Illegal Migration Bill

Lord Carlile of Berriew Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

Certain things will happen when the Bill goes through; the system described within it will take effect. I assure the noble Lord that this is something that the Home Office expects to happen—that is, that returns will be effected in accordance with the duty imposed on the Secretary of State.

[Lord Carlile of Berriew (CB)]

If the impact assessment is to be provided in a timely way—or if not—will the Minister ensure that it contains an estimate or assessment of the number of people who would have been granted asylum but will not be because they are excluded as a result of the blanket effects of the Bill?

[Lord Murray of Blidworth (Con)]

It is not for me to dictate what is in the impact assessment. The department will provide the impact assessment in due course—

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Cormack (Con)]

My Lords—

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[Lord Murray of Blidworth (Con)]

I will come back to the noble Lords in due course, but I need to make progress.

The broken asylum system costs the UK £3 billion a year, and that is rising. There seems to be an impression that, without the Bill, those costs will not continue to rise at an alarming rate year on year. Doing nothing is not an option.

In conclusion, I agree with the noble Lord that returns agreements have a place, and we will seek to negotiate these where appropriate. By their nature, any such negotiations involve two parties. The UK cannot compel other countries to enter into such agreements; they are a two-way process. Moreover, it will not enhance such negotiations to require their status to be set out in a three-monthly report to be laid before Parliament.

[Lord Carlile of Berriew (CB)]

My Lords—

[Lord Murray of Blidworth (Con)]

I ask the noble Lord to bear with me for a moment.

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[Lord Carlile of Berriew (CB)]

May we return to something that the noble Lord said a few moments ago? He said that it is not for him to dictate what appears in an impact assessment. If it is not for a Minister—either this Minister or one of his noble or honourable friends, either in this place or another—to dictate what appears in an impact assessment, for whom is it to determine what appears in one?

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[Lord Dubs (Lab)]

My Lords, it is a pleasure to follow the noble Lord. I will endeavour not to repeat some of the arguments that have already been put forward; it is a challenge that most of us have failed, and I will probably fail it too.

In the Bill, there is an unprecedented step that it would make any asylum application made by someone who arrives irregularly in the UK permanently inadmissible. If declared inadmissible, they cannot subsequently enter the UK’s asylum process. That means that they are out of the system for ever, simply because of the method by which they have arrived in this country. The United Nations High Commissioner for Refugees said that the Bill

“would amount to an asylum ban”,

as it would the extinguish

“the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how compelling their claim may be”.

The UNHCR goes on to say that, if other countries followed suit, we would see an end to refugee protection. That is a pretty dismal comment, but I have no reason to doubt that the UNHCR is accurate in its assessment. I repeat something which should be beyond argument: the UNHCR knows about the 1951 convention, and surely the UNHCR must be seen as the guardian of that convention. So if the Government are going to disagree with the UNHCR, they have to be on pretty firm grounds before they do so.

I will not repeat the conditions stated in Clause 2—we are familiar with them—but I will note that, even if people cannot be removed from the UK, their claims will still be permanently inadmissible. That is a significant change from the current inadmissibility scheme put in place after the UK’s exit from the EU as it also left the Dublin system. Under this scheme, if the UK Government believe that somebody did claim or could or should have claimed asylum in another country, their asylum claim could be potentially deemed inadmissible. However, the current scheme requires another country to have agreed to take the person before the inadmissibility decision can be made. The Home Office guidance on the inadmissibility procedures says that getting an agreement should take a maximum of six months in most cases. We are in a situation where there can be no progress for those individuals, except in this very negative sense.

The Home Office’s own statistics—I rely on the Refugee Council for some of this information—show how rare an occurrence this is. Between January 2021 and the end of December 2022

“of 18,494 applications that were potentially inadmissible only 83 inadmissibility decisions have been served”,

with only 21 removals. As a result, nearly 10,000 people have had their claims subsequently admitted into the UK’s asylum system following an unnecessary delay.

This Bill changes the current inadmissibility system by removing the requirement to have a removal agreement in place with another country before an inadmissibility decision can be reached. Instead, it makes any claim automatically and permanently inadmissible. It does not give the Home Secretary any discretion to consider the claim, and indeed the noble Lord in the previous speech challenged the Home Secretary’s lack of discretion in these procedures.

The Bill does very little to make it likely that more people will be able to be removed. Clause 5 allows people from 32 countries designated as safe countries whose asylum applications have been ruled inadmissible to be returned to their home country. Nationals of all other countries outside this list cannot be returned to their home country. This includes someone whose claim is highly likely to be successful, such as an Afghan or a Syrian, or someone whose claim could potentially be refused if it was actually processed. Instead, they can be removed only to one of the 57 third countries listed in Schedule 1 to the Bill. However, the agreement with Rwanda is the only removal agreement that the UK has in place that includes third country nationals, and the legal and tactical challenges faced by that scheme are well documented. Even if it becomes operational, it will not be possible to remove the thousands of people whose claims are deemed inadmissible to Rwanda.

We are in a real difficulty with this situation. The Home Office has yet to set out how many people it believes will be impacted by the Bill, as we have already discussed. However, given the current 0.7% success rate of removing people under the inadmissibility process, the Refugee Council estimates that at the end of the third year of the Bill between 161,000 and 192,000 people will have had their asylum claims deemed inadmissible but not yet have been removed. They will be unable to have their asylum claims processed, and therefore unable to work, and will be reliant on Home Office support and accommodation indefinitely, which is predicted to cost between £5 billion and £6 billion in the first three years. They will be stuck in a permanent limbo. I hope the Minister can explain how they can get out of that limbo, unless the Government suddenly produce a range of countries with which return agreements have been agreed.

This is a pretty miserable clause in a miserable Bill. I believe that this amendment could go some little way towards making the Bill somewhat less bad than it is.

[Lord Carlile of Berriew (CB)]

My Lords, I have signed some amendments which were tabled by my noble and learned friend Lord Etherton, who has asked me to apologise for his absence today. I am not going to speak to those in any detail because, as is typical of my noble and learned friend, the explanatory statements which he has added to those amendments say it all, and make them very easy to understand.

What concerns me about this debate is that it has a degree of abstraction which perhaps conceals what really lies in front of the debates we are having. Recently, I went to a meeting to discuss asylum and refugee status in one of our cities. Present at that meeting was a woman in her 30s, with three children, who is living in a hostel in that city. She has now been waiting for 10 years—with her children, some born after her arrival here—to know the result of her wish to be treated as an asylum seeker.

The Minister earlier today—it seems like many hours ago but it is probably only about two and a half—referred, when he was answering an intervention, to an emergency having occurred. If that is an emergency—because this Government have been in place for well over 10 years—then it makes the creation of a baby elephant seem like the speed of sound. It has happened on their watch. Why? In truth—and it is long before the Minister became involved in these issues and became a valued Member of your Lordships’ House—they did not do what they needed to do to anticipate what was going to happen. That is why cases such as that of the woman I referred to took place.

In another city, I met a young man, now in his mid-20s, who had arrived in the United Kingdom illegally in the back of a lorry. He climbed out of the lorry and had nowhere to go. He slept in a doorway and the next day he did what he was told was a good thing to do and went to the local police station and asked the police for help. As it happens, they were very sympathetically disposed to him. He was then about 17 and a half. He was refused permission to remain in this country and he was refused asylum. He appealed and his appeal was allowed. I am delighted to say that the reason he came to see me was that he is about to start a career as a barrister. This is obviously a very good thing for anyone to do, as I would say, and I know a number of noble and learned friends, including the Minister, will agree with me when I say that. I am trying to discourage him, as a sort of mentor, from doing only asylum work because there is so much more to do as a barrister. I may be winning that battle. That is the actuality we are dealing with in these cases.

What we are facing here, to use the Minister’s words, is apparently an emergency to oust the use of judicial review. Before I got up to speak, we heard three really superb speeches. I do not want to repeat everything that was said but I agree with it all. All those speeches demonstrated, I suggest, that the ouster of judicial review, as has been the approach of the courts and indeed of Parliament over the decades, should happen only very rarely. It is not unheard of, but it should happen only very rarely when the necessity to oust judicial review is demonstrated and, above all, when it is fair and proportional to do so. Surely the ouster of judicial review is neither fair nor proportional in a situation in which we find many cases coming before the courts but it is not the fault of the real people who want to go to those courts. Let us not forget that a very large number of that cohort are allowed asylum and refugee status when they go to the courts. This is not an unworthy cohort going to court for the sake of it; people often win their cases. Do we in your Lordships’ House, with so many experienced people, particularly those who have seen the courts in action, really want to oust that activity of the courts?

Let us look at the figures for a moment. I know that there are many cases in tribunals. I have never had the advantage of serving as a member of the asylum et cetera tribunal or Upper Tribunal but I have had the privilege of serving as a deputy judge in the Administrative Court for many years, dealing with many asylum cases. I think everybody imagines—I wish to disabuse the non-lawyers in the Committee—that these cases are all run into the ground by long-winded lawyers such as myself who try to make the cases run for ever and ever in order to enhance our fees; the sort of Daily Mail “sidebar of shame” view of what lawyers do.

Let me tell your Lordships what happens in the Administrative Court. A judge turns up for a day’s sitting and often starts with paper applications. About 11% of the cases have already been filtered out as being totally without merit and do not even come before the judge doing the paper applications—the paper apps, as they are called. The judge then spends the day in his or her judge’s room dealing with the paper apps, usually dealing with about 12 in a day—maybe a few less, maybe a few more. They take therefore very little time at all.

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[Lord Horam (Con)]

My Lords, before we move on to the interesting dinnertime discussion, I just want to raise a point as a non-lawyer about Amendment 20, in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti. Its purpose is to

“enable an application for judicial review to be made while the applicant is in the UK”.

We had a very interesting point from the noble Lord, Lord German, about what he described, fairly accurately, as Daily Mail sidebar accusations about the nature of judicial review. It was very helpful to have that short seminar from the noble Lord, Lord Carlile, on what actually happens in the Administrative Courts and how it is not a question of lawyers making lots of money out of rather dodgy cases. I think he is right. Although I have never been to the Administrative Court, but I am sure he reflected that very faithfully.

Surely, however, if this amendment is passed, it will drive a coach and horses through the main purpose of this Bill, which is to deter people from crossing the channel in small boats. If you then give them the opportunity when arriving in this country in a small boat of immediately seeking judicial review, and that is in the Bill designed to stop them coming across the channel, will that not destroy the whole purpose of the Bill? I merely put that question as a non-lawyer; it seems to me inimical to the very heart of the Bill, whatever one’s view.

[Lord Carlile of Berriew (CB)]

I am grateful to the noble Lord for giving way, but I just want to ask him this question. Would he be happy about legislation being passed that meant that people who had a justifiable claim to asylum were never allowed to pursue that claim to asylum—that is, a justifiable claim under international and existing United Kingdom law?

[Lord Horam (Con)]

No, I am just saying that if the amendment were accepted, it would be entirely inimical to the purpose of the Bill.