Illegal Migration Bill

Baroness Butler-Sloss Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I wonder whether the Minister can help me on this. The “strained decisions” of the courts is a phrase that has been used at least three or four times this evening. As a former judge, I find that difficult to understand. I would like some elucidation as to what is meant by “strained decisions” and what examples there are.

[Lord Murray of Blidworth (Con)]

The context of a strained decision, as the noble and learned Baroness will be aware, are circumstances where there is an ordinary, natural reading of a statute but a judge feels constrained to interpret the words of a statute in a particular way to give effect to a convention right. As the noble and learned Baroness is aware, this is a fairly obvious application of the term, and it is quite usual for such—perhaps more difficult—interpretations to be described as “strained”. I can certainly identify a number of examples, and I will write to the noble and learned Baroness in relation to them.

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[Baroness Suttie (LD)]

My Lords, I will speak to Amendment 12, tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. A very similar amendment was tabled in the House of Commons by my honourable friend Stephen Farry MP. Unfortunately, the noble Baroness, Lady Ritchie, is unable to be present this evening, as she is in Brussels on a delegation, so she has asked me to speak to the amendment in her absence.

As the Minister knows, we had a debate along very similar lines yesterday evening on a regret Motion on the requirement for an electronic travel authorisation and the potential impact on tourism in Northern Ireland. Amendment 12 is primarily a probing amendment that would seek to exempt from Clause 2 of the Bill people crossing the border from the Republic of Ireland to Northern Ireland. I will highlight two particular concerns about Clause 2, as it affects the land border on the island of Ireland.

The first is the enforcement of the provisions contained under Clause 2. The issue of who decides whom to check and on what basis, given that routine immigration checks across the land border on the island of Ireland do not happen, is an area of very grave concern. Maintaining the freedom to travel north-south without restrictions remains a key element of the peace process, and any changes to this could constitute a breach of the Good Friday/Belfast agreement. The Government have confirmed—and it was reconfirmed last night by the Minister—that Irish citizens will be exempt from the need to apply for an ETA when travelling to Northern Ireland. However, there remains a considerable amount of legal ambiguity for residents in the Republic of Ireland who come from a third country whose citizens currently require a visa to enter the UK and therefore Northern Ireland.

During the debate on this issue in the House of Commons, examples were raised about the impact of Clause 2 on individuals legally resident in Ireland who cross the land border from Ireland to Northern Ireland, perhaps to visit friends or to go shopping, but who have not applied for an ETA. During the debate yesterday evening on the introduction of an ETA, the Minister—the noble Lord, Lord Murray—said that,

“those who are legally resident in Ireland may instead, if required by a UK immigration official, present physical evidence that demonstrates their legal residence in Ireland”.

He added that the Home Office would publish guidance in July on what would be considered as acceptable evidence. Therefore, following his statement yesterday, will the Minister tell us what the consultation process will be in advance of publishing this guidance? Will there be an information campaign to ensure that people are aware of these requirements? He will, I hope, be aware of the sensitivities of requiring people to carry official documentation when there is supposed to be unrestricted north-south travel.

During yesterday evening’s debate, the Minister said that

“prosecutions for illegal entry offences will focus on egregious cases and not accidental errors”.—[Official Report, 23/5/23, col. 836.]

Can he say whether it is the Government’s intention to publish guidance on what is likely to be defined as an egregious case? Perhaps most importantly, what assurances can he give that random checks by UK immigration officials will not result in the creation of a border on the island of Ireland by stealth?

My second area of concern is the potential risk of racial profiling resulting from these random checks. Migrant-led organisations such as the North West Migrants Forum have been raising concerns about the impact of visa requirements on the land border on the island of Ireland. They have highlighted the disproportionate impacts on black and minority ethnic, and migrant, people. Clause 2 risks exacerbating these issues and further hardening the border on the island of Ireland for some communities. The Minister will know that, in response to these concerns, Alyson Kilpatrick, the chief commissioner of the Northern Ireland Human Rights Commission, has called for all journeys into Northern Ireland originating from Ireland to be exempt from the ETA provisions in the Bill. Can the Minister say what measures will be put in place to prevent racial profiling as a result of random checks and, in particular, what steps the Home Office will take to ensure proper training of UK immigration staff in monitoring these random checks?

Finally, can the Minister clarify whether non-visa nationals entering Northern Ireland and the UK from the Republic of Ireland without an ETA will impact the validity of deemed leave, as set out under Article 4 of the Immigration (Control of Entry through Republic of Ireland) Order 1972? If he does not know the answer to that one immediately, I will be happy to receive a letter if it could be placed in the Library.

[Baroness Butler-Sloss (CB)]

My Lords, I ought to apologise to the Committee. I failed to say that I was unable to speak at Second Reading; I listened to a great deal of it, but I had a commitment that I could not avoid. I also should have announced earlier that I am co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and a vice-chairman of the Human Trafficking Foundation.

I totally support Amendment 6. The retrospective effect is shocking but it has been dealt with by other people, so I will move to two other amendments that I am very anxious to say something about.

There is a mantra about the best interests of children. It has, rightly, been followed throughout the United Kingdom for many years. It originates in the UN Convention on the Rights of the Child, as has already been referred to. It is also incorporated in the Children Act 1989, in which I was very much involved. Consequently, the clauses in the Bill—not just the one with which we are dealing, Clause 2—are utterly shocking in their derogation from the best rights of the child.

It is truly worrying that this is happening. Clause 2 specifically includes, of course, children and the ability to remove them. Part of Clause 2 includes the possibility of children not being included, but it leaves it to the Secretary of State as to when to exercise that discretion. I am extremely concerned about this. It is not only in Clause 2; it arises in other clauses which I will speak about later, so I will not refer to them now.

The other two proposals that I am concerned about are dealt with in Amendments 9 and 11. I very much support Amendment 9, for the obvious reasons of its connection with children. Indeed, what has been proposed by the noble Baronesses, Lady Hamwee and Lady Bakewell, about Clause 2, at page 3 on line 39, is replicated later in an amendment that I have put down.

I am also very concerned about Amendment 11. If one just thinks with a bit of reality about the Bill, one really important thing which is utterly underused is the prosecution of the perpetrators—not the people smugglers but the trafficking smugglers who are bringing in people for wicked purposes. If you are going to require a person who has been abused or exploited by a trafficker to go to Rwanda, and to give evidence from Rwanda, who on earth in their senses will be bothered to give evidence to help a prosecution in England if they are stuck in Rwanda? It is just not feasible.

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[Baroness Butler-Sloss (CB)]

My Lords, there was an issue about adoption of a child who came to this country, or came in the womb of somebody arriving in the country, into a British family. Are they at danger under the Bill?

[Lord Murray of Blidworth (Con)]

Forgive me: as I thought I said, the status of a child born in the UK to a woman who meets the conditions in Clause 2 is that they would not satisfy the conditions in that clause. I realise that there were a number of hypotheticals in the way that that question was written. If I may, I would like to go away and think about them. I will reply by letter in due course, and obviously publicise that letter.