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.

--- Later in debate ---

[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.