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—