Illegal Migration Bill

Lord Murray of Blidworth Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group centres around Clause 7, as we have heard, and seeks clarification on procedures which outline the provisions about removal. There are several smaller amendments by the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, on the details of removal. Probably the most important amendment is Amendment 55, in the name of the noble Baroness, which would ensure that the Government produce guidance on the criteria by which individuals will be prioritised for full removal.

In her very extensive introduction, the noble Baroness asked who P’s representative can be when going through this process. Should the representative be a lawyer, someone from an NGO or some other status of representative? If I might be allowed a short recollection, I sat in on an immigration tribunal at Hatton Cross as a member of the public. I was astonished that neither the applicant going through the immigration tribunal process, nor their representative, spoke English. That was the reality of the situation that I witnessed. I very much hope that, in the sorts of examples that we are talking about in this Bill, P will be properly informed about the processes that they are going through, that they know what their rights are and that they can make their decisions as appropriate.

Amendment 57, tabled by the noble Lord, Lord German, is about the requisition of services by private actors and companies. He explained his amendment very fully. It may be unfortunate that this overlaps a lot with group 3, as my noble friend Lord Davies has just said, but nevertheless that is where we are. My noble friend asked about representations and what consultation has been done with the trade union movement about who will be asked to play their part in working in these companies. I would be very interested to hear the Minister’s answer to my noble friend’s questions.

On the amendment in the name of my noble friend Lord Coaker and the noble Baroness, Lady Jones—I will not even attempt the rhetoric of the noble Baroness; it is just not my style—the point, nevertheless, is that the recipient needs to understand what is being said to them and the language must be appropriate. This is a common-sense amendment. It is a simple amendment. I hope that the Minister can indicate that some form of wording can be found in this Bill to ensure that P, who is the subject concerned, understands what is happening to them. We support the amendments in this group.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, Clause 7 makes provision for a removal notice to be given to a person and specifies what information this must contain. Each notice must specify that the individual is to be removed under the duty, be clear on their destination and set out a claim period in which to make a factual suspensive claim or a serious harm suspensive claim. That is, of course, suspensive of removal.

The noble Baroness, Lady Hamwee, described her Amendment 55 as a probing amendment, seeking to elicit our intentions as to the order in which individuals will be removed from the UK under the duty to remove in Clause 2. The whole purpose of the Bill is to remove persons who satisfy the conditions as soon as practicable. On the day of commencement, we will be dealing with two separate cohorts. First, there will be those who enter the UK illegally on or after the commencement date. Putting unaccompanied children to one side, as we already have debated how they will be considered, our aim will be to process new arrivals as quickly as possible as they arrive. Clearly, the speed with which individuals are removed will depend on whether they consent to a voluntary departure or, if not, whether they make a suspensive claim. Secondly, as we have discussed, the Bill will have a retrospective effect and the duty to remove will apply to those who entered illegally on or after 7 March this year. Where, in the case of this cohort, any asylum or human rights claim has not been decided by the commencement date, we will commence removal action in accordance with the duty in Clause 2, in parallel with the enforcement action that is being taken against new arrivals.

I assure the Committee that the necessary planning is under way to support the effective and efficient implementation of the Bill, which will ensure that we have an integrated and robust end-to-end process from arrival through to removal. This will cover the use of detention, case-working operation, management of appeals and the logistics associated with the returns themselves. I agree with the noble Baroness that development of robust guidance and training will be a key component across all of this. However, while work on implementation is well under way, we should not get ahead of ourselves. First, we must get the Bill on to the statute book in a form that is operable. We cannot be legislating for a scheme that is so full of holes that it is unworkable.

Amendment 55A seeks to probe how the process will operate, should an individual indicate that they do not wish to make a suspensive claim. If an individual notifies the Secretary of State that they do not intend to make a suspensive claim, the person may be removed to the country or territory which they have been given notice of. As the noble Baroness suggests, such notification may be to an immigration officer or a Home Office official. Where it is given orally, it will be duly recorded. I hope that affords an answer to her point.

Amendment 56, tabled by the noble Lord, Lord Coaker, would set out in statute two additional requirements to the notice, which must be given to the person before they may be removed—that it is provided in a language which they understand and provides information on how to access legal advice. It would be prohibitively expensive to provide translations of decision notices in all possible languages and dialects up front, and there would be a time delay in doing this on an individual basis. It is therefore more efficient to work with interpreters. It is already our current policy to ensure, when serving notices in person, that the contents are explained to the individual in a language which they understand, using interpretation services where required. We also provide information on how to access legal services where relevant.

On the question of legal advice, I reassure the Committee and the noble Lord that, in giving this notice, we will ensure that we also provide information on how to access any legal advice which individuals are entitled to and on how to make a voluntary departure. We will discuss this further in relation to the legal aid provisions, which will come before the Committee in the next few days. Therefore, it is unnecessary to put these additional requirements into the statute.

Amendment 57, in the name of the noble Lord, Lord German, deals with the legal obligations that these provisions place on transport operators. The noble Lords, Lord Davies and Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lord Balfe raised the same point. This amendment, as the noble Lord, Lord Davies, pointed out, overlaps with his own group of amendments, which we are debating in the next group. I hope that the noble Lord, Lord German, will be content if I deal with the substance of his Amendment 57 when we reach Amendment 57B.

Amendment 57A seeks to test the drafting of Clause 7(8), where it refers to a vehicle being

“specified or indicated in the direction”.

A direction “specifying” a ship, train, aircraft or vehicle may refer to a particular ship et cetera scheduled to depart at a specified date and time, whereas a direction “indicating” a ship may be a more generic item, for example, specifically or simply referring to a flight to depart that day rather than to a particular flight. Moreover, I point out that the drafting here is drawn from and reflects long-established terminology used in Schedule 2 to the Immigration Act 1971.

I will deal briefly with Clause 9. It simply makes a number of consequential amendments to existing immigration legislation to ensure that it works smoothly. There is no contradiction alongside the new provisions for removal in the Bill.

To respond to the noble Lord, Lord German, persons served with a removal notice will have eight days to submit a suspensive claim beginning from the day that they were given such a notice. We will come on to Clause 54 in due course; as I have already said, it provides for free legal advice for those issued with a removal notice. To answer the noble Lord, Lord Bach, persons subject to the duty to remove will have access to advice.

[Lord German (LD)]

I was interested in two stages. The Minister has talked about when the notice of removal is issued. Presumably there is also a statement of inadmissibility when you have arrived, because it takes some time to prepare the document or whatever the detail is for a removal certificate or notice. Is there an earlier notice? If so, is that the place where people can seek advice?

[Lord Murray of Blidworth (Con)]

I do not have the answer to that at my fingertips but, if I may, I will revert to the noble Lord with it. I suspect that the availability of legal advice will be drawn to the attention of individuals at the earliest possible time, but I will check that point and come back to the noble Lord.

In conclusion, the noble Lord, Lord Coaker, made some valid points on which I will further reflect. I hope I have at least gone some way to respond to the probing amendment of the noble Baroness, Lady Hamwee. On that basis, I ask whether she is content to withdraw her Amendment 55.

[Baroness Hamwee (LD)]

My Lords, it is Committee stage and, as the whole Committee knows, that is what I will do.

On this amendment, the Minister said, possibly twice, that things will be done “as soon as practicable”, but we know that not very much is practicable. It sounds like a parallel, idealised—well, it is not ideal to me but it may be in the Government’s mind—universe where all is possible. On the previous group, my noble friend referred to being somewhere within the wizardry of Oz. I do not know who is which character, and perhaps it would be inappropriate to speculate. However, the point about uncertainty in the minds of the individuals concerned is serious, which is why I made it earlier.

I do not think the Minister answered my question on Amendment 55A about whether notification can be given by a representative of the individual and whether that has to be a legal representative or could be a support worker from an organisation in the sector. Is he able to respond to that now?

[Lord German (LD)]

I also asked a question to which the Minister did not reply, about a person escaping from South Sudan via Kenya. Kenya would be treated as an unsafe country because it is in Schedule 1. Could the Minister respond to that when he has a moment?

[Lord Murray of Blidworth (Con)]

I apologise for not answering the noble Baroness’s question. Yes, is the answer; representatives could be provided in that way.

To reply to the hypothetical situation that the noble Lord referred to about someone from South Sudan travelling via Kenya, it would depend on the facts of the specific case and whether the conditions were met. It is perhaps not directly relevant to the debate we are having on this amendment, but I am happy to consider that hypothetical in more detail and write to the noble Lord.

[Baroness Hamwee (LD)]

To be absolutely clear, is the Minister saying that notification can be given via any representative and that they do not have to be qualified in a particular way?

[Lord Murray of Blidworth (Con)]

That is certainly my understanding. If the situation is any different, I will let the noble Baroness know.

[Baroness Hamwee (LD)]

I think that is quite important, as it matters how these things work in practice. Having said that, and as I indicated, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Coaker (Lab)]

My Lords, I start by thanking my noble friend Lord Davies for Amendments 57B and 58A, which I think are very worthy and have signed. They encapsulate the points that I and many noble Lords have made throughout the passage of the Bill so far, and no doubt will in the future, that it is not only issues of principle that concern many of us with respect to this but that many of the provisions are simply unworkable and raise serious questions.

If noble Lords have not done so already, it is worth taking up the point of the noble Lord, Lord Balfe, and reading Clause 7(12)(a) and (b), which is at the heart of this group of amendments. As the noble Lord, Lord Balfe, pointed out, the captain of a ship or aircraft, the manager of a train or the driver of a vehicle must conform to the directions of an immigration officer to detain an individual and stop them escaping. That is not only if it is reasonable to do so or if it is something you could understand them doing; they must do it—they have no choice. I do not know about some of the lorry drivers the Minister knows, but good luck with that. The serious point was made that the language barrier will be enormous, or at least significant, in many of those instances.

I have some specific questions, and they repeat and reinforce some of the points that have been made. Can the Minister explain how the captain of a ship, a lorry driver or a train manager—that is who we are talking about here—will detain these people? If the immigration officer requires them to detain someone, how are they meant to do that? As my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, ably put it, given that they are not warranted officers and do not have the powers of police officers or other individuals, what force can they use? “Excuse me, please do not get out of my lorry. I have been required by the immigration officers to stop you”—I am not sure that that would work, but let us say it does. But if it does not, and the person tries to get out, what can they do to stop them? I hope the Minister can explain that. The problem is that if they do not stop them, they can be prosecuted. One of the noble Lords who contributed said that it is not that they might be prosecuted but that they will be prosecuted if they do not conform. What happens if they try but the person escapes? Who decides whether they have tried enough—that they have gone to a sufficient extent to prevent the person leaving? Knowing the practicalities of this would be useful.

Clause 7 says “vehicle”, which means a lorry, but does it also mean a car or a campervan? If you are a driver of a car and somebody is in the back, do you have to stop them getting out on the direction of an immigration officer? Is it the same rules for children as for adults? The Minister will say I am nitpicking, but we are in Committee and that is the whole point of Committee. Whether for a lorry driver, train manager or car driver, we need to know whether the Government assume that you can do the same with children and what force is applicable with respect to children vis-à-vis an adult. There are, as I say, a significant number of questions.

The last point I want to make, which was raised by my noble friend Lord Davies, is about the detention period for which someone can force a person to stay in their train, on their aircraft or in their car. What is the reasonable length of time? How does it work? I think the Bill may say a few hours but what happens when that expires? The Secretary of State is then required to say that it can be extended. How does that work? How is the driver informed about that? On the practicalities, the noble Lord, Lord Balfe, made a really interesting point, which again sounds like nitpicking. If you are a train driver or a lorry driver, and you arrive somewhere and are required to stay there for 12 hours or 24 hours, what rights do you have? Are you required to stay there, or can you pass it on to somebody else to take over from you and carry on with that period of detention?

My noble friend Lord Davies and the unions, and others who have supported them, have raised a series of important questions about why the detail is so important and why many of us have questions about not only the principles of the Bill but some of the proposals in it and the workability of them.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 7 includes requirements for various persons, such as owners and agents of a ship, aircraft, train or vehicle, the captain of a ship or aircraft, the train manager or the driver of a vehicle, to comply with directions for an individual’s removal from the UK. The noble Lord, Lord Davies of Brixton, has explained in his Amendments 57B, 58A and 71B that he seeks to probe the legal obligations these provisions place on transport operators.

If I may, I will address the point from the noble Lord, Lord Coaker, about whether this relates to private vehicles. The answer is that it is related to scheduled or chartered services, not individual cars or campervans.

I would like to make it absolutely clear that the Government are not making transport workers or operators undertake immigration functions. Clearly, I am in agreement with much of what we have heard during the debate on this group. That is not something we would want to do. Nor are the provisions in Clause 7 about commandeering vessels or vehicles, as was suggested in the debate on the last group; we can and do make arrangements for removal by scheduled services or chartered services. Nor are these new requirements; they reflect provisions that are already in place in Schedule 2 to the Immigration Act 1971 for arranging the removal of persons not subject to the new duty in the Bill but otherwise liable to removal from the UK.

Having placed a person on board a ship, aircraft, train or vehicle for their removal from the UK, it is only reasonable that the Secretary of State or an immigration officer may require the relevant captain, manager or driver to prevent the person disembarking while that vehicle, ship, aircraft or train is still in the UK, and effectively keep that person in their custody until they have reached the destination. Clause 9(2), which is the subject of Amendment 58A, then applies the relevant existing criminal offences in Section 27 of the Immigration Act 1971—which already apply to carriers who fail to act under instructions to remove a person under that Act—to instructions to remove a person under the powers set out in this Bill.

--- Later in debate ---

[Lord German (LD)]

We are discussing the issues raised in the previous group and I accept that the Minister wants to talk about them now. I also accept that there are provisions in existing law. Perhaps the Minister can tell us why, therefore, the Government need to put these provisions into the Bill if there is already legislation that stands by that. The difference that I can perceive is the requisitioning of services, particularly transport services. That may be slightly different from what we had before. If the Minister cannot say exactly why these provisions are needed, because they are already in existing powers, there is no point putting them into the Bill.

[Lord Murray of Blidworth (Con)]

The powers in Schedule 2 to the Immigration Act will continue to apply to those being removed who are not subject to the new duty in the Bill but are otherwise liable to removal from the UK. The powers in the Bill will relate to those who fall within the cohort in Clause 2. They provide clarity and certainty by being present in the Bill in this context. It is also clearly right that the 1971 Act powers need to be applied to the Bill, so that is the purpose for their inclusion. I hope that answers the noble Lord’s question.

[Baroness Chakrabarti (Lab)]

I hope I conceded earlier that we know that there have been directions issued to captains and others since the 1971 Act; that is not in contention. My concern, given the greater controversy of a forced duty to remove people who have not even had a refugee claim considered, and given the larger numbers that the Government clearly anticipate in relation to this policy, is about some of the detail. The Minister said that we need greater clarity, but that greater clarity will bring greater concern. I personally do not remember all this deeming of legal custody and the criminalisation of transport workers, certainly not in the original 1971 Act. Maybe more of that has happened over the years.

I ask the Minister to go back to the issues of policy and principle, and not just to rely on the precedent of the creep of legislation forcing these duties on transport workers. Whether that creep has happened or not—I can see that it has—some of us are really concerned about where it has gone. He said that this has passed without comment or controversy but that is not the case, is it? Every so often, somebody dies while being removed because of the coercion and force that is necessarily involved. If the people using that force are not prison guards, soldiers or police officers, but just common or garden transport workers, there is a real concern and controversy. I would be very grateful if the Minister would address that as a matter of principle.

[Lord Murray of Blidworth (Con)]

I am afraid I do not agree with the noble Baroness that there is a substantive difference in the fact that the people being removed under the Bill have had their asylum claims rendered inadmissible, because under the present law categories of people have inadmissible asylum claims and they too are subject to removal. They have been subject to the powers in the pre-existing legislation, so I am afraid I do not accept the premise of her intervention.

I should add that we regularly read of instances where there is disorder on an aircraft or instances where a pilot is obliged to land somewhere; then the doors are opened and the police remove a person from the aircraft. That detention can be as simple as keeping the doors closed until the agents of the law arrive to remove the necessary people, and similarly on trains with electric doors. The effecting of the detention is not going to be overly burdensome on the operators as a result of these provisions.