Illegal Migration Bill

Lord Davies of Gower Excerpts

2nd reading
Wednesday 10th May 2023 Lords Chamber

[Lord Etherton (CB)]

My Lords, I acknowledge at the outset the great assistance that I have received in discussions with Dr S Chelvan, a barrister with particular expertise and experience in immigration law.

It is important to appreciate where we are going with UK legislation on refugees. There are four resettlement schemes operated by the United Kingdom: Syria, Afghanistan, Ukraine and Hong Kong. Critically, under the Immigration Rules, there is no asylum visa route for an individual refugee to enter the United Kingdom and claim asylum. This means that, unless a person is within one of the four resettlement schemes or asylum is sought by someone already lawfully present in the United Kingdom, the refugee’s arrival in and entry to the United Kingdom will inevitably be illegal.

That means that they will fall within category 2 refugee status under the Nationality and Borders Act 2022. They will therefore be subject to accelerated and punitive procedures and, even if they fulfil the refugee definition, they will not have the benefits of settlement and nationality afforded to group 1 refugees. They would, however, be able to make a human rights claim or a protection claim, albeit under strict constraints, including very short time limits. If they have arrived after 7 March 2023, they will almost inevitably be caught by the four conditions for mandatory removal under Clause 2 of the Bill. It is obvious and must be emphasised that this is not a small boats Bill. The provisions of the Bill would affect all who seek refugee status in this country and are entitled to the protection of the 1951 convention.

In a move away from even the limited rights of category 2 refugees under the 2022 Act, the duty under Clause 2 to make arrangements for their removal is unaffected by the making of a protection claim or a human rights claim or an application for judicial review. Any protection claim or human rights claim is by statute inadmissible and carries no right of appeal.

Removal must be to one of the countries specified in Schedule 1, but the only country there specified with which the United Kingdom has an arrangement for taking such asylum seekers is Rwanda. Such asylum seekers will be detained, as provided in Clause 10, and, under Clause 11, that will be for

“such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the … removal to be carried out”.

There is no statutory time limit on such detention. An asylum seeker who is subject to removal under Clause 2 has the ability to make a suspensive claim—either a serious harm suspensive claim or a factual suspensive claim—but that does not affect the legality and finality of the obligation of the Secretary of State to make arrangements for removal.

Can it get any worse for a refugee seeking asylum in the United Kingdom? It can, because even in relation to safe and legal routes—the four resettlement routes—Clause 58 says:

“The Secretary of State must make regulations specifying the maximum number of persons who may enter the United Kingdom annually using safe and legal routes”.


Even in the case of refugees from war or armed conflict, the Government have failed to provide a safe route in relation to Sudan. We appear to be witnessing the playing out of a policy continuum under which increasing barriers for refugees to the United Kingdom are being imposed with an ultimate goal of preventing all refugees save those who have already applied under the four resettlement schemes.

It is against that background that I wish to illustrate the operation of the current and proposed legislation by reference to LGBT refugees. It is well established that LGBT refugees are within the protection of the refugee convention. Not only is that the view of the UNHCR but it has been decided by our own courts at the highest level. Unless an LGBT person is already legitimately in the United Kingdom and claims refugee status while here or happens to be within one of the four resettlement schemes, they will, as I said, almost inevitably be caught by the four conditions in Clause 2, so the Secretary of State will be under a statutory duty to make arrangements for their removal. They cannot make a protection claim, a human rights claim or an application for judicial review to prevent the operation of that duty. They will be detained for as long as the Secretary of State considers “reasonably necessary” to enable the removal to take place, without any statutory time limit. None of that is affected by the ability to make a serious harm suspensive claim.

They have to be sent to one of the countries in Schedule 1. Here, however, is a difficulty. There are many countries on that list in Schedule 1 that have anti- LGBT laws or where, even if such laws are not actively enforced or there are no express laws, there exists a social environment where there is anti-LGBT persecution with impunity and a climate of fear for LGBT people. This is particularly true of those Commonwealth countries, of which there are many, where our colonial history has had the civilising consequence of bequeathing brutal anti-LGBT laws and prejudices. Such laws or prejudices exist in the following countries specified in Schedule 1: Albania, Brazil—particularly in relation to trans people—Gambia, Ghana, Hungary, Jamaica, Kenya, Liberia, Malawi, Mali, Mauritius, Nigeria, Poland, Rwanda, Sierra Leone and, in some respects, South Africa. The only country with which the United Kingdom has reached agreement is Rwanda.

[Lord Davies of Gower (Con)]

I point out to the noble and learned Lord that the speaking time is six minutes.

[Noble Lords]

Advisory.

--- Later in debate ---

[Lord Davies of Gower]

Advisory.

[Lord Etherton (CB)]

I am nearly at the end.

The Foreign Office travel advice includes the following:

“Homosexuality is not illegal in Rwanda but remains frowned on by many. LGBT individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals”.


While the search is on for some other more appropriate safe country for LGBT refugees fleeing persecution, which may take years or may never be achieved, the refugee is detained without limit of time. What an appalling indictment of our failure to comply with our international legal obligations in breach of the rule of law and of our lack of humanity and empathy.

Illegal Migration Bill

Lord Davies of Gower Excerpts

2nd reading
Wednesday 10th May 2023 Lords Chamber

[Baroness Helic (Con)]

My Lords, I should perhaps declare an interest as someone who has experience of fleeing their home and country of origin.

I share my noble friend the Minister’s desire to see a fair, safe and controlled immigration and asylum system. I am grateful to him for speaking to me about the Bill. However, I do not believe, I am afraid, that the Bill is likely to be successful in its stated goals or is moral at its core.

I have three particular concerns: on modern slavery; on the rule of law; and on our international standing and commitments. First, modern slavery is an area where this party and this Government have led the way in the past. As other noble Lords have already warned, the provision to remove modern slavery protections for migrants is deeply worrying. Our former Prime Minister, Theresa May, who delivered much of our modern slavery legislation, noted that, as it stands, the Bill

“will consign victims to remaining in slavery”

and

“will give the slave drivers and traffickers another weapon to hold people in … slavery and exploitation”.—[Official Report, Commons, 26/4/23; col. 809.]

It will remove protections from the very people most at risk of being trafficked and force them underground, preventing them from coming forward to report. Rather than providing a deterrent, it would make it harder to identify and prosecute people traffickers who bring people into the United Kingdom illegally.

Secondly, on the rule of law, I am concerned by the limits that the Bill places on judicial oversight, both domestic and international. I am alarmed by any measure that gives the Government unchecked power to detain—including children, reversing a measure implemented by the coalition Government—and deems human rights claims inadmissible in courts. Restricting the oversight and appeal role of the British courts is a worrying precedent. Threatening to ignore judgments of the European Court of Human Rights breaches our international obligations and undermines an important institution that was created by British lawyers in the aftermath of the atrocities of the Second World War and which has been at the forefront of efforts to uphold the rule of law across Europe, including in relation to Russia.

The UN Refugee Agency has been clear that by, in effect, banning asylum claims in the United Kingdom and removing all safeguards on refoulement, the Bill breaches the UK’s international legal obligations under the refugee convention, the 1954 Convention Relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness and international human rights law, and would significantly undermine the international refugee protection system. It is also worth stressing that the Bill, building on the Nationality and Borders Act, does not only prevent people who arrive on small boats accessing the asylum system; it prevents people who arrive by perfectly safe methods—even those who come with a visa—from claiming asylum. In practice, it closes down the UK’s asylum system.

This feeds directly into my third point, which is about the effect of the Bill on our international commitments and international co-operation. Two months ago, the Integrated Review Refresh 2023 noted that the United Kingdom

“has a higher interest in an open and stable international order … based on respect for the UN Charter and international law”.

It recognised that this

“creates the optimum conditions in which the UK can secure its interests”

and

“helps us deal with challenges like migration”.

Undermining the jurisdiction of international courts and ignoring our international legal commitments does not serve our interests. The only way to tackle global, transnational challenges such as immigration is through international law, co-operation and shared responsibility. Leading a race to the bottom where we all try to offload our obligations on to others will not help, bearing in mind that 74% of all refugees worldwide are hosted by low- and middle-income countries with far fewer resources than our nation.

In March, the Home Secretary said that

“there are 100 million people around the world who could qualify for protection under our current laws. Let us be clear: they are coming here”.—[Official Report, Commons, 7/3/23; col. 152.]

She must be aware that more than half of that population are internally displaced people who have not left their country of origin. Of the 34 million refugees globally, three-quarters are hosted by neighbouring countries. When the alternative is torture, death or starvation, refugees will seek to cross whatever obstacles are placed in front of them. If we want to reduce the pressure on our borders, we need to put more energy into diplomacy, international partnership and co-operation to address the conflicts and other root causes that are forcing people to flee.

Just over a year ago, I led a debate calling for increased support for Ukrainian refugees. I said:

“No one wants to become a refugee or to leave their home; it is a journey of fear, uncertainty, peril and loss”.—[Official Report, 6/4/22; col. GC 295.]


I reflected on the extraordinary support that I received 30 years ago and which I saw being extended by people across the United Kingdom to Ukrainian refugees. I hoped that we could take the lessons learned from our compassionate response to Ukraine. Instead, we face an outright ban on asylum. For most refugees, safe and legal pathways to the United Kingdom do not exist.

We should seek to build an asylum and immigration system based on the rule of law and dignity, of sustainable systems which could be replicated globally. His Majesty’s Government should always defend international law, which makes us all safer, including the right to asylum. We should create the long-promised safe routes for refugees, address the asylum backlog so that decisions are made quickly and firmly but fairly and not arbitrarily, and strengthen international co-operation to reduce the push factors, from climate change to insecurity, which drive people to make perilous journeys in search of safety. That is how we will end the dangerous channel crossings.

[Lord Davies of Gower (Con)]

My Lords, I suggest that the debate be now adjourned until 7 pm.

Illegal Migration Bill

Lord Davies of Gower Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

Surely noble Lords can speak only if they have been present throughout the debate from the very beginning.

[Lord Davies of Gower (Con)]

The noble Lord is absolutely right—that is correct.

Illegal Migration Bill

Lord Davies of Gower Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Davies of Gower (Con)]

Could I just ask the noble and learned Lord to ask his question, please?

[Lord Etherton (CB)]

My first question is: does the Minister not agree that that is quite different from the case that the noble Lord, Lord Cashman, raised, where a person is not from a country listed in Section 80AA(1) but from another country? There is a separate provision for that in relation to removal to a Schedule 1 country. Does the Minster not agree that, although Clause 5(5) deals with the Section 80AA point, there is no equivalent to that exception in relation to a situation where somebody comes from a non-EU country that is a non-safe place and the consideration is now to move that person to a Schedule 1 country? What my amendment is dealing with is not the Section 80AA situation but the situation categorised by the noble Lord, Lord Cashman, where a person from a non-safe European state comes here and is threatened to be removed to a Schedule 1 country. All I said—and I am asking the Minister to acknowledge this—is that there should be a similar provision for that situation, for the exclusion of those countries that are facing proceedings under Article 7. That is it.

Illegal Migration Bill

Lord Davies of Gower Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Baroness Stowell of Beeston (Con)]

I will finish this point.

[Lord Davies of Gower (Con)]

Will my noble friend please ask the question?

[Lord Ponsonby of Shulbrede (Lab)]

I do not question the most reverend Primate’s motives in putting down this amendment. It is a shame that we are ending like this, because it has been a wide-ranging debate about aspirations beyond the Bill. I have certainly never seen an archbishop move an amendment at any stage of a Bill, let alone the latter stages of such a contentious Bill. As the noble Lord, Lord Bourne, said, this has been a passionate and fractious debate; nevertheless, people have raised their eyes—if I can put it like that —to talk about the wider issues we are trying to address through the Bill and into the future. The most reverend Primate’s amendment is about strategy.

My colleague quickly checked on the phone, and I cannot help noting that the noble Lords, Lord Horam, Lord Waldegrave and Lord Green, all voted for the Government in the previous vote and have all indicated that they will be supporting the most reverend Primate in the forthcoming vote. The noble Lord, Lord Horam, is shaking his head; I beg his pardon.

Nevertheless, this has been a remarkable debate, partly for the reason that it has been initiated, and also because it is ending a Bill which has really caught the attention of the wider public. We are dealing with fundamental issues concerning the way we manage our asylum system. The Government and the Opposition acknowledge that there are fundamental problems with the way we deal with these very vulnerable people.

There has been a number of speeches in this debate about Britain taking a leading role in trying to come up with a migration system which addresses these fundamental problems. I have been in this place a long time—some 33 years—and in that time I have been on the OSCE, the Council of Europe and the relevant committees dealing with migration issues. These are fundamentally problematic issues. Here, we are addressing an amendment moved by the most reverend Primate the Archbishop of Canterbury that tries to put a strategy in place, and I invite the Minister to accept it.