Nationality and Borders Bill

Lord Green of Deddington Excerpts

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

[Lord Coaker (Lab)]

My Lords, I will be brief, because we had a long debate on this issue in Committee. It is, however, an issue that goes to the heart of the Bill—changing the definition of the offence to one of arrival rather than entry. I am, therefore, very pleased to move Amendment 55 and to speak to Amendment 58 in my name and those of the noble Lord, Lord Paddick, and my noble friend Lord Blunkett. This is a fundamental change to immigration law that many of us are worried will criminalise asylum, full stop. One can only imagine what effect a similar law would have in Poland now, with people fleeing across the border. No doubt the Minister will say that it does not apply in those circumstances, and so on. The fact is, however, that the Bill changes the offence from entering to arriving, which raises serious issues and has serious consequences for us all.

For example, aside from those seeking asylum, would this provision apply to a person who arrives in the UK with the wrong paperwork? They have arrived and they have broken the rules: would that be a criminal offence under the Bill? The Home Secretary has presided over this situation for a number of days but has just recently announced that people can safely bring elderly relatives and parents from Ukraine into this country. On the basis of this clause, would those elderly parents be considered criminals if they arrived here without the right paperwork? The Government’s proposed legislative changes have real consequences for real people, as highlighted by the recent horrific events in Ukraine.

This clause should be removed from the Bill on both principled and practical grounds. I have guidance that the CPS has announced, in consultation with the National Crime Agency, the Home Office and the police, which says that those seeking asylum should not be prosecuted under existing offences of entering the UK illegally. That is in recognition of the fact that it is not in the public interest, and that asylum seekers

“often have no choice in how they travel and face exploitation by organised crime groups”.

That is in a press statement from the CPS. The Government are asking us to widen the offence to include arrival when the CPS and Border Force do not believe that the existing offence should even be used. Similarly, the Government’s answer has been that the powers will be used in only exceptional and limited circumstances, such as where a person has breached a deportation order—in which case, we should pass a power for those circumstances.

It is not right to ask the House to pass these powers —on the basis that the Government’s own agencies say that they will not use them—or to criminalise a person who arrives in the UK to ask for asylum from war and persecution. It is late, but this change in the offence will have serious consequences for the way our asylum and refugee system works. I beg to move.

[Lord Green of Deddington (CB)]

My Lords, this is more important than it looks. Frankly, it is rather absurd that people can turn up in their tens of thousands on our beaches and there will have been no offence. That is not to say that they should be charged, but there must surely be some legal impediment to people just turning up.

[Lord Paddick (LD)]

My Lords, the Bill does two things. It criminalises and treats genuine refugees as second class if they arrive via a so-called safe third country. Also, this clause potentially criminalises everyone who arrives in the UK to claim asylum even when they have flown directly to the UK. It effectively criminalises all asylum seekers arriving in the UK unless they have been resettled through a government scheme—resettlement schemes that range from few and far between to non-existent.

From what the Minister said in Committee, I understand that the idea of the clause was to ensure that migrants crossing the channel in small boats who were rescued and brought to the UK could still be prosecuted, even though they had arrived legally. She said that the new offence would cover all claimants

“who arrive without the necessary entry clearance.”—[Official Report, 8/2/22; col. 1512.]

Someone who secures a visitor visa, for example, flies non-stop to the UK and claims asylum at the UK border would be guilty of an offence because their entry clearance was only to visit, not to claim asylum and stay permanently.

The Minister tried to reassure the House that this was not the Government’s intention, that the offence was intended to be prosecuted in only the most egregious cases and that the Government would be talking to the CPS. There are two issues with this. First, as the noble Baroness, Lady Chakrabarti, said in Committee, this is the very definition of an overbroad criminal offence that relies on the offence being prosecuted in only a subset of cases. The second issue is the potential for government interference with the independent Crown Prosecution Service. The next thing will be the Government telling the CPS to prosecute some political activists and not others. This is a very dangerous road to go down.

Amendment 55, in the names of the noble Lords, Lord Coaker and Lord Blunkett, to which I have added my name, would remove the offence of arriving in the UK without valid entry clearance from the Bill. We will vote with the noble Lord, Lord Coaker, when he divides the House.