Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

There is no statutory requirement to have a public impact assessment in relation to items of public legislation. Indeed, as I understand it, many pieces of legislation do not have one at all; so it is not a statutory requirement, as perhaps the noble Baroness seemed to suggest. Clearly, there is work done in the department behind the development of policy, and an economic impact assessment is certainly not an essential part of that process; nor is it a fundamental part. It is a part and, as I say, it will be published in due course.

[Lord Alton of Liverpool (CB)]

My Lords, surely this is not just about statutory requirements. Will the noble Lord contrast this with the way in which the right honourable Theresa May presented to Parliament the modern slavery legislation? That was dealt with by pre-legislative scrutiny, by consensus being developed across the political parties in another place, and by getting bicameral as well as bipartisan agreement around a similarly controversial question, much of which informs this particular Bill. Will the noble Lord accept, therefore, that the expressions that have been voiced around the Chamber are as much about the integrity of Parliament and the way we do things as they are about the substance of the Bill?

[Lord Murray of Blidworth (Con)]

Well, I always listen intently to the noble Lord’s measured contributions. Of course, the key distinction between this Bill and the Modern Slavery Act 2015 is that this Bill is to address an emergency presently affecting our country and to stop people drowning in the channel. That is why this measure has to be taken through Parliament at pace—in order to put in place a deterrent effect that stops those journeys being made.

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Amendment 27 would go very much with the grain of other amendments in the group, and with the grain of how, in this country, we are beginning to understand the position of British children who have been in care, when they reach 18. Eighteen is not a cliff edge. The knowledge of young people’s development is increasing, and we know scientifically, and not just as a matter of common sense and our own everyday experience, that one does not go from being a child to adulthood and full maturity overnight. British care leavers may struggle to cope alone, and it is recognised that support is needed. But for a child turning 18, when their experience encompasses whatever has led to them fleeing from home and, no doubt, a horrendous journey and then a sort of half-life here, to be sent to a country where—as I think the noble and learned Baroness said—there are no connections, of which they have no knowledge, and where people are likely to be of a very different culture, with risks to them, is almost unimaginable. We should be helping them recover from the trauma. Instead, the Bill makes it harder for a child to recover from the trauma of both his experiences in the country of origin and the flight—it adds to and exacerbates it.

[Lord Alton of Liverpool (CB)]

My Lords, I support the amendments proposed by my noble friend Lady Meacher, my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dubs. I begin by referring to a meeting that my noble friend Lord Singh and I held with Dame Rachel de Souza, the Children’s Commissioner, quite recently. She had personally seen children coming off the boats. The Refugee Council found that, of the 45,000 people who made the journey in 2022, some 8,700 were children—one in five of the overall number. In response to the questions put by the noble Baroness, Lady Lister, perhaps the Minister could confirm the numbers.

Dame Rachel has also visited the accommodation in which many of these children are placed. I would like to ask the Minister a number of questions. When the Children’s Commissioner was consulted, was she consulted about this Bill? How did she respond? How does he respond to her view that the Bill drives a “coach and horses” through the Children Act 1989?

The position of children should certainly concentrate our minds. My noble and learned friend perhaps knows better than anyone in this House, as a former head of the Family Law Division, how important it is that we have proper cognisance of the effects of law on children. I asked Dame Rachel about the origins and stories of some of the children whom she had met, to which my noble and learned friend referred as well. Some had travelled from Sudan, Eritrea, Afghanistan and Iran; some had taken journeys that lasted a whole year; some had been left as orphans; and some had been traumatised by war. Many told horrific stories. For instance, she described the story of an Iranian boy who watched his parents being killed and who made the long and arduous journey here to safety. She also referred to a Down’s syndrome child left on their own. She said that decisions about their treatment and future were being taken by inappropriately low-ranking officials who had “no understanding of safeguarding”. Will the Minister urgently look into this question about whether safeguarding criteria are different from the safeguarding used in children’s homes? Are the provisions in the Bill compliant with the duties contained in the education Acts, and are they Gillick compliant? Does the Minister recognise the Children’s Commissioner’s description of the Bill as a “traffickers’ charter”?

No child should be assumed to be an adult—a point made very well a moment ago by the noble Baroness, Lady Hamwee. There is no cliff edge. There seems to be an assumption woven into the web and weave of this Bill that there is a magic moment when you cease to be a child and become an adult. The position of children should certainly be put into the impact assessment, which we all wait to see with great anticipation. But it is not simply an impact assessment that has been missing from the legislative scrutiny to which I referred earlier. Only one Select Committee—the Joint Committee on Human Rights, of which I am a member—has had the chance to scrutinise this Bill, and it has had to do so at a crazy pace, with many of our meetings clashing with the Bill’s proceedings. All being well, it will reach its final iteration tomorrow—not, I am glad to say, “in due course”. This is simply no way to make legislation. When we legislate in haste, we end up repenting at leisure.

At Second Reading, I referred to my misgivings about a number of aspects of the Bill, and among these was the treatment of children: the subject of these amendments. They are affected by every aspect of the Bill, which clearly infringes the rights of children set out in the United Nations Convention on the Rights of the Child, referred to by my noble friend Lord Hannay.

The Home Office says, as its justification for doing this, that it is protecting the best interests of children by seeking to deter them and the adults accompanying them from embarking on these journeys in the first place. This is a straw man argument. It relies on the assumption that the child or adult knew in advance how dangerous the journey would be and assumes that, in any event, the journey would be less dangerous than, say, staying in Sudan, where millions are now displaced; or think of the plight of women in Iran; or think of those in Nigeria who are facing execution because of their beliefs or orientation, or facing genocidal attacks from Boko Haram. The UN Convention on the Rights of the Child does not revolve around such calculations.

The desire for deterrence cannot negate or supplant the duty of the UK and this Government to protect all children—every child, whatever their origins—within our jurisdiction. How a country treats its children is a mark of whether that country deserves to describe itself as civilised. How do convention duties square with indefinite detention in whatever place the Secretary of State and her officials deem appropriate and for however long she decides is reasonably necessary before she maybe decides that they should be cast out? How can our convention rights be squared with dispatching children to far-flung places without any true idea of what circumstances will await them there? Who will verify that appropriateness? What will be the criteria? How will such assessments be undertaken?

Too many of the Bill’s provisions relating to children are vague and insufficiently rigorous. The Bill puts on to a statutory footing the provision of accommodation for unaccompanied children, but then fails to define what form such accommodation must consist of. It is as if we have learned nothing from the endless ordeals of children in institutional care. I repeat: why is Home Office accommodation not being made subject to the duties set out in the Children Act 1989? Why are standards or requirements not set out in the Bill itself? I ask this against a backdrop of the Home Office accommodating unaccompanied asylum-seeking children in hostels since 2021. Can the Minister remind us how many of those children have gone missing? How many remain missing? How can the Minister justify the provisions to take a child from local authority accommodation, which is subject to the 1989 Act, and put them into Home Office accommodation, which is not? There are also convention implications from age assessment, not least invasive body searches of children who may have undergone trauma or have been subjected to abuse. Is that Gillick compliant?

We should be clear that these and other provisions mean that the Bill is likely to fall short of compliance with the UN Convention on the Rights of the Child. It is also likely to fall short under Article 8 of the European Convention on Human Rights, and potentially Article 3, which deals with prohibition of torture, inhumane and degrading treatment. Has the Minister also considered Article 22 of the convention and any use of powers to remove a child without first considering their asylum claim? These are crucial questions; if they cannot be resolved here in Committee, they will certainly have to be resolved when we reach Report. I hope the Minister will be able to give the Committee the courtesy of a reply to some of these questions today.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with some hesitation after so many speeches—such powerful speeches—from every corner of your Lordships’ House. Having attached my name, however, to two amendments here—Amendment 17, in the name of the noble and learned Baroness, Lady Butler-Sloss, and Amendment 27, in the name of the noble Baroness, Lady Hamwee—I will make two points.

First, I very much agree with the noble Baroness, Lady Meacher, that no children who arrive as refugees should be covered by this Bill—indeed, no one should be covered by this Bill—but there is a special case to be made for unaccompanied children who have no adult with them to support them. I invite Members of your Lordships’ House to consider what it would be like if, tomorrow, you were dropped into a foreign country where you do not speak the language—or speak it very imperfectly—you have no resources and you know nobody. While you have decades of life experience, think how difficult it would be to cope. Then imagine what it would be like for an 18 year-old who has known only a life of war, torture and suffering; who thought they had found safety but then were thrown out again.

Secondly, I want to pick up a point that the Minister made in the previous group. He suggested that this Bill was the result of an emergency situation that had suddenly arisen overnight and that this was the excuse for why we did not have an impact assessment. Of course, what we have is a situation that has been developing over a decade or more. We saw people seeking to come across the channel, including—since we are focusing on the many unaccompanied children—people getting underneath the axels into sealed lorries or under trains and, all too often, dying as a result.

I am going to go back to 2016—seven years ago—when I went to a memorial service for one of those people, a 15 year-old called Masud. He was an Afghan who died in the back of a lorry trying to get to the UK to be with his sister. This picks up the point made by the noble Lord, Lord Kerr, about the lack of means for such children to get here legally. Masud should have been able to get here, but he could not. He took his chances and he died. Had he made it, think about where he would be now. Masud, as a 15 year-old, would have had three years—or maybe more—in our education system. He would have been part of our society and contributing. Imagine, however, a Masud who arrives here after this Bill comes into operation—this picks up a point made by the noble Baroness, Lady Hamwee, among others. What is Masud going to do just before his 18th birthday? What would any of us do? He is going to have to go into the black economy or the grey economy, which we know our hostile economy has thrust so many people into already: into the illegal car washes or into the illegal marijuana farms, where recently we saw four Vietnamese men, almost certainly victims of modern slavery, die in horrific conditions. Thrust into the gig economy—there has recently been coverage about this—you can rent an identity to be a delivery driver for a night, all under the carpet and all open to abuse and exploitation. Is that what we really want to do to children? Is that what we really want to do to our society: to make a society in which that segment of it grows and grows? As others have said, there is no way that the Government are going to be able to make the removals that they say they are seeking to do.

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[Lord Murray of Blidworth (Con)]

Forgive me. I must make progress. Doubtless, the noble Lord will have an opportunity at the end of my remarks.

Taking these measures will send a clear message that children cannot be exploited and cross the channel in small boats for the purpose of starting a new life in the UK. The clause provides the circumstances in which it may be appropriate to remove an unaccompanied child. However, the Government consider it necessary to be alert to the people smugglers changing their tactics to circumvent the Bill. As such, it is appropriate to have a power to extend the circumstances in which it would be possible to remove an unaccompanied child via regulations. This is very much a reserve power. We have to be mindful of changes in the modus operandi of the people smugglers. I cannot give the noble Baroness, Lady Lister, examples now of how the power might be exercised but I can assure her that such regulations will be subject to the affirmative procedure and therefore will need to be debated and approved by each House.

Clause 3 also sets out the power to make provisions for other exceptions to the duty to remove via regulations. This provision is important for providing the flexibility to make additional exceptions to the duty should we not want the measures in the Bill to apply to certain categories of persons. I will give one possible example of this: a person who is subject to the duty to make arrangements for removal may also be the subject for extradition proceedings and it would be appropriate for an extradition request, if approved, to take precedence over the duty to remove in Clause 2.

Amendments 14, 15 and 17 in the names of the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, seek either to exclude unaccompanied children altogether from the duty to remove or only permit the removal if it was in their best interests, even when they reach 18. Amendment 22 in the name of the noble Lord, Lord Dubs, covers similar ground. It seeks to provide for asylum and human rights claims from unaccompanied children to continue to be admissible within the UK.

All these amendments would undermine the intent of the Bill. As I have indicated, if we fill it with exceptions and carve-outs it will not achieve its aims and will serve to put more children at risk as the people smugglers would seek to fill the boats with even more young people, putting further lives at risk and splitting up families. I can confirm that since January 2018 around one-sixth of arrivals on small boats have been children aged 17 and under. We do not want an increase in this proportion or in the absolute numbers. Our asylum system is under increasing pressure from illegal migration, and the Government must take action to undercut the routes that smuggling gangs exploit by facilitating children’s dangerous and illegal entry into the United Kingdom, including via dangerous routes such as small boats.

Stopping the boats is in the best interests of small children who might otherwise make these dangerous and unnecessary journeys. In response to the noble Lord, Lord Kerr, and the noble Baroness, Lady Bennett, who raised the issue of a lack of safe and legal routes, I remind the Committee that the safest course for children and adults alike is to seek sanctuary in the first safe country they reach. These amendments would undermine the central premise of the Bill that if one comes to the UK via an illegal route, one will be removed and not permitted to remain in the UK and build a life here. The amendments will increase the incentive for adults to claim to be a child and encourage people smugglers to pivot and focus on bringing over more unaccompanied children via dangerous journeys. The effect would be to put more young lives at risk and split up more families. It is, I say again, in the best interests of children to enact these provisions and stop the boats. It is these amendments that will encourage the people smugglers, not the provisions in the Bill.

The noble Lords, Lord German, Lord Purvis and Lord Coaker, pressed me to set out the evidence underlying the purpose of the Bill. It is the Government’s view that if a person arriving illegally in the UK is faced with the prospect of being detained on arrival and swiftly returned to their home country, or removed to a safe third country, they will not pay the people smugglers thousands of pounds to provide them with passage across the channel.

We recognise the particular vulnerabilities in relation to unaccompanied children. That is why the Bill provides that the duty to make arrangements for removal does not apply until they reach adulthood. However, as I have explained, the Bill confers a power to remove unaccompanied children. This is not new but reflects current policy. This will be exercised, as I have said, in very limited circumstances, taking into consideration the best interests of the child. Following amendments brought by the Government at Report in the Commons, this clause now expressly sets out the circumstances in which the power to remove unaccompanied children may be exercised.

Turning to Amendment 16A, I first comment that the noble and learned Baroness set out what is likely to be an exceptional scenario. That said, she has a point in that an unaccompanied child who is subsequently adopted in the UK by a British citizen has an automatic route to British citizenship. They would therefore not be subject to the citizenship bans in Clauses 30 to 36. In this scenario, we agree that it would not be appropriate for the duty to remove to be applied to that child. We can address this by using the regulation-making power in Clause 3(7) to provide for exceptions to the duty to remove. An amendment to the Bill is, therefore, not required. In addition to adopted unaccompanied children, such regulations would also cover any other cohorts to whom the duty would apply but who exceptionally obtain British citizenship following their arrival in the UK. I hope that the noble and learned Baroness and my noble friend Lord Cormack will be reassured by this.

Amendment 18 from the noble Baroness, Lady Hamwee, is on one level unnecessary in that the regulation-making power in Clause 3(7) could be used to deliver the desired outcome. However, I come back to the aim of the Bill: namely, promptly to remove from the UK those who meet the conditions in Clause 2. We have brought forward a robust legal scheme that will enable us to do just that and I urge your Lordships not to add caveats, exceptions and exemptions to the Bill such as to make the scheme unworkable.

In answer to the noble Lord, Lord Alton, I should add that I very much value the continued dialogue we are having with the Children’s Commissioner for England. She recently met the Immigration Minister and me, and I am due to meet her again soon to discuss the Bill.

[Lord Alton of Liverpool (CB)]

My Lords, that point was specifically about the alignment of the Children Act with this legislation. Clauses 17 and 20, which deal with standards of accommodation, were raised by several noble Lords. Is the Minister intending to say something about that before he moves on?

[Lord Murray of Blidworth (Con)]

Clearly there are other provisions in relation to the standards of detention in the detained estate in relation to children. In the event that they are not detained, the usual prevailing regulations will apply and I am happy to write to the noble Lord with more detail in relation to that.

The noble Lord, Lord German, referred to the recommendation of the Delegated Powers Committee in relation to the regulation-making power in Clause 3(7). We are studying that committee’s report carefully and aim to respond before Report.

The noble Lord, Lord Coaker, asked about the use of force. We will address that point when we reach Amendment 70 on Wednesday.

In conclusion, Clause 3 adopts an appropriate balance in respect of unaccompanied children and, in those circumstances, I invite the noble Baroness, Lady Meacher, to withdraw her amendment.

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[Lord Bach (Lab)]

My Lords, we have heard some very good speeches on this group already. I want to revert to the speech of my noble friend Lord Hunt of Kings Heath and the points he made about trafficking and slavery. I have to say that the last speech and the speech of the noble Lord, Lord Anderson, impressed me immensely. I was on the same review of the Bar Council earlier this morning and I can confirm, for what it is worth, exactly what the noble Lord, Lord Anderson, said about the dangers of ouster in the Bill. I am not going to speak about that.

I should say that I have not spoken on the Bill before: I was down to speak at Second Reading but I decided that 84 or 85 speakers was probably just about enough. My view, I am afraid to tell the Minister, like those of so many who are taking part in this Committee, is that it is an absolutely disgraceful Bill and I cannot believe that any British Government of any complexion are bringing it forward.

I put my name down in support of my noble friend Lord Hunt’s amendment. I have little to add to his speech except that it appears to me that it is an area where the Government can and should give ground pretty easily. It is surely beyond ridiculous that important legislation brought in with practically universal support as recently as 2015 should be undermined so fundamentally by a Government of the same party; so much so that, as has been mentioned, the Prime Minister at the time, responsible in many ways for the bringing in of the Act, has expressed her opinion in another place that the Bill’s provisions

“will drive a coach and horses through the Modern Slavery Act”.—[Official Report, Commons, 28/3/23; col. 886.]

I was a police and crime commissioner at the time the Act was effectively coming into force—I started a year after 2015—and police support for the assistance that the Act gave in this very difficult area of law, particularly difficult in prosecuting and convicting very clever and very bad criminals, was absolutely evident. The police, certainly where I was and I suspect more widely, were pleased with the Act. They knew it meant harder work, but the chance of actually locking up dangerous men—and women, no doubt—was added to appreciably. Enthusiastic and positive meetings and arrangements were held and, while it is never going to be easy to catch the wicked criminals behind trafficking, little did any of us involved in those discussions think that, only a few years later, the difficult task facing the police and others in arresting, prosecuting and convicting these villains would be made more difficult—I would say much more difficult—by proposed government legislation.

Make no mistake—this is my final point—that the Government will not easily be forgiven, it seems to me, by a very large portion of society if the improvements so recently given are effectively removed, with the result that fewer victims are helped and fewer criminals are punished.

[Lord Alton of Liverpool (CB)]

My Lords, the noble Lord, Lord Bach, referred to the effects on the modern slavery legislation. In a sense, just as the noble Lord, Lord Carlile, talked about this being an ouster of judicial review, so, in some respects, it is an ouster of the Modern Slavery Act 2018 as well. Why is this necessary? The Home Secretary says that the system is being abused, to justify removal of the protections for victims of trafficking and modern slavery. In response to that, both Sir Iain Duncan Smith MP, former leader of the Conservative Party, and Theresa May, former Prime Minister, have said in terms that there is no evidence to justify that claim. That is why it is right that the noble Lord, Lord Hunt of Kings Heath, has moved this amendment. He made a terrific speech and I fully endorse and support everything he said.

The amendment seeks to amend the Bill so that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the national referral mechanism and have it considered. I ask the Minister for one potential exception: if he cannot accept the amendment that has been moved by the noble Lord then, reverting to the previous group of amendments, what about the situation of children in those circumstances? Are they going to be included in a catch-all, or will the Minister accept that there should at least be an exemption for them?

My noble friend Lord Anderson talked about the anticipated report of the Joint Committee on Human Rights. I do not think he will have long to wait for that, but what are already available are the statements given to that committee in public evidence sessions. I was very struck by one, and there is an echo here of something that my noble friend Lord Carlile referred to earlier, which is the personal effects on individuals. We heard in camera from a young woman who had been trafficked into this country and used by a family from the Middle East literally as a modern-day slave. She escaped and managed, dressed just in nightclothes, to find her way to central London where, in Piccadilly Circus, she was helped by a volunteer who introduced her to other members of the Filipino community. I am happy to say that she has been able to make a life for herself as a result of a referral to the national referral mechanism. Take that away from people and what opportunity will they have to make good lives for themselves or to have any kind of safety? At least let us have a disapplication for children and give them the opportunity to be referred through the national referral mechanism.

Finally, since I said I would try to be brief and concise, I would be interested to hear whether the Minister has had a careful look at the Council of Europe Convention on Action against Trafficking and the obligations we are signed up to. Does he recognise the view that has been expressed by many who know far more about this than I do that we will be in breach of ECAT if this goes through in its present form, and also that we are likely to be in breach of Article 4 of the ECHR in its prohibition on slavery? Are those questions that the Minister and his officials are looking at seriously? Have they attached sufficient weight to them? What is his view about the exemption of children?

[Lord Morrow (DUP)]

My Lords, I shall speak briefly to Amendment 19A in the name of the noble Lord, Lord Hunt, and congratulate him on a very informative and excellent speech. I said at Second Reading that the Bill

“should exclude those who are already subjected to abuse through the heinous crime of modern slavery”

and quoted the former Prime Minister, who had said in the other place:

“It has always been important to separate modern slavery from immigration status”.—[Official Report, Commons, 26/4/23; col. 809.]


I said that the Bill was

“using a sledgehammer to crack a nut”—[Official Report, 10/5/23; col. 1902.]

and that remains my position today.

We know that genuine victims will be penalised through the Bill. There are many amendments tabled, either to mitigate the harm, or to seek much more analysis before Clauses 21 to 28 can come into effect. Those will be debated in a later group, and I hope to speak then too. However, Amendment 19A gets straight to the heart of the matter. Clause 4(1)(c) says that the duties to remove people who have arrived by irregular means should apply regardless of whether a person claims to be a victim of modern slavery. Amendment 19A would remove that presumption.

We should be debating whether modern slavery victims should be within the scope of the Bill because that question speaks to our values and our international obligations. Our long-held values have said that these individuals need safeguarding, not penalising. The UK has been seen as a leading light in how it has responded to human trafficking. This Bill would take us significantly down the league table. Overnight, our world-leading reputation has been tarnished because we have decided that to stop the few, our obligations to the majority should cease.

I am sure the Minister will tell us that the Government recognise that these are exceptional circumstances and for that reason have included a sunset clause. Lest we should be reassured by that, let us consider, first, that the sunset clause can be extended. Secondly, in the meantime, thousands of victims will not get support, and will be detained and removed. One of the Council of Europe’s committees said that the Bill endangered victims. We are endorsing that as acceptable. Thirdly, our Article 4 obligations under the European Convention on Human Rights include

“a legislative and administrative framework to prevent and punish trafficking and to protect victims”.

Article 15 makes it clear there is no derogation from this requirement in a time of emergency. But that is what the Government are arguing—that “exceptional circumstances” allow us to wipe away the protections that are in place across the UK for these exploited individuals.

It is no wonder that there are serious doubts about the UK meeting its international obligations. I urge the Government to heed the warnings and rethink, and I commend the amendment of noble Lord, Lord Hunt, to the Committee.

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[Lord Murray of Blidworth (Con)]

The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.

Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.

The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.

[Lord Alton of Liverpool (CB)]

My Lords, can the Minister answer the question that I put to him about the disapplication of a national referral mechanism in the case of children, a point which has been raised by the Children’s Commissioner? If he does not have the answer now, can he write to me?

[Lord Murray of Blidworth (Con)]

Forgive me; I intended to address the noble Lord’s point in relation to that. Obviously, the provisions in Clause 4 make specific reference to the power to remove children, which is contained in Clause 3. That in itself is a safeguard to protect the welfare of children. It operates in a way that promotes the interests of children, I suggest, but I am happy to look further at that point and will take it away.

Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

Taken overall, these amendments are an attempt—which I hope is pushing against an open door—to ensure that we are satisfied that the Bill protects people who would be persecuted because they form part of a particular group from that persecution which would take place. If anybody asks me for an illustration— well, I will give it anyway—anyone who was listening to the BBC “Today” programme this morning would have heard descriptions of what has been happening in Uganda. Indeed, a recording was played of a speech rather like the one I am making, except that it was of the most unbelievable bigotry in relation to LGBTQ+ people. It really demonstrates the danger that people can face if these changes are not made or clarifications given.

[Lord Alton of Liverpool (CB)]

My Lords, I rise mainly to introduce Amendment 52F, in my name, but before doing that I would like to endorse everything that my noble friend Lord Carlile has just said. We should recognise that there are countries that people should not be sent to, where convention rights would not then apply to the subsequent refoulement. I also agree with the opening remarks made by the noble Baroness, Lady Hamwee, in moving her amendment. Again, I endorse those and associate myself with those remarks.

The noble Baroness, Lady Hamwee, was one of those who attended a meeting that I organised here before Second Reading of the Bill, which the Salvation Army and a number of other stakeholders attended; the noble Lord, Lord Coaker, was also present. The point about the Salvation Army is particularly relevant because, of course, it is one of the stakeholders that works for the Home Office in dealing with many of the people whom we are discussing in the context of this Bill. Arising out of that discussion, I thought it would be good to table amendments along these lines. In fact, there are others elsewhere in group 19 and I will come back to that in a moment.

In this group—group 4—Amendment 52F would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with international obligations and that detailed assessments are made in respect of protection and support. I remain concerned that the Bill denies access to protections, safety and support for those seeking refuge and victims of modern slavery. I touched on that in previous groups that we debated earlier this afternoon.

In doing so, far from breaking the business model of people smuggling—as the Government repeatedly state—and deterring illegal entry into the UK, I think the Bill merely enhances the ability of people smugglers and people traffickers to operate with impunity. Currently, there has been very little assessment of the implications of the Bill for those seeking refuge and victims of modern slavery, including compliance with international legal instruments, as well as the financial implications if implemented and the effect on the wider modern slavery strategy.

I know the House is waiting with anticipation for the findings of the Joint Committee on Human Rights, which will meet again tomorrow to, I hope, come to a final conclusion about the report it has had to rush—pell-mell, one might say—because of the pace at which the Bill has been taken through both Houses of Parliament. Nevertheless, that report—I hope it will be unanimous but, if not, it will be a majority report—will be available to your Lordships for further consideration in Committee and on Report.

The Bill could have devastating effects on the rights of survivors of modern slavery. Furthermore, it is clear that my concern is shared right across party divides. We have seen that in the context of the debates in another place and the speeches made by people such as Sir Iain Duncan Smith and Theresa May that have been quoted in our earlier debates, but also from the survivors of modern slavery themselves. Indeed, the Joint Committee on Human Rights has had evidence from people who have been victims. I personally found it very moving to hear some of their own accounts. We have also heard from former law enforcement officials, lawyers and people who have dealt with these issues over very many years.

Rather than repeating what has already been said, I will speak specifically to Amendment 52F, which would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with our international obligations and that detailed assessments are made in respect of protection and support. As I have said, the amendment sits alongside Amendments 85C and 92B, which are also tabled in my name but do not come until much later, in group 19. They would put on the face of the Bill an obligation for the Government to carry out due diligence to ensure the safety of those who are removed from the UK to other territories and countries. Indeed, we will come on to that question in a later group of amendments.

These amendments have been drafted with survivors of modern slavery and human trafficking in mind, as they too will be subject to removal from the UK if they have been deemed to enter the country irregularly. We know from experience the time it can take for a survivor to feel safe and begin their journey of recovery. We all know how heightened vulnerabilities need to be protected against trauma and the kinds of experiences people have had to endure, which have been referred to in some of our earlier debates. I cited one example earlier, reported to me by the Children’s Commissioner—I am still shocked by the story of a young boy from Iran who watched his parents being executed. It took him a year to get to the safety of this country, and the idea that he could be returned to who knows where, who knows when, is unconscionable as far as I and probably most Members of the Committee are concerned. That is why we have to think very carefully about the protections we place in the legislation. We also know that removal of survivors to another country against their will—or the fear that they might be repatriated—can exacerbate their vulnerabilities, delay or prevent that recovery process and unfortunately lead to the individual being re-exploited or re-trafficked, doing nothing to break the wicked cycle of exploitation.

If the Government insist on pushing forward with these plans of removing trafficking and modern slavery survivors from the UK, they must do so with the utmost diligence and transparency. That is why Amendment 52F would require the Government to undertake comprehensive assessments, including detailed consultation with relevant safeguarding and support organisations in the country or territory to which the survivor may be removed. It would also require the Government to assess the human rights situation of the relevant country, the protection and support available to potential and identified victims, the risks of further harm by exploitation and trafficking, and the risk of direct and indirect refoulement in that country.

The amendment would also require the Government to confirm whether the duty in Clause 2 and the powers in Clause 3 would not contravene both national and international legal instruments, including but not limited to: the Equality Act, the European convention against trafficking—which I referred to in an earlier group of amendments—the refugee convention, and the UN Convention on the Rights of the Child, which we discussed at length in an earlier group.

Many of us in this House and in the other place will continue to work to ensure and enshrine the rights of survivors of modern slavery. Amendment 52F, alongside Amendments 85C and 92B when we get to them, are there to ensure some level of transparency and due diligence, which have so far been lacking within this process. The removal of survivors from protection in this country risks fuelling the cycle of exploitation that consumes lives and spits out profits for ruthless criminals. For this reason these amendments have been tabled, to ensure that the bare minimum is done to ensure the safety of those who are at risk of further harm of traffickers.

In summary, I will make four points. First, the amendment is primarily about ensuring that if there is intention to remove people to specific countries, there is a detailed understanding of both the risks and legislation, policy and practical resources in-country to meet the needs of those seeking refuge and victims of modern slavery.

Secondly, the amendment would require an assessment of the levels of protection and support, including risks of trafficking and retrafficking and wider direct and indirect non-refoulement.

Thirdly, detailed consultation with national and international stakeholders will mean greater transparency for the implementation of this legislation and make sure that it is put into place with appropriate structures around due diligence and accountability given the significant implications for those seeking refuge and victims of modern slavery.

Lastly, it would necessitate the Government making clear how the duty in Clause 2 and the powers in Clause 3 do not contravene national or international legal instruments in the implementation of the Bill should it become law, which includes those various international conventions which I referred to earlier. The failure to be able to declare the compatibility of the Bill with the European Convention on Human Rights speaks to the remarks made earlier on today by my noble friend Lord Hannay about the reputational loss there will be to this country if we are seen to be derelict in our upholding of conventions and treaties which have served us so well in the past.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Alton, and I agree with every single word he said in respect of protections and securities for the most vulnerable.

I have added my name to the amendments in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Bennett. I will not repeat the excellent intervention by the noble Lord, Lord Carlile, but I refer the Committee to the contribution by the Minister—the noble Lord, Lord Murray—on day one of Committee, when he categorically rejected my explicit reference to LGBTQ as a protection because he said, quite rightly, that it is covered within the definition of a social group. Therefore I am sure—or rather I hope—that the Government will have absolutely no problem with our intention within the amendments, removing countries or adding corrections for definitions.

I want to look in particular at Amendment 50 in relation to Rwanda. We do not believe it is appropriate to include Rwanda when there are legal proceedings currently in the Court of Appeal as to the legality of the removal arrangements, otherwise the Government may contend that, whatever the courts in the UK or the European Court of Human Rights may say, Parliament has by this Act approved the removal arrangements in respect of Rwanda, and that trumps any court decision under our constitution.

I also want to refer to Amendment 43A in relation to Hungary and Amendment 49A in relation to Poland—both members of the European Union, as your Lordships know. We believe it is not appropriate to include these countries, because both Hungary and Poland are subject to proceedings under Article 7 of the Treaty on European Union. Such proceedings apply where the appropriate majority of the European Parliament or the Commission and the council

“may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”

of the Treaty on European Union, which provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. I do not have to remind your Lordships that there are, and have been for many years, deep concerns within both Hungary and Poland about the discrimination faced by LGBTQ people and the ongoing threats to their safety.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I sought to explain earlier that Schedule 1 is an amalgam of all the existing schedules that exist. Ghana was already on a list of countries to which people could be sent, and the present practice is not to send people back to places where they are at serious risk. That practice will continue under this Act when you make a suspensive harm application. It is a historical situation, but it has to be dealt with on a case-by-case basis. As I said to the noble Baroness a moment ago, the Government will reflect on what has been said in this debate.

That brings me to deal specifically with the question of Rwanda and the fact that there are currently proceedings pending in relation to Rwanda, as the noble Lord, Lord Cashman, pointed out. So far, the High Court has upheld the position on Rwanda: we will see what the Court of Appeal judgment says. If the case goes further, it will be a matter for judicial decision and we will see how that works out, but we will not take Rwanda out at this stage, while the matter is still pending. I think that is also the answer, if I may say so, in relation to Amendments 43A and 49A on Hungary and Poland. These are ongoing proceedings: let us see what the outcome is and then it can be properly determined whether Poland and Hungary are countries that should remain on the list. That is not clear yet and it depends on the outcome of those pending proceedings.

I think that I am nearly through, except for the very important points raised by the noble Lord, Lord Alton, and others, as to whether we should beef up Clause 6(4)(b), which at the moment places certain requirements on the Secretary of State, in deciding on possible new countries and territories. The thrust of the amendment suggested by the noble Lord and supported by others is that effectively there should be a more detailed list of conventions and other international instruments to which the Government should have regard, with a specific obligation of consultation. The noble Baroness, Lady Chakrabarti, and others wanted in particular to enshrine the obligation to follow the decisions of domestic courts and the Human Rights Act.

The Government’s position on this—and of course, as with other things, we will reflect on it—is that these are effectively de facto covered in the existing Clause 6(4)(a) and (b). They provide that the Secretary of State must—it is a positive duty—

“have regard to all the circumstances of the country”

and

“must have regard to information from any appropriate source (including member States and international organisations)”.

That, in the Government’s view, necessarily requires the Secretary of State to have regard to case law, whether it is domestic or European; to have regard to international conventions and obligations; and to have regard to what international organisations say—and they are not exactly bashful when coming forward in this kind of area. The Secretary of State would be seriously at risk of being found to have acted irrationally or found not to have taken into account relevant considerations, if there was a major international organisation, a major convention or a major decision that had somehow been overlooked. So the combination of the normal duties of rationality and duty to take into account all relevant considerations, plus the actual wording of Clause 6(4), in the Government’s present view, covers the situation adequately.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. The hour is late, and I promise not to intervene again on his remarks. Before we get to group 19, which is also linked to this amendment, or indeed before we get to Report, could the Minister arrange for his officials or perhaps for himself or his noble friend to meet the Salvation Army and the other providers and stakeholders to which I referred in my remarks? It was they who raised these concerns—and, given that they have a contract with the Home Office, they are in a pretty good position to know the territory.

[Lord Bellamy (Con)]

My noble friend Lord Murray tells me that that is already in train—or, certainly, there is no objection from the Government’s point of view.

Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[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.

Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

The welfare and care of unaccompanied children seeking asylum is paramount. They should have the full protections of the Children Act 1989 from the moment they reach our shores. These amendments will ensure that the rights of the child are paramount if the Home Office insists on detaining a child or putting them into temporary accommodation before they are in the care of a local authority. I believe it is paramount that this is in the Bill. The rights of the child and the Children Act 1989 are absolutely key to protect vulnerable children who are seeking asylum. That is why I tabled these amendments.

[Lord Alton of Liverpool (CB)]

My Lords, I have only two questions to put to the Minister. I reinforce the remarks of the noble Lords, Lord Scriven and Lord German.

First, I ask the Minister directly about the issue of capacity. I also want to ask him about the role of the Independent Family Returns Panel. Dr Peter Walsh says that the current detention estate has capacity for about 2,500 individuals, yet we all know that last year 45,000 people arrived on our shores. In addition, there are 160,000 asylum seekers still awaiting decisions. If we take those numbers together, how do they square with the capacity that is planned for the estate? I was also struck by the Taskforce on Victims of Trafficking in Immigration Detention saying:

“We expect that tens of thousands of individuals will be indefinitely detained in immigration detention facilities, with the current already overstretched detention estate being unable to hold anywhere near the numbers anticipated”.


My second question is brief. I am concerned about the disapplication of the duty currently placed on the Secretary of State to consult with the Independent Family Returns Panel in every family returns case, particularly where the family involves children. Has the Minister seen the statement from the UK Committee for UNICEF, which has described this decision for disapplication as “regrettable”? Is that something he might give further thought to?

[Baroness Butler-Sloss (CB)]

My Lords, I want to make two quite separate points. I pick up on what the noble Lord just said; have the Government looked at what is really happening on the ground, the numbers of people currently waiting to be removed—that is a very large number—and the numbers coming in? How on earth are they going to get people away? Where they are going and what is going to happen was set out in much greater detail on an earlier amendment.

What worries me as I have sat listening, today in particular but really throughout the debates on the Bill, is that I do not think the Government have yet put their mind to the problems of numbers and how on earth they are going to get rid of these people, if I may put it rather bluntly.

The second point, which is so much more important, relates to what the noble Lord, Lord Scriven, just said, and I not only support him but admire him enormously for saying it. As I said on another Bill some time ago, I remind the Government that the Home Secretary is not a corporate parent, nor indeed at the moment is the Secretary of State for Education. The concept of the corporate parent is to be found in the Children Act 1989, as a local authority. Currently, the Government are expecting to deal with sometimes quite young children. I think they are concentrating on the 16 and 17-year-olds who are coming through and are not looking at a minority—but probably a relatively substantial minority—of children who are much younger. They have to be looked after. I do not want to repeat what the noble Lord, Lord Scriven, said, but it is crucial that they be looked after. The only corporate parent who can care for them is in fact the local authority where the children are. It is about time the Government started to look at not just the best interests of the children, which is so obvious—it worries me that I keep having to talk about that—but the points that the noble Lord, Lord Scriven, made, which really should strike home.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am very happy that the noble Baroness has asked me that question. I am delighted to say that, as of yesterday, there are zero children in Home Office UASC hotels. They are all in the care of local authorities. I hope that provides a fairly clear answer to her question. Perhaps I can invite the noble Lord, Lord Alton, to intervene.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. My question rather builds on what the noble Baroness, Lady Brinton, has been asking. Earlier I specifically asked about the disapplication of the duty on the Secretary of State to consult with the independent family returns panel and the criticism that has been made by the UK Committee for UNICEF, which said that it regretted that decision. I asked the Minister if he would give further consideration to that point and think further about the safeguards that it enables to be put in place to deal with the kinds of issues the noble Baroness has put to him.

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Lord. I am sorry that I did not answer that question. The relevant provision is in Clause 13 of the Bill. We will come to discuss it in the 11th group of amendments. Perhaps that might be the moment to explore those detailed points more thoroughly.

--- Later in debate ---

[The Lord Bishop of Southwark]

My Lords, I speak in support of Amendments 59, 63, 64 and 67 which, as has been demonstrated, have strong support from all quarters of this Chamber. It was the intention of the right reverend Prelate the Bishop of Durham to speak to these amendments but he is unable to be in the Chamber tonight.

I believe that the strength of opposition to any change in the current detention limits for both accompanied and unaccompanied children is because it is one of the most alarming and unedifying provisions in the Bill. Ministers have set out what they see as the need to detain children for immigration purposes in order to ensure that we do not inadvertently create incentives for people smugglers to target vulnerable individuals. Were this the case, then there would be a case for considering some sort of remedy. However, yet again we have been provided with no evidence that this is the case.

Building an asylum system with deterrence diffused throughout, as described by His Majesty’s Government, has led to this inappropriate proposal to restart detaining children, potentially for an unlimited period. As the noble Baroness, Lady Mobarik, said, it was a Government led by the party currently in office who took the brave decision to end the routine detention of children. That was against significant departmental pressure to retain the practice. How have we arrived, just 10 years later, at the conclusion that the well-being and welfare of children can now be sacrificed in consequence of the need to control migration?

In a rare admission to an evidential base for policy, on Monday the Minister referred to most persons deemed children in these categories being around the ages of 16 and 17. I accept his assertion on this point. However, as was said then, some children as young as 10 are involved.

The noble Baroness, Lady Mobarik, elegantly set out the impacts of detention of children. Studies show that the inescapable institutional nature of detention is traumatic for children and detrimental to the child’s physical and mental development. The Government are fully aware of the damaging impact of detention on children. I quote from one small section of the Home Office’s Assessing Age guidance, published only this March:

“Failure to adhere to the legal powers and policy on detaining children can have very significant consequences, for example … detention can be extremely frightening for a child, with their perception of what they might experience potentially informed by previous negative experiences of detention”.


It needs to be said explicitly that the Government will be sanctioning an intolerable level of emotional distress for the most vulnerable children. Understandably, a child will ask themselves, “What must be wrong with me to have been subjected to such conditions?”.

The Prime Minister stated that the Government’s objective behind the Bill is not the detention of children. None the less, that is what the Bill does. Given the Prime Minister’s just objective, why has the 2014 requirement that child detention be for the shortest time possible been expressly removed? In the year to March 2023, more than 8,000 children entered the UK who would meet Clause 2 conditions and who therefore could be detained indefinitely. In the first three years of the Bill’s operation, this may mean that up to 25,000 children will be deprived of their liberty. Should the deterrent effect of the Bill—about which we currently have no modelling whatever—fail, surely the 2014 requirement must be retained.

The Home Secretary bears a legal duty to safeguard children. Home Office guidance makes clear that this duty requires a demonstration of fair treatment that meets the same standard that a British child would receive. Would we tolerate the Bill’s proposals for our own children or grandchildren?

I welcome the amendments made in this area in the other place, but they do not go far enough. Legislating for the option to place limits on detention and for these limits not to be specified in the Bill is simply not adequate. It is an area that cannot remain entirely at the discretion of a Secretary of State, and children must have a means of challenging the lawfulness of a decision. Also, there have been no equivalent provisions for children within families. Why is one child different from another? Children will be detained after they have fled unimaginable horrors at home or been trafficked against their will. Children will be born in detention and others will have their futures shaped by it. It is the hope on these Benches that we are better than this and know what is right, having banished this immoral practice before. It will take real courageous leadership to change course, but we must. There is concern among my brother and sister bishops about the state of the nation’s soul if we tread so easily down this path.

[Lord Alton of Liverpool (CB)]

My Lords, that was a powerful intervention by the right reverend Prelate the Bishop of Southwark, whom it is a privilege to follow. I pick up a point he made a few moments ago about the amendments that were passed on Report in another place. Like him, I welcome those amendments but do not believe they go far enough. Nevertheless, the House of Commons recognised in those amendments that the power to detain unaccompanied children under the Bill should be exercised only in the circumstances specified in regulations made by the Secretary of State. Those regulations may include a time limit on such detentions, but the Bill neither requires nor establishes what other restrictions on detention will be put in place.

This is why the point that the noble Baroness, Lady Hamwee, made about the use of the affirmative resolution is so important. As things stand, the House of Lords Delegated Powers and Regulatory Reform Committee was right to say that, given the importance and the sensitivity of the subject matter, if regulations are made concerning the detention of children, the affirmative resolution procedure should apply. I hope that, when the Minister responds, he will deal specifically with that point and perhaps discuss with us how Clause 10 might be amended to take into account what the Delegated Powers and Regulatory Reform Committee suggested.

I turn now to the substantive points made in the wonderful speeches by the noble Baronesses, Lady Mobarik and Lady Helic, from the Conservative Benches. I hope that the Government will take into account the arguments that they have placed before your Lordships tonight. There is an echo of what they said in the evidence from the UK Committee for UNICEF, to which I referred in an earlier intervention, which said this about Clause 10, permitting the detention of children both unaccompanied and in families:

“This is not compatible with international standards and also risks undermining the great progress that the UK has achieved in working to end immigration detention of children since 2010”.


That point was made eloquently by both noble Baronesses, who do not want to see the clock turned back.

Whatever limits on the detention of children are made in regulations issued by the Secretary of State, they are unlikely to be sufficient to meet the requirements of the United Nations Convention on the Rights of the Child. Article 37(b) of the convention establishes the general principle that a child may be

“deprived of … liberty … only as a … last resort and for the shortest … period of time”.

The UK Committee for UNICEF says:

“Two relevant UN Committees have stated that the possibility of detaining children as a measure of last resort … is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development … The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that ‘within the context of administrative immigration enforcement … the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children’”.


The power to detain unaccompanied children pending removal or a decision on whether to grant them leave to remain would no longer be subject to the 24-hour time limit and other protections currently provided in Schedule 2 to the Immigration Act 1971. The Refugee and Migrant Children’s Consortium, referred to by the noble Baroness, Lady Lister, noted that this time limit was established by law

“because widespread evidence showed the long-lasting damage that detention has on children’s lives”.

The Government have stated that the detention of unaccompanied children will be

“for the shortest possible time in appropriate detention facilities with relevant support provisions in place”.

In an echo of what the noble Baroness, Lady Brinton, said earlier, I simply press the Minister to say what that word “appropriate” actually means. Please spell it out, because it has no definition as things stand and we are being asked to agree to something pretty awesome in this Bill tonight. That is why the speeches by the noble Baronesses, Lady Mobarik and Lady Helic, are so important and the Government should take proper note of them.

--- Later in debate ---

[Lord Scriven (LD)]

My Lords, it is ironic that we are talking about detention when the Government Front Bench is trying to detain us here. What we are trying to do is our job of sensibly and calmly dealing with a Bill that has huge potential for the liberty and lives of some of the most vulnerable people in the world. It is absolutely disgraceful that, when the noble Baroness, Lady Chakrabarti, was talking about staying here all night, some on the Benches opposite, including the Government Chief Whip, thought it was funny and amusing. It is not funny and amusing to be told that we have to stay here until goodness knows what time to do our job because the Government Benches wish to rush this through at any cost as a red-wall, red-meat Bill, rather than allowing us the serious job that we have to do as Members of this House. It is an absolute disgrace.

Now that I have got that off my chest, I will speak to my Amendment 76A. It is not a probing amendment but a clear amendment that women who are pregnant should not be held in immigration detention. I see no reason for that. The noble Baroness, Lady Lister, pointed out what the equality impact assessment says on pregnancy and maternity—it is absolutely enlightening:

“Data on pregnancy and maternity in relation to people who enter the UK illegally is not available”.


It is not available—there is no data. They do not know the numbers and therefore they do not know what the impact is. It continues,

“it is therefore difficult to categorically establish whether there will be indirect discrimination”.

It is not just hard to determine whether there is indirect discrimination; because of the lack of figures it is absolutely impossible to determine what the effect will be of the primary part of this legislation and whether it will act as a deterrent.

I am sure that that is what the Minister is going to tell us: that there is no data or evidence available. As the Minister said on Monday, on all the proposals:

“Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball”.—[Official Report, 05/6/23; col. 1175.]


When the Minister gets up at the Dispatch Box, if he trots out the ridiculous statement that locking up pregnant women will somehow act as a major deterrent to people coming here, both the equality impact assessment and what the noble Lord, Lord Murray, said on Monday show that that is not the case.

It is for those reasons—the lack of evidence, the lack of understanding of what the impact will be, and, as other noble Lords have said in the debate, the impact it will have on both the pregnant woman and the child—I believe there is no case in a modern, civilised country to have an immigration policy position of putting pregnant women in detention.

[Lord Alton of Liverpool (CB)]

My Lords, in 1979, when I was a young Member of another place, the then Conservative Government regularly kept us there all night. When you are younger, you are quite happy to do that but I suspect it would be better—and knowing how reasonable the Leader of the House and the Government Chief Whip are—if we could schedule our proceedings to include at least one extra day to consider this very important Bill, but also maybe to have a morning sitting if necessary to enable those of us who are not quite as young as we once were to ensure that we can focus properly on these very important questions.

I made common cause with the noble Baroness, Lady Lister, in 2016 and it was to the credit of your Lordships’ House that, after some ping-pong and debate between both Houses, we were able to ensure that the law was changed to introduce these restrictions on the detention of pregnant women. Similarly, the decisions that were taken about children were to the credit of this House. To see these things being rolled back brings no credit to any of us and I really hope that the Minister, when he goes away from our proceedings tonight and talks again to his officials and to the Secretary of State, will recognise the strength of feeling that has been expressed in the debate already, and that the very important points that my noble friend Lady Gohir made in her excellent speech will be taken into account.

The detention of pregnant women is currently restricted, as we have heard, to 72 hours. That limit would be specifically disapplied in respect of those detained because they are or may be subject to the Clause 2 removal duty. As the Bill stands, a pregnant woman could be detained for any period—I repeat: any period—considered “reasonably necessary”. Prior to 2016, the noble Baroness, Lady Lister, and I argued that it was unconscionable that there was no time limit on immigration detention for pregnant women, leading to some of them being detained for weeks, even months, on end. That, inevitably, put pregnant women and their unborn babies at risk.

The Royal College of Midwives says:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.


Stephen Shaw, the former Prisons and Probation Ombudsman, mentioned earlier by the noble Baroness, Lady Lister, was emphatic. He said:

“That detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take to be a statement of the obvious”.


Back in 2016, Medical Justice told Parliament that the level of care for pregnant women

“falls short of NHS equivalence and the National Institute for Health and Care Excellence (NICE) standards”.

Are we seriously going to turn the clock back to those bleak times? Some of the women who will be affected will have experienced barbaric treatment, including rape, torture and trafficking. To forcibly return such women will be traumatic beyond belief for them. It will endanger their lives and the lives of the babies in their wombs, and we have no business doing it. That is why I support Amendment 68, and even at this late hour I hope that many of your Lordships on all sides of the Committee will support the noble Baroness, Lady Lister.

Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Griffiths of Burry Port (Lab)]

My Lords, I spent the whole of last week in Strasbourg, where there was a very similar response from the 47 nations of the Council of Europe towards what we are doing here, with bewildered questions about it put in debate. I simply add that to what the noble and learned Baroness, Lady Butler-Sloss, said about her experience in Warsaw.

[Lord Alton of Liverpool (CB)]

My Lords, I have two amendments in this group, Amendments 113A and 168B. In speaking to them, I will add briefly to the comments already made, all of which I associate myself with.

People have talked a lot about the reputational damage to this country worldwide as a consequence of this legislation. I jealously guard the reputation of Parliament, as many in this Chamber do, and it saddens me that this is in contrast with the modern slavery legislation that other noble Lords have referred to, which enjoyed consensus and which Theresa May constructed with pre-legislative scrutiny, bipartisan support and then bicameral support, with amendments made at every stage and the Government listening and incorporating those things. That is the way to make good legislation—not like this. Reputationally, this is damaging to Parliament.

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[Lord Purvis of Tweed (LD)]

My Lords, I will speak to Amendments 20 and 24 to 28 in my name.

It is notable that, despite Government Ministers on the Front Bench trying to promote this Bill in such vehement terms, for the votes in this Chamber the Conservatives cannot get more than 50% of their Members to support the Government’s position. That speaks volumes.

Amendment 20 seeks to restore the fundamental principle that, if people are to be deemed admissible to be removed to a safe country, it should be on the basis of the individual circumstances of their case and after a review of the circumstances that they will face. The Government are turning this on its head, which is simply wrong. We heard earlier about the due process of law. Amendment 20 seeks to restore what the Government seek to remove—the due process of law.

Amendments 24 to 28 follow from the comments of the noble and learned Baroness, Lady Butler-Sloss, on those countries in the schedule that are not party to the refugee convention—India, Kosovo, Mauritius, Mongolia and South Korea. We do not know, and the Minister will not tell us, whether we have a return and resettlement agreement with any of those countries because, as he told me earlier, these are secret agreements. What kind of arrangements do a Government enter into with another Government that would be secret? The only thing I can think is that the other Government have asked us to keep it secret, for reasons that the Minister will not divulge. But he is asking us to legislate and determine that they are safe countries.

There is an inconsistency with the Government’s position on Section 80B of the 2002 Act, which was amended by the Nationality and Borders Act 2022, over the definition of a “safe third state”. As amended, the 2002 Act is clear about what it is: a safe third state is to be judged with regard to what is relevant to the individual person. Section 80B(4) defines a safe third state, and Section 80B(4)(b) states that one of the characteristics of a safe state is that the person will not be sent to another state—refoulement. There is nothing in this Bill that will give protection to that individual.

In that same section, the refugee convention is specifically mentioned, both in subsection (4)(b)(i) and (4)(c), with regard to a criterion of safety for an individual. I regret very much that the noble Lord, Lord Wolfson of Tredegar, is not in his place. We had a constitutional law lecture at the start of Report on the duality of the system, and if I understood correctly, we should not impose requirements on Executives with regard to international conventions. The law—and the noble Lord, Lord Wolfson, was Justice Minister at the time of the 2022 Bill being taken through Parliament—states categorically that this is a requirement we have put in statute: other Executives have to be a member of the refugee convention or we will not send people to them. What kind of double standard is it that it is fine for us to insist on receiving countries adhering to the convention, but it would be fundamentally wrong for us to adhere to that same convention? This is a double standard we absolutely should not support.

I have leave from my colleagues to say that we on these Benches will strongly support Amendment 37 if the opinion of the House is tested. These aspects are fundamental to the Bill; they are about principle, but also practicalities and our standing in the world. Process of law is very important and we should protect it, and that is why these amendments should be supported.

[Lord Alton of Liverpool (CB)]

My Lords, like the noble Lord, Lord Purvis, I too strongly support Amendment 37 and will vote for it if the opinion of the House is tested. I would also like to support the remarks of my noble and learned friend Baroness Butler-Sloss, on behalf of the noble Lord, Lord Carlile, in moving those earlier amendments, particularly as they relate to safe countries.

My Amendment 21 would insert into Clause 5 the following:

“No person may be removed to a country listed in Schedule 1 if doing so would put that person at risk due to their protected characteristics as defined in section 4 of the Equality Act 2010”.


I raised this issue in Committee and I made a long speech, but I will not detain the House for long this evening. I especially cited the example of Nigeria and I do so again this evening, not least because I heard this morning of the case of Usman Buda, a Muslim, who was murdered in Sokoto state in north-west Nigeria in the last few days, because it was alleged—I repeat: alleged—that he had blasphemed. It is just over a year since the lynching of Deborah Emmanuel, a Christian, at Shehu Shagari College of Education, again following an unsubstantiated accusation of blasphemy. Nigeria is one of the 71 countries that criminalises blasphemy. It is worth remembering that this year is the 75th anniversary of the Universal Declaration of Human Rights, Article 18 of which insists that everyone has the right to believe, not to believe or to change their belief. That is why my amendment seeks to protect people who will be in danger if they are sent back to places like Nigeria because of their belief, non-belief or their desire to change belief.

When the Minister replies, will he say also how the Bill is compatible with Section 4 of the Equality Act 2010? Especially in light of what the noble Lord, Lord Purvis, said a moment ago about amendments affecting people because of their orientation, it is clearly in breach of that and of Article 18, for reasons of faith. That is enough on that subject for now. It is an issue we can return to later in our proceedings, when we come to not just safe countries but how we deal with people with these protected characteristics.

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[Lord Stewart of Dirleton (Con)]

My Lords, I do not think I did. The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Hence there is consideration of individual facts and circumstances.

On Amendments 19, 21, 24 to 28 and 37, I make an observation, namely that much in Clauses 5 and 6 and Schedule 1 draws on existing immigration law dating back some 20 years. To that extent, the provisions contained therein are not new; they provide necessary clarity as to the country to which a person may be removed.

As regards the consideration of the status of countries as places to which persons can be removed safely and which are on the safe list, that list has been added to over the years. It is instructive that some of the countries added to the safe list in terms of the Nationality, Immigration and Asylum Act 2002 were added during the period when the party opposite was in power: in 2003 Albania and Brazil; in 2005 India, Ghana for men and Nigeria for men; in 2007 Gambia for men, Kenya for men, Malawi for men, Mali for men, Mauritius, Montenegro and Sierra Leone for men—I merely exemplify. I reiterate that these are not novel provisions. They provide the necessary clarity as to the country to which a person may be removed.

The noble Lord, Lord Alton of Liverpool, raised a matter concerning the nature of the—

[Lord Alton of Liverpool (CB)]

Protected characteristics.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his assistance. I refer him to the equality impact assessment we have published, which in short order answers his question. Again, I am grateful to him for helping me out in my difficulty there.

[Lord Alton of Liverpool (CB)]

After today’s debate, before we reach group 17 and my Amendment 163, which is on safe routes but which also incorporates this idea of using protected characteristics as contained in the Equality Act 2010, perhaps the Minister can give some further consideration as to whether that might be a useful criterion to use as and when the Government decide on the formula that we use for safe routes.

[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

Illegal Migration Bill

Lord Alton of Liverpool Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Baroness Stroud (Con)]

My Lords, I thank the noble Lords, Lord Kirkhope and Lord Kerr, and the noble Baroness, Lady Helic, for adding their names to my Amendment 164. I also lend my support to the right reverend Prelate’s Amendment 162, which he has just outlined, and to Amendment 163 in the name of my noble friend Lord Alton.

I brought a variation of this amendment to the House in Committee. As I said in that debate, it is very simple. Amendment 164 is designed purely to place a duty on the Government to do what they say they intend to do anyway—introduce safe and legal routes. As I said in that debate, the moral credibility of the entire Bill depends on the creation of more safe and legal routes. The basis on which we are disestablishing illegal and unsafe routes is that we are creating legal and safe routes. The lack of a substantial commitment in primary legislation to this end is a serious omission which this amendment gives us an opportunity to address.

In the previous debate, the Minister said that the Government intend to outline new safe and legal routes in the January report and to implement them “as soon as practicable” and

“in any event by the end of 2024”.—[Official Report, 14/6/23; col. 1982.]

I am grateful to him for making this commitment. My primary motive in bringing this amendment back is to ensure that this commitment from the Government is enacted and that the commitment made from the Dispatch Box to enact safe and legal routes is in the Bill and carries as much weight as the commitment to disestablish unsafe and illegal routes.

I have heard commitments to policy positions from the Dispatch Box which have not been fulfilled and, while I have the greatest respect for the Minister, legislative certainty is what this House needs. I am particularly concerned by the promises made about the establishment of safe and legal routes at an indeterminate point after the next general election.

This brings me to the timeframe which has been introduced to this revised version of the amendment. We have chosen the timeline of two months after the publication of the Government’s report on safe and legal routes for two reasons. First, this will be eight months— I repeat, eight months—after the enactment of the legislation, which is more than enough time to develop and implement a serious proposal. Secondly, it will ensure that the commitment, as set out in legislation, should not cut across a general election or purdah next year. If the Minister would like to propose putting an alternative timeline into the legislation, I would welcome that conversation, but we do need to put the duty into the legislation now.

I was grateful for a conversation with the Immigration Minister in the other place, when he assured me that the Government would consider the importance of clearly demonstrating that they are committed to fulfilling their word on safe and legal routes. To restate: this is something the Government actively want to do, and for that reason I will want to test the will of the House this afternoon.

[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Stroud, and to endorse everything she has just said; if she does decide to test the opinion of the House, I certainly will support her in the Lobbies. I support the right reverend Prelate the Bishop of Durham in his Amendment 162, and Amendment 165, in the name of the noble Lord, Lord Purvis of Tweed, and Amendment 166, in the name the noble Baroness, Lady Kennedy of The Shaws.

My own Amendment 163 takes me back to an issue I raised in Committee. It concerns the provision within the designated safe and legal route, which I warmly welcome and I applaud what the Prime Minister said about the principle of doing this. The amendment contains within it an element and a number, to be determined by the Secretary of State, for people with protected characteristics under Section 4 of the Equality Act 2010. The noble and learned Lord, Lord Stewart, who is in his place, will recall that I raised this issue on an earlier amendment on Report.

I am grateful to the noble Baroness, Lady Stroud, but also to the noble Lord, Lord Cashman, for signing this amendment. I will listen carefully to the Minister’s response. A few moments ago I heard him say that there will be a consultation process; perhaps he could flesh that out and say even that the principle in this amendment is something that could be consulted on—that would go some way to meeting my concerns.

I have raised this issue a number of times previously. I tabled an amendment to the Immigration Bill, debated in your Lordships’ House on 21 March 2016, which specifically focused on those groups of people, such as the Yazidis and Christians, persecuted and even facing genocide because of their religion or belief. I raised it again during the Nationality and Borders Bill, debated on 8 February 2022. I focused on the Yazidis, an ethno- religious group targeted by Daesh for annihilation as a clear-cut case of genocide.

Earlier this afternoon, the noble Baroness, Lady Kennedy of The Shaws, and I held a meeting with officials from the Foreign, Commonwealth and Development Office about the continued failure of the United Kingdom to respond to the genocide of the Yazidis, even though a German court has now determined that such crimes have been committed against the Yazidis. I visited northern Iraq in 2019 and took evidence from the groups I have just described. Germany, along with Canada and Australia, famously opened its doors to the victims of this genocide, offering them sanctuary and a safe haven. By contrast, we have used the absence of safe and legal routes to prevent these vulnerable and targeted communities being able to find a way of accessing refugee or asylum status in the UK.

If our present mechanisms are working as intended, why have Yazidi victims of the Daesh genocide in Iraq not been granted resettlement in the UK? Of course, we may not be able to help all victims but why can we not help a few? This is unacceptable, which is why I have tabled this amendment.

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[Lord Hodgson of Astley Abbotts (Con)]

The issue with remote admissions is that you completely lose control of the system, because it is run on a multibased system around the world. We need, quite simply, to be clear about the number we could admit into this country, under all these worthwhile systems—they may be run in the way the noble Lord, Lord Kerr, wishes, or the way the noble Lord, Lord Alton, wishes—and keep faith with the country’s ability to absorb it without undue social and economic strain.

[Lord Alton of Liverpool (CB)]

I draw the noble Lord’s attention to proposed subsection (2) in Amendment 163, which specifically deals with numbers and a cap, and the regulations that would be available to the Secretary of State to control the very issues that the noble Lord raised. It would allow us to deal with emergency cases of the kind that the noble Baroness, Lady Kennedy, and others described.

[Lord Hodgson of Astley Abbotts (Con)]

Absolutely—that is why, in my opening remarks, I said that the noble Lord’s Amendment 163 was movingly produced and discussed. My question on the cap was aimed at Amendment 164, which I stand ready to be corrected on, and the generality of Amendment 162, where no numbers are mentioned at all.

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[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Bourne of Aberystwyth, in supporting the amendment tabled by the most reverend Primate.

The figures from the United Nations High Commissioner for Refugees alone are justification for this amendment: over 110 million people displaced in the world today. We cannot tackle that alone, and we cannot ignore it either. Therefore, we have a duty to come together with other nations and to take this issue as seriously as we have rightly taken the climate crisis. The COP is not a bad model to look at in the context of the 110 million people.

Why is this great country of ours not taking the lead, as we did with people such as Eleanor Rathbone and Sir Winston Churchill in the period after the Second World War, in convening an international forum to drive an agenda that deals with not the pull factors about which we hear so much but the push factors that send people on these desperate journeys? I was recently in north Africa on the very day that a ship went down off the coast of Greece, killing more than 70 people. Why were they making those desperate journeys? It was mainly to escape destitution and conflict.