Illegal Migration Bill

David Simmonds Excerpts

2nd reading
Monday 13th March 2023 Commons Chamber

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

Away from the noise and heat, there are a number of elements of the Bill that are to be welcomed and that have had cross-party support in the past. They include the principle of a cap, which we already operate with our resettlement schemes; the principle of consultation with local authorities to determine the capacity that the country has to accommodate newly arrived refugees; and, in particular, the focus on early and swift decision-making. In my view, those are strong reasons to support the Bill this evening.

Clearly, the focus will be mainly on areas where there is a need for improvement, and I will simply highlight two such areas. First, there is a need to clarify the interaction between clauses 15 to 18 of the Bill and the Children Act 2004. There is a long history of the Home Office taking a view about the primacy of immigration legislation, simply for it to be overturned on judicial review by the courts, which take the view that duties contained in the Children Act come first. We need to ensure that this legislation is watertight, and that it will serve the interests of unaccompanied children in a way that is practical and operable.

Finally, the key weakness I see at the moment, which we need to address, is the lack of a permission stage for those wishing to claim asylum in the UK. If people wish to work, get married or study here, they have to apply for a visa before they travel to the UK, then we decide to whom we will issue visas and how many we are going to issue. In respect of asylum, there is no such process of control. My argument to the Front Bench and to the Government is that we should introduce an asylum visa. We would give ourselves genuine control over who arrives in the UK, how many people come, in what numbers and where they go, and avoid the risk of both a free-for-all and the legal challenges that are a significant peril for the Bill.

Illegal Migration Bill

David Simmonds Excerpts

Committee stage
Tuesday 28th March 2023 Commons Chamber

[The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)]

I thank the right hon. Gentleman for coming to a conclusion. I am going to try to call people who did not get called yesterday, as well as those who have tabled amendments, but that will require a certain amount of brevity.

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

It seems a long-standing conundrum of the immigration debate that most of our constituents express concern about the issue of immigration and its impact on our country, but at the same time tend to be very positive about their own personal experiences of people who have come to this country as migrants. I know that this is the case in the very diverse constituency in north-west London that I represent, but it is true in other parts of the country as well, where people’s experience is that those people who come as immigrants are those who drive the buses, work in the local shops and their children’s schools, and maintain the NHS. We are having this debate at a time when we must acknowledge that one of our biggest demographic challenges remains the fact that we have a declining working-age population, and data from the Office for National Statistics clearly shows that we, alongside much of the rest of the developed world, have a significant challenge in maintaining a workforce sufficient to support our population.

So far, this has been a very constructive debate. In particular, I highlight the comments of the hon. Member for Aberavon (Stephen Kinnock) about the need for a returns agreement. Professor Thom Brooks of Durham University recently did a very detailed study that highlighted that one of the biggest pull factors for those waiting to cross to the United Kingdom was the absence of a returns agreements with France or with the European Union. I also pay tribute to my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) for the work he has already done with Government in respect of safe and legal routes. As we heard from the evidence we took at the Joint Committee on Human Rights during the passage of the Nationality and Borders Act 2022, the existence of a safe and legal alternative for those who wish to claim asylum in the UK is one of the defences open to the Government in seeking to treat those who, for example, arrive here in a small boat with a less advantageous process.

However, I will focus my contribution on what I fear are some of the unintended consequences of a Bill whose objective we all support: to end the situation where people put their lives at risk as a consequence of seeking to come to the United Kingdom, facing death or serious injury in the English channel in order to lodge an asylum claim in our country. In particular, I will focus on the way in which the Bill interacts with some of the positive obligations on our public authorities that are created by other legislation: for example, the Children Act 1989 and all its allied legislation, such as the Children (Leaving Care) Act 2000, and—as my right hon. Friend the Member for Maidenhead (Mrs May) has outlined—the provisions contained in the Modern Slavery Act 2015.

My experience of this issue in local government is highlighted in particular by the Hillingdon judgment of 2003, which concerned the Children Act responsibilities of local authorities in respect of unaccompanied asylum-seeking children. That judgment clarified that the immigration status of a child is irrelevant to the local authority’s obligations to provide support to that child, both under the Children Act when they are under 18, and as they enter adulthood through the Children (Leaving Care) Act 2000 and other legislation that we have passed in this House. When we considered the status of children in care, we were clear that we wanted them to enjoy support until they were at least 25 to ensure that they started out their lives in the most positive way.

--- Later in debate ---

[Stella Creasy]

I recognise the hon. Gentleman’s long expertise on this issue, but does he recognise the challenge of what we have seen over the past year in the treatment of unaccompanied and accompanied children? It is impossible for local authorities to undertake that safeguarding role and the duties under the Children Act without the direct involvement of the Home Office, which is discharging its duties by commissioning providers, for example, that do not then have clear safeguarding responsibilities. The decision to do that lies with the Home Office, which wrote contracts that did not include safeguarding provision for these children. Unless we are clear that everybody involved in the care of these children from start to finish has a responsibility for their welfare, including the Secretary of State, as new clause 18 does, that gap will remain. In that gap, we have seen some horrific examples of what happens to these children not just with their access to education, but with sexual assault and other serious offences.

[David Simmonds]

The hon. Member very clearly highlights the fact that this is sometimes to a degree a grey area. I completely understand the position of the Home Office in that, sometimes in the early days of an emergency situation when there is nowhere else for a child to go to have a roof over their head, the accommodation and support provided do not meet the standards that apply. However, ensuring, as our laws require, that we very swiftly move to a situation where they do seems to be a reasonable expectation, and certainly one that would be upheld by the courts.

That point draws attention to the situation of children in transit through the United Kingdom who come to be unaccompanied children because the adults with whom they are travelling are s arrested or found to have no direct responsibility for the child with whom they are travelling. As I know the right hon. Member for Hayes and Harlington (John McDonnell) will be aware, over the years at Heathrow airport, significant numbers of unaccompanied children have come into the care of a local authority not because they are seeking asylum, but, for example, because they are being trafficked into the sex trade on the continent from another country by way of the United Kingdom. Again, we need to ensure that appropriate care and support are provided for those children and young people, and that they are not simply placed into a process that is focused on immigration control when they being trafficked for nefarious purposes. All these issues are clearly fixable, and I am confident that the Government, once sighted on them, will be able to bring about their resolution.

I would like to finish with a note about the issue of “notwithstanding” clauses, which was much debated yesterday. One of the challenges I find is that in the case of a number of pieces of legislation, such as the Children Act and the Modern Slavery Act, it would be possible for the Government to say that, notwithstanding those provisions, they expect this Home Office process to be followed. Clearly, those are all matters within legislation of the United Kingdom passed by this sovereign Parliament, but it seems to me that there is a risk if we seek to introduce “notwithstanding” clauses to matters that are the subject of international law.

Any of us who has been the recipient of legal advice at any time in our working lives will be aware that, if we were to be offered a contract about which it was that said, “The other party has decided that, notwithstanding what it says in the contract, they don’t have to follow it if they choose not to, after the event”, we would not regard that as in any way sound. Therefore, it seems to me that there is a significant risk that, if we seek to apply “notwithstanding” clauses, we will get ourselves once again into a legal and reputational tangle. That would be more broadly addressed by looking at whether those international conventions are still fit for purpose.

[Jonathan Gullis (Stoke-on-Trent North) (Con)]

My hon. Friend will understand that I am a signatory of amendment 131, which is obviously intended to make it very clear that our concern is about rule 39 interim measure orders. Yes, they are not legally binding and they were not part of any conventions signed back in the 1950s, but they are far too often taken into account by UK domestic courts when it comes to the deportation or removal of individuals. He can therefore understand why Members such as me have signed such an amendment to make it very clear to UK courts that these non-legally binding interim measures should not be taken into account.

[David Simmonds]

I entirely understand what my hon. Friend is seeking to achieve through the introduction of those “notwithstanding” clauses. We heard a great deal about this in the evidence to the Joint Committee on Human Rights on the Nationality and Borders Bill, on the issue of the margin of appreciation. This is the idea that the courts have perhaps gone further in interpreting the meaning of some conventions than was the case originally. That is often under pressure from parliamentarians, including British parliamentarians, who have argued in the Parliamentary Assembly of the Council of Europe, which supervises the operations of the European Court, that some of these laws needed to go further to take account of modern circumstances. The way to address that is not to say that we somehow seek to set aside the obligations that we freely signed up to, but rather to go and have that wider debate with our international partners and, if necessary, say that we wish to see an end to this process to make sure that what we feel we originally intended to achieve is what is achieved by the Bill.

[Danny Kruger (Devizes) (Con)]

Let me clarify the purpose of the “notwithstanding” provision. It is not to say that we will not comply with international obligations; it is to say that while those negotiations are going on—as my hon. Friend says, that is what happens when a judgement is made by the European Court of Human Rights against a Government—the policy shall proceed. It is to stop the idea that the Court’s judgment would have direct effect and effectively ground the flights, as happened after the interim order was made. Whether it is an interim order or a substantive judgment, it should not immediately have direct effect to stop the policy. Does my hon. Friend accept that that is an appropriate way to proceed?

[David Simmonds]

That is an extremely good point. For many of us who had some involvement with the ECHR in the past, one of the frustrations at that point was that we recognised that interim orders are not legally binding when they are issued. However, as I understand it, the basis of that interim order was that our own UK courts had not completed their consideration of whether the policy was lawful or not. Therefore, the European Court of Human Rights was saying, “While you have not yet decided whether this is lawful, it is not appropriate to proceed against somebody in a way that would leave them without a remedy.” There is a way of resolving this, but the route to that is through colleagues in the Parliamentary Assembly who have the ability to bring about a significant change.

I will conclude with something that I have called for before, and I will again suggest that the Government look at. It is that we extend the process we currently use in our resettlement schemes, where we have the United Nations High Commissioner for Refugees administering a process. We tell them how many people that we think we can accommodate as a country, and who we feel best able to support, in consultation with local authorities. Those people then travel to the UK knowing full well how they will be accommodated and supported from the point they leave to when they arrive. The process involves a number of people determined by this Parliament, with their circumstances vetted in advance before they arrive, and permission issued by the Government of the United Kingdom, in control of our borders. If we want to stop the boats and have a new asylum system that gives us control of our borders, we need an asylum visa system that operates in such a way, and that is robust, effective, and ensures that this Parliament, and our Government, are genuinely in control of our borders.

[Several hon. Members rose—]

--- Later in debate ---

[David Simmonds]

The Refugee, Asylum and Migration Policy Project, which funds a researcher in my office, has done a lot of work on this issue. Does my hon. Friend acknowledge that, where a young person is of statutory school age, it is an absolute legal obligation on a local authority to ensure that they have that education and, if it fails to do so, that child is eligible for compensation that is paid out in a dedicated school grant, thus affecting the budgets of all schools in that area? Does he agree that it is vital that in this Bill we clarify exactly what the position of child asylum seekers is so that we know whether they are within that legislation or whether they somehow fall outside it?

[Ben Bradley]

I fully take on my hon. Friend’s earlier point about who holds the responsibility for applying those duties and how they mix together. That is a complex issue and one that I cannot answer today, but he is right that we need to ensure that we safeguard children and offer them all the support we can, recognising that we have a duty to British citizens and British children to supply school places. It cannot be right, as I said to the hon. Member for Walthamstow, to suggest that all of a sudden schools, school places and opportunities will just appear, because they will not.

Illegal Migration Bill

David Simmonds Excerpts

Report stage
Wednesday 26th April 2023 Commons Chamber

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

There are many things one could say about this Bill, and certainly my extensive backstory of dealing with asylum and migration issues means that there are many elements to which I think it is appropriate to draw the House’s attention. However, it is important to start by saying, as many colleagues have said, that we all share the aims this Bill sets out to achieve. We cannot allow a situation to continue in which, in the English channel, significant numbers of people are putting their lives at risk, and in some cases tragically losing their lives. We need to find a better, more robust and effective way of managing our migration process.

I would like to focus my attention in the short time available on a couple of issues of principle and a couple of practical issues that I hope Ministers will give attention to and that I am sure will be the focus of debate in the other place. I certainly commend the work that has been done by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and my right hon. Friend the Member for Maidenhead (Mrs May), and I very much welcome the assurances that have been received in response to the work they have done.

I will start by mentioning age assessments, the impact of local authority duties under the Children Act 1989 and the need to ensure that, by the time this Bill completes its passage and gains Royal Assent, we have absolute clarity about what we expect of our local authorities and about how that process will interact with both this Bill and other legislation such as the Children (Leaving Care) Act 2000, which imposes specific responsibilities on local authorities in respect of all young people, regardless of their immigration status.

Those who have read what the interim Age Estimation Science Advisory Committee has said—its report has been published by the Home Office on its website—will be clear that the scientific methods proposed envisage at best a minimum age range that could be assigned to an individual. It envisages that the Merton-compliant local authority age assessment process will continue as necessary and required.

We need to ensure that we do not end up in a situation where a local authority or other public body is judicially reviewed for failing to carry out its duties under, for example, the Children Act or the Children (Leaving Care) Act, while seeking to be in compliance with its duties in respect of immigration under the Illegal Migration Act. I am pleased, having met the Minister on this issue, that he has said he will return to me on a number of those points, but it is important, if we are not to undermine public confidence in the effectiveness of this legislation, that we address that issue expeditiously.

The second issue of principle to which I would like to draw the House’s attention is the impact of the so-called rule 39 point—the interim relief provided by the European Court of Human Rights in Strasbourg. The Brighton declaration some years ago was a recognition by the European Court of Human Rights of the concerns of a number of member states about areas where the actions of the Court had departed from some of the things perhaps originally envisaged in the treaty or specifically enshrined in law. Therefore, there is clarity that the Strasbourg Court and its judges recognise that there is concern about the operation of some of these matters.

However, it does seem to me concerning that the Bill envisages that the only circumstances in which such an interim measure would be relevant is where the Home Secretary considers it to be so. The default position is that we will always ignore our international law commitments unless we choose to follow them, and that is something that, as a party that seeks to uphold the rule of law in all cases and all circumstances, we should be concerned about.

I draw the House’s attention to my entry in the Register of Members’ Financial Interests, in that on my next point, which is our links with other countries and in particular returns agreements, I have had the benefit of a lot of research support looking at the United Kingdom’s relationships with other countries. Clearly, if we are not to create a situation in which significant numbers of people find themselves, at very significant taxpayer cost, in detention in the UK for long periods of time, we need to go immensely beyond what is envisaged in the Rwanda agreement and establish returns agreements, particularly with EU neighbours and with other countries as well.

It is my understanding from the assurances I have received from Ministers and the Government that all of those points will be addressed during the passage of this Bill. In order to achieve that, which is a wish we all share, I will be supporting it tonight.

[Sir Chris Bryant]

I hate the crossings. I hate every single aspect of the crossings. For a start, it is a traffic that turns people, in particular extremely vulnerable people, into a commodity. I have heard stories that traffickers often deliberately buy dinghies that are more dangerous, because they are hopeful they will be picked up by other people. That is despicable. They are deliberately putting other people at risk. They are also a sign of a failure of international diplomacy in other parts of the world, most notably in Afghanistan, Iran and Syria. No doubt we will have people from Sudan in the not too distant future, too. They are chaotic and unregulated. There is no opportunity for justice or proper priority for those who are most in need, so I absolutely hate them.

Emotions run extremely high, most notably emotions on behalf of those who are being trafficked. They are in fear for their lives. They are terrified of being spat at, of being hated, of being in an environment they do not know and where they do not speak the language properly, and all the rest of it. Also, many people in this country watch with compassion that is mixed with anxiety and fear. That is why the language that we use is so, so important. I say very gently to the Minister that I really did not like it when, in a previous debate, he started using language about breaking into this country, and his using the word “cannibalise” today is very, very unfortunate. I know he is a decent man; I urge him to think about that language.

I do not, incidentally, buy the fundamental premise of the Bill either. If it really were trying to provide some kind of deterrent, it would have been thought through much more carefully. I do not believe that deterrent is really the matter of it. The push factors to the UK are far more significant than the pull factors in determining who ends up on a boat. Insofar as there is any evidence as to what the pull factors are, they are: that we speak English in the UK and lots of people are more likely to speak English than French, German, Italian or Spanish; that people already have family connections in the UK, so they think they might be able to base themselves here more easily; and that we have the rule of law. Those three things are not going to change.

I passionately dislike the Bill’s interaction with UK modern slavery legislation. The right hon. Member for Maidenhead (Mrs May) said it far more effectively than I can, but I just look at Government amendment 95. It is the worst piece of gobbledegook I have ever seen introduced:

“The Secretary of State must assume for the purposes…that it is not necessary for the person to be present in the UK…unless she considers that there are compelling circumstances…In determining whether there are compelling circumstances…the Secretary of State must have regard to guidance issued by the Secretary of State.”

She is going to be in endless discussion with herself! It is just preposterous and completely undermines the good efforts, made over many years, to try to ensure we really can crack down on the traffickers. The best person able to reveal a trafficking ring is a victim of that trafficking ring. Without willing co-operation from those people, we simply give more power to the traffickers.

I also dislike the interaction with our international commitments. The former Attorney General, the right hon. and learned Member for Torridge and West Devon (Sir Geoffrey Cox), made the point earlier that, in essence, the Bill is asking us to say deliberately that a Minister can breach our international commitments. As somebody who has probably been the longest standing critic of President Putin in this House and has been saying this for a very long time, I do not want us to be in a very small group of countries with Russia and Belarus who have left the European Court of Human Rights. That, in the end, would do a terrible disfavour to British prosperity in the world.