Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Coaker (Lab)]

Frankly, this is unacceptable. Without being rude, I say that the Committee must at some point have the impact assessment. How on earth can we make many of the judgments on amendments and on the various things that we may wish to come forward with on Report if we do not have an impact assessment? It is normal practice for an impact assessment to be provided so that proper decisions can be made. Can the Minister at least go back to the department and say that this Chamber—I think I speak for everyone —is very unhappy that no impact assessment is due, and that we need one? Will he ask his department to provide one for us—at least well before Report?

[Baroness Lister of Burtersett (Lab)]

To add to that, we should have had a child rights impact assessment. That is supposed to be done right at the outset of the policy discussion. Therefore, it would have been appropriate for it to have been published at the same time as the Bill.

[Lord Murray of Blidworth (Con)]

The House knows my position. I have obviously heard what the noble Lord, Lord Coaker, and the noble Baroness, Lady Lister, have said, and I will of course take those points back to the department.

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[Lord Kerr of Kinlochard (CB)]

The noble and learned Baroness makes a very strong case and I give her my full support.

My name is on Amendments 80 and 91 in this group. Amendment 91 is concerned with victims of human trafficking, but both fall at the hurdle of retrospection, as has been explained by the other signatories, in particular, my noble friend Lord Carlile, and by the noble Baronesses, Lady Chakrabarti and Lady Hamwee. I have the luxury of being able to add virtually nothing to the arguments already made.

I think the best description of the case against retrospection is in my noble and learned friend Lord Hope’s explanation of Amendment 39, which

“seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.

What is the conceivable good reason? What are the very exceptional circumstances that the Constitution Committee suggested might excuse retrospection?

The noble Baroness, Lady Hamwee, suggested that the Minister might try to say that stopping the boats is so exceptional as to justify retrospection. But there are a lot of other ways of dealing with that; for example, the safe passage visa argued for at Amendment 130. The Minister might say that that it is the cost of housing those who have come across the channel or in the back of a lorry and have been apprehended. But the costs of detaining and deporting those declared inadmissible under this Bill will be much higher.

That is the point the Refugee Council made in its impact assessment and estimate of the costs. It estimated a cost of £9 billion over the first three years. The Minister says that he does not recognise those numbers. That is not a sufficient argument. He needs to tell us what is wrong with those numbers and what his numbers are. It is not good enough just to sit there and say, “Well, I’m not going to engage in this debate because I don’t recognise the numbers”. I think retrospection is fundamentally unacceptable.

A few years ago, when I was driving up Headington Hill in Oxford, I forgot that, eccentrically, the set speed limit there is 20 miles per hour. I was required to present myself in Milton Keynes four months later for a speed awareness course, because I had been travelling at 27 miles per hour. Eccentrically, because I am a very eccentric person, I failed to ask my wife to see whether I could have a personal course. Nevertheless, I would have been very taken aback if, when I got to Milton Keynes—it was extremely hard to find the place and I was driving rather fast trying to find it—I had been told on arrival, “Actually, we have changed the penalty and we are going to export you to Rwanda”. I would have objected, and I object to retrospection.

[Baroness Lister of Burtersett (Lab)]

My Lords, I agree with everything that has been said so far, but I will focus on the opposition to Clause 2 standing part of the Bill. This clause is, in many ways, the nub of the asylum ban to which the Bill gives effect. To place a duty on the Home Secretary to remove virtually all those who seek asylum through irregular routes is an unprecedented step going far beyond simply giving her the power to do so. Here we are talking about those arriving not only by boats but by any irregular route; the boats are used as a justification for the Bill, because the Government know that we all want to see an end to those very unsafe journeys. The fact that it is a power only when it comes to children is a small mercy, given that they will be removed when they reach the age of 18. However, I will leave the treatment of children to a later debate, because there is still a lot to be said about the impact on children.

Calling those affected “illegal migrants” does not alter the fact that the majority are exercising their right in international law to seek asylum. That goes back to the point that the right reverend Prelate the Bishop of Chelmsford made earlier. In the words of the UN rapporteurs that I quoted earlier,

“the act of seeking asylum is always legal, and effective access to territory is an essential precondition for exercising the right to seek asylum”.

When she first introduced the Bill, the Home Secretary accused critics of naivety in suggesting that

“everybody coming here on a boat is a genuine asylum seeker fleeing for humanitarian reasons. The reality is that many of these people are economic migrants who are abusing our asylum system, and that is what this Bill aims to stop”.—[Official Report, Commons, 7/3/23; col. 174.]

Could the Minister give us the evidence on which that assertion is based? It has been reported that the Home Office does not have that evidence, but, if it does, now is the opportunity to provide it.

No one is suggesting that everyone who comes here on a small boat has a genuine case for asylum, but we know that the majority are likely to have such a case. According to the Refugee Council’s analysis of official data, six out of 10 of those who crossed the channel in small boats last year stood to be recognised as refugees—yet they will no longer be able to make their case.

The Home Secretary has argued that the Bill’s critics

“ignore the fact that our policy does in fact guarantee humanitarian protection for those who genuinely need it”.—[Official Report, Commons, 13/3/23; col. 576.]

However, many of those whom she has given herself a duty to remove will genuinely need humanitarian protection. Yet there will be no mechanism for ascertaining whether that is the case before they are simply removed to be dealt with elsewhere, like a parcel marked “don’t return to sender”. To quote the UN rapporteurs again,

“any steps taken to legalize policies effectively resulting in the removal of migrants without an individualized assessment in line with human rights obligations and due process are squarely incompatible with the prohibition of collective expulsions and the principle of non-refoulement”.

The Government talk as if we take a disproportionate number of asylum seekers, yet the opposite is the case— that point was made earlier today, though it seems a long time ago now. As I asked earlier, what happens if other countries follow our lead and also put up the “no asylum seekers here” sign? The chances are that the numbers seeking asylum in the UK will go up, not down.

In practice, the general view, including that of the Law Society, is that removal of those deemed inadmissible will be very difficult in the absence of adequate third-country agreements, making the Bill, in effect, unworkable. The fear of the Refugee Council, the UNHRC and others is that it will mean many thousands left in semi-permanent limbo, at risk of destitution. As I said at Second Reading, the mental health implications are likely to be serious, as spelled out by the Royal College of Psychiatrists, which has many concerns about the Bill’s impact on mental health. For those who are removed to a third country, there is no guarantee that the country will be equipped to assess their asylum claim, so again they could be living in limbo, but out of sight and out of mind of the UK Government. How can all this be described as compassionate and humane, as Ministers repeatedly do?

[The Lord Bishop of Chelmsford]

My Lords, I do not wish to delay the House for long, especially given the excellent speeches we have already heard delivered on this group, but I support the comments of the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti, about retrospection. I add my support, in particular, to the noble Lord, Lord Coaker, and those other noble Lords who have tabled Amendment 11, on which we have already heard the comments of the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss.

A succession of migration, public order and modern slavery Bills in recent years have drastically raised the length of sentences and the severity of punishments that can be brought to bear on people traffickers and smugglers. While this may look tough, it is difficult to say that it has had much impact; indeed, the entire purpose of this Bill is to try to put a stop to arrivals which have not, apparently, been impacted on at all by the deterrents that are already in place. Nor is this surprising, given the very low number of prosecutions and convictions for such offences. Regrettably, it seems that smuggling is a crime with enormous rewards but relatively little risk for the perpetrators. Instead, we seem to almost exclusively punish those who are smuggled, often in highly dangerous circumstances.

We know that securing prosecutions and convictions is incredibly difficult because it requires the willing co-operation of those who have been smuggled. This is no small thing, for they are often traumatised and often in significant debt to the smugglers. They may have friends and family abroad or here in the UK who will be put at risk if they come forward. That difficulty is only exacerbated by our migration enforcement policies, which also deter victims from coming forward for fear of the hostile environment, detention and removal—including potentially to Rwanda or some other third country with which they have no connection. There is little incentive to co-operate with law enforcement, and significant risk in doing so.

My fear is that the Bill as a whole will not improve this situation, but at the very least, Amendment 11 provides a modest mitigation of the damage, without undermining the effect of the Bill overall, by exempting those co-operating with law enforcement from the prospect of removal. I hope that Ministers will listen to this, or at the very least come back with detailed proposals for how victims, both of smuggling and of trafficking, slavery and other forms of abuse, can be better supported to co-operate and help bring down those who have abused them.

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[Lord Murray of Blidworth (Con)]

No, I am sorry to say. Clearly the position is not that in every case where there is a change in the criminal law it should have retrospective effect to the date of the Bill’s introduction. That is absolutely not what I am saying. What I am saying is that, in this context, to prevent a rush of people into these dangerous vessels, crossing the channel at a time when there is potentially bad weather, those were the special circumstances that justified retrospection in these provisions. To go back to one of the last major Bills to go through your Lordships’ House, which became the Public Order Act, I would not dream of suggesting that the offence of locking on should have had retrospective effect to the date of the introduction of the Bill; there would have been no exceptional circumstances for that.

While I am on the topic of the speech just given by the noble Baroness, Lady Chakrabarti, I would like to address her suggestion that limited retrospectivity will lead to refoulement. This is clearly not the case. I can do no more than repeat that this Bill does not allow refoulement. It does not allow the Government to remove individuals to places where they will be in danger—and that, quite rightly, is under the supervision of the courts.

In particular, I would refer noble Lords to the clauses in the Bill relating to suspensive claims—Clauses 37 to 50—which allow Upper Tribunal judges to determine whether an individual faces a risk of “serious and irreversible harm”. If such a case is made out, the individual will not be removed to that place.

Amendment 7 tabled by the noble Lord, Lord German, relates to the third condition and to the issue of whether a person has or has not “come directly” from a country where their life and liberty were threatened. It is right that we prioritise protection for the most vulnerable people arriving through safe and legal routes rather than those who are strong or rich enough to have journeyed through safe countries and paid the people smugglers before they reach the UK.

In answer to the question put by the noble Lord, Lord German, repeated by the noble Lord, Lord Coaker, people seeking sanctuary should apply for asylum in the first safe country they reach. There is no uniform international interpretation of the many concepts of the refugee convention. However, the Vienna Convention on the Law of Treaties provides the treaty to be interpreted “in good faith”. It is on this basis that we have set out our interpretation of “come directly” through Clause 2. I might add that, were Amendment 7—

[Baroness Lister of Burtersett (Lab)]

The Minister is beginning to address the question that I have raised twice: why should we accept this Government’s interpretation of the refugee convention over and above that of the body that is given authority by the UN to interpret it for the international community? Every other organisation that has briefed us has followed the UNHCR in its interpretation and there are very real fears of refoulement. As a noble Lord opposite said earlier. the reason given seems to be “Because we say so”, as you would say to a child. That is not good enough. We want to know exactly why we should accept the Government’s interpretation.

[Lord Murray of Blidworth (Con)]

I thank the noble Baroness for that intervention. The reality is that the Government take legal advice. The UNHCR is clearly a UN body; it is not charged with the interpretation of the refugee convention. Some parts of the UNHCR have views on the Government’s position, but it is always worth recalling that the UNHCR itself maintains refugee arrangements and accommodation in Rwanda. In December, the High Court considered the submissions from the UNHCR and discounted what was said. So I invite the noble Baroness, rather than simply taking the Government’s word for it, to review the judgment of the Divisional Court, a careful and considered judgment, which considered the legality of the removal scheme.

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[Lord Murray of Blidworth (Con)]

Clearly, the intent is to send a message—that people really must not make these dangerous journeys across the channel. As I say, all the avenues of legal challenge are open but there are only two categories that will suspend removal. There are a number of provisions—I am sure the noble Baroness and I will be debating them at length over the coming days in Committee—and that is how the Bill will have its effect.

[Baroness Lister of Burtersett (Lab)]

Could I ask that the Minister copies everyone who took part in this debate into the letter he is going to send, because it is of interest to many of us?

[Lord Murray of Blidworth (Con)]

I will certainly place a copy in the Library of the House. I hope that suffices. I am sure that my private office can work out who is here and is participating.