Nationality and Borders Bill

Baroness Lister of Burtersett Excerpts

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

I hoped that my inclusion of the words “but not limited to” could overcome that concern, but I shall be interested to hear what the Minister can report from his discussions with the Home Office to see whether we can find an acceptable way forward through new strengthened and updated Home Office guidance rather than an amendment which, I agree, could risk unintended consequences. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak briefly in support of the amendment, which I hope the Minister will be able to respond to positively, given that it has been revised to take account of concerns that he raised in Committee about its wording, as the noble Baroness, Lady Coussins, said.

I want to come back to the question of children. I welcome the publication last week of the factsheet on the Bill’s impact on children—better late than never—although it was only by chance that I found out about it, even though I had raised a number of concerns in Committee about the Bill’s failure to protect children. That point was made strongly by children’s organisations such as the Children’s Society. The factsheet, not surprisingly, echoes what the Minister said in Committee about guidance setting out how decision-makers will exercise their discretion with regard to children and more generally on a case-by-case basis.

However, as the Children’s Society warns:

“Assurances that children will be looked after in guidance are not sufficient. Guidance and case-by-case determinations do not provide the legal protection children desperately need. As highlighted in the recent inspection report of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed ‘they did not have time to consider each case on its own merits, contrary to the guidance they receive’. Leaving decisions that will have a profound impact on a young person’s life to case-by-case determination can trigger further trauma for young and vulnerable claimants.”


Moreover, when the factsheet states:

“The best interests of the child are a primary consideration in every decision taken in respect of the child”,


forgive me if I am sceptical, given that the Court of Appeal last year ruled that the Home Office had failed to take account of the child’s best interests when setting the fee for citizenship registration—an issue to which we will return on day three.

Therefore, I am afraid that I am not reassured by what has been said about guidance and a case-by-case approach. Can the Minister tell us when that guidance will be published? Will organisations working with children seeking asylum be consulted on it? What opportunity will there be for Parliament to consider and provide views on the guidance? I realise that those questions may need to be referred to the Home Office but, if so, I should be grateful if the Minister would undertake to pass them on and request that the Home Office writes to me with the answers.

[Lord Paddick (LD)]

My Lords, we support the amendment as far as it goes, particularly the emphasis on those subjected to sex and gender-based violence, abuse or exploitation. However, there are many others, such as those from sexually and gender-diverse communities, who will hesitate to bring forward all the evidence that they rely on in support of their claim. As I said in the last group, and as the noble Lord, Lord Wolfson of Tredegar, said, officials and tribunals already weigh evidence and credibility but if, in the Bill, the Government insist on leaning on decision-makers in relation to the weight that they should place on late evidence, then this or an expanded amendment should be included; that should also include children.

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I hope I have set out—

[Baroness Lister of Burtersett (Lab)]

Just before the noble Lord sits down, can he say whether there will be any consultation on the guidance? Can someone write to me on that point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not have the detail at my fingertips, but I can certainly undertake to write to the noble Baroness. I was just about to sit down after inviting the noble Baroness, Lady Coussins, to withdraw the amendment for the reasons that I have set out.

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[The Lord Bishop of Durham]

My Lords, in rising to support Amendment 35 in the name of the noble Lord, Lord Kirkhope, to which I have added my name, I declare my interests in relation to both RAMP and Reset and set out in the register. I thank the noble Baroness, Lady Stroud, for the way she introduced this amendment, and I fully support all her points.

I set out my reasons for supporting this amendment in Committee. However, a significant concern for me now is that the Minister was not able to give assurance that children in families would be excluded from offshoring, nor that families would not be split up in the process. This is deeply concerning. I appreciate that the policy document of 25 February sets out that exemptions will depend on the country where people are being offshored and tat publicising exemptions will fuel the movement of the most vulnerable not subject to offshoring.

However, I would set out that, for children, onward movement to any country after an often traumatic journey to the UK, in addition to the trauma in their country of origin, is simply never in their best interests. All the concerns I set out in my Committee speech regarding the monitoring of the practice of offshoring processing centres are especially true for children.

The Home Office has processes to confirm identity and actual family relationships, which it uses for a range of visas as well as in the asylum process. It would seem that, if this is the concern, there are ways to avoid children being used in this way. Given the deep harm that offshoring would do to everyone, particularly children, I fail to see why the Minister cannot give this commitment.

I am deeply concerned that throughout the Bill, where we have highlighted the deep harm of policies on the most vulnerable, we are told that guidance and discretion can be applied on a case-by-case basis. I understand the logic of that, but what worries me is that it does not speak of any standardised process where everyone can be confident that there is equal treatment.

I further ask whether an economic assessment of the costs of offshoring has been properly made, and, if so, what the outcome of that assessment has been—and if it has not, why not? I ask these questions while fully supporting the need to remove this clause of the Bill in its entirety.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 35. In Committee, I and a number of other noble Lords asked various questions to which the Minister responded that she promised to write to us. Well, I have not received a letter. I contacted her office this morning, checked with our Whips’ office, and—the right reverend Prelate is also shaking his head—there was no letter.

I was going to raise the question of children, but the right reverend Prelate has already dealt with that very well. The fact sheet came out at the end of last week. My reading of it was that, yes, families with children will potentially be offshored—which is, as the right reverend Prelate said, very troubling.

I simply return to a question I raised at the very end of our debate in Committee, when I said that

“a whole range of noble Lords asked a question, in different ways, about what happens to the asylum seekers if they are granted refugee status in the country to which they have been offshored. Are they allowed back into this country or are they just left there? If they are left there, they have, in effect, been deported.”—[Official Report, 8/2/22; col. 1421.]

That seemed to me a rather basic question, and I was rather surprised that the Minister said that she could not answer it. I took her at her word that she would write to us, and she has not—so could she answer that question today, please?

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[Baroness Williams of Trafford (Con)]

I have gone as far as I am willing to go by confirming that unaccompanied asylum-seeking children would not be subject to offshoring, but on some of the wider vulnerabilities it would be wrong to be drawn at this point.

[Baroness Lister of Burtersett (Lab)]

I have been trying to read the letter on my phone, but it did not arrive until after 4 pm and the Minister’s office did not have the courtesy to reply to my email. If I had had the letter at 3 pm I would have been able to read it. So I may have missed this, but I am not clear—and I apologise if the Minister explained this right at the very end—what happens to an asylum seeker who has been offshored, a horrible term, and is deemed to have refugee status by whatever country they have been sent to. Will they be sent back to the UK, or not?

[Baroness Williams of Trafford (Con)]

My Lords, it would depend on the circumstances of the case.

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[Baroness Chakrabarti (Lab)]

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

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

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

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

[Baroness Lister of Burtersett (Lab)]

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

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

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

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


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