Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, this Bill sets out a duty on the Secretary of State to make arrangements for the removal of a person who has arrived in or entered the UK illegally and satisfies the four conditions set out in Clause 2. In the majority of cases, formal returns agreements are not required in order to carry out removals. Most countries co-operate with returns, and these relationships are managed through official-led engagement with immigration counterparts in receiving countries and through consular services based in the UK. Returns agreements can be a useful tool to solidify or improve returns co-operation and are sometimes requested by the receiving country. We carefully consider whether it is beneficial to enter into negotiations to formalise a returns relationship, having regard to the potential requests that the other side would seek to incorporate into an agreement, such as a liberalisation of the UK visa requirements in respect of their nationals.

As of May 2023, the Home Office has 16 returns agreements in place. Recent additions to the list include Albania, India, Nigeria and Pakistan. Just last week, the Prime Minister announced the start of negotiations on a new returns agreement with Moldova. A number of these agreements are sensitive, and receiving countries might withdraw co-operation if they are publicised, so it would be detrimental to formalise and publish all such agreements. There are also some countries where the existing security and country situation might prevent returns taking place, such as Sudan and Afghanistan. We continue to monitor the situation closely in those countries with a view to resuming enforced returns as soon as is practicable and safe.

I should add that, while returns agreements have a valuable role to play, they are not silver bullets. The noble Lord, Lord Coaker, has, in terms, accused this Government of ripping up the Dublin convention, but may I just remind the noble Lord that the UK was a net recipient of migrants under the Dublin scheme? As my honourable friend Tim Loughton said in the other place:

“In the last year that we were covered by the Dublin convention, before the pandemic struck, we applied to the EU for 8,500 returns under that returns agreement and only 105 were granted—that is 1.2%—so what he says is complete nonsense. It did not work when we were in the EU, and he is now expecting to magic up some agreement that the EU will not give us anyway”.—[Official Report, Commons, 26/4/23, col. 792.]


Mr Loughton was, at that time, intervening on the speech of Stephen Kinnock in the other place.

In addition to the returns agreements, we also have our world-leading migration and economic development partnership with Rwanda. I remind the House that there is no limit on the numbers that can be relocated to Rwanda under the partnership agreement.

The noble Lord, Lord Coaker, cited various figures, including in relation to the current asylum backlog. I remind noble Lords that, under Clause 4, any asylum claims made by persons who meet the conditions in Clause 2 are to be declared inadmissible. It is, of course, important to deal with the current backlog. The Prime Minister announced today that the initial decision legacy backlog is down by over 17,000, but there is no correlation between these legacy cases and the cohort to be removed under the Bill.

The noble Lord, Lord Kerr, asked about the impact assessment for the Bill. We have already published the equality impact assessment, and we will publish an economic impact assessment in due course. Noble Lords will have to wait patiently for the economic impact assessment. In the interim, I do not propose to comment on impact assessments issued by NGOs or leaks in the media.

[Lord Scriven (LD)]

I have a very important question. The noble Lord and government Ministers keep saying from the Dispatch Box, here and in the other place, that certain things will happen if the Bill goes through. Has the Home Office actually completed an impact assessment which clarifies exactly what the Minister is saying?

[Lord Murray of Blidworth (Con)]

Certain things will happen when the Bill goes through; the system described within it will take effect. I assure the noble Lord that this is something that the Home Office expects to happen—that is, that returns will be effected in accordance with the duty imposed on the Secretary of State.

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[Lord Scriven (LD)]

Regardless of when the impact assessment will be published, the Minister keeps restating issues as fact. I therefore ask: have those facts been determined by a completed impact assessment that he and his colleagues have seen and signed off?

[Lord Murray of Blidworth (Con)]

I am afraid I cannot do more than say that the impact assessment will be published in due course.

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[Lord Touhig (Lab)]

My Lords, I had not intended to speak in this debate when I came into the Chamber this afternoon, but I heard the opening remarks of the noble Baroness, Lady Meacher—a powerful beginning to this debate—who spoke about the accommodation provided now for unaccompanied migrant children. I was further motivated to take part having listened to the speech of the noble Lord, Lord Alton, in which he referred to these same matters.

Since 2021, 4,500 unaccompanied migrant children have been placed in hotels, some as young as 10. Some 200 have gone missing and have not been found. In Britain, when a child goes missing, does it not affect all of us? Is it not the first item on the nine o’clock news and on the front page of every newspaper? However, 200 of these children have gone missing and have not been found again. A recent whistleblower who worked at the Home Office-run hotel in Brighton highlighted the harm that he saw these children facing. He said they were being picked up in the streets, presumably by traffickers, and have not been found again. He said that there were reports that the children had been subjected to emotional abuse and degrading treatment by the staff in the hotels.

Section 20 of the Children Act 1989 gives local authorities—and them alone—statutory protection powers for children. I have been asking for some time by what power the Government put these children in hotels, ignoring Section 20, and what Act of Parliament gives them that power. I have asked a number of Oral Questions and four or five Written Questions. In my latest one I asked His Majesty’s Government

“under which legal provision the Home Office has assumed child protection powers for unaccompanied migrant children”.

The Minister did me the courtesy of replying:

“We expect local authorities to meet their statutory obligations to children from the date they arrive in the UK. The best place for these young people is and will remain within a local authority care placement”.


On that, we are in total agreement. He went on:

“The Home Office is not currently in the position of corporate parent to any unaccompanied child”.


My question is simple. By what Act of Parliament—by what power—do the Government ignore Section 20, place these vulnerable children in hotels and leave them? Two hundred have gone missing. Shame on us.

[Lord Scriven (LD)]

My Lords, I want to show the importance of impact assessments. This goes back slightly to the discussion we were having under the last group of amendments, because only one impact assessment for the Bill has been delivered: the equality impact assessment, which talks about age. That is why I support many amendments in this grouping, particularly those in the name of the noble Baroness, Lady Meacher.

Once you read the equality impact assessment, it starts giving you a real indication of what the Government’s thinking is for putting children—whether unaccompanied or with families—into this Bill and the impact they believe it is going to have. The first issue, they say, is that it is not direct discrimination against these young people; they call it indirect discrimination. It is quite direct when you are not allowed to stay in the country; it is quite direct when you are going to be detained at the will of the Home Secretary; and it seems quite direct that when you get to the age of 18 you are going to be told to go, never come back and never claim British citizenship. That does not seem like indirect discrimination; it seems very direct.

The equality impact assessment says:

“Any differential impact on these age groups is the result of a person’s conduct and is justified and proportionate in order to achieve the legitimate aims of controlling migration and reducing crime”.


The aim of putting children in is to cut not just migration but crime, which is quite interesting, because on 27 April I asked a Written Question:

“To ask His Majesty's Government, for each police force in each of the last two years, how many crimes were committed by people who arrived by small boat crossings; and for each police force, what percentage of total crimes committed that figure represents”.


Based on the Government’s equality impact assessment, they will have those figures, because it is going to reduce crime. The answer I got from the noble Lord, Lord Sharpe of Epsom, was:

“The Home Office collects and publishes information on the number of crimes recorded by the police in England and Wales. This information can be accessed here: https://www.gov.uk/government/statistics/police-recorded-crime-open-data-tables. The Home Office does not hold information on perpetrators of crime who have arrived by small boat crossings”.


There is no evidence. I ask the Minister: what evidence do the Government have that including children, either accompanied or unaccompanied, will reduce the crime rate in the UK and by what percentage? It is in their equality impact assessment, so surely the Government have figures for that, otherwise it is just untrue—it is absolutely false.

The great and fascinating thing about this equality impact assessment is that it says: “The Department’s view”—not its evidence or empirical studies, but its “view”—

“is that the Bill should”—

not will but “should”—

“have a deterrent effect which can”—

not will or must, but “can”—

“result in fewer unaccompanied children arriving in the UK by dangerous and unlawful means”.

That is a nice sentence. There is no evidence; there is no study; there are no figures. It is a statement. I did some research, and I am very pleased that the Refugee and Migrant Children’s Consortium has also done some, because the only significant research I can see was done in 2018 by the UNHCR, which was called Destination Anywhere. It was a review on the reasons why unaccompanied children choose the UK. I use the word “choose” inadvertently. The evidence does not support the Government’s assumption—this equality impact assessment is an assumption, not fact, as the words show—that an effective ban on asylum claims for children will stop children travelling regularly to the UK.

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[Lord Murray of Blidworth (Con)]

My Lords, Clause 3 sets out the power to remove unaccompanied children. This power will be exercised only in very limited circumstances ahead of an individual reaching adulthood. As the noble Lord, Lord Coaker, outlined, these include: reunion with the child’s parent; where the person is to be removed to a safe country of origin; where the person has not made a protection or human rights claim; or in other circumstances specified in regulations. If an unaccompanied child arrives in the UK illegally from a safe country of origin, they may be returned to their country of origin before they are 18. Of course, any such decision would be taken on a case-by-case basis.

I reassure the Committee that officials and Ministers take these decisions very seriously, with due concern for the sensitivities that have rightly been outlined by the Committee. But we need also to have in mind the profile of those who come on small boats. For context, I remind the Committee that—

[Lord Scriven (LD)]

My Lords—

[Lord Murray of Blidworth (Con)]

Perhaps I can take the noble Lord’s question in just a moment. For context, I remind the Committee that the majority of unaccompanied children who claimed asylum in the UK in 2022 were aged 16 or 17. Where there is a dispute about age, half are found to be adults.

[Lord Scriven (LD)]

I hope the Minister will stop this characterisation of the effects of this Bill as being just on those who arrive by small boats. He just did it again then. Is it not the case that this affects everybody, regardless of how they get here? It is not just small boats.

[Lord Murray of Blidworth (Con)]

Clearly, this Bill affects every person who falls within the four categories described in Clause 2, and that is all people who enter by any illegal method. Of course, at the moment, as we know, the majority of such entry is effected by small boats.

For any unaccompanied child who is removed while under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to. It is not simply a case of putting them on a plane back whence they came.

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[Lord Scriven (LD)]

In trying to answer my question, the Minister just reiterated what it says in the equality impact assessment. It was an important question. If the central tenet of the Bill is that children—accompanied or unaccompanied—not being given any dispensation will act as a deterrent, where is the evidence for that? In answering, the Minister said that this was the view of the department. Well it is the view of some children that the tooth fairy exists but, looking at the empirical evidence, it is quite clear that this may not be so. My question is clear: on what empirical evidence is the view of the department built, and when will this House get to see that evidence?

[Lord Murray of Blidworth (Con)]

It is a fairly standard rhetorical tool to ask where the evidence is but in this kind of field we have to operate looking forwards as to what might happen as a consequence of legislation, applying our own experience, and particularly that of the department in administering the UK border. It is the department, I would suggest, that is in a position to come to a view on these matters. It is not simply a case of some unqualified person reaching that assessment. The net effect is that it is the opinion of the department—

[Lord Murray of Blidworth (Con)]

It is the opinion of the department that a person would not pay a people smuggler to cross the channel if they were going to be detained and removed. It stands to reason, whatever the noble Baroness, Lady Jones, might shout from a sedentary position.

[Lord Scriven (LD)]

So the Minister agrees that this is not just about small boats; this is about the whole refugee and immigration system. Where is the evidence that the provisions in this Bill will meet the central issue that the Government wish to address and act as a deterrent to children, whether accompanied or unaccompanied. Where is the evidence?

[Lord Murray of Blidworth (Con)]

Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball. We can make reasonable conjectures about the effect of these measures, and that is what we have done.

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[Lord Murray of Blidworth (Con)]

That is not the case. Much as we might wish it to be, the simple reality, I am afraid, is that our modern slavery protections are being abused. The measures in the Bill directly address that.

[Lord Scriven (LD)]

If they are being abused, what is the percentage success rate of people who were referred in the last two years?

[Lord Murray of Blidworth (Con)]

I am afraid that I do not have those statistics to hand, but I can write—

[Lord Scriven (LD)]

I can help the Minister. I think it is 82% and 91%, on average. The issue is therefore that, once these cases have been looked at, the Home Office is granting people asylum based on them being part of the modern slavery system.

[Lord Murray of Blidworth (Con)]

The noble Lord will be aware that there are two stages to the process—a reasonable grounds decision and a conclusive grounds decision—and different statistics. A light touch has hitherto been applied in relation to reasonable grounds. I will need to look into the precise statistics and revert to him on that. I am afraid I do not recognise those statistics immediately, so they will require further research.

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[Baroness Butler-Sloss (CB)]

I cannot remember the exact numbers, but if the noble Lord looks at it the conclusive grounds is the number which matters, and that is extremely high.

[Lord Scriven (LD)]

When the Minister replies to me, can he ensure that a copy goes to the Library, please?

Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of Amendment 53 tabled by the noble and learned Lord, Lord Etherton, and moved by the noble Lord, Lord Carlile of Berriew, also signed by the noble Lord, Lord Anderson of Ipswich. While I support everything said so far, I wish to draw the Committee’s attention to this amendment in particular and its constitutional importance, given the constitutional conceit of this whole Bill.

If I have said it before, I hope the Committee will forgive me: the conceit of this Bill is for the Secretary of State, via primary legislation, to tie her own hands and give herself a duty to do something that we believe to be unlawful. The reason for tying her own hands is to avoid the interference of the courts. That is, in essence, the conceit at the heart of the Bill. It goes a little further. The Home Secretary is tying her hands with a duty to remove people to a list of countries, but it is a list that she may add to. Now we are very permissive and the hands have become untied in a fairly fluid way when it comes to adding further countries to this list of supposedly safe countries in Schedule 1.

The contents of Schedule 1 therefore become quite important, hence the various submissions that are being made and the various amendments that are being tabled in Committee about this country or that country, not just as they are at this moment but, in a very difficult world in flux, regarding what may or may not happen in them in the future. The present Home Secretary, and Home Secretaries of whatever stripe of Government in the future, will have this duty to remove people to countries on a list which they may add to by secondary legislation. Therefore, the factors that they must consider as Home Secretary when adding to that list are incredibly important. I hope that the Committee agrees.

The factors for deciding whether a country is safe to add to the list are in Clause 6, particularly Clause 6(4), for those who can still pick up a Bill at this time of night:

“In deciding whether the statements in subsection (1)(a) and (b) are true … the Secretary of State … must have regard to all the circumstances of the country”.


Well, of course. That is a bit of a non-protection, because we would hope so, would we not? Secondly, the Secretary of State

“must have regard to information from any appropriate source (including member States and international organisations)”.

With respect, that is not enough. Therefore, it is worth being explicit about what has been done in Amendment 53, tabled by the noble learned Lord, Lord Etherton, and supported ably by the noble Lord, Lord Carlile of Berriew, which I support. They have beefed up that second limb, so that it is not just having regard to appropriate information. What does “appropriate information” mean—appropriate information as determined by the Secretary of State in this beautifully circular process? Instead, the Secretary of State must

“apply relevant decisions of courts and tribunals operating in the United Kingdom”.

There is a radical suggestion. The Secretary of State must have regard for the law and apply the law of the United Kingdom—the case law of our courts in this country—about the safety or otherwise of these countries that might otherwise be added to the list of the countries to which the Secretary of State will have a duty to remove people.

I almost choke on my words that this has to be put in law, but we are in a place of such disregard for our domestic courts. Therefore, the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Carlile of Berriew, were quite right to insist at the very least that this should be clear in the legislation before a future Secretary of State can add further to this schedule of countries to which people must be removed by current and future Secretaries of State.

Perhaps more controversially—not for the Minister currently sitting opposite but to others, although I hope not—in addition to applying the law of this United Kingdom, as has become our custom as good members of the Council of Europe and under the Human Rights Act, the Secretary of State, before adding countries to this list, must

“have regard to decisions of the European Court of Human Rights”,

so please do not add further countries to this duty to remove unless you have applied the law of this land and had regard to the European Court of Human Rights. The Minister is a distinguished former judge. He is unique in this Committee and on the Benches opposite as an international lawyer, as opposed to being just any old lawyer, like me. Like the noble Lord, Lord Carlile of Berriew, I hope that he will see the good sense in the amendment tabled by the noble and learned Lord, Lord Etherton.

[Lord Scriven (LD)]

My Lords, I was not going to intervene in this particular group of amendments but, seeing that the two Front Benchers have agreed we are going to stay until 10.40 pm, and as I believe we should not be rushing through groups, I will add my bit to scrutinising the Government’s thinking on these particular amendments.

I have done a lot of work with groups in the UK who work with individuals who have sought asylum because of their sexuality, sexual orientation or gender identity. It is not a straightforward assumption that people come here and the first thing they do is claim asylum on the basis of their sexuality or gender identity. They have lived in countries where to trust the authorities with personal information about your sexual orientation or gender identity would mean either jail, persecution, discrimination or in some cases death.

So when a lot of people come here who are claiming asylum or wish to claim asylum on the basis of their sexual orientation or gender identity, they tend not to tell the authorities to start with. They tend to keep it private and very much to themselves. It is through a process of working with a number of non-government organisations and gaining trust during the interview process for asylum that, maybe on the fourth, fifth or sixth intervention with an official in the UK, they may start to open up. That is when many individuals who are claiming asylum as part of the LGBTQ+ community start to open up. They are secretive and they do not trust authority to start with.

This Bill gives them absolutely no way to explain why they are claiming asylum before the Government, under this Bill, make a decision that they could go to a country where they are in as much or more danger as in the country they have just come from in terms of their sexual orientation or gender identity. I am not clear how the Government come to the view that certain people, particularly gay males, transgender people, or people who are struggling with gender identity issues, are going to be able to go to a country of safe haven under the provisions of this Bill. If somebody is fleeing a country because of their sexual orientation or gender identity, they will maybe go to Gambia or Ghana or Jamaica. One only has to look at the Government’s own website to see travel advice that makes it very clear that these are not countries that you as an LGBT person should go to and be open, even if you are a tourist. The words that come out are “conservative” and “reserved”: “attacks” occasionally appear. So I just wonder how the Government have come up with this schedule, particularly with the process that a lot of individuals go through in terms of claiming asylum for sexual orientation or gender identity, knowing that it tends not to be something that is divulged instantly on the first interview, and then saying that people can go to countries, as I have suggested, and be safe. How would they know they are not sending somebody to a country where they are not safe?

I will move on slightly, because I was quite intrigued by the Government’s website on travel advice. With quite a lot of these countries, the Government’s own advice is that some of them are quite violent, with “express kidnappings” referred to in certain countries. If noble Lords do not know what an express kidnappings is, because I did not, it is literally that somebody will come, be able to determine that you are not from that country, assume that you are a foreign national, kidnap you instantly off the street, and then determine who your relatives are and where you have come from, and use you as a potential source of income, including potentially injuring you and in some cases killing you. On the Government’s website, with some of the countries on this Schedule 1, express kidnappings are there.

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[Lord Bellamy (Con)]

I suppose that the direct answer is that one would have to negotiate an appropriate agreement with the country concerned. I agree that that may not be enough, and the situation may well be such that it is not appropriate to designate a part of the country. All I am saying is that one should have this power; I am not necessarily saying the circumstances in which one should exercise it. It would still be open to an individual, in a suspensive claim, to say, “I’m still at risk because I might be transferred to the part of the country where it would be too dangerous for me to be sent”. That would be part of the analysis that the tribunal seized of the case would have to make.

[Lord Scriven (LD)]

I appreciate that the Minister said that, therefore, a negotiation may have to be done on not sending someone to part of a country. How would the British Government and the Home Office then monitor that to ensure that the host country kept to the agreement and that people were not moved to the part of the country that was deemed unsafe?

[Lord Bellamy (Con)]

The Government would have to monitor it as best one could, and, if it turns out that an arrangement is not satisfactory, it probably may not be a good idea to designate that part of the country as safe in the first place. All I am saying is let us not deprive ourselves of the opportunity to have this flexibility. We can work it out as we go forward.

What I should come to now are Amendments 35, 36, 41 to 52 and 54 in the name of the noble and learned Lord, Lord Etherton, so ably developed by the noble Lord, Lord Carlile, and spoken to by others. In essence, they seek to amend either Clause 5 or the references to various countries listed in the schedule on the basis that certain individuals would have a well-founded fear of persecution and that we should therefore now declare in statute which these countries are and on what basis people should not be sent back to them. In general terms, the Government’s view is that it is not desirable to enshrine in statute descriptions of which countries are safe or not, or of particular groups of individuals or those with protected characteristics. The route—

[Lord Scriven (LD)]

My Lords—

[Lord Bellamy (Con)]

I will finish my train of thought and then give way. The noble Lord, Lord Coaker, rightly asked about the route for the protection of the individual. If there is a removal notice to a country in question, and if they have a well-founded fear of persecution and would be at real risk of serious and irreversible harm if removed to that country, they have a right to make a suspensive claim—a claim of suspensive harm—and that claim is then appealed to the Upper Tribunal. That is their individual protection in which their individual circumstances are closely considered, including in a judicial process. That is the essential protection.

I also clarify that, if you read the Bill with care, you will see that people cannot be sent back to a country unless we are satisfied that the country is prepared to accept them. In practical terms, that will include Rwanda at the moment and other countries in the future, with which we might be able to form immigration partnerships. However, that is a precondition that does not necessarily apply to many of the countries listed in the schedule.

[Lord Scriven (LD)]

First, following on from what the Minister said at the beginning of the answer he has just given, when he said that the Government do not feel that it is appropriate to list characteristics of individuals in the Bill, I ask him: why in Schedule 1 are there, on eight occasions, a description of an individual in the list of countries for men only? They are deemed not safe for women; therefore, the Government have described certain groups of individuals by a characteristic.

Secondly, and very importantly, the point I raised—which the Minister may be coming to, based on his last answer—was that most people who claim asylum on LGBT, sexual orientation or gender identity grounds tend not to start with that. Therefore, it would be completely missed if there were not people supporting them to be able to go through a normal process. In some cases, it takes five or six attempts before that person will claim asylum on their own characteristic, because they do not trust authority, and so that trust has to be built.

[Lord Bellamy (Con)]

My Lords, in relation to the first part of the question asked by the noble Lord, it is true that there are certain countries designated for men only, and so forth, in the existing schedule. The Government do not consider that that is an appropriate precedent to extend at this stage. Circumstances change and countries change, so it is much better to deal with this on an individual basis. It is probably the case, one would have thought as a matter of common sense, that, if it arises, the Government’s travel advice to particular countries, to raise one particular point, is likely to be a highly material fact, when they come to consider the risk of serious and irreversible harm.

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Secondly, and in practice, this is all predicated on the country being willing to accept them. At the moment, the only agreement we have is with Rwanda. There may well be others. I hesitate to give any commitment but it seems, if I may say so, most unlikely that the fears of the noble Lord are well founded. It is most unlikely that these postulated circumstances will arise in practice.

[Lord Scriven (LD)]

The equality impact assessment that the Government have done on this talks particularly about sexual orientation. The very point that the noble Lord, Lord Cashman, and others have made is that people will be returned. The Government more or less say that that will be the case unless something happens:

“Where individuals are from a country where their sexual orientation is criminalised, and their exploitation is linked to their sexual orientation, they may require additional support in order to trust and engage with law enforcement”.


That is the Government’s own equality impact assessment. Where in the Bill is that extra support in place? I cannot see it anywhere in the Bill to ensure that discrimination does not take place against people from the LGBT community. Therefore, subsequently, if this support is not put in place, people from the LGBT community will be sent to places where they are unsafe due to local LGBT laws.

[Lord Bellamy (Con)]

My Lords, at this stage I do not think I can elaborate beyond the answers I have already given. This is going to be a matter for the judicial process—through the appeal process, the legal advice and the legal representation that these people have. If they can show serious and irreversible harm, then they will not be sent to these places.

Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Scriven (LD)]

My Lords, in Committee on Monday, the noble Lord, Lord Murray, used the example of India. We need to question not just how the list has been devised but the minimum criteria the Home Office wishes to have for each country before it even starts to discuss any agreement with it.

India does not have national asylum legislation: anyone who is a non-Indian citizen is determined as a foreigner under the Registration of Foreigners Act 1939, the Foreigners Act 1946 and the Foreigners Order 1948. This legislation generally governs foreigners within the territory of India. Article 2 of the Registration of Foreigners Act defines a foreigner as

“a person who is not a citizen of India”.

The other two pieces of legislation use the same definition. The Act and the order grant the Indian Government the power to restrict the movement of foreigners and carry out compulsory medical examinations, limit foreigners’ employment opportunities, and control the ability to refuse and return foreigners to their home country. All of these contravene the UN refugee convention. Refugee status is granted, but only to certain nationals of neighbouring countries. People with certain characteristics—for example, Muslims—are predominantly excluded from being granted refugee status.

People who are foreigners in India have further challenges when seeking asylum there: because of restricted employment, they find that they do not have sustainable livelihoods; there is no reliable community support network for refugees there; and access to specialised services for certain people or groups does not exist.

Quite bluntly, I ask the Minister this: is that the kind of situation he wishes to send some of the most vulnerable people in the world into? Ultimately, for every single country listed in Schedule 1, what criteria are the Home Office using before starting any negotiation with those countries?

[Lord Hannay of Chiswick (CB)]

My Lords, many very cogent points have been made in this debate, and I will not repeat them, but I will mention one or two relating to the international dimension. I, too, believe that the use of “in general” is one of the slipperiest pieces of drafting that I have seen in a long time. I suppose that the Home Office may have been ashamed to put “in principle”, the words more often used to get out of commitments in international law than any others, but it means much the same thing. It has no place in this legislation.

Secondly, it seems an enormous hostage to fortune to put a list of countries described as “safe” into legislation tabled in March this year and which will not become statute until much later this year at the earliest. By that time, I suspect that quite a lot of things will have happened in some of the countries listed that will make them completely unsafe. I do not want to refer to individual countries, although people will be aware of what happened last week in Uganda. It is a moving agenda, and it is not wise to fix it in that way.

My third and last point is that there has been much talk of the Government concluding agreements with countries to enable us to send asylum seekers—without considering their asylum applications—to them. I imagine —and perhaps the Minister could reply on this point; it would be quite helpful if he could listen to what I am saying—that it would be useful to know whether those agreements would come before Parliament in the form that the International Agreements Committee of your Lordships’ House takes them. I take it that the answer will almost certainly be “No, they won’t, because they will be based on a memorandum of understanding”. This House has already debated this and established beyond peradventure that the use of a memorandum of understanding in the case of Rwanda was entirely designed to avoid any parliamentary scrutiny. Will the Minister say whether an agreement that will be reached for return will be subject to the international agreements procedure—CRaG—or not?

Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

When I saw the title of this SI, I thought, “Oh, I can knock off a short speech on that on Sunday afternoon for Grand Committee”. When I started to think about the number of issues—which my noble friend is going to add to—the list grew and grew. That is why I beg to move Amendment 58.

[Lord Scriven (LD)]

My Lords, I speak in favour of Amendment 58, which I put my name to, moved by my noble friend Lady Hamwee. I draw the Committee’s attention to my interest as a vice-president of the Local Government Association.

I reiterate what my noble friend Lady Hamwee just said: history is important. The catalyst for licensing HMOs in this country was a fire in 1981 in which eight individuals were killed and 100 residents of 56 bedsits were affected. Those who survived and those who died were all asylum seekers. That was the catalyst for the HMO licensing regime. That is where the campaign really started. The key issue for the introduction of the HMO licensing was to allow local authority housing enforcement teams to hold HMO landlords in their area to account for providing national minimum standards, and for local authorities to know exactly where HMOs were, so that they could be inspected effectively.

When the statutory instrument was in Grand Committee, the Minister, the noble Baroness, Lady Scott, was very reassuring in telling the Committee that this had nothing to do with the dilution of standards and that it was all about speed to get houses for asylum seekers ready to go so that they could be housed. Speed can and does cut corners. It became quite obvious from the written answers we received to our questions in Grand Committee that the standards will be watered down, and in some cases will now be dangerous and potentially lead to fires and other issues that could cause fatalities. These are standards for homes, not houses but homes, for some of the most vulnerable people in the world.

There were 11 standards raised in Grand Committee, which included everything ranging from the electrical compliance of equipment to HMO landlords being fit and proper persons for those properties. Of the 11 standards, only one is either equivalent or better than the HMO licensing conditions. All the others are a dilution of the standards. For example, the licensing of HMOs minimum standards state that the electrical appliances and furniture supplied by the landlord must be maintained in a safe condition and that a declaration of safety for all electrical appliances and furniture must be supplied on demand by the authority. However, the Home Office equivalent asylum accommodation and support services contract states only that electrical appliances are required to be inspected once every five years. It says nothing about the condition of furniture.

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[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I acknowledge the gracious compliments paid by the noble Baroness, Lady Hamwee, to my noble friend Lady Scott, which I will pass on.

As the noble Baroness has explained, the amendment would prospectively revoke the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023. Those regulations, which have not yet been made, would amend the definition of “house in multiple occupation” in England for the purposes of Part 2 of the Housing Act 2004. The effect of the regulations is that accommodation provided on behalf of the Home Office for destitute asylum seekers will not require an HMO licence from a local authority for a specified period. The exemption will apply to properties that begin to be used as asylum accommodation from the point when the regulations come into force up to 30 June 2024, and last for a two-year period.

It is the Government’s intention with these measures to ameliorate conditions for asylum seekers. The regulations will support the rapid provision of accommodation for asylum seekers in local areas. I emphasise the urgency of this important reform, which forms part of a suite of measures to accomplish wider asylum delivery plans.

Many contributions—I noted in particular that of the noble Baroness, Lady Lister of Burtersett—focused on the use of hotel accommodation for asylum seekers. There are over 56,000 asylum seekers currently living in contingency accommodation, mainly hotels. The reform will support the necessary steps being taken to accelerate moving asylum seekers out of hotel accommodation—which the Government accept is inappropriate, generally speaking, and furthermore is more costly—into more suitable and cost-effective accommodation.

[Lord Scriven (LD)]

I notice that in the statutory instrument there is no impact assessment. The Minister has just reiterated what the noble Baroness, Lady Scott, said in Grand Committee, that this would speed up the number of properties coming on to the market for asylum seekers. As there is no impact assessment, could he tell us how many a year will come on to the market for asylum seekers that would not have done if these regulations were not made?

[Lord Stewart of Dirleton (Con)]

The noble Lord asks a highly detailed numerical question, and he will not be surprised to know that I am unable to answer it from the Dispatch Box.

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[Lord Scriven (LD)]

It would be acceptable to me, but time and time again, the noble and learned Lord has reiterated what was said in Grand Committee. Surely, that is something he should have asked for in meetings before standing at the Dispatch Box and giving that assurance to the Committee.

[Lord Stewart of Dirleton (Con)]

My Lords, I repeat that I will endeavour to provide an answer to the noble Lord.

The use of hotels as being inappropriate was a matter raised again by the noble Baroness, Lady Lister of Burtersett, in relation to Operation Maximise, and that was a scheme to use hotel rooms to accommodate asylum seekers. It is in order to move away from the use of hotels and provide more suitable accommodation that the Government are advancing these measures.

Asylum accommodation and support contract providers have identified existing licensing requirements for HMO properties as a challenge to swiftly making such accommodation available, in particular where local authorities apply licensing conditions that exceed statutory requirements, detracting from the viability of the property. The introduction of this exemption would mean that national standards apply uniformly to all new asylum accommodation, thus removing barriers to acquiring the more suitable and cost-effective accommodation, of which I was speaking, for housing asylum seekers and assisting in that aim of accomplishing dispersal of asylum seekers so the country bears the burden more evenly.

There were questions from a number of your Lordships —from the noble Baroness, Lady Hamwee, in opening, from the noble Lord, Lord Scriven, and from the noble Lord, Lord Ponsonby, responding for the Opposition—about whether these measures were intended to create lower standards. That is not the case. The Home Office accommodation contracts with our service providers set out clear minimum standards for all asylum accommodation. This is used to ensure compliance with standards similar to those used in local authority licensing.

[Lord Scriven (LD)]

We have answers that the noble Baroness, Lady Scott, gave to us in writing after we had asked the questions. Of the eleven standards that questions were asked about, only one meets the requirements of the national HMO licensing conditions; 10 do not. Therefore, the standards are not similar to the HMO licensing. They are a dilution of standards in the HMO licensing system. Would the Minister not accept that is the case in light of the answers that the Home Office and DLUHC have already given to noble Lords?

[Lord Stewart of Dirleton (Con)]

“Similar” does not mean “the same”. I will endeavour to answer questions raised by the noble Lord, but I would doubt whether the answers I am able to give will satisfy him as much as the answers to his own questions which he has already given.

All dispersal accommodation is required to meet the room and space standards in the Housing Act 1985 or the Housing Act 2004 as appropriate. Properties are also required to have at least one bathroom and one kitchen per five occupants as well as meet the statutory space standards, and this will continue in HMO licence-exempt properties and will be checked on inspection. I will come to the inspection regime in due course.

All dispersal accommodation is also required to meet a range of other standards, for example for effective fire safety risk assessments to be carried out and acted upon, and for gas and electrical safety to be properly certified. The noble Lord, Lord Scriven, spoke eloquently about the genesis of such measures arising out of a tragic fire. I am able to advise the Committee that the Home Office is working with the national fire safety co-ordination centre in relation to fire safety provisions in such properties.

Compliance with these requirements will also be checked by the Home Office’s asylum support contract assurance team. All asylum seekers have access, 24 hours a day, seven days a week, to an advice, issue reporting and eligibility service provided for the Home Office by Migrant Help, where they can raise any concerns regarding accommodation or support services. They can also get information about how to obtain further support.

The noble Baroness, Lady Hamwee, and particularly the noble Lord, Lord German, raised the interaction of such properties with the provision of housing for homeless persons. The Government will do everything they can to mitigate the risk of homelessness, in support of the existing cross-government commitment to end rough sleeping within this Parliament and to fully enforce the Homelessness Reduction Act. To support this, while recognising the burden that local authorities are under, the Government will increase funding for local authorities to support asylum seekers and encourage councils to make properties available more quickly. To support local authorities this year, a one-off payment for each person accommodated on 1 April 2023 has increased from £250 to £750 per person. Councils will continue to receive £3,500 quarterly for each new dispersal bed made available thereafter during the financial year 2023-24. Payment will be made through the same grant process as used in 2022-23.

In addition, as part of a four-month pilot, to which we have had reference, councils will receive a further incentive payment of between £2,000 and £3,000 where a bed is made available within an expedited timeframe following identification. This almost doubles existing funding for those local authorities which take on new accommodation and do so quickly. The Home Office will also monitor any impact and will be conducting a full burdens assessment, working with the Local Government Association.

This brings me to the points raised by noble Lords on engagement with local authorities. I think it was the noble Baroness, Lady Hamwee, who particularly sought assurances about co-operation between central and local government on these matters. Home Office engagement with local authorities has increased significantly, and improved, since the introduction of an engagement strategy which is designed specifically to ensure that impacts on local services can be raised, discussed and mitigated through multi-agency forums.

The full dispersal team also currently meets every region at least once a month and some regions more regularly. These meetings are the key to driving delivery of regional dispersal plans. The Home Office engages regularly with local authority chief executive leads in a number of forums, including the asylum and resettlement council senior engagement group and the strategic oversight group. At these groups, HMO plans are being discussed alongside wider asylum and resettlement-related issues affecting councils across the UK. These are bodies within which the concerns raised in this debate by the noble Baroness, Lady Lister of Burtersett, and others can be raised.

The Home Office will also be arranging an open forum for local authorities to attend to provide local government colleagues with opportunities to discuss issues of concern with senior Home Office officials. Through its strategic oversight group, the Home Office is looking to set up a sub-group which will explore the issue of community cohesion with local authorities. This group would complement other work strands that are exploring related regional impacts.

On the subject of inspections, the Home Office is doubling the size of the current team in asylum support contract assurance to undertake additional inspections and other assurance work in response to the HMO licensing exemption. Inspections will be undertaken by housing health and safety rating scheme-qualified inspectors on all HMO properties that benefit from this exemption at least once in the two-year exemption period. This is in addition to the monthly inspections made by the accommodation providers themselves to ensure that the appropriate property standards are being maintained.

[Lord Scriven (LD)]

I thank the noble and learned Lord for giving way again. I asked this in Grand Committee and do so again today: the doubling is a doubling, but what will the actual full-time equivalent be and what will it mean in terms of the average number per local authority area in England?

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[Lord German (LD)]

My Lords, as Amendments 61, 62 and 66 are consequential to Amendment 58B, I will speak to all three at the same time as moving it; they all sit together.

Currently, pursuant to Schedule 2 to the Immigration Act 1971, the Secretary of State for Home Affairs may detain people for immigration purposes only in places set out by her in a direction. Detention in places not specified by her in a direction will be unlawful. The Bill amends that direction to include

“any place that the Secretary of State considers appropriate”.

Following the publication of the Bill, the Immigration Minister in the other place outlined that the expansion of the asylum and migrant estate will include military barracks and that the Home Office will

“continue to explore the possibility of accommodating migrants in vessels”.—[Official Report, Commons, 29/3/23; col. 1018.]

More recently, the Government announced plans to house 500 asylum seekers on a barge in Portland, off the coast of Dorset. It remains unclear whether these settings will also be used as detention facilities as the provisions of the Bill seek to give the Home Secretary the power to detain individuals in such places, despite the risks posed by facilities such as Manston, which I will come to later. Some of the further mooted facilities present additional risks of their own, with military bases potentially triggering pre-existing vulnerabilities in people who have likely fled war and/or persecution. Will the Minister explain the reasons for granting the Secretary of State the power to detain people in “any place” that she “considers appropriate”?

If the intention is to allow detention in places not currently set out in the Immigration (Places of Detention) Direction 2021, will the Minister give details of where these places will be? For example, will the detention centres include military sites, such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or barges, such as the “Bibby Stockholm”, due to be moored in Portland? With the announcement this week by the PM of more barges to house asylum seekers, can the Minister advise on the cost of these, given that the aim has been to reduce money spent on accommodation, especially if some of this will be used for detention purposes?

Current Home Office plans suggest that these facilities are being considered for use as asylum accommodation only rather than detention. Can the Minister confirm whether the Government in fact plan to use them in whole, or part, as detention sites? If the intention is to allow detention in places not currently set out in the immigration direction of 2021, will the Minister explain how the Secretary of State will ensure that the standards set out in the Detention Centre Rules 2001 and the Short-term Holding Facility Rules 2018 are met in relation to the treatment of detained persons, including the safeguarding of vulnerable people known to be at particular risk of suffering harm in detention, such as victims of torture and trafficking, pregnant women and those with serious mental health conditions? What legal framework will exist to ensure these standards in such places? Are we to expect regulations and, if so, will we see them in draft before the Bill is completed? Has the Home Office carried out a full risk assessment linked to the proposed expansion of the detention estate and will it be published? How will the Minister seek to avoid scenes such as those at Manston, described by the Chief Inspector of Borders and Immigration as “wretched”, if there is no extra detention capacity when the Bill passes?

It is interesting to note that, just this week, we have had the publication of the report of the unannounced inspection of Manston by His Majesty’s Chief Inspector of Prisons. I am sure Ministers have seen his comments. They are clearly concerning, and I shall briefly mention four priority areas: detention in the facilities was too long; the governance of adult and child safeguarding was poor; there was no accurate data on the use of force or separation from the general population or of incidents of violence and non-compliance; and professional interpretation was not always used consistently. There is a danger that Manston will not be able to cope any better than it was coping when the disturbances took place there more than 12 months ago. The response to the report from the Chief Inspector of Prisons is therefore important, to show that the Home Office will ensure safeguarding and care for individuals, which is not currently present.

According to Charlie Taylor’s report, there is no oversight of leadership and safeguarding, or of the use of force. These are incredibly important issues in places of detention. Care planning for vulnerable detainees and children with disabilities was poor and did not demonstrate individual planning, risk assessment or meaningful welfare checks.

Given the responses that we see about the current detention regime in this very recent report from His Majesty’s Chief Inspector of Prisons, how does the Minister expect to provide new and extra accommodation, given the challenges the Government are already facing, across the country, from many Conservative MPs, for example, who do not want these in their backyards—not in the run-up to an election, I understand? Can the Minister tell us whether barges are really suitable places for the detention of families and children?

Amendment 62 would place the Secretary of State under a duty to consult local residents before authorising the use of any new facility within these categories. This is critical for community cohesion and well-being. Removing someone’s liberty is a deeply serious issue and we are extremely concerned about the consequences of this clause for the most vulnerable in our society, particularly children, torture victims, pregnant women and victims of modern slavery. It seems to us that the Home Secretary is moving far beyond the sorts of powers necessary to detain people in an appropriate manner, and this manner at the moment gives us minimal recourse to scrutiny.

The lives, liberty and well-being of fellow human beings should not be put on the line as collateral damage for a policy which most of us know will never achieve its stated aims but is being used for political appeasement. For the reasons I have outlined, I also oppose Clause 10 standing part of the Bill. I beg to move Amendment 58B.

[Lord Scriven (LD)]

My Lords, I shall speak to Amendments 59B, 61A, 64B, 66A and 79C in my name.

Amendments 61A and 66A would ensure that, if children are to be detained or held in temporary accommodation before they are placed with a local authority, there are basic standards in the Bill to ensure that the type of accommodation is suitable, along with the services and standards that are needed to ensure that the best interests and the welfare of the child are paramount, and that the provisions are exactly the same as in the Children Act 1989.

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[Lord Scriven (LD)]

If the central tenet of the Bill is to deter people from coming to the UK, why are the Government expanding detention centres?

[Lord Murray of Blidworth (Con)]

I can imagine the noble Lord’s response if we did not expand detention centres. The point is that, as a matter of government planning, we need to have sufficient capacity to ensure that we can detain and swiftly remove those who enter the country illegally, in particular those embarking on dangerous journeys across the channel.

Change will not happen overnight, but we are committed to making this legislation work. We are working to find other solutions to scale up our detention capacity too. The first step is to change the law, which is why we are focusing on getting this Bill through Parliament.

The noble and learned Lord, Lord Etherton, raised a related point, suggesting that large numbers would need to be detained in the absence of returns agreements. I remind him that in addition to our partnership with Rwanda we have returns agreements with 16 countries and that, as I have indicated, a returns agreement is not a prerequisite to our ability to remove people. I hope I have been able to reassure noble Lords about our commitment to maintain appropriate standards of detention accommodation and to provide appropriate care for those held in detention under the powers conferred by the Bill. On that basis, I hope that the noble Lord, Lord German, will be content to withdraw his Amendment 58B.

Amendment 79C intends to ensure that the Secretary of State for Education has responsibility for unaccompanied children as soon as they arrive in the UK. I suggest that the amendment does not in fact have this effect. It places no duty on the Secretary of State for Education to have any responsibility for arriving children. It would give the Department for Education the power to provide accommodation but not a duty to do so. At this stage the children are already in the Home Office system and the Home Office has pre-existing duties under Section 55 of the Borders, Citizenship and Immigration Act 2009 towards those children. The Home Office also runs existing relevant mechanisms such as the national transfer scheme. It is a matter for the Government as to which department should operate these powers.

This amendment could create a great deal of legal uncertainty, which is not in the best interests of children. For example, where children were not accommodated by a local authority on arrival, the Home Secretary could not use her powers under Clause 16 to move children into local authority placements quickly unless those children were in DfE-run accommodation, which DfE would be under no duty to provide. That uncertainty continues with regard to the application of Clause 19 and how any accommodation power linked to a government department that operates in England only could be applied to the devolved Administrations. For that reason, I invite the noble Lord not to move that amendment.

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[Baroness Sugg (Con)]

My Lords, I will speak briefly in support of Amendment 59 and its accompanying amendments. We have heard from many tonight about the impact that detention has on children; I do not need to repeat that. We heard on Monday from my noble friend the Minister, making the case against creating loopholes in this legislation. I understand his reasons for that, but, like the group that follows, this amendment is about detention and not the other powers in the Bill. We also heard on Monday from the Minister that we cannot evidence what is yet to happen. Of course we cannot, but we can look at what has happened before in this area. When routine child detention was ended in 2011, there was no proportional increase in children claiming asylum.

We all remember the situation before the current protection was in place, in Yarl’s Wood and elsewhere. I remember the campaign back in 2010, which garnered support from hundreds of parliamentarians and parliamentary candidates across the political and professional spectrum. I remember the pledges of all political parties to end child detention if elected, and I remember the then Prime Minister, David Cameron, delivering on that commitment. There remains widespread cross-party support for not returning to child detention and for maintaining the status quo of the current protections.

At Second Reading, four weeks ago today, my noble friend the Minister said that later in the passage of the Bill the Government would set out the new timescale under which children may be detained. That is very much welcome. It is clear from tonight’s debate that that detail is needed. I hope that this report will be simpler and quicker to produce than the oft-raised impact assessment. Is there any update on when this timescale will come, and can my noble friend confirm that we will see it before Report?

The troubling situation that we are seeing in our immigration and asylum system—the small boats, the backlog in processing, and the lack of broader safe and legal routes—was not caused by the lack of detention of children, and nor will it be solved by reversing our long-standing policy against child detention. I hope that my noble friend the Minister will consider accepting these amendments.

[Lord Scriven (LD)]

My Lords, I will speak to Amendments 60 and 65 in my name. I thank my noble friend Lord German and the noble Baronesses, Lady Lister of Burtersett and Lady Bennett of Manor Castle, for adding their names to these amendments.

Because of the lateness of the hour, I will not add to the very powerful speech by the noble Baroness, Lady Mobarik, and give all the reasons why increasing child detention time limits is a bad thing to do. However, I want to go back to what so many noble Lords have asked during this Committee stage: where is the evidence that this is required? The Government have not given any evidence or any reason why 24 hours-plus is required. Since the time limits for unaccompanied children were introduced back in 2014, there has been no empirical evidence and no indication of problems that have arisen which have caused either a pull factor or a push factor for child migration to this country. What is the problem? For a change of policy of this significance, which affects some of the most vulnerable children in the world, the scale of the problem and what problem this will solve have to be put before this House.

We could make the comment that so many noble Lords have, and which I am sure the Minister might: in due course, it will be in the impact assessment. However, the real issue is this. When the Minister stands up at the Dispatch Box, the reason and evidence for this, and the problem it is going to solve, need to be placed before your Lordships, otherwise we cannot in any conscience extend the detention limits.

It was a great part of our history when the Deputy Prime Minister in the coalition Government, Nick Clegg, insisted that children, for immigration purposes, should not be detained, and the Conservative partners in that coalition Government agreed. Noble Lords can see that nothing has changed, so the Minister has to explain what the problem is, what has changed and what problem this will solve.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to speak specifically to the amendments in this group to which I have attached my name and to the general tenor of this. I did consider not rising to speak at all, because the incredibly powerful speech of the noble Baroness, Lady Mobarik, and her proposition that the words “detention” and “children” do not belong in the same sentence, can be said to sum up all of this debate.

However, I did want to give voice to someone else in this debate—the voice of a nine year-old who was held in immigration detention previously in the UK before the laws were changed. When asked how detention made her feel, this nine year-old said very simply, “Sad and angry. Feel like screaming or breaking something”. That is a nine year-old, talking about the kind of experience that we could again be subjecting children to in this country if the Bill goes through.

To put that in terms of a 2009 briefing paper from the Royal College of GPs, the Royal College of Psychiatrists, the Royal College of Paediatrics and Child Health, and the Faculty of Public Health:

“Reported child mental health difficulties include emotion and psychological regression, post-traumatic stress disorder … clinical depression and suicidal behaviour.”


A more recent paper, published in 2023 by Tosif et al, entitled Health of Children Who Experienced Australian Immigration Detention, said it showed devastating impacts on children’s physical and mental health and well-being and on their parents’ parenting capabilities. I wanted to allow that voice to be heard and to share that medical reference.

I just want to make one final reflection. There is a hashtag I use on Twitter quite often, #CampaigningWorks. Sometimes people say, “Well, it should have worked indefinitely. Why do we have to fight this same battle again?” I think that what the Government have got this evening is a very clear message that this battle has been fought before. We have learned a huge amount and got all the evidence from last time, and it is going to be fought again, even harder, from all sides of your Lordships’ House, to stop this element of child detention and to stop this Bill going through.

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[Lord Scriven (LD)]

My Lords, it is ironic that we are talking about detention when the Government Front Bench is trying to detain us here. What we are trying to do is our job of sensibly and calmly dealing with a Bill that has huge potential for the liberty and lives of some of the most vulnerable people in the world. It is absolutely disgraceful that, when the noble Baroness, Lady Chakrabarti, was talking about staying here all night, some on the Benches opposite, including the Government Chief Whip, thought it was funny and amusing. It is not funny and amusing to be told that we have to stay here until goodness knows what time to do our job because the Government Benches wish to rush this through at any cost as a red-wall, red-meat Bill, rather than allowing us the serious job that we have to do as Members of this House. It is an absolute disgrace.

Now that I have got that off my chest, I will speak to my Amendment 76A. It is not a probing amendment but a clear amendment that women who are pregnant should not be held in immigration detention. I see no reason for that. The noble Baroness, Lady Lister, pointed out what the equality impact assessment says on pregnancy and maternity—it is absolutely enlightening:

“Data on pregnancy and maternity in relation to people who enter the UK illegally is not available”.


It is not available—there is no data. They do not know the numbers and therefore they do not know what the impact is. It continues,

“it is therefore difficult to categorically establish whether there will be indirect discrimination”.

It is not just hard to determine whether there is indirect discrimination; because of the lack of figures it is absolutely impossible to determine what the effect will be of the primary part of this legislation and whether it will act as a deterrent.

I am sure that that is what the Minister is going to tell us: that there is no data or evidence available. As the Minister said on Monday, on all the proposals:

“Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball”.—[Official Report, 05/6/23; col. 1175.]


When the Minister gets up at the Dispatch Box, if he trots out the ridiculous statement that locking up pregnant women will somehow act as a major deterrent to people coming here, both the equality impact assessment and what the noble Lord, Lord Murray, said on Monday show that that is not the case.

It is for those reasons—the lack of evidence, the lack of understanding of what the impact will be, and, as other noble Lords have said in the debate, the impact it will have on both the pregnant woman and the child—I believe there is no case in a modern, civilised country to have an immigration policy position of putting pregnant women in detention.

[Lord Alton of Liverpool (CB)]

My Lords, in 1979, when I was a young Member of another place, the then Conservative Government regularly kept us there all night. When you are younger, you are quite happy to do that but I suspect it would be better—and knowing how reasonable the Leader of the House and the Government Chief Whip are—if we could schedule our proceedings to include at least one extra day to consider this very important Bill, but also maybe to have a morning sitting if necessary to enable those of us who are not quite as young as we once were to ensure that we can focus properly on these very important questions.

I made common cause with the noble Baroness, Lady Lister, in 2016 and it was to the credit of your Lordships’ House that, after some ping-pong and debate between both Houses, we were able to ensure that the law was changed to introduce these restrictions on the detention of pregnant women. Similarly, the decisions that were taken about children were to the credit of this House. To see these things being rolled back brings no credit to any of us and I really hope that the Minister, when he goes away from our proceedings tonight and talks again to his officials and to the Secretary of State, will recognise the strength of feeling that has been expressed in the debate already, and that the very important points that my noble friend Lady Gohir made in her excellent speech will be taken into account.

The detention of pregnant women is currently restricted, as we have heard, to 72 hours. That limit would be specifically disapplied in respect of those detained because they are or may be subject to the Clause 2 removal duty. As the Bill stands, a pregnant woman could be detained for any period—I repeat: any period—considered “reasonably necessary”. Prior to 2016, the noble Baroness, Lady Lister, and I argued that it was unconscionable that there was no time limit on immigration detention for pregnant women, leading to some of them being detained for weeks, even months, on end. That, inevitably, put pregnant women and their unborn babies at risk.

The Royal College of Midwives says:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.


Stephen Shaw, the former Prisons and Probation Ombudsman, mentioned earlier by the noble Baroness, Lady Lister, was emphatic. He said:

“That detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take to be a statement of the obvious”.


Back in 2016, Medical Justice told Parliament that the level of care for pregnant women

“falls short of NHS equivalence and the National Institute for Health and Care Excellence (NICE) standards”.

Are we seriously going to turn the clock back to those bleak times? Some of the women who will be affected will have experienced barbaric treatment, including rape, torture and trafficking. To forcibly return such women will be traumatic beyond belief for them. It will endanger their lives and the lives of the babies in their wombs, and we have no business doing it. That is why I support Amendment 68, and even at this late hour I hope that many of your Lordships on all sides of the Committee will support the noble Baroness, Lady Lister.

Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The noble Lord omits to understand that the obligation to assist an asylum seeker is born of Section 95 of the 1996 Act, which applies to destitute asylum seekers. Those entering the country on a visa—for example, as a student—would not be entitled to government support for housing. The noble Lord is perhaps eliding two points in a way that is not particularly helpful.

[Lord Scriven (LD)]

I am slightly confused on this point as well. On a number of occasions, the Minister has said that the cap will be set based on the number of available housing places that local authorities are able to provide. However, Clause 58(5) refers to:

“If in any year the number of persons who enter the United Kingdom using safe and legal routes exceeds the number specified in the regulations”.


I have two questions about that. Under what circumstances would the Minister and the Government expect that number to be exceeded? More importantly, if local authorities have said that they can deal with only a certain number in a year, where will the people who breach the cap go?

[Lord Murray of Blidworth (Con)]

Obviously, consultation with local authorities is important—they are the primary consultee set out in Clause 58(2)(a)—but, as the noble Lord will see from paragraph (b), other persons and bodies are also possible consultees. All this information will be fed into the decision to be taken by the Secretary of State in drawing up the regulations, and by this House and the other place in discussing them. It is not just about how many people we can house; it is about the whole network of support and integration that we can provide. As the noble Lord will immediately appreciate, Clause 58(5) is there as an enforcement mechanism for Parliament to ask a Secretary of State why they have permitted the cap to be exceeded. That is the purpose of making the Secretary of State lay before Parliament a statement setting out those breaches. That is the purpose of Clause 58(5). It is not envisaged that the Secretary of State will allow the cap to be exceeded, for the sensible reasons that the noble Lord provides.

I must make some progress. Amendment 129, tabled by the noble Baroness, Lady Ludford, seeks significantly to increase the current scope of the UK’s refugee family reunion policy to include additional family members. This amendment needs to be seen in the context of what I submit is already a very generous family reunion policy for bringing families together. Under this policy, we have granted more than 46,000 visas since 2015; that is no small feat, and a fact that the noble Baronesses, Lady Ludford and Lady Bennett, seem to have overlooked.

The focus of our refugee family reunion policy is on reuniting core family groups. This is as it should be. It allows immediate family members—that is, the partner and any children aged under 18—of those granted protection in the UK to join them here, if they formed part of a family unit before the sponsor left their country to seek protection. In exceptional circumstances, children over 18 are also eligible.

There are separate provisions in the Immigration Rules to allow extended family members to sponsor children to come here where there are serious and compelling circumstances. In addition, refugees can sponsor adult dependent relatives living overseas to join them where, due to age, illness or disability, that person requires long-term personal care that can be provided only by relatives in the UK. There is also discretion to grant leave outside of the Immigration Rules which caters for extended family members where there are compelling compassionate circumstances.

Amendment 129 would routinely extend the policy to cover a person’s parents, their adult unmarried children under the age of 25, and their siblings. Extending family reunion without careful consideration of the implications would significantly increase the number of people who would qualify to come here. We must carefully weigh the impact of eligibility criteria against the pressure that this would undoubtedly place on already strained central government and local services.

Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Coaker (Lab)]

It had not occurred to me—but it has now.

The serious point is that there must be a plan. It cannot just be a question of, “I know—we will buy a barge, get a liner or buy this military camp”. There must be some sort of strategy, secret plan, non-secret plan or memo saying what the Government are going to do, yet we are not allowed to see, share in or understand it. I have never known anything like it. This is a flagship government Bill. It is an important way of dealing with a challenge that we all know must be dealt with, yet we are having to deal with it in this way. It is nonsensical.

There is another reason why we need to know this. As noble Lord after noble Lord has said, the whole premise of the Bill is that every single migrant crossing the channel or entering illegally will be detained and subject to removal. That must mean that the Government have a figure for how many detention places they will need. If not, can the Minister say, “We have no idea what we will need”, “This is what we think we will need”, or, as would normally happen, describe the worst-case and best-case scenario, or best guess? We have no idea. How many detention places are the Government assuming they will need for their Illegal Migration Bill to work?

[Lord Scriven (LD)]

Does it surprise the noble Lord to learn that I have asked that as a Written Question, and that the Answer was that it would be in the impact assessment?

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have spoken to these amendments today, and I thank all noble Lords for their comments.

Amendment 132 in the name of the noble Baroness, Lady Hamwee, would require the Home Secretary to commission an independent management review of the efficiency of UK Visas and Immigration in processing visa applications, and of Immigration Enforcement’s work in removing from the UK those whose right to remain has expired.

I recognise that we should always be striving for maximum efficiency, and indeed effectiveness, in everything we do. In that regard, I agree with my noble friend Lord Kamall. But making decisions quickly and accurately is obviously in the best interests of the individual concerned, as the noble Baroness, Lady Hamwee, explained, and represents value for money for the taxpayer; and, where there is misuse of the UK’s generous immigration system, so is ensuring that that is dealt with effectively. I am sure that noble Lords will join me in thanking the commitment of countless staff across the immigration system who uphold fairness and professionalism while making complex decisions every day. As regards the backlog, I do not have the precise figures to hand, but I note that the Home Secretary was speaking this morning in front of the Home Affairs Select Committee and was quoting some of those statistics, if noble Lords would like to refer to that.

Paying external management consultants to look into the efficiency of these Home Office operations would be unnecessary and not, I suggest, a good use of public funds. Reports by the Independent Chief Inspector of Borders and Immigration, the National Audit Office and others continue to provide insights into how current operations can be improved, including by identifying and disseminating good practice. We also publish quarterly immigration statistics, including on asylum and returns, which help to shine a light on current performance and inform parliamentary scrutiny of the work of the Home Office.

I agree wholeheartedly that we need a culture of continuous improvement to enhance the efficiency, accuracy and fairness of our decision-making processes in respect of visa applications and the efficiency and effectiveness of our enforcement immigration operations. I am not persuaded that legislating for an independent management review is the most efficient way to go about this, but I of course welcome the intent behind the amendment of the noble Baroness, Lady Hamwee.

[Lord Scriven (LD)]

The Minister mentioned the Independent Chief Inspector of Borders and Immigration reports. The 2021 report indicated four key issues: a shortage of technical specialist staff; inadequate training for asylum interviews; low morale and high turnover of staff because of lack of career progression; and the removal of the 2019 standard service to decide 98% of straightforward cases within six months. Recommendations have been made; how many have been implemented?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not have answers to the noble Lord’s questions. I will have to come back to him on them, if he will permit me to do so.

Amendment 134, tabled by the noble Lord, Lord Coaker, and signed by the noble Lord, Lord Carlile, and Amendment 149, tabled by the noble Baroness, Lady Hamwee, bring us back to the question of the publication of the impact assessment for this Bill. I will take this opportunity to remind noble Lords that the equality impact assessment for the Bill was published on 10 May. Unfortunately, on the economic impact assessment, I can but reiterate what my noble friend Lord Murray has said on a number of occasions: namely, that it will be published in due course.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My Lords, the amendments in this group all relate in one way or another to the operation of the asylum system. They variously seek to enable asylum seekers to work after three months and to reduce the backlog of asylum claims, an objective which we all share. Let me address each of these issues in turn.

Amendment 133, moved by the noble Baroness, Lady Ludford, would enable asylum seekers to seek employment after three months. Asylum seekers are allowed to work in the UK if their claim has been outstanding for 12 months or more, through no fault of their own. Those permitted to work are restricted to jobs on the shortage occupation list which, in turn, is based on expert advice from the independent Migration Advisory Committee, about which we heard during the debate. The list comprises skilled jobs where there is an identified shortage which it is sensible to fill, at least in part, through immigration.

It is important that our policy approach distinguishes between those who need protection and those seeking to work here, who can apply for a work visa under the Immigration Rules. Asylum seekers do not need to make perilous journeys to seek employment in the United Kingdom. There are various safe and legal routes for those seeking to work in the UK under the points-based system. Amendment 133 would fundamentally undermine our immigration framework. Instead of people applying to work in the UK through the proper channels, this amendment would simply encourage them to come to the UK illegally or overstay on a visitor’s or student visa, and then claim asylum in the knowledge that they would be able to work after three months.

[Lord Scriven (LD)]

The Minister’s assertion needs evidence. Sweden allows asylum seekers to work immediately, Portugal after one month, Germany after three months and Belgium after four months. Per 10,000 people per capita, there is no outlier in those countries with the rest of Europe, so what evidence does the Minister have that allowing people to work after three months is a pull factor, when the evidence in other countries in Europe shows significantly that it is not?

[Lord Murray of Blidworth (Con)]

I do not agree that the evidence from the rest of Europe is any indicator of what might drive people across the channel in small boats. It stands to reason that, if people want to come to the UK to work, they may well seek to circumvent our asylum system by crossing the boats in small channels—I mean crossing the channel in small boats, rather than crossing the small channel in big boats. It therefore clearly stands to reason that it is sensible to refuse asylum seekers the right to work unless there is a delay of 12 months which is not the fault of that individual. It cannot be gainsaid that simply because we cannot produce evidence of what is going on in the mind of someone seeking asylum there is no reason to adopt the policy. I simply do not accept the logic of the noble Lord’s proposition.

My noble friend Lady Stowell made some pertinent points about the UK employment market that go to the difficulties posed by the amendment. I also very much welcomed the thoughtful speech by my noble friend Lady Lawlor. It is for all these reasons that the Government cannot support this amendment, and certainly not in this Bill, focused as it is on stopping the boats.

Amendments 139FA, 139FC and 150 all concern the current asylum backlog. We can all agree on one thing: namely, the need to process asylum claims efficiently and effectively, so that robust decisions are taken in a timely manner. We do not need new legislation to achieve this, and certainly not Amendment 150, which, quite inappropriately, seeks to tie the commencement of the Bill, which is to deal with the small boat crossings, to a reduction in the asylum backlog.

That said, I will set out the steps we are taking to reduce the current backlog. As noble Lords will know, my right honourable friend the Prime Minister pledged to clear the backlog of 92,601 initial asylum decisions relating to claims made before 28 June 2022, or legacy claims, by the end of 2023. We are making good progress. We have reduced the initial decision legacy asylum backlog by 17,000 in the past five months. We know there is more to do to make sure that asylum seekers do not spend months or years living in the UK, at vast expense to the taxpayer, waiting for a decision. That is why our commitment to tackle the backlog has focused on people who have sat in the backlog for the longest, often living in expensive hotels, while we process their case.

One way in which we will achieve that is via the streamlined asylum process which is centred around accelerating the processing of manifestly well-founded asylum claims. Another way in which we will achieve this is by grouping asylum claims by cohort. This means grouping asylum claimants and prioritising claims based on, for example, the type or volume of claims from a particular nationality, grant rate or compliance rate, and those on asylum support rate. This process means to conclude more efficiently outstanding asylum claims made before 28 June 2022 by the end of the year. This will allow decisions to be assessed in a more efficient manner. We have already doubled our decision-makers over the past two years, and we are continuing to recruit more. This will take our headcount of the expected number of decision-makers to 1,800 by this summer and 2,500 by September 2023.

Illegal Migration Bill

Lord Scriven Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

Debate on Amendment 139A resumed.

[Lord Scriven (LD)]

My Lords, I will speak to Amendment 139B, to which I have put my name. I thank the right reverend Prelate the Bishop of Durham for outlining the common-sense reason why this amendment is needed, particularly as the Bill will extend detention, meaning that far more people will be in detention, and restrict people’s ability to appeal their reason for detention, particularly in the first 28 days.

I put my name to the amendment because I have a long history since I came into this place of asking questions about and taking a keen interest in vulnerable people who have been put in detention, particularly LGBT individuals. That goes back to 2014, when the then Independent Chief Inspector of Borders and Immigration, John Vine, investigated the Home Office’s handling of asylum claims with people on the grounds of sexual orientation. Since then, every time an independent inspection has been carried out, issues concerning LGBT individuals being held in detention and experiencing homophobia or physical violence, affecting their mental health, have been documented, including in two reports in 2016. The latest analysis, done in February this year in a study for Rainbow Migration carried out by Dr Laura Harvey of the University of Brighton, shows that this continues to happen.

Despite nearly 10 years of me and other noble lords putting questions to the Home Office, it repeatedly says that action plans have been put in place based on recommendations made by these independent inspections. However, they turn out to be more plan than action. That is the reality of the evidence to date, so the right reverend Prelate’s amendment is intended to ensure that the action plans are indeed action plans based on the recommendations of the Chief Inspector of Prisons.

When the Minister responds to this group of amendments, can he say according to what criteria the Home Office decides to implement the recommendations of the Chief Inspector of Prisons on detention? What criteria does it use to ignore and not implement the recommendations? It is clear to me that, if we have an independent inspector going in and making recommendations, the Home Office should be under a statutory obligation to ensure that they are carried out. They are not political; they are not inspections which come with any preconceived prejudice on the part of the Chief Inspector of Prisons. They are independent and professional and they are there to ensure the safety and dignity of those held in detention.

I am very pleased to support Amendment 139B and look forward to hearing the reasons why the recommendations are enacted or not. I believe that this is a common-sense amendment. It does not stop the Government’s desire to expand detention in the Bill, but it ensures that the safety and dignity of those held in detention are paramount when the inspections are carried out and the recommendations are made.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for that intervention. I assure him, first, that the Government are aware of the legislative consent Motions to which he refers, but they are of the view that the LCM process is not engaged. None the less, I further assure the noble Lord that, although Clause 19 enables regulations to be made applying the provisions in Clauses 15 to 18, we will of course consult with the devolved Administrations—the process for which the noble Lord called—within the devolution settlement. In so doing, we will grant the respect that the noble Lord was keen to stress and the importance of which we on the Front Bench recognise.

The noble Lord also tabled Amendments 142, 143, 144 and 147, which seek to delay the commencement of the Bill until the current Brook House inquiry has reported. We acknowledge that these amendments are well intentioned. The whole Committee can agree that we want to see the conclusions of the Brook House inquiry, but, none the less, I cannot agree that the implementation of the Bill should be made conditional on this event, important as it is. It is worth adding that, as the Committee and certainly the noble Lord will be aware, this inquiry focused exclusively on one immigration removal centre, not the whole detention estate. Clearly, matters of great interest may well emerge and potentially apply across the whole estate, but I submit that we should not confine ourselves to proceeding on the basis of such evils as may be disclosed in this report and as are identified in a single case, rather than considering the estate as a whole.

As the noble Lord said in presenting his argument, the chair of the inquiry has indicated that she intends to issue her final report in the late summer, so the noble Lord and the Committee should not have too long to wait. But my point is that, as a Parliament, we should legislate from the general rather than the particular. Well intentioned though it is, the noble Lord’s amendment places the Brook House inquiry at the forefront and everything else would flow from that. I submit that that would not be the best course on which to proceed.

We will carefully consider the recommendations of this inquiry, including recommendations for that wider application to the immigration and detention estate and the practice of detention, but I submit that that is not a reason for delaying the commencement of the Bill. The debate has been interesting, and I am grateful to Members from across the Committee who contributed, but at this stage I invite the noble Baroness to withdraw the amendment.

[Lord Scriven (LD)]

Just before the Minister finishes his conclusions, the right reverend Prelate the Bishop of Durham asked a specific question about the standing commission of the Independent Chief Inspector of Borders and Immigration, which has carried out annual reviews of the effectiveness of Home Office policies and procedures with regard to adults in the immigration detention estate. The right reverend Prelate asked whether they would be resumed, and I wonder whether the Minister can inform the Committee whether that will be the case.

[Lord Stewart of Dirleton (Con)]

First, I present my apologies to the right reverend Prelate for not specifically answering that question; I am grateful to the noble Lord for reminding me of it. I had noted that I do not have the information directly to hand in any event.

Illegal Migration Bill

Lord Scriven Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Stewart of Dirleton (Con)]

The guidance furnished by the Foreign Office to British citizens for travelling is a separate matter from the guidance upon which the Government are relying in the present case. I can see that that clearly has not impressed the noble Baroness, but none the less it is the position.

[Lord Scriven (LD)]

Why would the Minister tell me, and others who identify as LGBT, that it is not safe to go to a country because we would be in fear of our safety, yet deport to that country an LGBT national from another country having decided that they would be safe and not in fear of persecution? What is the difference?

[Lord Stewart of Dirleton (Con)]

The Government are acting on the basis of information in the context of these provisions.

Illegal Migration Bill

Lord Scriven Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As I said yesterday, the child rights impact assessment will be provided in due course.

[Lord Scriven (LD)]

Before the noble Lord sits down, I have listened very carefully to his answer regarding the potential pull factor if unaccompanied children are not placed in detention. However, children have not been placed in detention since the 2014 provision, and there has been no proportional increase in unaccompanied children claiming asylum. In the impact assessment, which the Government produced on Friday, there is absolutely no indication at all of it being a non-monetary risk. Where is the evidence for that claim being made at the Dispatch Box? Both the legislation since 2014 and the Government’s own impact assessment show that there is no evidence to say that it would be a pull factor.

[Lord Murray of Blidworth (Con)]

Clearly, the economic impact assessment is targeted at economic impacts, and the noble Lord invites me to comment on something that is a non-economic impact not being in the impact assessment. I am afraid that is a complete explanation for that. As to the pull factors, I suggest to the noble Lord that it is self-evident that there is that risk of a pull factor, and that is an end to the matter.

[Lord Scriven (LD)]

If it is a pull factor, why was it not a pull factor in 2014?

[Lord Murray of Blidworth (Con)]

I am not suggesting that it was not a pull factor in 2014.

Illegal Migration Bill

Lord Scriven Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Lord Scriven]

87: Before Clause 15, insert the following new Clause—
“Children Act 1989(1) Upon entry or arrival into England, every child to whom section 3 of this Act applies must have afforded to them all rights under the Children Act 1989.(2) Nothing in this Act may require any act or omission that conflicts with or undermines the obligations, duties or responsibilities of the Secretary of State under the Children Act 1989, in particular the principle that the child’s welfare be a primary consideration and that particular regard be given to the child’s wishes and feelings.(3) This Act must not cause any delay in ensuring that unaccompanied children become looked after as soon as the child's age has been determined.”Member's explanatory statement
This amendment ensures all children who enter or arrive in England under section 2 are afforded the rights available under the Children Act 1989. It also provides that well-established duties under that Act are not undermined by the requirements of this Bill.

[Lord Scriven (LD)]

My Lords, Amendment 87 is in my name, and I thank the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Berridge, and the noble Lord, Lord Touhig, for adding their names to it. We on these Benches support all the amendments in this group. With the exception of the amendments in the name of the noble Baroness, Lady Meacher, who wishes to remove Clauses 15 and 16 from the Bill—that would be the ideal solution but is unlikely to win the day—they try to fully understand the relationship between the Home Secretary’s new powers as indicated in Clauses 15 and 16 and the obligations and duties of local authorities to children as laid out in the Children Act 1989.

The statutory scheme for looked-after children has been carefully developed over many decades, with safeguards added in response to learning from systematic failings and research into different aspects of child well-being. Empowering the Home Secretary to radically change that statutory scheme and the provisions around it on the basis of how a child arrives in a local authority area is both radical and untested; it restructures England’s child welfare system.

Where there was total clarity on the interests of the child, the clauses bring ambiguity and confusion. I am confused, as are many other noble Lords, about how the powers given to the Home Secretary in Clauses 15 and 16 are in line with the duties and obligations of local authorities. Unaccompanied children seeking asylum are children in need under the Children Act 1989, and local authorities have specific duties to them and specific powers—for example, under Sections 17 and 47. Under Part 1 of Schedule 2 to the Act, certain activities have to follow.

Section 22C of the Children Act sets out the ways in which local authorities are to accommodate and maintain children. Section 23ZA requires local authorities to regularly visit looked-after children. Sections 25A and 26 place a duty on local authorities to appoint an independent reviewing officer for looked-after children and to make arrangements for independent advocates for them.

The first question I wish to tease out is: when children are removed—either put into the Home Office accommodation initially or removed at the request of the Secretary of State—do they still have looked-after status? If so, how will provision be made for local authorities to carry out the duties they have to looked-after children? The significant question is: what happens when the local authority deems that the Home Office accommodation is not in the best interests of the child, as the statutory scheme suggests? Under this provision of the Bill, can the local authority override the Secretary of State’s request to move a child into certain accommodation and move them into accommodation that is in their best interest? It is a key question that was asked in Committee which the Minister did not answer. The Minister said that he would write to noble Lords on this issue, and I am very pleased that at 12 pm today a letter dated 3 July arrived in our inboxes.

However, that letter creates further confusion and does not answer the following central questions. How will local authorities be able to conduct all their duties under the Children Act 1989? Why does the Secretary of State’s new power lie in the provisions of that Act in terms of where a child shall be put, particularly in terms of the best interests of the child? We really need clarity to be able to understand the interrelationship and how local authorities can carry out their full legal duties under the Children Act 1989 to put the interests of the child first. The Minister was unable to clarify this in Committee and it is important that those issues are now clarified on Report. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I declare that I was President of the Family Division and tried endless care cases involving local authorities. I am extremely concerned about Clauses 15 and 16 and their interrelation with the Children Acts, particularly the Children Act 1989. As the noble Lord, Lord Scriven, has already pointed out, the Secretary of State does not have parental responsibility for children.

I pointed this out to the Minister several times in Committee. So far, and I do not mean to be impolite, I am not sure that either he or—more importantly—the Home Office have put their minds to the implications of parental responsibility. I have not seen a copy of the letter that apparently was sent. It would have been helpful if I had seen it before I came to this House, because since I have been here I am afraid that I have not been looking at my emails.

The local authority is, under the Children Act, the only corporate parent and no one else can be. If the local authority goes to the court and seeks a care order under Section 31 of the Children Act 1989, there will be a court order requiring the local authority to keep the child and place the child in appropriate accommodation. I ask the Minister: has the Home Office has reflected on what Clause 16 is saying—that the Home Secretary can take a child away from local authority accommodation and put that child somewhere else? Is it intended that this Bill is to override the Children Acts and create a new situation where parental responsibility is of no significance if the Home Secretary considers that a child should be dealt with by the Home Office and not a local authority?

This is a very serious legal situation for children. Although there may not be all that number of younger children, there are certainly some. Even a child of 16 is entitled to the care of a local authority. I just wonder whether the Government have thought through the implications of this. I do not believe that this matter will be taken to a vote, which I am rather sad about in a way, because I would like the Government to put their minds to the existing law—which, I have to tell noble Lords, a Conservative Government passed in 1989, and I was one of those who played a part in the legislation. I am extremely sad to see these two clauses.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

No; I am afraid I cannot provide that assurance, and the reason for that is obvious. We are dealing with a situation in which we have thousands of people crossing the channel, and we cannot tie the hands of the Home Office in dealing with this great problem that we all face. I say again that we are having to accommodate unaccompanied children out of necessity. My noble friend Lady Lawlor highlighted in her brave speech the Hobson’s choice that we face here. These children will not all immediately enter the care system on arrival in a small boat, simply because the Home Office does not have the powers set out in Clauses 15 and 16. It is right that we take steps to ensure that there is clarity, and I suggest to noble Lords that it is in the best interests of these children that we put in place these measures, which recognise the reality of the current situation.

On the basis of my explanation and the assurances I have given, I hope that the noble Lord, Lord Scriven, will be content to withdraw his amendment, and if the right reverend Prelate the Bishop of Durham is minded to test the opinion of the House on Amendment 89, I invite noble Lords to reject that amendment.

[Lord Scriven (LD)]

My Lords, I am sure that, like everyone who has listened to this debate, I am now more confused than when it started. Clarity has not been brought. I thank all noble Lords for taking part in the debate, including the noble Baroness, Lady Lawlor, who I completely disagree with; she really does not understand the concept of what safeguarding and the rights of the child are once the child is in the UK. That is the issue, and there is no evidence in any impact assessment or anything that the Government have done that says that protecting and safeguarding children under the Children Act 1989 is a pull factor. But I welcome the noble Baroness’s intervention and understand that she starts from a position that is, I am sure, very different from that of nearly everybody else in your Lordships’ House.

Illegal Migration Bill

Lord Scriven Excerpts

3rd reading
Monday 10th July 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, and I agree with so much of what he said. I do not normally support the contemporary fashion for many speeches at Third Reading, but, because of the Minister’s kind words about the late noble and learned Lord, Simon Brown of Eaton-under-Heywood, I want to echo the tributes to him at this opportunity. He was a titan of our chambers and of so much more. He was, above all else, an incredibly kind human being. Kindness is a quality that has been mentioned in this Chamber today a number of times.

The Minister is quite right that Lord Brown was much more sympathetic to the Minister’s position on this Bill than perhaps I have been, but I would like to leave noble Lords with some words from Lord Brown at ping-pong during the passage of last year’s Nationality and Borders Act. He was pressing me all day, by every available means of communication, to press an amendment that would have made that legislation—which is now defunct, I understand—subject to our international obligations under the refugee convention. This is what he said in the Chamber that night:

“My Lords, I rise, I hope for the last time—a hope which will be shared by every Member of this House”—


self-deprecating, as always—

“—to support this amendment. There are not many issues that it is worth going to the stake for, but surely the rule of law is one. I have spent 60 years of my life on it and do not propose to stop here. I suggest that your Lordships support this too”.—[Official Report, 27/4/22; col. 299.]

[Lord Scriven (LD)]

My Lords, I wish to echo some of the words of the noble Lord, Lord Cormack. I, for one—like, I am sure, many noble Lords—do not have any pleasure in this Bill receiving its Third Reading because it lacks kindness, compassion and humanity. It is also not going to be effective, regardless of the rhetoric from the Dispatch Box.

For many of us who have been on this Bill, the way the Home Office has acted towards this Chamber has been with complete discourteousness. We had a late impact assessment, a late child impact assessment and they tried to keep us here for long hours to do our job, which is to scrutinise effectively.

I say very gently to the Minister, even though he has been very robust in his defence of the Bill, that it is not the job of this House to come up with a whole new Bill; it is our job to come up with amendments which make a Bill more effective. I believe the amendments we have passed make the Bill more effective, more compassionate and kinder in how we treat some of the most vulnerable people who seek asylum on these shores. I say very gently to the Minister, as he takes this back and it goes to the other place and as he speaks to the Home Secretary: think about the amendments, which are trying to make the Bill more effective; and make sure that the Home Office comes back, hopefully, with a Bill from the other place with a bit more compassion, kindness and effectiveness, and a lot less rhetoric.

[Lord Deben (Con)]

My Lords, I rise to ask the Minister to make a correction. He said that there were divisions between the two sides of the House, but surely what has been true about this Bill is that large numbers of people on this side of the House have been very unhappy about it, have voted against it or have not voted with the Government. It is very important that the Minister takes back to the Home Office the fact that this Bill is not supported by the House as a whole, even by those of us who recognise the great need to have strong immigration control.

If I may say so, the Minister’s comments about the drawings on the wall made me very unhappy. If it were his child in that place, he would know that his child would have been uplifted by those paintings. What about the people who did those paintings? They did it to make life a bit better for those people who find themselves in a position that we all ought to thank God that neither we nor our children are in. Until the Government understand that feeling, and recognise the unhappiness across the House, they will have missed the whole tone of what this House is about.

Illegal Migration Bill

Lord Scriven Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

[Baroness Sugg (Con)]

My Lords, on the narrow issue of the detention of pregnant women, I thank the Government and the Minister for listening to and considering carefully the arguments made in your Lordships’ House and acting on them. Thanks to the many who made the case, and the government amendment, the existing protection of a 72-hour time limit remains in place. That is a small change, but it will make a big difference to the women in question, and for that I am very grateful.

[Lord Scriven (LD)]

My Lords, on these Benches, we support Motions E1, J1, K1, N1 and N2. We welcome the Government’s Motion L on time-limiting detention for women who are pregnant. This suite of Motions is about the depriving of liberty of some of the most vulnerable people who reach these shores and, in particular, the welfare of children.

Government Motion J is narrow, as the noble Baroness, Lady Mobarik, said. It is a limited concession, and as Tim Loughton pointed out in the other place yesterday, unaccompanied children’s arrivals are to be treated the same way as adult arrivals in terms of their detention for initial processing, and the amendment proposes nothing for unaccompanied children detained for those purposes.

As the noble Baroness, Lady Mobarik, said, for those who are deemed in detention for removal, there is no automatic condition of eight days; there is a condition that, at that point, a child can ask for bail. Just think of a 10 year-old child in detention: how will they have the support to be able to ask for bail? It is for that reason that, if the noble Baroness moves Motion J1 to a vote, these Benches will definitely support her. The same is true for the right reverend Prelate the Bishop of Manchester’s Motion on unaccompanied children.

I support Motions N1 and N2, and particularly the points made by the noble and learned Baroness, Lady Butler-Sloss. Throughout the passage of the Bill, these Benches have asked on a number of occasions, as have other noble Lords throughout the House, what the role is of the corporate parent—the local authority—under Clause 16. To date, the Minister still has not answered that question. It is really important that the Minister says something from the Dispatch Box; otherwise, this will end up in the court, given the contradiction between the Bill and the provisions in the Children Act 1989, particularly Sections 17 and 47. That is why it is important that the assurance the noble and learned Baroness asked for be addressed by the Minister now. We believe that Motions E1, J1, K1, N1 and N2, if put to the House—particularly Motions J1 and K1—will add a little more humanity, kindness and compassion to the Bill.

[Baroness Berridge (Con)]

My Lords, I will speak to the Motion in the name of noble and learned Baroness, Lady Butler-Sloss, as I had put my name to a similar amendment on Report.

We should not take for granted the decades of work done by many in your Lordships’ House, and others, to put together a child protection system that is well understood. In her most recent email of today, the Children’s Commissioner stated that the local authority must have responsibility for the safety and well-being of children in all settings, including when they are detained.

The child protection system that I have outlined is like a jigsaw: it is well put together and each of the bodies involved knows what its role currently is. That includes many bodies, such as the police, the local authority, schools, the NHS and, at government level, the Department for Education. It is noteworthy that in many of the legal cases taken by children’s rights organisations, the main submissions, if not the only submissions, that the court has wanted to hear are from the Department for Education, not the Home Office.

What we have with this jigsaw puzzle of people responsible is a Home Office that seems to have taken out some of the pieces of that child protection system, and we are not sure how they fit together again. Since this is an area where retrospectivity will apply to those children in hotels—they are now in hotels again—I hope that there will be clarity, at last, from my noble friend the Minister as to how the pieces of that well-understood jigsaw will be put back together, so that everybody knows what their role is. We know from history that if people are confused about their role in a child safeguarding situation, information, communication and the welfare of children themselves can fall between those gaps.