Border Security, Asylum and Immigration Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I shall speak to my Amendment 203E, to which the noble Lord has just referred. I certainly do not seek to take issue with the noble Lord, Lord Browne.

I appreciate that we are in very topical territory, and I confess that I found it quite difficult to know how to approach this Bill following the Statement on Monday, because there is a lot to come—and I know that the Minister will tell us that we will have the opportunity to debate it, but of course we do not have that much detail and we are being asked to consider a Bill written before that Statement. We will have opportunities to consider the Home Office’s proposals, and today’s debates will give the Minister a flavour—if he needs it, because I do not think that he will be surprised by very much that is said today—of what is to come by way of our responses.

I, too, am grateful to the various organisations that have briefed us on Section 59. They have clearly spelled out the distinction between asylum and human rights claims and, as they say, human rights claims in many cases have nothing to do with a country’s general safety, or perceived safety. They are about someone’s connections to this country and their dependency and family ties here—as I said, this is topical—and are made by people seeking lawfully to enter or remain with their UK-based family. Among other things, this means that there is no right of appeal, because claims are not refused, they are just not considered. Of course—and it is “of course” to me, as the noble Lord, Lord Cashman, said—a country may be safe generally, but not to particular groups or sections of the community. The Supreme Court has recognised that a serious risk of persecution can exist as a general feature of life that applies to a recognisable section of the community.

This amendment takes us back to the 2002 Act, which Section 59 amends. That Act allows for exceptional circumstances, and what they may include is a subject of my amendment, in what would be the proposed new Section 80A(5A), which would provide that they include where

“the claimant is at substantial risk of significant personal harm, either as a member of a minority group or as an individual”.

The amendment would also omit Albania, Georgia and India from the list of countries that are automatically “safe” for everyone.

Noah has been mentioned—and, in fact, he was my example for Georgia, where there is a lack of effective state protection for LBGTQI+ people in the face of considerable violence. To add to what has been said, he said:

“No one can know you are gay. If you are gay, your two options are either hospital or exorcism”.


This man was attacked by his own family, forced to stay in a hospital for people with mental illnesses and subjected to exorcism.

The Home Office country note for India refers to gender-based violence, with women and girls in rural areas or from certain castes and tribes especially vulnerable. Institutional prejudices—violence against Muslims, Christians and certain castes and tribes—go unpunished. Indeed, the country note describes the active involvement of the police. In Albania, trafficking is rife. It is one of the top three nationalities—whether you regard that as the top three or the bottom three—of people referred to the national referral mechanism and recognised to be victims of trafficking. It is internationally recognised that domestic and international trafficking, including trafficking to the UK, is rife, and the families of victims themselves are threatened.

I have been involved with the case of a young man —he was young when he came; his application has not been determined yet—where the threat to his family has been a major factor in his response to what has affected his life. Sexual and domestic violence is widespread in Albania. Wherever we are going in legislative terms with this, we have to recognise the situation that noble Lords have already described.

[Lord Murray of Blidworth (Con)]

I will address Amendment 203J. I declare my interest as a barrister practising in public law and in the immigration space.

As noble Lords will have noticed, Amendment 203J does not sit happily with the other amendments in this group. It is not directly about the inadmissibility of an asylum claim, but it is on a very important point. The refugee convention of 1951 says that, if an asylum seeker has entered the country illegally, he is not to be punished or penalised for doing so, provided he came directly from a territory where his life or freedom was threatened by persecution. Specifically, it says:

“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, in the sense of Article 1”—


the persecution provision in the convention—

“enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

As Professor John Finnis, professor emeritus of law and legal philosophy at Oxford, and I pointed out in our paper published in 2021 by Policy Exchange entitled Immigration, Strasbourg, and Judicial Overreach, the drafting and proper meaning of Article 31(1) of the refugee convention were compellingly expanded by Lord Rodger of Earlsferry and the noble and learned Lord, Lord Mance, dissenting in the case of the Crown v Asfaw 2008, UK House of Lords 31. In doing so, they demonstrated the error of the living instrument interpretation advanced by the majority in that case and by the Divisional Court in the case of the Crown v Uxbridge Magistrates’ Court, ex parte Adimi, 2001 Queen’s Bench 667. The erroneous but reigning interpretation in Adimi is predicated on the notion, plainly rejected by the draftsmen of Article 31 of the refugee convention, that refugees passing through safe country A en route to safe country B and/or C and/or D and/or E should have the option to choose to seek asylum in B, C, D or E.

This is plainly wrong and not what was intended by the state parties when they signed the refugee convention in 1951. It is time that we corrected the law in this regard. Amendment 203J, together with Amendment 203I in my name, which is to be debated in a later group, restores the proper meaning of “coming directly”. In doing so, it provides a solution to the nightmare of the dangerous channel crossings and uncontrolled entry. I suggest that the refugee convention purposefully distinguishes between those who enter directly from a country where they are in danger and those who do not. There is no immunity from immigration law for those not coming directly; this was entirely intentional.

This amendment aims to vindicate the distinction and seeks to bring an end to the practice of widening the refugee convention beyond the terms that the United Kingdom and the other states agreed. Let us look at the terms of Amendment 203J. The Secretary of State would have a duty to refuse a claim for asylum if a person meets the conditions set out. The first condition, in proposed new subsection (2), is that they require leave to enter the United Kingdom and they have done so without such leave, whether illegally or otherwise. The second condition, in proposed new subsection (3), is that

“in entering or arriving as mentioned in subsection (2), the person did not come directly to the United Kingdom from a country in which the person’s life and liberty were threatened by reason of their race, religion, nationality, membership of a particular social group or political opinion”.

Those words are taken from the convention. Proposed new subsection (4), for clarity, specifies:

“For the purposes of subsection (3) a person is not to be taken to have come directly to the United Kingdom from a country in which their life and liberty were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life and liberty were not so threatened”.


To make it absolutely crystal clear, proposed new subsection (5) says:

“For the removal of doubt but without limitation, for the purposes of subsection (3), a person has passed through or stopped in another country outside the United Kingdom if they depart in a boat, vessel or aircraft from France or any other European coastal state”.


If this provision were enforced, would you risk your life in the channel in a small boat if you knew that your asylum claim would be bound to be refused? You would not.

This amendment—to use the slogan so favoured by the Prime Minister—would smash the gangs by destroying the business model, and do so while we remain a member of the refugee convention. Unlike the timid tinkering around the edges we see in almost all of this rather performative Bill as presently proposed, this amendment proposes a real, beneficial solution and the Home Office should grab it with both hands.

[Baroness Brinton (LD)]

My Lords, I support Amendment 203E tabled by the noble Baroness, Lady Hamwee, and declare my interests as vice-president of the Alliance of Liberals and Democrats for Europe and chair of human rights at Liberal International.

I want to mention briefly something that happened in Georgia this afternoon. Nika Katsia, who was imprisoned by Georgian Dream on trumped-up drug charges, has finally been freed after the regime, astonishingly, admitted in court to planting drugs on him at a protest. This is the third such case in recent weeks. Many thousands of others remain in prison. Over the last four months, leaders and senior activists have been told by the regime they had to go into the Parliament and kowtow to the new regime. They were immediately imprisoned; it became a contempt of Parliament and some have sentences of seven to 15 years. These are the high-profile people, but some of the hundreds of thousands of protesters on the streets every night are finding that, like Nika Katsia, they are ending up in prison for absolutely no reason. Georgia is not a safe place; I support my noble friend’s amendment for this reason.

During the passage of the safety of Rwanda Act, we on these Benches repeatedly said that Rwanda was not safe, and that continues to this day. The Rwandan Government have again imprisoned Victoire Ingabire Umuhoza, leader of the Development and Liberty for All Party. She has been nominated for the Sakharov prize and was the winner of the Liberal International prize for freedom last year. She has spent most of the last 20 years in prison, as have members of her party. Many have tried to escape and seek asylum elsewhere for their safety.

Rwanda was not safe then and it is not safe now, so I am really pleased to see that we are at least now discussing that. These amendments are important, and when we come on to another group later today, I will raise the issue of how appropriate it is to have a list in a Bill or a regulation when things can move as fast as they have happened in Georgia recently. That is worth exploring, but I will leave that until we get to that group.

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[Lord Hanson of Flint (Lab)]

I am happy to examine that. We have said publicly that Article 8 is the focus for our examination, discussion and wider review. However, that does not mean—and this is the key, important point—that we will ditch the ECHR. Although it is 75 to 80 years old and was established in 1950, as a number of noble Lords, including Lord Kerr, have mentioned, it establishes a number of basic rights, which are important to me and to the people we represent and the people in our communities. They set a basic framework, but that does not mean that we cannot look at how those interpretations are made. That is why we are trying to do that.

To come back to Amendment 203J from the noble Lord, Lord Murray, this would impose a legal obligation to refuse all asylum claims made by illegal or other irregular migrants who travel from safe countries. The stated intention of the measure is to deter such people from using dangerous and illegal methods to enter the UK. I am with the noble Lord, Lord Kerr, on this: the amendment would not achieve that aim. Refusing a person’s asylum claim and proposing removal to their country of origin without consideration of the merits of their claim would put the UK in breach of its obligations under the refugee convention. We may not want to be in the refugee convention, but we are in it and we cannot in my view unilaterally breach those obligations accordingly. Even if a person’s asylum claim could be refused on account of this measure, the humanitarian protection claim would still need to be properly considered on its merits.

[Lord Murray of Blidworth (Con)]

I am grateful to the Minister and I appreciate the difficulty of the position from which he speaks, and the difficulty of the position of the Home Office in this regard. The point of my amendment was not to breach international law. As I hope I made clear, the wording of the convention in Article 31.1 is clear: one has to come directly. This is an opportunity for the Government to comply with their stated intention of not breaching international law but still deliver a policy that has a deterrent. This is a vital opportunity and I implore the Minister not to miss it just because it is coming from me.

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[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord for proposing the clause stand part notice. At the outset, I place on record for the House that 35,052 people were returned from 5 July 2024 to 4 July 2025, the first year of this Government. Of those returns, 9,115 were enforced returns of people with no legal right to remain in the UK, a 24% increase over the period of the previous year.

[Lord Murray of Blidworth (Con)]

Will the noble Lord give way?

[Lord Hanson of Flint (Lab)]

Of the total returns, 5,179 enforced and voluntary returns were of—

[Lord Murray of Blidworth (Con)]

Will the noble Lord give way?

[Noble Lords]

Order.

[Lord Hanson of Flint (Lab)]

In a moment. I will always give way, if the noble Lord will let me finish the sentence. Of the total returns, 5,179 were of foreign national offenders, an increase of 14% over the same period in the 12 months prior. Therefore, before the noble Lord puts the premise that we cannot remove people and that this Government are not trying to, those figures put the record straight.

[Lord Murray of Blidworth (Con)]

I am very grateful to the noble Lord for giving way. Of the 9,000 that he refers to, how many came across on a small boat?

[Lord Hanson of Flint (Lab)]

There were a number. I have not got the figure to hand.

[Lord Murray of Blidworth (Con)]

It is the low-hanging fruit.

[Lord Hanson of Flint (Lab)]

If the 9,115 were low-hanging fruit, why was this figure 24% higher than the previous year, when—let me just remind myself —who was the Minister in charge of this system? Would it be, by any chance, the noble Lord, Lord Murray of Blidworth?

[Lord Murray of Blidworth (Con)]

Because of the provision we brought in.

[Lord Hanson of Flint (Lab)]

Right. I think we will just settle at that: that it is 24% higher than in the previous year because of the actions this Government have taken. That is the context in which Amendments 105 and 109 seek to reintroduce the duty to remove measures in the Illegal Migration Act that we are repealing. Therefore, it will not come as a surprise to him to know that we are not going to accept his clause stand part notice today.

Having a duty to remove people who are unlawfully in the UK is easy to say but very difficult to deliver in practice, as evidenced by the previous Government’s failure to implement this part of the INA. 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, of acting unreasonably in individual cases. For a duty to remove to be effective, there needs to be a destination where it is safe to remove people to when their own country is not safe for them.

We have taken a judgment on the Rwanda scheme for that effect, where there are practical difficulties in proceeding with the removal, and where 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, that can incentivise perverse behaviour for migrants seeking to remain in the UK.

We already have well-established powers to remove people who are unlawfully in the UK and have in fact, as I have just mentioned, seen an increase of more than 20% in failed asylum seekers being removed since the election of July last year, along with a 14% increase in foreign national offenders being removed. The Government’s aim is to deliver long-term credible policies to ensure a properly functioning immigration system. Having a duty to remove will not add anything useful to that aim. We are repealing the legislation that the noble Lord brought in; he is trying to reinsert it. There is an honest disagreement between us, but I invite the noble Lord to withdraw the stand part notice.

Border Security, Asylum and Immigration Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Baroness Butler-Sloss (CB)]

I am very interested in what the noble Lord, Lord Jackson of Peterborough, says, because he did talk about common sense and looking at a person. That is what encouraged me to speak. When I met those two young men, I absolutely took the view that they were over 18, but I was disabused, not only by their age, which was identified, but by the fact that I had been thinking in European terms. That is the danger of what is being said by the Opposition.

[Lord Murray of Blidworth (Con)]

My Lords, I had better rise at this stage to introduce my Amendment 203H. As with my last amendment, the mysteries of grouping have left me slightly confused, because this amendment does not actually relate to the Illegal Migration Act. This is an amendment which I offer to the Home Office as a sensible amendment that will save public money. It will be a sensible and useful use of time, and I implore the Minister, who I know to be a sensible and reasonable person, to look at this carefully.

Amendment 203H refers to the National Age Assessment Board, which was set up under the Nationality and Borders Act 2022, before I was in this House—I know there are some noble Lords here who remember the debates about that particular Bill. The Bill presently before the Committee does not repeal any provisions in the Nationality and Borders Act. The National Age Assessment Board was set up by the 2022 Act to bring into the Home Office the system whereby those who claimed to be minors would be assessed. Prior to these provisions coming into force, that was done by local authorities. What had routinely been the case was that a person who purported to be younger than 18 and who wished to challenge a decision would then seek a judicial review of the assessment made by the local authority. There is a whole run of cases in which the courts considered what the test should be, on judicial review, of a social worker’s evaluation of the person’s age. Across the country, different local authorities had different approaches.

In a case called A v Croydon, the Supreme Court, led by the noble and learned Baroness, Lady Hale, determined that age assessments would not be made on the usual basis of a judicial review. As noble Lords will be well aware—and I am sorry that I am teaching grandmothers to suck eggs, but in case there is anyone watching who does not know this—a decision on judicial review is not normally taken by means of a court looking at the decision afresh, considering the evidence and taking a decision for itself; instead, what the court does is to look at the decision to see whether it is lawful and not unreasonable in the public law sense, which is classically defined as being so unreasonable that no decision-maker could have reached that decision —the “Oh gosh” test, as it has been described previously.

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[Baroness Brinton (LD)]

My Lords, I am very grateful to both noble Lords, Lord Murray and Lord Jackson, for thinking that they absolutely know where I am coming from, and I hope that the noble Lord, Lord Jackson, at least, might be relieved to find that we are on slightly more common ground than he believes. I am going to start backwards; I am going to start with the amendment from the noble Lord, Lord Murray. I happen to have with me the SI on age assessment of asylum-seeking minors, because a number of us did regret Motions for that on 27 November 2023. Initially, the Home Office, of which I think he was a Minister at that point, said that, as per the Age Estimation Science Advisory Committee report from October 2022,

“the Home Office will not use the scientific methods to determine an age or age range, but rather use the science to establish whether the claimed age of the age-disputed person is possible”.

Possible is not scientific fact.

[Lord Murray of Blidworth (Con)]

Forgive me for intervening. I should clarify that the National Age Assessment Board is not using scientific methods, so my amendment has nothing whatever to do with scientific methods. The National Age Assessment Board is using conventional social work methods to identify age.

[Baroness Brinton (LD)]

I am very grateful for the noble Lord’s intervention. One of the problems is that social workers are using exactly those techniques—perhaps not in full, but they are. What is more, the NNAB social workers are paid through the NNAB by the Home Office. They are not independent, which is the other key point we wanted to make. I am very grateful for what the noble Lord, Lord Jackson, said at the start. He said that the public had moved on. But, as a former trustee of UNICEF, I say that my priority has to be the protection of young people who are under 18, and an arrangement for those where it may not be possible to decide that exactly—and we have had many debates about all that.

The issue is not just one of public satisfaction. The public may be very irritated by the young men who are clearly over 18 who are doing this, and that is fine for the system. Those of us who are bringing back amendments, probably on Monday, want to make sure that it is not happening the other way round: that people under 18 are being deemed to be adult. We know that this has happened and I hope that the Minister will be able to reassure me that we might finally see some data on this. Every time I have asked over the last three or four years, there has been no data about those who are deemed to be 18 and over who were under, and, indeed, the other way around. That is important for the Home Office, because it needs to understand about provision for those who are in this very small group, who need to be looked after in a slightly more special way.

By the way, not every young person who is under 18 who goes to a school is going to have special needs. They may need some language support, but not necessarily special needs. They may need emotional support if they have come from a war zone such as Sudan but, if we are saying that they are awaiting assessment as asylum seekers, that is something that this country really ought to be prepared to look at. So I am much more cynical about the NNAB being as truly independent and clear as the noble Lord, Lord Murray, was making out. Those of us who have amendments will go over this in detail next week.

I want to go back to Amendments 114 and 115. Young people having no right of appeal contravenes the United Nations Declaration on the Rights of the Child. They absolutely must have support in complex issues, particularly in a country where they may not speak the language. When the official Opposition were in power, they also refused to let young people who were having age assessments carried over have any access to legal or advisory support during that process. They said it was not necessary. But I have to say that those European countries that use age assessments all have independent support for these young people from that Government’s own process. I particularly pray in aid the Netherlands, because it was cited by the noble Lord, Lord Murray, when he was at the Dispatch Box in the past.

These protections are built in because we have a formal duty to look after those under 18 and, yes, it may be difficult to work out if some are, but we will know about most of them. I really think that the first two amendments need to be reviewed, and I do not think we can support them. I can remember when I read the first full report: it is not as clear as the noble Lord, Lord Murray, said. There is always talk about ranges. I do not know about noble Lords, but I have a son of six foot four and he was certainly sprouting a beard by 16 or 17 and was already over six foot. We make mistakes, and I absolutely support what the noble and learned Baroness, Lady Butler-Sloss, was saying. You cannot just assume that that is right and, if we get it wrong, you have a young man—they usually are young men—who is put into an adult centre. They then are at risk, and that is on us as a country.

[Baroness Brinton (LD)]

The problem is that Amendment 114 in the name of the noble Lord, Lord Davies of Gower, says there is no appeal—full stop, end. None. Therefore, that young person, who probably has English as a second language, whichever side they are and who will be arguing that they are under 18, does not even have the right that the noble Lord, Lord Jackson, was talking about, and that worries me. I have argued this for some time, as the noble Lord, Lord Murray, knows, to his cost. I agree that the public are concerned. I have no doubt about that. However, are we only concerned with what the public are concerned about? Do we not need to focus on children who are seeking asylum in this country and can get some help? If we go by, “Well, actually the public don’t want it”, it will all start going the wrong way.

[Lord Murray of Blidworth (Con)]

I am sure the noble Baroness will agree that she is balancing two things here. First, a problem arises if a young person is put into adult accommodation, as she identifies. However, a bigger problem arises if you put an adult who is fraudulently claiming to be a child into facilities for young people. At that point, there is a very significant risk to those young people.

As a House, we have a significant responsibility in this area to ensure that we do not gullibly take people’s claims to be young people, which can put other young people in those homes and facilities at risk. It is very important that the Home Office has a coherent system, which it does, and that the system is capable of review, which of course it is by judicial review. The noble Baroness will agree that there is a balancing act to be performed here.

[Baroness Brinton (LD)]

I am very grateful to the noble Lord for his intervention. I have argued before to him, and I say it again, that there is a very straightforward answer. You have smaller group homes for those who are around the borderline, because the protection we need is for the younger ones. The noble Lord is absolutely right that, if we put a load of people in who are over 18, those younger children are at risk. But we do not have to, given the number of children that there are.

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[Lord Kerr of Kinlochard (CB)]

My Lords, I concur with the noble Baroness’s point about proceedings lasting for ever, but one must not take that point too far. It takes one into authoritarian territory where we really should not be going.

All the points I wanted to make were made much better by the noble Baroness, Lady Brinton. I vividly remember our 2023 debates. Indeed, we are in a time warp with this whole debate. We have been here several times and there are no new points to be made. I remember the ethical, moral and practical arguments about scientific methods being debated.

Although I am sure we did, I cannot remember whether we discussed the equity of the point made in Amendment 115, which says that if the young person refuses to subject himself to a scientific test, because he is scared or whatever, the law will say that he is an adult and a liar. In equity, that seems to me to be a strange thing to put into a statute book. The process of going to law takes a long time, but it is our tradition. To cut it all short by saying, “If you don’t agree to be tested in this particular way then you’re an adult and a liar” seems quite extreme. I cannot remember if the point was debated before. I think the noble Lord, Lord Murray, is going to tell me that he answered it in lapidary terms in 2023.

[Lord Murray of Blidworth (Con)]

The noble Lord, Lord Kerr, is of course right to remember those happy exchanges. I draw his attention to the fact that, obviously, there are many examples in the law of presumptions being made if people do not do things: for example, the breath test, as the noble Viscount sitting next to me has just observed. If you say “no comment” in a police interview, inferences will be drawn. It is the same presumption system. There is nothing unusual in terms of the drafting.

[Baroness Hamwee (LD)]

There was discussion about consent, because a child cannot consent. I do not know whether the noble Lord recalls it, but we talked about that fairly extensively.

[Lord Hanson of Flint (Lab)]

I am grateful—again—for the amendments which have elicited this discussion. I want to put a central premise before the Committee: that age assessments, as has been proved by the contributions of noble Lords today, are a difficult area and no single or combination assessment technique is able to determine age with precision. But as the noble Lord, Lord Murray of Blidworth, said, there are serious safeguarding issues if adults are treated as children and placed in settings with children. Similarly, there are serious safeguarding risks in treating children as adults. We have to try to improve the performance on age assessment and get it right. The Government treat this issue with real seriousness and with the importance it demands, and we will continue to explore with partners how we can improve the robustness of age-assessment processes by increasing the reliability of the methods used.

That leads me to the amendments before the Committee today. Amendment 114 seeks to incorporate Section 57 of the Illegal Migration Act 2023, which is subject to repeal, into the Border Security, Asylum and Immigration Bill. The fact that we are already repealing that means that we are revisiting again, as we are on a number of amendments, things that the Government are seeking to repeal. The provision—the noble Baroness, Lady Lawlor, referred to this—concerns decisions relating to a person’s age and would bring into effect measures to disapply the statutory rights of appeal in the Nationality and Borders Act, which, if commenced, enable a person to bring an appeal challenging a decision on their age. The noble Baroness, Lady Brinton, referred to the difficulties of that. The provision applies only to individuals subject to the Section 2 duty to remove in the IMA, which itself is under repeal in the Bill.

I know what the noble Lord, Lord Kerr has said, and I feel that I am going around in a number of circles, but the impact is the same. We are repealing these sections; the official Opposition are trying to put them back in. We cannot put them back in because we are repealing these sections. At the end of the day we are still trying to improve the performance on age assessment for the public and the immigration system. We are committed to focusing on delivering long-term, credible policies and will try to ensure that we do that by retaining only measures of the IMA which we have assessed as offering operational benefit. As I have said, we are repealing most of the measures, including Section 2, the duty to remove. Therefore, Sections 57 and 58, relating to age assessments, which this amendment seeks to reinstate, are both unworkable and indeed irrelevant without the duty to remove. The circular movement continues.

There are robust processes in place to verify and assess an individual’s age where there is doubt. It is important that we do so, and I again emphasise to the noble Lord, Lord Jackson, the Opposition Front Bench, the noble Lord, Lord Murray, and the noble Baroness, Lady Lawlor, that these are important matters to get right. Where an individual claims to be a child without any credible documentary evidence and where there is reason to doubt the claimed age, immigration officers will currently conduct an initial decision on age to determine whether the individual should be treated as a child or an adult. Where doubt remains following the initial decision, which occasionally it does, individuals will be treated as a child and transferred to a local authority for further consideration of their age, in the form of the acknowledged Merton-compliant age assessment.

The Government are committed to improving age-assessment practices to enable all individuals to be safeguarded and treated appropriately, for the very reasons that the noble Lord, Lord Murray has mentioned. We have retained—as again the noble Lord, Lord Murray, has referred to—the National Age Assessment Board, which was launched on 31 March 2023 by the previous Government. It is now being rolled out nationally, continues to offer significant improvements, and has the support now of over 55 expert social workers whose task it is to support local authorities by conducting comprehensive age assessments, increasing capacity, and putting expertise in the system. Since its launch, 77 local authorities have signed up to the work of the NAAB. Greater consistency in age-assessment practice is now the case; improved quality of decision-making is there. Well over 1,137 individuals, predominantly social workers from local councils, are responsible for conducting age assessments, and the training has received positive feedback from local authorities.

Those are all positive things, and I again pay tribute to the hands that laid on those regulations and efforts previously. It is all very good, positive stuff. The Home Office, with the support of the Department for Education, has also commissioned user research into age assessment processes, with participation from Home Office members of staff, non-governmental organisations, local councils, accommodation providers and others. It has already started to implement positive change following the research that we have undertaken, and we are currently reviewing initial decisions on age training that have been received by Home Office staff at, for example, the Western Jet Foil premises in Kent.

Amendment 203H, tabled by the noble Lord, Lord Murray, would, as the noble Baroness, Lady Brinton, and others have said, restrict the jurisdiction of the court to determine applications for judicial review brought against a decision on age made by the National Age Assessment Board on conventional public law grounds such as rationality, reasonableness and procedural fairness. The court would be unable to grant relief because it considers that the board’s decision on a claimant’s age is wrong as a matter of fact. It would also prevent the court from substituting its own decision on age. This is an important point, as it is contrary to the decision of the Supreme Court which held that the court is required to determine for itself the age of the claimant as an issue of fact.

In addition, this amendment would result in a court treating challenges brought against decisions on age made by the board differently from challenges brought against decisions on age made by a local authority.

[Lord Murray of Blidworth (Con)]

I am very grateful to the Minister for his thoughts on that. That is the whole point. The thrust of my submission was that the Supreme Court got the law wrong in that instance. The creation of the National Age Assessment Board as an expert body means that the situation is different from that which pertained when the Supreme Court made that earlier decision. That is why the Home Office should trust its own expert social workers and grasp this opportunity to accelerate the pace and change the test that the court is using.

[Lord Hanson of Flint (Lab)]

I think we are going to have an honest disagreement on this amendment. I am grateful for the thought that the noble Lord has put into this, but I again put it to him that the amendment would result in a court treating challenges brought against decisions on age made by the board differently from challenges brought against decisions on age made by a local authority. We are going to have to part company on that, for the moment at least.

Amendments 115 and 200, tabled by His Majesty’s loyal Opposition, concern scientific methods of age assessment. Repealing Section 58 of the Illegal Migration Act, which the Bill seeks to do, will not affect the provisions related to scientific methods of age assessment set out in the NABA and the Immigration (Age Assessments) Regulations 2024, such as the power to use X-rays and MRI scans and to take a negative inference on the credibility of a person who refuses consent where there are no reasonable grounds to do so.

Amendment 200 looks to have the Secretary of State lay regulations under Section 52 within six months. Regulations have already been made under this power. It would also place a duty on the Secretary of State to make regulations under Section 58 of the IMA. Again, the Bill will repeal that section, although Amendment 115 would reintroduce it as a clause in this Bill. We are going round again in the circle of life on the amendments to this Bill.

In any case, the Secretary of State would not make regulations to the effect that these amendments seek to achieve unless and until satisfied that the scientific methods in question are sufficiently accurate to mean that applying the automatic assumption in cases of refusal to consent would be compatible with the ECHR. The specified methods do not currently meet this threshold. Again, we can have a debate about the ECHR, but that is where the Government currently are.

The Government will continue to explore the latest developments in things such as artificial intelligence and age assessment technologies to ensure that we have the most accurate information available. Facial age estimation is promising and potentially cost effective, allowing early assessments, and it could produce useful results far more quickly than potential methods of scientific age assessments such as the bone X-rays mentioned by noble Lords and MRI scans. It requires only a facial image, and we will look at how that develops.

Again, the IMA was part of the previous Government’s initiative. We are repealing the IMA but will not compromise on border security. We remain fully focused on long-term credible policies. For that reason, I invite the noble Lords, Lord Davies, Lord Cameron and Lord Murray, not to push these amendments at this time.

Border Security, Asylum and Immigration Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 8th September 2025 Lords Chamber

Moved by

[Lord Murray of Blidworth]

158: Clause 48, page 45, line 11, at end insert—
“(1A) After subsection (4) insert—“(4A) A person is convicted by a final judgement of a particularly serious crime if—(a) the person is convicted of an offence under—(i) Part III of the Immigration Act 1971, or(ii) sections 13, 14, or 18 of the Border Security, Asylum and Immigration Act 2025, and(b) the person is not, by virtue of the conviction, a person falling within subsection (2).(4B) A person is convicted by a final judgement of a particularly serious crime if—(a) the person is convicted outside the United Kingdom of an offence,(b) the act constituting the offence would have constituted an offence under— (i) sections 24 or 24A of the Immigration Act 1971, or(ii) sections 13, 14, or 18 of the Border Security, Asylum and Immigration Act 2025, had it been done in any part of the United Kingdom, and(c) the person is not, by virtue of the conviction, a person falling within subsection (3).””Member's explanatory statement
This amendment would ensure that illegal entrants and those who commit immigration crimes are included in the definition of particularly serious crime for the purposes of the interpretation of Article 33 of the Refugee Convention, meaning that they would be able to be removed from the United Kingdom.

[Lord Murray of Blidworth (Con)]

My Lords, I declare my interest as a barrister, specialising in public law, including in immigration cases. I will speak to my Amendment 158—and I hope my amendment is not what has caused the Minister to vacate the Front Bench.

The amendment would expand the UK’s interpretation of Article 33(2) of the refugee convention and includes an offence under Part III of the Immigration Act 1971 as a “particularly serious crime”. As noble Lords who are present in the Committee this evening will be well aware, Article 33 of the refugee convention is the provision which prohibits the expulsion or return of refugees or, in the lex specialis of refugee law, the refoulement provision.

For the benefit of the record, Article 33(2) itself provides that:

“The benefit of the present provision”—


by that it means the provision of the benefits of the convention—

“may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country”.

In that provision, the drafters of the refugee convention envisaged a situation where a refugee could, as it were, avoid the benefit of the refugee convention by their own criminal action.

What this amendment seeks to do is to insert the offences in Part III of the Immigration Act 1971 into the statutory definition of a “particularly serious crime”. The concept of a particularly serious crime is contained within Section 72 of the Nationality, Immigration and Asylum Act 2002, which was legislation brought forward by the previous Labour Government. That Act defined what a serious criminal offence was, and Section 72(1) begins:

“This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return)”.


It then goes on to set out what those exclusions are.

This amendment seeks to amend subsequent legislation but ultimately impacts on the meaning of Section 72 of that Act. In so doing, it adopts the same model as the Government have provided in Clause 48 of the Bill, which provides that it amends Section 72 of the Nationality, Immigration and Asylum Act 2002 by including various categories of offences as “particularly serious crimes”. The Committee will see—those who have a copy to hand—that at line 15 on page 45 of the Bill, that includes a person convicted of an offence

“listed in Schedule 3 to the Sexual Offences Act 2003”,

and so on.

My amendment is very much in the same vein, and would insert:

“A person is convicted by a final judgement of a particularly serious crime … if … convicted of an offence under … Part III of the Immigration Act 1971, or … sections 13, 14, or 18”


of this Bill once it is enacted.

Part III of the Immigration Act includes almost all immigration offences, including the offence of illegal entry into the United Kingdom. As the Committee will recall, that includes the offence, under Section 24, of being:

“A person who knowingly enters the United Kingdom in breach of a deportation order … A person who … requires leave to enter the United Kingdom … and … knowingly enters the United Kingdom without such leave … A person who … has … limited leave to enter … and knowingly remains beyond the time limited by the leave … A person who … requires entry clearance … and knowingly arrives in the United Kingdom without a valid entry clearance”.


It is a large list of offences, and would include illegal working, assisting unlawful immigration to a member state of the United Kingdom, helping an asylum seeker to enter the United Kingdom, assisting entry to the United Kingdom in breach of a deportation or exclusion order, facilitation offences, and general offences in connection with immigration including possession of a fraudulent registration card or immigration stamp.

The purpose of the amendment is therefore to ensure that a person who is convicted of those offences is to be treated as having committed a “particularly serious crime” for the purposes of the refugee convention, in that they would therefore constitute a danger to the community. They would therefore be able to be removed or returned in a convention-compliant way.

This amendment probes the Government’s intentions and the general approach they will adopt to perform a toughening up—as we have heard over recent days—of their immigration policy in as far as they are able in line with their international obligations. I have laid this amendment to explore what the Government suggest in this regard. It is clear, given the message we have heard in recent days about the willingness to adopt a fresh or tighter interpretation of Article 8 of the ECHR, that it may well be that the Government share my view on the proper interpretation of Article 33(2) of the refugee convention.

It is consistent with the amendment I laid on the previous day of Committee on the need to come directly and the approach that can be taken on a clean review of the obligations and commitments made when we signed the refugee convention, without the barnacles of subsequent decisions. The proposed change in this amendment would permit the United Kingdom to return and deport anyone who enters illegally, regardless of whether they are a refugee or not.

All this ties into a much overlooked provision of the refugee convention, one I am sure the Minister will be very interested to hear about: namely, the obligations in Article 2 of the refugee convention, which requires that every refugee has duties to the country in which he find himself, and that, in particular, he conform to its laws and regulations, as well as to measures taken for the maintenance of public order. One aspect of the refugee convention is that refugees are expected to conform to our law, and if they break our law then they cannot expect to have the protection of the convention. I beg to move Amendment 158.

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

My Lords, I thank all noble Lords for a short but legally quite forensic debate. It was probably almost too forensic for gone 10 pm on a Monday night. I shall do my best to address their concerns.

I shall start by talking a bit about Clause 48 and then move on to the amendments. The Government are committed to complying with their international obligations, including those set out under the Refugee Convention. As noble Lords will be aware, a key principle of the Refugee Convention is the non-refoulement of refugees to a place or territory where there is a real risk they would be subject to persecution. The noble Lord, Lord Murray of Blidworth, clearly and ably set this out.

The convention recognises that there must be limited exceptions to this principle. Article 33(2) of the convention allows refugees to be refouled where 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 the 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 included in Schedule 3 to the Sexual Offences Act 2003. This is because this Government recognise the devastating impact of sexual violence on victims and our communities. We are fully committed to tackling sexual offences and halving violence against women and girls within a decade. Importantly, as it stands, Clause 48 allows the 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 159, tabled by the noble Lords, Lord Cameron and 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 160, in the names of the noble Lords, Lord Cameron and Lord Davies, seeks to remove the same rebuttable presumption for sexual offences committed outside the United Kingdom, where that offence would have also constituted a Schedule 3 sexual offence had it been committed in the United Kingdom. Their Amendments 161A to 161E 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 states 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 requires consideration of the ordinary meaning of the words and maintaining respect for the guarantees provided by the convention as a whole.

The rebuttable presumption mechanism provides a safeguard for individual offenders to rebut based on their individual circumstances. At the same time, it is important to note that Parliament has presumed that 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 these heinous acts, they have also undermined public confidence in the ability of the state to protect the public. 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.

In speaking to his amendments, the noble Lord, Lord Cameron, spoke at length and in quite technical detail about the alignment of the language of the 2002 Act. Rather than trying to go into detail now, I will undertake to write to the noble Lord about the issues of language alignment that he raised, so that we can get a properly considered and more legally watertight response than I can give at this hour.

Amendment 158 in the names of the noble Lords, Lord Murray and Lord Jackson of Peterborough, spoken to by the noble Baroness, Lady Lawlor, seeks to expand the definition of a “particularly serious crime” to immigration offences. We consider this amendment to be incompatible with the refugee convention. We understand the seriousness of individuals seeking to arrive in the UK through dangerous and unsafe means, which is why we are taking robust action to prevent it. That is what this Bill is all about. The noble Lord, Lord Murray, raised Article 2 of the refugee convention. Our view is that the Bill is utterly consistent with the principle that those coming here have responsibilities to obey the host nation’s laws. That is something that we feel runs through the Bill.

In terms of the actions that we are taking, Border Security Command is strengthening global partnerships to enhance our efforts to investigate, arrest and prosecute these criminals. We recruited an extra 100 specialist NCA investigators and intelligence officers, including staff stationed across Europe and in Europol, to drive closer working with international law enforcement partners to target smuggling gangs. This Bill will give the NCA new powers to tackle organised immigration crime and protect the UK’s border. As stated previously, it is open to the UK to interpret the convention in good faith, and it is considered that immigration offences that do not carry a custodial sentence of more than 12 months cannot in good faith be interpreted as a particularly serious crime. Given that explanation and the undertaking to write to the noble Lord, Lord Cameron, on the technical point of language alignment, I ask the noble Lord, Lord Murray of Blidworth, to withdraw his amendment.

[Lord Murray of Blidworth (Con)]

I thank the Minister for that considered reply, and I am glad to say that I agreed with at least part of what he said. There is much to welcome in Clause 48. I concur that it is appropriate for a person who is convicted of an offence listed in Schedule 3 to the Sexual Offences Act to fall within the definition, so the Minister and I agree on that point at least. He said that, in the view of the Government, our amendment is not consistent with the refugee convention, but I did not discern particularly clearly why. No doubt, the Minister and I can explore that in correspondence prior to Report. With that, I beg leave to withdraw my amendment.

Amendment 158 withdrawn.

Border Security, Asylum and Immigration Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, this is an interesting group with two distinct parts. I must confess that I am not immediately drawn to Amendments 184 and 185 in the name of the noble Baroness, Lady Chakrabarti. They would, in effect, incorporate the refugee convention into the domestic law of the UK, as identified by the noble Lord, Lord Faulks, and the noble and learned Lord, Lord Garnier. I therefore cannot accept that, given the unhappy experience that we have had of the Human Rights Act and the unpredictable effect of incorporating an international convention into domestic law. I am not tempted to repeat that mistake. I therefore support the Government in their sensible and inevitable rejection of the amendments that the noble Baroness proposes.

I shall not be drawn into a broader conversation about the suitability of the refugee convention, as the noble Lord, Lord Faulks, and the noble Baroness, Lady Fox of Buckley, were. It is clearly an interesting and important debate, which builds on comments made by the noble Lord, Lord Macdonald, about whether, in principle, a well-founded fear of persecution is the correct test for the grant of asylum. These are important and justifiable discussions, but a debate on these amendments in Committee is not the place to have them.

All this takes me to the wording of my Amendment 203I. I invite Members of the Committee who have a copy of the amendment just to look at it for a moment. This amendment emulates the one laid by the noble Baroness in seeking to revise the provisions of earlier statutes. It would amend Section 31 of the Immigration and Asylum Act 1999 by inserting a new subsection (2). This would provide:

“For the purposes of subsection (1) a person is not to be taken to have come directly to the United Kingdom from a country in which their life or freedom were threatened as mentioned in that subsection if, in coming from such a country, they passed through or stopped in another country outside the United Kingdom where their life or freedom were not so threatened”.


That provision accurately reflects the provisions of Article 31 of the refugee convention.

It is clear that, in 1951, the state parties were of the view that, for an appropriate claim for asylum to be made, it must be made by someone who had come directly from an area where their life or freedom were threatened. The stretching of the term “come directly” to include spending a number of years in another safe country where they could have claimed asylum is a matter of domestic law, which this Parliament is able to revisit. It ties in with my Amendment 203J, which the Committee will recall we debated on 3 September. It is clear that one option open to the Government in creating a disincentive effect is to go back to the original intended wording of the refugee convention.

Amendment 203I is a stand-alone provision because it protects the rights of the United Kingdom as a state party to the convention. It is intended to avoid the deeply regrettable state of our domestic law in respect of this provision of the refugee convention, which has gone far beyond what our international obligations actually are. If noble Lords are worried, as some may be, about our possible repudiation of the refugee convention by some future Government and/or a sizable fraction of the public, they should support measures that reinforce and restate the United Kingdom’s rights as a state party under the refugee convention, and they should align domestic law with the international law.

As Professor Ekins, professor of constitutional law at Oxford, made clear in his 2019 article in the book The Political Philosophy of Refuge, case law has rendered the right afforded to a nation, as stated in Article 31, effectively nugatory. This undercuts self-government and warrants condemnation, I submit, from this Parliament. But its consequences are broader than that, in that, as a consequence, it encourages hundreds of thousands of refugees to become economic migrants, leading to the deaths of potentially thousands at sea; the vast extension of the people trafficking industry, with all the horrors that that entails; and the exposure of European peoples, especially in Greece and Italy, to an ongoing stream of new arrivals, few of whom will ever return home.

The state’s right to exclude asylum seekers and some refugees is an important power that protects the common good of the political community. It preserves the distinction between citizen and non-citizen, on which decent social life and effective self-government depends. The commitments that the states undertook in 1951 in the convention were carefully framed to require refugees to be treated well but not to expose states to an open-ended liability to accept persons fleeing persecution or war, let alone poverty. This amendment restores the meaning—the correct meaning on any reading—of Article 31 of the refugee convention. I commend it to the Committee and the Government.

[Baroness Ludford (LD)]

My Lords, I apologise for not being here right at the beginning. I hope no one will object if I none the less intervene, as I was here for the previous discussion. I think I understand the motivation behind Amendment 184, in the name of the noble Baroness, Lady Chakrabarti. It would not perhaps be regarded by her as necessary if it were not for the nibbling away at the refugee convention in recent years.

I must confess that I am not attracted by the solution of the noble Lord, Lord Faulks, which is to say that we will have a complete disconnect between being a party to the refugee convention—sort of parking it over there—and saying that in domestic law we can do whatever we like. Sorry, I do not wish to parody what he said, but he was basically saying that we will do our own thing in domestic law and Parliament will decide what we want to implement. I am not sure that that really honours being a party to the refugee convention.

I am not quite sure whether my legal analysis matches that of other contributors to this debate but, as I read it, the amendment of the noble Baroness, Lady Chakrabarti, does not seek incorporation in the way that the ECHR was incorporated through the Human Rights Act. It is a bit stronger than the assimilation that we have had, such as in the Conservatives’ 1993 immigration appeals Act, which absorbed some of the definitions and wording of the refugee convention. Perhaps some kind of rather British compromise is going on.

What has happened in recent years is that there has been an attempt to ignore aspects of the refugee convention. I am sure the noble Lord, Lord Murray, is more expert on the refugee convention than I am, but I cannot really follow his assertion that his Amendment 203I would restore the correct reading or interpretation of Article 31. I do not know where he gets that from. Article 31 is worded as it is; it says anyone “coming directly”. It does not incorporate any kind of wording like that in his amendment. It just says someone “coming directly”; it does not say that they have not come directly if they have passed through or stopped in another country. I have a vague recollection that there is case law that says if someone passes through rather quickly—there are probably other qualifications, but with no intention to stay and not staying several years somewhere—then that would be ignored. That would be de minimis and it could still be concluded that they had come “directly” to the UK. I do not think the definition of “directly” has to be absolutist. No doubt the noble Lord will correct me, but I do not understand where this assertion that he is restoring the correct interpretation of the refugee convention comes from.

Rather like with the ECHR, if there is a belief that the convention itself is wrongly worded or not fit for purpose—I do not agree with that interpretation of either the ECHR or the refugee convention—then we should attempt to get an assembly of the state parties to change it. Obviously, there are some people who want to pull out of the ECHR, which is something that I vehemently disagree with, but even going short of that and saying, “We can stay a member but we’ll just make sure that we subvert and undermine it”, seems disingenuous and even dishonest. Be up front: if you want to try to change the refugee convention or the European Convention on Human Rights then try to get all the parties together and attempt to do so, but trying to pretend that we belong but do not really want to implement the provisions seems the worst of all worlds.

For instance, it is true that Article 31 of the refugee convention refers to “illegal entry or presence” but that has morphed, in current terminology, into describing people as illegal—“illegal immigrants”, a term that I will never accept. People cannot be illegal. I prefer the term irregular entry, because if someone arrives, applies for asylum and is granted it, having been described as illegal seems an unfortunate beginning. I am stuck with the fact that the refugee convention uses that term, but it does not refer to the persons themselves as illegal, which is what has happened in modern political and media commentary, which I deplore, frankly. That is just an example. I would prefer the refugee convention to be changed to say “irregular entry and presence”, until it is illegal presence. Once they have been refused asylum and they need to leave, they then have a different status. Anyway, I digress slightly.

--- Later in debate ---

I turn now substantively to Amendment 203I from the noble Lord, Lord Murray of Blidworth, also spoken to by the noble Baroness, Lady Lawlor. This would narrow the UK’s current interpretation of Article 31, preventing refugees who travelled to the UK through a safe third country from relying on a defence under Section 31, even when it was not reasonable for them to have sought protection in that country. This amendment risks undermining the intention of Article 31 of the convention. As I said, I am not entirely clear how, if we were applying that principle in good faith, we would be taking in many potential asylum seekers at all.

[Lord Murray of Blidworth (Con)]

The noble Lord says, rather speedily, that it would undermine the intention of Article 31. How does he know what the intention is if it uses the words “coming directly”?

--- Later in debate ---

[Lord Davies of Gower (Con)]

My Lords, we now turn, in my submission, to probably one of the most important groups of amendments on the Bill, which I am sure will promote some discussion and likely much disagreement. That is perhaps something to be welcomed.

The stated aim of the Human Rights Act, when it was introduced, was to bring rights home. It incorporates 16 rights derived from the European Convention on Human Rights into domestic law and was itself enacted to satisfy the obligations placed on the British Government by Article 1 of the ECHR. This was all to satisfy a noble purpose: to make sure that human rights in the United Kingdom were protected and upheld. But we have seen the corruption of this noble purpose no more keenly than when we see how it has been applied to matters of immigration and deportation.

To give an example, noble Lords will no doubt be familiar with the horrific abuses inflicted on girls by the Rochdale grooming gangs. Two of the Rochdale grooming gang ringleaders, Adil Khan and Qari Abdul Rauf, fought deportation by claiming their right to a family life under Article 8 of the European Convention on Human Rights, which is also Article 8 of the Human Rights Act. Rauf even gave up his Pakistani citizenship just to make sure that we could not deport him. He lost his appeals, yet he is still here: still in Rochdale, still living among the people whose lives he destroyed.

It is clear that, under the straitjacket imposed on us by the Human Rights Act, our country has lost control of the asylum system. Hundreds of thousands of people have come here claiming to be refugees—far more than politicians before us ever imagined—almost all passing through neighbouring countries which are perfectly safe. Tens of thousands of them will receive taxpayer-funded legal aid, which is spent on lawyers competing to devise ever more ingenious legal arguments to keep them in the country.

Let me give your Lordships some more examples. One woman, who was refused leave to remain, deliberately joined a terrorist organisation to manufacture a claim that she risked imprisonment back home. A convicted paedophile evaded deportation by claiming he was gay and that his life would be at risk in his home country. And let us not forget the Albanian criminal who claimed in February that he could not be deported because of his son’s sensitivity around food, the sole example given in court being his aversion to foreign chicken nuggets. The immigration tribunal ruled that his deportation would breach his Article 8 rights, as it would apparently have an “unduly harsh” impact on his son.

Every day we see these kinds of cases reported, and tens of thousands of illegal immigrants, mainly adult men, take the risk of crossing the channel in small boats because they know that we cannot remove even criminals and terrorists. Indeed, we pay their legal fees to help them stay. We have seen this unjust situation unfold further with the Government’s returns deal with France. The week before Parliament broke for recess saw the first two flights leave with no migrants on board. Those who were due to be deported on those flights had their deportation orders halted by the High Court due to concerns about human trafficking and torture. The new Home Secretary herself admonished those trying to use the Human Rights Act and the ECHR to prevent their deportation as

“making a mockery of our laws”.

How can this situation be a reflection of the laudable aims that heralded the incorporation of the ECHR into our statute book in 1998? The simple answer is that it is not. The dream has become a nightmare, and the time has come for us to do something about it. That is why I and my noble friends on these Benches have tabled this amendment.

There is a point I wish to clarify here. After the excellent, thorough report of my noble friend Lord Wolfson of Tredegar, the Conservative Party has committed itself to repealing the Human Rights Act and leaving the ECHR. While it is no longer the policy of the Official Opposition simply to disapply the Human Rights Act for immigration cases, this Bill does not present us with the opportunity to repeal the HRA. To do so would require a Bill of its own. This amendment is therefore the avenue through which we are able at this stage to facilitate discussion on the impact of our continued membership of the ECHR.

I know that some noble Lords in your Lordships’ House today will disagree with me. As I have already said, the debate is welcome, but I ask those who disagree whether our situation now, this minute, is one that the Human Rights Act is working to improve. Has the Human Rights Act protected the victims, their families and communities in Rochdale? Has it protected our people from the paedophiles who continue to languish in the United Kingdom because we cannot deport them? Does it help or hinder people smugglers who use it to reassure the people they are transporting that they will not be removed? The answer is clear: the Human Rights Act in this context does not uphold human rights. It aids and abets abusers in their abuse. Trauma is continued and renewed because of the Act. The rights of our people come second to the rights of child abusers and terrorists, who hide behind the Act to remain on our shores, to remain a threat to our people and to remain a source of terror and pain for the people they have already harmed. We are prevented from deporting those who show flagrant disrespect for the laws passed by our sovereign Parliament, but even more fundamentally it prevents us enacting the wishes of the British people. This is an untenable situation that we must swiftly seek to remedy.

I further welcome the amendments to Amendment 189 tabled by my noble friend Lord Murray of Blidworth; they perform an important function in strengthening its purpose. While that amendment would disapply the Human Rights Act from immigration legislation, my noble friend’s additions would ensure that the mechanisms contained in Sections 4 and 10 of the Human Rights Act are also expressly excluded. In practice, this means that the courts would not be able to issue declarations of incompatibility in relation to immigration law; nor would Ministers be able to use remedial orders to alter such legislation on human rights grounds. That would close off any backdoor reintroduction of Human Rights Act challenges into this field, and it would provide the clarity and certainty that are essential if this policy is to be delivered effectively. I therefore strongly support these amendments as a logical and necessary reinforcement of the central principle of Amendment 189.

As has been said in the other place, now is the time for radical decisions. This is an amendment the Government should welcome if we are to stand up for the rights and well-being of the British people. I beg to move.

[Lord Murray of Blidworth (Con)]

My Lords, as foreshadowed by my noble friend Lord Davies of Gower, I have two amendments in this group that seek to amend the Front Bench disapplication provision for the Human Rights Act. Of course, disapplication feels rather “yesterday”; the Overton window on the question of human rights law is now clearly swinging in favour of repeal of the Human Rights Act, following the excellent report produced by my noble friend Lord Wolfson of Tredegar and the announcement of the party’s new policy. Be that as it may, for the purposes of this Bill, the correct approach, which I suggest the Minister should grasp with both hands, is to disapply the effect of the convention and the operation of the Act in the sphere of immigration decisions.

Disapplying the Human Rights Act from this area is not unprecedented. As the Minister will recall, this provision was incorporated, in a slightly different form, in the Safety of Rwanda (Asylum and Immigration) Act, and it was clearly a matter that passed both Houses of Parliament. It is both a precedented and a necessary step.

I turn briefly to the context for my amendment. The amendment itself would add two further provisions to the amendment proposed by my noble friend Lord Davies: that is, to include in the operation Section 4 of the Human Rights Act, which is the court power to make a declaration of incompatibility, and Section 10, which is a power to remedy any incompatibility by means of a statutory instrument. As Policy Exchange observed in its paper on the Safety of Rwanda (Asylum and Immigration) Act in December 2023, that disapplication provision did not mention Sections 4 and 10 and was the worse for it, because the experience has been that, where a court can make a declaration of incompatibility, those matters are taken almost automatically by the Government as warranting some sort of remedial step.

No Government so far have ignored a declaration of incompatibility, to my knowledge. For example, in the recent case where the Northern Irish High Court found an incompatibility in the legacy Act, the decision of the Government was to bring forward a remedial order to have the effect of suspending the operation of the provisions of that Act without waiting for primary legislation, itself a controversial move. To avoid that situation recurring, I have tabled these amendments to exclude from any potential challenge to immigration-related decisions a decision by a court to make a declaration of incompatibility, or a decision by a Government to attempt to remedy it by making a remedial order under Section 10 of the Human Rights Act.

It is clearly time that we took back control of the United Kingdom’s borders. This Government, and particularly this Home Office, know the difficulties that trying to operate within the constraints of the Human Rights Act has generated as it has evolved. I encourage the Minister to accept a provision similar to this so that he can implement the policies of his Government.

[Lord Faulks (Non-Afl)]

My Lords, when the Government first came into power last year, great emphasis was placed by the Prime Minister and his Attorney-General on the importance of the rule of law and in particular respect for international law. We were told that there was no way the Government would revisit the Human Rights Act or seek to amend the ECHR. Attitudes appear to have changed.

The previous home secretary, Yvette Cooper, said that the Government would bring in

“a clear framework set out by parliament that then can be much easier for the courts to interpret”.

I am not quite sure what that means, but she was talking about the application of human rights guarantees to various claims for asylum, in particular in relation to Article 8. It may have been a coincidence that this statement followed quite shortly after Reform had announced its policy on asylum claims.

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[Lord Hanson of Flint (Lab)]

We are identifying challenges that the Government have responsibilities to identify and work on. The challenges that we are identifying exist for some of the reasons mentioned by the noble Lord, Lord Davies. Issues to do with applications of Articles 3 and 8 are causing some challenges.

That does not mean we have to withdraw from human rights or ECHR legislation. We can either work with further UK amendments, to support changes to that legislation while retaining the spirit of the law that we apply, or—I was going to go on to say this before taking the intervention—actively engage with our European partners and the Council of Europe to consider what international reforms could restore the right balance between individual rights and wider public interest in controlling migration. As the noble Lord will know, this is a shared challenge. The basic rights set out in the ECHR and Human Rights Act are still valid today, but this does not mean that it is a static, permanent document that cannot be looked at in certain areas. As I have said, work is under way on reviewing the application of Articles 3 and 8 in immigration cases.

[Lord Murray of Blidworth (Con)]

I am grateful to the Minister for giving way. In this new piece of legislation on Articles 3 and 8, will the Home Office be able to certify in its new Bill that the new provision will be compatible with the convention rights, or will it certify that they are not?

[Lord Hanson of Flint (Lab)]

I suggest that the noble Lord tests me on these matters when we have, as I have said, undertaken the work, reviewed potential legislation, brought forward proposals and put them before both this House and the House of Commons. Either I or a Minister in the House of Commons will have signed the Bill at that stage, in terms of those issues, but we are a number of steps away from that.

At the moment, we have assessed—this goes back to the point that the noble Lord, Lord Faulks, mentioned—that Articles 3 and 8 have some challenges, but the principle is not to do what the Opposition seek, which is to withdraw from this in its entirety and, in doing so, withdraw from a range of international obligations that we share with many countries and which underpin the work of this United Kingdom in so many areas. That is not my natural approach to this challenge. With due respect to noble Lords, let us have that debate and, if need be, let us have that vote at some point. We will be on different sides of that argument.

To the noble Lord, Lord Faulks, I say this: bear with us. We will bring forward the points that I have tried to make in tonight’s debate on Articles 3 and 8. They will be examined when the Government have had an opportunity both to examine them in detail—now that we are in government, as opposed to being outside the tent in opposition—and to bring forward proposals that will help in a way that builds consensus with our partners on what ECHR reform could look like. At the recent European Political Community Summit, 17 nations, including the UK, agreed to work together to ensure that the ECHR and other international frameworks are implemented in a way that safeguards against abuse so that Governments can tackle modern challenges.

The UK is committed to complying with international law. If we accepted the amendments from those opposite, we would not be, in my view, complying with international law. That includes implementing judgments of the European court and complying when it indicates binding interim measures in pending cases; when the court has reformed and improved its approach to interim measures, which I currently welcome, we will abide by those also.

In summary, I hope that the noble Lord, Lord Faulks, can be patient. To the noble Lords, Lord Davies and Lord Murray, I say this: I am sorry that we are not going to agree, but I hope that I have explained the reasons why.

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Moved by

[Lord Murray of Blidworth]

203F: After Clause 48 insert the following new Clause—
“Upper Tribunal (Immigration and Asylum Chamber)(1) All judgments of Upper Tribunal (Immigration and Asylum Chamber) must be published on a Government website within three days of being made.(2) Judgments published under subsection (1) may be anonymised to the extent considered necessary by the Tribunal.”

[Lord Murray of Blidworth (Con)]

My Lords, Amendments 203F and 203G deal with the publication of tribunal decisions. First, I thank my supporters in this amendment, the noble Lords, Lord Faulks, Lord Jackson of Peterborough and Lord Alton of Liverpool. These amendments deal with an important issue and I should outline what the current position is in relation to the publication of judgments.

In the First-tier Tribunal (Immigration and Asylum Chamber), decisions of the judges are not routinely published. In the Upper Tribunal, which hears appeals from the First-tier Tribunal (Immigration and Asylum Chamber), decisions are published, although not all decisions may be reported. Bearing that in mind, I then invite the Committee to note that the noble and learned Baroness, Lady Hale, sitting judicially in the case of Cape Intermediate Holdings v Dring, 2019, United Kingdom Supreme Court 38, found that the purpose of the open justice principle was twofold.

The first purpose is to enable public scrutiny of the way in which courts decide cases, to hold judges to account for the decisions they make and to enable the public to have confidence that judges are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken. The First-tier Tribunal (Immigration and Asylum Chamber) is one of the largest of the seven chambers of the First-tier Tribunal. Of the other chambers, the Tax Chamber, the Property Chamber, formerly the Lands Tribunal, and the General Regulatory Chamber, which deals with Information Commissioner matters, among other things, all routinely publish their decisions on the website. Furthermore, the Employment Tribunal, which, although not part of the First-tier Tribunal, is a tribunal of even jurisdiction, also publishes all its decisions on the website. But the First-tier Tribunal does not do that. Its decisions are made behind what is effectively a curtain of secrecy.

This is no small number of cases. In 2020-21, the First-tier Tribunal (Immigration and Asylum Chamber) disposed of 20,000 appeals. In 2021-22, it disposed of 41,000 appeals. In 2022-23, it disposed of 38,000 appeals and in the last year we have numbers for, 2023-24, it was 39,000 appeals. It will come as no surprise that it is plainly in the public interest to have openness and transparency of decision-making. There should be public scrutiny of the decision-making of the First-tier Tribunal (Immigration and Asylum Chamber). There is no basis for there not being transparency and publication of judgments of the First-tier Tribunal.

It is of course open to litigants in the First-tier Tribunal to apply to the tribunal for an order that the identity of everybody in the case be anonymised in the decision, so no risk to anyone participating in the case would be occasioned by the publication of the decision. The Supreme Court, in the case of Kambadzi in 2011, made it clear that, while anonymity needed to be justified in each case, there is now an expectation that in asylum cases there are frequently anonymity orders. So there is no argument that the non-publication of First-tier Tribunal decisions is to protect the people participating in the cases. There is, in fact, absolutely no coherent basis for not publishing these decisions, and this is made all the worse because there is very significant public interest in this decision-making.

I venture to suggest that the judges of the First-tier Tribunal would welcome the additional openness and transparency. We hear cases reported in the press: for example, the famous “Case of Theresa’s cat”, as it was called in the Daily Mail, and the “Chicken Nuggets Case”. We can all think of cases which have been reported by reason of matters which are identified as amounting to a breach of Article 8 or Article 3 of the convention. If the decisions were published in an accessible way on the internet, like all the other decisions in the other tribunals I listed, the press could immediately go to the decision and see whether that particular feature was, in fact, decisive in the decision-making.

And it cuts both ways. Not only would it be open to a journalist or researcher to analyse the methods by which decisions are taken by the judges of the First-tier Tribunal; they could analyse it by reference to the individual judge. Allegations of bias may be rebutted, or indeed it may be found that particular judges are refusing all cases. It does not favour one side of the argument or the other; it is simply fair and appropriate that these judgments be published.

The only reason which I can discern that these decisions are not published at present is that it has been the practice hitherto. Since 2007, on the formulation of the First-tier Tribunal (Immigration and Asylum) chamber, there has been a practice direction. There is nothing in statute, and the judges one speaks to can see no good reason why those decisions are not published. We know the tribunal service can manage it, because it manages it in the tax chamber, the property chamber, the general regulatory chamber and in the employment tribunal; it is the same tribunal service. Furthermore, it has all the judgments electronically in any event, so there is no cost argument and no process argument.

This is an amendment whose time has come. The Government should accept it at this stage and appreciate that this is something that warrants careful consideration. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, it is not obvious how there could be any sensible objection to this group of amendments. They are all concerned with open justice. There are many well-known judicial utterances about the importance of this, as we have heard from the noble Lord, Lord Murray, quoting the noble and learned Baroness, Lady Hale. I like a recent one from a Scottish judge, Lord Carloway, who said this:

“Open justice has two key elements. The first is that proceedings are heard and determined in public. The second is that the public should have access to judicial decisions, including any reasons given for them and the identity of the parties. As a proxy for the wider public, the media have an important role. Reporting on court and tribunal cases is vital to ensuring public confidence in the justice system and the rule of law. The public would lose confidence in the courts if they could not understand what decision had been reached and why it had been reached”.


The 188-page report from the noble Lord, Lord Wolfson, has already been mentioned on more than one occasion. Referring to these decisions, in paragraph 48 he said this:

“A further difficulty in this area is that many of these decisions are not reported, making accountability difficult, and often these only come to light on appeal to the Upper Tribunal”.


There, he is referring to the First-tier Tribunal. In paragraph 50 of the same report, he said

“there may well be low-quality decision making going on in the initial stages, much of which is never corrected”.

In whose interests can it be to keep these decisions out of the public domain? For those who defend the decisions, they can illustrate the point; for those who attack them, they will have much better evidence. It cannot seriously be doubted that the decisions at the moment are of particular importance. Please can the public know what is being decided and why?

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[Lord Katz (Lab)]

My Lords, I thank the noble Lords, Lord Murray of Blidworth and Lord Faulks, for their Amendments 203F and 203G, which seek to introduce mandatory publication of immigration and asylum judgments from the First-tier Tribunal and the Upper Tribunal. I agree that accountability and transparency are absolutely vital for building trust and credibility in the immigration system. However, it remains the case that the judiciary is responsible for decisions on publishing individual judgments, including judgments of the immigration and asylum chamber of the First-tier Tribunal. The Government do not consider it necessary to legislate to change the current arrangements.

Members of the public and the media can still apply to the First-tier Tribunal for a copy of the judgment in a specific case, and the request will be considered by the president of the immigration and asylum chamber of the First-tier Tribunal. On the other hand, judgments of the immigration and asylum chamber of the Upper Tribunal, which determines appeals against First-tier decisions on points of law, are already routinely published online. Appeals to the Upper Tribunal are made on points of law, meaning that these decisions are likely to be of most interest and use to practitioners of the law and to the public through the lens of media outlets. Given the status quo, we see no reason to change it, and we feel that it is not simply a matter of transparency but of independence of the judiciary—

[Lord Murray of Blidworth (Con)]

I thank the Minister for giving way. Is it the Government’s position that they would like to see the publication of these decisions, but it is a matter for judges to decide? Or is it the Government’s position that they would not like to see the publication of these decisions? If it is the former, what are the Government going to do to encourage judges to make that change, if they will not accept this amendment?

[Lord Katz (Lab)]

Members of the public or any interested parties can apply to have decisions of the First-tier Tribunal published, and it is the case that that can be decided by members of the judiciary. We see no reason—to sidestep the binary choice the noble Lord presents—to enforce that position on the judiciary.

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[Lord Katz (Lab)]

It would probably ill behove me to predicate my answer on legislation that I have yet to see. As and when we get to the passage of that legislation, we can perhaps revisit this conversation, and he might want to bring back my words to haunt me, but as it currently stands, I cannot talk about legislation that, frankly, I have not seen.

[Lord Murray of Blidworth (Con)]

I thank the Minister. I am obviously familiar with how difficult life can be at that Dispatch Box, and I have a great deal of respect for the Minister, who is of course deputising for the noble Lord, Lord Hanson. However, I am afraid his answers were not very satisfactory. In fact, if you had asked a First-tier Tribunal judge whether they would accept submissions made on the basis that “We like it how it is”, I suspect that you might get short shrift.

Therefore, although I am of course content to withdraw the amendments for now, I anticipate that we will bring them back on Report. I anticipate that this House will pass these amendments—it is obviously very interested in open justice and in the publication of judgments—so the world can see how our human rights decisions are made in immigration claims. Would the Government really try to overturn this in the House of Commons on the basis that “This is how it has been done, so we will leave it”? I find that difficult to believe. I beg leave to withdraw the amendment.

Amendment 203F withdrawn.

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In all, it gives a workable solution to a serious problem which has a wide impact on universities, communities and the taxpayer. I understand that the Government recognise this problem and hope to tackle it, but I hope this amendment will be helpful towards a solution. I beg to move.

[Lord Murray of Blidworth (Con)]

Perhaps I may add one brief point in support of my noble friend’s amendment. The statistics clearly show that the abuse of student visas by people who come here, have a period as a student or as a purported student, and then choose to try to extend their time here by claiming asylum is a significant problem. The amendment would force a genuine asylum seeker to lodge their claim once they reached the safe country of Britain, and two days is plenty of time to do that. On their arrival, they can make that claim for asylum. Having this rule in place would provide a significant deterrent for those who seek to abuse our asylum system in an attempt to extend their stay in the United Kingdom. For that reason, I certainly support this amendment.

[Lord Sandhurst (Con)]

My Lords, I shall speak broadly in favour of Amendment 203L, tabled by my noble friend Lady Lawlor. At its core, this amendment seeks to prevent the abuse of the student visa route by using it as a back door to asylum. This recognises an important principle. Those who enter the United Kingdom in one set of circumstances should not then be permitted to rewrite those circumstances once they have got here.

A student visa is granted on trust. It is granted to those who come here to study, not to those who claim asylum. When someone applies for such a visa, they do so on the clear understanding that they are entering this country for educational purposes. If, once here, they make an asylum claim that was not mentioned at the point of entry and, indeed, do so days, weeks or months later, they are by definition acting under false pretences unless there is a good reason for it—and I will come to that in a moment. The asylum system exists to protect those who are genuinely fleeing persecution, not to reward those who seek to manipulate our visa system for other ends. Where individuals apply dishonestly, where they misrepresent their reasons for coming to the United Kingdom, we cannot simply turn a blind eye and reward that deception with the right to remain.

On this side, we on the Front Bench have a qualification: we cannot be blind to the fact that circumstances in someone’s home country may change after arrival. A student in the United Kingdom on a student visa may find that, in their absence, their home country becomes unsafe for them personally to return. They may therefore become eligible for asylum during the time they are in the United Kingdom on a student visa.

The amendment as drafted prevents any asylum claim being made if someone has entered on a student visa. That is a strong prohibition. If this were clarified in some way, with a carve-out for those who can establish that the situation has genuinely changed in their home country while they are here, we would commend consideration of an amendment to address that situation. So I ask my noble friend Lady Lawlor to consider whether the amendment should be redrafted.

For their part, the Government must stop the abuse of student visas under the current system. They should equally ensure that, in the appropriate but, I hope, reasonably exceptional circumstances where there has been a genuine change, such people are protected.