Illegal Migration Bill

Lord Hope of Craighead Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[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.