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.