Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Sandhurst (Con)]

I am obliged. So there we are.

[Lord Etherton (CB)]

I have a very short point to make. I was delighted to hear the noble Lord, Lord Hodgson of Astley Abbotts, say that he was a great fan of the rule of law, but he, like the noble Baroness, Lady Fox, seems to think that it is something that can be moulded in accordance with political desire in Parliament. We should be quite clear about this, and the point is not a difficult one.

The rule of law is made up of various ingredients. One of those ingredients is compliance with international obligations. If you do not like the obligations and wish to comply with the rule of law, you either secede from the convention or international obligation or you change it. So long as it is there, you have to comply with it if you want to say that you are a country that observes the rule of law. We are a leading world democracy. If we do not abide by the rule of law, we place ourselves in the company of numerous rogue nations. This country deserves better than that.

[Lord Griffiths of Burry Port (Lab)]

I feel a little intimidated to follow such an intervention. I am not a lawyer either, but I am a member, as I have said repeatedly in the past, of the delegation from this Parliament to the Council of Europe; and I can attest, from conversations I have had in its migration committee, plenary sessions and other meetings in Strasbourg and other parts of Europe, that there are a number of countries in Europe at the moment that are looking to us to uphold standards that will give them the courage to maintain their current position with regard to these conventions. It is a very perilous moment. Our role in Europe is key to keeping quite a lot of others on board, and I want to emphasise that.

I feel it almost impossible for me to want to give even a shred of support to a Bill that, as has been quoted, has as its preface a statement by the Minister that he cannot give any guarantee, et cetera. I find myself at a loss to be looking at a piece of legislation—a law that will go on to our statute books—that begins this process with this degree of ambiguity written into it. Can lawyers not give the rest of us a starting point more certain than that?

Finally, let me say at this point that, long before I got involved in European matters, I had a lot to do with migration from Haiti to the United States, which is not a signatory to the convention. The methods open to countries that are not signatories to the convention are not pleasant at all, and I simply would not want the United Kingdom to have the opportunities to behave in that way.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?

The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention, under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.

I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.

The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.

To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.

[Lord Etherton (CB)]

My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.

The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.

The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs, or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.

I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

[Lord Hope of Craighead (CB)]

My Lords, I can be very brief. I have one amendment in this group, Amendment 39, which raises the same point as Amendment 6 in the name of the noble Lord, Lord Carlile of Berriew, on retrospectivity. I support all the amendments in his name to that effect. The only point I would have added would have been to read out my explanatory statement, which my noble friend Lord Kerr of Kinlochard has already done, placing particular stress on “for good reason”. If the Minister is not going to accept these amendments, I hope he can give the good reason in each case.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

It is the concern of several of us that the proposed new regime of detention facilitated by the Bill does not distinguish whether you are a child, a victim of trafficking or a pregnant woman, and that you will be subject to initial detention of not less than 28 days. Due to the ouster clause, there are also no means for anyone to challenge the lawfulness of the Government’s action, putting it beyond legal remedy. It is therefore of the utmost importance that we understand the legal framework that will be put in place to ensure that detention and safeguarding standards are established, and that detention sites are designated by law, not by expedient, as suitable.

[Lord Etherton (CB)]

My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.

The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:

“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.


This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.

People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.

The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.

The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.

Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

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[Lord Wolfson of Tredegar (Con)]

I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.

[Lord Etherton (CB)]

Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.

This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.

--- Later in debate ---

[Lord Etherton (CB)]

I asked whether confirmation could be given that the Government will adhere to the 18 minimum conditions in the UNHCR Detention Guidelines. It would be very helpful for the Committee to know specifically which ones they intend to comply with and which they do not.

[Lord Murray of Blidworth (Con)]

As I have already indicated, the standards that will be adhered to are those prescribed already in legislation. While the points set out in the UNHCR’s document map on in some respects, there is no exact overlap. The regime which will be applied is that which I have already described.

Illegal Migration Bill

Lord Etherton Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Ludford (LD)]

I warned your Lordships that I would keep popping up this evening, but I am glad to say that the cavalry is coming to my assistance. On the Bench opposite there are all my legal heavyweight friends who are going to row in on this issue. In moving that Clause 37 should not stand part of the Bill, I shall speak similarly with regard to Clauses 38 to 42 and in support of my Amendments 114 and 115 as well as all the other amendments in this group.

At the moment, under existing law, a human rights claim would effectively suspend a claimant’s removal; the suspensive effect of a human rights claim is a crucial safeguard against individuals being removed to face human rights abuses before the validity of their claim has been established. As was referred to in earlier groups, we on these Benches believe that pursuing a claim from another jurisdiction is likely to be very difficult and in some cases impossible. We were talking about trafficking victims earlier, but I contend that it applies to anyone trying to pursue a claim from abroad. The European Court of Human Rights has held that the right to an effective remedy under Article 13, taken together with Articles 2 and 3, guarantees the ability to present an asylum claim effectively. We would say that you cannot do it effectively if you are outside the country.

Clause 4 of the Bill makes it clear that the Clause 2 duty on the Secretary of State to make arrangements for removal will still apply to a person making a claim that removal would violate their human rights. The continuing application of the duty means that, under the Bill, these claims would all be non-suspensive. The Bill provides narrow exceptions to this non-suspensive effect by establishing two categories of suspensive claims that prevent the removal of the claimant while they are ongoing: the serious harms suspensive claim and the factual suspensive claim. These are the only ways in which anyone who satisfies the Clause 2 conditions—whether they are seeking asylum, have been trafficked or have otherwise come without permission—would be able to challenge their removal before it takes place. Even a successful claimant will remain subject to the Secretary of State’s removal duty and prohibition on getting leave to enter or remain under Clause 29, as we have just been discussing, and will thus remain in a state of limbo regarding their immigration status—at least theoretically still awaiting removal—so it does not necessarily solve the problem. Most human rights claims will stay non-suspensive and have to be pursued from outside.

I turn to the test for these suspensive claims, which I think is where some of the amendments come in. The test established in the Strasbourg court is where substantial grounds have been shown for believing that the person in question would face a real risk. However, this appears to mean that individuals who can establish a real risk of treatment contrary to Articles 2 or 3 but cannot establish that it is imminent would still be removed under this Bill and left to pursue their claims from overseas. The JCHR says, and we on these Benches agree, that this would likely breach the Government’s obligations under the ECHR—the convention to which the Government are newly converted.

Another problem is that a serious harm suspensive claim would have to contain compelling evidence that the serious harm condition is met. This appears to be a new evidential standard created by this Bill. Freedom from Torture told the JCHR that this amounts to

“an extremely high evidential threshold which may, in fact, be higher than ‘real risk’ or even ‘the balance of probabilities’. How an individual who has just fled persecution could provide evidence to this threshold is unclear”.

The next problem is that the Bill retains a power for the Secretary of State to make provision about the meaning of “serious and irreversible harm” in regulations. Our Constitution Committee considers that

“the implications of this definition are so significant that it should be amended only by primary legislation unless any delegated power to do so is limited to prevent fundamental risks of harm being removed from the definition”.

The committee supports my proposition that Clause 39 should be removed from the Bill or heavily circumscribed.

This is also the subject of criticism by the JCHR. Not only does the committee

“urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims”

but it believes:

“The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations”


and:

“Clause 39 should be removed from the Bill”.


Lastly, timeframes are the subject of my Amendments 114 and 115. In the Bill, the Government are imposing very tight timescales: the lodging of a claim within seven days following receipt of the notice, a decision within three days and appeal to the Upper Tribunal within six days. My amendments aim to increase both the claim and the decision deadlines to 30 days. All in all, my amendments in this group, with the support of other noble Lords, are designed to restore better fairness to the possibility of people appealing against removal. I beg to move.

[Lord Etherton (CB)]

My Lords, I will speak to a number of amendments in my name in this group: Amendments 100, 102, 103, 104, 105, 107, 108, 109, 111 and 112, all of which are supported by my noble friend Lord Carlile of Berriew, who is a co-signatory. I am grateful to him and to the noble Lord, Lord Cashman, who has also supported one of them. I am also grateful to the Minister for a remote meeting with me to discuss my amendments, which I appreciated.

We are here dealing with the situation where a person claiming refugee status has been given a third country removal notice. That notice will be for removal to a country specified in Schedule 1, and the refugee claimant has a well-founded fear of persecution if they are removed to that country. Under the Bill, the removal notice can be challenged only by a serious harm suspensive claim. The serious harm condition is defined in Clause 38(3): the person claiming refugee status must, within a specified period called “the relevant period”,

“face a real, imminent and foreseeable risk of serious and irreversible harm if removed … to the country or territory specified in the third country removal notice”.

The majority of my amendments in this group focus on the inappropriateness of the requirement to show an imminent risk of “irreversible” harm within a specified period.

The first point to note is that, by way of general observation, whereas the serious harm suspensive claim focuses on the situation of an individual claiming refugee status, the well-established approach both internationally and under our own jurisprudence is to ask, in the case of a “particular social group” within Article 1A(2) of the refugee convention, whether the members of that group have a well-founded fear of persecution by virtue of being a member of that group.

Secondly, that change in approach is explained by the appearance, for the first time, of a requirement for an individual claiming refugee status to be able to resist removal to an otherwise unsafe country only if they can additionally show that they would personally suffer serious and irreversible harm. There is no such requirement in the refugee convention or in any jurisprudence of our own courts or, so far as I am aware, those of any other country.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am grateful for that suggestion from the noble and learned Lord. If I may, I will take a moment to reflect on that and will revert to him in relation to it.

Amendments 114 and 115 would significantly increase the timescales for making and deciding a serious harm suspensive claim, undermining the fast-track process that we have created in the Bill and our ability swiftly to remove illegal entrants. Where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period. Legal aid will be available to assist a person in receipt of a removal notice in making a suspensive claim. With these safeguards, I suggest to the Committee that it is reasonable to expect a person to bring a suspensive claim within the time periods set out in the Bill. I hope that that addresses the point made by the noble Baroness, Lady Ludford.

The purpose of the Bill is to ensure that illegal entrants are removed as quickly as possible. Extending the decision and claim periods to a total of 60 days for all cases increases the risk that immigration bail would be granted by the First-tier Tribunal and, where bail is granted, that a person would disappear into the community in order to frustrate their removal. The use of detention is therefore necessary to make sure that they are successfully removed from the UK, and our ability to detain a person is dependent on any suspensive claim being both considered and decided quickly. The timeframes outlined in the Bill send a clear message that if you arrive in the UK illegally you will be swiftly removed.

The noble and learned Lord, Lord Hope, referred to the Constitution Committee’s recommendation that the regulation-making power in Clause 39 should be removed from the Bill. We are considering that committee’s recommendations and will respond before Report stage. I would, however, comment that the Delegated Powers Committee did not comment on this power.

The amendments put forward would undermine the suspensive claims procedure and the timeframes outlined in the Bill, where what this Government need to do is send a clear message that if you arrive in the UK illegally you will be swiftly removed. For the reasons that I have outlined, I ask that noble Lords do not press their amendments.

[Lord Etherton (CB)]

Before the Minister sits down, there were two specific questions that I raised at the end of what I said that I would like an answer to. I do not believe that he has answered them at the moment.

The first is confirmation that there is nothing in the Bill that in any way derogates from the decision of the Supreme Court in HJ (Iran) that a person qualifies as a refugee under our jurisprudence if they would face persecution living openly as an LGBT person. This is relevant to the question of serious irreversible harm, the question being whether it is the Government’s view that you would have to, if necessary, act discreetly and that, if you acted discreetly, the harm would not be suffered. Is it intended, through the Bill, to undermine this landmark decision of the Supreme Court?

The second point on which I would like a specific answer was similarly in relation to the UNHCR’s latest advice—from 2023, I think—about what constitutes an appropriate flight alternative. Where would it be appropriate to deny refugee status because there is a place within a territory or country where there would be no persecution and where it would be reasonable for the person in question to live in an ordinary way?

[Lord Murray of Blidworth (Con)]

I thank the noble and learned Lord for repeating those questions. He is entirely right that I should have answered them; I apologise for not doing so.

The short answer is that this is a separate strategy regime to the one that the case of HJ (Iran) was decided under. Of course, although the findings in that case and the line of cases concluding in that case would be relevant, the decision will always be taken on the facts of each case. I cannot, I am afraid, give the noble and learned Lord an undertaking on what he might perceive to be an inconsistent decision in relation to that case. I am happy to look into it further and will write to him about that, but that would certainly be my instinctive reaction.

In relation to the further report from the UNHCR, again, each of these matters is fact-sensitive to each serious harm suspensive claim. It would not be right for me to try to predicate at this Dispatch Box what the outcome might be.

[Lord Etherton (CB)]

I am sorry to come back on this, but it is important. The Government must give some guidance to the judges of the Upper Tribunal who try these cases with these novel and, if I may say so—I am adopting the approach of the noble Lord, Lord Carlile—complicated provisions. These are new provisions that are not found anywhere else in our jurisprudence or in anybody else’s. We are talking about a special type of irreversible harm that has to be predictable. Any guidance that we can give on how the existing jurisprudence and UNHCR advice would still apply will be extremely important for the actual mechanics of delivering justice in these cases.

[Lord Murray of Blidworth (Con)]

I can only repeat that the Supreme Court decision in HJ (Iran) and the other documents provided by the UNHCR are not relevant in this context because they do not deal with the same mechanics. Those cases were asylum or protection claims, whereas this deals with the specific statutory category of serious and irreversible harm. Of course, although there may be some crossover in the arguments deployed, ultimately they address a different issue. I cannot provide the type of assurance that the noble and learned Lord seeks, I am afraid.

Illegal Migration Bill

Lord Etherton Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, noble Lords across this House are to be commended for the anxious scrutiny given to this most controversial Bill over many hours, days and nights in Committee. Now, it is time to move through votes on as many already well-debated amendments as quickly as possible.

I have Amendments 1, 2, 3, 5 and 13 in this first group. However, short of any miraculous change of heart by the Home Secretary and the Government, it is the crucial Amendment 5, also bearing the names of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton, that I shall press in what I hope will be a very short while. It replaces the rather long and strange narrative in Clause 1, so as to reinstate Section 3, the interpretation provision, of the Human Rights Act, and ensure that the rest of the Bill is read so as not to require that British officials, Ministers or His Majesty’s judges breach precious international treaties that our former statesmen and stateswomen played such a heroic part in creating. These are the ECHR of 1950, the refugee convention of 1951, the conventions on statelessness of 1954 and 1961, the UN Convention on the Rights of the Child of 1989, and the anti-trafficking convention of 2005.

This interpretation amendment is essential to protecting the most vulnerable people, including by any amendments to follow. It is equally important for the international rules-based order and for our reputation as a great democracy in a troubled world. That was two minutes. I beg to move.

[Lord Etherton (CB)]

My Lords, I support the noble Baroness, Lady Chakrabarti, on one legal point. In Committee, the noble Lord, Lord Wolfson of Tredegar, stated, quite correctly, that we have a dualist system under which international obligations are not part of our law unless specifically incorporated by statute. I consider that this interpretation amendment does not fall foul of that because it imposes no positive obligation to do anything specifically required under those treaties. It is simply of a negative nature to say that the Bill itself —and, in due course, the Act—must be interpreted so as not to conflict with those treaties. For my part, it is perfectly legitimate and legal.

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[Lord Coaker (Lab)]

My Lords, I declare my interests as a trustee of the Human Trafficking Foundation, and my work with the University of Nottingham Rights Lab.

The noble and learned Baroness, Lady Butler-Sloss, Karen Bradley MP and I were at an international co-operation event on human trafficking. Nothing better illustrated the importance of international co-operation than the discussions we had over the last couple of the days; they showed how important the UK’s reputation is.

I say to the noble Lord, Lord Horam: no one is saying that there is not a problem that needs solving. However, it should not be solved by trashing international conventions that we have signed up to but in a way which is consistent with them and which we should be proud of.

The noble Lord, Lord Wolfson, mentioned the UN Convention on the Rights of the Child. I remind him that it was the 1991 Conservative Government who ratified that convention. That was when we had a Conservative Government who, as the noble Baroness, Lady Helic, pointed out, actually put into practice most of these conventions. They were proud of it, the country was proud of it, and this Parliament was proud of it. We do not solve the problem that the noble Lord, Lord Horam, mentioned by driving a coach and horses through that.

Can your Lordships imagine what we would say if the other countries that have signed up to the international treaties which we have signed turned round and said, “We’re not going to abide by those treaties any more”? Imagine if they unilaterally declared that they would step away from them and have nothing to do with them. That is the point of principle.

There is something else that I found absolutely unbelievable. I say to the noble Lord, Lord Horam, that we absolutely support Amendment 5, tabled by my noble friend Lady Chakrabarti, and one reason I did not put my name to it is that we wanted to show the breadth of support across this Chamber for that amendment. To think that I do not talk to my noble friend Lady Chakrabarti about different amendments, or that we do not work together, as we do, along with other Members of this House, is nonsense.

The noble Lord, Lord Wolfson, pointed out that the amendment says:

“Nothing in this Act shall require any act or omission that conflicts with the obligations of the United Kingdom”.


The noble Lord can have his point of view—I agree with that. My point is that it is unbelievable that this House has to have an amendment before it to actually require the Government of our country to abide by the international conventions that they have signed up to. That is the point of principle.

I do not know what dualism is; I had never heard of it until a couple of weeks ago—I think it was the noble Lord, Lord Wolfson, who tried to tell me what it was. I am still not sure I understand it, but what I do understand is that, if you sign international conventions, freely, then the obligation is on you to abide by those conventions, and that is the expectation of those countries which sign them with you. That is what we should stand for. It is why we will support Amendment 5 and are proud to do so.

[Lord Etherton (CB)]

My Lords, before the Minister replies, can I mention that I have two amendments in my own name, which are consequential? They relate to the ability to have judicial review if the amendment to Clause 1 succeeds.

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

My Lords, as the noble Baroness, Lady Chakrabarti, has set out, Amendment 5 seeks to replace Clause 1 with a new clause that provides that nothing in this Bill requires an act or omission that conflicts with the five international agreements specified in the amendment. This includes the European Convention on Human Rights. Amendment 4, tabled by the noble and learned Lord, Lord Hope, is focused on compatibility with the ECHR. As I have repeatedly said in the debates on the Bill, and to reassure my noble friends Lady Helic and Lord Cormack, the Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the Bill that requires any act or omission that conflicts with UK international obligations. Amendment 5 is therefore, on one level, unnecessary. But what might be viewed as a benign amendment takes a wrecking ball to our long-established constitutional arrangements, with uncertain consequences, as outlined by my noble friend Lord Wolfson.

Along with other countries with similar constitutional arrangements to the UK, we have a dualist approach, where international law is treated as separate to domestic law and incorporated only by domestic law passed by Parliament through legislation. We have, of a fashion, reproduced in domestic law aspects of the text of the ECHR through the Human Rights Act 1998, but that is not generally the case with other international instruments listed in the amendment.

The effect of this amendment would be to allow legal challenges based on international law in the domestic courts. As my noble friend Lord Wolfson has eloquently explained, this amendment would incorporate these instruments into our domestic law by the back door, thereby making substantive changes to the Bill. I therefore have to disagree with the noble and learned Lord, Lord Etherton, on the effect of Amendment 5. As my noble friend said, this is wrong in principle and far from being an academic point for the lawyers. There is a legitimate case to be made for incorporation but this is not the Government’s intention, and we should not make such a fundamental change to our domestic law on the basis of a two-hour debate in Committee and a rather shorter one again today.

The noble Baroness, Lady Fox of Buckley, hit the nail on the head in her insightful contribution in Committee. In the Bill we are legislating to prevent and deter the small boats by putting in place a scheme that makes it unambiguously clear that if you arrive in the UK illegally, you will not be able to stay; instead, you will be detained and returned to your home country or removed to a safe third country. That is the proposition we are seeking to put on the statute book. That is the proposition which Parliament will have endorsed and, having done so, that is the proposition that our courts should give effect to. As the noble Baroness said, we risk undermining the reputation of this place and the elected House if the clear intent of Parliament can be unravelled by this misguided amendment.

On the amendment in the name of the noble and learned Lord, Lord Hope, the Government have published two memoranda addressing issues arising under the ECHR, and I remain unpersuaded of the case for statutory guidance on how the Bill’s provisions are to be implemented compatibly with convention rights. It will undoubtedly be necessary to provide Home Office staff and others with appropriate guidance to support the implementation of the Bill. In the Government’s view, it would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.

Amendments 13 and 16, in the name of the noble and learned Lord, Lord Etherton, would strike out Clause 4(1)(d), which makes it clear that the duty on the Home Secretary to make arrangements for the removal of a person who meets the conditions in Clause 2 applies regardless of any judicial review challenge to their removal. The noble and learned Lord’s explanatory statement for Amendment 13 describes it as consequential on Amendment 5. It may well be the noble and learned Lord’s intention to provide for judicial review challenges to removal—whether on ECHR grounds or otherwise—to be suspensive of removal, but that is not the Government’s stance, and I do not accept that his amendment is consequential on Amendment 5. We need a scheme that will enable removals in days and weeks, not, as now, in months and years. Clause 4(1) is critical to achieving that objective and I cannot support its evisceration.

Finally, as regards Amendments 1 to 3, I simply remind the noble Baroness, Lady Chakrabarti, that it is an offence to knowingly enter the United Kingdom without the required leave or to arrive without valid entry clearance or electronic travel authorisation. That being the case, Clause 1(1) quite properly refers to “unlawful migration” and “illegal routes”.

In response to the point raised by the right reverend Prelate the Bishop of Chelmsford, I point out that the refugee convention is clear that states can still operate controls on illegal migration. Under Article 31, it is indeed expressly permitted to disadvantage those who have arrived illegally from safe countries, which is true of all who come from France. This embodies the first safe country principle, in the sense that Article 31 protections apply only to those who have come directly from unsafe countries. The first safe country principle is widely recognised internationally, including in the common European asylum system, which is a framework of rules and procedures operated by the EU countries together, based on the refugee convention.

These amendments, particularly Amendment 5 but also Amendment 13, go to the heart of the workability of the Bill. Your Lordships’ House has a choice: either we can continue to accept the status quo, which could see the £3.6 billion spent on supporting asylum seekers in 2022-23 mushroom to £11 billion a year, or £32 million a day, by 2026, or we can back the Bill, retain Clause 1 and Clause 4(1)(d), and stop the boats. The House should be in no doubt that these are wrecking amendments. I therefore invite the noble and learned Lord, Lord Hope, not to press his Amendment 4, and ask the noble Baroness, Lady Chakrabarti, not to press her amendment. However, were she to do so, I would have no hesitation in inviting your Lordships’ House to reject the amendment.

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Moved by

[Lord Etherton]

13: Clause 4, page 6, line 9, leave out paragraph (d)
Member’s explanatory statement
This amendment is consequential to the amendment to clause 1 tabled by Baroness Chakrabarti and would enable an application for judicial review to be made while the applicant is in the UK regarding an act or omission in conflict with the provisions there.

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[Lord Etherton (CB)]

My Lords, I rise to address Amendment 37 in my name. I am extremely grateful to those who have co-signed: the noble Lords, Lord Cashman and Lord Scriven, and the noble and learned Baroness, Lady Butler-Sloss. This amendment addresses the countries specified as appropriate for removal in Schedule 1. A number of those countries are shown as not safe for women, but none of the specified countries or territories is shown as unsafe for any other diverse or minority group.

The amendment introduces a new clause after Clause 6, in which Schedule 1 countries in respect of which members of the LGBTQ+ community have a well-founded fear of persecution are specified, and to which they must not be removed. Secondly, provision is made for there to be no removal of anyone, whatever their background or ethnicity, for example, to countries where there is a proposal to commence proceedings under Article 7 of the Treaty on European Union. Finally, subsection (2) of the new clause empowers the Secretary of State by regulation to add to or remove such countries or territories.

In order to sustain this amendment, I need to refer briefly to the reasons why each of the countries mentioned in the amendment as being hostile and unsafe places for LGBTQ+ people are indeed unsafe. I will refer to Home Office country of origin information, Home Office country policy and information notes, known as CPINS, and independent reports. I will deal with this very quickly, and I will start with Brazil. According to Agência Brasil, the dossier on murders of and violence against Brazilian transvestites and transsexuals compiled by ANTRA—the National Association of Transvestites and Transsexuals—states that 131 trans and transvestite people were murdered in Brazil in 2022, making it the country with the most deaths of people from this community for the fourteenth consecutive year. Gambia is accepted as unsafe for LGBTQ+ people by the Home Office in its February 2023 CPIN. Ghana is accepted by the Home Office as unsafe for LGBTQ+ people in its May 2022 CPIN. In Jamaica, a number of cases have been decided that establish it as unsafe for people from the LGBTQ+ community, including the major case of Brown v the Home Secretary, a 2015 decision of the Supreme Court. In Kenya, decided cases—in particular, a well-known case concerning Kenneth Macharia, a gay rugby player, which was decided by the tribunal and not appealed—have established that Kenya is unsafe for members of the LGBTQ+ community. There was a more recent decision to the same effect by the Upper Tribunal in February this year.

In Libera, same-sex sexual activity is criminalised under Liberia’s penal code. In October 2020, the Home Office country background note accepted that there was state persecution of LGBTQ+ people in Malawi. The Justice Minister in Mauritius has stated that he will pursue the adoption of legislation to criminalise same-sex conduct. In Nigeria, the criminal code states that anybody found guilty of sodomy shall be liable to up to 5 years of penal servitude. There is a lot to be said about Rwanda; I am going to confine my comments for the moment, but I may need to supplement them later. It is sufficient for the present purposes to say that the current Foreign Office travel advice, as of May this year, is that homosexuality is not illegal in Rwanda but remains frowned upon by many. LGBTQ individuals can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT individuals. Critically, a United States State Department country report on Rwanda, published in March this year, said that there is abuse and violence against LGBT people, with no adequate response by the Rwandan Government.

There are a number of independent reports by, for example, Rainbow Migration and Human Rights Watch, about the persecution of LGBTQ+ people in Rwanda. I emphasise that trans women are particularly exposed to abuse and persecution in Rwanda. That is well documented. Finally, in Sierra Leone there is criminalisation of any sexual act.

That deals with the first part of the amendment. It would be contrary to the convention, it would be wholly unjust and a travesty in every moral sense to remove members of the LGBTQ+ community to any of those countries I have mentioned.

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[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

[Lord Etherton (CB)]

I am grateful for what the Minister just said in relation to the ability of an openly gay, lesbian, transgender or bisexual person to live in a particular country. If, acting in that open way, they had a well-founded fear of persecution, as I understand it the Minister is saying that that would satisfy serious and irreversible harm. That is not apparent in the Bill, and to make that clear would itself require an amendment to Clause 38, which we will come to in due course.

But I am left, I am sorry to say, somewhat perplexed by the Minister’s analysis of the application of Article 7 proceedings against a particular country. In asking this question of the Minister, I can deal with the point from the noble Lord, Lord Jackson. There are two different situations under the Bill under which the issue of removal arises. The first, which is found at Clause 5(4), is where the person

“is a national of a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002.”

That renders inadmissible certain asylum and human rights claims because they are deemed to be safe states.

[Lord Davies of Gower (Con)]

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

[Lord Etherton (CB)]

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

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Etherton, of course, for his intervention. It seems to me that the point he raises is one that calls for a degree of interpretative scrutiny that I do not think I am in a position to give at this stage from the Dispatch Box. I wonder if he would be content were I to undertake to write to him on the point that he raises.

[Lord Etherton (CB)]

I am grateful for the Minister writing, but at the moment it seems to me that the Minister has not really addressed my point about the need for such a provision and the exclusion of such countries. On that basis, I would be minded to press the amendment.

[Lord Stewart of Dirleton (Con)]

My Lords, I suspect that nothing I could say from the Dispatch Box will alter the fixed purpose of the noble and learned Lord in any event, but I do repeat my undertaking to write to him on the topic.

I was about to address the matter raised by the noble Lord, Lord Purvis of Tweed, in relation to secret agreements. The Government must retain, I submit, the ultimate discretion over the amount and detail of any information shared with Parliament, but the Government remain committed to principles of transparency and positive engagement. This is considered on a case-by-case basis, finding a balance proportionate to the level of public interest.

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[Lord Stewart of Dirleton (Con)]

The straightforward answer to the noble and learned Baroness’s question is that we are content to treat with countries that have not signed up to the refugee convention.

On Amendments 29 to 36, the Secretary of State may add a country to Schedule 1 by regulations only if satisfied that there is in general in that country or part of it no serious risk of persecution and will not in general contravene the United Kingdom’s obligations under the human rights convention. In so doing, the Secretary of State must have regard to information from any appropriate source, including member states and international organisations. The views expressed by the United Nations High Commissioner for Refugees on a particular country, among other sources of information, will therefore be considered before a country is added to Schedule 1.

In response to the amendments tabled by the noble Baroness, Lady Hamwee, our contention is that, when considering adding a country to the list in Schedule 1, we need to consider the position in the round. We do not live in a perfect world, so it is reasonable to assess a country on the basis that they are generally safe and to consider the possibility of adding to the list only a part of a country.

The noble and learned Lord, Lord Etherton, raised the matter of Rwanda. In relation to protections for LGBTQ+ persons in that country, the constitution of Rwanda includes a broad prohibition on discrimination. Rwanda does not criminalise or discriminate against sexual orientation in law, policy or practice.

[Lord Etherton (CB)]

My Lords, where does the Minister get the evidence to say that, in practice, as opposed to what is written in the constitution, there is no persecution? There are numerous independent reports and newspaper reports, as well as the Foreign Office’s own advice, to indicate that there is a real risk of persecution in Rwanda, especially for trans women.

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Moved by

[Lord Etherton]

37: After Clause 6, insert the following new Clause—
“Restrictions on removal destinations: LGBT persons(1) Where the Secretary of State is required by section 2(1) to make arrangements for the removal of a person from the United Kingdom—(a) trans men and women must not be removed to Brazil;(b) LGBT persons must not be removed to Gambia, Ghana, Jamaica, Kenya, Liberia, Malawi, Mauritius, Nigeria, Rwanda or Sierra Leone;(c) no person may be removed to a territory or country listed in Schedule 1 (Countries or territories to which a person may be removed) if the exceptional circumstances specified in section 5(5)(b) apply to that territory or country.(2) The Secretary of State may by regulations amend subsection (1) to—(a) add or remove a country or territory, or part of a country or territory;(b) reflect changes made to Schedule 1 by regulations made under section 6.”Member’s explanatory statement
This amendment would prevent LGBT people being moved to countries where they have a well-founded fear of persecution; or to a country which is subject to proceedings under Article 7 of the Treaty on European Union, as is currently the case with Hungary and Poland, and as is recognised as inappropriate by the existing Clause 5(5).

[Lord Etherton (CB)]

I thank all noble Lords who have spoken and the Minister for what he said. I am afraid that I am not persuaded that the Minister has fully grasped the difference between the two types of people I have mentioned—those who come from a safe place and those who do not come from one of these Section 80AA places and who could be removed to somewhere within Schedule 1. He has not explained why it is acceptable for women—one group—to be identified and excluded in relation to countries in Schedule 1 but for not another diverse group which faces persecution. So far as the evidence is concerned, I think he challenged only Rwanda on that. I have already explained that in the light of all the independent evidence I do not accept that Rwanda is not a hostile place for LGBTQ+ people, particularly for those who are trans. On the basis of that, I shall seek to test the opinion of the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The Question will be decided by a deferred Division on Monday.

Illegal Migration Bill

Lord Etherton Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Lord Etherton]

130: Leave out Clause 38 and insert the following new Clause—
“Serious harm suspensive claims: interpretation(1) The definitions in subsections (2) and (3) have effect for the purposes of section 37, this section and sections 39 to 51.(2) A “serious harm suspensive claim” means a claim by a person (“P”) who has been given a third country removal notice that the serious harm condition is met in relation to P.(3) The “serious harm condition” is that P would face a real risk of serious harm if removed from the United Kingdom under this Act to the country or territory specified in the third country removal notice.(4) The following are examples of harm that constitute serious harm for the purposes of this Act—(a) death;(b) persecution falling within subsection (2)(a) or (b) of section 31 of the Nationality and Borders Act 2022 (read together with subsections (1) and (3) of that section) (Article 1(A)(2) of the Refugee Convention: persecution) where P is not able to avail themselves of protection from that persecution;(c) torture;(d) inhuman or degrading treatment or punishment;(e) onward removal from the country or territory specified in the third country removal notice to another country or territory where P would face a real risk of any harm mentioned in paragraphs (a) to (d).(5) For the purposes of subsection (4)—(a) protection from persecution can be provided by—(i) the government of the relevant country or territory, or (ii) any party or organisation, including any international organisation, controlling the relevant country or territory or a substantial part of it;(b) P is to be taken to be able to avail themselves of protection from persecution if—(i) the government, party or organisation mentioned in paragraph (a) takes reasonable steps to prevent the persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution, and(ii) P is able to access the protection.”Member's explanatory statement
This revised version of Clause 38: (1) removes any reference to “the relevant period”, (2) removes any reference to irreversibility of harm, and (3) removes examples of harm that do not constitute or are unlikely to constitute serious and irreversible harm.

[Lord Etherton (CB)]

My Lords, this amendment relates to serious harm suspensive claims, and it is important because the Government intend that suspensive claims are the only way that removal notices can be challenged. The point I have been concerned with from the beginning is the position of people who are served with a removal notice in respect of a country in which they have a well-founded fear of persecution if removed there, and they would fall within Article 1A(2) of the refugee convention. In other words, vis-à-vis that country, they would be regarded as refugees. Do they have to show in addition, as required by Clause 38(3),

“a real, imminent and foreseeable risk of serious and”—

this is the critical word—“irreversible harm” to succeed on a serious harm suspensive claim? That would be not only novel but against all principle, and the meaning, intent and wording of the refugee convention.

The point has been illustrated—I have tried to illustrate it, and the Government have taken it up—in the particular case of LGBTQ+ claimants. The decision in the case of HJ (Iran) and HG (Cameroon) was that, in order to qualify as a refugee under the convention, it is sufficient that, if they would wish to live openly as LGBTQ, they would face persecution, even if they would not suffer such persecution if they acted discreetly. The question was, if they or somebody from that community were served with a removal notice and it were to a place where members of that particular social group, within the meaning of the convention, would have reasonable fear of persecution, would they have to show in addition that they would suffer irreversible harm, and within a specified period? I urge your Lordships to accept that that would be entirely wrong.

Throughout this debate on the Bill, my understanding has been that the Minister has said that, yes, such a group would have to show in addition that they would suffer irreversible harm. That seems inconsistent with Clause 38(4)(b), which states:

“The following are examples of harm that constitute serious and irreversible harm for the purposes of this Act … (b) persecution falling within … Article 1(A)(2) of the Refugee Convention … where P”—


the refugee—

“is not able to avail themselves of protection from that persecution”.

My heart therefore leapt with joy last Wednesday when I heard the noble and learned Lord, Lord Stewart of Dirleton, who stood in as Minister, say:

“The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim.”—[Official Report, 28/6/23; col. 767.]


However, I received a letter sent at 2pm this afternoon from the Minister which seemed to indicate that he was still insisting that, in addition, one would have to show irreversible harm. All I wish to receive from the Minister to avoid a vote on this is an assurance that, where it is clear that there would be persecution of a recognised category within the convention regarding the country specified in the removal notice, that fact alone is sufficient to satisfy the requirements for a serious harm suspensive claim, and that the principle laid down in HJ (Iran) regarding LGBTQ people will continue to apply.

[Lord Hope of Craighead (CB)]

I will speak first to Amendment 131, which would survive even if the amendment to which my noble and learned friend Lord Etherton has spoken were carried and Clause 38 rewritten.

I am seeking to make a very simple point: the power in Clause 39 to

“by regulations amend section 38 to make provision about the meaning of ‘serious and irreversible harm’ for the purposes of this Act”

is unqualified and wide enough to enable the Secretary of State to remove some of the instances of serious harm set out in Clause 38 as it is or as it may be amended. The examples of serious harm given there are absolutely obvious, and they are indeed very serious. It would be a great misfortune if, by some misadventure, the Secretary of State were to remove one or other example from that list for some reason. I would have thought that the Minister could accept the amendment as a sensible qualification of the otherwise unqualified power in Clause 39. I am simply repeating a point I made in Committee, but it is rather important to have clarity on this. The Minister can give an assurance—no doubt he will—that there is no intention to remove examples from Clause 38, but that is not really good enough. It needs to be set out in terms in Clause 39.

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[Lord Murray of Blidworth (Con)]

My Lords, it was remiss of me not to say a little about Amendment 126 and the other government amendments in this group, so I will do so now. These amendments, as I am sure Members of the House have realised, replace a “factual suspensive claim” with a “removal conditions suspensive claim”. Clearly, I and the department listened carefully to the contributions from noble Lords in Committee on these topics about these suspensive claims, in particular those helpful contributions from the Cross Benches. The changes in the category of suspensive claim are a direct reflection of what was said during those debates.

Currently, a factual suspensive claim can be raised where a mistake of fact has been made in deciding that a person meets the four removal conditions in Clause 2. This definition would prevent a claim being raised where a person had been incorrectly identified as meeting the four removal conditions due to a mistake of law. A removal conditions suspensive claim will instead provide for a claim to be raised where a person who has been given a removal notice informing them that they are subject to the duty to remove does not consider that they meet the removal conditions in Clause 2. The Secretary of State’s or Upper Tribunal’s consideration of a removal conditions suspensive claim will be on whether or not the removal conditions were met. I trust these amendments will be welcome, in particular to the noble Lord, Lord Anderson of Ipswich, who queried the scope of these claims in Committee.

I am grateful to the noble and learned Lords, Lord Etherton and Lord Hope, for setting out the case for the other amendments in this group. A serious harm suspensive claim is a claim that a person would, before the end of the relevant period, face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed from the United Kingdom to a country other than their country of origin. The serious and irreversible harm test is designed to be a high threshold and reflects the test applied by the European Court of Human Rights when considering whether to indicate an interim measure under Rule 39 of the rules of court. “Serious” indicates that the harm must meet a minimum level of severity, and “irreversible” means the harm would have a permanent or very long-lasting effect. These amendments seek to change how Clause 38 of the Bill defines the risk of harm, lowering the threshold for a serious harm claim to succeed.

Amendment 130 would remove the requirement for the harm to occur in the period it will take for any human rights claim or judicial review to be determined from the safe third country. I suggest it is reasonable to expect the harm to occur over a defined period. The very purpose of the suspensive claim process is to prevent those persons subject to the duty to remove suffering serious and irreversible harm during the same period that their human rights claims are considered. Without this requirement, it would be difficult for decision-makers properly to assess the likelihood of any risk materialising. It would also risk abusive suspensive claims being made on the basis of a risk of harm that does not currently exist or that may not materialise until months or even years after a person has been removed from the United Kingdom.

Amendment 130 would also remove the requirement for the risk of harm to be irreversible. This would significantly lower the threshold for a serious harm suspensive claim to succeed and undermine the purpose of the Bill to deter illegal entry to the United Kingdom. Again, I would point out that the test applied by the Strasbourg court when considering applications for Rule 39 interim measures is one of serious and irreversible harm. So, the serious harm condition and requirement for the risk of harm to be both serious and irreversible reflects that test.

Lastly, Amendment 130 would also remove specific examples of harm that do not or are unlikely to constitute serious and irreversible harm. Setting out a clear approach regarding the interpretation of serious harm on the face of the Bill will, I suggest to noble Lords, ensure that decision-makers and the courts take a consistent approach in their consideration of what amounts to a risk of serious and irreversible harm. The examples in Clause 38(5) reflect existing case law and go no further than how we currently approach the consideration of these issues when raised in protection claims.

Amendment 131 would prevent amendments to the examples of harm that constitute serious and irreversible harm set out in Clause 38(4), as the noble and learned Lord, Lord Hope, so eloquently set out. I assure the House that the Government do not intend to diminish or remove the examples of harm listed in Clause 38(4).

Amendment 132 would remove the regulation-making power in Clause 39 to amend the meaning of “serious and irreversible harm”. This would result in the Secretary of State being unable to make amendments which reflect developments in case law. It is worth again pointing out that the Delegated Powers Committee raised no issue with this power in its report on the Bill.

Amendment 133 would alter the requirement for a serious harm suspensive claim to include “compelling” evidence of the risk of harm that a person would face if removed to a third country and replace it with a requirement to provide evidence that is “reliable, substantial and material”. I am very grateful to the noble and learned Lord for his remarks on the clarity of those three words, which, of course, will be available in Hansard should any questions arise as to what might amount to “compelling”.

However, although evidence that is compelling may also be defined as evidence that is reliable, substantial and material, a requirement for evidence to be compelling is more appropriate and succinct, given that it is the overall impact of the evidence provided, not any particular element or feature of it, that is relevant. The term “compelling” is sufficiently clear and well understood by decision-makers, and should remain unaltered. It is a term that has use in this area of the law. For example, evidence provided by people raising suspensive claims may differ dramatically in terms of volume and substance, but it is the overall impact of such evidence that is crucial when determining whether any claim has merit. For those reasons, the term “compelling” is more appropriate, providing decision-makers and the courts with the right degree of flexibility when making decisions on suspensive claims and appeals.

Finally, the amendments in the name of the noble Baroness, Lady Meacher, seek to extend the claim and decision periods provided for in Clauses 41 and 45. We consider the periods specified in the Bill to be fair and equitable, affording sufficient time to submit and determine claims, commensurate with the Bill’s objective to remove people swiftly from the United Kingdom. However, I remind the noble Baroness that, where the Secretary of State considers it appropriate to do so, it will be possible to extend both the claim period and the decision period.

For the reasons I have outlined, I respectfully ask that the noble Lords do not press their amendments.

[Lord Etherton (CB)]

I am very grateful to the Minister for his reply. I am afraid he has not answered my request for an assurance at all, so I wish to test the opinion of the House.

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Moved by

[Lord Etherton]

132: Leave out Clause 39
Member's explanatory statement
This amendment removes the power of the Secretary of State to amend section 38 by regulation by making provision about the meaning of “serious and irreversible harm”.

Illegal Migration Bill

Lord Etherton Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, there are three reasons we should be stubborn about not allowing the Bill to go through. The first is that this was not in the Tory Party manifesto: we do not have a duty to pass it. Secondly, Rwanda is not a safe country. Thirdly, we cannot pass legislation that allows the Government to break the law; that does not make sense.

[Lord Etherton (CB)]

My Lords, I support the amended version of Clause 1, put forward by the noble Baroness, Lady Chakrabarti. Whether or not Parliament intends to incorporate international treaties within our own law depends on the wording. The point was made on Report that the noble Baroness’s previous wording had no reference to interpretation. It seems to me quite clear now that the emphasis has been put on having regard to the provisions in these international treaties which bind this country for the purposes of interpreting this Act. I consider that this falls plainly on the right side of the line.

As for my own amendment to Motion S, which the noble Lord, Lord Murray, has addressed, I thank the Minister for his time, patience and reasonableness over the discussions concerning this. I was principally concerned that those who are entitled to the protection of the convention because of a well-founded fear of persecution in the country stated in the removal notice should not have to have an additional test of irreversible harm in order to prevent removal there. The assurances the noble Lord has given have satisfied me over that concern, particularly in relation to the principles in the case to which he drew attention, HJ (Iran) for LGBT refugees. My concerns have been satisfied and for that reason I will not oppose the Motion of the Government on this point.

[Baroness Ludford (LD)]

My Lords, briefly, we on these Benches support all the Motions to amend the government Motions. The noble Baroness, Lady Chakrabarti, has well made the point that even if one could have argued that the original Amendment 1 was a backdoor incorporation—an argument I always found unpersuasive—that objection certainly cannot be made of the new text of Motion A1, which is clearly nothing of the sort. The Prime Minister has been at the NATO summit in Vilnius upholding international law against breaches through Russian aggression. Indeed, the North Atlantic Treaty of 1949 cited the rule of law at one of the core principles. The Prime Minister was also recently at the Council of Europe summit. Again, the core values in the declaration were the threats to human rights, democracy and the rule of law.

On Report, the noble Baroness, Lady Helic, talked about how this amendment

“is firmly in the Conservative tradition of strengthening, not undermining, the international rule of law”.—[Official Report, 28/6/23; col. 704.]

She reminded noble Lords that

“Conservative Governments were instrumental in creating the first four conventions listed in the amendment”.

Finally, on Amendment 93, we still have concerns, as do doctors, about the proposals in the Bill for as yet unproven medical age assessments. Amendment 93 provides the most basic safety net for those undergoing age assessment: the right to appeal a judgment. Removing that right will not deter any smugglers, or child refugees in need of appropriate safety and protection. We urge support for the amendment Motions.

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[Lord German (LD)]

My Lords, I draw attention to my interests as laid out in the register. These Benches are supportive of the discomfiture, which the noble Lord, Lord Carlile of Berriew, just referred to, to find that eventual clarification. We also support Motion G1 in this group.

My Motion F1 would mean that if an individual has been made inadmissible under this legislation and has not been removed to a safe country after six months, their claim will be processed within the UK system. The Ministers in both Chambers, in response to my amendment at an earlier stage, said—it has been repeated here—that people might game the system or that it would incentivise people to make spurious claims so as to extend their time in the United Kingdom in order to reach the magic six months.

In response to this concern, the current form of Motion F1 would pause the calculation of six months during any suspensive claim as set out in the Bill. It is also important to be mindful that the Bill in itself is claimed by Ministers to prevent people from making last-minute legal challenges to stop removals. My Motion totally disincentivises people from making spurious claims.

The Minister in the other place said that my earlier amendment would undermine the Bill. It does not. It would simply provide a backstop that protects the taxpayers of this country from indefinitely supporting people existing in the UK in limbo.

The Government’s own impact assessment on the Bill assumes that people will be detained for 40 days before removal. In this Chamber, we have heard constantly from the Minister that it will be not months but weeks or days when people are removed. On that basis, the ability to make a claim after six months should not be a problem, because it is totally in line with the Government’s expectations of their very own Bill.

Without this amendment, the Home Secretary is setting herself up for an extremely challenging time. There will be no way of resolving the foreseeable challenge of not having anywhere to remove people who arrive in the United Kingdom on irregular routes. Whether that is resolved in the future, the Government express the desire that they will be able to make this happen. If you believe, in the Government’s own words, that the Bill can be “workable”, then it is entirely financially prudent for us in this Chamber to try and insist that, in the current climate, the Government should be prudent with their spending of the public purse in using taxpayers’ money to support people indefinitely and without a returns agreement—because six months will have passed.

In addition to the financial considerations, it does not seem to me to be particularly in line with a Conservative mindset to enforce that people remain in the United Kingdom without being able to contribute, use their skills or participate in society. If these people cannot be removed after a reasonable amount of time, their claim should be processed, so that they either get on with their lives in the United Kingdom or be removed to their country of origin.

[Lord Etherton (CB)]

My Lords, I draw attention to Motion G and my Amendment 23B in lieu. I thank the noble Lord, Lord Cashman, in particular, who has been a stalwart supporter of me in relation to this clause from the very beginning.

The clause identifies countries currently specified in Schedule 1 which, the evidence and the law show—by virtue of decisions made by UK courts—are not safe places. I explained to the House on Report what the evidence briefly was in relation to each of them. The House and I have not received any refutation of the point that I made—that all these countries are unsafe places for LGBT people. The only answer that is given by the Government and repeated by the Minister is that this will all come out in the wash when a removal notice is served, and a serious harm suspensive claim can be made.

I am afraid that simply is not good enough. The Bill contains a schedule: Schedule 1. Schedule 1 identifies itself as listing places to which persons can be removed. Schedule 1 is related back to the provisions of Clauses 5 and 4, which provide that people can be moved only to those countries in Schedule 1.

If the approach of the Minister were correct, we would not have a schedule at all. But we have a schedule, and it rightly makes a distinction between those countries which are safe—so it says—and those which are not. There is also a division between those which are safe for women and those which are not. I have put forward the amendment for another group of disadvantaged people, who, as the Minister referred to, are long recognised in our own law: LGBT people.

--- Later in debate ---

Moved by

[Lord Etherton]

At end insert “, and do propose Amendment 23B in lieu—

23B: After Clause 6, insert the following new Clause—
“Restrictions on removal destinations: LGBT and other persons
(1) Where the Secretary of State is required by section 2(1) to make arrangements for the removal of a person from the United Kingdom—
(a) trans men and women must not be removed to Brazil;
(b) LGBT persons must not be removed to Gambia, Ghana, Jamaica, Kenya, Liberia, Malawi, Mauritius, Nigeria, Rwanda or Sierra Leone;
(c) no person may be removed to a territory or country listed in Schedule 1 (countries or territories to which a person may be removed) if the exceptional circumstances specified in section 5(5)(b) apply to that territory or country;
(d) no person may be removed to Rwanda until the conclusion of all litigation concerning the lawfulness of arrangements for removal to that country.
(2) the Secretary of State may by regulations amend subsection (1) to—
(a) dd or remove a country or territory, or part of a country or territory, in order to apply relevant decisions of courts and tribunals operating in the United Kingdom and having regard to decisions of the European Court of Human Rights and any other material change of circumstances;
(b) reflect changes made to Schedule 1 by regulations made under section 6.””