of children, men and women who arrive in boats, because you clearly do not.

You talked about Australia, which I was going to bring up. I am sure I read recently that Australia also criminalised those who rescued people who were seeking asylum and arriving by boat, but made the exception that if the vessel was not seaworthy they would not be criminalised. I think that is what you referred to when you talked about the traffickers putting holes in the boats so that they became dangerous. That sort of thing assists traffickers now that they know what to do. First, would you caution the UK against making that caveat and perhaps urge it to drop the pushback thing altogether? Would you caution against the criminalisation of people who rescue people at sea?

Tony Smith: We could spend a lot of time talking about the Australian model, which we do not have, but you are talking about a much, much longer stretch of water there. The Australian Border Force—I was down there helping it to set up—took the view that its maritime response was significantly different from ours. The vessels it deployed are significantly different from the UK Border Force cutters. The cutter fleet that we have in the Home Office are legacy Customs cutters. They are not designed to bring people ashore or to process people. They were even processing people on some of the Australian vessels to determine whether they were admissible to the asylum system before they brought them ashore. In the end, they invested in vessels of their own. They could then move the individuals from the unseaworthy vessels that they were encountering into their own vessels that they had purchased and escort them back to Indonesian waters. There was a significant investment by the Australian Government in doing that, which did work, but trying to compare that with what we see on the English channel is a different question.

Yes, of course we should preserve life, and I think the French should do that, too. There is an obligation on both sides of the channel for us to work together to find a way to stop human smugglers. The current model simply demands, “You pay €5,000 to me and I will put you in an unseaworthy vessel, and I really don’t care whether you drown or not because I have got my money.” I am afraid that is the way the mind of the human smuggler operates. They are getting the upper hand, we are seeing numbers going up and we will see more drownings. It is difficult to lay this at the door of the UK Border Force, who have a lot of other pressures on their resources at the moment.

We need to find a way, if we can, of getting common sense to prevail on a joint strategy with France. We already have a significant number of bilateral treaties with the French that have survived Brexit and that would enable us to fix this problem, but I do not think we have been able to find anybody in a senior position in the French Government who would go that far.

--- Later in debate ---

[The Chair]

We will now hear oral evidence from Rob Jones, director of threat leadership at the National Crime Agency. What a great job title. We have until 5.15 pm. Will the witness please introduce himself for the record?

Rob Jones: My name is Robert Jones. I am one of the operational directors at the National Crime Agency. I tackle all the serious organised crime threats and my particular interest in this is that I tackle organised immigration crime as one of the national priority threats that the agency deals with.

[Bambos Charalambous]

Q I would like ask you some questions about the work of the National Crime Agency in breaking the crime gangs that are smuggling people into the country. Clearly, a lot of those gangs operate internationally. What is your experience around working internationally to try and break those gangs?

Rob Jones: Obviously, there is a lot of interest in the small boats business model. I will talk about the whole route first and then focus on small boats. For some time, we have operated with our international liaison network and international partners to try to deal upstream from the UK with smuggling gangs that are targeting the UK for profit. That is a big part of what we do. That has involved targeting people who use high-risk methods of clandestine entry, where they pack people into concealments in lorries and move them overland from as far afield as Turkey, typically via an overland route.

For a variety of reasons, beginning in 2018 over the Christmas period, we have seen a movement towards the use of the small boats business model to execute clandestine entry into the UK. That has been driven by a number of factors. Obviously, during the period of lockdown when we had a long period of benign weather, almost perfect conditions and the traffic through the Schengen area and traditional border crossings was supressed, we saw those same smuggling gangs recognising an opportunity and beginning to exploit the small boats model.

Our stated intent is to disrupt as much of this as far away from the UK as possible. That means operating in a range of different environments, which we do. We also work very closely with French, Belgian and German authorities to try to disrupt smuggling gangs that are much closer to home. The emphasis, particularly post exit and particularly because of small boats, on that relationship in the near continent is ever more important. The centre of gravity for small boats is not in the UK; it is in France, Germany, Belgium and further afield.

[Bambos Charalambous]

Q Could you elaborate a bit? How do you actually break the gangs? How do you stop them operating?

Rob Jones: When we can identify crime groups in the UK, we target them and we use a range of investigative tactics to bring them to justice and take them through the criminal justice system. A big part of what we do is intelligence collection, where we share intelligence about known smuggling gangs with overseas partners. We do that very effectively with the French through a joint unit that we set up; we also work with German and Belgian partners in a similar bilateral way. Crucially, if we have lead intelligence that a boat is being supplied to a smuggling gang, an engine is being supplied to a smuggling gang, or smugglers are moving migrants to lay-up points where they are then going to be involved in small boats crossing, we pass on that intelligence as quickly as possible for action to prevent that crossing from happening. The stated intent for all of this is to prevent loss of life. Our biggest concern is a mass casualty event in the English channel, so everything we do is driven by that article 2 responsibility.

[Bambos Charalambous]

Q Some of the people who have been trafficked do not come in across the channel in small boats. What steps are you taking to tackle people who are trafficked, either for sexual exploitation or modern-day slavery?

Rob Jones: We work closely with national policing and we are one of the first responders for dealing with modern slavery, so we proactively investigate controllers and traffickers who keep people in debt bondage in the UK, and we bring them to justice through the criminal justice system. Through our liaison network, we also try to disrupt that threat further afield. That work has led to some powerful results through Project Aidant, where we worked with policing partners to look at things thematically. You talked about sexual exploitation, and with that, forced labour and all the areas that form the modern slavery threat, and we operate against them to try to disrupt them. That involves encountering victims, setting up reception centres and dealing with the victims of trafficking as well as with the perpetrators who keep them in debt bondage.

[Bambos Charalambous]

Q You have just mentioned victims, and obviously the NCA and most police enforcement operate on intelligence. Some of that intelligence comes from people who have been victims or who are perpetrators. One thing that concerns me about the Bill is the disclosure of information straight away. I wondered what your experience was of that.

Rob Jones: Some victims disclose relatively quickly. We recognise that others will not and that there are some people who, because of their level of vulnerability, need safeguarding and will need time before they can talk about their experiences. What I would say about the legislation and proposed changes is that we now have a national system for recognising the victim engrained. I do not see any of this changing that. First responders have become very good at recognising a victim, and we have significantly improved the picture nationally with national policing. In the victim-suspect paradigm, what are you dealing with? The intent is always to recognise the victim as quickly as possible. I recognise that it takes some time and is not straightforward.

[Bambos Charalambous]

Q Would that be because of threats back home, or something else?

Rob Jones: A range of different scenarios. Many of these people are in debt bondage and there is leverage on their families, or they have already committed to working in an area that might be illegal, such as cannabis cultivation. It is a complex area, but we have a lot of experience of dealing with it and we deal with victims very carefully to ensure that we get the safeguarding right and whatever intelligence dividend we can.

You mentioned small boats in the context of modern slavery, so to deal with that really quickly, it does not really lend itself to the typical exploitation model. That said, we have seen some evidence of some nationalities coming through on small boats where there are some signs of that business model being used. I say it does not lend itself to that business model because these people are coming pretty much straight into the asylum system and to first responders. Traffickers do not like that; they do not want it. They would prefer those individuals to arrive in a truly clandestine fashion, so that they are not met by first responders and debriefed.

[Bambos Charalambous]

Q So people who are trafficked do not come across the channel in boats, but by some other route—on the back of a lorry, for instance?

Rob Jones: Potentially. I am not saying that it does not happen at all, but that business model does not lend itself to trafficking as much as it does to organised immigration crime.

[Bambos Charalambous]

Q Going back to the question of victims who might not disclose the information early on, one thing the Bill does is treat them differently if they do not disclose that information for some reason—you have given some examples. Again, that might make them less likely to co-operate with the authorities. Do you think that that will be a problem in getting more information to detect the real people behind organised crime?

Rob Jones: This is a really difficult area. In the practical application of those provisions, it is really important that the level of oversight we have now is maintained. The other side of that coin is that you need to ensure that the defences available to people involved as victims in modern slavery are not abused. We see both sides of this. Our tactical advisers and expert witnesses disprove false claims from people claiming to be the victims of slavery and support legitimate claims. It is really important that the system maintains its credibility by having some appropriate tension and challenge without undermining victims.

[Bambos Charalambous]

Q Is that more investment in first responders and the referral to the NRM?

Rob Jones: It is recognising victims, understanding what is in front of you and making sure that you are consistent in applying safeguarding where it is needed.

[Bambos Charalambous]

Q Going back to small boats, clearly if we are working with the French authorities to disrupt the people behind smuggling, it does not seem to be going so well. How could we work better with the French to try to stop that?

Rob Jones: This is inherently challenging: 150 km of coastline and it is not a canalised control point, so it is not like juxtaposed controls. The level of ambition required to tackle this is similar to that required to set up juxtaposed controls. The Le Touquet agreement set up what was then an unprecedented system for joint controls over immigration, and indeed customs. Where we find ourselves now is that we work really closely with the French on meeting that challenge.

Ultimately, it is for French law enforcement to deal with those departures and, from our perspective, our intent is to make sure that the disruption of departures is as far away from beaches as possible. That means that smuggling gangs are disrupted away from beaches and that the French do not have to chase migrants on beaches. That is not the best way to do this. It is an intelligence-led, planned response. That is the aspiration of the relationship with the French, which we build on every day with colleagues in the Clandestine Threat Command from immigration enforcement. Dealing with people who are leaving a border that is not controlled in the way that a typical border would have been controlled is inherently challenging. Those controls need to push back inland from the border, so that there is an intelligence-led proactive response. The French are working very closely with us to try to achieve that.

[Bambos Charalambous]

Q You also mentioned some other countries, such as Belgium, Germany and Turkey. Are you working closely with them?

Rob Jones: We are, absolutely. We have very positive relationships with those countries. The supply of boats to northern France and of engines in the infrastructure that supports these crossings is something that those partners can help us with.

[Tom Pursglove]

Q I heard your answer in relation to modern slavery, but in terms of wider criminality and what you are seeing on the ground, what impact do you think the proceeds of small boat crossings are having on criminal gangs?

Rob Jones: We know that that route is more and more attractive to organised crime. That is why we need to break the momentum that is pushing the viability of that route. People who are involved in the facilitation of migrants are also involved in drug trafficking and other serious organised crime. We have seen that polycriminality with HGV companies that will one day smuggle drugs and another day smuggle migrants.

One of the good things about these provisions is that they, to coin a phrase, level up the sentencing for people involved in the facilitation of migrants with that for those who are dealt with for drug trafficking. It cannot be right that, at the moment, if you smuggle 20 kg of class A drugs, you could face a life sentence, but if you conceal 20 people in a false floor in a lorry, which is one of the things that we encounter at the border, it is 14 years. Some of the provisions here, including the life sentence for facilitation, are a useful deterrent that we feel will help with that broader organised crime threat where some of this money is reinvested in other crimes.

Nationality and Borders Bill (First sitting)

Bambos Charalambous Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

Good morning, ladies and gentlemen. Before we begin, I have a couple of preliminary announcements. I encourage Members to wear masks when they are not speaking, in line with Government guidance and that of the House of Commons Commission. Please give each other and members of staff space when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members emailed their speaking notes to [e-mail]. Any doubt about that, please ask the Clerk at the end. We must ensure that Hansard gets the notes. Please ensure that all your mobile phones are switched to silent. I remind Members that tea and coffee are not allowed in Committee. If you want to have coffee, you have to go outside the Committee Room.

Today, we will consider the programme motion on the amendment paper. We will then consider the motion to enable the reporting of written evidence for publication and the motion to allow us to deliberate in private about our questions before the oral sessions begin. In view of the time available, I would like to take those matters formally. I have discussed it with the Minister and he agrees. I call him to move the programme motion standing in his name, which was discussed yesterday by the Programming Sub-Committee.

Ordered,

That—

1. the Committee shall (in addition to its first meeting at 10.25 am on Tuesday 21 September) meet—

(a) at 2.00 pm on Tuesday 21 September;

(b) at 11.30 am and 2.00 pm on Thursday 23 September;

(c) at 9.25 am and 2.00 pm on Tuesday 19 October;

(d) at 11.30 am and 2.00 pm on Thursday 21 October;

(e) at 9.25 am and 2.00 pm on Tuesday 26 October;

(f) at 11.30 am and 2.00 pm on Thursday 28 October;

(g) at 9.25 am and 2.00 pm on Tuesday 2 November;

(h) at 11.30 am and 2.00 pm on Thursday 4 November;

2. the Committee shall hear oral evidence in accordance with the following Table:

[Bambos Charalambous (Enfield, Southgate) (Lab)]

On a point of order, Sir Roger. On the initial list of witnesses there were some Home Office officials. On the present list, there are no Home Office officials, which makes it much harder for the Opposition to scrutinise the Bill. We had certain questions that we wished to pose to Home Office officials. I put it on the record that they were initially on the list of witnesses but are no longer there.

[The Chair]

That is not strictly a matter for the Chair; it is a matter for the usual channels. That should be discussed between the Government and Opposition Whips. I had better ask for the relevant parties to do that privately, and to have a conversation with you. It is not something, I am afraid, that I can adjudicate, but you have made your point. The opportunity to discuss it was at the Programming Sub-Committee yesterday, where it should properly have been raised. It was not raised on that occasion.

--- Later in debate ---

[The Chair]

Thank you very much indeed for taking the trouble and the time to join us this morning.

[Bambos Charalambous]

Q Mr Featonby, I am going to ask you some questions about the Bill in which the Red Cross has indicated some interest. According to the Government, the main objectives of the Bill are to increase fairness in the asylum system; to better protect those who are supported and in need of asylum; and to deter illegal entry into the UK and break the business model of people smuggling networks. To what extent do you think this Bill achieves those objectives?

Jon Featonby: I will start off by saying that as the British Red Cross, we very much welcome this opportunity to give evidence to the Committee today, but the short answer to that question is that we do not think the Bill is going to meet those objectives at all. To build on that a bit, we take that from our role as the largest independent provider of advice and support to refugees and people seeking asylum in the UK. We work with around 30,000 people each year in all four countries of the UK, supporting people throughout the asylum process, from when they first enter it to when they get decisions, and in making decisions about what happens next. Through that work, we see that there are three key elements of an asylum system. First, it must be safe for people to access it; secondly, it must be fair and efficient and make decisions in a timely way and, thirdly, those people who are in the system, while they are in the system, should receive the advice and support they need.

At the moment, there are a number of challenges to that, as shown by the number of people taking dangerous journeys to reach the UK, the increasing backlog in asylum decision making and the length of time people are having to wait for a decision on their application. There are also challenges that local authorities, organisations such as our own and, importantly, people in the system face in terms of the support they receive, whether that is support with accommodation, mental health or other areas. We believe those should have been some of the priorities for both this piece of legislation and the new plan for immigration that runs alongside it.

That work is also informed by the people we work with. We run the VOICES Network, which is a group of people with lived experience of the asylum system. They were among those who gave evidence to the Government during the consultation on the new plan, and when we speak to them about this legislation, one of their key messages, as people who have made that dangerous journey, is that there is nothing in the Bill or in the new plan that would have changed the decisions they made.

We absolutely agree that there are too many people making those dangerous journeys; we want to see a reduction in the number of people making dangerous journeys in small boats across the channel as much as anybody else does, but we do not believe the measures in the Bill will do that.

[Bambos Charalambous]

Q As a follow-up, how do you think a reduction in those dangerous journeys would be better achieved?

Jon Featonby: There is no simple answer to that; as the Home Secretary said on Second Reading, there is no silver bullet for many of these challenges. If there were, I am sure some country would already have come up with it. However, there are some key things that the Red Cross believes could be explored further.

The expansion of safe routes for people seeking protection is prime among those things. We welcome the Afghan citizens resettlement scheme announced recently. The UK has a good recent record of providing resettlement places, and we believe that on top of that Afghan resettlement scheme there is the need for a wider global scheme. There is the UK resettlement scheme, the successor to the Syrian resettlement programme, but there is no annual quota for that. On top of that 5,000 commitment for the Afghan scheme we would like to see an additional 5,000 for the global scheme.

We also call for refugee family reunion. One of the core bits of work that the Red Cross does in the UK is support refugees being reunited with their family members. As the new plan for immigration stated, family reunion is currently the largest safe route for people to get to the UK. Over the five years to 2019, 29,000 people arrived in the UK through refugee family reunion, compared with 25,000 through resettlement over the same period.

From what we see in our work supporting families, as much as that reunion is a moment of joy for so many people, there are other families whom the current rules do not allow to reunite. One of the prime examples is that the rules do not cater for adult dependent children. A parent in the UK who has refugee status can sponsor their parent, their partner or spouse and any children under the age of 18 to come and join them, but we see that often there are people whose child may have turned 18 or 19, potentially while they were in the asylum process, who face a difficult decision about whether they leave that child overseas, or just do not bring any of their family to come and join them.

We believe the Bill is an opportunity to expand the rules. One of our key concerns about the Bill, in clause 10 on the differential treatment of refugees, is that there is potential for family reunion to be limited, although the Bill does not quite state how.

Alongside those safe routes, we recognise that the UK cannot alone solve all those issues. However, it has a vital role to play internationally, ensuring that no matter where people are after they have been forced to flee their home, they can access protection systems, whether in the UK, France, Germany or close to the countries from which they first leave.

[Bambos Charalambous]

Q You mentioned clause 10 in your answer. What other problems do you see with clause 10, which treats people differently depending on how they arrive?

Jon Featonby: The starting point for the British Red Cross is that people’s protection should be based on their protection needs, and not on how they have entered the UK. Clause 10 provides a power that would move away from that and treat people on the basis of how they arrive in the country. It is difficult to ascertain what some of the impact would be, because clause 10 just creates a power for that to be introduced later in the immigration rules. Certainly, our concern is that the list of the ways in which leave can be differentiated for those people recognised as refugees is an example list and non-exhaustive, and there is therefore scope within the immigration rules to follow for that differentiated treatment to be undertaken in a much wider way.

In terms of the impact of that differentiated treatment, which I am sure falls within the Bill’s aim to deter people from making dangerous journeys, we certainly do not believe that it will do that. From the people we work with, we know it is rare for people making those journeys—even if they have any element of choice over where they are going to end up—to have any clear idea about what their rights and entitlements will be when they arrive, so we do not believe it would deter dangerous journeys.

We also believe there would be negative impacts from some of the ways people’s leave will be differentiated. Some of that concern draws on the evidence from Australia, which has used temporary protection visas, similar to those that clause 10 would allow to be introduced, on and off for the past two decades. One of the key findings is that that has increased the insecurity people feel when they have that protection status. This is a group of people who will have been recognised as refugees by the UK Government, but one way they will be treated differently is that those who have arrived irregularly will only get temporary protection for maybe two and a half years, which will then be extendable at each point.

The lack of security around that has an impact on not only people’s mental health, but their prospects for integration and their ability to get jobs and rebuild their lives. Employers looking at that type of temporary leave are less likely, we believe, to employ that person, compared with somebody who might have indefinite leave to remain, as a refugee arriving under the resettlement programme would have.

I have already mentioned our concerns about the potential impact on family reunion. It is important to note that those people arriving in the UK through family reunion are predominantly women and children; 90% of all family reunion visas currently granted are to women and children. Limiting access to family reunion for the refugee in the UK is taking away a safe route for his—in most cases—wife and children to be able to come and join him. The evidence from Australia was that where that happened, it incentivised and increased the number of dangerous journeys being made by women and children, which is something the British Red Cross believes should absolutely be avoided.

One of the other potential routes for differentiation is giving those people granted refugee status no access to public funds. Most of the refugees we support struggle when they are first granted status, and one of the main groups of people we support across all our services in the UK is people who are destitute, at all stages of the asylum process. Around one third of the people we have supported in our destitution services over the past year are people with refugee status, and often that is because they fall into the gap between Home Office and local authority support when they are first granted status and the Home Office support ends.

Without giving people access to the social security and welfare system, you risk embedding some of that destitution at that point as well. Not only is that bad for those individuals, putting them at great risk, but it puts extra pressures on local authorities. We see that within our services at the moment.

[Bambos Charalambous]

Q Moving on to clause 11, on asylum accommodation, I know in the past the Red Cross has been critical of the Government’s using Napier Barracks to house asylum seekers. What are your thoughts on clause 11 and dispersal, and what lessons can be learned from the problems with Napier Barracks?

Jon Featonby: The issues with accommodation and the challenges the Home Office faces in providing it are well known and serious, and there is no simple solution to many of them. Some of the problems around the shortage of accommodation were caused by the covid pandemic. We welcome the Home Office’s move at the start of the pandemic not to evict people from asylum accommodation, but that obviously meant that fewer people were moving through the system.

Some of the challenges with the dispersal system and the shortage of housing are also caused by the increasing backlog in asylum decision making. There are now around 70,000 people waiting for an initial decision, the majority of whom have been waiting longer than six months. That includes people from places such as Syria, Afghanistan, Iraq and Eritrea, who will almost certainly go on to get refugee status, but the lack of throughput in the system has created that pressure. Several Members on this Committee represent areas that do great work hosting people through the dispersal system, but we do not think the Bill will do anything to help them.

The accommodation centres in clause 11 are part of the response to that pressure. As you rightly said, the Red Cross has raised concerns around some of the Ministry of Defence sites that have been used over the last year, and their suitability for people seeking asylum. In particular, we were operational in Penally Barracks in south Wales when that was open, and we continue to support people in Napier.

From our experience, we think that the best way to accommodate people while they are in the asylum system is within communities. They can feel a part of those communities and receive the support that they need. It is also beneficial for those communities, in terms of social cohesion. That relates to some of the negative impacts that we have seen, where people have been accommodated in some of the military barracks.

We also have some concerns about the way that clause 11 currently works. Reading the explanatory notes, what seems to be happening is that, rather than the Bill itself setting out the framework for an accommodation centre, it relies on the Nationality, Immigration and Asylum Act 2002. That legislation was passed almost 20 years ago during a very different time: asylum applications were far higher, the length of time that people waited for a decision was far shorter, and far fewer people were then getting positive decisions after going through that system.

The 2002 Act has quite a few concerning aspects, including not allowing children in accommodation centres to access local authority schools. We see that as being quite serious. It may well be that the idea behind the centres, and the Government’s proposed use of the centres, would include families or children being accommodated there, but that is not clear from what is currently in the Bill. The Bill does, however, change the 2002 Act around some of the limits on the length of time that people can stay in one of those accommodation centres. Currently, under the 2002 Act, somebody in an accommodation centre could only be accommodated there for up to six months. The Bill gives the Home Secretary the power to increase that length of time.

It is noteworthy that, in the recent special development order, which was laid before Parliament to extend the use of Napier Barracks by an additional five years, one of the ways in which the Home Office changed the operation of that site was to limit the length of time that somebody could stay there to 90 days. Therefore, we would certainly see that one of the safeguards around the use of accommodation centres would be to limit the length of time that somebody could stay there, rather than extending it.

[The Chair]

I must offer other Members the opportunity to ask questions. I will come back to you if there is time, Mr Charalambous.