Illegal Migration Bill

Baroness Whitaker Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I agree with the noble Lord, Lord Purvis of Tweed, in the submission that Clauses 5 and 6 and Schedule 1 should not stand part of the Bill. The reasoning becomes increasingly repetitive and circular, because these provisions are parasitic on the meat of the Bill, which is really Clause 2. That is the duty that the Secretary of State is quite deliberately taking upon herself so that it looks as if no discretion is being exercised, she must remove people and therefore the courts have no ability to supervise that judgment. That is the heart of the moral and practical problem with the Bill, so when we look at the parasitic clauses that follow on from Clause 2, we come back to that central problem.

There are so many reasons why this is wrong in both principle and practice. As always, it is a privilege to follow the noble Lord, Lord Kerr of Kinlochard, a most distinguished senior diplomat and former Permanent Under-Secretary to the Foreign and Commonwealth Office—which is important. The poor old Home Office gets lumbered with all the tough talk and rhetoric and with translating press releases into legislation, but the foreign department has to represent this country all over the world, negotiate further treaties and hold its head up in its attempt to do so. The foreign department will no doubt try to persuade people that Mr Sunak is so right and that, as I said last time, we should be the hub of AI intelligence and the world regulator, and everybody should support the idea that these treaties should be formulated here. Once upon a time, we could have said that.

If any noble Lords, particularly on the Benches opposite, want to understand the importance of the refugee convention, not as it is being flexibly interpreted by the current Government but as it was intended after the war, they might care to read the correspondence between our wartime Prime Minister and the then Archbishop of Canterbury. That correspondence between Winston Churchill and William Temple is very revealing of what the obligations of the future treaty were going to be in relation to individuated justice for refugees, which of course is the problem.

We were treated last time to good cop, bad cop by two Ministers, from the Home Office and the Ministry of Justice respectively; I will leave Members of the Committee to decide who was which. But I think that the noble Lord, Lord Purvis, was right in his rather forensic—if I may say so—examination to point out some tensions in the case as it was put by the two Ministers.

The Home Office Minister concentrated, quite rightly, on the message as we have heard it thus far: this is about deterrence; we do not want people to come here; this is all about stopping the boats. Therefore, he stressed the automaticity of Clause 2 and the absolute commitment—no ifs, ands or buts—to a duty to remove anybody who comes by an irregular route; no matter how genuine a refugee, they must be removed. When, as amendment after amendment was debated, and noble Lord after noble Lord gave the litany of heartbreaking cases of trafficked people, of gay people who should not be sent back to certain countries, and so on, the Minister from the justice department pointed up the possibility of exceptional non-suspensive claims—it will be all right, there will be the possibility of individuated justice in those cases. But, of course, both positions cannot be the case, and they were not intended to be. It was excellent advocacy, perhaps, but it does not stand up, as the noble Lord, Lord Purvis, said so clearly in his introduction to the debate.

This is the blanket treatment of claims that were always intended to be considered in a case-by-case analysis. As the noble Lord, Lord Kerr, pointed out, there are countries, including very large democracies such as India, perhaps, that are perfectly safe for some people but not at all safe for others—because they are political dissidents, because they are queer, because they are women. That is conceded by the Home Office in the schedule that lists some countries as safe only for men.

It is a diplomatic nightmare to be creating this automaticity of “These are safe countries; these are unsafe countries” and to be telegraphing it in the schedule to the Bill. The noble Lord, Lord Murray, will say, “There has been this development for some years under Governments of both stripes to have inadmissibility and presumptive safety”. It is one thing to say to your officials considering individual claims that some countries might be prima facie safe, but you still have a duty to consider the individual asylum seeker before you to determine what their story is. That was always the intention in the refugee convention and that is the obligation on signatories to it—and, I would argue, not just signatories any more because non-refoulement has become accepted as a principle of customary international law. That is what we propose to breach by this legislation.

That is how serious it is. The Bill is wrong in principle, wrong in practice and internally incoherent. Certainly, the arguments that have been put by Ministers—elegantly, charmingly, patiently, late into the night—do not hold together, and these provisions should not stand part of the Bill.

[Baroness Whitaker (Lab)]

My Lords, following the eloquent speeches of my noble friend and the noble Lord, Lord Kerr, I would like to refer again to the proposal that Schedule 1 should not stand part.

Some of those countries breach protected rights. I ask the noble and learned Lord the Minister which of the countries on the list practise female genital mutilation and do not reserve refoulement only for men? Which criminalise homosexuality? Which criminalise humanism? Noble Lords may remember the case of the president of the Humanist Association of Nigeria, who has received a life sentence.

Surely it is very odd to remove people to those countries. Does the Minister think that that conforms to our signature to the treaties of international law?

[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Whitaker. I endorse everything that has been said in the debate so far, so ably introduced by the noble Lord, Lord Purvis. I particularly want to follow on from what the noble Baroness said to the Committee about the suitability of some countries in Schedule 1 as places to which people should be returned; my noble friend Lord Kerr and the noble Baroness, Lady Chakrabarti, developed that point in their interventions earlier. I will take one example but the arguments I am going to put to the Committee could be applied to other countries on the list as well.

The country I want to talk about is Nigeria. In a later group of amendments, I have Amendment 85C in my name, which seeks to establish

“how the Secretary of State will assess Equality”

provisions

“listed in Schedule 1 and the potential harm to those with protected characteristics including victims of Modern Slavery”.

However, I want to ask the Minister specifically to engage with the issue of justice in Nigeria. This is a country to which we have said it is safe to return men but not women. I argue that it is not safe to return anybody to Nigeria, given the way in which the internal factors in that country currently stand.

The seriousness of the situation was underlined by the visit of Karim Khan KC, the prosecutor for the International Criminal Court, to Nigeria in 2020. He is continuing the investigation into the war crimes and crimes against humanity perpetuated by Boko Haram and other factions—as well as the involvement, I might add, of the Nigerian security forces. That investigation began in December 2020 and continues. Whether or not the ICC will determine that a genocide or crimes against humanity are being perpetrated against the religious minorities in the north of Nigeria lies in the future, but the evidence of why this is a hostile environment in which people face outright persecution is overwhelming.

Simply consider the role of what are sometimes euphemistically called “bandit groups”. They have killed, abducted, forcibly converted and displaced vast numbers of people, many of whom end up in small boats. According to government figures, 4,983 women were widowed; 25,000 children were orphaned; and 190,000 people were displaced between 2011 and 2019, with more 3 billion naira paid to bandits as ransom for 3,672 individuals who had been abducted.

In one incident last year, IS West Africa killed eight people and kidnapped 72 people on a Kaduna-bound train from Abuja while, in 2022, Boko Haram killed at least 60 people from the community of Rann, in Borno State, and killed more than 15 women in Gwoza, also in Borno State. In June 2022, the United Nations reported that Boko Haram and splinter factions abducted at least 211 children, recruited at least 63 children, killed or maimed at least 88 children, raped or sexually violated 53 girls and attacked at least 15 schools. In September 2022, UNESCO estimated that 20.2 million Nigerian children were out of school as a consequence.

I think particularly of the plight of Leah Sharibu, who has just turned 20. At the age of 14, on 18 February 2018, she was abducted by Boko Haram, raped, impregnated and forcibly converted. She is one of 110 girls taken from the Government Girls Science and Technical College in Dapchi, in Yobe State. Here in your Lordships’ House, I met her mother, Rebecca. I promised that I would never miss any opportunity that might come my way to raise Leah’s case. I do so again today because it illustrates the dangers faced by people being sent back to Nigeria, whether they are women or men; indeed, if they come from religious minorities that do not fit a particular mindset or ideology, they are doubly endangered.

Elsewhere in the country, secessionist forces in the south-east of Nigeria and protests by the Indigenous People of Biafra led to gunmen killing, maiming and destroying the properties of citizens in the region. Armed forces against separatists have also been involved in at least 122 extrajudicial killings. Media reports suggest that more than 287 people were killed in the south-east between January and May.

--- Later in debate ---

[Baroness Whitaker (Lab)]

The Minister kindly said that, if he had not answered anything, he would do so. Would he please write to me about which countries practise female genital mutilation, criminalise homo- sexuality and criminalise humanism?

[Lord Bellamy (Con)]

I am grateful to the noble Baroness for her question, but I cannot answer it today at the Dispatch Box. My respectful reply is that this issue does not arise for the reasons I have given. The Bill does not envisage, at the moment, returning people to such countries. The general position is that we can continue discussing the provisions on legal requirements, trafficking, unaccompanied children and so forth, but this part of the Bill is an essential part of the Bill. I therefore beg to move—

Illegal Migration Bill

Baroness Whitaker Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

It would be all the more unacceptable, therefore, not to take responsibility for the care and support of victims who suffer as a consequence of our failings. Clause 21 as drafted refuses that responsibility. Victims brought and abused here it disposes of somewhere else. That is the moral core of many of the amendments in this group. Thus, my question to the Minister is: if these women are here because of the criminal and business activities of UK markets and the limitations of UK policies and policing, why are these victims not our responsibility?

[Baroness Whitaker (Lab)]

My Lords, all the amendments in this group are very serious contributions to improving the Bill, but I want briefly to add my support for Amendment 85C in particular. I cannot match the noble Lord, Lord Carlile, in his acquaintance with ChatGPT, but his amendment, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Hamwee, and my noble friend Lady Kennedy, who is not in her place, goes some way towards dealing with the difficulties of the astonishing assumption behind Schedule 1—that asylum seekers can safely be deposited in all these 57 countries. Quite apart from the observation by the noble Lord, Lord Kerr, during our previous Committee sitting that they do not have asylum regimes in any case, to make Schedule 1 acceptable the Minister must accept this amendment.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, I have tabled Amendments 97 and 98 in respect of Clauses 27 and 28. I commend the report, published yesterday, from Parliament’s Joint Committee on Human Rights—a very fine document which says that this Bill will have “a disproportionate impact” on the victims of modern slavery. My noble friend Lord Coaker referred to the coalition Government of 2010-15, which took the initiative to introduce in Parliament and implement the Modern Slavery Act. This Bill drives a sword through it and completely lacerates it.

There is no doubt that the number of amendments that refer to modern slavery or human trafficking are testament to the Committee’s concern about the Government’s proposal. Again, I refer simply to my own Amendments 97 and 98. The Government frequently refer to victims of the “heinous crime” of modern slavery and, in March 2021, they commended themselves on how many victims had been referred to the national referral mechanism, stating that

“the UK has a strong reputation internationally in addressing modern slavery referrals; year on year there has been a rise in referrals from all frontline responders into the NRM”.

It is extremely concerning that, some two years later, we are talking about the same increase as a matter of abuse and the same victims as threats to public order. That is exactly the language that has been used by this Government. Lest there be any confusion, this language is being applied to individuals who have been the subject of exploitation through being either coerced or deceived. The language is being applied not to those who traffic and exploit people as commodities but to the victims of crime.

The UK has signed up to international obligations to identify and care for victims of modern slavery. One of those is the European convention against human trafficking—frequently referred to as ECAT. The noble Lord, Lord Carlile, referred to this. ECAT requires the identification of victims so that they might benefit from the convention entitlements, including the provision of a recovery period when the person cannot be deported and can receive support and assistance. The Bill does not prevent the identification part of our obligations, but it makes identification meaningless for the most part.

Last year, under the Nationality and Borders Act 2022, the Government determined that some victims should be excluded from a recovery period if they are a threat to public order. There is a case for excluding those convicted of serious criminality; indeed, ECAT recognises that under Article 13. But here is the key point: it has been applied on a person-by-person basis. This Bill, in the words of the Independent Anti-Slavery Commissioner, Dame Sara Thornton, introduces

“a massive extension of that public order disqualification to everybody”.

Yes, all victims of modern slavery within the scope of the Bill are being considered a threat to public order. I hope your Lordships will indulge me as I quote the Government’s justification for this extension. In the human rights memorandum, the Government say that they consider that a person who falls under the duty to remove is

“a threat to public order, arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure placed on public services by the large number of illegal entrants and the loss of life caused by illegal and dangerous journeys”.

ECAT makes no differentiation between victims of modern slavery who are in the country illegally or legally. The convention knows that these individuals need safeguarding and protection, regardless of their immigration status.

Parliament’s Joint Committee on Human Rights, which published its report yesterday, states that

“the Government’s position that the modern slavery clauses are ‘capable of being applied compatibly’ is untenable”.

My noble friend Lord Coaker already referred to this point. The report continues:

“The UK has clear positive duties under Article 4 ECHR (prohibition of slavery and forced labour) to protect victims or potential victims of slavery or human trafficking, as well as duties under ECAT—these provisions of the Bill are in direct conflict”


with the above-mentioned article and ECAT. The committee recommends that the clauses in the Bill dealing with modern slavery should be removed, a point I concur with. The Commissioner for Human Rights of the Council of Europe has said about the extension of the public order disqualification:

“Such a justification appears to me to be so broad and general that it increases the likelihood of an arbitrary application of the modern slavery protections”.


The Parliamentary Assembly of the Council of Europe is due to debate a report on a number of human rights measures currently being debated in the UK, including the Bill. The provisional report was published on 25 May. In reviewing the Bill’s compatibility with ECAT, the report says:

“The fact that an individual was trafficked into the UK does not make that individual thereafter a threat to public order”,


a point that this House and the Government should take on board.

I was disappointed that, on day two in Committee, the Minister said that the Bill was compliant with ECAT because

“ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order”.—[Official Report, 5/6/23; cols. 1200-01.]

This is exactly the opposite of the position taken by GRETA, the body overseeing ECAT. In its submission to the Joint Select Committee on Human Rights inquiry into the Bill, it said that such an approach

“would be contrary to the purpose of Article 13”,

since Article 13(1) is

“intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period”.

My Amendments 97 and 98 urged the Government to rethink their interpretation of Article 13(3), which is, in my view and that of GRETA, contrary to the convention. I also urge the Government to be mindful of the recommendations in the Joint Committee on Human Rights report, just published; to heed its advice; and to indicate, in a realistic and humanitarian way, when they will respond to that report. The website states that the Government will respond in August, long after the Bill has been implemented into law. That is too late. We need a response at a very early opportunity—in fact, before we return for Report on the Bill.

I ask the same question as did my noble friend Lord Coaker: when will the impact assessments be made available to this House? Will it be done at a very early opportunity and before the completion of Committee on the Bill?