Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

It will have two major effects. First, we will not get the prosecutions because we will not have the witnesses. It is essential that we prosecute the perpetrators. It is an aspect of human trafficking and modern slavery that there are prosecutions, and there are not enough. Secondly, the person being trafficked is not going to come forward to say they have been trafficked if they are told by the perpetrators, their exploiters, that if they go forward and tell the police what has happened, they will be immediately deported to Rwanda or somewhere else. This is going to have a disastrous effect on the already far too small number of prosecutions in this country. It is crucial that we establish the ability to stop the perpetrators from their evil deeds.

[Lord Kerr of Kinlochard (CB)]

The noble and learned Baroness makes a very strong case and I give her my full support.

My name is on Amendments 80 and 91 in this group. Amendment 91 is concerned with victims of human trafficking, but both fall at the hurdle of retrospection, as has been explained by the other signatories, in particular, my noble friend Lord Carlile, and by the noble Baronesses, Lady Chakrabarti and Lady Hamwee. I have the luxury of being able to add virtually nothing to the arguments already made.

I think the best description of the case against retrospection is in my noble and learned friend Lord Hope’s explanation of Amendment 39, which

“seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.

What is the conceivable good reason? What are the very exceptional circumstances that the Constitution Committee suggested might excuse retrospection?

The noble Baroness, Lady Hamwee, suggested that the Minister might try to say that stopping the boats is so exceptional as to justify retrospection. But there are a lot of other ways of dealing with that; for example, the safe passage visa argued for at Amendment 130. The Minister might say that that it is the cost of housing those who have come across the channel or in the back of a lorry and have been apprehended. But the costs of detaining and deporting those declared inadmissible under this Bill will be much higher.

That is the point the Refugee Council made in its impact assessment and estimate of the costs. It estimated a cost of £9 billion over the first three years. The Minister says that he does not recognise those numbers. That is not a sufficient argument. He needs to tell us what is wrong with those numbers and what his numbers are. It is not good enough just to sit there and say, “Well, I’m not going to engage in this debate because I don’t recognise the numbers”. I think retrospection is fundamentally unacceptable.

A few years ago, when I was driving up Headington Hill in Oxford, I forgot that, eccentrically, the set speed limit there is 20 miles per hour. I was required to present myself in Milton Keynes four months later for a speed awareness course, because I had been travelling at 27 miles per hour. Eccentrically, because I am a very eccentric person, I failed to ask my wife to see whether I could have a personal course. Nevertheless, I would have been very taken aback if, when I got to Milton Keynes—it was extremely hard to find the place and I was driving rather fast trying to find it—I had been told on arrival, “Actually, we have changed the penalty and we are going to export you to Rwanda”. I would have objected, and I object to retrospection.

[Baroness Lister of Burtersett (Lab)]

My Lords, I agree with everything that has been said so far, but I will focus on the opposition to Clause 2 standing part of the Bill. This clause is, in many ways, the nub of the asylum ban to which the Bill gives effect. To place a duty on the Home Secretary to remove virtually all those who seek asylum through irregular routes is an unprecedented step going far beyond simply giving her the power to do so. Here we are talking about those arriving not only by boats but by any irregular route; the boats are used as a justification for the Bill, because the Government know that we all want to see an end to those very unsafe journeys. The fact that it is a power only when it comes to children is a small mercy, given that they will be removed when they reach the age of 18. However, I will leave the treatment of children to a later debate, because there is still a lot to be said about the impact on children.

Calling those affected “illegal migrants” does not alter the fact that the majority are exercising their right in international law to seek asylum. That goes back to the point that the right reverend Prelate the Bishop of Chelmsford made earlier. In the words of the UN rapporteurs that I quoted earlier,

“the act of seeking asylum is always legal, and effective access to territory is an essential precondition for exercising the right to seek asylum”.

When she first introduced the Bill, the Home Secretary accused critics of naivety in suggesting that

“everybody coming here on a boat is a genuine asylum seeker fleeing for humanitarian reasons. The reality is that many of these people are economic migrants who are abusing our asylum system, and that is what this Bill aims to stop”.—[Official Report, Commons, 7/3/23; col. 174.]

Could the Minister give us the evidence on which that assertion is based? It has been reported that the Home Office does not have that evidence, but, if it does, now is the opportunity to provide it.

No one is suggesting that everyone who comes here on a small boat has a genuine case for asylum, but we know that the majority are likely to have such a case. According to the Refugee Council’s analysis of official data, six out of 10 of those who crossed the channel in small boats last year stood to be recognised as refugees—yet they will no longer be able to make their case.

The Home Secretary has argued that the Bill’s critics

“ignore the fact that our policy does in fact guarantee humanitarian protection for those who genuinely need it”.—[Official Report, Commons, 13/3/23; col. 576.]

However, many of those whom she has given herself a duty to remove will genuinely need humanitarian protection. Yet there will be no mechanism for ascertaining whether that is the case before they are simply removed to be dealt with elsewhere, like a parcel marked “don’t return to sender”. To quote the UN rapporteurs again,

“any steps taken to legalize policies effectively resulting in the removal of migrants without an individualized assessment in line with human rights obligations and due process are squarely incompatible with the prohibition of collective expulsions and the principle of non-refoulement”.

The Government talk as if we take a disproportionate number of asylum seekers, yet the opposite is the case— that point was made earlier today, though it seems a long time ago now. As I asked earlier, what happens if other countries follow our lead and also put up the “no asylum seekers here” sign? The chances are that the numbers seeking asylum in the UK will go up, not down.

In practice, the general view, including that of the Law Society, is that removal of those deemed inadmissible will be very difficult in the absence of adequate third-country agreements, making the Bill, in effect, unworkable. The fear of the Refugee Council, the UNHRC and others is that it will mean many thousands left in semi-permanent limbo, at risk of destitution. As I said at Second Reading, the mental health implications are likely to be serious, as spelled out by the Royal College of Psychiatrists, which has many concerns about the Bill’s impact on mental health. For those who are removed to a third country, there is no guarantee that the country will be equipped to assess their asylum claim, so again they could be living in limbo, but out of sight and out of mind of the UK Government. How can all this be described as compassionate and humane, as Ministers repeatedly do?

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I am afraid that I again find myself at odds with the noble Lord. The reality is that the UN itself relocates refugees to Rwanda. As I say, there is no suggestion that people’s asylum claims will not be dealt with under this scheme; their asylum claim will be dealt with in Rwanda once they are removed, and that is entirely compatible with the convention. There is no requirement on a member state of the convention to determine asylum claims within its own territory. That is abundantly plain.

[Lord Kerr of Kinlochard (CB)]

The Minister says there is no requirement in the convention for a convention state to handle an asylum request on its own territory, but surely the deal with Rwanda rules out our ever hearing these cases. In Rwanda, people are allowed to apply for asylum in Rwanda, but their case for asylum in the United Kingdom will never be admitted. Is that not correct?

[Lord Murray of Blidworth (Con)]

That is entirely correct, yes. Their asylum claim will be determined by the Government of Rwanda. That is the system that the High Court found to be entirely lawful in December.

If Amendment 7 were agreed, removing the third condition, the duty to remove would also apply to those who had come directly from a country where their life and liberty were threatened, and I am sure that is not what the noble Lord would want.

Amendment 8 in the name of the noble Lord, Lord Cashman, also relates to the third condition. I put it to the noble Lord that the wording in Clause 2(4), referring to threats by reason of a person’s race, religion, nationality, membership of a particular social group or political opinion, reflects the definition of a refugee in Article 1 of the refugee convention. We have heard a lot today about adherence to the refugee convention and other international treaties. There may be a case for amending the definitions in the convention to reflect the world of today rather than what it was in 1951, but we should not put the cart before the horse and insert wording in the Bill at odds with the current wording of the convention.

I add that the reference to membership of a particular social group may, on the facts of a particular case, cover a person fleeing persecution on the basis of their gender, sexual orientation or gender identity. Lastly, it is not right to suggest, as the noble Lord does, that the Bill removes individualised assessments. It does not. Officials will make assessments and those can be challenged, including by way of suspensive claims, as we have already discussed.

Amendment 9 tabled by the noble Baroness, Lady Hamwee, would remove subsection (7). This ties in with the fourth condition, which is that a person requires leave to enter or remain in the UK but does not have it. We will have a fuller debate about unaccompanied children later in Committee, but subsection (7) recognises that the duty to remove does not apply to unaccompanied children, and where they are not to be removed under the power conferred in Clause 3, the expectation is that they will normally be provided with temporary permission to remain in the UK until they are 18 years old under provisions to be made in the Immigration Rules. If subsection (7) is removed from Clause 2, an unaccompanied child given this temporary permission to remain would not then satisfy the fourth condition, thereby undermining our approach to unaccompanied children. As I say, we will have a fuller debate on this issue when we get to Clause 3, which feels like some time away.

The noble Baroness, Lady Hamwee, also has Amendment 10, requiring the Home Secretary to inform people when it has been decided that the duty to remove applies to them. Such information would include providing details of any evidence relied upon to make that decision. We have already provided, in Clause 7(2), for a person to be issued with a removal notice detailing, among other things, their right to make a suspensive claim. It is implicit in these provisions that the issue of a removal notice follows a determination that the person satisfies the four conditions in Clause 2. The four conditions relate to issues of fact. A person in receipt of a removal notice will themselves know, or ought to know, whether the conditions apply. If they have compelling evidence that the Home Secretary has made a mistake of fact, they can submit a factual suspensive claim to challenge the removal notice. We will return to those provisions, too, in due course in Committee.

Amendment 11 was spoken to by the noble Lord, Lord Coaker, and others. As we will come on to in later clauses, we have made particular provision for potential victims of modern slavery who are co-operating with law enforcement agencies, and it is necessary for them to remain in the UK in furtherance of such co-operation. In later debates, we will address the wider issue of the progress being made by the NCA and others in tackling the criminal gangs that are not perpetuating human trafficking but are engaged in people smuggling. It is worth also noting, in response to the noble and learned Baroness, Lady Butler-Sloss, that if an individual who had been trafficked came forward, they would be sent only somewhere where they would be safe—whether their own home country, if it was safe, or a safe third country. In all cases, they would no longer be in the control of their trafficker.

A key purpose of the Bill is to break the business model of the people smugglers. That will not happen if we undermine the central tenet of the Bill: that if you come here illegally you cannot stay, and instead you will be liable to detention and promptly removed. If we build exceptions and loopholes into the fabric of the Bill, it will be undermined and will not work. If those coming over on small boats have information that will assist in the investigation of people-smuggling offences, they can provide it, but this cannot be a reason to delay removal. Any co-operation with law enforcement agencies can, if appropriate, continue from abroad. If the experience of the pandemic has taught us anything, it is that a lot can be achieved remotely. Indeed, our domestic courts and law enforcement are well used to this by now.

Finally, Amendment 12 in the name of the noble Baroness, Lady Ritchie of Downpatrick, deals with the issue of entry into the United Kingdom over the Irish land border. We discussed this at length during the dinner break business yesterday in relation to the recent SI on electronic travel authorisation. I note that this is a probing amendment relating to the concerns that have been raised regarding tourists and other people who inadvertently arrive in the UK from the Republic of Ireland via the land border with Northern Ireland. As is currently the case, tourists from countries requiring visas to come to the UK as visitors should obtain these before they travel. That is as it should be. That said, I recognise the issue she has raised and accept that some individuals may, entirely unwittingly, enter the UK without leave via the Irish land border, as I said yesterday.

We are examining this issue further. I would point the noble Baroness to the regulation-making power in Clause 3, which will enable us to provide for exceptions to the duty to remove where it would be appropriate to do so.

The noble Baroness, Lady Finlay, asked me about the status of a child born in the UK to a woman who meets the conditions in Clause 2. The short answer is that the child will not satisfy the conditions in Clause 2, but I will write to her with a more detailed explanation.

The noble Baroness, Lady Ludford, asked about compatibility with article 2 of the Windsor Framework. There is a later amendment to which she has added her name, Amendment 137, on this very issue. We will come on to that later in the Committee.

As I indicated at the start, this clause provides the foundations for the Bill as a whole. It is fundamental to the effective operation of the scheme and my fear is that the amendments put forward would serve only to weaken the effectiveness of the scheme. On that basis, I invite the noble Lord, Lord Carlile, to withdraw his amendment.