Border Security, Asylum and Immigration Bill

Lord Katz Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord German (LD)]

My Lords, it will come as no surprise that we oppose Amendments 35A and 35B. While we are committed to strengthening border security and tackling criminal exploitation, these amendments attempt to reintroduce the core unworkable architecture of the Illegal Migration Act 2023, thereby undermining the rule of law and proving counterproductive to the very goals they seek to achieve. It is rather like having the legislation that we saw from the last Government but without Rwanda.

Amendment 35A would require the Secretary of State to make a deportation order against anyone who enters irregularly or arrives without leave. This mandatory duty echoes the failed duty to remove provisions being repealed by the Bill. We oppose this mandatory refusal mechanism on grounds of legality and fairness.

First, it would be a breach of international obligations. Amendment 35A would mandate refusal and deportation without consideration of the merits of a person’s claim. Refusing a person’s asylum claim and proposing removal to their country of origin without considering the merits of that claim would put the UK in breach of its obligations under the refugee convention. Even if an asylum claim were refused by this measure, any related humanitarian protection claim would still need to be properly considered on its merits.

Secondly, on punishing victims and not assessing claims, the strength of a person’s claim to protection should not be indicative of the method by which they entered the country. This mandatory approach targets asylum seekers who arrive irregularly, rather than focusing on the perpetrators of organised immigration crime.

Amendment 35B would require the immediate detention of any person who commits an illegal entry offence or has had a claim rejected for the purpose of removal within one week. This proposal is flawed on operational and practical grounds. For a duty to remove to be effective, there must be a destination to which it is safe to remove people, or a host country must agree to accept them. The fundamental challenge to mandatory removal provisions is the practical question of where they are to go. The previous policy framework that these amendments seek to retain was deemed unworkable and led to asylum seekers being left in indefinite limbo because there was often nowhere to remove them safely.

The detention powers in Amendment 35B are reliant on the duty to remove provisions, like those proposed in Amendment 35A, which the Government are seeking to repeal precisely because they created an unsuccessful scheme. Current legislation already provides broad statutory powers to detain migrants for examination and removal purposes. Introducing a mandatory and immediate detention requirement, particularly one that is inextricably linked to a failed removal strategy, risks arbitrary detention inconsistent with standards in international human rights law.

These amendments attempt to enforce a strategy of deterrence without providing any practical or lawful means of enforcement. They are based on a framework that has already proven chaotic, unworkable and fiscally irresponsible. Reincorporating this approach into the Bill would serve only to complicate the removal process, clog up the courts and fundamentally undermine the integrity of our immigration system. I conclude by drawing attention to the fact that I am supported by the RAMP organisation.

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

My Lords, if the amendments in this group seem familiar, it is because we have seen their intention before. Taken together, Amendments 35A and 35B from the noble Lords, Lord Davies and Lord Cameron, can be seen as an attempt to reinstate certain aims and objectives of the Illegal Migration Act 2023—indeed, at points taking a more unworkable approach than what came before. This Government have been clear on their approach to the Illegal Migration Act and the policy intentions of that Act. This Bill repeals the Act, aside from the six sections where we have identified operational benefit, and fully repeals the Safety of Rwanda (Asylum and Immigration) Act 2024.

Amendment 35A, in effect, seeks to reintroduce in a different form the unworkable duty to remove measures in the Illegal Migration Act that we are repealing, as the noble Lord, Lord German, so clearly and ably articulated for us earlier. Having a duty to remove people unlawfully in the UK is something that is easy to say but very difficult to deliver in practice, as evidenced by the previous Government’s failure to implement that part of the Illegal Migration Act. Such a legal obligation means taking away all discretion, and defining exceptions to that duty is not always straightforward. There remains a risk of legal challenge for acting unreasonably in individual cases.

For a duty to remove to be effective, there needs to be a destination to which it is safe to remove people when their own country is not safe for them or where there are practical difficulties in proceeding with the removal, and a host country needs to agree to accept those people. If a third country is not willing to accept foreign national offenders or unaccompanied children, as was the case with the previous Rwanda scheme, that can incentivise perverse behaviour for migrants seeking to remain in the UK. I make no apologies for echoing very closely what the noble Lord, Lord German, said because the facts are the facts, and he was very clear in his analysis.

As I stated in Committee, we already have well-established powers to remove people who are unlawfully in the UK. In fact, we have seen an increase under this Government of over 31% in failed asylum seekers being removed since June last year, along with an increase of 16% in foreign national offenders being removed. Opposition to this amendment is not about opposing the removal of those with no right to be in the UK—far from it. It is about delivering long-term, credible policies to enable a properly functioning immigration system. Having a duty to remove will not add anything useful to that aim.

Amendment 35B, in effect, seeks to introduce a new power of detention and completely remove the power to grant immigration bail. It proposes that all those committing an immigration offence under Sections 24 and 24A of the 1971 Act should be detained in a removal centre, with no recourse to bail, until such time as they are deported. This is simply unworkable. There is no capacity to detain all those within scope of this amendment, it leaves no scope to bail people where removal is not likely to take place within a reasonable timeframe, and provides no discretion in the case of children or those who may be vulnerable. Without wishing to press the point, it is simply wishful thinking. We already have established powers of detention that cover the examination, administrative removal and deportation processes, as well as powers to grant immigration bail where the Secretary of State or the court considers that to be the more appropriate option. The noble Lord, Lord German, has already set out the risks of retaining the approach set out under the failed Illegal Migration Act, so I will not repeat those comments.

These amendments would undermine the integrity of the UK’s immigration and asylum system and put the UK in conflict with its obligations under the refugee convention and the ECHR. They would serve only to prevent asylum decision-making, increase the backlog of asylum cases awaiting an outcome, and put impossible pressure on asylum accommodation, with significant costs to taxpayers. We cannot ignore the fact that these amendments also fail to take into account the needs of vulnerable individuals, including children. I therefore invite the noble Lord, Lord Cameron, to withdraw Amendment 35A.

[Lord Cameron of Lochiel (Con)]

My Lords, I am grateful to the noble Lords, Lord German and Lord Katz, for their comments. It will come as no surprise that I do not accept the criticisms that they made. I suggest that these amendments are responsible, pragmatic and necessary and would restore faith in the principle that sovereignty means that we decide who may enter, who may stay and who must be removed. The backlog of claims, the scale of illegal entries and the long delays in removals all speak to a system that lacks credibility, and these amendments would move us towards a stronger, fairer, more sustainable regime. For that reason, I wish to test the opinion of the House.

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Amendment 37 withdrawn.

[Lord Katz (Lab)]

My Lords, before we move on, I remind noble Lords that the guidance in paragraph 8.82 of the Companion says that Members

“pressing or withdrawing an amendment should normally be brief and need not respond to all the points made during the debate, nor revisit points made when moving the amendment”.

I say this because speeches appear to be getting longer at this point. I urge noble Lords to be brief so that we can continue to make progress and get to the votes.

I add that there have been a couple of occasions where we have had Back-Benchers intervening in the middle of the process of Front-Benchers winding up. That is not the usual practice of the House either.

Clause 43: Conditions on limited leave to enter or remain and immigration bail

Amendment 38

Moved by

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[Lord German (LD)]

My Lords, to add to what noble Lords expect I would say, this seemingly small amendment and its consequential amendments seek to remove the words

“to be presumed to have been”

from Clause 48. It has enormous implications, in effect transforming a balanced legal measure into an irreversible and potentially unjust set of rules.

I will not read out Article 33 of the convention on refugees, but it is quite clear that it says that the person would have

“been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”.

The explanatory memorandum from the UNHCR on what a serious crime is gives examples of murder, rape, arson and armed robbery. The amendment certainly does not meet that.

In short, the existing text in Clause 48 is carefully constructed to allow the courts to address serious criminality, such as sexual offences, while remaining compliant with our international obligations that require an assessment of whether the person poses a continuing danger to the community. Amendment 48 destroys this necessary balance and should be rejected.

[Lord Katz (Lab)]

My Lords, the Government are committed to complying with their international obligations, including those set out in the refugee convention. A key principle of the refugee convention is the non-refoulement of refugees to a place or territory where there is a real risk that they will be subject to persecution. However, the convention, as we have just heard from the noble Lord, Lord German, recognises that there must be limited exceptions to this principle. Article 33(2) of the convention allows the refoulement refugees when they are a danger to the security of the UK or have committed a particularly serious crime and, as a result, constitute a danger to the community.

Clause 48 goes further than previous amendments made by the Nationality and Borders Act by redefining the term “particularly serious crime” for exclusion purposes to now include individuals who have received a conviction for a sexual offence, including under Schedule 3 to the Sexual Offences Act 2003. That is because the Government recognise the devastating impact of sexual violence on victims and our communities and are fully committed to tackling sexual offences and halving violence against women and girls in a decade.

Importantly, as it stands, Clause 48 allows an individual to rebut the presumptions both that they have committed a particularly serious crime and that, as a result, they constitute a danger to the community. Amendment 48, tabled by the noble Lord, Lord Davies, seeks to remove the “particularly serious” rebuttable presumption. This would mean that asylum seekers or refugees who receive convictions for Schedule 3 sex offences would be considered for exclusion from the refugee convention, with no ability to rebut the presumption that they have committed a particularly serious crime.

Similarly, Amendment 49 from the noble Lord, Lord Davies, seeks to remove the same rebuttable presumption for sexual offenders convicted outside of the United Kingdom where that offence would have also constituted a Schedule 3 sexual offence had it been committed in the UK.

The noble Lord’s Amendments 50 to 54 inclusive seek to make a number of changes to the provision, including removing the presumption that, where an individual is considered to have committed a “particularly serious crime” in relation to a Schedule 3 sex offence, they constitute a danger to the community of the United Kingdom as a result. There is no definition of a “particularly serious crime” in the refugee convention and no direct uniformity in the interpretation adopted by other state parties. It is open to the UK to interpret the term in good faith, and that is what we are seeking to adjust with Clause 48. A good-faith interpretation, in our view, requires consideration of the ordinary meaning of the words and respecting the guarantees provided by the convention as a whole. I hope that I am not going too far when I say that the contribution from the noble Lord, Lord German, reflects that we have the balance right in what we are trying to do with Clause 48.

The rebuttable presumption mechanism provides a safeguard for individual offenders to rebut based on their individual circumstances. However, at the same time, it is important to note that Parliament has presumed such offences will be considered particularly serious crimes for these purposes. Not only have those who receive convictions for Schedule 3 sex offences failed to respect the laws of the UK by committing heinous acts, but they have also undermined public confidence in the ability of the state to protect the public. But this measure is limited by our obligations under the convention. Both the rebuttable presumptions must remain as a practical measure to ensure that we adopt a lawful approach. We contend that the Government, in proposing Clause 48, have the balance right. For that reason, I urge the noble Lord to withdraw his amendment.

[Lord Davies of Gower (Con)]

My Lords, I regret that the Government have not listened to the arguments advanced here. Clause 48 will complicate this area of law by reintroducing the confusion that was cleared up by the Nationality and Borders Act 2022. No noble Lord raised any issue with that change at the time, so there is no reason to be reintroducing the rebuttable presumption. It is surely farcical that convictions for sexual offences could be argued to be not particularly serious crimes, when no other offence could be so argued. This seems like a case of intransigence on the part of the Government and a denial of the clear error they have made. As disappointing as this is, I beg leave to withdraw the amendment.

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It is particularly notable that the noble Lord, Lord Alton of Liverpool, has signed this amendment. Clearly, that cross-party nature demonstrates the importance of this amendment, and I thank those who have supported it. It reflects the best traditions of British justice: open, fair and subject to the light of public examination.

[Lord Katz (Lab)]

My Lords, I am grateful to all those who have taken part in this short but focused debate. Like the noble Lord, Lord Murray, I hope that we do not see too many fireworks during the course of my response. It is good to be able to debate the matter with him and the noble Lord, Lord Faulks. I would add that, although he may not be very pleased with what I am about to say, I am very pleased, as I think we all are, to see the noble Lord, Lord Alton, back in his place following his accident.

I fully understand the motivation of the noble Lord, Lord Murray of Blidworth, in tabling this amendment. I will set out the Government’s position and I hope that noble Lords will appreciate why we are taking the position that we are. To be absolutely clear, the Government place the highest priority on ensuring that openness and transparency are at the heart of our justice system. They are also at the heart of the judiciary’s work, demonstrated in particular by the establishment of the Transparency and Open Justice Board by the Lady Chief Justice last year to, as she said,

“lead and coordinate the promotion of transparency and open justice across the courts and tribunals of England and Wales”.

Understanding the clear public interest in this area, work to consider the publication of all immigration and asylum chamber decisions began some months ago. Discussions between the Ministry of Justice, His Majesty’s Courts and Tribunals Service, and the judiciary are ongoing. It would therefore not be appropriate to comment further at this time. I can confirm that, in principle, the judiciary supports the publication of judgments. However, at this point it is important to restate, for the sake of comity between different arms of the state, that this really is a matter for the judiciary and something that Parliament has very rarely legislated on.

The noble Lord, Lord Murray, mentioned, as he did when we discussed this in Committee, that Lower-tier Tribunals will publish their judgments. In response to that I can say that each chamber takes its own approach; some publish and some do not. Generally, chambers that handle sensitive matters, such as immigration but also mental health and special educational needs, have tended not to publish their decisions for what I would hope might be obvious reasons. However, it is clear that the Upper Tribunal is a superior court of record, giving it a similar status to the High Court, which means that its decisions can set binding precedents and are enforceable without further intervention. Because of this, transparency and accessibility are essential, and reported determinations are routinely published, whereas First-tier Tribunal decisions will, in practice, be more closely tied to the facts of a specific case and therefore be of more limited utility to those journalists or academics who wish to examine them.

I note, putting aside some of the technical deficiencies in the amendment, that the First-tier Tribunal does not make judgments but gives decisions. Let me be clear that this is not a straightforward proposal. Any decision to publish all FTT IAC decisions is not about operational cost and resource implications. From additional administrative resources to judicial training, substantial work would be involved in publishing decision notices and written reasons for all decisions, of which the First-tier Tribunal currently delivers approximately 2,500 per month. This includes thousands of decisions without reasons that are published every year, which would be fairly otiose—really just replicating the outcome of that decision.

It is important to note that publication requires judges to consider whether personal details need to be removed from a decision, or even whether an anonymity order is in place, and we would expect an increase in applications for anonymisation to be received. We would expect additional judicial training to be required. Also, decisions in the IAC can be delivered orally. Publishing these would involve an administrative process and judicial oversight, with an impact on the capacity of the tribunal, as I said. To conclude, the Government maintain our view that primary legislation is not necessary.

[Lord Gove (Con)]

I sympathise with the Minister, because obviously the judiciary has reassured him—or perhaps not reassured him but told him—that this will add to its burden. But given the clear view across this House that it is in the interests of strengthening confidence in our system, might he have a word with the judiciary and point out that this Bleak House-style obscurantism on its part does not foster confidence in the judiciary in the way that every part of this House would wish to see?

[Lord Katz (Lab)]

I thank the noble Lord for his intervention, but I am not sure it is really my position to go around having a word, as he put it, with any members of the judiciary, or indeed, that of any member of the Government to be having a word with members of the judiciary, because we quite like its independence. However, as I said, there are discussions going on between HMCTS, the MoJ and the judiciary about publishing, and in principle the judiciary supports the publication of judgments, but it is in its hands, and it is appropriate that it is its decision to make. That is because we value the rule of law in this country, and part of the rule of law is that we have an independent judiciary.

As I was saying, we still believe, as I said in Committee, that primary legislation is not necessary to effect change in this area, and such a change would be most appropriately delivered through non-legislative means or in procedural rules. In the meantime, members of the media can apply to the tribunal for a copy of written reasons in a specific case. Decisions of the immigration and asylum chamber of the Upper Tribunal, which determines appeals against First-tier decisions on points of law, as I have said, are already routinely published online, and those are the ones that are of most interest and saliency when it comes to understanding the evolution of immigration to this country. Given that explanation, and also, I hope, the understanding that there is a process to consider publication going on, I ask the noble Lord, Lord Murray, to withdraw his amendment.

[Lord Murray of Blidworth (Con)]

I thank the Minister for his answers to the questions that we posed. I also thank the noble Lord, Lord Faulks, for his support for the amendment, my noble friend Lord Davies and, particularly, the noble Lord, Lord Alton, whom I am delighted to see back in the Chamber and, earlier today, chairing the Joint Committee on Human Rights, as excellently as ever.

I am afraid I must let the Minister down gently. First, he said the use of “judgments” in the amendment was wrong, because the employment tribunal makes findings, and this was at the heart of his defence. If he looks carefully, he might find that a court would construe judgment in this section of the Act to include all findings and decisions of the tribunal, because that is exactly the word that is used in relation to the employment tribunal.

The Minister’s second reason was that they are having discussions with the MoJ, and the MoJ is having discussions with the judges; there are no timelines, no dates, no indication of what is going to be said, but noble Lords should feel reassured by that. I am afraid that is a warm bath of words. The long and short is that the resource implications of publishing these decisions are limited because we know that all these judgments are provided electronically, because that is the practice—one needs to look only at the immigration decision practice direction. So I do not accept that reason; it is very easy for them to be published, and the cost of it would probably be less than we spend on asylum hotels in a day or two.

For those reasons, I say to noble Lords that it is surely a right to get the facts about decision-making on human rights grounds out there for the public and journalists to see. To adopt the phrase of the noble Lord, Lord Faulks, let us let the sunlight in. I wish to test the opinion of the House.