Nationality and Borders Bill

Lord Paddick Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

Given the advisory role of this House and the need to focus attention on further egregious clauses, I will not seek the opinion of the House on this Motion.

[Lord Paddick (LD)]

My Lords, I have Motion K1 in this group but I will speak to each of the other Motions. I will say very little on the individual Motions, but I remind the House of what I said at Second Reading. If British people, as we are constantly told, are concerned about immigration, this Bill, which targets asylum seekers and victims of modern slavery, is not focused on their primary concern.

In an article in the Telegraph yesterday, Nick Timothy, Theresa May’s former chief of staff, wrote about his concerns about mass immigration. Nowhere in that article does he mention asylum seekers, victims of modern slavery or the Nationality and Borders Bill. He points to the real causes of mass immigration: 240,000 work visas, up 25% compared with 2019, which was a big year for immigration; 280,000 family visas, up 49%; and 430,000 student visas, up 52%. These numbers dwarf the numbers claiming asylum.

Work permits have become unlimited; the definition of a skilled worker has been watered down; the shortage occupation list has been extended; employers no longer have to prove that they could not recruit from the resident population; and foreign students are allowed to stay on after their studies no matter what their qualification. An Australian-style points-based system, designed to increase immigration into Australia, is having the same effect here, despite the end of free movement. Yet this Government, and this Bill, address none of these issues but instead focus on the small minority fleeing war, persecution and modern slavery, who desperately need sanctuary.

On Motions A and A1, we believe that the safeguards the noble Lord, Lord Anderson of Ipswich, has secured in relation to deprivation of British citizenship without notice will ensure that further abuse of the system is prevented. While we have sympathy with the position of the noble Baroness, Lady D’Souza, we are pleased that she is not going to divide the House on this occasion.

On Motions K and K1, I understand the Government’s determination to prosecute people smugglers but the unintended consequences of removing the “for gain” element of the offence of facilitating the entry of an asylum seeker into the United Kingdom are to subject individuals, most importantly those seeking to rescue migrants drowning in the channel, to prosecution.

The first amendment approved by this House to reinstate “for gain” was a Labour amendment. The second, a Liberal Democrat amendment, provided that those with a reasonable excuse for facilitating entry would not commit an offence. Both were rejected by the other place. This third attempt would mean that individuals engaged in genuine humanitarian activity, including the preservation of life, would not commit an offence.

This is about removing doubt from the minds of those who come across drowning migrants in the channel that they may be prosecuted if they effect an immediate rescue. The Bill, as drafted, says that they commit a criminal offence. The only current defence is that, once charged, they may present a defence in court—once they have been arrested and prosecuted. Whatever the Government might say, that could cause people to hesitate when decisive, life-saving action is needed. We believe that lives depend on Motion K1 being agreed by this House, and I urge noble Lords around the House to support it.

We support Motion L1, and do not believe that modern slavery should be part of this Bill at all. These victims are extremely vulnerable and should be supported, apart from in very exceptional circumstances. The current “public order” concern is far too broad. We believe that Motion L1 provides a solution to that issue, as I am sure the noble Lord, Lord Coaker, will explain.

On Motion M, it is with great regret that the efforts of the noble Lord, Lord McColl, over many years, to protect and properly support victims of modern slavery, have come to a point where his own party, the Conservative Party, refuse to support him in his attempts to make appropriate provision for such victims.

[Lord Coaker (Lab)]

My Lords, I will start by saying a couple of words about a couple of the Motions and will then concentrate my remarks on Motion L1, in my name, on modern slavery.

On Motion A1, and the amendment in the name of the noble Baroness, Lady D’Souza, I pay tribute to the noble Baroness and the work she and many others in this House have done on this particular issue. As she knows, we originally wanted the whole clause to be removed, but we recognise that the Government have changed the clause significantly by accepting the safeguards tabled by the noble Lord, Lord Anderson. The Minister is to be congratulated on moving as far as she did on that issue. On that basis, and that of other safeguards, as the noble Lord, Lord Paddick, has mentioned, there is nothing further we can do with respect to this clause. As I said, we all note the work which the Minister has done. Certainly, the amendment moved by the noble Lord, Lord Anderson, would not have been as well accepted as it was by the Government without the work she has done.

On Motion K1, and the amendment in the name of the noble Lord, Lord Paddick, we agree entirely with the problems which the removal of the words “for gain” creates. He knows that I have supported him all the way through the Bill. But we are left with difficult decisions and, although the Government have removed rescue efforts co-ordinated by the coastguard from the scope of the offence, a captain who takes a split-second decision to rescue lives at sea will officially commit an offence. This is addressed, as the noble Lord, Lord Paddick, said, only by the fact that they will have an exceptionally strong defence for doing so. I note that the Minister has said on a number of occasions that she does not believe that someone would be prosecuted in those circumstances, and it would helpful if she reiterated that again from the Dispatch Box as a further safeguard and reassurance to people who may be put in that position. We would have liked to see this remaining problem fixed but, as I said, as the Government have already significantly amended this clause, we are doubtful that there is anything more to be achieved in this respect and there are other issues we wish to focus on—one of which I will turn to now.

I first thank the Minister, who tried to address many of the issues which have been raised around Clause 62. I remind noble Lords that, as my amendment points to, this clause deals with disqualifying potential victims of modern slavery from protection. As the Minister confirmed, this includes children. We are genuinely trying to be helpful on this issue. As the Minister outlined, the Government clearly recognise the real problem here. The clause, as originally drafted, was too broad, and it remains too broad. It will actually capture victims who have a criminal record only as a consequence of their slavery—because they have been exploited and forced into crime by their traffickers. This legislation, even as amended, and even with the reassurances from the Minister, will still capture victims of modern slavery and disqualify them from protection. This is the reality of the legislation before us: it will prevent victims entering the NRM; it will tighten traffickers’ hold on their victims; and it will stop us being able to find, stop and prosecute the vile people traffickers.

The Government have been generous with their time; they have met me and trafficking organisations on numerous occasions. But the problem remains in the way that this clause is drafted. The amendment that I have put before the House seeks to give the Government time to sort out the issue, which they recognise as a problem, of defining “public order”. As it is in the Bill at the moment, victims of trafficking who commit minor offences are potentially disqualified from protection. That cannot be what the Government, this House or anyone would wish, but it is the consequence of the Bill—it is the consequence of the legislation as it is drafted. Whatever the warm words and intentions of the Minister—who would not want that to happen and says that it will be all right on a case-by-case basis—you cannot legislate on the basis that it will be all right on the night. That is not the right way of doing it. The legislation creates the problem. We also tried to address concerns around terrorism, and that is why we added TPIMs to the amendment.

I want to refer to the Government’s latest statistics to conclude my remarks on modern slavery. According to the Government’s own document, published a couple of weeks ago, 43% of those who claimed asylum last year because of exploitation were children. This means that 43% will potentially be impacted—I am not saying that they will be—by this clause as it is currently drafted. That is the reality of what is before your Lordships this afternoon and why I am so insistent on my amendment, in Motion L1.

The Minister referred to the number of adults who are not officially referred—if you are an adult, you have to give consent—and where instead the first responders act on their duty to notify. In the past year, this number has increased by 47%—47% of adults are refusing to consent to be referred to the national referral mechanism. The Minister will say that it is up to them whether or not they consent, but let me say why I think they do not consent. I think that an increasing number of victims or potential victims of trafficking do not consent to be referred to the national referral mechanism because they are scared. They do not see authority in the way that we do. They do not see police officers in the way that we do. They do not see immigration officials in the way that we do. They do not see civil servants in the way that we do. They are frightened. They are victims. They may have been forced into criminality and, as such, they do not want to have it imposed on them that they must be referred to an official system. That there has been a 47% increase in victims or potential victims refusing to consent to being referred to the system should ring alarm bells with everyone.

My amendment says that, because of an increased emphasis on things such as public order, there is a failure to recognise the reality for victims of slavery and their lives. Many noble Lords here, including me, have met victim after victim and potential victim after potential victim—people who are terrified, mortified and scarred for ever by their experience. Yet the way this Bill is drafted, it will penalise them for that experience and any forced criminality. This is not the Government’s intention—I accept that—but it is the reality of the legislation before them. I ask your Lordships this: why, either in this place or the other place, would you pass a piece of legislation that flies directly in the face of the policy objectives that you have? It is nonsense. The Government do not want to exclude potential victims of modern slavery from referring themselves or being referred, but that will be the consequence of this legislation if it is unamended.

We will divide the House on this. We want the Commons once again to think whether they really want to pass legislation that will potentially lead to victims of modern slavery not coming forward or having the help and support they deserve. I do not believe they do. That is why we should support Motion L1 in my name.

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[Lord Paddick (LD)]

My Lords, contrary to what the noble and learned Lord, Lord Mackay of Clashfern, has just said, I accept that the Attorney-General is a senior Law Officer. But she is also a member of the Government and, as far as I am concerned, in relation to Motions B and B1, it is vital that compliance of domestic legislation with the UK’s international obligations—in this case, the 1951 refugee convention—is decided by the courts. If a precedent is set that a UK Government can reinterpret its international obligations by passing domestic legislation, where does it end? This Bill would remove refugees’ fundamental human rights, as set out in an international convention to which the UK is a signatory, unless we support Motion B1.

Motion C1 applies the same principle. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the UK courts have held time after time that an asylum seeker’s temporary stop in another country on their way to the UK does not invalidate their claim for asylum in the UK, nor does a delay in presenting themselves to the authorities if they have good cause.

Motion C1 also, importantly, restates the provision in the Asylum and Immigration Appeals Act 1993 that the Immigration Rules must not result in a breach of the refugee convention. It also states the importance of the best interests of the child and the right to family unity, and we support it.

On Motions D and D1, we have long campaigned for the right of asylum seekers to work, and we continue to do so. We do not believe that any so-called pull factor, as the Government claim the right to work to be, is as strong or as impactful as the push factors that force asylum seekers to seek sanctuary in another country—or is even a consideration compared to them. This is even more obviously the case if the right to work is the same or less generous than in other countries, as this amendment proposes. As the noble Baroness, Lady Stroud, said, we wholeheartedly support it.

The issues in Motion E are arguably covered by Motion C1.

Motions F, F1 and F2 have been brought into stark relief by the Government’s announcement of the signing of a memorandum of understanding with the Government of Rwanda. An article in the Times yesterday, for which a considerable number of asylum seekers in northern France were spoken to, proves what the Home Office’s own civil servants have told the Home Secretary: that outsourcing, or offshoring, and the threat of permanent removal of asylum seekers to Rwanda will not deter channel crossings. That is what asylum seekers in northern France are saying.

The outrage of this House at these proposals was amply demonstrated yesterday, albeit unfairly directed at the Minister personally, in response to the Private Notice Question on the Rwanda deal. The Minister claimed that removal to places such as Rwanda had been legally possible for years. Can the Minister clarify whether offshoring is legally possible only if the Home Secretary certifies that a claim is without merit and that, even then, the claim can continue to be pursued from overseas? Is it right that there is no provision for a successful claimant of refugee status to be permanently excluded from the UK under current legislation?

The Minister talked about the cost of the asylum system being approximately £1.5 billion a year. Surely that is due mainly to the inefficiency and ineffectiveness of the Home Office, which has led to record levels of outstanding claims, despite the fact that the number of asylum claims is less than half of what it was a decade or so ago.

The Minister also said that noble Lords should read the memorandum of understanding. Some of us have. There is a section in it requiring Rwanda to provide appropriate support to those removed by the UK who are victims of modern slavery. Can the Minister confirm that the Government accept that victims of modern slavery will also be removed to Rwanda? Otherwise, why is that section contained in the MoU?

We will support anything that prevents this immoral and senseless government proposal being put into practice. If either the right reverend Prelate or the noble Viscount, Lord Hailsham, divide the House, we will support them.

On Motion G, as the Government have accepted in relation to Ukraine, family reunion is an important and effective means of providing sanctuary to asylum seekers, and we continue to support family reunion whenever and wherever we can.

On Motions H and H1, the Ukrainian refugee crisis has demonstrated how ill prepared the UK is and how uncaring the UK Government are in insisting on visas for dealing with the resettlement of refugees, compared with the generosity of the British people in offering to open up their homes. Setting a target and then gearing up to meet it is a sensible and pragmatic way of dealing with the issue, informed by local authorities.

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Moved by

[Lord Paddick]

At end insert “and do propose Amendment 20D in lieu—

20D: Page 41, line 41, at end insert— “(3A) After section 25A(3) insert—
“(3A) Subsection (1) does not apply to a person whose action is taken for humanitarian reasons including the preservation of life.”””

[Lord Paddick (LD)]

My Lords, I beg to move.