Border Security, Asylum and Immigration Bill

Lord Cashman Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, I will speak to Amendment 104 in my name and that of my friend the noble Lord, Lord Cashman. In so doing, I would like to take this opportunity to thank my noble friend Lord Dubs, who, in my absence, moved and spoke to amendments in my name. He did so with characteristic thoughtfulness, eloquence and rigour, and I am pleased to have this chance to record my gratitude. I am also pleased to have this chance to record my gratitude to the noble Lord, Lord Cashman, who was willing to move and speak to Amendment 104 on 10 July, had he not been defeated by time.

This amendment seeks to do something essentially very simple to the Bill that is before the Committee and the legislation it relates to. However, I hope that the Committee will bear with me as in some ways it requires a complicated explanation—I will do my best not to complicate it even more. Essentially, it seeks to repeal Section 59 of the Illegal Migration Act and, in so doing, remove certain anomalies, which I will come to.

Section 59 extends the current inadmissibility process for certain asylum claims and other human rights claims from what was, initially, broadly nationals or those who came from the EEA states, one or two other European states and other countries that are deemed safe. The mechanism for this in Section 59 is a list of safe states—countries from which an asylum or human rights claim must be declared inadmissible unless exceptional circumstances apply. That list can be added to, and the list that was originally drafted in the clause was increased to include India and Georgia by regulations that were laid on 8 November 2023.

I could detain the Committee for quite a time explaining the state these countries were in in respect of human rights on that date. I will read, in short, from the United States’s 2022 Country Reports on Human Rights Practices: Georgia—that is the source of the information and noble Lords can find it and read it for themselves. I will read only two of about seven lines:

“Significant human rights issues included credible reports of: torture or inhuman, cruel, or degrading treatment; arbitrary arrest or incarcerations; serious problems with the independence of the judiciary, along with investigations and prosecutions widely considered to be politically motivated; arbitrary or unlawful interference with privacy; serious restrictions on freedom of expression and media”.


The first three lines of the United States’s 2022 Country Reports on Human Rights Practices: India included the following:

“Significant human rights issues included credible reports of: unlawful and arbitrary killings, including extrajudicial killings by the government or its agents; torture or cruel, inhuman, or degrading treatment or punishment by police and prison officials; harsh and life-threatening prison conditions; arbitrary arrest and detention; political prisoners or detainees; arbitrary or unlawful interference with privacy”.


I will stop there—that is enough. There are many other lines that come with that.

Despite this and other information from other sources, the then Government thought that these two countries were candidates for a list of safe states, and therefore places from which certain asylum or human rights claims would be declared inadmissible.

I believe that this amendment to repeal this is in harmony with the animating spirit of this legislation. Repealing Section 59 would terminate the proposition in it that you can declare states to be safe in this way, despite the evidence, and would remove certain anomalies that I will come to. It presently extends the inadmissibility process for asylum claims and other human rights claims. The distinction between human rights claims and claims to asylum is critical, but Section 59 conflates them. Unlike asylum claims, many human rights claims are founded not on an assessment of a country’s safety but on an individual’s connection with this country: family ties and relationships. As it stands, we risk imposing what amounts, in an anomalous fashion, to a blanket ban on consideration of human rights claims from a country because it is deemed safe, when that is irrelevant to the nature of the claim.

Section 59 deprives individuals of a right to appeal, as these claims, because they are disregarded from the outset, go unconsidered rather than refused, and therefore there is no right of appeal unless there are exceptional circumstances. But what might be considered exceptional circumstances are defined in the legislation in a non-exhaustive way, with narrow examples, such as derogations from human rights obligations under the ECHR or suspension from the EU by the country itself. They are simply inapplicable to states such as India, leaving us with legal uncertainty, over and above all the other problems with this process.

Noble Lords will know that exceptional circumstances have been narrowly interpreted by the Court of Appeal in the past as requiring compelling reasons to believe that there is a clear risk that the individual will be liable to persecution in the country of origin. This test is clearly incorrect for private and family life claims—again a result of the conflation of human rights and asylum claims.

Returning to the list of safe countries, I believe that this involves the other place and your Lordships’ House being asked to do something that they are plainly ill-equipped to do. The list of safe states in Section 59 of the Illegal Migration Act may be altered by the Government and future Governments through affirmative regulations, but I for one would feel myself placed in an invidious situation if asked to vote on whether a member of a religious minority could be considered safe in parts of India; on whether a young Bohra girl is safe in India, given the very high incidence of FGM in that community; or on whether a gay man in Georgia can be considered as residing in a safe country. To reach an informed judgment in these cases would require an omniscience that I do not pretend to possess.

I am grateful to the Immigration Law Practitioners’ Association, which, in the case of Georgia, drew my attention to the case of Noah, a man who, mere months before Georgia was declared safe, was granted refugee status in the UK. After coming out as gay, he was physically attacked by his own family members, he was forced to stay in a hospital for people with mental illnesses, and he had an exorcism performed on him at his local church. His partner was attacked too, but the police in Georgia did not protect either of them—but the United Kingdom did, despite this legislation being in power at the time.

Considering this case and others like it, the lack of an obligation to keep the list of safe countries under constant review is troubling, over and above all the criticism that I have. The Committee needs no reminder of the tortuous logic-chopping that accompanied the decision to legislate as to the absolute and perpetual safety of the country of Rwanda. I worry that the absence of a reviewing mechanism for this list threatens to put us in a similarly invidious position.

Of course, Section 59 has not been fully commenced, but, given that the Home Office has granted asylum or human rights protections to hundreds of people from the countries on the list in recent years, even the shadow of the Section 59 provision is damaging. If commenced, these individuals would have no way to challenge a decision wrongfully to deport them. So either the Home Office has, in granting asylum or human rights claims, been acting out of a superfluity of compassion, or the suggestion that these countries are in all circumstances safe is wrong.

It is my belief that Section 59 of the Illegal Migration Act is ill-conceived and that it ties the hands of the Home Secretary, who, under its provision, must declare asylum and human rights claims from these countries as an inadmissible, save where largely undefined exceptional circumstances are detected. If fully commenced, it risks involving us, going forward under a new Government, in multiple breaches of our obligations under international law. I urge the Committee to support Amendment 104. I beg to move.

[Lord Cashman (Non-Afl)]

My Lords, I support Amendment 104 and I am proud to follow my noble friend after the passionate and eloquent way he introduced it. He spoke passionately and deeply about the young man, Noah, and the experience that he had in Georgia. Before I speak further in support of this amendment, to which I have added my name, I wish to pay tribute to the noble and learned Lord, Lord Etherton, who, as your Lordships know, died on 6 May this year. I had the privilege to work alongside him on immigration and asylum legislation in this House. He was always seeking to bring justice and fairness where there was none and to give a voice to the voiceless. His contributions will be greatly missed. It is clear to me, having listened to previous interventions on this Bill and from the media stigmatisation of migrants, that this vital work of bringing justice and fairness to the system must go on.

I support Amendment 104, which, as I said, has been put before your Lordships’ House so eloquently by my noble friend. I also welcome and support Amendment 203E. These amendments bring us back to addressing the primary reasons of those seeking asylum. It is vital that each case is processed solely on its merits and not on the presumption of the safety of the country from which the person has fled, despite the issue of exceptional circumstances to which my noble friend has already referred. I am pleased to say the noble Lord, Lord Browne, has put the case exhaustively and therefore there is very little for me to add.

I believe this amendment to be essential because Section 59, once fully commenced, will make far-reaching amendments to the general inadmissibility of asylum claims from EU nationals, introduced by the Nationalities and Borders Act 2022. This could result in violations of the UK’s international human rights obligations, and I am grateful for the briefings that I have received, particularly from the Refugee Council. Section 59 of the Illegal Migration Act extends the current general inadmissibility of asylum claims from nationals of EU member states to cover human rights claims and to cover nationals of other countries deemed to be safe, despite concerns expressed about the safety of three of those states: India, Albania and Georgia.

There can be no general safety presumption if there is a risk of persecution to even one recognisable section of a community. Concerns have been raised by numerous organisations on protection issues in India, Albania and Georgia, including those faced by women and girls, victims of trafficking, and minorities such as certain religious groups and LGBTQ+ people. In relation to the latter, we must recall and recognise the Supreme Court judgment of 2010, HG (Iran) and HT (Cameroon) v the Home Secretary, particularly in relation to the lived experiences of such individuals seeking asylum.

Finally, there is a fundamental issue with legislating for so-called safe states. The list of safe states in Section 59 of the Illegal Migration Act 2023 may be altered by the Executive through affirmative regulations, but Members of this House have expressed concern time and time again, particularly throughout the passage of the Safety of Rwanda (Asylum and Immigration) Act 2024, that we are institutionally ill-equipped to act decisively to determine the safety of a state.

We have also expressed in your Lordships’ House concerns that we have been repeatedly asked to rubber-stamp such decisions of the Government of the day. It is our contention that the safety of a state must be designated by a review on the basis of reliable and objective information from a range of sources and regularly updated and published. I urge the Government to consider and reflect widely on this sensible and notable amendment and to work with us and the noble Lord, Lord Browne of Ladyton, to accept this amendment.

Border Security, Asylum and Immigration Bill

Lord Cashman Excerpts

Report stage
Tuesday 11th November 2025 Lords Chamber

I urge my noble friend the Minister to consider these three practical recommendations. This Government need not retain and be haunted by unworkable and performative provisions by past Governments if their intentions are operational flexibility, upholding our obligations under the human rights convention and balancing efficiency against the need for fairness, I beg to move.

[Lord Cashman (Non-Afl)]

My Lords, I will speak in support of Amendment 59—to which I have added my name, along with the noble Baroness, Lady Hamwee —which was moved so effectively and powerfully by my noble friend Lord Browne of Ladyton. In Committee, I spoke about the importance of our amendment then, and the amendment before your Lordships today reflects changes which we believe will make it attractive to the Government, as well as being a balanced and effective approach; I hope the Government will agree with that opinion.

As has been said, once fully commenced, Section 59 of the Illegal Migration Act would make far-reaching amendments to the general inadmissibility of asylum and human rights protection claims from EU and other nationals introduced by the Nationality and Borders Act 2022. We believe this will likely result in violations of the United Kingdom’s international human rights obligations.

As my noble friend said, in Committee our Amendment 104 sought to repeal Section 59 of the IMA in full. It was widely supported and I was particularly pleased by the intervention of the noble and learned Lord, Lord Hope of Craighead, following my recognition of the importance of the 2010 Supreme Court judgment in HJ (Iran) v Secretary of State for the Home Department. As noble Lords will know, he was one of the justices in that case. The concern in Committee and the concern now is about the efficacy and legality of Section 59 of the Illegal Migration Act as currently drafted. The Government have made it quite clear that they believe that Section 59 of the IMA must be retained, hence why we have tabled this new amendment which looks to make changes to Section 59 with the intention of ensuring that it can provide the flexibility that the Government may require, but in an effective and legal manner that has as few unintended consequences as possible.

To put it briefly, the amendment would turn the duty of the Secretary of State into a power. It clarifies the exceptional circumstances test and provides an effective mechanism for the management of the safe states list and the removal of states which are no longer safe. Importantly, it would enable the United Kingdom to uphold the Human Rights Act and the European Convention on Human Rights and would therefore be less likely to be challenged within the courts.

To be safe, a state must be a place

“where its citizens are free from any serious risk of systematic persecution, either by the state itself or by non-state agents which the state is unable or unwilling to control”,

and free from a serious risk of persecution in general. That is from the 2015 Supreme Court judgment in R (on the application of Jamar Brown (Jamaica)) v Secretary of State for the Home Department.

As I said in Committee:

“There can be no general safety presumption if there is a risk of persecution to even one recognisable section of a community”.—[Official Report, 3/9/25; col. 802.]


In relation to the HJ (Iran) Supreme Court judgment, the hard-won legal rights for LGBTQI+ refugees are meaningless if the safety of states does not account for their safety. Such refugees will have to hide fundamental parts of their identity if they cannot leap over the “exceptional circumstances” test currently in place, and are sent back home in contravention of that judgment. But, surely, even if their claims are declared inadmissible this Government will not send them home, forcing them to live in hiding in a state that the UK has called safe but is not in reality safe for them. I therefore look to the Minister to reassure me on that point.

If there is a real risk that a person would suffer inhuman and degrading treatment upon return to their home country, it would be a breach of their human rights to fail to rigorously scrutinise their claim. I believe that such claims must therefore be considered. This means that if the wider inadmissibility test is to be kept, it must be altered. Similarly, hard-won gay marriage rights will mean little if we must still show exceptional circumstances before a national of a safe country may be permitted to live here with their British or settled partner.

These are some of the reasons that we have added to the exceptional circumstances test the requirement for the Government to consider these claims if a failure to consider them would breach the human rights convention—arguably, a minimal safeguard to ask for. I hope the Government will have the courage to do the right thing: accept their human rights obligations and adopt this amendment or, at the very least, further reflect upon it and our submissions. I look forward to the Minister’s response.

[Lord Sentamu (CB)]

My Lords, I supported this amendment in Committee. It has been quite improved and I therefore agree with the comments of the noble Lords, Lord Browne and Lord Cashman. I do not want to go over what they have said because they put the case clearly.

It must be welcome that this amendment would turn

“the duty into a power, to declare as inadmissible a human rights or asylum claim, which may not”

in the end

“be exercised if the failure to consider a claim would contravene the UK’s obligations under the ECHR”.

That to me is the nub of it and, therefore, the Secretary of State, instead of simply having a duty, would actually have a power to do something about it. There is an ability, under the Human Rights Act sometimes, for people to know that this has been breached—but who should then put it right? It seems that this Bill gives the opportunity to turn a duty into a power.

The amendment would also do another thing. It would create

“a duty to remove States from the Safe States list, if they are no longer safe”.

To have a list over which you cannot have the power or duty to do that can really prolong a misnomer. When people may have come from some places that were safe yesterday, but tomorrow are no longer safe, it seems to me that the Secretary of State needs to be given the duty to do so, because we are living in a world that is so changeable.

When South Sudan became independent everybody was full of rejoicing. I was involved with a lot of asylum people coming to Uganda, because I was hearing cases as a judge up in the north. After the sheer carnage that went on in South Sudan, where people’s lives were ruined and destroyed for so many years, peace came and everybody rejoiced. Who would have believed that it would not be long before warring factions were tearing that country apart? The carnage in Darfur was quite unbelievable.

Then what happened? Sudan was being ruled by a real dictator, but then that Government were overthrown, and overnight law and order began to collapse. It was not very long before two warring factions were tearing that country apart. Yes, we hold the pen on behalf of the United Nations, but, my friends, we almost do not have the wherewithal to deal with such brutality.

Therefore, a country that was safe a few months ago could suddenly end up in a real mess. We created a list of safe countries under that Act, so the Secretary of State should have the duty to remove such a country when it is judged to no longer be a safe country. This amendment is in keeping with that. I am very grateful to the Government for saying how much they are going to be ruled and governed by the rule of law. There is nothing here that is not supported by the rule of law, so I support this amendment.