Nationality and Borders Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I followed with great interest the noble Baroness, Lady Chakrabarti, in speaking eloquently to the clauses stand part in the last group. Like the noble Lord, Lord Dubs, I shall speak only to a particular amendment, that put forward by the noble Baroness, Lady Chakrabarti, to which I have lent my signature, as have others. Once again, I am grateful to the Law Society of Scotland for its background briefing, and I shall refer briefly to the report of the Constitution Committee in which its concerns were quoted.

I am grateful to the Law Society of Scotland for highlighting its concerns, which I share. This is a probing amendment to understand the background following on from my noble friend’s summing-up in response to the previous group. I find myself half way between my noble friend Lord Hodgson, who is not a lawyer, and the noble Lord, Lord Anderson, who is a lawyer of some repute. I am a member of the Faculty of Advocates but have not practised for a considerable period. However, I enjoyed the one case on which I was a junior before the European Court of Human Rights—the proceedings were very similar to those enjoyed in our erstwhile proceedings when the House of Lords enjoyed the right of final appeal.

The reason why I believe that Clause 31 does not fit well with the Bill goes back to the standard of proof test set out in the leading case for asylum cases, Ravichandran v Secretary of State for the Home Department, as a “well-founded fear of persecution”. In the Court of Appeal in 2000, it was confirmed that the standard of proof in civil proceedings—the balance of probabilities referred to in Clause 31(2)—was not suitable for immigration matters. Instead, what was important was making an assessment of all material considerations such that it

“must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur”.

Lord Justice Sedley described the balance of probabilities as

“part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones.”

For the past 20 years, the approach taken in the Karanakaran case was consistently followed by the courts. In Scotland, the Outer House of the Court of Session reaffirmed that case as the correct standard of proof approach to be applied in the case in 2020 of MF (El Salvador) v Secretary of State for the Home Department. In that case, it was held that the First-tier Tribunal judge had erred in law by applying the wrong standard of proof in respect of an application for permission to appeal brought by an asylum seeker.

In Kaderli v Chief Public Prosecutor’s Office of Gebeze, Turkey, in 2021, the High Court reaffirmed, while referencing the Karanakaran case, that the question as to determining a well-founded fear of persecution is that of an evaluative nature about the likelihood of future events. In that case, it was held that the judge erred in holding that it was for the appellant to prove on the balance of probabilities that the corruption alleged had occurred. The true test involved the application of a lower standard: whether there was a real risk that the appellant’s conviction was based on a trial tainted by corruption. This was consistent with the approach to the fact-finding in the immigration context.

In the view of the Law Society of Scotland,

“the change in clause 31 appears to go against the intention of the New Plan for Immigration, and flies in the face of 25 years judicial scrutiny.”

So my question to my noble friend the Minister, in summing up this evening, is: on what basis are the Government prepared to set aside the cases that I have set out this evening?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the question. What is driving it, as I said a few moments ago, is the attempt to have a consistent and clear approach to decision-making. When you have a single test with different elements, and it is all under “a reasonable likelihood”, it is then that you are more likely to have inconsistent decision-making—I will not use the word “mishmash”. What you are doing here is really two things, and Clause 31 sets them out clearly. You are first saying, “Are you who you say you are?” and “Did you, in fact, fear such persecution?” Those are factual questions, decided on the balance of probabilities. Then the question is: “Is there a reasonable likelihood that, if you were returned, you would be persecuted?” That is a question of reasonable likelihood.

[Baroness McIntosh of Pickering (Con)]

My noble friend is, in fact, rewriting the law. I am not an immigration lawyer, but if I were, I think I would be a little confused at the moment. In the case that was decided in 2021, Kaderli v Chief Public Prosecutors Office of Gebze in Turkey, it was clearly said that

“The true test involved the application of a lower standard”


than the balance of probabilities. So now no immigration lawyer could plead the application of the lower standard because my noble friend is raising the bar in this Bill.

[Lord Wolfson of Tredegar (Con)]

I thought I made it absolutely clear when I said earlier that the court in that case made its decision against the legislative background at the time. Parliament is entitled to change the legislative background. We will want to make sure that we remain consistent with the refugee convention, and, as I said earlier, we believe that we are. There is nothing wrong with doing that. It is simply not the case that we are somehow bound as a Parliament by what the Court of Appeal said in the case referred to by my noble friend. Therefore, with great respect, I disagree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, where he said that a single holistic question was better and that the higher standard was objectionable. With respect, I disagree on both points.

--- Later in debate ---

[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.