Safety of Rwanda (Asylum and Immigration) Bill

Lord Etherton Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

Moved by

[Lord Etherton]

22: Clause 4, page 4, line 12, after “question” insert “or, where the person in question is a member of a particular social group within Article 1A(2) of the Refugee Convention 1951, for that group”
Member’s explanatory statement
This amendment and the related amendments to Clause 4(1)(b) and Clause 4(4) provide for the situation where the person in question is a member of a particular social group, the members of which have a well founded fear of persecution, and following the decision of the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31 the focus is on the group and not the individual circumstances of each member of the group.

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[Lord Etherton (CB)]

My Lords, I will also speak to related amendments that I have tabled: Amendments 24, 26, 28 and 30. I am extremely grateful to those who have co-signed all or some of those amendments: the noble Lord, Lord Cashman, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Brinton.

I will speak very briefly, because I spoke previously about this both on Second Reading and in Committee. The current version of Clause 4(1) enables an applicant to oppose removal to Rwanda on the grounds that it is not a safe country for the applicant, but only if the applicant provides

“compelling evidence relating specifically to the person’s particular individual circumstances”.

Similarly, Clause 4(4), on the ability to obtain interim relief from removal to Rwanda, depends on particular individual circumstances relating to the applicant in question.

The defect in those provisions—a very basic defect—is that no provision is currently made for applicants in one of the important categories of refugee defined in Article 1A(2) of the 1951 refugee convention. That category comprises applicants who have a well-founded fear of persecution because of their

“membership of a particular social group”.

You can immediately see the difference between other categories of refugee under the convention, who are individual persons, and this category—which is probably the largest, or certainly the most important—comprising a large number of people who qualify as refugees because they are members of a particular social group. Yet when we look at Clause 4—I mentioned subsection (1) as well as subsection (4) on interim relief—there is no reference whatever to “group”, so one category of refugee has simply dropped off the list completely.

The proper approach of courts and tribunals to such a refugee was described in detail by the Supreme Court in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department, a 2010 decision, especially in the judgment of Lord Rodger of Earlsferry. I will not take the House through the case in detail. It is sufficient for me to say briefly that the approach to be taken, as established by that case, is that, if the applicant for asylum claims to be a member of a particular social group, the other members of which have a well-founded fear of persecution, the applicant is entitled to be considered a refugee provided that they satisfy the particular decision-maker that they are a member of that social group.

HJ (Iran) and the other case I mentioned concerned men who wanted to live an openly gay life and would have faced persecution in their home country had they done so, but the principle that I just described of the way to treat this category of refugee, as set out in HJ (Iran), applies across the board. It is not limited to people who are LGBT but applies to those who are members of a particular social group because of their ethnicity or gender or who hold a particular religious or political belief. For example, by way of analogy with the LGBT men who applied in HJ (Iran), if people hold particular philosophical, political or religious views that they have not expressed because of a real risk of persecution, but would like to do so and to live a life in which they can express those views, they are to be treated as members of a social group and granted the status of a refugee accordingly.

As the noble Baroness, Lady Chakrabarti, said in Committee, the Bill presents us with a false dichotomy. On the one hand, it is all about me—the claimant, the individual; on the other hand, it is about Rwanda generally. The former, the Bill says in Clause 4, allows you to make a claim for interim relief or removal generally to Rwanda, but the latter does not. In between those two extremes is the category of a member of a social group with a well-founded fear of persecution. This is not a torpedo point; it is not intended to undermine or delay this legislation. It is a reflection of the omission of a basic category of refugee defined in the convention, and an extremely important category as well. On that basis, I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I have put my name to the four amendments tabled by the noble and learned Lord, Lord Etherton. I support everything he says and, since we are on Report, I do not propose to add to it. I also have my own Amendment 42. I declare an interest as the co-chairman of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and the deputy chair of the Human Trafficking Foundation.

I spoke to this in Committee. Quite simply, and taking on what the noble and learned Lord has just said, this is a very special group of people who are in this country not because they have chosen to take the boat trip but because they have been brought here, by boat, lorry or some other route, and they are victims. When one starts complaining about people who should have stopped in France because France is a safe country, it absolutely does not apply to victims of modern slavery. They are here on an involuntary basis and need to be regarded in a totally different way.

Since I have been opposing much of the Rwanda Bill, I have heard endlessly, “What is it that you or other opposition would do to improve the situation of those crossing the channel?” I deeply regret those crossing the channel and I do not have an answer, but I do not believe that the need to stop people crossing the channel in a dangerous situation is any reason to pass an utterly shocking Bill. It is constitutionally incorrect and does not look at genuine victims, such as those victims of modern slavery. It is no answer to those of us who cannot accept what is going wrong in this country and what is going wrong in this Bill that, because we cannot offer an answer to the people crossing the channel, therefore we should be disregarded. Modern slavery is one of the most shocking crimes, making vast sums for perpetrators across the world. About a third to half the victims of modern slavery come to this country. The Government are ignoring the plight of this most vulnerable group of people. I hope that, at this last moment, they will think again about victims of modern slavery.

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[Lord Sharpe of Epsom (Con)]

I am advised by my noble and learned friend Lord Stewart of Dirleton that “must” and “shall” both have a mandatory quality, but I will of course write to the noble Lord.

If there is compelling evidence, despite the safeguards in the treaty, decision-makers will be able to consider certain claims that Rwanda is unsafe for an individual due to their particular circumstances, as we have discussed a number of times. However, I say again that these amendments are unnecessary. On that basis, I invite the noble and learned Lord to withdraw his amendment and urge other noble Lords not to press theirs.

[Lord Etherton (CB)]

I am very grateful to the Minister for that analysis of the speeches made and the Government’s response to them. I am also grateful to all noble Lords who have spoken in this debate, which has raised some important points about people who are extremely vulnerable.

The noble Lords, Lord Kerr and Lord Coaker, articulated the point that all these amendments dealing with exemptions are objectively extremely reasonable and important, and do not involve huge numbers of people such as to undermine the effectiveness of this proposed legislation. Descending to details to say that they are not necessary, when it is plain that they are, shows a certain lack of not only sensitivity to the Chamber but a spirit of humanity which should underlie the Government’s response.

Turning to my Amendment 22 and its consequential amendments, I find it difficult to understand how the Government can justify dropping and effectively disfranchising one of the expressly specified categories of refugee in the convention. There is nothing in the policy statement issued by the Government when the Bill was published or in the Explanatory Notes to say that they would do this. I would have thought that dropping a specific category of refugee defined by this convention which we have signed up to is an extraordinary move.

The justification seems to be that the Government will not permit reference to groups because it would significantly enlarge the number of those entitled to claim. However, if they are entitled to claim by virtue of a convention which we have signed up to, the Government must accept that, like all the other 149 states signed up to it. You cannot simply say, “We’ll ignore this or that category of refugee” or “We’ll just rely on this category of refugee”. There must be an ability, in one way or another, for all those mentioned as refugees to explain why removal would result in persecution and serious harm.

Leaving that matter aside, I will comment on the intervention by the noble Lord, Lord Murray, on comments made by the noble Lord, Lord Cashman, about the situation of LGBT people in Rwanda. I do not want to go through this again, but there are two factors on which the noble Lord, Lord Murray, did not comment, and in fact have never been commented on appropriately by the Government, by way of some sort of excuse in relation to LGBT people and the risk that they face in leading an openly gay life in Rwanda.

First, the travel information provided by the Foreign, Commonwealth and Development Office remains the same as it always has done, as it was at the time of the Illegal Migration Act: there is a danger to LGBT people living openly as such in Rwanda. Secondly, and importantly, no reference has been made to something that I mentioned in Committee: the country report on Rwanda of the US State Department, which was published only one year ago, and which talks about persecution and the possibility of physical harm to LGBT people. The Government have never addressed those points at all, but I am not going to go further into that.

As to the others, I personally strongly support all the other exemptions, which seem to me to be reasonable, humane and entirely appropriate, not designed to undermine the Bill but really rising to the level of morality which we should display as a country in relation to these categories of people. Having said all of that, and having heard the Minister, the best thing that I can do is to leave it to the amendment in the next group, tabled by the noble Baroness, Lady Chakrabarti, which contains reference to groups. For my part, having had this debate will have been useful in honing the points that will have to be met in relation to that. On that basis, and that basis alone, I beg leave to withdraw my amendment.

Amendment 22 withdrawn.