Nationality and Borders Bill

Baroness Ludford Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I was going to come to the point made by the noble Lord, Lord Rosser. Let me just say a sentence about it now: the UNHCR is not the interpretive body of the refugee convention. Each state under the convention is there to interpret its obligations, in accordance with the Vienna convention. That is the system which the state parties have set up. When we have a phrase—we will get to one a little later—such as “serious non-political crime”, the state parties have to interpret it. We will get to an example in the next group—this is a little cliffhanger—of where different countries have approached the question differently. There is nothing wrong with that, provided that they are all acting in accordance with the Vienna convention in good faith in seeking to interpret their obligations.

Respectfully, I think that the noble Lord, Lord Anderson of Ipswich, essentially accepted that basic proposition under the Vienna convention, and he was obviously right to do so. He sought characteristically carefully—if I might say so—to seek disclosure of the legal advice on which the Government are relying, while recognising the conventions which apply to that. I listened carefully to what he said. I will read Hansard to see whether there is anything more I can say in writing to him; I do not want to rush from the Dispatch Box. There may or may not be anything more I can say, but I will read that point carefully. I think he recognised that there are conventions in this area which do apply.

However, I say to the noble Lord, Lord Paddick, that it is not a question of having to agree with all the other signatories. This is not about amending the refugee convention; it is about interpreting it. That is a very different thing. If you want to amend a contract, you need the other party’s agreement, but interpreting a convention is for each state party.

I will say a few words about the substantive clauses, although I think it is fair to say that those were not really the Committee’s focus. Clause 29 sets out how key terms which are defined in the following clauses will be applied; they are the key components of the refugee convention. Clause 29 also revokes the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Those are the regulations through which we transposed our obligations under the EU qualification directive 2004. Because we are out of the EU, we need to do that in a different way.

However, we will continue to grant humanitarian protection to eligible individuals who cannot be removed from the UK to their country of origin if their removal would breach the UK’s obligations under Articles 2 or 3 of the ECHR. It is important to clarify—I am sure Members of the Committee know this—that these are not individuals protected under the refugee convention. However, we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees.

In response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we believe that Clause 33 provides a system of effective protection from persecution. Clause 34 deals with relocation, but I do not think any noble Lords spoke to it directly, so I will just refer to it and move on.

On Clause 35, of course we have a proud history of providing protection to those who need it, but that should not apply to those who commit serious crimes, putting the communities that host them at risk and endangering national security. We believe we are right to define and legislate in this area. I say to the noble Baroness, Lady Hamwee, that that is a good example of serious non-political crime. That is a phrase in the refugee convention, but it is not further defined in it. Each state has to look at it and define it, in accordance—always—with the Vienna convention.

[Baroness Ludford (LD)]

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

[Baroness Hamwee (LD)]

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

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[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 105 in my name and those of the noble Baroness, Lady Coussins, who cannot be here tonight, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Paddick, to whom I am grateful. I also thank Women for Refugee Women and ILPA for all their work on this amendment.

The amendment would remove the narrow restrictive and requirement in Clause 32 that, in order to qualify under the “particular social group” grounds of persecution for recognition as a refugee under the convention, two conditions must be met. The amendment would replace this with an either/or condition. As I will explain, this would be in line with international standards and UK case law.

This is a small amendment, but it is significant, as the UNHCR has made clear. The UNHCR explains that Clause 32 is one of a

“series of changes that would make it more difficult for refugees who are admitted to the UK to be recognised as such.”

The case for the amendment is, in effect, set out in its detailed legal observations, which have been invaluable to our scrutiny of the Bill. The UNHCR warns that narrowing the definition of “particular social group” in the way that the clause does

“could exclude some refugees from the protection to which they are entitled … In the UK and other jurisdictions, the particular social group ground has proved critical in the protection of those with claims based on gender, sexual orientation, gender identity, status as former victims of trafficking, disability or mental-ill health, family and age.”

This view is endorsed by the Bingham Centre, which warns:

“The result will inevitably be to refuse protection to people who, as a matter of international law, are refugees.”


It picks out this clause as one of a number that are particularly troubling to it from a rule of law perspective.

The UNHCR explains the origins of the two conditions and why it has recommended that they should be treated as alternative, rather than cumulative, tests. The argument was endorsed by the late Lord Bingham, acting in his judicial capacity, when he ruled that the cumulative approach taken in Clause 32 was wrong because

“it propounds a test more stringent than is warranted by international authority.”

Thus this approach, the UNHCR points out, has been affirmed in the UK courts over an EU interpretation. I cannot resist observing that it is rather odd that a Government committed to taking back control from the EU is so keen to apply an EU interpretation that has been rejected by the British courts. Indeed, on the previous group, the Minister said that our starting point should be that we had left the EU, so could he perhaps explain why that does not apply to this clause?

In their briefing, Women for Refugee Women—WRW —and ILPA include an example, taken from Garden Court Chambers barristers, of what this might mean:

“a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic”—

one shared with other members of a group—

“but also that trafficked women as a group are perceived as having a distinct identity in her country of origin. The latter is of course much more difficult to establish than the former because this is judged by the perceptions of the society in her country, and it can be very challenging to find objective evidence on women as a distinct group.”

WFW and ILPA also point out that there was “no pre-legislative consultation” on this clause because it was not included in the New Plan for Immigration. Can the Minister explain why this is the case? Moreover, the equality impact assessment on the Bill, which has been described as “superficial and inadequate” by barristers at Garden Court Chambers, fails adequately to assess the impact of the change on groups in vulnerable circumstances.

As I have already noted, the UNHCR has warned of the likely implications for a wide range of such groups. I particularly draw attention to how this clause is likely to have an adverse impact on women fleeing gender-based persecution—a group that the Government claim to care about. As I made clear on an earlier amendment, it is one of a number of such clauses that have to be viewed in the context of the failings that already exist. According to WRW and ILPA,

“Over the years, there has been substantial research on the failures of the Home Office in delivering a fair asylum process, and on the reasons why many women who flee gender-based persecution may be wrongly denied protection.”


Most recently, as I noted last week and gave the Minister some weekend reading on, the British Red Cross has published research that details experiences that

“highlight the distrust and disbelief women can face when discussing traumatic experiences of violence”,

especially, but not only, when interviewed by men. One survivor’s words are recounted:

“you feel so low and you feel so degraded and you’ve been violated and you were [telling] your story, you were expecting to be heard and to have someone who shows you some form of sympathy.”

In the Commons Public Bill Committee, the Government justified their position by asserting that the new clause was necessary to bring certainty to an area bedevilled by conflicting authority. But ILPA and WFW give that argument short shrift, pointing out:

“There is no conflicting authority: the UNHCR and the senior UK courts have a clear and constant interpretation. It is the Government that seeks to depart from this shared interpretation of the Refugee Convention, and it does so without warrant or proper justification.”


So can the Minister provide a more convincing justification today of a clause that, in the words of Women for Refugee Women and ILPA

“reverses case law of senior UK courts, contravenes UNHCR standards, and reinstates an erroneous EU law standard”?

If not, will he agree to this amendment?

[Baroness Ludford (LD)]

My Lords, all of these clauses seek to restrict access to the protection of the refugee convention. I will speak to Amendments 103 and 104 to Clause 31 and Amendment 111 to Clause 37, which are all in the name of the noble Lord, Lord Dubs, and which I have co-signed. However, I share the view of my noble friend Lady Hamwee and the noble Baroness, Lady Chakrabarti, that all of these clauses should in fact be removed.

The problem with Clause 31 is that it changes the standard of proof for the test of whether a person is a refugee. It creates two limbs of the test and changes the bar from “reasonable likelihood” to

“on the balance of probabilities”.

Although the refugee convention does not prescribe the standard of proof, UNHCR’s handbook says:

“The requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.”


So, for 20 years, the UK courts, including the Supreme Court, have applied a “reasonable likelihood” standard of proof in a composite and holistic manner.

Clause 31 overturns this established interpretation of the law by dividing the overall test into a series of sub-questions and applying different standards of proof to different limbs of questioning, to require the person to prove on a balance of probabilities that they fear persecution and the decision-maker to revert to a test of reasonable likelihood in assessing whether the person would face persecution and lack state protection. It is quite a mishmash, and a complex and confusing one—not least for already burdened caseworkers. As we have heard so frequently in this Committee, if the Government really want to fix a broken asylum system, why are they making everything more complex and building in delay?

As the Bingham Centre points out, Clause 31

“allows for rejection of a person as a refugee because they failed one of the steps”

imposing that higher hurdle,

“whereas if the test was taken in its totality, the person may have been accepted as a refugee.”

The process may well lead to exclusion from sheer error because of all these complex, different bits of the test. Either the JCHR Amendments 103 and 104 should be accepted, or Clause 31 should be deleted.

On Amendment 111 to Clause 37, as the noble Lord, Lord Dubs, has said, we object to the lowering of the threshold for regarding a crime as particularly serious such that a person can be expelled. It is designed to—and will—exclude many more people from the protection of the refugee convention. Not only is the threshold sentence reduced from two years to 12 months but it changes the rebuttable presumption of “particularly serious” into an unchallengeable assertion.

This is disproportionate; a blanket exclusion is incompatible with the refugee convention, which envisages a crime that is a major threat and expulsion as a last resort. Bear in mind that the Bill seeks to impose a four-year sentence for the mere act of arriving in the UK without permission, which most refugees have to do. That gives you a measure of the lack of proportion in what is supposed to be a serious crime under the remit of the Bill; I am not validating or endorsing any crime, but under the refugee convention it has to be “particularly serious”, and the Government are departing from that.

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

My Lords, I confine my brief comments on this group to Clauses 31 and 32, both of which have been touched on, respectively, by the noble Baronesses, Lady Ludford and Lady Lister.

Clause 31 is peculiarly objectionable. As has been described, it divides up what should be a single, holistic question into a series of sub-questions and compounds that error by the differentiation in some important respects of standards of proof. It imposes an objectionable higher standard of proof on one critical provision. As the Joint Committee on Human Rights says in its report HL Paper 143—pages 39 to 41—it raises the standard of proof from a “reasonable likelihood” to a “balance of probabilities”.

The overall holistic approach to Article 31 was established as long ago as 1995 in a case called Ravichandran, which reported in 1996 in immigration appeal report 77. I confess that I wrote the lead judgment, but it has been consistently applied by the higher courts ever since. To quote one passage, the approach to Article 1A of the convention should be

“a single composite question … looked at in the round and all the relevant circumstances brought into account”

to see if there is a real risk.

Those promoting this clause should read a devastating critique of Clause 31 last month by Hugo Storey, the immediate past president of the International Association of Refugee and Migration Judges who has just retired from being an Upper Tribunal judge. He has no doubt that it will lead to “prodigious litigation”; in six compelling pages that those responsible for the Bill must read, he explains precisely why.

Clause 32, on the question of the particular social group, has been dealt with. It seeks to overturn Lord Bingham’s judgment in the case of Fornah, in the Appellate Committee of this House back in 2006, which was all about a 15 year-old girl trying to avoid female genital mutilation in Sierra Leone. I was a junior member of that court, and this clause tries, contrary to that clear judgment, to introduce a conjunctive approach to the two relevant criteria. It would be a grave mistake and cause grave injustice.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end.

Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency.

Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain.

First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making.

At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test.

There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.

[Baroness Ludford (LD)]

Does the Minister recall that I did not just say that it is about the higher standard? It is about having different limbs and different requirements under those different limbs, and switching from “reasonable likelihood” to “balance of probabilities” as part of the composite test, which is not holistic but is in different parts. That is what is confusing, not just a change in the standard of proof.

[Lord Wolfson of Tredegar (Con)]

My Lords, with the greatest respect, it is not confusing at all, because Clause 31(2) establishes the facts, and that is all a balance of probabilities. Then, in Clause 31(4), the decision-maker turns to questions of the future. It is at that stage that the reasonable likelihood test is the appropriate test, because the decision-maker is looking to assess what might happen in the future. That is why we have a lower test at that stage. It is quite usual in law to have different stages of a test and different levels of probability at each.

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Moved by

[Baroness Ludford]

106: Clause 36, page 37, line 18, leave out from “Kingdom” to “country” in line 20 and insert “for a substantial period and were given or could reasonably have expected to have been given protection under the Refugee Convention in that other”
Member’s explanatory statement
This amendment would give effect to the Joint Committee on Human Rights’ recommendation that clause 36 be amended to ensure that it does not contradict the protection Article 31 provides to asylum seekers who have passed through other countries on their way to the UK.

[Baroness Ludford (LD)]

My Lords, in moving Amendment 106 in the name of, and at the invitation of, the noble Lord, Lord Dubs, I will speak also to Amendments 109 and 110.

If Clause 36 is not amended or deleted, it will contradict Article 31 of the refugee convention. It seeks to punish or penalise a refugee for arriving in the UK to make an asylum claim by a route that took them through other countries. The requirement in the refugee convention to come directly was intended only to prevent a person who had acquired refugee status and protection in one country deciding to switch to another. Excluding a person from asylum in the UK simply because they stopped in France, Germany or Belgium, perhaps for a night’s rest, is completely unreasonable. The UK courts have confirmed that any merely short-term stopover en route to an intended sanctuary cannot forfeit the protection of Article 31 of the convention.

Any other interpretation, as the Government seek to impose in Clause 36, means, as in so much of this Bill, a shirking of the sharing of international responsibilities, such that looking after refugees falls overwhelmingly on countries neighbouring the countries of conflict from which the person is seeking to escape. Therefore, Amendment 106 would at least amend the clause, which, however, we might find later, needs to be deleted. I beg to move.

[Lord Etherton (CB)]

My Lords, I will speak to Amendment 107 in my name, which relates to Clause 36 and provides that a refugee will have come directly to the United Kingdom for the purposes of Clause 11, notwithstanding that

“they have passed through the intermediate country on the refugee’s way to the United Kingdom by way of short-term stopover”.

Those words in the amendment reflect the reasoning and decision of the Administrative Court in Adimi, where my noble and learned friend Lord Brown presided. They also reflect the approval of Adimi by the Appellate Committee of this House in a case called Asfaw.

In this respect, Clause 36 is an important part of the Government’s policy. The reason for that is that it provides a definition of “directly” for the purposes of Clause 11 that makes a distinction between group 1 and group 2 refugees. Under the provisions of Clause 11, if the refugee does not come directly from the place of persecution, they inevitably cannot be in group 1.

Secondly, it is important because, as I pointed out in a previous debate on this Bill, the provisions for describing coming to the United Kingdom directly, as defined in Clause 36, also reflect the provision in the admissibility provision in Clause 15. Your Lordships will recall that, in Clause 15, if there is a connection with another state, the refugee’s claim is inadmissible; in fact, it is not recognised as a claim at all and there is no right of appeal. Clause 15 provides that, if you fall within one of the five conditions inserted in the Nationality, Immigration and Asylum Act 2002 by the clause, you have a connection. One of those conditions, condition 4, is that

“the claimant was previously present in, and eligible to make a relevant claim to, the safe third State … it would have been reasonable to expect them to make such a claim, and … they failed to do so.”

So there are two essential elements of the policy behind the Government’s provisions for asylum, where the question of the meaning of coming “directly” is extremely important. I pointed out to the Minister, the noble Baroness, Lady Williams, that there was a muddle here. If condition 4 in Clause 15, as I have described it, is satisfied, you never get to a distinction between group 1 and group 2 because your claim is inadmissible. The noble Baroness was going to look at that and let me know the position from the Government’s perspective, but I have not yet heard from her.

Before I address what coming “directly” means—as I said, my amendment reflects the reasoning and conclusion in Adimi, and the adoption of the decision in Adimi by the Appellate Committee of this House in Asfaw—I want to say a couple of things about what appears to be the approach of the noble Lord, Lord Wolfson, to interpretation. I do not think you need to be a lawyer to appreciate that if, under the aegis of the United Nations, you agree with other states in the world that you will conduct yourself in a particular way and that an agency of the United Nations has a responsibility for overseeing both the implementation of that agreement and that disputes between member states in relation to the meaning and the application of the agreement—here, the refugee convention—will be referred to an international court, there must be a point in time when one has to identify core values. If there are no core values, there is nothing to adjudicate.

The noble Baroness, Lady Chakrabarti, referred to Article 35, which requires member states to co-operate with the United Nations body responsible for oversight in relation to the implementation of the refugee convention. So what one has to do here is decide whether what the Government are doing in putting forward these proposals goes beyond the core principles in the refugee convention, which must be applicable generally to member states—otherwise, all the clauses I have referred to, Article 35, co-operation and adjudication by a court are totally meaningless and impracticable.

So I take issue with the broad statement of principle, as I understand it, put forward by the Minister. He said that it was perfectly acceptable for every member state signed up to the refugee convention to decide, from its perspective, what the convention meant. If that were correct and he was saying that it was for Parliament to decide what it meant for the United Kingdom, it would mean that changes could be made by each successive new Government as to what they felt would be appropriate to support their policy. Well, that is obviously nonsense, if I may respectfully say so.

What the courts have done—and this would be the approach of the all the courts of the countries signed up to the convention—is try to understand what the refugee convention was intended, by those who made it, to mean. The starting point is always the travaux préparatoires leading up to the convention—what was said and what was done—and then trying to understand whether there has been a deviation and, if so, why. That has been exactly the approach put forward and implemented in both Adimi and Asfaw.

The starting point, inevitably, for the interpretation of this particular convention is, as I think the Minister said, the Vienna convention on the interpretation of treaties. I do not think it has yet been said that we are entitled to change, and that we have changed, that treaty according to what we think it ought to say. It provides in Article 31.1:

“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.”


That phrase, as has been noted by the noble Lord, Lord Rosser, I think, was applied by the UK’s highest court, the Supreme Court, in a case called ST (Eritrea) in 2012 as meaning that there is a duty to give the refugee convention

“a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble”.

I have to say as a starting point that I have seen nothing so far in this part of the Bill which is a “generous and purposive interpretation”, having regard to humanitarian objects and the broad aims reflected in the preamble of the 1951 convention. Every provision that people have addressed appears to be, as it has been put, a mean-spirited approach to refugee applications.

It is against that background that I now turn to the meaning of “directly”. I have already referred to the clear decision in Adimi on this point about stopping at intermediate countries by way of short-term stopover. Just to give this a bit of flesh, what the noble and learned Lord, Lord Brown, said then was:

“I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s executive committee … and the writings of well respected academics and commentators … that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing.”

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[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I shall be very brief. I am trying to work out exactly what I am being asked to agree to here. Perhaps I may ask the noble Baroness, Lady Ludford—maybe not the noble Lord, Lord Dubs—and certainly my noble friend on the Front Bench: am I being asked to end or at least change the first safe country principle by accepting these amendments? If that is the case, I have grave concern about an increase in what is known as forum shopping. Perhaps I can say to the Hansard writers that forum is spelled “forum” and not “foreign”, which is how it was reported last time. Foreign shopping is what you go to Paris to do; forum shopping is a rather more serious matter.

It is important because this country is an exceptionally attractive place for people seeking to find the best future for themselves. I explained last time that the very fact that debates are going on your Lordships’ House shows how much concern we have to make sure that the rights of people are looked after. It is also an extremely flexible job market once you are here. Getting and maintaining a job is much easier than in some of the areas such as France, where there is a much more rigid job market. There is a non-contributory health and social security system. There is a diaspora from nearly every country in the world. Your mates are here, so you want to come here to join them. We would all want to join our mates. As a last point, you have learned the English language, which is the lingua franca of the world and, in particular, the lingua franca of technology.

I hope that, when my noble friend comes to answer the debate, he will bear in mind that, if we were to accept this, it will open up the borders for people who are seeking—I do not say that they should not seek—the best future for themselves and, as such, are not abiding by the first safe country principle. We are not in a position to provide the answer to a lot of these people.

[Baroness Ludford (LD)]

I know the noble Lord has listened to a lot of the previous debate. He will know there is no such thing as a first safe country principle under the refugee convention. I tried to explain what the obligation was—namely, not to move on if you have refugee status or protection in a country. The UNHCR has made it clear that there would never have been a refugee convention if there had been a safe first country principle, because countries abutting the problematic countries—for example, Jordan, Iran and Pakistan—have had to accept everyone. No other countries like the UK would ever have had any refugees because we do not abut conflict zones. I am sorry, but this must be rebutted every time it is trotted out.

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

I will address Clause 36 very briefly, which I discussed last week in the context of Clause 11. I confine myself today to asking two questions.

First, do the Government accept, as I suggest they must, that Clause 36 would overrule the judgments of Lord Bingham and, among others, the noble and learned Lord, Lord Hope of Craighead, in Asfaw, fully affirming what had been said on the relevant issues in the judgment I gave in the Divisional Court in Adimi? This has all been elaborated on today by my noble and learned friend, Lord Etherton.

Secondly, if so, are the Government overturning Asfaw and Adimi because, disinterestedly, they genuinely think those decisions are clearly wrong—or because they think an alternative and more anti-asylum seeker interpretation may arguably be available to them?

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[Lord Wolfson of Tredegar (Con)]

I am certainly not trying to be flippant. What I am saying is that we have a refugee convention that sets out our international obligations. We are abiding by those international obligations. It may—I underline “may”—be that a convention entered into in 1951 is not absolutely suitable for the world of 2022. That might be the answer. At the moment, however, my focus as a Justice Minister is on making sure that this country abides by its international obligations, and that is what we are doing. I invite the noble Baroness to withdraw the amendment.

[Baroness Ludford (LD)]

My answer to that last point is that if that is what the UK Government feel, they should convene a conference to renegotiate the refugee convention, but they are not doing that. A large number of noble Lords in this Committee believe that the Government are riding roughshod over the refugee convention in a way that demeans this country and sets an extremely poor example, not least to those countries on the front line, which are taking the overwhelming majority of people seeking protection. We have bandied around the statistics in the last few days in Committee, but we are not in the top category of countries in terms of the numbers, which are manageable. They would be particularly manageable if the Home Office got its act together in the way it decides asylum cases initially—if it invested in the initial consideration of the claims and did not make the law ever more complex, with ever more delays and ever more prospects of litigation. It seems we are banging our heads against a brick wall somewhat, but I beg leave to withdraw my amendment.

Amendment 106 withdrawn.

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Moved by

[Baroness Ludford]

112: After Clause 37, insert the following new Clause—
“Refugee family reunion
(1) The Secretary of State must, within 6 months of the date of the passing of this Act, lay before Parliament a statement of changes in the rules (the “immigration rules”) under section 3(2) of the Immigration Act 1971 (general provisions for regulation and control) to make provision for refugee family reunion, in accordance with this section, to come into effect after 21 days.(2) Before a statement of changes is laid under subsection (1), the Secretary of State must consult with persons he or she deems appropriate.(3) The statement laid under subsection (1) must set out rules providing for leave to enter and remain in the United Kingdom for family members of a person granted refugee status or humanitarian protection.(4) In this section, “refugee status” and “humanitarian protection” have the same meaning as in the immigration rules.(5) In this section, “family members” include—(a) a person’s parent, including adoptive parent;(b) a person’s spouse, civil partner or unmarried partner;(c) a person’s child, including adopted child, who is either—(i) under the age of 18, or(ii) under the age of 25 but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum;(d) a person’s sibling, including adoptive sibling, who is either—(i) under the age of 18, or(ii) under the age of 25, but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum; and(e) such other persons as the Secretary of State may determine, having regard to—(i) the importance of maintaining family unity,(ii) the best interests of a child,(iii) the physical, emotional, psychological or financial dependency between a person granted refugee status or humanitarian protection and another person,(iv) any risk to the physical, emotional or psychological wellbeing of a person who was granted refugee status or humanitarian protection, including from the circumstances in which the person is living in the United Kingdom, or(v) such other matters as the Secretary of State considers appropriate.(6) For the purpose of subsection (5)—(a) “adopted” and “adoptive” refer to a relationship resulting from adoption, including de facto adoption, as set out in the immigration rules;(b) “best interests” of a child must be read in accordance with Article 3 of the 1989 UN Convention on the Rights of the Child.”Member’s explanatory statement
This new Clause would make provision for leave to enter or remain in the UK to be granted to the family members of refugees and of people granted humanitarian protection.

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[Baroness Ludford (LD)]

On behalf of my noble friend Lord Paddick, I will move Amendment 112 and speak to Amendments 113 and 117, which I have co-signed. The reason I have been given the honour of moving Amendment 112 is that it reproduces my Private Member’s Bill, which in fact has its origins with my noble friend Lady Hamwee and will have its Committee stage just after recess.

The Conservative Party likes to call itself the party of the family; I believe it needs to demonstrate this. Amendment 112 would build on existing safe routes for family reunion to enable a wider range of family members to reach the UK without undertaking unsafe journeys. This is the real way to stop most of the dangerous channel crossings and put the smugglers out of business.

In the letter and attached chart that the Minister sent to the noble Lord, Lord Dubs, and kindly made available to us all, the Government set out the current safe routes. Even under part 11 of the Immigration Rules, while adult refugees do not have to pay a fee for the visa they do have to pay for travel to the UK, and the integration loan cannot be used for that. Legal aid is also not available, at least not in England and Wales—I do not know about Scotland or Northern Ireland—and they can bring in only their spouse and their under-18 children.

As in my Private Member’s Bill, Amendment 112 would permit dependent children up to the age of 25, as well as adopted children. Crucially, it would permit children recognised as refugees to sponsor their parents and siblings to join them. Although sibling reunion is in theory possible under paragraph 319X of the Immigration Rules, in practice the barriers are often insurmountable. Not only does the visa cost almost £400 but the young sponsor has to show that they can financially support and accommodate their sibling without recourse to public funds, and that the justification for reunion is “serious and compelling”. All these are tough tests to fulfil. Paragraph 297, which governs whether children can join parents or non-parent relatives who have settlement status imposes a fee of £1,500, and then the same serious and compelling test.

Despite promising in a response to the consultation on the New Plan for Immigration to give creator clarity, no guidance has been forthcoming. Can the Minister tell us in her response when that guidance will be forthcoming, and how many visas have been issued under paragraphs 319X or 297 over the last five years?

I reaffirm my support for Amendment 113 from the noble Lord, Lord Coaker, and Amendment 117 from the noble Lord, Lord Dubs. These both aim to boost family reunion opportunities for unaccompanied minors and for entry to seek asylum, in part substituting for the loss of the Dublin regulation. I also support other amendments in this group. I beg to move.

[Lord Hylton (CB)]

My Lords, I have added my name to three amendments in this group. I note that they are all new clauses. New clauses are necessary to improve this Bill, and they are essential to humanising our present systems, let alone what may emerge from the Bill once it becomes an Act.

Reuniting families split by wars and persecution brings huge benefits; I think we can all agree on that. Amendment 112 enfranchises both children and their parents. It also empowers the Secretary of State to add new kinds of relationships. Amendment 113 should, as the noble Baroness, Lady Ludford, has just mentioned, reduce dangerous crossings of the channel.

On Amendment 114, we all know that the neighbours of Syria and Iraq have been subjected to and have accepted huge influxes of people. The same is also true of southern European states. For these reasons, there is an urgent need for equitable burden sharing. This, in turn, will require much greater international co-operation. We can do our part in this country by using family reunion. Our neighbours and allies are entitled to know what our intentions and proposals are in this respect.

The wording of all three amendments can, I expect, be improved. Will the Government accept at least their principles, take them away and bring them back in pristine condition?

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The amendment could simply create further incentives for more adults and children to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK in order later to sponsor qualifying extended family. That plays into the hands of criminal gangs which exploit vulnerable people and goes against the main intention of the Bill. We must do everything in our power to stop this dangerous trend. I hope that, with that, the noble Baroness will be happy to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, I thank the Minister, who has given us detailed responses. Some of her points do not really take account of what inspired this set of amendments, which is that people do better if they have the support of their family. It may not be quantifiable, but my noble friend Lady Hamwee mentioned the case of a sibling. I can imagine having that my brother or sister with me in a strange place would be an enormous support. The way the Minister replied—which is obviously in her brief—was all about the numbers: never mind the quality, feel the width. We are talking about quality of life, integration and the chances that the person who gets status would have to thrive in the UK. The Home Office is a bit blinkered on this matter.

The Minister told me that the promised guidance on paragraphs 319X and 297 would be coming “in due course”. That is a phrase that always chills the spine; I hope it is not too far away. It would be interesting to know what constitutes “serious and compelling” circumstances, as people are finding that it is very difficult to get through that test. I also note that she said that there is no data in published statistics on how many applications are granted under either of those two routes, and I look forward to her successful efforts to find that. It is a bit surprising that there are no published statistics on that, but I hope she has success in locating some.

The Minister said that there is no need for statute. I obviously disagree, because I am promoting a Private Member’s Bill that would put it into statute. A lot of the problem here is that there is too much discretion and moving of the goalposts, so people do not know what they can rely on. It is all just too difficult, and there are numerous hurdles.

I listened to the Minister. I am fairly disappointed with what she said, but, as of now, I cannot do other than beg leave to withdraw the amendment.

Amendment 112 withdrawn.

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[Baroness Ludford (LD)]

My Lords, I am pleased to support Amendment 115, in the name of the noble Lord, Lord Dubs, which I have co-signed. Of course, it aims to provide a safe route for unaccompanied children from countries in Europe and broadly reproduces what we all know as the Dubs amendment to the Immigration Act 2016. There have been warm words, deservedly, about the role and record of the noble Lord, Lord Dubs; what better way to put that into something concrete than for the Government to accept Amendment 115?

I support all the amendments in this group, but I will just speak in support of Amendment 116, in the name of a noble quartet of Conservative Peers, which would provide for “at least 10,000” refugees to be resettled annually. The noble Lord, Lord Kerr, has discussed the ins and outs of that figure, but it is better than 1,000 a year, which we hear was the low achievement last year. This figure happens to be Liberal Democrat policy, so I very much agree that it is a moderate and sensible amendment. As I say, I support all of the other amendments in the group.

[Lord Horam (Con)]

My Lords, I am not sure that I should support a Liberal Democrat policy this evening; none the less, I agree with what the noble Lord, Lord Kerr, said about the importance of targets. I am sure that one of the reasons that local authorities are reluctant to accept more people is the uncertainty that they have at the moment. They genuinely have a shortage but, inevitably, they hold back when they do not know exactly how many are expected.

I have long argued for targets in this area; I think they are an important part of it precisely because you need sensible planning, frankly, and this could be a way forward. Whatever the numbers may be, we ought to have a proper debate each year on refugees, asylum seekers and immigration as a whole, in which the Government’s plans are set out and we can all make a contribution, in the Commons as well as here, and decide what should be the targets for the following year. This would give everyone, including local authorities, some confidence and certainty about what they are expected to do.

I am afraid I do not think that that will actually reduce the numbers of people coming across the channel—I am sorry to disagree with the noble Lord, Lord Kerr, on this point—for the reasons that I spelled out previously. Demand is so great that people would still try to cross the channel, even if we expanded the number, for certainty, of people coming across under safe schemes. None the less, the idea of having transparency and target setting is very valuable.

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Moved by

[Baroness Ludford]

120: Clause 39, page 40, leave out lines 5 to 9
Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to prevent “arrival” in the United Kingdom without a valid entry clearance, rather than “entry” into the United Kingdom without a valid entry clearance, becoming an offence.

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[Baroness Ludford (LD)]

My Lords, the effect of Clause 39 is to criminalise the act of seeking asylum in the UK, even if the person has no option but to flee. Clause 39 makes arriving in the UK without leave, without ever actually entering the UK, a criminal offence. I am therefore moving Amendment 120, with the invitation of the noble Lord, Lord Dubs, which would remove the relevant part of Clause 39.

I note that whereas a person violating Clause 39 could get a sentence of four years in prison, I recently saw in the media a case of modern slavery which attracted a suspended sentence. So having the temerity to arrive to claim asylum is considered multiple times more serious than enslaving and exploiting someone.

Clause 39 criminalising arrival would cover people intercepted in UK territorial waters and brought into the UK, and presenting themselves to an immigration official to claim asylum. They would arrive, even if they do not enter. Note that this is not targeted at traffickers and smugglers but at the sorry individuals being smuggled and seeking asylum. Why should they be criminalised? Remember that no visa exists for the purpose of claiming asylum—the noble Lord’s amendment wants to rectify that—and it is impossible to claim asylum without coming to the UK. It is a classic Catch-22 situation.

The clause is inconsistent with Article 31 of the refugee convention, which obliges signatories to

“not impose penalties, on account of their illegal entry or presence, on refugees … present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

This non-penalisation is at the core of the refugee convention—even Australia has never considered criminalising irregular entry.

Of course, if an asylum seeker becomes a criminal as soon as they arrive, this can have implications for their future as a refugee. They will have a criminal record and be deemed to be not of good character, and this will impact on their ability to integrate, to settle and, down the line, to acquire British citizenship.

As we discussed on an earlier group, the definition of “particularly serious crime” is being lowered to a 12-month sentence. Since they could get a four-year sentence under Clause 39, or 12 months on a summary conviction, the person could lose their protection against expulsion and refoulement simply as a result of arriving in the UK to claim asylum. It is pernicious to criminalise someone who simply arrives in, not enters, a country— there has always been a distinction between the two. I am afraid that it is somewhat Kafkaesque—I maybe overuse that phrase—as well as pernicious and unnecessary. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I rise to speak to Amendments 121 and 122. I thank the noble Baroness, Lady Hamwee, for lending her support in signing Amendment 122. As the noble Baroness set out, and as we heard from the Deputy Chairman, if Amendment 120 carries favour with the Committee, Amendments 121 and 122 could obviously not be moved.

I intend these amendments to probe my noble friend the Minister. The thinking behind this is that it represents the concerns expressed to me by Law Society of Scotland, to which I am grateful for drafting the amendments and the wording that it has used. Rather than just deleting the offending wording in new subsections (D1) and (E1), I am proposing to delete “arrives in” from the relevant sections of Clause 39 and insert “enters” instead.

Clause 39 of the Bill adds a new component to the existing offence of illegal entry, and subsection (2) thereof adds new subsections to Section 24 of the Immigration Act 1971. New subsection (D1) makes it an offence for someone who “requires entry clearance” to arrive in the UK without “a valid entry clearance”. An entry clearance is a visa issued before travel, because it becomes leave to enter when the person enters the UK. The burden of proving that a person holds valid entry clearance lies on that person. This is of concern, given that EU citizens are not routinely given any physical evidence of their entry clearance if they apply using the UK Immigration: ID Check app—no visa vignette is placed in their passport. So the key addition to the offence provision is to make arrival an offence.

The Explanatory Notes clearly state:

“The concept of ‘entering the UK without leave’ has caused difficulties about precisely what ‘entering’ means in the context of the current section 24(1)(a) of the 1971 Act.”


Entering is defined in Section 11(1) of the Immigration Act 1971, which I recall studying at the University of Edinburgh some time ago, as disembarking and subsequently leaving the immigration control area. Arrival is not given any technical legal definition, so it will simply mean reaching a place at the end of a journey or a stage in a journey. So it is unclear whether a person needs to reach the mainland in order to arrive in the United Kingdom.

My first question to my noble friend is: can she clarify at what point a person arrives in the United Kingdom? The Explanatory Notes and the separate definitions of the United Kingdom and United Kingdom waters seem to suggest that arrival on the mainland is necessary. The new provisions will allow prosecutions of individuals intercepted in UK territorial waters and brought into the UK, who arrive in but do not technically enter the UK, as set out in paragraph 388 of the Explanatory Notes.