Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this part of the Bill has a very simple purpose: it is designed by the Government to make life harder for refugees. The two-tier refugee system is designed to give the illusion of there being a proper way of being a refugee, but it will inflict huge suffering and injustice on desperate people.

It is probably not the normal tactic to plan what we are going to do next in front of the Government Front Bench, but although I applaud the intentions of noble Lords who tabled the 16 amendments to the clause, the only way is to take it out of the Bill. It is so vile, so obnoxious, that it really should not be in here.

This has not been mentioned very much but we must remember that, to some extent, we have a moral duty to take refugees. A lot of these refugees are coming from countries we have invaded, or where we have interfered or done all sorts of things, whether it is burning too much fossil fuel, causing climate change, or destabilising their Governments. Please can we remember that there is a moral duty? It is all very well referring to population density and so on, but we owe these people and we should never forget that.

[Lord Rosser (Lab)]

My Lords, I shall resist the temptation to offer a view on what public opinion is. What I do remember is that a lot of people expressed a view on what public opinion was over climate protesters and people who threw statues into the water at Bristol, but when cases came up before a jury, they reached some very interesting decisions on guilt or otherwise. That suggests that some of those who profess to know what public opinion is may not necessarily be right when the public have a chance to hear the arguments presented to them and are then asked to make a decision.

Clause 11 is about differential treatment of recognised refugees and its impact and implications. We believe that it contravenes the 1951 refugee convention. It sets a dangerous precedent by creating a two-tier system for refugees, and it is also inhumane. Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim—contrary to the 1951 refugee convention, of which Britain was a founding member.

Under the clause, only those refugees who meet specific additional requirements will be considered group 1 refugees and benefit from the rights currently granted to all refugees by the refugee convention. Other refugees who are not deemed to meet those criteria will be designated as group 2 refugees, and the Secretary of State will be empowered to draft rules discriminating against group 2 refugees with regard to the rights to which they are entitled under the refugee convention, as well as their fundamental right to family unity. The different ways in which those two groups could be treated is not limited in any way by the Bill. Clause 11 does, however, provide examples of ways in which the two groups might be treated differently, even though they are nearly all recognised as genuine refugees. Those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees. The clause goes on to set out how the length of limited leave, access to indefinite leave, family reunion —that is, whether family members, mainly women and children, are entitled to join them—and access to public funds are likely to become areas for discrimination against group 2 refugees.

The government policy paper, the New Plan for Immigration, proposed that instead of fully fledged refugee status, group 2 refugees will be granted “temporary protection” for a period of no longer than 30 months,

“after which individuals will be reassessed for return to their country of origin or removal to”

a safe third country. Temporary protection status

“will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution”—

in other words, a state, deliberately created, of complete uncertainty over their future for group 2 refugees.

Clause 11 would therefore make a significant and unprecedented change in the law, resulting in the UK treating accepted refugees less generously, based on the journey they have taken to reach the UK and the timeliness of their asylum claim. This attempt to create two different classes of recognised refugee is surely inconsistent with the refugee convention and has no basis in international law. The refugee convention, which was enshrined in UK law in 1954, contains a single unitary definition of “refugee”. It defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition and is not excluded is a refugee and entitled to the protection of the refugee convention.

The Commons committee considering the Bill heard in evidence from the United Nations High Commissioner for Refugees’ representative to the UK that this clause and the Bill were inconsistent with the UN convention and international law. If the Government disagree with that—an issue raised by my noble friend Lady Lister —no doubt they will spell out in some detail in their reply their legal argument for saying that the clause does comply with the convention and international law.

This is, however, not just a matter of law but of fairness and humanity. By penalising refugees for how they were able to get to the UK, the Bill builds walls against people in need of protection and shuts the door on many seeking a safe haven. Most refugees have absolutely no choice about how they travel. Is it really this Government’s intention and desire to penalise refugees who may, for example, as a matter of urgency, have had to find an irregular route out of Afghanistan? Are the Government saying that people are less deserving if they have had to take a dangerous route to our shores? Is an interpreter from Afghanistan who took a dangerous journey to our shores less deserving than a refugee who was lucky enough to make it here on one of the flights out of the country?

The Government acknowledge that such journeys are very dangerous and sometimes fatal, yet they do not seem to appreciate the compulsion—that the alternative of not doing so is even worse—which drives people to make such journeys. If people truly had a reason to believe that they would be safe where they are, they would not make the journey. Simply making the journey more dangerous or the asylum system more unwelcoming will not change that. Of the first 5,000 people who came in 2020 by boat, well over 90% were deemed by the Home Office to be eligible to apply for asylum: they were genuine asylum seekers. They were not here illegally—but they will become illegal if the Bill is enacted.

Penalising people for how they arrived in the UK has particular implications for already vulnerable groups of refugees such as women and those from LGBT communities. Women are often compelled to take irregular routes to reach safety, as we see only too clearly in Afghanistan. There are simply no safe and legal routes. Under the proposed changes, however, women who arrive irregularly, including through a safe third country, will be penalised and could be prosecuted, criminalised and imprisoned. The same obstacles will apply to those from LGBT communities.

Unless the Government can provide safe routes, penalising people for making unsafe journeys is simply inhumane, although, even then, not everyone would have the time or ability to access a safe route, even if one existed. By not providing safe routes, the Government are also fuelling the business model of the people smugglers they claim their proposals will destroy, and then penalising the victims they have had a responsibility for creating. The Conservative-led Foreign Affairs Committee, of which the Home Secretary was then a member, warned in 2019:

“A policy that focuses exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups”.


The Government’s impact assessment warns that increased deterrence in this manner

“could encourage these cohorts to attempt riskier means of entering the UK.”

As has been said, Clause 11 also says that group 1 refugees must have

“come to the United Kingdom directly from a country or territory where their life or freedom was threatened”.

In other words, the Government are setting an expectation that, to be recognised as a refugee supposedly deserving of the support usually afforded, the UK must be the first safe country in which they have sought asylum. Commenting on the Bill, the United Nations High Commissioner for Refugees said:

“Requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian, and cooperative principles on which the refugee system is founded.”


It was pointed out in oral evidence to the Joint Committee on Human Rights that it was unlikely that

“any country close to the main countries of origin of refugees would have ever considered signing a convention if that meant that they would assume total and entire responsibility for all the refugees.”

In addition, when the refugee convention came into being in the early 1950s, there was little or no commercial air travel, so any refugee reaching this country would have to have crossed land borders from safe states. Yet there was no view then that such a refugee should be seen—as under this Bill and the Government’s interpretation of the refugee convention in international law—as a criminal liable to up to four years in prison and to being sent back to France, and with any claim for asylum being regarded as inadmissible.

Even within Europe, most of the countries that refugees pass through on their way to the UK already host significantly more refugees and asylum seekers per population than the UK does. According to the Home Office’s own statistics, the UK is 17th in terms of the numbers it takes, measured per head of population. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the United Kingdom.

As it is, France takes three times more asylum seekers than the UK, as does Germany. Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. As my noble friends Lord Griffiths of Burry Port and Lord Coaker have pointed out, most refugees are hosted in developing countries and the UK receives fewer asylum applications than most other European countries. Under international law, the primary responsibility for identifying refugees and affording international protection rests with the state in which an asylum seeker arrives and seeks that protection.

Clause 11 sets out a non-exhaustive list of the ways in which refugees who arrive irregularly and become group 2 refugees may be treated differently. The Explanatory Notes to the Bill state that the purpose of this is

“to discourage asylum seekers from travelling to the UK”,

and to encourage

“individuals to seek asylum in the first safe country they reach after fleeing persecution.”

It is not clear, since the Government have provided no explanation, how the stated aim will result from the policy; perhaps the Government in their response will provide that explanation.

Evidence from many refugee organisations suggests that refugees seek asylum in the UK for a range of reasons, such as proficiency in English, family links or a common heritage based on past colonial histories. In addition, refugees do not cite the level of leave granted or other elements of the asylum system as decisive factors. The Home Office’s own study from 2002—I do not think there has been one since then—noted that there was little evidence that respondents seeking to come to the UK had a detailed knowledge of UK asylum procedures, benefit entitlements or the availability of work in the UK. There was even less evidence that the respondents had a comparative knowledge of how these conditions varied between different European destination countries.

Given that individuals have little knowledge of the asylum systems of the countries they end up in, it is not clear that differential treatment will dissuade individuals from coming to the UK via safe countries. However, what the Government are proposing will certainly result in a refugee population that is less secure, and it will punish those who have been recognised through the legal system as needing international protection, such as women and girls fleeing the Taliban or Uighurs fleeing genocide in China.

The Explanatory Notes also state that 62% of asylum claims in the UK up to September 2019 were from people who entered irregularly. This means that the policy intention is to impose strictures on the rights and entitlements of the majority of refugees coming to the UK, even though we take fewer than comparable countries. Those penalties would target not just those who have entered the UK irregularly or have made dangerous journeys but all those who have not come directly to the UK, regularly or irregularly, from a country or territory where their life or freedom was threatened, those who have delayed claiming asylum or overstayed, and even those who arrive in the UK without entry clearance and who claim asylum immediately.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, noble Lords have repeatedly talked about undermining family reunion. I confirm to the noble Baroness, and for Hansard, so that noble Lords do not come back at me again and again to make this point, that group 2 refugees will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion, compatible with the ECHR. Most importantly, they will be provided with protection against refoulement. I make that point again: group 2 refugees will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion. I hope noble Lords will not come back to that point—well, they will do so, but I have made my point, I hope.

If I can, I will continue on the generosity of the great British public and this Government. Over 88,000 BNO status holders and their family members—almost 90,000, as my noble friend said—have chosen to apply for the BNO route, with over 76,000 granted it so far. Meanwhile, we led Europe in airlifting some 15,000 people out of Afghanistan to the UK from mid-August under Operation Pitting. If any noble Lord wants to stand up and say we were not generous in that situation, I beg them to do that now. That is over and above the earlier transfers of around 2,000 locally employed staff and their families under the Afghan relocations and assistance policy. Our new Afghan citizens resettlement scheme also aims to welcome a total of 20,000 people. These people, who noble Lords were talking about earlier, are the most vulnerable people in the world today and our generosity has been exemplary.

[Lord Rosser (Lab)]

Can I just clarify a point? The Minister has said it is not true that family reunion rights are going to be restricted. But as I understand it, the Government’s New Plan for Immigration did give a detailed indication of what different treatment might look like for group 2 refugees. I am perfectly willing to stand corrected if what I am saying is wrong, but as I understand it, the New Plan for Immigration said, in relation to group 2 refugees who will be granted temporary protection:

“Temporary protection status will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution.”


Is that quote from the Government’s new plan wrong? In other words, is it not correct that family reunion rights will be restricted?

[Baroness Williams of Trafford]

It is not correct to say that family reunion rights will be restricted for group 2 refugees. They will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion. If someone, be they a group 1 or group 2 refugee, is deemed a refugee, they will be afforded family reunion rights compatible with the ECHR.

[Lord Rosser (Lab)]

My Lords, I—

[Baroness Williams of Trafford]

Can I just carry on? I will then of course allow an intervention from the noble Lord; he is always courteous to me.

I want to further reassure the noble Baroness that, even where a refugee or a family member is a group 2 refugee, “reasonable discretion” will be exercised with respect to the determination of differentiated entitlements. We have built this notion into current drafting by ensuring that the determination of whether a refugee is in group 1 or group 2 will depend on whether they could have been reasonably expected to claim asylum in another safe country, and their asylum claim in the UK was made as soon as is reasonably practicable. Our view is that these standards provide adequate discretion to take into account particular facts of an individual case when determining tiering and therefore whether they are granted differentiated entitlements. Would the noble Lord like to intervene now?

[Lord Rosser (Lab)]

I would because I am getting thoroughly confused, which is something I perhaps do quite frequently, I accept. I will read out again from the JCHR report. It says:

“The policy paper that preceded the Bill, the Government’s ‘New Plan for Immigration’, gave a more detailed indication of what different treatment may look like, as it proposed that instead of fully fledged refugee status, Group 2 refugees would be granted ‘temporary protection’ for a period of no longer than 30 months ‘after which individuals [would] be reassessed for return to their country of origin or removal to a safe third country.’ Temporary protection status ‘will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution.’”


Those are quotations from the Government’s New Plan for Immigration policy statement. In relation to group 2 refugees, who are being created by Clause 11 —that is the new bit and what the Bill is doing—it quite clearly states:

“family reunion rights will be restricted”.

I ask again: is that correct or incorrect? If it is not, why is it written in the JCHR report? If the Minister is going to tell me that the JCHR has got it wrong, please say so clearly now.

[Baroness Ludford (LD)]

Before the noble Baroness responds, I add that I do not think that the noble Lord, Lord Rosser, is confused: I fear that the Minister is being mildly disingenuous with us. Can she confirm that there is a difference in the intended treatment of group 1 and group 2 refugees as concerns family reunion? Otherwise, what is the point of Clause 11(6):

“The Secretary of State or an immigration officer may … treat the family members of Group 1 and Group 2 refugees differently, for example in respect of … whether to give the person leave to enter or remain”


et cetera? What is the point of this being in the Bill if there is no intention to treat group 2 refugees differently? The Minister told us about how this will not breach the refugee convention and so on. I asked specifically about the comments on Article 8, and I look forward to her replying specifically on that. But can she confirm whether their intention is to treat group 1 and group 2 refugees differently in terms of rights to family reunion?