Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I support the intention expressed by the noble Lord, Lord Purvis, to oppose the question that Clause 5 stand part of the Bill.

Clause 5(1) seeks to put into effect the removal of any person who arrives in the UK other than through a safe route even though, as we have already debated at length, safe routes are virtually non-existent for the vast majority of people coming to this country from Afghanistan, Sudan or Eritrea, for example.

Amendments 27 and 30, tabled by the noble Baroness, Lady Hamwee, dealt with two of my major concerns about Clause 5, but there are other concerns. Amendments already tabled and some of those debated seek to protect victims of modern slavery and trafficking, as well as children. If this House approves those amendments, which I expect we shall, Clause 5 would contradict them. I will speak as briefly as I can. For example, Clause 5(1)(a) requires that the Secretary of State must ensure the person is removed, as the noble Lord, Lord Purvis, has said,

“as soon as is reasonably practicable after the person’s entry”

to the UK. Subsection (4) restricts that requirement if the person has made a protection or human rights claim, but only if the Secretary of State considers that there are exceptional circumstances which prevent the person’s removal. Newly arrived people with no knowledge of the language or systems of the UK would need assistance for any such claim, and the Bill restricts access to assistance. Under Clause 5, therefore, a person is likely to be removed before they have had a chance to make a protection or human rights claim. Also, as the noble Baroness, Lady Hamwee, has argued, it should not be possible for the Secretary of State to counter a protection or human rights claim, if one has been made, with a subjective power to determine that there are not “exceptional circumstances”. The inclusion of Clause 5 in the Bill would undoubtedly enhance the risks to victims of modern slavery or trafficking and to children, along with all others seeking asylum in the UK. I hope the Minister will agree that Clause 5 should not stand part of the Bill.

[Lord Kerr of Kinlochard (CB)]

My Lords, I would like to ask some questions of the Minister, in relation to Schedule 1 and Clause 6. I have four concerns about these provisions.

First, I do not understand the rationale for the list in Schedule 1 and I would be very grateful if the Minister could explain it. It seems to me that, of the 57 countries listed, with only two do we have any form of removal agreement: Rwanda and Albania. Does it concern the Government, as it concerns me, that we are setting out a list of destinations without having any international agreement underpinning it in relation to particular countries?

Secondly, some countries among the 57 listed in Schedule 1 are not party to the refugee convention, so they are in no way bound by the same commitments on the treatment of asylum seekers that bind us. Are the Government concerned about that? I am concerned about it, and I am inclined to think that they should be.

Thirdly, it is not clear to me that all the countries of the 57 in Schedule 1 have any kind of asylum system or procedure. I am not sure that all these countries recognise the concept of asylum in law. Can the Government assure me that I am wrong, and that although some of these countries are not party to the refugee convention—that is a fact—they all have working asylum systems? If not, are the Government not concerned about that? I think we should be concerned about it.

Fourthly, we must ask the Minister to construe the language “in general”, which occurs twice in Clause 6(1). The Secretary of State may add to the list in Schedule 1 if he is satisfied that

“there is in general in”

the country in question

“no serious risk of persecution”.

How are we meant to construe “in general”? I do not think it is the kind of language that should be on the statute book.

The second occurrence in the clause is that the removal of persons to a country to be added to the list is possible only if it would not “in general” contravene the human rights convention and our obligations under it. Hold on: pacta sunt servanda. It is not a question of whether “in general” there is a contravention of the human rights convention—there is or there is not. If sending somebody to one of these 57 countries would be a breach of our obligations under the human rights convention in any way, it does not matter if the Government think that “in general” it is all right. The language “in general” should not be here, both on constitutional and legal grounds and on grounds of pacta sunt servanda. If it would breach in any way our commitments under the convention—I believe it would —we should not add the territory in question to the list in Schedule 1.

My last point is also a question about how we should construe the language. Clause 6 talks not just about countries or territories that could be added but about parts of a country or territory. The noble and learned Lord on the Front Bench spoke eloquently about India when we last discussed this, and I have been thinking about what he said. If I were a serving diplomat, I do not know how I would persuade any country—particularly India, but any country—to accept an international agreement with the United Kingdom in which it accepted that parts of its country were unsafe for an asylum seeker. I do not see how any self-respecting country such as India could possibly accept an agreement including a restriction to a part of its territory where an asylum seeker might be sent. We need the Minister to explain to us how we are meant to construe, in Clause 6(1), “in general” and

“part of a country or territory”.

--- Later in debate ---

[Lord Bellamy (Con)]

I entirely accept the point my noble friend makes and thank him for it.

[Lord Kerr of Kinlochard (CB)]

The noble and learned Lord is so reassuring, and his manner is so friendly, that one is tempted to believe that this might all be as good as he says. On the two-part process, he says that the list sets out possible destinations, but that the Secretary of State would make a judgment about the individual and whether the individual should not be sent to a particular country for reasons particular to the individual. If it were the noble and learned Lord making these decisions, I would be very reassured; unfortunately, it is the Home Secretary.

I am sorry to press the Minister but he has not really answered my question. He says that the list is based on history, but in the past we have not sent people compulsorily to go through an asylum process in another country—so there is something new here. Further, we have not been sending people to countries where there is no asylum process but we are insisting that they must seek asylum there. I do not think the noble and learned Lord has addressed that point.

I would also be grateful if the Minister would construe for us the language in the first paragraph of Clause 6, which addresses “in general” and “a part”. I have not heard his answer to my question as to why it is all right that a country should not in general contravene the human rights convention—implying that if in particular it does, we do not care—and, secondly, why it refers to part of a country or territory. I do not understand how we can get an international agreement with a counterpart. If I am a negotiator, how do I persuade him to accept that there are parts of his country that are unsafe and parts of his country that are safe? Surely the agreement has to be with the other country in respect of the full territory of the other country, not in respect of part of the territory.

[Lord Bellamy (Con)]

My Lords, in relation to the latter point, I repeat the point I made on Monday that this is precautionary. There is no reason to deprive oneself of the possibility of providing for “a part”. With an enormous country such as India, it may be that up in Nagaland or somewhere there are some disturbances, but that does not prevent us saying that India is a safe country. That is the Government’s answer to the first point.

Our answer to the second point is that the words “in general” have—I am open to correction and I will correct myself if I am wrong—stood for 20 years on the statute book without difficulty and do not preclude, in an individual case, an application being made to oppose removal on the grounds of irreparable harm. It is the combination of a general view that the country is safe with the possibility of individual protection. Those are essentially the answers I gave on Monday.

I entirely accept the noble Lord’s point that this is new, but, for the reasons I have tried to explain, it is a workable and, I submit, balanced approach to a very difficult problem which the Bill is trying to solve.