Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

That is what Amendment 1 seeks to do. I beg to move.

[Baroness Ludford (LD)]

My Lords, I would like to speak to Amendment 2—unless the noble Baroness, Lady Meacher, wants to go before me.

[Baroness Meacher (CB)]

My Lords, with some trepidation, I want to comment on Amendments 1 and 5, tabled by my noble and learned friend Lord Hope. Under the refugee convention, anyone approved as a refugee has never been an illegal or unlawful immigrant, however they came to the UK. To define anyone as an illegal immigrant who may subsequently be deemed a refugee surely flies in the face of the refugee convention—or that is how I read it. I am sure that my noble and learned friend has a very good riposte to what I am saying, but if by any chance he does not feel he has, he may want not to press those two amendments.

[Baroness Meacher (CB)]

Is it not our job to ensure that the Bill does not come up against the convention?

[Baroness Ludford (LD)]

My Lords, I would like to speak to Amendment 2, which is in my name and those of my noble friend Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Coaker. I will take just a little while. We had only six minutes at Second Reading and this group is key to the whole Bill. My remarks will follow on almost seamlessly, if I may say so, from those of the noble and learned Lord, Lord Hope.

[Lord Hacking (Lab)]

Did the noble Baroness refer to Amendment 32 just now?

[Baroness Ludford (LD)]

No, I referred to Amendment 2, which is the second one in this group.

Before I move to human rights issues, I want to make a couple of preliminary points. First, it is incumbent on this Committee to subject this Bill to very detailed scrutiny. It proposes to strip human rights protections from a group of people excluded from the democratic process. It is a core part of our justification, as an unelected revising second Chamber, that we do this kind of detailed scrutiny.

In the other place, there was quite a compressed timetable—that is an understatement. Second Reading there was expedited, only a few days after the Bill’s introduction. Instead of the usual detailed consideration and evidence-gathering in Committee, the Bill had only two days on the Floor of the House, during which its provisions were considered out of sequence. On Report, the Government published more than 100 amendments at late notice, dealing with both substantive and highly technical issues, many of major constitutional importance. Particularly in the case of this Bill, it behoves us to carry out intense scrutiny.

My second preliminary point was made in a briefing from the Law Society. It stressed the importance of the UK’s reputation for its commitment to the rule of law and international obligations, including human rights obligations, to our attractiveness as a place to do business. It says:

“Senior representatives of the UK’s biggest law firms have told us they are concerned about the damage non-compliance”


with our legal commitments

“could do to the UK’s economic competitiveness, by undermining the confidence of businesses looking to invest in the UK”.

I think we recently saw a reported drop in UK inward direct investment, and Germany has shot up the list. It is not just for us human rights nerds that international legal commitments are important. Global business places great importance on these issues too.

This is a perilous moment for human rights protections in Europe, as the war on Ukraine by Russia continues and Russia has been expelled from the Council of Europe. The UK’s reputation is strengthened by being not only a founding party to the European Convention on Human Rights but an active, leading member of the Council of Europe. It was therefore good news that the Prime Minister went to the recent Council of Europe summit of Heads of State and Government.

Now is precisely the moment for the UK to lead on the world stage in reinforcing basic human rights norms and international law, including the ECHR. Pushing this Bill through this Chamber when the Government cannot confirm that in their view, multiple provisions in it are compatible with the European Convention on Human Rights, threatens our reputation as a country that upholds international law.

As has been noted by the noble and learned Lord, Lord Hope, the Home Secretary has been unable to make a statement under Section 19(1)(a) of the Human Rights Act that the Bill is compatible with convention rights. This is an extremely unusual step, and it means there is a high risk that the Bill will violate rights under the ECHR. Then, we have a bit of snakes and ladders. We have the Section 19(1)(b) statement, but in a Home Office Oral Statement delivered in the Commons on 29 March—which the Minister repeated here—entitled “Illegal Migration Update”, the Minister for Immigration said:

“Of course, as we reform the asylum system, we will continue to honour our country-specific and global safe and legal commitments.” —[Official Report, Commons, 29/3/23; col. 1017.]

In his letter to us on 27 April, the Minister said:

“As the Minister made clear in the House of Commons, the Government takes our international treaty obligations incredibly seriously”.


We have the statement with the Bill, but when the Home Secretary introduced the Bill, she expressed confidence that it was compatible with international law, as the Minister’s statements have said. However, her justification for being unable to make a statement of compatibility with the convention was that the Government’s approach was “robust and novel”. We are getting considerably mixed messages: on the one hand, the Government cannot confirm that the Bill is compatible; on the other, there are statements from the Home Secretary that she is “confident” and certain that the Bill’s measures are compatible.

How she can have that stated confidence—when she had to make a Section 19(1)(b) statement that she cannot confirm that it is compatible—is a mystery. We have a juxtaposition of different measures. If the Government cannot confirm that the provisions are compatible with the ECHR, it threatens our reputation as a country that upholds international law. I am sorry that I have taken a bit of time on this amendment, but it seems crucial to the whole passage of the Bill through the House.

Finally, I turn specifically to Amendment 2. As the noble and learned Lord, Lord Hope, mentioned, it would remove Clause 1(5) of the Bill, which disapplies Section 3 of the Human Rights Act 1998. I remind noble colleagues that Section 3 places a duty on a judiciary to interpret, so far as it is possible to do so, all legislation

“in a way which is compatible with the … rights”

under the ECHR, which are incorporated into domestic law through the HRA. The effect of the provision in the Illegal Migration Bill is that judges will be unable to reconcile its provisions with our human rights obligations under the HRA and the ECHR. The only option available to the courts would be to issue a declaration of incompatibility under Section 4 of the HRA. However, that merely flags incompatibility to the Executive. The court cannot do anything about it; it just has to flag it, which puts the ball back to the Government to have responsibility to initiate measures to rectify the incompatibility.

The possible likely outcome of all this is that these cases will go to the Strasbourg court. Given that the UK court has already found that there is a violation, because it had to issue a declaration of incompatibility, it is likely that Strasbourg will find a violation, thereby putting the UK on a collision course with the European Court of Human Rights. It would be a serious breach of international law if the UK refused to comply with a binding judgment issued by the Strasbourg court.

All in all, I put it to the Committee that the Government have got themselves in quite a mess with the HRA and the ECHR. Removing the scope of Section 3 of the Human Rights Act suggests that the Government are in fact worried about the provisions of this Bill being incompatible with our international law obligations under the ECHR. Otherwise, what would there be to worry about? If the Home Secretary is “confident” et cetera, leave it to the courts to interpret the Bill’s compatibility with convention rights. If human rights compliance is truly sought by this Government, why is it necessary to oust the duty to do nothing more than interpret the Bill in accordance with the Human Rights Act—if the Bill’s wording can provide for that?

Removing this provision, Clause 1(5), from the Bill, as Amendment 2 requests, would go some way to resolving anxieties about the impact of the ministerial statement under Section 19 of the HRA, whereas retaining the application of Section 3 would help to uphold the UK’s reputation as a jurisdiction which upholds the rule of law and respect for human rights. That is what I suggest should happen.

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[Lord Sandhurst (Con)]

That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.

[Baroness Ludford (LD)]

I just ask the noble Lord about his point on Section 3 of the HRA, which he regards as disadvantageous. He talked about courts having to make a strained interpretation. I wonder whether he would give me some idea of how many cases there have been where the courts have had to strain to make this interpretation. Presumably, if they felt they had to do that, they would have had to resort to Section 4, declaring incompatibility. The review by Sir Peter Gross did not have a major problem with Section 3—I think there was a little tweak that has escaped my memory for the moment. It was broadly satisfied with the operation of Section 3, so I wonder why it is so difficult. With Section 4 and declarations of incompatibility, there is the disadvantage of having to make remedial orders—and there is not really capacity in the Commons to do that—and/or end up in the Strasbourg court. It seems to me much better to give some leeway to the courts to interpret legislation compatibly with the convention.

[Lord Sandhurst (Con)]

, I looked at Sir Peter Gross’s report yesterday and the night before to remind myself of what it said. Two points are important. One is that it was not unanimous on that point, unlike on everything else. We are not told where the disagreement was, but at least one member did not agree that nothing should be done. Secondly, it lamented the fact that there had been no statistics kept of the cases in which the court has gone down the route of Section 3, so we do not actually know when there has been what might be called a strained interpretation or when it has been a perfectly natural interpretation. You can read it if you look at individual judgments. The one in which Lord Steyn spoke is the case of Ghaidan—I cannot remember the other name in the case—

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[Baroness Chakrabarti (Lab)]

I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

[Baroness Ludford (LD)]

To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.

Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:

“So far as it is possible to do so”


in accordance with the convention rights. We do not do that in any other area of our law.

The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).

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[Lord Murray of Blidworth (Con)]

As the noble Lord knows, the Prime Minister and President Macron have had regular discussions and there have been regular treaties and agreements in relation to the enhancement of police powers in France, but it is not presently the position of the French Government that they are willing to accept the return of those who have entered the UK illegally. That is what drives the Government to look for other avenues to dissuade people from embarking on the dangerous journey across the channel.

Turning to Amendment 2, tabled—

[Baroness Ludford (LD)]

I am sorry to intervene on the Minister, but I wonder if he could direct my attention to where in Article 31 of the refugee convention it refers to “illegal migrants”. I can find a reference only to “illegal entry or presence” or “entry or presence without authorisation”. It is the entry or the presence that is illegal or unauthorised; it is not the person. That is the problem that many of us have with the term “illegal migrant”. I cannot find it in Article 31 of the refugee convention; perhaps I have not looked hard enough.

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.

I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.

It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.

As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.

Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I speak in favour of the amendments in this group, including my Amendment 8; I thank the noble and learned Lord, Lord Etherton, for adding his name to it. My amendment deals specifically with Clause 2(4) and would include persecution of a person on the basis of gender, sexuality and gender identity for the purposes of the third condition under which a person could be removed. However, I wish to now speak against Clause 2 and the duty to deport.

As we have heard from other noble Lords, the Bill seeks to give unprecedented powers to the Home Secretary to deport people without even a fair hearing of their case. The Home Secretary is in fact compelled to carry out that duty, even when it conflicts with human rights protections. The Bill seeks to limit the circumstances in which legal challenges could prevent a removal and allows the Home Secretary to add or remove countries to the list of so-called safe countries. This is even more worrying, looking at Schedule 1. At present, four of the countries on that list are not signatories to the UN convention, and some may not even have a functional asylum system. I will come back to this later on a further grouping but, if a person were deported or returned to most of the countries on the list in Schedule 1, they would face discrimination on the grounds of their sexual orientation or gender identity. Nigeria is one that springs to mind.

Without the requirement to make individualised assessments about whether it is safe to remove a person seeking asylum, and in providing very limited opportunities for individuals to present evidence of the risks that they could face, there is a real concern that many refugees will be deported to a country where their safety is at risk, or returned to their home country where their life could be threatened again, as I have said. The refugee convention makes it clear that return is prohibited to any country where a refugee could face persecution and not just their own.

I return now to the thinking behind my own amendment. In passing through a so-called safe third country, I refer to the internationally accepted definition of a refugee, which makes reference to five possible grounds for persecution: race, religion, nationality, membership of a particular social group, or political opinion: UN General Assembly 1951, page 137. These grounds are also recognised as covering persecution on the basis of sexual orientation or gender identity and gender-based human rights abuses.

Such examples also illustrate that persecution may happen where the state is not itself the perpetrator. Although some definitions have in the past required this, it is not universal. I believe it is therefore right to expand within the Bill the acceptance of individuals becoming refugees both when persecution is perpetrated by the state and where there is a failure of the state to provide protection against persecution by others. On that basis, I commend my amendment to noble Lords.

[Baroness Ludford (LD)]

My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?

The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention, under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.

I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.

The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.

To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.

[Lord Etherton (CB)]

My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.

The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.

The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs, or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.

I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

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[Lord Murray of Blidworth (Con)]

Forgive me: as I thought I said, the status of a child born in the UK to a woman who meets the conditions in Clause 2 is that they would not satisfy the conditions in that clause. I realise that there were a number of hypotheticals in the way that that question was written. If I may, I would like to go away and think about them. I will reply by letter in due course, and obviously publicise that letter.

[Baroness Ludford (LD)]

The Minister talked about an amendment that I had co-signed. Was it Amendment 132?

[Lord Murray of Blidworth (Con)]

It was Amendment 137.

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[Baroness Ludford (LD)]

Sorry—I will look and check that it covers the point.

[Baroness Bennett of Manor Castle (GP)]

The Minister, not to my surprise, did not address my question about what happens after the election. I will phrase the question another way. In your Lordships’ House, we often ask about “must” and “may” provisions. Rather than a duty to remove, surely the Government could make it that the Secretary of State “may” remove. That would allow this Government to act as they wish but would not attempt to tie the hands of any future Government.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Stewart of Dirleton (Con)]

The noble Lord asks a highly detailed numerical question, and he will not be surprised to know that I am unable to answer it from the Dispatch Box.

[Baroness Ludford (LD)]

A ballpark figure would do.

[Lord Stewart of Dirleton (Con)]

We will do our best to provide one in short order in writing to the noble Lord, if that would be acceptable to the noble Baroness.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.

Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.


Each state therefore has to interpret its obligations under a treaty.

Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.

What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

[Baroness Ludford (LD)]

The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s

“duty of supervising the application of the provisions of this Convention”—

I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.

[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

Moved by

[Baroness Ludford]

92A: After Clause 21, insert the following new Clause—
“Early access to legal aid(1) After paragraph 32A (victims of slavery, servitude or forced or compulsory labour) of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 insert— “32B “(1) Civil legal services provided to an individual who is subject to removal to a third country under the Illegal Migration Act 2023, or who might reasonably suspect they are subject to removal under that Act, in relation to referral into the national referral mechanism and connected immigration advice and representation, where there is no other provision for this within the scope of legal aid.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule.Specific exclusions(3) The civil legal services described in sub-paragraph (1) do not include—(a) advocacy, or(b) attendance at an interview conducted by the competent authority under the national referral mechanism for the purposes of a reasonable grounds decision or a conclusive grounds decision.”(2) In regulation 11(9) of the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (qualifying for civil legal services: cases in which merits criteria do not apply), at end omit the full stop and insert—“(e) or, for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, in relation to any matter described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).”(3) In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to make a determination in respect of an individual’s financial resources), after paragraph (r), omit the full stop and insert “and,(s) for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, civil legal services described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).””Member’s explanatory statement
This new clause would give individuals subject to, or who might reasonably suspect they are subject to, removal to a third country under this Act access to early specialist legal advice, which is not means- or merits-tested, allowing for informed consent to a trafficking referral. The intention is that potential victims of modern slavery or human trafficking in that position will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it. This expands the support available for advice on referral into the NRM, which is currently only available if you have a matter that falls within scope of certain types of legal aid.

[Baroness Ludford (LD)]

My Lords, as was mentioned, the noble Lord, Lord Alton, is not able to be here today, but I join in the tributes paid by the noble Lord, Lord Carlile of Berriew, about his excellent work on the Bill. He very much regrets that he is not able to be here.

The noble Lord, Lord Coaker, has slipped out, but I felt the challenge “follow that”. I fully subscribe to the fantastic riposte that he gave to the Minister. I am afraid I will speak quite a few times today; that is how the cookie has crumbled for the parts of the Bill that I have got involved in—all my prizes are coming at once. I am afraid I do not apologise for that. In response to my noble friend Lord Newby last week, the Chief Whip complained about alleged repetition, including from these Benches. I may not be alone in having heard Dr Hannah White of the Institute for Government on the “Westminster Hour” on the radio last night. She said that, in the other place, the Bill had two days in Committee of the whole House—that is not an ideal process. She said that, normally, you would have expected two weeks in Committee in the past, under the normal processes—

[Lord Deben (Con)]

Yes.

[Baroness Ludford (LD)]

I hear the noble Lord, Lord Deben, who knows those processes. They would take evidence and scrutinise line by line, rather like how we are doing now. The Bill did not get that scrutiny in the other place, so it falls to us. Indeed, Dr White said—I hope I do not paraphrase her wrongly—that the Commons are getting used to kicking the scrutiny down to our Chamber. It seems that the Government are trying to squeeze scrutiny out of us and to bully us into not raising issues here. It comes to something when we poor, aged people—perhaps I had better not go on—are the ones who have to stay until 4.15 in the morning because the Government are trying to bully us out of raising essential issues. These included arbitrary detention powers last week—nothing could be more historic in terms of the dangers of executive overreach. So we have to go on a bit, I am afraid.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.

However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:

“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.


It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?

Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.

Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.

Amendment 92A withdrawn.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I agree with the noble Lord that, in that context, the Assembly had competence to consider those issues. However, in the context of the overall Bill, this measure deals with immigration. Therefore, for the reasons I gave, the measures fall within the competence of the United Kingdom Government.

The current rate of dangerous and unnecessary small boat channel crossings represents a clear and present threat to public order, justifying our invoking the relevant provisions of ECAT. They risk lives and place unprecedented and unsustainable pressure on our public services—housing, health, education, welfare and others. The Government are right to take the necessary measures in the Bill to remove the clear opportunities to misuse our modern slavery protections in order to frustrate the duty to remove in Clause 2. On that basis, I commend these clauses to the Committee and invite the noble Lord, Lord Coaker, to withdraw his amendment.

[Baroness Ludford (LD)]

Before the Minister sits down and the noble Lord, Lord Coaker, jumps up, could I ask the Minister something? Unless I was being inattentive, in which case I apologise, I am not sure that he answered the point raised by the noble Lords, Lord Weir and Lord Morrow, about the Windsor Framework—which is to be known as the Northern Ireland protocol—the duties in it and the application of EU law. He mentioned the trafficking directive and the victims directive. How is the Bill compatible with those obligations in Northern Ireland? If I have got it wrong, the noble Lord, Lord Morrow, will correct me.

[Lord Morrow (DUP)]

I am happy to confirm that the noble Baroness is right.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

Moved by

[Baroness Ludford]

98ZA: Clause 29, page 36, line 13, at end insert “or another international agreement to which the United Kingdom is a party”
Member’s explanatory statement
This amendment ensures that due regard is given to other international agreements when indefinite leave to remain is considered by the Secretary of State under Clause 8AA(5).

[Baroness Ludford (LD)]

My Lords, I am going to do two things that the Government Chief Whip does not like. First, I am going to take a little time over my remarks in moving this amendment. Secondly, I am going to read my speech, because these are very complicated matters in Clauses 29 to 36 and I want to be sure that I am covering what are quite dense political points. What we are doing at the moment is not just a question of opining on an issue of the day; we are actually analysing crucial legal provisions in a piece of legislation so I do not apologise.

I shall speak once in a single contribution covering my clause stand part on every clause in this section of the Bill and my Amendments 98ZA and 98EA to Clauses 29 and 35 respectively. The clauses are extremely important and, in my view, regrettable provisions. They are pernicious in depriving refugees who ever met the four conditions in Clause 2 of any chance, long term, of integrating into and contributing to our society by denying them any prospect of settlement or citizenship, with few exceptions. British citizenship enables a person to live and work in the UK permanently, vote, hold public office and participate fully in British life in a way that no other type of status allows.

The amendments in the names of the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, focus specifically on those entitled to various kinds of British citizenship who need to register to secure recognition of that, and I pay tribute to their work on this, which I know has a particular focus on children.

I am taking a global view of the operation of this section of the Bill, whether on entry, leave to remain or any kind of citizenship, whether by registration or naturalisation, because the issues are interrelated. The clauses impose lifelong prohibitions on lawful re-entry or gaining leave to remain in the UK and on grants of citizenship, as opposed to the maximum 10-year re-entry ban under the current Immigration Rules. They are an extension of the whole deterrence agenda and are in conflict with several international obligations. The clauses breach Article 8 of the ECHR and the right to private and family life because they are axiomatically disproportionate. A blanket ban allows for no individual consideration whatever, such as in no possible circumstances could you ever be granted status. The UK has, for instance, certain positive obligations under Article 8 to allow family reunification, such that failure to allow a relevant individual to reunite with their family members by entering or settling in the UK could breach those obligations. The breach of Article 8 ECHR could even escalate to a breach of Article 3, which bans torture or inhuman or degrading treatment. It is also unclear, as a practical matter, where the Home Secretary has determined that a human rights claim or asylum claim is inadmissible by virtue of Clause 4, how an individual could apply to the Secretary of State for an exception to be made in their case. Perhaps the Minister could put me right on that point.

The Bill is in a multitude of ways incompatible with the UN Convention on the Rights of the Child, which protects the right of children to a nationality, prohibits discrimination and requires that the child’s best interests are counted as a primary consideration in actions concerning them. The Bill is also incompatible with current UK law, such as the Children Act 1989.

The JCHR, which I thank for its excellent report published yesterday—in which, as I am no longer on the committee, I had no part—highlights the legal problems with the Home Secretary’s discretionary exception-making powers. Giving her discretion to act in accordance with the UK’s international obligations also means giving her power to act in breach of them, and a refusal to exercise discretion may not be capable of an effective challenge. The UNHCR says:

“In order to bring this section of the Bill into line with the UK’s obligations under international law, the exceptions to the ineligibility for all forms of leave and for citizenship should be based on compliance … with European Convention on Human Rights and other international agreements and those decisions should not be left to the discretion of the Secretary of State”.


Where a breach of the UK’s international obligations would otherwise occur, the Home Secretary should surely be under a duty to make an exception, rather than have a discretion to do so. If a person entered the UK by irregular means but could not, for whatever reason, be removed, Clause 29 in conjunction with Clause 4 would prevent them from regularising their stay in the UK, leaving them in perpetual immigration limbo and would of course be the prelude to their having no chance of access to citizenship. Depending on the length of the delay and the private and family ties they have generated during that delay, this could violate the UK’s positive obligations under Article 8 of the ECHR, the refugee convention, the convention against statelessness and the UN Convention on the Rights of the Child, to name but the most obvious ones.

UNHCR comments that, as at present the UK is effectively unable to remove asylum seekers to third countries:

“It is entirely foreseeable—and in Clause 29-36, expressly foreseen—that many refugees and stateless people who will be ineligible for any form of leave to remain will nonetheless remain in the UK for extended periods of time, if not indefinitely, trapped ‘on the margins’ of society”.


Throughout proceedings on the Bill, beginning with Second Reading, many of us have raised this worry about people being left in limbo. Because we lack the impact assessment from the Government, we all have to go on the one from the refugee commissioner, which estimates that there could be 200,000 people within three years, marginalised, in limbo, destitute—really healthy for our society.

Even if the Home Secretary exercised her discretion to grant some form of leave eventually, anyone who had ever been subject to the removal duty would be permanently ineligible from becoming a British citizen through several of the main routes available under the British Nationality Act 1981. However, Article 34 of the refugee convention requires contracting states as far as possible to

“facilitate the assimilation and naturalization of refugees”.

The impact on children of a lifelong prohibition on re-entry or gaining leave to remain could be particularly severe and is difficult to reconcile with the UK’s international and domestic obligations. Consideration of the best interests of an individual child is absent from Clause 29, but how can a blanket ban be in the best interests of a child for the purposes of either Article 3 of the UN Convention on the Rights of the Child or, domestically, the Children Act 1989 or Section 55 of the Borders, Citizenship and Immigration Act 2009?

The Government have acknowledged that children affected by this Bill

“will rarely qualify for citizenship”

if they or a relevant family member are subject to Clause 2. The JCHR considers that this seems to contravene Article 2 of the UN Convention on the Rights of the Child, which prohibits the discrimination or punishment of a child on the basis of the status of or activities of their parents or guardians. Where the child, as will of course be the case, will have had no control over their parents or the decisions which led to them arriving in the UK irregularly, the automatic imposition of a lifelong ban which they then have to convince the Home Secretary to reverse seems to fall within the definition of a punishment. Can the Minister tell me how Clause 29 is compliant with the Supreme Court case of Zoumbas and subsequent case law on the issues concerning children’s best interests in an immigration context? How can routine application to children of a blanket ban on entry and leave to remain without consideration of their particular circumstances possibly be lawful?

I am on my last page. The Home Secretary’s discretion under Clause 29 when deciding whether to lift a ban on limited leave to remain has to be exercised so as to avoid a breach of the ECHR or any other international agreement to which the UK is a party but, in a similar situation with regard to a grant of indefinite leave, only conformity with the ECHR is said to be relevant. Perhaps the Minister can explain the contrast between those two situations in Clause 29, because I have not managed to pin down the rationale. My Amendment 98ZA in any case adds in other international agreements so as to align the two legs of Clause 29 on leave to remain.

Many children, either because they arrived unaccompanied as a small child or because removal has not been possible in practice, may be born or spend their entire childhood here and have a solely British identity. The Bill would mean previously acceptable routes to citizenship, such as the discretionary route or the settled route, being either blocked or fundamentally altered. The 10-year route would be possible in theory but, for children whose parents were irregular entrants, those parents could be prohibited from obtaining leave to remain, citizenship and employment, thus creating instability and poverty in the child’s life.

The Bill would also put stateless children at significant risk. If a relevant family member was an irregular entrant subject to Clause 2, they and the stateless child would be subject to mandatory removal, jeopardising the child’s years of residency and potentially condemning the child to a lifetime without citizenship. Clause 35 as originally introduced would in fact have allowed the Home Secretary to make an exception and grant nationality if there were compelling circumstances or it was necessary to comply with the UK’s obligations under not just the ECHR but any other international agreement to which the UK is a party. However, unaccountably, that latter part has been removed, risking the UK being in breach of its legal obligations under those other international agreements.

Even if ECHR grounds are not established, the UK’s legal obligations under the UN Convention on the Rights of the Child may be breached under the prohibition of discrimination or punishment of a child on the basis of the activities of their parents; I have referred to this. This backwards redrafting appears to have eliminated an avenue for stateless people, refugees and others to obtain British nationality in reliance on the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child. Can the Minister explain, therefore, why the Government have narrowed the available exceptions between the original draft of the Bill, as considered in the other place, and the Bill as it came to this House? I hope that, unless a convincing answer can be given, this House will see fit at a later stage to seek to restore the grounds for making exceptions under Clause 35 to the version introduced in the other place; namely, on the grounds of both the ECHR and any other international agreement.

I hope that I have explained sufficiently why these Benches have tabled amendments and clause stand part notices, which would remove all the clauses in this part of the Bill and at least bring the Home Secretary’s exercise of discretion in line with international law. I beg to move.

[Lord Moylan (Con)]

My Lords, I rise to speak to a number of amendments in this group in my name; namely, Amendments 98A to 98H. I also oppose Clauses 33 and 34 standing part; those notices stand in the name of the noble Baroness, Lady Ludford, and I have added my name to them. I am grateful for the support of the noble Baroness, Lady Lister of Burtersett, for each of my amendments and the clause stand part notices. This is a coherent suite of amendments: they do one thing but are necessary to do that thing throughout a whole section of the Bill that, in essence, covers Clauses 30 to 36, which stand together as a form of deprivation. I am grateful to Amnesty for its assistance in drafting these amendments; I should also say right at the outset that I am grateful to the Minister, my noble friend Lord Murray, for the time he gave to a meeting in advance for us to discuss them.

The essence of what is happening is that the Bill has a two-step deterrence mechanism. It is frankly and openly deterrent, designed to deter people from setting off on a certain course. The first step in that deterrence, and to my mind a very powerful one, is the prospect of rapid removal from the United Kingdom to another country. Coming on top of the money that people have paid, as they have in many cases, to cross the channel or for whatever their mode of arrival, I would have thought that the prospect of immediate removal is a very significant deterrent indeed.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My Lords, clearly this needs to be looked into and I hear what the noble Baroness says. After the conclusion of the Committee we can have that meeting, explore the issue and I can respond in full. I am certainly not unsympathetic to the points raised.

The benefits of permanent settlement and British citizenship should not be available to those who come to the UK illegally. These clauses serve to underline our core message that if you come to the UK unlawfully, you will not be able to build a life in this country. I commend Clauses 29 to 36 to the Committee and invite the noble Baroness to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, our debate on this group has given me a new respect for nationality law, which is at least as confusing as I ever imagined. It has always been a rather “Here be dragons” subject for me; that has been fully confirmed by this debate. I need to try to make sense of my scribbles.

One thing still puzzles me: I do not really understand why the Government are excluding registration for some forms of British citizenship but not for others. I remain bemused by that; I shall have to read exactly what the Minister said in Hansard. Perhaps the noble Lord, Lord Moylan, grasped that explanation better than I did.

I have sympathy with the particular issues raised by the noble Lord, Lord Moylan, and the noble Baroness, Lady Lister, on registration. I happen to think that there is more commonality with the issue of excluding routes to naturalisation than the noble Lord, Lord Moylan, wishes to acknowledge or give any quarter to, but on the issue of registration he made some important points. I wish him well in his pursuit of those issues with the Minister, but I also believe that there are serious issues around excluding people from the right to remain and a route to citizenship.

I did not grasp the Minister’s explanation of why the phrase “other international agreements” was taken out by the Government. Why did you—I do not mean the Minister personally; I mean the Government and the Home Secretary—put it in the original draft of the Bill a few months ago and then take it out if it did not meet the tests of clarity and concision? I think that was the Minister’s explanation. I accept that taking out those few words makes the clause more concise, but I do not think that doing so makes it clearer because we are then left wondering how the Government are going to secure compliance with those other international agreements —including the refugee convention, the statelessness conventions and the UN Convention on the Rights of the Child—which are not referred to in the Bill.

In answer to the noble Baroness, Lady Chakrabarti, the Minister tried to explain that hanging fast to the ECHR was some new discovery by the Government. As I said last week, we tend to find it quite confusing as to when the Government like the ECHR and when they do not. They appear to act rather fast and loose on this subject.

I applaud the probing amendment in the name of my noble friend Lady Brinton. I hope that she gets a fruitful meeting with the Minister because, as she and other noble Lords said, this issue seems to be the subject of considerable muddle and is having a severe impact on people’s lives. It is giving them extra anxiety. They have had to leave home and come to this country, but now they are being given the runaround by Home Office staff.

I was left unclear, it has to be said, on the situation raised by the noble Baroness, Lady Kennedy. What will happen to the dependants of BNO status holders who are having to leave Hong Kong irregularly and perhaps also arrive in this country irregularly? I am not clear whether we are sure about how their welfare and status will be assured. The Minister said that BNOs are not covered by this Bill, but if somebody who is not a BNO but is a dependant of one arrives in this country irregularly, surely they will potentially be subject to the Clause 2 duty to remove.

Also—and almost finally—the noble Lord, Lord Moylan, highlighted a very interesting contrast between the Government wanting a duty to remove people but wanting only a discretion to be fair to them in legal and human rights terms. That does not seem very consistent. So I end by saying that I still feel very firmly that the duties under Clause 29 and 35 should be expressed in terms of not a discretion but a duty to obey our international legal obligations under the ECHR and other international treaties that we have signed.

--- Later in debate ---

Debate on whether Clause 37, as amended, should stand part of the Bill.

[Baroness Ludford (LD)]

I warned your Lordships that I would keep popping up this evening, but I am glad to say that the cavalry is coming to my assistance. On the Bench opposite there are all my legal heavyweight friends who are going to row in on this issue. In moving that Clause 37 should not stand part of the Bill, I shall speak similarly with regard to Clauses 38 to 42 and in support of my Amendments 114 and 115 as well as all the other amendments in this group.

At the moment, under existing law, a human rights claim would effectively suspend a claimant’s removal; the suspensive effect of a human rights claim is a crucial safeguard against individuals being removed to face human rights abuses before the validity of their claim has been established. As was referred to in earlier groups, we on these Benches believe that pursuing a claim from another jurisdiction is likely to be very difficult and in some cases impossible. We were talking about trafficking victims earlier, but I contend that it applies to anyone trying to pursue a claim from abroad. The European Court of Human Rights has held that the right to an effective remedy under Article 13, taken together with Articles 2 and 3, guarantees the ability to present an asylum claim effectively. We would say that you cannot do it effectively if you are outside the country.

Clause 4 of the Bill makes it clear that the Clause 2 duty on the Secretary of State to make arrangements for removal will still apply to a person making a claim that removal would violate their human rights. The continuing application of the duty means that, under the Bill, these claims would all be non-suspensive. The Bill provides narrow exceptions to this non-suspensive effect by establishing two categories of suspensive claims that prevent the removal of the claimant while they are ongoing: the serious harms suspensive claim and the factual suspensive claim. These are the only ways in which anyone who satisfies the Clause 2 conditions—whether they are seeking asylum, have been trafficked or have otherwise come without permission—would be able to challenge their removal before it takes place. Even a successful claimant will remain subject to the Secretary of State’s removal duty and prohibition on getting leave to enter or remain under Clause 29, as we have just been discussing, and will thus remain in a state of limbo regarding their immigration status—at least theoretically still awaiting removal—so it does not necessarily solve the problem. Most human rights claims will stay non-suspensive and have to be pursued from outside.

I turn to the test for these suspensive claims, which I think is where some of the amendments come in. The test established in the Strasbourg court is where substantial grounds have been shown for believing that the person in question would face a real risk. However, this appears to mean that individuals who can establish a real risk of treatment contrary to Articles 2 or 3 but cannot establish that it is imminent would still be removed under this Bill and left to pursue their claims from overseas. The JCHR says, and we on these Benches agree, that this would likely breach the Government’s obligations under the ECHR—the convention to which the Government are newly converted.

Another problem is that a serious harm suspensive claim would have to contain compelling evidence that the serious harm condition is met. This appears to be a new evidential standard created by this Bill. Freedom from Torture told the JCHR that this amounts to

“an extremely high evidential threshold which may, in fact, be higher than ‘real risk’ or even ‘the balance of probabilities’. How an individual who has just fled persecution could provide evidence to this threshold is unclear”.

The next problem is that the Bill retains a power for the Secretary of State to make provision about the meaning of “serious and irreversible harm” in regulations. Our Constitution Committee considers that

“the implications of this definition are so significant that it should be amended only by primary legislation unless any delegated power to do so is limited to prevent fundamental risks of harm being removed from the definition”.

The committee supports my proposition that Clause 39 should be removed from the Bill or heavily circumscribed.

This is also the subject of criticism by the JCHR. Not only does the committee

“urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims”

but it believes:

“The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations”


and:

“Clause 39 should be removed from the Bill”.


Lastly, timeframes are the subject of my Amendments 114 and 115. In the Bill, the Government are imposing very tight timescales: the lodging of a claim within seven days following receipt of the notice, a decision within three days and appeal to the Upper Tribunal within six days. My amendments aim to increase both the claim and the decision deadlines to 30 days. All in all, my amendments in this group, with the support of other noble Lords, are designed to restore better fairness to the possibility of people appealing against removal. I beg to move.

[Lord Etherton (CB)]

My Lords, I will speak to a number of amendments in my name in this group: Amendments 100, 102, 103, 104, 105, 107, 108, 109, 111 and 112, all of which are supported by my noble friend Lord Carlile of Berriew, who is a co-signatory. I am grateful to him and to the noble Lord, Lord Cashman, who has also supported one of them. I am also grateful to the Minister for a remote meeting with me to discuss my amendments, which I appreciated.

We are here dealing with the situation where a person claiming refugee status has been given a third country removal notice. That notice will be for removal to a country specified in Schedule 1, and the refugee claimant has a well-founded fear of persecution if they are removed to that country. Under the Bill, the removal notice can be challenged only by a serious harm suspensive claim. The serious harm condition is defined in Clause 38(3): the person claiming refugee status must, within a specified period called “the relevant period”,

“face a real, imminent and foreseeable risk of serious and irreversible harm if removed … to the country or territory specified in the third country removal notice”.

The majority of my amendments in this group focus on the inappropriateness of the requirement to show an imminent risk of “irreversible” harm within a specified period.

The first point to note is that, by way of general observation, whereas the serious harm suspensive claim focuses on the situation of an individual claiming refugee status, the well-established approach both internationally and under our own jurisprudence is to ask, in the case of a “particular social group” within Article 1A(2) of the refugee convention, whether the members of that group have a well-founded fear of persecution by virtue of being a member of that group.

Secondly, that change in approach is explained by the appearance, for the first time, of a requirement for an individual claiming refugee status to be able to resist removal to an otherwise unsafe country only if they can additionally show that they would personally suffer serious and irreversible harm. There is no such requirement in the refugee convention or in any jurisprudence of our own courts or, so far as I am aware, those of any other country.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I can only repeat that the Supreme Court decision in HJ (Iran) and the other documents provided by the UNHCR are not relevant in this context because they do not deal with the same mechanics. Those cases were asylum or protection claims, whereas this deals with the specific statutory category of serious and irreversible harm. Of course, although there may be some crossover in the arguments deployed, ultimately they address a different issue. I cannot provide the type of assurance that the noble and learned Lord seeks, I am afraid.

[Baroness Ludford (LD)]

My Lords, if two noble and learned Lords and one learned with a small “l” noble Lord—if I may call the noble Lord, Lord Carlile, that—are frowning and struggling to understand what the Minister has just said, there is no hope for me. I must confess that I found it pretty difficult to understand. I would be most grateful if the Minister could put the letter that he has promised the noble and learned Lord, Lord Etherton, in the Library so that the rest of us can try to understand.

It would be of great concern if the worry that the noble and learned Lord raised was to be shrouded in doubt in terms of the status of the Supreme Court case, which said that you cannot expect a gay person to have to live in a closeted fashion—that is, you would expect them to be able to live openly for a country to be considered safe. If that precedent were to be put in any doubt, it would have serious implications, as would the concerns that were raised about healthcare; I am not sure what point we have precisely got to on that subject.

The overall concern, if I may put it like this, is if it ain’t broke there is no need to fix it. The courts seem to have got a handle on these issues, and what the Government are doing with their word salad is creating quite a lot of instability and confusion in something that is being handled pretty competently by the courts. They have reached some position on how to assess issues such as risk, foreseeability and reality of risk—and here the Government come, like a bull in a china shop, trying to upset and disturb all that. I am rather minded to think that the Government would do better just to leave it to the courts.

The Minister was not very persuasive in his argument that the wording in the Bill is necessary to stop projections of hypothetical risk. Surely, the courts can be relied on to filter out fantastical imaginings when they assess the reality of risk. I am afraid I found his responses on this group pretty unpersuasive. He keeps coming back to this hoary old chestnut that the use of detention is necessary to ensure swift removal. The idea that this Government are going to ensure swift removal of a lot of people strikes most people living in the real world, to use that phrase again, as for the birds. However, with that said, I shall not oppose the clause standing part.

Clause 37, as amended, agreed.

--- Later in debate ---

Debate on whether Clause 43 should stand part of the Bill.

[Baroness Ludford (LD)]

Yes, I am sorry, it is me again. I am looking forward to the next group, when someone else will be in charge.

I shall speak to the question of whether various clauses should not stand part of the Bill. I am grateful for the support of the noble Baroness, Lady Chakrabarti, on Clauses 49 and 51, the ouster clauses. The situation at the moment is that, generally, immigration and asylum decisions can be appealed to the First-tier Tribunal with a further appeal to the Upper Tribunal on a point of law, but under the Bill, the rejection of a suspensive claim may be appealed only to the Upper Tribunal, bypassing the First-tier Tribunal. The fear is that while reducing appeal rights may speed up the process, it could be at a significant cost to justice. As with the suspensive claims themselves, the Bill requires the notice of appeal to be supported by compelling evidence, and this could result in a notice of appeal being rejected despite there being evidence that, while not coming under the definition of “compelling”, is nevertheless sufficient to establish the normal tests that the Upper Tribunal would apply.

Also, if the Secretary of State certifies that the claim is clearly unfounded, there needs to be permission from the Upper Tribunal to appeal to the Upper Tribunal and this will be granted only if the Upper Tribunal considers that there is compelling evidence that the serious harm condition is met, with the additional requirement that serious harm is “obvious”. This could result in the Upper Tribunal refusing permission despite being satisfied that the serious harm condition is met. It could have to refuse it on the grounds that it is not obvious serious harm, which could expose the claimant to a risk of irreversible harm in breach of the convention.

We come to the denial of the right to judicially review the decisions of the Upper Tribunal. Justice said in its evidence to the JCHR that since vulnerable individuals will be

“restricted to one, fast-tracked hearing, it is even more important that there is proper oversight from experienced judges”.

The Bill therefore denies the right to judicial review even where an error has been made in reaching the decision. It insulates decisions of the Upper Tribunal from any kind of judicial oversight or correction by the higher courts. This is a cause of considerable worry. The risk to those removed despite having a human rights claim pending is extremely serious. If appeal rights in suspensive claims are limited, there should at least be effective judicial supervision and the Bill should be amended to remove the unnecessary ouster of judicial review.

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All in all, this is a coherent and logical framework for appeal. It is true, if I may use the word colloquially, that it is relatively tough in terms of time limits, subject to the possibility of extension, but the procedures are essentially fair and will result in just decisions.

[Baroness Ludford (LD)]

I thank the Minister for his responses. I am not really persuaded by his answer on Clause 49: that these are just some little minor issues that cannot be JRed from the Upper Tribunal. Subsection (3) states that

“the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision”.

So the fact that it has made an error is apparently not subject to judicial review, which seems to me not particularly minor. An application for judicial review can be made if the tribunal

“has acted … in bad faith or … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice”.

I do not suppose those crop up very often, and I would imagine that bad faith would be very difficult, if not impossible, to establish, so I do not think there is much wiggle room in Clause 49—but those who know more about how these things work might have other thoughts, and if they do I would be grateful if they would share them with me in due course.

I do not think the Minister covered the point about First-tier Tribunal judges being appointed to act as Upper Tribunal judges. If he did not—I will check what he said—perhaps he could write to me with any answers.

[Lord Bellamy (Con)]

I will happily write to the noble Baroness. I thought I had covered it when I said that it was creating a pool. The noble Lord, Lord Ponsonby, nods. It is creating a pool of judges so we have enough judges of relevant standing and experience to decide what are essentially factual questions. These are relatively limited factual questions.

[Baroness Ludford (LD)]

I apologise. I was clearly inattentive as I was trying to look at the other groups that are coming up. Even so, I think concerns remain about promoting, and possibly overpromoting, people before they are ready. What the Government are proposing to do seems a little odd.

On the tribunal rules, I note the Minister’s citation of a precedent, but at one point he said that the problem is that the committee works too slowly. I would have thought that if processes do not work very well or do not work in a reasonable timeframe, the way to resolve that is to work with the relevant bodies to speed them up rather than to grab power from them. However, I find that this Government seem to have an appetite for grabbing powers from everybody else, whether it is the courts, other agencies or indeed Parliament. I worry that the Government are getting rather too big for their boots. Perhaps one day they will even come a cropper. That said, I think I have probably taken these issues as far as they can go.

Clause 43 agreed.

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[Baroness Ludford (LD)]

My Lords, I can be relatively brief. I thank the noble Baroness, Lady Chakrabarti, for introducing her amendments so powerfully and with such knowledge. I agree with her that there is a curious disparity between Clauses 52 and 53, and my proposition is that they should be swept away and should not stand part of the Bill. As she said, the Home Office getting its act together and making decent decisions in the first place would be how to reduce the workload and what the Government seem to think is the overreach of the courts—I do not agree that it is overreach. If you get things right first time, you would not need to keep attacking the courts.

Clause 52 is a straightforward ban on domestic courts granting interim remedies to stop the removal of a person from the UK. We are familiar with this “courts are enemies of the people” stuff. The interim remedies are valuable because they allow the courts to maintain the status quo while a claim is considered. When the harm in question is a violation of human rights, the ability to freeze the situation is valuable. Denying the courts the ability to use interim remedies when justice demands it undermines the guarantees of Articles 2 and 3 of the ECHR. Clause 52 should be removed, and I am glad to say that the JCHR agrees.

Clause 53 is a different animal altogether. It is really rather peculiar, and it takes a strange and circuitous route to block interim measures from Strasbourg, by giving a Minister discretion to decide whether or not to disapply the duty on the Home Secretary to remove the person. Given the negotiations under way over the procedure for deciding interim measures, as reported in the press and alluded to by the noble Baroness, Lady Chakrabarti, this clause appears to be more politics than law. It is strange, given that the Prime Minister was recently in Reykjavik, at the summit of the Council of Europe—and given that the JCHR’s recent report says:

“We welcome the Prime Minister’s recent reaffirmation of his ‘deep and abiding’ commitment to the ECHR”


and the European Court of Human Rights, made at that very recent summit.

Then, the Government propose in Clause 53 to give Ministers permission to act in direct violation of the UK’s obligations under the ECHR. Talk about right hand and left hand: it is not only incoherent but provocative. That does not seem wise, if the aim is open and good-faith negotiation on possible procedural reform. It is very reminiscent of the way the Government went about dealing—or rather, not dealing—with Brussels over the Brexit negotiations: always aiming to antagonise, then turning around and saying that they are punishing us.

Clause 53 is irresponsible and it is not going to progress any negotiations, in so far as they are necessary, and given the small number of interim measures issued by the Strasbourg court, it seems to be taking a sledgehammer to crack a nut. Not only is Clause 53 likely to hinder discussions on procedural reform, if that is necessary; it makes broader conflict with the European Court of Human Rights all but inevitable. If there is dissatisfaction with the procedures in Strasbourg, the solution is to pursue reform at the European level—and there have been many instances of discussions in the Council of Europe about the processes of the convention and the court. It is not even saying, “We will never obey interim measures”; it gives the Minister the discretion to refuse to comply with our obligations by obeying interim measures. Surely, the UK’s interests are better served by remaining, in the Foreign Secretary’s words, a “serious player” on the world stage, rather than undermining its own influence in this way. I therefore believe that Clauses 52 and 53 should not stand part of the Bill.

[Lord Carlile of Berriew (CB)]

I want to make a brief contribution on Clause 53. We cannot ask the Minister to comment on the impact assessment, because it is yet to be born, but we have the advantage of the report of the Joint Committee on Human Rights, referred to by the noble Baroness, Lady Ludford. At paragraph 12, on page 121 of that report, in its recommendations and conclusions, it says that

“clause 53 gives Ministers legislative permission to act in direct violation of the UK obligations under the ECHR. Where a Minister chooses to ignore an interim measure and therefore breach Article 34 of the ECHR, clause 53 also prevents the courts from having regard to interim measures when considering proceedings under this Bill. This clause therefore permits deliberate breaches of our obligation to comply with interim measures of the ECtHR. Clause 53 must be removed from the Bill”.

That is the conclusion of an all-party Joint Committee of both Houses of this Parliament, and I trust that, in his response to the debate, the Minister will respond and give us his reasons for not accepting that carefully considered conclusion of the committee in one of the largest reports it has ever produced—and in the time when they could have produced 20 impact assessments.

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[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Baroness, Lady Chakrabarti, threw down a verbal gauntlet, so let me try to pick it up and answer the central question that she posed. That was this: why should the UK think that it does not have to abide by Rule 39 indications from the court in Strasbourg? The short answer is that the Strasbourg court does not have jurisdiction to grant those Rule 39 indications and certainly not in the manner in which they are currently granted. I will develop that point shortly, but the fact that it is a jurisdictional point—I would say, with respect, that jurisdiction ought to unite all lawyers, even commercial lawyers—means that whether the court has jurisdiction or not is pretty important. I will focus my remarks on Clause 53 and the amendments thereto. I yield to nobody in my respect for the rule of law.

There is a great danger, which happens here and in other places, of the following syllogism being rolled out: the rule of law is a good thing, this—whatever issue you are talking about—is a good thing and therefore this is part of the rule of law. Well, it is not always. Even what is incorporated within the rule of law is a matter of some debate. One can compare the famous work of Lord Bingham, which is expansive to the work of Sir John Laws, which is rather narrower. But this is not about whether we have respect for the rule of law. It is about whether the Strasbourg court in fact has jurisdiction. To put the matter in that way shows respect for the rule of law, because jurisdiction is fundamental to that. Certainly, as far as I am concerned—I am sure as far as the Minister is concerned as well— words such as “game” and “swindle” are not entirely appropriate ways of approaching this topic.

I spoke on this point on Second Reading; we are now in Committee and I am not going to give a Second Reading speech. I expanded on it for those few people who did not read Hansard in the Daily Telegraph a week or so ago. What happened since Second Reading —I touched on it in my piece in the Telegraph—is, as my noble friend Lord Sandhurst mentioned, a powerfully argued paper from Professor Richard Ekins at Policy Exchange. It is unfortunate that in opening the debate on this the noble Baroness, Lady Chakrabarti, did not engage with any of the arguments in that paper; I do not think that she even mentioned it. The paper is a fine piece of legal work. You can agree or disagree with the conclusions. I am going to be disagreeing with the conclusions of the Joint Committee on Human Rights. That, I hope, does not indicate any disrespect or discourtesy towards any of the people who sit on that committee; I just disagree with their conclusions. But I am going to deal with their argument because, if I do not, it is difficult to see how the land actually lies. Again, as my noble friend mentioned, we have a preface and a foreword by Lord Sumption the noble and learned Lord, Lord Hoffmann, two names that, frankly, should make any lawyer sit up and take notice. Even if one does not agree with the conclusion, one has to engage with the arguments.

The main thrust behind the amendments and the clause stand part debate is that the clause breaches international law. That raises the question of whether we have an international law obligation to abide by Rule 39 indications. The short answer is that, no, we do not. Why do we not? Because we have signed up in the convention to abide by judgments of the Strasbourg court against the UK and Article 46(1) where the judgment is of the full court. This is not a final judgment—it is not of the full court—so we have no obligation under Article 46(1).

The Strasbourg court then tries to ground its jurisdiction in Article 34. The reason why it does that— I will not repeat what my noble friend said—is that there is a history to this. There was a suggestion in the draft, back in the 1940s, that the court would have the right to give interim relief. That was deliberately excluded. People tried to persuade the court that it should have that power, but that was rebuffed. The court gave a series of judgments setting out that it did not have that power, but then it did a volte-face and by a majority—I think of one, but I may be mistaken—it held that it did have that power. Of course, the court can change its own jurisprudence, but what it cannot do is to arrogate to itself the jurisdiction. In international law, the court has only the powers that the member states have given to it.

What does the court do? The court seeks to ground its power in Article 34 of the convention. What is Article 34? It is the right not to have your right of access to the courts impeded. I accept that there will be cases where you could justify interim relief and Article 34; a death penalty case would be one of them, as you cannot unscramble that later on, for obvious reasons. However, there will not be many cases like that. The Rwanda case last year was not a case like that. That was a case where the High Court, the Court of Appeal and the Supreme Court had all held that the Government’s promise to bring people back if they were to win meant that there was no impedance of their human rights. That point was decided three times in this jurisdiction, so that was certainly not an Article 34 case.

It also does two other things. First, it shows that if the Strasbourg court is doing a balancing act under American Cyanamid, it is odd that it reached completely the opposite conclusion from that reached by three courts here when applying that approach. Secondly, it belies another point put to the Committee by the noble Baroness, Lady Chakrabarti, in relation to Clause 52. She made the point that if courts here have the ability to grant interim relief, Strasbourg will not interfere. Three courts here heard the Rwanda case and Strasbourg still interfered. I am not sure that that argument works.

Where I agree with the noble Baroness, Lady Chakrabarti, is that there is a procedural problem as well as a substantive problem. The procedural problem cannot solve the jurisdictional problem but makes it worse. Why is there a procedural problem? There is a procedural problem because the rules and procedures do not cater for this jurisdiction, as it has been created out of whole cloth. That is why we have a system at the moment where there is no effective natural justice, where these injunctions are given and indications are made without the state being heard and, importantly, without there being a proper opportunity for the state to put its case even after the indication has been made. That is why these orders are given by a single judge when—the detail is in Professor Ekins’s paper—under the structure of the Strasbourg court a single judge should not have and does not have the powers to do this.

Does this mean that there are no circumstances in which a Rule 39 order can be justified? No, I do not go so far as that. I have already identified a death penalty case as such a case. However, one needs to have a proper review of the court’s jurisdiction. One also needs to have a proper procedure; again, I agree with the noble Baroness, Lady Chakrabarti, who said that it ought to be possible to create such a procedure. It ought to be possible and it must be possible. If one therefore has a Rule 39 indication with a proper procedure which is grounded in Article 34, which recognises the principle of subsidiarity that is now inherent in the court’s jurisprudence and which gives the state an opportunity to come back in a proper timeframe against the order that has been made, I suggest all of that is the way through.

I will take two minutes, if I may, to say something about the report of the JCHR, because it is an important piece of work and I have read it carefully. On page 45, there is a heading before paragraph 129:

“What are the legal implications of this clause?”


This is Clause 53. It goes on to say that some commentators have suggested that

“the UK is not bound to comply with”

Rule 39 orders. It goes on:

“This is particularly because Article 46 of the Convention, which concerns the ‘Binding force and execution of judgments’, only commits the UK to abide by ‘the final judgment of the Court’ and does not mention interim measures”.


I agree with that, except it is only judgments against the UK, but we will let that pass. It goes on to say that the Grand Chamber in Strasbourg

“has held that a failure to comply with interim measures would amount to a violation of Article 34”.

That is right; that is what it has held. It goes on to say, in paragraph 130:

“It is therefore a binding obligation, as a matter of international law, for the UK to act in accordance with interim measures”.


What is the force of that “therefore”? Because the Strasbourg court has held—in the last sentence of paragraph 129—that it would be a violation of Article 34, it is therefore a binding obligation. With the greatest respect to the Committee and whoever authored that part of the report, that is what—before the noble and learned Lord, Lord Woolf, banned the use of Latin in our domestic courts—used to be called an ipse dixit. That “therefore” is a conclusory statement; you simply cannot justify the jurisdiction by saying that the court itself says that it has jurisdiction. That is an entirely circular argument. If I could win all my cases with reasoning like that, it would be a very good thing, even though I am only a commercial lawyer.

[Baroness Ludford (LD)]

I beg the noble Lord’s indulgence in standing up and asking him a question. I was piqued by a tweet by the noble Lord, Lord Anderson of Ipswich, who is not in his place. He intervened on a Question from the noble Baroness, Lady Chakrabarti, last Tuesday. The noble and learned Lord, Lord Bellamy, was replying. The noble Lord, Lord Anderson, pointed out:

“The member Governments of the Council of Europe, including our own, have repeatedly confirmed the binding nature of interim measures under Rule 39—in the Committee of Ministers, and in the Izmir and Brighton declarations. Is the Minister proud of the United Kingdom’s record of compliance with interim measures?”


The noble and learned Lord, Lord Bellamy, replied:

“On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views”.—[Official Report, 6/6/23; col. 1244.]


The noble Lord, Lord Wolfson, and others have talked about the paper by Professor Ekins for Policy Exchange and that is a view, but the Minister did not confirm last week that he shared that view. Clause 53 does not actually say that the Government think that interim measures from Strasbourg are not binding. The tweet by the noble Lord, Lord Anderson, noticed that the Minister

“declined to commit to the long-standing governmental position that”

interim measures

“are binding in international law. Views can always change, but surely the government has one”.

What we have not established is what the view of the Government, as opposed to that of Policy Exchange and Professor Ekins, is on whether interim measures from Strasbourg are binding. Our long-standing practice has been to comply with those interim measures. That is what is more important. With full respect to Policy Exchange and Professor Ekins, that is all very interesting, but what is the Government’s view? I do not think that what we are getting out of this whole affair is finding, among this thicket of confusion, what the position of this current British Government is on whether interim measures from Strasbourg should be observed. Indeed, on the Rwanda case, they did observe them, so that is quite different from commentary from Policy Exchange.

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[Lord Hacking (Lab)]

Well, my Lords, I do not know whether the noble Lord thought my speech about sympathy was repetitious. I have not heard it yet today, and I give those words of sympathy with great sincerity.

The important thing is to look at the state of Albania. Albania was a communist state under a particularly vicious dictator, Hoxha, until the mid-1980s. Great steps have been made since then, and when the USSR broke its ranks many Albanians worked very hard in democracy. But things have not always gone right. For example, in 1997 the Government of Berisha, who was then the president of the country, collapsed in the wake of pyramid schemes and widespread corruption. More recently, in February last year the president was subject to impeachment proceedings which were stopped only by the Albanian constitutional court.

I mention that because in the number of years that I acted as an international arbitrator and conducted arbitrations arising out of activities in the former countries of the USSR, time and again one came across very serious corruption which led to feuds and sometimes to heinous blood feuds. Corruption is a matter of great concern, and one wonders exactly how the list of safe states was drawn up; in that list are other countries of similar background to Albania—Bulgaria and Romania to name two. One looks at the Nationality, Immigration and Asylum Act to see what the test is, according to that Act, for the Secretary of State to take their decision. In new Section 80AA(3) it says:

“The Secretary of State may add a State to the list only if satisfied that … there is in general in that State no serious risk of persecution of nationals of that State”.


How strictly has that been applied, if it has been applied at all?

As my noble friend Lady Lister said, there is a lot of evidence of significant and outstanding issues in Albania relating to corruption, trafficking, blood feuds, discrimination and violence against the LGBT community, and stigma and discrimination against ethnic Roma and Egyptian communities and so forth. There are real grounds to be concerned whether, on any definition, Albania is properly placed as a safe country. That view is supported in our own Home Office’s work in 2022 when the UK granted protection status to 700 Albanian nationals, including 60 unaccompanied children.

For all those reasons, I hope your Lordships will feel that they should be on the safe side and remove Albania from the list of safe states.

[Baroness Ludford (LD)]

My Lords, I will speak to the proposition that Clause 57 should not stand part of the Bill. Before I do, let me say that there are various myths arising around this Bill, one of which is that the Government are going to deport vast numbers of people, and another is that speeches from this side of the Committee are repetitious. I think it is regrettable that that sort of claim is being made. I referred at the beginning of proceedings today to the fact that this Bill got almost no scrutiny in the other place. As Dr Hannah White, the director of the Institute for Government, said last night on the radio, it has just come to expect that we will do that job.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

I suggest that the best—indeed, the only—long-term way of addressing unsafe and illegal migration is through global co-operation, both to support people in need of international protection and to share not the burden but the responsibility internationally. We will need to play our part in that. Creating safe and legal routes will help us to fulfil our international obligations, will reduce the incentive for illegal and unsafe migration, will undermine the business of people smugglers and will go some way to meeting the urgent global need to support displaced persons looking for safety. It is not the whole picture but it gives us a good moral and practical basis on which to participate in wider discussions about how to develop sustainable global solutions. This is not a problem that we can ignore, nor one that can be kept at arm’s length across the channel. Creating additional safe and legal routes must be at the heart of the solution.

[Baroness Ludford (LD)]

My Lords, I wish to speak to my Amendment 129 on refugee family reunion. I am grateful for the support of my noble friend Lord Paddick, the noble Lord, Lord Kerr of Kinlochard, and the noble Baroness, Lady Bennett of Manor Castle.

Refugee family reunion does exist as a safe and legal route but it needs to be expanded. I was proud to steer a Private Member’s Bill on that subject; it passed through this House and is currently in the other place. I picked up the baton from my noble friend Lady Hamwee, who has worked on this issue for many years.

The problem at the moment is not only that the safe routes available to refugees are extremely limited; last year, refugee settlement provided in collaboration with the UNHCR decreased by 39% and the issuing of refugee family reunion visas decreased by nearly a quarter—the right reverend Prelate the Bishop of Durham referred to this. In the year ending March 2022, 6,000 family reunion visas were issued. In the year ending March 2023, there were only 4,600—a reduction of 23%. The Bill misses an opportunity for the UK to curb the number of irregular arrivals by creating more routes to safety and—I would like it to fulfil this opportunity—to allow more family members to join those who have reached safety in this country, including by letting separated refugee children be joined by their closest family members.

Last year, the Nationality and Borders Act restricted access to family reunion for refugees arriving in the UK irregularly. Of course, it has failed to replace the Dublin regulations since we left the EU. The noble Lord, Lord Hannay, referred to the hole that exists for international co-operation; we might refer to that later today. Although those restrictions from last year’s Act are beginning to take effect only now, preliminary research from Refugee Legal Support has already found evidence of children who would previously have been eligible for reunification being stranded in Europe and crossing the channel dangerously.

Australia provides an example of the longer-term impact of this sort of restriction. In 2014, Australia reintroduced temporary protection visas—which do not confer family reunion rights—and has seen an increase in the number of women and children arriving via dangerous journeys. We should remember that 90% of those arriving on family reunion visas in this country are women and children. I am sure I do not need to convince noble Lords of the importance of family reunion for refugees’ integration into their new communities. Surely that should be our aim. If we have allowed people the legal right to settle here, and in some cases be on a path to citizenship, surely we should want to do anything that fosters integration and the physical, emotional and psychological adjustment of people.

Refugees separated from their families can, understandably, experience serious mental health difficulties, compounding the trauma that they have already experienced. This means that they are less able to focus on activities which are essential to integration, such as learning English, building new relationships in the community, and working, which is another topic that we will talk about today. In the other place, the Conservative MP Tim Loughton tabled a new clause seeking to expand eligibility for refugee family reunion, and I applaud him for that. It did not get pushed to a vote.

The problem is that current family reunion entitlements are too restrictive. I have mentioned that refugee children are not allowed to sponsor family members within the Immigration Rules, and we have also had the creation of those bespoke pathways, such as the Afghan route, which do not confer protection status, meaning that some resettled people in the UK have no eligibility for refugee family reunion because they do not have the necessary status to sponsor family. All those with protection needs must have access to refugee family reunion. This pathway should be expanded to allow children to sponsor their parents and siblings and adult refugees to sponsor parents who are dependent on them.

We referred on Monday to the Immigration Minister, Robert Jenrick, announcing on 8 June that the differentiation policy, which under last year’s Act decides whether someone is a group 1 or group 2 refugee, would be paused, and that those previously given group 2 status would have their entitlements increased. However, the announcement says only that the policy will be paused. The power to differentiate will still be on the statute book. Can the Minister explain exactly where that leaves us, and the Government’s intention on how to go forward on this? Will they bring forward an amendment to the Nationality and Borders Act to delete group 2 refugees?

This Bill does not deal directly with refugee family reunion, and my amendment is designed to fill that hole. However, the Bill would dramatically reduce the number of people eligible for this route, as we have discussed, because it makes asylum applications from people who travel irregularly permanently inadmissible. They would never be granted protection status and would therefore never be able to sponsor family members. I propose expanding the Immigration Rules to allow refugee children to sponsor parents and siblings, refugees to sponsor their dependent parents, and Afghans settled via pathways 1 and 3 of the ACRS to be able to act as sponsors for the purposes of refugee family reunion.

I am afraid to say that research from the Refugee Council and Oxfam has found evidence of refugees turning to smugglers after realising that there were no legal routes available to bring their loved ones to join them. A lack of access to family reunification does appear to be a key driver of dangerous journeys. As many as half of those seeking to cross the channel from northern France have family links to the UK.

Finally, our Justice and Home Affairs Committee, chaired by my noble friend Lady Hamwee, published a report in February called All Families Matter: An Inquiry into Family Migration. One of its recommendations was:

“The Government should harmonise which relatives are, or are not, eligible for entry and stay across”


various

“immigration pathways and the Government should be transparent about the reasons for any differences”,

because there is variation in the definition of a family.

I am afraid that the Government’s response had me rather puzzled; it appears to be a bit circular. They say:

“We do not think it is … right … to fully harmonise the conditions … There are clear differences between immigration routes relating to family members. Given the broad and diverse offer for family members across the immigration system, it is right that requirements vary according to the nature and purpose of their stay in the UK”.


I felt that that was a bit circular or tautological—I am not sure which is the right description. They say that, because it varies at the moment, it is right that we carry on with the variations. I do not think that any reasons or explanation were given; it was just stating why we go all round the houses.

I urge support for Amendment 129 and suggest that it is an extremely valuable part of the provisions on safe and legal routes; it is a subset, if you like, of everything we are debating this morning. The problem is that the current provisions are far from being sensibly expanded to the benefit of the families—the settled refugees and their families—and our society as a whole. One thing that we often hear from the Conservative Party is that it is party of the family. Many of us would dispute that; but if it is, it should support not only the maintenance but the expansion of refugee family reunion, which is currently going in the wrong direction.

[Lord Carlile of Berriew (CB)]

My Lords, I have added my name to Amendments 130 and 131, but I speak in support of all the amendments in this group.

There have been some very good and persuasive speeches, but I refer particularly—and I am sure that others will understand why—to the speech made by the noble Lord, Lord Kirkhope. Why? For more than one reason. First, the noble Lord was the Immigration Minister at a time of particular attrition in Bosnia, as he referred to, and he has a great deal of knowledge on that matter. Secondly, he has had the courage to make his speech from the Conservative Back Benches in your Lordships’ House, and I particularly look forward to the Minister dealing, line by line as it were, with every point made by the noble Lord.

Thirdly, my belief is that, somehow or other, the Bill is a visceral part of the attempt to win votes beyond the red wall. However, the Government only have to look at the noble Lord’s history to find somebody who has within his blood and bones the red wall: he cut his teeth in the north-east of England; he represented part of another great city in the north-east of England; and he represented his party in Europe, on behalf of areas beyond the red wall. So, if the Government are listening to those whom they are aspiring to gain votes from, perhaps he, above all, is the person they should be listening to at the moment. I hope he will forgive me, because praise from me may not be altogether familiar or welcome.

I hope that everybody in this House wants to stop the boats. My question is: do we want to stop the boats by means within international law and treaties, or by means that are in breach of those international laws and treaties that we have signed? As I pointed out in a debate I think the day before yesterday—although it might just have been early yesterday—the Home Office website, at least when I was speaking very early yesterday morning, still had on its immigration pages inferences that we have to obey international law on immigration and asylum.

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[Lord Murray of Blidworth (Con)]

Obviously, consultation with local authorities is important—they are the primary consultee set out in Clause 58(2)(a)—but, as the noble Lord will see from paragraph (b), other persons and bodies are also possible consultees. All this information will be fed into the decision to be taken by the Secretary of State in drawing up the regulations, and by this House and the other place in discussing them. It is not just about how many people we can house; it is about the whole network of support and integration that we can provide. As the noble Lord will immediately appreciate, Clause 58(5) is there as an enforcement mechanism for Parliament to ask a Secretary of State why they have permitted the cap to be exceeded. That is the purpose of making the Secretary of State lay before Parliament a statement setting out those breaches. That is the purpose of Clause 58(5). It is not envisaged that the Secretary of State will allow the cap to be exceeded, for the sensible reasons that the noble Lord provides.

I must make some progress. Amendment 129, tabled by the noble Baroness, Lady Ludford, seeks significantly to increase the current scope of the UK’s refugee family reunion policy to include additional family members. This amendment needs to be seen in the context of what I submit is already a very generous family reunion policy for bringing families together. Under this policy, we have granted more than 46,000 visas since 2015; that is no small feat, and a fact that the noble Baronesses, Lady Ludford and Lady Bennett, seem to have overlooked.

The focus of our refugee family reunion policy is on reuniting core family groups. This is as it should be. It allows immediate family members—that is, the partner and any children aged under 18—of those granted protection in the UK to join them here, if they formed part of a family unit before the sponsor left their country to seek protection. In exceptional circumstances, children over 18 are also eligible.

There are separate provisions in the Immigration Rules to allow extended family members to sponsor children to come here where there are serious and compelling circumstances. In addition, refugees can sponsor adult dependent relatives living overseas to join them where, due to age, illness or disability, that person requires long-term personal care that can be provided only by relatives in the UK. There is also discretion to grant leave outside of the Immigration Rules which caters for extended family members where there are compelling compassionate circumstances.

Amendment 129 would routinely extend the policy to cover a person’s parents, their adult unmarried children under the age of 25, and their siblings. Extending family reunion without careful consideration of the implications would significantly increase the number of people who would qualify to come here. We must carefully weigh the impact of eligibility criteria against the pressure that this would undoubtedly place on already strained central government and local services.

[Baroness Ludford (LD)]

I am afraid that the Minister’s use of the word “impact” triggered me. It would be very interesting to know, when we get the impact assessment— I hope sooner than “in due course”—the costings the Government would expect from something such as my amendment, or indeed my Private Member’s Bill.

I want to draw attention to something that the noble Baroness, Lady Bennett, mentioned. All the time, the Government imply that those of us who argue for better family reunion, the right to work and not having group 1 and group 2 refugees, are portrayed almost as though we are trying to obstruct the asylum system. Actually, we are trying to front-load it and make it more efficient and streamlined, so that in the end there would not be a backlog of160,000 asylum applications because the system would work better; people would be more integrated and more productive, and would not have to worry all the time about what was happening to their relations.

I am sorry that this has become a bit of a rant but I also have a question. Is the Minister going to cover the point that I felt was not answered in the Government’s response to the Justice and Home Affairs Committee? Why do the Government insist on having all these different definitions of family? Is it not all the time adding more complication into the immigration and asylum system? That is not the best way of getting caseworkers to be able to focus efficiently on their job. It means that, all the time, there are backlogs and inefficiency because the Government insist on not doing the rational thing.

[Lord Murray of Blidworth (Con)]

I recall debating these topics and the very similar text of the noble Baroness’s Private Member’s Bill at its Third Reading. The reality is that she and I differ on the appropriate numbers that would come in and the resources that would then be necessary to attend them. It is simply a policy decision, and we differ on that.

I turn to Amendments 130 and 131, put forward by the noble Baroness, Lady Lister, and the noble Lord, Lord Purvis. These seek to create routes through which an individual may travel to the UK for the purpose of making a claim for asylum or protection. The right reverend Prelate the Bishop of Durham and my noble friend Lord Kirkhope raised a similar point. The Government are clear that those in need of international protection should claim asylum in the first safe country they reach. This policy aligns with international law, and indeed with those of previous Governments, including the previous Labour Government. In answer to the question posed by the noble Lords, Lord Hannay, Lord Purvis and Lord Paddick, that is the fastest route to safety. Such schemes would only add further untold pressure to UK systems.

Amendment 130 defines an eligible applicant as someone who

“is present in a member State of the European Union”.

This underlines the point: EU member states are inherently safe countries with functioning asylum systems. There is therefore no reason why a person should not seek protection in the country concerned. Moreover, this amendment would also encourage more people to make dangerous and unnecessary journeys, including across the Mediterranean, to qualify for a safe passage visa.

Illegal Migration Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

Debate on whether Clause 60 should stand part of the Bill.

[Baroness Ludford (LD)]

My Lords, I am, of course, hugely disappointed that some of our colleagues do not want to listen to a fascinating debate on Clause 60 of the Illegal Migration Bill, just as some of those who stayed until 4 am the other morning did not want to participate in the debates on the Bill. However, I am delighted that the noble Earl, Lord Russell, is joining our ranks. It is wonderful to have an Earl Russell back. Those who remember Conrad Russell will know what a formidable Member of this House he was, and I am sure that his son will do justice to his memory.

I am talking against Clause 60 standing part. This clause was added by the Government on Report in the Commons, so it was not discussed by MPs. It would amend a section of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that is about factors that damage the credibility of an asylum applicant.

The point of Clause 60 is to expand the circumstances in which credibility would be damaged—where a claimant fails to produce or destroys an identity document or, indeed, where they refuse to disclose information such as a passcode that would enable access to information stored electronically, such as on a mobile phone. It is rather odd that we should be debating this poor, lonely little clause on its own. Indeed, there was perhaps a good argument that it should have been grouped with Clause 14, which my noble friend Lord German, on whichever day it was—

[Lord German (LD)]

On a variety of days.

[Baroness Ludford (LD)]

Yes, when it was proposed that Clause 14 should not stand part of the Bill. My noble friend debated issues about the powers of the Government to extract information concealed behind PIN numbers on phones. If memory serves, Clause 14 was particularly in relation to people who are detained, while Clause 60 oddly stands on its own—apart from Clause 14. But they need to be looked at holistically, to try to get some assessment as to what new powers the Government want. Are we in danger of getting spillover to sectors other than asylum?

The failure to provide information, an identity document or a PIN number would be added as a type of behaviour considered damaging to a claimant’s credibility. It is not restricted to people who are caught by Clause 2; the intended effect seems to be directed more at people seeking asylum who arrive on a direct flight from the country in which they face persecution. In a sense, it does not have much to do with this Bill, which is another reason why it sets off a bit of an alarm bell. The problem is that making a direct journey from a country in which the person is at risk of persecution, perhaps where the persecutor is the state or an agent of the state, may require the person not to travel with documentation that would identify them if they presented that documentation or were searched as they passed through an airport. That would concern an identity document—so there are some issues around penalising a person because they have not produced such a document, and I would be grateful if the Minister could respond on that issue.

On the other arm of it, with regard to insisting on the person delivering the passcode or PIN for their phone, I am wondering how widely that is expected to apply and how it relates to Clause 14 on getting access to PIN numbers and, indeed, to handing over mobile phones. My noble friend Lady Hamwee raised the problem that that would mean asylum applicants not having access to their contacts. In the scenario that this Bill covers, that means that people could not phone their family to say, “I’m safe—I haven’t drowned in the channel”. So that is one aspect that arises. The other aspect is that of access and forcing someone to give up the PIN on their phone. When the Minister replied to the debate on Clause 14 and Schedule 2, he said that that the information on the phone

“can … assist in determining a person’s immigration status or right to be in the UK … We all know that mobile telephones contain a wealth of data relating not just to the owner of the phone but to where that phone has been and who they have been with—all of which can be used to build up an intelligence picture which can facilitate criminal prosecutions”.—[Official Report, 7/6/2023; col. 1542.]

We are all in favour of facilitating prosecutions. That is one of the reasons why we have been so dismayed by the provisions on victims of modern slavery and trafficking. Another reason is that there is nothing in the Bill to enhance the prosecution of smugglers and traffickers. Suddenly the Minister came out with this route which is supposed to facilitate criminal prosecutions. My noble friend Lord German referred to a High Court case which said that what the Government had been doing was illegal and that they were wrong to extract information concealed behind PINs on phones. The Minister said that the powers that have been put into the Bill in Clause 14 are fresh powers to respond to the High Court judgment, so this is a new suite of powers.

What we have got is in two different clauses. We have new powers, and the common theme across them is access to people’s mobile phones and other electronic devices by forcing them to give up PINs. I am wondering what the scope of this is, beyond people detained or caught by Clause 2, because Clause 60 appears to apply to anybody who is outwith the scope of the Bill. What are the boundaries of the powers that the Government are granting themselves to access people’s mobile phones? I cannot claim to be an expert on this issue, but I know there has been a lot of commentary and activity on the question of victims’ mobile phones in sexual abuse cases. Will the Minister clarify exactly what the purpose of Clauses 14 and 60 is? Why was Clause 60 brought in to stand on its own rather than Clause 14 being amended? What is the composite picture that the Government are painting? How are their powers going to be constrained? Are the rest of us going to find that one day all these powers apply to us as well? I am raising this point as a clause stand part debate because Clause 60 seems to raise some rather troubling questions about the powers that the Government want to give themselves to access mobile phones.

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

My Lords, I am happy to provide that reassurance and explanation. I am grateful to the noble Baroness and the noble Lord for their thoughts on Clause 60.

Clause 60 clarifies and modernises Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which relates to the credibility of asylum claimants. First, in response to the point made by the noble Baroness, Lady Ludford, this provision will not be relevant to those who meet the conditions in Clause 2, as their asylum claims will of course be inadmissible, but it will be relevant to other asylum seekers. It is appropriate that we use the opportunity afforded by the Bill to address this issue for the reasons that I will come to in a moment. The clause puts it beyond doubt that destroying, altering, disposing of or failing to produce any identity document—not just a passport—is behaviour that should be viewed by decision-makers as damaging a claimant’s credibility.

Secondly, the clause modernises Section 8 to reflect the fact that mobile phones and electronic devices play a much more significant role in people’s daily lives in storing relevant documents and information than they did 20 years ago. We have therefore expressly provided that refusing to disclose information, such as a passcode which would enable access to a person’s mobile phone or other electronic device, should be damaging to their credibility. In so doing, we are reading across provisions that exist in criminal law in relation to Section 49 of the Regulation of Investigatory Powers Act and equivalent provisions in Scotland. I hope noble Lords agree that it would be inconsistent to treat what would amount to the effective concealment of a document, by not providing access, stored electronically any differently from the concealment of a physical document.

Finally, the clause brings Section 8 of the 2004 Act up to date by clarifying that the provisions relating to documents apply where those documents are stored in electronic form.

Clause 14 is a separate part of the Bill and introduces new powers. We already have some powers to seize devices, but Clause 14 introduces new powers, as the noble Lord, Lord Ponsonby, observed, and as we discussed in Committee on the relevant group of amendments. Clause 60 will of course apply no matter which power of seizure is used.

I hope that I have provided the requested clarity, and I further hope that Clause 60 will stand part of the Bill.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for those explanations. It may be that my brain has gone to cotton wool—I will read his response in Hansard to try to see the whole picture. At the moment, I cannot see the overall coherence of this scheme.

The Minister is going to send me scurrying off to look up the Regulation of Investigatory Powers Act, of which I have just a vague memory. I am sure that colleagues on other Benches will know its provisions off the top of their heads, but is there any sort of reasonable suspicion trigger, or some such, in that Act, about investigating crime and suspected terrorism? I do not know, but my fear with all of this is of mission creep. I am not sure whether the Minister has fully removed that fear, but I will carefully read his response and I am sure that, with his normal courtesy, if I have any follow-up questions he will deal with them in writing.

Clause 60 agreed.

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Moved by

[Baroness Ludford]

133: After Clause 60, insert the following new Clause—
“Asylum seekers’ right to workThe Secretary of State must make regulations providing that adults applying for asylum in the United Kingdom may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within 3 months of the date on which it was recorded.”Member’s explanatory statement
This new clause would require the Secretary of State to make regulations enabling asylum seekers to work once they have been waiting for a decision on their claim for 3 months or more.

[Baroness Ludford (LD)]

I was pleased to hear the contribution of the noble Lord, Lord Kamall, who added another sensible and rational Conservative Back-Bench voice to the earlier remarks of the noble Lord, Lord Kirkhope. Good heavens, I have just remembered that they are both former MEP colleagues of mine—not from the same political group, obviously—and perhaps that is where they learned a sensible approach to policy.

At first blush, the inclusion of this amendment with others about the asylum backlog might not seem the right context, but the rationale of the grouping is that, with such a big asylum backlog, the impact of not allowing asylum seekers to work is all the greater; not only are more people left to stew, unable to support themselves, but for longer. Some people wait not only months but years—many years in some cases—for resolution of their asylum claims.

To pick up something I said earlier, all of these attempts—most of them from the opposition parties but not entirely; there was lots of contribution from the Cross Benches—are trying, perhaps in a piecemeal way, to construct a more sensible asylum policy than is in this Bill or last year’s Bill. Many of us think that the Bill is not designed to work and that the mess will, I fear, be dumped on the next Government—I see the noble Lord, Lord Ponsonby, smiling. The Bill is designed to get the Government through the next election.

Some of us are trying to suggest elements of a more sane asylum policy—the Government could, with all the information resources at their disposal, go out and put a case to the public for why you need more sensible things to manage asylum. That is where this amendment, on the ability of asylum seekers to work, fits in. I happen to have put in the amendment that it would be after three months, but I am not particularly insistent on the time—it could be six months. The point is that, after the initial processing, and people having the ability to focus on something else, it makes sense to put people to work and give them the opportunity to contribute.

At the moment, people seeking asylum in the UK are effectively prohibited from working, such that they are forced to subsist on asylum support of £5.66 a day while they wait for a decision on their asylum claim. A lot of the public assume that such people are able to access welfare benefits and are just sitting idly in clover, but that is far from the case. They can apply for permission to work only if they have waited for a decision for over 12 months, and only for jobs on the Government’s highly restrictive shortage occupation list. This has not always been the case: until 2002, people were able to apply for permission to work if they had waited for a decision for more than six months, and only in 2010 was the right to work restricted to jobs on the shortage occupation list. Today, almost seven in 10 people who are waiting for a decision on their asylum claim have been waiting for more than six months.

This forced inactivity is totally at odds with government policy, which, in most instances, aims to move people away from any kind of dependency and into work. It also increases the difficulty of integration for those who are eventually permitted to stay. I remember as an MEP dealing with a refugee from the Middle East. I never saw the end result of his case, but he came to me after about three and a half years. He was a doctor, but his skills were obviously deteriorating and he was losing status in his family because he could not support them, and generally he was in a very deteriorated state—mentally, physically and in his whole ability to live any kind of decent life. That is a personal and social tragedy.

Not being able to work increases the difficulty of integration for those eventually permitted to stay and puts an unnecessary cost on the public purse, even with £5.66 a day. The Lift The Ban coalition, which I applaud for its campaigning, estimates that reform of this policy could lead to a gain to the public purse of almost £200 million, about three-quarters of which would be from tax and national insurance contributions. A study by British Future found that 71% of the public supports the right to work after six months—my amendment says three months but, as I say, I am not hung up on that figure. One of the members of the Lift the Ban coalition is the CBI. I heard its new director-general, Rain Newton-Smith, on the Laura Kuenssberg Sunday morning programme the Sunday before last, calling for asylum seekers to be able to work, so this is not just the cause of those with a lefty-liberal axe to grind. Mind you, I look at the right reverend Prelate the Bishop of Durham, and I would not dare put him in that category. It is because it makes sense, and makes sense for employers.

We have seen articles in the Financial Times saying the same thing. An article in Mach said that it is

“a human disaster for the refugees involved, and it hurts the economic prosperity of the places where asylum seekers live while waiting to have their claims processed”.

Another article of just over a year ago, under the headline,

“Keeping asylum seekers in limbo is bad for everyone”,


said:

“‘Human capital’ is damaged when people are shut out of labour markets”.


The article also made the point that:

“The UK stands out internationally for its reluctance to let asylum seekers work. In the EU”—


I remember, because I worked on that directive, and there was a fight over it—

“the law specifies they must be allowed access to the labour market after a maximum of nine months”.

The UK, which could choose whether to opt in, refused to opt in to that directive, for reasons that we will come to. The article continued by pointing out that many countries have shorter periods, with Sweden giving immediate access to its labour market, while Portugal puts just a one-month stay on it.

The argument for reform is that it would ensure that many people seeking asylum who have skills and experience in keyworker roles and the desire to contribute are able to do so. I know that we sometimes overuse the phrase no-brainer, but I suggest that this is one of those.

Another point is made by Professor David Cantor, director of the Refugee Law Initiative at the University of London, who says that the Government’s approach seems designed to push refugees into illegality. He asks:

“Why would a refugee present herself in good faith to the authorities on arrival, or stay in touch afterwards, if there is no prospect of protection, only detention and lack of status? If released on bail, why not simply disappear into irregularity?”


The ability to work would keep people plugged into the system, paying tax and national insurance, and they would necessarily be in touch with the Home Office—they would also have an incentive. They would not disappear into the shadows, but come forward and lawfully await the determination of their claim. That would put more order and sense into the system.

In January, the noble Lord, Lord Murray of Blidworth, replied to the following oral question from the noble Lord, Lord Kerr of Kinlochard:

“Would the Minister agree that it would be better if those waiting in that internal queue were able to work—better for them, the Exchequer and the country?”—


very succinct. The noble Lord, Lord Murray, said:

“I am afraid that I must disagree with the noble Lord. It is clear that one of the major pull factors for people crossing the channel is that they hope to work in Britain”.—[Official Report, 17/1/23; col. 1700.]


This is replicating a debate that we had on the Nationality and Borders Bill last year. I should have mentioned it at the beginning, but in that debate, we were discussing an amendment led by the noble Baroness, Lady Stroud. She told me earlier that she would have liked to be here to participate in the debate today because she continues, with admirable consistency, to support this cause, but she unfortunately had another commitment that she had to go to. However, I remember —and I am afraid that I am going to repeat—a citation that I made a year or so ago of the report from the Migration Advisory Committee. That is an independent committee that advises the Government. In a report of December 2021—some of us know this bit by heart—it took issue with the Home Office’s assertion about a pull factor. The report concluded:

“To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made”.


In other words, it is not made by making unsubstantiated assertions that every other commentator rebuts.

Indeed, the Home Office itself rebutted that assertion in a research report from September 2020 called Sovereign Borders: International Asylum Comparisons Report. It was produced by a unit called Home Office Analysis and Insight, and delightfully subtitled, Informing Decisions Through Evidence—which is what I think many of us would like the Home Office to do. One of its conclusions was:

“Economic rights do not act as a pull factor for asylum seekers. A review of the relationship between Right to Work and numbers of asylum applications concluded that no study reported a long-term correlation between labour market access and destination choice … Denied the right to work, many migrants may be forced to turn to clandestine work in highly insecure jobs in both the formal and informal labour markets to meet their basic needs”.


Perhaps it is not surprising that this report was labelled “Official Sensitive”, since if it got out into the public domain, it would be used to undercut the Government’s completely unsubstantiated assertions that the pull factor is the reason why they will not allow asylum seekers to work. Their own internal research, along with the independent Migration Advisory Committee, says: “You haven’t got a leg to stand on”.

There is no argument, except a gesture politics one, against allowing asylum seekers to work. Allowing people to work presses so many buttons in terms of their own personal well-being, the well-being of society and the well-being of the Exchequer. I hope that I will hear something positive from the Minister about this subject.

[Lord Kerr of Kinlochard (CB)]

My name is on Amendment 133, and I had planned to make a speech debunking our friend the pull factor. Unfortunately, my speech has just been made rather brilliantly by the noble Baroness, Lady Ludford. Let me try something slightly different on the Government: since we last debated this issue during the passage of the Nationality and Borders Act, the economic arguments for allowing asylum seekers the right to work have surely strengthened considerably. Our productivity problem is greater than it then was.

--- Later in debate ---

[Baroness Ludford (LD)]

I hesitate to interrupt the noble Baroness as I will have a right of reply after the Minister, but I do not think I have said any such thing. I did not say that everybody who crosses the channel or comes in another way irregularly is entitled to refugee status. Obviously, they are defined as refugees under the refugee convention, but if they are seeking status in the UK, they have to go through a process and those who do not qualify should be removed—deported. That is what a rational, fair and proper asylum procedure looks like. Our objection to the Bill is its refusal to admit anybody to the determination process. I have never said, nor have any of my noble friends, that everybody who arrives should be allowed to stay, under whatever status. Of course you cannot run an asylum system in that way and we have never said that.

[Baroness Stowell of Beeston (Con)]

What the noble Baroness does through many of her contributions is argue against anybody using the terminology “illegal immigrant” by virtue of the fact that they have come via that route and have claimed asylum. My understanding of what she is arguing is that their status as an asylum seeker should be accepted by virtue of the fact that they have made that claim.

I said at Second Reading that I based my remarks on conversations that I have had with people who work alongside immigrants in workplaces which are very different from the one we spend our time in. I said that if there was one way I could define the main message that they were seeking to make clear to me and to this House and to Parliament as we consider this legislation—I am quoting myself here—it was:

“Don’t assume or believe that everyone attempting to enter our country illegally is a genuine asylum seeker fleeing persecution”. —[Official Report, 10/5/23; col. 1814.]


I said that because I think that some of the arguments being made about being able to work are based on a desire for us to address that in a context where the noble Baroness’s perception of the situation is rather different from that of other people.

The noble Lord, Lord Kerr, invoked economic and productivity arguments in favour of allowing asylum seekers to work. Again, I can see where he is coming from and I do not in any way disagree with him or any noble Lord about the hard-working nature or enterprising disposition of people who come to this country. That is not something I would enter into any kind of discussion about. But I think that if we are going to raise economic arguments as a reason for the Government to accept these amendments and allow asylum seekers, at this current moment in time, to work in the way proposed, we must also remember that we have 5 million people on out-of-work benefits at a time when there is a record number of job vacancies.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I do not have that figure to hand, but I will find out and write to my noble friend.

By tackling the backlog and processing asylum claims in a timely manner, we will address the issues raised by many noble Lords in relation to Amendment 133. I am sure we will return to these issues in the coming weeks and months, but for now I invite the noble Baroness, Lady Ludford, to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, I am grateful for the Minister’s response, although I feel that he slightly demolished his own argument. He claims that the asylum system and working should be insulated from each other. The logic of that is that no asylum seeker would ever be allowed to work, yet government policy has the extremely unsatisfactory rule that they can apply after 12 months to a restricted list. The right reverend Prelate the Bishop of Durham said that the case that he knows of took another 12 months to get permission—yet more bureaucracy. All we ever get from the Home Office is more bureaucracy. The Minister cannot have his cake and eat it. If he does not think that asylum seekers should ever work, why does that government policy exist at the moment? It is very unsatisfactory.

Noble Lords have made some very good points. Like others, I much appreciated the remarks of the noble Lord, Lord Cormack, who referred to “Conservative” principles of self-help and self-improvement. I would say that they are not uniquely Conservative, but they are also Conservative. That is why this policy makes sense to most people from all directions—on all Benches. It would help us have an orderly and well-run asylum system, as well as giving people the dignity and hope that have been mentioned.

I am afraid that I completely disagree with almost everything that the noble Baroness, Lady Stowell, said. The policy would not encourage people to disappear. By keeping people plugged into the system, and assuming that they are paying tax and national insurance and are known to the authorities—it would help if we had labour market inspectors—it would be easier to keep track of them. If they do not succeed with their asylum claim, they should be removed from the country. I am trying not to get even more grumpy than I am after many days on this Bill—normally I am a completely ungrumpy person—but the suggestion that I, or anyone else on these Benches, want some kind of free-for-all where anybody can come, there are no borders or regulations and so on, is completely untrue. I totally deny that suggestion; indeed, I rather resent it. I am sorry to say that I found the noble Baroness’s contribution valiant but unconvincing.

It is certainly true that I object to the term “illegal” being used to describe a person. I have long held that view. I do not believe that any person is illegal. You can say, if you must, that they have arrived by illegal routes, but the refugee convention, which, unlike some people, I rather admire, talks about “irregular” arrival because people are allowed to arrive in a country to claim asylum—so they have not made illegal entry either. It is irregular but not illegal. I am a bit of a stickler for terminology, and I stick to that of the refugee convention. I am not sure whether I have to apologise for that, but I do not think so.

I have probably said everything that I can. I think the Government are wrong. I hope a future Government will revisit this issue—not in the manner of the Government of 20 years ago, who withdrew asylum seekers’ right to work—and implement the sense of this kind of provision. In the meantime, I beg leave to withdraw my amendment.

Amendment 133 withdrawn.

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[Lord Coaker (Lab)]

My Lords, I say to the noble Lord, Lord Swire, and the noble and learned Lord, Lord Garnier, that I have for months been calling for more statistics from the Government and for the publication of the impact assessment. They join me in calling on their noble friends on the Front Bench to publish the impact assessment.

I would be delighted if we knew how many people the Government were detaining and removing. The noble and learned Lord, Lord Garnier, made the point that numerous noble Lords have made all the way through: we have no statistics. Clearly, the Government have them and will not tell us them. I suspect that is because they are embarrassed or worried, or because it would set up some sort of mechanism by which they could be judged on whether they have succeeded or failed. We have all said it would be helpful to publish the number of people we are detaining, whom the Government regard as illegal, and the number we are removing. We have not demanded it for a year after the passing of the Bill. That would be helpful, but we are demanding to know now what the assumptions are behind the planning within the Bill.

Perhaps, just to help the noble Lord, Lord Swire, the noble and learned Lord, Lord Garnier, and the rest of us, the Minister could tell us now what assumptions the Government are working towards as to the number of people they expect to detain under the Bill and the number they expect to remove. That would make that part of the amendment from the noble Lord, Lord Swire, unnecessary, and it would help our deliberations.

There is one further thing that would be helpful on the amendment from the noble Lord, Lord Swire. Before we had the cut-off date of 7 March 2023, how many people had failed their asylum application and were at that time waiting to be deported? It would be interesting to know how successful the Government’s policies had been up to that point in assessing whether people needed to be detained.

I particularly wanted to say a couple of things. I will leave Amendment 137; those debates about compatibility with various international conventions are well made, and we will return to them. I am grateful to the noble Baroness, Lady Ludford, for signing and supporting that amendment. I do not want that to be seen as somehow meaning that they are not important. I hope the Minister will respond to the amendment, but the compatibility of the Bill with various international conventions has been debated all the way through Committee and I do not want to repeat those debates now. That is not to be taken to mean that those debates are not important; they are essential and will no doubt be returned to on Report.

I will focus particularly on Amendment 139FB in my name, which relates to our ability to tackle the gangs. There has been a lot of emphasis on victims, the potential number of asylum seekers and so on. These are government statistics. I repeat what I said earlier: the number of convictions for people-smuggling gangs has reduced considerably, has it not? Can the Minister give us an up-to-date figure on the number of smuggling gangs and a helpful comparison? Can he try to do us a favour by comparing with a year that gives a true reflection, rather than picking a year that gives a good percentage outcome? That would be helpful, because it is in all our interests to know exactly what is going on. Can he confirm my figure that over the last 12 months, the criminal smuggling gangs have made £180 million, and can he therefore tell us why so few people in smuggling gangs have been convicted?

As I understand it, there is some debate about whether the number of officers, officials and National Crime Agency staff working on this has gone up or down. Can we have an indication of the number of them involved in tackling this? My amendment deals with the National Crime Agency. Can the Government confirm that it is the law enforcement agency that is leading all this work? What other agencies, both national and international, are working to tackle the criminal gangs? My amendment says that to tackle organised immigration crime across the channel, there is a need to maintain a specific unit. Is a specific unit already in existence, making my amendment unnecessary? If not, would that help?

Essentially Amendment 139FB is a probing amendment to try to understand the current law enforcement activity with respect to tackling this heinous crime, from a national perspective but also an international one. I join the noble Lord, Lord Swire, in demanding from his Government some statistics, please.

[Baroness Ludford (LD)]

I will speak briefly to Amendment 137, which I was pleased to co-sign, as the noble Lord, Lord Coaker, said. The amendment raises some important points in referencing Articles 524 and 763 of the trade and co-operation agreement.

Article 524, in the context of part 3 of the agreement on

“law enforcement and judicial cooperation in criminal matters”,

is predicated on respect for fundamental rights and legal principles, as reflected in the European Convention on Human Rights in particular. That is one of the reasons. One would expect the Government to be very careful about any undermining of the UK’s commitment to the European Convention on Human Rights in case they, for example, undermined this part of the TCA.

Indeed, Article 763, which underpins the whole of the TCA—not just the law enforcement and co-operation part—says that

“the Parties reaffirm their respect for the Universal Declaration of Human Rights and the international human rights treaties to which they are parties”.

That must also cover the ECHR. So, basically, our co-operation with the EU in the trade and co-operation agreement depends on our commitment to the European Convention on Human Rights. So it is not just important in the context of the Bill and generally but it is also a factor in the EU regarding us as playing a good- faith part in the trade and co-operation agreement. Undermining our commitment to the ECHR has to be seen in that context.

We benefit from a data adequacy decision from the European Commission, which means that data can be transferred between the UK and the EU. This can apply in the law enforcement and police co-operation sector, but it is also important to businesses, such as those in the City, those in financial services, those in fintech and others, particularly in the services arena. So there is a connection between respect for human rights and data adequacy decisions and business, because one of the factors that can be considered in the grant of a data adequacy decision—I remember debating this several times when we did the Brexit withdrawal legislation, and indeed I worked on the GDPR when I was an MEP—is the human rights compliance of the partner country, which is the UK in this case.

In fact, we commented at the time that that plays more of a role for a third country than it does within the EU, because questions arise about the human rights compliance of some countries within the EU, and it is finding it difficult to deal with them. Unfortunately or not, the UK is in the position of having less leverage in this respect. Believe me, the European Parliament will have something to say on this subject as well. The data adequacy decision gets reviewed in 2025, so the Government need to be careful that they are not undermining the data adequacy decision by disrespecting human rights.

On the situation in Northern Ireland, the Northern Ireland Human Rights Commission points out:

“The UK Government’s ‘Explainer’ document on Windsor Framework Article 2 acknowledges that its protections apply to everyone who is ‘subject to the law in Northern Ireland’. Asylum-seekers are part of the community, subject to the law in NI and are therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Belfast (Good Friday) Agreement. In court proceedings ongoing at the time of writing”—


about four weeks ago—

“the Home Office has not disputed the argument that the protections of the relevant chapter of the Belfast (Good Friday) Agreement extend to asylum-seekers and refugees”.

So that has to be considered in a United Kingdom Bill.

The Northern Ireland Human Rights Commission also points out that, in the explainer on the Windsor Framework, the UK Government have confirmed that

“key rights and equality provisions in the [Belfast (Good Friday)] Agreement are supported by the ECHR.”

So, the ECHR and Article 2 of the Windsor Framework are intimately connected. The Northern Ireland Human Rights Commission, along with the Northern Ireland Equality Commission, have identified several EU asylum directives—reception, procedures, qualification and the Dublin III regulation—as relevant to Article 2 of the Windsor Framework. They conclude:

“Given this analysis, failure to address compliance with Windsor Framework Article 2 in the Human Rights memorandum to the Bill is a matter of concern.”

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

I am most grateful for what the noble and learned Lord has said, but he may have overlooked that we had a debate, at a much earlier stage, on the way in which the Government use the word “require”. The Minister says that nothing in the Bill requires the Government to take action that would be contrary to our obligations under the TCA. He seems to be overlooking—the use of the word “require” perhaps deliberately overlooks the fact—that the Bill empowers the Government to take action which, if taken, would bring us into conflict with our obligations under the TCA. Perhaps he could answer that point.

[Baroness Ludford (LD)]

Could the Minister confirm whether he agrees with the analysis of the Northern Ireland Human Rights Commission, from which I cited extracts, on the various EU asylum directives that would continue to apply in Northern Ireland? I am afraid I have not checked what the noble Lord, Lord Murray, said in response to the noble Lord, Lord Morrow, the other day, but the trafficking directive and the victims directive also apply in Northern Ireland. What are the Government doing to make sure that all those directives are going to be respected in practice in Northern Ireland?

[Lord Stewart of Dirleton (Con)]

The noble Lord, Lord Hannay, from the Cross Benches, submitted my use of the verb “require” to a degree of philological scrutiny, which I had not taken into account when preparing my answer. I take the noble Lord’s point in relation to empowerment as opposed to obligation.

I regret to say that, in relation to the complex interrelating commitments to which the noble Baroness sought my views from the Dispatch Box, I will have to undertake to correspond with the noble Baroness and the noble Lord.

I sum up what has been a short debate by thanking noble Lords for their informed scrutiny of what has been said, not only by me but by others participating in earlier parts of the debate. From the perspective of this Committee, at this stage, the issues have been given a good airing. Noble Lords have referred to the inevitability that we will consider the matter at a later stage but, at present, I invite the noble Baroness to withdraw her amendment.

Illegal Migration Bill

Baroness Ludford Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Lord Etherton (CB)]

My Lords, I support the amended version of Clause 1, put forward by the noble Baroness, Lady Chakrabarti. Whether or not Parliament intends to incorporate international treaties within our own law depends on the wording. The point was made on Report that the noble Baroness’s previous wording had no reference to interpretation. It seems to me quite clear now that the emphasis has been put on having regard to the provisions in these international treaties which bind this country for the purposes of interpreting this Act. I consider that this falls plainly on the right side of the line.

As for my own amendment to Motion S, which the noble Lord, Lord Murray, has addressed, I thank the Minister for his time, patience and reasonableness over the discussions concerning this. I was principally concerned that those who are entitled to the protection of the convention because of a well-founded fear of persecution in the country stated in the removal notice should not have to have an additional test of irreversible harm in order to prevent removal there. The assurances the noble Lord has given have satisfied me over that concern, particularly in relation to the principles in the case to which he drew attention, HJ (Iran) for LGBT refugees. My concerns have been satisfied and for that reason I will not oppose the Motion of the Government on this point.

[Baroness Ludford (LD)]

My Lords, briefly, we on these Benches support all the Motions to amend the government Motions. The noble Baroness, Lady Chakrabarti, has well made the point that even if one could have argued that the original Amendment 1 was a backdoor incorporation—an argument I always found unpersuasive—that objection certainly cannot be made of the new text of Motion A1, which is clearly nothing of the sort. The Prime Minister has been at the NATO summit in Vilnius upholding international law against breaches through Russian aggression. Indeed, the North Atlantic Treaty of 1949 cited the rule of law at one of the core principles. The Prime Minister was also recently at the Council of Europe summit. Again, the core values in the declaration were the threats to human rights, democracy and the rule of law.

On Report, the noble Baroness, Lady Helic, talked about how this amendment

“is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law”.—[Official Report, 28/6/23; col. 704.]

She reminded noble Lords that

“Conservative Governments were instrumental in creating the first four conventions listed in the amendment”.

Finally, on Amendment 93, we still have concerns, as do doctors, about the proposals in the Bill for as yet unproven medical age assessments. Amendment 93 provides the most basic safety net for those undergoing age assessment: the right to appeal a judgment. Removing that right will not deter any smugglers, or child refugees in need of appropriate safety and protection. We urge support for the amendment Motions.

[The Lord Bishop of Manchester]

My Lords, I support Motion A1 but will speak more particularly to Motion U1 in my name, to which the noble Baroness just referred. It proposes that if an age-assessment judicial review is in progress, removal should be delayed until its completion. I welcome comments from Ministers that those subject to an age dispute will be accommodated in an age-appropriate setting here in the UK, but can the Minister confirm that will be the case in a third country? Will Rwanda, for example, be informed that a young person is subject to an age dispute, and will the Rwandan Government then be required by the UK to keep that person separate from other adult residents and to supervise them properly as a child until the courts have made a judgment?

The Secretary of State has a legal duty to have regard to the need to safeguard and promote the welfare of children. Can the Minister therefore say how the welfare of a child will be protected by not allowing judicial review to act as a temporary delay to their removal? The Government appear to be arguing that when a child legally challenges an age assessment, it is simply a spurious attempt to use legal methods to postpone removal. However, as we know, the majority of children are found to be children after local authority assessments, so it is more likely that what is happening is an attempt to protect their proper right to be treated as a child. Can the Minister therefore take the opportunity at least to confirm that when an individual’s age is disputed, they will not be subject to removal before having met with a social worker and a child protection team for a more comprehensive age-assessment process?

The determination that an individual may be a child and therefore could deserve all the rights a child is due should and must be reason enough to prevent their removal. When the implications for children are so grave and lifelong, it seems that to not delay a child’s removal from the UK until those questions are resolved is immoral. I plead with the Government to recognise this as a failure of safeguarding, which we are all trying to treat at the highest possible standard. However, in view of the lateness of the hour when we are likely to reach a vote on this matter, and the many other matters your Lordships’ House has to deal with tonight, I am not minded at present to press this Motion to a Division.

Illegal Migration Bill

Baroness Ludford Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I would just like to say, if I may, that I am surprised that the Government do not like this amendment. Quite honestly, it strengthens the Bill when it comes to legal procedure, and they would have fewer legal challenges to all their cases if it goes through. They should welcome it, particularly if there is no conflict with international law, as the Minister told us earlier, in order to restore certainty. The Government should support this amendment.

[Baroness Ludford (LD)]

My Lords—

[Noble Lords]

Front Bench!

[Baroness Ludford (LD)]

My Lords, I am speaking for these Benches.

The noble Baroness, Lady Chakrabarti, has eloquently explained why these amendments are necessary to uphold key rule of law and constitutional principles. Quite honestly, in the Minister’s argument about Amendment 90F, on regard being had to international obligations, he keeps regurgitating this idea of backdoor incorporation. That was thoroughly demolished by the noble and learned Lord, Lord Hope, last week—let us remember that he was Deputy President of the Supreme Court—when he said:

“This a pure interpretation provision, and it is entirely consistent with the way the courts approach these various conventions … I support the amendment because it is entirely orthodox and consistent with principle”.—[Official Report, 12/7/23; col. 1817.]


That was about the previous version, and as the noble Baroness explained, the new version is even more about reinforcing the interpretation. Quite honestly, the Minister’s argument holds no water.

Since the Government have been unable to vouch for the compatibility of the Bill with the European Convention on Human Rights because it is too novel and untested to evaluate, we need this safeguard in the Bill to ensure that the Government are kept to the straight and narrow.

The other points about the jurisdiction of the courts are straightforward rule of law issues. Is it the courts or the Executive who will have the final say on what happens to people, whether they are deported, detained or safe? It should be the courts.