Nationality and Borders Bill

Lord Oates Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Oates (LD)]

My Lords, over the Christmas break I had the chance to read two things in particular. The first was a birthday gift, Jon Meacham’s excellent book, Franklin and Winston; the second was this Bill. I confess that the former experience was considerably more enjoyable than the latter, but the two are linked because it was Franklin Roosevelt whose ideas and humanity did so much to shape the post-war order; and it was Sir Winston Churchill’s Government who, on 11 March 1954, ratified the 1951 refugee convention which this Government, through this Bill, so clearly and shamefully intend to violate.

In the short time available I am going to focus on Part 2, relating to asylum and the treatment of refugees, but I also want to touch on the continuing lack of physical documentation for EU citizens with settled and pre-settled status, an issue which many of us across this House have raised consistently. I give notice that I intend to table an amendment in Committee—again, I hope, with cross-party support—to correct this continuing anomaly which is causing significant hardship to settled EU citizens.

As we have heard, the 1951 refugee convention came into being in the aftermath of World War II. It was intended to create a shared obligation towards refugees and to end the pre-authorisation regime which had existed in the 1930s and had prevented so many people, particularly Jewish people, finding a safe haven from Nazi persecution. It is exactly such a pre-authorisation regime that this Government seem determined to return to, with all the injustice that will entail.

This Bill turns the concept of shared responsibility on its head. It introduces the principle that a refugee must claim asylum in the first safe country they arrive in. As the UNHCR has made clear:

“this principle is not found in the … Refugee Convention and there is no such requirement under international law.”

As the joint opinion for Freedom from Torture points out, such a principle

“would have been nonsensical in circumstances prevailing in 1951, with no commercial air-travel.”

Quite apart from violating our obligations under international law, this safe country principle makes no sense for an international convention. It would mean that the obligations of the convention applied in effect only to those safe countries which happen by circumstances of geography to be closest to the countries of origin of the refugees. Already, these countries carry the bulk of the burden and often they are the least well-resourced to deal with it. As the UNHCR reminds us, 73% of refugees are already hosted in neighbouring countries and 86% of them are hosted in developing countries. The logic of the Government’s position is to say to these countries that 73% is not good enough—you must take them all.

In inventing this new principle, the Government are also creating a second class of refugee—literally, a “Group 2 refugee”—and then penalising them, in explicit violation of the convention which provides that no such penalties should be required. The result is that people who the Government themselves accept are refugees requiring protection under the convention will be denied rights because of their means of entry to the country or their failure to apply for asylum elsewhere. Not only do the Government intend to penalise refugees for entering by unauthorised means, they are also doing their best to ensure that there are no authorised means by which you can claim asylum outside country. Heads they win, tails you lose.

In his notably bellicose opening, the Minister told us that we did not have to choose between fairness and effectiveness. That is true. It is therefore particularly curious that the Government have felt the need to avoid a choice they did not have to make by plumping instead for legislation that is unfair and will prove ineffective.

The Minister also told us that the asylum system is broken, and who could disagree with him? As my noble friend Lord Paddick and other Peers set out, the Home Office’s administrative record is appalling. It has failed to remove 40,000 failed claimants who are eligible for removal, it is processing only half the applications it did 17 years ago, and those put through its processes are subject to delay, prolonged uncertainty and misery. We do not need new legislation but effective administrative action by the Home Office, safe and legal routes for refugees to claim asylum and a system that is humane, fair, effective and rapid. The Bill will achieve none of that. Nasty and ineffective in equal measure, it is a byword for this Government.

Nationality and Borders Bill

Lord Oates Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

Moved by

[Lord Oates]

79: After Clause 78, insert the following new Clause—
“UK immigration status: certification
(1) The Secretary of State must issue physical proof confirming immigration status to anyone who has been granted such status under the immigration laws of the United Kingdom and who requests such proof.(2) No fee may be charged for issuing physical proof under this section.(3) The certificate mentioned in subsection (1) must confirm that the relevant person has the relevant status.(4) The certificate mentioned in subsection (1) is valid for right to work checks, right to rent checks and all other checks that may be undertaken by agents within and without the United Kingdom to confirm the relevant person’s UK immigration status including permission to travel to and enter the United Kingdom.”Member’s explanatory statement
This new Clause would require the Government to issue a physical certificate to all people with a UK immigration status, allowing all those with such status to provide documentary proof.

[Lord Oates (LD)]

My Lords, Amendment 79 would require the Secretary of State to provide physical proof of immigration status to anyone who has been granted such status and requests such proof. The arguments for providing physical proof alongside digital status have been aired extensively in this House, most recently in the debates on the then Immigration and Social Security Co-ordination (EU Withdrawal) Bill, when your Lordships overwhelmingly supported a cross-party amendment to this effect for EEA citizens with settled or pre-settled status. I am heartened that this amendment has also received support from across the House, and I am grateful to all the signatories of it.

This amendment differs a little from my 2020 amendment in that it covers not just EEA citizens with settled and pre-settled status but also non-EEA citizens who have immigration status. That is because, despite the huge difficulties and anxieties caused by digital-only status, the Government have decided to extend it to non-EEA citizens who previously were able to use biometric residence permits, biometric residence cards or frontier worker permits.

Whatever the merits or otherwise of a digital-only system, one would imagine that before introducing such a radical change the Government would have undertaken extensive trials to check that the system worked and could be easily operated by those who had to use it. In fact, the Government conducted only one such trial in 2018, which concluded:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”


The Government ignored that finding and ploughed on.

A comprehensive document setting out many of the difficulties users have encountered was submitted to the independent monitoring authority by the3million in November last year, and I raised a number of specific concerns when we debated this amendment in Committee. These included problems with updating status when a person received a new passport, multiple errors in the view and prove system, and even immigration officials demanding physical proof of settled status.

The Government set up a settled status resolution centre, which, confusingly to everyone, works alongside the UKVI resolution centre. At the outset, those who received a letter telling them they had received settled or pre-settled status were not provided with any contact number at all if something went wrong. Subsequently, the letters included the number of the EU settlement resolution centre for people to contact—but many cannot even get through. Despite the Home Office asserting in meetings with stakeholders that callers who did get through to the resolution centre had to wait an average of 14 minutes, it could not or would not say how many did not get through, although it acknowledged that demand was managed. That seems to mean that callers were simply disconnected to keep waiting times down. For example, the transcript of a call made on 12 November 2021 and included in the submission to the independent monitoring authority showed that the call had been automatically disconnected regardless of the options chosen.

The full scale of the problem has come to light only recently, because until then the Home Office resolutely refused to provide detailed information on the performance of the resolution centre. In 2019, an FoI request to obtain this information was refused, on the grounds that the data was already planned for publication. However, as no such publication subsequently took place, a new FoI request was submitted in July 2021. After repeated follow-up requests, an internal review and a referral to the Information Commissioner’s Office, the information was finally published on 1 December last year. It immediately became clear why the Government had been so reluctant to publish the data, because it showed that, over the 12 months to October 2021, just 44% of the calls to the EU settlement resolution centre were successfully connected.

In response to all these difficulties and to the Government’s rejection of biometric residence cards for EU and EEA citizens with settled and pre-settled status, the3million made the constructive alternative proposal of a barcode system similar to the one we had for Covid vaccination status. The Minister responded to this suggestion in Committee by saying:

“He mentioned the QR code, and I totally agree; the QR code has worked brilliantly throughout the pandemic for certain things such as updating your Covid vaccination status. I will take that back to the Home Office and report back on any progress … but I support the whole principle of being able to use a QR code”.—[Official Report, 10/2/22; cols. 1981-82.]


At last, after so many years debating this issue, there seemed to be a glimmer of hope and some common ground.

How naive I was. Last Friday, the3million received a letter from the Home Office rejecting the idea of a barcode. It is four pages of bureaucratic obstructionism without any acknowledgement of the problem that needs to be addressed, the anxieties of those whom the policy affects, or any positive proposals about a way forward. It makes a whole series of inaccurate assertions that could easily have been corrected if those involved in determining the policy had engaged effectively with those affected by it, but they did not.

Having finally agreed to a meeting for the 3million to present the proposal, the Home Office then took eight months to respond to it and refused to hold an interim meeting with the group during that time to discuss progress with its assessment of the proposal. It then produced a wholly negative response that rejects the proposal out of hand on grounds that are simply wrong and could have been corrected had the interim meeting taken place.

The truth is that the Home Office had made up its mind before it had even begun. Unfortunately, this sort of response is not a one-off but part of a pattern of behaviour at the Home Office that was identified in the independent Windrush Lessons Learned Review—commissioned by the Home Office—which states on page 141:

“It is not clear that the department has learned the wider lesson that it should be engaging meaningfully with the communities it serves. The true test will be whether stakeholders, including those considered to represent critical voices, are firstly invited to participate in developing the department’s policies, and also in designing, implementing and evaluating them.”


The Home Office’s response to the barcode proposal makes it abundantly clear that this test has been comprehensively failed. At the heart of this issue is whether the Home Office is willing to listen to the users of its services and take on board their concerns, or whether Ministers and officials are impervious to them and simply determined to pursue their policy regardless of the consequences.

As I have said in all our previous debates, this is ultimately about people’s lives, the unnecessary difficulties and anxieties being imposed on them, and the Home Office’s seeming inability to recognise or empathise with those concerns. I hope that the Minister and her department will reflect on how their response fits into the wider cultural problems in the Home Office and come back with a proposal that will fix this problem, rather than continuing to pretend that it does not exist. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Yes.

[Lord Oates (LD)]

My Lords, I thank all noble Lords who have taken part in this debate. Given the lateness of the hour, I will not go into detail but just say two things. First, I have read the entirety of the Home Office letter to the3million group, most of which is wrong and could have been corrected if the Home Office had the decency to meet on an interim basis as requested. The Minister will have seen, or will see shortly, the comprehensive refutation of every point that she has made.

Secondly, it is all very well to say that the system works well for some people. For digital-savvy people, I am sure it is fine; but for people who are not digital-savvy, it is not. That is specifically what the pilot undertaken by the Government warned about. It said that the system should not be changed, as unless effective mitigation was put in place it would have a significant impact on vulnerable users. It is having a significant impact. I very much regret and am dismayed that the Home Office does not understand that and will not listen to the people who have to use it. On that basis, I would like to test the opinion of the House.