Safety of Rwanda (Asylum and Immigration) Bill

Stephen Kinnock Excerpts

Committee of the whole House
Tuesday 16th January 2024 Commons Chamber

[Robert Jenrick]

I will not give way to the hon. Gentleman.

The amendment also says there very narrow grounds on which individuals will not be put on flights, grounds that the Home Office is very used to dealing with through fitness to travel requirements. That is a concept that is well known and understood and I am certain it would work.

What does the amendment do that is different? It narrows down the reasons for which individuals could make claims and makes the scheme legally and operationally workable for the first time. We have tried to be constructive in tabling amendments. The Prime Minister set a test for me, and for anyone who shares my determination to tackle this issue, as follows: that he would accept any amendment, whether or not it strengthened the Bill, if there were respectable legal arguments in international law in their favour. We can argue about whether that test is the right one. Personally, I feel very strongly that there are times when contested notions of international law should not surpass either parliamentary sovereignty or, above all, the interests of our constituents, and border security and national security are the prime responsibilities of any Government. But that was the test, and we have met the test.

We instructed a very eminent lawyer, John Larkin KC, former Attorney General of Northern Ireland, to provide us with an opinion. The opinion says that each and every one of the amendments in my name and that of my hon. Friend the Member for Stone are compliant with international law. Unless the goalposts have been shifted by the Government, I see no reason why the Prime Minister and the Minister could not accept the amendments and enable us to strengthen this Bill once and for all.

In conclusion, at the outset I said there was one question hanging over this debate: what works? However, there is a further question: how much are we willing to do to stop the boats? How willing are we to take on the vested interests, balance the trade-offs and take the robust steps that will actually work? The only countries in the world that have fixed this problem, latterly Australia and Greece, have been willing to take the most robust action. Are we? I am. I want to stop the boats and secure our borders.

This is a difficult issue, but we are not a parish council struggling with some kind of intractable legal problem. We are a sovereign Parliament. The power is in our hands. We have agency. The law is our servant, not our master. I urge all right hon. and hon. Members to support the amendments in my name and the name of my hon. Friend the Member for Stone and create a scheme that works. That is what our constituents expect of us and that is the promise that the Prime Minister has made to them and the whole country.

[Stephen Kinnock (Aberavon) (Lab)]

I rise to speak in favour of amendments 35 and 37 and new clause 6, tabled in my name and the name of my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow home Secretary.

I start by reminding the Committee and anyone watching at home that the Labour party is opposed to this Bill in its entirety, for the simple reason that we are opposed to the Rwanda scheme in its entirety. We have been clear that we need to stop the Conservative small boats chaos and we need to fix our broken asylum system, but those aims can only be achieved by way of measures that are based on common sense, hard graft and international co-operation, as opposed to headline-chasing and government by gimmick from those on the Conservative Benches.

The Conservatives like to accuse us of opposing everything that the Government are doing to stop the Tory small boats chaos, but that is simply not the case. We on the Labour Benches fully support measures such as the deal with Albania, because that is the sort of sensible, pragmatic action that can make a tangible difference. We have repeatedly made our support for that course of action crystal clear, if only the Conservatives would care to listen. However, the Labour party will never support any proposal that is unaffordable, unworkable or unlawful.

[Janet Daby (Lewisham East) (Lab)]

Does my hon. Friend agree that the Government are being extremely neglectful with the public purse by throwing money at a Rwanda scheme that simply will not work?

[Stephen Kinnock]

My hon. Friend is absolutely right: it is quite remarkable that a party that used to pride itself on being the party of fiscal rectitude is throwing £400 million of taxpayers’ money at the Government of Rwanda for precisely nothing. So far, all they have got for it is that they have sent three Home Secretaries to Rwanda, but not a single asylum seeker.

The Rwanda plan is all of the above: it is unaffordable, it is unworkable and it is unlawful. It is unaffordable to the British taxpayer because a truly staggering £400 million of our taxpayers’ money is on the way to the Rwandan Government without a single asylum seeker landing in Rwanda. It is unworkable because we know that the Rwandan authorities are capable of taking less than 1% of the 30,000 who crossed the channel in small boats in 2023, according to the Court of Appeal. In order for a deterrent to be effective, it must be credible. Surely even the most ardent supporter of this policy would acknowledge that such a tiny chance of being sent to Rwanda will never deter someone who has risked life and limb and crossed continents to escape persecution and violence.

[Wera Hobhouse (Bath) (LD)]

The Foreign Office recently admitted that hundreds of Afghans who are eligible for resettlement have not been brought into the UK. They exemplify the need for safe and legal routes. Are they not exactly the people who are risking life and limb because they do not have access to legal and safe routes, which the Government should provide?

[Stephen Kinnock]

The hon. Lady is right. The Afghan schemes are a case in point. The Afghan relocations and assistance policy has more or less collapsed, the Afghan citizens resettlement scheme is not working at all, and which nationality is always in the top two or three that are crossing on small boats? The Afghans. It is pretty straightforward.

We oppose the Rwanda policy because it is not a deterrent; it is a distraction. It would be far better, as the shadow Home Secretary, I and others have set out many times in this Chamber, to redirect the vast quantities of taxpayers’ money being wasted on the Rwanda scheme into a new cross-border police unit and a new security partnership with Europol that can smash the criminal smuggler gangs upstream.

[Andrew Gwynne (Denton and Reddish) (Lab)]

My hon. Friend is making an important point about how we need to co-operate much more intensively with the law enforcement agencies across Europe. The brutal fact is that these gangs are putting people into boats that were made for rivers, not seas, in treacherous conditions. Who in their right mind would go in one of those dinghies in the English channel right now? But people are being forced to do that by the gangs. We need to smash the gangs, and we can do that only by working with our colleagues across Europe to ensure that we bring the situation to an end.

[Stephen Kinnock]

My hon. Friend is absolutely right. If we accept that international co-operation with our European partners and allies must be at the heart of dealing with the gangs, as he so eloquently sets out, the possibility of that co-operation is fundamentally undermined when our Government are flagrantly prepared to break international law, which should underpin the trust that is a prerequisite for all such co-operation. Co-operation based on joint working and intelligence-sharing with our partners and allies is possible only if Britain is deemed a trustworthy partner.

That brings me to the third reason for our opposition to the legislation and the amendments tabled by so many Conservative Members. We find ourselves in the utterly extraordinary position of debating a Government policy that has been found to be unlawful by the highest court in our land. Amendment 35, which I will come to shortly, reflects that very fact. We find ourselves confronted by a Government who are seeking to legislate for an alternate reality. Although Ministers appear to believe that they can pass a Bill that determines that the sky is green and the grass is blue, that does not make it so.

[Sir William Cash (Stone) (Con)]

Has it escaped the hon. Gentleman’s notice that one claim was dismissed by the Supreme Court judgment on Rwanda? That was an Iraqi in the case of ASM. The reason was very simple: the Court made it crystal clear in paragraph 144 of its judgment that the issue in question, as far as that claimant was concerned, was undermined by clear and unambiguous words in an Act of Parliament. In other words, the sovereignty of Parliament prevailed.

[Stephen Kinnock]

Of course Parliament is sovereign, and of course we in this place are sent here to make laws, but we must make those laws with restraint; we must make them while respecting the judicial function. The separation of powers is fundamental to our identity as a liberal democracy, so although the hon. Gentleman very often talks about the sovereignty of Parliament, it is vital that his comments are always founded on the principle of separation of powers and the checks and balances that it gives us.

[Richard Graham (Gloucester) (Con)]

Just to tease out a little more Labour policy on the specific issue that the hon. Gentleman referred to, is he ruling out any consideration of this House determining to overturn the wrongful convictions of hundreds of sub-postmasters simply because that would set a new precedent in the relationship between this House and the courts?

[Stephen Kinnock]

Well, that is an interesting one; I did not have talking about the sub-postmasters scandal on my bingo card today. Parliament is free to legislate in any way it wishes, but it has to do so in full recognition of the view of the courts. I know that a number of eminent legal experts have raised concerns about the Government’s proposed approach on the sub-postmasters. We have to see precisely how the detail looks, and it is our duty in this Parliament to scrutinise it carefully to ensure that we are not setting dangerous precedents. I would argue that there is no doubt whatsoever that the Bill before us would set a profoundly dangerous precedent because it seeks to directly overturn the findings of the highest court in our land, and that is a toxic approach.

[John Redwood (Wokingham) (Con)]

Has the shadow Minister not seen all the comments and budget lines that the Government have put out stating that they are co-operating extensively and fully with continental countries in trying to crack down on the awful trade that is leading to deaths in small boats? The proof is that money is sent to France to help the French with their task. There is no evidence that they are not co-operating.

[Stephen Kinnock]

The co-operation with France is to be welcomed. The problem is that it is too far downstream. We need far better co-operation upstream, which is about sharing data and fixing the issue with the databases—the shadow Home Secretary and the Leader of the Opposition visited Europol recently to come forward with very practical and detailed plans around getting the data-sharing right. That may address the issue of the falling number of prosecutions of criminal smuggler gangs on this Government’s watch and the number of returns and removals falling by 50% since 2010. Again, we go back to the point about putting more energy and resources into the pragmatic and sensible things that can actually make a difference, as opposed to being distracted by this madcap Rwanda scheme.

It is mark of a liberal democracy that courts are independent of Parliament and the Executive. We on the Labour Benches believe passionately that that separation of powers is a fundamental and immutable element of what makes us proud to be British. Not only are we opposed to the specifics of the Bill, but we are deeply troubled by what it represents in a broader sense.

[Robert Jenrick]

Over the Christmas period, the Labour Front Benchers anonymously briefed The Times saying that they would want to pursue an offshore processing model. Is that the position of the hon. Gentleman and the shadow Home Secretary, and if so, why would they want to do something that is known to be more expensive and less effective—everyone would have to be brought back to the United Kingdom one way or another, so that would create no deterrent whatsoever—and not move forward with a scheme such as Rwanda?

[Stephen Kinnock]

I thank the former Immigration Minister for his comments. I enjoyed opposing him and, on some occasions, working with him. Look at the Ukraine scheme. That is an example of offshore processing: people’s applications were processed in Poland before they came to our country. Look at the Hong Kong scheme. There are plenty of ways of doing upstream and offshore processing. To coin a phrase, what matters is what works. What is absolutely clear is that it is difficult to imagine any scheme that could be more expensive than the Rwanda policy. I will now make some progress.

I cite the view of the Bingham Centre for the Rule of Law and countless other legal experts, who have stated that the Bill is contrary to the rule of law because it amounts to a legislative usurpation of the judicial function. It is an assault on our country’s constitutional conventions, which require the legislature to respect the essence of the judicial function. Moreover, there is a staggering hypocrisy at the heart of the Bill when we consider it in the context of the treaty that has been signed with Rwanda. The purpose of that treaty is to bind the Rwandan Government into respecting the rule of law, and in particular the principle of non-refoulement. How on earth can Ministers hold the Rwandan authorities to account on these matters if they themselves are so blatantly and egregiously failing to practise what they preach?

[Tim Loughton]

It is a little disingenuous to liken this process to the Ukrainian scheme. The only criteria for the Ukrainian scheme were that a person had to be Ukrainian and come from Ukraine.

The hon. Gentleman has said that enforcement has gone down. Up to the end of November 2023, Home Office immigration enforcement arrested 246 people for people smuggling into the UK, and there were 124 convictions. That is in addition to those arrests and convictions that have happened on the continent, so in what sense are those figures declining, as the hon. Gentleman has just claimed?

[Stephen Kinnock]

There has been a 30% drop since 2010 in convictions of criminal smuggler gangs, and a 50% drop since 2010 in removals. I would be very happy to write to the hon. Gentleman with clear details of those facts—we have the receipts.

It is against that fundamentally flawed and farcical backdrop that we seek to modify the legislation that is before us today. Our amendments are an attempt at damage limitation—an effort to moderate the most egregious aspects of this nonsensical and counterproductive Bill. Our amendment 35 acknowledges that, in November of last year, the Supreme Court upheld the Court of Appeal judgment. It ruled unanimously that the Rwanda policy was unlawful, because there were substantial grounds to believe that people transferred to Rwanda could be sent to countries where they would face persecution or inhumane treatment if Rwanda rejected their asylum claims, a practice known as refoulement.

The reason for those concerns relates to an issue that I first raised at this Dispatch Box back in April 2022, when the Rwanda plan was first announced. When Israel signed its deal with Rwanda in 2013, many of the asylum seekers who were sent from Israel to Rwanda were routinely moved clandestinely to Uganda, and in three cases, refoulement to Eritrea via Kenya was prevented only by the UNHCR intervening. It is little wonder that the Israeli Supreme Court ruled the scheme unlawful in 2018, and it was closed down. In December, the Government signed a treaty with the Rwandan Government that says that refoulement is prohibited, and that anyone removed to Rwanda from the UK must be allowed to stay in Rwanda. Indeed, the only country to which people can be transferred from Rwanda is the UK, which under the deal must also accept some of Rwanda’s most vulnerable refugees and offenders sent back from that country.

That in itself tells a story. The fact that the UK Government and the Rwandan Government have agreed that Britain might need to take some Rwandan refugees is a stark admission that Rwanda is not a safe country for many people. Indeed, since the first £120 million payment by the British Government to Rwanda, six Rwandans have been granted safety and refuge in the UK. Then there is the tragic fact that Ministers are simply too afraid to address. In 2018, 12 Congolese refugees were shot dead by Rwandan police for protesting against food shortages. Our amendment 35 therefore permits British courts and tribunals to recognise and deal with the specific risks of refoulement associated with Rwanda by removing the relevant text from clause 2 of the Bill.

Likewise, our amendment 37 makes clear that decision makers must be able to take the risk of refoulement into consideration when processing asylum claims. The Bill designates Rwanda as a safe country, and therefore makes clear that

“Every decision-maker must conclusively treat the Republic of Rwanda”

as such. It states that the Bill

“does not permit a decision-maker to consider any matter, claim or complaint to the extent that it relates to the issue of whether the Republic of Rwanda will or may remove or send the person in question to another State in contravention of any of its international obligations (including in particular its obligations under the Refugee Convention).”

However, as the Government have previously acknowledged, the facts on the ground can change, and decision makers should therefore be able to make their own judgments based on the latest court rulings. As such, we see no reason not to let decision makers do their jobs and make decisions based on all the knowledge available to them as the situation evolves, as opposed to the frankly absurd idea that Rwanda can be defined as safe in perpetuity.

I turn now to our new clause 6. The new treaty states that Rwanda is committed to addressing concerns that are laid out in the Supreme Court judgment, including refoulement. New clause 6 would help to ensure that Rwanda can be held accountable on its treaty commitments by placing the monitoring committee for the Rwanda treaty on a statutory basis, and by placing conditions on when the classification of Rwanda as safe can be suspended in accordance with the material conditions and/or non-compliance with obligations under the treaty. As things stand, the Government could vary the operating principles of the monitoring committee without it being possible for such changes to be challenged in our domestic courts. Our new clause 6 therefore addresses that unacceptable position by placing the monitoring committee on a statutory footing, making it judiciable and thus, by definition, more transparent and accountable. We see no reason why Government Members and Members across this House should oppose the principles of transparency and accountability on which our new clause 6 is based, and we hope they will join us in the Aye Lobby later.

Turning briefly to the amendments tabled by Government Members, I would point out that even one of their own colleagues, the right hon. Member for Ashford (Damian Green)—the chair of the One Nation group—has described many of those amendments as “authoritarian” and a betrayal of Conservative values. He is right. The Bill in its current form is already an assault on our reputation as a country that upholds the separation of powers and the rule of law, and the majority of the amendments tabled by Government Members would take us even further away from those basic democratic principles. Let me be clear: Labour Members will proudly be voting against the amendments that are being promoted by Conservative Members, because the Government’s Rwanda policy is unaffordable, unworkable and unlawful; because the Bill is an affront to the values that we hold dear; and because we will always stand up for the separation of powers, the rule of law, and ensuring that we can stand tall in the world.

[Robert Jenrick]

The hon. Gentleman is very kind to give way a second time. I have listened to him carefully, but I have not heard an answer to one of the central questions of the debate. It is the Government’s view that Rwanda is a safe country; what is the view of the Labour party? Is Rwanda a safe country? I think we would all be interested to know the Labour party’s position—I know the Government of Rwanda would be interested.

[Stephen Kinnock]

I thank the right hon. Member for that intervention. I do not think I could have made it any clearer that we believe in the rule of law and the judicial function, and when the Supreme Court of our land rules that it is not safe to send asylum seekers to Rwanda, we on the Labour Benches absolutely agree with that position.

We have seen some pretty bizarre stuff emanating from the Conservative Benches over the decades, but when the history books of the past 14 years are written, the Conservatives’ psychodramas over this Rwanda policy will surely take centre stage. Just think of the astonishing amount of Government time that has been ploughed into this unaffordable and unworkable nonsense, when Ministers and officials could have been focused on the design and delivery of the sorts of sensible, practical measures that I mentioned earlier. Just think of the vast amounts of political capital that the Prime Minister has squandered on a policy that he does not actually believe in, that his Home Secretary has privately pooh-poohed—if you will pardon the pun, Chair—and that has left his leadership in tatters.

The legislation before us is a sham, but in the interests of damage limitation, I urge Members to get behind Labour’s amendments today. Of course, most crucially, I urge them to vote down this Bill on Third Reading, and get behind Labour’s plan to deliver the security partnership and cross-border police unit that will smash the criminal gangs, defeat the people smugglers, and stop the Tory boats chaos once and for all.

--- Later in debate ---

[Michael Tomlinson]

As I said in response to a previous intervention, they are being stood up in relation to the Illegal Migration Act 2023, which was taken through by my right hon. and learned Friend the Member for Fareham and my right hon. Friend the Member for Newark, in anticipation of the work that will need to be done—that is sensible governance, dare I say it. My hon. Friend the Member for Ipswich (Tom Hunt) is right to take me back to individual claims, which I will now turn to in the few minutes I have left.

The legislation provides that a court may grant interim relief only where there is

“a real, imminent and foreseeable risk of serious and irreversible harm”.

There must be credible evidence of that; there cannot simply be a bare assertion. Clause 4(5) cites the Illegal Migration Act, which my right hon. Friends took through last summer. It is worth pointing out that section 39 of that Act sets out an extremely narrow range of circumstances in which an individual claim can be made. I encourage right hon. and hon. Members on both sides of the Committee to look at section 39 of that Act and just how high the threshold for serious and irreversible harm is set.

Let me turn briefly to new clause 6, which was tabled by Opposition Members. I was intrigued to hear the shadow Minister state that the purpose of the new clause is to invite further legal challenge. That seems to be Labour’s plan—to invite further legal challenge. That is the purpose of new clause 6, and it is the exact opposite of the purpose of Conservative Members. We want this to work.

[Stephen Kinnock]

The Minister is simply misrepresenting the purpose of new clause 6. Its purpose is to put the monitoring committee on a statutory footing so that it can potentially be subject to our domestic courts. I do not know whether he thinks that our domestic courts should be lower down the pecking order than the courts of Rwanda.

[Michael Tomlinson]

I am grateful to the shadow Minister for his intervention. When he was setting the policy out in his opening remarks, he said that it would invite further legal challenges. Those of us on the Conservative Benches want to shut out legal challenges; those on the Opposition Benches want to encourage further legal challenges.

The Government have delivered a plan for immigration that will work. It builds upon the excellent work of my right hon. Friend the Member for Witham (Priti Patel)—the champion of the Nationality and Borders Act 2022—and of my predecessors, my right hon. Friend the Member for Newark and my right hon. and learned Friend the Member for Fareham, who worked incredibly hard to deliver the long-awaited Illegal Migration Act, the toughest piece of immigration legislation until the Bill before us.

Just look at Albania. Our successful deal with Albania, which started with small numbers, has now removed nearly 6,000 people with no right to be here. We know that deterrence has worked because small boat arrivals from Albania are down by 94%. Legal challenges have not successfully stopped the flights to Albania. Those flights have not been stopped; in fact, not a single case of Albanian small boat arrivals has reached a substantive hearing at the upper tribunal in the past year.

We on the Conservative side of the Committee are united in our determination to ensure that the Bill works. As drafted, it creates an ever-tighter test than for illegal migrants facing removals to Albania. Our Rwanda Bill is tougher, tighter and goes further. We have a plan to stop the boats, and I invite hon. Members to back it.