Nationality and Borders Bill

Lord Griffiths of Burry Port Excerpts

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

Tabled by

[Baroness McIntosh of Pickering]

37: Clause 11, page 13, line 33, leave out “a refugee is a Group 1” and insert “a person is a”
Member’s explanatory statement
This amendment ensures equality of treatment by removing the distinction between Group 1 and Group 2 refugees.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I speak in place of the noble Baroness, Lady McIntosh of Pickering, and welcome the opportunity to speak on the amendments she proposed. I wish she could be here to speak on Amendments 37, 38, 42 and 49. I hope to do justice to her concerns and offer a bipartisan dimension to our treatment of the Bill.

It is perhaps important for me to say before launching myself into the amendments that my clear preference would always have been to propose the elimination of Clause 11 in its entirety. Having said that, however, I respect the intention behind the amendments in seeking to eliminate the distinction between two tiers of refugees. I hope that nobody groans when we cite the 1951 convention, which prohibits the penalisation of refugees

“on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … present themselves without delay … and show good cause for their illegal entry or presence.”

The Bill before us purports to change the way in which the provisions of the convention are applied, with important divergences from hitherto accepted practices.

I am a member of the Council of Europe. I was asked to compile a report to commemorate the 1951 convention; my report was endorsed by the Council just a few weeks ago. In writing it, I worked in collaboration with UNCHR officers in London, Strasbourg and Geneva. This has led to my conviction of the vital importance, in seeking a way through these critical issues, of maintaining the closest possible working relationship with UNHCR. Everyone I consulted in writing my report agreed that the key underpinning tenets of the convention are non-refoulement, non-discrimination and non-penalisation. Those are the principles that must be upheld at all costs, however much circumstances may have changed.

Although I am hugely critical of the Bill, I must, in reality, acknowledge that the United Kingdom is only one of a number of nations in search of new ways of dealing with what is undoubtedly a global crisis. A wide variety of measures has been put forward across our continent. In my report, I cited the following; some were mentioned in our previous debate. There are those who are pushing asylum seekers back, or else denying them disembarkation. Others are protecting their borders, building fences, sometimes deploying their military and even using live ammunition. Some are transferring their protection obligations to other—usually poorer—nations and isolated islands, detaining asylum seekers in poor conditions indefinitely. There are those set on criminalising solidarity and life-saving activities: making the saving of lives, the feeding of starving people and providing shelter to families in need a crime. Nor must we forget those who resort to the use of Covid-19, economic challenges or irregular arrivals of migrants as cover for disproportionate measures, restricting access to asylum and rights. The proposals in the Bill, set alongside the proposals of other nations that I just cited, would effectively undermine the very principles and obligations of the 1951 convention.

It is my view that our consideration of these important questions should seek always to be in harmony with the advice of UNHCR. That commission provides authoritative guidance in a manner consistent with the 1951 convention’s ambition to ensure,

“the widest possible exercise of these fundamental rights and freedoms”

by refugees. UNHCR, incidentally, has responsibility for all the 80-plus million refugees spread around the world.

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[Lord Horam (Con)]

With due respect to the noble Lord—I really do have great respect for him—I do not think we want to go through the whole business of Brexit again. My point is a simple one: we have to pay regard to British opinion. It is not as though people are manipulated; they have their own views. They are perfectly capable of taking a sceptical view of some of the people who have tried to make them do things in the past, frankly. They can form their own views—I am sure the noble Lord would agree. I was trying to narrow it down to this particular point on the problem of illegal immigration which, in my view, any Government would have to deal with, whatever their nature or colour.

As the noble Lord who initiated this debate said, many countries are tackling this problem in quite horrific, awful ways. In comparison with what they are doing, what we are doing is completely rational and sensible. It is trying to make a distinction. There are those who are coming in legally and properly, by the routes which are well known. We have a very good record on that, despite what the noble Lord, Lord Paddick, said, in comparison with the rest of Europe. We have not only a reasonable number of people coming in by the normal asylum-seeking routes each year but also the consequences of the Commonwealth, for example our links with Hong Kong, with up to 90,000 people having already accepted the chance to come here from Hong Kong. That is something which Germany, France and so forth do not have the same problem with.

[Lord Griffiths of Burry Port (Lab)]

My Lords, since an illustration I gave has been added to the discourse of the noble Lord, I feel I must interrupt. While I was painting the pig with lipstick—a squirmy pig, very difficult to hold fast to—I certainly listed a number of the horrendous ways in which countries are departing from the principles of the 1951 convention, but also added our own, which are equally nefarious and certainly not to be presented in a positive way.

[Lord Horam (Con)]

I think that is a matter on which the Government will no doubt make their position plain. As I understand it, they do not believe that they are departing from the international convention of 1951. Of course, many other countries have taken similar positions. Australia, for example, has divided people into those coming in in the normal, legal way and those coming in illegally, and that has not been denounced by the United Nations. Japan has done the same thing and, interestingly, the Social Democrats in Denmark are about to too. In Australia, they have a cross-party agreement on the immigration policy. I think the Labour Party ought to be more careful in its view of this because it may well become the Government in future and it will face the same problems which the present Government face. These are not only problems which the Government must face simply to be responsible and give people a sense that they control things and that borders mean something, which is their bottom-line responsibility, but also the issues of immigration.

With what we have here, if we can reduce it to the particular problem which the Government face on illegal immigration across the channel, the approach they are adopting helps, first, to deal with the pull factor, by pointing out the advantages of the normal asylum-seeking methods of getting into this country, on which this country has a good record; and, secondly, to dissuade people from adopting the illegal methods which they are at present forced into using.

The noble Lords, Lord Paddick and Lord Kerr, made the point that they are economists, and I am an economist too. The problem is that, if you expand safe routes, you can never expand them wide enough to take account of all the people who want to come here. That is a simple fact of demand and supply, if I may say so, well known in economics. That is the problem which the Government face. As the noble Lord, Lord Liddle, mentioned in a previous debate, you have to have some limit on the number of people coming to this country for good population control reasons. If you decide on a limit and people are comfortable with that, you can decide how many immigrants will be allowed into the country in any one year and then deal with the problem of illegal immigration. In my view, that is the right order in which this should be dealt with, and I believe the Government are following exactly that policy.

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[Baroness Williams of Trafford (Con)]

It is differentiation rather than discrimination. The two are quite different.

Amendments 44, 45, 47, 51 and 52 seek to remove the powers to differentiate entitlements. As we have noted elsewhere, these powers are broad and flexible; they do not require the Secretary of State to act in a particular way. Equally, there is ample discretion available in respect of whether a person is granted group 1 or group 2 refugee status. While the detail will be set out in rules and guidance in due course, suffice it to say that the exercise of the powers in question will be sensitive to vulnerabilities and individual circumstances. That enables us to balance the need to take a tough approach with the need to protect the most vulnerable.

We have been clear that our starting point in respect of the length of leave will be a grant of no less than 30 months. Similarly, settlement will be available by virtue of our long-residence rules. We have gone further in our defence of refugee family reunion, noting that we will continue to uphold our international obligations under Article 8, but in any event, there is no requirement to apply such entitlements in each and every case. I repeat that we fully intend to be sensitive to vulnerabilities and individual circumstances in that respect. That is why we have retained a considerable amount of discretion in the drafting.

Turning to Amendment 55, I do not think it would be appropriate or right for us to step outside of the existing power to make immigration rules under the Immigration Act 1971. This is the same power that we use to implement most other aspects of UK immigration policy, including but not limited to asylum policy. Indeed, areas in which we regularly use Immigration Rules to administer the system include the type of leave to remain, the length of leave to remain, the routes and conditions of settlement, and family reunion. It would be inappropriate to do otherwise in this case. The rules are the appropriate vehicle: they have a long-standing and clear procedure, with the appropriate level of scrutiny built in. As I have noted, however, I am absolutely committed to this policy being exercised sensitively with a view to protecting the most vulnerable. There will always be discretion in our policies to make the right decisions in each case, and that extends to the Immigration Rules.

I cannot agree to Amendment 39, which would remove the requirement for a person to claim without delay to be a group 1 refugee. That means that anyone claiming asylum, regardless of whether that was done at the last moment to defer removal, could be a group 1 refugee. That would undercut the entire purpose of the policy and embolden those seeking to abuse our rules. There are already safeguards within the legislation enabling discretion to be exercised, such that a claim should be made as soon as reasonably practicable.

Amendments 43 and 50 would amend the list of ways in which we can differentiate from a non-exhaustive list to an exhaustive one. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do that only by retaining flexible powers to respond to situations as they arise.

Amendment 48 would prevent the ability to differentiate in respect of family members. This is primarily about coherent policy. We should ensure that, where appropriate, family members of refugees are not treated more or less favourably than the lead applicant, but the flexibility that we wish to retain will also enable us to respond sensitively to particular circumstances as appropriate, including in respect of how we treat family members. For example, let us say we discover that a child has been a victim of abuse by their parents and needs to be taken into care. The flexibility in the powers would enable us to respond to such a tragic situation by granting a more generous entitlement to that child compared to their parents, in order to sympathetically reflect the need in those individual circumstances.

Amendment 53 would remove the ability to differentiate in respect of requirements for settlement for family members. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do this only through retaining flexible powers to respond to situations as they arise. That said, I anticipate that many if not most families will receive the same length of leave to remain to ensure that all qualify for settlement on the same terms at the same time. However, we want to retain the ability to respond flexibly to challenging situations that might require us to do otherwise in respect of length of leave for a refugee and their family.

I turn to Amendment 41, in the name of the noble and learned Lord, Lord Etherton. I hope I can offer some reassurance that his concerns have already been accounted for in the policy, so there need be no further amendments to the Bill in this respect, as I outlined earlier. We envisage that the provision will apply in cases where a refugee meets the first two limbs of Article 31— that is to say, they came direct and claimed “without delay”—but, at the time of the claim, they had entered or were present in the UK unlawfully, having, for instance, overstayed an economic migrant visa.

To illustrate, let us say a person overstayed their visa and then lodged an asylum claim. Because they had entered the UK directly and ostensibly claimed without delay, they might be eligible for group 1 refugee status but, due to having overstayed, we would also check whether they had

“good cause for their illegal … presence”

at the point of claim. If they had no good reason for having been in the UK illegally, they might be liable for group 2 status. An example of where good cause could be shown might be if a person had overstayed their visa and then lodged an asylum claim—a very similar situation to that described by the right reverend Prelate the Bishop of Durham. If their reason for overstaying and lodging an asylum claim while in the UK illegally was on the grounds that they feared presenting to the authorities because they were homosexual, in such a case this may well amount to a good cause.

Suffice it to say that the powers in the Bill are broad and flexible and therefore enable us to exercise discretion where appropriate, including with respect to “good cause”, which will be reflected in guidance to caseworkers.

I turn my attention to Clause 11 as it currently stands. These powers are primarily intended to uphold the “first safe country of asylum” principle. Clause 11 provides a power, as noble Lords have pointed out—they are not very happy about it—for the UK to differentiate according to whether people satisfy certain criteria based on those in Article 31.1 of the refugee convention. The Government have set out their interpretation in Clause 36. I will not distract the Committee from the issue at hand by going through the provisions of Clause 36, because they will be debated in full.

If I may just pick up the points made by the right reverend Prelate the Bishop of Durham, and the noble Baronesses, Lady Ludford and Lady Chakrabarti, on Article 31, the criteria we use as the basis for differentiation are not based expressly on one’s method of arrival. Instead, they are based on the criteria within Article 31 of the convention: whether someone came directly and claimed without delay, and, where applicable, had

“good cause for their illegal entry or presence”.

The clause acts on our commitment to do everything we can to deter individuals, as I have said, from making dangerous and unnecessary journeys through safe third countries, often putting lives at risk. I hope I have fully explained the Government’s rationale and addressed noble Lords’ questions. If I have missed anything out, I am very happy to follow up in writing but I hope that noble Lords will feel happy to withdraw or not press their amendments.

[Lord Griffiths of Burry Port (Lab)]

My Lords, what a debate this has been. I thank all those who have contributed to it. It has certainly laid bare the points of difference that are going to have to be resolved at a later stage in the consideration of this Bill. I say to the noble Lord, Lord Kerr, that the lipstick is back in my pocket and the piglet is running free.

I appeal to the noble and learned Lords who have so helpfully intervened in this debate. I made the case at Second Reading that I was hearing two legal positions established that I, as a non-lawyer, could not reconcile. I was hoping that noble and learned Lords would bring all their pals in to help us see the basis on which the Government’s legal judgment is reached, since the Government do not choose to reveal this; perhaps they do not do so habitually. I said that this would help those such as me to understand. The UNHCR statement I read—all 72 pages of it—is very clear, it really is. I have not heard what convinces me that an opposite case can equally be true. I think we are going to need some help. I implore noble and learned Lords not to go on holiday before Report, please.

So we come to the end of this long debate. I thank the Minister for her spirited response. It is no joke standing there and defending yourself against what you perceive to be the slings and arrows of outrageous fortune, but she did it with some courage. I also thank all those who intervened on her because, in this way, we have opened matters up. Before Report, some of us are going to have to do some serious thinking and come back in a focused way to take this matter further in a way that satisfies all of us.

Is it not incredible that the Prime Minister is, this very day, in Kiev in Ukraine, arguing that Britain honours its international agreements directed towards those at the far-flung edges of Europe? I would that he come back in his plane via Turkey, Greece, Spain and Italy to show how he is equally committed to the international agreements and treaties we have entered into in respect of the way we treat refugees. With all that said and a little bluster on my part, I am glad to put the piglet running and out of the way. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.