Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am going to make a short speech about how the Government want to have their cake and eat it. One minute the EU is a place where there are lots of freedoms and protections for its citizens, and the next minute it is terribly repressive and we want to get out. Essentially, I support the noble Lord, Lord Dubs.

[Lord Kerr of Kinlochard (CB)]

My Lords, I agree with the noble Baroness, Lady Chakrabarti, but my feeling about these amendments is that that the noble and learned Lord, Lord Etherton, is right and that the best answer is to strike out the clause.

[Baroness Chakrabarti (Lab)]

I am so sorry but would the noble Lord remove his mask for a moment so we could better hear his wisdom?

[Lord Kerr of Kinlochard (CB)]

Was everything I said even more incomprehensible than usual? Basically, I am saying that we can amend and improve this a bit, but it would be much better to get rid of it.

I also have one point of detail. I am struck by the double reference to the definition of a safe third country, which I believe is irrelevant because the refugee convention says what it says. The definition is that a safe third country

“is one from which a person will not be sent to another State … otherwise than in accordance with the Refugee Convention”

and that is repeated later. Of course, there is absolutely nothing in the refugee convention about sending somebody to a safe third country, or sending somebody to any country, except there is the firm ban on refoulement, that is, sending somebody back to the country where he had the justified fear of persecution. I understand why the noble Lord, Lord Dubs, has that phrase in his amendment. He is thinking about refoulement, but the Government, when they put it in the Bill, are not thinking just about refoulement. They are thinking about their doctrine of having to seek asylum in the first safe country. They are thinking about their strange reading of Article 31 of the refugee convention. They are not letting Article 1 speak for itself, and their reading of the convention is a quite different one, as was explained by the noble and learned Lords, Lord Etherton, Lord Brown and Lord Clarke, with a different definition from the one that has become the jurisprudence of this country.

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[Baroness Williams of Trafford (Con)]

I am not disagreeing with the need to have formal arrangements in place to return people. On that we are at one.

We also acknowledge that it might not always be appropriate to apply inadmissibility to all claimants who have travelled via or have a connection to a safe country. The provisions as drafted already have flexibility that allows us to consider if an individual has exceptional circumstances to warrant consideration of their asylum claim through the UK asylum system. That includes consideration of the best interests of any children affected.

[Lord Kerr of Kinlochard (CB)]

How does case-by-case work? If we are not going to have agreements and the Minister says it is much better to do it case by case, how does that work? The diplomatic post in the capital in question goes in and says, “We have Mr X in an accommodation centre in Kent. We’d like to send him to you because we think he has a connection to you and we don’t want to let him have asylum here.” What happens if the country in question says, “Well, if he’s with you, he’s your problem”? Do we just put him on a plane and tell him to take his chances at the other end, or are we negotiating his terms of entry into the third country?

[Baroness Williams of Trafford (Con)]

I think it is both. We need to assess people on a case-by-case basis and we need to have return agreements in place. It is not an either/or. I fully acknowledge the need to have return agreements in place. We could not return someone to a country that said it would not accept them; that simply would not be on. That underlines the need to have formal return agreements in place.

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[Baroness Williams of Trafford (Con)]

I was going to go on to say that if no agreement is possible within a reasonable period, the individual’s asylum claim will be considered in the UK, but I am not disagreeing with the point that return agreements need to be in place. I think I have made that quite clear. Similarly, this is a global challenge, so every nation in the world has to be mindful of the fact that they will be in similar positions as the months and years go on.

[Lord Kerr of Kinlochard (CB)]

No other country is in this position because other countries believe that the refugee convention means what it says. I am uneasy, and I think the noble Lord, Lord Rosser, must be right, but what makes this particularly peculiar is that we are considering inadmissibility here. Suppose there were an agreement in place. Suppose we were handling a case—the Minister says that it is best done case by case—but we have not done anything except say, “This is inadmissible.” We do not know anything about this chap. He has not had an appeal turned down and has not been categorised in group 1 or group 2; he has simply been declared inadmissible. What does the diplomatic post in the intended recipient country have to go on?

[Baroness Ludford (LD)]

Surely the noble Lord, Lord Rosser, is right: there is no realistic possibility. The Minister keeps “not confirming” that there are no return arrangements in place yet; she lives in hope, but the reality is that there are none and it seems unlikely that there will be any in the near future. I know there are hopes for one with France after the presidential election; well, good luck with that.

The Government wanted Brexit, they got Brexit done and Brexit meant that we no longer enjoy the Dublin regulation. Realistically, the countries that she is talking about sending people back to are mainly EU countries. Frankly, the chances of having a readmission agreement with the EU are for the birds, so we are going to be seeking bilateral agreements—and none is in prospect. So Clause 15 is indeed basically window-dressing.

The noble Lord, Lord Rosser, mentioned that apparently 6,500 cases have been declared inadmissible. All we do by kicking the can down the road is create more people waiting, more people demoralised and more work for the Home Office. It is all completely unrealistic.

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[Baroness Williams of Trafford (Con)]

That is a very good point. I think we talked about this the other day, in terms of returns. We actually took far more than we returned under Dublin. At this juncture, I would say that we do not need formal agreements in place.

[Lord Kerr of Kinlochard (CB)]

The noble Baroness should be careful. I quite agree that it was an interesting point, but it is a point that works for the noble Lord, Lord Rosser, not for the Minister. While there was a Dublin agreement and only 10%—I do not vouch for the figure, but the noble Lord, Lord Green, may be right—what do we expect to happen when there is no agreement? Do the Government expect a higher acceptance rate from the French and Germans when there is no agreement, when they are declaring the guy inadmissible?

[Baroness Williams of Trafford (Con)]

I do not know if the noble Lord heard my last point, but we do not necessarily need formal return agreements in place. We can do returns without formal agreements. The point about Dublin is that the formal arrangements that were in place did not necessarily work. It is important to try both—formal and informal, diplomatic and otherwise. It works both ways and, as I said, this is a global challenge. It is not that it is not an EU problem either.