Illegal Migration Bill

Danny Kruger Excerpts

Committee stage
Monday 27th March 2023 Commons Chamber

[Dame Diana Johnson]

Unfortunately, there seems to be a great deal of confusion in the House about the small boats issue. It is worth reflecting on the fact that currently the largest number of people coming across in small boats come from Afghanistan and that the backlog in the Home Office system—now over 166,000—has been growing for some time, creating a knock-on effect on how quickly the system can deal with people arriving in this country, process them and remove those who should not be here.

It is also worth reflecting on the Home Affairs Committee report on the small boats crisis, published last summer, which said that the Government needed to address four things: clearing the backlog and speeding up the processing of people arriving in small boats; the issue of safe and legal routes, which I will say a little more about in a moment; the need for international co-operation; and the need to deal with the criminal gangs and to have return agreements with other countries in place. I remain worried about the argument that the Bill will deter people from getting into small boats, which goes back to my concern about the lack of evidence.

The hon. Member for East Worthing and Shoreham (Tim Loughton) referred to the Home Affairs Committee trip to northern France in January. One key thing I remember from that trip is that if someone is standing on the beach in Calais or northern France, with the British coastline visible just 30 miles away, it is too late; they are going to take their chance and get into a boat.

I worry about the Home Office’s capacity to deal with the momentous change that the Bill will bring. It has not been very good at dealing with the asylum applications that have been building for many years, and I worry about its capacity to deal with the large-scale detention of people, families and children that the Bill will introduce.

My amendment 137 is on the issue of establishing a cap on the number of migrants using safe and legal routes. It will be difficult for the House to identify and make provision for crises that will unfold in the year ahead. In 2010, we could not have known the true extent of refugees from the first Libyan civil war or from South Sudan, or the number coming from Syria in 2011 or from Ukraine just one year ago. We cannot know what global challenges we will face in the next year, so an arbitrary target could be seen as a restraint on Governments being able to respond dynamically and appropriately.

Who will be included in the cap, and will it include children? Every child has the right to protection from persecution, discrimination and violence. That is a cornerstone of international and domestic law. Turning away a child fleeing a war zone or a genocide because of a cap decided months earlier in this House, could undermine the key principles of the international child protection frameworks that we have signed up to, including our own Children’s Act 1989, which gives clear focus to our international obligations in domestic legislation. The Government say that clause 51 will allow them to exceed the number set out in the cap each year if needs be. In that case, it is not really a cap, is it? It might be a target, but one that would have difficulty dealing with what is happening internationally.

We should reflect on and acknowledge the willingness of the British people to step up to the plate when crises appear, as thousands did last year when they took in displaced Ukrainians, and the wholesale support for unaccompanied children being given shelter when we debated the Dubs amendment a few years ago. If the Government are determined to introduce the cap, children should not be included and “people”, as set out in the clause, should be defined as those over 18 years of age. Setting a cap on the number of children who can claim asylum could result in one child being turned away while another is chosen—it is a “Sophie’s Choice” regulation. I ask the Minister to think again, and recognise the special position of children and our obligation to them.

The most obvious and appropriate way to support refugee children is to ensure they have access to safe and legal routes, which are clearly set out and defined. That is why I have added my name to new clause 13 and amendments 72 to 75, tabled by the hon. Member for East Worthing and Shoreham. I also support new clause 17 in the name of my hon. Friend the Member for Walthamstow (Stella Creasy).

Our Home Affairs Committee report made it explicitly clear that ensuring that there are accessible, safe and legal routes to the UK is a key plank of an asylum system that is both fair and effective, and also provides a clear disincentive and deterrent for illegal routes. I agree with the comments made by the hon. Member for East Worthing and Shoreham about the need for additionality. We cannot just say that the current schemes are sufficient, welcome as they are. There must be a package of measures to deal with the current situation, along with clearing the backlog. It cannot be right that that is left until some future date when we will know what the safe and legal routes are. That needs to be up front as part of the Bill, so that we have both the deterrent and the options around safe and legal routes.

New clauses 8 and 10 are about safe passage visa schemes. The Home Affairs Committee report mentioned using reception centres in France to allow people to make asylum claims from France—the Government rejected that idea, but some imaginative thinking about how we can assist people to make claims would be helpful. That is why it is worth the Government considering what new clauses 8 and 10 would mean. We have juxtaposed checks on passports and customs with the French, but there may be more room for negotiations with the French about making claims in France directly. New clause 8 is a little more prescriptive than new clause 10; that might be helpful as well.

I have added my name to amendment 122, which was tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry). The amendment would clarify our legal responsibilities and fulfil the recommendations of the Joint Committee on Human Rights. Last year’s Home Affairs Committee report underlined the importance of strong international co-operation and relationships in dealing with migration issues. I believe that those would be weakened by walking away from our international legal obligations.

In conclusion, the Government must ensure that the Bill does not undermine our legal or moral obligations. They should clearly establish safe and legal routes in the Bill. If they are determined to tighten our refugee provisions, we must not turn our back on child refugees by arbitrarily placing a cap on, or excluding, those vulnerable children who turn to us for support.

[Danny Kruger (Devizes) (Con)]

I rise to speak to amendment 131, which stands in my name and in the name of colleagues. I am grateful to the Minister and his colleagues for their very constructive engagement in recent days; on the basis of the commitment that I hope we will hear from him this afternoon, I do not propose to press my amendment to a vote this evening. I also thank my hon. Friend the Member for Stone (Sir William Cash); I am very glad that he has just returned from his cup of tea, because I am about to make a great speech in defence of parliamentary sovereignty in his honour.

The fact is that we need a new asylum system in our country. Indeed, the world needs a new framework for protecting the rights of refugees in an age of mass migration, with the huge people movements that we are seeing. Part of that is safe and legal routes, which are the natural corollary of the Bill; I support the principle described by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and set out in his amendments to that end. I particularly endorse the work that has gone on in the Home Office—I want to see more of it—around community sponsorship. It is one of the existing global routes that we have, and we want to see it widened significantly. Even more fundamentally, the new framework that we need must honour the founding principle of both the European convention on human rights and the refugees convention: that the primary responsibility for managing asylum rests with the nation state. That is the purpose of the Bill and of my amendment.

It is worth stating why, as part of the new framework that we need, we need a law requiring the removal of people who arrive here illegally. The fact is that even if we had the best safe and legal route in the world, we would still have thousands of people—tens of thousands, perhaps hundreds of thousands a year—seeking to come here by unsafe, illegal routes. We simply cannot accommodate all those people. That is why it is absolutely right that this Bill creates a limit, with a cap on the total number of refugees we will receive. What that cap should be is up for debate, but the need for one is clear.

Unless we want open borders—Opposition Members deny that they want them—we have to do something about the many, many people who will still try to come once the cap has been reached. The only logical answer is to deny leave to stay to people who enter illegally, to detain them and to remove them somewhere safe and free: either back to their own country or to a third country that is willing to have them. That process must be swift and unquestioned. Nothing but the certainty of detention and speedy removal will deter illegal migrants and break the business model of the smugglers.

That power of removal was established in the Nationality and Borders Act, but as we know, a judge in Strasbourg was then woken in the middle of the night by a lawyer acting for an assortment of campaign groups. The judge—sitting in his pyjamas, for all we know—issued an interim order that caused the Home Office to stop the policy before the first plane took off.

[Joanna Cherry]

What the hon. Gentleman has just described is the process of getting an interim injunction in England or an interim interdict in Scotland. Is he not aware that that happens just about every day of the week in our domestic legal systems?

[Danny Kruger]

The difference is that our domestic legal systems should not be subject to the findings of a foreign court. Moreover, the process should be transparent, it should be possible to appeal and the Government should have been able to be involved in the process. For action to take place in that way is profoundly undemocratic.

[Joanna Cherry]

rose—

[Danny Kruger]

Let me explain myself more clearly. There are two things profoundly wrong with what happened last June. The first is the explicit tolerance of illegality—the claim by activists, backed by Opposition politicians and by judges, that people who break into our country should be allowed to stay and settle here. The second is the idea that the laws of the British Parliament can effectively be struck down by courts claiming a greater sovereignty, in deference to a higher power than parliamentary statute: the power of international law.

[Yasmin Qureshi (Bolton South East) (Lab)]

The United Kingdom has signed up to many international treaties. Why do we sign up to treaties if we are not going to allow them to be implemented or follow them?

[Danny Kruger]

The hon. Lady is absolutely right that this is a treaty to which we have signed up. Under a treaty we have certain obligations, but those obligations do not include obeying such interim orders. There is no legal basis for us to obey them; that is a recent convention, and it is not in statute that we should obey such an order. Moreover, even if it were a substantive judgment, it does not give direct effect to what the British Government do. We need to change these things. That is why this Bill is necessary: it will mandate, not merely permit, the Government to remove illegal migrants, so that there can be no doubt in the mind of Ministers, officials or contractors what the law requires them to do.

--- Later in debate ---

[Danny Kruger]

The hon. Lady mentions Winston Churchill, who of course had no intention for the UK to sign up to the European convention. It is true that he sent some lawyers over there, but actually the original intention was for the UK not to sign up. There was no need for the UK to sign up to it. We did so, but at that time there were no rule 39 orders. There was no opportunity for judges, in the middle of the night, to issue these interim orders and stop UK policy. That was not the case then, and it should not be the case now.

Even substantive judgments, with which I accept we need to comply—Opposition Members are quite right about that—should not have the direct effect of halting removals. A substantive judgment against the UK would simply start a process of negotiation like the one we had after the Court ruled against us on prisoner voting. My amendment would put Strasbourg and the ECHR in their proper place: as a treaty partner, not a higher power or a superior lawmaker to the Parliament of the United Kingdom. Opposition Members seem to think that the ECHR has a power superior to the sovereignty of this House. I invite them to stand on that platform at the next election: by all means go ahead and suggest that this House is not sovereign.

I come not to bury the ECHR but to praise it. The convention is a noble document—as we know, it was written with the help of British Conservative lawyers—but really it just codifies the liberties enjoyed under English common law and statute. We should not have done so, but sadly we have put ourselves under

“the supervisory jurisdiction of the European Court”.

We should not be dictated to when it comes to the control of our borders. I challenge any hon. Member who thinks that the judges in Strasbourg have superior jurisdiction to that of this Parliament. My amendment would restore the proper balance of power.

The heart of the matter, and the reason passions run so high around the Bill, is what kind of country the UK is, or what we think it is. Opposition Members think that this country is a cruel, petty, small-minded small island that ignores its responsibility to the most vulnerable people in the world. That is what they think this country is, but our side of the House does not think so. We know that we have obligations to the world’s refugees and we are determined to fulfil them, but we think the first and foundational principle that defines the UK—the source and basis of all our generosity and our engagement with the problems of the world—is that we are a law-governed nation and that the laws that govern us are made here, in this building, by the representatives of the people. That is the principle that holds everything together. That is why Britain is respected abroad. That is the basis of our peace and prosperity, and our extraordinary history. It is why, directly or indirectly, so many people from other countries want to come and live here, whether they come legally or illegally—because we are a safe, prosperous, law-governed and sovereign nation. No human rights framework, no international convention, can dictate to us that we should tolerate illegality, let alone illegal entry to our country and all the privileges of residence here.

We need, with this Bill, to remember the people who sent us to this place and what they expect of us. They expect us to defend the interests and the values of the law-abiding citizens of this country, and to put the laws that we make here ahead of the interpretation of a foreign court. Statute is sovereign. Parliament is sovereign. The public expect us to have the courage to discharge our duty and take back control of our borders, as we promised we would when we left the EU. I believe the Bill will do that, with some strengthening. I know that the Government share my view, and I look forward to working with them ahead of Report to make the Bill watertight.

[Tim Farron (Westmorland and Lonsdale) (LD)]

It is a pleasure to follow the hon. Member for Devizes (Danny Kruger), with whom I agree about the source of human rights. Sometimes we need to have an arbiter, a human one, who will prevent us from being our worst selves, and I fear that the Government are being their worst self in this instance. I fear that the Bill, with its flagship title—no pun intended—will not stop the boats. I want to stop the boats, because every person who gets into a rickety boat on the French side of the channel and takes the risk of crossing it is a potential tragedy. We should all want those boat crossings to stop. However, I am convinced that the Bill will do nothing of the sort.

This Bill is dozy and it is dangerous. It is dozy because it will not work and will be counterproductive; it is dangerous for genuine refugees—we will not know who they are unless we seek to assess them in the first place—and it is dangerous for Britain’s reputation and therefore to our power overseas, soft or otherwise, thus undermining our sovereignty. It fails the moral test, not just because of the impact on those who seek sanctuary on our shores, but because it is based on a hysterical and bogus pretext. The context is important here, and so is the language. The fact that the Home Secretary and other refer to the UK’s being “swamped” by refugees is an outrage as much as it is totally and utterly inaccurate. In a league table of European countries, the United Kingdom ranks 20th among those taking refugees, per capita. It takes a third of the number taken by France, and a quarter of the number taken by Germany.

The bogus premise on which the Bill is based is set out clearly and obviously. Intelligent Conservative Members—and I am sure they are all intelligent—understand that, yet they continue to promulgate this nonsense. Nevertheless, language has consequences. Do Conservative Members not realise that when far-right protesters stood on the pavement screaming abuse at some terrified person fleeing persecution and simply awaiting an assessment, that was caused in no small part by the incendiary language used by politicians and people in the media? It is outrageous.