Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, I thank all noble Lords who have spoken in this short debate. It has been particularly illuminating; I have noted the quality of the speeches and hope that I can answer the questions that have been put in relation to these clauses.

Clauses 29 to 36 prevent a person who has entered the United Kingdom unlawfully, and meets the conditions in Clause 2, being able to lawfully re-enter the UK, secure settlement or become a British national through naturalisation or most registration routes. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Settlement in the UK confers significant benefits, such as the freedom to study, work and access healthcare and public funds; of course, it is also a pathway to British citizenship which, in turn, confers further benefits.

Allowing someone who arrives in the UK illegally to settle clearly creates an incentive for people to make those dangerous journeys. It is a vital part of the deterrent effect that those categories should be included. This is because people taking advantage in that way is unfair. It is unfair on those who play by the rules and come here legally, it is unfair on those who are genuinely in need, as it constrains our capacity to help, and it is unfair on the British public.

Clause 29 precludes people who meet the conditions in Clause 2 from ever settling here and, once removed, being able to re-enter. This is achieved by preventing them from being granted any form of permission through the immigration system. We do, however, recognise there will be occasions when we will need to waive the bans and grant permission; for example, as the noble Baroness, Lady Lister, noted, where not granting permission would contravene our obligations under the European Convention on Human Rights. Clause 29 balances our need to disincentivise people from making dangerous journeys to the UK by ensuring that there is no benefit to be gained from entering the UK illegally, while recognising there may be a limited number of scenarios in which it is appropriate to grant permission. I put it to the noble Baroness, Lady Ludford, that this is a proportionate and balanced provision. Therefore, I do not recognise her description of the Bill as “wielding a sledgehammer”.

Clause 30 sets out that a person will not be eligible for British citizenship, British Overseas Territories citizenship, British overseas citizenship and British subject status if they enter the UK unlawfully and meet the criteria in Clause 2. The ban will also apply to someone who enters a Crown dependency or British Overseas Territory unlawfully in a similar way. We have included the other types of British nationality as we do not think it is right that illegal entry should allow a person to acquire any form of British nationality, but also to prevent a person using it as a stepping stone to register as a British citizen. Illegal entry into the UK, a Crown dependency or an overseas territory will have the same effect. We do not want people to be able to enter illegally in any of those locations and use that as a way to acquire citizenship and, ultimately, a right to enter and live in the UK.

Clauses 31 to 34 set out the routes to which the citizenship ban will apply. The key citizenship route which will be affected is naturalisation, as my noble friend Lord Moylan noted. This is the main way in which adults born outside the UK can acquire British citizenship and British Overseas Territories citizenship. The ban will also apply to certain registration routes. However, those applying under provisions that address historical inequalities in British nationality law will not be affected. This includes people born before 1983 to British mothers, those who missed out on citizenship because their parents were not married or those applying on the route for descendants of Chagossians.

Clause 35 allows us to exempt a person from the citizenship ban if treating them as ineligible for citizenship would contravene our obligations under the human rights convention. This means that if a person can demonstrate that, for example, their right to a family or private life can be met only by us considering a grant of citizenship, we will not exclude them from applying. We do not think that acquiring citizenship will usually be essential to allow a person to have a private or family life in the UK; other options, such as leave to enter or remain, may satisfy that. However, in very exceptional cases where considering a grant of citizenship is needed to prevent us breaching our ECHR obligations, Clause 35 may apply. We will publish guidance for nationality caseworkers setting out how to assess human rights in the nationality context.

The amendments tabled by my noble friend Lord Moylan would remove registration routes for British citizenship and British Overseas Territories citizenship from the ban so that it applies only to naturalisation. They would also remove the bans on becoming a British overseas citizen and British subject through registration. My noble friend Lord Moylan has described registration as an “evidence-based process”, with decisions not based on the Secretary of State exercising discretion. I am afraid to say that I disagree with my noble friend as this is not universally the case: some registration routes are dependent on ministerial discretion and there is no automatic entitlement.

Let me explain this further. As my noble friend Lord Moylan said, not all registration routes are included in the ban. Those that allow people to acquire British nationality they missed out on because of previous unfairness are not included; nor are the specific routes for children born in the UK or stateless persons. However, registration routes that rely on residence or specifically for children born outside the UK are included in the ban, as we expect people who want to become citizens to have followed a compliant pathway, including having entered lawfully.

For example, Section 4(2) of the British Nationality Act 1981 allows people who already hold another form of British nationality to register as a British citizen on the basis of five years’ lawful residence in the UK. The residence requirements mirror those for naturalisation: the only significant difference between the routes is that other British nationals wanting to register under that route do not need to meet the knowledge of English and life in the UK requirements. Given that the residence requirements are the same as for naturalisation, it would be appropriate for them to be subject to the ban in the same way as naturalisation applicants. This is the route that BNOs can use if they come to the UK under our scheme and become settled: they can go on to apply for citizenship. It is right that those who apply and come through legal routes should have the right to become citizens, but we do not think it is right that those who enter unlawfully should benefit.

The registration routes for children who are subject to the ban include two routes for children born abroad to British citizens by descent. Both have a residence element: either that the parent lived in the UK for a period of three years before the child was born or the family lived in the UK for the three-year period before applying to register the child. We do not anticipate that children of British citizens would be brought to the UK on a small boat when there are routes available to them as family members, but should that happen, the child will not be able to register as a citizen.

The other child route that is included in the ban is registration of children at the Home Secretary’s discretion. The only statutory requirements are that the child is under 18 and is of good character if over 10. However, guidance sets out expectations about when a child will be registered. The normal expectation is that the child will be settled in the UK, and that the parents will be British, or at least settled. It is unlikely that children who enter the UK unlawfully would be able to meet the normal expectations of having a British or settled parent, being lawfully present and having completed a period of residence, as under the Government’s proposals, children who have entered illegally will be removed. The citizenship ban will, however, prevent a child being registered under this provision unless there are ECHR grounds. This fits with the Government’s intention to discourage parents from bringing children to the UK via dangerous methods, including crossing the channel in a small boat, and that such a child cannot become a British citizen and create a means for the family to stay.

My noble friend raised, quite rightly, the issue of compassionate cases. As I have said the ECHR exemption will allow us to consider registering, in rare and exceptional cases, where a person meets the statutory requirements and granting citizenship would be essential to allow them to exercise their family or private life.

[Baroness Chakrabarti (Lab)]

I have two short questions. First, how can a child be culpable? The whole point of the Bill, as I understand it, is that people should not be encouraged to come by illegal means, they should not jump the queue, et cetera. We disagree about that, but none the less, in that conversation about culpability, how can a child be culpable? Secondly, why should the ECHR take on the slack of compassion? There are many members of the Minister’s Government who do not think we should even be signatories of the ECHR any more, and now the ECHR is being relied on for discretion and for slack and compassion. How can that sit well with this Government?

[Lord Murray of Blidworth (Con)]

On the first point, there is no suggestion that these measures impute culpability in the way that the noble Baroness suggests. On the second point, I would have thought that the noble Baroness would approve of the fact that the statute relies upon the convention rights as being the pressure valve for exceptional circumstances in the way that I have described.

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I look forward to hearing the Minister’s response to those specific questions.

[Baroness Chakrabarti (Lab)]

My Lords, it is an enormous pleasure to follow the noble and learned Lord, Lord Etherton. I declare an interest as a former and retired Home Office lawyer and therefore there is a small pension that is being administered by some private company. The important point about that declaration is that when I was a Home Office lawyer in the 1990s, working on matters that included asylum, there was a moment when a particular failed asylum seeker who was removed was shot on arrival in their home country.

I make that point because the noble and learned Lord, Lord Etherton, has made the detailed, forensic point so clearly, but as we move into this part of the Bill and start considering non-suspensive appeals, interim relief and what should happen to someone while there is a dispute about the safety of the place to which they are being sent, that is the story that hangs in my mind, and that is really the best contribution that I can make to the Committee’s thinking when we think about non-suspensive and suspensive appeals, and when we think in due course about my own group of amendments, which is about interim relief from domestic courts and international courts.

To facilitate the swift progress of the Committee I will do something that seems counterintuitive. The Government Chief Whip, who is returning to her place, gave us some very good advice about the Committee not liking reading. Which day was that on exactly? Was it Wednesday or Thursday? Was it this year or last year? I understand that point but this is not a filibuster; this is a very short, pithy quote from the JCHR report, which makes the point better than I could about what is wrong with the particular provisions dealt with in this group.

Noble Lords will find the quote on page 105 of the blockbuster JCHR report, which we will not all be able to read in its totality. Paragraph 333 says:

“Making human rights claims ‘non-suspensive’”—


non-suspensive means that you can appeal from the place you say are not safe in; it is perhaps not the place you say you will be shot but the place you might be sent to where you will be shot or otherwise persecuted—

“can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable”.

This is from the JCHR, which is an all-party committee of both Houses. It continues:

“We are concerned that this has not been established for the states deemed safe for removals”.


That was one of the many excellent points made by the noble and learned Lord. It goes on:

“The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for ‘compelling evidence’ to support it”—


for those desperate refugees—

“puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine ‘serious and irreversible harm’ by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including”—

the Minister’s favourite—

“the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations. Clause 39 should be removed from the Bill”.

[Lord Hope of Craighead (CB)]

My Lords, I have three amendments in this group: Amendments 101, 110 and 113. Two of these amendments, to which the noble Lord, Lord Anderson, has added his name, are about the meaning of words. They are words to which the noble Baroness, Lady Ludford, drew attention in her opening remarks on this group.

Amendment 101 directs attention to the definition in Clause 38(3) of the serious harm condition. The Bill says that this requirement will be satisfied if the person faces a

“real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom … to the country … specified in the third country removal notice”.

Amendment 113 directs attention to the requirement in Clause 41(5) that a serious harm suspensive claim must

“contain compelling evidence that the serious harm condition is met in relation to the person”

making the claim. I am grateful to the noble Baroness, Lady Chakrabarti, for drawing our attention to the reference in the JCHR report to the word “compelling” and its consequences.

So far as

“real, imminent and foreseeable risk”

is concerned, we suggest that that phraseology is unnecessarily complex. If a risk is imminent and foreseeable then one would say it must be a real risk and not a hypothetical one. Conversely, if the risk is real then it would follow that that is because it is imminent and foreseeable. These words are unnecessarily complex. It would be better, we suggest, to delete the words “imminent and foreseeable” or, alternatively, delete the word “real”. The real question is whether the word “real” adds anything if the other two words are satisfied.

As for the word “compelling”, there is an important question in addition to the fundamental point raised in the JCHR report as to what exactly “compelling”, in Clause 41(5), is dealing with. Clause 41(5) is telling the asylum seeker what his or her claim must contain. There are various requirements set out, and the first is that it

“must … contain compelling evidence that the serious harm condition is met”.

The first question is who is to judge that the evidence in that claim is compelling? The clause begins by telling us that the Secretary of State must consider the claim, before the end of the decision period, and make one of the following decisions:

“that the serious harm condition is met … or … that the serious harm condition is not met”.

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Moved by

[Baroness Chakrabarti]

116: Clause 52, page 54, line 1, at beginning insert “Providing the procedure set out under subsection (3A) has been followed,”

[Baroness Chakrabarti (Lab)]

My Lords, this may be the graveyard shift, but I will do my best to keep the Committee awake for a little longer. I give huge thanks to all members of the Committee for being here for whatever reason—under pain of whipping, out of love for human rights or whatever it is. I thank you for being here.

The whole Bill is a clash between politics—I would say rather tawdry, populist politics, but politics none the less —and human rights. But this group—Amendments 116 to 119 and the issue of whether Clauses 52 and 53 should stand part of the Bill—is not even about human rights. It is about something that precedes both human rights and democracy itself: the rule of law. In our country, the rule of law came before we had even democracy. I would argue that no civilised society, let alone a democracy, can be sustained anywhere in the world without the rule of law.

Clauses 52 and 53 are, in effect, about ousting the jurisdiction of domestic and international courts to grant interim relief—interim injunctions in our domestic courts and interim measures in the European Court of Human Rights. They deal with some of the concerns that have been raised in previous groups about what you do when you have not actually considered the person’s substantive claim yet. They say, “You send me to Rwanda, Uganda et cetera. I will not be safe there. Bad things might happen to me there and/or I might be sent on to the country from which I originally came, where I feel I would be killed or tortured”. This is about interim relief: whether the courts should be allowed to grant it and whether our Government should respect that. All other parties to litigation have to respect the decisions of courts in relation to interim relief when there is an arguable case and a real risk.

If noble members of the Committee will forgive me, I will take the clauses backwards to make my point better. I will start with Clause 53, work backwards to Clause 52 and come to the amendments last.

Clause 53 deals with the European Court of Human Rights, and I am delighted to see the Foreign Office Minister in the Chamber to hear this. I am very grateful for that, because this is a matter of foreign policy and our relationships with the Council of Europe and the wider world, as well as a domestic legal matter.

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These clauses are essential to put a stop to the merry-go-round of repeated and late legal challenges to removal. For these reasons, I invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in this debate—it was not that short—and even more grateful to those who sat through it without getting anything off their chest. I am grateful to the noble Baroness, Lady Ludford, who pointed out, and I agree, that the double act of the noble Lords, Lord Sandhurst and Lord Wolfson, did not help the Government very much, nor was the Committee hugely assisted. To suggest that rulings of interim measures indicated by the court are not binding or important except sometimes is a very strange approach to any kind of court order or indication. If a court order is important only sometimes, we get into who gets to choose and when, which is not the way to develop any kind of trust between people, nations or legal systems.

Neither of the noble Lords mentioned the Russia situation or answered on whether it would be okay for the Russian Federation now to ignore interim indications that prisoners of war in the Russia-Ukraine conflict should not be executed. They also did not mention that, in an earlier group, the Government prayed in aid the Strasbourg test as the test that they want to adopt before anyone can have a non-suspensive claim. That is odd, because you would expect the Strasbourg court to trust Governments more than you would expect His Majesty’s Government to trust removal of individual people to places outside the jurisdiction of the Council of Europe.

I was grateful to the noble Lord, Lord Paddick, for pointing out that Clause 52, which is about our own courts, was totally ignored in the extensive vaudeville. We had the pleasure of the vaudeville but there was no mention of the ouster in Clause 52 of our own courts, and that is rather telling. However, I am grateful to the Minister. I think he got to the point of the debate between us in his closing remarks. He talks about the last-minute opaque process. With emergency interim measures, there is always the possibility for ex parte—get the judge out of the Garrick Club late at night or get the judge up in his or her pyjamas. The crucial thing is that I agree with the Minister that thereafter, even if that emergency relief has to be granted, even ex parte, there ought to be the possibility of looking again, with both parties represented. The Minister and I agree about that.

I think that Clause 52 is totally unconscionable. I think that Clause 53 is the Government’s attempt at negotiating. We are negotiating now by legislation—so we do policy by legislation and now we do negotiation with the Council of Europe via this legislation. I disagree about whether that is the right way to make friends and influence people, but it may be that I am wrong about that. Perhaps it will work, but if it has not worked by the time of Report I will be back, and I will be urging the Committee, and by that point the whole House, to reject not just Clause 53 but Clause 52 as well. For the moment, I beg leave to withdraw the amendment.

Amendment 116 withdrawn.