Illegal Migration Bill

Lord Coaker Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

Moved by

[Lord Coaker]

13: After Clause 2, insert the following new Clause—
“Negotiating objective: migration removal agreements(1) It must be a negotiating objective of His Majesty’s Government to negotiate with relevant States formal legally binding agreements to facilitate removals required under section 2.(2) Relevant international partners include (but are not limited to) the States listed in section 57.(3) Within the period of one month beginning with the day on which this Act is passed, and every three months thereafter, the Secretary of State must—(a) publish a report outlining the status of negotiations with relevant States on the establishment of formal legally binding agreements to facilitate removals, and(b) lay the report before both Houses of Parliament.”Member’s explanatory statement
This new Clause would require the Government to seek formal return agreements with other states, including Albania and EU member states, and to report regularly to Parliament on the status of those negotiations.

[Lord Coaker (Lab)]

My Lords, the Minister—the noble Lord, Lord Murray—and the Committee will know straightaway that this is obviously a probing amendment, but it is none the less significant, notwithstanding the Prime Minister’s visit to Dover this morning and some of the comments and announcements made there. It is particularly important, because some of our objections to the Bill deal with not only some of the principles but some of the practicalities and what we regard as the unworkable measures within it. With this amendment, I hope to concentrate more on the practicalities and on how some of this is simply unworkable, or certainly needs more justification from the Minister. Groups of amendments that we may debate later today or on another day deal with many of the principles underlying criteria for returns and those who are detained before they are returned. But, through Amendment 13 in particular, I hope we can deal with how all this will work.

I will cite a number of facts, and I am particularly keen for the Minister to understand that I am using Home Office figures. It is always helpful to use the Government’s figures to highlight some of the points because, presumably, they do not question their own figures, although sometimes I wonder whether that is the case. To help the Minister, I say that these are the latest figures—I know that the noble Lord, Lord Sharpe, is always keen for us to use the latest figures—from 25 May 2023. If the Minister has any from after that, some of what I will say clearly may not be as accurate as it might be—but it is important to confirm the context within which we debate the returns agreements.

The number of asylum seekers awaiting a decision is now 172,758, and it continues to rise. The number of asylum seekers waiting for more than six months for a decision is 128,812. Of these, 78,954 are legacy cases. On small boats, starting with 2022—I know that the Prime Minister was keen to talk about 2023—can the Minister explain to the Committee how on earth the Government have got themselves into a situation where we need an illegal migrants Bill when, of the 45,000 people who crossed in small boats last year, only 1% have been processed? How on earth is that a policy? It does not matter what policy you have if the systems do not work, or only process that amount. How on earth are we supposed to get on top of this problem, which we all want to deal with?

So far, 7,610 people have come across in small boats this year. Where are the 4,657 people who have come across since 7 March detained? What is the Government’s presumption about where they will be returned to? Let us start with the small boats that have arrived since 7 March. We will come to discuss the wider issues much more, but I hope that noble Lords can see some of the context.

As I have already asked, if all the people who have arrived irregularly since 7 March are to be removed, where will they be removed to? Where are they staying now, and how much is it costing? Can the Minister confirm the House of Commons Library figure that, as of June 2022, there were 38,900 people waiting for removal? That number is before we even get to the figures on illegal boats; we cannot even deport or remove people whose asylum claims were presumably refused years ago. What has happened to them and where are they? Do the Government know? What is the actual figure if that figure is wrong? Where are they being returned to? Are we ignoring them, or are they being returned? Do we have returns agreements for them?

Can the Minister comment on the interesting dilemma of who will be returned first: the people who have come irregularly since 7 March or the people whose asylum claims were refused and are subject to deportation before this legislation? Presumably, some of those people have been waiting for detention for a considerable period of time.

Can the Minister say, in practical terms, how he expects the returns agreements to cope? I reassure him, again, that I am citing the Government’s 25 May document. How will the Government cope with the returns agreements, given that the number of enforced returns in 2022 was 46% lower than in 2019? Significantly, of those enforced returns, many were EU nationals or foreign national prisoners. Can the Minister also confirm the government figures that say that the number of case workers dealing with asylum claims fell between January and May 2023? As I have said, at the heart of my amendment are the huge numbers waiting to be returned already.

The Government are to detain all people arriving irregularly and then have agreements to return them, which are supposedly in place. Given the contentious figures we have seen in the media over the weekend, what is the Government’s planning figure for the numbers that they expect to detain? The Prime Minister can announce, in Dover, that there are two more barges coming, even though he has no idea where they are or what size they are. While I hope that the Minister can prove me wrong, why can the Prime Minister announce that without the Minister giving us the full detail, as we debate the Bill, as to where people will now be detained? More importantly, given that detainment is the first stage, where will they then be returned to? What is the Government’s estimate of the total cost of those detain and return figures? Is the figure of up to £6 billion over the next two years wrong or not?

According to the briefing that was helpfully published for us by the House of Lords Library,

“Researchers at UK in a Changing Europe have argued that ‘the most significant change’ to asylum policy recently occurred when the UK left the EU”—


which we did. It continues:

“This meant the UK was no longer part of the Dublin Regulation, also referred to as Dublin III. This EU legislation sets out which member state handles the examination of an asylum application, often the country where an asylum seeker first arrives. No agreement between the EU and UK on asylum policy was made when the UK left Dublin III”.


The significant sentence from that briefing is that no returns agreements have since been made, although the UK says that it intends to agree bilateral arrangements with EU member states for the return of asylum seekers—unless Albania counts, although it is not a member of the EU. Can the Minister tell us how that is going? Can he list for us what those returns agreements are, and how many returns each of those various EU countries will get?

This morning, the Prime Minister himself made much of the Anglo-French agreement, saying that it was a great step forward that would no doubt help us. He said that progress has been made, and, because we obviously do not want people crossing the channel in that way, arrangements were made between France and the UK. Unfortunately, as the House of Lords briefing points out:

“A further agreement with France, in which the UK agreed to fund enforcement measures, was signed on 10 March 2023. However, this agreement does not enable the UK to return asylum seekers to France”.


Can the Minister say whether there are ongoing negotiations on that, and where have they got to?

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[Lord Coaker (Lab)]

My Lords, I think the Government and the Minister are in a mess on this, particularly given the fact that the Minister cannot reassure us about the impact assessment.

The noble Lord, Lord Kerr, put it at the beginning but I was going to finish by saying that the reason I put forward Amendment 13 was to try to get some of the detail that is necessary for parliamentarians to actually make decisions about whether or not a law is fit for purpose. The Minister is now in real trouble through the rest of the Committee, not just on this amendment, which I particularly posed around returns. The noble Lord, Lord Paddick, mentioned that a number of questions were asked, including by me, and that the Minister failed to answer virtually any of them—apart from those on the Dublin III agreement, which, if I might say, was something that would have been in the impact assessment. The Minister said that what I said was “complete nonsense”. I would not have used that term about another noble Lord, but he called what I said complete nonsense. Having said that, the impact assessment is crucial.

Nobody has a clue what “in due course” means. My noble friend Lady Lister made the point that I have got written down: on 24 May, the Minister committed himself to taking back the concerns that there was not an impact assessment. Can the Minister confirm that he has taken those back already? If so, why is he saying that he is going to take back the concerns that the noble Lord, Lord Kerr, and others mentioned today? His answer should have been that he had already taken the concerns back and they are being discussed in the department.

Shall I tell the Minister why this is so serious? I know from my own ministerial times—as I am sure that others here who have served either as civil servants or Ministers will know—that there will be planning assumptions in the department. They have not just made it up—a few people from here, a few people from there; there will be planning assumptions. That is where the figure in the Times which the noble Lord, Lord Paddick, referred to has come from. Whether or not it is a leak, there is a figure of between £3 billion and £6 billion as to the cost over the next two years of the Government’s policy. There will be assumptions about the numbers of detainees and assumptions about the numbers who are going to be removed. All of those assumptions are available and in the Home Office. The Minister will have had some discussions about that. Of course he should be involved in the impact assessment. He will take the advice of civil servants but, in the end, with the Home Secretary, he will have to sign it off. The impact assessment will be signed off by Ministers. He will not write it but he will sign it off, or other Ministers will.

The Minister has available to him facts and figures that this Committee does not have. How on earth can you properly legislate on that basis? How can we say that the Minister, as he will have on some things, has a good point? I will say something and then he will say, “Lord Coaker hasn’t thought about that; if he had seen these facts, he would know that”. I would have to concede, because there are facts.

We are not yet in a Trumpian world of competing facts; we have facts. That is what every single noble Lord in this Chamber has asked the Government for. In order to make proper decisions, whether about returns agreements as in my Amendment 13 or other decisions, it is a convention that those facts are made available. At the very least, they should be made available before Report—they should be made available now. You can have an impact assessment and an economic impact assessment, or you can put the two together.

In effect, we are whistling in the dark. We have no idea what half of this means. I asked the Minister how many people are currently waiting to be deported, both pre 7 March and post 7 March, and how many the Government assume will be able to be returned. Where are the returns agreements? It is perfectly reasonable to ask the Minister responsible for the operation of the Illegal Migration Bill to say practically how it is going to work.

I said that the debate about principle will have to come but I am also interested in the unworkability of what has been said. The Minister took me on about Dublin III. What about the rest of it? Where are all the other facts and figures? This Committee has no idea. The Minister will have them; I read them out from his own statistics. Why did he not just repeat the public facts available about the Bill?

I know that we need to move on. I understand that and it is fair comment that I am now going on too long. But it is of such importance that we have the facts normally made available as a convention, a courtesy and a good way of doing legislation. They should be put before parliamentarians as they make decisions, debate, discuss and argue. Opinions will clash. People will think that some of what I say is rubbish and complete nonsense, but that is what happens in a debating chamber. It cannot happen if one hand is tied behind our backs. The Minister needs to publish that impact assessment as soon as possible. To do that “in due course” is not good enough. He needs to go back to the Home Secretary and tell her we need it to be published because we need to see the facts as we discuss the legislation. That is what every one of us thinks is important, and it should happen as soon as possible. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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[Lord Paddick (LD)]

My Lords, my noble friend Lady Bakewell of Hardington Mandeville added her name to Amendments 14 and 22 but is having to deal with matters in Grand Committee this afternoon, and means no disrespect to this Committee. My noble friend Lord German comprehensively set out the problems with this clause and why it should not stand part of the Bill. Having said that, we also support all the amendments in this group.

On 8 May 1995, Nelson Mandela said:

“There can be no keener revelation of a society’s soul than the way in which it treats its children”.


If the Government are serious about implementing the provisions of this Bill in relation to children, what would Mandela have said about our society’s soul? An infant, or even a child yet to be born, brought into the UK by a parent and by what the Home Office calls an irregular route, or an unaccompanied child not thinking of all the consequences—because children, some as young as 10 years-old, do not think about all the consequences of their actions—will never be able to acquire the right to remain in this country and will never be able to work. They will potentially be detained until they are 18 years-old and then deported. Many of them will have had no say in determining the circumstances that they find themselves in or will not have thought about the consequences of their actions. How can the proposals in the Bill be the actions of a society that describes itself as civilised?

[Lord Coaker (Lab)]

My Lords, I support the amendments tabled by the noble Baronesses, Lady Meacher and Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Dubs. They go to the heart of what many of us are concerned about: what this says about our country and our conformity to various conventions and international treaties that we have signed up to and agreed to be part of. I want to reiterate the importance of that. I will not go on at great length about it because I have spoken at this Dispatch Box, and will again, about there being a huge issue around compatibility with various conventions in this aspect—children—and with some of the workability and practicality of what the Government are setting out to do.

I join the noble Lords, Lord Purvis and Lord Scriven, in particular, in saying that it is quite extraordinary to read in the Explanatory Memorandum that the department’s view is that the Bill should have a deterrent effect, which can result in fewer unaccompanied children arriving in the UK by dangerous and unlawful means. Nobody wants anybody to come by dangerous means to a particular country, in this case ours, but it is just an assertion. It is the departmental view. No evidence, as the noble Lords, Lord Scriven and Lord Purvis, mentioned, is provided. Of course—without going back to the debate that we had—we have no impact assessment to make any judgments about any of that. I ask the Minister to clarify what that sentence means, what the evidence is for that, and how the Government have come to this view that the Bill should have a deterrent effect. It does all read, to a certain extent, as though the Government are justifying these actions by using unaccompanied children as a deterrent, which I think cannot be the Government’s intention. But that is certainly how it reads, and I think the Minister should put on the record that that is not the case, even though that is certainly what some of the refugee children’s charities have said.

I will ask the Minister a couple of specific questions. How old are the unaccompanied children we are talking about here? I think it was my noble friend Lady Lister who mentioned a child of eight. Some 5,200 unaccompanied children arrived last year. What has happened to them? What is the age range of those children? I think that knowing what has happened in the past would help us make some judgments and assessments about the future.

As my noble friend Lord Touhig mentioned, I think it is appropriate for us to ask what progress the Government have made in finding the 200 children who have been lost to the system. As I have said before, the Home Office is not a corporate parent. My own view is that if it was, it would be prosecuted for losing children. If a human parent lost children, we would be incandescent about it. But the Government have lost 200, and in their equality impact assessment, they warn that they are worried and concerned about children absconding from their care.

Will the Minister take up the point made by the noble Lord, Lord Dubs? Supposing an unaccompanied child is 12, are the Government expecting them to be deported when they are 18, or is there an age limit for that? Have they got to be under 16? It is Committee, so these are the sorts of detailed questions we ask, because otherwise we will not understand how the Government are arriving at their policies. The Government say that if they do not have a right to be here, they will be deported when they reach their 18th birthday. When does that start from? That is why I am asking about age—you can be here for seven years, go to school, and at 18 you will be deported. That was the point the noble Lord, Lord Dubs, was making; those are the practicalities of it. Does the Minister expect that if a child aged 17 was in that situation they would wait until they were 18 for the Government to come and find them and deport them? These are detailed questions, which, although we are in the main Chamber, are the point of Committee, to try to understand the practicalities and workability of the situation.

The Government made the amendment to say that there will be exceptions; there will be no requirement on the Secretary of State to deport or to remove—which is the Government’s preferred term—unaccompanied children, but there will be exceptional circumstances, which will be made by regulation. The Government said this would be for reasons of family reunion, and also if a safe country was identified. It would be helpful if the Minister said a little bit more about how that all works in practice, how that information would be found out, and what other circumstances there are, because those are just two examples. They are not the only exceptions; the Government say there are those two, but there may be other exceptional circumstances. What other exceptional circumstances does the Minister think that would mean?

Can the Minister clarify for us the Government’s policy with respect to the use of force with unaccompanied children and how they will be, if you like, kept in care and looked after? What are the Government’s provisions with respect to that?

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[Lord Murray of Blidworth (Con)]

The noble and learned Baroness is quite right that it is a very difficult balance that we have to draw. The difficulty is that we cannot allow there to be a loophole which incentivises people smugglers to put young children into boats and expose them to greater danger. There is clearly a balancing act to be performed. There are powers in the Bill, as the noble and learned Baroness will have seen, in relation to exceptional circumstances. However, the principle is that a minor will be removed at the date of their majority. I should add, in relation to a point that was raised in the speeches, that of course children become adults at 18, and that is recognised in international instruments. I appreciate that children develop at different rates, but that is the legal position, as I am sure the noble and learned Baroness will agree.

[Lord Coaker (Lab)]

Further to the point made by the noble and learned Baroness, Lady Butler-Sloss, can I ask the Minister to look at this? I raised it in my remarks as well. My noble friend Lady Lister raised the case of an eight year-old. There is a problem here. I appreciate the point the Minister made, but there is a very real problem, as the noble and learned Baroness, Lady Butler-Sloss, mentioned. If you have a child who is 10 or 11, they will be here for eight years and will then be deported at 18. Can the Minister at least go away, have a look at this and discuss with his officials whether there is a way of being consistent with the Bill, as the Minister would have it, but also reflect on that as particular point that causes problems?

[Lord Murray of Blidworth (Con)]

I assure the noble Lord that these points have received bags of consideration, not least from me, because they are very difficult. Of course, the length of time a child is present is a material factor. I am glad to say, as I said in my earlier remarks, that the vast bulk of children who are found in the small boats are not in the eight to 10 age bracket but are more likely to be 16 or 17. I can hear the noble Lord saying sotto voce that I have not answered the question. The answer is yes, of course I will carry on thinking about it, but it is a difficult question. In the Government’s view, we have come to the only logical solution that does not provide a very large hole in the scheme of the Act.