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.