Illegal Migration Bill

Nigel Evans Excerpts

Report stage
Wednesday 26th April 2023 Commons Chamber

I do not have time to go into the detail, but I simply say that, by introducing a measure to restrict interim relief, the Bill will make it clear to the courts the intention that only in-country claims, other than factual suspensive claims, should be under the narrow exception provided by the Bill. In other words, where people face a real and imminent risk of “serious and irreversible harm” in the specific country to which they are being removed, this provision will apply and the courts will be restricted in the manner in which they apply that interpretation to the individual in question. That will ensure that all other legal challenges must be “non-suspensive”. In other words the courts can still hear an individual’s case out of country—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. Sorry—time’s up. I call Patrick Grady.

[Patrick Grady]

I am not sure I fully completed my hon. Member for Stone bingo card there, but we certainly got most of the greatest hits.

I am not sure whether the hon. Member for Dover (Mrs Elphicke) is aware—I apologise to her if she was not—that a cross-party delegation of MPs visited the port of Dover last week with the Industry and Parliament Trust. We learned that in 55 BC illegal migrants from Rome, possibly led by Julius Caesar, were pelted from the White Cliffs with sticks and rocks. It is just as well that none of the Ministers from the Home Office was on that delegation, because it might have given them ideas for further amendments to the Bill, permitting the throwing of stones at craft attempting to land—or perhaps they would be instructing Border Force to seize the bronze age boat from Dover Museum in an attempt to track down any descendants of illegal migrants from 3,000 years ago.

We also learned about the Border Force processing facility in Dover. Despite the myths of an invasion of small boats washing up on beaches across the south of England, in reality most small boats are diverted directly from channel shipping lanes, where of course they are a major risk to larger vessels, and from there people are processed and sent directly to Marston or elsewhere. There is no invasion; there are no thousands of people prowling the streets. There are just human beings so desperate that they are willing to risk their lives to get here.

Although the provisions of the Bill are designed to be retroactive from 7 March this year, according to the Home Office website, there does not appear to be any significant change in the patterns of detections since the Bill was introduced, so if the Bill was supposed to have a deterrent effect, it appears to be failing from the start. However, that has not prevented the Government from doubling down on their hostile environment with the swathe of amendments they have tabled today.

In Committee, the Minister took issue with the number of amendments tabled by my hon. Friend the Member for Glasgow Central (Alison Thewliss), saying:

“At this rate, there will be more SNP amendments to the Bill than there are refugees whom they accommodate in Scotland. Instead of pruning the already excessive forest of legal challenges that we find, the hon. Member for Glasgow Central (Alison Thewliss) proposes a Kafkaesque array of new ones.”—[Official Report, 27 March 2023; Vol. 730, c. 777.]

Yet now it is the Government who have tabled a forest of amendments, with an amendment paper running to 73 pages. Of course, if the Government had tabled just one amendment, that would be more than the number of asylum seekers they actually seem to want to accommodate in this country.

If people are looking for Kafkaesque amendments, they should turn to Government new clause 26 and its consequential amendments. Picking and choosing which parts of the ECHR they want to apply at any given time betrays the true agenda of the Home Secretary and her cheerleaders on the Tory Back Benches—to take us out of European, and eventually global, human rights frameworks altogether.

The same applies to the Government amendments, which will undermine their own previous legislation on human trafficking and modern slavery. Those measures will be counterproductive; as the Trades Union Congress has said, the proposals will mean that,

“modern slavery victims who are trafficked…for exploitation will first be denied refuge, then returned to their country of origin and almost certainly back to the criminal gangs who trafficked them in the first place.”

Where the Government have been forced into making concessions, they are nowhere near adequate. I have heard from many constituents in Glasgow North who want refugees to be welcomed here, to have the right to work so they can contribute to our economy and society, as Plaid Cymru proposes in new clause 1, and to be able to come here by defined, safe and legal routes that are established and workable—not a vague pledge to publish a plan for a review of a consultation in a few months’ time, as suggested in new clause 8.

In fact, what constituents in Glasgow North want to see is the Bill defeated at Third Reading and scrapped altogether. Failing that, the Government should adopt the wide range of amendments tabled by the SNP, which aim to bring at least a vestige of humanity into the system, as our amendment 45 would do by requiring courts to make sure the Act is interpreted in line with our international treaty obligations, and to ensure it still resembles an actual asylum process rather than deportation charter, which is why we have tabled amendment 46 to delete clause 2 in its entirety.

I have asked this in this House before, but how often have Home Office Ministers, or their Faragiste fanboys on their Back Benches, sat down with asylum seekers and people who have come here on small boats to listen to their stories? There is an open invitation to any of them—Front Benchers and Back Benchers alike—to come to Glasgow North and meet the inspiring members of the Maryhill Integration Network, who have come here fleeing war and persecution and who, despite being met by the most hostile of environments created by the Home Office, are determined to make a new home in Scotland and make our society a better place for everyone to live in.

That is what an effective asylum system should be designed to produce: people in genuine need being supported and welcomed to rebuild shattered lives and strengthen our society as a whole. The Government’s amendments today to an already inhumane Bill move us even further away from that ideal. However, it is an ideal that constituents in Glasgow North and across Scotland will continue to aspire to, and it will be the foundation of our own independent asylum and immigration system when Scotland too breaks free of the UK’s hostile environment.

--- Later in debate ---

[Mr Deputy Speaker (Mr Nigel Evans)]

Before I start putting the questions, maybe I can help with a little bit of process. I am anticipating five votes between 6 and 7 o’clock. The first vote will clearly take 10 minutes, but every subsequent vote will be eight minutes, so my strongest advice to everybody is to stay within the parliamentary estate in order that the votes can be taken as efficiently as possible. Owing to the number of votes, I will put the Tellers in place as quickly as I possibly can.

6 pm

Debate interrupted (Programme Order, 13 March).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

Question agreed to.

New clause 17 accordingly read a Second time, and added to the Bill.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).

New Clause 19

Credibility of claimant: concealment of information etc

“(1) Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (claimant’s credibility) is amended as follows.

(2) In subsection (3)—

(a) in paragraphs (a) and (c) for “a passport” substitute “an identity document”;

(b) in paragraph (b) for “passport” substitute “identity document”;

(c) after paragraph (d) (but before the “and”) insert—

“(da) failure to provide to an immigration officer or the Secretary of State, on request, any information or anything else required in order to access any information stored in electronic form on a thing in the possession of an immigration officer or the Secretary of State that—

(i) was found on the claimant, or

(ii) appears to an immigration officer or the Secretary of State to have been in the possession of the claimant,”.

(3) In subsection (7)—

(a) insert at the appropriate place—

““document” includes information recorded in any form;”;

““identity document” means any document that may be used (whether by itself or otherwise and with or without modifications) to establish, or provide evidence of, a person's identity or address;”;

(b) omit the definition of “passport”.

(4) In subsection (8) for “A passport” substitute “An identity document”.”—(Robert Jenrick.)

This new clause amends section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 to provide for certain kinds of behaviour relating to an identity document or electronic information by a person who makes an asylum claim or a human rights claim to be taken into account as damaging the claimant's credibility.

Brought up, and added to the Bill.

New Clause 20

Legal aid

“(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services) is amended as mentioned in subsections (2) to (4).

(2) In Part 1 (services), in paragraph 19 (judicial review)—

(a) after sub-paragraph (6) insert—

“(6A) Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal to a third country under the Illegal Migration Act 2023, in relation to judicial review of a refusal of a human rights claim that—

(a) arises from Article 2 or 3 of the Human Rights Convention, and

(b) is made by the individual.”;

(b) in sub-paragraph (10) insert at the appropriate places—

““human rights claim” has the meaning given by section 113 of the Nationality, Immigration and Asylum Act 2002;”;

““the Human Rights Convention” has the meaning given by paragraph 30 of this Part of this Schedule;”;

““third country” has the meaning given by section 37 of the Illegal Migration Act 2023.”

(3) In that Part, after paragraph 31B insert—

“Removal notices under the Illegal Migration Act 2023

31C (1) Civil legal services provided to an individual who has received a removal notice, in relation to the removal notice (including in relation to a suspensive claim relating to the removal notice, and an application under section 44(4) of the Illegal Migration Act 2023 as regards such a claim).

(2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

(3) In this paragraph “removal notice” and “suspensive claim” have the meaning given by section 37 of the Illegal Migration Act 2023.”

(4) In Part 3 (advocacy: exclusions and exceptions) after paragraph 16 insert—

“16A Advocacy in proceedings in the Upper Tribunal under any of sections 44 to 46 or 48 of the Illegal Migration Act 2023.”

(5) In regulation 11(9) of the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (qualifying for civil legal services: cases in which merits criteria do not apply)—

(a) omit the “or” at the end of sub-paragraph (d);

(b) after sub-paragraph (e) insert “, or

(f) in relation to any matter described in paragraph 31C of Part 1 of Schedule 1 to the Act (removal notices under the Illegal Migration Act 2023).””—(Robert Jenrick.)

This new clause provides for the provision of legal aid in respect of certain matters.

Brought up, and added to the Bill.

New Clause 23

Electronic devices etc

“Schedule (Electronic devices etc) confers—

(a) powers to search persons liable to be detained under paragraph 16(2C) of Schedule 2 to the Immigration Act 1971 (illegal migrants), and to search vehicles, premises and property, for things on which certain information is or may be stored in electronic form;

(b) powers to seize and retain such things, and to access, copy and use information stored on those things.”—(Robert Jenrick.)

This new clause, and the new Schedule it introduces, confers power to search for, seize and retain mobile phones and other things on which information is stored in electronic form, and to access, copy and use that information.

Brought up, and added to the Bill.

New Clause 24

Decisions relating to a person’s age

“(1) This section applies if a relevant authority decides the age of a person (“P”) who meets the four conditions in section 2 (duty to make arrangements for removal), whether that decision is for the purposes of this Act or otherwise.

(2) If the decision is made on an age assessment under section 50 or 51 of the Nationality and Borders Act 2022, P may not bring an appeal against the decision under section 54(2) of that Act.

(3) Subsections (4) and (5) apply if P makes an application for judicial review of—

(a) the decision mentioned in subsection (1), or

(b) any decision to make arrangements for the person’s removal from the United Kingdom under this Act which is taken on the basis of that decision.

(4) The application does not prevent the exercise of any duty or power under this Act to make arrangements for the person’s removal from the United Kingdom.

(5) The court—

(a) may quash the decision only on the basis that it was wrong in law, and

(b) may not quash the decision on the basis that the court considers the decision mentioned in subsection (1) was wrong as a matter of fact.

(6) In this section “relevant authority” means—

(a) the Secretary of State,

(b) an immigration officer,

(c) a designated person within the meaning of Part 4 (age assessments) of the Nationality and Borders Act 2022,

(d) a local authority within the meaning of that Part, subject to subsection (7), or

(e) a public authority within the meaning of that Part which is specified in regulations under section 50(1)(b) of that Act (referral of age-disputed person for age assessment).

(7) This section applies in relation to a decision of a local authority which is a decision within subsection (1) only if it is for the purposes, or also for the purposes, of the local authority deciding whether or how to exercise any of its functions under relevant children’s legislation within the meaning of Part 4 of the Nationality and Borders Act 2022.

(8) This section applies only in relation to a decision which is made after this section comes into force.

(9) The Nationality and Borders Act 2022 is amended as follows.

(10) In section 54(6) (appeals relating to age assessments)—

(a) omit the “and” at the end of paragraph (a), and

(b) at the end of paragraph (b) insert “, and

(c) section (Decisions relating to a person’s age) of the Illegal Migration Act 2023 (decisions relating to a person’s age).”

(11) In section 56(1) (new information following age assessment or appeal), for paragraph (b) (and the “and” at the end of that paragraph) substitute—

“(b) an appeal under section 54(2)—

(i) could no longer be brought (ignoring any possibility of an appeal out of time),

(ii) has been finally determined, or

(iii) may not be brought as a result of section (Decisions relating to a person’s age)(2) of the Illegal Migration Act 2023 (age assessments relating to removal under that Act), and”.”—(Robert Jenrick.)

This new clause makes provision about challenges to decisions about a person’s age where the person meets or may meet the conditions for removal from the United Kingdom under the Bill.

Brought up, and added to the Bill.

New Clause 25

Age assessments: power to make provision about refusal to consent to scientific methods

“(1) The Secretary of State may make regulations about the effect of a decision by a relevant person (“P”) not to consent to the use of a specified scientific method for the purposes of an age assessment of P where there are no reasonable grounds for P’s decision.

(2) The regulations may provide that, in the circumstances set out in the regulations—

(a) section 52(7) of the Nationality and Borders Act 2022 (refusal to consent to scientific methods to be taken to damage credibility) does not apply, and

(b) P is to be treated as if the decision-maker had decided that P was over the age of 18.

(3) In this section—

“age assessment” means an assessment under section 50 or 51 of the Nationality and Borders Act 2022;

“decision-maker” and “specified scientific method” have the same meanings as in Part 4 of the Nationality and Borders Act 2022 (see section 49 of that Act);

“relevant person” means a person who meets the four conditions in section 2 (duty to make arrangements for removal).

(4) In Part 4 of the Nationality and Borders Act 2022 (age assessments)—

(a) in section 52 (use of scientific methods in age assessments), in subsection (7), at the end insert “(See also section (Age assessments: power to make provision about refusal to consent to scientific methods) of the Illegal Migration Act 2023 (power to make provision about refusal to consent to scientific methods).)”;

(b) in section 53 (regulations about age assessments), in subsection (1)(a)(iv), after “method,” insert “the circumstances in which a person may be considered to have reasonable grounds for a decision not to consent and”.”—(Robert Jenrick.)

This new clause contains a power to make regulations about the effect of a refusal, by a person to whom the Bill applies, to consent to the use of a scientific method in an age assessment. The regulations may provide that, in certain circumstances, the person may be assumed to be an adult. The Secretary of State will not exercise the power until satisfied that the scientific methods in question are sufficiently accurate to mean that applying the automatic assumption in cases of refusal to consent will be compatible with the European Convention on Human Rights (in particular Article 8 (right to private and family life)).

Brought up, and added to the Bill.

New Clause 26

Interim measures of the European Court of Human Rights

“(1) This section applies where the European Court of Human Rights indicates an interim measure in proceedings relating to the intended removal of a person from the United Kingdom under, or purportedly under, this Act.

(2) A Minister of the Crown may (but need not) determine that the duty in section 2(1) (duty to make arrangements for removal) is not to apply in relation to the person.

(3) A decision as to whether or not to make a determination under subsection (2) is to be taken personally by the Minister of the Crown.

(4) In considering whether to make a determination under subsection (2), the Minister may have regard to any matter that the Minister considers relevant, including in particular the matter in subsection (5).

(5) The matter mentioned in subsection (4) is the procedure by reference to which the interim measure was indicated, including in particular—

(a) whether the government of the United Kingdom was given an opportunity to present observations and information before the interim measure was indicated;

(b) the form of the decision to indicate the interim measure;

(c) whether the European Court of Human Rights will take account of any representations made to it by the government of the United Kingdom seeking reconsideration, without undue delay, of the decision to indicate the interim measure;

(d) the likely duration of the interim measure and the timing of any substantive determination by the European Court of Human Rights.

(6) Where a Minister of the Crown does not make a determination under subsection (2), a person or body to which subsection (7) applies may not have regard, in the circumstances mentioned in subsection (7), to the interim measure.

(7) This subsection applies to—

(a) the Secretary of State or an immigration officer when exercising a function under section 2(1) or 7(2), (4) or (5) (further provisions about removal),

(b) the Upper Tribunal when considering any application or appeal under this Act, and

(c) a court or tribunal when considering any application or appeal which relates to a decision to remove a person from the United Kingdom under this Act.

(8) No inference is to be drawn from this section as to whether or not a person or body mentioned in subsection (7) would otherwise have been required to have regard to the interim measure.

(9) Nothing in this Act requires the Secretary of State or an immigration officer to effect the removal of a person from the United Kingdom pending a decision by a Minister of the Crown as to whether or not to make a determination under subsection (2).

(10) In this section—

“decision” includes any purported decision;

“determination” includes any purported determination.”—(Robert Jenrick.)

This new clause provides that an interim measure indicated by the European Court of Human Rights does not affect the duty in clause 2 of the Bill to make arrangements for the removal of a person from the United Kingdom, unless a Minister of the Crown acting in person determines that it is to do so.

Brought up, and added to the Bill.

New Clause 22

Interim remedies

“(1) This section applies to any court proceedings relating to a decision to remove a person from the United Kingdom under this Act (whether the proceedings involve consideration of Convention rights or otherwise).

(2) Any power of the court to grant an interim remedy (whether on an application of the person or otherwise) is restricted as follows.

(3) The court may not grant an interim remedy that prevents or delays, or that has the effect of preventing or delaying, the removal of the person from the United Kingdom in pursuance of the decision.

(4) In this section—

“Convention rights” has the same meaning as in the Human Rights Act 1998 (see section 1(1) of that Act);

“court proceedings” means proceedings in any court (including, in particular, proceedings on an application for judicial review);

“decision” includes any purported decision;

“interim remedy” means any interim remedy or relief however described (including, in particular, an interim injunction or interdict).”—(Robert Jenrick.)

This new clause would restrict the granting of certain interim remedies by a court in proceedings relating to a decision to remove a person from the United Kingdom under the Bill.

Brought up, and added to the Bill.

New Clause 8

Report on safe and legal routes

“(1) The Secretary of State must, before the end of the relevant period—

(a) prepare and publish a report on safe and legal routes by which persons may enter the United Kingdom, and

(b) lay the report before Parliament.

(2) The report must—

(a) contain details of the safe and legal routes by which persons may enter the United Kingdom when the report is published,

(b) contain details of any proposed additional safe and legal routes which have not come into operation at that time,

(c) specify the routes within paragraph (a) or (b) which are or will be available to adults,

(d) specify the routes within paragraph (a) or (b) which are or will be available to children, and

(e) contain details of how routes within paragraph (a) or (b) may be accessed by persons who are eligible to use them.

(3) In this section—

“adult” means a person who is aged 18 or over;

“child” means a person who is under the age of 18;

“the relevant period” means the period of 6 months beginning with the day on which this Act is passed.”—(Robert Jenrick.)

This new clause requires the Secretary of State to prepare and publish a report on safe and legal routes for entry into the United Kingdom and to lay the report before Parliament.

Brought up, and added to the Bill.

New Clause 9

Accommodation: duty to consult

“(1) Section 97 of the Immigration and Asylum Act 1999 (supplemental) is amended as follows.

(2) After subsection (3A) insert—

‘(3B) When making arrangements for the provision of accommodation under section 95 or section 4 of this Act, the Secretary of State must consult with representatives of the local authority or local authorities, for the area in which the accommodation is located.

(3C) The duty to consult in subsection (3B) applies to accommodation including hotel accommodation, military sites, and sea vessels.

(3D) The duty to consult in subsection (3B) also applies to any third party provider operating within the terms of a contract with the Secretary of State.’”—(Stephen Kinnock.)

This new clause would add to the current law on provision of accommodation to asylum seekers a requirement to consult with the relevant local authorities when making the necessary arrangements.

Brought up.

Question put, That the clause be added to the Bill.

--- Later in debate ---

[Alison Thewliss]

On a point of order, Mr Deputy Speaker. We have just passed a Bill for which the Home Secretary is unable to make a declaration under section 19 of the Human Rights Act 1998 that it will be compatible. Others have suggested that it will break the refugee convention, the Council of Europe convention on action against trafficking in human beings, the United Nations convention on the rights of the child and the UN convention relating to the status of stateless persons. I seek your guidance, Mr Deputy Speaker. I am sure that none of our constituents sent us to this place to break the law, and it seems to me that we have perhaps done so in voting for the Illegal Migration Bill. Given that we have a very special duty in this place to be guarantors of human rights in this Parliament, collectively and individually, can you advise what we might do?

[Mr Deputy Speaker (Mr Nigel Evans)]

I thank the hon. Lady for her point of order and forward notice of it. I can only respond to the bits for which the Chair is responsible, and I am content that the House has proceeded perfectly properly, but her comments are on the record.

[Peter Grant (Glenrothes) (SNP)]

Further to that point of order, Mr Deputy Speaker. Have you or Mr Speaker had any contact from the Leader of the House to indicate whether in future the Government intend to allow sufficient time for major pieces of legislation to be properly considered before being pushed through?

[Mr Deputy Speaker]

I thank the hon. Gentleman for his point of order. I can only speak for myself—I have not spoken to Mr Speaker—but no one has been in touch with me.