Illegal Migration Bill

Lord Coaker Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Cormack (Con)]

My Lords, enforced equality, no matter where, cannot be right. To say that everybody must be treated precisely the same under this Bill—which is the only substantive argument that has been advanced—is something that I just could not accept.

[Lord Coaker (Lab)]

My Lords, I thank my noble friend Lady Lister and the others who have signed these amendments, which we fully support. At its heart, there may be debate and disagreement with respect to this Bill. It is certainly contentious and sometimes we have large disagreements. Despite that, however, whatever the disagreements, we should do the right thing. That is why we support the amendments from my noble friend Lady Lister—because they seek to do the right thing by pregnant women.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, as we have heard, with these amendments we return to the issue of detention time limits in relation to pregnant women. As I explained last Wednesday, holding people in detention is necessary to ensure that they are successfully removed from the United Kingdom under the scheme provided for in the Bill, which is designed to operate quickly and fairly.

However, our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants back to their home country or to a safe third country will send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people-smuggling gangs facilitating their passage across the channel in small boats on the false promise of starting a new life in the UK.

Under the Bill, detention is not automatic. The Bill confers powers to detain, and the appropriateness of detention will be considered on a case-by-case basis. As regards pregnant women, we expect that anyone who is in the later stages of pregnancy and who cannot be removed in the short term will not be detained but would instead be released on immigration bail.

For women who are detained in the earlier stages of pregnancy, we already operate our adults at risk policy, where pregnant women are recognised as a particular vulnerable group. In all cases in which a pregnant woman is detained for removal, the fact of her pregnancy will automatically be regarded as amounting to level 3 evidence under the adults at risk policy, and thus the pregnancy will be afforded significant weight when assessing the risk of harm in continued detention. This means a woman known to be pregnant should be detained only where the immigration control factors that apply in her case outweigh the evidence of her vulnerability—in this case, the evidence of her pregnancy. Such control factors at level 3 are where removal has been set for a date in the immediate future or where there are public protection concerns.

The detention of a pregnant woman must be reviewed promptly if there is any change in circumstances, especially if related to her pregnancy or to her welfare more generally. Examples of specific welfare considerations that may need to be taken into account include the stage of pregnancy, whether there have been complications in the pregnancy, any known appointments for scans, care or treatment, and whether particular arrangements may be needed to facilitate safe removal. While in detention, pregnant women will receive appropriate healthcare.

I assure the House that, as now, the enforced removal of a pregnant woman must be pursued only where it can be achieved safely and there is no suggestion that her baby is due before the planned removal date. Additionally, pregnant women will not be removed from the UK if they are not fit to travel based on medical assessments.

Given the safeguards we have already built into the arrangements for the detention of pregnant women, the Government remain of the view that these amendments, however well-meaning, are not necessary. I am very grateful to those who have spoken in this debate for outlining their—I am sure—well-held concerns and for their thoughtful contributions. However, in light of what I have just said, I ask the noble Baroness, Lady Lister, to withdraw her Amendment 64. If, however, she is minded to test the opinion of the House, I invite noble Lords to reject the amendment.

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[Lord Coaker (Lab)]

I do not agree with the noble Baroness, Lady Lawlor. The amendments before us do not seek to punish children who are in a situation that many of them have no choice in. We have a duty to them as a humanitarian country with proud traditions. We have a duty to protect children, and that is what we seek to do. We need to remember that we are talking about children here. Whatever we do, I do not want to punish children for however they may have arrived here.

We fully support the amendments of the noble Lords who have spoken in this debate, particularly Amendments 87 and 89. Amendment 89, of course, is in the name of the right reverend Prelate the Bishop of Durham and it is one to which I have added my name, along with the noble Baroness, Lady Helic, and the noble Lord, Lord German.

I do not want to speak for long, but the point that was made is significant, especially when one looks at Clause 16. The Secretary of State can decide on the transfer date that an unaccompanied child be moved away from the local authority. The point made by the noble and learned Baroness, Lady Butler-Sloss, goes right to the heart of the issue: the local authority acts as the parent. If you move a child away from that situation, you are effectively making them an orphan. There is nobody responsible for them by law. Is that really what we want? Is that really what we are trying to achieve? We all agree that there is a problem, but we should not make children pay the price of trying to resolve it. That is not the right way of going about it.

As the right reverend Prelate the Bishop of Durham pointed out, the Secretary of State can direct the local authority to cease providing accommodation. There is no discussion between the Secretary of State and the local authority to view what is in the best interests of the child. The Secretary of State can compel the local authority—as the parent—to cease providing accommodation for a child, which will then take them into Home Office-provided accommodation. Within that Home Office accommodation, as the right reverend Prelate pointed out, we still have 186 children lost. They are missing. We have no idea where they are. I say it time and again but if the Home Office was a human being and a parent, that human being—the parent known as the Home Office—would be prosecuted. We would not tolerate losing children. We would not say that we are doing all we can. We would ask what on earth is happening that children are being lost. The local authority provides the best solution to looking after unaccompanied children in these circumstances.

The Home Office can demand that of the local authority with no justification. It can demand it with no idea of where these children are going to go and with no idea of the standards to be provided for them. They are simply to be housed in Home Office accommodation or wherever. That is not acceptable to the people of this country, irrespective of the fact that they understand there is a problem with the boats, and irrespective of the fact they understand that something needs to be done. They do not want is to see migrant children, or any child, having to pay the price for that. The Government need to sort it out in another way and ensure that all children in this country are properly protected.

[Lord Murray of Blidworth (Con)]

My Lords, Amendment 87 put forward by the noble Lord, Lord Scriven, seeks to ensure that all children covered by the duty in Clause 2 have the protections afforded to children under the Children Act 1989. No one can disagree with the sentiment behind his amendment. However, in a sense, it misses its intended target, as the 1989 Act does not impose obligations, duties or responsibilities on the Secretary of State but rather on local authorities. There is nothing in this Bill that alters those duties or responsibilities, particularly as regards an unaccompanied child—a point well made by my noble friend Lady Berridge.

That said, Section 55 of the Borders, Citizenship and Immigration Act 2009 already requires that the Home Secretary carry out her functions in a way that takes into account the need to safeguard and promote the welfare of children in the United Kingdom, and I can assure noble Lords that this will continue to be the case.

Subsection (3) of the proposed new clause brings me to the provisions in Clauses 15 and 16 which were referred to by the noble Baroness, Lady Meacher. She seeks to remove those clauses; the right reverend Prelate the Bishop of Durham seeks to amend them with Amendments 88A, 89 and 89A.

Clause 15 makes provision for the accommodation of unaccompanied migrant children in scope of this Bill. This clause confers on the Secretary of State a power to provide, or to arrange for the provision of, accommodation and other support to unaccompanied migrant children in England. While the clause contains no time limit on how long any child spends in Home Office accommodation, as I have said previously on a number of occasions, our clear intention is that their stay be a temporary one until they transfer to a local authority for a permanent placement. This is not detained accommodation, and the support that will be provided will be appropriate to the needs of these young people during their short stay.

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[Lord Murray of Blidworth (Con)]

My Lords, as we have heard, these amendments relate to the bans on re-entry, settlement and citizenship which are a key part of the deterrent effect of the Bill and send an important message that, if you enter the country illegally, you will not be able to build a life here.

Amendments 114 and 116, in the name of the noble Baroness, Lady Ludford, and spoken to so eloquently by the noble Baroness, Lady Brinton, seek to remove from the scope of the bans those who meet the duty in Clause 2 but who are under the age of 18.

As the Bill is currently constructed, anyone, including children, who meets the criteria of the duty also becomes subject to permanent bans on obtaining leave to remain, settlement, citizenship and re-entry. The application of the bans is irrespective of whether the child was complicit in the act of entering illegally. I hope that addresses the points noble Lords have raised in that regard.

The inclusion of children is to ensure that there is no perverse incentive for parents or others to put children in harm’s way by forcing them on to small boats or other dangerous methods in an attempt to gain entry to the UK. We want to send a clear message that children cannot be exploited and forced into making dangerous attempts to gain entry into the UK for the purpose of starting a new life here. Instead, the only way to come to the UK for protection will be through safe and legal routes. This will take the power out of the hands of criminal gangs and protect vulnerable people, including children.

[Lord Coaker (Lab)]

I thank the noble Lord for allowing me to intervene. Could he update the House, in light of what my noble friend Lady Lister said, on where we are with the child rights impact assessment?

[Lord Murray of Blidworth (Con)]

I was saving that until the end of my remarks, which I will do, if I may.

Under our proposals, anyone who has entered illegally will be removed, so it is unlikely that they will qualify for settlement or citizenship on the basis of long and lawful residence. I therefore take my noble friend Lord Moylan’s point, in that regard. However, the powers in the Bill provide the Secretary of State with the discretion to waive the bans in specific circumstances, as we discussed in Committee. In practice, these powers mean that the Secretary of State retains the discretion to waive the bans on obtaining settlement as well as to consider an application for citizenship where they consider that failure to do so would result in a breach of the United Kingdom’s obligations under the ECHR.

The Bill also provides additional discretionary powers to waive the bans on limited leave to remain and re-entry. The Secretary of State may waive the ban on re-entry if they consider that other exceptional circumstances make it appropriate to allow someone to return; these would include to ensure compliance with international agreements to which the UK is a party. Similarly, in the limited leave to remain area, there is a power allowing the Secretary of State to waive the ban where it is appropriate to ensure compliance with the ECHR or other international agreements to which the UK is a party, as well as where an individual who is seeking to remain in the UK has been allowed to return on the basis of other exceptional circumstances.

I am grateful to my noble friend Lord Moylan for again raising these interesting issues in the amendments he has tabled. They seek to change provisions in Clauses 30 to 36 so that the citizenship ban applies only to naturalisation and not registration routes. I am grateful to my noble friend for meeting me to talk about this. We had a useful discussion, although we did not quite reach agreement on these topics.

Our view is that registration is not just about recognising a person’s claim to British citizenship that they do not have the documents to demonstrate. Instead, a number of the registration routes within the British Nationality Act have requirements based on residence and many have good character requirements. It is not a case, as my noble friend has suggested, of merely acknowledging a status that a person already holds, but an opportunity for a person to demonstrate their suitability to become British.

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[Lord Murray of Blidworth (Con)]

Yes.

[Lord Coaker (Lab)]

That is clearly not the case. I accept that the Government Chief Whip did not exactly say that it would be put before your Lordships’ House today, but the expectation was that it would be. We have reached 7 pm; we are debating children’s issues and have done so all the way through Report, and we have not got the children’s impact assessment. It is utterly unacceptable for the Government to run a contentious Bill in this way. All the impact assessments were late, by and large. This is particularly late; it is no way to carry on. I can understand my noble friend Lady Lister’s upset and anger at this, and my noble friend Lord Kennedy raised it last week. The Minister knows, frankly, the anger and disappointment there is about this. I do not know what else to say, other than: what does “tomorrow” mean? Is it first thing tomorrow morning, or will it turn up at 8 or 9 pm, just before Report finishes? Perhaps the Minister can clarify what tomorrow means, and register the deep anger and upset in this House.

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[Lord Hodgson of Astley Abbotts (Con)]

If the noble Baroness had given me another two sentences, I would have finished. I was going to say we need guard-rails to make sure that future Ministers do not swerve off in directions hitherto undreamed of. It is because I think Amendment 131 represents those guard-rails that I support it.

[Lord Coaker (Lab)]

My Lords, we support the comments made by the noble and learned Lord, Lord Hope, and, in particular, the noble and learned Lord, Lord Etherton. Were the noble and learned Lord, Lord Etherton, minded to test the opinion of the House, he would certainly find us supporting him on Amendment 130.

[Lord Murray of Blidworth (Con)]

My Lords, it was remiss of me not to say a little about Amendment 126 and the other government amendments in this group, so I will do so now. These amendments, as I am sure Members of the House have realised, replace a “factual suspensive claim” with a “removal conditions suspensive claim”. Clearly, I and the department listened carefully to the contributions from noble Lords in Committee on these topics about these suspensive claims, in particular those helpful contributions from the Cross Benches. The changes in the category of suspensive claim are a direct reflection of what was said during those debates.

Currently, a factual suspensive claim can be raised where a mistake of fact has been made in deciding that a person meets the four removal conditions in Clause 2. This definition would prevent a claim being raised where a person had been incorrectly identified as meeting the four removal conditions due to a mistake of law. A removal conditions suspensive claim will instead provide for a claim to be raised where a person who has been given a removal notice informing them that they are subject to the duty to remove does not consider that they meet the removal conditions in Clause 2. The Secretary of State’s or Upper Tribunal’s consideration of a removal conditions suspensive claim will be on whether or not the removal conditions were met. I trust these amendments will be welcome, in particular to the noble Lord, Lord Anderson of Ipswich, who queried the scope of these claims in Committee.

I am grateful to the noble and learned Lords, Lord Etherton and Lord Hope, for setting out the case for the other amendments in this group. A serious harm suspensive claim is a claim that a person would, before the end of the relevant period, face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed from the United Kingdom to a country other than their country of origin. The serious and irreversible harm test is designed to be a high threshold and reflects the test applied by the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39 of the rules of court. “Serious” indicates that the harm must meet a minimum level of severity, and “irreversible” means the harm would have a permanent or very long-lasting effect. These amendments seek to change how Clause 38 of the Bill defines the risk of harm, lowering the threshold for a serious harm claim to succeed.

Amendment 130 would remove the requirement for the harm to occur in the period it will take for any human rights claim or judicial review to be determined from the safe third country. I suggest it is reasonable to expect the harm to occur over a defined period. The very purpose of the suspensive claim process is to prevent those persons subject to the duty to remove suffering serious and irreversible harm during the same period that their human rights claims are considered. Without this requirement, it would be difficult for decision-makers properly to assess the likelihood of any risk materialising. It would also risk abusive suspensive claims being made on the basis of a risk of harm that does not currently exist or that may not materialise until months or even years after a person has been removed from the United Kingdom.

Amendment 130 would also remove the requirement for the risk of harm to be irreversible. This would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the United Kingdom. Again, I would point out that the test applied by the Strasbourg court when considering applications for Rule 39 interim measures is one of serious and irreversible harm. So, the serious harm condition and requirement for the risk of harm to be both serious and irreversible reflects that test.

Lastly, Amendment 130 would also remove specific examples of harm that do not or are unlikely to constitute serious and irreversible harm. Setting out a clear approach regarding the interpretation of serious harm on the face of the Bill will, I suggest to noble Lords, ensure that decision-makers and the courts take a consistent approach in their consideration of what amounts to a risk of serious and irreversible harm. The examples in Clause 38(5) reflect existing case law and go no further than how we currently approach the consideration of these issues when raised in protection claims.

Amendment 131 would prevent amendments to the examples of harm that constitute serious and irreversible harm set out in Clause 38(4), as the noble and learned Lord, Lord Hope, so eloquently set out. I assure the House that the Government do not intend to diminish or remove the examples of harm listed in Clause 38(4).

Amendment 132 would remove the regulation-making power in Clause 39 to amend the meaning of “serious and irreversible harm”. This would result in the Secretary of State being unable to make amendments which reflect developments in case law. It is worth again pointing out that the Delegated Powers Committee raised no issue with this power in its report on the Bill.

Amendment 133 would alter the requirement for a serious harm suspensive claim to include “compelling” evidence of the risk of harm that a person would face if removed to a third country and replace it with a requirement to provide evidence that is “reliable, substantial and material”. I am very grateful to the noble and learned Lord for his remarks on the clarity of those three words, which, of course, will be available in Hansard should any questions arise as to what might amount to “compelling”.

However, although evidence that is compelling may also be defined as evidence that is reliable, substantial and material, a requirement for evidence to be compelling is more appropriate and succinct, given that it is the overall impact of the evidence provided, not any particular element or feature of it, that is relevant. The term “compelling” is sufficiently clear and well understood by decision-makers, and should remain unaltered. It is a term that has use in this area of the law. For example, evidence provided by people raising suspensive claims may differ dramatically in terms of volume and substance, but it is the overall impact of such evidence that is crucial when determining whether any claim has merit. For those reasons, the term “compelling” is more appropriate, providing decision-makers and the courts with the right degree of flexibility when making decisions on suspensive claims and appeals.

Finally, the amendments in the name of the noble Baroness, Lady Meacher, seek to extend the claim and decision periods provided for in Clauses 41 and 45. We consider the periods specified in the Bill to be fair and equitable, affording sufficient time to submit and determine claims, commensurate with the Bill’s objective to remove people swiftly from the United Kingdom. However, I remind the noble Baroness that, where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period.

For the reasons I have outlined, I respectfully ask that the noble Lords do not press their amendments.