Nationality and Borders Bill

Baroness Hamwee Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the Board of Deputies of British Jews quoted from the Torah in its briefing. I am afraid it is not at the front of my mind, but it is the same thought. There have been so many powerful and informed speeches that I decided at about 5.30 pm that I must stop adding namechecks to my notes.

I have often heard from the Dispatch Box the term “professional curiosity”—an encouragement to probe, analyse and avoid the unthoughtful and the knee-jerk. It seems to me that professional curiosity has been lacking both from the underlying policy and this Bill. The noble Lord, Lord Blunkett, mentioned virtue signalling. There certainly seems to have been no attempt to understand the push factors.

I should apply that to myself. How is it that a Bill against which I would readily have voted today has any appeal? Is it that people have had bad encounters with refugees? I think that is unlikely. The reaction of most people who have talked to individuals is often admiring. Is it fear of the other? We are a mongrel nation, as noble Lords have said; I certainly am. Is it an underlying insecurity about housing, the health service, jobs, the cost of living and the economy? Likely, I suspect, and so we should address those.

How is it that the Government’s priority is not to take a leadership role in integration, rather than creating tiers, different levels of protection—“differentials”, as the noble Baroness, Lady Chakrabarti, put it—and the deserving and undeserving? Instead, they make the environment aggressively hostile.

Among the many emails we have received opposing the Bill, I had one from a lady who wrote:

“Although I do not believe that the current Front Bench is racist,”—


I should say that I have just had another email which takes a contrary view, but I am not making that accusation myself—

“it would be naive to imagine that it will always be ‘in the public interest’ for me and my parents to continue enjoying the ‘privilege’ of our British citizenship.”

Let me say that we believe that the noble Lord, Lord Woolley, is in the public interest.

How many British citizens suddenly feel insecure? Another email I had said:

“Clause 9 does not make me feel safer.”


I am sure the writer would be happy for the noble Lord, Lord Anderson, to quote that on a future occasion. It seems we are to assume the worst of asylum seekers, victims of modern slavery and those who missed out on claiming citizenship—those who, in its words, are not the “cash cows” the Home Office expects.

My noble friends Lord Paddick and Lord Oates referred to comparative numbers of applications and refugees accepted in other countries, as did the noble Lords, Lord Rosser and Lord Dubs. The starkest are the numbers being hosted by bordering states and by developing and middle-income countries. Our responsibility is no less because of our geographical position. We should be fair in the international context. Clearly, we cannot take everyone, but we fall well short of our fair share. I do not think that is the same as not controlling borders, and it is not Marxist in any sense. I am reminded that another word that is almost compulsory in this House is “proportionate”. One could apply that here too.

The tone as well as the detail of the Bill are of denial of our role as part of the international community, engaged in a co-operative effort to address a shared issue. As for offshoring, I hope we will not see that, for the sake of individuals and of the host—if that is the right word—country with fewer resources than we have. It feels more like offloading.

It is almost the least of it but requiring visa penalties for unco-operative countries baffles me; it is not my approach to co-operation or partnership. In fact, I have trouble with a lot of the logic. The great majority of family reunion applications, as we have heard, are for women and children to join a family member here. How does that square with government policy to protect women and girls? If a refugee cannot sponsor an application, does this not incentivise dangerous journeys, particularly by women and girls? That is the Australian experience. Smugglers understand the process; that is part of their power. Asylum seekers are unlikely to do so; it is not part of their thinking.

Politicians who admire successful business people should understand that, faced with an obstacle, they find ways around it; they are not deterred. By the way, life sentences, an option under the Modern Slavery Act, have apparently not been used. The Bill, perversely, plays into the smugglers’ business model. It is predicated, as many noble Lords have said, on a substantial increase of safe and legal routes. Apart from it being the right thing to do to increase them, their creation would reduce the market for dangerous crossings. As has been observed, the Home Office impact assessment points to the inherent risks of dangerous crossings. What the Bill is not based on is a trauma-informed approach. That is the clear view of the professionals who have written and spoken about age assessment, which they and we see as a matter of safeguarding. They are very clear that this is not cut and dried scientifically. Personally, I am not surprised that young people who have gone through what they have been through act older than their age.

Concern is expressed about the impact of much of the Bill on children. The right reverend Prelate the Bishop of Durham was the first to mention that issue. Even the clauses righting historical omissions regarding citizenship are overshadowed, and Clause 10 is plain unjust. Citizenship is hugely important; it is about belonging. It is well known that victims of slavery and trafficking, as well as those fleeing persecution, oppression and tyranny, cannot immediately tell the whole or even much of their story. “Late” is a misnomer. The Independent Anti-Slavery Commissioner makes very balanced and powerful comments—to use a neutral term—including on the danger of viewing victims through an immigration lens and ignoring their trauma and exploitation. I cannot, unlike others here, see the Bill as other than a retrograde step back from our world-leading legislation of 2015. What the Minister said about ILR was on the basis of assisting prosecutions. That is important, but it is a complex issue, and it is not the only one, as the noble Lord, Lord McColl, always makes clear.

I can give only a modified welcome to the additional qualification for legal aid, given the shortage of provision in practice—the funding structures and rates, and the refusal of the Legal Aid Agency, as I understand it, to fund expert reports at the application as distinct from the appeal stage. This is part of a wider issue, but it bites here.

There are big legal issues raised by the Bill. Others have touched on compliance with international law and the law of the sea, and I am sure that we will spend time on this in Committee. I find it perverse to use domestic legislation to impose the interpretation of international conventions, although I have to say that it is of a piece with the Government’s announcement of legislation to correct the courts’ judgments in human rights cases. Language can be misleading; an expedited or accelerated process sounds attractive, but so did “detained fast track”, as a term, which the Court of Appeal, rightly, brought to an end.

Like the noble Baroness, Lady Kennedy, I am concerned about the criminalisation that may spill over to individuals and organisations that seek to support asylum seekers. Judging from the support that we have seen for the RNLI, that view is widely shared.

I hope that the Minister will be able to detail what routes there are by which an asylum seeker can come direct from countries from which so many flee—Iran, Iraq, Eritrea, Yemen, Sudan, Vietnam and so on. The Government may tell us about schemes for Afghanis and Syrians, but we know that we would like them to be far more extensive, and we are concerned about the lack of what is happening at the moment. What is being done to create safe and legal routes, and why is there no provision for humanitarian visas? Perhaps we can also hear why the Government, who have relied on the UNHCR to identify those whom they have resettled in the UK, refuse to take on board its analysis. The UNHCR’s critique of the Bill is devastating.

I have had much more time than most speakers, but none of us has had anywhere near enough to make all the points that are to be made on this Bill, which clearly fills so many of us with gloom and anxiety, nor enough time to thank all those who have briefed us and who work on the front line—and, certainly, nowhere near enough to cover what will so affect people’s lives.

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

My Lords, I thank all noble Lords who have spoken today in what has been quite a long debate. I know noble Lords will understand if I do not respond to every single point that has been made, but I thought it would be a good idea to summarise, very briefly, what has been talked about today.

I hope I can divide the House into those who think we have gone too far with the Bill and those think we have not gone far enough. There are an elite few here who support the Bill. There is quite a contradictory view on the EU as being either the best thing since sliced bread or, contrarily, as not being regarded by some as a safe area for migrants, but there is also the Groucho Marxism that my noble friend referred to—I will not call it LibDem-ism—which says, “Whatever it is, I’m against it”. I will call out two noble Lords for actually suggesting solutions. One is the noble Lord, Lord Desai, and the other is my noble friend Lord Balfe. Solutions have been in very short supply this afternoon, and although I may not agree with them, they actually suggested solutions.

We are a nation of immigrants—I have said that before at this Dispatch Box—and I am a first-generation immigrant. Immigration has made this country the place that it is today. It rebuilt it after the war and we provided protection for those fleeing persecution, both during the Second World War and in the decades since. What comes to mind is the Ugandan Asians and now, of course, the people from Afghanistan. We have just resettled more than 20,000 people through the vulnerable persons resettlement scheme and we will go on to resettle 20,000 people under the Afghan citizens resettlement scheme.

The other word that has been used quite a lot today, by quite a few noble Lords, is “inhumanity”. The inhumanity I see is the treatment of migrants by criminal gangs: the inhumanity of making your way to our shores being based on your ability to pay those criminals; the inhumanity of the fact that if you are a woman or a girl—women and girls have been mentioned by quite a few noble Lords this afternoon—you are very unlikely to be in one of those boats, because most of the people in them are men or boys; and, finally, the inhumanity of using people as commodities in the grim industry that those criminals engage in. They do not see the people in those boats as human beings at all. That, for me, is the inhumanity of all this, and I do not think noble Lords would actually disagree with those points.

My noble friend Lady Stowell said that illegal migration matters to the people of this country. It does, not because they are racist but because they have a great sense of fairness. We should be careful when we use the word “racist”. The noble Baroness, Lady Hamwee, mentioned an email she received today relating to the Front Bench, and retracted from that accusation. Someone from my background or that of my noble friend Lord Wolfson would never countenance that—and I do not accuse her of asserting that at all.

[Baroness Hamwee (LD)]

I should like to make it clear that my correspondent said that she does not think that the Front Bench is racist.

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness, and I know she would not have made that suggestion.

We are talking today not about the lawful migration which has so enriched our country, but about illegal migration, which only makes it harder for us to do what we all want, which is to protect those in greatest need of our help.

As I said, I cannot touch on every point that was made, but I hope to touch on some of the key issues. To quote my noble friend Lord Wolfson again, we have to start with the basic reality that the current system is not working. We need real, practical solutions, not just another outline of the problems, so I offer particular thanks to noble Lords who have today shared some suggestions of what we can do. Reform is desperately needed, and the Bill will enable us to deliver it.

I turn first to the deprivation of citizenship, because that has been so widely mentioned, including by the noble Lords, Lord Rosser, Lord Paddick, Lord Blunkett, Lord Anderson of Ipswich, Lord Dubs, Lord Kirkhope of Harrogate and Lord Hannay of Chiswick; the noble Baronesses, Lady Fox of Buckley, Lady Chakrabarti, Lady Jones of Moulsecoomb, Lady Lister and Lady Uddin; and my noble friends Lord Balfe and Lady Warsi. I assure the noble Lord, Lord Woolley, that, irrespective of his name—mine also starts with a “W”, so I know where I stand—I listened to his concerns on the clause very carefully. I assure him of the Government’s continuing commitment to righting the wrongs of Windrush. We have been very clear on that, so, to echo what was said explicitly in the other place, the Bill does not widen the reasons for which a person can be deprived of their British citizenship. The change is about the process of notifying the individual.

Picking up on some of the questions asked by the noble Lord, Lord Anderson of Ipswich, in particular, the clause is necessary to ensure that we avoid a situation where we could never deprive a person of their British citizenship just because there is no way of communicating with them, or where to make contact would disclose sensitive intelligence sources, including a last known address—if we even have one. This is vital to protect the security of the UK from those who would wish to do us harm.

Rightly, this power is reserved for those who pose a threat to the UK and those who obtain their citizenship by fraudulent means. Decisions are made following careful consideration of advice from officials and lawyers, and in accordance with international law. It always comes with an appeal right. The Government do not seek to extend deprivation powers—I want to make that absolutely clear. The grounds on which a person can be deprived of their citizenship will remain unchanged. We also do not want to deny a person their statutory right of appeal where we have made a decision to deprive, and the Bill preserves that right. The change is simply intended to ensure that existing powers can be used effectively in all appropriate circumstances and in no way represents a policy change in this important area of work. Instead, the scaremongering that we have seen around this clause from some quarters is unacceptable, irresponsible and highly regrettable.

The noble Lord, Lord Rosser, and the noble Baroness, Lady Jolly, made some thoughtful contributions on the importance of organisations such as the RNLI, and I share their sentiments about them. I want to reassure noble Lords that the Bill does not change the Government’s approach to existing obligations under international maritime law, including that first duty to protect lives at sea. I might say that I am delighted that the RNLI has received additional contributions, because I see the work that it does down in Cornwall. The Government tabled an amendment to the Bill in the Commons on Report to make absolutely clear that organisations such as HM Coastguard and RNLI will be able to continue to rescue those in distress at sea, as they do now.

Perhaps I may move on to differentiation. The noble Baronesses, Lady Chakrabarti, Lady Ludford, Lady Kennedy of the Shaws and Lady Uddin, the noble Lord, Lord Hylton, and the right reverend Prelate the Bishop of Durham spoke about provisions that differentiate between groups of asylum seekers. I know that there is a difference of opinion about these provisions, but I do not make excuses for doing everything possible to deter people from making these dangerous crossings. I should like to provide reassurance that family reunion, which I know is an issue of particular concern, will be permitted for those in group two where refusal would breach our international obligations under Article 8 of the European Convention on Human Rights.

I should also like to pick up specifically on the comment from the noble Baroness, Lady Kennedy, on female judges from Afghanistan. She and I have talked about that and how they will be considered under the new differentiated asylum policy. As she set out, in August we announced the Afghan citizens’ resettlement scheme, one of the most generous schemes in our country’s history, with up to 20,000 people at risk being given a new life in the UK. The scheme will explicitly prioritise those who have assisted the UK’s efforts in Afghanistan and stood up for values such as democracy, women’s rights and freedom of speech or the rule of law. I hope, therefore, that I can assure the noble Baroness on that. The scheme includes women’s rights activists, journalists and prosecutors.

Individuals granted settlement under the ACRS will not be subject to any differential treatment and will be granted indefinite leave to remain in the United Kingdom. That sits alongside our other safe and legal routes, including the UK resettlement scheme and community sponsorship, which I am delighted the right reverend Prelate the Bishop of Chelmsford mentioned, because it is a scheme that I am very keen on and I hope to have more discussions with her on it. Other safe and legal routes include the mandate resettlement scheme, the Afghan relocations and assistance policy and the immigration route for BNO status holders from Hong Kong.

I move on to modern slavery. Many noble Lords, including my noble friend Lord McColl, the noble Lords, Lord Alton of Liverpool, Lord Rooker and Lord Morrow, the noble Baroness, Lady Hollins, and the right reverend Prelate the Bishop of London asked about Part 5, which relates to modern slavery. The Government are totally committed to tackling this terrible crime, one that seeks to exploit and do harm. This requires active prosecution of the modern slavery perpetrators.

Noble Lords asked why we are legislating for modern slavery in this Bill. The fact is that there is an overlap between some individuals who enter the immigration system and the national referral mechanism, so it is right that we make sure that those individuals have their full set of circumstances considered together. We also want to make sure that vulnerable individuals are identified as early as possible so that we can ensure that they have access to the right support.

That is why this Bill makes clear, for the first time in primary legislation, that where a public authority, such as the police, is pursuing an investigation or criminal proceedings, confirmed victims who are co-operating in this activity and need to remain in the UK in order to do so will be granted temporary leave to remain. The legislation also makes it clear that leave will be granted where it is necessary to assist an individual in their recovery from any physical or psychological harm arising from the relevant exploitation, or where it is necessary to enable them to seek compensation in respect of the relevant exploitation. It is right that leave is granted only to those who need it. This is both firm and fair.

Additionally, as part of our ongoing commitment to victims, we will continue to explore opportunities to enhance our support for victims through the criminal justice system through our review of the modern slavery strategy. Having as clear a definition as possible of the relevant eligibility criteria is the best way to give victims the clarity and certainty they need.

I assure noble Lords that we remain in line with our international obligations and will continue to support, via a grant of temporary leave to remain, those who have a need to be in the UK to assist with their recovery from physical and psychological harm caused by their exploitation. All those who receive a positive conclusive grounds decision and are in need of tailored support will receive appropriate individualised support for a minimum of 12 months. We will set out further details in guidance in due course.

I turn to the concerns about the steps we are taking regarding the wording of the reasonable grounds threshold in the Modern Slavery Act 2015. Our purpose here is to ensure that this mirrors our obligation under the Council of Europe Convention on Action against Trafficking in Human Beings. We remain committed to ensuring that the NRM effectively identifies and supports genuine victims to recover.

Lastly, I turn to the specific questions raised by the noble Lord, Lord Rooker, on the recent joint statement of the Independent Anti-slavery Commissioner and the Victims’ Commissioner. I assure him that we are fully considering the issues raised and that we are currently engaging with both commissioners on these important issues.

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

1: Clause 1, page 2, line 10, leave out “equally” and insert “in the same terms”
Member’s explanatory statement
The JCHR recommended that the Home Office consider how best to ensure that the intention to treat those previously discriminated against equally well as those not previously discriminated against, is made clear in the drafting of Clause 1. This amendment is to probe the drafting of Clause 1.

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[Baroness Hamwee (LD)]

My Lords, Amendment 1 is grouped with Amendments 2, 8, 9, 10, 12, 17 and 21. Amendment 9 is in the names of the noble Lord, Lord Dubs, and my noble friend Lady Ludford; the others are all in our names.

This Bill is not all bad, so I am glad to be able to start with Part 1, most of which we support, although the exceptions to that support are very significant. This rather gentle introduction is to probe into the clause that remedies historical inequalities. What is not to like? One thing that I do not like—which is not directly related to the Bill, but I am going to take this opportunity to say it—is that I am not comfortable with receiving so many briefings from organisations to which we cannot do justice. That is my discomfort. It is not that we do not want the briefings, but often they come too late for us to reflect concerns in amendments. I know that I am not alone in this House in finding it hard to keep on top of the material and feeling particularly bad about not being able to use all that is sent to us. I hope that organisations—which I know are very often overstretched and understaffed, and have their day job to get on with—will understand that we are not ignoring them, but please could they send us material earlier than sometimes they do? I am sure I am not the only one who has received briefings this morning.

I turn to the substance of the matter. Clause 1 provides for parents where there is discrimination in British nationality law that prevents mothers passing on British Overseas Territories citizenship to their children. It provides for the parents in such cases to be treated equally in terms of passing on that citizenship. The Joint Committee on Human Rights pointed out that this could mean equally well or equally badly; naively, I had not thought about it being equally badly. The way the clause is drafted is not the same as Section 4C of the British Nationality Act, which addresses the same discrimination in respect of British citizenship. That uses the phrase “in the same terms”, and that is what is proposed in several of these various amendments. I understand that concerns have also been raised that the reference to the parents having “been treated equally” is, on its face, unclear. The JCHR said it would be prudent to deal with the drafting so that it is “in the same terms”. I add that when you have different wording relating to very similar situations, that in itself suggests that the two should be dealt with differently.

Amendment 8 takes us to the issue of good character and would repeal Section 41A of the British Nationality Act. That section requires adults and young persons to be “of good character” if they are to be able to register as British citizens. If someone has the right to become a British citizen—or, more accurately in some cases, to have their right to citizenship registered, because the right is to citizenship and registration is simply the procedure—then what is done by the right hand should not, by giving discretion to the Secretary of State, let the left hand take it away. I hope the Secretary of State will allow me, for this purpose, to describe her as the left hand.

This point applies to Amendments 10 and 19 and to Amendment 9 from the noble Lord, Lord Dubs, and my noble friend Lady Ludford. Their explanatory statement is much more elegantly expressed than mine, but it is the same point. This point is particularly acute in the case of a child. Is the test really in the child’s best interests? I saw a bit of resonance with the police Bill, which I was going to say we have so recently finished but of course we have not, when we debated an amendment about candidates’ disqualification for standing for office as police and crime commissioners because of a misdemeanour—I think I can almost use that term in its technical sense—in their youth. This term is not the same as that; it is more amorphous. It is a discretionary matter and is of particular concern. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak briefly in support of Amendments 8 and 9 about good character. Like the noble Baroness, Lady Hamwee, I am particularly concerned about its application to children and those whose conduct when a child—and we are talking about children as young as 10—is used to deny the right to register as a citizen, which would otherwise be theirs.

The Joint Committee on Human Rights has voiced its concern, not just with regard to this Bill but in a 2019 report, where it pointed out that

“half of the children denied their … right … to British nationality on good character grounds have not even received a criminal conviction (having merely received a police caution)—let alone been prosecuted for ‘heinous crimes’.”

The Select Committee on Citizenship and Civic Engagement, of which I was a member, expressed considerable concern about the good character requirement. The committee called for a review of its use and description and of the age from which it applies—which is, as I said, 10. The Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty International, which have been campaigning on this point for some years, say:

“That some British people are required to satisfy the Home Secretary that they are ‘good’ for their citizenship rights to be recognised is divisive and alienating.”


I am not sure how many politicians would come out well as having “good character”, but I shall leave that as it may be. The good character condition is relatively recent in nationality law. It certainly should not be extended; ideally, it should now be scrapped.

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[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for her request for clarification. Guidance is clear that a criminal record does not necessarily mean that an application for citizenship will be refused. As I said earlier, those with a non-custodial sentence or who have received an out-of-court disposal will normally be refused citizenship unless three years have passed. But—and this is the key point—caseworkers have discretion to make an exceptional grant of citizenship in certain circumstances, which, I should imagine, would very much cover the circumstances that the noble Baroness has just described.

[Baroness Hamwee (LD)]

My Lords, there is clearly concern about good character. I echo my noble friend’s query; the point about a holistic assessment has not been answered. I appreciate that those briefing the noble Lord might not have anticipated the question, but the way in which a caseworker sets about the task is fundamental to this issue.

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[Lord Sharpe of Epsom (Con)]

I did not mean to imply that the noble Baroness was saying that. I apologise for intervening on the noble Baroness, but I want to clarify the caseworker point. To answer the question, they do look at cases in the whole.

[Baroness Hamwee (LD)]

Thank you. That is good to know.

I come back to the registration point that we are dealing with. The Minister made some distinction between different routes. I take that point. I am not capable of making these distinctions myself, on my feet, without a lot of papers spread around me.

Section 41A is about registration. I say to the noble Lord, Lord Dubs, that it must have come in after the Bill had been introduced in order for it to be numbered in this way.

I turn to my first two amendments—to replace “equally” with “in the same terms”. I repeat my point that having one concept expressed in different ways in the same Act is bound to cause confusion, if not trouble. This may be very boring and it does not go to the root of a lot of what we are debating, but it is potentially of great importance in practice. I hope that the government lawyers can look at it again—or perhaps all my legal training is out of date. I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

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[Lord Sharpe of Epsom (Con)]

Of course I accept the distinction. There is no arguing about that at all.

The noble Baroness, Lady Chakrabarti, raised the point that the provisions in this Bill are about righting historical wrongs, and I assure the Committee that it remains our intention to continue to adopt the approach of not charging fees in instances where unfairness or injustice has occurred. But as I tried to outline above, this is not a matter for the Bill. As my noble friend Lord Horam noted, it should be remedied through secondary legislation in line with other changes to immigration and nationality fees, as far as applications for British citizenship are concerned. Administration of British Overseas Territories citizenship applications is a matter for the overseas territories. We have consulted with them about the new nationality provisions; that applies to all the amendments except Amendment 13.

[Baroness Hamwee (LD)]

I apologise to the noble Lord. On the previous point about regulations for fees, the amendment of the noble Baroness, Lady Lister, in fact anticipates regulations. It limits the amount of fees that can be paid, but does not seek to use primary legislation to set the specific fee.

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

14: Clause 7, page 9, line 36, at end insert—
“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statement
This amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.

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[Baroness Hamwee (LD)]

My Lords, I beg to move Amendment 14, in my name and that of the name of the noble Lord, Lord Russell of Liverpool, and will speak to Amendments 15, 16, 19, 20, 23 and 24 in this group. The noble Lord apologises to the Committee—he is unwell and had really wished to be here—but I hope that the discussion this afternoon will not be an end of the matter. He and I are keen to rectify an anomaly of which he became aware through his association with Coram, and it is also a concern of the Immigration Law Practitioners’ Association. There are not a large number of people affected by the point we raise but, as the noble Lord says, that is no reason to ignore a matter of principle. He suggested that we flag this up and that we might discuss it with the Minister before Report. We are lucky enough to have a Minister whose diary secretary must go mad when she hears the commitments being made during Committee days.

The issue is another anomaly. British nationality law in England, Wales and Scotland—Northern Ireland is in a different situation—is not in alignment with adoption law. In England and Wales, an adoption order may be made where a child has made an application before reaching the age of 18, as long as they are not yet 19. In Scotland, an adoption order may be made in respect of someone over the age of 18, as long as the application was made when the person was under 18. An adoption order confers British citizenship automatically only when the person adopted is under 18 on the day it was made. As the noble Baroness, Lady Lister, said very forcefully earlier, citizenship is significant: it is about belonging as well as being a technical matter.

Coram gave the example of a young woman who completed her degree at Oxford after her mother had died of cancer, and her maternal aunt, a British citizen resident here, applied to adopt the young woman before she turned 18. The High Court ordered the adoption when she was 18 but not yet 19. I understand—and this must be quite unusual—that the Secretary of State for the Home Department was represented and did not oppose the adoption order, but the relevant section of the British Nationality Act did not operate to confer British citizenship on her, so she was left with student status due to end shortly after her degree was obtained, no basis on which she could continue to enjoy family life in the UK with her adoptive mother, and Immigration Rules making no provision for someone in her position because she did not have 10 years continuous lawful residence in the UK. I have been given other examples but I am sure noble Lords get the point—and I can see from the Minister’s face that she does.

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British overseas citizenship was intended to be a transitional status, and it is expected that many who held that status will have acquired the nationality of the place where they were born or have been living in the 38 years since that legislation was passed. The existing routes to British overseas citizenship are therefore very limited, and we do not intend to create a new route. However, people who hold only BOC and do not have, and have not voluntarily lost, another citizenship or nationality can apply for British citizenship under existing legislation. If a person believes that they missed out on becoming a BOC because of historical unfairness, and as a result they also missed out on being able to become a British citizen because they have no other nationality, and have not done anything that meant they lost a nationality, there is nothing to prevent them applying for that status under this clause. With that, I hope the noble Baroness will not press the amendments.

[Baroness Hamwee (LD)]

My Lords, I agree with the Minister that Clause 7 is positive and I agree with the noble Lord, Lord Rosser, that it must not be just a token. I am obviously disappointed with a good deal of what the Minister had to say. With regard to guidance, which I am glad to hear is proposed, the reference to consultation in our amendment was not accidental. It is important, particularly when we are told that the point of this is to allow flexibility for the Secretary of State, to have the input of stakeholders.

On the point of capacity, if the current discretion is sufficient, I should have said that working on the basis of experience one should put something discretionary into statute, so that everyone is quite clear where they are. As to the transitional nature of British overseas citizenship, there are still people who are affected. The fact that there are very few does not change the position.

With regard to adoption and the need to go through a registration process and for it not just to be automatic, the Minister said that this would be considered on its merits. Just repeating those words indicates how different this is from automatic citizenship, which is part and parcel of whole adoption arrangement. She mentioned the need to be consistent with other nationality provisions. I should say that this amendment would be consistent with the arrangements for adoption that we have in the different parts of the UK. I am particularly disappointed about that, but I hear what she says and I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

[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 Hamwee Excerpts

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

[A noble Lord]

Hear, hear.

[Baroness Hamwee (LD)]

My Lords, I do not want to sound churlish at all by asking this question. The “Hear, hears” were probably not as loud as they might have been for Hansard to pick them up; I hope that it does. My question will display my lack of grip of the EU settled status scheme. The Minister said that the Immigration Rules will be changed at the next appropriate opportunity. Am I right in thinking that 29 March is a significant date for those with pre-settled status? As I said, I have a lack of grip of this and an even greater lack of grip in pulling the bits together in my head but, if it is a significant date, then it is a significant question to ask whether the change will be made before 29 March.

[Baroness Williams of Trafford (Con)]

I do not have the exact detail on the date. I understand her point about 29 March being a significant date; noble Lords will all be informed in due course of when the changes will come about and I will let the noble Baroness know.

[Baroness Hamwee (LD)]

My Lords, just to follow that up, the Minister will understand that I am concerned that some people may fail to qualify because the rules are not changed by that date, so I wonder whether she could come back to us well before then.

[Baroness Williams of Trafford (Con)]

I will of course do that.

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Moved by

[Baroness Hamwee]

35: After Clause 10, insert the following new Clause—
“European Convention on Nationality
Her Majesty’s Government must within six months of this Act coming into force ratify the European Convention on Nationality 1997.”

[Baroness Hamwee (LD)]

My Lords, this might scramble our brains a little less than the last amendment. Amendment 35 would require the Government to ratify the 1997 European Convention on Nationality. This is a Council of Europe treaty, signed, obviously, in 1997, originally by 15 countries. It now has 29 signatories and 21 ratifications. The UK has not followed through on it. In 2002, the then Labour Government said that they planned to ratify it “in due course”, but “due course” has apparently not yet arrived.

The convention sets out the principles to which each country’s nationality laws should conform. The key principles are that everyone has the right to a nationality; statelessness should be avoided; no one should be arbitrarily deprived of his or her nationality; and neither marriage nor the end of a marriage, nor a spouse changing their nationality, should change someone’s nationality. The key part relates to the deprivation of citizenship, preventing states making people stateless unless their citizenship was obtained through fraud, false information or concealment.

The convention sets the bar for deprivation at acts that are seriously prejudicial to the vital interests of the state. This was deliberately mirrored in our legislation in 2002, but with the test being lowered in 2006 to cases where the Home Secretary is satisfied that it is conducive to the public good to order a deprivation. Does the UK believe that, as part of a global community, it would be good to be part of a worldwide group of countries in its approach to nationality? Do we want to be an outlier? I beg to move.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Coaker, for their brief and succinct points in speaking to the amendment.

British citizenship affords benefits and privileges; the vast majority of us enjoy the freedom that they bring, while of course respecting the rights of others and the rule of law, but there are high-harm individuals who do not share our values. The noble Lord, Lord Coaker, is right that no Government since 1997, including the coalition Government of 2010-15, have ratified the convention, and he is right that we are not going to. The convention does not address the modern threat from global terrorism, among other things, and I would add that Spain, Belgium and Switzerland have not signed it either, perhaps for the same reasons.

The convention on nationality is at odds with domestic law. The Government do not consider it right that our sovereign powers to deprive a person of citizenship should be constrained by signing the convention, as the amendment would oblige us to do. That would severely limit the ability of the Home Secretary to make a deprivation decision in relation to high-harm individuals and those who pose a threat to public safety. Sadly, we have seen too often the effect of terrorist attacks on our way of life and the impact of serious organised crime on the vulnerable. It cannot be right that the Government are not able to use all the powers at their disposal to deal with today’s threats to our way of life.

It is the Government’s duty to keep the public safe and we do not make any apology for seeking to do so. I hope that, with that, the noble Baroness will withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I shall be brief because I regard this amendment as an amuse-bouche, if you like, before the very substantial groups to come. I am sure the Minister recognised that this was a probing amendment, as I was asked to find out what the Government’s view was. I think that together we have fulfilled that task. I beg leave to withdraw the amendment.

Amendment 35 withdrawn.

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[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.

[Baroness Hamwee (LD)]

I am sorry to disappoint the noble Baroness, Lady Chakrabarti. I thank those who have been complimentary about this amendment and make it clear that it is a team effort on our part. I really did not expect it to provoke such debate, but the thoughts that are teeming round people’s minds are bound to burst out at some point.

I want to ask about Amendment 129, and I will return the compliment to the noble Lord, Lord Coaker. It makes an immensely important point but reading it, I wondered whether there was not already an offence—an inchoate offence, possibly, under the existing immigration legislation, or possibly even conspiracy. I do not want to anticipate Clause 40, but are there any problems in using Sections 25 and 25A of the Immigration Act 1971?

[Lord Dubs (Lab)]

My Lords, I shall comment briefly on the discussion we have been having. Why is it young men? I talked to some of the Afghans who got to Calais—this was before the Taliban took over Afghanistan completely—and they said to me that the Taliban were trying to recruit young men into their fighting forces, so the family clubbed together to help them escape, because they were the ones who, at that time, were most vulnerable. Today, it may be that the women in Afghanistan who are more vulnerable, except that they cannot find their way out. But that is one of the reasons why more young men than young women have fled. Indeed, if one looks at the people who got to northern France, quite a few of them have connections with this country, and quite a few are seeking to establish family reunion. That is an argument why we should be able to provide safe and legal routes for people from northern France to come here: so they can achieve family reunion. We should recognise what they have fled.

My noble friend Lord Coaker described the terrible conditions. My comments are going to go a bit wide of the amendment, but I hope that your Lordships will allow me to continue. I think that if we actually explained to people in this country what it is that people are fleeing from—the awful circumstances, the terrifying persecution, war, people being killed in front of them, and so on—they would be much more sympathetic to refugees coming.

The majority of the refugees who reach France claim asylum in France. A small proportion of those claim asylum here—if they can manage to get to this country. In relation to the number of refugees in the world, we are talking about rather small numbers, but there are some very important points of principle, because we are talking about people who are very vulnerable. That is why I am keen on Amendment 36 and I do not agree with the noble Lord, Lord Green.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I would like to say a word in support of the spirit of these amendments. Specifically, I would like to speak in support of Amendments 37, 38 and 42, in the name of the noble Baroness, Lady McIntosh, introduced brilliantly by the conscience of the House, the noble Lord, Lord Griffiths. Yet, my heart is not in this game. This is what Americans call “putting lipstick on a pig”—it is still a pig.

The only element of this group which I can whole- heartedly support is that Clause 11 should not stand part of the Bill. Our Constitution Committee gave us a choice: it said that we should either remove or redraft Clause 11. I understand what all these redrafting amendments are trying to do, but it is not a good idea. This is not a case for “death by a thousand cuts”; it is a case for a “short sharp shock”. We need to take Clause 11 out of the Bill.

Why? Because the refugee convention matters; it is an important plank in the international legal order. Clause 11 flies directly in the face of the refugee convention, because it creates two classes of refugees: one with convention rights, and one without convention rights. The charge that it is a breach of the convention is put authoritatively not only by our Law Society and the Law Society of Scotland, but by UNHCR in its 72-page memorandum. That is a pretty authoritative source; indeed, it is the authoritative source. When we set up the refugee convention, we asked UNHCR to be its guardian, to supervise its application, and to report to the Secretary-General on laws on refugees in the signatory states. Therefore, it was not interfering, but doing the job which we, when we wrote the convention, asked it to do. I find it a shaming thought that its report on this Bill will have been seen by all 147 signatory states.

Why is UNHCR so sure that the Bill undermines the convention? Clause 11 is the heart of the matter. UNHCR believes that creating a two-tier system for handling asylum seekers—one class legitimate, one illegitimate—conflicts with the simple definition of a refugee in Article 1 of the convention. A refugee, says the convention, is someone who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

That is all: he is outside his country of origin. The definition says nothing about any requirement to seek asylum in a particular place, and nothing about regular or irregular routes; it contains no suggestion that he is out of order if he does not seek asylum in the first safe country—there is no such requirement anywhere in international law.

A refugee is a refugee is a refugee, and must be treated as such, according to the provisions of the convention, however he got there. That is what the convention says and that is what we have believed down the years. Stretching the meaning of Article 31, as the Government seek to do, cannot change or qualify what Article 1 says, or add something that it does not contain. I have set out the definition of a refugee. There are no two categories; the definition is very simple.

I am no lawyer, and here I am surrounded by eminent, terrifying legal expertise—even including the noble and learned Lord, Lord Clarke of Nottingham; as his former private secretary, I am horrified to see him there—but the definition of a refugee, and of our sin in this Bill, from the UNHCR and the law societies, must be right, because I cannot see how 147 countries would have signed up to the convention if they had thought it meant what the Government now say it means. Four in every five refugees are in developing countries adjacent to their country of citizenship. Would host countries have agreed that guests should never move on, and that they should be required to apply for asylum only in their first host country? Would the developing world have agreed that the developed world could wash its hands of the problem of looking after refugees because they were going to have to stay in the first safe country they reached on fleeing over a frontier? I do not think so. It plainly was not what those who signed up to the convention thought it meant, and the attempt to have an expansive reading of Article 31 and so change the meaning of the convention as a whole, in particular Article 1, looks quite a legal stretch. I agree with our Constitution Committee, the law societies and, importantly, the UNHCR.

I feel for the Minister, because the case she is asked to make on the legal position and the convention seems as eccentric and unconvincing as the claim of the noble Lord, Lord Frost, that you can extinguish the role of the CJEU in Northern Ireland by using Article 16 of the Northern Ireland protocol. I will stay away from the law—this is a rash foray—but I will stick with the UNHCR, the law societies and the conventional reading of the convention, which is how 146 countries still read it, and say that we really need to get rid of Clause 11.

[Baroness Hamwee (LD)]

My Lords, Clause 11 is the most objectionable clause in this whole objectionable Bill. It has to go, and not just because of what the convention says, our having signed and supported it and so on. It is not just because there is a convention but because the convention is right. However, we have to pick at the Bill. We will have the debate that the noble Lord, Lord Kerr, has started us off on so well on Report, but this is our opportunity to see whether there is any give in the Government’s position and whether there is anything we can, quite bluntly, take apart on Report in a way we have not yet thought of.

My noble friend Lord Paddick, the noble Lords, Lord Rosser and Lord Blunkett, and the right reverend Prelate the Bishop of Durham have indicated their objection to the clause standing part. Had we been able, under the procedures of this House, to add more than four names, I think there would have been a very long list.

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

[Lord Hylton (CB)]

My Lords, in very few words I would like to welcome and support Amendment 40, moved by the noble Baroness, Lady Lister. I do so from the experience of asylum and immigration Bills over the last 20 or 30 years, and for the reason that what used to be known as the Medical Foundation, and is now called simply Freedom from Torture, has repeatedly pointed out the necessary delay before people who pass through traumatic experiences are willing to reveal what has happened to them. To do so, they need relationships of trust and confidence with those with whom they are dealing. So if, perchance, Clause 11 survives in some form or other, I hope that the principles of the noble Baroness’s amendment will be somehow incorporated.

[Baroness Hamwee (LD)]

My Lords, this will not be the last time we talk about the need for a trauma-informed approach. I think the expression “necessary delay”, used by the noble Lord, Lord Hylton, is very useful and applies much better to this situation than “without delay”, which is what we are faced with.

Even without the background and experiences referred to in this amendment, I cannot imagine undertaking the sort of journey that most people fleeing from the situations they are in will have undertaken. Any asylum seeker will be in a pretty awful state. Many will be anxious about authority figures. It is incumbent on us to ensure that they are not retraumatised. We should not require them to present a coherent explanation and make a claim so quickly.

The noble Lord, Lord Hylton, talked about the possible survival of Clause 11. I would add Clause 36 to that. I do not think this provision can be read without looking at Clause 36, which deals with Article 31 of the convention. Clause 36(2) says:

“A refugee is not to be taken to have presented themselves without delay”—


“presented themselves” is the phrase used in Clause 11—

“unless … they made a claim for asylum as soon as reasonably practicable after their arrival in the United Kingdom.”

I do not think it is necessary to read the whole clause.

I hope the Minister can explain how, in practical terms, given the life experiences that we are suggesting, “present” and “make a claim” relate to one another. Does making a claim

“as soon as reasonably practicable”

mean presenting the substance of a claim? If I read these two clauses correctly, we now have “presenting oneself” and “making a claim”. Failure, under Clause 11, to present not just oneself but one’s claim takes one straight into the territory of late evidence and all the horrors of criminality and second-class status.

[Baroness Ludford (LD)]

My Lords, I will speak very briefly. The remarks by the noble Baroness, Lady Neuberger, made me reflect. She was talking about how it takes a year, 18 months or two years for the people whom she has met in the course of her admirable-sounding charity, to be able to fully open up and explain themselves. This makes me think how similar this is to grief. For asylum seekers who have been forced to flee everything that is familiar to them—their home, country, family and links—and arrive in a strange place, this is a form of grief and bereavement.

I am not the only person in this Chamber who has suffered a relatively recent bereavement. I would not say that I have fully recovered after a year, 18 months, two years—even two and a half years. Indeed, I never will be. Given the disorientation and the inability to fully function, a year, 18 months or two years is not wide of the mark for how long you need to get your act together to handle an asylum claim.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

I thank noble Lords very much for their support for this amendment—their willingness to apply some lipstick to the pig that I think we would all like to be rid of. Some very powerful speeches made the case very strongly for why the groups which are listed may well have good reasons for delay. I take the point that any asylum seeker is, by definition, likely to be vulnerable, but we are talking here about those who have particular vulnerabilities.

I thank the Minister for giving more of a sense of what will happen. It is late and I need to read what she said, but I think that the powerful speeches from noble Lords and the Minister’s response justified our taking this as a separate amendment. As I have said, it was not interrogated in the Commons; this has given us a chance to do that.

I thank the Minister for saying that she will look into the statistics—it was I, in fact, who raised it; I think Women for Refugee Women would value having whatever statistics are available. However, just last week, the British Red Cross produced research suggesting that, for all the better training and guidance, women asylum seekers are still treated very badly, with a lack of gender sensitivity and trauma sensitivity. I would encourage the Minister to read this research, think about it and see what more needs to be done.

[Baroness Hamwee (LD)]

I apologise—I was not quick enough to my feet. I wanted to get in before the noble Baroness withdrew her amendment to ask the Minister if she might be able, after today if not tonight, to answer my question about how Clauses 11 and 36 work together. That could inform our debate when we get to that later clause. Again, I apologise to the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

There is no need—I am glad that the noble Baroness said that. I had made a note to mention it and then, of course, completely forgot or could not read my handwriting, or both. Anyway, it is late, and I realise that people want to get on. I beg leave to withdraw the amendment.

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

[Baroness Williams of Trafford (Con)]

I understand the noble Baroness’s point. I cannot go beyond saying there are no current plans, but I can think further about the point she is making and perhaps give her more detail on it, if she will allow me to do so, but that is as far as I can go. She might be further comforted by some of the things I am going to say about vulnerability, et cetera.

[Baroness Hamwee (LD)]

My Lords, if the Minister is coming on to that, perhaps I should sit down, because I was going to stress welfare as distinct from safety.

[Baroness Williams of Trafford (Con)]

That is what I am going to come on to, if noble Lords will accommodate me—no pun intended—for a short period of time.

Whether an accommodation centre is suitable for individuals who share the characteristics listed in the amendment will depend on a number of factors, including their personal circumstances and vulnerabilities and the facilities available at the particular site or area. This goes to the points made by both noble Baronesses.

I now turn to Amendments 58 and 59, which seek to limit stays in accommodation centres to 90 days. The amendments attempt to disapply a key part of Clause 12. One of the aims of Clause 12 is to enable wider flexibility to ensure that individuals are supported in accommodation centres for as long as that form of housing, and the other support and arrangements on-site, is appropriate for their individual circumstances. We intend to provide vital services and support co-located within accommodation centres. Reducing individuals’ access to these vital services by restricting them to a 90-day stay would not be acting in their best interests.

We do not think Amendment 60 is necessary because we are not proposing to use the power in Section 36 of the Nationality, Immigration and Asylum Act 2002, so there is no need to amend it.

Moving to Amendment 61, I would like to thank the noble and learned Lord, Lord Etherton, for his contribution to this debate. The Home Office is already required to provide accommodation to destitute asylum seekers and failed asylum seekers in a way that is consistent with the European Convention on Human Rights and the requirements in the Equality Act 2010. Our policies also recognise that we need to take account of the individual’s safety and welfare—to take the point from the noble Baroness, Lady Hamwee—in considering the type of accommodation that is suitable for them.

There are no plans to use accommodation centres to house all asylum seekers. I slightly wondered whether there might have been some conflation with that in today’s debate. Some will be identified at the outset as unsuitable for that type of accommodation, and some will need to be moved out of the centres as new issues emerge. All individuals in the asylum support system have access to an advice service from Migrant Help, a voluntary sector organisation that we fund for this purpose, and are able to put forward reasons and evidence why they need a particular sort of accommodation.

Moving to Amendment 62, I need to be clear on this. As my noble friend Lord Horam said and my noble friend Lord Hodgson of Astley Abbotts asked, accommodation centres are being set up to provide housing and other support for those who require it because they would otherwise be destitute. The judges mentioned by the noble Baroness, Lady Kennedy of The Shaws, may not in certain circumstances need this type of accommodation; I am not making a presumption, but they may not. These are not detention centres, of course. Individuals are free to move out of the centres if they can obtain their own accommodation, for example through friends or family.

--- Later in debate ---

It is also possible that other conditions may be imposed that require the individuals to be present at the site at certain times. That might be because they need to attend an interview to help determine their asylum claim or facilitate their departure from the UK if their claim has been rejected. This is important because one of the key objectives of using the centres is to speed up asylum decisions by placing casework facilities on site; that really goes to the point made by the noble Lords, Lord Alton and Lord Green. In other circumstances, the individuals will be able to leave the centres during the day if they wish, for example to access medical services or for personal reasons.

[Baroness Hamwee (LD)]

The point was made very clearly that these centres should not be places of detention. I was waiting for some assurance that the ability to come and go would be recognised. The Minister has just said that people will be free to leave if, for instance, they need to go and do something specific. To me, that sounds very different—it may just be a trick of the language—from an assurance that these will not be places of detention subject to specific allowances to leave for specific purposes.

[Baroness Williams of Trafford (Con)]

I repeat that these are not detention centres. There may be specific conditions—for example, if an asylum seeker needs to attend an interview about their claim, they will be required to be there—but they are not detention centres.

--- Later in debate ---

This is a very modest amendment and I find it depressing that the Home Office continues to resist it, but hope springs eternal, so I beg to move.

[Baroness Hamwee (LD)]

My Lords, I am glad to have my name to this amendment. I am aware—to use the rather odd language of this House—that lunch-hour business is to come, although neither “lunch” nor “hour” is accurate. I could just use the first line of my notes, which reads “Lister—double tick.” I will say only a very little more. Joining up 28 days, 35 days and 56 days does not take a genius—and even if it did, it has been proven by experience that it does not actually work.

I am looking to see whether there is anything the noble Baroness has not said. In terms of integration for the individual, the family and the community, underlying this amendment is not just support for the individual but the importance of self-sufficiency—this is quite similar to the previous debate—as a component of integration, and not being dependent on the state. Integration and contribution to community and society go hand in hand.

I have one further point. The Minister mentioned the charity Migrant Help in a previous group. As I understand it, it can give advice; that is not the same as providing dosh—the funds that are needed. That seemed to be the implication in that debate. However, I congratulate the noble Baroness, Lady Lister, on her persistence. I am glad to continue to be one of her terriers.

[Baroness Jones of Moulsecoomb (GP)]

Am I a terrier as well? I think of myself as a larger animal, but a terrier will do. There is almost nothing left to be said. I am delighted to have my name on this amendment. The noble Baronesses, Lady Lister and Lady Hamwee, have said virtually everything, but I would like to say a couple of things.

In spite of our rather uncertain economic situation—if anyone from the opposing side wants to say that it is all terribly healthy, a Radio 4 programme more or less corrected that conceit yesterday; we have a slightly unhealthy economic situation, and it is not as good as people in the Government claim—we are still a rich country. We ought to show a little more generosity to people who have lost virtually everything, not to mention the fact that we have often caused the instability that forced them to leave their homes. Whether it is Afghanistan, Syria or other countries, when we have sold weapons, invaded or, as I have said before, used fossil fuels to the extent that we continue to do, we have destabilised many countries throughout the world. We have a moral obligation to behave better and take in refugees. This amendment is worthy of acceptance.

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

[The Lord Bishop of Durham]

My Lords, very briefly, my deep concern is that the Government’s proposal virtually rules out us ever being the first safe country in which to arrive, simply because of our geography. That is the fundamental problem I have with the whole proposal, because it feels like we are removing ourselves from being a front-line nation in receiving people. I believe the Minister does not actually think that, but this would be the impact. We need to strike these clauses out.

[Baroness Hamwee (LD)]

My Lords, my name is to a number of amendments in this group—including Amendments 69A, 71A, 71B, 73A and 73B—and they all come from the UNHCR. I had written down not “guardian” but “steward”, but it comes to the same thing—that is, stewardship of the convention. I am not suggesting for a moment that I would be happy—or that it would be happy—to see these clauses remain in the Bill, and I hope I am not too much in “lipstick on pigs” territory, but given that the UNHCR of all bodies has proposed these, I think it right that I speak to them, and I will do so reasonably quickly.

The UNHCR has reiterated that the Bill is fundamentally at odds with the Government’s avowed commitment to uphold the UK’s international obligations under the convention, and its long-standing role as a global champion of supporting and protecting refugees. It has reminded us that three safeguards are essential to any inadmissibility rules. First, they must not operate in a way that denies the fundamental right to seek and enjoy asylum, which is another way of saying a good deal of what has already been said. Secondly, they must protect rights under international law during the refugee process and once a refugee has been recognised. Thirdly, the aim should be to increase access to asylum globally. Clause 15 does not meet those tests; in the interests of time, I will not go through why.

The amendments in my name are to prevent the UK breaching international standards. They would mean that a safe third state must be safe in law—I should put that first—but safe in practice, and that a claim must be considered under the Immigration Rules, not as an optional matter; they broaden the circumstances in which the Secretary of State must consider the application and reduce the risk of an asylum seeker being sent to a country which is not a signatory to the convention and does not respect the rights of refugees under international law. The “connection” would be what most people would regard as a connection in ordinary language, and they define a “relevant claim” as a claim for protective status consistent with the convention. On Tuesday there was a lot of discussion about the importance of the convention as a matter of morality and, very importantly, as law. These amendments relate to both.

On the issue of formal returns agreements, to which the noble Lord, Lord Rosser, referred, Amendment 195 would require a returns agreement before regulations were brought into force. I agree with that but with the condition that the agreements were acceptable. The amendment perhaps begs the question: I would like to think that it would be possible—it would be proper—for Parliament to have a role, which it will in an international agreement, and that amendments that are thought by Parliament to be required are made, so that the agreement is not just imposed.

[Lord Paddick (LD)]

My Lords, there are lots of issues here, but I start by making an overarching comment. A decade or more ago, the Home Office was dealing with many more applications for asylum than now. I am talking about initial decisions, not appeals. It was dealing with them more quickly and more effectively; the backlog was lower; and the successful appeal rate was lower. I try to be a “glass half full” person and usually fail miserably—but enough of my problems. Let me put it this way: the Home Office has proved in the past that it can deal efficiently and effectively with many more asylum applications than it is facing today. The fix for the current problems lies in the staffing systems and processes of our Home Office, not in the legislation or the number of asylum applications.

I have said it before, and I will say it again: the Government are focusing on the wrong things in the Bill and doing nothing to address the things that need to be addressed. This group of amendments is about unfairly and unreasonably reducing the number of asylum applications rather than increasing the capacity of the Home Office to handle them effectively, as it has proved it is capable of doing in the past.

Clause 14 proposes that all claims for asylum from EU nationals must be ruled inadmissible and that, as it is not a decision to refuse a claim but a decision to refuse to consider a claim, there be no right of appeal. A claim can be considered in exceptional circumstances, but the examples given are where the EU state is at war and has suspended the European Convention on Human Rights, or is going off the rails to such an extent that the EU itself is taking action against it for not complying with the standards of human rights expected of a member state.

These exceptional circumstances do not go far enough, as the noble and learned Lord, Lord Etherton, said. We have seen EU states fail to act or take sufficient action to protect minorities. He mentioned Hungary. In 2020, six Polish cities announced LGBT-free zones. It may not necessarily be the case that an EU state, or even a municipality within an EU state, is overtly persecuting minorities, but failing to protect some minorities may make it unsafe for them to be in a particular state and as such may amount to grounds for asylum in the UK. Surely Home Office officials can determine whether any application for asylum has merit, whoever it is made by and whatever part of the world the applicant is from, without blanket bans of this kind in primary legislation. Amendment 68 from the noble and learned Lord, Lord Etherton, would be useful if the clause survives, but Clause 14 should not stand part of the Bill.

Another category of claim the Government want to rule as inadmissible is where the claimant has a connection, however spurious, with a safe third state. It just smacks of: “Let’s invent lots of excuses for rejecting someone’s asylum claim, however far-fetched they may be.”

In relation to the other amendments, if the clause remains part of the Bill, of course a safe third state must be safe—and that means safe for everyone, including minorities. It means that their rights will be protected and that the asylum system is compliant with the refugee convention. Of course the Home Secretary should not be able to remove a genuine refugee to any safe third state—to dump them anywhere in the world, whether they have any connection with that state or not.

On what planet does the following make sense? You establish some kind of connection between an asylum seeker and a safe third state, but you cannot send them there because you do not have a return agreement with that state. However, you still refuse to consider their application for asylum. So what are they supposed to do now?

Another amendment seeks to prevent the following scenario: even if the refugee has family in the UK, they could still be deported to a safe third state—“Sorry, lad, I know your parents are here but you’ve got a connection with Turkey because your grandparents are old and frail and could only make it that far, so off you go”.

The conditions for establishing a connection with a safe third state—we have seen this sort of thing before—look like an awayday board blast, where there are no wrong answers and anything you can think of is uncritically written on a flipchart. Can “Well, we think you should have made a claim elsewhere” seriously be a reason an official can give to rule a claim inadmissible, with no right of appeal?

Clauses 14 and 15 should not be part of the Bill, and we will support the other amendments only if those clauses remain.

I was going to speak to Amendment 76, which seeks to override

“all prior national and international law”,

but there is no one here to speak to it, so I shall decline.

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So, will the Government at least change “will” to “may”? These are some of the problems and some of the concerns that we have and that, no doubt, other noble Lords have in the amendments that they have put forward. In seeking to solve their asylum problem, once again the Government’s objective seems to be to penalise the victims. It is an unacceptable way forward. The late compliance provisions fail to recognise the reality of life for many fleeing persecution, war or famine. Once again, the Government have been found wanting in protecting the basic human rights of people in this country and beyond.

[Baroness Hamwee (LD)]

My Lords, we have Amendments 78, 79, 80, 81, 82, 82A, 82B, 86A, 86B, 90 and 90A in this group. I have also put my name to Amendment 95A along with that of the noble Baroness, Lady Lister. I do not know whether she is planning to speak to it—it is the amendment tabled by the noble Baroness, Lady Coussins—but its thrust certainly falls within this group. Noble Lords will be pleased to know I am not going to speak precisely to each amendment.

I am slightly hesitant to raise this point, given the expertise of the noble Lord on the Front Bench and the noble and learned Lord sitting opposite, although it feels as if I have been sitting next to him through most of the passage of this Bill. Listening to the last exchange, is it something to do with the whole of our legal system that we place asylum seeker on one side opposite the state as the other party? The whole way this is designed is to have parties to proceedings fighting one another. I am glad to see the noble Baroness, Lady Chakrabarti, nodding at that. It has only just occurred to me.

This clutch of amendments addresses the period within which the claimant is to provide evidence. I hoped that the noble and learned Lord might be speaking ahead of me because I am sure I would be saying I agree with him. Why is the specific date a matter for the Secretary of State or the immigration officer? Different people will need different periods of time. That might be an argument for variability, but it should not mean that it can be an arbitrary date without there being a reasoned basis. The lawyers in the Chamber will tell me if I get this wrong, but I think one would usually expect to see time periods within tribunal rules with a possibility of applying for an extension, but the procedure rules are the subject of the next clause. I am concerned about whether this is a proper way to go about giving notice. It should be neutral and objectively appropriate, and Clause 17 gives the Secretary of State considerable power.

Under the new subsections introduced by Clause 18, the tribunal is required to make a statement as to whether the claimant has behaved in a way designed or “likely” to go to his credibility. When we tabled Amendments 82A and 82B, I was thinking about points noble Lords made and will make again and again about the impact of trauma on a claimant, and the difficulties someone may have—even someone who is not affected—in dealing with authority figures, accessing documents and so on. This point was very clearly made by the noble Baroness, Lady Neuberger, a couple of days ago. That is why I stress the word “likely”.

This gives me the opportunity to ask the Government why Clause 18 is included. It would be good to have that on the record. Others may have a different take on the reasons for some claims having taken the course they have.

In my Amendment 86A, I am not really seeking to amend the noble and learned Lord’s Amendment 86, just to add to it by requiring adequate time before a cut-off date in a priority removal notice. Amendment 86A would add more of the people about whom we have been concerned to the list; the same point is made on Amendments 90 and 90A.

I also have Amendment 86B in this group. I got into quite a circular argument with myself last weekend about this. I am not sure I resolved it, but I will not trouble the Committee with it this evening, given the time.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 95 in the name of the noble Baroness, Lady Coussins, who apologises for having had to leave early. This speech will be in two halves—although one will be rather bigger than the other. The first half is roughly what the noble Baroness would have said.

At Second Reading she spoke about the ways in which she believes this Bill places additional unacceptable barriers in the way of women refugees seeking asylum who are fleeing sexual violence and exploitation. The amendment seeks to remove one of those obstacles and to extend the benefit to other groups of asylum seekers who may be similarly disadvantaged, so that it is accepted that they have a good reason for a late claim.

As we understand it, the issue is that in the proposed legislation the authorities deciding an asylum claim or appeal are instructed to attach, as we have heard, only minimal weight to any evidence provided late by the applicant, unless there is a good reason for it being late. However, there is robust evidence to show that the trauma suffered by the victims of sexual violence or trafficking can impact on memory and the ability to recall information. The Home Office guidance itself makes this clear. The other categories she included in Amendment 95, such as victims of torture, modern slavery and trafficking, are just as likely to suffer the same effects on memory and should be protected in the same way. I strongly support what she would have said.

However, as the arguments from this perspective are very similar to those I made in support of Amendment 40 on Tuesday, I will focus on children, a group we have not talked much about so far, although I was very pleased that my noble friend Lord Coaker did so in introducing this group. It is the strong view of children’s organisations such as the Children’s Society—I am grateful for its help—that the Bill completely fails to protect children, a group in particular need of it. Despite recognition of this added need for protection, this Bill’s harsh reforms apply to children just as they do to adults, unless the Minister can tell me that I am wrong—I hope he can. This is not right; it is a serious failure of the Government’s duty to protect children.

We need only look at Clauses 25 and 17 to see the disproportionate impact many of these provisions will have on children and young people. Amendment 95 seeks to ensure that children are recognised as having a good reason for not providing evidence by the deadline and that any evidence they provide late is given due weight. We know from organisations on the ground that asylum-seeking children who have been forced to flee, who may have witnessed violence and the destruction of their homes or schools, or even death, and who may have endured traumatic journeys, might not be able to share all the details of their ordeal in the first instance to provide evidence to support their case. The particular difficulties children might face in providing prompt evidence are recognised by the JCHR.

The Government know this. Their only quality impact assessment, to which my noble friend referred, sets out how these clauses will have a disproportionate impact on vulnerable persons, including children. The Home Office’s Children’s Asylum Claims Casework Guidance makes it clear:

“Decision makers must take account of what it is reasonable to expect a child to know”—


or relay—

“in their given set of circumstances”.

It is inappropriate for authorities to question the credibility of a child’s claim if they omit information, bearing in mind the child’s age, maturity and other reasons that may have led to those omissions. Requiring time-limited evidence and penalising children when they are unable to meet the deadlines goes against the Government’s own assessments and guidance and does nothing to protect children or, as we have heard, their best interests.

As one young person supported by the Children’s Society, which has long supported asylum-seeking children and young people, reminds us:

“This is not a joyful moment in our lives. We have to talk through the worst parts of our past. It is very traumatic.”


Children and young people need time and a sense of safety before they can begin to disclose their experience. They also need good, child-appropriate legal representation, which we know they often do not get, unfortunately. All too often, asylum-seeking children receive poor initial legal advice, which can lead to ill-prepared claims and to them not feeling comfortable about setting out their information. Due to legal aid funding cuts, quality legal advice is not readily available.

Another young asylum seeker supported by the Children’s Society described his experience:

“My solicitor did nothing, it was horrible. They didn’t even prepare a witness statement for my interview. I had to do everything myself. I had my social worker but she didn’t know how to help me with my asylum case. The interviewer told me she had no information and I had to tell her everything.”


The Children’s Society sees many asylum-seeking children who have to provide evidence at later stages of their claim, not because of any weakness in the claim but because of the trauma they have endured or the consequences of non-existent or poor legal representation. No doubt the Minister will assure us that these concerns will be addressed in guidance and on a case-by-case basis, yet, as was highlighted in the recent report, An Inspection of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed that they

“did not have time to consider each case on its own merits, contrary to the guidance they receive.”

So the aim of Amendment 95 is not to tie the hands of decision-makers or legislate for every situation in which a person might provide late evidence. Rather, it is to ensure that the most vulnerable are protected in the Bill, because we cannot leave their safety and well-being to chance. That is consistent with this highlighted observation from the JCHR:

“It is crucial that decision-makers recognise the many legitimate reasons why asylum seekers may struggle to provide evidence in support of their claims within tight deadlines.”


If Clause 25 stands part—I have to say that I will support the proposal that will be put by my noble friend Lady Chakrabarti that it should not—this amendment represents the minimum necessary to protect children, women, women fleeing gender-based violence and others in the most vulnerable circumstances.

I want to return briefly to what the noble Baroness, Lady Coussins, said. Given the Home Office guidance, we cannot see any logical or humane reason why the Government would not accept this amendment and establish on the face of the Bill that, in these circumstances, for these victims, any late evidence should always be accepted as being late for a good reason, and their application or appeal should not in any way be disadvantaged because of it.

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[Baroness Hamwee (LD)]

My Lords, I have put my name to the proposal that Clauses 22 and 23 should not stand part of the Bill. When I first saw the term “expedited appeals”, my antennae twitched. It sounds such a benign and helpful term but then so did “detained fast track”—the accelerated process for considering asylum claims introduced in 2002, involving detention immediately after the asylum screening interview, which was followed shortly by the substantive interview, with a decision the following day and two days to appeal. The High Court found that the DFT, as operated, carried

“an unacceptably high risk of unfairness”

to vulnerable or potentially vulnerable applicants, and to that extent it found it to be unlawful, and the Home Office eventually suspended it. Expedited appeals are not the same but some of the issues are really quite similar.

As we have been discussing, the Bill of course provides for priority removal notices to be served on anyone liable for removal or deportation; we have discussed the cut-off date for the provision of evidence. However, it does not set out the factors that may lead to a PRN being issued. That is left solely to Home Office guidance. I support what the noble Lord, Lord Coaker, just said about needing to see guidance—but only so far because guidance, by definition, can be changed and although we may be reassured in February 2022, come February 2025 things might look quite different, with the same Government or another Government producing rather different guidance.

Listening to the previous debate, I was concerned that for an appropriate date to be set, the Home Office needs to know whether somebody is vulnerable, but it will know that only after the event of the notice. I understand the difficulty of trying to start without a starting point, which is the point that the Minister was making. Without a date, you cannot look further, but the extension of that is important. I found it quite difficult to follow all that. I am mentioning it now because it is part and parcel of the same issue and certainly Hansard will require careful reading.

The PRN will remain in force until 12 months after the cut-off date or exhaustion of appeal rights. We have talked about whether or not there is a principle. Clause 22 provides for an expedited appeal route for appellants who have been served a PRN and have made a claim on or after the cut-off date but while the PRN is still in force. In that circumstance, the Secretary of State may “certify”—an interesting term in itself—that any right of appeal against a Home Office refusal will be to the Upper Tribunal instead of the First-tier Tribunal. The Secretary of State can also certify that she or he is satisfied that there are good reasons for making the claim on or after the date. I cannot think of an alternative to what is probably an inappropriate term about being judge and jury in your own case, but I think noble Lords will understand what I mean.

The result of an appeal being certified is that one tier of appeal—the First-tier Tribunal—is lost. Under the Bill, the rules must provide for expedited appeals in the Upper Tribunal to be determined more quickly than an ordinary appeal in the First-tier Tribunal and allow for the Upper Tribunal to make an order that the expedited appeals process may—I stress “may”—not apply

“if it is satisfied that is the only way to secure that justice is done in the case of a particular expedited appeal”.

When someone is subject to the expedited process, Clause 23 provides that any other appeals they may have, for instance

“in respect of protection and human rights claims … deprivation of citizenship … EU citizens’ rights”

and so on, are dealt with as a related expedited appeal.

Ousting the jurisdiction of the Court of Appeal, and so prohibiting an appeal from a first-instance decision, is clearly a significant matter. It would give no one the right of appeal to the Court of Appeal and, necessarily, not to the Supreme Court afterwards either. As we have discussed, the appeals concerned involve international protection rights, human rights, European Union and EEA citizens’ rights and the deprivation of citizenship, all areas where the UK has bound itself to abide by international agreements. For such a fundamental right as the right not to be sent back to a country where one is at risk of persecution to be excluded from an onward appeal to the Court of Appeal—even if the decision of the Upper Tribunal contains an error of law or a breach of natural justice—is extraordinary. This is not a criticism of the Upper Tribunal in any way; it is just not how things should be done. Removing Clauses 22 and 23 would leave the existing appeals structure in place.

How will one challenge Upper Tribunal decisions if these clauses stand? My noble friend made a caveat about the use of “constitutionality” but I think that it applies here, as well as on the impact on the rule of law. The Constitution Committee of your Lordships’ House said in its report:

“The House may wish to consider the effect of clause 23 on the functioning of the appeals process and consequently on access to justice.”


That is quite strong stuff for a Lords committee.

[Lord Paddick (LD)]

My Lords, I apologise but, in the war of attrition that this Bill has become, we seem to have lost any contributions other than from the Liberal Democrats and the Labour Front Bench.

Bearing that in mind, I will add to what my noble friend said rather than repeat anything she said. This clause smacks of the Home Office trying to remove or deport people before they have had a reasonable chance to appeal against a removal or deportation decision. No doubt it is embarrassing when repeated stories emerge of government charter flights taking off almost empty because the courts ruled that the majority of those with a seat on the plane should not be deported, but the answer is not to deport them before they have a reasonable chance to put their case before the courts. The answer is to improve the efficiency and effectiveness of the Home Office to ensure that there is a cast-iron case for deportation that cannot be overturned in the courts at the last minute. Yet again, the Bill focuses on the wrong solution to the problem.

I am sure the Minister will agree that as the Home Office becomes better at making its decisions and more and more appeals are turned down, as opposed to the current situation where the majority are accepted by the tribunals, there will be fewer appeals as lawyers say to their clients “Look at what’s happening now. There’s absolutely no point in appealing.” That is the answer to this problem, not Clauses 22 and 23.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, as I said in an earlier group, the noble Lord, Lord Dubs, who is the lead signatory of these amendments, could not stay so I am moving our amendments in this and the last group.

Clauses 65 and 66 amend LASPO—the Legal Aid, Sentencing and something Act—to allow for people already in receipt of legal aid for an immigration, asylum or human rights claim, under the exceptional case determination procedure, to receive legal aid advice in relation to a referral into the national referral mechanism, whereby they seek a positive reasonable grounds decision as a potential victim of slavery or human trafficking.

However, these provisions help only victims who already receive legal aid and know how to ask for it. It does not cover all victims. Exceptional case funding for legal aid is very difficult to secure in practice, so Clauses 65 and 66 will help only a small number of people, not least, as the Anti-slavery Commissioner has noted, because it requires a lot of time-consuming work up front to get that exceptional case funding and the solicitor is paid only if the application is successful.

The Joint Committee on Human Rights supports the request of the Anti-slavery Commissioner that legal aid advice of seven hours—or preferably more, as my noble friend’s Amendment 94A probes—should also be available to those in receipt of a slavery or trafficking notice in the same way as for those in receipt of a priority removal notice, to avoid victims of severe trauma remaining unidentified and unassisted. The Joint Committee on Human Rights, like others in Parliament, as I know from these Benches, has also repeatedly expressed its concern about legal aid deserts, but that is a wider debate. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendment 94A in this group. I am sorry that I could not respond to the Minister on the previous group, but I am sure we will come back to that. I was going to observe that the Chamber seemed largely to have cleared, possibly because other noble Lords could not bear this Bill any longer today, but some noble Lords have rejoined us.

It is clearly better that legal aid is available than not, but I am aware, as my noble friend is, of the shortage of provision and some of the problems here. I would say that it is not a matter for today, but actually it probably is. It is very significant, because the words in the Bill will not provide the advice. The Minister has referred two or three times very confidently to the legal aid offer; we are concerned to ensure that that offer has substance.

I have heard over the years of the difficulties of solicitors—if you can find one—advising and taking instructions in immigration removal centres, with the restrictions there on time, of 30 minutes eaten into by the client having to be fetched and then returned. I do not need to say again, but I will in one sentence, that the client often needs a lot of time over a period to tell his or her story.

My amendment seeks to understand how the Government have landed on seven hours. The Minister gently chided me for the use of the term “arbitrary” before. I will acknowledge that my proposal of 20 hours is arbitrary, but it is my way of probing why the Bill provides for seven hours. I asked ILPA whether that would be sufficient, and the reply was:

“I do not think seven hours of legal aid is sufficient to advise on the notice, the person’s immigration status, the lawfulness of removal, and immigration detention. The immigration system is complex, and the Bill makes it more complex through the expedited processes, priority notices, and new definitions/standards … It is also of concern”


that the Bill

“would allow a power to alter that 7 hour time limit.”

There must have been evidence for coming to the seven hours. If that is so, what evidence would the Minister apply to reduce that figure—or indeed extend it? ILPA says it does not

“have a sense as to the specific number of hours needed for this advice, as it would be so case-specific,”

which is entirely understandable,

“including the immigration and procedural history of the case, novelty of any legal arguments, number of bases on which to raise a claim, the legality of detention”

and so on. So I hope that the Minister can flesh out this provision in the Bill so we can understand what the Government think can be achieved with the seven hours of scarce legal aid.

[Lord Paddick (LD)]

My Lords, we support the amendments in the name of the noble Lord, Lord Dubs, for the reasons my noble friend Lady Ludford has explained. As my noble friend Lady Hamwee has explained, Amendment 94A is not to replace one arbitrary number with another but to probe how much legal aid should be provided in such cases. The Minister described, in a previous group, how cases are of different complexity and how people will be given more time to secure and collate evidence if they are from a vulnerable background. For example, if they come from an LGBTQIA background, they are less likely to be able to acquire evidence quickly, and therefore, the date on the notice they are given would change even during the process. Surely that points to the fact that each and every case is different and will require a different amount of legal aid, depending on how much aid is needed to advise in each particular circumstance. I understand that people who are in this situation do need legal aid, but surely the number of hours should be as case-specific and flexible as the deadline date of any notice for them to submit their evidence.

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[Lord Wolfson of Tredegar (Con)]

The noble Baroness must have had access to my notes, because that was just the point I was going to make. I have written down here that I know the Committee will ask about individuals who are not receiving legal aid for their protection or human rights claim—and sure enough, the Committee did. My answer is that there could be multiple reasons for an individual not receiving legal aid in those circumstances. The individual might not have passed the means or merits test, and those two tests, as the Committee will know, are there to ensure that legal aid is targeted at those most in need who cannot afford advice themselves. That is one possibility, and I will come back to that in a moment. Another possibility—and this does happen—is that the individual has just made an application to the Home Office by themselves and has not sorted out a lawyer. If so, I would strongly encourage them to seek out a legal aid lawyer, who would be able to provide more than the seven hours of advice that could be provided.

Turning to Amendment 94A, the short answer to why we have specified up to seven hours in Clause 24 is that a balance must be struck between giving free legal advice and using taxpayers’ money responsibly. Seven hours is intended to reflect that this is an opportunity for initial legal advice to help individuals understand what the notice is and what it is requiring them to. It is available on a non-means-tested and non-merits-tested basis. That means that anyone with a PRN is guaranteed access to legal aid for up to seven hours, but it does not mean that, after seven hours, there is no further access to legal aid. Some individuals will need further advice; it is not intended that seven hours will resolve every immigration issue. At the end of the seven hours, any individual who has an issue within the scope of the legal aid scheme and who passes the means and merits test will be eligible for ongoing legal advice funded by legal aid until the matter is resolved.

I am conscious that that gets us into the territory of means and merits tests. I answered an Oral Question in this area on Tuesday, when I said that there was a review of the means test under way at the moment, on which I have personally spent a lot of time. I hope very much that we will soon be able to go out for consultation on that. We are conducting a really thorough review of the means test.

Finally, I will address the noble Baroness’s concerns that the exceptional case funding scheme might not be up to standard. Respectfully, I disagree. That scheme is specifically designed to act as a safety net and to provide legal-aid funding to individuals who can demonstrate that, without it, their human rights might be breached. In 2019-20, of the immigration cases that applied for exceptional case funding, 80% were granted legal aid, so that shows that the system works. We are continuing to work with legal aid practitioners and the Legal Aid Agency to improve the scheme if we can.

For the reasons that I have set out, I hope that the noble Baroness, speaking also for the noble Lord, Lord Dubs, will be content to withdraw the amendment.

[Baroness Hamwee (LD)]

Before my noble friend responds, could the Minister at least acknowledge that it is not just a matter of hours? It is a matter of the difficulties of finding a legal aid lawyer and the very clear existence of legal aid deserts and so on? Even when it is not a desert, there are difficulties which are, to a very considerable extent, related to the terms for the lawyers themselves. I do not know whether it ever occurred to the noble Lord that he might pursue a career in legal aid; he probably felt as guilty as I used to, when I was in practice as a solicitor, that my firm did not do legal aid, or at least it gave up doing it. That is partly because you need to specialise in legal aid, as well as the subject that you are dealing with, and that is very difficult for a lot of lawyers. It has led to two classes of lawyers, and that is a very bad thing.

[Lord Wolfson of Tredegar (Con)]

The noble Baroness’s question is quite broad. She knows that we have had a number of discussions about legal aid, which will continue. I did not do much legal aid in my practice. I do not want to advertise from the Dispatch Box, but my brother-in-law is one of the finest criminal legal aid solicitors in London—I am sure that no one here will ever need his services, but he is absolutely brilliant, none the less.

More seriously, I am very conscious of the need to make sure that people have access to a lawyer with the relevant skill set, because a general right to legal aid is not much use if you cannot find a legal aid lawyer—I absolutely appreciate that. On Tuesday, I explained some of the efforts that we are making in this area. To say any more now might trespass on the Committee’s patience, but I am obviously well aware of this point.

Nationality and Borders Bill

Baroness Hamwee Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name is to the opposition to Clause 29 and the other clauses mentioned in this group as well. Of course, opposing Clause 29 is a consequence of opposing the other clauses, all of which, we say, should go. I have written down “clauses on interpretation”; the term “laundering” had not yet occurred to me, but I follow the point about the interpretation or laundering of the refugee convention. The overall point, as I say, is that they should all go.

On Second Reading, I described it as perverse to use domestic legislation to impose an interpretation of an international convention. Since then, at earlier points in this Committee, we have heard much more powerful, analytical, legally informed responses, and, though I am speaking before the contributors to whom I am referring, I think I would be much better following them—that is not intended to be at all disrespectful to the Minister, nor indeed to the very experienced lawyer from whom we have just heard. The humanitarian arguments have been very well put, but the short point I took away from an earlier day is inarguable. We are party to the convention: it is our law; it is well-established law. If we were to leave the convention—which, of course, I am not advocating—that would be another matter. But we have not left it, and I hope we are not going to.

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[Lord Alton of Liverpool (CB)]

My Lords, I add my voice to those of the noble Baroness, Lady Jones, my noble and learned friend Lord Brown of Eaton-under-Heywood, and the noble Baronesses, Lady Hamwee and Lady Chakrabarti, in saying to the Minister, for whom I have considerable respect—I know of his own track record in the area of international law and the upholding of human rights—that beyond the legal arguments that have already been put to him is the reputational damage to this country, not least because of international issues, some of which he will be aware of.

Anything that we do to dilute our commitment to the 1951 convention on the treatment of refugees—any unravelling or unscrambling of our commitments—is to be deplored. I will give two examples to the Minister. I co-chair the All-Party Parliamentary Group on North Korea and am vice-chair of the All-Party Parliamentary Group on Uyghurs. In the case of North Korea, we, the United Kingdom, will regularly raise with the People’s Republic of China the refoulement policy of sending North Koreans from the PRC, to which they have escaped, back to North Korea, knowing that terrible things, including executions, will happen to them when they are sent back—a clear dereliction of the commitment to which the PRC signed up in the 1951 convention on the treatment of refugees.

In the case of Uighurs, Turkey is presently considering sending back Uighurs because of an agreement that it has reached with the People’s Republic of China. Everyone in your Lordships’ House—notably the noble Lord, Lord Anderson of Ipswich, who is in his place; he raised this issue with me as recently as last week, in another debate—is well aware that there are 1 million Uighurs in detention centres and camps in Xinjiang, and we know of terrible atrocities that have occurred. Our own Foreign Secretary has said that a genocide is under way. In that context, for any country, and in the case of Turkey a NATO country, to be sending people back, again in violation of its duties in the 1951 convention, seems to be deplorable. However, the United Kingdom can hardly start lecturing others not to do these things if we ourselves are going to unscramble and diminish the importance of the 1951 convention.

I suppose that, as a post-war baby, I have maybe too much admiration for what was not entirely a golden age, but think about all the things that were put in place at that time: everything from the Marshall aid programme to the 1948 Universal Declaration on Human Rights, with its 30 articles that set out our rights on an international basis, and the 1948 convention on the crime of genocide. Given all those things that have been put in place, we should think extraordinarily carefully before we do anything to diminish or dilute them. That is why I hope the Minister will give proper consideration to the interventions that he has heard so far—I am sure he will—and, between now and Report, see what more we can do to ensure that we do nothing to diminish the importance of the 1951 convention.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that it is, as he says, about more than our reputation and not being able to lecture or set a good example to others? It enables others to point to us.

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[Baroness Ludford (LD)]

The Minister keeps saying that each state will define the refugee convention, and he alluded to the EU qualification directive; there is also the procedures directive. I declare an interest, as I worked on both directives as an MEP. Of course, that was an attempt not for each state in the EU to do its own thing but to have a collective set of laws which interpreted the refugee convention in detail and, as far as I know, complied with it. That prevented each country doing its own thing in a potentially destructive way.

[Baroness Hamwee (LD)]

I have an associated point, to save the Minister bobbing up and down too much. I entirely take the point about non-political crime. I just wanted to make it clear that I was referring only to that bit of the Bill when I mentioned the case. I was not suggesting that it was the prompt for the whole of this part. But can the Minister explain more about the impact of our leaving the EU? Does that give us a legal opportunity, or is this happening because it is a convenient political point in the calendar, as it were?

[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.

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[Lord Green of Deddington (CB)]

I shall go on to Amendment 113, which deals with unaccompanied minors. The main effect of this amendment would be to put a considerable number of children in serious danger. As drafted, it applies only to children already in the EEA, but it would obviously be a major incentive for families now outside the EEA to pack their children off to Europe in the expectation that they could go on to the UK. The amendment is also widely drawn to include nieces, nephews, grandchildren, siblings, spouses—all from families that are very large in any case.

We have seen how opening this route would encourage minors to make dangerous journeys. In 2016, when there was talk of the UK taking significant numbers of children, the numbers of unaccompanied children literally doubled overnight. That is according to evidence given to the relevant parliamentary committee by the Home Office director responsible in December 2021. We have to consider the wider consequences of this, to which may be added the difficulties already facing the authorities in correctly assessing the age of those claiming to be children. We have discussed this before in Committee and we know that, in the last available year, 1,100 persons claiming to be children were found to be adults. This amendment is dangerous and unwise, and should not be accepted.

[Baroness Hamwee (LD)]

My Lords, I have been encouraged to say a word—it was only going to be a word, but it will be a few more now—in support of my noble friend Lady Ludford. I am pleased that she has taken on this cause. I am not seeking to analyse every one of these amendments, but they are about protection in every sense of the word, which is what the right reverend Prelate the Bishop of Durham was saying. I applaud the Government for enabling the reuniting of some families, but I am thinking about those who have not been reunited, where there are problems.

I had a similar experience to the noble Lord, Lord Dubs, in a meeting with Brandon Lewis and a battalion of officials, when I remember being told that the rules are quite adequate—but they are discretionary.

We have been asked by the noble Lord, Lord Green, to think about the real world. The real world is not just in the UK. One of the aspects of children being alone in the UK is the cost to local authorities, which can be very substantial when children are here by themselves. One needs to include a number of factors when balancing the question of costs.

I would like to echo whoever it was who pointed to the importance of siblings being able be together. A child or young person—frankly, anybody coping with the experience of being a refugee—needs the support of family. A sibling can be such a support to a child; I have heard siblings speak of this. These amendments have my support.

[Lord Paddick (LD)]

My Lords, I pay tribute to the noble Lord, Lord Dubs, for his tireless work on family reunion, born out of his own personal experience. I also pay tribute to my noble friends: my noble friend Lady Hamwee, who ran the first leg with her Private Member’s Bill, before handing over to my noble friend Lady Ludford.

It is better for families to be together, not just for their own welfare but so that they can look after each other, as my noble friend Lady Hamwee had just said, rather than being looked after by the state. We strongly support Amendment 112. Amendment 113 would provide a mechanism for those unaccompanied refugee children who had reached an EEA country and who have a family member in the UK to be reunited with that family member. Amendment 114

“would require the Government to produce a negotiating mandate to seek reciprocal arrangements, with other states, on safe returns and safe legal routes.”

I am guessing that would be something akin to Dublin III. Amendment 117 from the noble Lord, Lord Dubs, would change the Immigration Rules to allow people currently in Europe to come to the UK to seek asylum—effectively be given a visa—if they have a family member in the UK. This is a subset of my noble friend Lady Hamwee’s Amendment 118 in the next group. We support all these amendments.

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I will leave it to the noble Baroness, Lady Chakrabarti, to deal with Amendment 119A on emergency visas, but I say simply that I associate myself entirely with the motives that underlie it. I have accompanied the noble Baroness, Lady Kennedy of The Shaws, to a number of meetings with Afghan judges, journalists and other human rights defenders, and the case being made for that amendment—comparing it with what goes on already in countries such as Canada—is well worth examination. I certainly commend it to the Committee.

[Baroness Hamwee (LD)]

My Lords, I am sure this was not at the top of his list, but the noble Lord, Lord Alton, has reminded us of the role of the arts in this area. Artists, playwrights and others could express better than the rest of us what they feel, and audiences could perhaps get a wider and deeper understanding of the issues involved. The area of arts and culture is hugely important in this.

Earlier this evening the noble Lord, Lord Wolfson, said that we will continue to grant humanitarian protection, and Amendment 118 seeks to extend that to a humanitarian visa. I will explain it as quickly as I can, because what is most important is that we hear what the Minister has to say. If it is a “Sorry, no”, we need to understand why. I express my gratitude to Garden Court Chambers for drafting this amendment, which spells out the requirements and the process.

The amendment seeks to provide an exceptional route by which a person abroad—not in this country—can obtain a visa to come to the UK to seek asylum. At the moment, it is generally not possible to claim asylum in the UK unless one is already here. This visa could be applied for from anywhere in the world. The person would have to show that, if made in the UK, the claim

“would have a realistic prospect of success”,

and also that

“there are serious and compelling reasons why”

it should be considered in the UK. In assessing that, the entry clearance officer would take into account the extent of the risk of persecution or serious harm—persecution having the meaning that it has in the UN refugee convention, and serious harm meaning treatment that, if it occurred in the UK, would be contrary to Article 2, the right to life, or Article 3, the prohibition of torture and inhuman or degrading treatment or punishment, of the European Convention on Human Rights.

If a humanitarian visa is granted, the person will be granted a visa—I stress that—of at least six months’ duration. The Home Secretary could set conditions such as restricting access to work. On coming to the UK, the person will be deemed to have made an asylum claim and will go through the normal asylum process like any other asylum seeker, so the normal processes would not be sidestepped. There would be a full right of appeal, which is Amendment 119.

I have written down the words “Controlled and organised process”. Those working in the sector have long advocated humanitarian visas, which would be one of a suite of safe and legal routes. The humanitarian visa route would not be something that many could take advantage of, but it is significant and structured.

I will leave that there; as I say, the Minister’s response is more important tonight. However, on Amendment 119A, I will say that I was not surprised to see it. The noble Baroness, Lady Kennedy, never misses an opportunity to buttonhole someone who might assist the women judges, other lawyers and others in Afghanistan. What she is seeking is only temporary, in the same way as a humanitarian visa would be. It is one thing to get people out of the country when they are at risk—she has had the most extraordinary success—but it is another to find somewhere for them to go.

[Baroness Jones of Moulsecoomb (GP)]

I will not repeat myself—well, I am going to repeat myself just briefly. If the Government saw refugees as human beings, they would already have written these amendments into the Bill. We are pushing at a closed door at the moment. We should be taking more refugees and creating more safe routes.

I have a word of warning, which is that there will be many climate—ecological—emergencies over the next decade or so and, given that we have contributed a large part of the world’s accumulated CO₂ emissions, we have to understand that we have a moral duty to take our share of climate refugees. It is already happening. There are parts of Africa that are now almost uninhabitable because of climate change, and other places will shortly follow. We have to understand that refugees are not a temporary problem but a permanent problem, and there will be a lot more. If we prepare well and put the programmes and the funding in place, we can cope and do it well. However, while the Government treat refugees as criminals and unwanted people, I am afraid that I see this simply as another reason why the Government have to go.

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[Baroness Hollins (CB)]

My Lords, Amendments 119C and 119D propose a code of practice for professionals involved in the assessment and care of people seeking asylum. Refugees and asylum seekers often have complex health needs influenced by experiences prior to leaving their home country, during transit or after arrival in the UK. Common examples include untreated communicable diseases, accidental injuries, hypothermia, malnutrition, poor maternity care and inadequately treated mental illness. These are made worse by the barriers to assessment and treatment that they face right from their arrival in the UK to the conclusion of the process and beyond. One common risk factor for poor health and well-being among this community is trauma. This may be the very trauma that they are fleeing from, the trauma of the journey or the psychological distress of overcrowding, the lack of privacy and the absence of culturally appropriate community support upon their arrival.

The World Health Organization reports double the rate of depression and anxiety in a humanitarian crisis; that is worth noting. Mental illness can influence the ability of asylum seekers to present their claims in a coherent way. The assessment of credibility is a fundamental aspect of the asylum decision-making process, and the decision-making immigration officer needs information to make their decision but they may be faced with a person with symptoms associated with a mental disorder and the psychological effects of trauma, such as memory loss, an inability to express or even feel emotions or profound guilt and shame at what they have experienced. Such trauma, which disproportionately affects women, may also lead to a reluctance or delay in disclosure that can negatively affect the application, as already highlighted in Amendment 40, moved by the noble Baroness, Lady Lister of Burtersett.

The current government policy, as set out in the guidance on adults at risk in immigration detention, centres on indicators of vulnerability, including persons suffering from a mental health condition or impairment; victims of torture; those who have been a victim of sexual or gender-based violence; those who have been a victim of human trafficking or modern slavery; and those suffering from post-traumatic stress disorder.

Once a person has been identified as having an indicator of risk, the “adults at risk” policy identifies levels of evidence for that risk. The level of evidence is used as a measure of the degree of risk, which is then weighed against a range of immigration factors when making decisions regarding the immigration process, particularly the detention of the person. However, the Royal College of Psychiatrists has raised concerns that people with significant mental illness may have difficulty in being effective self-advocates or may lack a full appreciation of the extent of their own vulnerability. They may lack the mental capacity to make decisions relating to their immigration situation. Many do not have access to a robust assessment process or, if identified as lacking relevant capacity, to a system designed to safeguard them or advocate for them in their best interest.

The Helen Bamber Foundation says that in its experience persons with significant mental illness, as well as those with evidence of past torture, sexual gender-based violence and those with PTSD, are being detained despite their mental-health-related vulnerability. The assessment and identification of mental health problems requires appropriately trained staff in a facilitative environment as well as close multidisciplinary working.

For some, the treatment of mental illness will require specialist trauma-focused therapeutic support. I am told that this is not happening in existing facilities, such as Napier Barracks. It is intended that through these amendments the mental health, mental capacity and physical health of asylum seekers would be assessed and considered properly on arrival and throughout the asylum claim processes, and that the treatment and care of asylum seekers would be sufficient to ensure their health and well-being by standardising and regulating a process that would apply to numerous agencies, public, independent and third sector.

The Secretary of State said in the other place that the Bill will increase the fairness of our system so we can better protect those who are in genuine need of asylum and continue to strengthen our proud record of supporting those in need. The amendments seek to support the Government in achieving just that. I beg to move.

[Baroness Hamwee (LD)]

My Lords, my name is on this amendment. The noble Baroness, Lady Hollins, knows whereof she speaks, so I shall not attempt to do more than support her. To me, this is a matter of professional judgment, which she has brought, but also of common sense. What I hope is my common sense has been informed by what I have heard over quite some years, including, very significantly, in the debate that we had last week. It is clear that in the UK—it may in this context be England and Wales—the systems, if they can be called systems, for assessing the health needs of asylum seekers are patchy and often inadequate.

It is also common sense that assessment should start from a solid, informed base, incorporating the best, up-to-date understanding and experience, so a review is important. So is consultation with those who are expert in the field. I support the amendments.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments, to which I was pleased to add my name. I thank the Royal College of Psychiatrists and the Helen Bamber Foundation for their help.

Many of us have already highlighted how provisions in this Bill will seriously harm the mental and physical health of people seeking asylum, through, for example, leaving group 2 refugees living in limbo with uncertain status or by placing people in vulnerable circumstances in accommodation centres that function as quasi-detention and have been shown to have a terrible impact on health.

The amendments are a positive step that aims to ensure that the physical and mental health needs of people seeking asylum are prioritised and that there is a comprehensive, co-ordinated approach to addressing those needs in line with our obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966 to

“recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

Numerous reports and work by organisations such as the Helen Bamber Foundation, Freedom from Torture, the Royal College of Psychiatrists and the Equality and Human Rights Commission show that people seeking asylum face barriers in accessing services, including health services, throughout the asylum process, from their arrival in the UK to the conclusion of the process and beyond. They are also more likely to have specific healthcare needs caused by distressing experiences in their country of origin and traumatic experience during their journey seeking refuge.

As the noble Baroness, Lady Hollins, explained, there are numerous points in the asylum system where the physical and mental health of people seeking protection affects their ability to engage in the process or is worsened by the system we have in place. One particularly troubling example is the detention system, which the noble Baroness has talked about and is the subject of a later group of amendments—I shall scrub what I was going to say about that, given the lateness of the hour.

I am aware that the Home Office is currently engaging with the NHS, NGOs and other stakeholders through groups like its asylum seeker health steering group and associated subgroups. This is welcome, but much more is needed. The current guidance is inadequate and its implementation patchy. Codes of practice focused on the health and care of people seeking asylum and the responsibilities of all those engaging with them in the asylum system would not only increase the fairness and efficiency of the system but provide better protection and support to those in need of asylum.

I hope that the Minister will look kindly on these amendments, which I think are part of the solution.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have taken part in this brief debate. I thank the noble Baroness, Lady Hollins, for her amendments, which would insert two new clauses concerning the introduction of codes of practice to underpin the Secretary of State’s approach to identifying physical and mental health needs in the asylum system. It may assist if I clarify why the Government believe that these amendments are unnecessary.

Asylum seekers are already entitled to access medical services, including those related to mental health, that are provided by the NHS, in the same way as British citizens and other permanent residents. The Home Office provides accommodation and subsistence support to all asylum seekers who would otherwise be destitute, but medical services—including those related to mental health and trauma—medical assessment and treatment are provided by the NHS. At every stage in the process, from initial arrival to screening, and to the substantive asylum interview, our approach is to ensure that the healthcare needs and vulnerabilities of asylum seekers are identified and taken into consideration where it is appropriate to do so. We ask a broad range of questions —in answer to the noble Lord, Lord Rosser—in the screening interview to establish a claimant’s needs, including any vulnerabilities or well-being needs. Claimants have signposted to them additional sources of support and advice as appropriate. Where any safeguarding concerns are identified, the Asylum Safeguarding Hub will look to make referrals to relevant bodies and signpost relevant organisations to the claimant.

As I say, where needs are identified we ensure that there is access to professional care, and assessments are conducted by professionally trained healthcare providers. While the Home Office clearly considers it vital to safeguard all aspects of asylum seekers’ health, the responsibility for assessing health issues rests with the statutory agencies of the NHS and social services. Therefore, we do not believe there is any need for further regulation in this area. Asylum seekers have every opportunity for their needs to be identified. The standard of care they would receive as a result of those needs is identical to that received by a British citizen—we should all, at this point, pay tribute to the work of the NHS. Therefore, I ask the noble Baroness, Lady Hollins, to withdraw her amendment.

[Baroness Hamwee (LD)]

Before the noble Baroness responds, it may be that this amendment could be worded to put more emphasis on the guidance of those who come into contact with asylum seekers, rather than just assessment. Does the Minister accept that this is a very specialised area? Without for a moment being critical of the NHS, I suggest that that specialism needs to be recognised and learning from it made available to those who come into contact with the cohort we are discussing.

[Baroness Hollins (CB)]

My Lords, I cut my speech rather, because of the time, and I feel that maybe I did not manage to explain adequately. These are people with complex health needs. They are not just like any other patient in the NHS. They have had very difficult experiences and have difficult mental health needs. It is difficult for them to try to explain about their trauma to the first interpreter or the first person assessing them that they meet. This is something where it often takes years for people to trust sufficiently to be able to explain the impact on their situation, their circumstances, and their life chances. This is not just having an assessment and a conversation. It is about building a relationship of trust when people have experienced the most terrible circumstances. That is the difficulty.

I will give one quick example. One still very troubled lady, whose asylum claim was successful, described her claim and subsequent requests for ongoing support as “seriously retraumatising”. The paperwork that she received was confusing and negative in tone, with any success hidden somewhere in the small print. She asked, “Why do they do that to me? Why can’t they communicate with me? Why should I struggle so much? I feel like I’ve been through another fight”. This lady feels like giving up, despite the fact that her claim was eventually successful.

These amendments seek to see people treated fairly, compassionately and with more skill and understanding, so that they have the best hope of healing and settling in the UK. I thank noble Lords who have supported these amendments. I hope that the Minister will think again and accept the spirit of what I have proposed; otherwise, I and others will bring these amendments back on Report.

I beg leave to withdraw my amendment.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support the noble Baroness, Lady Ludford, in what she had to say, but I would like some clarification. She said clearly that the effect of this clause is to criminalise the act of seeking asylum in the UK, which was the conclusion reached by the JCHR, of which she is a member. Does the Minister agree with the conclusion that this is what Clause 39 means? If she does not agree, what does it mean? If she does agree, I have a conundrum that is a variation of what the noble and learned Lord, Lord Etherton, has twice rehearsed now. He made the point that if an asylum seeker is deemed inadmissible, how do they even get to Clause 11 to be affected by the differential?

I have the same conundrum around criminalisation. If the very act of seeking asylum makes someone a criminal, how do they even get to Clause 11? I do not understand how Clause 11, inadmissibility and criminalisation interact with each other. It is rather late to go into this but, if the Minister cannot do it now, a letter to all the members of the Committee would be very helpful to clarify this interaction.

[Baroness Hamwee (LD)]

My Lords, the fact that I am going to say that I could not agree more with my noble friend Lady Ludford and will not add to that should not be taken to reduce the strength of that view.

I added my name to Amendment 122 from the noble Baroness, Lady McIntosh, for the reasons she explained. After I did, I realised that there is a question to be asked about new subsection (E1), which makes it an offence for someone knowingly to arrive in the UK without an ETA, an electronic travel authorisation; I would say that it would be the same to enter, but I am not sure it would be possible to enter the UK without an ETA.

I feel very uncomfortable about new subsection (E1) which makes it an offence to do something under the ETA rules when we do not have those rules. The ETA is not in effect yet. Your Lordships may think it right, when we see what the scheme is, that an offence be created—but not at this stage.

[Baroness Bennett of Manor Castle (GP)]

My Lords, like others, I entirely agree with the noble Baroness, Lady Ludford. I have to put it on the record that it is now 11.04 pm and we are debating major legal innovations with massive consequences.

I want to ask the Minister just one question. Let us imagine a person caught in these circumstances, who has gone on a small boat, been intercepted by the Royal Navy and brought to shore, arrived in the UK and put in jail for four years. That person is very likely from a country in a state of turmoil to which it is utterly impossible to return them for any conceivable time in the future after their four-year jail term. How does the Minister imagine the fate—the life—of that person proceeding from the point they walk out of the jail doors?

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

[Baroness Prashar (CB)]

My Lords, I am grateful to the noble Lord, Lord Coaker, for introducing these amendments with such clarity and conviction and to the noble and learned Baroness, Lady Butler-Sloss, for her passionate plea for the Government to have another look at these clauses. What I am going to say will repeat the points that they have made, but I think that they are worth repeating because they are serious concerns.

One of the main concerns of all those working with victims of modern slavery—NGOs, police, prosecutors—is Clause 58. It is humbling when you talk to those working on the front line to hear of the compassionate way in which they work with victims of trafficking. I have listened carefully to their concerns and I think that the Government should pay heed. I urge the Minister to talk properly to those working on the front line with these people.

Clause 58 will have the devastating effect of damaging the credibility of victims of modern slavery if they fail to disclose their trafficking experience within a set framework. The UK, as we have heard, is seen as a world leader in tackling modern slavery. We need to build on that experience and the achievements gained over the last few years, not undermine victims by starting from a position of disbelieving them and then requiring them to prove otherwise. That would be regressive. It would breach the Council of Europe Convention on Action against Trafficking by putting the onus on victims to identify themselves and removing the state’s obligation to identify victims and investigate trafficking offences.

Clause 58 will deter victims from coming forward, reduce the number of successful prosecutions and police investigations and leave the most dangerous criminals free. It is for this reason that the police and prosecutors have voiced their concerns. The Government’s own NRM supporter, the Salvation Army, which has held the victim care contract for over 10 years, has expressed grave concerns. Most worryingly, children are not exempt. That will be a significant setback for the achievements of the Modern Slavery Act and children protection legislation. As we have heard, the conflation of immigration with victims of trafficking, particularly children, is beyond comprehension. This clause goes against experience, undermines a legal principle and displays a complete lack of understanding. As we have heard, both Sara Thornton, the Independent Anti-slavery Commissioner, and Theresa May—rightly, compliments have been paid to her—have expressed concerns. This clause should not stand part of the Bill.

To tackle the problems that Clause 58 is designed to resolve requires operational, not legislative, change. The clause goes against the Government’s own aims. It will push victims away from support, hamper efforts to track down trafficking gangs and likely reduce numbers of prosecutions. What is needed is the improvement of the NRM, reductions of delays in decision-making and better funding. I am not clear how a set framework will help with abuse and I am not aware of any data published by the Government to illustrate misuse of the NRM. Perhaps the Minister can explain how a set framework will help and what evidence, if any, the Government have about the level of abuse.

The Government argue that this measure will help to ensure that victims are identified as early as possible to receive support. Speeding up the process is in everyone's interest, but I am not sure how the clause will help. The probing amendment of the noble Lord, Lord Coaker, which I support, would add a list of good reasons for late disclosure to Clause 58. There needs to be clarity in the legislation that the notice period can be extended. It needs to be stated clearly that there are circumstances when a late disclosure should not be penalised.

With regard to children, will the Government publish a children’s rights assessment and draft guidance before Report? As the noble Lord, Lord Coaker, said, we need that in the Bill.

[Baroness Hamwee (LD)]

My Lords, I have added my name to the opposition to both Clauses 57 and 58. The Minister will understand by now the view that has been expressed, with no exceptions, that the Bill does not advance our world-leading work to support victims of modern slavery and is a retrograde step. No one would say that all the work that is needed has been done. There is a lot of learning going on and it has to go on, but the Bill does not advance that work at all.

The noble Lord, Lord Coaker, asked why the Government are doing this. This had not occurred to me before but maybe it is the pervasive culture of disbelief raising its head again. I am glad that the debate on Part 5 was opened by the noble Lord and the noble and learned Baroness, both of whom I feel I should refer to as my noble friends; I have been hanging on to their coattails in this area.

I am going to say very much less than I could today. Part 5 merits—if that is not too positive a term—a whole day’s debate at least, but I, too, am aware of the pressures on time. Being constrained in the scrutiny of a Bill to which so many of us are opposed, pretty much across the board, is particularly concerning. I must investigate the procedures for moving to leave out a whole part of a Bill on Report. This is so shaming because this part of the Bill affects people whom we are so keen to support and protect.

Reference has been made to late information. I am going to give a couple of examples, both of which cases I have some particular knowledge of, not because I think that they will come as news to most people in the Chamber but because there are many of our colleagues who are not aware of all this. I refer to two victims. The first is a learning-disabled man who worked on a farm for decades in the most appalling conditions, conditions that are difficult to read about. He was not able to leave but did not even think he ought to try to do so because he did not know where else he might go. He even referred to his falling-down insanitary shed as home. The second is a young woman, who, in speaking to the police, could not get beyond the fact that in her head the perpetrator was her boyfriend. Sadly, those are both common situations. I will leave the matter there.

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[Baroness Butler-Sloss (CB)]

My Lords, for the reasons given by other speakers—particularly the last speaker, with whom I profoundly agree—I support these amendments. However, I want to raise a slightly different point on Clause 59. It appears to apply to children. I have had, over the years, numerous meetings with the Home Office, and I thought we had got to the position where the Home Office agreed that the NRM was not the right place for children to go, because anyone under the age of 18 becomes immediately, on arrival in this country, the responsibility of a local authority under Part 3 of the Children Act 1989. Consequently, local authorities take over these children.

As the Minister, the noble Lord, Lord Wolfson, pointed out, there are these independent guardians—advocates, who act as guardians—but the children are supposed to be cared for by a local authority with an independent guardian and should not be going through the NRM. What disturbs me about Clause 59, in addition to the points that have already been so ably made, is whether it is really intended that the Government want children to go through the NRM. Should not they in fact all be dealt with entirely through local authorities, with the help of the advocate?

[Baroness Hamwee (LD)]

My Lords, my name is to Amendment 157. This is a rhetorical question, but is not it interesting that the noble Lord, Lord Deben, who, if I am right, was not able to be here for the first group of amendments, has made points that were not rehearsed in his presence but are exactly the same points, as he says, from the point of view of the best traditions of Conservatism?

Clause 59 again prompts the question: why, and what is the problem? What is the evidence for what the Government perceive as a problem? Are there too many people claiming to be victims? Like other noble Lords, I thought the problem was that we do not know how many there are. We try to identify them, but we know that we do not manage to identify them all—but we know that all the indicators are that modern slavery goes wide and deep. The problem is that we do not identify everyone that we want to support. What underlines the Modern Slavery Act is getting people to the situation in which they can be supported.

Under Amendment 157, the Member’s explanatory statement actually refers to “current statutory guidance”, a point that was very well made in the previous debate.

I want to say a word about Amendment 173, on navigators. I am quite intrigued by this—guardians for adults, is that what is intended? Some police forces have a much better understanding of how to deal with victims, or possible victims, of slavery. I am not sure whether I have the name of this right, but I think that there was a transformation unit; the noble Lord, Lord Coaker, may remember. The police did a lot of work at one time. Can we hear about that from the Minister?

[Baroness Butler-Sloss (CB)]

I may be able to help the noble Baroness—it was at Exmouth. I went to see it.

[Baroness Hamwee (LD)]

Indeed, it was excellent. That is why I raised it—because I wonder what has happened to it. As I say, I find the suggestion made in Amendment 173 intriguing, and I hope that it will be taken very seriously.

[Lord Coaker (Lab)]

I rise briefly to say that we support the amendments in this group. I say to the noble Lord, Lord Deben, as the noble Baroness, Lady Hamwee, said, and we have said right across the Chamber, the points that he made about the contribution that Theresa May made—within the coalition Government, as I was reminded—were fantastic.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

The noble Lord shrugged his shoulders, but I repeat that the justification for this is to align with our international obligations with our partners in ECAT.

[Baroness Hamwee (LD)]

My Lords, this did not stop us passing the Modern Slavery Act, which was ahead of the rest of the world.

--- Later in debate ---

In opposing Clause 62, I am not suggesting that people should not be held responsible for their actions. They should, but as a society we have responsibilities too and one of those is to break the way in which modern slavers operate. Creating a two-tier system of victimhood will, I fear, strengthen it.

[Baroness Hamwee (LD)]

My Lords, my name is on Amendment 160A, which is from these Benches. I fear that we are rather in lipstick on pigs territory—a phrase used a good deal earlier in our deliberations on the Bill. Clause 62 refers a “threat to public order”, which is then explained as various terrorism offences. It says that the list is not exhaustive, and I recognise what the Minister, the noble Lord, Lord Wolfson, said about how non-exhaustive lists are dealt with in the courts and that the longer lists are, the more rigorously they are dealt with. Our amendment refers instead to a threat to national security.

My noble friend Lord Paddick also has his name on the Clause 62 stand part notice and mine is on Amendment 169. I do not want to take the time of the Committee by repeating what has been said, very clearly, about activity “attributable” to being a victim of slavery or trafficking.

In the previous group of amendments, the Minister referred to an ability to recollect. I think, from other things he has said, in a sympathetic manner, he would agree that very often there is also, among victims, an inability to express—it is not just the inability to recollect. It might be worth saying—I am not sure it has been said before—that there is even more difficulty than in disclosing that one has been a victim of forced labour in disclosing that one has been a victim of sexual exploitation.

I agree with others about words such as “worthy” and “unworthy”. I noted “deserving” and “undeserving” —here we are again—like “deserving” and “undeserving” refugees and asylum seekers; that distinction is replicated here.

[Lord Dubs (Lab)]

My Lords, again, as a member of the Joint Committee on Human Rights, I shall speak very briefly. I should say how much I appreciate the contributions made by my noble friend Lord Coaker, by the noble Baroness, Lady Ludford, who is on the Joint Committee with me, and by the noble and learned Baroness, Lady Butler-Sloss, in her very powerful remarks.

Many years ago—if I may tell a little anecdote—I heard of a certain conversation that took place in the Home Office when an official was told by her boss to justify a certain position. The official said, “But that is indefensible”. Her boss said, “Yes, of course—defending the defensible is easy. You’re paid to defend the indefensible”. I say that as a word of comfort to the Minister, who is defending the indefensible. He knows it, we know it and the officials know it—and I suppose he has to do it, unless he does what the noble Lord, Lord Agnew, did and decides to distance himself from it.

I will say this very briefly. I find it hard to remember, and keep needing to remind myself, that we are talking about Part 5 of a Bill about modern slavery. Some of these issues are so remote from the rest of the Bill, as has already been said. The amendments to which I have put my name are concerned about a number of things. One is public safety and security. The amendments seek to get the right balance between public safety and security, which of course is important, and the rights of individuals who seek safety in this country. I contend that the Government, particularly in Clause 62, have got the balance quite wrong.

As the right reverend Prelate has already said, some of the people who are victims of traffickers or slavery are under threat; they are fearful, and the fact is that some of them at least will have been compelled to take up the position that they have taken up. We should respect that. These are frightened and anxious people, who are not secure and who do not know this country at all well. They may have been in this country for some time, or they may not have been, but they do not feel all that secure. We have to be sensitive to their situation, and I contend that what the Government are doing in this section, particularly in Clause 62, is to show insensitivity to some very vulnerable people—which is why I hope they will get rid of this provision, which does not make any sense at all.

--- Later in debate ---

Perhaps before I sit down I should say that it may not be possible for me to hear the Minister’s response as I have to be back in Northern Ireland this evening and the time on my boarding pass is getting closer by the second. I apologise in advance if that is the case.

[Baroness Hamwee (LD)]

My Lords, my noble friend Lord Paddick has his name to Amendment 170. I know that he—I join him in this—is always pleased to have an opportunity to support the noble Lord, Lord McColl of Dulwich. Given that we are now past 4 pm, which, in the terminology of this House, was to be the lunch hour, I will not say anything more on this amendment. I hope that noble Lords can read between the lines.

Similarly, I particularly support Amendment 171A in the name of the noble Lord, Lord McColl, for reasons to which the noble Lord, Lord Alton, referred.

Finally, when I bumped into the noble Lord, Lord Morrow, the other day, I said, “I don’t know what you’re going to say but I’ll support you”. He said, “I thought you would”.

[Baroness Ludford (LD)]

My Lords, we have been quicker than I anticipated but what my noble friend said is true; I must admit that I am starving.

I will speak to Amendments 171 and 172 from the JCHR, in the name of the noble Lord, Lord Dubs. They aim to remove the worst of Clause 64. Leave to remain is important for victims who are vulnerable to destitution and further exploitation without welfare benefits and other entitlements but, according to the anti-slavery commissioner, the number of victims being granted discretionary leave is very low. In 2015, it was 123. In 2019, it was 70. In the first three months of 2020, it was only eight; we do not have statistics for the whole of 2020-21.

Being granted leave can improve mental health by offering stability and thus a chance of recovery, but the equivalent reference to assistance and support in the Modern Slavery Act reads “physical or psychological harm”; that includes social harm. This Bill would put the law out of line with that and raise real doubts about compatibility with Article 14 of ECAT, which uses the phrase

“necessary owing to their personal situation”.

That is wider than what is in Clause 64(2)(a), which is why I commend Amendment 171 to the Committee. I was pleased to hear the noble Lord, Lord Morrow, refer to the JCHR’s report; he also mentioned the importance of family relationships.

Amendment 172 aims to rectify the omission from Clause 64 of any consideration of the best interests of the child so as to make it compatible with ECAT and the UN Convention on the Rights of the Child. I seem to have mixed up my notes; I am sorry about that because I will now go back to Amendment 171.

In a case last year, the High Court held that refusing to grant discretionary leave while a slavery victim’s asylum application was being processed violated Article 14 of the European Convention on Action against Trafficking. It appears that, before amendments were made in the other place, Clause 64(2)(a) included a reference to the victim’s social well-being as well as their physical and mental health. However, it was removed on Report. Can the Minister explain why? Would the Government like to rectify this omission in the Bill regarding personal, situational and social harm so as to make me, the noble Lord, Lord Dubs, and the JCHR very happy?

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

174: After Clause 67, insert the following new Clause—
“Migrant domestic workers
(1) The Secretary of State must amend the Immigration Rules to make provision for the matters the subject of subsection (2).(2) All holders of domestic worker or diplomatic domestic worker visas, including those working for staff of diplomatic missions, must be entitled—(a) to change their employer (but not work sector) without restriction, but must register such change with the Home Office;(b) to renew their domestic worker or diplomatic domestic worker visa for a period of not less than 12 months, provided they are in employment at the date of application and able to support themselves without recourse to public funds, and to make successive applications;(c) to apply for leave to enter and remain for their spouse or partner and any child under the age of 18 for a period equivalent to the unexpired period of their visa and of any subsequent visa;(d) to be granted indefinite leave to remain after five continuous years of residence in the United Kingdom if at the date of application their employer proposes to continue their employment.”Member’s explanatory statement
This amendment would serve to reinstate the rights and protections that domestic workers originally had under the terms of the original Overseas Domestic Worker visa, in place from 1998 to 2012.

[Baroness Hamwee (LD)]

My Lords, in moving Amendment 174, I will leave my noble friends Lord German and Lord Wallace to speak to their Amendments 181 and 183. I received a message asking me to pass on the apologies of the right reverend Prelate the Bishop of Bristol, who signed this amendment; she is in her place, but I suspect that she is going to make a hasty exit at some point fairly soon. She is of course the bishop with safeguarding responsibilities. I have her speech on my iPad; we are not allowed to read out other noble Lords’ speeches, which is a pity because it is much more neatly set out than the rather scrappy notes that I have.

The very unhappy position of some—too many—overseas domestic workers and the appalling situations that many of them are in were explained very powerfully to many of your Lordships during the passage of the Modern Slavery Act. One of the things that remains in my memory is the thanks that we received after the discussion on the Bill, even though we had not achieved the changes that we sought. A number of women who had been treated as slaves and prisoners but who had escaped and have connections with the charities working in the sector, particularly Kalayaan, were very keen to get us all together after those defeats to say thank you and of course to continue the campaign. They presented each of us with a single flower, which felt very significant.

It was a cross-party effort at that time. At the end of the day, we did not succeed in amending the Bill, but the Government commissioned an independent review into the terms of the overseas domestic worker visa to see whether it facilitated abuse and, as a result of that, made some changes to the visa regime in 2016. I am advised that these remain, in practice, ineffectual. The Government accepted in 2015-16 that workers need an escape route and should not be trapped working for abusive employers, so they reinstated the right of workers to change employers, but it is limited to the time remaining on the worker’s visa, which is kept at six months—so in practice a worker has weeks or, rarely, months, but very little time remaining to find new employment. Of course, most employers need the certainty of having someone working for a longer period. Many workers do not have their passports and they cannot demonstrate that they have valid leave, so automatically they fail work checks.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I acknowledge all the points that the noble Lord has made and agree that there is more to be done here. I do not think anyone could deny that. The Criminal Finances Act was a start and there is more to be done in this space, most definitely, but I think I will leave it there. I hope, with what I have said, that the noble Baroness will be happy to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, my noble friends both made very powerful cases. I hope that my noble friend Lord Wallace will forgive me if I make only one comment on his amendment, in fact in response to what the Minister said about banks checking up: I wonder whether the banks check up on the holders of golden visas as often as they check up on noble Lords who are PEPs.

With regard to my amendment, like the noble Baroness, Lady Lister, I ask why we would have been asked to propose this amendment if there were no problem. I regarded the registration with the Home Office as a sort of olive branch, something that might make the Government feel a little more comfortable. The Immigration Rules are not working because there is not the distinction to which she and I have referred.

The noble Lord, Lord Berkeley of Knighton—how is “Berkeley” pronounced? I should know from hearing him on the radio—referred to the financial aspect of this and forcing people into the black economy. It is wider in respect of people who are here irregularly, of course, because it is hugely important. But it is exactly the same as the point made by the Minister that if the situation were changed it would provide a group of people who would be—I wrote it down—a cohort for traffickers, but that is exactly what the danger is now. I am puzzled and disappointed but clearly we are not going to make progress today, so I beg leave to withdraw the amendment.

Amendment 174 withdrawn.

--- Later in debate ---

[Viscount Brookeborough (CB)]

My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie. I had not necessarily thought about saying anything, but she mentioned me in her speech. First, I declare an interest in that we are involved in tourism at home. Secondly, my brother is chairman of Tourism Ireland, a cross-border body that survives on funds from both the United Kingdom and Ireland to market the island of Ireland. Therefore, this particular regulation would make a complete fool of the whole practical implementation of it.

People ought to understand what the border really is—or, in fact, what it is not. We have come through all the Troubles. Before them, we had a border and we had to have certain papers to cross it. Then we all joined the European Union and that side was taken out of it. But then we had the Troubles so, in effect, the border was reinstated, albeit for a different reason. We do not have those border checks now; there is no border under the Good Friday agreement and everything since, including the protocol. That is the way it should be. Whether the noble Baroness and I are supporters of the protocol is neither here nor there; it is about the practical problems raised by this.

Whether tourists from another country cross the border, and who polices this, is of course an issue. In fact, they will not know whether they are crossing it, so it becomes rather ridiculous—on the whole, they do not have a clue. During the Troubles, there was a time when even our own British people—soldiers and police—did not know whether they were crossing it, so they used to draw yellow lines on it so that they knew when they were. A certain part of the population moved the yellow lines, so they still did not know where they were and then there were diplomatic incidents.

I live in County Fermanagh, which is one-third of the border in Northern Ireland. The border does not just affect it in terms of regulations—people cross it not just from day to day but time and time again in one direction or another to do very simple things. I know that you can use euros here if you are pushed, but every shop and business there uses euros and pounds. Therefore, half the time, no one has a clue whether they are in the north or the south, even when they walk into a shop. All the people working there, and of course the ones who are straightforward British or Irish, are not covered by this.

However, a wealth of people who are not British or Irish live and work within a few miles of the border and they do not think twice about it. If you cannot get a plumber very locally—we might get one from further afield anyway—you just ring up the nearest person. We are five miles from the border and he could well be from either side of it, and he might not be an Irish or British citizen.

I entirely support this amendment. I know that what I have said is not technical and I can only be very grateful to the noble Baroness, as we all can, for going into it in such detail because there is very little for us to say, except for the Government to sort it out.

[Baroness Hamwee (LD)]

My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie, and spoken to by other noble Lords. I was grateful, too, to have been briefed by the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. I did not need to be convinced of the importance of local journeys for work, education, health services, shopping, frontier workers and so on. I was lucky enough to be a member of the EU Select Committee of the House during the transition period, when we heard direct from people living and working in Northern Ireland about the concerns which the amendments in this group address.

I want to speak particularly to Amendment 175ZA. The points raised in it apply more widely than to the Northern Ireland/Republic of Ireland border. I certainly do not want to suggest that there is greater concern about criminals in the Republic than at other borders. I am not quite sure why these proposals come to be in the same group but I understand why there is a concern to get through the remaining amendments. The point is relevant to the border and there is a practical problem, as the noble Viscount just said.

My noble friend Lord Paddick is concerned about checks on the criminal record of an individual, now that we are no longer a member of the EU or have access to SIS II or ECRIS. We have to fall back on the Interpol database, which requires specific uploading of information and is not integrated with our police national computer or with member states’ national systems.

The report of the EU Security and Justice sub-committee on post-Brexit arrangements in that area is due to be debated on 25 February. I know that the Minister will deal with the points in the report then. I was going to say that I was sorry to see she does not get that Friday off, but it is never off for a Minister, is it? The points in it are relevant to Northern Ireland.

My noble friend Lord Oates has Amendment 180, which is not in this group, on physical proof of status. This amendment relates to the points that I know he will make and asks the very pertinent question: what happens when the digital system malfunctions? I am normally a glass-half-full person but that is pertinent to everyone, especially at this land border.

I noted, and think it deserves to be mentioned here, that the Constitution Committee of your Lordships’ House has reported in the following terms:

“The House may question why the detail of the Electronic Travel Authorisation scheme introduced under clause 71 is not set out in the Bill.”


It is because the scheme has not been worked up—at any rate not to completion, as I understand it. The report continues:

“If it is appropriate to make such provision in immigration rules, the House may expect it to be subject to a form of affirmative procedure, at least for the establishment of the scheme.”


The committee is saying much more delicately what I said the other day: we should not be expected to deal with criminal offences, as it was that day, arising from the scheme when we do not know what the scheme is. That also applies here.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick and Lady Suttie, for raising this issue, and I think some very good questions have been asked. I have a different question. In the absence of an electronic travel authorisation, are there problems in enforcing immigration, asylum or indeed criminal law? Can we be reassured that there would not be an incentive for people who want to come to the UK to come in large numbers through the Republic of Ireland? That would be my one concern in trying to address the very real issues across the border that have been identified, and which you see in other countries where you have borders—especially where there has been a practice of having no border.

--- Later in debate ---

Moved by

[Baroness Hamwee]

175ZB: Clause 74, page 79, line 7, leave out subsection (3)

[Baroness Hamwee (LD)]

My Lords, the short point that my noble friend Lord Paddick wanted to make, as he generally does, in leaving out Clause 74(3) is that, again, this seems to conflate immigration and terrorism. It extends powers to question people about involvement in terrorism at the border and applies the powers to people being detained under a provision of the immigration Acts, and so on. The objection runs like a thread through the Bill, to so many points. Immigration and terrorism are not the same. Not all terrorists are immigrants. Terrorists who have succeeded in the UK have been British, and if the Government allow, in legislation, the bias implied by the conflation of these two, no wonder others display the same bias. I beg to move.

[Lord Rosser (Lab)]

This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.

I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.

[Lord Sharpe of Epsom (Con)]

I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:

“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”


This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.

There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.

I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.

To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.

I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.

[Baroness Hamwee (LD)]

My Lords, the Minister said there is a deliberate time limit to these powers. I may be reading this wrong, but they apply to

“the period of 5 days beginning with the day after the day on which the person was apprehended”.

It is not five days from entry or arrival. I am not sure whether that would alter those points that the Minister suggested we take into account. But, since we are not even half way through the groups of amendments, I had better just beg leave to withdraw the amendment.

Amendment 175ZB withdrawn.

--- Later in debate ---

Debate on whether Clause 76 should stand part of the Bill.

[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.

Nationality and Borders Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I do not want to take the time of the House other than to say, with thanks for the letter, that I hope the Minister will accept that discretionary registration is qualitatively different from automatic citizenship, which is what we have been seeking, and understand my concern that the letter uses terms such as addressing

“exceptional cases in a flexible and proportionate way”.

This is vaguer than one would wish to see and a situation which I am sure is nobody’s fault but one of those unintended consequences of legislation not aligning.

[Lord Paddick (LD)]

My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.

I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.

In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.

In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:

“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]


However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?

The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:

“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”


and, in brackets:

“(We do not have data on how many actually attempted to register the birth)”.





In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:

“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.


That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.

If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?

If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.

I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.

--- Later in debate ---

[Lord Rosser (Lab)]

Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.

[Baroness Hamwee (LD)]

My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.

[Lord Pannick (CB)]

My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.

Nationality and Borders Bill

Baroness Hamwee Excerpts

Lords Hansard - Part 2 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My apologies; it is getting late.

I am very pleased to support this amendment. When we debated it in Committee with regard to children and families, the Minister said that there were no current plans to place them in accommodation centres but that if a child was destitute and there was a place for the night, she could not say that the child would not be so placed. However, she promised to think further on the points made and I hope that she has been able to do so. I have two reflections which build on what the right reverend Prelate has said.

First, the Minister suggested that a child in a family, who was destitute, might have to be placed in a centre, but given that she told us that such centres were only for people who are destitute anyway, I am not sure how much comfort to take from that. Can she elucidate further please? Can she also confirm that it would only be for a night, or possibly two, that a family would be housed in an accommodation centre as an exception, which was what she implied? Can she give us an assurance that no family with children will be placed in a centre for more than the briefest of time in an emergency?

The Minister also reminded us that unaccompanied asylum-seeking children would not be placed in such centres. As the right reverend Prelate said, it would be good to have absolute assurance to that effect. Can she tell us what will be the position of a child who turns 18? Might they be moved into such a centre at that point? It is impossible to consider this group without also taking into account the fears expressed by many organisations that the age assessment clauses, which we will debate later, could mean many more children wrongly being assessed as adults. Therefore, in practice, unaccompanied children might be housed in such accommodation, which clearly the Government rightly consider unsuitable for unaccompanied children. What safeguards can there be against that? In Committee, I also asked the Minister what assurances she could give us that the use of accommodation centres will be accompanied by more robust screening and protection than exists at present, to ensure that those with particular vulnerabilities are not housed in such centres.

However, no such assurances were given, other than the repeated statement that there will be individual assessment before placement in accommodation centres. None the less, it is clear from various sources of evidence that such an assessment does not exist at present nor is it providing effective screening for those with particular vulnerabilities. Indeed, the APPG on Immigration Detention, of which I am a member, has been told that, despite the June 2021 High Court ruling, there does not appear to be any significant improvement in such assessments. Charities report that people with particular vulnerabilities continue to be accommodated in Napier barracks. Therefore, can the Minister tell us what is being done to improve the assessment process?

Finally, as a fellow insomnia sufferer, the Minister said she would take back the point I raised about the impossibility of sleeping in Napier barracks dormitory-style accommodation because of the constant noise at night. I wondered if she had anything to report on that.

[Baroness Hamwee (LD)]

My Lords, I do not make light of the difficulty of providing accommodation. Batting the blame between central and local government, as is sometimes done, is not going to advance the issue at all. As the right reverend Prelate has said, the debate in Committee focused on Napier. I thought it rather conflated accommodation of asylum seekers on arrival with long-term accommodation. Only a decade ago, my honourable friend Sarah Teather MP—as she was then—achieved very significant change, as a Minister, in both the law on, and the attitudes towards, the care of children with families in detention and subject to removal. More recently, we have had Stephen Shaw’s report on the impact on vulnerable people, and so on.

I accept that the Minister will say that the accommodation in question is reception and not detention. In a way, that is my point. The objective must be to receive people thoughtfully, humanely and in a welcoming and supportive way. Accommodation centres must not feel like detention. There was some discussion in Committee about whether people would be able to leave them—not for specific appointments, but because they felt like going out for a walk. The way that they are designed, organised and staffed is absolutely essential to their good working. The Explanatory Notes refer to “efficiency”. I do not think that this is incompatible with the approach that I have outlined, but they also refer to “compliance” and that worries me more. I wonder why that merits a separate mention.

This amendment demonstrates the concerns of the sector which arise from experience over a long period. I missed signing it by a couple of minutes on the day it was tabled by the right reverend Prelate. However, on behalf of these Benches, we support it.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly to offer Green support for this amendment and to address one specific point and one specific question. The right reverend Prelate, in introducing this, set out how little we know about what is proposed of these accommodation centres, and how much we know of their horrors. In Committee, the Minister and I discussed a particular horror with which I had personal contact during the Covid pandemic.

I also note that there is a continuing situation where the High Court ruled that people in hotels and other accommodation are entitled to £8 a week to meet some of their basic needs. This includes being able to afford a bus fare to attend an interview, or to buy some basic hygiene products. Looking at the list of people who the right reverend Prelate has included in this amendment, it is worth a question here. Imagine being a parent of a child and not ever being able to buy any sort of treat for your child. If the child really wanted some little piece of food, the parent would not be able to buy it. Instead, they would get only what is provided in the three meals a day in the canteen.

I know that we are still waiting for a description of what these accommodation centres are like. Can the Minister confirm, following the High Court ruling, that there will be at least a very small basic payment for people in the accommodation centres so that they can have some kind of choice and some kind of life?

--- Later in debate ---

[The Lord Bishop of Durham]

My Lords, I fully support the amendment from the noble Baroness, Lady Stroud, and my noble and right reverend friend behind me here supports it as well. I will speak to the amendment from the noble Lord, Lord Coaker, and the two amendments from the noble Baroness, Lady Hollins, which I fully support.

We may have 125,000 asylum seekers but let me focus on two. This is why I support both amendments. One is an asylum seeker who lives in my area who heard from the Home Office within the first three weeks of arrival then heard nothing for 12 months, in spite of inquiry after inquiry. That is why we need a code of practice. That is why we need better ways of working. It beggars belief what that says to him about how he is seen in our society and by our society. That is, of course, told time and again.

The second case is an Afghan who came out last summer on the planes and whose family is still in hiding in Afghanistan. Last week they were hunted by the Taliban; they escaped. He sent me through last week the letter he had just received from a Home Office official. It is four lines long, giving him the number that he has been allocated, with not one jot of sympathy about what he might be facing.

I accept that the official will not know or be able to verify the story that I have heard but the processes themselves do not treat people as people. They treat them as case numbers. We need the kinds of provisions that the noble Baroness, Lady Hollins, has proposed and we need to deal with these cases much faster. That means we employ more people and we upskill them. That is why I support the amendment from the noble Lord, Lord Coaker. The right to work falls away, as the noble Baroness, Lady Stowell, noted. That is not going to happen in a hurry, so we need the right to work now but we also need the other provisions.

[Baroness Hamwee (LD)]

My Lords, the argument from the noble Lord, Lord Hodgson, seemed to be addressed more to refugees than asylum seekers and I think that almost everyone who has spoken about the right to work of asylum seekers has urged faster decision- making. I want to speak to the two amendments in the name of the noble Baroness, Lady Hollins, to which I have added my name.

The House has heard many noble Lords stress the importance of a trauma-informed approach and the difficulties of almost every asylum seeker, I would have thought, in telling their story almost as soon as they get here after dreadful experiences. It must be dreadful, even if the journey is quite straightforward, to tell the story coherently and fully. I fear the Home Office has not yet got it.

The Minister wrote to me last week on the interpretation of “without delay” and I thank her for that. She has had an awful lot of letters to write during the course of the Bill. The official who wrote this one said that

“if someone was fearful of acknowledging their homosexuality to the authorities, then it may be reasonably practicable for them to make a claim some time after arrival, as we recognise the extremely difficult process of coming to terms with one’s own sexuality.”

If an asylum seeker has experienced what we know in some countries people experience because of their sexuality, I do not think that “coming to terms with one’s own sexuality” begins to describe it. That is why these amendments are needed.

[Lord Green of Deddington (CB)]

My Lords, I will very briefly speak to Amendment 30 and say that I very strongly agree with the remarks of the noble Lord, Lord Hodgson, who I thought said some very valuable things.

I would like to say and make it clear that I am actually in favour of asylum. I believe that it is absolutely right in principle but I find in this debate and more generally that there is something of an assumption that all asylum seekers are genuine and, frankly, they are not. Indeed, the very careful process that they go through finds that nearly half of them are not accepted as asylum seekers.

The risk of moving this to 12 months is that some applicants—those who are not genuine, of course—would have an incentive to spin out their cases until they reach the six-month point, which would not be too difficult, and then they are here and that is it.

The noble Baroness, Lady Stowell, hit the nail on the head. First, what we must avoid is the possibility of work before acceptance as a genuine refugee. Secondly, that points to the need to speed up the process, which is what is causing all this difficulty. If we could get the cases resolved in a reasonable time, those who really deserve it would get it—and good on them—and those who do not would be in a queue to be removed.

Nationality and Borders Bill

Baroness Hamwee Excerpts

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

[Lord Etherton (CB)]

I have two amendments in this group, but they are quite distinct from what has been debated so far and distinct from each other. One is concerned with Clause 32(5) and the other concerns Clause 36(1). Because the amendment to Clause 32(5) is a manuscript amendment tabled only today, if I may, I shall start with that to Clause 36(1), because your Lordships will be familiar with the background to that.

Clause 36(1) seeks to define, for the purposes of the convention, the meaning of coming “directly” to the United Kingdom from a country of persecution. The same definition was relevant to Clause 11, because that cross-refers to the provisions of Clause 36, so we have in Clause 36 as a matter of proposed domestic legislation and as a matter of interpretation of Article 31 of the convention the same definition of arriving “directly”. Your Lordships will recall that the issue was whether, as the Government contend, if an asylum seeker passes through an intermediate state on the way to the United Kingdom from the place of persecution—through a place considered to be somewhere they ought reasonably to have applied for refugee status—they have not come “directly”. In fact, the only way they could come directly, if they are surrounded by other countries—Ukraine is a good example—would be to fly.

The House rejected that definition, because it accepted the amendment to remove Clause 11. It expressly rejected that definition of arriving “directly”. Amendment 46 simply takes out the corresponding provision in Clause 36(1), which was incorporated in Clause 11 but would otherwise simply remain at large but, so far as I can see, would have no relevance whatever to anything else in the Bill. If I am wrong on that and there is some purpose in retaining Clause 36(1), although that interpretation of arriving “directly” was rejected by the House when it approved the removal of Clause 11, the House would want to know what it is being retained for: why it is being retained and in relation to what other provisions in the Bill. My amendment would remove Clause 36(1) from the Bill.

[Baroness Hamwee (LD)]

This is another of those occasions when saying “From these Benches, we support” and not much more must not be taken as any lack of support for all the amendments in this group, nor any dilution of the points made.

I just want to register concern about Clause 32(2). The noble Baroness, Lady Lister, spoke to this and I record our support, particularly for the amendment that deals with what is meant by “a particular social group”: that you do not qualify unless the group in question is perceived as being different by surrounding society. As has been pointed out to noble Lords in briefings, a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic but that trafficked women as a group are perceived as having a distinct identity in the country of origin. That is very difficult to show. Judged by the perceptions of the society in her country? It would be very challenging to find objective evidence on that, and on that being a distinct group. It is very dangerous to suggest that one can tell those things by looking—or, rather more accurately, perceiving.

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

My Lords, I spoke at some length on the legal aspects of this group of clauses in Committee and, having had the advantage of being able to indicate an overall view of them in the newspapers earlier in the week, I really do not want to try the patience of the House, and I certainly do not want to weaken rather than strengthen the number of compelling arguments that have already been heard on them in the past few minutes.

However, they are such objectionable clauses that I cannot simply remain silent. I do not criticise the Minister for this, I am a great admirer of his, but on Monday, at 5.49 pm, in the middle of the debate, we finally got a seven-page letter that sought to argue—if only I were still a judge and could deal with the arguments conclusively by rejecting them—the Government’s case for redefining the requirements of the convention.

When we come to Clause 31, the Minister, very fairly, recognises that it would overturn 25 years—a quarter of a century—of settled jurisprudence of the clearest authorities in this country. That is how we have been dealing with it for 25 years. He does not say that it was a wrong approach to the convention; all he argues—as I say, I do not accept it—is that what they are doing provides another possible interpretation of the convention. Is this really the moment at which to reject our established jurisprudence and substitute for it what may or may not—I would say not—be an arguable alternative view of the whole of this.

Clause 31 rejects what has been accepted as the holistic approach: you look at fundamental question arising under Article 1(A) of the convention in the round, you take all circumstances into consideration and you apply the standard of proof of reasonable likelihood—because heaven knows that is the standard which you should be using. You do not carve it up and create endless difficulties, and then say, “Well, actually, part of it has got to be on the balance of probabilities”.

I have quoted this before, and I will end with this: Hugo Storey, a recently retired judge of the Upper Tribunal who has spent his life dealing with these sorts of cases and is the immediate past president of the International Association of Refugee and Migration Judges, said that this clause would produce prodigious litigation and endless problems, and that it is not compliant with the way that the UNHCR wants Clause 31 to be applied. I will not go into the arguments on Clauses 32, 34 and 36—they are all objectionable, for the reasons already given. We really must vote down as many of these as we can.

Nationality and Borders Bill

Baroness Hamwee Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to support Amendment 64A. Any way that we can make our systems fairer is something we must aim for. The Home Secretary said yesterday in the other place that we have a “unique scheme” for accepting refugees. Yes, it is a unique scheme. It is uniquely complicated. It is mean spirited. It is slow compared with those of every other country in Europe. It is not something to brag about. Quite honestly, sometimes I hear things said in the other place and in this Chamber, and I am ashamed to be British.

[Baroness Hamwee (LD)]

My Lords, my name, on behalf on these Benches, has been added to Amendment 64A. The House will be glad to have heard some very compassionate and rigorous speeches.

The noble Baroness, Lady Fox, talked about trust. Of course, that is hugely important. It may be the circles that I move in, but what young asylum seekers say—what many asylum seekers say—is not taken at face value; quite the contrary.

The noble and learned Baroness, Lady Butler-Sloss, talked of the young Afghanis whom she met. Amendment 64 refers to “demeanour”—I know that is not the term of the noble Lord, Lord Green, but it made me reflect on the fact that, as regards demeanour and appearance, we must be very careful how we regard people of a different culture from our own.

On Amendment 64A, so much of age assessment, as the Government present it, is about science. In Committee, the noble and learned Lord, Lord Stewart, acknowledged that there is no silver bullet, but the Bill itself and the Government’s argument rely very heavily on scientific assessment, although the scientific methods specified in the Bill are only physical examination and measurement and analysis of saliva, cell, DNA and other samples. So, it is particularly worrying that the relevant professional bodies are so loudly and clearly opposed to these provisions on the basis of ethics and because of concerns about the accuracy of tests and measurements.

A lot of factors are—or should be—in play in assessing age, using a range of professional skills. The Home Office fact sheet also acknowledges that there is no single method, scientific or not, that can determine age with precision, but then makes a particular point of referring to the Home Office chief scientific adviser. I ask the Minister: what disciplines will be covered, and will it involve professionals in the psychiatry and psychology parts of the scientific/medical world with qualifications, expertise and experience in assessing and treating young people who have gone through the experiences that young asylum seekers have frequently gone through? They must also have experience in dealing with asylum seekers and others who have undergone traumatic experience, dealing with them in a trauma-informed way and avoiding retraumatising them. I refer noble Lords to my Amendment 84C, which will be the very last to be discussed in this debate, probably some time tomorrow morning.

Clause 51(7) provides that the decision-maker must

“take into account, as damaging the age-disputed person’s credibility … the decision not to consent to the use of the specified scientific method.”

Clause 52(1)(f) provides for regulations about

“the consequences of a lack of co-operation with the assessment by the age-disputed person, which may include damage to the person’s credibility.”

I leave it to noble Lords to assess for themselves where that is leading or where the Government would direct us. How all that works, with the standard proof being the balance of probabilities, I am really not expert enough to be sure, but, taken together, it all worries me. I commend the rounded approach of Amendment 64A.

[Lord Carlile of Berriew (CB)]

My Lords, given that misrepresentation of age is a matter of concern, it is very important that the determination of age should be conducted in a way that is robust, certain in application, equitable and reliable. In my view, Amendment 64A, in the name of my noble friend Lady Neuberger, absolutely fulfils those criteria; indeed, it is a template for such criteria. I strongly support the amendment and adopt everything she said.

Age assessment techniques must be proportionate and fair. If any intrusive measures are to be taken—including dental X-rays, for example—that must be based on proven evidence of scientific reliability, not vague opinions that it might add something. It must be done in a service setting that is suitable for dealing with children, who are the vast majority of the customers under consideration in the cohort we are discussing. I commend proposed new subsection (5) to your Lordships, because it sets out the principles behind my noble friend’s amendment concisely and correctly, in a way that I am sure is the envy of some parliamentary draftsmen who have tried to draft something along similar lines before.

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I will make a brief contribution to this debate—when I say “brief”, I mean it. I commend those who have already spoken for their powerful speeches, and I trust that they will be enough to convince the Government that they should in fact adopt these amendments.

I started my speech in Committee by saying:

“For victims of modern slavery, escaping from their exploitation is only the beginning of their journey towards recovery.”—[Official Report, 10/2/22; col. 1885.]


The noble Lord, Lord McColl, has known this for a long time and has consistently brought this message to your Lordships’ House. I of course will support Amendment 70 today, and I trust that it will be pushed to a vote.

The Northern Ireland Assembly has also been debating longer-term support for victims, and, just yesterday, it agreed that it should be available for up to 12 months, or longer, if needed. But that recognition makes the inclusion of leave to remain for victims who get that support acutely relevant to victims in Northern Ireland. If they do not have the ability to remain in the UK, the option of support is just illusionary. We are snatching away hope for recovery and a different type of future, free from exploitation.

We need the Government to be an enabler of recovery for victims across the UK and to provide, through temporary leave to remain, an environment where victims can co-operate with prosecutors. We need to be clear that the UK is a very hostile place for traffickers. Amendment 70 builds on the success of the modern slavery legislation across the United Kingdom jurisdictions and puts the needs of genuine victims on the statute book. The UK has prided itself on being at the forefront of providing for victims of modern slavery; let us continue that tradition by voting in favour of Amendment 70, which I commend to your Lordships’ House.

[Baroness Hamwee (LD)]

My Lords, this is another occasion when, from and on behalf of these Benches, I can say that we agree and can edit my remarks down—although not completely. Between us, my noble friend Lord Paddick and I have put our names to all of the amendments, save that of the noble Lord, Lord Alton—nothing was meant by that except that it slipped past us—and we support them all.

The noble and learned Baroness referred to the combination of seeing victims of trafficking through the lens of immigration, as if this is all a single issue, ignoring the trauma and exploitation they have suffered as victims. I add that, of course, not all victims are immigrants. In fact, the minority are, so far as we know —there is a lot that we do not know yet. The Independent Anti-Slavery Commissioner has commented that the Bill creates

“a distinction between victims who are deserving of support and those who are not”,

like deserving and undeserving refugees.

I will go back to trauma, which was referred to by the noble and learned Baroness. There seems to be an assumption that, if a story varies, even in a small detail, from one day to the next, the whole must be a lie. The noble Lord, Lord Alton, mentioned legislating in haste; I say that it is not us who repent at leisure but the victims who suffer hard at leisure.

I am no great fan of using domestic legislation to construe and apply an international treaty—I support Amendment 68A, but I simply pre-empt the point being made against me, referring back to previous amendments. It is a very neat way of not disqualifying victims from protection, other than in very limited circumstances. It is very difficult to see how the Government could oppose the amendment on the best interests of the child, if we are truly concerned about child victims. The noble and learned Lord, Lord Stewart, said in Committee that the Government do not consider that Clause 62 would prevent victims coming forward because of the “discretionary approach”. He said:

“All of us ... 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.”—[Official Report, 10/2/22; col. 1877.]

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I will speak in support of my noble friend Lord Sandwich. This amendment would take us back to the pre-2012 situation. There is no doubt—there is overwhelming evidence—that not being able to change employer means that these luckless people get stuck with an abusive employer in some cases. This is easily remedied. I agree with the noble Earl that the amendment is skilfully drafted. It proposes a modest change that would undoubtedly do good, and I very much hope that the Minister will be able to accept it.

I detected a slight trace of politics coming into our debate on Amendment 75. I was a Sir Humphrey once, and I commend to the Minister “unripe time”, which is very good, and “due consideration”—“shortly” is very dangerous. Seriously, I see no difficulty with an investor visa, provided that it is for a real investment that is actually invested in plants, machinery or jobs in this country. What worries me is that it is sufficient simply to hold some gilts for a short period and then sell them again—I do not think that that is good enough.

[Baroness Hamwee (LD)]

My Lords, golden visas and gilts—exactly. I am pleased to have my name to the right reverend Prelate’s amendment, which I moved in Committee as she was unable to speak to it—she had to leave part way through. The amendment from my noble friend Lord Wallace is very topical—sadly topical; having continued for far too long and being topical throughout the period, is the position of migrant domestic workers.

By definition, I failed to persuade the Minister in Committee. She cited James Ewins’s report about the length of stay and the likelihood of exploitation. The report made two key recommendations. One was about information meetings, which I understand have fallen into disuse, the other was the partial but significant relaxation of the visa tie, on which he said

“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.

I hope the right reverend Prelate has more success than I did on the previous occasion and if she does not, then I hope the group meeting with Home Office officials does.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is an odd group because it contains two important issues almost at opposite ends of the spectrum. On the one hand we have low-paid, migrant domestic workers with very little in the way of rights and at risk of exploitation because of their precarious visa status and at risk of destitution and deportation if they cease to work for their specific employer. On the other hand, we have this visa category designed for the super-rich. It is part of a global order where being rich entitles you to buy politicians, avoid taxes and be exempted from the normal visa rules that bind the rest of humanity. It is almost poetic for these contrasting issues to be joined together in the same debate.

I had a dream last night that we had a snap general election which would have meant that this Bill, along with the police Bill and others, would have fallen. I woke up very happy. However, the consequence of both these issues is the same. It is exploitation. The migrant domestic worker visa almost guarantees exploitation of the workers by the super-rich and the tier 1 investment visas almost guarantee exploitation by the super-rich. Suddenly, the Government care about oligarchs abusing the very rules that the Government put in place to help oligarchs gain access to our country. It should not have taken an illegal war for the Government to pay attention to these very obvious consequences.

There is an inevitable immorality to becoming super-rich, whether the wealth was acquired through underpaying workers, misappropriating assets during the dissolution of Soviet Russia or the theft of resources from developing countries. It is very hard to become super-rich with a clean conscience. It was obviously wrong to establish a golden visa system for the super-rich. It corrupted the immigration system and gave special rights to the global elite. The Government should never have done this and should end it completely.

I will vote for both these amendments. Could the Minister make my dream come true and accept all these amendments so that at least we have a Bill that we can possibly swallow?

--- Later in debate ---

Moved by

[Baroness Hamwee]

84C: After Clause 78, insert the following new Clause—
“Assessments: trauma-informed approach
(1) All assessments of persons subject to immigration control or relating to modern slavery or human trafficking must be made on the basis of a trauma-informed approach.(2) The Secretary of State must publish and keep updated guidance for caseworkers and others dealing with such persons regarding the use of such an approach in achieving best evidence in order to reach decisions.(3) The Secretary of State must ensure that caseworkers and others to whom the guidance under subsection (2) applies receive appropriate training to ensure assessments under subsection (1) are conducted on the basis of a trauma-informed approach.(4) Before publishing or updating the guidance in subsection (2), the Secretary of State must consult—(a) the Royal College of Psychiatrists,(b) the British Medical Association,(c) the British Association of Social Workers, and(d) any other persons they consider appropriate.(5) In subsection (1) “a trauma-informed approach” includes—(a) the recognition of the impact of trauma on individuals,(b) the recognition of the causes and indicators of trauma,(c) the importance of avoiding re-traumatisation, and(d) the integration of knowledge about trauma into policies, procedures and practices.”Member’s explanatory statement
This new Clause is aimed at ensuring that immigration officials and caseworkers operate a trauma-informed approach in assessing claimants and provides for training to ensure a capacity for trauma-informed interviewing, similar to Ministry of Justice and National Police Chiefs’ Council guidance on achieving best evidence in criminal proceedings.

[Baroness Hamwee (LD)]

My Lords, Amendment 84C would provide for a trauma-informed approach to assessments of persons subject to immigration control or relating to modern slavery or human trafficking—not the first time this has been referred to during the course of the Bill. I am grateful to the noble Baroness, Lady Hollins, for adding her name to this amendment. She has had amendments regarding codes of practice, but the whole issue has been central to much of the Bill. Government processes and actions should be trauma-informed.

Both the Ministers who have responded on these points have rested their arguments on asylum seekers having access to healthcare, but the point is much wider. I have attempted to spell it out in an amateurish way, but the point must be emphasised, even at what I described when making my notes as “stupid o’clock.”

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I thank noble Lords for their comments. I say to them, in particular the noble Baroness, Lady Hollins, that the impact of traumatic experiences is writ large throughout the whole decision-making process in the asylum system. For example, the asylum interview policy guidance includes a specific section on

“Victims of torture or other trauma”,


and this supports interviewers to create a suitable environment for claimants who have experienced trauma to explain their claim. The impact of trauma has also been carefully considered in the drafting of the Bill.

In relation to modern slavery and human trafficking, we are acutely aware of the trauma that victims of modern slavery may experience, and already recognise the impact that this trauma might have on a potential victim’s ability to even recognise themselves as a victim or indeed be identified. We are committed to identifying victims of modern slavery as quickly as possible and ensuring that they receive support as early as possible too.

The effects of trauma are already considered as part of the decision-making process and included in the current modern slavery statutory guidance of the Modern Slavery Act 2015, and they will continue to be applied in decision-making. There is a code of conduct for all professionals working with survivors of human trafficking and slavery, published by the Helen Bamber Foundation, and The Slavery and Trafficking Survivor Care Standards, produced by the Human Trafficking Foundation. We will build on this approach in updated published guidance, ensuring that decision-makers have the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall, share or recognise such events. This will give decision-makers the flexibility to take a case-by-case approach and the tools to recognise the possible effect of exploitation and trauma and ensure that decisions are based on an understanding of modern slavery and trafficking.

We will also continue to engage with the six thematic modern slavery strategic implementation groups, bringing together government, the devolved Administrations, NGOs and businesses. We recognise that modern slavery remains a rapidly evolving area, and it is very important that the guidance be continually updated to ensure that it is reflective of current policy and practice.

In summary, I hope that I have explained that trauma-informed decision-making is writ throughout the whole asylum system process, and I hope the noble Baroness will be happy to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, this noble Baroness will withdraw my amendment but not that happily, I am afraid. It refers not only to interviews and so on but to policy-making. If it is actually incorporated in policy-making, why have we, during the course of the Bill, been discussing how delays are treated and late evidence? Only today—or yesterday—we have discussed inconsistencies in evidence. The amendments are aimed at the whole of immigration control, which would include, for this purpose, asylum seekers as well as slavery and trafficking.

I am afraid that the words may be there on paper—and my words can only be on paper—but I have had the clear impression, not only during this Bill, that the process and the policy-making are not trauma-informed. I do not know how many Members still remain in the building on the government side, but it would be inappropriate and have no effect to tax the patience of those who remain by dividing the House. I beg leave to withdraw the amendment.

Amendment 84C withdrawn.

Nationality and Borders Bill

Baroness Hamwee Excerpts

3rd reading
Monday 14th March 2022 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I can be fairly brief. I support the amendments put forward to your Lordships’ House by the noble Lord, Lord Rosser. In particular, I refer to Amendment 9 in the name of the noble Lord, Lord McColl. I think we would all want to extend to him a speedy return to his place and thank him for all the work he does on behalf of victims of modern-day slavery. I mention my own interest as a trustee of a charity, the Arise Foundation, that deals with modern slavery and human trafficking.

It has been a pleasure to have co-signed amendments to Part 5 of the Bill in the noble Lord’s name but, like the noble Lord, Lord Rosser, I would have preferred that Part 5 was not here at all. I hope that the Minister, when she comes to reply, will be able to give us some indication about the cart-before-the-horse point that was made frequently during discussions on Part 5—in other words, when the new legislation on modern slavery will be laid before your Lordships’ House. I realise that she cannot give us an exact date, but is there some rough estimation of when we might expect to see that? After all, all these issues will be back on the table and open to amendment at that time.

I am sure that all noble Lords will join me in commending the noble Lord’s perseverance and persistence in the cause of improving the support and outcomes for victims of modern slavery over many years. I support his tidying up of Amendment 9 and trust that noble Lords will do the same. We have had the opportunity to improve the Bill for victims of modern slavery, and I am proud of what the House has done in undertaking that. There are still areas of concern, and the Government will know that the outcomes of the Bill will be monitored closely by those who work with victims of human trafficking.

In concluding, I ask the Minister whether the Government will publish the statutory guidance cited in Part 5, in Clause 64, before ping-pong is completed. If not, will it be published during the current Session of Parliament?

[Baroness Hamwee (LD)]

My Lords, on these Benches we support the amendments, but I ask the Minister to go back to the—to me quite worrying—announcement she made at the beginning of this debate, regarding the legislative consent Motions or otherwise. The fact that the Scottish and Welsh Governments do not support the Bill—I assume that is the political and, if you like, philosophical reality behind their stance—seems to raise not just political but practical and procedural issues and matters of enforcement.

I will refer to one issue in the Bill: the arrival or entry into the UK. If asylum seekers arrive at the coasts of Scotland or Wales rather than England, what is to happen? I understand that the Minister’s tone had to be quite neutral and not alarmist, but there are very serious issues related to this. I think the House would be grateful if the Minister were able to flesh out the position a little more.

[Lord Kerr of Kinlochard (CB)]

We have greatly improved Part 2 of the Bill, because it no longer flies in the face of the 1951 refugee convention as understood by our courts, all the other parties to the convention and UNHCR, the institution given the responsibility of overseeing the implementation of the convention. I really hope the Minister will ensure that her colleagues in the other place understand that many in this House feel very strongly about this and would be unlikely to change our view if we were again asked to consider the introduction, contrary to the convention, of a first safe country rule.

There is never a good time for a unilateral reinterpretation of international obligations, but there could not be a worse time than when there are 2.7 million refugees in continental Europe and the Russians are trampling on the 1949 Geneva conventions. We really need to hang on to our reputation for believing in a rules-based system and the rule of law.

Nationality and Borders Bill

Baroness Hamwee Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I hesitate to rise after that excellent contribution from my noble friend Lord Alton, but I just want to express very strong support, obviously, for Motions C1 and D1 and, indeed, all the amendments in this group. I want to follow the noble Baroness, Lady Stroud, and support her Amendment E1 on the right of asylum seekers to work. She made a very powerful speech, and I certainly will not repeat any of the words that she said. We can do without repetition—everybody wants to get to the votes—so I will take one minute maximum.

The main argument of the Government against this amendment is that it would be a pull factor, attracting asylum seekers to come here. It is worth mentioning at this point that there have been fully 29 academic papers assessing whether a more generous right to work has anything to do with a pull factor for asylum seekers. All those 29 academic papers showed that there was no correlation whatever between the right-to-work aspect and asylum seekers’ attraction to this country. It is also worth saying that even if this amendment passes, we would still be the toughest of all European nations—there would be seven nations then—with a six-month ban on asylum seekers seeking work. All the rest of the European countries are more generous: they have shorter bans. That is incredibly powerful.

It costs money to do this. Is it really sensible to spend an unnecessary £300 million stopping people working; albeit we only pay these people—what is it—£5.75 or something a week, plus a bit for utility bills? We could save £300 million: is that not worth doing, just to be no more ungenerous than any other country in Europe? I suggest that we should support the amendment from the noble Baroness, Lady Stroud.

[Baroness Hamwee (LD)]

My Lords, from these Benches, I want to speak just to Motions E and H; my noble friend Lord Paddick will speak for us on the other amendments in this group. The Commons reasons on asylum seekers’ right to work seem to be completely circular: asylum seekers should not be permitted to work because they should not be permitted to work. In a way, I cannot argue with that.

The condition that the noble Baroness has added to her amendment is completely sensible. Ministers speak about undermining our economic migration schemes. I am aware that a great many asylum seekers disappear into the black economy. That undermines an awful lot of things.

The asylum seekers in question are impelled by significant push factors. I take issue with people who find it difficult to accept that. There is a distinction between what prompts fleeing one’s own country and choosing where to go. I accept that the English language plays a part in that second matter, but it really does not deal with the Government’s position.

Leaving aside—though I do not leave it aside—the importance of work to self-worth, dignity and so on, the overwhelming majority of asylum seekers in our country, and no doubt in others, want to play their part in society and want to pay tax. They have skills they want to use and which we should want them to use. The noble Baroness, Lady Meacher, has talked about the financial interests. I absolutely agree with her, and I am not going to repeat that. But it is in the interests of our society to allow asylum seekers to work. We support Motion E1 very enthusiastically.

With regard to family reunion, I agree completely with the noble Lord, Lord Dubs, regarding the Commons reasons and with others who have made comments on Commons procedure—it is not up to us, I suppose, to comment on it—and the importance of scrutiny. I doubt that the Commons reasons would go down very well with those many British people who have responded to the powerful images of, and other information about, families in Ukraine and leaving Ukraine which are incomplete, without husbands or fathers. The noble Lord has narrowed his amendment down, and I congratulate him on finding a way to bring it back. The crisis for Ukrainians is no different from other crises in conflict zones in countries where actions and the threat of actions against individuals are so extreme.

The noble Lord, Lord Dubs, my noble friend Lady Ludford and I have made it clear on a number of occasions, including in the various Private Members’ Bills, that what is being proposed today is the bare minimum. It is not even, in my view, the least we can do. But it is what we must do, and we support Motion H1.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I rise briefly to speak to Motions J and J1, to support the Government in respect of Motion J and to suggest that the House reject Motion J1, the revised amendment tabled by the right reverend Prelate the Bishop of Durham. I accept that this amendment, like the former amendment, is exceptionally well intentioned, but I think its practical results may not be as the right reverend Prelate and my noble friend hope.

We were reminded in Committee on 8 February by the noble Baroness, Lady Jones of Moulsecoomb, that we needed to see refugees as human beings. Of course, she is right. We have to do that. The noble Lord, Lord Alton, has already spoken powerfully this afternoon about the tragic cases around the world: 80 million, 30 million of them children, with horrifying stories to tell and urgent needs to be answered. My doubts are as follows.

The first is the potential inflexibility implied by the revised amendment. It suggests we must publish a numerical target for the resettlement of refugees in the United Kingdom each year. This is only half, or a quarter, or a slice, of the issue that this country is facing about the increase in our population, which is going up by between 250,000 and 300,000 every year. If we were to tackle this issue as we should be tackling it, we would take the right reverend Prelate’s amendment and say that the Government should set out their belief about what the total amount of new arrivals in the country should be. No Government have been prepared to grasp that particular nettle.

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Moved by

[Baroness Hamwee]

At end insert “and do propose Amendments 22B, 22C, 22D, 22E and 22F in lieu—

22B: Clause 49, page 55, line 42, after second “person” insert “or persons”

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22F: Clause 52, page 58, line 15, after “conduct” insert “or contribute to”

[Baroness Hamwee (LD)]

My Lords, these amendments concern age assessments. The noble Baroness, Lady Neuberger, moved the amendment at the previous stage and apologises that she cannot be here today. We had a very helpful briefing from the noble Baroness, Lady Black of Strome—who I think for this purpose would term herself Professor Dame Sue Black—the interim chair of the interim scientific advisory committee. I thank the Minister for his letter listing the interim members and their positions, which of course indicate their disciplines. The amendments today flow from that meeting.

The Minister referred to mitigating risk. Of course, we understand that there is risk attached to assessing an age wrongly, but the most controversial part of the provisions in the Bill regards ionising radiation from X-rays, about which the British Dental Association has expressed particular concern. There are both ethical and scientific criteria in play here. The Commons said that our original amendments were not necessary, but, as I understand it, “not necessary” means, “Don’t worry, because current practice is good”. One of the difficulties with statutory provisions, as proposed here, is when they stand alone and you cannot look at other legislation which constrains them, if I can put it that way.

I assumed that the Minister would give assurances of the type that he has already referred to; indeed, I gave him notice by email earlier today and was grateful for the response from the Bill team. But without at all impugning the Minister’s integrity, it is important to hear from the Dispatch Box. I am always reluctant to accept that the best way to approach these matters is to seek assurances, when one really wants to see them in legislation, but I have been persuaded that this would be the best thing to do this evening.

What I have been concerned about and have asked for assurances on is that the Age Estimation Science Advisory Committee should include independent experts from across a range of fields reflecting, as the Minister said, “a range of possible biological evaluation methods”. Members of the current interim body include those with dental and dental-related expertise, but, personally, I would like to see a paediatric dentist on the list. I would like to see the regulations require the approval of the professional bodies which are so concerned. The Bill team responded to me that the regulations are a matter for government, “considering the challenges to the current age assessment process”. But that takes this issue into what are political matters, which is also part of the concern.

I also put it to the Minister that, as Sue Black told us, triangulation of different views and assessments would be brought together for a final assessment. It is important to involve professionals from very different disciplines, including those not represented on a scientific committee. I have mentioned ethics, and I would mention psychology as well. I am told that triangulation and my reference to an ethicist is part of existing practice, but I am seeking assurances for the future. It may be trite, but it is true that one can take absolutely at face value everything that is said about current practice—but the current Government will not always be the Government. One does not know what may happen in the future. It is harder to change legislation than it is to change practice, which is why one goes for the changes in legislation.

I also asked the Minister—I do not think he has covered this—about the benefit of the doubt given to the claimant, which we were told is existing practice. Again, one would like to see a legislative basis for this. I hope that the Minister can add to the assurances he has given on this and on other matters that other noble Lords—particularly the noble Baroness, Lady Lister, and the right reverend Prelate, who have been much involved with this issue—may raise. If so, I am not minded to divide the House.

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[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Baroness and was not aware of the remarks to which she referred. If the Minister in the other place has given an undertaking that he will go away and think about it, I will certainly row back from what I said—that it would be more of a matter of leaving it to the committee to say. If an undertaking has been given to revisit the matter, I am happy to depart from what I have said already.

We recognise the strength of feeling in the House about these matters. In particular, we recognise the strength of feeling about the ethical questions that arise out of the application of scientific techniques from which no therapeutic value flows directly—as was said at earlier stages in the debate. However, I repeat that our intention is to be guided by the views of the scientific committee which has been established. For that reason, at this stage, we cannot support the amendments, and we stand by the clauses which we have already tabled for the reasons I have set out.

On the matter of modern slavery, I will consider together Motions P, Q, R and S. I begin by commending to your Lordships’ House the government amendment that will exempt the credibility provisions in this part of the Bill from people who were under 18 at the time when they were most recently served with a slavery or trafficking information notice. But I say again that we cannot accept amendments to other clauses in this part. It is vital, I submit, that we are able to withhold the protections afforded by the national referral mechanism from dangerous individuals. I will not rehearse what I said in my opening submission about the manner in which the amendment as framed restricts too narrowly our scope for investigation. I consider it is not appropriate for me to make any concession to the noble Lord on this point, recognising though I do the principled basis upon which he has addressed the House, at this stage and previously in our deliberations.

With the utmost respect to my noble friend Lord McColl of Dulwich, we consider that the provision of a minimum of 12 months’ appropriate, tailored support to all those who receive a positive conclusive grounds decision and are in need of specific support is appropriate; it is “tailored” in the sense that it is directed to the individual facts and circumstances of the person in question. We do not think his amendment, as with that tabled by the noble Lord, Lord Coaker, is necessary.

On the verge of resuming my seat, I thank the noble Baroness, Lady Hamwee, for doing us the courtesy of contacting us by email and submitting a list of questions, which she went over in the course of her speech. I am greatly obliged to her for taking that step, which has enabled me to curtail my submissions at this stage still further.

[Baroness Hamwee (LD)]

My Lords, with regard to the questions around age assessment, and particularly the role of a dentist in all of this, the noble Lord, Lord Coaker, said it is remarkable that these concerns have to be raised. I would say it is remarkable that they have had to be raised again. There was the exchange in the Commons—I will come to that in a moment—and after the Commons debate on the Lords amendments, I asked about this, not on the Floor of the House; I have not heard.

In the debate in the Commons, in reply to a question about whether the process would include a practising dentist, the Minister, Tom Pursglove, said:

“I know that he has discussed this issue with the Home Secretary separately”—


I had forgotten that. He continued:

“I am not in a position to give … a firm undertaking today, but we will certainly take away and consider that particular point, and perhaps we could remain in contact on it.”—[Official Report, Commons, 22/3/22; cols. 264-65.]


As we have not heard any sort of assurance, I assume that this has not progressed any further.

The noble and learned Lord the Minister made the point that the Government do not appoint a body, interim or otherwise, of such illustrious people without listening to it. Government advisers have been known to have their advice ignored or dismissed. However, very reluctantly, I will not press this, so I beg leave to withdraw the Motion.

Motion N1 withdrawn.