Illegal Migration Bill

Lord Purvis of Tweed Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

I have some sympathy for the spirit, if not the letter, of this amendment. Of course, returns agreements have an important role to play, but legislating in this way will not help progress negotiations with other countries—quite the opposite. I therefore invite the noble Lord, Lord Carlile, to withdraw his amendment. If he is minded to test the opinion of the House, I would urge noble Lords to reject the amendment.

[Lord Purvis of Tweed (LD)]

Perhaps I might ask the Minister for clarification. He referred to the 16 agreements, and he knows I asked him specifically for the list of those 16 countries, because the House of Lords Library could not find them for me. The Minister obviously did not think it necessary to write to me between Committee and Report, so can he list those 16 countries now?

[Lord Murray of Blidworth (Con)]

As the noble Lord will recall, during our exchange I made clear that not all of those 16 agreements are in the public domain, so I am not going to provide him with the list he seeks.

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This series of important amendments is to make sure that the countries to which migrants are sent will be genuinely safe for the people sent there.

[Lord Purvis of Tweed (LD)]

My Lords, I will speak to Amendments 20 and 24 to 28 in my name.

It is notable that, despite Government Ministers on the Front Bench trying to promote this Bill in such vehement terms, for the votes in this Chamber the Conservatives cannot get more than 50% of their Members to support the Government’s position. That speaks volumes.

Amendment 20 seeks to restore the fundamental principle that, if people are to be deemed admissible to be removed to a safe country, it should be on the basis of the individual circumstances of their case and after a review of the circumstances that they will face. The Government are turning this on its head, which is simply wrong. We heard earlier about the due process of law. Amendment 20 seeks to restore what the Government seek to remove—the due process of law.

Amendments 24 to 28 follow from the comments of the noble and learned Baroness, Lady Butler-Sloss, on those countries in the schedule that are not party to the refugee convention—India, Kosovo, Mauritius, Mongolia and South Korea. We do not know, and the Minister will not tell us, whether we have a return and resettlement agreement with any of those countries because, as he told me earlier, these are secret agreements. What kind of arrangements do a Government enter into with another Government that would be secret? The only thing I can think is that the other Government have asked us to keep it secret, for reasons that the Minister will not divulge. But he is asking us to legislate and determine that they are safe countries.

There is an inconsistency with the Government’s position on Section 80B of the 2002 Act, which was amended by the Nationality and Borders Act 2022, over the definition of a “safe third state”. As amended, the 2002 Act is clear about what it is: a safe third state is to be judged with regard to what is relevant to the individual person. Section 80B(4) defines a safe third state, and Section 80B(4)(b) states that one of the characteristics of a safe state is that the person will not be sent to another state—refoulement. There is nothing in this Bill that will give protection to that individual.

In that same section, the refugee convention is specifically mentioned, both in subsection (4)(b)(i) and (4)(c), with regard to a criterion of safety for an individual. I regret very much that the noble Lord, Lord Wolfson of Tredegar, is not in his place. We had a constitutional law lecture at the start of Report on the duality of the system, and if I understood correctly, we should not impose requirements on Executives with regard to international conventions. The law—and the noble Lord, Lord Wolfson, was Justice Minister at the time of the 2022 Bill being taken through Parliament—states categorically that this is a requirement we have put in statute: other Executives have to be a member of the refugee convention or we will not send people to them. What kind of double standard is it that it is fine for us to insist on receiving countries adhering to the convention, but it would be fundamentally wrong for us to adhere to that same convention? This is a double standard we absolutely should not support.

I have leave from my colleagues to say that we on these Benches will strongly support Amendment 37 if the opinion of the House is tested. These aspects are fundamental to the Bill; they are about principle, but also practicalities and our standing in the world. Process of law is very important and we should protect it, and that is why these amendments should be supported.

[Lord Alton of Liverpool (CB)]

My Lords, like the noble Lord, Lord Purvis, I too strongly support Amendment 37 and will vote for it if the opinion of the House is tested. I would also like to support the remarks of my noble and learned friend Baroness Butler-Sloss, on behalf of the noble Lord, Lord Carlile, in moving those earlier amendments, particularly as they relate to safe countries.

My Amendment 21 would insert into Clause 5 the following:

“No person may be removed to a country listed in Schedule 1 if doing so would put that person at risk due to their protected characteristics as defined in section 4 of the Equality Act 2010”.


I raised this issue in Committee and I made a long speech, but I will not detain the House for long this evening. I especially cited the example of Nigeria and I do so again this evening, not least because I heard this morning of the case of Usman Buda, a Muslim, who was murdered in Sokoto state in north-west Nigeria in the last few days, because it was alleged—I repeat: alleged—that he had blasphemed. It is just over a year since the lynching of Deborah Emmanuel, a Christian, at Shehu Shagari College of Education, again following an unsubstantiated accusation of blasphemy. Nigeria is one of the 71 countries that criminalises blasphemy. It is worth remembering that this year is the 75th anniversary of the Universal Declaration of Human Rights, Article 18 of which insists that everyone has the right to believe, not to believe or to change their belief. That is why my amendment seeks to protect people who will be in danger if they are sent back to places like Nigeria because of their belief, non-belief or their desire to change belief.

When the Minister replies, will he say also how the Bill is compatible with Section 4 of the Equality Act 2010? Especially in light of what the noble Lord, Lord Purvis, said a moment ago about amendments affecting people because of their orientation, it is clearly in breach of that and of Article 18, for reasons of faith. That is enough on that subject for now. It is an issue we can return to later in our proceedings, when we come to not just safe countries but how we deal with people with these protected characteristics.

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[Lord Stewart of Dirleton (Con)]

I hope to be able to provide that reassurance. Again, with reference to the important point that the noble Lord takes up, which is fully appreciated by the Government Front Bench, I will refer to that in the course of my submission to your Lordships.

I repeat: if it was considered that there were exceptional circumstances, a person would not be removed to his home country. Coming as quickly as I may to the point just raised in an intervention by the noble Lord, Lord Cashman, the country to which they return would be a country considered to be a safe one. A person would not be removed to their home country but at the same time would not be removed to a country where they would be exposed to the same level of risk as they would by dint of their sexual orientation.

If we were to seek to remove a third country’s national to any of the countries listed under Schedule 1 and that country were prepared to admit them, those persons would have the opportunity to make a serious harm suspensive claim. Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Such an individual would not be removed to that country if their claim was accepted by the Home Office or upheld by the Upper Tribunal on appeal. So I submit respectfully to the House that the Bill already provides for individual assessments—the very individuality for which the noble Lord, Lord Purvis of Tweed, called in his powerful submission on these important matters. The Bill already provides for that degree of consideration of individual facts and circumstances for which the noble Lord, among others, has called. As such, I consider that Amendment 20, advanced by the noble Lord, Lord Purvis of Tweed, is unnecessary.

[Lord Purvis of Tweed (LD)]

The Minister might be able to help me. Where does the Bill outline the process for that individual review of the individual circumstances?

[Lord Stewart of Dirleton (Con)]

My Lords, in the making of the serious harm suspensive claim, those individual circumstances would be outlined.

[Lord Purvis of Tweed (LD)]

My Lords, the claim can be made only after the notice is provided, but the Minister just told us that there would be an individual process before the notice was provided. Is that correct?

[Lord Stewart of Dirleton (Con)]

My Lords, I do not think I did. The point I am making is that the serious harm suspensive claim in connection with Clause 38 makes it clear that persecution and onward refoulement are examples of harm that constitute serious and irreversible harm for the purposes of such a suspensive claim. Hence there is consideration of individual facts and circumstances.

On Amendments 19, 21, 24 to 28 and 37, I make an observation, namely that much in Clauses 5 and 6 and Schedule 1 draws on existing immigration law dating back some 20 years. To that extent, the provisions contained therein are not new; they provide necessary clarity as to the country to which a person may be removed.

As regards the consideration of the status of countries as places to which persons can be removed safely and which are on the safe list, that list has been added to over the years. It is instructive that some of the countries added to the safe list in terms of the Nationality, Immigration and Asylum Act 2002 were added during the period when the party opposite was in power: in 2003 Albania and Brazil; in 2005 India, Ghana for men and Nigeria for men; in 2007 Gambia for men, Kenya for men, Malawi for men, Mali for men, Mauritius, Montenegro and Sierra Leone for men—I merely exemplify. I reiterate that these are not novel provisions. They provide the necessary clarity as to the country to which a person may be removed.

The noble Lord, Lord Alton of Liverpool, raised a matter concerning the nature of the—

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[Lord Stewart of Dirleton (Con)]

My Lords, I suspect that nothing I could say from the Dispatch Box will alter the fixed purpose of the noble and learned Lord in any event, but I do repeat my undertaking to write to him on the topic.

I was about to address the matter raised by the noble Lord, Lord Purvis of Tweed, in relation to secret agreements. The Government must retain, I submit, the ultimate discretion over the amount and detail of any information shared with Parliament, but the Government remain committed to principles of transparency and positive engagement. This is considered on a case-by-case basis, finding a balance proportionate to the level of public interest.

[Lord Purvis of Tweed (LD)]

If that is the case, by definition, these agreements will not be treaties, and these agreements will not have gone through the CRaG process, and therefore they will not be binding.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat the point. The Government retain discretion to enter into agreements and discretion in relation to the level of detail to be shared.

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[Lord Stewart of Dirleton (Con)]

In setting the benchmark for countries that are safe for persons to be sent to, the Government are looking at it from the point of view of the objectives of the Bill. We are not looking at it from the point of view of British citizens travelling abroad.

The Bill already includes adequate safeguards to protect those in fear of persecution based on their sexual orientation, gender identity or other protected characteristics, or those who are fearful of onward refoulement. I say again that these amendments are unnecessary, and therefore invite the noble Lord, Lord Carlile, to withdraw Amendment 19. Although we will not be voting tonight, for reasons explained, I urge the noble and learned Lord and other noble Lords—

[Lord Purvis of Tweed (LD)]

Can the Minister give clarification on the point I raised that he has not replied to—the interaction not with Section 80AA of the Nationality, Immigration and Asylum Act 2002, which will be amended by this Bill, but with the definitions of a safe third state under Section 80B of that Act? How will they interact? The asylum claims by persons with a connection to a safe state has the definition, as I referred to, of a safe third state under the 2002 Act. That is not being amended by this Bill. The definition of a safe third state in the 2002 Act, which will still be on the statute book, unamended by this Bill, states that the safety is defined if they will receive protection in accordance with the refugee convention. How will they interact? We have the 2002 Act still on the statute book, where a state that is not a signatory to the refugee convention is defined as a non-safe state, but, as the Minister has told us, under this Bill the same is not being applied.

[Lord Stewart of Dirleton (Con)]

My Lords, as I stated at the outset, the position is that the provisions for the ability of people to bring applications for serious harm suspensive claims allow for scrutiny of the safety of any location to which a person would be sent.

I was on the point of saying that, although we will not be voting this evening, I none the less urge the noble and learned Lord, Lord Etherton, and other noble Lords not to press their amendments.