Nationality and Borders Bill

Baroness Chakrabarti Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I cannot discuss matters of nationality and borders without confessing that this is extremely personal territory for me, as I know it is for others in your Lordships’ House. It is personal territory because I am the daughter of migrants to this country—hard-working people no longer with me and yet with me always. They came, as so many like them did, at the invitation of the late first Earl of Stockton when he was Prime Minister.

In my working life as a human rights lawyer, first in the home department and subsequently outside it, I have seen time and again the manner in which Governments and politicians of all stripes have eroded the hard-won rights of refugees in particular, and how dog-whistle politics around immigration has toxified race relations and undermined race equality, even to the detriment of British people whose migration stories go multiple generations back. So these are issues as much of equality and common decency as of nationality and borders.

The Bill has a patriotic title. The use of the word “borders” is surprisingly colourful for parliamentary counsel: it could have been taken directly from a campaigning slogan. I have no objection to nationality or borders, but I must observe that neither Covid nor climate catastrophe respects either very much. A truly global Britain would cherish the refugee convention as a central pillar of the post-war international settlement once promoted by Britain and would not seek to dilute it. The Dunkirk spirit is about saving people in little boats, not turning them around. So soon after the still incompletely resolved Windrush scandal, we would be wise indeed to give the most anxious scrutiny to any two-tier system of rights to refuge or nationality.

Clause 9 has rightly caused outrage in civil society—if not sufficient media coverage or even debating time in the other place. To deprive a national of that status without notice should be beyond the contemplation of any civilised society that cares about rights and freedoms in general and due process in particular. A nation’s citizens are its responsibility and are not to be dumped like waste, even or especially on the vague and subjective grounds of security, diplomatic relations or

“otherwise in the public interest.”

That the Government are bound by international law not to render people stateless ensures that this provision must inevitably be applied in a racist fashion, with the Executive determining without public scrutiny, judicial involvement or even notice to the individual concerned that they are of a category of British citizen who may potentially qualify for nationality somewhere else, regardless of whether such nationality has even been applied for, let alone granted. No wonder this provision has inspired fear and loathing in our minority communities in particular.

Even the subject heading of Clause 11 sends a chill to the bones, with its “Differential treatment of refugees”. To penalise and even criminalise desperate people in any way for the manner in which they make their escape from persecution to the UK is to violate the letter and the spirit of the refugee convention, which was in no small part the world’s apology for some of the darkest moments in the history of the last century. The Bill attempts to redefine Article 31, thereby ripping up years of interpretation by specialist judges so as to grant only second-class protection to the majority of refugees.

These are but two of the myriad objections to this measure. I say that as an advance apology to noble Lords opposite for the many long nights and longer nightmares to come.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Committee stage & Lords Hansard - Part 1
Thursday 27th January 2022 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, it is great pleasure to be one of the terriers of the noble Baroness, Lady Lister, and a signatory to Amendment 13. I thank her for her conviction, eloquence and persistence in bringing this issue back to us again. It is, as I said at Second Reading, an opportunity to put right old wrongs, and we should not miss this opportunity yet again.

When she introduced this group, the noble Baroness, Lady McIntosh of Pickering, reminded us of her origins and, therefore, of an interest. I suppose I should declare to the House that I too am the son of an immigrant. My mother was Irish; Irish, not English, was her first language. She came here at the end of the Second World War and married my father, who was a Desert Rat and had fought at El Alamein; he also saw action at Monte Cassino and elsewhere. He was brought up in the East End of London, where he saw terrible anti-Semitism. He and his brothers enlisted in the Armed Forces because they wanted to contest the fascism represented by the Nazis in Germany—and one of them paid the ultimate price.

I say that simply to illustrate that you do not have to hate one country—Ireland, in this case—to love another. I am very proud of the fact that I have both a British and an Irish passport, as do my children and grandchildren. I hope that they, too, will grow up knowing about the traditions that they come from but being incredibly proud to be British citizens.

In the same spirit that the noble Baroness, Lady McIntosh, described her origins, I will say that, when I went to the great city of Liverpool as a student, I was pretty shocked when I went out in my second year looking for accommodation to see in tobacconists’ windows notices that advertised accommodation and said, “No blacks and no Irish need apply”. I know that the noble Baroness, Lady Williams, and I have this shared experience in common.

It is against that backdrop, as well as being a patron of Asylum Link Merseyside and having been involved in these issues over the years in both Houses, that I am particularly keen to support what the noble Baroness, Lady Lister, has said today. Indeed, I was involved in the 1981 proceedings in the House of Commons on what became the British Nationality Act. It was, as the noble Lord, Lord Dubs, will recall, a genuine attempt to try to define what it meant to be British. It certainly was not part of our proceedings at that time to take away the rights of children to register because of prohibitive costs debarring them from becoming citizens. I felt so strongly about this that, when I was asked whether I would provide a witness statement about what I believed to be the considerations that we had in 1981, I provided that statement to the High Court in the action that the noble Baroness, Lady Lister, described to us.

I should also mention that the late Lord Sacks, Jonathan Sacks, in two great books, The Home We Build Together and The Dignity of Difference, spelt out the nature of citizenship and why we have to learn to live alongside one another and to value the idea of citizenship. During 20 years or so as director of the Liverpool John Moores University Foundation for Citizenship, I explored the issue. It is good to see the noble Baroness, Lady Chakrabarti, here today, because she was one of our lecturers as part of the Roscoe series of lectures looking at what it means to be British and how we all should fulfil our individual missions to be good citizens in our society.

The noble Baroness, Lady Lister, has told us the High Court ruling. It is not the fault of the Government that this has gone for further definition at the Supreme Court, but why on earth did the Government not accept the decision of the High Court on this specific point about the cost of citizenship for children and leave the other issues to be decided about the general parameters, as she said? The one does not stop the other and the House should turn its attention to this.

The Court of Appeal upheld the High Court ruling that the £1,012 fee for a child to register as a British citizen was unlawful, because it was set without consideration of the best interests of children. That is at the heart of this amendment. Two of the judges, I might add, also saw great force in the argument that is continuing at the Supreme Court—that it may be additionally unlawful because it effectively deprives many children of their rights to British citizenship.

The noble Baroness, Lady Williams, has been very diligent in responding to questions on this issue, including a Question that I had tabled in the House on 19 October 2020. I said then that it was

“passing strange that the Home Office can calculate the difference between the £640 that it costs to administer the citizenship fee and the £1,012 that it actually charges, even to children in care, but cannot assess the legal costs of contesting the High Court’s judgment? Instead of racking up lawyers’ fees and subsidising the immigration system with what Sajid Javid”,

when he was Home Secretary,

“rightly called huge citizenship fees, should it not be reviewing this policy as noble Lords from right across your Lordships’ Chamber have argued?”

In 2020, there was indeed a widespread view across the House. The right reverend Prelate the Bishop of London said:

“Putting a financial barrier on being able to access one’s rights is a clear barrier to one’s access to justice”.


The noble Baroness, Lady Altmann, said:

“this is not about immigration but about children with the right to register as citizens and potentially denying them their right to register if they cannot fund more than £1,000”.

The noble Baroness, Lady Primarolo, asked:

“Will the Minister tell the House whether the Home Office carried out a children’s best interest assessment of the Government’s policy on fees in light of the original judgment?”


As far as I know, that question remains unanswered. The noble Lord, Lord Paddick, asked the Government to explain why

“the Government want the immigration system to be self-funding in a way that no other government department is”.

Again, this seems an unanswered question, but in the course of these proceedings we really need to have an answer. I was struck by what the noble Baroness, Lady Gardner of Parkes, one of the longest-serving Members of your Lordships’ House, said from the Government Benches. She asked,

“whether the Government have assessed how many people forgo registering for British citizenship for themselves and their families as they cannot afford it? How this might contribute to their sense of belonging and well-being is important”.

The noble Lord, Lord Kennedy of Southwark, asked:

“Can the Minister tell the House whether she believes it is right that the immigration system is subsidised by children who are born in Britain and have lived their entire life in Britain and have the right to be British?”—[Official Report, 19/10/20; cols. 1273-74.]


I could go on, but I will not. The point is surely now registered with noble Lords. We have the chance between now and on Report not to turn this into yet another contested issue. There is feeling across the House that we need to put right this injustice. This is about putting right an old wrong and I hope the Government will attend to it.

[Baroness Chakrabarti (Lab)]

My Lords, I briefly pay tribute to my noble friend Lady Lister of Burtersett for her campaigning on this issue and on so many related issues on behalf of the poorest and most vulnerable in our society. I also congratulate the noble Baroness, Lady McIntosh of Pickering, and other distinguished Members of the Committee on bringing this issue to the fore.

For me, the nub perhaps lies in the distinction between some comments that the Minister—the noble Lord, Lord Sharpe—made on the previous group about British nationality being a privilege and comments made in this group repeatedly by almost every speaker about the rights of these children or the rights of this or that group.

We all acknowledge that to be British is, in a colloquial sense, always a privilege in that we are proud and fortunate to be British. Whichever route we have taken, we are all very proud and fortunate, given the other places in the world where we could be. However, in the legal sense at least, in a number of cases—not all, but including those that the Government are attempting to deal with in Part 1—citizenship is a right. The Government’s intention seems clear in some of the early clauses to rectify previous injustices and to confer rights on people who should have them. It would be a terrible shame to do this and then to make the right illusory or difficult to access on the basis of a financial bar, particularly for children.

Noble Lords have approached this in slightly different ways, and different options have been made available in this raft of amendments for the Government to look at between now and Report. I urge Ministers, with all the controversy that I fear is inevitably coming on subsequent clauses, to see what they might do in relation to the rights that they are conferring here, if not to citizenship rights and fees more generally.

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[Lord Horam (Con)]

I appreciate that perhaps “manipulate” was the wrong word. I simply meant that events and costs can change over time. If you have it in an Act of Parliament, you cannot change it; you introduce inflexibility, which may in some instances work against you. Often the case is put forward that this is the right way to do it; I have seen a number of these instances, but it never works.

[Baroness Chakrabarti (Lab)]

Forgive me, but is the noble Lord agreeing with me that, in relation to citizenship rights that the Government are seeking to confer on those who should have them, there should not be a fee at all?

[Lord Horam (Con)]

I am sorry, but I did not quite follow the noble Baroness’s point.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I hope that, at the end of my response, they will feel that I have at least given a partly positive response. I am aware that the noble Baroness, Lady Ludford, did not refer to this at Second Reading, but I am very grateful for the discussion we had—I think only yesterday—about this and other matters. I found it very helpful.

I, too, understand the strength of feeling being expressed. I both sympathise and empathise with the residents of the Chagos Islands about how they were treated back in the 1960s and 1970s. I also agree with the noble Baroness, Lady Lister, that return and citizenship are two different matters in relation to the Chagossians.

We recognise that some former residents of what is now the British Indian Ocean Territory missed out on rights to British nationality when legislation was last passed in 2002 to address the nationality of the Chagossians. Section 6 of the British Overseas Territories Act 2002 granted British Overseas Territories citizenship and British citizenship status by descent to any child born on or after 26 April 1969 and before 1 January 1983, where the mother was a citizen of the United Kingdom and colonies by virtue of her birth in the British Indian Ocean Territory. This measure reflected the removal of the Chagossians from the British Indian Ocean Territory and the fact that the mother of a British Overseas Territories citizen could not pass on her citizenship to a child born outside of the UK or a UK territory. The Chagossian community, however, has criticised this provision because it did not provide for circumstances where women left the BIOT before 26 April 1969 in anticipation of being required to leave, nor did the provision allow children to inherit citizenship from an unmarried BOTC father.

Here is the partly positive response to these concerns. I am pleased to say that the Nationality and Borders Bill currently makes provision to extend BOTC and British citizenship rights to any second-generation Chagossians who were not able to acquire citizenship through their mothers or unmarried fathers, due to discrimination in nationality law.

The issues are complex. As one noble Lord pointed out, some family members in the same generation hold British nationality while others do not. I agree with my honourable friend the Minister for Safe and Legal Migration, who stated in the other place that the Government are keen to consider what more we can do to support families seeking to settle here under the current system. Minister Foster has said that he is open to considering how we might use the FCDO £40 million fund package to support the Chagossians settled in the UK.

I must point out the position that successive Governments have expressed on this point. Amendment 11 would undermine the principle in our nationality law that applies to all other descendants of British nationals. Second and subsequent generations, born and settled outside the UK and its territories, do not have a right or entitlement to register as British nationals. I know that the amendment from the noble Baroness, Lady Lister, seeks, as she said, to limit the right to register as a British national to current generations who must apply within a limited timeframe. This does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy. It goes further than the rights available to many other descendants of British nationals settled elsewhere around the world.

The noble Baroness requested that I meet her and others interested in this matter. I always follow up on requests from noble Lords and I am very happy to meet her. We will consider the point raised by my noble friend Lord Horam about what more we can do to address concerns about the Immigration Rules. My noble friend Lady Altmann raised a point about citizenship. Of course, those without citizenship become overstayers. These are complex issues. As I said in reply to my noble friend Lord Horam, we are happy to consider what more we can do through the immigration system.

[Baroness Chakrabarti (Lab)]

In the light of the eloquent and compelling speeches made in this debate, does the Minister concede a distinction between people who leave a territory to settle elsewhere and people who are forcibly evicted from that territory?

[Baroness Williams of Trafford (Con)]

I do not think that anybody in this Committee would say that what happened to the Chagossians was, by any means, acceptable to them personally. I do not think I was trying to make that case.

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[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

“in the interests of the relationship between the UK and another country”.

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

[Baroness Chakrabarti (Lab)]

My Lords, I have listened to this debate with enormous care. I have conflicting feelings about it. I do not know whether I am prouder of the quality, logic and humanity of so many of the speeches, particularly from the Benches opposite, or whether the more compelling emotion I feel is anger that the speeches even had to be made. Unsurprisingly, I will speak against Clause 9 standing part of the Bill and in favour of the various amendments attempting to dilute its pernicious effect—and even more in favour of the proposed new clauses that attempt to go further.

I almost feel as if I and the noble Lord, Lord Hunt of Wirral, have listened to two completely different debates. The absolute tour de force by the noble Lord, Lord Moylan, and other speeches on these new clauses were not wide of the mark, because they quite rightly acknowledged that Clause 9 deals just with notice. They conceded that point, but talked about the rot that goes further back in terms of two-tier citizenship and the more precarious version of citizenship that some people are coming to experience because of the increasing use of powers of deprivation, and because these will inevitably have to be used more against some groups within the citizenry than others.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Green of Deddington (CB)]

I think there probably is scope for discussion between Governments as this problem becomes an increasingly serious one for countries, certainly throughout Europe. Yes, I would not be opposed to that but what I am calling for is some realism and not slogans.

[Baroness Chakrabarti (Lab)]

May I just suggest to the Committee that we proceed with the Committee? I occasionally have nightmares about these issues and I am probably too sensitive to engage in human rights debates, but the die is cast—what can I say? I can think of nightmares I might have about who would be at the Dispatch Box to answer to my questions. At the moment, the little “question time” I have just heard is exceeding the worst nightmare. Can we perhaps hear from the Minister we have, rather than the potential Minister of my nightmares?

[Lord Sharpe of Epsom (Con)]

I will take that as an invitation. Thank you very much indeed. I will try not to be a nightmare.

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[Lord Horam (Con)]

My Lords, I would like to introduce into this debate a subject about which we have heard almost nothing so far: the views of the British people. We are, after all, the upper House of the British Parliament. Their views should be heard.

I have some figures here from the latest YouGov poll on the subject of immigration. The interesting thing is that immigration is now regarded as the third most important subject after health and the economy—even more important than Covid, curiously; I am not sure about that but, none the less, that is what it says. A previous YouGov poll said that 70% of people thought illegal crossings were a serious issue, so the public are well aware of the issue; indeed, they have been seeing it every night on television, particularly during last summer. Some 63% said that illegal immigrants should not be allowed to settle here while 60% said that they should be removed. In a June 2021 YouGov poll, 60% said they thought that illegal immigrants should be banned from claiming asylum, while only 20% thought they should be allowed to claim asylum. Some 64% thought it was fair to remove people who come from safe countries, while only 15% thought it unfair. Those are opinion polls so take them for what they are worth—we all have our views about opinion polls—but they are a snapshot of opinion in the recent past.

My own view is that, on an emotional subject such as immigration, you need to develop a policy with which the British people are comfortable. If you do not have a policy with which the British people are comfortable, it will not be sustainable in the long run. I point that out to the noble Lord, Lord Kerr, who understandably made a point about our international obligations. If we had had a policy on immigration more widely that the British people had been comfortable with in the last 20 years, we might not have had Brexit. Sadly, whether we like it or not, immigration was a huge issue in the Brexit debate. I put it to the noble Lord that the extent to which people’s views on immigration were ignored was a factor leading to the decision that we took. I am a remainer, so I regret that.

[Baroness Chakrabarti (Lab)]

I wonder if I could ask the noble Lord two questions. First, obviously public opinion is always relevant, but does he concede that, by definition, someone who is a genuine “refugee convention” refugee is not and never was an illegal immigrant? Secondly—again, this goes to the comments made about opinion—does he agree that opinion is something that the people with the privilege to be in this place, and certainly those in government, play a role in shaping and leading as well as hearing?

[Lord Horam (Con)]

My point is that we should pay regard to opinion but it is rarely mentioned in debates about immigration—almost never, in fact. There is a case for putting forward what the British people think about this, whether you think it is right or wrong. I do not think it is wholly right but, none the less, we have to take it into account. We have eventually to reach a position where the British people are comfortable with the Government’s policies; in my view, that is what the Government are trying to do.

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[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Horam (Con)]

I will not take another intervention, if the noble Baroness does not mind, as I have given way twice and want to finish what I am saying. I do not want to go on too long.

This House has to take into account that the silent majority have very clear views about this which they have held consistently for a long period and which have not been heard, and this has had a major effect on the policy positions of the country. In my view, it has had a deleterious effect, unfortunately; I would rather we had stayed in the European Union, but that is the fact we have to face.

It is generally admitted that we are now dealing with a very difficult, specific problem, one aspect of the whole immigration problem, namely illegal crossings of the channel. It is a small part of the problem that creates a bigger problem. Many people have raised wholesale migration, which I understand is a huge issue which is tackled in many different ways—through international development policies, as well as immigration policies, and so forth. However, there is a specific problem here which any Government of any colour would have to tackle, namely people smuggling people—not brandy, tobacco or commodities, but people—into this country illegally, day after day, against the law. That is something that no self-respecting Government can ignore; they simply cannot.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I feel profoundly uncomfortable with Clause 11, and I am very tempted to vote for it to be completely removed. But I wanted to listen to the debate, and I am afraid that the people who have argued for the removal of Clause 11 have given me pause for thought, which was not what I expected to happen when I arrived. The reason is the way that this discussion has taken a particular form politically.

I am somebody who voted to leave the EU from the left—in the Tony Benn tradition—and I have historically been liberal on immigration. I have fought on many anti-deportation campaigns, and I am not somebody who thinks that one should close the borders. I am, more than anything else, a democrat; even in this House, I try to stay a democrat. I appreciated, with some irony, the comments of the noble Lord, Lord Horam, and the noble and learned Lord, Lord Clarke—Conservative remainers with whom, to be honest, I have not historically had a great deal in common but who raised some important issues that should inform this debate.

My concerns about Clause 11 were very well expressed by the right reverend Prelate the Bishop of Durham, who explained in great detail where I was finding difficulties with this. But I have a problem with the solution and the way in which this debate has been conducted. I think it is important to consider the British public’s opinion. It was interesting that a lot of people have asked us to walk in the footsteps of asylum seekers; I think empathy is hugely important and humane. But I also ask noble Lords to walk in the footsteps of the British public, who, if you ask them their opinion, do not all want hanging. Leadership is, broadly speaking, not the same as usurping their perfectly reasonable concerns.

What are their concerns? They are not that they do not meet any asylum seekers and, when they meet them, they change their minds; not that they lack generosity; not that they are xenophobic, mean spirited or narrow minded; and not that they want to close the borders and hate foreigners, as is often implied. Their concerns are that they would like control over the borders, which I think is a perfectly reasonable demand. A visceral illustration of a lack of control over the borders has been given to us by those arriving in boats, and we are all trying to untangle what to do about it as humanely as possible. That includes the British public, millions and millions of whom are incredibly generous of spirit towards all sorts of people and do not need lectures from here about how they have to open their hearts to people. They are full of heart-brimming generosity in all sorts of ways. Why do we have an issue here?

This is the bit that I cannot untangle. There are people who are seeking asylum legitimately, and one wants to welcome them. There are people trying to come to the country who are undoubtedly illegal immigrants, as anyone would understand them, but because there are very few ways to arrive as an economic immigrant, they may choose to describe themselves as asylum seekers. On a different set of amendments I will say that we should have more liberal immigration rules that would allow unskilled people to come as economic immigrants to this country.

We can see, and it is perfectly reasonable, that you cannot just say to people that everybody who arrives on a boat is obviously an asylum seeker, and that everybody who worries about them arriving must be a mean-spirited, horrible person who hates foreigners. That is my concern. I am trying to untangle that, because I genuinely do not know what to do. As I said, I would be liberal about economic migrants coming to the country, as much as I would about asylum seekers coming to the country, but I feel as though everyone is being forced to declare that they are asylum seekers because it is the only route in where you will not get kicked out. So I think that we are in a mess.

The Government need to answer this. What happened in relation to Brexit—for noble Lords who are interested in this—was not that people did not want any foreigners to come into the country but that they were told that freedom of movement was a non-negotiable international agreement that nobody could ever debate. So as democrats, people said, “Well, I live here; I’m a British citizen”—many of them from ethnic minorities, before anyone goes down the racist road—and they said, “Shouldn’t we be able to control who are British citizens who come here?” That is what happened. Other people said, “No, we can’t because we’re in the EU; we’ve got no choice”. So they got annoyed. My concern here is that if we say to the British public, “You either agree with us or you’re a xenophobe”, or, “You have to agree with us because we’ve got a refugee convention”—another international agreement from 1951, however good it is—“and it’s the only thing going; there’s no alternative”, that will also indicate that they have no democratic power.

I cannot understand why the Government keep trying to fit in what they are doing to the 1951 refugee convention, which, although one noble Lord described it as having been written in utmost liberality by British lawyers, was written by British lawyers—not by the British public. I want the laws to be written by the British public and for the British public, not just by lawyers—and in 2022, not necessarily referring back to 1951 all the time. I have no objection to that convention, but if it is not fit for purpose in 2022 to take control of our borders, the debate about immigration and asylum seekers will become toxic, if we just keep telling people that they cannot have this discussion. I believe I can convince my fellow citizens to be more liberal on immigration, but not when they are told that they cannot have the debate or that if they want to have the debate or to express worries about people arriving in boats, they must by their very nature be lacking in generosity and xenophobic. That is not the way to go. I am still likely to vote against Clause 11, by the way.

[Baroness Chakrabarti (Lab)]

My Lords, I think we have been having this debate all my adult life and probably all my life, but I am certainly happy to keep having it; there is nothing wrong with that. However, I do think that it is very important in the context of Clause 11 to make a distinction in Committee between immigration and asylum. If I may say so, I do not think that Brexit is terribly helpful to an analysis of Clause 11. It used to be said that for the French, a meal without wine is like a day without sunshine. Clearly, for some people the equivalent is a discussion without Brexit, but I am not one of them.

It is important to make this distinction between immigration and asylum, which are both big and important debates, but they are too often conflated—not just in our discussions in this Committee but to some extent in Clause 11 itself. The noble Lord, Lord Horam, did not have the opportunity to reply to my question—all sorts of people intervened in his speech, to be fair—but if somebody is a convention refugee, they are not and never were an illegal migrant. That is incredibly important.

I congratulate the right reverend Prelate, who I think gave the speech of this Committee, and not just because I agree with him. I do agree with him, and also the noble and learned Lord, Brown of Eaton-under-Heywood, and, of course, the noble Lord, Lord Kerr. What was so important about the right reverend Prelate’s speech was its specificity to the refugees’ journey and the way that that would be affected by this differentiation. I congratulate him on that, because it is a very good way to analyse Clause 11: whether it works and whether it complies with the refugee convention.

Why is compliance with the refugee convention so important? It is not like choosing to vote in or out of something that began as a trading bloc but was always a particular grouping of countries rather than the whole civilised world. The reason why the refugee convention is so important is because, after two world wars, it was literally the world’s apology for the Holocaust. That is the best way that I can sum up why the refugee convention is so important. While Britain did wonderful things, not least standing up to Hitler with lots of Americans and Russians and people from the Commonwealth too, and there are very good things to be said about Britain’s contribution, there were also less noble things that have to be remembered—about the people who did not manage to get out, who did not escape the Holocaust, including people who were not allowed into this country and other countries around the world.

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[Baroness Chakrabarti (Lab)]

To comply with the ECHR means complying not just with Article 8 but with Article 8 read with Article 14, which means respecting the right to family life but also not discriminating in that context. How can it not be discrimination when the whole purpose of Clause 11 is discrimination between group 1 and group 2? It is blatantly a breach of Articles 8 and 14 read together.

[Baroness Williams of Trafford (Con)]

It is differentiation rather than discrimination. The two are quite different.

Amendments 44, 45, 47, 51 and 52 seek to remove the powers to differentiate entitlements. As we have noted elsewhere, these powers are broad and flexible; they do not require the Secretary of State to act in a particular way. Equally, there is ample discretion available in respect of whether a person is granted group 1 or group 2 refugee status. While the detail will be set out in rules and guidance in due course, suffice it to say that the exercise of the powers in question will be sensitive to vulnerabilities and individual circumstances. That enables us to balance the need to take a tough approach with the need to protect the most vulnerable.

We have been clear that our starting point in respect of the length of leave will be a grant of no less than 30 months. Similarly, settlement will be available by virtue of our long-residence rules. We have gone further in our defence of refugee family reunion, noting that we will continue to uphold our international obligations under Article 8, but in any event, there is no requirement to apply such entitlements in each and every case. I repeat that we fully intend to be sensitive to vulnerabilities and individual circumstances in that respect. That is why we have retained a considerable amount of discretion in the drafting.

Turning to Amendment 55, I do not think it would be appropriate or right for us to step outside of the existing power to make immigration rules under the Immigration Act 1971. This is the same power that we use to implement most other aspects of UK immigration policy, including but not limited to asylum policy. Indeed, areas in which we regularly use Immigration Rules to administer the system include the type of leave to remain, the length of leave to remain, the routes and conditions of settlement, and family reunion. It would be inappropriate to do otherwise in this case. The rules are the appropriate vehicle: they have a long-standing and clear procedure, with the appropriate level of scrutiny built in. As I have noted, however, I am absolutely committed to this policy being exercised sensitively with a view to protecting the most vulnerable. There will always be discretion in our policies to make the right decisions in each case, and that extends to the Immigration Rules.

I cannot agree to Amendment 39, which would remove the requirement for a person to claim without delay to be a group 1 refugee. That means that anyone claiming asylum, regardless of whether that was done at the last moment to defer removal, could be a group 1 refugee. That would undercut the entire purpose of the policy and embolden those seeking to abuse our rules. There are already safeguards within the legislation enabling discretion to be exercised, such that a claim should be made as soon as reasonably practicable.

Amendments 43 and 50 would amend the list of ways in which we can differentiate from a non-exhaustive list to an exhaustive one. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do that only by retaining flexible powers to respond to situations as they arise.

Amendment 48 would prevent the ability to differentiate in respect of family members. This is primarily about coherent policy. We should ensure that, where appropriate, family members of refugees are not treated more or less favourably than the lead applicant, but the flexibility that we wish to retain will also enable us to respond sensitively to particular circumstances as appropriate, including in respect of how we treat family members. For example, let us say we discover that a child has been a victim of abuse by their parents and needs to be taken into care. The flexibility in the powers would enable us to respond to such a tragic situation by granting a more generous entitlement to that child compared to their parents, in order to sympathetically reflect the need in those individual circumstances.

Amendment 53 would remove the ability to differentiate in respect of requirements for settlement for family members. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do this only through retaining flexible powers to respond to situations as they arise. That said, I anticipate that many if not most families will receive the same length of leave to remain to ensure that all qualify for settlement on the same terms at the same time. However, we want to retain the ability to respond flexibly to challenging situations that might require us to do otherwise in respect of length of leave for a refugee and their family.

I turn to Amendment 41, in the name of the noble and learned Lord, Lord Etherton. I hope I can offer some reassurance that his concerns have already been accounted for in the policy, so there need be no further amendments to the Bill in this respect, as I outlined earlier. We envisage that the provision will apply in cases where a refugee meets the first two limbs of Article 31— that is to say, they came direct and claimed “without delay”—but, at the time of the claim, they had entered or were present in the UK unlawfully, having, for instance, overstayed an economic migrant visa.

To illustrate, let us say a person overstayed their visa and then lodged an asylum claim. Because they had entered the UK directly and ostensibly claimed without delay, they might be eligible for group 1 refugee status but, due to having overstayed, we would also check whether they had

“good cause for their illegal … presence”

at the point of claim. If they had no good reason for having been in the UK illegally, they might be liable for group 2 status. An example of where good cause could be shown might be if a person had overstayed their visa and then lodged an asylum claim—a very similar situation to that described by the right reverend Prelate the Bishop of Durham. If their reason for overstaying and lodging an asylum claim while in the UK illegally was on the grounds that they feared presenting to the authorities because they were homosexual, in such a case this may well amount to a good cause.

Suffice it to say that the powers in the Bill are broad and flexible and therefore enable us to exercise discretion where appropriate, including with respect to “good cause”, which will be reflected in guidance to caseworkers.

I turn my attention to Clause 11 as it currently stands. These powers are primarily intended to uphold the “first safe country of asylum” principle. Clause 11 provides a power, as noble Lords have pointed out—they are not very happy about it—for the UK to differentiate according to whether people satisfy certain criteria based on those in Article 31.1 of the refugee convention. The Government have set out their interpretation in Clause 36. I will not distract the Committee from the issue at hand by going through the provisions of Clause 36, because they will be debated in full.

If I may just pick up the points made by the right reverend Prelate the Bishop of Durham, and the noble Baronesses, Lady Ludford and Lady Chakrabarti, on Article 31, the criteria we use as the basis for differentiation are not based expressly on one’s method of arrival. Instead, they are based on the criteria within Article 31 of the convention: whether someone came directly and claimed without delay, and, where applicable, had

“good cause for their illegal entry or presence”.

The clause acts on our commitment to do everything we can to deter individuals, as I have said, from making dangerous and unnecessary journeys through safe third countries, often putting lives at risk. I hope I have fully explained the Government’s rationale and addressed noble Lords’ questions. If I have missed anything out, I am very happy to follow up in writing but I hope that noble Lords will feel happy to withdraw or not press their amendments.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Hunt of Wirral (Con)]

I will just finish dealing with the point raised by the noble Baroness. We must ourselves try to identify what these pull factors are that cause people to risk their lives in the way that they do. It may well be that both the noble Baroness and I are right to identify certain parts of the pull factors, but of course we have to recognise that there are those pull factors.

[Baroness Chakrabarti (Lab)]

Given that the Government’s position is that they are right about the refugee convention; given that they disagree with the UNHCR but have their own interpretation under which they are honouring the refugee convention; and given that the Government’s position is that it is about parliamentary sovereignty and not the sovereignty of people elsewhere, why should we be forming our interpretation of the refugee convention on the basis of French criticism? If we are worried about pull factors, perhaps we should reinstall “Go Home” vans and a hostile environment for people seeking asylum.

[Baroness Stroud (Con)]

My noble friend said that it would be good to identify what some of these pull factors actually are. At Second Reading, I sought to try to outline what I believed the pull factors were, and they are not things that we would want to destroy or diminish at all. My understanding of the pull factors—why people want to come to this country—is that they include our language, our culture, the rule of law, democracy, historic ties through the Commonwealth, family connections and liberty. These are the sorts of reasons why people want to come here. The small, pitiful amount of money that somebody gets to survive on is not something, when they are leaving Eritrea and thinking of the hellish journey that they are going to take, that is going to make them want to come here. It is much more likely that they experience push factors, which are war, famine and devastating impacts on their lives. We really need to understand the lives that are lived by these men and women who risk all to come here. We know that every system has elements that get exploited, but we have to make laws for the majority of people and the majority of cases, and to be the sort of nation that we actually want to be.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Prashar (CB)]

My Lords, I rise to support the amendment tabled by the noble Baroness, Lady Stroud, and supported by the noble Baronesses, Lady Lister and Lady Ludford, and myself. The noble Baroness, Lady Lister, in her usual manner introduced it fully and spoke movingly, as did the noble Lord, Lord Paddick.

As we heard, asylum seekers wait months or even years for a decision on asylum claims, and sometimes decades. This condemns them to poverty, uncertainty and fear. It leaves them in a limbo, experiencing poverty and destitution. If they are allowed to work, this would improve family life, give them better prospects for their lives in the UK, and they would be able to rebuild their lives in the UK and eventually integrate better. It also, of course, as we have heard from the noble Lord, Lord Paddick, makes economic sense. As we have already heard, the Migration Advisory Committee, which advises the Government on migration policy, in December 2021 recommended that the Government should look again at this policy. It also recommended giving asylum seekers the right to work after six months and not restricting them to the jobs on the shortage occupation list. Perhaps the Minister can explain why they are not paying heed to the advice of their own advisory committee?

The committee also states that the argument that this right would be a pull factor, as we have heard already, is not supported by evidence. The benefits of allowing asylum seekers to work outweigh the unfounded fears expressed by the Government. Therefore, I urge the Minister to accept this amendment, which has very wide support.

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute pleasure to follow both my noble friend Lady Lister of Burtersett—who is hard working to the point perhaps of being a Stakhanovite—and also the noble Baroness, Lady Prashar. I have added my name to Amendment 64 from the noble Lord, Lord Paddick, but I support the thrust of both of these amendments. I think this is a total no-brainer—forgive me, I really do. I have always thought this. I have been working around this area all my adult life and I have never understood the logic of Governments of both persuasions, over the years, prohibiting this category of humanity from working, at the same time as trying to get other categories to “jolly well get on and work”, not be dependent on the state and not be dependent on benefits: “Don’t be scroungers—just get out and work”. It seems so illogical to have this strange bifurcation.

--- Later in debate ---

It would also be a further incentive to destroy documentation, which nearly all of them do, both to delay the process and also perhaps to conceal the fact that some of them are not from countries where they are at serious risk. It is important to note that a significant proportion of asylum seekers have been found not to be genuine. It depends what year we look at. We have had this discussion, but certainly there is clear evidence from the past that roughly half were refused.

[Baroness Chakrabarti (Lab)]

I know that the noble Lord is concerned about asylum seekers who turn out not to be recognised. No doubt he is even more concerned about the smaller proportion of them who may be wicked people in some way. Does he acknowledge that wicked people who are convicted of crimes in this country, even those who go to prison, are allowed to work? Does he consider that a pull factor or an incentive to commit serious crime?

[Lord Green of Deddington (CB)]

I do not see the relevance of that question.

Let me conclude, if I may. As we discussed earlier in this debate, the Government’s asylum workload has tripled from 40,000 cases in 2012 to 120,000 cases in 2021. Furthermore, nearly half of all cases awaiting an initial decision have been waiting for 12 months or more. In the present situation, they would in any case get permission to work. However, it is vital for these delays to be tackled. On that point, the noble Baroness, Lady Chakrabarti, and I are agreed. It makes no sense to me to adjust the immigration system to encourage delay. This Bill contains some useful measures designed to speed up the asylum process, and they should be supported.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I do not think that the noble Lord is right about EU arrangements. I remember as an MEP fighting hard on the inadmissibility provisions in EU directives. On the Dublin arrangements, my understanding is that the UNHCR is satisfied that those arrangements were compliant with the refugee convention. I contend that Clause 15 is not, hence I have put my name to some of the amendments in this group. My noble friend will propose that Clause 15 be removed altogether, as it fails to recognise the need to share asylum responsibilities with other countries in order for the international system to work effectively, but at least some changes to the clause are necessary, and so I have co-signed the amendments suggested by the JCHR, tabled in the name of the noble Lord, Lord Dubs.

Amendments 69, 70, 71 and 75 all seek to restrict and improve the operation of the scheme proposed in Clause 15. I also support Amendment 68, and convey the apologies of my noble friend Lord Oates, who has a conflict with other business. Clause 15 is about proposals whereby the UK would attempt to persuade some other country to take responsibility for the asylum applicant if it considered that there was a connection to that state, broadly defined, or even if there was no connection at all.

Amendment 69 seeks to ensure that the definition of “safe third State” means it affords the protection and rights to which the person is entitled, so there is no real risk of them experiencing persecution, a violation of their human rights or refoulement, and that there is access to fair and efficient asylum procedures and refugee convention rights. Amendment 70 seeks to ensure that any removal should be only to a state with which the person has a connection. Amendment 71 requires that, unless formal and legal binding return arrangements are in place with the state in question—such as was the case with Dublin, which is why the UNHCR gave it its blessing—and removal takes place within a reasonable period. Absent those conditions, there must be no declaration of inadmissibility and the claim must be considered in the UK. Amendment 75 removes and rejects the suggestion that the UK can remove a claimant to a country in which the UK Government think it would have been reasonable for them to have made a claim, even if they had never visited that country.

As I said, even if these four amendments were adopted, Clause 15 would still be flawed. It would create yet greater delays, backlogs and costs in the asylum system. As we keep saying, the Home Office says the system is broken yet it wants to shoot itself in the foot by having ever-more complicated and long-winded procedures. It would also create greater anxieties for claimants and disruption to the international system. Therefore, Clause 15 must be at least amended, if not removed.

[Baroness Chakrabarti (Lab)]

My Lords, unsurprisingly, I agree with everyone who has spoken so far except, I am afraid, for the noble Lord, Lord Horam. This is why: we are out of the EU now and have taken back control of our borders and laws. This is the Government’s policy. We are no longer in this family of nations, this bloc called the EU. Therefore, on what logical basis should we be saying that, by definition, we will never consider a claim made by an asylum seeker from that group?

It is one thing when you are in the EU to say that we do not need to be taking refugees from the EU because there is free movement in the EU and we are part of that bloc. You might well say that it will be inadmissible and that we do not consider refugee claims from within that family of nations of which we are a part, but we are not in it anymore. We have taken back control. Therefore, we are no longer able to assert pressure on others in that group to buck up their ideas about human rights or to threaten the Hungarians with being ejected from the EU if they do not sort out their human rights record. We do not have that leverage anymore. Therefore, it is our obligation as global Britain, as great believers in human rights and a signatory to the refugee convention, that if Hungarians are being persecuted we will consider their claims for asylum because we are better than them and we have taken back control in a lovely global Britain sort of way. It is totally illogical for Clause 14 to be part of the Bill.

More generally, the noble Baroness, Lady Ludford, made an important point about complexity and efficiency. In an earlier group, everyone in the Committee agreed that decision-making needs to be faster and better. That is in everybody’s interest, whichever side of the argument we are on. Creating lots of convoluted provisions about what is inadmissible, before you even consider whether someone is being persecuted, will only make life harder for caseworkers in the home department. I have seen Governments of both persuasions do this over the years. They think they are making it easier, but they actually make it harder by creating more convoluted hoops for people to jump through before their claim is even considered. It is better to have a clean slate and to consider somebody’s circumstances: do they qualify for asylum or not? It would be much easier without all these hoops, so Clauses 14 and 15 should go.

Just consider the claims: if countries are safe, they are safe. If people are not telling the truth, test their credibility and make that decision. Of course, I agree with everything my noble friend Lord Dubs said about safe countries, who has or does not have an association with one and the Government making the decision for them on a spurious basis.

Finally, I agree with the noble and learned Lord, Lord Etherton, it is a well-established principle of refugee convention jurisprudence the world over that you do not have to be persecuted just by agents of the state. States have a duty to protect all the people in their state. If they do not do it, there can be behaviour and persecution by non-state agents within that territory. If the state is not offering protection, if there is no effective rule of law, it is not enforcing the criminal law and is allowing Roma or gay people or whoever to be persecuted by fascist skinheads in Hungary or whatever it is, that is persecution for the purposes of the refugee convention.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I will be brief. I thank the noble and learned Lord, Lord Etherton, for moving Amendment 68 and associate my name with this amendment. It deals with a glaring omission. I hope the Government will accept the amendment because, as has been rightly said, the Bill states:

“The Secretary of State must declare an asylum claim made by a person who is a national of a member State inadmissible … For the purposes of subsection (4) exceptional circumstances”.


This is where Amendment 68 beautifully sits and deals with that omission because intolerance is on the rise on the grounds of many protected characteristics listed within the Equality Act not only in Hungary, but in Poland and other parts of the EU. Indeed, the EU is somewhat restricted in what it can do with independent member states on some of these issues. I hope that the Minister will indicate that the Government will move on this, and the other positive amendments within this group, because in the end we are dealing with issues of human rights.

[Lord Kerr of Kinlochard (CB)]

My Lords, I agree with the noble Baroness, Lady Chakrabarti, but my feeling about these amendments is that that the noble and learned Lord, Lord Etherton, is right and that the best answer is to strike out the clause.

[Baroness Chakrabarti (Lab)]

I am so sorry but would the noble Lord remove his mask for a moment so we could better hear his wisdom?

[Lord Kerr of Kinlochard (CB)]

Was everything I said even more incomprehensible than usual? Basically, I am saying that we can amend and improve this a bit, but it would be much better to get rid of it.

I also have one point of detail. I am struck by the double reference to the definition of a safe third country, which I believe is irrelevant because the refugee convention says what it says. The definition is that a safe third country

“is one from which a person will not be sent to another State … otherwise than in accordance with the Refugee Convention”

and that is repeated later. Of course, there is absolutely nothing in the refugee convention about sending somebody to a safe third country, or sending somebody to any country, except there is the firm ban on refoulement, that is, sending somebody back to the country where he had the justified fear of persecution. I understand why the noble Lord, Lord Dubs, has that phrase in his amendment. He is thinking about refoulement, but the Government, when they put it in the Bill, are not thinking just about refoulement. They are thinking about their doctrine of having to seek asylum in the first safe country. They are thinking about their strange reading of Article 31 of the refugee convention. They are not letting Article 1 speak for itself, and their reading of the convention is a quite different one, as was explained by the noble and learned Lords, Lord Etherton, Lord Brown and Lord Clarke, with a different definition from the one that has become the jurisprudence of this country.

--- Later in debate ---

I understand the spirit of Amendments 69, 69A and 73A in seeking to define a safe third state to ensure that an individual removed to that country is provided with adequate protection, and that their individual rights as a refugee are recognised under the refugee convention.

[Baroness Chakrabarti (Lab)]

Briefly, on the Minister’s previous point in response to the right reverend Prelate about refugees being able to fly here instead of making perilous crossings, will she make a commitment that the Government will not slap transit visa restrictions on jurisdictions that produce a lot of genuine refugees because of what is happening over there, and that they will not use carriers’ liability as a deterrent for people trying to escape through that safer method?

[Baroness Williams of Trafford (Con)]

Can I write to the noble Baroness on that? I suspect that I will misspeak if I try to answer because there are several things in that question that I am thinking about. I hope that she is okay for me to write to her.

The definition of a safe third state is already set out in the clause. It ensures that, even if a country is not a signatory to the refugee convention, the principles of the convention should be met if we are to remove an individual to that country. It defines safe third countries as states where an individual will not be sent to another state where they would be at risk of persecution or a breach of their Article 3 ECHR rights. This is consistent with our obligation under the refugee convention to ensure that individuals are not subject to refoulement; I keep pronouncing it as “refowlment”, which is completely wrong. This definition has been part of our previous legislation on safe countries and is a widely recognised definition of a safe third state; it is used in EU law under the procedures directive.

I want to come to point made by the noble Lord, Lord Dubs, that the UNHCR says that we are breaking the refugee convention. There are three groups of amendments on this in Committee—not today, but shortly, so I will not go too much into the convention. We have already touched on it. We think that everything we are doing complies with our international obligations, including the convention. The first safe country principle is the fastest route to safety and widely recognised internationally. It is a fundamental feature of the Common European Asylum System. It is self-evident that those in need of protection should claim in the first safe country and that is the fastest route to safety.

There are different ways in which an individual may be protected and not all of them require entitlements that fall under the refugee convention. To define a safe third state in the way that is suggested by these amendments ignores the fact that other forms of protection are available to individuals which ensure that these countries are safe for them to be removed to. We will only ever remove inadmissible claimants to countries that are safe. Using this definition is not a new approach. It has been part of our previous legislation on safe countries. I do not think these amendments are necessary.

On Amendment 70, the ability to remove an individual declared inadmissible to any safe country has formed a part of our inadmissibility process since the changes to the Immigration Rules in December 2020. This amendment would remove a provision that Parliament has already had the opportunity to scrutinise. The aim of these provisions is to disincentivise people from seeking to enter the UK by dangerous means facilitated by criminals. They send a clear message that those arriving via an irregular route may be eligible to be transferred to another safe country, not of their choosing, to be processed.

I do not agree with the premise of Amendments 71 to 73A and 195. Agreements by a safe third country to accept an asylum seeker may not always be via a reciprocal or formal arrangement. It is right to seek removals on a case-by-case basis where appropriate. Doing so has formed a part of our inadmissibility process since the changes to the Immigration Rules in December 2020. I do not think that these provisions are unworkable without formal agreements in place. That said, I do not disagree with the need to get formal agreements in place. Without providing that running commentary, that is what we are working on doing.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I will speak to the five amendments in this group—Amendments 83, 88, 90B, 95A and 137, and the question of whether Clause 25 should stand part—all of which I have co-signed or are in my name. The four I have co-signed are inspired by the Joint Committee on Human Rights and are in the name of the noble Lord, Lord Dubs. He has had to leave and has asked me to give his apologies.

The provisions whereby the presentation of evidence, after a date specified by the Home Office or in a priority removal notice, is required to be treated as damaging to credibility or to be given minimal weight are unfair, unjustifiable and should be removed. I agree with everything the noble Lord, Lord Coaker, said.

I have also tabled Amendments 90B and 95A in the alternative, as it were. Under Clauses 21 and 25, the decision maker on priority removal notices or in an asylum or human rights claim would at least be obliged to consider whether the presumption of damage to credibility was fair, rather than looking solely at whether there were good reasons for the delay. Taking lateness into account should be rejected if it would be unfair.

The motivation for all these amendments is fair access to justice—both to comply with the European Convention on Human Rights and, as set out in Amendment 137 about removal notices, to uphold a common-law right to access justice. Yesterday, I had the pleasure of being at the Joint Committee on Human Rights session at which the noble Lord, Lord Wolfson, gave evidence. We discussed having the common law as an inspiration, as well as the ECHR, in the application of human rights. I am sure the noble Lord will be able to tell me that the Government at least accept Amendment 137.

I do not need to say more because the noble Lord, Lord Coaker, put it very well. To say that evidence is not convincing is one thing; to say that, because it has not been submitted by date X it is incredible or has no weight, is putting process over substance.

[Baroness Chakrabarti (Lab)]

My Lords, I shall speak against Clause 25 standing part. I agree with so much of what has already been said. This is a particularly tawdry little clause in an outrageous Bill, which, as we have heard, has been slammed by UNHCR, the custodian of the refugee convention, by the JHCR, Amnesty International, Human Rights Watch and everybody, it seems, except noble Lords opposite.

My noble friend Lord Coaker need not apologise for not being a lawyer. It is not necessary to be a lawyer to see how tawdry Clause 25 is and how it absolutely puts process over substance.

This area of the law is not about parking regulations, or the tax owed to the Revenue or even major civil or commercial litigation between powerful opposing forces. This is the David and Goliath situation referred to by the noble Baroness, Lady Hamwee. When an asylum seeker presents themselves to whoever—the Border Force or the Home Office—they are putting themselves in the trust of Her Majesty’s Government in the hope that this is the right place to be.

Noble Lords have been making arguments in Committee, and those opposite have been making arguments about forum shopping, wanting better lives and all those things as if they are terrible but, in essence, the refugee convention is about desperate people escaping and having a fair crack at being believed. They may not all be telling the truth. Whether they are or not, they may not all qualify for convention protection, but there should at least be a kind and fair reception and a fair crack of the whip. That means not taking tawdry little process points such as this.

I have been a refugee lawyer, in and outside the Home Office. When I worked as a lawyer in the Home Office—I am going back now to before the new Labour Government, when my first boss was the noble Lord, Lord Howard—we did not take tawdry process points like this. That was in 1996.

In a moment, the ever-avuncular and brilliant advocate, the noble Lord, Lord Wolfson of Tredegar, will get up and tell us not to worry, because this will come into play only when there are no good reasons. So, fear not, Women for Refugee Women, UNHCR, Amnesty International, ILPA and every other bleeding heart. The Home Secretary would call them activist human rights lawyers and they are perhaps almost as contemptible as refugees in her eyes. The noble Lord will say not to worry because, where there are good reasons, this does not come into play and there will not be an issue about evidence.

But why put this in the statute book? Immigration officers, the Secretary of State, the First-tier Tribunal, the Upper Tribunal and SIAC—these bodies are well capable of looking at evidence and credibility. It is an insult to their intelligence for them to look at whether there were or were not good reasons for late evidence. Sometimes late evidence is incredible and sometimes it is perfectly valid, because there are very good reasons—a host of good reasons, more good reasons than not—in relation to trauma.

[Lord Green of Deddington (CB)]

Would the noble Baroness like to say whether evidence is ever deliberately produced late in order that it is impossible to remove people for whom such a decision has been made?

[Baroness Chakrabarti (Lab)]

I have no doubt that that is sometimes the case, but my point is that you do not need Clause 25 to deal with that case, because the decision-makers listed here are well capable of looking at evidence whenever it is served. If the idea is that this is late, incredible or mischievous evidence, or the other concerns of the noble Lord, these decision-makers are capable of getting there by themselves. They do not need this insult to their intelligence that they must give it minimal weight. I never knew about this principle of minimal weight. It has been invented. Sometimes late evidence is good and sometimes it is bad, but this is asylum; refugees are at stake.

The noble Lord opposite always wants to talk about the numbers. He is very concerned about the numbers and I appreciate that, but this is not about numbers. It is about getting decisions right and protecting even the one claimant in a thousand who is the torture victim, who has been persecuted, who may be a child and who may have been trafficked. To turn this into a matter of a parking fine or commercial litigation, in which your case is prejudiced because you were only just advised that being gay is relevant and that you do not have to be afraid to say so, because this is Britain and Hungary, is tawdry. To make that process point, when we are talking about life or death—not big bucks or small bucks but life and death—is totally tawdry.

Clause 25 does not help. If anything, it will make life more difficult for the Home Office because, I promise you, there will be endless litigation about what good reasons are. That is why the amendments are helpful, because they are beginning to tease out what will eventually be the subjects of litigation. We do not need it. We all know that late evidence is sometimes an abuse and is sometimes incredible, but sometimes it emerges because people have only just got decent translators or lawyers, or country or other vital information, which is sometimes hard to get.

I am sorry to hear that the noble Baroness, Lady Neville-Rolfe, is unwell. I am sure that the Committee will join me in wishing her a swift and full recovery.

On the point about identifying documents, let us go back to the history of the refugee convention. Some of the most genuine refugees have to escape without identifying documents, and some of the least oppressed people are the ones who have fantastic documents. That is why Amendment 85 has to go. This is not the biggest problem in a terrible Bill, but Clause 25 is a tawdry little clause, unworthy of Her Majesty’s Government; let us strike it from the Bill.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I have deep concerns about Clauses 17, 19 and 25. Others have already expressed why, so I will not overly repeat myself. I congratulate my noble friend Lord Coaker on brilliantly moving the amendment in the name of my noble friend Lord Rosser. Equally, I associate myself with the amendments in the names of the noble Lord, Lord Paddick, my noble friend Lord Dubs and the noble and learned Lord, Lord Etherton.

The reality of what is sometimes the last line of defence, not only in LGBTQ issues but in other vulnerable situations, is that it is the last thing you want to have to deal with yourself. Sometimes the very notion of coming out to yourself is deeply painful, because the recognition in certain cultures, countries and religions means to shut yourself off, not only from a body of support, your religion or community, but from your family. Initially, to come out to yourself is a huge step. Then you have to make the decision, day in and day out, whether to come out in other, very ordinary situations. You are here and you have put in your claim, and someone might say, “How was your weekend? Did you spend it with your girlfriend?” You have to decide whether to lie or tell the truth. If you tell the truth, you may become isolated in the asylum community, and perhaps from your country or religion. This is the community that you associated yourself with, to give yourself support and belonging, in a country where you seek to belong. Then you come out in late evidence, with that last line of defence. If your claim is rejected, you are possibly putting yourself in danger at home, in that you could be returned to one of the seven countries where you are criminalised simply for the reason of being LGBTQI+, or to one of the 11 countries where you could face the death penalty.

I remember in the 1990s working on the case of an 18 year-old Iranian who came out in this country. His asylum application was going to be rejected. A group of us were privileged to intervene on his behalf. What that teenager had said publicly would have been recorded and noted back home. We were successful—I do not say this boastfully, but it is one of the few things I am proud of in my life—in preventing that young man being returned to Iran, where, like three other young men in the weeks before, he could have been hung by his neck on the gallows until he was dead. How will the Government deal with exceptional cases where people bring in late evidence in order to substantiate their claim?

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[Lord Wolfson of Tredegar (Con)]

Let me come to that point in a second. First, let me say that I almost took it as implicit in the request from the noble and learned Lord, Lord Etherton, that the Committee would like to have the guidance, but I have heard the point made, and I will certainly pass it on. I do not want to go over points I have already made, and I think when the noble Lord looks in Hansard, he will see that I have set out quite clearly why, first, we need to have a system whereby, in particular cases, the date can be extended or adjusted, but also, secondly, why that does not undercut the principle of actually having a date and having this structure. However, I am very happy to look again at what the noble Lord has just said. If, having read it, it seems to me that I can add to what I have already said, I will; otherwise, I respectfully direct him to what I said earlier.

[Baroness Chakrabarti (Lab)]

It may be that, because it has been a long day, I have missed something, or it may be that I have jumped the gun and the Minister was about to come to this point, but I have not yet heard the justification for having Clause 25 at all.

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[Lord Wolfson of Tredegar (Con)]

In that case, I will certainly read it over the weekend. I know that those in the Home Office responsible for this area are obviously looking at the debate and will have picked up what the noble Baroness has said.

I was just dealing with Amendment 95, after which I will come to Clause 25 itself. I lost count of how many times the noble Baroness, Lady Chakrabarti, used the word “tawdry”. It really is not, if I may say so. We obviously disagree, and I will make no comparisons either to parking fines or international commercial litigation. At one point it seemed to me that the noble Baroness was saying that, on the one hand, this clause was terrible and, on the other, that this is what tribunals do in any event and we can trust them to do the right thing.

[Baroness Chakrabarti (Lab)]

I am saying that, if we trust—as I am sure the Government do—immigration officers, the Secretary of State, the First-tier Tribunal, et cetera, to be intelligent, effective operators in the system, they are by definition capable of looking at late evidence on a case-by-case, open-textured, well-reasoned basis and determining those occasions where there is a good reason and those where there is not. That goes without saying, so why do we have to have this diktat in the Bill, with “must” give it “minimal weight”? I suspect it is because, as the noble Lord, Lord Paddick, suggested, the Government are trying to dictate to the tribunals in particular what is and is not a good reason. That is the sinister aspect of this. It is also impractical, because you then have to have arguments about what is and is not a good reason. I promise the Minister that this will be litigated ad nauseam. It would be better, as he said to other noble Lords, to leave this to open-textured judgment and decision-makers who are capable of applying it.

[Lord Wolfson of Tredegar (Con)]

As regards the in terrorem threat that things will be litigated ad nauseam, I am tempted to say that that is not really a change from the current position. More substantively, and with respect, to say that the clause sets out that the tribunal “must give … minimal weight” to the evidence, as the noble Baroness just put it, is not what it does at all.

[Baroness Chakrabarti (Lab)]

It says that they have to have good reason.

[Lord Wolfson of Tredegar (Con)]

It does not do that either.

It does not say that the tribunal “must give the evidence minimal weight”; it says that the tribunal

“must, in considering it, have regard to the principle that minimal weight should be given to the evidence”.

The tribunal is perfectly entitled to say, “Well, we’ve looked at that principle. Actually, we’re not going to apply it here”—for reasons A, B and C. There is no requirement and no fettering of the tribunal; there is no compulsion that the evidence be given minimal weight. What the decision-maker has to do is have regard to the principle that minimal weight should be given to any late evidence unless there are good reasons why it is provided late.

[Baroness Chakrabarti (Lab)]

I promise that this is my final intervention on the Minister, but I do not understand why we have to have the provision at all. He is saying that it is perfectly open-textured enough, that good reasons do not have to be specified in the Bill because the Government are not going to put glosses on it or be overly prescriptive, that they can be objective good reasons or subjective good reasons, that it is only about having regard to the new principle that they are inventing et cetera. Why have this at all?

[Lord Wolfson of Tredegar (Con)]

It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.

As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.

Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.

On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.

Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

Debate on whether Clause 29 should stand part of the Bill.

[Baroness Chakrabarti (Lab)]

My Lords, any anxiety that I may have felt earlier this afternoon about the Whip’s injunction to be brief largely evaporated in the distinguished debate that I just heard, because, the more I heard the eloquent succinctness, particularly of noble Lords opposite—the noble Lord, Lord Kirkhope, the noble Baroness, Lady Stroud, the noble and right reverend Lord, Lord Sentamu, and others—the less anxious I felt about initially crossing sections of my notes out and eventually remaining silent. So I feel equally confident about the solidarity and inspiration to come.

With the Committee’s indulgence, I propose to open up this section on interpretation, which goes on for about three groups, but not to pop up on each group; rather, I shall make my points about this whole concept of reinterpreting the convention here. I do so knowing full well that noble Lords from around the Committee will ventilate granular and very important concerns about reinterpreting “social group”, for example, from the disjunctive to the conjunctive approach to trip up some claimants—or about doctoring the burden and standard of proof and turning persecution, in the context of non-state persecution, into something that does not grant refugee protection where the reasonable steps in which the other state is engaged are totally failing, and so on. Initially, then, I will leave others to extrapolate those concerns and, instead, my own part in the collective approach in this Committee will be on the fundamental problem with reinterpreting the refugee convention in this legislation, which begins with Clause 29 and goes on. I hope the Committee is happy for me to make my contribution on that basis.

I have a fundamental objection to the entire approach with this reinterpreting of a shared post-World War II refugee convention, not because I do not trust this country to take control of its borders and laws and so on, but because in order for the convention to work, it has to be an international enterprise, and also because I trust our courts. Although Ministers have said at various points on previous days of this Committee that it is for Parliament, not the UNHCR, to interpret the convention, what they really mean is that it is for the Home Office and not the courts—neither the courts over there, nor the courts here.

What is really going on is that the Government are not taking the approach that they took with the internal market Bill of just being open and honest about an intention to violate international law; they are doing it by this sleight of hand. You could almost call it “violation laundering”, because they will palm it off on Parliament and, once they have done that—once this rewriting of the jurisprudence of the convention has been passed through Parliament—we will be the laundromat: it will be on us that decades and continents-worth of international human rights jurisprudence around this convention will not bite any more to protect those seeking asylum in the UK. I certainly do not want that on my conscience, and I suspect the Committee does not either.

This is wrong because it is a violation of the principle that this treaty has been entered into in good faith, which is obviously a principle of common sense and the Vienna convention, and so on. It is outrageous because it is telling the courts, including our own, that all this jurisprudence that has been built up over years of dealing with cases, with some of the greatest jurists in our history, including Lord Bingham, can go out of the window because the Home Office has a better idea—one which is, of course, designed to trip people up. Let us be clear: it is not designed to extend convention protection to more people; it goes back to the stump speeches we heard from various noble Lords last week about numbers and so on and is not at all about refugee protection and honouring the convention.

I get to the point where I actually think that maybe it would be more honest for the Government to do what some noble Lords have occasionally tempted them to do, which is to put their hands up and say, “We don’t believe in this refugee convention anymore. It is inconvenient and old-fashioned; we don’t like the numbers, and we’re not having any of it.” There is something Orwellian, distasteful and misleading of the electorate to go through these contortions and perversions of language and law.

Maybe other noble Lords in Committee will have a different view of that, but it is coming to the point where these contortions of language and jurisprudence are so obscene and genuinely Orwellian—I know that word is overused, but for me it was never about having six cameras in the street instead of three; for me, it is about Politics and the English Language, Orwell’s greatest work, and the abuse of language that leads to the abuse of people. That is what is wrong with this whole section—it is not in good faith; it is not a reflection of the jurisprudence; it is an attempt by sleight of hand to undermine it.

This is not just terrible in the context of refugee protection, which, given what is at stake, is bad enough; it is really bad for Britain and the rule of law, which is arguably one of our greatest exports—not David Beckham’s left or right foot, not even Shakespeare or Elgar, but the rule of law. It is the reason why, unfortunately, so many oligarchs want to come here, in addition to hiding their money. They want to sue each other in our courts and hire some of our noble and learned Lords to go and judge their arbitrations in secret, because there is something magical and special about our law.

When we share our jurisprudence in good faith with supreme courts and constitutional courts around the world, we are not just affecting refugee protection here but influencing that jurisprudence all over the world; and that is an export too. You cannot measure it in pounds and pence, but you can measure it in a truly global Britain and a better world. There needs to be this international conversation between judges here and over there, in good faith and influenced by each other’s jurisprudence. By reinterpreting the convention, we throw it all out. It is year nought in the Home Office, and all that jurisprudence goes out the window because we have rewritten the convention via this totally offensive clause. Of course, Ministers have an oath, and they are supposed to respect international law—enough said about that.

I am glad that the noble Baroness, Lady Williams, is having a break now, not just because it is good to have a break but because it gives me the opportunity to put a question to the Minister the noble Lord, Lord Wolfson, that I tried to put last night in the context of a different Bill, about whether the Government have already instructed parliamentary counsel on the Bill to scrap the Human Rights Act. In the last group, the noble Baroness, Lady Williams, invoked convention rights, the ECHR and our participation in that in defence, so it is an important question in practical terms, because it can always be said that we will not be sending anybody for Article 3 treatment and so on and so forth. It is also really important because Section 3 of the Human Rights Act requires that all other legislation be read compatibly with convention rights as far as it is possible to do so. In this pandemic period, I have heard noble Lords opposite, and Ministers in particular, invoking that in defence of the CHIS Bill, the overseas operations Bill, the police Bill: “Don’t worry, because remember, there is always the Human Rights Act as a catch-all protection—particularly the interpretation provision but also the duty on public authorities to comply.” If parliamentary counsel have already been instructed to draft the Bill that will scrap the Human Rights Act, we need to read all of this in a slightly different light, do we not? Frankly, even in the light that we currently have, it is bad enough.

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[Lord Wolfson of Tredegar (Con)]

On the first point, of course the EU sought to interpret the refugee convention for all its members. But that actually makes my point, because it is only for the members of the EU. All the other states will interpret it in their own way. If you want to hand over your interpreting power to the EU, that is fine if you are a member—but I suggest that that does not cut across my basic point.

As to the effect of leaving the EU, if we have hitherto signed up to various interpretations through EU regulations, we now have an opportunity to look at the matter afresh, as I said when I began. To go further into that point would go way beyond the scope of this group.

Finally, I come back to the question put to me by the noble Baroness, Lady Chakrabarti, about “scrapping” —I think that was the word she used last night as well—the Human Rights Act. I said last night, and I will give the same answer now, that the Human Rights Act brings into English domestic law the European Convention on Human Rights. We have reaffirmed— I did it yesterday; I will do it again now—that this Government will stay in as a signatory to the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, but will he answer my question a bit more specifically? Has he instructed parliamentary counsel to begin the drafting process for the Bill that will replace, repeal or reinterpret the Human Rights Act and/or the convention on human rights?

[Lord Wolfson of Tredegar (Con)]

As a matter of policy, I am afraid I am not going to get into the discussions I have with government law officers and parliamentary counsel. The Government’s legislative programme has been set out. The Lord Chancellor, the Deputy Prime Minister and I have given evidence on this. We have made it clear that we will be staying in the European Convention on Human Rights. In so far as the burden of the noble Baroness’s challenge was that we have to be careful, because the Government are watering down rights, we are staying in the European Convention on Human Rights. Therefore—

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who contributed to this group. I believe there was a great deal of consensus in the Committee, but I am sure the Minister was grateful for the support of his doughty and always agreeable noble friend the noble Lord, Lord Hodgson of Astley Abbotts.

I say to the Minister that asserting does not make it so. Asserting, reasserting, “We’re in the convention” and “We will honour the convention” are not enough in the face of the very detailed analysis of these provisions by the UNHCR, the Bingham Centre, Raza Husain QC and, if I may say so, the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The noble Lord, Lord Anderson of Ipswich, again in his always agreeable way, was trying to help the Minister out. The Minister might take his hand and shake it. It is not a hand, it is a lifeboat, but I will be told off again for using metaphors. Last week I was told of by the Minister for using the word “tawdry” too many times; I thought I was on “Just a Minute”. Today, it is metaphors.

I will try one more metaphor with the noble Lord, Lord Hodgson of Astley Abbotts, who asked a very pertinent question of the Minister. Is this not a simplification, rather than a dilution or repudiation? I believe the noble Lord comes from a business background and has often referred to the Wharton school of business. We all draw on our experience and I think a basic contract is not a bad analogy to draw here. It is the equivalent of the chief executive of a company that has been in a contractual relationship with another company for many years getting a bit fed up with various provisions of this contract that has nevertheless been working. We are talking 50 or 70 years of this contract between the parties, when the chief executive thinks, “Maybe we need to reinterpret the various articles of this contract”. He decides not just to repudiate it, because that would be embarrassing, illegal and unlawful, but he says to his board, “What we are going to do in the boardroom is reinterpret all the provisions in a way that is different from the way that we ourselves have honoured them in the past”. “We ourselves” include learned judges such as Lord Bingham and others from all over the world. We are now going to year nought and are rewriting it. We are not just simplifying; we are making material differences, in some places to the convention and in others to decades of jurisprudence, by changing “or” to “and” and changing standards of proof. This is not insignificant.

[Lord Hodgson of Astley Abbotts (Con)]

The noble Baroness’s description of how business works, with an agreement that has lasted for a number of years, is far from the reality of any business in which I have ever worked. It is not a good analogy to use with my noble friend on the Front Bench. There may be all sorts of reasons, as we have heard, about international law, European law, UK law, UK primary legislation and UK secondary legislation, all of which cut across. They are completely different from a single arrangement in business, in which there is a contract, of one sort or another, between two firms. This is not a good analogy at all. I much prefer the complications, which my noble friend referred to, seeking to sort this out.

[Baroness Chakrabarti (Lab)]

Forgive me; I stand corrected by the noble Lord, Lord Hodgson of Astley Abbotts—as always, certainly in matters of business. I was merely trying to suggest that we cannot repudiate a contract by pretending that we are reinterpreting it, when we are making material differences to the relationship between the contracting parties.

Finally on the UNHCR, it is set out in Article 35(1) of the refugee convention:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”

Clause 29 agreed.

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[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. In a previous group, the noble Baroness the Minister—I was very grateful to her—sought to make distinctions between immigration and asylum protection; I think that was quite important. To be now almost resiling from that and suggesting, in answer to a previous intervention, that we are going to reinterpret the refugee convention—to respond to the millions of people who voted for Mr Johnson’s Government on the basis of controlling immigration—is a little troubling. I do not think I am alone in the Committee in being so troubled.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am surprised that anyone in a democracy is troubled by a Government listening to the people and putting forward legislation which, first, delivers on a manifesto commitment, and, secondly—as I have said and I repeat —is entirely consistent with our international law obligations. There is nothing wrong and everything right with each signatory to the refugee convention interpreting its obligations under it; we have now been around that point on several occasions.

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[The Lord Bishop of Durham]

I will try to edit my speech as I go. I support Amendment 118, to which I was pleased to add my name. We all agree that we do not want unsafe journeys, and there is no silver bullet: the situation is complex. If a deterrent was really the answer, securitising the Eurotunnel and the ferry ports has not worked; it has just created even more dangerous routes. So we must have more safe and legal routes.

The major reason I support the idea of a humanitarian visa is that it is a further safe and legal route. It also addresses the issue of people coming from the countries where there are smaller numbers who face persecution and so on, for whom bespoke schemes are never going to be created. Last year, only 93 people arrived from Iraq, five from Yemen, none from Iran and 36 from Sudan. That is all those who were resettled last year. The focus became so heavy last year on Afghanistan and Hong Kong, through the BNO scheme, that all other refugees appeared to be forgotten, so we need this kind of visa. I hope the Minister will not pick holes in the way the amendment is worded because the point is that this kind of visa needs to be looked at.

I also speak in favour of Amendment 116—it is very nice to speak with the noble Lord, Lord Horam, on one occasion. During the Syrian crisis of 2015, a target was set of 20,000 and it helped galvanise everybody with a vision of what could be done. It helped local authorities to understand what kind of numbers they might expect and so on. We also saw through that process the creation of the community sponsorship scheme, so we came up with a new thing through a targeted number. Ten thousand is a number widely supported, as the noble Baroness, Lady Meacher, noted, by huge numbers of refugee organisations because the UNHCR has identified that it is, roughly speaking, our fair share across the world. It is not a number plucked out of thin air but from looking at our fair share across the globe. I hope that we will hear positively the idea that it can happily include the Afghan citizens resettlement scheme. I shall stop there because we need to keep moving.

[Baroness Chakrabarti (Lab)]

My Lords, this is the safe-route group and I associate myself with so much of what I have heard already, although I signed the amendments in the names of my noble friend Lord Dubs and the noble Baroness, Lady Kennedy of The Shaws, who is absent. We have heard already about the many ways in which the Government try to have it both ways in the Bill. On a previous group, we heard from the Minister how, for example, European precedent is to be hugged if it is deleterious to the refugee but shunned if it means co-operation and burden-sharing. We have understood that the Government, essentially, want to make it harder with the Bill to get here but if you manage to get here, it will be harder to qualify for protection because we are rewriting the convention.

The Government tell us that they do not want people coming via unsafe routes, in little boats and so on, yet they do not provide adequate safe routes—or maybe they do, but if so they do not want it to be in statute because while it is important to fetter judicial discretion in statute, Home Office largesse should not be similarly constrained, structured or put in law. This group deals with the final two contradictions in particular: providing the safe routes and putting them in statute. For those two reasons I really hope that the Minister, who I know to be a compassionate and logical person, will see the need for something in statute to go with sentiment about safe routes.

[Baroness Stroud (Con)]

My Lords, I speak in support of Amendment 116 in the name of my noble friend Lord Kirkhope, to which it was a pleasure to add my name. Listening to the noble Lord, Lord Alton, I was persuaded by his arguments as well on Amendment 119B. I too shall edit along the way, given the speeches already made.

As we debated last week, I have grave concerns about the creation of a two-tiered refugee system but was encouraged to hear my noble friend the Minister agree that creating a two-tiered system can make sense only if there are adequate and consistent safe and legal routes. As my noble friend set out in the debate last Tuesday and circulated in her note, the Government have taken steps in recent years to create some safe and legal routes, as we have heard, through the refugee family reunion scheme, the Afghan resettlement scheme and the vulnerable persons resettlement scheme.

I am encouraged that the New Plan for Immigration charts a road map for resettlement, albeit without setting an annual target. It states:

“The UK’s commitment to resettling refugees will continue to be a multi-year commitment with numbers subject to ongoing review guided by circumstances and capacity at any given time.”


It also confirms the Government’s objectives that

“programmes are responsive to emerging international crises”.

This amendment is not intended to say that there are currently no safe and legal routes; we have heard that there are some. Instead, it pushes for greater consistency in our approach to ensure that there are pathways for the most volatile situations in the world. If we want to be responsive to emerging international crises, we need the infrastructure in place to do so, as the noble Lord, Lord Kerr, pointed out.

One of our greatest challenges for Afghan arrivals has been that we do not have the capacity or infrastructure to take such a big influx so quickly. This is largely because we do not have that infrastructure for welcome and integration in place. The success of the Canadian approach to refugee resettlement lies in its consistency. There is strong integration infrastructure, well-resourced civil society groups and genuine expertise in local authorities. This is why the Government setting a baseline target of the number of refugees who will be resettled by safe and legal routes could help to build and maintain the infrastructure that is required.

If the response to Afghanistan proves one thing, it is that we need to guarantee consistency to both the local authorities and civil society groups which do so much to ensure smooth transitions for asylum seekers. A predictable but flexible global resettlement model in which the Government retain control over how many places are allocated enables the Home Office to react swiftly to international refugee crises in a co-ordinated fashion with local authorities to scale provision in line with demand if required.

My noble friend the Minister will observe that the four named supporters of this amendment sit on the Conservative Benches. This is not because other Members of this House were not supportive, but because the strength of support on the Conservative Benches meant that we got there first. A basic target of 10,000 would ensure that every year we are joining the international community in what needs to be a global response and ensures the Government can say with integrity that it is not only firm, but fair.

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[Baroness Williams of Trafford (Con)]

What I encouraged noble Lords to come up with at Second Reading were solutions, not new routes. I have consistently said, and written to noble Lords on this, that we have a number of very good safe and legal routes.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down—to use the convention, although I am glad she is resting for a moment—she talked about this group being about uncapped routes and visas, but many, if not most, of these amendments are probing, as she will appreciate. She will also appreciate, because of her experience in the department, that visas do not have to be uncapped. For example, my noble friend Lady Kennedy’s amendment about emergency visas for human rights defenders is probing that the Secretary of State must do something in the rules about human rights defenders; it is not saying that every human rights defender in trouble around the world must be allowed in as if it is a new human rights defenders convention—my noble friend is just probing and asking the Government whether we can do something in the rules or in some kind of statutory form. The Minister has this massive brief, and I sympathise with her. On the police Bill, she has taken special measures for front-line emergency workers to get extra protection—

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

Will the noble Baroness ask a question? It is getting very late at night; can we please try to focus points? We absolutely accept that we need everyone—

[Baroness Chakrabarti (Lab)]

It is always me.

[Baroness Evans of Bowes Park (Con)]

It is genuinely not the noble Baroness, but we also need to work together —please—to get this Bill through. It is an important Bill. All noble Lords absolutely have the right to say what they want, but we also need to get this through. I am sorry, but can we please focus on that? We will let everyone speak, but please be aware of the time and what everyone else needs to be doing tonight.

[Baroness Jones of Moulsecoomb (GP)]

Why do we need to get the Bill through? Why can we not leave it until after the recess? I do not understand. This is the Government’s problem—they have created this problem for us.

[Baroness Chakrabarti (Lab)]

The intervention was on me—

[Baroness Evans of Bowes Park (Con)]

I am sorry; I did not mean it to be about the noble Baroness.

[Baroness Chakrabarti (Lab)]

I am sorry, but this is not the first time this has happened. I have been here all through Committee with the Minister. This is the second time the Leader of the House has done this when she has not been here—she has come in and it is beginning to feel a bit personal. I want that on the record. The Minister knows what I am getting at and I do not think she thinks I have been taking up too much time in this Committee this evening.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

If the noble Baroness will bear with me, I will seek to get an answer to that question that I can deliver in the course of the debate—doubtless the Committee will remind me if I have not reverted to the noble Baroness by the time I sit down.

Amendments 160 and 162 do not define “exceptional circumstances” or “serious and ongoing” threat in relation to withholding protection from removal. As such, our view is that they would risk undermining the clarity which this clause seeks to provide and would make the power very difficult to use, meaning that potentially dangerous individuals would continue to receive the generous protections afforded by the NRM.

On Amendment 160A, Clause 62 specifies that disqualification applies when in the interests of national security, but it is right that the Government should also be able to withhold protections from individuals who pose a threat to public order more broadly, including where they have been convicted of serious criminal offences or have made a claim in bad faith, to use the expression that the noble Lord, Lord Alton, referred me to. I say that “bad faith” is appropriate in these circumstances because it is so broad and because it comprises so many aspects.

[Baroness Chakrabarti (Lab)]

I want to intervene briefly on the “good faith” and “bad faith” point, in case it is of assistance to the noble Lord, Lord Alton, and others. Concepts such as “good faith” and bad faith” are commonly used in civil and commercial matters; we understand that. In contracting matters, it is incumbent on parties to act in good faith, subject to the deal they have done with each other. Why I think the Committee is so concerned about what the Minister called the protean nature of the phrase here is that this is human rights protection, and we cannot afford to be protean or vague in the same way that we can when we are talking about how we enter into a contract. This is life and death.

[Lord Stewart of Dirleton (Con)]

The point I was seeking to make by that expression is, I think, the same one that my noble friend Lord Wolfson of Tredegar made earlier, when he spoke about this—it is as familiar to the noble Baroness as a practising barrister as it is to me, and I think it was referred to by the noble Baroness, Lady Hamwee. If we have a list that sets out heads A to E, and then counsel attempts to rely on point F which is not otherwise comprehended, or not specifically enumerated but which may be comprehended within the expression “or any other circumstance”, that always—as my noble friend Lord Wolfson said—places counsel at a disadvantage.

On the threats, or potential threats, and the potential scope for abuse which lie within the power of a person seeking to exploit and make a false application under these circumstances, what we are seeking to do is to identify a phrase or term which is sufficiently wide to encompass all those potential points. Noble Lords in the Committee have identified, under reference to the traffickers and criminals whom it is the intention of the entire Committee to thwart, their cunning, resilience and resourcefulness in finding ways to slip between the cracks of aspects of legislation.

Amendment 169 does not provide a definition of “public order”. I reassure the Committee that we adhere to relevant provisions in our international obligations but it is unnecessary to specify that in legislation, and we are satisfied that the current definition of public order complies with ECAT.

My noble friend Lady McIntosh of Pickering proposes that we replace the “bad faith” provision with one of “improper claims”. That proposal can be addressed in conjunction with Amendment 163, which seeks to remove the bad faith provision entirely. Another reason for the expression “bad faith”, and its breadth, is to avoid inadvertently excluding administrative mistakes made when submitting claims, which may be interpreted as falling under “improper claims”. We believe that “bad faith” is the appropriate language.

In answer to submissions made by the noble Lord, Lord Coaker, under Amendments 169, 161 and 164, which seek to exclude children from this clause, ECAT does not specify an age limit. We deem it important that the United Kingdom maintains the full scope while ensuring that all decisions to withhold the protections of the NRM are balanced against our priority to safeguard children. The proposal set out in these amendments would create, in effect, a two-tiered system that could encourage those looking to misuse the NRM protections to provide falsified information regarding their age. We all sat late enough the other night in relation to the age amendment provisions elsewhere in the Bill for me not to wish to go into that area again, but we are concerned lest the proposals in the amendment provide an opportunity for persons to provide falsified information.

In relation to Amendment 168, the Government are aware that potential and confirmed victims of modern slavery may already have been convicted of serious offences or be involved in terrorism-related activity. I make it clear that neither the additional recovery period nor the public order disqualifications can be taken as being a blanket disqualification. Any decisions relating to disqualifications will be taken on an individual basis, taking into account the individual’s circumstances and vulnerabilities. This includes consideration as to the nature of any criminal exploitation that may have been made of them and the need to safeguard individuals. We think it is right that further details of how to apply this discretionary element should be set out in guidance for decision-makers rather than being placed in the Bill. That will give the Government the flexibility to meet the needs of victims and respond to changing patterns of criminal activity that may seek opportunities to misuse the NRM.

We do not consider that Clause 62 will present a barrier to people who have had convictions and prevent them coming forward, because of that discretionary approach and because there will not be a blanket disqualification on the basis of public order. All of us—the whole Committee, I am sure—want victims of modern slavery to continue to come forward for identification and support, irrespective of their personal circumstances or the circumstances in which they came to be exploited. However, we maintain that it is right that the Government can remove individuals who pose a threat to public order from the protections and support that the NRM affords.

Together with the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Ludford, was concerned lest such victims did not come forward if they had criminal convictions. First responders should still always refer victims into the national referral mechanism, in line with modern slavery statutory guidance, even where the individual has had a previous recovery period or has a criminal conviction. Decision-makers trained in the field will then carefully consider each individual case and take into account specific vulnerabilities and the needs of each individual, again on a case-by-case basis.

The recovery period may be withheld following a reasonable grounds decision, and the rights that flow from a conclusive grounds decision may also be withheld at that stage if relevant disqualifications apply. I emphasise that we will carefully consider each individual case to ensure that people who genuinely need protection and support will receive it. I reiterate that it is right that we should be able to withhold rights from individuals where appropriate—for example, from those who pose a national security risk to the United Kingdom.

I return to the matter raised by the noble Baroness, Lady Ludford, in relation to compatibility with the European Convention on Human Rights. The protections of the NRM will be withheld in accordance with Clause 61 only when so to do would be compliant with our international obligations—

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the noble Baroness, Lady McIntosh, has her name to the opposition to Clause 76 standing part of the Bill. I am happy to pick this up briefly, as she has had to leave.

Clause 76 gives the tribunals a charging power in respect of wasted resources. I do not know whether it is aimed at lefty, liberal lawyers, a group to which I would be proud to belong, although I do not think I quite qualify—lefty maybe, liberal certainly, but I am an ex-lawyer.

I am trying to read my notes, but I cannot understand what I wrote last night.

[Baroness Chakrabarti (Lab)]

Perhaps while the noble Baroness looks at her handwriting, as a lefty, liberal lawyer, I say briefly to the Minister that the immigration and asylum system is the most unlevel playing field in our legal system. Tribunals were set up, as the Minister will remember, with the aim of people being able to represent themselves, not as places for expensive lawyers.

[The remainder of today’s proceedings should be published tomorrow.]

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

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

[The Lord Bishop of Durham]

My Lords, I shall speak to Amendments 40 to 45 in place of my friend, the right reverend Prelate the Bishop of Gloucester, who greatly regrets that she cannot be in her place. She is very grateful to the noble Baronesses, Lady Lister and Lady Chakrabarti, for their support, and to Women for Refugee Women for its briefings.

Amendments 40 to 44 relate to Clause 31. They are being brought back at this stage because the Government’s response stopped short of providing the reassurances we hoped for. Some 27 organisations with significant expertise in supporting people seeking asylum support these amendments to Clause 31.

In Committee, the Minister stressed that Clause 31 was necessary to provide clarity and consistency of decision-making, the argument being that proving a status of persecution on the basis of reasonable likelihood is too vague and inconsistently applied. Clause 31 seeks to resolve this apparent lack of clarity by instead inserting the balance of probabilities test and a new fear test. This will raise the standard of proof for gaining refugee status, which will have a disproportionate impact on certain vulnerable groups. For women fleeing gender-based violence and those seeking asylum on the grounds of sexuality, providing this increased proof will be difficult and is likely to be highly traumatising, particularly given what we already know of the Home Office’s culture of disbelief and approach to such victims. For this reason, the UNHCR and, indeed, UK courts have consistently applied the reasonable likelihood test. Clause 31 will put us consciously and deliberately out of step with the way the UNHCR believes that the convention should be interpreted and how our own courts, notably the Supreme Court, have interpreted it.

What is most odd, and the reason for pressing this again, is that the Government believe this change will provide clarity. It is not clear why this should be true. There is already a problem with disbelief in the Home Office, which can be readily shown by the fact that 48% of appeals against the Home Office’s decisions to the First-tier Tribunal are successful, and 32% of judicial reviews are settled or decided in favour of claimants. Clause 31 does not seem to provide any additional clarity. Adding two different limbs to the test with different standards of proof seems a recipe for creating more confusion, making it harder for legitimate victims and so inevitably prompting more appeals. Amendments 40 to 44 therefore look to keep the status quo standard of proof and keep us aligned with the UNHCR and existing UK case law.

I turn briefly to Amendment 45, which relates to Clause 32. This was discussed at length in Committee and I will not go over the old ground, but in short, the interpretation of the convention applied in Clause 32 seems punitive towards women and other victims who use the particular social group reason without any clear or positive purpose. As the noble Baroness, Lady Lister, argued in Committee, if Clause 32 is necessary to clarify the “particular social group” definition, there is no reason it could not be provided by clarifying once and for all that the two conditions are alternatives, not cumulative, as has been the understanding in UK law since Fornah and was recognised by the Upper Tribunal as recently as 2020. This would provide clarity without disadvantaging women and other vulnerable groups.

More than 40 organisations in the ending violence against women and girls and anti-trafficking sectors have supported this amendment to Clause 32. This week, three UN special rapporteurs released a statement on the impact of the Bill, in particular Clause 32, on women. I urge the Minister to listen to their plea. As of 2019, only 26% of asylum applications have come from women. Why would we want to make it harder for legitimate victims of gender-based violence and other gender-related forms of persecution to seek help? Might the Minister say why gender is not mentioned in Clause 32 in the way that sexual orientation is, since it is mentioned in the EU directive on which the Government seek to rely?

Clause 32 not only reverses UK case law but does so against the UNHCR’s standards, following an interpretation of EU law that was rejected by our own Upper Tribunal in 2020. The Home Office did not appeal that decision; nor was that change included in the New Plan for Immigration. It seems to have come from nowhere with little scrutiny or expert oversight. As with Amendments 40 to 44, Amendment 45 is not radical. It simply asks that the Bill continue to operate with the status quo interpretation of the 1951 convention, which is well understood and used by UK courts. The alternative is an unnecessarily punitive barrier being put in front of vulnerable groups. I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, I am rationing my interventions on Report to facilitate the early and many necessary Divisions. I know that other critics of this Bill are doing the same; I am grateful for that.

Given the events in the last century that led to the creation of the refugee convention, it is particularly distasteful that so much of the Bill seeks to rewrite the convention and its jurisprudence against the interests of the refugee. The Government protest otherwise, of course, but all the world’s leading scholars, practitioners and custodians disagree. I am glad to say that your Lordships’ House gave its own view on that general proposition very clearly earlier this week.

Clause 31 is a case in point. I support the right reverend Prelate’s amendments to it, not least because, among other things, they seek to delete the cross-referencing to Clause 34, which absolutely denies refuge to those who do not currently face a well-founded fear of persecution in part of their country. If one looks at the end of Clause 34, there is no discretion there at all. Although we are grateful for the Minister’s earlier comments about Ukraine, convention protection is based on international law, not exceptional executive largesse. If these clauses are not amended, a Ukrainian refugee might well be denied refuge on the basis that they could return to, for example, a part of their country that is not currently occupied or being bombarded by Russia. There is no discretion in Clause 34 at all, despite Ministers waxing lyrical about discretion and case-by-case analysis being so important. This is discretion that works against the refugee, with convolutions and contortions, when it would be for the courts to protect the refugee.

Another trick that has been used in Ministers’ speeches at various times during the passage of this Bill is talking about Parliament having the right to rewrite and interpret the convention—“Parliament this, Parliament that”. However, they use “Parliament” as a euphemism for “the Home Office”, and it is not. I believe I know what your Lordships’ House of Parliament thinks about that.

[Baroness Lister of Burtersett (Lab)]

My Lords, although I support all these amendments, I will speak only to Amendment 45, to which I have added my name. Once again, I thank Women for Refugee Women for its support with the amendment.

The right reverend Prelate has made the case for returning to Clause 32. I just want to pick up some points made by the Minister in Committee. He argued that it is difficult to attack the definition in Clause 32 as wrong, yet, in effect, that is what the Upper Tribunal did in the 2020 judgment referred to by the right reverend Prelate, when it confirmed that this approach to membership of a particular social group is contrary to the humanitarian objective of the refugee convention. Moreover, in Committee, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, dismissed this approach as a grave mistake that would cause grave injustice. Was he wrong?

Having listened to his less than convincing justification of the definition in Clause 32, I ask the Minister this: does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be accepted, as the UNHCR and myriad civil society groups have warned? His answer in Committee—given loyally, if I may say so—was this:

“What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK.”—[Official Report, 8/2/22; col. 1452.]


I will repeat the question and ask the Minister to give us a clear “yes” or “no” answer, given that clarity is supposed to be what this clause is all about. Does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be accepted—yes or no?

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

At end insert “and do propose Amendment 5B in lieu—

5B: Insert the following new Clause—
“Interpretation of Part 2
For the avoidance of doubt, the provisions of this Part are compliant with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, and must be read and given effect as such.””

[Baroness Chakrabarti (Lab)]

My Lords, while supporting a number of other Motions in this group, I beg to move Motion C1. The refugee convention is both a memorial to Hitler’s victims and an essential component of the post-1945 rules-based order. It offers protection as of right, not dependent on executive largesse to pick and choose which refugees should be saved and which continent or conflict these should be escaping from.

Renowned jurists in your Lordships’ House and beyond say that the Bill violates the convention; Ministers disagree. Our intention is to resolve the argument with a modest but vital insurance policy, ensuring, for the avoidance of doubt, that our courts will resolve disputes of interpretation and action compatibly with the convention.

As a public and constitutional lawyer, I take the primacy of the other place very seriously. This is neither a money nor a manifesto matter. Indeed, it gives effect to the Government’s emphatic policy of refugee convention compliance in times when this could not be more important. No reasonable Government should object. If your Lordships’ House were not to insist on its inclusion in the legislation, we would fail in our duty to protect the international rule of law.

[Lord Judge (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti. It is perfectly obvious that the Commons reasons tell us that it agrees that the legislation should be compliant with our international obligations. The Minister has just told us that everything that we do will be compliant with them. I regret that a number of us take the view that these provisions do not so comply. The decision will ultimately be made by a court. If the Commons is right, that is well and good—fine, there would be nothing to argue about—but, if we are right and the view of the Commons is wrong, the judge would be bound by this legislation to disapply the convention and the protocol. No one would be able to say, “Ah, but the Commons reasons say that it is compliant”. The Commons reasons will not be in the legislation.

It is very simple: we respectfully suggest that the Commons should be asked to think again and reflect on the consequences if the advice that it is receiving is wrong and the advice that we are suggesting is right, and to avoid the problem that its own expressed legislative intention—that the legislation should be compliant—will prove to be wrong. It is very simple—all doubt can be avoided by this amendment.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord, Lord Rosser, might think the House does not want to hear from him, but it certainly does not want to hear from me either. It never likes what I have to say.

There have been a few disparaging comments about our approach to Ukraine. I have just looked on Twitter, and this is the first comment from President Zelensky:

“The United Kingdom is our powerful ally.”


It must be acknowledged that we have done much to assist Ukraine over the years. We have now issued over 20,000 visas and done some other fundamental things for our friends in Ukraine. We have been training 22,000 troops for years; we have given them 2,000 NLAWs, or, as President Zelensky calls them, “in-loves”—apparently, on their launch, people in Ukraine shout “God save the Queen”. We have also provided them with the Starstreak missile. We have been terribly generous and supportive to Ukraine and will go on being so.

My noble friend Lord Horam said there had been no pre-legislative scrutiny; it may seem a long time ago but, I guess by way of a White Paper, the New Plan for Immigration was published—I know we do not do Green Papers these days; that stopped years ago.

Motions C and D deal with the refugee convention and our policy of differentiation. We have been clear throughout the development of this policy that it fully complies with all our international obligations, including the refugee convention. I will not go over my noble friend Lord Wolfson’s comments, but I know he wrote to noble Lords setting out our legal position on this. However, I should clarify that a person in group 2 would, to gain that status, necessarily already be recognised as a refugee in the UK and would not subsequently have, or be eligible to have, their claim processed overseas. We intend that prosecutions follow only in egregious cases. I therefore ask noble Lords not to insist on their amendments and the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Kerr of Kinlochard, not to press theirs.

It has long been our position that when someone who is claiming asylum has been waiting for a decision on their claim for more than 12 months, through no fault of their own, they should be able to take up one of the jobs on the shortage occupation list. Motion E deals with this issue and, although I have a great deal of respect for my noble friend Lady Stroud and we have spoken at some length over the last few days, we cannot agree to reduce this period to six months, for the reasons I have set out previously. There is not much more I can add to my previous comments other than to point out academic evidence suggesting that economic factors are in play in secondary movements. For all those reasons, I invite my noble friend not to press her amendment.

Motions F and G deal with inadmissibility and overseas asylum processing respectively. It is vital that we have strong measures in this Bill to deter people from making dangerous journeys and to encourage them to seek asylum in the first safe country that they reach. We cannot agree to measures that would undermine these measures, either by restricting our ability to work on a case-by-case basis on returns or making the job of our negotiators more difficult. I therefore ask the noble Lord, Lord Rosser, and the right reverend Prelate the Bishop of Durham not to press their amendments.

On the question the right reverend Prelate asked me about what advanced discussions are taking place and the point that the noble Lord, Lord Dubs, asked about Rwanda, all I can say at this point is that the Government are talking to a range of partners. I am sure that Parliament will be fully informed when any of those discussions are concluded.

The noble Lord, Lord Dubs, has the respect not just of me but of the whole House. Turning to Motion H, I know how strongly he feels on the subject behind his amendment relating to family reunion, but there are risks that the proposed new clause creates a very broad duty that was not intended.

Moving on to Motion J, I also understand the strength of feeling on having a target number for refugee resettlement, noting in particular the amendment tabled by the right reverend Prelate the Bishop of Durham. I also reflect in this context on Motion K and the amendment concerning genocide tabled by the noble Lord, Lord Alton of Liverpool. But I can only say again that we already have generous family reunion offers, that we have numerous safe and legal routes to the UK, and that a person fleeing genocide is already likely to qualify for protection, as I said, under either the refugee convention or the ECHR.

The UK is firmly committed to protecting ethnic and religious minorities in Iraq. We raise this regularly with the Government of Iraq and the Kurdistan Regional Government, and we continue to monitor the situation of the Yazidis and other minority groups in Iraq. But I will take back again those comments on religious bias, because it is not the first time that the noble Lord, Lord Alton, has raised them with me.

I do not think that the amendments tabled to Motions H, J and K are necessary, so I invite the noble Lord, Lord Dubs, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Alton, not to press their amendments.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords and noble and learned Lords who spoke in such a vital debate. The House will forgive me for not waxing lyrical by way of summary—out of respect for noble Lords, self-discipline and the need to get on and vote. I just say that I heard not a single constitutionally or legally coherent argument against the vital overarching protection for the refugee convention in Motion C1. With that, I ask noble Lords to agree Motion C1.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

Motion B1 (as an amendment to Motion B)

[Baroness Chakrabarti]

Moved by

At end insert “but do propose Amendment 5D in lieu—

5D: Insert the following new Clause—“Interpretation of Part 2(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.””

[Baroness Chakrabarti (Lab)]

My Lords, in moving Motion B1 as an amendment to Motion B, I also support other amendments.

Extra-parliamentary events since your Lordships’ last consideration make anxious scrutiny today even more important. I refer of course to atrocities in Ukraine and the Maundy Thursday MoU with Rwanda, but also to the unsuccessful Home Office attempts to assert public interest immunity, or secrecy, in the High Court over parts of the subsequently withdrawn little boats push-back policy. Contrary to everything both Houses, voters and desperate refugees were led to believe, the Government always knew that there was no legal basis for repelling a boat containing souls declaring a wish to claim asylum.

The importance of such matters being justiciable in court is therefore clear. From her answers to yesterday’s PNQ, I am glad to say that I do not think the Minister disagrees with that. Nor, to his credit, did the Minister in the other place present any policy difference on that point. He repeatedly asserted ongoing intentions to comply with international law, and specifically to comply with the refugee convention and ECHR together.

I have listened—and indeed pre-empted the constitutional concerns that the Minister just set out—and redrafted to make the refugee convention protection in the Bill no more, but no less, than that already provided for in law by the ECHR, thus making the new Amendment 5D even more respectful of the primacy of the other place and reasonable than its predecessor amendments. I beg to move.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I rise to support Motion B1. “Nothing matters very much, and very little matters at all.” So said Lord Balfour of Balfour Declaration fame a century ago. But Lord Balfour was not then faced, as your Lordships now are, with a Bill which most—if not all—disinterested lawyers recognise that, first, without the amendment now proposed, would breach international law under the convention and, secondly, at the same time would nevertheless make unchallengeable the question of this legislation’s legality. Noble Lords should note that if the Bill passes without this provision, the legality of these provisions cannot even be raised before a court of law.

That will be the position unless we have the guts or—let me rephrase that—unless we are sufficiently alive to what surely is our constitutional duty as a revising Chamber to insist on the amendment to pass Motion B1. So, pace Lord Balfour, this really does matter very much.

I hope noble Lords will allow me another few words. I read again yesterday the disheartening, positively dispiriting House of Commons debate last week, which summarily rejected our amendments from the last round of ping-pong. The amendment originally in the names of the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, was dealt with even more dismissively and cursorily than the first time round. This time, there was no pretence that the courts could decide whether or not this new Bill will be convention-compliant. Previously, the Commons had been—as I accepted last time round—entirely inadvertently misled into thinking that the courts would have a say on it.

It is acknowledged on all sides that the Bill as it stands would overturn a quarter of a century of established English law as to the proper meaning of the convention. Of course, that is also the view of the UNHCR, which advises that we would be breaking international law by passing this legislation without such an amendment as now proposed. Therefore, it is now recognised that if the amendment fails to pass, the Bill will—the words can be used—foreclose or pre-empt the question as to the legality of these clauses. The clauses, in effect, would therefore operate as ouster clauses.

All the Minister in the other place said last week was:

“The Bill—I insist on this in the strongest terms—is compatible with all of our obligations under international law. Our position has not changed and we do not consider it necessary to put this on the face of this Bill.”—[Official Report, Commons, 20/4/22; col. 239.]


In other words, the Bill that we are now asked to approve without the amendment is simply proclaimed by the Government to be compliant. We are asked to accept the mere self-serving say-so—the assertion—that it is compliant, although, as I have said, it is unsupported, so far as I am aware, by any respected body of opinion charged to look into these things: the Joint Committee on Human Rights, the Bingham Centre, et cetera, and including, as I said, the UNHCR, which is charged specifically under the convention with the superintendence of the proper interpretation and application of the convention.

That is enough. I am sorry if this imperils our hopes of Prorogation this week, but I urge your Lordships to summon up the blood, stiffen the sinews—not, I think, Lord Balfour in that instance—and to continue to reject and challenge this further melancholy attempt to usurp our law.

--- Later in debate ---

I note that the other place has expressed what the British people want with substantial majorities against these provisions. Again going back to the leader of the Opposition, on Sunday, he shared our view that the best place for an asylum claim to be made is in the country nearest to where they are fleeing from. I encourage noble Lords to hear the will of the British people, the elected House and the leaders of both parties, in recognising the need to discourage people from making dangerous journeys.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all noble Lords without exception, and especially to the Minister for her characteristic calm and courtesy, if not for the content of some of her message. She had one substantive argument against Motion B1, which was her constitutional objection that, somehow, the courts would trump the will of Parliament if we put the Government’s commitment to this legislation honouring the refugee convention on the face of the Bill.

With all due respect, not least to the noble Baroness and her hard-working advisers, if there was anything in that argument, it would have been better addressed to the previous iterations of my amendment. This time, the amendment on the Marshalled List says that this legislation

“must be read and given effect”,

subject to the refugee convention,

“So far as it is possible to do so”.

If a provision of this Bill is found to be so clearly incompatible with the refugee convention, the court or tribunal would have to respect the will of Parliament and simply make a declaration to that effect. With respect, I think that constitutional balance point has been pre-empted by the new draft of this amendment. That is what we do for the ECHR. The sentiment of the short remarks of the Minister in the other place seem to be that we honour both the ECHR and the refugee convention. It seems illogical, in legislation that is for refugees, not to put those two matters on the same statutory footing.

Further, in her earlier remarks, the noble Baroness said that rules that are made under the 1993 legislation cannot be made in a way that is incompatible with the refugee convention. So rules under the 1993 Act would be subject to refugee convention protection, but acts of discretion by individual prosecutors, immigration officers or the Home Secretary under this legislation would not be subject to the same protection. I thank the noble Lord, Lord Horam, for his significant assistance with that argument, because he referred to this as “enabling” legislation. Whether noble Lords agree with that particular adjective, he is right that there are many discretions in this part. My modest amendment would ensure that these discretions, where possible, would have to be exercised in a way that is compatible with the refugee convention. If it is not possible to do so, the language cannot be interpreted out of existence by the courts under the new draft. I am grateful to the noble Lord, Lord Horam, for that.

Finally, refugees and asylum seekers did not feature significantly in the Conservative manifesto of 2019, but it said this:

“We will continue to grant asylum and support to refugees fleeing persecution, with the ultimate aim of helping them to return home if it is safe to do so.”


“We will ensure no matter where in the world you or your family come from, your rights will be respected and you will be treated with fairness and dignity.”


That was the manifesto commitment.

In a jurisdiction that has no entrenched Bill of Rights or written constitution, no Supreme Court or constitutional court with strike-down powers, this place, your Lordships’ House, has a significant role to play when fundamental and constitutional rights are at stake, and where there is no conflict with the Government’s manifesto commitments or their repeated and expressly stated policy. Motion B1 honours all of that: the manifesto promise and the policy stated expressly and repeatedly by Ministers in both Houses of Parliament. I ask noble Lords to agree it.

Nationality and Borders Bill

Baroness Chakrabarti Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

Moved by

[Baroness Chakrabarti]

At end insert “and do propose Amendment 5F in lieu—

5F: Insert the following new Clause—
“Interpretation of Part 2
(1) So far as it is possible to do so, the provisions of this Part must be read and given effect in a way which is compatible with the Refugee Convention.
(2) If a court or tribunal determining a question which has arisen in connection with the provisions of this Part cannot read and give effect to those provisions in a way which is compatible with the Refugee Convention, it must make a declaration to that effect.
(3) Where a court or tribunal is considering whether to make a declaration of incompatibility, the Secretary of State is entitled to notice in accordance with rules of the court or tribunal.
(4) In any case to which subsection (3) applies the Secretary of State is entitled, on giving notice in accordance with rules of the court or tribunal, to be joined as a party to the proceedings.
(5) Notice under subsection (4) may be given at any time during the proceedings.””

[Baroness Chakrabarti (Lab)]

My Lords, once more I thank noble Lords for caring about the refugee convention, and I thank the Minister for the courtesy of each and every one of our exchanges over many months.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate. I made the point yesterday about the time we have spent on this; I do not think your Lordships have ever felt that we in any way have tried to rush this or any other legislation. We have gone many days in Committee, for 12 hours or more, discussing at length all the concerns and issues at hand. Many of the points have been remade today in a very articulate way.

I think my noble and learned friend Lord Mackay feels that he has been slightly misrepresented by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I wonder if he might check Hansard and come back to my noble and learned friend.

In response to the concern of the noble Baroness, Lady Chakrabarti, this has been clearly set out, as I have said before. These provisions are clear and unambiguous and a good faith interpretation of the refugee convention. The courts of course have an important role in ensuring that legislation is applied correctly, but it is for Parliament to make that legislation. That is the rule of law and is the result of our dualist system.

Turning to the noble Lord, Lord Pannick, we maintain that the general rule of interpretation in Article 31(1) of the Vienna convention requires a treaty to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. On that basis, as the noble Lord, Lord Pannick has quoted, we have taken a wide-reaching exercise to understand this and considered relevant factors, such as the law in other jurisdictions, case law and the words of academics. We believe that all provisions reflect a good faith, compatible interpretation of the refugee convention.

With those words, and echoing the words of the noble Lord, Lord Coaker, I think that it is time to pass this Bill.

[Baroness Chakrabarti (Lab)]

I thank all noble Lords once more. It is often a huge privilege to hear debates from all sides in this Chamber, but sometimes that privilege comes with an awesome burden, as the Minister knows all too well. I am referring not just to this Chamber but to noble Lords in other places in this building where they beaver away at their work.

I have had the privilege in recent months to serve on the new and important Justice and Home Affairs Committee, chaired by the noble Baroness, Lady Hamwee, which had the privilege of hearing not so long ago from the Home Secretary. While I will repeat my admiration for the Minister and the way in which we can disagree well, this is not the case with everyone.

I want to say a word about good faith, which has been cited a few times. Before that committee, the Home Secretary gave evidence about the pushback policy. The committee has members far more august than me, including my noble friend Lord Blunkett, who quizzed the Home Secretary about the legal basis for pushing back boats in the channel and the controversy that had raged. She assured us that there was a legal basis and that the purpose of the policy was to deter refugees and the evil trade. The purpose was to deter asylum seekers and we were assured that there was a legal basis, as was Parliament and the public. When that policy was judicially reviewed, the Home Office sought public interest immunity over provisions in the policy document that revealed that the Home Office knew that it would be contrary to the refugee convention to ever repel a boat with a person who said, “I need asylum. I am a refugee”. It was only because the courts were able to say no to the public interest immunity that the Government and the Home Secretary were exposed and that policy is now over. That is how important the rule of law is.

I have been torn in making my mind up about this Division right now. I have been so grateful for the support of my noble friends—my noble friend Lord Coaker in particular— but when the noble and learned Lord, Lord Brown of Eaton-under-Heywood says he will go to the stake for the rule of law, I will go with him. I have moved the Motion and would like your Lordships’ House to agree it.