Nationality and Borders Bill

Lord Dubs Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

Moved by

[Lord Dubs]

103: Clause 31, page 34, line 45, leave out subsections (2) and (3)
Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights that the standard of proof for an asylum seeker to establish a well-founded fear of persecution under the Refugee Convention should remain a composite standard of “reasonable likelihood”.

[Lord Dubs (Lab)]

My Lords, I shall speak to Amendments 103, 104 and 111 in particular, but before I do so, I want to say that, having listened to the Minister in the previous debate, it seems that he has almost answered the points that I was going to make. I do not want to be repetitive, because the Chief Whip asked us to be brief. A lot of the key points of principle that were covered in the previous group of amendments are also covered in this group starting with Amendment 103, so I shall be brief.

I was a little surprised—and this has gone right through our debates on this Bill—at the Minister saying that we can interpret the Geneva convention as we wish, that we are quite free to do it and that the UNHCR does not have any authority to indicate what is right and what is wrong in terms of the convention. I had always been brought up to accept that the UNHRC was in fact the guardian of the Geneva convention, and that it is the authority rather than each country doing its own thing. If each country does its own thing by interpretation, we shall not have an international convention at all and achieving international agreement will be much more difficult. Having said that, I was dismayed at the Minister’s view and equally dismayed when he said that the Bill would be even worse if it was his own Bill—I think that is what he said. I hope then that he does not have too much influence on things.

On Amendments 103 and 104, as I understand it from our deliberations in the Joint Committee on Human Rights and what it says in its report—I am still a member of that committee and contributed to the reports—the decision-maker need only be satisfied that there is a reasonable likelihood of persecution as defined by the refugee convention. That seems to be the present practice. However, the Bill seeks to change that—it talks about things like the “balance of probabilities”—by limiting the effect of the reasonable likelihood of persecution provision and making it harder to achieve an effective decision about asylum in favour of the applicant.

It seems to me that the Government do not like the Geneva convention and are seeking by a series of measures throughout the Bill to weaken it. That is clever if you want to get rid of the Geneva convention. The Government will say that they stick by the convention, but by being able to interpret it in all sorts of ways one can effectively weaken it to the point where it would be a different convention from the one which we have traditionally come to accept. I think that is what the Government are trying to do. I do not think the Minister will necessarily agree, but I suspect that is what it is.

Amendments 103 and 104 relate to the change from “reasonable likelihood” of persecution to a “balance of probabilities”, which is defined in various ways which I shall not go through now. Amendment 111 is about criminality and serious crime. It has always been possible, even within the Geneva convention, for Governments to deny asylum to people who have committed a very serious crime. That has been the practice. It has not happened very often, but the Government are now seeking to redefine that provision so that a serious crime becomes something lesser than what we traditionally regarded as a serious crime—in other words, again weakening the Geneva convention. That is regrettable. I do not think that the Government had any need to weaken the convention in this way, by a process of interpretation, so I regret that, which is why I am keen on these and other amendments.

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[Lord Wolfson of Tredegar (Con)]

On the first point, the position at the moment is that you have a reasonable likelihood test; what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called the holistic test. What is going on here—and what should be going on—is that we have sought to identify a number of discrete questions and we have applied the appropriate standard of proof to each of them. On the second point, the noble Lord is absolutely right in that a serious crime was defined as one that meant 24 months’ imprisonment and we are now defining it as 12 months. We believe that that is appropriate and remains consistent with our refugee convention obligations.

I am not sure whether I should formally have said that I invite the noble Lord to withdraw the amendment.

[Lord Dubs (Lab)]

I thought we were going to have more Q&A. I am grateful to the Minister for his fairly clear explanation of why the Government are doing what they are doing. I am not totally satisfied that we have heard the full reason. Over the years, we have not had any arguments put to us that the 1951 convention was not working; the arguments have been elsewhere. Suddenly, we are given these different considerations for why we should pass this. However, we will be back on Report, having listened to what the Minister has said. In the meantime, I beg leave to withdraw the amendment.

Amendment 103 withdrawn.

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[The Lord Bishop of Durham]

My Lords, I specifically support Amendment 117, to which I have added my name, but I support all these amendments around family reunion. I declare my interests in the register around RAMP and Reset as before.

Acknowledging that when people are forcibly displaced they end up in different places, often having lost family members, UNHCR research has shown that families often set out together but become separated along the way. Reconnecting those families, or, where some family members are lost, reconnecting people with other relatives, really matters. In seeking protection, those seeking asylum want to do so alongside the family that they have. This is better for individuals—their well-being and their future prospects—and for the community as a whole. It is therefore also better for social integration.

In my conversations with refugees and people seeking asylum, the whereabouts and safety of family is generally the number one preoccupation that they raise. This concern overrides everything. When we speak about family, it is not purely spouses and children but aunts, uncles, cousins, nephews and nieces. Organisations working with refugees, such as Safe Passage, know from their work that, when people have no safe route to reach their families, they are more likely to risk their lives on dangerous journeys to reach loved ones. Many of these individuals are children and young people seeking to reunite, often with their closest surviving relatives.

No doubt the Minister will give us the numbers again of how many families have been reunited under it, but existing refugee family reunion is narrow in scope. The threshold to be met under paragraphs 297 and 319X of the Immigration Rules for an adult non-parent to reunite with a child is “serious and compelling circumstances”, which is extremely difficult to meet in practice.

I appreciate that we cannot offer protection to all extended family members, but we can do this for some out of kindness, and it would divert them from using criminal gangs. Once they arrived in the UK, they would enter the asylum system to have their claim for protection decided.

Of course, we would prefer people not to have to make the dangerous journeys as far as Europe, and I expect that the Minister will cite pull factors to Europe as a rebuttal. With an ambitious resettlement scheme—which we will come back to—a broader definition for family reunion, as well as an increasing commitment to aid and constructive engagement with our near neighbours, I believe that any such pull factor to one safe route will be mitigated. The alternative is that people come anyway but in an unplanned way, risking their lives and causing further trauma.

I urge the Minister to at last give way on one item: consider this proposal as a pragmatic response to the need to find durable solutions for desperate people dying on our borders in order to reach their family.

[Lord Dubs (Lab)]

My Lords, I support all these amendments. I have signed three of them, and the only reason I did not sign the fourth was because my name did not get there in time; there were already four names on it.

Let me talk most particularly for the moment in favour of Amendment 117. In one sense, we are going back to the Dublin treaty, Dublin III and the discussions we have had in the past. At the risk of taking up an extra minute, I will go in for a little moment of history. We had an amendment—which passed in this House and the Commons—to the 2017 Act which said that the Government should negotiate to continue the Dublin III arrangements even after we left the EU. That passed in the 2017 Act.

We thought we were there—but along came the 2019 Act, and it was taken out again. We could not understand why. It was fairly innocuous in one sense, but it was pretty important in another. I was summoned to a room, I think here, and there were three Ministers: the noble Baroness; Brandon Lewis, who was the Immigration Minister; and one of the Ministers from the Commons. There were seven other officials there, one from the Cabinet Office, and just me arguing with them—I thought the odds were pretty fair. Anyway, I was assured that we would lose nothing by abolishing that provision in the 2019 Act. It was never explained to me why the Government wanted to abolish it. If it was going to make no difference, why abolish it? If it was going to make a difference, why take a step backwards?

By all standards, the Dublin III provisions for family reunion were working—not brilliantly, not fast enough and not for enough children, but they were working. I was assured that everything would be all right, but I am afraid that the evidence is not there. We cannot say often enough that where there are safe routes, the traffickers do not get any business. If we close the safe routes, the traffickers get business. It is logical, even for the Tory party. It is market economics, is it not? I do not understand how that can be contradicted.

I am worried about quite a number of the Government’s provisions. The Minister wrote a letter, which I have here; it is slightly depressing, but very helpful. However, I am worried that, on the whole, children in particular who got to Europe fleeing for safety are going to be ignored. I have not been there recently because of the pandemic, but the last time I visited what remains of Calais, people were sleeping under tarpaulins in terrible conditions. It was very depressing, and there were very depressing scenes on the Greek islands. I went to Lesbos, to Moria camp, just before the big fire there. Again, I am out of date now, but I understand that it has not got better. There are young people there who are desperate to join family members in this country. There are not many of them altogether, but there are enough for it to be an important point of principle. Surely, our test of humanity must be whether we support family reunion and whether refugee children can join their families here.

Safe Passage—a small but brilliant NGO with which I am happy to work and be closely associated—suggests that the majority of the children who qualified under Dublin III in the past would not qualify now. For all the optimistic noises coming from the Home Office, the fact is that the situation has got much more difficult in terms of getting children here.

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[Lord Green of Deddington (CB)]

My Lords, I think that it is perhaps time for a different view from this side of the Committee. I will briefly deal with Amendments 112 and 113.

Amendment 112 refers to “Refugee family reunion”. It is a wide-ranging amendment, and I suggest that it is unnecessary and not very wise. We already have provisions for the family members of refugees to come here. As others have mentioned, these allow partners and children under 18 of those granted refugee status or humanitarian protection to join them here, provided that they formed part of the family unit before they left their own country. That seems a reasonable basis for this provision. Of course, the family members do not receive refugee status themselves, so their leave will expire at the same time as that of the sponsor. But individuals on such visas are allowed to work, study and have recourse to public funds, which also seems entirely reasonable.

Indeed—I will save the Minister a task—we have granted visas to more than 60,000 family members of refugees since 2010. Since 2015, over half of those were to children. This is already a very substantial move in that direction. But widening the criteria still further would, of itself, massively increase those numbers and add still further to the pull factors drawing people to the English Channel, a route that has very little support among the public.

There is a very strong case for not widening these refugee routes. In the real world, we simply do not have the necessary infrastructure, service capacity, housing or school places. Many refugees are being put into the poorest parts of the UK. In this context, the Home Secretary said to a House of Lords committee on 27 October last year:

“We simply do not have the infrastructure or the accommodation.”


A Member of the other House said of his area:

“The impact on housing pressure at local level could cause further tensions if there is resentment about refugees receiving housing assistance at a time of acute … housing shortage.”—[Official Report, Commons, 27/4/21; col. 40WH.]


In setting our arrangements for refuges and their families, we must surely give due consideration to their impact on our own vulnerable communities.

[Lord Dubs (Lab)]

I am grateful to the noble Lord for giving way. I just put this to him: if children are coming to join family members here, the norm would be that the family member has accommodation to provide for them, so the argument about housing does not apply to that group of people.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken to this group of amendments. I hope in what I am about to say that there will be at least some acknowledgment of the compassion and decency that we have shown as a country in the last few years—actually, the last few decades. It is such a hallmark of us as a nation. I also pay tribute to the noble Lord, Lord Dubs. Believe it or not, we like each other very much—we just disagree on quite a lot. But we have worked together in a civilised and friendly manner over the last few years, and long may that continue.

On the point about decency and compassion, Amendment 112 aims to expand the scope of the refugee family reunion policy. Under that policy, we have granted visas to over 39,000 people since 2015, over half of them being children, as the noble Lord, Lord Green of Deddington, pointed out. So, to answer the noble Baroness, Lady Jones of Moulsecoomb, we have looked into our hearts. We already have several routes for refugees to bring family members to join them in the UK, and it is important to carefully consider the impact of further amending our policy.

Family unity is a key priority, but noble Lords will know that we have a range of aims further to this, including ensuring that we have reasonable control over immigration and that public services such as schools and hospitals—and I think that it was the noble Lord, Lord Green of Deddington, who talked about the infrastructure of this country—are not placed under unreasonable pressure. However, I recognise that in some cases there will be exceptional and compassionate circumstances which warrant a grant of leave. To answer the noble Baroness, Lady Ludford, the guidance on exceptional circumstances will be published in due course. That is why our policy ensures that there is always discretion to grant visas outside the Immigration Rules, which may cater for the sorts of cases that do not immediately fall within our legal framework.

In terms of allowing child refugees to sponsor family members under this proposed clause, noble Lords will at least grant that I have been consistent in opposing that sort of policy, because of its negative consequences. It is highly likely that this would create further incentives for more children to be encouraged—or even, sadly, forced—to leave their family and risk extremely dangerous journeys to the UK in order to sponsor relatives. Such an approach would open children up to a huge exploitation risk, which completely contradicts the hard work and commitment of the Home Office in protecting children from modern slavery and exploitation. We refuse to play into the hands of criminal gangs, and we cannot extend this policy to allow child refugees to sponsor family members into the UK.

Beyond this, many of the conditions set out in this new clause are already included in our current family reunion policy and are taken into consideration when decisions are made inside or outside the rules. All noble Lords in Committee should have a copy of the various routes. Our prime consideration in all cases is the best interest of the child in question—and so it should be. As the number of visas we have granted under this policy reflects, we are committed to maintaining family unity for refugees. Caseworkers are encouraged to use discretion in considering whether entry may be granted in family reunion cases. By setting out conditions in primary legislation, we would lose the individuality of consideration, and the discretion of caseworkers would be void. I can assure the Committee that all relevant elements of each case are thoroughly considered on their merits under this policy, and there is no need to set it out in statute.

I turn to Amendment 113, on family reunion for unaccompanied asylum-seeking minors. I cannot support this proposed new clause. It tries to recreate the EU’s Dublin regulation in UK law with respect to unaccompanied children who have claimed asylum in an EEA state but have family members in the UK. When the UK sought to raise these matters with the EU, our proposals had very clear safeguards for children. This proposed new clause has none. It creates entitlements to come to the UK to claim asylum if the minor has specified relatives but it fails to consider the individual needs of the child. It does not consider whether the UK relative can actually take care of the child or whether the child would be better placed with a relative, potentially an even closer relative, in another safe EEA state.

The other point about this proposal is that it does not work unilaterally. I am sure the noble Lord will concur with that. It requires co-operation from EEA states. It is not possible to legislate through this Bill to take children out of other countries’ care and support mechanisms or their asylum systems. That requires agreement between states, which might not be possible and is certainly unlikely in the timescale of six months set out in the clause.

I see that the noble Lord, Lord Dubs, is about to stand up. Might I finish this point about the EU before he does? As he knows, we sought to negotiate with the EU on UASC family reunion and continue to talk to it on this important issue. However, at this point I cannot comment further.

[Lord Dubs (Lab)]

I am grateful to the Minister for giving way. I hate to go over the past, but the whole point of having the Dublin III treaty in the 2017 Act—which was taken out in the 2019 Act, as I said—is that it has to be based on reciprocity. That was a sensible way forward; it is why we wanted to go down that path. That was the path blocked by the Government in the 2019 Act.

[Lord Hylton (CB)]

The noble Baroness has twice in my hearing given the figure of 39,000 humanitarian visas for family reunion. Between Second Reading and Committee, I asked a Written Question on how many of those had been taken up, because I foresaw that force majeure, poverty or some other reason would prevent many of them actually being used. I got one of those answers saying, “We really cannot find or give you any figures.” Can the noble Baroness be a little more helpful on the real results of those visas?

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Moved by

[Lord Dubs]

115: After Clause 37, insert the following new Clause—
“Unaccompanied refugee children: relocation and support
(1) The Secretary of State must, within six months of the day on which this Act is passed, make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from countries in Europe.(2) The number of children to be resettled under subsection (1) must be determined by the Government in consultation with local authorities.(3) The relocation of children under subsection (1) is in addition to the resettlement of children under any other resettlement scheme.”Member’s explanatory statement
This new Clause introduces a safe route for unaccompanied children from countries in Europe to come to the UK.

[Lord Dubs (Lab)]

My Lords, this amendment is also about children, but it is about children who are in Europe and do not have family anywhere. It is similar to an amendment that was passed by this House and became Section 67 of the Immigration Act 2016. There is a long story to that; I will not waste noble Lords’ time on it now except to say that there was quite a lot of resistance then on the part of the Government but, eventually, the amendment was passed and Theresa May, the then Home Secretary, accepted it.

However, as I understand it, Mrs May did so under the pressure of public opinion because, at the time, people were horrified when they saw dinghies and people drowning in the Mediterranean. They saw a little Syrian boy, Alan Kurdi, drowned on a Mediterranean beach. I think that woke up public opinion. The public then came onside and decided that we as a country can do this for unaccompanied child refugees. That is a summary of the history there. Theresa May then summoned me again to see her and said that the Government were prepared to accept the amendment.

The Government then decided that they would cap the number; it was capped at 480, I think. The Government’s argument was that they could not find more local authorities to provide foster families and foster parents to take in more children—a point that was disproved by Safe Passage, which contacted a number of local authorities and found around 1,500 places. Whether they are there today, I do not know, but they were certainly there at the time. There is a problem, of course: there is increasing financial pressure on local authorities, so local authorities are willing to do it but probably cannot afford to do it. There are difficulties; I can see that. Nevertheless, Amendment 115 says:

“The number of children to be resettled … must be determined by the Government in consultation with local authorities.”


That is close to the wording of the earlier amendment some years ago.

The argument here is that, in principle, the Government should accept that we will take a few—only a few—unaccompanied child refugees in Europe, and they should settle on how many and the speed in conjunction with local authorities and with regard to local authorities’ ability to provide foster places. It is a simple proposition. I believe that public opinion is still supportive of it. We have sought support across the political spectrum on this because that is, I am sure, the best way to be successful. Faith groups have been very supportive; altogether, we have a good coalition of people supporting the principle in this amendment and the earlier amendment on Dublin III that I spoke about.

This amendment makes a simple proposition. It would not be difficult for the Government to say that, where there are unaccompanied children who have nowhere else to go and are stuck, we could take at least some of them—not all of them, but some of them—in this country and repeat the small successes of a few years ago. I beg to move.

[Lord Kirkhope of Harrogate (Con)]

My Lords, Amendment 116 is in my name. I thank my noble friends Lord Shinkwin, Lady Stroud and Lady Helic for their support. We propose a workable, sensible and impactful solution for the Government to meet their stated objective, as set out in Explanatory Notes,

“to enhance resettlement routes to continue to provide pathways for refugees to be granted protection in the UK.”

Introducing a carefully designed, long-term global resettlement scheme with a numerical target will have the effect of meaningfully expanding safe routes for the world’s most vulnerable refugees.

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[Lord Paddick (LD)]

I will say from these Benches that, if the Government insist on bringing forward such controversial legislation, they cannot expect anything other than a number of noble Lords wanting to speak on these issues. If it were uncontroversial, noble Lords would not be queuing up to speak on the Bill. This is why we are in this situation, and we need more time so that we can adequately scrutinise this very controversial Bill.

[Lord Dubs (Lab)]

My Lords, I am grateful to all Members who have contributed to the debate and to the Minister for her stamina in continuing and continuing. I am sure she will go on until the early hours with great strength.

I will comment very briefly, as is my right. First, we had a very unusual thing happen tonight—

[Baroness Williams of Trafford (Con)]

I am sorry to the noble Lord, Lord Dubs, but I should respond to the noble Baroness, Lady Chakrabarti, because I think he is about to wind up. We have generally done specific schemes for specific purposes and in responding to specific crises. We have the VPRS, the VCRS, the UK resettlement scheme and the ARAP scheme, and we will be doing the ACRS. They have all been non-statutory and I was trying to explain that we will be continuing in that vein for specific purposes, so that we can accommodate the most vulnerable. I hope that partly answers her question.

[Lord Dubs (Lab)]

I had already begun saying my thanks and praising the Minister for her stamina. I will comment very briefly that something amazing has happened this evening. Amendment 116, in the name of four Conversative Members of the Committee, is much more radical than anything produced by the Cross-Benchers, the Lib Dems, the Greens, the Labour Party or the Bishops’ Bench. It is amazing and I wonder what is happening to the Conservative Party here. I welcome Amendment 116.

I will comment very briefly on my Amendment 115. It very clearly says, “in consultation with local authorities”. There is no number set and no obligation, other than to consult with local authorities and set the number accordingly. Of course, I welcome the national transfer scheme. It should not be instead of the principles in Amendment 115, but it is very important that not all the pressure is on Kent and Croydon.

Lastly, the Minister mentioned the large number coming in lorries across the channel, but the figures will show—I am sorry that I do not have the full figures here—that, in recent years, the number coming in the back of lorries has been higher, but they have been replaced by the ones coming on boats. The total numbers are actually fewer, even though the ones in boats are more obvious.

I again thank Members of the Committee for the part they played in this debate, and I beg leave to withdraw my amendment.

Amendment 115 withdrawn.