Illegal Migration Bill

Lord Murray of Blidworth Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because it is unnecessary, as the Bill does not require any act or omission that conflicts with the obligations of the United Kingdom under the European Convention of Human Rights or other listed international instruments, and it would undermine the UK’s dualist legal system.

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

My Lords, in moving Motion A, I will, with the leave of the House, also speak to Motions D, S, T, U and V.

The Lords amendments do significant damage to the scheme provided for in the Bill. The Bill will only prevent and deter illegal migration if persons who meet the conditions in Clause 2 are swiftly returned to their home country or removed to a safe third country. For that to happen, we must end the cycle of late, repeated and spurious legal challenges. The Lords amendments will perpetuate that cycle.

Motion A relates to Lords Amendment 1, which would replace Clause 1 with a new clause that sets out that nothing in the Act shall

“require any act or omission that conflicts with the obligations of the United Kingdom under”

the five international agreements specified in the amendment.

As I have set out throughout the passage of the Bill, the Government take their international obligations, including under the ECHR, very seriously, and there is nothing in the Bill that requires any act or omission that conflicts with the UK’s international obligations. The only way to break the business model of the criminal gangs and to deter illegal migrants is if it is abundantly clear that the only outcome of illegal entry is not a new life in the UK. Therefore, it is essential that we take bold steps. Although some of the provisions in the Bill are novel, the Government are satisfied that the Bill can be implemented in line with convention rights.

As my noble friend Lord Wolfson set out on Report, Lords Amendment 1 is also objectionable from a constitutional perspective. In the United Kingdom, we follow a dualist approach, whereby international law is integrated into domestic law solely through parliamentary legislation. The Government are often criticised for rushing legislation and not allowing adequate scrutiny. Here, the tables are turned. Amendment 1 has profound and wide-ranging implications. It should not be shoehorned into this Bill without proper consideration of its consequences and an opportunity for Parliament properly to scrutinise the significance of such a step. If a future Government want to incorporate into domestic law the refugee convention or the UN Convention on the Rights of the Child, it is open for them to do so, but that would be a significant legislative undertaking and a profound change to our domestic legal landscape. Amendment 1 is not the way to do it.

I turn to Motion S and Amendments 74B and 74C from the noble and learned Lord, Lord Etherton, which relate to the meaning of serious and irreversible harm. Serious harm suspensive claims recognise that there may be a clear reason as to why a person cannot be removed to a particular third country specified in the removal notice, while any human rights claim in respect of a removal—or related judicial review, if that took place following removal—is resolved. These claims must be based on the fact that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed for such a temporary period. This test reflects the approach and terms on which the European Court of Human Rights may decide to indicate interim measures under Rule 39 of their rules of court. It is fitting that we use it here in an analogous situation.

We also continue to believe that it is helpful to decision- makers and the courts to set out in the Bill specific examples of harm that do not, or are unlikely to, constitute serious and irreversible harm. This will ensure a consistent approach in the determination of claims by the Home Office and appeals by the Upper Tribunal. That said, we have reflected on the debates on these clauses in this House and revisited the recommendations from the Constitution Committee. I am grateful to the noble and learned Lord, Lord Etherton, for his time in discussing his concerns. As a result, we have brought forward an amendment in lieu which limits the power by regulations to amend the meaning of serious and irreversible harm, such that the power cannot be used to remove the existing examples of harm that constitute serious and irreversible harm.

I reiterate two points made by my noble friend Lord Stewart on Report. First, Clause 38 makes it clear that persecution and onward refoulement are examples of harm which constitute serious and irreversible harm for the purposes of a suspensive claim. Secondly, if the open expression of a person’s sexual orientation would prevent them living in a specified third country for the relevant period without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim, in line with the principles set out by the Supreme Court in the case of HJ (Iran). With these assurances and the amendment in lieu, I hope that I have been able to address the concerns of the noble and learned Lord, Lord Etherton, and he would feel able to support Motion S.

In relation to Motions T and U, we remain firmly of the view that it is right to place limitations on judicial review challenges to removal. We are not preventing such challenges but saying that they should not suspend removal. The Bill includes bespoke provisions for removal condition suspensive claims and serious harm suspensive claims, which themselves afford appropriate opportunities for a person to challenge their removal before it takes place. Given these remedies, it is entirely appropriate that other legal challenges should be non-suspensive.

Finally, in relation to Motion V, I again reassure the noble and learned Lord, Lord Hope, that the Bill, in enabling a court to overturn an age assessment decision on the basis that it is wrong in law, already covers challenges based on Wednesbury unreasonableness. It therefore follows that Lords Amendment 95 is not needed.

The House of Commons has disagreed with Lords Amendments 1, 73, 90, 93 and 95 by strong majorities in each case. It has proposed Amendment 74A in lieu of Lords Amendments 73 and 74, which addresses one of the key concerns of the noble and learned Lord, Lord Etherton. I therefore invite the House to agree the government Motions in this group. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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[Lord Coaker (Lab)]

My Lords, I support my noble friend Lady Chakrabarti’s Motion A1 and the various provisions that follow from it. Without getting into the legal arguments that have just been articulated by the noble and learned Lords, Lord Hope and Lord Etherton, I support the fact that the key words are the first few words, in particular to try to deal with the criticism that was made of the previous amendment.

The only point I would add is that it is important for us to have something like this in the Bill given the criticism, concern and questions that have been raised about the Bill by many well-respected international organisations, bodies and individuals. We all expect something to be done about the challenge that we face, but we want it done in a way which enhances our international reputation and conforms to the various international treaties and our responsibilities. That is why Motion A1 is particularly important and should be supported.

[Lord Murray of Blidworth (Con)]

My Lords, I thank the House for the dispatch this group has been dealt with and for the contributions from across the Chamber. It will come as no surprise to the noble Baroness, Lady Chakrabarti, that I disagree with her interpretation and agree with that of my noble friend Lord Wolfson. Frankly, if one looks at Amendment 1B, one can see that “regard” must be read alongside “intended to comply”, so this revised amendment is equally problematic. The point my noble friend Lord Wolfson made is entirely right: it amounts to an acceptance that the earlier version of the amendment would also have been a very significant constitutional innovation, predicated on the back of an amendment to the Bill and a massive change to our constitutional framework. I am afraid that I therefore disagree with the noble Baroness and the noble and learned Lord, Lord Hope, on Amendment 1B.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 2, 12, 20 and 22 and do agree with the Commons in their Amendments 22A to 22Q in lieu.

22A: Clause 2, page 3, line 26, leave out “7 March 2023” and insert “the day on which this Act is passed”

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22Q: Clause 66, page 65, line 41, at end insert—
“(za) section (Amendment of date in section 2(3) etc) (amendment of date in section 2(3) etc);”

[Lord Murray of Blidworth (Con)]

My Lords, with the leave of the House, I will speak also to Motions F and G.

Motion B deals with the retrospective application of the duty to make arrangements for removal. We have reflected on the arguments put forward on this issue by the noble Lord, Lord Carlile, on Report. We have brought forward Amendments 22A and 22Q in lieu. Noble Lords will recall that the Lords amendments sought to move the operative date of the Clause 2 duty from 7 March this year to the date of that clause’s commencement. We believe that such a change carries a significant risk of there being a surge in channel crossings—a fire sale, if you will—as we approach the commencement date. To guard against this, the amendments in lieu instead provide for the duty to remove to apply to a person who enters the United Kingdom unlawfully from the date of this Bill’s Royal Assent.

We will keep this under review ahead of the Bill’s implementation, as we have included a reserve power to change the new operative date by regulations. This could, for example, enable us to focus the initial implementation of the Bill on those who arrived here illegally via small boats rather than by other means. I should stress that the 7 March date will continue to apply for the purpose of the power conferred on the Secretary of State to provide accommodation for unaccompanied children and for the purpose of the ban on re-entry, settlement and citizenship. I trust that this compromise approach will meet with the approval of the noble Lord, Lord Carlile.

Motion F relates to Lords Amendment 9, moved on Report by the noble Lord, Lord German. This relates to the issue of the inadmissibility of asylum and human rights claims within the UK system. It remains the Government’s contention that declaring such claims to be admissible is a core part of the scheme provided for in the Bill. The Court of Appeal unanimously confirmed that removing asylum seekers to a safe country for their asylum claims to be processed is entirely consistent with the refugee convention, including Article 31—a point that I mentioned a moment ago. This amendment would simply encourage people to game the system, drawing things out in an attempt to reach a six-month cut-off date. This amendment was rejected by the Commons by a strong majority of 76. Given that, I hope that the noble Lord, Lord German, will be content to agree to Motion F.

Finally, Motion G relates to Lords Amendment 23, put forward by the noble and learned Lord, Lord Etherton. The United Kingdom is a stout defender of LGBT communities across the globe. Our commitment to this cause remains unwavering. So, although I understand and sympathise with the noble and learned Lord’s desire to protect LGBT people who would face persecution were they to be sent to one of the countries listed in the amendment, I remain strongly of the view that the amendment is unnecessary as the Bill already delivers the protections that he seeks.

We are committed to the principle of non-refoulement, as a Jamaican national who makes a protection claim will not be returned to Jamaica. Were they to be fearful of being at real risk of suffering serious and irreversible harm, and were they to be removed to a specified third country, they would be able to make a serious harm suspensive claim. As I have previously indicated, in considering such a claim, the principles enunciated by the Supreme Court in the case of HJ (Iran) would be applied such that if the open expression of a person’s sexual orientation would prevent them from living in the specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim.

I hope the noble and learned Lord has been able to reflect on my assurances and on the outcome of the vote yesterday in the other place, and that he now feels able to support Motion G. I beg to move.

Motion B1 (as an amendment to Motion B)

[Lord Carlile of Berriew]

Moved by

At end insert “, and do propose Amendment 22R as an amendment to Amendment 22B—

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Motion C

[Lord Murray of Blidworth]

Moved by

That this House do not insist on its Amendments 6, 51, 52, 53, 54, 55, 58, 59, 60, 61, 62, 63, 64 and 65, to which the Commons have disagreed for their Reason 65A.

65A: Because it is necessary on grounds of public order to disapply protections for potential victims of modern slavery temporarily in response to the current scale of illegal migration.

[Lord Murray of Blidworth (Con)]

My Lords, I will speak also to Motions H, P and Q. It remains the Government’s view that there are clear opportunities to misuse our modern slavery protections. The amendments agreed by your Lordships’ House on Report would severely undermine and in some cases prevent the Government from being able to prevent potential misuse and effectively tackle the crisis of illegal entry.

As I have repeatedly made clear, the scheme provided for in the Bill will succeed in preventing and deterring illegal migration into the UK only if we can swiftly remove illegal entrants either to their home country or to a safe third country. Having to wait more than 500 days for a conclusive grounds decision is not swift by any stretch of the imagination.

While it remains the case that the Government cannot support any of the amendments to which these Motions relate, I recognise the concerns raised by my noble friend Lord Randall and others about the impact of the Bill on those who are exploited in the United Kingdom. It is worth reminding this House that these provisions will not affect potential victims of modern slavery referred into the national referral mechanism who are British nationals and nor will they impact unaccompanied children under the age of 18 or those who lawfully entered the UK and subsequently overstayed. Additionally, changes to the Bill agreed in the other place mean that the retrospective application of the duty to remove will be applicable only from Royal Assent, removing a significant cohort from the reach of these time-limited provisions.

Furthermore, this change reduces the likelihood of individuals in this cohort being exploited in the UK, given that they are more likely to be in detention rather than out in the community. None the less, the Government recognise the importance of enabling potential victims of modern slavery to co-operate with law enforcement to ensure successful prosecutions.

We are committed to stamping out human trafficking and to bringing criminal gangs to justice, including those who commit offences in the United Kingdom. That is why, alongside our pre-existing exception, which allows victims to remain in the United Kingdom to co-operate with an investigation where necessary, we will provide in statutory guidance that an individual who has arrived in the UK illegally and has a positive reasonable grounds decision based on an incident that has taken place in the United Kingdom will be afforded 30 days from this positive decision to confirm that they will co-operate with an investigation in relation to their exploitation. They will not be removed within this period, which affords them protection equivalent with those set out in ECAT. Should they continue to co-operate with such an investigation, they will continue to be entitled to the support and protections of the NRM. Given this, I do not see the need for my noble friend’s Amendment 56, or for the amendment of the noble Lord, Lord Carlile, Amendment 57.

I hope I have been able to reassure my noble friend Lord Randall and other noble Lords as to how these provisions will apply and operate. We expect that relatively few of those subject to the duty in Clause 2 will be potential victims of modern slavery whose exploitation took place in the UK, and for those potential victims, our statutory guidance will make it clear that they can continue to access support where they are co-operating with an investigation.

On this basis, and in view of the votes in the other place to disagree with Amendments 6 and 56, I invite the House to agree the government Motions. I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

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[Lord Coaker (Lab)]

My Lords, I thank my noble friend Lord Hunt for moving his amendments in a concise and informed way and for putting before the House the importance of the Modern Slavery Act and defending its principles.

I draw attention to Motion P1, moved by the noble Lord, Lord Randall, which is particularly important as it seeks to protect victims of modern slavery exploited in the UK. Although the Minister pointed to the protection the Government may give to British citizens, some of the exploited people the noble Lord, Lord Randall, referred to would not be British citizens and would therefore be out of scope.

It is worth spending a minute considering that we as a Parliament are here tonight reflecting on what was one of the finest achievements of the last Conservative Government and one of the proudest achievements of a former Conservative Prime Minister. I stand here as a proud Labour politician saying that. It was one of the reasons why our country was regarded as a world leader by countries across the world, and it was brought about by the actions of a Conservative Government.

When you read the speeches of not only a former leader, Iain Duncan Smith MP, but a former Prime Minister, it is no wonder that the latter is incredulous that her own party and Government would seek, as she says, to undermine completely an Act of which everyone was proud, including most Conservatives. I find it astonishing that the Government Front Benches of this House and the other place should simply sweep her views aside, almost as though they are the rantings of a failed person who is no longer relevant. She deserves greater respect than that, and to be recognised for what she achieved. I think I am right in saying that it was the first such legislation in the world. It was blown away not by a vindictive Labour Government but by her own Conservative Government, who have somehow just brushed it aside.

The noble Lord, Lord Randall, does us a huge service in bringing forward an amendment that I hope has the support of many of your Lordships, from all sides, and which tries to protect something of that achievement, that triumph, of a previous Conservative Government. In doing that, he gives us the opportunity to mark with great respect that achievement and work of a previous Conservative Government and Prime Minister.

I hope that the noble Lord will test the opinion of the House and that noble Lords will see fit to support the amendment in very large numbers, so that when it goes back to the other place they will think again about what they have done.

[Lord Murray of Blidworth (Con)]

My Lords, I thank the House for the dispatch with which the speeches on this group have been dealt with. To respond to the noble Lord, Lord Hunt of Kings Heath, on just one point, clearly, we do not agree and I am afraid that I cannot accept his amendment. On the statistic that he cited, I simply say that that statistic demonstrates the problem we face when we seek to remove people. Such statistics relate to people who were in detention and it was those in detention who, at a massively increased rate, sought to claim to be victims of modern slavery in order, I suggest to Members of this House, to defer their removal.

For that reason, I must stress to the House that the proposed amendment would blow a hole in this scheme, and I am afraid we cannot accept my noble friend Lord Randall’s amendment, as supported by the noble Baroness, Lady Hamwee. There are too many opportunities to misuse the provisions in the Modern Slavery Act, with allegations of modern slavery being made by those entering the country illegally. I entirely take on board what the noble Lord, Lord Coaker, has said about the triumph of the Modern Slavery Act, and I remind the House that it remains in force in relation to victims of modern slavery who are within Britain and are British citizens. These provisions are protected in Clause 21 by a sunset provision. These are emergency measures to deal with an emergency, and for those reasons I cannot accept the amendments.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is tempting to respond in detail to the Minister, but obviously I will not do it. What is so striking is how little confidence he has in the department he and his Ministers run to administer a system they have legislated for. It is deeply disappointing, but I beg leave to withdraw Motion C1.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A.

7A: Because, as the Bill provides for two classes of suspensive claims, with a right of appeal to the Upper Tribunal, it is appropriate that any application for judicial review does not suspend removal.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion D. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 8, to which the Commons have disagreed for their Reason 8A.

8A: Because unaccompanied children will be removed only in the limited circumstances set out in clause 3(3) or once they turn 18 and will be able to challenge their removal by making a serious harm suspensive claim.

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[Lord Dubs (Lab)]

My Lords, this amendment to the Motion is about the rights of children, giving them their entitlement to claim asylum, which would be declared inadmissible under the provisions of the Bill. We have talked about children a great deal; indeed, concerns about children run right through many of the debates we have had and many of the other amendments. My point is that any child who arrives in this country, even if not by legally approved means, should still not lose their right to claim asylum. If, for example, a child in Calais with family in this country, not finding any legal method, gets here and uses, unfortunately, these nasty people traffickers, all I would say is that surely we should not deny that child the right to come to this country and claim asylum here; or, having got to this country, to claim asylum here. It is a very simple proposition.

As I understand it, in most instances they will not be removed from this country until they are 18, but at that point they will be removed. This seems to me a very harsh provision, penalising some of the most vulnerable asylum seekers that there can be: children.

There are two other amendments to Motions to do with children, Motion J1 in the name of the noble Baroness, Lady Mobarik, and Motion K1 in the name of the right reverend Prelate the Bishop of Manchester. Both are good and both are concerned with the length of time that a child might have to stay in detention. They seek to limit that to fewer days and I shall want to support them both. They do not go as far as my Motion E1, which is much more comprehensive and a much better way of protecting the rights of children. However, we have to be realistic and I shall certainly give my full support to Motions J1 and K1.

I have thought about this at length and had quite detailed discussions with my colleagues. The point is that we, of course, want to support Motions that have the best chance of making the Commons think again. I was persuaded that the Motions in the name of the noble Baroness, Lady Mobarik, and the right reverend Prelate the Bishop of Manchester probably have a better chance of making the Commons think again than something coming from me, even if my Motion is, with all due respect, better. I therefore feel that the right thing to do is to support a Motion tabled by a Conservative and a Member from the Bishops’ Bench, because they are more likely to persuade the Government. They do not have to persuade the Minister but they are more likely to persuade Members of the Commons. It is in that spirit that I have spoken to Motion E1, but I shall in due course be very keen to support the Motions I have referred to. I will not therefore press Motion E1 to a vote, but I shall certainly vote for the other Motions.

[Lord Murray of Blidworth (Con)]

My Lords, as ever, the noble Lord, Lord Dubs, was ahead of me, and clearly I should address the amendments in this group. I have already moved Motion E, which is:

“That this House do not insist on its Amendment 8.”


With the leave of the House, I shall speak also to Motions J, K, L, M and N.

The Government have considered carefully the concerns raised in your Lordships’ House about the detention of unaccompanied children and pregnant women. We recognise the sensitivities around the detention of these cohorts and, accordingly, the Government have brought forward amendments in lieu, to which the Commons has agreed.

Regarding the detention of pregnant women, Amendments 38A to 38E are wholly in line with those tabled on Report by the noble Baroness, Lady Lister, and my noble friend Lady Sugg. These amendments preserve the existing 72-hour time limit on the detention of pregnant women. As now, this 72-hour time limit would be extendable to an absolute maximum of one week, provided there is ministerial authorisation in place for the extension. It is important to note that, as per the existing Section 60 provision, this time limit will apply only where an immigration officer or the Secretary of State, as the case may be, is satisfied that the woman is pregnant. I trust that these amendments will be welcomed on all sides of the House.

On the detention of unaccompanied children, the challenge we received in the House of Commons was that in enabling a person to apply for First-tier Tribunal immigration bail after 28 days of detention, the Bill did not differentiate between adults and unaccompanied children, and there needed to be judicial oversight of the detention of unaccompanied children much earlier in the process. Amendments 36A and 36B, agreed by the Commons, do just that. They enable the First-tier Tribunal to review the detention of an unaccompanied child after eight days, where the detention is for the purposes of removal. The eight-day period aligns with the existing framework governing immigration bail for those detained at ports and the eight-day period for making a suspensive claim under the Bill.

I again assure my noble friend Lady Mobarik and other noble Lords that any period of detention for unaccompanied children will be the shortest possible. Where there is doubt that a person is indeed aged under 18, as they claim to be, they will be treated as a child while an age assessment is undertaken. Such a person will be detained in age-appropriate accommodation, as the law already provides. This is provided for by the Detention Centre Rules 2001, made under Section 153 of the Immigration and Asylum Act 1999. Rule 11 provides:

“Detained persons aged under 18 and families will be provided with accommodation suitable to their needs”.


If no such accommodation is available, an unaccompanied child will not be detained and will be transferred to a local authority instead as soon as possible. I hope this provides the assurances that my noble friend has been seeking.

The Commons has proposed no change to the Bill in response to my noble friend’s Amendment 33, which relates to the detention of families. We believe this amendment would put children at risk, as well as significantly weakening our ability to remove people from the UK, in accordance with the duty provided for in Clause 2. Such a change would incentivise unscrupulous individuals to co-opt unaccompanied children into a bogus family unit to escape detention. This presents very real safeguarding risks for those children. I hope my noble friend, having secured an important change to the Bill in respect of the detention of unaccompanied children, will be content not to pursue her Amendment 33 any further.

I turn to Motion M and the amendments originally tabled by the noble Lord, Lord Carlile, which sought to reinstate the existing Hardial Singh principles. Here again the Commons has agreed with the Government that the changes should be made to the existing legislation and that Clause 11 should stand. The Hardial Singh principles provide, among other things, that a person may be detained only for a period that is reasonable in all the circumstances and that if, before the expiry of the reasonable period, it becomes apparent that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, that person’s detention should not continue. The Government continue to take the view that it is for the Home Secretary, not the courts, to decide such matters as she will be in full possession of the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances. As I say, the Commons has endorsed this approach, and I hope that the noble Lord, having achieved some significant changes to other aspects of the Bill, will be content to agree Motion M.

Motion N relates to the right reverend Prelate the Bishop of Durham’s Amendment 50 to Clause 16. This relates to the Secretary of State’s power to direct a local authority in England to cease accommodating an unaccompanied child and to transfer the child into Home Office-provided accommodation. The amendment would limit the power such that it can be exercised only where the transfer would be in the best interests of the child.

We all accept that the best interests of the child is a very important consideration. That is why the Secretary of State is already required, under Section 55 of the Borders, Citizenship and Immigration Act 2009, to have regard to the need to safeguard and promote the welfare of children when exercising her immigration functions. In exercising the power in Clause 16, the Home Office will continue to comply with the Section 55 duty. I should also emphasise again that we expect to exercise the power in Clause 16 in only limited circumstances —for example, in advance of returning an unaccompanied child to a parent in their home country.

Finally, I can deal briefly with Motion E, given that this covers similar ground to Motion F, which we have already debated. As I said, it remains the Government’s contention that declaring such claims to be inadmissible is a core part of the scheme provided for in the Bill. The Motion from the noble Lord, Lord Dubs, would incentivise the people smugglers to prioritise young people, putting more lives at risk and splitting families. I am sure that the noble Lord would not wish to see this.

The Government have listened to the concerns raised by noble Lords about the Bill’s provisions relating to detention and the Commons has agreed significant changes. I hope, on this basis, that the noble Baroness, Lady Lister, my noble friend Lady Mobarik and the right reverend Prelate the Bishop of Manchester would be content to agree Motions J, K and L. Where the Commons has disagreed with your Lordships’ amendments to Clauses 4, 11 and 16, I hope that the noble Lords, Lord Dubs and Lord Carlile, and the right reverend Prelate the Bishop of Manchester will be minded to accept that verdict and agree Motions E, M and N.

[The Lord Bishop of Manchester]

My Lords, I am very grateful to the noble Lord, Lord Dubs, for his support for my Motion K1, even though I suspect we would both prefer his stronger Motion. I also welcome the government amendments that would allow an unaccompanied child to seek bail after eight days if they have been detained for removal.

I struggle to see why similar rules should not apply to all children. Hence, Motion K1 seeks to rectify the unreasoned omission of children who are with their families. It proposes a 24-hour extension to the current statutory 72-hour time limit for detention of children with families. Hence, the detention of these children would not be indefinite but be for no more than 96 hours or, if a Minister personally approved it, for no more than seven days. This seems a fair and reasonable change and I urge the Government to seriously reflect on it. I really cannot see that it is morally justified not to have equal provisions for children with families and those who are alone; one child is not different from another.

It remains the fact that the institutional nature of detention affects both the physical and mental development of the child and leads to their significant emotional and psychological regression. These impacts, which were witnessed often in children prior to 2010, were not limited to unaccompanied children. All children suffered under a regime which this Government are now proposing to reintroduce without limit for unaccompanied children. I cannot accept that it is right to be prepared to lock up these children for an indefinite period, simply because they happen to arrive with families, when we know the grave consequences. The evidence has not changed. How can it now suddenly be tolerable?

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been an interesting debate and I thank my noble friend Lord Dubs for the way that he introduced his amendment to Motion E. He has been extremely practical and political, if I may use that word, in the way that he proposes to deal with the suite of amendments in this group. I agree with him that the two Motions in the names of the noble Baroness, Lady Mobarik, and the right reverend Prelate the Bishop of Manchester, Motions J1 and K1, stand the best chance of making the House of Commons think again. On that basis, from these Benches we will be supporting the noble Baroness and the right reverend Prelate if they choose to put their Motions to a vote.

I want to comment briefly on the contributions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Berridge, and on the point made by the noble Lord, Lord Scriven. In a sense, they are talking from a local authority point of view. I too got the email from the Children’s Commissioner today; she is absolutely right to point to the jigsaw of child protection, which is very much overseen by local authorities. As she rightly pointed out, retrospectivity will apply to those children because that is the point which the Government did not concede on.

Responsibility is key to trying to resolve this as clearly as possible. We hope that the Minister will be able to say something clearer, but the real point is that if it is not, it will be resolved in the courts. The noble Lord, Lord Scriven, made that point and it is a very fair one. I understand that the noble and learned Baroness will not be pressing her amendment to a vote. Nevertheless, the Minister should give as clear an explanation as possible of how this matter will be looked at. For the purposes of this group, we will support Motions J1 and K1.

[Lord Murray of Blidworth (Con)]

My Lords, I thank the House for the contributions to this debate. I will focus, if I may, on three points and address first the point raised by the noble Baroness, Lady Lister, on aggregating detention periods. Noble Lords will recall that a question was asked whether the 72-hour limit for pregnant women could be evaded by detaining a pregnant woman first under the powers in the Bill, and then under the powers in the Immigration Act, or vice versa. From a practical point of view, any pregnant women subject to the Clause 2 duty would be detained under the new detention powers provided for in Clause 10. I assure the noble Baroness that we would not detain pregnant women under existing powers then switch to new detention powers, or vice versa, in order to double the detention period.

I thank my noble friend Lady Sugg for her kind remarks. I am gratified for the receipt from Members of the House for the position which we have arrived at in relation to pregnant women.

I turn to the issues raised by the noble and learned Baroness, Lady Butler-Sloss, for whom I have very great admiration. They were raised also by the noble Lords, Lord Scriven and Lord Ponsonby, and my noble friend Lady Berridge in relation to Motion N1.

Amendment 50B would afford local authorities influence over whether the Home Secretary can utilise her powers. I am afraid we do not agree that her powers should be fettered in this way if a local authority simply does not consent. It would also create additional decision-making burdens for local authorities and could have unintended consequences—for example, if local authorities faced legal challenges in respect of their decisions. The Home Office, of course, already works closely with local authorities on matters concerning unaccompanied children and will continue to do so.

I turn to the question raised by the right reverend Prelate the Bishop of Manchester and Motion N2. The Home Office considers that Amendment 50C, tabled by the right reverend Prelate, is unnecessary. That is so because of Section 55 of the 2009 Act, which already requires the Secretary of State to have regard to the interests of children as a primary factor in immigration decisions affecting them. I assure the House that, in making decisions and in devising policy guidance under the Bill, the Home Office will continue to comply with the Section 55 duty.

In answer to the noble Lord, Lord German, and my noble friend Lady Berridge, the Home Office does not have, and therefore, for clarity, cannot discharge, duties under Part III of the Children Act 1989. It is for the local authority where an unaccompanied child is located to consider its duties under the Children Act 1989. There is nothing in the Bill which changes this position and local authorities will be expected to meet their statutory obligations to unaccompanied children from the date of arrival. The relevant duties under the Children Act 1989 sit with the local authority in which the young person is physically present. Accommodation of unaccompanied children by the Home Office does not change the obligations of any local authority in respect of assessment and the provision of services and support, including, where appropriate, suitable accommodation.

[Lord Dubs (Lab)]

My Lords, I am grateful to the Minister and all noble Lords who have contributed. They have covered a number of aspects, all under the heading of this debate. I am not persuaded by the Minister’s arguments that the right reverend Prelate the Bishop of Manchester and the noble Baroness, Lady Mobarik, are not totally right in what they are saying. I very much hope the Minister will say something more positive to support them.

I have already indicated that I do not wish to press Motion E1, and I beg leave to withdraw it.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.

9A: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

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[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion F. I beg to move.

Motion F1 (as an amendment to Motion F)

Moved by

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 23, to which the Commons have disagreed for their Reason 23A.

23A: Because the Amendment is unnecessary as an LGBT person who is a national of a country specified in the Amendment and who makes a protection claim will not be returned to their home country and can make a serious harm suspensive claim in the event that it is proposed to remove them to a safe third country.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion G. I beg to move.

Motion G1 (as an amendment to Motion G)

Moved by

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 30, 32 and 34, to which the Commons have disagreed for their Reason 34A.

34A: Because it is necessary to ensure that the National Referral Mechanism is not used as a loophole by persons arriving illegally to make false claims to avoid being detained in or removed from the United Kingdom and that persons subject to the clause 2 duty may be detained in order to facilitate their swift removal from the UK.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion H.

Motion H1 not moved.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 31, 35 and 36 and do agree with the Commons in their Amendments 36A and 36B in lieu.

36A: Clause 12, page 21, leave out lines 16 to 23 and insert—
“(3A) A person who is being detained under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 (detention of unaccompanied child for purposes of removal) must not be granted immigration bail by the First-tier Tribunal until after the earlier of—
(a) the end of the period of 28 days beginning with the date on which the person’s detention under any provision of paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 or section 62(2A) of the Nationality, Immigration and Asylum Act 2002 began, and
(b) the end of the period of 8 days beginning with the date on which the person’s detention under paragraph 16(2C)(d)(iv) of Schedule 2 to the Immigration Act 1971 or section 62(2A)(d)(iv) of the Nationality, Immigration and Asylum Act 2002 began.
(3B) A person who is being detained under—
(a) paragraph 16(2C)(a), (b), (c) or (d)(i) to (iii) of Schedule 2 to the Immigration Act 1971, or
(b) section 62(2A)(a), (b), (c) or (d)(i) to (iii) of the Nationality, Immigration and Asylum Act 2002, must not be granted immigration bail by the First-tier Tribunal until after the end of the period of 28 days beginning with the date on which the person’s detention under paragraph 16(2C) of that Schedule or section 62(2A) of that Act began.
(3C) Where a person is detained under a provision of the Immigration Act 1971 and then (without being released) under a provision of the Nationality, Immigration and Asylum Act 2002, or vice versa, the periods referred to in sub-paragraphs (3A) and (3B) begin with the date on which the person was first detained under the relevant provisions of either of those Acts.”

36B: Clause 12, page 22, line 26, after “(3A),” insert “(3B),”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion J.

Motion J1 (as an amendment to Motion J)

Moved by

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Motion K

[Lord Murray of Blidworth]

Moved by

That this House do not insist on its Amendment 33, to which the Commons have disagreed for their Reason 33A.

33A: Because the Amendment is contrary to the purpose of the Bill to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion K. I beg to move.

Motion K1 (as an amendment to Motion K)

[The Lord Bishop of Manchester]

Moved by

At end insert “, and do propose Amendment 33B to the words so restored to the Bill—

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 37 and 38 and do agree with the Commons in their Amendments 38A to 38E in lieu.

38A: Clause 10, page 14, line 37, at end insert—
“(2CA) But if the immigration officer is satisfied that a woman being detained under sub-paragraph (2C) is pregnant, then the woman may not be detained under that sub-paragraph for a period of—
(a) more than 72 hours from the relevant time, or
(b) more than seven days from the relevant time, in a case where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975).
(2CB) A woman who has been released as a result of sub-paragraph (2CA) may be detained again under sub-paragraph (2C) in accordance with sub-paragraph (2CA).
(2CC) Where a woman being detained under sub-paragraph (2C) has previously been detained under section 62(2A) of the Nationality, Immigration and Asylum Act 2002 and has not been released in between, the definition of “the relevant time” in sub-paragraph (2CD) is to be read as if paragraph (b) referred to the time when the woman was first detained under sub-paragraph (2C) or section 62(2A) of that Act.
(2CD) In sub-paragraphs (2CA) to (2CC)—
“the relevant time” means the later of—
(a) the time at which the immigration officer is first satisfied that the woman is pregnant, and
(b) the time at which the detention under sub-paragraph (2C) begins;
“woman” means a female of any age.”

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38E: Clause 11, page 19, line 27, at end insert—
“(aa) subsections (2AA) to (2AD) (limitation on detention of pregnant women);”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion L. I beg to move.

Motion L agreed.

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49, to which the Commons have disagreed for their Reason 49A.

49A: Because it is properly a matter for the Secretary of State to determine whether continued detention of a person is reasonable in all the circumstances.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion M. I beg to move.

Motion M agreed.

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 50, to which the Commons have disagreed for their Reason 50A.

50A: Because the Secretary of State will be required under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of the child when making a decision under clause 16(4).

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion N. I beg to move.

Motions N1 and N2 not moved.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 56, to which the Commons have disagreed for their Reason 56A.

56A: Because the Bill already makes sufficient provision to enable a potential victim of modern slavery to remain in the UK where the Secretary of State considers it necessary for the person to do so for the purpose of cooperating with a public authority which is investigating their exploitation.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion P. I beg to move.

Motion P1 (as an amendment to Motion P)

Moved by

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 57, to which the Commons have disagreed for their Reason 57A.

57A: Because the Bill already makes sufficient provision to enable a potential victim of modern slavery to remain in the UK where the Secretary of State considers it necessary for the person to do so for the purpose of cooperating with a public authority which is investigating their exploitation.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion Q. I beg to move.

Motion agreed.

Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 66 and 67, to which the Commons have disagreed for their Reason 67A.

67A: Because it is right that the Government is able withhold protections from all individuals who pose a threat to public order and because the Nationality and Borders Act 2022, as amended by this Bill, provides sufficient discretion in the disqualification decision process.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion R. I beg to move.

Motion R1 not moved.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendments 73 and 74 and do agree with the Commons in their Amendment 74A in lieu.

74A: Clause 39, page 42, line 32, at end insert—
“(2A) Regulations under subsection (1) may not amend subsection (4) of section 38 to remove any example of serious and irreversible harm which is listed in that subsection when this Act is passed.”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion S. I beg to move.

Motion S1 not moved.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 90 and do agree with the Commons in their Amendments 90A, 90B and 90C to the words restored to the Bill by the Commons disagreement to Lords Amendment 90.

90A: Page 53, line 40, after “court” insert “or tribunal”

90C: Page 54, line 7, after second “court” insert “or tribunal”

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion T. I beg to move.

Motion T1 (as an amendment to Motion T)

Moved by

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 93, to which the Commons have disagreed for their Reason 93A.

93A: Because it is necessary to remove the right of appeal against an age assessment decision and to provide for any challenge by way of judicial review to be non-suspensive of removal in order to prevent and deter unlawful migration.

[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion U. I beg to move.

Motion U1 not moved.

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Moved by

[Lord Murray of Blidworth]

That this House do not insist on its Amendment 95 and do agree with the Commons in their Amendments 95A and 95B in lieu.

95A: Clause 55, page 56, line 34, leave out from “may” to “was” and insert “grant relief only on the basis that the decision”

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[Lord Murray of Blidworth (Con)]

My Lords, I have already spoken to Motion V. I beg to move.

Motion agreed.