Illegal Migration Bill

Lord Coaker Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Baroness Meacher (CB)]

I am sure that everybody wants me to sit down and not speak. I want to make just one point, taking us back to the initial remarks of the right reverend Prelate the Bishop of Durham; it is crucial. The Home Office knows that its age assessments are unreliable. It is therefore immoral—I was delighted to hear the right reverend Prelate use that word—to prevent young people having the right to appeal against those age assessments. It is also immoral to allow a child to be removed from this country while a judicial review of those age assessments is under way. I want us to focus on that point from the right reverend Prelate.

[Lord Coaker (Lab)]

My Lords, I thank the noble Baroness, Lady Meacher for her last comments; I am sure all of us agree with them.

I support Amendment 156A in the name of the right reverend Prelate the Bishop of Durham. It is a very important amendment. Of course, when people come forward with sensible and constructive suggestions which would improve an amendment that has been put forward, I have no problem with that, and I know the right reverend Prelate the Bishop of Durham has no problem with that either. In line with the remarks made by the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Hope, were the noble and learned Lord to move Amendment 158A, we would be minded to support that too, because it seeks to improve the Bill in the way that he said. It would be silly not to do so. I thank him for tabling it and hope he will spare me a heart attack from running around to make sure that it is all is in order.

The serious point is that the amendment would improve the Bill. As has been said, rather than restricting this to areas of law only, it opens it up to grounds of fact. It is a much more sensible, improved amendment, and it would be silly not to accept it. We will see what the House has to say should the noble and learned Lord, Lord Hope, be minded to move his amendment after Amendment 156A.

Nobody doubts the difficulties that can arise in respect of age assessments, particularly as many of the disputes for unaccompanied children arise around the claimed age of 16 or 17. The Nationality and Borders Act 2022 had relevant provisions, but those have been superseded by the Illegal Migration Bill. The Bill specifically allows for an individual, where there is a disputed age assessment, to be removed—in other words, an individual’s challenge to a decision by way of judicial review is non-suspensive. Amendment 156A, in the name of the right reverend Prelate the Bishop of Durham and others, seeks to address that injustice.

The Government will quote evidence saying that large numbers of individuals claiming to be children are not, and that the system is open to abuse. I point out that in the JCHR report the Helen Bamber Foundation states that, in 2022, 70 local authorities had 1,386 referrals to their children’s services of young people sent to adult accommodation or detention, but 63% were then found to be children. It is therefore deeply concerning that judicial oversight of these decisions is being ousted, and that they will then be removed from the UK while decisions are confirmed or not. As the noble and learned Baroness, Lady Butler-Sloss, says, how can that possibly be in the best interests of the child—something that has driven public policy in this country for decades?

Others have raised the child’s rights impact assessment. Since we got it only at 5 pm yesterday, it has been difficult to go through it, so I apologise for asking questions that would really be more appropriate in Committee. On the deportation of children—were the Bill to go through unamended—it may interest noble Lords for the Minister to explain why there has been a change of public policy with respect to the use of reasonable force. On the use of force by the Home Office under the Bill, page 4 of the impact assessment says:

“While this is technically not age restricted, use of force against minors is not permitted under current policy except where in the rare circumstances there is a risk of harm”.


I think we all accept that; if a child is going to hurt themselves, you necessarily expect someone to try to intervene in that circumstance. It goes on to say:

“Use of force is not currently used against minors for compliance/removal purposes. We do not envisage the use of reasonable force being used for such purposes under the auspices of the new bill”—


this is the important phrase—

“unless it is necessary as a last resort where other methods to ensure compliance have failed”.

That is a major change of public policy, included in a document that we are being asked to consider at the last stages of Report. The Government are saying that reasonable force can be used in the deportation and removal of children under the auspices of the Bill, rather than it just being used in the circumstances of preventing harm. Nobody would disagree that if you are preventing a child hurting themselves, of course you have to use force and intervene appropriately, but this does not say that. I repeat: it says

“as a last resort where other methods to ensure compliance have failed”.

The House deserves an explanation of why the Government not only have changed public policy with respect to the lack of judicial oversight of age assessment but are now proposing, to ensure that children can be removed under the Bill, to allow reasonable force to be used.

I will not do this but, if this were Committee, noble Lords can imagine all the questions we would ask about training, about what “reasonable force” means and so on. That is not available to us, which makes it even more important that we support the amendment from the right reverend Prelate the Bishop of Durham—with the improvement suggested by the noble and learned Lord, Lord Hope, if he moves his amendment as well—to protect children, some of the most vulnerable people who come to our shores.

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

My Lords, as we have heard, these amendments take us on to the provisions regarding age assessments. Given that, under Clause 3, unaccompanied children will be treated differently from adults, and given the obvious safeguarding risks of adults purporting to be children being placed within the care system, it is important that we take steps to deter adults from claiming to be children and to avoid lengthy legal challenges to age-assessment decisions preventing the removal of those who have been assessed to be adults. Receiving care and services reserved for children also incurs costs and reduces the accessibility of these services for genuine children who need them.

Assessing age is inherently difficult, but it is crucial that we disincentivise adults from knowingly misrepresenting themselves as children. Our published data shows that, between 2016 and March 2023, there were 8,611 asylum cases in which an age assessment was required and subsequently resolved. Of those cases, nearly half— 47%, or 4,088 individuals—were found to be adults. This percentage aggregates initial decisions on age taken upon arrival, comprehensive assessments and the outcomes of legal challenges. I make clear that only those assessed to be adults will fall within the duty.

Accordingly, Clause 56 disapplies the right of appeal for age assessments, which is yet to be commenced and was established in Section 54 of the Nationality and Borders Act 2022, for those who meet the four conditions in the Bill. Instead, those wishing to challenge a decision on age will be able to do so through judicial review, which will not suspend removal, and can continue from outside the UK after they have been removed. In answer to the noble Baroness, Lady Lister, I say that we are keeping the commencement of Section 54 under review, but I am unable to provide a further update at this stage.

Clause 56(5) provides the basis on which a court can consider a decision relating to a person’s age in judicial review proceedings. It provides that a court can grant relief

“only on the basis that it was wrong in law”,

and must not do so on the basis that it

“was wrong as a matter of fact”.

This distinguishes the position that the Supreme Court adopted in its judgment in the 2009 case of the Crown on the application of A v London Borough of Croydon, page eight. The intention is to ensure that the court cannot make its own determination on age—which should properly be reserved for those qualified and trained to assess age—but instead can consider a decision on age only on conventional judicial review principles.

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Moved by

[Lord Coaker]

168: After Clause 61, insert the following new Clause—
“Organised immigration crime enforcement(1) The Crime and Courts Act 2013 is amended as follows.(2) In section 1 (the National Crime Agency), after subsection (10) insert—“(10A) The NCA has a specific function to combat organised crime where the purpose of that crime is to enable the illegal entry of a person into the United Kingdom via the English Channel.(10B) The NCA must maintain a unit (a “Cross-Border People Smuggling Unit”) to coordinate the work undertaken in cooperation with international partners in pursuit of the function mentioned in subsection (10A).””Member's explanatory statement
This new Clause would give the National Crime Agency a legal responsibility for tackling organised immigration crime across the Channel, and to maintain a specific unit to undertake work related to that responsibility.

[Lord Coaker (Lab)]

My Lords, Amendment 168 would introduce a new clause, giving:

“the National Crime Agency a legal responsibility for tackling organised immigration crime across the Channel, and to maintain a specific unit to undertake work related to that responsibility”.

I thank the National Crime Agency for its briefing this morning, which was very helpful, and Home Office Ministers for helping to facilitate it.

Not for one moment am I suggesting in this amendment that any Minister, the Government or any Member of this House does not want to see the criminal gangs which exploit vulnerable people tackled and these criminals prosecuted. I also say at the outset that there will be many officials, officers and various agents working hard to do just that, and we should commend them for their work.

Apart from brief debates, the focus has been on deterring migrants, detention and deportation. All of that has been the subject of lively debate, disagreement and discussion. Clearly, that is a huge area of work which, so far, I suggest—hence my amendment—has not received the scrutiny it merits. This point was forcefully and powerfully made by the noble Baroness, Lady Meacher, in Committee.

There are many questions, some of which were raised in Committee. If I highlight some, I hope noble Lords will see the importance of this amendment and this short debate. One of the plan’s objectives is to concentrate on disrupting the provision of dinghies and equipment. How successful has that been in disrupting the flow of migrants? Tackling the criminal gangs requires international co-operation with countries across Europe and beyond. How is this co-ordinated? Are there any problems with such co-operation and agreement? How is the sharing of intelligence working? How is the sharing of data and joint policing working? Is that working effectively and do the Government need to do more to ensure that we achieve our common goal of disrupting these criminal gangs and deterring the flow of boats and migrants across the channel?

Can the Minister give us a figure for prosecutions? I have not seen the most recent and up-to-date figures; it would be useful for your Lordships’ House to hear them. Are those arrested from the boats and prosecuted the small fry, so to speak, or the big figures who run these horrific operations? We read in our newspapers that much of it is done and organised online—it is almost advertised. How effective have the social media companies been in taking such sites down? Do the law enforcement and intelligence agencies require government help to inject some urgency into what the social media companies do with these sites?

All of this requires the NCA to be supported by the Government here and across the continent more widely. My amendment, on which I will seek to test the opinion of the House at the appropriate time, asks whether one amendment within the whole range of amendments we have debated around this Bill can demonstrate the concern we all have regarding how we tackle these criminal gangs. It would allow the NCA and others to highlight what they are doing; it would allow us to shine a light on what is happening, and to assess it and inject a focus that will let us all achieve what we want.

We need to deal with the challenge that we face, but we need to ensure, as much as we can, working with our own agencies and our international partners, that the full weight of our state and others will be brought to bear on those who run these criminal gangs. They prey on the vulnerabilities of often desperate people, including children, and exploit others’ misfortune. There should be no hiding place for these modern-day smugglers.

[Lord Swire (Con)]

My Lords, Amendment 168AZA stands in my name. When I first tabled this in Committee, it was supported by my noble and learned friend Lord Garnier—who is his place and will, I hope, be saying something about it shortly—and my noble friend Lord Soames of Fletching. However, due to my complete incompetence, they seem to have fallen off this time, although I know that they are here—one physically and the other in spirit.

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I hope that I have been able to provide some comfort to my noble friend. He sought to pre-empt me by rehearsing the answers I would give from the Dispatch Box, but I hope that I have none the less been able to provide some comfort to him and that he will not feel the need to press his amendment.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his thoughtful and careful response, which I appreciate. I also thank the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, for their comments.

The Minister has put before us a whole range of facts and points that, frankly, we have not considered in any great depth as the Bill has gone through. That is the purpose of my Amendment 168. I accept the point of the noble and learned Lord, Lord Garnier, that it is not the most brilliantly drafted amendment, scrutinised by high-calibre lawyers to be put into the Bill. It does not seek to do that; it attempts at least to allow this House and the other place, I hope, to debate how we will tackle the scourge of criminal gangs.

I have no political desire to say that the Government do not care about tackling criminal gangs—of course they do—but there is a real need for us to debate the most effective way of doing that. As the noble Lord, Lord Paddick, pointed out, it is not a strategic priority under the 2013 legislation. Organised crime is where the Government always go when someone says that they are not giving enough priority to X crime—they say, “Of course we are, because the National Crime Agency has a responsibility to tackle any serious and organised crime”. It is an umbrella term, used when the Government are in trouble to say that they are dealing with it.

On the point made by the noble and learned Baroness, Lady Butler-Sloss, I spoke to the National Crime Agency this morning and of course it is currently prioritising this. However, I want that tested. I want a sense of urgency. I want the Government to wake up and put all the efforts of the state into tackling criminal gangs. What is going on is a disgrace. If we were in Committee, I would ask the Government about prosecutions. In drug arrests, often it is the small people doing very limited things who get arrested and prosecuted; no doubt many of the prosecutions and arrests the National Crime Agency will bring forward will be of the people driving the engine. Of course they should be arrested, but they are not the barons in this criminal activity. They are not the people living in great mansions and yachts, organising all this misery right across the continent. That requires international co-operation.

I do not know how much international co-operation is going on, but this Parliament should be asking what pressure is being put on the Government to tackle these international criminals. The Government will say that they are doing this and that, but I want to know what we are doing; it is by me banging on at the Dispatch Box and the Minister having to ask his officials, “What shall I say to Coaker when he gets up?”, that the Minister gets the system to respond. The Minister will have been briefed by the NCA, the intelligence agencies will have fed into that, and people will be watching this debate. That injects something into the system that causes it to react and work more effectively and efficiently. That is why my amendment is so important.

I say to the noble and learned Lord, Lord Garnier, that I know this is not the most brilliant amendment in the world, but my putting it down has meant that we are discussing an issue of real importance. If passed by this Chamber, as I hope it will be, it will go to the other place, which will be required—even if it rejects it—to discuss it again, as we will when it comes back here. I will not insist on a defective piece of legislation, in the end, going on to the statute book and I have said that we will not block the Bill. However, at one point during this Bill, I want all of us in this Parliament to discuss how we will tackle the scourge of criminal gangs, as well as concentrating on those fleeing persecution. I beg to move.

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[Baroness Lawlor (Con)]

My Lords, I oppose the amendments in this group that seek to defer the start date for deportation, including to Rwanda, unless and until the Supreme Court overturns the Court of Appeal judgment. My understanding—I stress I am not a lawyer —is that the Court of Appeal found that in principle the removal of people who enter the country illegally to a safe country is lawful, that the Government can designate countries as safe and that the processes for determining eligibility are fair.

However, I want to comment on a matter of principle that is at stake here. The courts interpret the laws of this country but do not make them. Parliament is the legislature, and constitutionally it legislates on laws proposed by the Government on the authority of the people who elect them. It is for this Chamber to scrutinise such laws. International agreements, by contrast, are freely entered into for a variety of reasons. The Government reach an agreement and, given national interests, can renegotiate or otherwise, as judged best. That is the prerogative of a sovereign power. In so far as national interests may clash with international conventions, it will be for the Government to establish the law and for the courts to uphold it.

As a scrutinising and revising Chamber, we should not stand in the way of the Government by deciding that we should await a court decision to decide the law. In our nearest neighbour, France—historically, the most similar country politically and constitutionally to this one—a telling debate has developed about the dangers posed to democracy by the courts obstructing the democratic will on matters particularly of asylum and repatriation. That debate is one that I hope we in this Chamber will not prompt on this side of the channel. I hope the Minister will reject this amendment, which would put the operation of the Bill in the hands of the courts, not Parliament and the elected Chamber.

[Lord Coaker (Lab)]

My Lords, our approach to the Bill has always been to respect the fact that the other place has a right to have its legislation passed. As the noble Baroness, Lady Lawlor, mentioned, we have a right to revise, scrutinise and pass amendments seeking to improve or change aspects of the Bill. It is my view and that of His Majesty’s Opposition that this Chamber has done its job—not blocking the Bill, however much we oppose it, but improving it. Numerous improved protections and safeguards have been passed, with requirements to uphold traditional judicial oversight and conform to domestic and international laws. In pursuing this, the proper constitutional function of the Lords, I ask of the other place only that sufficient time is given to allow proper scrutiny and thought to be given to our proposals.

In this context, we cannot support Amendment 168AB and the other amendments spoken to by the noble Lord, Lord German. Of course, we understand the motivation and agree with him about Rwanda and his other points, but it appears that the amendment would block, or at the very least significantly delay, the Bill. In the context of what I have said on a number of occasions, and of what my noble friend Lord Ponsonby has said from the Dispatch Box, we do not support that approach.

My Amendment 168BAA says that Schedule 1 cannot come into force for a country not found to be safe until a decision has been overturned on appeal to the Supreme Court. In other words, I ask the Government to confirm that there is no legislative mechanism that they can or will use to avoid or bypass the judgment of the Court of Appeal and deport people to Rwanda before the Supreme Court makes its decision. I am looking for the Minister to confirm the Government’s approach with respect to this, so that we have it on the record.

The Government may say that this is all unnecessary, and many of us thought that to be the case. However, in the media over the weekend, there were reports that the former Prime Minister, Boris Johnson, has urged the current Prime Minister to fast-track the implementation of the Rwanda migrant policy by changing the law to designate it a safe country. He said that the Government should use their majority in Parliament to use provisions in the Asylum and Immigration Act that would allow them to designate countries as safe. Were the Government to adopt that recommendation from the former Prime Minister, the implications would be clear. Can the Minister categorically rule that out? Presumably, were this to be done, it could be done by secondary legislation—the Minister will be aware of the debate about this on another matter.

Subject to such assurances, I will not press my amendment to a vote—but it would be helpful for the Minister to outline, alongside this, what happens if the government appeal to the Supreme Court fails. Why would this not throw the Government’s policy off course? Do the Government have a plan B, or are they simply ploughing on, in the expectation of a successful appeal? Given the dependence of the Illegal Migration Bill on detention and then deportation, and given the importance of Rwanda to the Government’s policy, it would be interesting to hear what, if anything, the Government plan for that.

Even today, we read that the Border Force’s own forecasts suggest that the boats pledge will fail. As we have said on numerous occasions, we all want to see this challenge met and dealt with—but efficiently and effectively, in a way that is consistent with our domestic and international laws and requirements.

[Lord Murray of Blidworth (Con)]

My Lords, it will come as no surprise to the noble Lords, Lord German and Lord Coaker, that the Government cannot support these amendments, not least as they are, simply, unnecessary. It may be that they were tabled as a hook to have a further debate about the judgment handed down by the Court of Appeal last week.

As noble Lords will recall, on Thursday afternoon last week, I repeated the Oral Statement that my right honourable friend the Home Secretary had delivered earlier in the day in the Commons; we heard from the noble Lord, Lord Coaker, then. To repeat what my right honourable friend said last Thursday, we respect the Court of Appeal’s judgment and welcome the fact that it unanimously found in the Government’s favour on the vast majority of the appeals brought against the policy. In particular, the Court of Appeal unanimously confirmed that removing asylum seekers to a safe country is entirely consistent with the refugee convention, including Article 31. Indeed, the court found that it is lawful in principle for the Government to relocate people who come to the United Kingdom illegally to a safe third country; that the Government can designate countries as safe; and that our processes for determining eligibility for relocation were fair. Members of this House contended that these issues were not the case in Committee and on Report, and we are glad that that feature has been confirmed by the Court of Appeal. That aspect of the judgment reaffirms the core principles underpinning the Bill and, on that basis, there is absolutely no reason why we should not continue with the scrutiny of the Bill and see it on to the statute book as quickly as possible.

On the finding of the court, by a majority decision—the Lord Chief Justice dissenting—on whether Rwanda is a safe third country, we have indicated that we will seek leave to appeal to the Supreme Court. The intention is for this application to be determined promptly. If leave to appeal is granted, it is then properly a matter for the Supreme Court to determine when the case will be heard. The Government are disappointed by the judgment, and it is also disappointing for the majority of the British public who have repeatedly voted for controlled migration, and for all those who want to see us deliver on our moral and democratic imperative to stop the boats.

Turning to the amendments, what does the judgment mean for the commencement of the Bill? I will make two points. First, on the core scheme provided for in the Bill—the duty to make arrangements for removal in Clause 2 and the other provisions directly tied to it—our position has always been that we will seek to implement these provisions as soon as practicable. The decision of the Supreme Court and the operation of our ground-breaking partnership with the Rwandan Government are important factors relating to that question of practicality. Clause 67 already provides for Clause 2 and the other elements of the core scheme to be commenced by regulations, so we are not bound to any particular date, and it remains the Government’s position that we will commence these provisions as soon as practical.

Secondly, there are a number of free-standing provisions in the Bill not directly tied to the duty in Clause 2. These include provisions in Clauses 11, 15 to 20, 29 to 36 and 57 to 61. There is no good reason why the commencement of these provisions should be tied to the outcome in the Supreme Court. Indeed, in relation to Clauses 29 to 36, which provide for the bans on re-entry, settlement and citizenship, the Bill provides for these clauses to come into force on Royal Assent.

In answer to the noble Lord, Lord Coaker, I do not propose to comment on the recent article written by the former Prime Minister in the Mail; the views expressed in it are a matter for him. Having had this further opportunity to debate this important judgment, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Coaker (Lab)]

I thank the Minister for his response. You can understand the concern that was raised by having a former Prime Minister ask the Government to consider bypassing the court judgment by using secondary regulations to give them the power to do that under the Asylum and Immigration Act. All I was asking for is a comment on that. I take heart from what the Minister said because it seemed that, despite what he said about the former Prime Minister, the important part of it was that the Government would of course abide by the consequences of the Court of Appeal judgment, subject to the further appeal, if granted, to the Supreme Court.

[Lord Murray of Blidworth (Con)]

As I have already said, I am afraid that I cannot comment further—tempted though I am—on what the former Prime Minister said. The noble Lord has the sense of the Government’s response.