Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

There are a number of detailed questions here. I look forward to the Minister’s answer, but it is fair to say that there is scepticism in the Committee that the course of action proposed by the Government is the right way to go.

[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.

[Baroness Ludford (LD)]

A ballpark figure would do.

[Lord Stewart of Dirleton (Con)]

We will do our best to provide one in short order in writing to the noble Lord, if that would be acceptable to the noble Baroness.

[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?

[Lord Stewart of Dirleton (Con)]

Again, the noble Lord asks a question of some detail and I will, with his leave, respond in writing. I appreciate his point that doubling from one to two is not significant. However, the Committee has heard me speak of the breadth of support and inspection that will be given and the expertise of those carrying out the inspections. I am grateful to the noble Lord, Lord Scriven, for nodding his assent; he can expect to receive a letter from the department in due course.

These regulations are subject to the draft affirmative procedure, and the noble Baroness, Lady Hamwee, said as much in introducing the debate. They have been considered and approved by this House and await approval by the House of Commons. They are subject to sunsetting provisions, as stated. They are an appropriate response to the short-term challenges we face accommodating asylum seekers.

The Home Office has put additional measures in place of a robust nature to ensure that housing quality is maintained to a national standard. In addition to the usual assurances via the terms of contracts entered into, an enlarged team of appropriately qualified inspectors will inspect each eligible property at least once during the exemption period, as I said to the noble Lord a moment ago.

I reassure the Committee once again that these regulations and the actions of the Home Office in drawing them up and moving this policy forward are informed by our consciousness of the terrible past tragedies which have overtaken people living in accommodation of this sort. We are all too well aware of the incidents the noble Lord, Lord Scriven, drew to the attention of the Committee, and to which the noble Baroness, Lady Hamwee, adverted in passing at the outset of her remarks. I offer to the Committee an assurance that we are aware of this and that the inspection regime we set up will, as much as is humanly possible, look to prevent such things happening again.

[Lord German (LD)]

I wonder if the noble and learned Lord could answer my question about the devolved Administrations and their licensing powers?

[Lord Stewart of Dirleton (Con)]

I beg the noble Lord’s pardon; I meant to answer that question and sought specific information from the Bill team on it. The regulations apply only to England and not to Wales, Northern Ireland or Scotland.

Finally, I invite the noble Baroness, Lady Hamwee, to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, I am not going to say very much. Many Members are waiting to consider the large number of amendments we are scheduled to get through tonight—whether we will or not, we will see.

I thank the noble and learned Lord for his responses to the shedload of questions which came from this side. I was surprised that he started by saying that the regulations are intended to ameliorate conditions for asylum seekers, because it seems to everyone involved that it is about numbers and not better conditions. He has given assurances about engagement with local authorities, but it was the Local Government Association which particularly asked to be reassured about engagement, so this remains a live issue. He said that the lump sum of up to, I think, £3,500 would be paid in the circumstances he mentioned. I had understood from briefing that that was only for the pilot period of four months. Could he let me know after today if that is correct?

Finally, the noble and learned Lord mentioned Migrant Help. There have been a lot of tales over the last few months of people in hotels who have asked for some help from the contract providers who run the hotels or from other staff, and been told, “Oh, go and ask Migrant Help”. I do not think that it is quite the smooth process that was just suggested. However, I beg leave to withdraw the amendment.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.

In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that

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

That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.

However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.

If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.

[Lord Stewart of Dirleton (Con)]

My Lords, this group deals with the detention of pregnant women and the use of reasonable force to effect the detention and removal of children and pregnant women.

Amendments 68 and 76A deal with the detention of pregnant women. Before getting into the specifics, it is worth briefly reiterating some general points made by my noble friend Lord Murray when he responded to the previous group. Our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal from the United Kingdom. The scheme is designed to be operated quickly and fairly, but holding people in detention is necessary to ensure that they are successfully removed under the scheme. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants, save unaccompanied children, back to their home country or to a safe third country will, we calculate, send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people smugglers facilitating their passage across the channel in small boats on the false promise of starting a new life in the United Kingdom. The only way to come to the United Kingdom for protection will be through safe and legal routes. This will take power out of the hands of the criminal gangs and protect vulnerable people.

I am happy to repeat for the benefit of the noble Baronesses, Lady Lister of Burtersett and Lady Chakrabarti, the noble Lord, Lord Scriven, and my noble friend Lady Sugg that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes. I assure the Committee that pregnant women who have arrived illegally will not be removed from the United Kingdom when, based on medical assessments, they are not fit to travel. I offer that assurance to the noble Baroness, Lady Bennett of Manor Castle.

[Baroness Bennett of Manor Castle (GP)]

Before the Minister continues, can he tell me where that will appear in writing? An assurance in the Committee at 12.43 am, is one thing, but where will that assurance be written down?

[Lord Stewart of Dirleton (Con)]

It will be in Hansard, the official record.

The document from which the noble Baroness, Lady Bennett, quoted, referring to guidance from the NHS website, provides that, with the proper precautions, most women can travel safely well into their pregnancy. However, in any event, we will remove only persons who are fit to travel.

There has never been a complete bar on the detention and/or the removal of pregnant women, such as Amendment 76A seeks to provide. The noble Lord, Lord Alton of Liverpool, referred correctly to the situation as presently advised, with a 72-hour period and a seven-day maximum detention thereafter. In answer to the noble Lord, the right reverend Prelate the Bishop of Southwark, and other noble Lords, that will continue to apply to women who have not arrived illegally on these shores.

Under the Bill, detention is not automatic. The Bill provides power to detain, and the appropriateness of detention will be considered on a case-by-case basis. We expect that a woman who is in the later stages of her pregnancy and who cannot be removed in the short term would not be detained, but instead released on immigration bail. That matter would of course be assessed by the body hearing the application.

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[Baroness Lister of Burtersett (Lab)]

My Lords, first of all, I thank all noble Lords who have spoken. All, apart from the Minister, spoke in support of the amendment. I am very grateful to them for staying until this ungodly hour and not allowing the Government to chase them off, in effect, through tiredness. I know that others have not spoken, but I have felt their support anyway. People are nodding, and I thank them. I know that others who cannot stay this late have had to leave.

My noble friend Lord Ponsonby remarked on my anger that we are discussing this at such a ridiculous time. Yes, I am angry about that, but I am also angry because, as the noble Lord, Lord Alton, set out very clearly, we are having to refight the battles that we fought in 2016 at some length in this House and won. It is so depressing to have to put the same arguments yet again, because the Government and Theresa May accepted them then, and we reached a compromise. That is why, although in my heart I agree with the noble Lord, Lord Scriven, because that is what I argued for in 2016, with my head I say that we have to just try to get back to where we were. There is no point trying to go further, I am afraid, although I accept what he said in principle.

I should also note that there are a whole lot of other people here who probably would not normally sit in on our Committee proceedings, and I hope they have learned something. I hope they have learned through having to listen to what we are doing to pregnant women—what their Government are doing to pregnant women. I hope they will think about it. Some of their colleagues on the government Benches might have words, perhaps, afterwards, because as my noble friend said, the noble Baroness, Lady Sugg, made a very powerful case.

I thank the Minister for his response, but it was utterly disappointing. He utterly failed to engage with what his noble friend said about the vacuity of the incentives argument, and he had no other argument to put. There is no case, really, because, as she made clear, that argument does not stand up. It was very depressing and disappointing that there was no case.

I am also disappointed that a number of the questions I asked were not answered. I am not going to press them now— it is nearly 1 o’clock in the morning.

[Lord Stewart of Dirleton (Con)]

I apologise to the noble Baroness. Any oversight was entirely a failure on my part. I will review the record and revert to the noble Baroness in writing, if that is acceptable.

[Baroness Lister of Burtersett (Lab)]

It is perfectly acceptable. I was just going to suggest that the Minister do that. I do not blame him at all, because I do not imagine he is that keen on arguing this out at 1 o’clock in the morning either.

We will return to this at Report—we have to. As a number of noble Lords said, this is a narrow amendment that does not drive a coach and horses through the whole Bill, much as I hate the Bill. It would not cost the Government anything to concede to this amendment before Report, rather than forcing us to come back then and go through the whole thing again, voting for the health of pregnant women and their babies. For now, however, I beg leave to withdraw the amendment.

Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

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

My Lords, I see that the right reverend Prelate is absent from this place and not here to witness this outbreak of ecumenical harmony between two components of the opposition Benches.

I shall deal, if I may, with the points the two noble Lords have made as they emerge. I commence what I have to say on this group by assuring the Committee that the Government remain focused on doing everything they can to save lives, deter illegal migration and disrupt the people-smuggling gangs responsible for dangerous channel crossings.

Amendments 136 and 139FB, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Coaker, focus on tackling people smuggling. Amendment 136 calls for a report on the actions being taken to tackle people smuggling, while Amendment 139FB seeks to confer on the National Crime Agency a specific function in respect of tackling organised immigration crime. A variety of noble Lords have spoken to those points and, again, I shall refer to them in more detail as they arise.

The Committee will be aware that organised immigration crime, like other forms of serious and organised crime, endangers lives, has a corrosive effect on society, puts pressure on border security resources and diverts money from our economy. Organised crime groups continue to facilitate most illegal migrant journeys to the United Kingdom. The threat we are facing from organised immigration crime spans multiple countries, multiple nationalities and multiple criminal methodologies. Organised immigration crime is exceptionally complex, and the Government are working to tackle organised crime gangs that facilitate illegal travel from source countries to Europe and the United Kingdom. Addressing the threat from organised immigration crime and disrupting the organised crime gangs responsible is a priority for this Government.

I shall address the points raised by the noble Lord, Lord Coaker, the noble Baronesses, Lady Meacher and Lady Hamwee, and—from the Liberal Democrat Front Bench—the noble Lord, Lord Paddick, seeking information about the steps the Government are taking to tackle what the noble Lord calls the “real criminals”. The noble Lord is entirely justified in using that phrase. I will also address some of the points raised on an earlier group with my noble friend Lord Sharpe of Epsom. I can tell the Committee that we have a dedicated multiagency organised immigration crime task force in place which is committed to dismantling international organised immigration crime groups, including the criminal networks that facilitate people smuggling from source countries to Europe and then the UK, knowingly putting people in life-threatening situations. This task force is currently active in 17 countries worldwide and works with partners to build intelligence-sharing as well as investigative and prosecution capability.

I have an example for the Committee. In a single operation last summer, the National Crime Agency worked with French, Belgian, German and Dutch partners to target an organised crime gang suspected of smuggling up to 10,000 people across the channel over a period of 12 to 18 months. In total, the operation saw around 40 people being arrested, and 135 boats, 45 engines and more than 1,200 life jackets being seized.

The noble Lord, Lord Coaker, from the Labour Front Bench, sought information from me about convictions for people smuggling. The information with which I am provided is that, between 28 June 2022 —that being the date of commencement of the Nationality and Borders Act—and 31 March 2023, immigration enforcement arrested in excess of 385 people for offences under the Act, resulting in 166 convictions and the imposition of sentences amounting to over 110 years’ imprisonment. Quite properly, the noble Lord, Lord Coaker, sought a comparator for the figure. I do not think I can give him a precise one, but I can give him additional data. I look forward to corresponding with the noble Lord to clear up anything that this has not furnished. Since 2015, there have been 1,400 arrests, giving rise to sentences being applied totalling 1,300 years’ imprisonment.

Following the pledge made by my right honourable friend the Prime Minister, on 13 December last year, to stop the dangerous small boat crossings, we have doubled funding for this task force for the next two financial years. The increased funding will aim to double the number of disruptions and enforcement activities against organised immigration crime and the criminal gangs that facilitate it.

But the Government must, at all times, be conscious of the need to remove the demand that keeps people smugglers in business. That is the core purpose of the Bill. We will break the business model of the people smugglers and deter those seeking illegally to enter the UK only by putting in place a system through which it is clear to all that anyone arriving illegally in this country will not be able to settle and build a new life here, and that they will instead be returned to their home country or removed to a safe third country such as Rwanda. The Government are conscious that the refoulement of persons to a country where they are in danger is unacceptable in terms of our international obligations.

Amendment 139F was briefly introduced by the noble Baroness, Lady Hamwee, in the absence of the noble Baroness, Lady Kennedy of The Shaws. It would require the Secretary of State to refer a person who meets the four conditions in Clause 2, and is suspected of crimes against humanity, genocide or war crimes, to the relevant international authorities. The amendment is unnecessary, as protecting the British public is the Government’s first priority—the priority of any Government—and, in any scenario where a person is suspected of war crimes or crimes against humanity, the Government will work with international authorities as necessary.

--- Later in debate ---

[Baroness Ludford (LD)]

Could the Minister confirm whether he agrees with the analysis of the Northern Ireland Human Rights Commission, from which I cited extracts, on the various EU asylum directives that would continue to apply in Northern Ireland? I am afraid I have not checked what the noble Lord, Lord Murray, said in response to the noble Lord, Lord Morrow, the other day, but the trafficking directive and the victims directive also apply in Northern Ireland. What are the Government doing to make sure that all those directives are going to be respected in practice in Northern Ireland?

[Lord Stewart of Dirleton (Con)]

The noble Lord, Lord Hannay, from the Cross Benches, submitted my use of the verb “require” to a degree of philological scrutiny, which I had not taken into account when preparing my answer. I take the noble Lord’s point in relation to empowerment as opposed to obligation.

I regret to say that, in relation to the complex interrelating commitments to which the noble Baroness sought my views from the Dispatch Box, I will have to undertake to correspond with the noble Baroness and the noble Lord.

I sum up what has been a short debate by thanking noble Lords for their informed scrutiny of what has been said, not only by me but by others participating in earlier parts of the debate. From the perspective of this Committee, at this stage, the issues have been given a good airing. Noble Lords have referred to the inevitability that we will consider the matter at a later stage but, at present, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD)]

My Lords, the debate was not that short, but perhaps it was shorter than those on some of the other groups.

I will just comment on the Minister’s response regarding people smuggling. I find it quite depressing that reliance is placed on deterring demand rather than on deterring criminals. I wonder whether the strategy might include, if it does not now, a communications component. We are told of successful prosecutions, but I am not sure that I ever really read about those in the press; perhaps I read the wrong media—I do not know.

Though I have heard what the Minister had to say, to me it is the criminality—the smuggling—that is at the heart of the problem. I am sure that we will come back to it as an issue in some form at the next stage. For now, I beg leave to withdraw the amendment.

Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord has caught me out as I gather my notes.

Amendment 139A, which the noble Baroness, Lady Hamwee, spoke to, is about encouraging victims or witnesses to report offences. The right reverend Prelate the Bishop of Durham also spoke to this. I absolutely understand and support the sentiments behind that amendment. I thought I would reflect a little on my experience as a magistrate in Westminster Magistrates’ Court, where I remember that, about 10 years ago, we had officials from the Home Office sitting in our courts. They were basically there to try to pick up business to do with illegal migrants and asylum seekers, whether they be offenders, witnesses or people who just appeared in court.

It just so happened that one of my magistrate colleagues was a Home Office official—particularly, part of the Border Force organisation but within the Home Office. She explained to me that it was a pilot that had worked for three months, I think from memory, but which was stopped after that period because they just did not pick up enough business. It was not worth the officials sitting in court for that period. I thought that was an interesting reflection on the points which the noble Baroness made. I absolutely understand the point which she and the right reverend Prelate the Bishop of Durham made about people being reluctant to come forward, because of their distrust of the criminal justice system as a whole, However, my practical experience of that, as just described—and Westminster Magistrates’ Court deals with perhaps the most diverse group of people to pass through the doors of any magistrates’ court in the country—was that not a lot of business was picked up. That is my first reflection.

My second reflection is on Amendment 139B, regarding the implementation of the report by the Chief Inspector of Prisons on immigrants in detention centres. This also goes to the point made by the noble Lord, Lord German, about the Brook House inquiry. Again, a few years ago I was a lay inspector and in that role I went to Littlehey Prison with the then chief inspector. It was an unannounced visit and extremely illuminating to see the prison itself, which was a sex offenders’ prison, but also to talk to the inspectors about how they conduct their activities and how important it is to have unannounced inspections. The way they explained it to me was that the inspections need to be, on the one hand, unannounced, but perhaps even more importantly, regular, and there need to be follow-up inspections. The prison officers and governors whom I met were very sure that they would be continually inspected over a period of time. It would be a working relationship with the inspectorate to try to ensure that standards were kept up.

I am sympathetic to Amendment 139B, as it is a process; it is not a one-off. I very much hope that the Government have confidence in their inspectorate to put in place, over time, an inspection regime which is in-depth and can do its best to maintain standards, while identifying any shortcomings it may see on its inspections. Nevertheless, I look forward to the Minister’s response.

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

My Lords, I will not detain the Committee by going through Clauses 61 to 67 in turn. They contain entirely standard provisions, relating, for example, to the making of regulations under the Bill, commencement, extent and the short title. Instead, I will focus on the various amendments in the group and on the contributions that noble Lords helpfully made from a variety of perspectives.

I will first deal briefly with government Amendment 139D. This relates to the standard power in Clause 66(5) which enables the Secretary of State, by regulations, to make transitional or saving provision in connection with the commencement of any provision of the Bill. Amendment 139D simply enables such regulations to make consequential, supplementary and incidental provision and different provision for different purposes. Again, this is an entirely standard provision to facilitate the smooth implementation of an Act.

[The Lord Bishop of Durham]

I am sorry to interrupt, but I twice heard the Minister say Amendment 139D, and I think he meant Amendment 139G.

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

Yes.

[Lord Stewart of Dirleton (Con)]

I am grateful to the right reverend Prelate and my noble friend Lord Murray. I did indeed mean that, and I apologise. However, if I may, I will stay with the right reverend Prelate, because he opened the debate on Amendment 139A, which deals with data sharing in relation to victims of crime.

I understand fully the sentiment behind the amendment. The whole Committee, and indeed the whole House, can agree on the need to protect all victims of crime, regardless of their immigration status. As the right reverend Prelate will be aware, guidance issued by the National Police Chiefs’ Council, updated in 2020, makes it clear that victims of crime should be treated as victims first and foremost.

The NPCC guidance provides that police officers will not routinely search police databases for the purpose of establishing the immigration status of a victim or witness or routinely seek proof of their entitlement to reside in the United Kingdom. In addition, police officers must give careful consideration, on a case-by-case basis, to what information they share with the Home Office and when to do so. The reasons for sharing information must be recorded and the victim advised as to what has been shared and why. Noble Lords will appreciate that I am setting up a paper trail of responsibility. I should stress that any data sharing is on a case-by-case basis, so, to that extent, I respectfully submit to the Committee that subsection (1) of the proposed new clause is misconceived in referring to the “automatic” sharing of personal data.

We should not lose sight of the fact that benefits may flow from sharing information, as it can help to prevent perpetrators of crime coercing and controlling their victims on account of their insecure immigration status. Moreover, providing a victim with accurate information about their immigration status and bringing them into the immigration system can only benefit them.

We appreciate the need to protect women and girls from threats of violence. All that being said, the Committee will understand that the Government are duty-bound to maintain an effective immigration system, protect our public services and safeguard the most vulnerable from exploitation if that might happen because of their insecure immigration status.

Information is shared with the Home Office to help protect the public, including vulnerable migrants, from harm. The need for this was recognised by Parliament in the Immigration and Asylum Act 1999, which permits the Home Office to share information for the purposes of crime prevention, detection, investigation or prosecution, and to receive information for the purposes of effective immigration control. As for the officers charged with fulfilling those duties, Immigration Enforcement has a person-first approach and will always seek to protect and safeguard any victim before any possible enforcement action is taken.

It is important to note that the mere fact that the Home Office is aware that a person does not have lawful status and is an immigration offender does not lead automatically to that person’s detention or removal. The decision on what may be the most appropriate course of action is based on many factors that require a full assessment of the individual’s circumstances, and evidence of vulnerability is an essential part of that assessment.

The public rightly expect that individuals in this country should be subject to its laws, and it is right that when individuals with an irregular immigration status are identified they should be supported to come within our immigration system and, where possible, to regularise their stay. The Home Office routinely helps migrant victims by directing them to legal advice to help regularise their stay. The NPCC guidance provides, I submit, an appropriate framework for data sharing between the police and the Home Office where a victim of crime has insecure immigration status. On that basis, I do not consider the amendment necessary.

Amendment 139B, tabled, again, by the right reverend Prelate the Bishop of Durham, would place on the Home Secretary a duty to give effect to the recommendations of the Chief Inspector of Prisons in so far as they relate to immigration detention accommodation. I start by making the general observation that recommendations by an independent inspectorate are just that: recommendations and not directions. It is properly a matter for the Home Secretary to consider whether in all the circumstances it is appropriate for her to accept and give effect to relevant recommendations by the Chief Inspector of Prisons. We naturally take very seriously all reports and recommendations by the chief inspector and have accepted many practical recommendations to improve our immigration detention accommodation. The Home Office regularly publishes service improvement plans alongside His Majesty’s Chief Inspector of Prisons’ report on its website. However, on occasion, there may be good policy, operational or other reasons why it would not be appropriate to accept a particular recommendation, and it would be wrong to bind the Home Secretary’s hands in the way that Amendment 139B seeks to do. However, I assure the right reverend Prelate and others in the Committee that the duties to report will remain and that the existing inspection framework will apply to any new detention accommodation, as my noble friend Lord Murray said from the Dispatch Box at an earlier juncture of this Committee’s deliberations.

Turning to the point raised by the noble Lord, Lord Scriven, a moment ago, I compliment the noble Lord on his important work in the field of detention, in particular working with persons rendered especially vulnerable by their sexuality. I assure him and the Committee that the Home Office does not ignore, but rather considers carefully, the recommendations which come to it. Independent scrutiny is a vital part of assurance that our detention facilities are safe, secure and humane, and the Home Office carefully considers all recommendations made by the Chief Inspector of Prisons along with the service improvement plan which sets out the action that will be taken by the Home Office, and such a plan is published in response to any concerns raised.

The noble Lord, Lord German, spoke to two amendments. If I may, I will take them out of the order in which the noble Lord put them, so I shall start with Amendment 139FE. I assure the noble Lord that the power in Clause 62 to make consequential amendments to devolved legislation is commonplace. The examples that I put before the Committee are Section 205 of the Police, Crime, Sentencing and Courts Act 2022 and Section 84 of the Nationality and Borders Act 2022.

As the noble Lord knows, it is the Government’s contention that the Bill deals with matters—in this case, immigration—that are reserved to this Parliament rather than to the devolved Administrations. As we see in Clause 27, it may be necessary to make consequential amendments to devolved legislation pursuant to that reserved purpose. The standard power in Clause 62 simply enables regulations to make any further necessary consequential amendments to enactments. The Delegated Powers and Regulatory Reform Committee did not comment on this regulation-making power in its report, and any regulations that amend, repeal or revoke primary legislation would be subject to the affirmative procedure.

[Lord German (LD)]

The bit of procedure that I am looking for is whether the Government intend to do the proper consultation exercise, as laid out in the Cabinet Office directions about the way to manage that process, which is one of consultation and agreement rather than imposition. Two of these legislative reform memoranda have been laid already, and both concern that important section in the Welsh legislation on looking after children. In that area, we need some confidence that this will be a dialogue rather than an imposition.

[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.

[The Lord Bishop of Durham]

I did actually close by saying, “If you don’t have it, would you please write?”

[Lord Stewart of Dirleton (Con)]

Indeed, the right reverend Prelate did, and I confirm that I will happily correspond with him and copy in the noble Lord.

[Baroness Hamwee (LD)]

My Lords, I moved Amendment 139A. The right reverend Prelate and I have often had our names paired on amendments on these issues. The story from the noble Lord, Lord Ponsonby, about Home Office officials sitting in court to see what they can pick up was truly shocking, whatever other conclusions one might draw about it.

I am unclear why it is necessary to apply the restrictions about sharing data, automatically or otherwise, when the subject is already detained, but I come back to my principal point—sadly, it is not the first time we have made it from these Benches—that we thought that the effective immigration control exemption in the Data Protection Act, and so much now comes within that, was far too wide and had dangers inherent in it. The examples given by the right reverend Prelate in the field of domestic abuse bear this out.

We have heard a lot about the Government wanting co-operation from victims with regard to the investigation and prosecution of traffickers and smugglers. It does not seem to me that not agreeing to a firewall is the best way to go about getting that co-operation.

Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

11: Clause 3, page 5, line 35, at end insert—
“(10A) A statutory instrument containing regulations under subsection (7) must be laid before Parliament after being made.(10B) Regulations contained in a statutory instrument laid before Parliament under subsection (10A) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(10C) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(10D) If regulations cease to have effect as a result of subsection (10B) that does not—(a) affect the validity of anything previously done under the regulations, or(b) prevent the making of new regulations.”Member’s explanatory statement
This amendment applies the “made affirmative” procedure to regulations under clause 3(7) (power to make provision for other exceptions from the duty in clause 2(1)).

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

My Lords, I can be relatively brief in explaining these government amendments. In short, they either respond to recommendations by the Delegated Powers and Regulatory Reform Committee or make minor drafting or technical refinements to the Bill. I turn first to the amendments responding to the DPRRC report.

Clause 3(7) confers a power on the Secretary of State to make exceptions from the removal duty under Clause 2. The Bill on introduction provided for such regulations to be subject to the negative procedure. The DPRRC suggested that the affirmative procedure would be more appropriate. Amendment 11 provides for the “made affirmative” procedure to apply, given the need to make regulations quickly, including ahead of implementation of the duty to remove.

The DPRRC similarly recommended that regulations made under Clause 10 setting out the circumstances in which unaccompanied children may be detained should also be subject to the affirmative procedure. Again, we have accepted the committee’s recommendation, and Amendments 54, 60 and 62 make the “made affirmative” procedure apply on the first exercise of the power—again with a view to early implementation of the Bill—but thereafter the draft affirmative procedure will apply.

Amendments 129 and 169 relate to the power to amend the definition of a “working day” in Clause 37(8). This definition applies for the purpose of various time limits for appeals under Clauses 47 and 48. The DPRRC argued that the power was inappropriate in enabling changes to be made to the meaning of “working day” in relation to actions to be taken by persons bringing an appeal. Having considered carefully the committee’s report, we have concluded that the power is not required, and Amendments 129 and 169 remove it from the Bill.

Amendment 18 is a drafting amendment and simply ensures that Clause 5(3) and (4) dovetail in referring to a country or territory.

Amendments 38 to 41 are also drafting amendments. They simply supplement the reference to the Secretary of State in Clause 7(8) and (9)—which relate to the removal powers—with reference to an immigration officer; this is done for consistency with other provisions in Clause 7.

Finally, Amendments 81 to 84 and Amendment 86 relate to the definition of an “appropriate adult” in Schedule 2. Under Schedule 2, any search of a person under 18 in which that person is required to remove any clothing other than an outer coat, jacket or glove must be in the presence of an appropriate adult. These amendments ensure that the definition of an “appropriate adult” works across the United Kingdom. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we are happy to support the Government’s amendments. The Bill currently contains extensive secondary instruments that would limit Parliament’s ability to provide ongoing scrutiny. However, these changes still relegate decision-making to secondary legislation rather than being in the Bill. The Government may market these changes as a concession to this House, but we regard them more as a bare minimum.

--- Later in debate ---

Amendment 37 is particularly important, because although there are exceptional circumstances, it would be left to the discretion of the Home Secretary at the time, and therefore this provision needs to be put into the Bill. I would say that we have a moral obligation to ensure that, if we are going to deport thousands of people—if our Government are going to pass legislation which allows not thousands but tens of thousands to be deported—it is even more incumbent upon us to ensure that the countries to which they would seek to return those people are safe.

[Lord Stewart of Dirleton (Con)]

My Lords, these amendments go to the issue of whether it is safe to remove a person to a country listed in Schedule 1. It remains the Government’s view that these amendments are not necessary. I will briefly set out why that is the case.

It is not the case that anyone who meets the conditions in Clause 2 can be sent to any of the countries listed in Schedule 1 without further ado. In the case of a national of a non-Section 80AA country, were they to make a protection claim or human rights claim they could not be returned to their home country. In speaking to his amendment the noble and learned Lord, Lord Etherton, itemised a number of the countries with which he has particular concern. For the sake of brevity, I will answer by reference to a single example, but that example covers the list: a Gambian LGBT person fearing persecution if they were returned to Gambia would not be so returned if they make an asylum claim.

The point was taken up by the right reverend Prelate the Bishop of Manchester. The noble Lord, Lord Cashman, spoke with power and made specific reference to an individual example, and the noble Lord, Lord Coaker, returned to the point when summing up. However, I reiterate that an LGBT person fearing persecution if they were returned to their own country would not be so returned if they make an asylum claim.

In the case of a national of a Section 80AA country, the fact that they have raised a protection or human rights claim against their country of nationality would not be a bar to their removal to their home country, unless the Secretary of State considers that there are exceptional circumstances why they cannot be removed there. The noble Lord, Lord Coaker, in summing up from the Opposition Benches, drew our attention to the concern that that might lay open this serious matter to the idiosyncrasies of a particular Home Secretary, but I urge your Lordships to consider that the countries with which we are dealing here are EU and EEA countries, plus Switzerland and Albania, all of which, we maintain, are clearly safe. That said, if it was considered that there were exceptional circumstances, they would not be removed there and would instead be removed—

[Lord Hacking (Lab)]

I have listened intently to the argument that was presented, particularly by the noble and learned Lord, Lord Etherton, and I just make a very simple proposition. Would it not be much safer to adopt Amendment 37, rather than leaving it to individuals as to whether they make an asylum claim and in what circumstances? That is why I ask the Minister to think again about this.

[Lord Stewart of Dirleton (Con)]

My Lords, the Government Front Bench will reflect, as your Lordships would expect, on submissions made on the Floor of the House at this stage. With respect to the noble Lord, I will defer my consideration of that point until later in my submission and will take matters in a different order. I will return to that point.

[Lord Cashman (Lab)]

My Lords, I accept the principle of non-refoulement to a country—a Ugandan going back to Uganda—but there is the wider issue of a gay Ugandan being sent to a country such as Gambia or Kenya. I seek reassurances on that.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

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

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

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

[Lord Purvis of Tweed (LD)]

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

[Lord Stewart of Dirleton (Con)]

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

[Lord Purvis of Tweed (LD)]

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

[Lord Stewart of Dirleton (Con)]

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

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

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

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

[Lord Alton of Liverpool (CB)]

Protected characteristics.

[Lord Stewart of Dirleton (Con)]

I am grateful to the noble Lord for his assistance. I refer him to the equality impact assessment we have published, which in short order answers his question. Again, I am grateful to him for helping me out in my difficulty there.

[Lord Alton of Liverpool (CB)]

After today’s debate, before we reach group 17 and my Amendment 163, which is on safe routes but which also incorporates this idea of using protected characteristics as contained in the Equality Act 2010, perhaps the Minister can give some further consideration as to whether that might be a useful criterion to use as and when the Government decide on the formula that we use for safe routes.

[Lord Stewart of Dirleton (Con)]

My Lords, in the face of that characteristically thoughtful and constructive suggestion, I am happy to assure the noble Lord that we will consider that between now and the point he refers to in relation to his forthcoming amendment.

On Amendment 37, tabled by the noble and learned Lord, Lord Etherton, I know that he has had the opportunity to discuss this amendment with the Attorney-General, my learned friend in the other place. Following that discussion, I will make one further point that I hope will reassure the noble and learned Lord. If the open expression of a person’s sexual orientation would prevent them living in a specified third country without being at real risk of serious and irreversible harm, they would meet the threshold for a serious harm suspensive claim as outlined in Clause 39, and the principles enunciated by the Supreme Court of the United Kingdom in the case of HJ (Iran) would be upheld.

[Lord Etherton (CB)]

I am grateful for what the Minister just said in relation to the ability of an openly gay, lesbian, transgender or bisexual person to live in a particular country. If, acting in that open way, they had a well-founded fear of persecution, as I understand it the Minister is saying that that would satisfy serious and irreversible harm. That is not apparent in the Bill, and to make that clear would itself require an amendment to Clause 38, which we will come to in due course.

But I am left, I am sorry to say, somewhat perplexed by the Minister’s analysis of the application of Article 7 proceedings against a particular country. In asking this question of the Minister, I can deal with the point from the noble Lord, Lord Jackson. There are two different situations under the Bill under which the issue of removal arises. The first, which is found at Clause 5(4), is where the person

“is a national of a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002.”

That renders inadmissible certain asylum and human rights claims because they are deemed to be safe states.

--- Later in debate ---

[Lord Etherton (CB)]

My first question is: does the Minister not agree that that is quite different from the case that the noble Lord, Lord Cashman, raised, where a person is not from a country listed in Section 80AA(1) but from another country? There is a separate provision for that in relation to removal to a Schedule 1 country. Does the Minster not agree that, although Clause 5(5) deals with the Section 80AA point, there is no equivalent to that exception in relation to a situation where somebody comes from a non-EU country that is a non-safe place and the consideration is now to move that person to a Schedule 1 country? What my amendment is dealing with is not the Section 80AA situation but the situation categorised by the noble Lord, Lord Cashman, where a person from a non-safe European state comes here and is threatened to be removed to a Schedule 1 country. All I said—and I am asking the Minister to acknowledge this—is that there should be a similar provision for that situation, for the exclusion of those countries that are facing proceedings under Article 7. That is it.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Etherton, of course, for his intervention. It seems to me that the point he raises is one that calls for a degree of interpretative scrutiny that I do not think I am in a position to give at this stage from the Dispatch Box. I wonder if he would be content were I to undertake to write to him on the point that he raises.

[Lord Etherton (CB)]

I am grateful for the Minister writing, but at the moment it seems to me that the Minister has not really addressed my point about the need for such a provision and the exclusion of such countries. On that basis, I would be minded to press the amendment.

[Lord Stewart of Dirleton (Con)]

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

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

[Lord Purvis of Tweed (LD)]

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

[Lord Stewart of Dirleton (Con)]

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

[Baroness Butler-Sloss (CB)]

I am so sorry to interrupt the Minister again, but could I ask a straightforward question? What is the view of the Government about countries they are referring to that have not joined, or have not signed up to, the refugee convention?

[Lord Stewart of Dirleton (Con)]

The straightforward answer to the noble and learned Baroness’s question is that we are content to treat with countries that have not signed up to the refugee convention.

On Amendments 29 to 36, the Secretary of State may add a country to Schedule 1 by regulations only if satisfied that there is in general in that country or part of it no serious risk of persecution and will not in general contravene the United Kingdom’s obligations under the human rights convention. In so doing, the Secretary of State must have regard to information from any appropriate source, including member states and international organisations. The views expressed by the United Nations High Commissioner for Refugees on a particular country, among other sources of information, will therefore be considered before a country is added to Schedule 1.

In response to the amendments tabled by the noble Baroness, Lady Hamwee, our contention is that, when considering adding a country to the list in Schedule 1, we need to consider the position in the round. We do not live in a perfect world, so it is reasonable to assess a country on the basis that they are generally safe and to consider the possibility of adding to the list only a part of a country.

The noble and learned Lord, Lord Etherton, raised the matter of Rwanda. In relation to protections for LGBTQ+ persons in that country, the constitution of Rwanda includes a broad prohibition on discrimination. Rwanda does not criminalise or discriminate against sexual orientation in law, policy or practice.

[Lord Etherton (CB)]

My Lords, where does the Minister get the evidence to say that, in practice, as opposed to what is written in the constitution, there is no persecution? There are numerous independent reports and newspaper reports, as well as the Foreign Office’s own advice, to indicate that there is a real risk of persecution in Rwanda, especially for trans women.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

As the noble and learned Lord will be aware, the Rwanda litigation found it to be the case that Rwanda was safe. Beyond that, in relation to the sources of information, the Government operate on the basis of information gathered by their officials, discussed with Ministers and considered in relation to legislation to be put forward.

[Baroness Wheatcroft (CB)]

On that point, can the Minister tell the House whether we should take any notice of guidance from the Foreign Office on whether countries are safe to visit?

[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.

[Baroness Kramer (LD)]

Can the Minister give clarification? The context is that one is a British citizen and the others are not British citizens, and therefore their standards are different. That must be the interpretation: that the Government have a benchmark for British citizens but a completely different benchmark for those who are not British citizens. Can the Minister please explain this much lower benchmark?

[Lord Stewart of Dirleton (Con)]

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

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

[Lord Purvis of Tweed (LD)]

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

[Lord Stewart of Dirleton (Con)]

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

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

[Baroness Butler-Sloss (CB)]

My Lords, I thank everyone who has spoken on this group. In relation to Amendment 19, it is not proposed to test the opinion of the House.

Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Lord Paddick (LD)]

I am very sorry, but on Report noble Lords are allowed to speak only once.

As the noble Lord, Lord Coaker, and the noble Baroness, Lady Meacher, said, the Bill is focused entirely on criminalising the victims of people smugglers and not on the people smugglers themselves. We intend to support the amendment of the noble Lord, Lord Coaker: if his amendment is carried, at least there will be one line, or a few lines, in the Bill that will focus on the real problem, which is the criminal people smugglers and those who are carrying out modern slavery and trafficking, as the noble Baroness, Lady Meacher, said.

The noble and learned Lord, Lord Garnier, said, in effect, that this amendment was not necessary because under Section 1(4) of the Crime and Courts Act 2013, one reason for the National Crime Agency to exist is:

“The NCA is to have the function … of securing that efficient and effective activities to combat organised crime and serious crime are carried out”.


People smuggling, people trafficking and so forth are clearly organised and serious crime, but that then leads to the question raised by the noble and learned Baroness, Lady Butler-Sloss, about priorities for the National Crime Agency. The strategic priorities for the National Crime Agency are set out in Section 3 of the 2013 Act, which says:

“The Secretary of the State must determine strategic priorities for the NCA”.


I have looked at the current strategic priorities for the National Crime Agency, as set by the Home Secretary, and people smuggling, trafficking and people facilitating the sorts of things that the Bill is supposed to combat are nowhere to be seen; there is nothing in the strategic priorities about it. How can the Government say that it is a priority of the Prime Minister to tackle small boats coming across the channel when it is not a strategic priority set by the Home Secretary for the National Crime Agency? The only way we can get the National Crime Agency to focus on people smugglers is to support the amendment in the name of the noble Lord, Lord Coaker, which is what we on these Benches will do.

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

My Lords, Amendment 168 moved by the noble Lord, Lord Coaker, seeks to confer on the National Crime Agency a specific function in respect of tackling organised immigration crime and to require it to maintain a cross-border people-smuggling unit. The noble Lord opposite has spoken powerfully today, as he did at previous stages of the Bill. I am gratified to hear the powerful expressions of support from the noble Lord and the Benches behind him for the Government’s commitment to addressing these repugnant crimes.

I have sympathy for the underlying aim of this amendment, in that we all agree on the need to tackle organised immigration crime, but I put it to the noble Lord that his amendment is unnecessary. As we have heard from noble Lords in the debate, the functions of the National Crime Agency are set out clearly in Section 1 of the Crime and Courts Act 2013. I echo the noble Lord, Lord Paddick, who quoted from Section 1(4) of that Act:

“The NCA is to have the function … of securing that efficient and effective activities to combat organised crime and serious crime are carried out”.


At this point, I gratefully echo and adopt the points made by my noble and learned friend Lord Garnier. This function covers all forms of organised crime, and therefore includes organised immigration crime. Accordingly, adding the proposed new function would add nothing to the NCA’s remit. One reads in the NCA’s annual report of the range of activities in which it is already engaged to help address the problem of cross-channel people-smuggling gangs. That commitment also appears on the face of its website, which looks at border vulnerabilities, modern slavery and human trafficking.

As for the second limb of the amendment, which would require the NCA to establish a bespoke cross-border people-smuggling unit, I put to the noble Lord and to the House that this would undermine the operational independence of the NCA—a point made by the noble and learned Baroness, Lady Butler-Sloss. It is properly a matter for the director-general of the National Crime Agency to determine how best the agency is to be organised to deliver its statutory functions. In saying that, I again respectfully echo the point made by my noble and learned friend Lord Garnier from the Benches behind me.

I say in answer to the noble Baroness, Lady Meacher, that the Government are committed to confronting serious organised crime in and against the UK. To help achieve this outcome, we have made significant progress in strengthening the National Crime Agency. The NCA’s budget has increased by at least 21% in the last two years to more than £860 million, which will help it continue to develop the critical capabilities it needs.

I will address a couple of specific points put by the noble Lord, Lord Coaker, in opening this section of the debate. He asked about the manner in which the activities of organised crime through social media are being addressed by the NCA. The National Crime Agency works closely with the major tech companies to take down organised and information crime-related content where it appears on social media. Between November 2021 and March 2023, the NCA made more than 3,400 referrals to social media companies regarding posts and accounts related to suspected organised immigration crime. Some 97% of these referrals have been taken down by the respective platforms. I hope that offers some grounds for confidence to the noble Lord as he carefully addresses the provisions of the Bill and his response.

The noble Lord also asked me about the number of prosecutions arising from this. I will go on to touch upon that subject as I move on to the manner in which the NCA’s work, along with that of our partners abroad in other jurisdictions, is organised and co-ordinated. The Government have a dedicated multiagency organised immigration crime task force, to which the NCA contributes and in which it participates. This task force is committed to dismantling organised immigration crime groups engaged in immigration crime internationally, including criminal networks that facilitate people smuggling from source countries to Europe and then to the UK, knowingly putting people in life-threatening situations. If I may, I will rehearse a couple of statistics that I gave to your Lordships’ House in Committee. The task force is currently active in 17 countries worldwide, working with its partners to build intelligence sharing as well as investigative and prosecution capability.

I will now address the specific question regarding prosecutions that the noble Lord, Lord Coaker, put to me from the Front Bench. Since 2015 and the inception of Project INVIGOR, the United Kingdom’s organised immigration crime task force has been involved in more than 1,400 arrests both in the United Kingdom and overseas with, on conviction, sentences collectively amounting to more than 1,300 years in prison being imposed.

Following the pledge made by the Prime Minister on 13 December to stop the dangerous small boats crossings, the Government have doubled funding for the next two financial years for this task force. This increased funding has as its aim doubling the number of disruptions and enforcement activity against organised immigration crime and the criminal gangs that facilitate it.

As the noble Lord said from the Dispatch Box, he has had an opportunity to discuss these matters with the NCA, and I am grateful for his kind words in relation to Home Office Ministers for assisting with facilitating that. I hope that, in light of what he learned in that meeting and what I have been able to say from the Dispatch Box concerning the activities of the NCA, the desirability of maintaining its operational independence and the increased funding under which it is operating, the noble Lord will be content to withdraw his amendment.

I turn to Amendment 168AZA tabled by my noble friend Lord Swire, which would place a duty on the Secretary of State to publish a report on illegal migration, including statistics on the number of illegal migrants in the United Kingdom. I understand that my noble friend Lord Murray of Blidworth has also discussed this amendment with my noble friend following Committee. We recognise the importance of having clear and coherent datasets, but I invite the House to reflect on this: by the very nature of that body, it is not possible to know the exact size of the illegal population or the number of people who arrive illegally, so we do not seek to make any official estimates of the illegal population. I hear what my noble friend has to say about the way in which such figures might be gathered, but they would remain estimates.

My noble friend bemoaned the fact that his amendment has not caught the attention of your Lordships’ House and that the House has not demonstrated affection for it. In my experience, your Lordships’ House has demonstrated on many occasions its feeling for the importance of statistical evidence as a guide to policy-making. I hear very clearly what the noble Baroness, Lady Fox of Buckley, my noble and learned friend Lord Garnier and my noble friend Lord Swire said about that. However, in circumstances where such figures cannot be known exactly, I invite the House to reflect that it would not be appropriate to pass my noble friend’s amendment in its current form.

Illegal Migration Bill

Lord Stewart of Dirleton Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

That this House do not insist on its Amendment 102, to which the Commons have disagreed for their Reason 102A.

102A: Because the Amendment is unnecessary as the Government has already committed to implement additional safe and legal routes as proposed in the report to be published under clause 59 as soon as practicable and in any event by the end of 2024.

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

My Lords, I am grateful for the debates we have had on safe and legal routes and their importance. As has been stated hitherto, the Government are committed to providing safe and legal routes, and we recognise the United Kingdom’s role in providing protection for those in need.

The United Kingdom has been proud to offer for many years a range of global resettlement routes as part of our safe and legal offer. Our global resettlement schemes offer safety in the United Kingdom to refugees who have been displaced by conflict, violence and persecution, and identified by the UNHCR as the most in need of resettlement. Beside our global schemes, we also offer country-specific safe and legal routes for those from Afghanistan, Hong Kong and Ukraine.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, we do not characterise the time taken properly to consider the identification and implementation of safe and legal routes as being in any sense a delay. Rather, it is a proper, considered application of thought to make sure that the measures will work correctly. Beyond that point, I have nothing further to add.

[Baroness Stroud (Con)]

I would like to test the will of the House.