Nationality and Borders Bill

Lord Sharpe of Epsom Excerpts

2nd reading
Wednesday 5th January 2022 Lords Chamber

[Lord Marlesford (Con)]

My Lords, I support the purpose of this Bill, which is important. It relates to three key responsibilities of any Government: the protection and defence of the nation, the maintenance and enhancement of the standard of living of their citizens, and their national obligation to world peace and prosperity.

First, I turn to national security. The greatest terrorist threat to the UK remains Islamist jihadists. In the 20 years since 9/11, those who keep a tally suggest that there have been more than 40,000 fatal attacks worldwide. The Times of 11 September 2021 concluded that

“America’s wars helped to radicalise a generation of Islamists, whose poisonous ideology has spread across the Middle East to Africa, from where new terrorist franchises plot fresh attacks on the West.”

The Economist of 20 November reported on how

“jihadists aligned to al-Qaeda and Islamic State”

in the Sahel

“have taken aim at Western countries, bombing their embassies and kidnapping or killing their citizens.”

It concluded:

“If the jihadists are given havens and time, they will surely launch attacks on European or American soil, too.”


The UK has already given haven to jihadists who have been involved in several attacks, the most recent being the Liverpool bomber, who went as far as masking himself as a Christian in an attempt to obtain asylum.

So, however much we may wish to, and should, give hospitality to many of those who seek to come here—whether as refugees, asylum seekers or, indeed, migrants —we must be far more vigilant in the screening process. The unmet challenge of screening 28,000 people who arrived in England by small boats during 2021 must not recur in 2022.

I was puzzled when my noble friend Lady Williams— I thank her for that useful letter today—said in a Written Answer on 16 December that identity checks, including fingerprints and other biometrics, taken from migrants on arrival cannot be compared against the EU system which the UK has access to because

“use of those systems is only permitted for law enforcement, not immigration purposes.”

I can think of few more obvious law enforcement purposes than the detection of possible terrorists. I hope my noble friend will be able to assure us that the Bill will be changed to overrule that absurdity.

Secondly, on the responsibility of maintaining and enhancing our domestic living standards, there are now, as we have heard, several million individuals who need or would like to live in the UK; the great majority are economic migrants. The hard fact is that incentives to migrate will diminish only when the standard of living in the country they want to reach is no longer sufficiently greater than that from which they seek to depart to make the costs and risks of the journey worth while.

Three crucial components in quality of life are healthcare, education and housing. In the case of the UK, as everyone is all too aware, spare capacity in both medical and educational services hardly exists, and there are long lines of people waiting to buy or rent houses. The political constraint on any moral imperative to share these scarce resources with migrants is the consequent reduction in the standards available in the UK, and it is set by what the population—which in a democracy means the electorate—will accept. That is why most of our help must continue to be made through international aid programmes, where there is no direct dilution of UK living standards.

The third responsibility is to have an ordered travel system to replace the present chaos. We are already making special provision for economic migrants who can fill crucial shortages in the supply of certain skills; for example, in the medical and care sectors. Would it be possible to open these opportunities more widely? In my view, there is nothing wrong with discriminating in favour of particular groups, such as those suffering religious persecution in their own land. I am thinking of Christians in Afghanistan, Pakistan and—

[Lord Sharpe of Epsom (Con)]

My Lords, may I remind the noble Lord that there is a Back-Bench speaking limit of five minutes? Thank you.

[Lord Marlesford (Con)]

I will conclude—

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[Lord Dholakia (LD)]

My Lords, I value the valuable contribution made by the noble Lord, Lord Blunkett, particularly his time as Home Secretary in a previous Government.

Between 1949 and to date, nationality, immigration and asylum laws in the United Kingdom have come full circle, from complete freedom for all British subjects to enter and live in this country to a strict limitation of that right to British citizens and a small number of people with a residual claim arising from past commitments. I was privileged to enter Britain in 1956 and have witnessed all the changes that have taken place since then. The questions I have asked each time are: are all these changes necessary, and are they governed by political expediency or the reality of the situation we face?

Despite the nature and effect of legislation, the circumstances surrounding it remain contentious. One main reason for this is that despite a series of reports from the House of Commons Select Committees and other authoritative sources, it is still not widely known that large-scale immigration to the United Kingdom is a thing of the past. Immigration has been a prominent issue during the past few general elections. We have seen prominent politicians dealing positively with it in areas where migrants have settled, only to find the same politicians adopting a different stance in areas of predominantly white settlement. Such double talk does more damage to good race relations in the country.

A little while ago, writing in the Guardian, Jonathan Freedland noted

“a kind of drumbeat of hysteria in which both politicians and media have turned again and again on a … small minority, first prodding them, then pounding them as if they represented the single biggest problem in national life.”

This is a difficult time to have a calm and reasoned discussion about migrants, which political leaders claim to want.

Let us look at the figures that were bandied about during the Brexit referendum— stirring up emotions at this crucial time was a good way to make political gains. We need to examine changing patterns within all our communities. We need to take into account post-war migration and the process of globalisation which crosses the geographical boundaries of all nations. Where is the leadership pronouncement on such issues? Where do we speak up for our NHS, our transport system or the contributions of minorities to our economy? Instead, we continue to harp on about the numbers in this complex game. We hear about the harshness surrounding migrants entering the country through the English Channel. We blame France for its inability to control the flow of migrants to UK.

Every piece of legislation since 1962 indicates that there is no such thing as total protection of our borders. We must find a different way for migrants to apply for asylum. The present method of returning them to French shores does not work. It is time for a rethink.

The rot set in in the 1950s and has continued ever since. As early as then, the Government set up an interdepartmental committee to consider legislative and administrative methods to deal with migrants. This continues even to the present time within the Home Office. So preoccupied were Ministers in the 1950s with the numbers entering the UK that the welfare and integration of newcomers was not even discussed. In fact, the key recommendation was:

“Any solution depending on apparent or concealed test would be so invidious as to be impossible for adoption.”


What did they recommend? They continued:

“Nevertheless, the use of any powers taken to restrict the free entry of British subjects to this country would, as a general rule, be more or less confined to coloured persons.


Each piece of legislation since 1962 will confirm this.

Almost 70 years ago, the steamship “Empire Windrush” docked at Tilbury, carrying with it the hopes and dreams of hundreds of young black men and women from the Caribbean. Nothing like this had happened before. Ever since then, if you look at the independence of Commonwealth countries and the end of the master and servant relationship that Britain had enjoyed, a new way of thinking of ourselves had to evolve and is still in process. The current debate is not new: there was little consideration of a genuine migration policy and the settlement of new arrivals.

The present legislation is described as “Priti hostile” in many quarters. Following the scathing criticism by Wendy Williams, we still have not resolved the Windrush issue. We are now proceeding with harsher issues which will have substantial impact on those who wish to settle in this country.

Following the correspondence with my noble friend Lady Hamwee, I have studied the response from Victoria Atkins MP on Afghan refugees. While I welcome her comments, I am still concerned about the way we left Afghanistan. Over 400 lives were lost—

[Lord Sharpe of Epsom (Con)]

My Lords, I remind everybody again that it is a five-minute Back-Bench speaking limit.

[Lord Dholakia (LD)]

We are now working to deprive people of their British citizenship, thus creating a community of refugees with nowhere to go. We are paying scant regard to the 1951 convention on refugees and we are involved in not giving due regard to the rights of children. Overall, we are succumbing to political expediency rather than having a genuine desire to help.

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[Baroness Kennedy of The Shaws (Lab)]

My Lords, I would like to reinforce what others have said about the Bill being an affront to human rights and civil liberties. It is an anti-refugee Bill and an anti-asylum Bill and whatever the noble Lord, Lord Morrow, said about dismissing the concern for common humanity, it is a display of a lack of respect for our common humanity. What terrible detriment to the humanity of British people comes about from providing shelter to those fleeing persecution? What possible terrible detriment to the British people happened as a result of offering shelter to those who were fleeing Nazism and the concentration camps? The very idea of pushing boats back to the French coast is totally contrary to international and maritime law, as we have heard—but we do not even have to talk about its unlawfulness; it is about the morality of it.

Similarly, when we talk about offshoring and that proposal, it is not just unworkable, as the noble Lord, Lord Kirkhope, was saying; it, too, is a dereliction of our national duties under international law. How are people going to access legal advice of a proper standard that we would be able to rely on confidently? As others have said, the Bill creates a two-tier system for asylum seekers. To criminalise those who come to the UK because they have not secured advance permission is unconscionable, especially when there are no safe routes for most people to get here. People who are fleeing are coming in desperation; they are in fear of their lives and they take the most incredible risks to find sanctuary. When people speak, as the noble Lord, Lord Lilley, did, about the cost of doing so, it is often about whole communities putting together money in order to make it possible for that person to escape likely death.

The Bill does nothing to create legitimate ways of getting those who are at grievous risk to safety. It opens up, in fact, greater possibilities for traffickers and those who exploit those who are at risk. In September and October of this last year, along with a little team of lawyers from the International Bar Association’s Human Rights Institute, which I direct, we evacuated 103 women—Afghan judges, lawyers, journalists and others—out of Afghanistan with their families. They were desperate because they were on Taliban kill lists and we have had to struggle desperately to find final destinations for them around the world. We are still waiting for the promised resettlement scheme here for Afghanis; it still has not come into existence.

The Bill in its current form would have prevented my Afghan women coming to the UK. My Afghan judges are evacuated in Greece, Greece having agreed to be a lily pad, a temporary landing place, but they would be group 2 refugees, which means that they would have to stay in Greece because, of course, it is a safe country to all intents and purposes. Desperate women are also in communication with me still who escaped over the border into Pakistan, Iran or other neighbouring countries. They, too, would be group 2 refugees, even if they have a relative who lives in this country who is willing to receive them. Of course, Clause 15 makes it inadmissible to claim a special connection even if you have relatives in this country.

The Minister is right that there is a crisis in the immigration system, but this Bill is not going to solve it. Around half of immigration appeals against Home Office decisions are successful in the First-tier Tribunal. One-third of judicial reviews against the Home Office are settled or decided in the claimant’s favour. That tells you something loudly and clearly about the quality of the original decision-making in the Home Office—it is abysmal. The starting position is to say no when people apply to enter this country. So, in asking for ideas of how to improve the system, if you want to run a well-run system there has to be better early decision-making, access to proper legal advice and properly run courts and tribunals. But, instead of strengthening early decision-making, the Home Secretary is weakening appeals, creating fast-track processes that are unlawful and increasing her own arbitrary powers, taking to herself the power to accelerate hearings at such speed that there are likely to be illegal outcomes.

There is a whole set of clauses that I could refer to which deal with putting at speed decision-making without the proper legal advice that would make decisions safe. There is a whole set of proposals that we should be concerned about. I want to reinforce what was said by the noble Lord, Lord McColl, about how people who have been trafficked and have come here are modern-day slaves, yet the discretionary leave to remain system is not working for them. In the past five years, only 7% of those of 6,000 survivors have been given discretionary leave. I hope that this Bill will accept amendments to change that, because it has got worse under the current Home Secretary. Likewise, I hope that Damian Green’s amendment in the other place to accept more of the young from Hong Kong might be considered.

Efficiency cannot be bought at the price—

[Lord Sharpe of Epsom (Con)]

My Lords, I am very sorry, but there is a five-minute Back-Bench speaking limit. Everybody else is managing to keep more or less to it.

[Baroness Kennedy of The Shaws (Lab)]

I hear the noble Lord. Efficiency cannot be bought at the price of reduced fairness. My advice to government is: improve the quality and accuracy of first-instance decision-making and bring back proper legal aid in this area of law.

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[Baroness Uddin (Non-Afl)]

My Lords, it is a privilege to follow the noble Lord, Lord Ramsbotham, who always makes an outstanding and unique contribution to this House.

A joint statement by faith and civil society groups calls the Bill “sinister” and “un-British”—counterintuitive to our long-held tradition of welcome. The Bill is deemed pernicious in its intent, with troubling aspects resulting in inevitable breaches of international laws and conventions, including proposed offshore detention facilities, the revoking of citizenship without notice or appeal, and, appallingly, border officials being authorised to push back families to their inevitable consequential deaths.

The Bill stands accused of racism and a draconian misuse of power, supposedly for the public good. I understand the fear expressed in an infinite number of emails about many aspects of the Bill, particularly Clause 9, now exponentially fuelled by the explanations and questions raised by the noble Lord, Lord Anderson. Clause 9 contradicts everything decent about adherence to international human rights law and will empower the Home Secretary and the Government to deprive an individual of citizenship without having to give notice if it is not “practicable” or in the “interests of national security” or the “public interest”, and without an opportunity for the individual to defend themselves, contradicting our basic right to stand innocent until proven guilty. With this Bill, the Government are saying to British citizens: “You are guilty, with no way of proving innocence.” This concern is exacerbated by what we know about the disgraceful treatment of British citizens of the Windrush generation, many of whom perished and suffered enormously without being able to prove their citizenship.

The Government refer to ambiguous terms of “national security” and “the public interest” to strengthen the discretionary powers of the Home Secretary and others in the Government and to justify actions that they are all too aware will breach international laws and conventions. We cannot allow the Government and the Home Secretary carte blanche with added discretionary powers, given what we know about the danger of discretion in handling protests, stop and search, and so on. Combined with the police Bill, the widening of discretionary and absolute powers by citing national security makes the Bill one of the most regressive, dangerous and dehumanising pieces of legislation proposed by this Government. Consequently, the Bill will directly affect two in every five people from a non-white ethnic minority background.

Leading law experts and women’s NGOs are equally vociferous in their concerns that the Bill undermines the Government’s own commitment to ending violence against women and girls, poses additional threats for victims and survivors with insecure immigration status, and shows a glaring lack of genuine insight into maintaining proper oversight of how legislation and policies affect all victims and survivors, regardless of their immigration status. Organisations including SafeLives, Women for Women Refugees and Rights of Women are fearful of the consequences for abused women and girls who may be held in detention centres without adequate information or access to legal services and safeguards.

We have debated, with wounds, the effect of Uighur detention centres, yet in the same breath have no qualms about proposing offshore centres that we decry as barbaric practice elsewhere, leaving aside the unreasonable expectation of extremely vulnerable people navigating an alien system to prove their case. Many may indeed languish in uncertainty as a consequence of reporting sexual violence, exploitation and abuse.

Will the Minister assure the House and external women’s organisations that the proposal for a firewall between the police and immigration services will be given serious consideration, given what she knows already about the danger of Immigration Enforcement’s migrant victims protocol for asylum claimants? Does she agree that this plainly two-tier system, albeit dependent on entry point, is inherently discriminatory and places particularly women and girls fleeing conflict zones in greater danger?

The Government’s claim of increasing

“the fairness of the system to better protect and support those in need of asylum”

is as utterly flawed as the ambition to deter illegal entry into the United Kingdom is fanciful. Have the Government defined what set of criteria constitute “reasonably practical” when deciding not to give notice of deprivation of nationality, given that a deliberate act to make a citizen stateless is prohibited under Article 15 of the Universal Declaration of Human Rights?

We are witness to the genocidal brutalisation of the stateless Rohingya people of Myanmar. Have we learned nothing? Has our conscience been so lost as to emulate Myanmar’s arbitrary policy on citizenship? The effect of deterrence by any means necessary will allow rescue workers to “push back” families to their deaths. Watching children, women and men die in our waters and calling it a Nationality and Borders Bill is an affront to the rule of law and humanity, which we constantly claim in abundance in this Chamber.

Under the Bill, border security staff are being asked to breach our commitments to the refugee convention and, critically, duty of care law. Are we seriously asking our officials—

[Lord Sharpe of Epsom (Con)]

Me again.

[Baroness Uddin (Non-Afl)]

My Lords, I am nearly finished. Are we seriously asking our officials to watch as people die, which may be considered manslaughter by gross negligence in our English courtrooms?

Over generations the UK has contributed to destabilising many nations, most recently Afghanistan, and the same can be said for Iraq and countless African countries. What result did we expect when the UK and its allies dropped an average of 46 bombs a day—

[Lord Sharpe of Epsom (Con)]

My Lords, the noble Baroness did say she was nearly finished and she nearly is not.

[Baroness Uddin (Non-Afl)]

My Lords, in closing—