Illegal Migration Bill

Lord Dubs Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Cormack (Con)]

I hope my noble friend is listening, because I hope he will realise that he too is an inheritor of a great Conservative tradition; we must not be a Government who turn our back on that. Of course, the problem that the Bill is seeking to deal with is real, but it can be dealt with using a greater degree of sensitivity, generosity and, I dare say, Christianity. I urge him to take on board the points that have been made this afternoon, particularly by the noble and learned Baroness, Lady Butler-Sloss.

[Lord Dubs (Lab)]

My Lords, I will return to the amendments, particularly Amendment 22. I think that the Committee will permit me to refer briefly to the impact assessment argument, because it has a particular relevance to Amendment 22. The charity Safe Passage, some time after the Bill was first published, sent a freedom of information request to the Home Office to ask about the number of unaccompanied children who would be affected by the Bill—that is to say, those arriving in the UK through irregular means, including via small boats. The response stated that

“the Home Office does not hold the information you have requested. Whilst our reporting centres can ascertain the age of someone at the point of an event, we cannot establish from our electronic datasets who is accompanied or unaccompanied”.

That means the Government have no idea of the number of unaccompanied children that will be impacted by the provisions of the Bill.

I do not think that I need to say any more—because the argument about the impact assessment has been well aired already—except for one further thought. If the Government have no idea what the effect of the Bill will be, or any particular part of the Bill, I do not understand why they are putting it forward. That point has already been made, but it still puzzles me.

The point of my amendment is to exempt from inadmissibility claims for unaccompanied children, as has already been referred to in some of the other amendments. Under Clause 4(2), those claims will not be considered; they will have no right of appeal; and there will be no possibility of considering such a claim. Although the argument has already been put forward in some of the other amendments, it is a fundamental point, because the children from the countries with very high grant rates for refugee status are forced to make dangerous journeys because there are very limited options for safe routes to the UK. Many of the children come from those countries, and, of those children who have had their cases determined, the vast majority were permitted to stay and rebuild their lives in the UK under the present legislation. That means that the equivalent of those children who are now coming would not be allowed to stay, regardless of the merits of their claim under either the 1951 Geneva convention or the Convention on the Rights of the Child.

I want to make two or three other points. If a child is to be removed on reaching their 18th birthday, unless they are actually in detention they will quite sensibly say, “I do not want to go back. I am frightened of going back to where I escaped from”. They will disappear—of course they will. We would all do that if we were in their position; we would not hesitate. It seems to me that we are in danger of saying that we are going to lock them up until their 18th birthday before removing them. It is a preposterous policy.

The Government’s history on children has been somewhat mixed. I remember in the 2016 Act I put forward an amendment for unaccompanied children to come here, and it eventually passed both Houses—it went back once or twice—and became part of the Act. The Government then said: “Ah, but it applies only to 480 children”. That was an arbitrary figure, plucked out of the air, for which there was no rationale at all, except that the Government said that local authorities could not provide foster places, which was quickly disproved.

We then got on to the 2017 Act, at the time when the future of the Dublin treaty—or certainly the parts under which asylum-seeking children in one EU country could claim to join their families in another EU country—was in jeopardy. We passed an amendment in this House that the Government should negotiate to retain the provisions of the treaty. That was eventually accepted, having gone through both Houses. In the 2019 Act, the Government simply removed it. Without wishing to go into long periods of history, I was incensed about all these things but particularly incensed about that.

An upshot was that I was invited to a meeting with three government Ministers and seven officials, including one from the Cabinet Office, to engage in a discussion about the rights of children. I found that quite flattering—I thought the odds of 10:1 were quite favourable to me, given who was on the other side. I was given assurances. One of the Commons Ministers said: “Don’t you trust me?” I looked him in the eye and I lied: “Yes, I trust you, but I don’t trust the Government”—so it was half true—“And anyway, who is to say that you will be in your job in few weeks’ time?” He was not; he was moved on, and I am not sure whether he is in the Government now or not. But I was given certain assurances that were not adhered to, and the number of unaccompanied children who came fell rapidly from that point on.

The Government have in the past given assurances about unaccompanied children and they simply have not stuck to them. That is why I believe that this amendment is important. It will protect the rights of some of the most vulnerable young people fleeing from appalling horrors such as war, enforced conscription into armies, threats of torture and parents being killed. These are terrible things, and we are saying to them that it they get to this country other than by a prescribed route, of which there are hardly any, we will not consider their claim. That is appalling.

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendments in this group because they are at the heart of whether or not we are acting in conformity with our obligations under the UN Convention on the Rights of the Child, which I believe we are not. The noble Baroness, Lady Lister, has most helpfully brought to our attention the view of the committee set up to watch over the application by all 192 members of the UN to the Convention on the Rights of the Child. Its view is negative.

I am well aware that the United Nations does not have any enforcement powers in this matter—sadly, perhaps—but that does not mean that the British Government, which is usually a member of the UN in good standing and good faith, can simply ignore the views of the committee that was set up to watch over this legislation. To do so will have quite serious consequences in a much wider field, because there are plenty of members of the United Nations who shelter behind the lack of enforceability of the UN, whether it is in the Security Council or elsewhere, to do things that we, quite rightly, condemn outright, whether in Ukraine, the Taiwan Strait or wherever. The cost to this country of simply riding roughshod over our obligations under the UN Convention on the Rights of the Child is therefore quite serious.

The Minister will no doubt remind us that the UN Convention on the Rights of the Child is not incorporated into our domestic law. That is correct, but it was ratified by this country. How do we know that it was ratified, and how do we know that it covers all the provisions which this legislation is at variance with? Because we made two or three rather small, explicit reservations from the UN Convention on the Rights of the Child, none of which is relevant to the present matters we are debating—they relate to enrolment in the Armed Forces, education and so on. We accepted all the rest, and we ratified it and told the United Nations that we were going to apply all the rest. Now, we are going back on that.

I hope the Minister will not simply tell us that his opinion and that of the Home Office is that we are not infringing any of these obligations. I do not honestly think that that cuts any ice at all. I would be delighted if he would take, one by one, the articles cited by the noble Baroness, Lady Lister, and my noble friend Lord Kerr of Kinlochard, and explain why he has a different interpretation of those provisions. I say that more in hope than expectation, because the Minister does not seem to like answering specific questions of that sort. However, I hope on this occasion he will overcome his reluctance to do that and will address these problems. The UN Convention on the Rights of the Child is a serious matter. It is bringing better conditions for children worldwide. It is being used as an instrument to strike down all sorts of discrimination, and here we are building up new sorts.

--- Later in debate ---

That is indeed so, but my question is of a more prosaic nature: what happens when a declaration of inadmissibility is made under Clause 4, and a court subsequently determines, after hearing a factual suspensive claim under Clause 42, that a mistake of fact was made in determining that the person in question met the removal conditions? Justice surely requires that the declaration of inadmissibility, having been made on a false premise, should be rescinded and the protection claim or human rights claim allowed to proceed. I hope that the Minister will agree, but I do not see any mechanism to that effect in the Bill. Can the Minister, either orally or in writing, show me where that is? If there is nothing there, will he undertake to look at whether this point could usefully be clarified in the Bill?

[Lord Dubs (Lab)]

My Lords, it is a pleasure to follow the noble Lord. I will endeavour not to repeat some of the arguments that have already been put forward; it is a challenge that most of us have failed, and I will probably fail it too.

In the Bill, there is an unprecedented step that it would make any asylum application made by someone who arrives irregularly in the UK permanently inadmissible. If declared inadmissible, they cannot subsequently enter the UK’s asylum process. That means that they are out of the system for ever, simply because of the method by which they have arrived in this country. The United Nations High Commissioner for Refugees said that the Bill

“would amount to an asylum ban”,

as it would the extinguish

“the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how compelling their claim may be”.

The UNHCR goes on to say that, if other countries followed suit, we would see an end to refugee protection. That is a pretty dismal comment, but I have no reason to doubt that the UNHCR is accurate in its assessment. I repeat something which should be beyond argument: the UNHCR knows about the 1951 convention, and surely the UNHCR must be seen as the guardian of that convention. So if the Government are going to disagree with the UNHCR, they have to be on pretty firm grounds before they do so.

I will not repeat the conditions stated in Clause 2—we are familiar with them—but I will note that, even if people cannot be removed from the UK, their claims will still be permanently inadmissible. That is a significant change from the current inadmissibility scheme put in place after the UK’s exit from the EU as it also left the Dublin system. Under this scheme, if the UK Government believe that somebody did claim or could or should have claimed asylum in another country, their asylum claim could be potentially deemed inadmissible. However, the current scheme requires another country to have agreed to take the person before the inadmissibility decision can be made. The Home Office guidance on the inadmissibility procedures says that getting an agreement should take a maximum of six months in most cases. We are in a situation where there can be no progress for those individuals, except in this very negative sense.

The Home Office’s own statistics—I rely on the Refugee Council for some of this information—show how rare an occurrence this is. Between January 2021 and the end of December 2022

“of 18,494 applications that were potentially inadmissible only 83 inadmissibility decisions have been served”,

with only 21 removals. As a result, nearly 10,000 people have had their claims subsequently admitted into the UK’s asylum system following an unnecessary delay.

This Bill changes the current inadmissibility system by removing the requirement to have a removal agreement in place with another country before an inadmissibility decision can be reached. Instead, it makes any claim automatically and permanently inadmissible. It does not give the Home Secretary any discretion to consider the claim, and indeed the noble Lord in the previous speech challenged the Home Secretary’s lack of discretion in these procedures.

The Bill does very little to make it likely that more people will be able to be removed. Clause 5 allows people from 32 countries designated as safe countries whose asylum applications have been ruled inadmissible to be returned to their home country. Nationals of all other countries outside this list cannot be returned to their home country. This includes someone whose claim is highly likely to be successful, such as an Afghan or a Syrian, or someone whose claim could potentially be refused if it was actually processed. Instead, they can be removed only to one of the 57 third countries listed in Schedule 1 to the Bill. However, the agreement with Rwanda is the only removal agreement that the UK has in place that includes third country nationals, and the legal and tactical challenges faced by that scheme are well documented. Even if it becomes operational, it will not be possible to remove the thousands of people whose claims are deemed inadmissible to Rwanda.

We are in a real difficulty with this situation. The Home Office has yet to set out how many people it believes will be impacted by the Bill, as we have already discussed. However, given the current 0.7% success rate of removing people under the inadmissibility process, the Refugee Council estimates that at the end of the third year of the Bill between 161,000 and 192,000 people will have had their asylum claims deemed inadmissible but not yet have been removed. They will be unable to have their asylum claims processed, and therefore unable to work, and will be reliant on Home Office support and accommodation indefinitely, which is predicted to cost between £5 billion and £6 billion in the first three years. They will be stuck in a permanent limbo. I hope the Minister can explain how they can get out of that limbo, unless the Government suddenly produce a range of countries with which return agreements have been agreed.

This is a pretty miserable clause in a miserable Bill. I believe that this amendment could go some little way towards making the Bill somewhat less bad than it is.

[Lord Carlile of Berriew (CB)]

My Lords, I have signed some amendments which were tabled by my noble and learned friend Lord Etherton, who has asked me to apologise for his absence today. I am not going to speak to those in any detail because, as is typical of my noble and learned friend, the explanatory statements which he has added to those amendments say it all, and make them very easy to understand.

What concerns me about this debate is that it has a degree of abstraction which perhaps conceals what really lies in front of the debates we are having. Recently, I went to a meeting to discuss asylum and refugee status in one of our cities. Present at that meeting was a woman in her 30s, with three children, who is living in a hostel in that city. She has now been waiting for 10 years—with her children, some born after her arrival here—to know the result of her wish to be treated as an asylum seeker.

The Minister earlier today—it seems like many hours ago but it is probably only about two and a half—referred, when he was answering an intervention, to an emergency having occurred. If that is an emergency—because this Government have been in place for well over 10 years—then it makes the creation of a baby elephant seem like the speed of sound. It has happened on their watch. Why? In truth—and it is long before the Minister became involved in these issues and became a valued Member of your Lordships’ House—they did not do what they needed to do to anticipate what was going to happen. That is why cases such as that of the woman I referred to took place.

In another city, I met a young man, now in his mid-20s, who had arrived in the United Kingdom illegally in the back of a lorry. He climbed out of the lorry and had nowhere to go. He slept in a doorway and the next day he did what he was told was a good thing to do and went to the local police station and asked the police for help. As it happens, they were very sympathetically disposed to him. He was then about 17 and a half. He was refused permission to remain in this country and he was refused asylum. He appealed and his appeal was allowed. I am delighted to say that the reason he came to see me was that he is about to start a career as a barrister. This is obviously a very good thing for anyone to do, as I would say, and I know a number of noble and learned friends, including the Minister, will agree with me when I say that. I am trying to discourage him, as a sort of mentor, from doing only asylum work because there is so much more to do as a barrister. I may be winning that battle. That is the actuality we are dealing with in these cases.

What we are facing here, to use the Minister’s words, is apparently an emergency to oust the use of judicial review. Before I got up to speak, we heard three really superb speeches. I do not want to repeat everything that was said but I agree with it all. All those speeches demonstrated, I suggest, that the ouster of judicial review, as has been the approach of the courts and indeed of Parliament over the decades, should happen only very rarely. It is not unheard of, but it should happen only very rarely when the necessity to oust judicial review is demonstrated and, above all, when it is fair and proportional to do so. Surely the ouster of judicial review is neither fair nor proportional in a situation in which we find many cases coming before the courts but it is not the fault of the real people who want to go to those courts. Let us not forget that a very large number of that cohort are allowed asylum and refugee status when they go to the courts. This is not an unworthy cohort going to court for the sake of it; people often win their cases. Do we in your Lordships’ House, with so many experienced people, particularly those who have seen the courts in action, really want to oust that activity of the courts?

Let us look at the figures for a moment. I know that there are many cases in tribunals. I have never had the advantage of serving as a member of the asylum et cetera tribunal or Upper Tribunal but I have had the privilege of serving as a deputy judge in the Administrative Court for many years, dealing with many asylum cases. I think everybody imagines—I wish to disabuse the non-lawyers in the Committee—that these cases are all run into the ground by long-winded lawyers such as myself who try to make the cases run for ever and ever in order to enhance our fees; the sort of Daily Mail “sidebar of shame” view of what lawyers do.

Let me tell your Lordships what happens in the Administrative Court. A judge turns up for a day’s sitting and often starts with paper applications. About 11% of the cases have already been filtered out as being totally without merit and do not even come before the judge doing the paper applications—the paper apps, as they are called. The judge then spends the day in his or her judge’s room dealing with the paper apps, usually dealing with about 12 in a day—maybe a few less, maybe a few more. They take therefore very little time at all.