Nationality and Borders Bill

Lord Etherton Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

In conclusion, I agree with the right reverend Prelate; I am on his team and those who spoke with him. The way forward is family reunion, humanitarian visas and improving the first-tier administration in the Home Office. I once worked there, and the first-tier decision-making is appalling. By the way, seeking to avoid wars over there is quite a good idea if you are worried about the obligation under the international rule of law to give refuge over here. Noble Lords should think about the consequences. If every country—particularly every developed country—around the world adopted the approach in this Bill, would there even be a refugee convention left?

[Lord Etherton (CB)]

My Lords—

[Lord Lea of Crondall (Non-Afl)]

My Lords—

[Lord Sharpe of Epsom (Con)]

The noble and learned Lord has an amendment and he wishes to speak to it.

[Lord Etherton (CB)]

My Lords, I would like to speak to my Amendment 41. It is a very specific amendment relating to Clause 11 as it currently stands. Before I turn to that, however, I will take up the words of my noble and learned friend Lord Brown in relation to providing a legal structure for our discussion here. The first thing, which has been emphasised by a number of noble Lords, though not all, is that Article 31 is central to the discussion. This is because it is obvious that the Government, in relation to Clause 11 and the following clauses, are seeking to interpret and apply their view of Article 31.

It has been suggested that we can ignore the convention because we must have regard to what people think today, but I am afraid that we cannot do that. We are a party to this convention: if we do not like it, the Government will have to recuse themselves from it and try to get other countries to change it. At the moment, however, the convention applies.

Article 31 says that no penalty shall be imposed on account of illegal entry or presence on a refugee who satisfies three requirements. These are the three requirements set out in Clause 11. The first is that the refugee comes directly from the territory of persecution. The second is that the refugee presents themselves without delay to the authorities. The third is that the refugee shows good cause for their illegal entry or presence. That is what Clause 11 is about. However, you cannot read Clause 11 on its own because the subsequent clauses all have some impact on it. In particular, Clause 36 is critical because it seeks to give a definition of coming directly from the territory of persecution.

Noble Lords will see from what I have just described that, although Article 31 says what the Government cannot do—that is, they cannot impose a penalty if those three requirements are satisfied—it does not go on to say that, if they are not satisfied, you can have a differentiation such as that in Clause 11. That is a matter of policy, and I can certainly see the force of the argument for saying that this division that has taken place in Clause 11 is sufficiently inconsistent with the definition of a refugee to make it improper.

There is a more fundamental point: Clause 36, referred to by my noble and learned friend, in seeking to define “coming directly from another country,” says that the requirement is not to be taken as satisfied if the refugee stopped in another country outside the UK, unless they can show that they could not have reasonably been expected to have sought protection under the convention in that country. There is no such qualification in Article 31, and it appears that the Government believe they can, through legislation, elaborate on the meaning of Article 31 in whatever way would best suit the current asylum policy of the day. This, I am afraid, is entirely misguided as a matter of law.

As an international treaty, the convention has the same meaning for each and every member state that signed up to it. It cannot bear different meanings for each member state, according to the policy of the Government of the state for the time being. In England and Wales, the court has, pursuant to its constitutional role of interpreting legislation and written law, held that a refugee may still come directly to a member state, within the meaning of Article 31, even if the refugee passes through one or more intermediate countries, if the final destination of the refugee has always been the state in which the asylum is finally claimed and the halts in the intermediate country or countries are no more than short-term stopovers. My noble and learned friend Lord Brown referred to his judgment in the Adimi case, which decided that very point.

On the global picture, to cut matters short—before I turn to the particular amendment—I am against the division, the separation, between group 1 and group 2 in Clause 11 because it depends on a requirement, or the failure to meet a requirement, which is directly contrary to the convention. Therefore, I certainly object to the division between group 1 and group 2 so long as Clause 36 stays in its present form, with its present definition of coming “directly”, on both logical and legal grounds—quite apart from the matter of general principle, which other noble Lords have mentioned, about the demeaning nature of distinguishing between two different categories.

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[Lord Faulks (Non-Afl)]

I am very grateful to the noble and learned Lord for giving way, and I agree with his analysis entirely. I just wanted to ask him this question, which the Committee might want to know the answer to: if his view, and the view of the noble and learned Lord, Lord Brown, is right, what would be the consequences of some of these cases—were the Bill to become enacted as it is—if they reached the courts?

[Lord Etherton (CB)]

Strictly speaking, the legal position is that there is no basis for individuals to enforce the convention, but it is enforceable by other member states, which can complain that this country is not complying with its obligations. I would expect that that may well happen. So far as coming here illegally is concerned, my noble and learned friend Lord Brown referred to the Adimi case, which was about whether there was an illegal entry. He held that there was not, because although these refugees passed through intermediate states, they did in fact come directly. So, the individual is placed in a not very satisfactory situation, but the state can certainly be held accountable in the International Court of Justice, and that may well happen.

If I may now descend from the wider view to the narrower, I want to deal with a point I have raised in relation to Clause 11(3) and other similar clauses which impose a requirement on a refugee. The requirement, as it were, or even a breach of it can be overcome if

“they can show good cause for their unlawful entry or presence”,

and there are other provisions saying that this can happen where there is a “reasonable” expectation of something happening or where something is “reasonably practicable”. In all those cases, I have sought to table an amendment which says that, in deciding what is good cause, practicable or reasonable, the immigration officer should take into account any protected characteristic of the refugee within the meaning of the Equality Act which is innate or immutable. I do not want to get too involved in the legality of those terms; basically, that is relevant under decisions in our law to people who claim to be a member of a particular social group. Being a member of particular social group that is being persecuted is one of the categories of refugee in Article 1 of the convention, so I do not want to spend too much time on that. There are nine protected characteristics in the Equality Act, but only some of those will be innate or immutable.

That expression, “innate”, is used in the Bill itself in describing the meaning of a particular social group. Your Lordships will find it in Clause 32, which also expressly states that a

“social group may include a group based on a common characteristic of sexual orientation”.

I want to take up that point to explain why I suggest it is necessary that wherever there is a reference to reasonable cause, reasonable expectation or what is practicable—as I have said—there is an express statement in the Bill that the fact that the refugee has a protected characteristic which is innate or immutable should be taken into account.

I want to take the case of LGBTQI+ people to illustrate the reasons why. First, experience has shown that, all too often, difficulties arising from a characteristic such as that have not been taken sufficiently into account. The approach to LGBTQI+ refugees has often been woefully inadequate and misguided. It was not until the 2010 decision of the Appellate Committee of the Supreme Court in HJ (Iran) that it was established that the Home Office could not refuse an asylum claim from a gay man or lesbian simply on the basis that if they could reasonably be expected to act discreetly in their home country, rather than live openly with their sexuality, they would not suffer persecution. Therefore, it was only some 12 years ago that the Home Office, which fought HJ (Iran) right up to the highest court in the land, was obliged to accept that its approach to LGBTQI+ refugees, in the words of then Supreme Court Justice Sir John Dyson—later Lord Dyson and Master of the Rolls—frustrated

“the humanitarian objective of the Convention and”

denied LGBTQI+ people

“the enjoyment of their fundamental rights and freedoms without discrimination.”

Secondly, it is well known that LGBTQI+ refugees face a large number of practical difficulties in claiming asylum. I will address these in due course, when we come to the relevant clauses in the Bill, to show why there has been a failure to satisfy a particular requirement. In the case of Clause 11(2)(b), the issue is whether they presented themselves without delay to the authorities and can show good cause for their unlawful entry. This is the question of clandestine exit. As I have said, it applies also to abused women in abusive relationships coming from a conservative religious community. They cannot go and buy a plane ticket. They cannot indicate in any way in these countries what the reason for their seeking asylum is. The result could be honour killings, stoning or being thrown off a wall, so they keep their characteristics as far as possible to themselves. It is not surprising that they are slow to report themselves or that their routes here are clandestine.

Finally, on this point, the Home Office’s own statistics show the extent to which claims by LGBTQ+ asylum seekers have been wrongly rejected by immigration officers. Experimental statistics published by the Government in August 2019 on lesbian, gay and bisexual asylum claims show there was an initial decision grant rate of 29% in 2018. However, 38% of appeals relating to LGBT asylum applications were allowed in respect of applications made in 2015-18. These published statistics are qualified in some respects but, in broad terms, they reflect the reality of a substantial proportion of successful appeals. That is why, in my suggestion, wherever we see in this Bill as currently framed any reference to good cause, those with protected characteristics that are innate or immutable must be protected by an express reference on the face of the Bill.

[Lord Lea of Crondall (Non-Afl)]

My Lords, I think the House would be grateful if somebody, in one sentence, expressed appreciation for the speech of the noble and learned Lord, Lord Clarke of Nottingham. No one doubts that, over the past 50 years or so, he has been a beacon of liberalism within his party. The point he made in this connection is that there is a great dilemma facing us all. Apart from climate change, the dilemma is that, for governance systems in parts of the world—Africa is the continent that springs to mind—we will have to have a new arrangement for crossing the Mediterranean whereby we do not get into all these problems, which are getting worse. That speech is not easy to make, but I just want to say that the honesty and the examination of the dilemmas we all face has been a credit to this House.

Nationality and Borders Bill

Lord Etherton Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

I recommend a very interesting long essay published in the Guardian earlier this week. It contained a description of what happened during the Second World War, when we ended up creating camps for Jews who had fled from Nazi Germany, again in mortal danger. They were put into camps because the tabloid press had developed a flurry, suggesting that there was a fifth column of people who might be spies in our midst—and they ended up in camps. What came out of the descriptions that they gave was the horrible thing of being questioned about your loyalty and why you were there, which affected people’s mental health. So, when the noble Baroness, Lady Neuberger, speaks from a particular experience in her family about the effects of this kind of thing, please let us take it to our hearts. We should have learned from the past. I strongly support these amendments.

[Lord Etherton (CB)]

My Lords, I will speak to Amendment 61 in my name. Unlike the previous amendments that have been discussed so eloquently, this is not based on specificities in relation to the nature of the accommodation and particular people; it is a compendious description of the standard of accommodation that should be provided to a refugee, in the light of and against the background of the unsatisfactory accommodation provided to date, which, as I said, has been so eloquently elaborated upon by previous speakers.

The compendious description is in three parts, which are as follows. The accommodation

“must be provided in the United Kingdom”,

which ties in with Clause 28—I will deal with that more fully under that heading. It

“must be consistent with the European Convention on Human Rights”—

there can be no objection to that, for obvious reasons. It must also

“be such as is appropriate for the safety and welfare of that refugee having particular regard to any protected characteristic asserted by the refugee, within the meaning of Chapter 1 of Part 2 of the Equality Act 2010, which is innate or immutable.”

I will say a little bit about that last particular part of this compendious description of the appropriate accommodation that should be provided. An asylum seeker who has “innate or immutable” protected characteristics may have particular vulnerabilities—we have heard quite a bit about that—which need to be taken into account in determining what would be appropriate while their particular claim is being assessed, and even if it has been rejected. In the case of LGBTQI+ and single women refugees, for example, it has been clearly established that they may well encounter bullying, sexual harassment and physical violence from other refugees coming from the same or similar countries, such as Pakistan, Bangladesh, Malaysia, Uganda, Nigeria, Iran, Iraq and Syria—or, indeed, in the case of LGBTQI+ refugees, any of the more than 70 countries where sex between two people of the same sex is illegal. There have been comprehensive analyses and accounts of this type of abuse in detention centres, and one can find them in Stonewall’s 2016 report No Safe Refuge: Experiences of LGBT Asylum Seekers in Detention, Stephen Shaw’s 2016 report to the Home Office on his Review into the Welfare in Detention of Vulnerable Persons and the 2020 recommendations of the University of Sussex’s School of Law, Politics and Sociology on people seeking asylum in the UK on the basis of sexual orientation or gender identity.

In relation to the suggestion in the Bill that there could be offshore centres, I will describe in more detail criticisms of the state of accommodation and examples of the sort of violent and oppressive treatment that I have described—particularly the appalling events that have taken place in some of the Australian offshore centres in Papua New Guinea.

[Lord Cashman (Lab)]

My Lords, I rise briefly to speak to these amendments and congratulate my noble friend Lady Lister of Burtersett on so eloquently moving the amendment. I also congratulate the other speakers who have spoken in favour.

I particularly welcome Amendment 61 of the noble and learned Lord, Lord Etherton, because, as he said, he introduces into it elements—human rights and the regard to the special provisions within the Equality Act —of which we should be proud and on which we should lead internationally. I give my wholehearted support to that because, as noble Lords have heard me say before—I make no apologies for saying it again and again—in each of these situations, I imagine what I would want as an asylum seeker or refugee. I must imagine myself in that situation. Some who read our newspapers would believe that it is a picnic and a party; it is certainly not at the moment in the United Kingdom. I believe that the signal that we are sending out with the Bill and with these amendments is that asylum seekers and those seeking refuge are not welcome.

To reiterate the points made by the noble and learned Lord, Lord Etherton, I remember that, when I was a Member of the European Parliament many years ago, I was approached by a person whose partner was a gay man from Belarus who was seeking asylum here. His asylum process was going through and, suddenly, in the very early hours of the morning, he was arrested and detained at a detention centre. Let us make no bones about it: Clause 12(9) introduces detention centres—they are called “accommodation” centres, but asylum seekers are detained and cannot leave them at will. This is why the minimum conditions that the right reverend Prelate the Bishop of Durham outlined are a basic and bare necessity to which we should adhere. This young gay man was placed in a detention centre for a number of weeks and had to sleep in shared accommodation; we managed to get him out because his partner could afford a rather brilliant lawyer to plead the case. While he was there, he contemplated suicide on an hourly basis. This young man is now in a senior job in the United Kingdom, paying his taxes, his dues and his national insurance and abiding by the same rules and laws as everyone else. But he still lives with that scar every single day, and I do not want any other person to experience that.

Placing vulnerable people back into these situations, as outlined by the noble and learned Lord, Lord Etherton, only increases stress and the damage to mental health. If LGBTQI people are put back into the communities from which they have fled, they face further oppression within places that should be safe, and it makes it much more difficult for them to prove their LGBTQI status to others.

Someone once said to me, “Oh, being trans is just a feeling, isn’t it?” Well, I cannot prove to anyone that I am a gay man; it is a feeling and one that I have when I look at another human being—although not every single man, interestingly enough. Therefore, we have to deal with these particular issues, not only of LGBTQI people but all of these vulnerable asylum seekers.

I will finish with this. In roughly 1600, Shakespeare co-wrote a play; it was the only play that he co-wrote and it is “Sir Thomas More”. Sir Thomas More is called to London because the citizens of London are rebelling—they had probably read the tabloids of the day—because “the strangers” had made their way from Calais via Dover to London. In a parenthesis to a speech, Thomas More comes out, and with one hand silences the crowd. In that silence, a voice shouts, “Remove them!” Thomas More replies: “You bid that they be removed, the stranger, with their children upon their back, their families at their side, their belongings at their feet. Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Imagine you are the stranger and bid that they be removed and show your mountanish inhumanity.” It is a great privilege and pleasure to support these amendments.

Nationality and Borders Bill

Lord Etherton Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

Moved by

[Lord Etherton]

68: Clause 14, page 17, line 41, at end insert—
“(c) fails to protect its nationals, including in particular those who have a protected characteristic within the meaning of Chapter 1 of Part 2 of the Equality Act 2010 which is innate or immutable, from persecution by third parties who are not agents of the member State.”Member’s explanatory statement
This amendment provides that there are exceptional circumstances where, even though there is no overt persecution by the State or state agents, the conduct of others towards a person which the State has failed to prevent can amount to persecution within the Refugee Convention.

[Lord Etherton (CB)]

In moving the amendment in my name, I should say that I have also put my name to the proposal from the noble Lord, Lord Rosser, to exclude Clause 15 from the Bill—but I will wait to hear him and support him when he proceeds with that.

I will make a relatively short point in relation to Amendment 68. The provision relates to Clause 14 and the section of the Bill that deals with inadmissibility. Clause 14 is concerned with amending the Nationality, Immigration and Asylum Act 2002 and the exclusion in that Act, by way of amendment, of asylum claims by EU nationals. I am not certain why they have been selected for exclusion, but I assume it is because EU member states are bound by the EU’s Charter of Fundamental Rights, the provisions of which, for the most part, mirror the European Convention on Human Rights and, in some respects, go beyond it. In Article 1A(2) of the refugee convention, persecution is obviously tied to the question of human rights.

The point I wish to make is simply that, under the new clause proposed by Clause 14—headed “Asylum claims by EU nationals”—to amend the 2002 Act, the Secretary of State

“must declare an asylum claim made by a person who is a national of a member State inadmissible.”

Proposed new Clause 80A(4) states:

“Subsection (1) does not apply if there are exceptional circumstances as a result of which the Secretary of State considers that the claim ought to be considered.”


Proposed new subsection (5) states:

“For the purposes of subsection (4) exceptional circumstances include”—


and then it lists a series of matters under proposed new paragraphs (a) and (b), with three proposed sub-paragraphs under (b).

Basically, short the point is that there can be persecution for the purposes of entitlement to refugee status under the convention even where the state itself is not the protagonist of the persecutory conduct but allows citizens, residents or others present within its territory to persecute particular groups or persons who otherwise fulfil the requirements of the convention’s definition of “refugee”. My amendment proposes adding to the exceptional circumstances in proposed new Clause 80A(5) the circumstance when the EU member state

“fails to protect its nationals, including in particular those who have a protected characteristic within the … Equality Act 2010 which is innate or immutable, from persecution by third parties who are not agents of the member State.”

This is not a fanciful matter. If we take the case of Hungary, which has been moving more and more to the right in political terms, we see a campaign that is based on undisguised anti-Semitism against George Soros’s support for universities there, and a constant encouragement by the Government there of homophobia and attacks on LGBTQI+ people. So it is not a fanciful point, and I suggest that it should plainly be added as one of the exceptional circumstances. That is the point. On that basis, I beg to move.

[Lord Dubs (Lab)]

My Lords, notwithstanding the fact that we have touched on some of these issues before, we have to face them head-on in this group of amendments. The issue is whether an asylum seeker has to claim asylum in the first safe country that they reach, and we might as well deal with that head-on because it is fundamental to many of our criticisms of the Bill. Bearing in mind the Chief Whip’s request that we keep our speeches short, I shall endeavour to do that, but this issue is so important.

First, there is a practical issue in all this. If we had demanded that asylum seekers should claim asylum in the first safe country that they reach, the result would have been that every Syrian who reached Europe would have had to have stayed in Greece, Italy or Malta. That is clearly not a practical way for the world to function. If we make demands on where asylum seekers should claim asylum, so of course can other countries. It is quite wrong in practice.

The principle is perhaps more important; that principle being the Geneva convention of 1951. I would have thought it would be widely acceptable to say that the UNHCR was the guardian of the 1951 convention, and if the UNHCR has a view on that convention then that should surely have some influence on the Government—after all, the convention has been fundamental to human rights for asylum seekers over the last 70 years or so. The UNHCR has made it very clear that it disagrees with the argument that refugees should claim asylum in the first safe country that they reach, saying that:

“Requiring refugees to seek protection in the first safe country to which they flee would undermine the global humanitarian and cooperative principles on which the refugee system is founded”.


No country close to the main countries of origin of refugees would ever have considered signing a convention if it meant that they would assume total and entire responsibility for all refugees. These are responsibilities that the international community has to share, and that is implicit in the 1951 convention. Therefore, some of the amendments, although they are in my name, probably seem to be compromising a fundamental objection in principle to what the Government are seeking to do. For example, my explanatory statement on Amendment 70 says that

“asylum seekers should not be removed to a safe third State other than the one with which they are considered to have a connection.”

One can argue about that. The Bill says clearly what it means to have a connection, and some of its definitions are okay but some are not.

Amendment 71 says that there must be a return arrangement in place. Clearly, unless we have a return arrangement in place with other countries, we cannot even begin to consider returning people. I say to the Minister: do we have a return arrangement with any country? If people come from France, across the channel—we all deplore the people traffickers and how they endanger lives, and the tragic loss of life that we have seen in the channel—unless there is an agreement with France, what do we do? If they have come from France, can we send them back to France or not? The French will not accept that. Incidentally, judging from this morning’s papers, our relationship with France is getting worse and worse; that is something that should be put right anyway, regardless of other considerations. Surely there must be a return arrangement in place, otherwise we cannot even consider this.

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Finally, providing sanctuary to those fleeing war and persecution and to those trying to get their loved ones to safety, is an international effort. We are proud of that effort, but we by no means do more than our share. I simply ask the Government: what would happen if every state were to pass a clause absolving them of responsibility for months at a time in the hope that someone else might be able to deal with it?

[Lord Etherton (CB)]

My Lords, I support the proposal from the noble Lord, Lord Rosser, to exclude Clause 15 from the Bill, for a wide variety of reasons.

First, if a claim is deemed to be inadmissible but to satisfy the convention, that seems effectively to be saying that the person is not a refugee within the convention. That does not make sense. If they satisfy the definition of refugee within the convention, they have a claim. It can be dismissed, and then there will be a right of appeal. What cannot be said—which is effectively what is being said here—is “We’re not going to hear you at all, even though you are a refugee within the strict terms of the convention”. So I take issue with the very idea of inadmissibility with no right of recourse at all by way of an appeal.

Secondly, the terms of Section 80C to be inserted into the 2002 Act in relation to four and five seem completely contrary to both the wording and principle of the convention. My understanding of Clause 4 is that it is, in some way or other, intended to be made analogous to the Dublin III regulation.

There are a number of points to be made about that. First, we are no longer part of the EU or of the Dublin regulation. Perhaps more importantly, EU member states themselves have recognised that the Dublin regulation has failed. On 23 September 2020, the European Commission adopted what they called the New Pact on Migration and Asylum, following consultations with the European Parliament, member states and various stakeholders. The PR notice from the European Commission, which is available on the internet, states:

“The new pact recognises that no member state should shoulder a disproportionate responsibility and that all member states should contribute to solidarity on a constant basis.”


It has failed because the effect of the Dublin regulation, when strictly applied, means that certain states are overwhelmed with refugees because they are inevitably the first state on the way through to somewhere else. What is happening at the moment is that the Commission is proposing to replace the Dublin III regulation with a new regulation on asylum and migration management. So, frankly, there is no point in referring to the Dublin III regulation. It has failed in practice, and we should not be emulating it.

Furthermore, proposed Section 80C(4) is inconsistent with the terms of the convention itself. There is nothing in the convention, in Article 31 or anywhere else that makes this “connection” mean that a refugee claim would fail.

I have another point about condition 4, and I would welcome clarification from the Minister on it. The description that would render a connection with the state, and therefore the claim, inadmissible is exactly the same as the definition of arriving “directly” for the purposes of Clause 11. Clause 36 effectively amplifies Clause 11 and paragraph 1 of Article 31 of the convention. It says:

“A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.”


On this particular approach, you are never going to get anywhere near Clause 11 because you will be knocked out under Clause 15—so I do not understand that contradiction. Once you fall within condition 3, which is the same as condition 4—which is the same as not arriving directly under the definition in Clause 36 —you are knocked out. So which is it—are you knocked out or do you still have some right under Clause 11, admittedly, to show that you could with good cause fall within either group 1 or even group 2? I am left confused by that.

Condition 5, on which the noble Lord, Lord Rosser, and others have eloquently spoken, provides

“that, in the claimant’s particular circumstances, it would have been reasonable to expect them to have made a relevant claim to the safe third State (instead of making a claim in the United Kingdom).”

Nothing in the Dublin regulations says that, even if they were to apply—and there is certainly nothing in the convention that would make such a condition apply to exclude a claim.

So I support the suggestion that Clause 15 should be excluded because, with respect, it seems to be a muddle in a whole series of different respects—legally, practically and in principle.

[Baroness Williams of Trafford (Con)]

My Lords, I thank noble Lords again for speaking to this group of amendments. I appreciate the thoughtful and well-meaning intent of Amendment 68, but we cannot accept it. The definition of “persecution” is well established and must be on the basis of a refugee convention reason—namely, race, religion, nationality, membership of a particular social group or political opinion. It is reiterated in Clause 30(1)(c) that persecution can be committed by

“any non-State actor”

where the state is

“unable or unwilling to provide reasonable protection”.

Given the level of protection afforded to EU nationals, through fundamental rights and freedoms, EU countries are inherently safe, and individuals are exceptionally unlikely to be at risk of persecution. If individuals experience discrimination, they can seek protection from within their country of nationality.

That said, the noble and learned Lord, Lord Etherton, might be comforted to have it confirmed that our processes already acknowledge that it may not be appropriate to apply inadmissibility to EU national claimants in exceptional circumstances. The list of exceptional circumstances included in the provisions is not exhaustive; it looks to protect individuals in the very rare circumstances that a member state is at risk of a serious breach or where there exists a serious and persistent breach of the values under the Treaty on European Union, including equality.

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[Lord Green of Deddington (CB)]

My Lords, I will not move Amendment 76 and will consider the Minister’s comments on it.

[Lord Etherton (CB)]

My Lords, I am extremely grateful to the Minister for battling so valiantly in relation to all the points that have been raised, and am extremely grateful for all the amendments that have been spoken to. What has become clear from this discussion is that there are, on any footing, immense practical difficulties in relation to Clauses 14 and 15. In effect, I think the Minister accepted that it is not going to be straightforward to repatriate people with inadmissible claims to other EU countries without any agreement. The expression “window dressing” has been used. It is going to be very difficult.

I hope I correctly interpreted the Minister in getting my crumb of comfort from Clause 14. I think she reassured me that the exceptional circumstances specified were not closed. As a statement from the Dispatch Box in Parliament, recorded in Hansard, that is quite an important point. If Clause 14 remains, it will give at least some people some succour at any event, particularly in the circumstances I mentioned: an EU country which does not prevent those who are citizens, resident or present within the country, from persecuting others belonging to a social group, or for some other reason.

I am afraid that the overwhelming sentiment—and certainly my view—was that whatever may be said by the Government about adopting existing expressions which are generally used or have been previously used, in vital respects Clause 15 is inconsistent with the convention. This is not in a complex way, but in an obvious way. I am sorry to say this, but to my mind as a lawyer it is an egregious contravention of the convention. I ask the Minister about, for example, condition 5 in new Section 80C. Not only is that not in the convention, but I do not know where it comes from. I can see it is there as a matter of policy but it is not in the Dublin regulations, so far as I can recall. As I pointed out, in any event the Dublin regulations are being revised, so there is no point in going back to them.

There are a number of difficulties. There is one point I was hoping the Minister might be able to reply to that she has not. I would be grateful if she could explain perhaps in communication with me. How does one reconcile condition 4, which is failing to make a claim in the first country—thereby rendering you having a connection and the possibility of inadmissibility—with one of the requirements under Clause 11 to satisfy Article 31, which is arriving directly, because you never get there if you are rendered inadmissible? At the moment I do not see how the two fit together. I am not suggesting it is a straightforward and easy point; it is a lawyer’s point, but an important one. It shows a muddle somewhere along the line. But, on the basis of everything that has been said, I beg leave to withdraw my amendment.

Amendment 68 withdrawn.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to Amendments 83 and 88, which I have co-signed, and Amendment 96, but there are some other superb amendments. I am not a lawyer—I am not going to apologise for that because I have had an interesting life— but I did get a lawyer to look at this for me; not yet a QC, but obviously it is a possibility. Their thoughts were that these evidence notices treat asylum seekers like criminals—in fact, worse than criminals; they treat asylum seekers as if they were dreadful criminals.

In a criminal case, late evidence might be treated as less compelling than if it had been raised earlier on, but evidence is evidence, and if evidence demonstrates a fact, then that is a fact. Facts do not care about your timescales. Rather than allowing a tribunal to determine how much weight to give the evidence, Clause 25 forces them to give minimal weight if the evidence is supposedly late. Even if it were the most compelling evidence, a tribunal would be forced to give it minimal weight. That really cannot be right; it is not justice. I cannot believe the Minister will stand up—in a few moments, we hope—and say that this is justice. This is an artificial exercise. It is not founded in justice. It is a purely political venture to make it harder and harder for people to claim asylum, and to make it easier for them to be deported. It must be stopped.

[Lord Etherton (CB)]

My Lords, I will speak to my Amendments 82, 84, 86, 90, 91 and 96. I would like to start by taking up the point about the so-called principle specified in Clause 25(2) of the Bill

“that minimal weight should be given to the evidence.”

I am not aware of such a principle. Of course, there can be times when time limits are imposed in a court—and perhaps it can be done by statute—for evidence to be delivered, and if it is not delivered by that time it is excluded. But once evidence is before the court, as the Minister will appreciate, it has to be taken into account even if the relevant evidence—it may be documentary evidence—has been obtained improperly, when it should not have been disclosed or it has been disclosed inadvertently. Once the evidence is there, it is taken into account and given such weight as it is due. We do not have a principle in this country, so far as I am aware, of simply saying that if evidence is late we are not going to have regard to it. That seems to be a denial of justice. I certainly support all those who have spoken against that so-called principle.

I thank the noble Lord, Lord Coaker, for his introduction to the difficulties faced by minority groups, particularly LGBTQI groups, in relation to the giving of evidence. In deciding whether there is good cause for late evidence, or for failure to comply in a timely manner with a priority removal notice and so on, all my amendments—apart from one—put forward that there be, on the face of the Bill, a provision so that the difficulties and particular situations of people who have a protected innate or immutable characteristic must be taken into account. I went into this, your Lordships will remember, on Tuesday in relation to Clause 11, and there is no need for me to repeat it. It has been put very well by the noble Lords, Lord Coaker and Lord Cashman.

Apart from all the difficulties of having discreet, secret lives—particularly in the case of the LGBTQI community—and therefore perhaps not having any evidence as such, seeking information when it is required, and corroboration, from people back in the country from which asylum seekers come poses great difficulties. An asylum seeker will not want to implicate his or her family or friends, because they could suffer as a result. There are all sorts of adverse consequences as a result of conduct that is disapproved of in the many countries that proscribe sex between same-sex couples. There is a combination of a whole variety of things, in addition to all those other points made by people about the difficulty of coming to terms with one’s sexuality.

The same applies for single women. They have many similar problems: the shame of having left an abusive relationship, the shame on the family, the consequences for the family, the clandestine nature necessarily required for those women to come here—and then they may face a male authoritative figure. All these grave difficulties have to be taken into account.

I explained why this ought to be on the face of the Bill, despite the fact that the noble Baroness the Minister said it would all be dealt with in guidance, because, as the noble Lord, Lord Cashman, said, the record of the Home Office in relation to this is not good. I gave the statistics on Clause 11 earlier this week. In 2018, 29% of LGBTQI applicants were permitted asylum, but on appeal, taking the average from 2015 to 2018, nearly 40% of the appeals succeeded. That reality reflects the grave difficulties and the disbelief faced by these desperate people. That is why noble Lords will see in those amendments—apart from one; I will come to Amendment 91—that they are all to do with putting on the face of the Bill the need to take into account, wherever there is a reference to reasonable cause or what is practicable, the particular protected characteristic of the asylum seeker.

The one that is different is Amendment 91, which is one of the two amendments I have to Clause 22. Clause 22 provides for a new Section 82A to be inserted into the Nationality, Immigration and Asylum Act 2002 and provides for “Expedited appeal to Upper Tribunal in certain cases”. For there to be an expedited appeal, the Secretary of State has to

“certify P’s right of appeal”—

that is, the person served with the priority removal notice—as being appropriate

“unless satisfied that there were good reasons for P making the claim on or after the PRN cut-off date (and P’s right of appeal may not be certified if the Secretary of State is satisfied that there were good reasons)”.

What is important is that, whatever the Secretary of State has to be satisfied about, they should be reasonably satisfied. My amendment is to impose a requirement that the Secretary of State can certify the right of appeal under this clause only if satisfied on reasonable grounds, so that there is some principle that can be examined in the light of the particular facts of the case.

[Lord Paddick (LD)]

My Lords, as my noble friend Lady Hamwee explained, Clause 17 has the potential for time limits to be placed on the submission of evidence in support of an asylum claim. I am immediately reminded of the criminal caution in the Police and Criminal Evidence Act, which says:

“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court.”


There is no time limit, you notice. I accept it is not a perfect analogy, because we have already established that asylum seekers are not illegal immigrants and, as my noble friend Lady Hamwee said, this should be an inquisitorial process not an adversarial one.

In this context, a notice served on a claimant saying something along the lines of “It may harm your claim if you do not provide evidence in support of your claim as soon as it is becomes available” seems reasonable. As in criminal cases, it should be left to the court, or in this case the tribunal, to place whatever weight it thinks appropriate on the evidence based on when it was submitted, and if it considers that the timing of submissions reflects on the credibility of the claimant or not. Placing a deadline for the submission of evidence seems completely arbitrary and unreasonable, hence Amendments 78 to 81. How long it takes to secure, collate, and submit evidence will be different in every case, and may be especially delayed in the case of vulnerable claimants for the reasons we discussed on Tuesday, and the reasons noble Lords have explained this afternoon, hence Amendments 78 and 82. Even if the Government want to instruct officials, why not do this through the Immigration Rules, as has always been done?

The rest of Clauses 17 and 18 seem superfluous. To instruct a judicial body by primary legislation what conclusions it must come to when it is presented with evidence appears unnecessary, unreasonable and unconstitutional. I say that not knowing anything about the constitution, but thinking in terms of separation of powers between Executive and judiciary.

Clauses 19, 20 and 21 relate to priority removal notices. These too set an arbitrary deadline that must be complied with—in this case, after which a person is liable to be removed and deported. I say that, but Clause 20(4) says:

“A priority removal notice remains in force … even if the PRN recipient ceases to be liable to … deportation”.


Amendment 87 asks why that is. I am guessing that it is to avoid having to serve a separate evidence notice.

--- Later in debate ---

[Lord Etherton (CB)]

Is the Minister able to give an assurance that this guidance, which has been referred to a great deal, rather than putting what I would describe as cautionary provisions in the Act itself, will be ready before the Act comes into force and will be made sufficiently public so that there can be discussion and consideration of it by the general public?

[Lord Wolfson of Tredegar (Con)]

My Lords, I think I was asked a similar question, in a different context, on the police Bill. I will give the same answer, not least because I am conscious that a lot of these provisions are actually Home Office provisions. I can assure the noble and learned Lord that I will write to him with the answer to that question, so that when this matter comes back he will be in possession of the answer—rather than make an educated guess, which might turn out to be slightly inaccurate, from the Dispatch Box. I hope that is sufficient.

--- Later in debate ---

[Lord Green of Deddington (CB)]

My Lords, the noble Baroness is right to say this is the detained fast track brought back again, in effect. I simply say that this is a very good idea. Leaving aside the detail, if experienced officials can see that a case is really very unlikely to be a genuine one, there should be a fast track and the person should be detained. The details can be sorted, but it is the right way to go. It is what we need to do, given the enormous wave of applications we are now receiving.

[Lord Etherton (CB)]

I speak in support of the amendment in my name in relation to Clause 26, Amendment 98. It is that

“The Secretary of State may not give … certification if the appellant claims to have a protected characteristic … which is innate or immutable, and that the characteristic is relevant to the appeal.”


Cases in which the appellant is an asylum seeker who has an innate and immutable protected characteristic that is relevant to the appeal are not appropriate for the very short timescale set out in Clause 26(3). I think the noble Lord the Minister himself acknowledged, and the noble Baroness the Minister accepted earlier, that many of these cases raise difficult issues and that guidance that we wait to see will be issued to provide assistance. The paradigm case again is that of the LGBTQ+ asylum seeker. Establishing whether or not they are in fact LGBTQ, the adequacy of the evidence in support on that issue—whether or not there is a genuine fear of persecution because of that characteristic, whether what they have done in relation to pursuing their claim has been reasonable, even if it was not always in compliance with the required time limits—makes their appeal inappropriate for an accelerated appeal.

Once again I say, as others have said, that this conclusion is reinforced by the significant proportion of successful appeals that have been brought by LGB refugees. That is something we simply cannot ignore. Nearly 40% of appeals taken in the period from 2015 to 2018 succeeded.

[Lord Paddick (LD)]

My Lords, for the reasons I explained in a previous group, accelerating appeals processes is not the solution to the last-minute successful appeals against removal or deportation. Rather, it is improving the efficiency and effectiveness of the Home Office. Clause 26 is another clause with the wrong solution to the problem, and while Amendments 97 to 99 seek to limit the damage that accelerated appeals might cause, it is more lipstick on more pigs.

To my shame, I am struggling to keep my head above water on this Bill and asking that Clause 27 does not stand part of the Bill does not go far enough. Already the Home Secretary can certify that the decision to remove or deport can be appealed against only once the claimant has been removed or deported, which makes such an appeal more difficult. We should have tabled an amendment to remove that power, let alone Clause 27, which proposes to go one step further, allowing the Secretary of State to certify that a claim cannot be appealed against at all if she thinks it is clearly unfounded. That should be a decision for the tribunal and not the Executive.

Nationality and Borders Bill

Lord Etherton Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

My name is down in respect of two stand part notices, in relation to Clause 28 and Schedule 3. This is an unworkable, highly expensive and politically driven policy which is not even backed up by the agreements with other countries that are needed to bring it into effect. The policy appears based on the Australian model, which was costly and did not seem to provide as much deterrent effect as intended as far as those arriving by boat were concerned.

[Lord Etherton (CB)]

My Lords, I add my name to that of the noble Lord, Lord Rosser, in giving notice of my intention to exclude Clause 28 and Schedule 3 from the Bill. To move an asylum seeker to a detention or reception centre offshore while their claim is being assessed is wrong in principle, oppressive in practice, contrary to the 1951 convention and lacking sufficient safeguards under the Bill. Many speakers referred to Australia’s policy of offshore processing, as an example both of how awful it can be and, by one speaker, of a successful operation to deter unlawful immigration. It is worth putting a little flesh on the Australian experience.

In 2013, Amnesty International published a report, This Is Breaking People, highlighting a range of serious human rights concerns at the Manus Island, Papua New Guinea, immigration detention centre. In an update, Amnesty International reported that, in two days in February 2014,

“violence at the detention centre led to the death of … a 23-year-old Iranian man, and injuries to more than 62 asylum seekers (some reports suggest up to 147 were injured).”

It said in the report:

“There are credible claims that the asylum seekers … were attacked by private security guards, local police and possibly other contractors working at the centre. The response by security guards and local police to protests by asylum seekers was brutal and excessive.”


Amnesty’s report raised a number of concerns about living conditions, including overcrowding, cramped sleeping arrangements, exposure to the elements, as well as a lack of sufficient drinking water, sanitation, food and clothing. The update said:

“Since the violence on … February 2014, Papua New Guinean nationals no longer enter the compounds for catering or cleaning … Asylum seekers are delivered meals in take-away packs for self-distribution and also bear sole responsibility for cleaning the ablution blocks.”


At the time of Amnesty’s site visit in March 2014,

“ablution blocks in all compounds were dilapidated, dirty, mouldy, and”

some latrines were

“broken and without running water.”

Amnesty International expressed concern about the issue, saying:

“Australian and Papua New Guinean authorities are deliberately denying asylum seekers’ right to access lawyers and human rights organizations.”


In an article published by the Australian Institute of International Affairs in February 2017, it was said:

“LGBT asylum seekers are particularly vulnerable … and face significant disadvantages and dangers. In detention they experience discrimination, harassment and violence from other detainees and from members of staff. The detention environment has serious long-term effects on their mental and physical well-being.”


From time to time, Ghana and Rwanda have been floated in the media as places to which asylum seekers in the UK might be transferred, although Ghana has officially denied any such possibility. The appropriateness or inappropriateness of such locations for LGBTIQ asylum seekers is manifest. In Ghana, same-sex sexual acts carry a potential sentence of up to 25 years. There is a current proposal to raise the minimum sentence to 10 years and to require conversion therapy. LGBTIQ people face homophobia, physical violence and psychological abuse.

In Rwanda, same-sex sexual relations are not unlawful, but there are no anti-discrimination laws relating to sexual orientation or gender identity, including in relation to housing, employment and access to government services, such as healthcare. A 2021 report on Rwanda by the Immigration and Refugee Board of Canada cites sources disclosing discrimination and stigma facing LGBTIQ people in religious and civil society, the media and business, harassment by the police and the use of indecency and vagrancy offences against transgender and gender-diverse people. The experience in the offshore detention centres I referred to in Australia and the position in Ghana and Rwanda show the inappropriateness of holding asylum seekers in offshore detention or reception centres.

In particular, the following are not answered in the Bill, the Explanatory Notes or any other guidance from the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, assuming that they are being processed under UK law, which is complex and difficult? Secondly, legal aid and advice is available to refugees in the UK, but there is nothing to suggest that it will be available to refugees in offshore holding centres. Thirdly, and as has previously been pointed out, if conditions in the proposed offshore centre are so bad as to cause physical or mental harm to refugees, whether through physical conditions in the centre or—in the case of single women or LGBTIQ members, for example—because of discrimination, harassment, bullying and violence from staff or other asylum seekers, will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign country?

Until these fundamental questions are answered and set out expressly in the legislation, there should be no question whatever of exporting refugees to offshore holding centres. To do so would be inconsistent with the spirit and the letter of the refugee convention and the UK’s own history of welcome to genuine asylum seekers over the centuries.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken to this group of amendments, and I thank my noble friend Lord Kirkhope of Harrogate for tabling his Amendments 100, 101 and 102.

On the back of my noble friend’s point, it might be helpful to clarify the definitions of “asylum seeker”, “refugee” and “economic migrant.” An asylum seeker is a person, either in transit or awaiting a decision, seeking the protection of a state under the terms of the refugee convention. A refugee is a person who meets the definition of “refugee” in Article 1 of the refugee convention—they do not have to be recognised by a state to be a refugee—and so it follows that a “person with refugee status” is a person who meets the requirements under the UK Immigration Rules to be granted refugee status.

The term “economic migrant” is inexact. It may, of course, refer to a person who is using or looking to use economic routes, such as FBIS, to enter a state. However, there will be people who meet the definition of Article 1 of the refugee convention but are looking to enter the UK and choosing it over other countries purely for economic reasons. One of the objectives of the New Plan for Immigration is to ensure that the most vulnerable can be protected, which in turn means that those attempting to enter the UK for economic reasons should use the appropriate routes.

Changes within Clause 28 via Schedule 3 are one in a suite of critical measures designed to break the business model of people smugglers and are the first step in disincentivising unwanted behaviours—for example, by dissuading those who are considering risking their lives by making dangerous and unnecessary journeys to the UK in order to claim asylum. By working to establish overseas asylum processing, we are sending a clear message to those who are risking their lives and funding criminal gangs both here and abroad or abusing the asylum system elsewhere that this behaviour is not worth it. We must make it easier to ensure that such people are simply not allowed to remain in the UK.

It also might assist noble Lords—and indeed my noble friend Lord Kirkhope of Harrogate—to know that for nearly 20 years, it has been possible under UK law to remove individuals from the UK while their asylum claim is pending if a certificate is issued under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, so this is not a new concept. What this measure does is amend our existing legal framework to make it easier to remove such individuals. I do not know which noble Lord asked this, but Schedule 3 also defines the term “safe third country”.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, in moving Amendment 106 in the name of, and at the invitation of, the noble Lord, Lord Dubs, I will speak also to Amendments 109 and 110.

If Clause 36 is not amended or deleted, it will contradict Article 31 of the refugee convention. It seeks to punish or penalise a refugee for arriving in the UK to make an asylum claim by a route that took them through other countries. The requirement in the refugee convention to come directly was intended only to prevent a person who had acquired refugee status and protection in one country deciding to switch to another. Excluding a person from asylum in the UK simply because they stopped in France, Germany or Belgium, perhaps for a night’s rest, is completely unreasonable. The UK courts have confirmed that any merely short-term stopover en route to an intended sanctuary cannot forfeit the protection of Article 31 of the convention.

Any other interpretation, as the Government seek to impose in Clause 36, means, as in so much of this Bill, a shirking of the sharing of international responsibilities, such that looking after refugees falls overwhelmingly on countries neighbouring the countries of conflict from which the person is seeking to escape. Therefore, Amendment 106 would at least amend the clause, which, however, we might find later, needs to be deleted. I beg to move.

[Lord Etherton (CB)]

My Lords, I will speak to Amendment 107 in my name, which relates to Clause 36 and provides that a refugee will have come directly to the United Kingdom for the purposes of Clause 11, notwithstanding that

“they have passed through the intermediate country on the refugee’s way to the United Kingdom by way of short-term stopover”.

Those words in the amendment reflect the reasoning and decision of the Administrative Court in Adimi, where my noble and learned friend Lord Brown presided. They also reflect the approval of Adimi by the Appellate Committee of this House in a case called Asfaw.

In this respect, Clause 36 is an important part of the Government’s policy. The reason for that is that it provides a definition of “directly” for the purposes of Clause 11 that makes a distinction between group 1 and group 2 refugees. Under the provisions of Clause 11, if the refugee does not come directly from the place of persecution, they inevitably cannot be in group 1.

Secondly, it is important because, as I pointed out in a previous debate on this Bill, the provisions for describing coming to the United Kingdom directly, as defined in Clause 36, also reflect the provision in the admissibility provision in Clause 15. Your Lordships will recall that, in Clause 15, if there is a connection with another state, the refugee’s claim is inadmissible; in fact, it is not recognised as a claim at all and there is no right of appeal. Clause 15 provides that, if you fall within one of the five conditions inserted in the Nationality, Immigration and Asylum Act 2002 by the clause, you have a connection. One of those conditions, condition 4, is that

“the claimant was previously present in, and eligible to make a relevant claim to, the safe third State … it would have been reasonable to expect them to make such a claim, and … they failed to do so.”

So there are two essential elements of the policy behind the Government’s provisions for asylum, where the question of the meaning of coming “directly” is extremely important. I pointed out to the Minister, the noble Baroness, Lady Williams, that there was a muddle here. If condition 4 in Clause 15, as I have described it, is satisfied, you never get to a distinction between group 1 and group 2 because your claim is inadmissible. The noble Baroness was going to look at that and let me know the position from the Government’s perspective, but I have not yet heard from her.

Before I address what coming “directly” means—as I said, my amendment reflects the reasoning and conclusion in Adimi, and the adoption of the decision in Adimi by the Appellate Committee of this House in Asfaw—I want to say a couple of things about what appears to be the approach of the noble Lord, Lord Wolfson, to interpretation. I do not think you need to be a lawyer to appreciate that if, under the aegis of the United Nations, you agree with other states in the world that you will conduct yourself in a particular way and that an agency of the United Nations has a responsibility for overseeing both the implementation of that agreement and that disputes between member states in relation to the meaning and the application of the agreement—here, the refugee convention—will be referred to an international court, there must be a point in time when one has to identify core values. If there are no core values, there is nothing to adjudicate.

The noble Baroness, Lady Chakrabarti, referred to Article 35, which requires member states to co-operate with the United Nations body responsible for oversight in relation to the implementation of the refugee convention. So what one has to do here is decide whether what the Government are doing in putting forward these proposals goes beyond the core principles in the refugee convention, which must be applicable generally to member states—otherwise, all the clauses I have referred to, Article 35, co-operation and adjudication by a court are totally meaningless and impracticable.

So I take issue with the broad statement of principle, as I understand it, put forward by the Minister. He said that it was perfectly acceptable for every member state signed up to the refugee convention to decide, from its perspective, what the convention meant. If that were correct and he was saying that it was for Parliament to decide what it meant for the United Kingdom, it would mean that changes could be made by each successive new Government as to what they felt would be appropriate to support their policy. Well, that is obviously nonsense, if I may respectfully say so.

What the courts have done—and this would be the approach of the all the courts of the countries signed up to the convention—is try to understand what the refugee convention was intended, by those who made it, to mean. The starting point is always the travaux préparatoires leading up to the convention—what was said and what was done—and then trying to understand whether there has been a deviation and, if so, why. That has been exactly the approach put forward and implemented in both Adimi and Asfaw.

The starting point, inevitably, for the interpretation of this particular convention is, as I think the Minister said, the Vienna convention on the interpretation of treaties. I do not think it has yet been said that we are entitled to change, and that we have changed, that treaty according to what we think it ought to say. It provides in Article 31.1:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”


That phrase, as has been noted by the noble Lord, Lord Rosser, I think, was applied by the UK’s highest court, the Supreme Court, in a case called ST (Eritrea) in 2012 as meaning that there is a duty to give the refugee convention

“a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble”.

I have to say as a starting point that I have seen nothing so far in this part of the Bill which is a “generous and purposive interpretation”, having regard to humanitarian objects and the broad aims reflected in the preamble of the 1951 convention. Every provision that people have addressed appears to be, as it has been put, a mean-spirited approach to refugee applications.

It is against that background that I now turn to the meaning of “directly”. I have already referred to the clear decision in Adimi on this point about stopping at intermediate countries by way of short-term stopover. Just to give this a bit of flesh, what the noble and learned Lord, Lord Brown, said then was:

“I am persuaded by the applicants’ contrary submission, drawing as it does on the travaux préparatoires, various Conclusions adopted by UNHCR’s executive committee … and the writings of well respected academics and commentators … that some element of choice is indeed open to refugees as to where they may properly claim asylum. I conclude that any merely short term stopover en route to such intended sanctuary cannot forfeit the protection of the Article, and that the main touchstones by which exclusion from protection should be judged are the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing.”

[Baroness Scott of Bybrook (Con)]

My Lords, can I remind the noble Lord of the Chief Whip’s reminder of brevity please? We are running extremely late at the moment.

[Lord Etherton (CB)]

In Anwar, as I have said, the Supreme Court approved of that and in doing so again referred to the travaux préparatoires and the way in which those words came into the convention. They were put in at the last minute to appease the French representative because they were concerned about refugees claiming asylum in France who could have applied elsewhere. In 2001, an expert round-table conference was held in Geneva by different countries and disciplines which again upheld the interpretation of a short-term stopover not affecting coming directly from territories where there was persecution.

In a previous debate on this subject on Clause 11, the Minister relied on a provision in Section 31(3) of the Immigration and Asylum Act 1999 which had very similar wording to what we find in Section 36. What she did not say, and which comes out of the very detailed speeches of Lord Bingham and the noble and learned Lord, Lord Hope, is that when those provisions in Section 31 of the 1999 Act were being debated, the Attorney-General specifically said, in light of the view of the UNHCR, that there was flexibility in the concept of arriving directly. So, far from that Act being a precedent for a strict interpretation of those words, his elaboration meant that there was, in fact, a correspondence with the meaning arrived at in the courts of this country in Adimi. For those reasons, I say that the definition of arriving directly in Clause 36 is incorrect. It does not meet the international standards of the UNHCR and is contrary to the convention.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I shall be very brief. I am trying to work out exactly what I am being asked to agree to here. Perhaps I may ask the noble Baroness, Lady Ludford—maybe not the noble Lord, Lord Dubs—and certainly my noble friend on the Front Bench: am I being asked to end or at least change the first safe country principle by accepting these amendments? If that is the case, I have grave concern about an increase in what is known as forum shopping. Perhaps I can say to the Hansard writers that forum is spelled “forum” and not “foreign”, which is how it was reported last time. Foreign shopping is what you go to Paris to do; forum shopping is a rather more serious matter.

It is important because this country is an exceptionally attractive place for people seeking to find the best future for themselves. I explained last time that the very fact that debates are going on your Lordships’ House shows how much concern we have to make sure that the rights of people are looked after. It is also an extremely flexible job market once you are here. Getting and maintaining a job is much easier than in some of the areas such as France, where there is a much more rigid job market. There is a non-contributory health and social security system. There is a diaspora from nearly every country in the world. Your mates are here, so you want to come here to join them. We would all want to join our mates. As a last point, you have learned the English language, which is the lingua franca of the world and, in particular, the lingua franca of technology.

I hope that, when my noble friend comes to answer the debate, he will bear in mind that, if we were to accept this, it will open up the borders for people who are seeking—I do not say that they should not seek—the best future for themselves and, as such, are not abiding by the first safe country principle. We are not in a position to provide the answer to a lot of these people.

Nationality and Borders Bill

Lord Etherton Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[Baroness Stowell of Beeston (Con)]

My Lords, may I just ask my noble friend a question, based on listening to this debate and looking at Clause 11 as it stands? Subsections (5) and (6) say that the Secretary of State “may” treat group 1 and 2 refugees differently. My interpretation is that this clause is introducing an element of discretion to the Home Secretary to deal with a situation in a way that allows some difference of treatment, should she see fit—not a requirement that she must do so.

On the point the noble Baroness, Lady Jones, just made in response to my noble friend Lord Horam, I say that the Government are not seeking not to comply with the refugee convention, but seeking to allow for some flexibility and discretion to deal with some of the changing situations in this context, which are very different now from when the convention was introduced 50 or so years ago.

[Lord Etherton (CB)]

My Lords, I entirely endorse and support what the noble Lord, Lord Kerr of Kinlochard, has said. I do not want to develop this as a lawyer, because the issues can be very well understood by anybody with any degree of common sense. The starting point is that the English courts have reached a view about the meaning of “directly” in the convention, and the contrary view that has been rejected by the courts is the one found in Clause 36; and Clause 11 is to be read with Clause 36. I take issue with the proposition that the introduction of “may” in some way or other alleviates this problem. It does not. The Government have adopted a view about the meaning of the convention, and the meaning of “directly” that is critical to the division between groups 1 and 2, which has been rejected. Perhaps more importantly even than the fact that it was rejected expressly by the English courts is that it has not been adopted by the UNCHR either, which has followed the English jurisdiction since the expert round-table conference in Geneva in November 2001, set up specifically to discuss and agree Article 31.

Nationality and Borders Bill

Lord Etherton Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

The likelihood of the UK Government being able to send back an asylum seeker to any third country that the Government have no agreement with appears unlikely, as the noble Lord, Lord Rosser, has said. The other place may be bored with too many take-out amendments. As an alternative, therefore, Amendment 32, in the name of the noble Lord, Lord Rosser, to which I have added my name, would ensure that the powers in this clause would be brought into force only once the Government have agreed a formal returns agreement with the third country that the Government claim the asylum seeker has a connection with and to which they intend to send them. Amendment 32 is not as good as taking out the clause but it is better than no change at all, so we will support this amendment in the event of a Division.

[Lord Etherton (CB)]

My Lords, the provisions for an admissible asylum claim, where there is a connection —as defined in new Section 80B, which is to be inserted into the 2002 Act—are quite plainly contrary to the refugee convention and a breach of the UK’s obligations under it. In particular, the conditions in new Section 80C(4), which is where a claim could have been made to a third state—the claimant was present in a state eligible to receive and offer a safe space for him or her—and new Section 80C(5), where the claimant should have made a claim to a safe third state whether or not he or she had ever visited or been associated with it, are both plain breaches of the convention and find no place in its wording.

Condition 4 in new Section 80C is really another way of stating the coming directly from the country of persecution requirement in Clause 11 and Clause 36(1). On Monday this House rejected the Government’s interpretation of Article 31 of the convention in relation to that requirement, by rejecting Clause 11 as part of the Bill. With regard to condition 5 there is nothing whatever in the convention to justify rejecting as inadmissible a claim to asylum by a refugee as defined by the convention in the circumstances specified there. The only explanation, or example, given in the Explanatory Notes, is where the asylum seeker has close family members in the safe third country, whether or not there is another connection of any kind whatever.

Both these conditions are a rewriting of the convention and not a legitimate interpretation of it. The fact that Clause 15 provides, in new Section 80B of the 2002 Act, that a decision that a claim is not admissible because of an asylum seeker’s connection to a safe third state is not subject to a right of appeal, makes Clause 15 an all the more egregious breach of the convention. There is, in effect, no legal redress for the refugee if the Secretary of State has declared the asylum claim inadmissible under the proposed safe third state provisions.

Logically this leads to the conclusion that Clause 15 should be left out of the Bill. I am content, however, to support the alternative approach of the noble Lords, Lord Rosser and Lord Paddick, in Amendment 32, which is to fix a start date for the Clause 15 provisions if a formal returns agreement has been reached between the United Kingdom and a third state to which it is said the asylum seeker has a connection.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords for their contributions. I say at the outset that the Government have been consistent and clear about their belief that people who require international protection should claim asylum in the first safe country they reach, rather than make dangerous and unnecessary journeys to the UK to claim asylum here.

Inadmissibility processes, in particular the first safe country principle, are well established, both in the UK, through long-standing measures in the Immigration Rules, and internationally, including as part of the Common European Asylum System. For example, the procedures directive recognised at recital 22 that

“Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country.”

An overriding objective of these processes is to prevent secondary movements by those who have already reached safety. By definition, that is not about denying safety to those who need it but about having rules which aim to reduce unnecessary travel across borders by those who are already safe.

Amendment 31 seeks to remove third-country inadmissibility powers from primary legislation altogether. It would weaken our ability to deploy inadmissibility processes appropriately and decisively within a strong legal framework, and with that, erode our ability to deter unsafe migration and focus our resources on those most in need of our help.

We are confident that the measures in Clause 15 are fair, appropriate and fully in line with our international obligations. The clause sets out the strict circumstances in which a person’s behaviour or circumstances could lead to inadmissibility action. It requires decision-makers to take account of exceptional mitigating factors that may apply when considering those circumstances. It sets out minimum criteria that must be met by any country before it can be regarded as a safe third country of return, including it being one where a person would not be at risk of persecution, would not experience a breach of Article 3 ECHR rights, and would not be sent to another place where they would be persecuted.

The primary protection afforded refugees under the refugee convention and its protocol is non-refoulement, including no onward refoulement. It is therefore clear that non-refoulement is the primary requirement of “safety”. The same is true for protection afforded under Article 3 of the ECHR. Furthermore, an individual may not meet the definition of refugee under the convention but still require protection. A state may still be safe for them where they will not be refouled, even though they are not a refugee. Therefore, our criteria for determining whether a country is safe, and for subsequently making a claim inadmissible, upholds the UK’s obligations under international law.

Nothing in Clause 15 requires extensive delay in processing inadmissibility decisions. It is right that we consider inadmissibility action and, where appropriate, seek the agreement of the relevant third country, or countries, for the person’s admission there. In some cases, particularly where we are reliant on case-by-case requests to partners, this may take some time, but we have not operated, and will not operate, the inadmissibility system in a way that puts someone in indefinite limbo, as the noble Lord, Lord Paddick, talked about—able to access neither the asylum system in the country of proposed removal nor the UK system. That would be contrary to the object and purpose of the refugee convention. Our existing processes, which Clause 15 strengthens, are clear that where return cannot be arranged within a reasonable period, the person’s claim would be admitted to the UK asylum system for substantive consideration. That ensures compatibility with the refugee convention.

Individuals will have an opportunity to explain their actions and circumstances prior to claiming asylum in the UK, and that explanation will be carefully considered in deciding whether an inadmissibility decision is appropriate. They will also be able to make representations on why any safe third state is not safe in their particular circumstances. Any decision to declare a claim inadmissible and remove an individual will be subject to the standard principles of public law, including rationality. The inadmissibility provisions are therefore compatible with the refugee convention. For these reasons, I do not agree with the amendment seeking to leave out the clause.

Turning to Amendments 32 and 86, as we have stated on previous occasions, the UK-EU joint political declaration made clear the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements on issues around asylum and illegal migration. We continue to do that with EU member states on these issues. We have been clear that formal agreements, though valuable, are not the only way in which an inadmissible asylum seeker may be accepted for removal by a safe third country. I think it is right to seek removals on a case-by-case basis where appropriate and, with the consent of the relevant country, make that removal. This approach has formed part of our inadmissibility process since the changes to the Immigration Rules in December 2020—and, until the Bill’s provisions come into force, we will continue to rely on the Immigration Rules.

The structure of case-by-case removal arrangements will not be uniform for each country of removal. A wide range of factors will still affect the formality and administration around such removals, not least the diverse organisational structures in place in the third country, the levels of centralised and decentralised decision-making, and other circumstances that may be specific to the individual. These arrangements will inevitably vary, but the framework in which cases are considered, within which third countries are assessed for safety and claimants are progressed to removal, will not. We have a clear and consistent approach to these fundamental and important issues, and we stand by our international obligations.

I do not agree that these provisions are unworkable without formal agreements in place. We aim to make the process work as a whole and to return people where appropriate. Where it becomes clear that an individual cannot be removed to a safe country, either because we do not have formal returns agreements in place or because a case-by-case removal cannot be agreed within a reasonable period, the individual’s asylum claim will be considered in the UK. To go back to the assertion made by the noble Lord, Lord Paddick, I say that this will ensure that we do not keep people in limbo, in accordance with our obligations under the refugee convention. I do not think this amendment is required and ask that it be withdrawn.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I think the noble Lord, Lord Horam, makes the mistake of thinking that this House trusts the Government. Of course, it does not—or rather, by and large, the majority in this House does not, because the Government have broken their word so many times.

I will speak briefly as well, because I am very concerned that we can vote as much as possible but I do not understand why the Government are trying to move people to other countries. This makes no sense, and it is one of the many ways that the Government are trying to avoid their obligations. Instead of trying to deport people while the Government dither about processing their claims, we should provide them with decent accommodation and work so that they can start to retrieve some of their lives. If there was ever a moment when this Government should come out against the far-right ideology within their own ranks, this is it.

[Lord Etherton (CB)]

My Lords, I entirely agree with and support what has been said by the noble Baroness, Lady Stroud, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Cashman. Offshoring while an asylum seeker is having their claim assessed is wrong in principle, oppressive in practice and, critically, lacking sufficient safeguards under the Bill. The noble Lord, Lord Horam, mentioned Australia’s policy of offshoring as a successful process, as he did on Monday. On the contrary, from a humanitarian perspective, Australia’s offshoring shows all the defects and injustices of such a policy.

In Committee, I mentioned the 2013 Amnesty International report This is Breaking People, highlighting a range of serious human rights concerns at the immigration detention centre on Manus Island, Papua New Guinea. I also mentioned and quoted from Amnesty’s follow-up report, which stated that on 16 and 17 February 2014, violence at the detention centre led to the death of one young man and injuries to more than 62 asylum seekers. Indeed, some reports suggested that up to 147 were injured. I quoted more from this report in Committee, but it is not appropriate or necessary to repeat that now.

What is absolutely critical—here I take serious issue with the noble Lord, Lord Horam—is that before any such notion of offshoring can be pursued by the Government under this or any other legislation, certain assurances have to be provided in primary legislation, none of which is addressed in the Bill, the Explanatory Notes or any other guidance by the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, which is complex and difficult? Is that going to be done four and half thousand miles away on Ascension Island? Secondly, legal aid and advice is available to refugees in the United Kingdom. Is there anything to suggest that it will be available to refugees in offshoring holding centres? If conditions, as in Australia, in the proposed offshore centre are so bad as to cause physical or mental harm to refugees—whether through physical conditions in the centre or, in the case of single women or LGBTQI people, for example, because of discrimination, harassment, bullying and violence from staff or other asylum seekers—will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign countries?

These are fundamental questions. They cannot be left outstanding while individual arrangements with separate countries are being negotiated or considered. They have to form the legal framework within which any such discussions should take place and be seen on the face of any legislation, including this Bill. Although I raised these points in Committee, the Government have not given any answer on any of those issues and, until they have done so, I suggest that these amendments necessarily have to be carried.

[Lord Paddick (LD)]

My Lords, I want to briefly restate what I said in Committee. Not only is the Home Office seeking the power to remove an asylum seeker to any country while their claim is being considered but it is seeking to remove them to a country and then tell that country, “If you think they are a refugee, you take them; they’re not our problem any more”.

As the noble and learned Lord, Lord Etherton, has just said, according to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny. It has cost it over half a billion pounds a year, according to the British Red Cross, and failed to stop those seeking asylum, including by boat. Evidence to the Public Bill Committee in the other place from independent academics supports these conclusions. The UNHCR has

“voiced its profound concerns about such practices which have ‘caused extensive, unavoidable suffering for far too long’, left people “languishing in unacceptable circumstances’”

and denied them “common decency”.

I accept what the noble Lord, Lord Horam, says: the Government should be looking at every option, but surely they should be taking into consideration the evidence that I have just cited and considered any counterevidence. Then, having worked out its practicalities and decided whether it is to go ahead, they should bring forward legislation—not bring forward legislation and then decide whether they are going to use it.

Clause 28 and Schedule 3, as drafted, should not be part of the Bill. We support all the amendments in this group that seek to prevent anyone being removed from the UK while their asylum claim is being considered, particularly Amendment 35, to which I have added my name.

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[Lord Cashman (Lab)]

My Lords, I shall be brief and summarise the position I took in Committee. I support all the amendments in this group, particularly those relating to Clauses 31 and 32. I do so because the amendments will protect the most vulnerable, including women and girls who have been subjected to gender-based violence and abuse and the long-term harm those cause. They will also protect other vulnerable groups with protected characteristics, and recognise the immense and deep trauma such individuals have suffered but often deny because of a deep sense of shame. The amendments also restore the principle of a civilised and humane approach to asylum and ensure that we conform with the UN refugee convention and our international legal obligations. Finally, I have been deeply moved by the letters and some postcards I have received, particularly from women and other vulnerable groups, who express that they have much to fear from the clauses and the effects that they will have on their lives.

[Lord Etherton (CB)]

I have two amendments in this group, but they are quite distinct from what has been debated so far and distinct from each other. One is concerned with Clause 32(5) and the other concerns Clause 36(1). Because the amendment to Clause 32(5) is a manuscript amendment tabled only today, if I may, I shall start with that to Clause 36(1), because your Lordships will be familiar with the background to that.

Clause 36(1) seeks to define, for the purposes of the convention, the meaning of coming “directly” to the United Kingdom from a country of persecution. The same definition was relevant to Clause 11, because that cross-refers to the provisions of Clause 36, so we have in Clause 36 as a matter of proposed domestic legislation and as a matter of interpretation of Article 31 of the convention the same definition of arriving “directly”. Your Lordships will recall that the issue was whether, as the Government contend, if an asylum seeker passes through an intermediate state on the way to the United Kingdom from the place of persecution—through a place considered to be somewhere they ought reasonably to have applied for refugee status—they have not come “directly”. In fact, the only way they could come directly, if they are surrounded by other countries—Ukraine is a good example—would be to fly.

The House rejected that definition, because it accepted the amendment to remove Clause 11. It expressly rejected that definition of arriving “directly”. Amendment 46 simply takes out the corresponding provision in Clause 36(1), which was incorporated in Clause 11 but would otherwise simply remain at large but, so far as I can see, would have no relevance whatever to anything else in the Bill. If I am wrong on that and there is some purpose in retaining Clause 36(1), although that interpretation of arriving “directly” was rejected by the House when it approved the removal of Clause 11, the House would want to know what it is being retained for: why it is being retained and in relation to what other provisions in the Bill. My amendment would remove Clause 36(1) from the Bill.

[Baroness Hamwee (LD)]

This is another of those occasions when saying “From these Benches, we support” and not much more must not be taken as any lack of support for all the amendments in this group, nor any dilution of the points made.

I just want to register concern about Clause 32(2). The noble Baroness, Lady Lister, spoke to this and I record our support, particularly for the amendment that deals with what is meant by “a particular social group”: that you do not qualify unless the group in question is perceived as being different by surrounding society. As has been pointed out to noble Lords in briefings, a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic but that trafficked women as a group are perceived as having a distinct identity in the country of origin. That is very difficult to show. Judged by the perceptions of the society in her country? It would be very challenging to find objective evidence on that, and on that being a distinct group. It is very dangerous to suggest that one can tell those things by looking—or, rather more accurately, perceiving.

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I remind the House that far from being clear what the position is in law, there has been a degree of confusion in this area for many years. One can cherry-pick Upper Tribunal decisions from here, there or anywhere, but I am afraid the fact is that there is a clear mismatch between how the concept of “particular social group” has been defined in current legislation and government policy in different tribunal judgments and how it has been interpreted in some courts. Therefore, we have set out a clear definition in primary legislation, because at the moment there is no universally agreed definition.

[Lord Etherton (CB)]

I am afraid that I have been caught rather short on procedure, so I hope the House will indulge me. I did not address Clause 32(5), which is the focus of my manuscript Amendment 45A, but the Minister is now dealing with Clause 32. It would not be appropriate in the circumstances to make a speech on this, but I ask the Minister to respond to two questions.

First, in general terms, what are these acts that are referred to in Clause 32(5) that are criminal and, in some way or other, said to bear upon a quite different issue: sexual orientation, which is an identity? At the moment, it seems as though Clause 32(5) is mixing apples and pears—one on identity, to live a life freely and openly and without fear of persecution, which is what orientation is, and then we have some exclusion or cutting down on acts. I assume that we are not going back 100 years and saying that all those people who are LGBTQI have some inclination to paedophilia: I hope that we are not saying that.

Secondly—

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt the noble and learned Lord, but I think my noble friend is able to answer the questions that he is posing. Moreover, this is Report, so although noble Lords can rise for small points of clarification, it should be no more than that.

[Lord Etherton (CB)]

I have one more point of clarification. Could the Minister explain what the position will be for refugee asylum seekers who are under 16 and for whom any sexual relations would be a criminal offence?

[Lord Wolfson of Tredegar (Con)]

I was coming to each of those points in my speech. I am not going to do so just yet, because I was, it is fair to say, on a different point, but I will come to those points in due course when I deal with the manuscript amendment.

Before the noble and learned Lord’s intervention, I was setting out the definition of “particular social group.” I was making the point that there is no universally agreed definition and no authoritative definition of that phrase. There is, as I have said, conflicting tribunal-level case law. For example, the right reverend Prelate the Bishop of Durham referred to the Fornah decision of this House in its former judicial capacity. The point there is that it is obiter. That is really important, because that bit is obiter: it is not part of the ratio of the decision. That really underlines my point that we cannot, with great respect, cherry-pick passages of decisions which are obiter, particularly decisions of the Upper Tribunal. Ultimately, it is for the UK, as a member state and signatory, and, for this Parliament—not the Home Office—to interpret the refugee convention. That is what we have sought to do here.

There are two clear conditions, and let me underline the following point: this is not a change in government policy. These conditions do not change the position—they reflect current government policy. The first condition is that members of the group share either an innate characteristic, a common background test that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.

The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. The amendment would mean that a group need meet only one of the characteristics to be considered a particular social group. Obviously, that would significantly widen the scope of people who could qualify as a refugee but, relevantly for this debate, it would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It would broaden the definition to cover potentially transient factors such as an individual’s occupation, and that, we say, is incompatible with very purpose of the refugee convention.