Illegal Migration Bill

Simon Clarke Excerpts

Committee stage
Monday 27th March 2023 Commons Chamber

[Stuart C. McDonald]

I notice the Minister is listening very carefully indeed.

Why is there a “compelling evidence” requirement? More importantly, is that not totally inconsistent with the test of real risk? That is the point of amendment 83. The danger is that even a probability of “serious and irreversible harm” will not be enough because of the type of evidence that can realistically be provided in the ludicrously tight timescale provided for.

On timeframes, we have various amendments to challenge the time periods that have been formally set out by the Government. The notion that eight days is enough time for an application is for the birds, as we know from the chaotic processes used during previous attempts to remove people to Rwanda, when many who were served notice barely understood what was happening. Language barriers, difficulties in access to solicitors and legal aid, the requirements of prescribed forms and demands for compelling evidence in the application mean that eight days will never happen. Those processes give rise to the risk that even those who could in theory make a challenge will miss out unjustly.

On that very important point, can the Minister provide clarity on how he will ensure that legal advice is accessible and, importantly, what his Government’s position is on the availability of legal aid? Those are hugely important issues that are not really touched on in the Bill.

Given the ludicrously restricted timeframes, the restrictions on “out of time” claims in clause 44 are frightening. Our amendments from amendment 101 onward seek to challenge that. This time “compelling evidence” of a “compelling reason” for missing the eight-day deadline is required. What on earth does that mean? Is an inability to understand the notice, language difficulties or the impossibility of finding a solicitor sufficient? More fundamentally, are the Government saying it is okay to remove someone who is certainly going to face “serious and irreversible harm” just because they were a few hours late with the paperwork and did not have a decent excuse for that? It makes absolutely no sense.

The seven-day timeframe for appeals to be lodged in clause 47 is equally absurd for all those reasons. Again, how will access to legal advice and legal aid be ensured? Who did the Government consult when putting together that challenging timeframe? Why have the Government chosen to bypass the first-tier tribunal? Why are the Government suggesting using first-tier employment law judges to assess difficult issues of removal and serious harm?

Some will have an even more difficult route to challenge a refusal if the Home Secretary decides that a claim is “clearly unfounded”. The clauses do not seem to make any sense. If, as seems to be the case, to make a valid application someone needs to provide compelling evidence of harm, it is difficult to see how any valid application containing such compelling evidence can be deemed clearly unfounded. Going beyond that, the grounds for appeal to the upper-tier tribunal are, again, objectionably difficult. Just to get permission to appeal, compelling evidence of serious or irreversible harm is required, assessed on the papers with no further right of appeal. Our amendments to clause 43 seek to rectify that.

We object to the Bill instructing the tribunal how to do its work, in particular how to make assessments of fact. Judges—not the Secretary of State—should determine what new matters can be considered, and what evidence and facts are relevant to their decisions. Our amendments to clauses 46 and 47 and various other clauses seek to protect the independence of the tribunal. We object strongly to the ouster clause in clause 48, in particular the restrictions on the supervisory jurisdiction of the Court of Session.

Amendments 100 and 108 seek to challenge restrictions on onward rights of appeal. These are serious and significant issues of profound importance. Removing the oversight of the courts is unacceptable and unconstitutional. We had a well-developed and functioning system of appeals and judicial oversight. The Government should stop dismantling it. Instead, the Bill will leave most people seeking to assert their rights able to do so only after they have been removed. The notion that such challenges can be successfully undertaken from thousands of miles away is absurd.

The fundamental question is, what happens if someone is successful in making a suspensive case? All that clause 45 states is that they cannot be removed; it does not allow them access to the asylum process or any other assessment of their case. They, like tens of thousands of others who cannot be removed simply because there is nowhere to remove them to, will be left in limbo—a limbo that is disastrous for the taxpayer but life-destroying for the individuals involved. A desperate outcome from a desperate Bill.

Finally, although we support almost all the other amendments and new clauses tabled by Opposition Members, we have concerns about new clauses 23 and 25. New clause 23 would require the Secretary of State to use her broad discretion to put in place a fast-track asylum procedure for so-called “low grant-rate countries”. It contains an amazingly wide definition of a low grant-rate country, which would include nationalities where 49% of applicants had successfully sought asylum.

New clause 25 has aspects that are fine, but crucial to what it tries to do are co-operation agreements for the removal of people who have had claims declared inadmissible. However, there is no definition of “inadmissible” separate from the definition in clauses 2 and 4. That goes to the heart of all of the problems with the Bill. We will continue to listen carefully to what is said about those new clauses, but we are concerned that they need further work.

In short, we oppose every aspect of the Bill. We object to the outrageous timeframe for its consideration and to the lack of impact assessment before we debate it. Our amendments try to mitigate some of its worst aspects but, ultimately, it remains an unlawful Bill completely and utterly beyond repair.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

I rise to speak to amendment 132, which appears in my name. Together with amendments 131, 133 and 134, it has been drawn up with the express purpose of ensuring that our legislation does what my right hon. Friend the Prime Minister has rightly said should be our priority: stopping small boats and the evil trade that sustains them.

We are fortunate to live in one of the greatest countries on earth. Unless we believe in a literally unlimited right of immigration, in any sane legal order, we in the United Kingdom must have the ability to effectively control our borders. It is only by having such control that we can maintain democratic consent for both legal migration and our system for allowing asylum to those in need, as we have done rightly and generously for those fleeing the repression of the Chinese state in Hong Kong, the bestiality of the Taliban in Afghanistan or the cruelty of Putin’s war in Ukraine. As my right hon. Friend the Minister for Immigration said from the Dispatch Box, almost half a million humanitarian visas have been granted by this country since 2015, of which 50,000 came from existing global safe and legal routes.

At the moment, we do not exercise the control to which I alluded a moment ago. Contrary to what Opposition Members may pretend, no amount of operation with the French or investment in our infrastructure at the border—welcome though those things are—can deter people attempting the crossing in the tens of thousands each year.

[Scott Benton (Blackpool South) (Con)]

My right hon. Friend makes a fantastic point about this nation being hospitable and generous, particularly over the last few years. Does he agree with the point raised by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) that there is a problem not just with illegal routes and illegal immigration, but that over time we have had more and more legal migration? I am afraid that our population is now rising so quickly that it is fundamentally undermining our ability to provide public services.

[Mr Clarke]

I certainly believe that, vitally, we will only have democratic consent for legal migration if it is clear that that happens at the behest of and with the consent of this House and, critically, that we do not have an illegal immigration situation that is beyond this House’s control.

The reality is that if we are to effectively deter the evil trade of people smuggling, we need to tackle the incentives. That means making it crystal clear that coming here illegally will lead to swift detention and removal. It is neither compassionate nor sustainable to allow what is an abuse of our immigration system to continue. I can testify that, having sat in meeting after meeting with the Home Office as the Chief Secretary to the Treasury, the cost to the Exchequer of millions of pounds each day for hotels to house asylum seekers is not something that we should take lightly. That is, in part, why I tabled my amendments.

Bitter experience teaches us that Tony Blair’s Human Rights Act will otherwise act to frustrate the will of Parliament. The Government have therefore rightly drafted the Bill to disapply section 3 of the Act. However, I believe that other sections of the Act will be engaged too, and they should also be disapplied for the express purpose of this legislation. I say that not on my own authority but on that of Professor Richard Ekins of Oxford University and Sir Stephen Laws KC, the former First Parliamentary Counsel. As they argue in their February Policy Exchange paper:

“New legislation should expressly disapply the operative provisions of the 1998 Act, specifying...section 3 (interpretation of legislation), section 4 (declaration of incompatibility), section 6 (acts of public authorities) and section 10 (power to take remedial action)”.

They go on to say:

“Without legislative provision to this effect, it is inevitable that claimants will challenge the Home Secretary’s understanding of the legislation, inviting the courts either to interpret the legislation to read down her duty to remove persons from the UK (or reading in new procedural requirements) or to declare the legislation incompatible with Convention rights and thus authorising ministers to change it by executive order and ensuring that political pressure would be brought to bear to that end.”

Having disapplied section 3 on the basis that it leaves open the possibility of systemic legal challenge, I can see no legal, philosophical or practical argument against doing the same where a similar risk exists.

Ultimately, we know that our best—and probably only—chance to avoid this legislation being entangled in human rights law is for this place to be absolutely clear and unambiguous about our intentions. My amendment flows in that spirit. We should show the determination now—not after the fact, if and when the fears of many of us in this House have been realised—to make our intentions clear in the Bill.

I wish to speak briefly in favour of amendment 131, tabled by my hon. Friend the Member for Devizes (Danny Kruger), which has a comparable aim to my amendment in respect of the ECHR. I do so for the reasons set out by the Lord Chancellor at the time that the United Kingdom entered into the convention. He said:

“The real vice of the document, therefore consists in its lack of precision. I should be unable to advise with any certainty as to what result would be arrived at in any given case, even if the judges were applying the principles of English law. It completely passes the wit of man to guess what results would be arrived at by a tribunal composed of elected persons who need not even be lawyers, drawn from various European states possessing completely different systems of law, and whose deliberations take place behind closed doors.”

In a nutshell, that is the risk to which we expose the legislation if we proceed without that protection.

I very much hope that my right hon. Friend the Minister will take these amendments seriously and work with us, over the course of the crucial weeks ahead, to ensure the legislation respects the will of the House and, I believe, the will of the British people.

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

First, I add my voice to the concerns already raised by a number of Members about the lack of an impact assessment, an equality impact assessment and a children’s rights impact assessment, as we commence the Bill’s important Committee stage. In the Home Affairs Committee report on small boats and migration, we made it clear that:

“There is no magical single solution to dealing with irregular migration. Detailed, evidence-driven, fully costed and fully tested policy initiatives are by far most likely to achieve sustainable incremental change that deters journeys such as dangerous Channel crossings.”

So it is regrettable that we do not have all the information, including the costing and the impact assessments, when debating these clauses today, particularly when the Bill is being rushed through the Commons.