Border Security, Asylum and Immigration Bill

Lord Kirkhope of Harrogate Excerpts

Committee stage
Monday 8th September 2025 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I have tabled a notice to oppose Clause 43, which has been signed by a former immigration Minister, the noble Lord, Lord Kirkhope, and the noble Baroness, Lady Hamwee.

I have listened with great attention to what the noble Lord, Lord Davies of Gower, has just said, so I shall make it clear what the amendment is about. We are not trying to stop the Government doing what they say they need to do, but we are objecting to a means of doing it that is arguably unnecessary and which is certainly exorbitant—indeed, dangerously so.

The provision that Clause 43 would amend is Section 3(1) of the Immigration Act 1971, under the title:

“General provisions for regulation and control”.


Section 3(1) is indeed general in its scope. It provides for conditions to be imposed on any person who is given limited leave to enter or remain in the United Kingdom. That includes those who are here on a student visa, a business visa or a spousal visa. The conditions that can currently be imposed on the grant of such visas do not appear in the amendment. I remind noble Lords what they are: they include the power to issue visas for certain types of work only, and the power to require visa holders to maintain themselves and their dependants without recourse to public funds. They are fair conditions, and they are well understood by those who are subject to them. Those people include—and I declare an interest—one of my sons-in-law, who is on the five-year pathway to indefinite leave to remain. The happy couple have settled in Norwich, but I try not to hold that against them.

Clause 43, if we were to pass it into law, would allow the Secretary of State to impose on any of these visa holders such conditions as the Secretary of State thinks fit. No limit of any kind is placed on this power, and its potential severity is shown by the illustrative restrictions given in Clause 43(2): electronic tagging, a curfew to operate in a place specified by the Secretary of State for unlimited periods of day or night, and requirements on individuals not to enter a specified area—exclusion zones—and not to leave a specified area, so-called inclusion zones.

Such conditions are not entirely without precedent in our law. They will be familiar to your Lordships from the terrorism prevention and investigation measures, or TPIMs, introduced in the TPIM Act 2011 and echoed in Part 2 of the National Security Act 2023, for those believed to be involved in foreign power threat activity. It might be thought extraordinary enough if this clause allowed individuals whose only crime is to have studied here or married a British citizen to be treated like terrorist suspects, but it is worse than that. Clause 43 would introduce a materially harsher regime than TPIMs in at least three respects.

First, there is the threshold for their use. TPIMs require a reasonable belief on the part of the Secretary of State that the subject is or has been involved in terrorism-related activity. Clause 43, by contrast, is universal in its application. There is no threshold. Even the most blameless of migrants, whose only crime is to have come here for a wholly legitimate purpose, may in law be subject to its full rigour.

Secondly, there is the scope. The measures that appear in Clause 43(2) are all familiar from Schedule 1 to the TPIM Act, but the range of possible TPIMs is at least finite. Not even in respect of those believed to be terrorists did Parliament trust the Government with the unlimited power to impose, in the words of Clause 43,

“such other conditions as the Secretary of State thinks fit”.

Thirdly, there are the safeguards. TPIMs can be imposed only after the Home Secretary has obtained both the permission of the High Court and the confirmation of the CPS that it is not feasible to prosecute the subject for any criminal offence. No such safeguard exists in Clause 43, which would allow the severest restrictions on personal liberty to be imposed by the Executive without the intervention of a court on a potentially vast range of people, without any requirement for consultation, authorisation, automatic judicial review of the kind that exists for TPIMs, or oversight.

Clause 43 came late to this Bill. It was introduced in Committee in the Commons. No attempt was made to defend its breadth of application, but the Minister for Border Security and Asylum, Angela Eagle, did explain the limited circumstances in which the Government proposed to use the new powers for which they were asking. It was intended for use, she said:

“Where a person does not qualify for asylum or protection under the refugee convention but cannot be removed from the UK because of our obligations under domestic and international law”.—[Official Report, Commons, Border Security, Asylum and Immigration Bill Committee, 13/3/25; col. 265.]


It was intended to allow the same conditions to be placed on such persons as they might have been subjected to under immigration bail. She said:

“The powers will be used only in cases involving conduct such as war crimes, crimes against humanity, extremism or serious crime, or where the person poses a threat to national security or public safety”.—[Official Report, Commons, Border Security, Asylum and Immigration Bill Committee, 13/3/25; col. 268.]


Speaking for myself, that objective is entirely understandable, indeed defensible, though I pause to say that the definition of extremism is worryingly uncertain. Given the Government’s limited ambitions for the use of this clause, can the Minister explain why the existing powers to issue TPIMs, serious crime prevention orders and measures under Part 2 of the National Security Act 2023 are considered insufficient? They contain better safeguards and seem to meet precisely the cases that the Minister has in mind. Indeed, serious crime prevention orders are to be extended further by Part 3 of this Bill. If I am right about that, there is no need for Clause 43, but I am sure the Minister will explain.

Even if these existing powers are not sufficient, any new power must surely be tailored to its intended target, rather than to the vast range of innocent visa holders covered by Clause 43 in its current form. That is what the Constitution Committee had in mind when we recommended that the power be narrowed and that safeguards on its use be included in the Bill. The Joint Committee on Human Rights reported in similar terms. For anyone who is interested in more detail, I can recommend the useful briefings from Amnesty and the Public Law Project.

No one doubts for a moment the good faith of the Minister or his colleagues, but to legislate for unlimited powers and trust to assurances from the Dispatch Box about the narrow scope of their intended use would not just be poor legislative practice but an abandonment of parliamentary scrutiny at the very time when that scrutiny is most needed. The courts have no regard to ministerial assurances, save when the terms of an Act are ambiguous. That, as noble Lords know, is a rare eventuality.

No one who looks at the opinion polls can be confident that all possible future Governments would apply Clause 43 with the restraint to which this Government have committed. To enact Clause 43 would be a gift-wrapped present to any future Government who wished to threaten or erode the rights of immigrants across the board, without thresholds or oversight. If this clause is needed at all, I hope the Minister will agree that it should at least be confined in the Bill to the circumstances where that need arises.

[Lord Kirkhope of Harrogate (Con)]

I am very pleased to support the noble Lord, Lord Anderson of Ipswich, and my name is on this amendment. I would just like to say to my noble friend Lord Davies that I was indeed the Immigration Minister, and I came forward with the term “being firm but fair” in relation to all immigration matters. I think that has stood the test of time. I have always believed in very strict conditions being attached not only to the Immigration Rules and their application but to our approach to those who seek asylum in this country.

My name is on this amendment because this is something of an example of a Government using a sledgehammer where it has been quite unnecessary to do so. This clause is so general and so wide in its effects that it seems to me to go against all propriety and balance. I will be very brief because I do not want to fall into the trap of repeating what the noble Lord, Lord Anderson, has said, but I want to tease the Minister out a little on those points.

We know that terrorism prevention and investigation measures, TPIMs, are already very effective, and as are serious crime prevention orders. They all have within them the necessary ingredients to be able to deal with virtually all the circumstances that we are debating in relation to this Bill. Therefore, I again suggest to the Minister that it is unnecessary for us to have these extra powers being sought by the Government. It is true that the Minister in the House of Commons gave a clear indication that the use would be only limited. The noble Lord, Lord Anderson, has given us the list of things where there might be interest here. However, in the circumstances, these intentions of the Minister do not necessarily make good law and I am sure he shares my concern that, if you allow extensions in this way, you are allowing future Governments to abuse the system and the situation unnecessarily.

Also, these new measures, unlike TPIMs or the SCPOs, do not seem to require any judicial approval. There is no such requirement, so far as I can see. As a fairly junior lawyer, but a lawyer nevertheless, I find that reprehensible and dangerous. I would like the Minister’s comments on that.