Border Security, Asylum and Immigration Bill

Lord Murray of Blidworth Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Murray of Blidworth (Con)]

My Lords, I wish to address Amendment 79A, in my name, on the disapplication of the Human Rights Act for immigration legislation. I am grateful to the noble Lord, Lord Faulks, for his support for this amendment and for the support expressed for the principle by the noble and learned Baroness, Lady Butler-Sloss.

As the noble Lord, Lord Faulks, has identified, there is presently an uncomfortable vacuum at the heart of the Home Office’s policy. We know that the “smash the gangs” mantra, which is at the heart of this somewhat performative Bill, has failed. Again, I do not wish to bore the House with the statistics; we all know them. The reality is that while taking the step identified by my noble friend on the Front Bench of abolishing the tribunals is certainly one course, and one which I would endorse, I would not expect the Government Front Bench to accept it.

In the interim, as the noble Lord, Lord Faulks, reasonably identifies, there is an alternative, and it is that set out in Amendment 79A. This would disapply the Human Rights Act from immigration cases. As we know, the vast bulk of immigration cases are derived from or directly apply human rights provisions in their construction, and in so doing prevent the effective use of border control, so it is open to the Government to accept this amendment.

I simply add this. The Joint Committee on Human Rights wrote to the new Home Secretary asking for an explanation as to what the Government propose to do in relation to Article 8. In a letter to the noble Lord, Lord Alton, dated 23 October, the Home Secretary said:

“My officials are currently reviewing the application of Article 8 of the ECHR in immigration cases. As set out in the Immigration White Paper (24 May 2025) we will legislate to reform our approach to the application of Article 8 in the immigration system to ensure that the right balance is struck between individual and public interest in controlling migration. My officials are continuing to develop these proposals, and the Government will publish more detail in due course”.


In the following paragraph, she provided a mantra, saying that,

“the Government is fully committed to complying with international law and the protection of human rights. We do not have to withdraw from the ECHR or disapply the HRA to create meaningful reform”.

I am afraid that that is just inconsistent and plainly wrong. If the Government want an effective border control policy, they will have to take a measure such as that identified in this proposal or, I am afraid, the current state of chaos will continue.

[Baroness Maclean of Redditch (Con)]

My Lords, I will speak to the two amendments tabled in my name in this group, but, before doing so, I will say that I strongly support the comments made by my noble friend Lord Murray and the noble Lord, Lord Faulks. My amendments are to Amendments 47 and 68, and would ensure that modern slavery claims and appeals cannot be singled out in some way and still be used as a loophole for the merry-go-round of asylum claims that we see. The Home Secretary herself highlighted the vexatious last-minute modern slavery claim that was put in, in the case of the one-in, one-out asylum seeker. We have heard other examples as well.

Last year, noble Lords might wish to know, we saw that 65% of referrals to the NRM were found to have no reasonable grounds. This was compared with only 16% four years ago. So there is evidence that this is increasingly being used for last-minute, spurious claims, and I would like to make sure that these amendments are as bulletproof as possible. We should seek to restore public confidence in the modern slavery system, to make sure that it is doing what it was designed to do and what this Parliament designed it to do: that is, to be a lifeline for victims of horrific abuse. It was not designed, as it has increasingly become, as a route for Albanian men arriving on small boats.

The British citizens who are referred into the system are overwhelmingly children. I am sure that most people would agree that that is the right thing for the state to be doing. Foreign citizens referred in tell a different story: these are mostly adult men from Vietnam, Albania, Eritrea and Sudan. Supporting them is not the right priority for the taxpayers of this country. My amendment therefore ensures that only genuine victims can make use of our generous support and that these vexatious claims can definitely be thrown out.

[Lord German (LD)]

My Lords, this is obviously a lawyers’ paradise of a debate, where we normally have expressions of views. I am going to be much simpler than that. I want to look at Amendment 79A first, because it is important and I think I understand what is happening. I am in the fortunate position of being a member of the Parliamentary Assembly of the Council of Europe, which enables me to have access, ask questions and find out far more than perhaps this House has been informed about at this stage. I would encourage all Members to talk to their party delegates on this matter to see what they have been doing about it.

My question about Amendment 79A is: does it mean withdrawal from the European Convention on Human Rights? Is that being suspended? If that is the case, which I understand is Conservative Party policy, quite clearly what we are heading for is Brexit 2. Is that the position?

[Lord Murray of Blidworth (Con)]

No, Amendment 79A seeks to disapply the Human Rights Act. It would revert the situation to that which pertained prior to the passage of that Act. Of course, we were a member of the European Convention on Human Rights from 1951 until 1998, when the Human Rights Act was passed, and, as the noble Lord will recall, the sky did not fall in.

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[Lord Hanson of Flint (Lab)]

I defer to those who have expertise in coronial decisions—that is an MoJ matter—but in this case, this is what we have, and I am not prepared to give it up. We can disagree on that, and there are Division Lobbies on either side if we need to sort this out, but I do not expect to support those amendments, on the basis of the arguments that I have put forward today.

Amendment 79A from the noble Lord, Lord Murray of Blidworth, would require the Home Secretary to disregard the Human Rights Act. I am not going to support that either. It would further limit when the UK could comply with interim measures and how they should be treated in domestic courts. The UK is fully committed to the protection of human rights at home and abroad, in answer to the noble Lord, Lord Faulks, as the Prime Minister has made clear—

[Lord Murray of Blidworth (Con)]

I am very grateful to the Minister for giving way. As he will have seen, the amendment would not require the Home Secretary to ignore human rights; it would require courts not to consider the Human Rights Act when considering applications in relation to immigration legislation, which would greatly help his department.

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Moved by

[Lord Murray of Blidworth]

56: After Clause 48, insert the following new Clause—
“First-tier Tribunal Immigration and Asylum Chamber: publication of decisions(1) All judgments of the First-tier Tribunal Immigration and Asylum Chamber must be published on a Government website within 14 days of being made. (2) Judgments published under subsection (1) may be anonymised to the extent considered necessary by the Tribunal.”Member’s explanatory statement
This amendment is intended to ensure that judgments of the First-tier Tribunal (Immigration and Asylum Chamber) are published in accordance with the principles of open justice and public scrutiny of judicial decision making.

[Lord Murray of Blidworth (Con)]

My Lords, we all know the perils of hanging around too long in the Chamber of the House of Lords on 5 November, so I will be as brief as I can in introducing this group.

I have four points. The first is that the principle of open justice is well known. As the noble and learned Baroness, Lady Hale of Richmond, made clear when she sat judicially in the case of Cape v Dring in the Supreme Court, the first purpose of open justice is

“to enable public scrutiny of the way in which courts decide cases—to hold the judges to account for the decisions they make and to enable the public to have confidence that they 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) is one of the largest of seven chambers of the First-tier Tribunal. The other chambers of the tribunal—the Tax Chamber, the Property Chamber and the General Regulatory Chamber, which deals with Information Commissioner matters—routinely publish all their decisions, among other things, on the website. Furthermore, the employment tribunal also publishes all its decisions on its website. These are all tribunals of the same status as the First-tier Tribunal (Immigration and Asylum). Accordingly, this amendment would require there to be a standard practice that the immigration and asylum chamber also publishes its decisions.

There is no small number of cases. In 2022-23 there were 38,000 appeals, and in the last year for which we have numbers, 2023-24, there were 39,000 appeals. There is plainly very significant public interest in the making of decisions, largely on human rights grounds, in the First-tier Tribunal (Immigration and Asylum).

Presently, the decisions are not published. There is no good reason for this. In the First-tier Tribunal, it is open to litigants to apply for an order that the identity of everybody in the case be anonymised. The amendment would expressly allow that to continue, so there is no suggestion that it would expose anyone to any risk of reprisal or any other problem that would be posed by their identity being revealed, because they would be able to apply for anonymity.

In 2011, the Supreme Court made it clear in the Kambadzi case that, while anonymity needs to be justified in each case, there is now an expectation that there are frequently anonymity orders in asylum cases. So there is no argument that non-publication of First-tier Tribunal decisions can be based on a desire to achieve anonymity.

The reason why this is so important now is that there is a widespread amount of public interest in the decisions of the First-tier Tribunal. One need only recall the excellent journalism of the Daily Telegraph in reporting cases that it said demonstrated flawed human rights decision-making.

This cuts both ways. If this amendment is carried by the House tonight and then incorporated into the enacted Bill, we would see the publication of the decisions. That would have the effect of allowing the public to interrogate and understand the basis on which decisions are made in the immigration and asylum chamber. It would be a very significant myth-busting tool, because it would show how these decisions are taken. There would be no suggestion that these decisions are partial to one side or the other. This is simply the application of the normal principle of open justice.

Turning to the reason why it is not at present done, it is hard to identify an original reason why the practice of not publishing these decisions was adopted. There is a practice direction in the immigration and asylum chamber that allows the President of Tribunals to release a judgment on an application by a researcher or a journalist. The problem with that—the noble Lord, Lord Katz, encountered this when he gave his speech on this topic in Committee and said that this was in some way an answer to the point—is that, as the noble Lord, Lord Sandhurst, observed to him, you cannot apply for the disclosure of a judgment you do not know about. So that, I am afraid, is no good answer.

The other defence, as it were—or rather a flimsy stockade put up by the Government for not accepting this amendment—was that it is a matter for the judges. The answer is that no, it is not. It is actually a matter for this Parliament to decide that these judgments should be published, and, what is more, it is consistent with the common law, as set out so clearly by the noble and learned Baroness, Lady Hale, in her landmark decision in Cape v Dring. As I said in Committee, this amendment’s time has certainly come, and I urge all noble Lords to support it.

[Lord Faulks (Non-Afl)]

My Lords, I put my name to this amendment, together with the noble Lord, Lord Alton, whom we are very glad to see in the Chamber after his most unfortunate accident. I apprehend that one reason he might support it—although, if he is able to, he could contradict me—is simply that it is a good idea that we know what is being decided. It may be that this confirms what many journalists identify as rather egregious cases, or it may be that it provides reassurance; whatever it is, we should know what they are deciding. It is hard to overstate how engaged the public is on this particular issue, and yet they do not know what is being decided in their name on what is probably one of the burning political issues of the moment.

I referred in Committee to the report of the noble Lord, Lord Wolfson, which has been published. He said:

“A further difficulty in this area”—


he is talking about the decision-making—

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

So we have to rely on what journalists select, doing their job as journalists. People say that they are unfairly selecting certain cases and that there have been plenty of decisions that are wholly satisfactory, but it would be much better if there was some sunlight on this.

I fail to understand the Government’s objection. The only objection that we were given in Committee was, “The previous Government didn’t make a fuss about this, and that suits us”. I am afraid that is simply not good enough, and I therefore support this amendment and invite the House to join me.

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[Lord Katz (Lab)]

I thank the noble Lord for his intervention, but I am not sure it is really my position to go around having a word, as he put it, with any members of the judiciary, or indeed, that of any member of the Government to be having a word with members of the judiciary, because we quite like its independence. However, as I said, there are discussions going on between HMCTS, the MoJ and the judiciary about publishing, and in principle the judiciary supports the publication of judgments, but it is in its hands, and it is appropriate that it is its decision to make. That is because we value the rule of law in this country, and part of the rule of law is that we have an independent judiciary.

As I was saying, we still believe, as I said in Committee, that primary legislation is not necessary to effect change in this area, and such a change would be most appropriately delivered through non-legislative means or in procedural rules. In the meantime, members of the media can apply to the tribunal for a copy of written reasons in a specific case. Decisions of the immigration and asylum chamber of the Upper Tribunal, which determines appeals against First-tier decisions on points of law, as I have said, are already routinely published online, and those are the ones that are of most interest and saliency when it comes to understanding the evolution of immigration to this country. Given that explanation, and also, I hope, the understanding that there is a process to consider publication going on, I ask the noble Lord, Lord Murray, to withdraw his amendment.

[Lord Murray of Blidworth (Con)]

I thank the Minister for his answers to the questions that we posed. I also thank the noble Lord, Lord Faulks, for his support for the amendment, my noble friend Lord Davies and, particularly, the noble Lord, Lord Alton, whom I am delighted to see back in the Chamber and, earlier today, chairing the Joint Committee on Human Rights, as excellently as ever.

I am afraid I must let the Minister down gently. First, he said the use of “judgments” in the amendment was wrong, because the employment tribunal makes findings, and this was at the heart of his defence. If he looks carefully, he might find that a court would construe judgment in this section of the Act to include all findings and decisions of the tribunal, because that is exactly the word that is used in relation to the employment tribunal.

The Minister’s second reason was that they are having discussions with the MoJ, and the MoJ is having discussions with the judges; there are no timelines, no dates, no indication of what is going to be said, but noble Lords should feel reassured by that. I am afraid that is a warm bath of words. The long and short is that the resource implications of publishing these decisions are limited because we know that all these judgments are provided electronically, because that is the practice—one needs to look only at the immigration decision practice direction. So I do not accept that reason; it is very easy for them to be published, and the cost of it would probably be less than we spend on asylum hotels in a day or two.

For those reasons, I say to noble Lords that it is surely a right to get the facts about decision-making on human rights grounds out there for the public and journalists to see. To adopt the phrase of the noble Lord, Lord Faulks, let us let the sunlight in. I wish to test the opinion of the House.