All 15 Lord Coaker contributions to the Nationality and Borders Act 2022

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Wed 5th Jan 2022
Nationality and Borders Bill
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2nd reading & 2nd reading
Tue 1st Feb 2022
Nationality and Borders Bill
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Lords Hansard - Part 1 & Committee stage: Part 1
Thu 3rd Feb 2022
Nationality and Borders Bill
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Lords Hansard - Part 1 & Committee stage: Part 1
Thu 3rd Feb 2022
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Lords Hansard - Part 2 & Committee stage: Part 2
Tue 8th Feb 2022
Thu 10th Feb 2022
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Lords Hansard - Part 1 & Committee stage: Part 1
Thu 10th Feb 2022
Nationality and Borders Bill
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Lords Hansard - Part 2 & Committee stage: Part 2
Mon 28th Feb 2022
Nationality and Borders Bill
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Lords Hansard - Part 1 & Report stage & Report stage: Part 1
Mon 28th Feb 2022
Nationality and Borders Bill
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Lords Hansard - Part 2 & Report stage: Part 2
Wed 2nd Mar 2022
Nationality and Borders Bill
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Lords Hansard - Part 1 & Report stage: Part 1
Wed 2nd Mar 2022
Nationality and Borders Bill
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Lords Hansard - Part 2 & Report stage: Part 2
Tue 8th Mar 2022
Mon 4th Apr 2022
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Consideration of Commons amendments & Consideration of Commons amendments
Tue 26th Apr 2022
Nationality and Borders Bill
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Consideration of Commons amendments & Consideration of Commons amendments
Wed 27th Apr 2022
Nationality and Borders Bill
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Consideration of Commons amendments & Consideration of Commons amendments

Nationality and Borders Bill Debate

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Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I declare an interest as a research fellow in modern slavery at the University of Nottingham. It is a great privilege to follow the excellent speech of the noble Baroness, Lady Hamwee, who outlined many of the problems and issues we have with this Bill.

I am proud and pleased to be standing here on this side of the House with the noble Baroness and many others who have spoken behind me, to my right, to my left and across the Chamber. We are all united in the belief that we need to tackle illegal immigration and have control over our borders but that, as my noble friend Lord Reid said, we should not do so at the expense of putting forward unworkable solutions which will do nothing to deal with the problems we are confronted with. Why should we do this in a way that drives a coach and horses through human rights legislation and international conventions to which this country has been a proud signatory over decades? That is the crux.

I am pleased to say that this Chamber reflects the country; there is a clash of views in the country. The Government will say they speak for public opinion—I challenge that. I believe that the whole country is united by a belief that there is an issue around illegal immigration, but I am also convinced that people want it dealt with in a fair, equitable way that reflects the traditions of our country over the decades. This Bill does not do that.

Our country has always prided itself on its tolerance, its welcome to those fleeing war and persecution and its embrace of difference and varying cultures. I am proud of that, as your Lordships’ House will be, so why have the Government introduced a Bill that makes changes for asylum seekers and refugees, altering the current system for asylum claims and appeals and introducing measures on people-smuggling and modern slavery and a two-tier system for asylum seekers arriving in the UK, with differentiation based on method of arrival? It risks undermining that very tradition in which this country has always legislated on these issues. As my noble friends Lord Dubs and Lady Chakrabarti and the right reverend Prelate the Bishop of Durham said, refugees are people. Our values must be applied; our country will be judged on the way in which we treat refugees and asylum seekers.

In Committee, we can debate and discuss this Bill line by line, but Second Reading allows us to set out the context, principles and broad sweep of policy which should guide the general topics as we go forward. I remind the House, since a political point has been made once or twice, that the Government say this Bill is needed to fix the asylum system; they have been in control of that system for 12 years, so why have initial asylum decisions fallen by 40% over the last five years, under their watch, with 67,000 people waiting for an initial decision? That is what undermines trust—the failure to administer and manage these people and situations properly.

Many of these provisions—I turn to my former boss at the Home Office, my noble friend Lord Reid—were rejected as too draconian by the last Labour Government. I understand from what the noble Baroness, Lady Warsi, and others have said that we did not get everything right, but we rejected many of the proposals put forward in this Bill.

On illegal entry, the Bill proposes to change the immigration offence of how someone enters the UK and specifies the mode of entry as legal or illegal. The UNHCR states that, if implemented as it stands, this will cause great suffering and undermine the 1951 convention—an international protection system not just in the UK but globally. The Immigration Law Practitioners’ Association says that it is contrary to international law; Article 31 of the refugee convention provides that states

“shall not impose penalties, on account of their illegal entry or presence, on refugees … where their life or freedom was threatened”.

Do we care? Do we care that we are breaking these international conventions? This is what the UNHCR is saying. I just point this out to the noble Baroness the Minister. Is she right and the UNHCR is wrong? The UNHCR is saying that this Bill breaks international conventions; that this Bill is not consistent with the treaties that we have signed. Both of those statements cannot be right. As the noble Lords, Lord German, Lord Hannay and Lord Oates; the noble Baroness, Lady Prashar; my noble friends Lord Dubs, Lord Ponsonby, Lord Griffiths, Lord Reid, Lady Lister, Lady Chakrabarti and many others have stated across this Chamber, this country seeks to ensure that international treaties and obligations are met by others, and we should ensure that we meet them ourselves.

Group 1 and group 2 refugees will be created by the Bill, based on how they arrived into the UK and the point at which they presented themselves to the authorities. Those who have travelled via a third country, do not have documents or did not claim asylum immediately will be designated group 2 refugees—sub-standard refugees, not real refugees. The UNHCR again says:

“The design of this new Group 2 refugee status is incompatible with the 1951 convention.”


It does not say that it has a problem with it: it says it is incompatible with the convention. Do we care? Does that not matter? Are we bothered? Do the Government think that the UNHCR is wrong? What are they going to do about it? Why do they not just get up and say, “We are going to drive a coach and horses through this”—or are they going to say that they have got this wrong?

Why did we not negotiate new Dublin III arrangements when we left the EU? There are no return agreements with EU countries, and family reunion routes for refugees and asylum seekers in Europe, including children, have been cut. So how will the Bill work with no agreements between the UK and EU member states? How will the Bill help with no workable deal with the French Government, as others have mentioned, to tackle the operations of criminal gangs on the French coast? Is it not the case that there were just five asylum seekers returned to European countries in the last year while channel crossings have soared? What is going on? What are the Government doing about it now, let alone when this Bill passes through? Is it not the case that there are no new safe, legal routes for the family reunion proposed in the Bill, and that that is one of the measures that is desperately needed and that we should be seeking to address?

The rhetoric of the Government and of the Home Secretary has failed. It failed when she said that we would halve boats across the channel in three months and make them infrequent in six months. In that time, the figure has risen tenfold. As the noble Lords, Lord McColl, Lord Alton and Lord Morrow, the right reverend Prelate the Bishop of London, and my noble friend Lord Rosser in his brilliant speech all pointed out, the Modern Slavery Act is undermined by an immigration and asylum Bill. That is unbelievable. The Modern Slavery Act is one of the totemic achievements, if I may say so, of the Conservative Government before last—one of the totemic achievements of former Prime Minister Theresa May. On most issues I fundamentally disagree with her, but on this she deserves all the credit that should come her way for introducing that Act. She stood up in the Commons, as the noble Lord, Lord Alton, pointed out, and said that certain elements of this Bill would restrict victims’ ability to come forward. She said she was concerned that the public order disqualifications threshold and the time period on slavery and trafficking information notices would have that effect. Victims of modern slavery will be prevented from coming forward to help identify those who have perpetrated crimes. Those are not my words, or words from a Labour Government now or in the past, but the words of a former Prime Minister of this country saying what the current Conservative Government are going to do to the Modern Slavery Act that she, and all of us, were so proud of.

The Government say that they want to deter people from using the defence of being a victim of modern slavery against deportation. Where is the evidence for that? Where is the evidence for erecting barriers to accessing the national referral mechanism?

Of the 10,613 potential victims of modern slavery referred to the NRM last year, 47% were children and 34% were British. Where is the sense in what the Government are proposing there? No distinction is made in the Bill between adults and children, and the Bill as proposed would expect victims of slavery to disclose what has happened to them at the moment of identification or be penalised. What on earth? Does the Minister realise how ridiculous it is to expect somebody traumatised by modern slavery or trafficking to be able to present themselves within a short, specified time to the police or others with these identification notices, otherwise they will be deemed to have failed? It is unbelievable, unworkable and something that I and no doubt many others will want to come back to on Report.

I have a last couple of comments. The independent slavery commissioner, Sara Thornton, says the Bill

“will severely limit our ability to convicted perpetrators and dismantle organised crime groups.”

Others have mentioned offshore processing. Others have mentioned Clause 9. Others have mentioned issues to do with the RNLI and pushback. There will be amendments coming forward, if not from us then from others, which we will support. Will the Ministers say to me, to this House, to this Chamber and to this country that, if I were a navigator on a boat passing people at sea and in danger, it will be a criminal offence, as under the Bill as currently constituted it will be, for me to stop and help them? Is that really the legislation we are seeking to pass? I do not believe that even the Minister would do it, nor would the noble Lord—they are decent people and would want to help, but the legislation they are proposing to this House, this Chamber, this evening would penalise people and make it a criminal offence for them to do that. It is ridiculous and simply has to stop.

We could go on. There is much to debate and we will seek to amend the Bill as it goes forward, protecting the victims of modern slavery, including children, with safe routes for unaccompanied children, safe routes for family reunion of unaccompanied children and negotiations with the EU for a new asylum agreement, including safe legal routes and safe returns, maintaining our respect for international law and agreements. The Bill will not solve the problem of dangerous boat crossings and will not improve security co-operation or create safe legal routes. It will make it harder to prosecute and convict people traffickers and will grant the Home Secretary the power to decide asylum cases based on how someone arrives in this country. It will give the Home Office the power to deprive a person of their British citizenship without warning—third-class citizenship, as one noble Peer mentioned. The Bill has a lot wrong with it and certainly, as we go forward in Committee, we will seek to amend it, as we will on Report. This country has a proud tradition of supporting asylum seekers and refugees, and this Bill is not part of that.

Nationality and Borders Bill Debate

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Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022

(2 years, 1 month ago)

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Read Full debate Nationality and Borders Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-III Third marshalled list for Committee - (1 Feb 2022)
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I hesitate to follow my noble friend, who is an expert on this issue. I declare an interest as a British citizen seeking a residence permit in Norway, where I have lived with my husband for the last 14 years. I have always had access to the Norwegian national health system. My application for a residence permit—the equivalent of settled status—has been outstanding for over 12 months because of issues with comprehensive health insurance.

I start by thanking the Government for their generous approach to EU and EEA citizens seeking settled status in the UK. The Government have taken the general approach that, if someone has been living here for years and was legally accessing the NHS when the UK was part of the EU, they do not need to have, to have had or acquire comprehensive health insurance, even if—as with me in Norway—they are not working or studying. This goes beyond the Brexit agreement, but is entirely consistent with the principle that EU and EEA citizens living in the UK prior to Brexit should be able to continue to live here on the same terms after Brexit. It is the right thing to do. I am grateful to the Government for taking such an approach. I wish Norway would do the same.

My understanding of this amendment is that it goes a step beyond settled status—where EU and EEA citizens who have qualified for settled status seek to be naturalised as British citizens, to exercise family reunion rights as a naturalised British citizen, or to have their UK-born children recognised as British at birth. Even though they do not have to have comprehensive sickness insurance for settled status, it currently appears that they may have to have it for citizenship purposes. This amendment seeks to rectify that anomaly between settled status and citizenship. I am getting a nod, so that is okay.

What this amendment seeks to achieve follows on logically from the generous and welcome stance of the British Government on settled status in relation to comprehensive sickness insurance. We support the amendment.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, we support Amendment 34, tabled by the noble Baroness, Lady Ludford. We raised this issue in the Commons and pushed it to a Division in Committee. I will not repeat all the points that the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, have made.

I want to make a few observations. This is an opportunity for the Government to clear up an obscure, largely technical anomaly which is having real-world consequences for a number of people. CSI was not required for any EEA or Swiss citizen to live in the UK and to be able to access the NHS. However, it was not generally communicated that this was an additional requirement. Most people now being impacted by this relatively obscure provision had no idea about it.

I do not believe that this should be controversial; it is a sensible change. There are two reasons for that. First, when the Government designed the EU settlement scheme, they chose not to include CSI as a requirement, so they have already decided that this requirement was not necessary and to waive it entirely. Secondly, the Government openly acknowledge that this is causing problems because they have introduced guidance, as we have heard, for caseworkers that some degree of discretion might be exercised where there are compelling grounds for granting citizenship. The amendment simply but constructively builds on that, rather than leaving it up to a vague discretionary power, the flaws of which have been discussed.

This is a simple, clear change to the law to reflect the reality of the situation that prevails in the UK. It is very much in the spirit of rectifying obscure anomalies and barriers in our nationality law, which the early clauses of the Bill, notwithstanding those that are controversial, attempt to do.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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I thank both noble Lords for their comments and, in particular, the noble Baroness, Lady Ludford, for tabling this new clause about comprehensive sickness insurance, or CSI, which, under EU free movement law, was needed by EEA nationals in certain circumstances in order to reside lawfully in the UK. I was most grateful to have the chance to discuss this with the noble Baroness last week, as she said.

The EEA regulations set out the requirements that EEA nationals had to meet if they wished to reside here lawfully as a qualified person exercising free movement rights. Those who were working in the UK, or indeed who were self-employed, did not need CSI to be here lawfully, but students, the self-sufficient and their family members did. That requirement was set out in published guidance.

I note the noble Baroness’s comments about EEA nationals being able to access the NHS. Under UK legislation, all EEA nationals here under free movement had the ability to access state-provided healthcare on the basis of their ordinary residence, but the requirement to hold CSI ensured that the financial burden of providing free state-funded healthcare did not fall on the host member state, as is the clear objective of free movement law. Therefore, having access to the NHS did not equate with the requirement for CSI, although it could include the European health insurance card, otherwise known as the EHIC, issued by the EEA national’s home state.

The first part of this amendment would amend the European Union (Withdrawal Agreement) Act 2020 so that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any requirement for CSI in the residence scheme immigration rules—the rules for the EU settlement scheme in Appendix EU—for an EEA national to obtain status under the scheme.

Consistent with the citizens’ rights agreements and the relevant EU case law, a so-called Lounes dual EEA/British national can currently sponsor relevant family members under the EU settlement scheme where that national was living in the UK in accordance with free movement law, including any requirement for CSI, before they also acquired British citizenship. However, I am pleased to be able to inform the noble Baroness that the Government have decided that, as a matter of fairness, they will amend the Immigration Rules for the EUSS and the EUSS family permit at the next appropriate opportunity to disapply any requirement for a Lounes dual national to have held CSI in order to sponsor applications by relevant family members.

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Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I shall be exceptionally brief as we had a number of significant debates on statelessness last week and we are only too aware of the crucial issues that we need to reach today.

As we have heard, the 1997 convention provided a series of general principles relating to nationality, including non-discrimination and governing principles on statelessness. I gently point out to the noble Baroness, Lady Hamwee, that no Government of any complexion have ratified it since 1997. The Labour Government in 2002 was referred to, but no Government since have ratified it either. That is just a general point.

It would be helpful and constructive for the Committee at this stage of the debate, if the Minister could confirm the following points. These are very detailed, so, to be fair, the noble Baroness may wish to write to us. Do the Government have any plans to consider ratifying the treaty or intend to do so in the near future, and is that under consideration? Have the Government made any assessment of the specific elements of the treaty that they may be opposed to and, if so, could the Minister tell us what they are? Lastly, what are the existing provisions in UK law that are currently outside the provisions of that treaty? It would be helpful to have a bit more detail about the convention, where it relates to existing law and where there are any gaps or points that we may wish to consider in future.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Coaker, for their brief and succinct points in speaking to the amendment.

British citizenship affords benefits and privileges; the vast majority of us enjoy the freedom that they bring, while of course respecting the rights of others and the rule of law, but there are high-harm individuals who do not share our values. The noble Lord, Lord Coaker, is right that no Government since 1997, including the coalition Government of 2010-15, have ratified the convention, and he is right that we are not going to. The convention does not address the modern threat from global terrorism, among other things, and I would add that Spain, Belgium and Switzerland have not signed it either, perhaps for the same reasons.

The convention on nationality is at odds with domestic law. The Government do not consider it right that our sovereign powers to deprive a person of citizenship should be constrained by signing the convention, as the amendment would oblige us to do. That would severely limit the ability of the Home Secretary to make a deprivation decision in relation to high-harm individuals and those who pose a threat to public safety. Sadly, we have seen too often the effect of terrorist attacks on our way of life and the impact of serious organised crime on the vulnerable. It cannot be right that the Government are not able to use all the powers at their disposal to deal with today’s threats to our way of life.

It is the Government’s duty to keep the public safe and we do not make any apology for seeking to do so. I hope that, with that, the noble Baroness will withdraw her amendment.

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The Government make much of the rhetoric of breaking the people smugglers’ business model. I studied economics at university—back in the day when PPE stood for politics, philosophy and economics rather than personal protective equipment—and I have a master’s degree in business administration. From my knowledge and experience, it appears to me that the Government do not understand business models or how to break them. These amendments aim to probe what the Government are doing to target the real criminals in all of this, the people smugglers, rather than targeting innocent, desperate seekers of sanctuary, which is what most of the Bill is actually about. I beg to move.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will say a little more than I have on the two previous groups. I think Amendment 36, which the noble Baroness, Lady Hamwee, has tabled with the noble Lord, Lord Paddick, and to which I have added my name, is a brilliant amendment.

Amendment 129, which I have signed with the noble Baroness, Lady Neville-Rolfe, seeks to give a practical illustration of what may be done and should be done. Frankly, most of us would believe that it is a no-brainer type of amendment that we would expect the Government to approve with the stroke of a pen. I will speak just briefly to this amendment, because I want to come back to Amendment 36, which is a better amendment than mine, to be frank; it is more wide-ranging and encompassing. I am sure that noble Lords have looked at it with the noble Baroness, Lady Neville-Rolfe, who has apologised for being unable to be with us today. The amendment proposes a new clause, headed:

“Advertising assistance for unlawful immigration to the United Kingdom”.


Social media platforms are advertising how they can help illegal immigration into our country. Sky News googled it and came up with a list of the adverts.

No wonder sometimes people stop you in the street and say, “Do you know what you’re doing?”, because we would assume that the Government would stop illegal activity, published on a website for people to use while being exploited. The Minister should at least respond by saying, “Lord Coaker, you are quite right. Nobody condones that. We don’t condone it, and this is what we’re going to do about it.” I know that social media companies are difficult; there are platforms and there are ways around it. But we should at least make the effort to say that we are doing everything within our power to stop social media platforms being used in such a way by these criminal gangs.

Therefore, Amendment 129 speaks for itself. The explanatory statement says:

“This amendment would provide it is an offence to advertise illegal routes to the UK.”


Who could object to that? The amendment may be flawed—it may not be right or accurate or it may not meet the test of the lawyers who could look at it—I have no idea. But I do not think that anyone would disagree with an attempt to do that. So, if it is not right, perhaps the Government could tell us what they are doing or what amendment they will bring forward to do that, and we could look forward to that on Report or some other government action. I know that the Minister and the Government will disagree with that, so the question is: what will we do about it?

Having spoken to my amendment, also signed by the noble Baroness, Lady Neville-Rolfe, I will come back to that of the noble Baroness, Lady Hamwee. I apologise; I know that we want to get to Clause 11, which we will oppose and which is a shocking part of the Bill. But the noble Lord, Lord Paddick, was quite right when he spoke about Amendment 36, which deals with the people smugglers—where else in the Nationality and Borders Bill are they actually being dealt with by the Government?

I do not know whether noble Lords saw it, but, today and yesterday, the Times, the Telegraph and other newspapers reported the latest statistics on migrant crossings. I make no comment on what is causing them, but it is a statistical fact that the Home Secretary promised that she would sort this out and deal with it and the Government promised that they would be tough on the borders and said that the point of leaving the EU was that we would take back control. There is all of that, but then we look at the statistics: the number of migrants crossing the channel this January has gone up six times compared with last year. There should be a Statement by the Home Secretary in the Commons. Whatever the rights and wrongs, and whatever the causes, this is an astonishing increase. We find out that this means that there have been 46 boats, compared with 15 last year. By the way, it is also pointed out that the French stopped 29 boats last month. I know that we do not think that they do anything, but they did stop 29. Perhaps they should have stopped more, but they are doing something.

We find out something else here—this is why I am spending some time on this and why the noble Baroness, Lady Hamwee, is quite right in her amendment. We find out that part of the Government’s plan, announced in the Times and the Telegraph—not here, unless it was put in a Written Ministerial Statement or Question that I cannot find; it may have been, and I apologise if it was—is locking up all single male migrants. This is according to the Secretary of State for Defence, who outlined further details of the plan for dealing with this—perhaps that is what would appear in a report that would come forward under Amendment 36. This may be the right policy, but I would have thought that that would be a subject for debate in Parliament. It is a fairly major thing to say that you are going to do—it must be a change, and it must be government policy because the Secretary of State announced it in the Times and the Telegraph today and yesterday. I saw it in the Times only about an hour ago—noble Lords may be better informed than me—while I was reading the sport section. I just flicked through the paper and there it was, and I thought, “Goodness me.” But, seriously, that is a really serious policy initiative that will be part of the plan to deal with migrants crossing the channel. The only point that I am making is that we should debate and discuss whether we believe that this is an appropriate way of dealing with this.

I was further shocked. I also deal with defence, and I asked the Defence Minister in the Lords about this. Tom Pursglove, who is a Member in the other place in the Home Office, said in the Times that the Bill will

“strengthen the powers of Border Force to stop and redirect vessels”.

This is how a Home Office Minister in the other place described what is in the Bill.

I thought that this was not the Government’s policy any more. Certainly, the Defence Minister, the noble Baroness, Lady Goldie, who spoke for them on this—I do not mean to misquote her—told me that. That is push-back by another name. Redirecting boats or strengthening the powers of the Border Force to stop and redirect boats is push-back. This is simple: it is either yes or no. They are not going to use a destroyer—nobody is that stupid about this; they will not have a naval destroyer pushing a dinghy back—but is a naval commander going to be able to direct a smaller Border Force vessel to redirect a dinghy, as Tom Pursglove MP said in the papers today? I thought the Government had given up on that policy. Certainly, as I understood it, the Ministry of Defence’s understanding was that it was not going to require the Border Force to do that. I apologise if I am confusing noble Lords but I am confused by the Government’s policy. I thought it was one thing, but now, according to the papers, it appears to be another.

All I am saying is that you can see why the amendment in the name of the noble Baroness, Lady Hamwee, is so important, because it would require the Government to publish reports on what is going on regarding discussions with Governments and authorities, not only of our own country but of others, to tackle the smugglers. These people are not finding the dinghies themselves, collaborating with 30 other people—or whatever the numbers are—and deciding that they are all going to pile on. These people are exploited by the people smugglers, yet this is mentioned hardly anywhere in the Bill. Indeed, instead of dealing with the smugglers, the Bill changes the way we treat refugees and victims fleeing war and persecution, who are being loaded on to these boats. They are regarded almost as the criminals rather than the real criminals. That is what noble Lords will come on to when they discuss Clause 11 and other parts of the Bill. I cannot tell the noble Baroness, Lady Hamwee, how important this is. That is why I am labouring this: Amendment 36 is really important.

If noble Lords get the chance to have a look, Amendment 36 also says, quite rightly, in proposed new subsection (2):

“The report must focus on steps other than the provisions of this Act.”


What sensible person, in seeking to deal with people smuggling, refugees and asylum seekers, does not also believe and understand that part of the solution lies in dealing with the situations that individuals are fleeing from? I have not spoken to the noble Baroness, Lady Hamwee, about this, but I suspect that what she is also trying to do through this amendment is say that you deal with asylum seekers and refugees not through sanctions, provisions, criminalising people and making them afraid but by addressing the problems in the countries, areas and regions they are fleeing from.

I tell your Lordships this: if I was living with my family and we were being bombed, I would flee. If my family was in a place where there was starvation, no water and poverty, and where we were threatened by criminal gangs or torture, I would flee, and I would go anywhere. I would want to protect myself, my family and my children. If you want to deal with asylum seekers and refugees, of course you must have a policy that deals with them when they arrive, but you also have to understand why they are fleeing and escaping from the country in which they were born and do something about it there.

I know that the noble Lord, Lord Russell, is on the Council of Europe; he and I have spoken about many of these things. I think I am right in saying that the noble Lord and I went to Jordan, near its border with Syria. We say about countries such as Jordan, Turkey and others, “Oh, it’s about time somebody else did something”. We went to a refugee camp in Jordan where there were hundreds of thousands of people; I went to a refugee camp in Angola where there were more than a million people.

Some of the poorest countries in the world are dealing with some of the biggest refugee crises, and sometimes with almost more resource and compassion than we do. There are astonishing numbers of people displaced and moving between these regions and countries. The thousands whom we deal with are a problem—I am not decrying that or saying that we should not do anything—but some of these other countries are having to deal with things in biblical proportions. I could not believe what I saw in Jordan when people were fleeing war and persecution, but I will tell you what the Jordanians did not do. When nearly 1 million people came across the border, they did not turn round to them and say, “We’re going to split you into different groups” but “We’re going to do what we can to help you”, while recognising that the problem in Syria or elsewhere also needed to be addressed.

Nationality and Borders Bill Debate

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Nationality and Borders Bill

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Lord Green of Deddington Portrait Lord Green of Deddington (CB)
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I do not see the relevance of that question.

Let me conclude, if I may. As we discussed earlier in this debate, the Government’s asylum workload has tripled from 40,000 cases in 2012 to 120,000 cases in 2021. Furthermore, nearly half of all cases awaiting an initial decision have been waiting for 12 months or more. In the present situation, they would in any case get permission to work. However, it is vital for these delays to be tackled. On that point, the noble Baroness, Lady Chakrabarti, and I are agreed. It makes no sense to me to adjust the immigration system to encourage delay. This Bill contains some useful measures designed to speed up the asylum process, and they should be supported.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I rise to support Amendment 64 and 65. Before I specifically speak to them, I say to the noble Lord, Lord Green, that at some point in this Bill we are going to have to have a debate in this Chamber about the idea that this is a debate between those on the side of the public and those of us who are some kind of middle-class liberal elite who do not care about the opinions of the public—who believe that we need a draconian system to try to deal with this—because that is not what this debate is about. It is a caricature of the Government’s position and of those of us who oppose what the Government are doing.

We are saying that many of the policies being put forward by this Government to deal with the problem as they see it simply will not work. They go too far sometimes and compromise some of the principles every Member of this House would agree on. That is the clash. At some point we will have a debate about this, although perhaps there are other groups of amendments where it is more appropriate. I say again, there will have to be debate between those who—to be fair to the noble Lord, Lord Green—think they represent public opinion on this, and people like me who think he has got it wrong.

As part of the middle-class liberal intelligentsia—maybe not the intelligentsia, but the elite—let me say that I very much support that. Let me say why. As we stand here now, debating this, there are tens of thousands of asylum seekers who have applied for asylum in this country who have been waiting for a decision for more than a year. There are so many statistics sometimes you drown in them and are not sure which are actually right, so I will quote the Joint Committee on Human Rights, as it is slightly different to my own statistics. It says:

“approximately 65% of asylum applicants awaiting initial decisions had been waiting more than six months and that the average time to make an initial decision is now more than a year”.

That means tens of thousands of asylum seekers are waiting to have their application determined.

It would be interesting to hear from the Minister about the Home Office’s assessment of how long this is. Are there thousands of people waiting two years? When I was a Member of Parliament, people would sometimes come to me whose asylum claim had been neither agreed nor disagreed. They had actually disappeared and were there, and had been there for years and years. Now nobody wants that system. It’s ridiculous; of course nobody wants a situation that works like that. The reason I labour this point is that it goes back to the debates on the last group. The key to this issue is speeding up the process. We cannot have a situation where people are languishing for months and years before a decision is made. To be fair, the Minister believes that what the Government are proposing will speed up the process. I hope that they are right, but I do not think that they are. This is what bedevils the asylum system; it is not fair to the country, the public or the asylum applicants themselves. That is the basis of it.

Then you are left with the question of how you deal with this problem and what you do about it. At the moment, the Government’s position is that you have to wait a year before you can apply to work and then, if you do, you can work in specific occupations and jobs. I go back to the point made by my noble friend Lady Chakrabarti—supported I think by the noble Lord, Lord Bethell. The problem then becomes the denial of the opportunity for asylum seekers to work unless they have been here for a year. The community cohesion impact of that is enormous. What happens is that people then look at it and say, “What are they doing?” Noble Lords know the things that people say. “They’re not working. They’re not doing anything. They’re living on benefits. It’s about time they got out and did something”. Yet that is exactly what they want to do. Then some of them go out and work illegally, and they undercut the wages of legal workers or are employed in various occupations that we know about. So the whole system is undermined. To be fair, the last Labour Government did it. We introduced it, actually. I say to the Minister that, working in the Home Office, if she ever comes to this side, she will find quoted back to her things that she agreed to. So I accept that, right at the beginning of 2002, I think, we introduced this legislation for the same reason: we were worried about it being a pull factor.

But, if you look at it, where is the evidence? It clearly has not been, because it has not stopped asylum taking place—in fact, it has gone up. I will be fair and honest about it. My noble friend Lord Blunkett has done it once or twice in here, to his credit. Sometimes you introduce a policy with the best intentions—but what do you do if it does not work? Carry on? Do you just blindly say, “Well, it hasn’t worked but we’re going to carry on with it”? In supporting these amendments, we are saying to the Government that we have a policy that undermines community cohesion and does not work.

We then have the ludicrous situation where we have a Statement made by the Minister in the other place where he will not even publish the evidence for why the Government will continue with the current policy. He just refuses to publish it. So the Home Office has a review and does not publish the evidence. Then its own advisory committee says, “You’re wrong—you should do, and the policy is wrong anyway”. So the Government then turn around and say, “That’s ridiculous. We don’t agree with you”. They do not say why—other than that it is the pull factor. But then they do not publish the evidence that says that it is the pull factor.

It is not only that. I looked to see whether there was anybody else and found out that the Independent Anti-slavery Commissioner said:

“As the Independent Anti-Slavery Commissioner, I am aware of the harm caused to survivors of modern slavery and human trafficking unable to access training and work opportunities while they face delays in asylum status decisions.”


So the Independent Anti-slavery Commissioner is wrong as well.

So, to answer this, I say that the Minister does not want to penalise asylum seekers, but this is ridiculous. We have public policy that is not working and is undermining community cohesion and a government response that simply says, “We don’t agree with all the people who disagree with us but we’re not going to tell you what the evidence is to support that, because it’s the pull factor”—

Lord Green of Deddington Portrait Lord Green of Deddington (CB)
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I am a bit puzzled. Although the precise numbers vary from year to year, it is quite clear that substantial numbers—30%, 40% or 50%, depending on which year you take—turn out not to have a case for asylum in this country. Surely that should be a factor. Surely the way forward is, as the noble Lord proposed when he first spoke, to speed this situation up so that we can get the answers within the six months, which would be much better for everybody. Surely that should be the centre of their policy.

Baroness Ludford Portrait Baroness Ludford (LD)
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Can I intervene on an intervention? What is wrong if those people are allowed to work? If it is then determined that they have no right to stay, they would then have to leave—but, in the meantime, they are supporting themselves, perhaps using their skills and contributing tax. If they are then found not to have a legal claim to stay, so be it. I cannot see what the harm is in the meantime.

Lord Coaker Portrait Lord Coaker (Lab)
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I say to the noble Lord, Lord Green, that, at the end of the day, of course you want to speed the system up. No one does not want to speed up the asylum application process—to say that would be ridiculous, because of course everyone does. What I am saying is that, as the noble Baroness, Lady Ludford, has just said, at the same time, for the purposes of community cohesion and all the other things that we have heard, allowing asylum seekers to work while their application is being processed is actually a sensible thing to do. But the Government will not publish the evidence for why that is a pull factor, when the policy has been in place since 2001 or 2002 or whatever and has not made any significant difference at all. So all sorts of people and organisations support the right to work, which seems a sensible and reasonable thing to do.

I will finish by saying one simple policy to the Minister. I like to see people off benefits; I do not want to see people languishing on benefits. I thought that was a Conservative Government policy. One of the ways of doing that is allowing people to work: it aids community cohesion and is good for the individuals concerned. I simply do not understand why the Government are turning their face against what is a sensible policy initiative that would do a lot for community cohesion.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I again thank noble Lords who have spoken on these two amendments. The fact that there were only two amendments in this group did not make the debate any less fulsome.

I will say at the outset that the conclusion on right to work was made primarily on the grounds not of the pull factor but of the integrity of the labour market, and an impact assessment will be published on this in due course. But the noble Lord, Lord Coaker, is absolutely right that the policy has been in place since 2002. He says that things have not changed in that time in terms of people still wanting to come to this country, but I think that the global situation to draw people to this country probably has changed since 2002. I do not say that in a mischievous way at all—the world has changed and, therefore, people are more likely to want to come to this country, particularly when the economy is so good.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Green of Deddington, talked about polls, but I will not go into the merits and demerits of them: they are what they are and, as the noble Lord, Lord Green, said, it depends on the question that you ask. But the biggest poll that we have had in recent years was of course the 2019 general election, and that point about taking back control of our borders was at the heart of it.

Our current policy allows asylum seekers to work in the UK if their claim has been outstanding for 12 months, through no fault of their own. However, as the noble Lords, Lord Green and Lord Alton, were absolutely right to say, the best way to deal with people’s claims being outstanding for 12 months is to speed the process up in its entirety.

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Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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The noble Baroness is absolutely right, except that those who interject constantly with tiny, mean little points also ought to respect the House and perhaps be courteous to everybody else. It goes both ways.

Lord Coaker Portrait Lord Coaker (Lab)
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Coming from where I have, it seems incredibly courteous to me. We have Ministers who try to answer questions, which is refreshing. However, I take the point—the noble Baroness is absolutely right in what she said.

This is an important little amendment, which I support, in the names of the noble Baronesses, Lady Lister, Lady Hamwee and Lady Jones. It is not a party-political or ideological issue but a question of administration and removing a totally avoidable obstacle for people granted asylum in the UK. The British Red Cross is campaigning for it. The 28-day move-on period is simply not long enough to put basic arrangements in place. It leaves people facing avoidable poverty, and we should be able to do better. I remind the Committee that we are talking about people who have been granted asylum, not those waiting for their decision.

I believe we can go on a couple of minutes past 3.30 pm, but I will not detain the Committee for very long. The Minister, Tom Pursglove MP, gave a couple of answers in the other place that I did not quite understand. He did not disagree that there was a problem, saying:

“We are aware of reports that some refugees do not access universal credit or other benefits, or adequate housing, within 28 days.”


He went on to say that extending the period to 56 days, as the amendment suggests, would not fix the problem but he did not say why. He said there was a problem, but that extending the period would not do anything about it. Can the Minister elaborate on why the Government believe there is a problem but that extending the time limit would not make any difference? He also gave no response to the points raised on cost savings to local authorities and the benefits to the public purse of extending the time limit, lessening homelessness and the use of temporary accommodation. He gave no answer to any of those questions.

Finally, Mr Pursglove said that

“we must also consider the strong countervailing factors that make increasing that period difficult”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; cols. 666-67.]

but he did not say what they were. He just stated it. Knowing our Minister as I do, and knowing that she does try to answer questions, I say that it is not really acceptable to make a statement as a point of fact without some evidence to support it. The Minister in the other place accepted that there was a problem with 28 days but did not say why extending it would not solve this. He just said, “Yes, there is a problem”, almost as a shrug of the shoulders. This important little amendment seeks to help those who have been granted asylum deal with their transition into the life we all want them to have.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Ministry of Justice

Nationality and Borders Bill

Lord Coaker Excerpts
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, the Committee will be pleased to hear that I am not hangry any more. I would not like the Chief Whip to think that this speech is so short because of what he just said; it was going to be short anyway.

Amendment 67 in my name and that of my noble friend Lady Hamwee seeks to take out an apparently innocuous part of the Bill that intends to put into primary legislation that the feet of the asylum seeker need to be on dry land in the UK before they can claim asylum. At present, this requirement, “UK terra firma” as I might call it, is contained in the Immigration Rules rather than in primary legislation. The concern of organisations such as the Immigration Law Practitioners’ Association is that this strengthens the Government’s hand in any court case where Home Office actions are challenged as being contrary to the refugee convention, where the Government can now point to primary legislation as in some way overriding their international obligations.

Section 2 of the Asylum and Immigration Appeals Act 1993 provides that nothing in the Immigration Rules may lay down any practice that would be contrary to the refugee convention. Moving the UK terra firma condition from the Immigration Rules to primary legislation may be seen as an attempt to get around this requirement. The change is seen as integral to other quite abhorrent and questionably legal measures that we will come to later, giving Border Force and others the authority to board, intercept and drive away vessels containing asylum seekers crossing the channel.

Presumably this change that we are challenging is to stop asylum seekers being pushed back towards France from trying to claim asylum in the channel. Clause 13(7) may seem innocuous, but it is part of a greater evil and should be removed from the Bill. I beg to move.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I have a couple of questions for the Minister on Amendment 67. I will be interested to hear the debate on this amendment because the change in Clause 13(7) appears to be fairly innocuous, although quite significant. As the noble Lord, Lord Paddick, has said, the Immigration Law Practitioners’ Association has raised concerns about it so we will all listen carefully to what the practical impacts of this charge are.

Can the Minister explain what “territorial sea” of the United Kingdom means? I take the Chief Whip’s point—this may seem a very detailed point, but that is the point of Committee. What does “territorial sea” mean with respect to the beach? My understanding is that territorial water is low tide to 12 nautical miles out. The target then becomes the low beach mark. How is that measured? This is pedantic, but important: how is that measured around the coast?

I looked up the Explanatory Notes for Maritime and Coastal Access Act 2009 and I do not understand what they mean:

“For the most part the territorial sea of the UK does not adjoin that of any other state. Where it does do so in the English Channel, the Territorial Sea (Limits) Order 1989 … sets out the limits of the territorial sea in the Straits of Dover in accordance with an agreement between the UK and France.”


Is that still in existence? The notes continue:

“In relation to the delineation of the territorial sea between the UK and the Republic of Ireland, the situation is more complex, with no boundary having been agreed between the two states. Instead arrangements have been put in place under the Belfast Agreement for joint management of the Loughs that form the border (the Foyle, Carlingford and Irish Lights Commission’s Loughs Agency).”


I do not expect the Minister to answer now—this is not a trick question—but will she write a letter to explain what the legislation means for someone who may or may not be claiming asylum? The Explanatory Notes continue:

“Within the territorial sea, the UK has jurisdiction for the sea itself, the seabed subjacent and the air above.”


I do not know what the “air above” means. Will the Minister clarify that point?

I am confused—and the Government are confused—on another point. A row is clearly going on in government between the Ministry of Defence and the Home Office on pushback and this House is confused by the Government’s response.

Yesterday at the Home Affairs Select Committee, the Home Secretary was asked whether James Heappey, a Ministry of Defence Minister, was right to rule out pushback by the Navy. To be fair, the noble Baroness, Lady Goldie, ruled this out in this Chamber in answer to a question from me and other noble Lords. We were told by the Home Secretary, and this is really important, that the Minister

“gave a view … They are not facts. They cannot be facts, because the work—that operational work—is still under way. While I appreciate that he was responding to questions in Parliament, whether that was in Committee or in response to an urgent question, this is work in progress. It is wrong to say anything specific with regards to work operationally that is still being planned. That work has not completed yet.”

They cannot both be right, can they? If the Government have a pushback policy, they have a pushback policy and, as the noble Lord, Lord Paddick, mentioned, presumably including the seas helps with that. I do not know. What is the Government’s policy on pushback? We are debating the Nationality and Borders Bill and an aspect of it to do with territorial seas and I have no clue what the Government’s policy is.

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Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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I thank noble Lords for speaking to these amendments. In terms of territorial waters, yes, I understand it to be 12 nautical miles at low tide. In terms of pushbacks, of course I agree with my right honourable friend the Home Secretary and we are developing a range of tools to tackle the illegal and very dangerous crossings in the channel.

Lord Coaker Portrait Lord Coaker (Lab)
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I absolutely understand why the Minister has said what she has with respect to the Home Secretary. Nobody, including me, expects the Minister to get up and say that she disagrees with the Home Secretary—for obvious reasons. But that is not the point. The point is: what is the Government’s policy? The Ministry of Defence is saying one thing—including the Minister who speaks for defence matters from the Dispatch Box—and the Home Secretary is saying something completely different. It is not good enough.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I agree with the noble Lord and I will clarify the point on this issue. He knows that I will clarify that for him.

Amendment 67, if we can get on to that, seeks to weaken the message that this Bill strives to send. People should not risk their lives using unseaworthy vessels—I do not think anyone would think that they should—to reach our shores when they have already reached safety in a country such as France. It puts their lives at risk, and those of Border Force and rescue services. Events in recent months have all too starkly demonstrated the devastating human cost of undertaking these journeys. This provision is just one of a host of measures which aim to deter illegal entry to the UK. It is right that we prioritise protection for the most vulnerable people rather than for those who could have claimed asylum elsewhere.

Parliament has already had an opportunity to scrutinise these measures when they were placed in the Immigration Rules in December 2020. It has been a long-standing practice in place for many years to only accept claims for asylum in person at the individual’s first available opportunity on arrival in the UK. These provisions simply seek to place these long-standing requirements on a stronger statuary footing.

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Moved by
77: Clause 17, page 21, line 15, at end insert—
“(1A) The Secretary of State may not serve an evidence notice on a person who—(a) has made a protection claim or a human rights claim on the basis of their sexual orientation or gender identity;(b) was under 18 years of age at the time of their arrival in the United Kingdom;(c) has made a protection or human rights claim involving sexual or gender-based violence;(d) is a victim of modern slavery or trafficking; oron other categories of person on whom the Secretary of State considers it would be inappropriate to serve an evidence notice.”Member’s explanatory statement
This amendment probes the serving of an evidence notice on vulnerable groups.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, my noble friend Lord Rosser tabled Amendments 77 and 89. In this group we also very much support the important amendments in the name of the noble and learned Lord, Lord Etherton; those of the noble Baroness, Lady Hamwee, to remove the deadline; the crucial amendments of my noble friend Lord Dubs on the weight given to evidence; and indeed the amendment of the noble Lord, Lord Paddick. This is another important group of amendments.

The Government are aware that there are extreme and widespread concerns over the impact of the late evidence provisions in this part of the Bill, particularly the impact on vulnerable groups of people. I am pleased that the Government agree, because in their equality impact assessment which goes with the Bill there are hundreds of quotes that could be used to support the amendments that have been put down by various noble Lords. I have picked just a couple out. For example:

“We will continue to consider ways in which to mitigate adverse impacts on vulnerable people.”


Astonishingly, it also admits that:

“Where we do not have data, we have made assumptions.”


One hopes that if they have made assumptions on legislation which we are going to presumably pass at some point, we will continue to look at how we mitigate these consequences.

Noble Lords will be particularly interested in a quote from the Government’s own evidence to themselves:

“There is a risk that our policies could indirectly disadvantage protected groups.”


That is the Government’s own evidence to themselves. They are worried about the impact on protected and vulnerable groups—they say so in their impact assessment. If noble Lords have not had a chance to read all if it, it is worth reading in great detail. If the Government come back and say that there is no need for some of these amendments, they are actually contradicting their own evidence. So I support the Government’s equality impact assessment of these amendments and hope that noble Lords will also support it, and that the Government will welcome the amendments for further clarifying their own impact assessment.

Crucially, the amendments seek to provide more clarity on how vulnerable groups will be considered and what will be accepted as, for example, a good reason for late compliance. It is well understood, but not particularly reflected in these provisions, that those who have experienced trauma may find it intensely difficult, if not impossible, to disclose their experiences on demand.

Amendment 77, in the name of my noble friend Lord Rosser, would prevent evidence notices and the strict cut-off date for evidence being served on children, people seeking asylum based on their sexual orientation or gender identity, or survivors of sexual violence, gender-based violence or modern slavery and trafficking. I should declare again my interest as a research fellow at Rights Lab, at the University of Nottingham, in respect of modern slavery and trafficking. This amendment seeks to probe what the approach will be to these and other vulnerable groups.

I was struck by my noble friend Lord Cashman’s speech, on Tuesday, about somebody fleeing persecution because of their sexual orientation. He said that when you arrive at a place of safety, your first thought is that you are safe, not whether you are complying with a notice of what you will be required to do by a certain date or else be in trouble; indeed, when you are fleeing from whatever it is you are fleeing from, you first thought is not whether you have picked up all the relevant papers. These are the sorts of things that we need to consider.

Crucially, the amendment is not limiting, as it allows the Secretary of State to recognise further vulnerable groups who should also be exempt from these provisions. There is always a problem when you generate a list that there is someone you do not include.

An LGBTQ+ asylum seeker may face obvious problems providing evidence of sexuality, given that they will have been forced to hide in their home country through fear of persecution or death. They have fled to seek safety. They may not be being interviewed through a translator, the fear has not left them, they may not have the language with which to express what they have been through, and they may be fearful for the loved ones they have left behind. I know many noble Lords will have met many victims and survivors. Part of the problem is the concern they have for people at home, back in the country they have fled. I use myself as an example, as I know other noble Lords might: I would not comply with an authority, even if I felt safe, if I thought that my sister, brother, uncle, husband, wife or whoever was going to be put in danger—I just would not. I sometimes wonder whether what the Government are suggesting complies with the real world in which we all live.

Women for Refugee Women, which supports women fleeing gender-based violence, has said that

“because there are so many legitimate reasons for why a woman who has survived gender-based violence may submit evidence late, we do not think there is a way in which these evidence notices can be implemented fairly in respect to these highly vulnerable individuals.”

The Government themselves recognise that these specific difficulties exist, yet now, if a vulnerable person cannot produce that relevant evidence by a fixed date, it will be considered to have less weight than it is actually worth. That is included in the legislation, as laid out in the clauses we are considering at the moment.

Particularly concerning is that victims of modern slavery and trafficking are included in these provisions. The Government’s own statutory modern slavery guidance says that victims may be

“reluctant or unable to self-identify … Victims may experience post-traumatic stress disorder and anyone interviewing a potential victim should be aware of the impact of trauma on the interviewee, for example difficulty recalling facts.”

Why then, on the one hand, does guidance recognise the impact of trauma in disclosing experiences, yet, on the other, the Bill includes provisions that penalise people for not being able to hand over a neat life story on a deadline? That is contradictory.

Can the Minister clarify—because it is not clear to me—whether these provisions will be applied to children? The number of children waiting for more than a year for their initial decision increased from 563 in 2010 to 6,887 in 2020. That is not because of a surge in applications; it is because of a breakdown in the asylum system. We need to be extremely careful that the Government’s answer to that huge increase is not to penalise children for a failure of the system.

The Bill provides for exemptions where a person has good reason for not complying on time, but we need more information, as we have heard in respect of other parts of the Bill, about what is meant in practice by “good reasons”. Is that a subjective judgment? Is it just left hanging? What does “good reasons” mean? Our Amendment 89 probes examples of what would be considered a good reason for providing evidence late for a PRN. The amendment includes examples of where there is evidence of post-traumatic stress and where it would potentially endanger a person to gather the needed evidence before the cut-off date. It would also require the Secretary of State to publish a non-exhaustive list of what would be accepted as a good reason. The Minister will understand that we are trying to understand what the Government mean by “good reasons”.

It is particularly interesting that the only answer to these queries that we had in the Commons was:

“Guidance … will be published and made available when these measures come into force.”—[Official Report, Commons, Nationality and Borders Bill Committee, Commons, 26/10/21; col. 357.]


We know how difficult it is for us to consider whether that is the appropriate way forward and or whether it satisfies this Chamber given that it is, “We’ll pass it, but don’t worry, the guidance is on its way, and we’ll deal with it”. I say with all respect to the Minister that that is not good enough. Parliament is being asked to pass this Bill now, and we need greater clarity and understanding about how it will function in practice.

Clause 25, on which there is the stand part debate, states that “minimal weight” should be given to late evidence. It is extremely problematic to give important evidence minimal weight based on a deadline rather than judging it on its merits. That is prioritising process over truth and factual evidence, and it will lead to bad decisions. It completely flies in the face of the established practices and procedures of this Parliament and our judicial system. I say again that the Government are prioritising process over truth and factual evidence and it will lead to bad decisions.

The system is currently not operating as it should. The proportion of asylum appeals that were successful in 2020-21 was 47%, so evidence is already not being given the weight it should be given because almost half the decisions are overturned on appeal, and it is leading to decisions that are incorrect. Why in this situation would we build in a mechanism to take evidence less seriously? It flies in the face of the reality that we are confronted with. We must ask how this measure complies with the legal requirement on the Government and all of us to act in the best interests of the child. Can it ever be the case that giving evidence of their need for asylum “minimal weight” is in their best interest?

We therefore strongly support my noble friend Lord Dubs’s Amendments 83 and 88 to remove, as recommended by the JCHR, the provision in Clause 25 that the deciding authority must have regard to the principle that minimal weight should be given to the evidence. It is quite an astonishing principle to establish in law that evidence should be given minimal weight rather than whether it is good evidence or bad evidence or whether it is truthful evidence or untruthful evidence. The noble Lord has been in court. I am sure that if he was giving evidence and somebody said, “Well, that’s minimal”, he would say, “Well, actually, it’s true.” I am not a lawyer, but I would hope that anybody representing me would put good evidence forward and the court would say whether it was good or bad, and you would hope to establish the facts.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.

As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.

Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.

On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.

Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank all noble Lords who have spoken in this very important debate. I also thank the Minister. Yes, it was a long reply, but it was an important one and it did not take up too much time. Sometimes long replies are needed, and the Minister was right to take the time that he took to respond. There are a large number of points on which I could reply to the Minister, but it is clear that we will have to come back to some of them on Report.

If the Minister does not mind me chiding him slightly, I will say that that was a bit of a “no worries, no problem” defence: “Everything is fine. It will all be sorted in guidance, although we will not see it until some future time. Do not worry about the children problem that the noble Baroness, Lady Lister, raised, because we have all taken into account the sensitivity of children and how old they are. Do not worry about LGBTQI because they will all be very reasonable. Do not worry about the good reasons either—it will all be sorted. Good reasons mean good reasons. Nobody will do anything about it if the reasons are good.”

One example where the Minister was in trouble at the end essentially concerned Clause 25(2). When is a principle not a principle? Is it a principle when it is written down? I love the phrase “have regard to”; it is always put in. The Minister said that we do not have to take X or Y into account. In a sense, he agreed with the JCHR that a better word would be “may” instead of “must”. This is quite a significant change—something may be taken into account, or it may not be. At the moment, it says “must”. This is the problem with which he was trying to wrestle—first, whether there is a principle at all, and secondly, whether “may” or “must” should be used.

The Government are seeking to deal with the problem that the asylum system is in chaos. Half the decisions are overturned on appeal. Panic has broken out. The Government say, “We cannot have this. The public are going mad. Everybody is dissatisfied. We will get more and more of this. Everyone is making late appeals. They are not abiding by the rules. We have to do something.” A whole series of new measures is being taken to overcome a bureaucratic problem. In the end, it needs good—probably trained—decision-making, speedily done, to get a system that works. The Government will not address the very real problem in the Bill, particularly in respect of late priority notices, except on a piece of paper. In a year or two or three, there will be a Nationality and Borders Bill mark 2. If they are not careful, whoever is in government—I hope it will be a different Government—will be panicking in the face of it not working. They will bring in other measures.

Much of what has quite rightly been raised by noble Lords across the Chamber will have to be revisited on Report. I thank the Minister again for his courtesy and for the time and trouble he took to try to respond. Finally, the sooner we have a look at the guidance, the better. It is very frustrating when the Government say that they will publish the guidance and it is published after the Bill is passed. We deserve to see the guidance as soon as possible. I would be very grateful if the Minister could pass this on. I seek leave to withdraw the amendment.

Amendment 77 withdrawn.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Ministry of Justice

Nationality and Borders Bill

Lord Coaker Excerpts
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I pay tribute to the noble Lord, Lord Dubs, for his tireless work on family reunion, born out of his own personal experience. I also pay tribute to my noble friends: my noble friend Lady Hamwee, who ran the first leg with her Private Member’s Bill, before handing over to my noble friend Lady Ludford.

It is better for families to be together, not just for their own welfare but so that they can look after each other, as my noble friend Lady Hamwee had just said, rather than being looked after by the state. We strongly support Amendment 112. Amendment 113 would provide a mechanism for those unaccompanied refugee children who had reached an EEA country and who have a family member in the UK to be reunited with that family member. Amendment 114

“would require the Government to produce a negotiating mandate to seek reciprocal arrangements, with other states, on safe returns and safe legal routes.”

I am guessing that would be something akin to Dublin III. Amendment 117 from the noble Lord, Lord Dubs, would change the Immigration Rules to allow people currently in Europe to come to the UK to seek asylum—effectively be given a visa—if they have a family member in the UK. This is a subset of my noble friend Lady Hamwee’s Amendment 118 in the next group. We support all these amendments.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, it is a privilege to contribute again to the deliberations in Committee on this important Bill. We agree with all the amendments in this particular group, but I shall speak specifically to Amendment 114 and then Amendment 113.

On Amendment 114, I join the noble Lord, Lord Paddick, and I am sure all other Members of the Committee, in paying tribute to my noble friend Lord Dubs for the work he has done over so many years. He is an example and inspiration to us all, with respect to family reunion. The reason I want to highlight Amendment 114 is to lay out the importance of international action on this. That is why the refugee convention is so important to us. We saw the collapse of the world order, if you like, after the Second World War. As was mentioned by the noble Lord, Lord Alton, earlier, the world back then, of all political persuasions and ideologies, did not all split asunder and pull the drawbridge up on their own countries; they said that this was a common problem of such massive importance that they had to work together to achieve anything.

The 1951 refugee convention is not an old document but still speaks to us and is relevant today. It may have been written in 1951, 70-odd years ago, but it speaks as resoundingly to the people of the world today as it did then. Why do I say that? Like many Members of this Committee, I think Amendment 114 is important because it talks about the United Nations and it talks about international actions. It is a probing amendment —we are not asking the Government to accept it—but it is using the Committee to put pressure on the Government to say, as a senior global power, a member of the United Nations Security Council, a senior member of NATO, a power that has resonance across the world—notwithstanding some of the reputational damage that I think this Bill is causing—that we make a difference. What we say makes a difference.

In Syria, Iraq, Afghanistan—all of those countries—their refugee problems dwarf ours, let alone if we consider those in Africa. As I think I mentioned before, I went to Angola, where they had a refugee camp of a million people—some of the poorest people in the world dealing with some of the most difficult circumstances. On the border of Syria and Jordan, as I think I mentioned before, there is a huge refugee camp with people pouring across the border to escape war. Those countries—Jordan and Turkey—did not turn their back on those people; they worked to try to deal with it.

What I am saying about that international response, that international action, such is the difficulty that we are facing across the world—for all sorts of reasons, and we can debate why that is and why that is not—is that if we do not join together, we have got real problems in actually sorting this out. It is beyond the capacity and capability of one country to do that, notwithstanding the attempts. I say this: there will be a nationality and borders Bill 3 and a nationality and borders Bill 4 in trying to deal with this if the UK Government try to deal with it on their own.

Lord Green of Deddington Portrait Lord Green of Deddington (CB)
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I entirely agree about the appalling conditions in these refugee camps and the huge number of refugees that are being dealt with. The question that I and others ask is: how can we best use the resources that we can give to the people who really need it? How much more effective would it be to get aid, food and medical attention into these terrible camps, rather than spending huge sums of money on children here who cost the same as a term at Eton?

Lord Coaker Portrait Lord Coaker (Lab)
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Of course that is right. That is why there was such a row about the cut in the aid programme. It is why we all believe that of course we have to try to prevent war, famine and all those things. Not to do that would be ridiculous. The sources of many of our problems are war, famine and disease, and all of those things, so of course we have to prevent them.

However, it is also important in the debate we have in this country about asylum and refugees—not immigration—to stand up to the view that “We take the lot”. The idea that it is this country that has to deal with the situation, no other decent country in the world does it, we are the country that has to take them all and we are the weak link in it all is just not true, however unpopular it is to say so. Sometimes the way that you change public opinion is by arguing with it.

People will say, as no doubt the Minister will, “We won the election and therefore this is what the public think”, but on asylum and refugees there is an argument for saying, “Of course we don’t want open borders but there is a need for us to act in a way that is compassionate and consistent with the values that we have always had”. Sometimes that costs you, as I know, but that does not mean you should not do it. Public opinion can therefore be changed, and the subject is debated. Indeed, policy and opinion can change in this Chamber, which is the point of it. In the interests of time, I will stop there.

Amendment 114 is exceptionally important because of the need for international action. To apply it to our own situation here, we will not deal with the migrant crossing problem in the channel without co-operation from France and the rest of Europe.

I want to talk about the importance of Amendment 113, and I take issue with the noble Lord, Lord Green, on this. It is not an open invite to everybody to pile their children—I paraphrase, but if I get it wrong then no doubt the noble Lord will correct me—into the EEA because that means they can all then come to the UK. The amendment clearly lays out that it is about people who already have a family member present in the United Kingdom. It is about family reunion and trying to ensure that unaccompanied children in the EEA who have a family member in the UK get the opportunity to be reunited with them.

I will finish with this point, which I know the Minister will agree with. The problem we have is that sometimes Ministers have to speak to Governments, to the computer and to the Civil Service and say, “This bit of the Bill is wrong. It does not work.” Both Ministers have done it before on other Bills in other places where the Bills were wrong. On this issue of family reunion, the Government have got it wrong; they are not right. Nobody thinks that children who are unaccompanied in other parts of the EEA, for example, should not be able to reunite with their families in a way that is consistent with the values of this country, and it beggars belief that the Government would stand against that. It is not about an open door; it says quite specifically who should deal with it. I think if that were explained to the people of this country, and debated and argued with them, they would support it, because they are compassionate and decent, and in the end the compassionate and decent side will win. I think the Ministers are compassionate and decent, so let us have a Bill—in this aspect of it—that reflects that.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank all noble Lords who have spoken to this group of amendments. I hope in what I am about to say that there will be at least some acknowledgment of the compassion and decency that we have shown as a country in the last few years—actually, the last few decades. It is such a hallmark of us as a nation. I also pay tribute to the noble Lord, Lord Dubs. Believe it or not, we like each other very much—we just disagree on quite a lot. But we have worked together in a civilised and friendly manner over the last few years, and long may that continue.

On the point about decency and compassion, Amendment 112 aims to expand the scope of the refugee family reunion policy. Under that policy, we have granted visas to over 39,000 people since 2015, over half of them being children, as the noble Lord, Lord Green of Deddington, pointed out. So, to answer the noble Baroness, Lady Jones of Moulsecoomb, we have looked into our hearts. We already have several routes for refugees to bring family members to join them in the UK, and it is important to carefully consider the impact of further amending our policy.

Family unity is a key priority, but noble Lords will know that we have a range of aims further to this, including ensuring that we have reasonable control over immigration and that public services such as schools and hospitals—and I think that it was the noble Lord, Lord Green of Deddington, who talked about the infrastructure of this country—are not placed under unreasonable pressure. However, I recognise that in some cases there will be exceptional and compassionate circumstances which warrant a grant of leave. To answer the noble Baroness, Lady Ludford, the guidance on exceptional circumstances will be published in due course. That is why our policy ensures that there is always discretion to grant visas outside the Immigration Rules, which may cater for the sorts of cases that do not immediately fall within our legal framework.

In terms of allowing child refugees to sponsor family members under this proposed clause, noble Lords will at least grant that I have been consistent in opposing that sort of policy, because of its negative consequences. It is highly likely that this would create further incentives for more children to be encouraged—or even, sadly, forced—to leave their family and risk extremely dangerous journeys to the UK in order to sponsor relatives. Such an approach would open children up to a huge exploitation risk, which completely contradicts the hard work and commitment of the Home Office in protecting children from modern slavery and exploitation. We refuse to play into the hands of criminal gangs, and we cannot extend this policy to allow child refugees to sponsor family members into the UK.

Beyond this, many of the conditions set out in this new clause are already included in our current family reunion policy and are taken into consideration when decisions are made inside or outside the rules. All noble Lords in Committee should have a copy of the various routes. Our prime consideration in all cases is the best interest of the child in question—and so it should be. As the number of visas we have granted under this policy reflects, we are committed to maintaining family unity for refugees. Caseworkers are encouraged to use discretion in considering whether entry may be granted in family reunion cases. By setting out conditions in primary legislation, we would lose the individuality of consideration, and the discretion of caseworkers would be void. I can assure the Committee that all relevant elements of each case are thoroughly considered on their merits under this policy, and there is no need to set it out in statute.

I turn to Amendment 113, on family reunion for unaccompanied asylum-seeking minors. I cannot support this proposed new clause. It tries to recreate the EU’s Dublin regulation in UK law with respect to unaccompanied children who have claimed asylum in an EEA state but have family members in the UK. When the UK sought to raise these matters with the EU, our proposals had very clear safeguards for children. This proposed new clause has none. It creates entitlements to come to the UK to claim asylum if the minor has specified relatives but it fails to consider the individual needs of the child. It does not consider whether the UK relative can actually take care of the child or whether the child would be better placed with a relative, potentially an even closer relative, in another safe EEA state.

The other point about this proposal is that it does not work unilaterally. I am sure the noble Lord will concur with that. It requires co-operation from EEA states. It is not possible to legislate through this Bill to take children out of other countries’ care and support mechanisms or their asylum systems. That requires agreement between states, which might not be possible and is certainly unlikely in the timescale of six months set out in the clause.

I see that the noble Lord, Lord Dubs, is about to stand up. Might I finish this point about the EU before he does? As he knows, we sought to negotiate with the EU on UASC family reunion and continue to talk to it on this important issue. However, at this point I cannot comment further.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

Nationality and Borders Bill

Lord Coaker Excerpts
Moved by
151D: Clause 57, page 61, line 31, at end insert—
“(1A) The Secretary of State may not serve a slavery or trafficking information notice on any person who— (a) is aged 17 or younger, or(b) was aged 17 or younger at the time they were a potential victim of slavery or human trafficking on the basis of which they have made a protection claim or human rights claim.”Member’s explanatory statement
This would exclude children from the provisions of Clause 57.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I declare my interests as set out in the register as a research fellow at University of Nottingham, in the Rights Lab, and as a trustee of the Human Trafficking Foundation. I hope that can be noted as we go through this part of the Bill, rather than me saying it at the beginning of every group of amendments, if that is in order.

Part 5 of the Bill deals with modern slavery. There are a couple of things to say before I turn to my amendment and some of the other amendments in this large group. It is sad to see modern slavery in what is essentially an immigration, refugee and asylum Bill. That is to be regretted. Notwithstanding that, it is in this Bill, and we have a large number of amendments and important issues to discuss.

I regret much of what is in Part 5, given that one of the iconic achievements of any Government over the last few decades was that of the Conservative Government under David Cameron, with Theresa May as Home Secretary and then as Prime Minister: the Modern Slavery Act. As a Labour politician, I was pleased and proud to support it. It was a fantastic achievement, and a model for the rest of the world, and indeed the rest of the world has followed it. That should be set down as a marker in this place. I hope that the right honourable Member for Maidenhead, the former Prime Minister, hears loud and clear what I think the vast majority, if not all, of this House believe with respect to the Modern Slavery Act.

I find it therefore somewhat difficult to understand why the Government have come forward with a number of proposals which undermine some of the basic principles upon which that Modern Slavery Act was established. Clauses 57 and 58 put victims on a deadline to give information or evidence and penalise them for late disclosure. They take no account of the realities faced by victims of slavery and trafficking, and will make it harder for victims to access support.

Like much in this Bill, the starting point for the Minister must be why the Government are doing this. What evidence is there of a real problem here that needs urgently to be tackled? There is none—I cannot find it. I can see no explanation from the Government for why they are doing this, other than a belief that part of the modern slavery legislation—the national referral mechanism, or whatever you want to call it—is being abused and misused by those who seek asylum or get into this country using the devious route of claiming to be victims of slavery when they are not. Where is the evidence for that? Where are the statistical points that the Government can use to show us the scale of the problem, to say that this is what is happening, and that this is why we must deal with it?

This goes to the heart of the problem. I do not know what the politically correct term is, but the Government have set up this target to justify legislation and legislative change on the basis of attacking some mythical statistical problem—“We have to do this to deal with that”. The first thing to know is what has caused the Government to believe there is such a problem that they need this to deal with it. From memory, about one-third of referrals to the national referral mechanism are from British citizens, so you start to wonder.

Those are the parameters of the debate. I will return to many of those themes as we go through Part 5.

It is very unclear what problem the Government are trying to fix with these changes and what is gained by the clauses, because the cost of them is stark. We look forward to the Minister justifying that at the beginning of his remarks. What assessment have the Government done on the impact that these provisions, if passed unamended, will have on the national referral mechanism?

Clause 57(3) suggests that a slavery and trafficking notice will be used even before a reasonable grounds decision can be made, putting up barriers before a victim has taken even their first step into the national referral mechanism. Can the Minister explain if that is the case? Is that the purpose of Clause 57(3)?

At Second Reading, the former Prime Minister Theresa May said:

“It takes time for many victims of modern slavery to identify as a victim, let alone be able to put forward the evidence to establish that.”—[Official Report, Commons, 19/7/21; col. 728.]


This is not from some wild, middle-class liberal or a person who is blinded by the belief that refugees, asylum seekers and those fleeing modern slavery can do no wrong; the former Prime Minister of this country outlined one of the deficiencies that many in this Chamber believe is a real problem. Does the Minister agree or disagree with the former Prime Minister? If he agrees, why does he not do something about it? If he disagrees, I think we will come to our own conclusions. How is that reflected in measures that create artificial deadlines, which have not been needed until now, and that penalise victims for not meeting them?

Also on Clauses 57 and 58, it is not clear, and I ask the Minister to explain, whether slavery or trafficking information notices will be served on all asylum applicants or on only some. It would be discriminatory if they were served on some asylum seekers or certain categories of asylum seeker—for example, the people the Government expect to be captured by these clauses. That point was made by the Joint Committee on Human Rights.

Clause 58 provides that decision-makers must take account of a missed deadline and that it must damage a victim’s credibility, unless they have “good reasons” for providing information late. Why is the national referral mechanism all of a sudden not trusted to make decisions and give weight to these matters?

Amendment 154, which I have tabled with the noble Baronesses, Lady Prashar and Lady Hollins, and the noble and learned Baroness, Lady Butler-Sloss, seeks to find out what the Government mean by “good reasons” in Clause 58(2)—

“unless there are good reasons”.

No doubt the Minister will say that this will be clarified in guidance, that we can look forward to regulations and that, when the clause talks about “good reasons”, we can trust them, and that of course “good reasons” means good reasons”, et cetera. We will get into the nightmare situation in which nobody has a real clue what it means. That is why I am grateful to other noble Lords in the Committee for supporting that amendment.

I particularly highlight paragraph (g) in Amendment 154, which deals with the

“fear of repercussions from people who exercise control over the person”.

Time and again, you meet victims who are terrified of the system, and therefore will not co-operate, or victims who are coerced into activity that all of us sat in here—in the glory of the wonderful House of Lords Chamber—would think wrong, but which completely misunderstands the coercion that victims or survivors in those circumstances face. It is not the real world to believe that they cannot be coerced into doing activity that we might sometimes think is not right. It is not the real world; it is not their life; it is not the reality of their situation. I say to every noble Lord here, if you were told that unless you co-operated fully with individuals you were entrapped by, your parents, grandparents or family in the country from which you originated would be attacked or worse, I wonder how many of us would say, “Don’t worry, I won’t do it”. It is just not the real world.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I thank everyone who has contributed to this incredibly important debate. It lasted just over an hour, so I will be brief to allow us to move on; otherwise, we could have a huge debate again in me responding to the Minister. I am sure many of the same points will, quite rightly, come up in the other groups. I hope noble Lords understand and accept that.

I will reiterate the point made by the noble and learned Baroness, Lady Butler-Sloss, and referred to by the noble Lord, Lord Kerr. It is interesting to note that, when a Government are in trouble, they defend themselves against everybody. You know when a Government are in difficulty because they resort to exactly the sort of defence—quite rightly; I have done it myself—that the Minister resorted to: “If only you understood the statistics and appreciated the difficulties”. That officialdom then rains on everything. When everybody else thinks you are wrong, you usually are. I gently suggest to the Government that they have got this wrong.

I am pleased the Minister was honest about this and I thank him for his response. It is clear the Government think the system is being abused and that people are claiming to be victims of modern slavery, either straightaway or late in the day. The Government are determined to shut down this loophole in the system. That is what is going on and it is why the danger that all of us raised about including modern slavery in an immigration Bill or the Nationality and Borders Bill—whatever you want to call it—sets a context that is difficult for modern slavery, to put it mildly.

All that I would say to the Minister is that even if the Government are right in saying that there is a problem here, by trying to deal with the issue as an immigration offence, which is essentially what they are doing, they are driving a coach and horses through the principles of the Modern Slavery Act. That is why people are so upset about it, so disappointed about it, so angry about it and so frustrated about it. They accept that the Government have to deal with immigration and that there are difficulties but this country has been proud of the way in which we deal with victims of modern slavery. Treating them, as they will be, as potential immigration offenders will change the dynamic. There are victims who we do not know and have no idea who they are. Children, whether they are 17 and a half or 13 are going to be impacted. As a consequence of what the Government are doing, innocent victims are going to be penalised in the name of tackling the problem of immigration. That is why people are so disappointed.

In conclusion, I say to the Minister that it must come to something when large numbers of the governing party as well as all the other parties that make up this House, including organisations of all faiths, are arraigned against this measure, along with all the voluntary sector, including the Government’s own voluntary organisation, the Salvation Army. I should have thought that that would have given the Government pause for thinking that maybe they have not got this quite right. Let us hope that between now and Report that they do so, otherwise I can foresee real problems on Report with respect to the clause and the other clauses in Part 5. I beg leave to withdraw the amendment.

Amendment 151D withdrawn.
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Baroness Hamwee Portrait Baroness Hamwee (LD)
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Indeed, it was excellent. That is why I raised it—because I wonder what has happened to it. As I say, I find the suggestion made in Amendment 173 intriguing, and I hope that it will be taken very seriously.

Lord Coaker Portrait Lord Coaker (Lab)
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I rise briefly to say that we support the amendments in this group. I say to the noble Lord, Lord Deben, as the noble Baroness, Lady Hamwee, said, and we have said right across the Chamber, the points that he made about the contribution that Theresa May made—within the coalition Government, as I was reminded—were fantastic.

Lord Deben Portrait Lord Deben (Con)
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I was not there for that, but it seemed to me that it was worth repeating, if I may put it clearly.

Lord Coaker Portrait Lord Coaker (Lab)
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Well, it is the first time that I have heard repetition in this Chamber, so I thought that the noble Lord could not have been here. But it was a serious point, and it deserved to be made again, because we all agreed with it.

We support all the amendments in the group. I will speak specifically to Amendments 157 and 173. The other amendments have been spoken to very ably by the noble Lord, Lord Alton, and others, so I will not address those, in the interests of time. With respect to Amendment 157, it is intriguing that the statutory guidance says that

“a Conclusive Grounds decision will not be made until at least 45 days of the recovery period have passed”.

Why does the Bill reduce that to 30? That is my understanding, unless I have misread it. We talk about enhancing, but, as I say, 45 days is the period in the statutory guidance, while the Bill talks about 30 days.

Given that we are in Committee, it would be interesting to hear more on this. Am I wrong? Does the 30 days refer to something different? I cannot find references to 45 days in the Bill, but that is what is in the statutory guidance. Could the Minister respond to that? It would be helpful to the Committee to know what the 30-day period is vis-à-vis the 45 days set out in the statutory guidance, which is what the whole sector uses with respect to the recovery period and is, indeed, how I have understood it.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The justification is to ensure clarity across the legislation, and I appreciate the comment made by the right reverend Prelate, and rehearsed by my noble friend, about advantages flowing or not from the Brexit process, which so many of your Lordships will have discussed. However, our ability to act differently from our partners across the channel is a valuable one, but what we seek to obtain by this measure is legislative clarity and a consistency in decision-making which will, we hope, benefit victims and develop understanding among all the agencies in this important sector. My noble friend is resuming his mask, and he did say that he would not interrupt again, although I hope that he will not bar himself from further interventions later in the debate.

I turn to Amendment 157, tabled by the noble Lord, Lord Coaker. I thank him for his powerful and compelling opening contribution to this debate and to earlier debates on the topic, and for his work at Nottingham University. I offer the Committee reassurance that we are committed to providing victims with at least a 45-day recovery period, or until a conclusive grounds decision is made, whichever period is the longer. Our position is—I maintain that this does not need to be placed on the face of the Bill, and I return to the earlier discussions with my noble friend Lord Deben—that it would create a misalignment with our international obligations under ECAT.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank the Minister for all of that, and the commitment to 45 days. Why does it say 30 days in the Bill? Have I got that wrong?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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No, I think the noble Lord is correct. It is 30 days for the alignment with ECAT, but the 45 days appears in the guidance, and we commit to providing support over that period: a 45-day recovery period as expressed in the guidance, or until a conclusive grounds decision is made.

Lord Coaker Portrait Lord Coaker (Lab)
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So there is an absolute commitment to 45 days for the gap between reasonable grounds and conclusive grounds, even though legislation which we are going to pass says 30 days?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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The noble Lord shrugged his shoulders, but I repeat that the justification for this is to align with our international obligations with our partners in ECAT.

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Moved by
158: Clause 61, page 64, line 4, at end insert—
“(aa) the person was aged 18 or over at the time of the circumstances which gave rise to the first RG decision;”Member’s explanatory statement
This amendment seeks to preclude those exploited as children from being denied additional recovery periods if they are re-trafficked.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, before I start my remarks on this group of amendments, I want to say in answer to the question asked earlier by the noble Lord, Lord Deben, that the problem the Minister has—and he has it all the way through this part of the Bill—is that what the Government do not like saying is that the reason they are doing this is not really to do with modern slavery. They are trying to sort out what they see as an immigration mess and the problem they have with everybody moaning about immigration, asylum and so on, and this has ended up in a Bill it should not be in. That is the problem. The noble Lord, Lord Deben, asked why we were doing this. The answer is, “because we think the modern slavery system is being abused and lots of people who shouldn’t be applying to it are applying to it, and they’re immigration offenders and not victims of modern slavery”.

What this Committee is saying is that it should not be in this Bill. Victims of modern slavery are being conflated with immigration offenders, and it will lead to the undermining of the Modern Slavery Act and the principles on which it is based, and to potential victims not receiving the support and help they need. That is the motivation for the Government in doing this. I do not think that it is the motivation for this Minister, which is why it is sometimes particularly difficult for him to answer the specific questions asked by the noble Lord, Lord Deben, as a one-nation Conservative—I think that is a compliment to him. The noble Lord has been trying to say to him that it was that brand of conservatism which drove the Modern Slavery Act. Perhaps the current Government—I can say this not as a lifelong Conservative—could learn from that. But that is a matter for internal grief and beyond the scope of this Bill.

I want to draw the Committee’s attention to the titles of these clauses. I will say something on Clause 61, “No entitlement to additional recovery period etc”, but there is a particular difficulty with Clause 62, “Identified potential victims etc: disqualification from protection”, which goes to the heart of the problem. Essentially, it is another way for the Government to say that potential victims of slavery are abusing the system to get round it because they are really immigration offenders. The Government are saying, “The system is being abused and we are going to stop it, and this is the way we’re going to do it”. The problem is that they are going to undermine the Modern Slavery Act and the modern slavery system that they have put in place, of which they should be proud, and indeed of which people—including all of us—are proud. It is that contradiction that goes to the heart of Part 5 in every single utterance, whether it is made from the Government Front Bench, the Opposition Front Bench or others in this Chamber.

I point out that Clause 62 does not even say “potential victims”; it talks about “identified potential victims”. No wonder there is such disquiet, upset and anger about this clause, which I will come on to in a minute. There are very real problems with Clause 61, but particularly with Clause 62, hence the amendments that I and other noble Lords have tabled, and the clause stand part notice.

Again, I come back to this question on Clause 61: what problem are the Government actually trying to fix that requires primary legislation? Again and again that has been asked by noble Lords across the Chamber without the Government really being able to answer—apart the noble Lord, Lord Wolfson, intimating the explanation I gave in his remarks on an earlier group.

The Explanatory Notes state that Clause 61 is there:

“In order to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal”.


Again, that goes to the heart of it. The Government are seeking to change an immigration offence using a modern slavery context. It is a contradiction. It is not supposed to be like that. The whole point of the Modern Slavery Act was to take this out of the immigration context of the Home Office. That perennial battle between immigration and modern slavery is unresolved and requires parts of the Government to stand up and say, “You’re wrong and we’re not going to do that”.

What evidence is there of recovery periods being abused? That is of interest, I think, as evidence for the proposed change before us. What evidence is there of us providing “unnecessary support” to a person using the NRM? Re-trafficking has increasingly become part of the traffickers’ operating model, including where people return to their enslavers for fear of repercussions for their families, which we touched on earlier. How does Clause 61 respond to or break that model? Does not the refusal of a further recovery period simply strengthen the perpetrators? I think that is a real risk.

As the noble and learned Baroness, Lady Butler-Sloss, has asked on a number of occasions, will children be subject to the restrictions under Clause 61? Every single part of this Bill makes no distinction at all between adults and children. The Minister has experience of the legislative system, which, as a basis, divides children and adults on the grounds of good justice. Why is that not the case here? This is what Amendment 158 seeks to probe. Does the Minister have any figures for the number of children who go missing and are re-trafficked? Does he agree—again, the noble and learned Baroness, Lady Butler-Sloss, also asked this—that a missing child at risk of exploitation is a safeguarding issue, not an immigration or enforcement issue?

On Clause 62, the key question is what action, if any, the Secretary of State intends to take on the comments made by the Independent Anti-slavery Commissioner, who has written a scathing article in the Times today—note the word “independent” in the commissioner’s title. The headline says:

“Fears about bill that would take support away from some modern slavery victims”.

She has concerns about the way Clause 62 will operate and the wide way in which certain phrases in it could be drawn. Is it the Government’s intention to ignore the Independent Anti-slavery Commissioner, including where she says that Clause 62 will empower and embolden people traffickers and criminal gangs? Why is something that the anti-slavery commissioner says is harmful included in the Bill? Can the Minister also give further detail on how Clause 62 will operate in relation to children who are victims of criminal exploitation?

The lead signatory of Amendment 169 is the noble Lord, Lord Randall, but he cannot be with us today and has sent his apologies. The noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have also signed it. Amendment 169 suggests to the Government that, if they are going to have Clause 62, which many would say should not be part of the Bill, this is a way they could redraft it to try to address some concerns. I personally would not keep Clause 62 but, instead of just a vague reference to a “threat to public order”, whatever that means, the amendment’s proposed new subsection (2)(a) inserts the words

“is prevented from doing so as a result of an immediate, genuine, present and serious threat to public order”,

rather than a wider definition.

Similarly, under

“Identified potential victims etc: disqualification from protection”,

we have put the words:

“in exceptional circumstances … following an assessment of all the circumstances of the case.”

Then there is the importance of international co-operation and the fact that we have also not included children. These specific points seek to address some of the concerns that have been raised by many groups and other noble Lords.

My Amendment 164A is to probe a specific question: where a person is covered by Clause 62, is it the Government’s intention that that person will still be entitled to and receive a conclusive grounds decision, as they do at present, or do the Government consider that the duty to investigate trafficking and exploitation no longer applies?

The criticism of Clause 61 and particularly Clause 62 is that, in the Government’s efforts to deal with what they perceive is an immigration problem, they are undermining the protection that the Modern Slavery Act gives victims. That view is held by many noble Lords in this Committee, many Members in the other place and the various NGOs that seek to inform our debates. I beg to move.

Earl of Kinnoull Portrait The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)
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My Lords, I must inform the Committee that, if Amendment 160A is agreed to, I will not be able to call Amendments 161 to 163, by reason of pre-emption.

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I hope, for the reasons outlined, that noble Lords will be content not to press their amendments at this stage.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I thank the Minister for his typically courteous and thoughtful reply, and the way in which he attempted to answer every question put to him by noble Lords across the Chamber. We are very grateful and that was well received by everyone. I believe, however, that there is a very real problem at the heart of the Bill, with respect to Clause 61 and particularly Clause 62, notwithstanding his reassuring words.

It remains on the face of the Bill that an identified potential victim can be disqualified from the section if they are a threat to public order, or they have given information in bad faith. As noble Lords have said, there is no real clarification, notwithstanding the Minister’s response, on what a threat to public order means. We can see from what has been said, by many of the organisations that made representations, including lawyers and the Independent Anti-slavery Commissioner, that a threat to public order can include very minor offences. The Minister says, “Don’t worry, the decision-makers understand that Clause 62 does not apply if they are minor offences”, but that really is not good enough. It should be on the face of the Bill; it should be clearer, in primary legislation, what a “threat to public order” means—and indeed “acting in bad faith”. What on earth does “acting in bad faith” mean? That is usually something people use when they cannot think of anything else—“That’ll do, that will be something we can say because it encompasses everything.” It is not good enough, in primary legislation, to legislate in that way.

The purpose of the amendments that have been tabled, and the debate that has been had in Committee, will cause the Government to have to think again and, at the very least, be clearer in what they actually mean with respect to where they are going to disqualify somebody from protection when they are an unidentified potential victim.

The last point I will very quickly make is that there is real issue with respect to children. Both this Minister and the Minister who responded to the earlier groups say again, “Don’t worry, there is nothing to worry about. We understand the particular needs of children”. I say again that in virtually every area of government a distinction is made between adults and children, for obvious reasons. It beggars belief that it is not done anywhere in this Bill. We will come back to this at Report, but I thank the Minister for his reply and, with the leave of the Committee, withdraw the amendment.

Amendment 158 withdrawn.
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Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, we have been quicker than I anticipated but what my noble friend said is true; I must admit that I am starving.

I will speak to Amendments 171 and 172 from the JCHR, in the name of the noble Lord, Lord Dubs. They aim to remove the worst of Clause 64. Leave to remain is important for victims who are vulnerable to destitution and further exploitation without welfare benefits and other entitlements but, according to the anti-slavery commissioner, the number of victims being granted discretionary leave is very low. In 2015, it was 123. In 2019, it was 70. In the first three months of 2020, it was only eight; we do not have statistics for the whole of 2020-21.

Being granted leave can improve mental health by offering stability and thus a chance of recovery, but the equivalent reference to assistance and support in the Modern Slavery Act reads “physical or psychological harm”; that includes social harm. This Bill would put the law out of line with that and raise real doubts about compatibility with Article 14 of ECAT, which uses the phrase

“necessary owing to their personal situation”.

That is wider than what is in Clause 64(2)(a), which is why I commend Amendment 171 to the Committee. I was pleased to hear the noble Lord, Lord Morrow, refer to the JCHR’s report; he also mentioned the importance of family relationships.

Amendment 172 aims to rectify the omission from Clause 64 of any consideration of the best interests of the child so as to make it compatible with ECAT and the UN Convention on the Rights of the Child. I seem to have mixed up my notes; I am sorry about that because I will now go back to Amendment 171.

In a case last year, the High Court held that refusing to grant discretionary leave while a slavery victim’s asylum application was being processed violated Article 14 of the European Convention on Action against Trafficking. It appears that, before amendments were made in the other place, Clause 64(2)(a) included a reference to the victim’s social well-being as well as their physical and mental health. However, it was removed on Report. Can the Minister explain why? Would the Government like to rectify this omission in the Bill regarding personal, situational and social harm so as to make me, the noble Lord, Lord Dubs, and the JCHR very happy?

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, in the interests of time, let me just say respectfully to the noble Lord, Lord McColl, whose amendments I have signed, that I very much support him and the arguments and points that he made so well. We look forward to the Minister’s response. I pay tribute to the doughty work the noble Lord has done over a number of years to try to move the Government in what many of us regard as a simple and sensible way forward. Let us hope.

I shall speak to my Amendment 171AA. Clause 64 provides for limited leave to remain

“if the Secretary of State considers it is necessary for the purpose of (a) assisting the person in their recovery from any physical or psychological harm … (b) enabling the person to seek compensation”—

unless this can be done outside the UK

“or (c) enabling the person to co-operate”

with law enforcement. The standard, however, does not meet the UK’s obligation to children under the Council of Europe’s Convention on Action against Trafficking. Article 14.2 of ECAT specifies that in the case of children, residence permits

“shall be issued in accordance with the best interests of the child.”

Paragraph 186 of the Explanatory Report to ECAT explains that

“the child’s best interests take precedence”.

Amendment 171AA, which is a probing amendment, simply asks why the Government cannot include leave to remain where children are protected and where it is in the best interest of the child.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, in consideration of the flight of the noble Lord, Lord Morrow, I start by addressing Amendment 171B. ECAT sets clear parameters around when a signatory state is obliged to grant a residence permit to confirmed victims, which is where it considers that the stay is necessary either due to the confirmed victim’s personal situation or for the purpose of their co-operation with the competent authorities in an investigation or criminal proceedings. The Government have gone further than this and provided for a grant of leave not only on both of these bases, but also where it is necessary to enable a confirmed victim to seek compensation in respect of their exploitation.

A temporary leave provision is deliberately designed to allow for leave to be provided for as long as needed, where appropriate. It will be considered on a case-by-case basis and does not set an arbitrary time period. To specify a length of leave does not follow our overall approach of having a truly needs-based approach to addressing victim support. If it is necessary for leave to be granted for longer than 12 months in order to pursue a thorough investigation, or where an individual’s personal circumstances require it, leave can and should be granted.

I turn next to Amendments 169A, 170 and 170A. In Clause 63 we have sought to define the support entitlement during the recovery period for potential victims following a positive reasonable-grounds decision. Amendment 169A, however, would remove clarity on what these terms mean for victims and decision-makers and reduce the effectiveness of the clause in supporting victims. Our approach to the wording of Clause 63 has been chosen specifically to provide more detail on the circumstances in which support is provided, while being in line with our international obligations. Our approach is not to go into detail on the types of support provided for in legislation, as Amendment 170A suggests, but to do this in guidance, the purpose being to ensure flexibility in our approach in future, so this can be tailored to victims’ needs as our understanding of trauma develops. I refer your Lordships to remarks made earlier in the debate that understanding the impact and the effect of trauma on individuals is an ongoing and developing thing.

Further to this, and in response to a matter raised by the noble Lord, Lord Alton of Liverpool, where necessary, all those who receive a positive conclusive-grounds decision and are in need of tailored support will receive appropriate individualised support for a minimum of 12 months. We committed to this in the other place and will consider where and how this commitment is delivered to ensure that it delivers best for victims. More details will be provided in guidance or in future modern slavery legislation, should parliamentary time allow. My noble friend Lord McColl of Dulwich has been given that assurance by the Home Office Minister. The Home Office and, in particular, my noble friend Lady Williams are keen to continue working with the noble Lord on the implementation of this policy.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Moved by
172B: Clause 67, page 71, line 13, at end insert—
“(1A) This section may not come into force until the Secretary of State has conducted a review of the impact of subsection (1) and laid a copy of the review before Parliament.(1B) A review under subsection (1A) must include, but is not limited to—(a) identification of any parts of the Trafficking Directive which the Secretary of State considers to be incompatible with provisions made by or under this Act;(b) analysis of the costs and benefits of the disapplication of the Trafficking Directive;(c) the impact that the disapplication of the Trafficking Directive is likely to have on the identification, protection, support and access to wider remedies of victims of all forms of slavery in the United Kingdom.”Member’s explanatory statement
This would require the Secretary of State to review the impact of disapplying the EU Trafficking Directive before this section can come into force.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, my Amendments 172B and Amendment 174A relate to Clause 67.

I say at the outset that I do not want to reopen a debate about Brexit, but I do want to reopen a debate about the practical implications of the UK being outside the EU and how it relates to the protection of children and those who are victims of slavery and trafficking.

The Government actively chose to opt into the trafficking directive in 2011, stating that it would send a powerful message to traffickers. The modern slavery strategy of 2014 stated that opting in showed

“our commitment to working with other countries in Europe to drive up standards across the continent in tackling trafficking.”

Can the Minister say what has happened to that and how the Government are demonstrating those continuing commitments? Why is Clause 67, on disapplying the directive, necessary? What the Committee would like from the Minister—which may be difficult to do now as he may need to refer to others before coming back to us—is to explain which specific provisions of the Bill the Government consider to be incompatible with the directive? The Government have not given any detail on this. Is it victims’ rights or children’s rights? In other words, what difference has it made, what was covered and what is not covered? These answers are necessary for us to make a comparison and see whether there are any gaps which we believe would be important to close.

In the Commons, the Minister said that

“the transition period for this measure finished in January, so in effect it has already been disapplied.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 547.]

I hesitate to suggest this, but I certainly would not be able to tell noble Lords exactly which bits have been applied, which have been disapplied and whether it makes any difference. Can the Minister provide clarity on this? Are we disapplying it under this Act, or have the Government already decided that it does not apply? In other words, has it just been abandoned?

My amendment does not prevent the disapplication, but simply asks the Government to complete an impact assessment before this part comes into force—including identifying which parts of the Bill are incompatible and, crucially, what impact this would have on the identification and protection of victims of slavery. The Government may have already conducted an impact assessment but if so, I could not find one. If they have, it would be interesting for the Committee to note that. This is particularly important because a Google search finds all sorts of regulations and legislation which have been passed, presumably to protect victims of slavery and trafficking. So, my amendment is a simple probing amendment to ask the Minister what difference the disapplication has made. How do we know it has not made a difference if we have no information about the difference between what there was and what there is?

I do not intend to commence a huge new debate for this Committee, but I want to use this grouping as an opportunity to highlight the issue of internal trafficking and county lines. The Minister will know that large numbers of children are referred to the national referral mechanism. He will also know that 34% of referrals are British citizens. There is a real problem with slavery and trafficking within the UK. Euphemistically, this is called county lines, and we know what that means. This will be the tip of the iceberg. The Government have set up all sorts of initiatives to try to deal with this, but what I am seeking to do is simply to raise the issue of slavery and trafficking of children—British children—within the UK. How big is the problem, what is its extent and what are we doing to get on top of it? People of this country would be shocked at the numbers of British children being trafficked and enslaved. Often, including in the debate we have had on this Bill, much of the discussion has been about people coming into the country—rightly or wrongly—what the numbers are and what the impact of the new provisions will be.

Although this is a probing amendment, it is nevertheless really important. I am pleased to see that the Home Office Minister, the noble Baroness, Lady Williams, is now in her place. Perhaps these are issues that should be debated elsewhere, but county lines and internal trafficking are important issues and the number of British children in slavery is increasing. It is a growing phenomenon that is a great shock to us all, and we need to do more to tackle it. I beg to move.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I would like to lend our support from these Benches to both the amendments of the noble Lord, Lord Coaker. The subject of retained EU law is one on which it is easy to go down a rabbit hole. But at least this is being put in primary legislation instead of being done by the stroke of an executive pen, which is what the noble Lord, Lord Frost—who is, well, I had better not say—who used to be the Brexit Minister, appeared to suggest would happen. So, I suppose we should be grateful for small mercies.

The EU trafficking directive is, in a sense, a classic EU directive. It aims to get common standards as a measure of human rights protection, in order to establish robust provisions to prevent and prosecute the crime of trafficking and to protect, assist and support its victims. But also, the point of trying to get similar standards was to facilitate cross-border co-operation between member states’ law enforcement authorities through police co-operation, exchange of information and best practices, and dialogue between police, judicial and other authorities. Sometimes misunderstood, the whole point of EU harmonisation was to enable things to happen better, not least law enforcement.

I too do not want to rerun the issue of Brexit, but it is hard to see how pulling out of the EU trafficking directive is a Brexit opportunity. It is a lost opportunity to co-operate internationally across European borders with Europol on major crime. I am afraid that major criminals are one of the beneficiaries of Brexit.

It is a great pity that the part of the TCA on security is so thin. Things like the EU trafficking directive deserve a place in it. You can withdraw unilaterally, but that means you do not get the reciprocity of other police forces co-operating when you have criminal perpetrators who come from all over. Of course, we know this is an international crime. The EU directive also enables the pursuit of action in non-EU countries, such as raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting third countries in developing appropriate anti-trafficking legislation. That is an action that would rebound to the benefit of EU countries and the UK, if we were to stay plugged in to the EU’s directives. So, I do not see that pulling out is other than a lose-lose situation.

On the other amendment from the noble Lord, Lord Coaker, as has been mentioned—I believe this figure comes from Care UK—in 2020, 34% of all potential victims of modern slavery referred to the NRM were UK nationals. So, the noble Lord, Lord Coaker, is right to focus on that and on the many children involved in county lines drug dealing. We fully support the call for a report on these issues.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I am grateful to my noble friend Lady Williams here: the short answer is to look at the Modern Slavery Act. It can involve coercion, which can be occasioned by way of threats to others or by threat to the individual. It can come in many different forms; it can be emotional or psychological as well as physical. It is a pernicious practice that exists among nationals of this country as much as it does overseas. Perhaps, therefore, it gives an insight into the universal failings of the human character. The short answer—I have detained the Committee for too long—is the advice that I gave, for which I was the conduit for my noble friend Lady Williams.

I was about to expand on the fact that data concerning criminal gangs is operational and held by each police force. Adding reporting requirements for this data would, we submit, require a significant change in the way the Home Office collates and publishes data on crime. Changing this reporting approach would be unnecessary since we already publish data on county lines NRM referrals through the NRM statistics publication.

I hope that goes some way to answering the noble Lord’s important concern over how we identify, go to the defence of and offer protection to children—nationals of this country who are the victims of these gangs. Modern slavery offences committed against children are, as I say, recorded and published by the police, the Crown Prosecution Service and the Ministry of Justice. The Crown Prosecution Service maintains a central record of the number of offences in which a prosecution commenced, including offences charged by way of the Modern Slavery Act 2015. All modern slavery offences committed against children are identified through the child abuse monitoring flag. The Crown Prosecution Service definition of child abuse covers any case where the victim was under 18 years of age at the time of the offence.

I reassure the Committee and the noble Lord that a child’s welfare and best interests are the primary considerations in any decision-making—in this Bill and any other. Local authorities are responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. In addition to this statutory support, the Government have rolled out independent child trafficking guardians, who are an additional source of advice and support for potentially trafficked children. These have been rolled out in two-thirds of local authorities across England and Wales. The Government remain committed to rolling them out on a national basis.

Given all this, I respectfully request that the noble Lord withdraws his amendment at this stage.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank the Minister for his answer. It was a short debate but an important one. There are couple of things that the noble Lord said in his answer about the EU directive that I think are helpful. It is something I might suggest with respect to the other amendment on county lines.

I think the people who read our debates will be pleased to hear the Minister say that no entitlement will be removed on victim support, protection or identification. I think I have that quote right. That will be helpful because, in the sector certainly, that is what a lot of people have been worried about: that the disapplication of the directive will impact on those aspects. The Minister’s reassurance will be welcome, although, as with everything, we will see how it works out in practice.

It was also interesting that the Minister said that other legislation may be needed to clarify the disapplication of the EU directive in due course—a fabulous phrase. As we move forward, we will see how it goes. Like Clause 67, this is very important. Sometimes, Governments fail to spell out how the disapplication works and what the practical consequences are. So, short debates like this are important.

On county lines and the report, I think that, despite the information being available, the British public have no idea that 34% of the referrals to the national referral mechanism—the body set up to deal specifically with this—are British children. I do not think that people have any idea that it is that high—that is an astonishing figure. Given that 47% of referrals to the NRM are children, this means that a very high proportion of all the people who are referred are British children. So that is the purpose of this.

It is not that the Government are not doing anything. If I had been the Minister, I would have mentioned the co-ordination centre that the Government set up in 2018, which is actually about all of the things that I am talking about: the need for more data, greater co-ordination, greater prioritisation of this work and greater identification of this as a new crime that people have not taken as seriously as they should; the fact that children are moving across county boundaries without being tracked or followed; the lack of statistical sharing between police forces, social services and children’s services; and children ending up on the south coast and coming back to London. All of those sorts of things are what the co-ordination centre was set up to deal with.

All I would say is that the Government, through the Home Office, need to keep their foot on the pedal on this because it is a growing problem. What is happening in our country is an absolute disgrace. Some of the children involved are not even teenagers; they are not even 17 and a half—I was admonished earlier by the noble Lord, Lord Wolfson, for mentioning 12 and 13 year-olds rather than 17 and a half year-olds, which is what he wanted me to say. Some of these children are seven, eight and nine years old. It is a disgrace, which is why I make no apology for bringing this forward in that context. British children are being enslaved and trafficked within our shores. I know that this is a priority for the Government and for all of us, and this has given me the opportunity to raise it, so that the people of this country can hear how bad the situation is and what we are seeking to do to try to address it. I beg leave to withdraw the amendment.

Amendment 172B withdrawn.
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Lord Coaker Portrait Lord Coaker (Lab)
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I will add my voice of support to my noble friend Lady Ritchie. It is good to have the perspective that she brings to this Committee. Our institutional memory in Parliament, in this place and the other place, with respect to Ireland is not as great as it was. It is a perspective that needs to be brought here more often, so this is an important little debate. I think the noble Viscount, Lord Brookeborough, will agree.

I say to the Minister that, whatever the rights and wrongs of all this—and I agree with what my noble friend said—it plays into the narrative that the Government do not have a grip with respect to Ireland. The consequences of that, as the noble Baroness, Lady Suttie, pointed out, are absolutely and potentially really difficult. Even if people are non-British or non-Irish, if they have to have an ETA to cross the border, how on earth is that going to work? Practically, at the end of the day, if it is worth having, somebody will have to check it. I know that it does not apply to British and Irish citizens, but suppose, as a British man, I have an American wife or a French girlfriend; we go to Northern Ireland and somebody checks it—with the history of the police and security forces checking documents. The Government have to wake up to this. Unless the Minister can get up and say, “We’re going to sort this and this is what’s going to happen”, it will drift on and on and the consequences will be potentially really difficult.

It is no wonder that the Irish Government and various organisations across the whole of the UK and Ireland are saying that the Government need to get a grip on this. It is ludicrous. I gave an example. The noble Viscount, Lord Brookeborough, will know far better than me. What about somebody who for years has lived a mile across the border, has a mixed marriage in terms of nationality—somebody who is a British or Irish citizen married to an American—and wants to go shopping or to a hotel four miles down the road that happens to be in Northern Ireland? Do they need an ETA?

This is one of those things about which people outside Parliament say, “Do you know what you are doing?” Frankly, this is something that is so serious, and all the time we are looking at it we are trying to resolve it. It is difficult. It raises issues that you do not appreciate. If only you understood how difficult it is. Well, I do understand how difficult it might be, and I also understand this: the border, for reasons that we all know, whether it is drawn in Ireland or down the Irish Sea, has consequences that are enormous for the people of Ireland and for people here.

The Government have to sort this out in a way that commands respect and agreement from all communities. The amendment that my noble friend Lady Ritchie has brought before us is important, but I implore the Government: whatever the rights and wrongs of getting into Shannon Airport, whoever is right about whether it is seen as a back-door way of getting into the UK, et cetera—and I should say that the Irish Government have visa requirements as well, which will influence how people come in, so that may be one of the answers —it just has to be resolved. There has to be more than a ministerial, “We understand the importance of this and the difficulties, and that it needs to be sorted out”. The frank reality is that the time for sorting it out was yesterday, not today or tomorrow. It is about time that the Government got a grip of this, otherwise there will be very serious consequences further down the road.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.

The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.

It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.

The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.

In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.

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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I thank the noble Viscount—sort of. There will be no hard border. As I said, there is not going to be a hard border in Northern Ireland, and within the CTA there is effectively no change.

In answer to the point made by the noble Baroness, Lady Suttie, about enforcement, which was brought up subsequently as well, I have said it three or four times now: there will be no routine border controls on journeys from within the common travel area, which goes some way to answering the Yorkshire example. There will be none at all on the land border between Ireland and Northern Ireland. Everyone entering the UK, regardless of where they enter from—again, as I have said—is required to meet the UK’s immigration framework. In answer to “What’s the point of having it, then?”, anyone entering the UK without an ETA, or any form of immigration permission where required, will be entering illegally and may be subject to enforcement if encountered during intelligence-led operational activity.

Lord Coaker Portrait Lord Coaker (Lab)
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I say gently to the Minister that he has to be really careful with language on things such as conforming to immigration policy and the UK border. The historic context of some of the language that he used means that he has to be really careful when talking about moving across borders or even saying that there will not be a border control but talking about complying with UK immigration policies.

Nationality and Borders Bill Debate

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Nationality and Borders Bill

Lord Coaker Excerpts
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I very much thank the Minister, who has taken a very welcome personal interest in this matter, which is very encouraging. The government amendments are interesting and represent some progress, but they are unspecific for EEA citizens, and there is still that discretion, not certainty, that the Secretary of State “may” but not “must” do this.

As I said in Committee, I was grateful for the concession, announced by the Minister and which she has just talked about, to the effect that the Government would

“amend the Immigration Rules … to disapply any requirement for a Lounes dual national”—

this area is littered with technical terminology—

“to have held CSI in order to sponsor applications by relevant family members”

for settlement. I would be very grateful, as we asked in Committee, to know whether there is any further knowledge of what progress there is on that change to the Immigration Rules.

So far, so good—but on the other two arms of my amendment, on registration of children as British citizens and naturalisation as British for an EEA settled person, both without looking at past CSI history, as my amendment asked for, the Minister said in Committee that

“it would not be right to single out EEA nationals”,

and she has repeated that. We are slightly in the same territory as we were on the Chagos amendments, whereby the Government say that they cannot do something specifically for this group. The Minister also said in Committee that

“it would not be right to treat certain nationalities differently”—[Official Report, 1/2/22; col. 794-95]

and she is maintaining this approach.

However, EEA nationals are being treated differently. They have resided previously in this country, often for a long time; a large chunk of an international treaty, the withdrawal agreement, is devoted to them and to their counterparts, British citizens in the EU, and legislation specifically covering them; and there are various arrangements for monitoring and supervising how they are treated. So they are a special case. I would just mention that some children who should have been born British were not, and now have to be registered at a cost of more than £1,000 because of the specifics of the situation of EEA nationals.

After the meeting of the UK-EU joint committee last week—the committee on the withdrawal agreement—Vice-President Šefčovič recalled that

“it was a commitment from both of us that we will do our utmost for the UK nationals in the EU and the EU citizens staying in the UK.”

An EU official was reported as saying that the Commission would consider whether to launch consultations on citizens’ rights, and could ultimately trigger an arbitration process. I am not saying that those remarks were targeted at this specific problem, but that reminds us that there is an oversight mechanism for the fate of EEA citizens.

The CSI issue affects only EEA citizens, nobody else, so removing it entirely from being a virus—I called it “snakes and ladders”—in our immigration regime, would simply bring EEA citizens into line with all other migrants, who do not have a CSI problem. When Prime Minister, Theresa May said:

“The requirement for comprehensive sickness insurance is an EU requirement, and as long as we are members of the EU, it will continue to be there. Once we leave, we can indeed remove it”.—[Official Report, Commons, 26/6/2017; col. 315.]


It is true that the Government removed it for applicants for settled status but, as I hope I have explained through the passage of this Bill, the problem is that it pops up later. You do not get rid of it; that is why I call it a virus. You do not get rid of it—it sort of comes back.

What is not to like about removing red tape? I suggest that while the new government amendments represent some progress—again, I thank the Minister—they still rest on discretion and do not treat EEA citizens on the fair, legally secure basis that I believe they deserve under the withdrawal agreement. I hope that the Government can do more and ward off any possible action from the European Commission and enforce a slightly more secure basis.

If I cannot get what I really want—acceptance of my amendment—I ask the Minister to confirm at least that, when implemented, the guidance will be updated to always state that the Secretary of State will always exercise her discretion in favour of applicants by not inquiring as to whether they had CSI and by treating self-sufficient persons, students and their family members as not having breached immigration laws. That should be in guidance as a firm commitment. Otherwise, I would like to hear the Minister further.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, we support much of what the noble Baroness, Lady Ludford, has just said and some of the questions she has put forward. No doubt, the Minister will respond to those questions. It has to be said that the Minister has come forward with some amendments that do improve the situation.

Can I just emphasise the important points the Minister made and clarify, in the light of the questions from the noble Baroness, Lady Ludford, that she said it would apply to all residents, not just EU residents? That is an important point that the noble Baroness, Lady Ludford, made, and the House needs further clarification on what “all”—not to be pedantic—actually means in these circumstances for clarity of legislation.

Having welcomed the step forward the Minister has clearly made, I think that what “exceptional” means is also important—so that the Secretary of State will not use the power to prevent somebody without CSI gaining citizenship other than in exceptional circumstances. The noble Baroness, Lady Ludford, again, is right to ask for greater clarity about how “exceptional circumstances” will be defined and whether there will actually be guidance that any future Home Secretary will have to take into account in determining whether leave to remain should be changed to a full citizenship status in the particular circumstances with which this group of amendments is dealing.

I thank the Minister for coming forward with those amendments and trying to meet many of the concerns that were raised in Committee and before. I look forward, with the noble Baroness, Lady Ludford, I am sure, to the answers to the important questions that have been raised, notwithstanding the amendments before us this afternoon.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I thank both noble Lords for the points they have just made. I did refer to guidance in the points I was making in introducing. Yes, the guidance will make things clear.

In terms of “all”, “all” means all nationalities; the provisions will apply to all nationalities. I know the noble Baroness says this is a particular EU problem, but we are trying to make provisions that apply to all countries.

In terms of that point about “may” and “must”, “may” rather than “must” reserves the “may” for the most exceptional cases where it would not be appropriate to take that more generous approach. The provisions will be applicable to the vast majority of applicants, apart from those “may” applicants where a generous approach would not be appropriate—for example, criminality. I hope that explains it to the noble Baroness.

Nationality and Borders Bill Debate

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Nationality and Borders Bill

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Lord Coaker Portrait Lord Coaker (Lab)
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It is good to see the Chamber filling up, despite the fact that it is me speaking.

I speak in support of all the amendments in this group. I am interested in supporting the amendment of the noble Baroness, Lady Stroud—I am going to be a Conservative—but I welcome the noble Baroness, Lady Stowell, and the noble Lord, Lord Hodgson, clearly speaking in support of my amendment. It is good to see them supporting a Labour amendment, so it is interesting here.

The really serious point about the amendment was made by the right reverend Prelate the Bishop of Durham. I apologise to the Chamber because I really should have put this down in Committee. It is more of an amendment for Committee than for Report, but it goes to the heart of the problem that we are trying to deal with. I do not agree with the noble Lord, Lord Green, on much, but he often makes the point that, until the administration of the asylum system is sorted out, we are trying to knit fog. That is the basic problem. The Government are chasing this, as the previous Labour Government did, and there is a real problem with respect to it.

The example that the right reverend Prelate gave could have been given by most people in this House. As a Member of Parliament, I could have given example after example of people who have come here and claimed asylum and the system has lost them. Then they reappear a few years later, having been to school. It is unbelievable quite how the system has allowed them to operate and work within it, yet officially they are not supposed to be here; their claim is still supposed to be being sorted out.

My Amendment 53 is simply a way of trying to say that, unless we get a grip on this, in the next year there will be another asylum Bill and in two years there will be another. And then the Labour Government will come in with another asylum Bill. The reality is that, while each and every one of us is motivated by the desire to do the best thing by those fleeing persecution, in the way we have seen with refugees, the system simply cannot find a way of dealing humanely and properly with people who seek asylum in our country. You get euphemisms about accommodation centres, et cetera, and people having to report on a regular basis—all those sorts of things. That is why the business of being able to sort out whether people have a legitimate claim and are accepted by the system as asylum seekers or refugees, or not, is so important. That goes to the heart of it.

I apologise to the Minister because, as I say, this is a debate for Committee rather than for Report. I have no intention of voting on it; I just got frustrated with the fact that each and every one of us was chasing our tail trying to deal with a system which, by the Government’s own admission, is broken. They are trying to fix it but in a way which makes many of us say “We understand there are problems, but the way you are trying to fix it won’t work and we will be left with the same situation”. That is why I support the amendment of the noble Baroness, Lady Stroud. She very articulately and powerfully argued the point as to why it is important to give the right to work to people who are still awaiting their decision after six months.

I agree with the right reverend Prelate the Bishop of Durham: you could say that, if the Government adopted Amendment 53, it would be a real incentive for them to get their act together, so that they did not have the situation where people had the right to work even though their decision had not been made, in the way that the noble Baroness’s amendment would indicate. I think it was the noble Baroness, Lady Meacher, who pointed out that country after country has different arrangements with respect to the right to work and does not have the same problems as we do. I very much support that.

I want to highlight one aspect rather than repeat everything that the noble Baroness, Lady Stroud, has put so ably—and other Members have supported her amendment. My point is this: the Government will oppose this amendment on the basis of the pull factor; they have no evidence for it, but that is exactly what they will do. The last Labour Government did exactly the same thing in 2002 and 2005 because they were persuaded by the argument that there must be a pull factor—there just must be. As the argument went, asylum seekers will come here, they will be able to work, they will tell all their friends and family and they will all pile over here, as it is easy to get in, they will be able to work and do the jobs and they will be well paid, whereas, actually, they will be in the hidden economy and half the time people will not even know that they are working. That will be the argument. They will put it in much better English, much more articulately, much more in civil servant speak—but that is what they mean.

I do not know what the politically correct term is any more, but the Government set up these false windows, where they put up their hands or palms, and say, “This is what we are having to go through: the Government are having to stand up to a middle-class establishment elite”—as represented by your Lordships, including me—“and we are battling through this because, in doing so, we are representing public opinion as evidenced by the fact that we won the 2019 election. Public opinion is on our side, so this is a necessary pain we have to go through.” That may be right on one or two things, but on this it is fundamentally wrong. That is not where the public are on this.

There is only one thing on which I slightly disagree with the noble Baroness, Lady Stroud: I think it is not about integration but, more importantly, about social solidarity. As it has been articulated, it is a belief that when people have been here a certain amount of time, they should work. That is what people think; that is the general view of the public. If the system has not sorted out whether they should be here but they are living in our country and our housing and things are being provided for them, they should work. That is what people think. I do not care whether it is a car mechanic, a brain surgeon, somebody who is out of work, somebody in the north or the west of the country—whoever; that is what they think, and it is what I think.

It is reasonable for people to expect that. People do not say, “I tell you what, they shouldn’t work because there’s a pull factor.” That would be ridiculous—it is just not true—but I do think that people look down their road, or across the road, or in the village next to them, or on the farm or in the supermarket and, when there is a problem, they say, “Why don’t those people who have come from wherever, who are awaiting a decision—why can’t they work? Why can’t they do it?” I have never heard anybody say, “They can’t do it: it’s a pull factor.” It is just nonsense; it beggars belief.

I wanted to highlight that because, for me, it goes to the absolute heart of it. People would expect those people to work. I agree that it is good for asylum seekers themselves and their family to contribute to a country in which they hope to have permanent residency, providing they go through the necessary checks, but the community around them expects that as well; and that social solidarity and human dignity is everything. That is why I support the amendment from the noble Baroness, Lady Stroud. Alongside that, I think that Amendment 53 is important, and the Government will have to get this sorted out. Otherwise, we will be knitting fog again in another year or two.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank all noble Lords who have spoken to this group of amendments. I am grateful to my noble friend Lady Stroud for bringing Amendment 30. The issue has been much debated and it hinges on two issues really: the integrity of our immigration system and pull factors. I want to correct a figure that has been mooted a couple of times this evening: there are actually 81,000 people awaiting an initial decision, not 125,000, but it is a large number nevertheless.

A more relaxed asylum seeker right to work policy creates a back door into our labour market. We have just set up a world-leading economic migration scheme, which provides ample opportunity for people of varying skill and educational levels to apply to come and work in the UK. In fact, this scheme was a core manifesto commitment; it was not about Brexit. However, we cannot afford to turn around and offer people the opportunity to undercut it through simply lodging an asylum claim. Our policy is a constituent part of a whole; it does not operate in isolation. As my noble friend Lady Stowell said, someone who comes to the UK and is found working illegally can claim asylum as a way to prevent removal and then get the right to work. That does not seem logical to me.

I will repeat that, where reasons for coming to the UK include family or economic considerations, applications should be made via the relevant route: either the points-based immigration system or our various family reunion routes. We know that people want to work in the UK. Why would they not? We have a strong economy and labour market. That is why we cannot discount the risk of even more channel crossings if we relaxed our asylum seeker right-to-work policy. This issue has been debated at length in the past. However, I want to be clear that the motivations for fleeing one’s country of origin—of which noble Lords are well aware—and the motivations for moving from one safe country to another are not the same.

According to a 2009 article by Norwegian academics Jan-Paul Brekke and Monica Aarset, there is a hierarchy of considerations which migrants make when choosing a particular country. The first is, of course, that it is safe. The second—more important even than family networks—is the existence of future opportunities, which include:

“the welfare state, education, the jobs market and good conditions for bringing up children.”

These are things which are shared by all northern European countries, including France. This importance of future opportunities is clear through similar academic literature on secondary movements, in which economic considerations, including the ability to work, are consistently cited as a primary factor in choices about moving from one safe country to another. I am afraid that noble Lords continue to conflate reasons for leaving countries of origin with reasons for making those secondary movements, which is misleading and unhelpful for the purposes of this debate.

Noble Lords will be aware that the French cite the ability to work as a pull for those making channel crossings. Whether that is about the availability of work in the shadow economy or not is actually quite irrelevant. The point that we are being told by senior French Ministers is that these people are motivated to move from one safe country to another because they want to work. This was reiterated in a sobering BBC World Service investigation into the tragedy in the channel last November. Through deep research into the lives and families of the victims, the journalists ultimately found that they were all motivated to come to the UK from France for economic reasons. The solution here is to decide cases more quickly, and that is what we are doing through the wider new plan for immigration. I hope that this has been a good explainer of the background.

My noble friend Lady Stroud said that 71% of people think that the right to work is a good idea if people are waiting for a decision for six months or more. I would counter this with a YouGov poll from October of last year which showed that only 45% thought that the right to work was a good idea. This takes the issue completely out of context and ignores the bigger picture concerns. In light of the fact that 73% of people thought that illegal channel crossings were a serious issue, 50% of people thought that the UK does not have a responsibility to protect people—against 35% who thought that they did. In addition, 65% of people thought that Britain should refuse to accept asylum applications, and 55% thought that the current approach of the Government to small boats was too soft. I say that this Government have a clear mandate to ensure that there is no incentive for people to make secondary movements across the channel where academic evidence suggests that many do it for primarily economic reasons.

The noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Chelmsford talked about addressing the integration needs of asylum seekers. Of course, that is absolutely true, but not all of those who seek asylum are found to need international protection. As the noble Lord, Lord Green of Deddington, said, 50% of asylum seekers are refused even after appeal, so that spells that out.

Nationality and Borders Bill Debate

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Nationality and Borders Bill

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Lord Paddick Portrait Lord Paddick (LD)
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No. My Lords, this is Report. First, we are allowed to speak only once during a debate. Secondly, even if noble Lords were not here for Second Reading or Committee, they should not be making Second Reading or Committee speeches on Report.

We cannot support this amendment because there is no differentiation between documents that are genuinely lost or stolen. We know that people smugglers control the people they are smuggling, including stealing and taking their documents away from them deliberately, so it may not be the fault of the asylum seeker that they do not have a document. This amendment and the other provisions in the Bill seem to ignore the fact that officials and tribunals are quite capable of deciding, on the basis of the evidence, what weight they place on the evidence that is provided to them and what should be considered in terms of the credibility of the claimant, without what is contained in the Bill or in this amendment.

The noble Baroness, Lady Neville-Rolfe, said, on the basis of a freedom of information request, that only 2% of asylum seekers were in possession of a passport. Only four in 10 Americans have a passport. Is it any wonder that those fleeing war in less developed countries, often when normal government services have completely collapsed, do not have passports? If you are fleeing war, if you are being bombed, if you are being persecuted because of your sexuality or your political views, the first thing on your mind is to get out of that country, not to go to the Government and ask for a passport.

This amendment and the related clauses in the Bill that seem to be telling officials and tribunals what interpretation they should put on evidence should not be supported by this House.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.

As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.

There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.

Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I am grateful to my noble friend Lady Neville-Rolfe for raising the issue and of course I understand the concerns that lie behind it.

Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where, conversely, there are good reasons for providing evidence late, that would not affect the claimant’s credibility.

The concept that certain conduct should be damaging to credibility is not new. Decision-makers must already consider the claimant’s conduct. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. The focus of Clause 18 is, therefore, the Home Office and then the judicial decision-making process. It is intended to address the issue of late evidence raised in unfounded protection and human rights claims and put beyond doubt that behaviour designed to abuse the system will be taken into account. Clause 18, therefore, is intended to apply to those individuals who have made a protection or human rights claim and have been issued with an evidence notice as per Clause 17. It is not intended to apply, for example, to individuals immediately when intercepted in the territorial waters of the United Kingdom.

Against that background, I suggest that Amendment 33 is unnecessary. The destruction, alteration or disposal of a passport without reasonable explanation, or the failure to produce a passport on request to an immigration officer or to the Secretary of State—again, without reasonable explanation—are behaviours to which Section 8 already applies. The good faith requirement in the Bill is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Specific instances of a lack of good faith are necessarily caught by the broader provision that refers to good faith: the greater includes the lesser. Therefore, there is no need to single out the behaviours prescribed in this amendment.

As to the detail of the amendment, I say that verification of someone’s identity normally takes place on land. However, should a claimant be in possession of their passport or identity document and fail to provide this when requested by an immigration officer, Section 8 will apply, as I said. Moreover, where evidence is provided late following receipt of an evidence notice in a protection or human rights claim—again, without good reason—this should be taken into account as damaging the claimant’s credibility.

As this amendment refers to specific examples of behaviour designed to abuse the system, and that type of behaviour as a whole is already caught by the provisions of the Bill, I respectfully suggest that the amendment is necessarily unnecessary. For those reasons, I respectfully invite my noble friend Lady Neville-Rolfe to withdraw it.

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Lord Paddick Portrait Lord Paddick (LD)
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My Lords, we support the amendment as far as it goes, particularly the emphasis on those subjected to sex and gender-based violence, abuse or exploitation. However, there are many others, such as those from sexually and gender-diverse communities, who will hesitate to bring forward all the evidence that they rely on in support of their claim. As I said in the last group, and as the noble Lord, Lord Wolfson of Tredegar, said, officials and tribunals already weigh evidence and credibility but if, in the Bill, the Government insist on leaning on decision-makers in relation to the weight that they should place on late evidence, then this or an expanded amendment should be included; that should also include children.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.

The amendment relates to Clause 25(2), which says:

“Unless there are good reasons why the evidence was provided late”.


It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.

At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.

As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I thank the noble Baroness, Lady Coussins, for her engagement with me, as the House will have heard, on the amendment, which she has redrafted since Committee, for the reasons she set out in her speech. I am also grateful to the amendment’s co-sponsor, the noble Baroness, Lady Lister of Burtersett.

We have a proud history of providing international protection to those most in need. This is a responsibility that we take seriously, but we need a system that is efficient as well as effective. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers have regard to the principle that minimal weight is given to evidence that is late following the receipt of either an evidence notice or a priority removal notice without good reason. The House will appreciate that Clause 25 is therefore essential to the architecture of this part of the Bill. However, at the same time, it is important not to tip the balance too far. Decision-makers in the Home Office and the judiciary will maintain their discretion as to whether, having considered the principle and in the absence of good reasons for lateness, it is appropriate in all the circumstances of the particular case to apply minimal weight to late evidence, taking into account the claimant’s particular claim and any specific vulnerabilities.

I have been asked to define “good reasons”. This has not been defined in the Bill for, if I may say so, a good reason. We cannot legislate for every case type where someone may have good reasons for providing late information or evidence in relation to their protection claim. To do so would be impractical and would detract from the important principle that decision-makers are best placed to consider an individual’s particular vulnerabilities on a case-by-case basis. I say this because “good reasons” can include both objective factors, such as practical difficulties in obtaining evidence—for example, where the evidence was not previously available—and subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental and physical health. Decision-makers must be able to respond on a case-by-case basis.

I contrast that with Amendment 34, which would place an obligation on decision-makers not only in the Home Office but in the judiciary to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. I suggest that this would undermine the principle that we want decision-makers and the judiciary to apply their discretion on a case-by-case basis. By setting out a non-exhaustive list—I appreciate that it includes the words “not limited to”—of potential experiences or categories of claimant, it is true that this amendment does not exclude those not listed in the amendment from having good reasons. However, in any non-exhaustive list, there is a risk of focusing attention on the factors in the list, thus putting other applicants with different issues at a relative disadvantage.

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Lord Paddick Portrait Lord Paddick (LD)
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My Lords, as we have heard, in addition to the family reunion amendments so ably explained by the noble Lord, Lord Dubs, and my noble friend Lady Ludford, this group includes amendments on setting an annual target for the acceptance of asylum seekers into the UK and the acceptance of refugees in specific circumstances—such as those faced by female judges in Afghanistan, the victims of genocide and those fleeing the appalling situation in Ukraine. If the noble Baroness does not take up the challenge set by the noble Lord, Lord Hylton, to combine the best parts of the two family reunion amendments, we will vote for Amendment 48, in the name of the noble Lord, Lord Dubs.

As the noble Baroness, Lady Stroud, explained, the Government need to build capacity in this country to enable us to take in at least 10,000 refugees a year—a number that is seen almost universally as the UK’s annual fair share of global refugees. Without a target to aim for, the necessary arrangements—the infrastructure and capacity in local services—will not be in place to cope with situations, such as Ukraine, that can arise, as we have seen, with relatively little notice. It is no excuse for the Government to say, “We are unprepared”. We must be prepared, and Amendment 49 seeks to ensure that we are.

I reiterate what I said late on Monday: the British people want to help genuine refugees, like those fleeing the conflict in Ukraine. What they worry about, rightly or wrongly, is being overwhelmed by immigrants. I repeat: in recent years only six in every hundred people coming to the UK to live have been asylum seekers. The British people have nothing to fear from this amendment. On the contrary, if it was explained to them, I am sure that they would support it overwhelmingly.

We support Amendment 50—so powerfully spoken to, and in the name of, the noble Baroness, Lady Kennedy of The Shaws—which makes special emergency provision for people at particular risk, such as human rights defenders, including journalists, and minorities. We also support the amendment from the noble Lord, Lord Alton of Liverpool, to make special provision for victims of genocide.

To put beyond doubt the mixed messages from the Government about what they will do to support refugees from Ukraine, Amendment 54A in my name, and signed by the noble Lord, Lord Coaker, puts into primary legislation the requirement to support, by whatever means necessary, Ukrainian refugees who need to come to the UK. We passionately support all the amendments in this group.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, what a powerful debate we have just had on what is one of the most important parts of the Bill. The noble Lord, Lord Paddick, spoke about wishing that we could inform the public. I sometimes wish—I do not know how you would do it, unless you put it on live television—that the public could hear more of the speeches made in places like this. That would inform the debate and take it forward in a way that allowed people to make their own mind up. It is disappointing that it does not happen.

It is important, in this context, to remind ourselves that we are all wrestling with how we deal with refugees, family reunion and resettlement schemes. The point made by the noble Lord, Lord Paddick, needs to be repeated time and again: this is not about immigration, it is about refugees fleeing persecution and about asylum. That is extremely important.

The noble Lord, Lord Alton, was also right, with his Amendment 51, to remind us of some of the people who need support.

In speaking to her Amendment 50, my noble friend Lady Kennedy referred movingly to her work to support the judges in Afghanistan. She has dedicated her life to trying to do something for people in such situations.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, it is me again. Amendment 52 is in my name and that of the noble Lord, Lord Coaker. As he said on Monday night, the Bill almost exclusively targets victims: victims of war, oppression and modern slavery, and victims of people traffickers. We need to focus the Government on those who are exploiting suffering while profiting from the failure of the Government to provide safe and legal routes. In fact, the more difficult the Government make it for genuine refugees to get to the UK, the more that people will have to rely on people smugglers and the more profit that people smugglers will make.

Amendment 52 would require the Government to keep Parliament informed every three months on the progress they are making to increase security co-operation to prevent people smuggling, increase prosecutions of people smugglers both in the UK and overseas, and the steps they are taking to prevent or deter people from charging refugees to help or purporting to help them to get to the UK and endangering their safety. No doubt the Government will say they do not want to give details of the actions they are taking, as this may give the people smugglers an advantage, but we need to hold the Government to account to keep the pressure on them to do all they can to stop this evil exploitation of the vulnerable.

Amendment 61, which we also support, would make it an offence for people smugglers to advertise their services. Also in this group are measures to protect rescuers. Amendment 59 would ensure that those genuinely helping an asylum seeker, such as someone sailing a yacht in the channel who comes across a sinking dinghy full of asylum seekers, cannot be prosecuted by maintaining the status quo where such a prosecution could take place only if the person was helping asylum seekers for gain.

The Bill seeks to limit sea rescue to those co-ordinated by HM Coastguard or the equivalent, but they may not always be involved, especially in what could be the vital initial stages of a rescue. Amendment 60 would extend this immunity from prosecution to situations where the rescuer reasonably believed that the coastguard would have co-ordinated the rescue if it had known about it. The Bill should focus on people smugglers, and not place good Samaritans at risk of prosecution.

Finally, Amendments 62 and 63 try to ensure that lives are not put at risk from those involved in law enforcement pushing back refugee boats. My noble friend Lady Jolly will say more on that. The Government and the Bill should target the people smugglers while doing everything they can to protect the lives of the vulnerable. I beg to move Amendment 52.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I also support Amendment 52, which the noble Lord, Lord Paddick, has just moved. As I said in Committee, it is a particularly important amendment. It is one where the Government will agree with the principle if not the practicalities of actually doing it. We all want to tackle the traffickers and the people smugglers but the Bill lacks any reference to that, a lot of the time. It is almost that it is a given. There is a lot of emphasis on changes to the law with respect to refugees and asylum seekers but not much in respect of traffickers. I think that is what Amendment 52 seeks to do.

The focus also is on security co-operation around the channel, increasing international and domestic prosecutions of people smugglers and interrupting the smugglers’ business model by preventing their crimes. On security and international co-operation, again the Government will say that they are seeking to do that but clearly, if we are to deal with the problem of channel migration and the crossings, there will have to be closer co-operation between France and the UK and between others in Europe and the UK. Amendment 52 seeks to push to the Government to say more about this.

Requiring the Home Secretary to come with updates every three months on what is actually being done to prevent these dangerous crossings and tackle the perpetrators would be of interest to us all. Something clearly needs to be done because, as I think the noble Lord, Lord Green, mentioned earlier, the situation, whatever the rights and wrongs of it, has gone from “a few” to “quite a few” to “a significant number” of people making the crossing. Whatever the Government are doing, it is clearly not working.

I have retabled Amendment 61. I am not going to push it to a vote, but the Government said a lot about it, saying, “Of course we agree with it, of course there shouldn’t be a situation where people traffickers and smugglers can actually advertise on social media to attract people to come to them in order to traffic them across the channel or wherever”. It is clearly ridiculous. I want to push the Government again to say what more they are thinking of doing to tackle that issue, which is clearly unacceptable to us all. Something needs to be done about it.

The Government have got themselves into something of a mess on the issue of “for gain”. We are having to debate whether a vessel that goes to save lives at sea needs a defence because, officially, it would be committing an offence. The words “for gain” target the offence on people smugglers and criminal gangs who do this on a regular and dangerous model, not on the captain of a ship who goes to the assistance of people at risk of drowning. We believe that “for gain” should remain part of the offence. It would be interesting to hear from the Minister how that has been clarified to protect anybody at sea who seeks to prevent life being endangered at sea. Something should be done about that and there needs to be clarification from the Government to provide certainty.

Amendment 62 seeks to ensure that nothing can be done in a way in which lives at sea are endangered. That is why we have tabled that amendment. I am grateful to the noble Baroness, Lady Jolly, for her work and support on that. Schedule 6 is where clarification is needed, because quite extensive powers have been given, including the power to stop, board, divert and detain. All of us would like more clarification on how that will take place. What does diversion mean and how is it going to happen?

In her response—I tried to ask this in Committee—can the Minister explain the difference between the MoD and the Home Office on this? The Home Secretary said that pushback was still government policy, although she did not call it that, but James Heappey MP as Defence Minister said it was not government policy and that the MoD would not do it. We all need to know: if we are giving these powers, who is in control? The MoD is supposed to have operational control, as I understand it, but it is obviously not going to ram or push anyone around with a huge naval ship. Presumably smaller coastguard vessels will be used to do that. Can the MoD order a person to do so? How is that going to work and who do they report to—the MoD or the Home Office? Which has the ultimate sanction?

So what we are seeking to do with Amendment 62, although we oppose that part of the Bill in total, is put something in the Bill that simply says that you cannot act against or divert a vessel in a way that would endanger life. Putting that into the Bill is both necessary and sensible. With that, I support Amendment 52 in the names of the noble Lord, Lord Paddick, and myself.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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My Lords, I thank noble Lords who have spoken. I start with Amendment 52, from the noble Lord, Lord Coaker, on the issue of people smuggling. I am glad to be able to talk about this topic, because it is at the heart of the many problems in this area.

The UK takes smuggling and irregular migration seriously and is absolutely committed to tackling organised immigration crime in all its forms. We work closely with near-neighbour countries such as France, Belgium and the Netherlands, and key international partners beyond Europe, to address this exploitative crime and tackle smuggling networks. To tackle the threat, we have in place a multi-agency organised immigration crime task force that brings together law enforcement, border guards, immigration officials and prosecutors, to tackle organised crime groups involved in people smuggling. The task force is currently working with partners in some 17 source and transit countries.

Additionally, there are already agreements in place in order to tackle smuggling and irregular migration. For example, in November last year the Prime Minister signed an agreement with Belgium reaffirming the two countries’ close partnership and commitment to tackling shared threats such as serious and organised crime, including human smuggling. The two countries are committed to strengthening the legal framework for co-operation on our law enforcement agenda with a co-operation agreement and a focus on information exchange.

We are committed to working with France to maintain the security of our shared border, and to tackle illegal migration, and this relationship is long-standing, supported by the Sandhurst Treaty. Most recently, last year a bilateral agreement was reached between the UK and France. The UK pledged to make a further financial investment of approximately £54 million in 2021-22 to tackle illegal migration in small boats, and last year’s investment saw the French doubling the number of officers patrolling the beaches.

In and beyond Europe, we are working to exchange existing capability and co-operation internationally to disrupt organised criminal gangs and dangerous people smuggling routes. The joint political declaration between the EU and the UK, agreed in December 2020, noted the importance of good management of migratory flows, and the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements, including on asylum and illegal migration.

We maintain frequent contact with law enforcement partners both in the UK and abroad as part of our investigations into people smugglers, and these are often highly sensitive and complex. It would not be appropriate to provide commentary on cases, or place information in the public domain that might compromise operations or alert the would-be perpetrators to initiatives designed to thwart their criminal enterprises. I am sure that noble Lords understand that.

Addressing the organised crime groups that facilitate illegal migration remains a UK priority. In July 2020, the Home Secretary and the French Minister of the Interior signed an agreement to create a joint intelligence cell with the aim of cracking down on people-smuggling gangs. Last year, over 23,000 crossing attempts were prevented by French law enforcement and, since the UK-France JIC has been established, we have with France dismantled 19 small-boat organised criminal groups and secured over 400 arrests—quite often the things that people do not hear about.

I would like to stress again that the UK already has a number of safe and legal routes in place, and those in need of protection should claim asylum in the first safe country that they reach, rather than paying those smugglers for dangerous journeys with risk to life. All countries have a moral responsibility to tackle the issue of illegal migration and it is fundamental that our international partners engage with us to enhance our current co-operation. We continue to highlight the importance of having effective returns agreements to deter people from making unsafe crossings.

The agreements currently in place with near neighbours reflect this, and the amendment will not help the Government’s continued efforts to tackle these crimes. In fact, it might hinder or stall the fruitful and open dialogue on these issues between the UK and its international partners, many of whom would not agree to their discussions and domestic activity aimed at reducing people smuggling being published to a domestic audience.

In summary, I cannot support the amendment, because it is not appropriate to provide a running commentary on the actions that are being taken to tackle people smugglers, and I am sure that the noble Lord knows that. Much of it is sensitive activity, operational and based on intelligence sharing, with the aim of protecting vulnerable people.

Turning now to Amendment 59, our purpose in removing mandatory proof of gain from this offence is to more readily target people smugglers, where organised crime gangs will conceal their tracks and make it as difficult as possible to prove that they are getting financial gain to the standard required for a successful prosecution.

Let me provide an example. A suspected facilitator was detected at Heathrow Airport with passports concealed on his person and in his baggage. A short time later, an undocumented female of the same nationality and coming off the same flight claimed asylum. Her appearance matched that of the image on one of the concealed passports. The suspected facilitator had £1,400 on his person, which was seized under PoCA 2002. A search of his home address resulted in many additional travel documents being found, along with approximately £3,500. The facilitator refused to answer questions. Despite the strong circumstantial evidence, it could not be established that the money was directly linked to the female asylum seeker’s facilitation and so, without being able to prove “for gain”, the prosecution could not proceed.

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Lord Coaker Portrait Lord Coaker (Lab)
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Before the Minister sits down, can I say two things? First, I thank her for her reply about the MoD and the Home Office working together; we look forward to seeing how that works out. Secondly, she gave a very helpful answer on Amendment 61, but can she ensure that all the laws she laid out are enforced?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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Yes. There is no point in making them otherwise.

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Moved by
55: Clause 39, page 40, leave out lines 5 to 9
Member’s explanatory statement
This would prevent ‘arrival’ in the UK being an offence, rather than ‘entry’ into the UK.
Baroness Fookes Portrait The Deputy Speaker (Baroness Fookes) (Con)
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If Amendment 55 is agreed, I cannot call Amendment 56 by reason of pre-emption.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will be brief, because we had a long debate on this issue in Committee. It is, however, an issue that goes to the heart of the Bill—changing the definition of the offence to one of arrival rather than entry. I am, therefore, very pleased to move Amendment 55 and to speak to Amendment 58 in my name and those of the noble Lord, Lord Paddick, and my noble friend Lord Blunkett. This is a fundamental change to immigration law that many of us are worried will criminalise asylum, full stop. One can only imagine what effect a similar law would have in Poland now, with people fleeing across the border. No doubt the Minister will say that it does not apply in those circumstances, and so on. The fact is, however, that the Bill changes the offence from entering to arriving, which raises serious issues and has serious consequences for us all.

For example, aside from those seeking asylum, would this provision apply to a person who arrives in the UK with the wrong paperwork? They have arrived and they have broken the rules: would that be a criminal offence under the Bill? The Home Secretary has presided over this situation for a number of days but has just recently announced that people can safely bring elderly relatives and parents from Ukraine into this country. On the basis of this clause, would those elderly parents be considered criminals if they arrived here without the right paperwork? The Government’s proposed legislative changes have real consequences for real people, as highlighted by the recent horrific events in Ukraine.

This clause should be removed from the Bill on both principled and practical grounds. I have guidance that the CPS has announced, in consultation with the National Crime Agency, the Home Office and the police, which says that those seeking asylum should not be prosecuted under existing offences of entering the UK illegally. That is in recognition of the fact that it is not in the public interest, and that asylum seekers

“often have no choice in how they travel and face exploitation by organised crime groups”.

That is in a press statement from the CPS. The Government are asking us to widen the offence to include arrival when the CPS and Border Force do not believe that the existing offence should even be used. Similarly, the Government’s answer has been that the powers will be used in only exceptional and limited circumstances, such as where a person has breached a deportation order—in which case, we should pass a power for those circumstances.

It is not right to ask the House to pass these powers —on the basis that the Government’s own agencies say that they will not use them—or to criminalise a person who arrives in the UK to ask for asylum from war and persecution. It is late, but this change in the offence will have serious consequences for the way our asylum and refugee system works. I beg to move.

Lord Green of Deddington Portrait Lord Green of Deddington (CB)
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My Lords, this is more important than it looks. Frankly, it is rather absurd that people can turn up in their tens of thousands on our beaches and there will have been no offence. That is not to say that they should be charged, but there must surely be some legal impediment to people just turning up.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I thank both noble Lords for speaking to these amendments. I have listened carefully to the arguments raised by the noble Lords, Lord Coaker and Lord Paddick, and I appreciate the reasoning behind the amendments in their names, but I remain convinced that we must have offences which apply to arrival in the UK in addition to those of entry.

I cannot overstate that the differences between the terms “entry” and “arrival” are fundamental to how offences are identified and prosecuted. The definition in Section 11 of the Immigration Act 1971 concerning entry is based on assumptions that no longer address the methods that have emerged for migrants to evade our border controls.

It might help if I explained the effect of the amendment and the consequence of not getting it right. I remind the House that the Court of Appeal has held that an asylum seeker who merely attempts to arrive at the frontiers of the United Kingdom to make a claim is not entering or attempting to enter the country unlawfully in accordance with the definition of “entry” in Section 11. This means that individuals who step foot in the UK because their small boat was rescued by Border Force do not “enter” the UK in the technical sense. They simply “arrive”. Where there is no unlawful entry or attempt at entry, the unscrupulous people smugglers sending people across the channel in unseaworthy vessels that require rescue cannot be held to account for facilitating a breach of immigration law.

Amending these offences to refer to “enters” rather than “arrives in” renders them unworkable. It is wrong that an individual and those facilitating their journey should be able to evade sanction by allowing themselves to be intercepted and brought to shore. It encourages individuals to unnecessarily endanger themselves and others by travelling in small craft wholly unsuitable for the crossing.

If there is no offence of illegal arrival and if, as proposed in Amendment 58, this is not added as a breach of immigration law for the facilitation offence, then we will have practically eroded our ability to prosecute any people smugglers who are involved in risking migrants’ lives by putting them into small inadequate boats.

It is right that we should ensure that the tools exist to deter and prevent these actions for the good of all. We must provide the CPS with the ability to prosecute appropriate cases when in the public interest, so Clause 39 must refer to both those who enter the UK and those who arrive in the UK. I appreciate the concerns raised but am convinced that the proposed amendments, if accepted, would give only comfort to those who exploit and persuade people to make the perilous and unnecessary journey across the English Channel.

The noble Lord, Lord Paddick, made a point about interference with the CPS. That is not the case. An MOU between immigration and the CPS has been updated and will be published. With those words, I hope that noble Lords will be happy not to press their amendments.

Lord Coaker Portrait Lord Coaker (Lab)
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I thank the Minister for her reply. It was interesting in that reply, with respect to Amendment 55, that the whole raison d’être for the change to established immigration and asylum practice in this country is that the Government have lost control of migration across the channel. Panic has broken out, measure after measure has been tried, yet the numbers keep going up, and the public pressure to do something about it keeps going up. The Prime Minister has complained to the Home Secretary about it, so they have come up with a new measure which drives a coach and horses through the established procedures we have, has far wider implications than the channel, and affects every potential asylum seeker who enters the UK at the moment. That is why it is completely unsatisfactory to change things on the basis of what is happening, so I wish to test the opinion of the House.

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Moved by
58A: After Clause 39, insert the following new Clause—
“Secure reporting for victims of crime
(1) The Secretary of State must, in regulations, make provisions for the prohibition of automatic sharing of personal data of a victim or witness of crime for immigration purposes.(2) In section 20 of the Immigration Act 1999, after subsection (2B) insert—“(2C) This section does not apply to information held about a person as a result of the person reporting criminal behaviour which they are a victim of or a witness to.””Member’s explanatory statement
This new Clause would prevent immigration data being shared about a victim or witness of crime who reports an offence. This is to ensure victims are able to approach the authorities for assistance without fear of immigration repercussions as a result of that contact or resultant data sharing with immigration enforcement.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, Amendment 58A, in my name and those of the right reverend Prelate the Bishop of London, the noble Lord, Lord Paddick, and the noble Baroness, Lady Meacher, would require the Secretary of State to prohibit the automatic sharing of the personal data of a victim of or witness to crime for immigration purposes.

This is a familiar issue to the House. It was a key issue raised in the Domestic Abuse Bill, when your Lordships voted to provide safe reporting for migrant victims of domestic abuse. In this Bill, this issue has been raised in particular due to the offence of arriving into the UK proposed in Clause 39.

The question I asked in Committee was: if a person is trafficked into the UK, is it the first duty of the police to recognise them as a victim of trafficking or as a criminal under Clause 39? I welcome that your Lordships’ House has just voted to remove the offence in question under Clause 39, but the issue of safe reporting continues to be of great concern.

A lack of safe reporting is damaging for victims, public safety and law enforcement because it prevents us tracking down and prosecuting dangerous people. This is not just the belief of Members of this House, it was the conclusion of the 2018 super-complaint. For victims of modern slavery, a mistrust of authority is a huge problem in encouraging people to come forward and identify themselves as a victim. What is practically being done to build that trust?

Rather than full safe reporting, the Government have opted for an immigration enforcement victims protocol, which they state will prevent enforcement action against victims while criminal investigations and proceedings are ongoing, and while the victim is being supported.

Organisations working on the ground with victims have raised that the protocol will not make victims feel safe to report offences, so it fails that first hurdle. Can the Minister address these concerns? In Committee, the noble Baroness, Lady Meacher, asked the Government to check whether it remains the case that one in two victims does not report crimes to the police for fear of disbelief and deportation. Does the Minister agree with that? What assessment have the Government made of the scale of the problem?

Safe reporting is a very real problem, which the amendment in my name seeks to address. I beg to move.

Lord Bishop of London Portrait The Lord Bishop of London
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My Lords, I have added my name to Amendment 58A. I am very grateful to the noble Lord, Lord Coaker, for introducing this new amendment. In Committee, I tabled an amendment looking to create a data firewall for survivors of domestic abuse. This amendment, however, is helpful in that it is broader in its scope and gets to the critical underlying principle: namely, that victims and witnesses of crime should not need to fear coming forward on account of their migration status. I and my colleagues on this Bench, including the right reverend Prelates the Bishops of Gloucester and Bristol, have highlighted these concerns, notably during the passage of the Domestic Abuse Bill.

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Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I understand the sentiment behind this amendment, which is to ensure that migrant victims of crime come forward to report that crime to the police and are not deterred from doing so because of concerns that immigration enforcement action might be taken against them. Our overriding priority is to protect the public and all victims of crime, regardless of their immigration status. Guidance issued by the NPCC, 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 UK. Also, police officers must have grounds to suspect that a person does not have legal immigration status and must give careful consideration, on a case-by-case basis, to what information to share with the Home Office and when. The reasons for sharing information must be recorded and the victim advised what has been shared and why.

There can be benefits to sharing information as it can help to prevent perpetrators of crime from coercing and controlling their victims because of their insecure immigration status. Providing the victims with accurate information about their immigration status and bringing them into the immigration system can only benefit them. This amendment would prevent that.

It might help noble Lords if I gave one example of the negative effect of the amendment. The referral of information about a migrant victim or witness enables the Home Office to provide information on Home Office systems to assist the police and other authorities to establish vulnerabilities and safeguarding needs and to assess whether the migrant might be eligible to qualify for leave under the Immigration Rules or bespoke routes. Securing immigration status may allow eligible migrants access to a range of benefits, including health and housing provisions. There are several bespoke routes available to migrant victims and witnesses of crime which enable eligible individuals to regularise their status.

Under this amendment, the Home Office could not lawfully process any applications or requests for relief from enforcement action where details of the crime reported are relevant to those applications or requests, because the applicant’s personal data cannot be used for an immigration control purpose. The noble Lord, Lord Paddick, talked about rape, and examples would include applications or requests made for the destitute domestic violence concession, the foreign witness policy or the immigration enforcement migrant victim protocol, which is due to be introduced later this year.

I know that is not what the sponsors of the amendment had in mind, but, were it to be added to the Bill, that would be one of the effects. More broadly, noble Lords will understand that the Government are duty bound to maintain an effective immigration system to protect our public services and safeguard the most vulnerable from exploitation because of their insecure immigration status.

I have previously said that we need to focus on ensuring that victims with insecure immigration status can access the support they need, and that is the priority. Despite the best intentions, this amendment does not achieve the outcome it seeks. The question of leave to remain is inextricably linked to the conditions attached to that leave, so it is impossible to waive the no recourse to public funds condition in isolation from consideration being given to a person’s immigration status. What is more, it has been a long-standing feature of the immigration framework operated by successive Governments that only those with settled status should have access to public funds.

The public rightly expects that individuals in this country should be subject to our laws, and it is right that those with irregular immigration status are identified and that they should be supported to come under our immigration system and, where possible, to regularise their stay. We regularly help migrant victims by signposting them to legal advice to help regularise their stay.

This is the wrong amendment at the wrong time. If adopted, it would prevent victims obtaining the support they need, whether under the DDVC or other routes such as seeking asylum. I hope, on the point from the noble Lord, Lord Coaker, about listening, that the noble Lords have listened and reflected carefully on the unintended consequences of their amendment and will agree to withdraw it.

Lord Coaker Portrait Lord Coaker (Lab)
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Having listened carefully to the Minister, particularly about it being the wrong amendment at the wrong time, I will withdraw the amendment. But just let me very quickly say that, whatever the rights and wrongs of the amendment, and whatever the rights of the wrongs of what the Minister has just said, there is a very real problem out there of people who are victims of crime who are terrified of going to the police or the authorities because of fear of their immigration status. Whether that is right or wrong, that is the reality of the situation. I know the noble Baroness knows that. There is a problem that needs fixing. If the amendment is not the right way of doing it, we need to find another way of building that trust so that we do not have victims who are frightened to come forward to the authorities. With those few remarks, I beg leave to withdraw the amendment.

Amendment 58A withdrawn.
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Moved by
59: Clause 40, page 41, line 40, leave out subsection (3)
Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to maintain the current position that the offence of helping an asylum seeker to enter the United Kingdom can only be committed if it is carried out “for gain”.
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Lord Coaker Portrait Lord Coaker (Lab)
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I beg to test the opinion of the House.

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Moved by
62: Schedule 6, page 104, line 13, at end insert—
“(1A) The powers set out in this Part of this Schedule must not be used in a manner or in circumstances that could endanger life at sea.”Member’s explanatory statement
This would give effect to the recommendation of the Joint Committee on Human Rights to ensure the maritime enforcement powers cannot be used in a manner that would endanger lives at sea.
Lord Coaker Portrait Lord Coaker (Lab)
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I beg to move.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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I will add 60 seconds’ worth on Amendment 64. I am a trustee of the Refugee Council, which provides legal advice in a number of age assessment cases. The overwhelming majority of the cases we take on are won: the initial assessment has been wrong and the child is a child. The effect of this amendment, if carried, would be to put these children in harm’s way.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I am pleased to support Amendment 64A in the names of the noble Baronesses, Lady Neuberger and Lady Hamwee, my noble friend Lady Lister and the right reverend Prelate the Bishop of Durham. I will not repeat all the concerns, but clearly there are safeguarding issues that a number of noble Lords have raised. I give one quote from the British Association of Social Workers, which warns that

“any age assessment proposals must recognise that although there is a risk when adults are wrongly assessed and treated as a child, there is a much greater risk when a child has been wrongly assessed and treated as an adult. It is predominately children who are wrongly sent and dispersed as adults, sometimes to unsafe accommodation and detention”.

As a last comment on Amendment 64A, it does not seem to me that there is any dispute about the need for age assessment, but the noble Baroness, Lady Neuberger, has set out that, if we are to have age assessment, which is clearly needed at times, let us do it on the basis of science and not of subjective judgments, whoever is making them.

I quickly mention the amendment I put down, Amendment 84D, which has not been mentioned yet. It would provide that the age assessment provisions apply to England only, and is clearly a probing amendment. The Minister will know that, while we would rather these provisions did not apply anywhere, this amendment is to reflect the concerns raised by the Welsh and Scottish Governments that clauses in Part 4 require legislative consent.

Welsh Ministers and three separate cross-party Senedd committees have advised that the age assessment provisions are within the legislative competence of the Senedd. When put to a vote, the Senedd voted to withhold consent from the UK Government’s intention to legislate on these matters. Its concerns were that the Bill creates a method of assessing age that is in “direct opposition” to existing practice in Wales; that the Bill

“does not recognise the devolved context of Wales”

and provides the Secretary of State with powers to impose conditions on Welsh local authorities; and, finally, that all unaccompanied asylum-seeking children are recognised as looked-after children in Wales. This will leave local authorities trying to navigate two “statutory but conflicting” approaches.

This is an important probing amendment about what engagement the Government have had with the devolved Administrations and the grounds on which they are disputing that legislative consent is necessary. What are the Government saying to the Welsh and Scottish Governments about this?

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I thank all contributors to this important debate. I acknowledge at the outset the feeling around the House as to the importance of these matters, so powerfully put forward by the noble Lord, Lord Coaker, just a moment ago.

The first amendment that your Lordships have had to consider is Amendment 64, so I will start with that. It is important to note that immigration officials already conduct initial age assessment on individuals whose age is doubted. This amendment seeks to lower the current threshold so that a more straightforward assessment of whether someone is under or over 18 is made, based on appearance. I will return to the matter raised by the noble Lord, Lord Carlile, as to the different rates at which people age, depending on their ethnicity and the social factors to which they have been exposed. We must acknowledge the difficulty in assessing age through a visual assessment of physical appearance and demeanour. Clear safeguarding issues arise if a child is treated inadvertently as an adult, but equally if an adult is wrongly accepted as a child.

Our current threshold, specifically deeming an individual to be adult where their physical appearance and demeanour very strongly suggest that they are significantly over 18, strikes the right balance. It has been tested in the Supreme Court in the case of BF (Eritrea), to which the noble Lord, Lord Green of Deddington, made reference, and has been found comprehensively to be lawful. Given that judgment, and the fact that immigration officials already execute this function under guidance, the value of legislating to bring this into primary legislation is unclear. That said, I acknowledge the value of the work that the noble Lord, Lord Green of Deddington, has carried out, to which my noble friend Lady Neville-Rolfe referred, into the ingathering of data in such a way as to provide a basis on which our deliberations can proceed. However, in the light of what I said, I invite the noble Lord to withdraw his amendment.

I turn now to Amendment 64A. Again, I thank the noble Baronesses, Lady Neuberger, Lady Lister of Burtersett and Lady Hamwee, for their amendment. I make it clear to the House that there is no appetite to start conducting comprehensive age assessments of all, most or even many people who come before the system, because in most cases it will be possible to resolve doubts as to someone’s claimed age without any such investigation. Indeed, the courts have made it clear that they are against any judicialisation of the procedure, and have overturned judicial reviews based on the idea that age assessments were carried out wrongly in circumstances where two social workers conducting the Merton assessment—which these measures seek only to augment, not replace—considered persons patently above the age of 18 who claimed to have been younger. The courts have supported the social workers in those assessments. To provide that there should be wider use of scientific age assessments would serve no purpose and take away significant resource from the main task of seeking to establish the age of those individuals whose age is in doubt.

Subsections (2), (3) and (4) of Amendment 64A are unnecessary additions. Our intention is that the statutory national age assessment board will consist predominantly of qualified social workers, who will be expected to follow existing case law in carrying out these holistic age assessments. The matter of scientific age assessment has quite properly concerned your Lordships. Clause 51 already contains safeguards for those who are asked to undergo a scientific method of age assessment, and in answer to the specific point raised by the noble Baroness, Lady Lister of Burtersett, I say that where a good reason emerges for declining to participate in age assessment there will be no adverse impact on credibility.

I reiterate the point made at the earlier stage. It is not considered that any of these scientific methods should replace the tried and tested method of assessment by social workers, known as the Merton assessment. The intention is merely to broaden the availability of evidence that might assist to provide more data, on which these professionals can carry out these exceptionally important tasks.

Decisions on this issue also have broad implications for the exercise of immigration functions and the provision of children’s services to unaccompanied asylum-seeking children. Decision-making as to where and how such scientific methods should be used must, we say, remain within government, taking into account independent scientific advice. I reiterate that this measure does not provide that these scientific methods of age assessment will take place. It provides that the Government will be able to consult an expert board on what is suitable. The intention is not to undermine the role of social workers in carrying out these assessments, merely to provide additional data with which they might work.

We agree that the independent professionalism that such persons bring to bear is of the utmost importance. However, we question whether the amendment has value when it provides that scientific age assessments may take place only where their ethical approach and accuracy has been established beyond reasonable doubt: first, because that is to import the highest test of assessment of evidence from the criminal courts into an inappropriate category; and secondly, because we fully appreciate that these assessments are not of themselves accurate, as I sought to make clear at the earlier stage. They are intended not to replace but merely to augment, where thought desirable, the data available to social workers carrying out these assessments.

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Moved by
65: Clause 57, leave out Clause 57
Lord Coaker Portrait Lord Coaker (Lab)
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I start by declaring my interests in the register and my work in the Rights Lab at the University of Nottingham and as an unpaid trustee of the Human Trafficking Foundation. It is a privilege to follow what was a historic event. I think we all watched President Zelensky in one place or another and will wish him well in combating the illegal invasion of Ukraine.

If noble Lords will allow me, I will also take one minute to congratulate the noble Baroness, Lady Williams, on her elevation to the Privy Council. This is the first chance I have had to do so with the noble Baroness present. I think there is universal acclaim for that. Everybody across the House is pleased to see somebody who is decent and honest and has integrity—even if we sometimes clash on views and opinions—receive that honour.

Now back to normal. In speaking to Amendments 65 and 66 and agreeing with all the various amendments in this really important group on modern slavery, I will repeat a couple of general points and then move to something that has come to light since the debate in Committee. I know it is a great disappointment to everyone that this modern slavery part of the Bill is in an immigration Bill. That sets a really unhelpful context and inevitably conflates immigration and slavery in a way that even probably the Government, and certainly the Front Bench here, would not want to. That is to be regretted.

It is very helpful that the Government have produced a set of statistics that are relevant to the whole debate on this group. Sometimes the Government say they do not agree with figures that are used, but these are the Government’s own figures, produced by the Home Office on 3 March—a few days ago. The document is titled Modern Slavery: National Referral Mechanism and Duty to Notify Statistics UK, End of Year Summary, 2021 and is really helpful to our debate.

I do not want to make a Second Reading or Committee speech, but these statistics have been introduced between our last debate and this Report stage, and they are of particular relevance. I do not understand one of the things the Government have done when there is a flagship Conservative government achievement—something of which we are all proud. I am a Labour politician, and I think the Modern Slavery Act that the Government passed was marvellous, so I do not understand why they are proceeding with Part 5, which undermines many of the principles on which the Act was established.

These statistics are so relevant to my Amendments 65 and 66, and indeed Amendment 69, which would leave out Clause 62, which other noble Lords have signed. They drive a coach and horses through the Government’s reason for doing this. The Government are persuaded to pursue the measures in these clauses because they say that people being referred to the national referral mechanism are using it as a way of circumventing immigration law and as a backdoor way of getting into the UK and overcoming different regulations.

I point out for the Government—the Minister will no doubt want to point this out—that referrals to the national referral mechanism have increased by 20% in the last year. There has been a 20% rise in referrals—let us get that out there. If I were the Government—and you never know—I would, instead of saying that it is a problem, say that it is a sign of the Government’s success in identifying more victims of modern slavery, bringing them forward to the system and offering them support. I would defend it and say, “Isn’t it great that we are uncovering more examples of this?” Of course, if people are circumventing the system, you would expect the system to pick it up and deal with them in the appropriate way. But the Government have chosen, through Clauses 57, 58, 62 and other clauses that other noble Lords will speak to, to drive a coach and horses through that. Anyway, let us bear in mind that that is one of the statistics.

One of the big arguments against Clauses 57, 58 and 62 is that they fail to recognise the fear and intimidation that victims of modern slavery—even the ones that the state finds—feel. How do I know that? I will use the Government’s own figures to prove the point. In the same figures from which I quoted what the Government will quote about the increase in referrals, let us also look at the fact that duty to notify—that is, the process by which adults do not consent to be referred to the mechanism but the first responders have a duty to tell the national referral mechanism that they have people and suspect slavery—has gone up by 47%. In other words, there is already a huge increase in the numbers before the implementation of Part 5 of the Bill. Before the implementation of Clauses 57, 58 and 62, we are already seeing a huge rise in the number of people who are too frightened and will not consent to being referred to the national referral mechanism.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I do not think I am saying anything inconsistent. I am saying that, for the reasons I have set out—I was just starting on the point and hope I will be able to develop it—we do not want to create a two-tier system. Of course, we recognise the vulnerabilities of children. The modern slavery statutory guidance, which I think the noble and learned Baroness referred to, provides for the specific vulnerabilities of children. This clause does not change that. It is also right that our domestic legislation should align with our international obligations, and that includes ECAT. Children get protection from the NRM because they are recognised as victims of modern slavery; that is why they get protection.

On Amendments 67 and 68, I want to reassure noble Lords that we are currently working with stakeholders and operational partners to develop the guidance in a way that is clear for decision-makers and victims. The reasonable grounds threshold is, and will remain, low, as intended by ECAT, to identify potential victims. The House will forgive me, but we need to be clear about this: ECAT sets out that signatories have certain duties when there are reasonable grounds to believe that a person has been a victim or “is a victim” of modern slavery or human trafficking. The right reverend Prelate the Bishop of St Albans raised concerns that Clause 59 was raising the threshold. Respectfully, it is not. Clause 59 aligns the Modern Slavery Act 2015 with ECAT, but it is already the language used in the modern slavery statutory guidance for England and Wales, under Section 49 of that Act.

Indeed—I have it on my iPad—paragraph 14.50 of the guidance sets out the test of

“whether the statement …‘I suspect but cannot prove’ the person is a victim of modern slavery … is true ... or whether a reasonable person having regard to the information in the mind of the decision maker would think there are Reasonable Grounds to believe the individual is a victim of modern slavery”.

So, in the guidance, the two tests are each used; we are not raising the test at all but aligning it. Nothing will change in practice; we are aligning our domestic legislation to our international obligations. The guidance also uses the phrase “suspect but cannot prove” as part of the test. Both phrases that I have read out are used in the guidance as being indicative of when the threshold is met. We are not raising the threshold and have no intention of doing so, but it is right that we keep setting that out in guidance and not in primary legislation.

Turning to Amendment 70, I thank my noble friend Lord McColl of Dulwich for his continued engagement. We are of course committed to providing support to victims of modern slavery but we believe that this should be provided on a needs basis. We are committed to maintaining our international obligations under ECAT, and this Bill confirms that, where necessary, support and protections are provided from a positive reasonable grounds decision up to the conclusive grounds decision. Indeed, there is a five-year contract, currently valued at over £300 million, which demonstrates that commitment. Importantly, however, support for victims, including safehouse accommodation, financial support and access to a support worker are already available based on need. There is no time limit for that support.

Each individual victim will have different needs. The amendment, however, removes any needs-based assessment and treats all 12,727 victims who entered the NRM in 2021 as being one of a kind, assuming that they will all need the same level of support. We committed in the other place to providing, where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a “positive conclusive grounds decision”, and I have just repeated that here.

Finally, Amendment 70 would also reduce clarity, because it refers to assisting the individual in their personal situation. There is no definition of “personal situation” within ECAT, and Clause 64 addresses this issue by setting out circumstances where leave will be granted to confirmed victims. However, Amendment 70 requires no link to the relevant exploitation, which means that a victim could be granted leave to pursue an entirely unrelated compensation claim or assist with an unrelated investigation, and that is not what ECAT was all about.

Before I sit down, I should respond to the noble Lord, Lord Alton of Liverpool, and the right reverend Prelate the Bishop of Durham, as well as the noble and learned Baroness, Lady Butler-Sloss, who all mentioned guidance in one form or another. I can confirm that officials would be very pleased to engage on the development of the guidance, to which I have referred on a number of occasions. It will be published over the coming months, but we welcome that engagement. I also assure them and the rest of the House that we will bring forward modern slavery legislation as soon as parliamentary time allows.

I apologise for the length of my response, but there were a number of amendments in this group. For the reasons I have set out, I invite noble Lords not to press their amendments.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I shall just respond to the Minister briefly. I thank him for his reply and all noble Lords who have contributed to the debate.

The one fundamental point that I wish to make to the Minister is that, in all his responses, he failed to talk about the statistic referring to the dramatic increase of 47% in the number of victims, in the duty to notify process, who refused to consent to their names being put forward to the national referral mechanism. That is 3,190 reports of adult potential victims via that process who did not consent to their names being put forward. The Minister did not refer to that—and at its heart that is because people already, before the implementation of the Bill, are frightened to come forward and interact with the Government. That is the reality of the situation. For all the Minister’s protestations and reassurances, and all the statements that it will be done on a case-by-case basis, it does not alter the fact that already people are frightened of coming forward and being identified.

All the amendments before us seek to do is to address some of that problem. For example, Amendment 66, on which I will wish to test the opinion of the House, addresses the legislation where it says that if the people who do interact are late in providing information, they will be penalised and it must be taken into account and their claim refused. We are told that it does not matter because, on a case-by-case basis, they can be reassured—yet we are going to pass primary legislation to say that that provision must be included.

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Moved by
66: Clause 58, leave out Clause 58
Lord Coaker Portrait Lord Coaker (Lab)
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I wish to test the opinion of the House.

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Moved by
70ZA: After Clause 64, insert the following new Clause—
“Slavery and human trafficking: victims aged under 18 years
(1) Where a competent authority is making a decision in relation to a person who is aged under 18 years, the best interests of the child must be a primary consideration.(2) The Secretary of State may not serve a slavery or trafficking information notice on a person in respect of an incident or incidents which occurred when the person was aged under 18 years.(3) Section 61 of this Act does not apply in cases where either the first reasonable grounds decision or a further reasonable grounds decision made in relation to a person relates to an incident or incidents which occurred when the person was aged under 18 years.(4) Section 62 of this Act does not apply in cases where a positive reasonable grounds decision has been made in respect of a person which relates to an incident or incidents which occurred when the person was aged under 18 years.(5) The Secretary of State must grant a person leave to remain in the United Kingdom where a positive conclusive grounds decision is made in respect of a person who—(a) is under 18 years, or(b) was under 18 years at the time of the incident or incidents to which the positive reasonable grounds decision relates.(6) Section 64 of this Act does not apply to a person who is eligible for leave to remain under subsection (5). (7) Guidance issued under section 49(1)(c) of the Modern Slavery Act 2015 on determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking must provide that, where the determination relates to an incident or incidents which occurred when the person was aged under 18 years, the determination must be made on the standard of “suspect but not prove”.”
Lord Coaker Portrait Lord Coaker (Lab)
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I wish to test the opinion of the House.

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Lord Bishop of Chelmsford Portrait The Lord Bishop of Chelmsford
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My Lords, I am grateful to the noble Lord, Lord Paddick, for his comments and I will add a few further thoughts.

I appreciate that the intent of these proposed new clauses is to bring additional sanction pressure on Russia, and perhaps also other states which threaten peace and security. However, I ask whether there are any concerns that, in practice, this provision may make it more difficult for a critic of, for example, the Putin regime, to reach the UK in safety. Such a person—perhaps one of those involved in the courageous protests against the current war—might seek to reunite with family in the UK for their own safety. They would require a valid visa, not least since the Bill makes it so much harder for those arriving without a visa to apply for refugee status. Is the Minister at all concerned that additional costs and barriers to obtaining a visa may invertedly hurt people seeking to escape authoritarian regimes, and who would be eligible for a visa to come here, more than it would actually hurt the regime itself?

I note the provision in these amendments “for exceptions or exemptions”, but I would appreciate a comment from the Minister on how these might work in a case such as I have outlined.

I arrived in this country seeking refuge and safety shortly after the Islamic Revolution swept through Iran, many years ago now. I was fortunate quickly to be given refugee status and to receive a welcome that, in time, has allowed me to begin contributing back to the society that provided me with a new home. However, I cannot help wondering what the impact might have been had these amendments been part of the law then. After all, I came from a country that was undoubtedly regarded as something of an international pariah, a risk to peace and security in the Middle East and, arguably, more widely. I look forward to hearing the Minister’s response and I hope to receive some reassurances.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, we support the amendments, which are obviously in response to the Ukraine crisis. We support the way the powers could be used with respect to armed conflict, threatening international peace or breaching international humanitarian law. I say to the Minister, as I have said in many debates, that Her Majesty’s Opposition stands firmly with the Government in tackling the illegal invasion of Ukraine. However, there are a number of questions that it would be helpful for the Minister to consider. I think it is right for us to ask them, as indeed other Lords, including the right reverend Prelate, have done.

To repeat a couple of questions that others have asked, what will the parliamentary oversight be of these wide-ranging powers for the Secretary of State? Will the Secretary of State be required to advise Parliament when a visa penalty provision is revoked or changed?

The Secretary of State is required to give the Government of a country “reasonable notice” before bringing in penalties. What counts as “reasonable notice”? Could the Minister say anything about that?

How quickly could the powers be used? Could they be used immediately on commencement? It would be interesting to know the answer to that.

As the noble Lord, Lord Paddick, raised, could the Government already act in this way? What extra powers does the legislation give the Government? What exemptions would be included and what will the arrangements be for vulnerable people, as the right reverend Prelate asked, or people who might themselves be fleeing persecution in a country that these particular visa penalties might apply to?

I appreciate that the Government are trying to respond to the current crisis. Notwithstanding that, and the general support that there will be for these amendments, there are some interesting and important questions that the Government need to answer.

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Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, it is a pleasure to follow my noble friend Lord Murphy, who articulated what I would think is the majority opinion in this House. This is one of those policy proposals from the Government in the Bill that defies belief. We have heard from the noble Viscount, Lord Brookeborough, the noble Lord, Lord Dodds, and my noble friend Lady Ritchie about living on the border. The three people who live closer to the border than the rest of us say that what is before us is an absolute nonsense. It does not make sense. All I say to the Minister who will respond is: why would the Government resist something that everybody says is a nonsense?

How is it going to work? Who will enforce it? Has the Home Office agreed this with the Northern Ireland Office? What discussions have taken place? They may not be able to say it here, but we have a Minister from the Northern Ireland Office and Ministers from other parts of the Government. I cannot believe that the Northern Ireland Office thinks that this is a good or sensible idea.

What reaction has there been from the British Government to the Irish Government telling them that it is a nonsense? The Irish embassy has been on to many of us, in a very reasonable way, saying that it just will not work. It feeds into a belief that the Government somehow do not properly understand Northern Ireland. As the noble Lord, Lord Dodds, whatever the rights and wrongs of what people think about him—not about the noble Lord, Lord Dodds, but about what he said; I apologise. It is a good job he and I know each other well. It feeds into the narrative that the Government do not understand Northern Ireland, do not understand the architecture that has led over many years to the peace that we have had, and take many things there for granted. This is the latest example.

Clause 71 will require people who are not British or Irish citizens to have electronic travel authorisation to move from Ireland into Northern Ireland. I just reread it to make sure. I showed it to my noble friend Lady Smith and said, “Have we got this right?” How is it going to work? There are hundreds of crossings a day. Let us start to be practical about this. I live in Ireland. I am an Irish citizen. I have an American wife who works in Northern Ireland. What happens? Is she supposed to have an electronic travel authorisation every day, every week or once a year? If she does not have it, who enforces that? Who checks it? What arrangements take place for that? There has to be some arrangement, otherwise it is not worth it being in the Bill. There has to be something that happens, otherwise why is there a requirement to do it.

The practical arrangements are of real concern to people because they want to know what happens, so businesses in Northern Ireland and Tourism Ireland are raising concerns about it. The Government’s reaction is simply to ignore it or, without any proper explanation, say that there is not a problem.

What is the answer to people concerned about visiting family, accessing childcare and accessing the cross-border healthcare that we heard about from my noble friend Lord Hain? What is going on and why are the Government not listening to what people are saying? Specifically, have parts of the Government talked? Has the Home Office spoken to the Northern Ireland Office? Is there agreement between them? What have they said to the Irish Government? What are the answers to the practical questions that I have raised and particularly those raised by the noble Viscount, Lord Brookeborough? How on earth is this going to work?

I very much support what my noble friend Lady Ritchie and the noble Baroness, Lady Suttie, said. This matter raises serious questions and the Government have to do more than say that it will be fine—it will be all right and do not worry about it. We have seen the consequences of that in other areas of life in Northern Ireland. The Government need to get a grip on this. It is absolutely ridiculous and the Government need to sort it out.

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Moved by
77: After Clause 78, insert the following new Clause—
“Indefinite leave to remain payments by Commonwealth, Hong Kong and Gurkha members of armed forces
(1) The Immigration Act 2014 is amended as follows.(2) In section 68(10), after “regulations” insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the armed forces of the United Kingdom, or any person who has served at least four years in the Royal Navy Hong Kong Squadron, the Hong Kong Military Service Corps or the Brigade of Gurkhas, such exceptions to include capping the fee for any such person and their dependents applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”.”
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will leave Amendment 78, in the names of the noble and gallant Lord, Lord Craig, and others, to them. I will speak to Amendment 77 in my name and that of the noble Baroness, Lady Smith.

We have been trying for some time to rectify the issue where those who have served our country are charged extortionate fees to settle here, among the communities that they have served. Since we debated this in Committee, the Government have moved a small way and announced that veterans who have served six years will no longer be required to pay visa fees for leave to remain. That is welcome but, frankly, not enough, and it is not what has been called for by the Armed Forces community and Members of both Houses, including some from the Government Benches.

The Royal British Legion said:

“Whilst we welcome the news that these fees will be waived for some Commonwealth Service personnel, this proposal still leaves many Armed Forces families facing severe hardship. We strongly urge the Government to go further and scrap these unfair charges for everyone who has served for at least four years and their immediate family members.”


Currently, a veteran who wishes to settle here with their partner and two children will be charged around £10,000, the vast majority of which is profit for the Home Office. The Government’s policy change amounts to a 25% discount, when a veteran has served over six years. Even in these cases, it will cost more than £7,000 for a family of four to settle in the country for which a veteran has risked their lives in service, and we ask the Government to look yet again at this—because I do not believe that they have got this right, and nor do many others.

It is not right for the Home Office to make a profit from veterans who are exercising their right to settle here with their children. This is not a party-political issue, and it is not an immigration issue; it is an issue of how we treat those who have served this country and how we fulfil our pledges in the Armed Forces covenant. I beg to move.

Lord Craig of Radley Portrait Lord Craig of Radley (CB)
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I support Amendment 77, and I speak to Amendment 78 in my name and that of the noble Baroness, Lady Smith of Newnham, and the noble Lords, Lord Alton of Liverpool and Lord Coaker. I am very grateful for their support.

When I returned in Committee to this issue of fixing a date, the noble Lord, Lord Sharpe of Epsom, spelt out a bit more fully than had the noble Baroness, Lady Williams of Trafford, at Second Reading the Government’s position on this long-standing issue. He said:

“I can confirm that the Government will update Parliament … with the aim of implementing any changes by the end of this calendar year.”—[Official Report, 10/2/2022; col. 1965.]


He went on to say that this was not an “in due course” response, which as noble Lords will recognise is the way favoured by Governments avoiding a firm commitment. But is “with the aim of” any more convincing than “with a view to”, as expressed by the noble Baroness, Lady Williams, at Second Reading? Neither formulation is definitive; both are woolly.

I recognise that the Government seem at last to be willing to do more than give this issue active consideration, which has been their stated position and what they have been doing for the past six years. Noble Lords will recall that the issue has been raised by Members of both Houses, including by me in meetings with successive Home Secretaries and other Ministers, through Oral Questions and Questions for Written Answer, as well as by some of the veterans themselves over the past six years or more. Against that background, it seemed reasonable to require the statutory time for this finally to be settled and for the loyal veterans who have waited for so long to know by when they will receive the answer to their request.

I had hoped that this Government would not resist this straightforward and simple amendment. However, following helpful discussions with the noble Lord, Lord Sharpe of Epsom, I sense that the Government are really on the side of these loyal veterans, some of whom are watching on the Parliamentlive channel as I speak. If the Minister responds to indicate a firm commitment to them and gives a Dispatch Box assurance that the House will be kept informed of that progress, I think that the House will feel that at last there is a positive light starting to glimmer at the end of this long tunnel. If such an assurance comes from the Minister, I shall not divide on Amendment 78 this evening.

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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I thank all noble Lords who have participated in this relatively brief debate. I will start by addressing Amendment 77, tabled by the noble Lord, Lord Coaker, regarding settlement fees for non-UK members of our Armed Forces.

The Government highly value the service of all members of the Armed Forces, including Commonwealth nationals and Gurkhas from Nepal, who have a long and distinguished history of service to the UK here and overseas. That is why there are special immigration rules in place for our Armed Forces personnel that put them in a favourable position compared to other migrants, as I detailed last month during Committee. However, we recognise that the fees attached to settlement applications place a financial burden on our non-UK personnel, should they choose to remain in the UK after leaving the Armed Forces. That is why, last year, the Government consulted on waiving these fees altogether in some circumstances.

Following this, the Home Secretary and Defence Secretary announced on 23 February this year that the Government have decided to waive settlement fees, including administrative costs, for non-UK personnel in our Armed Forces who have served for six years or more, or are discharged due to an illness or injury attributable to their service, regardless of length of service. We are also extending the settlement fee waiver to undocumented veterans currently living in the UK who meet these criteria.

The noble Lord, Lord Coaker, asked me why it is six years, not four. I hope he will forgive the lengthy digression. Careful consideration was given to the number of years that should be used for the eligibility criteria. The initial policy proposal was for those who had served at least 12 years at the point of discharge, as the noble Lord acknowledged, but following the public consultation Ministers agreed that the eligibility criteria should be reduced to six years.

When considering the number of years’ service for the fee waiver, a balance rightly has to be made between value for money for the taxpayer and acknowledgement of the service of the individual. For example, it costs approximately £92,000 to train a soldier. Those costs cannot be discounted. Therefore, it was considered appropriate to set the eligibility criteria to those non-UK service personnel who have served for at least six years and wish to settle in the UK following service, given the significant outlay already invested by the taxpayer.

Four years is the minimum term of service that personnel must serve before applying for a discharge. It is important to note that there is no intention to change the option available to non-UK service personnel to make a paid application for settlement in the UK on discharge, as long as they have served a minimum of four years.

We recognise the strength of feeling from parliamentarians, service charities and the public about this issue, which is why it was decided to reduce the required length of service to be eligible, as I just said. It is estimated that the fee waiver may affect around 80% of non-UK service personnel. The Home Office is rightly focused on implementing this new policy at the earliest opportunity, the aim being for it to come into effect on 6 April this year.

I will digress again, because noble Lords also raised the issue of dependants. The Government believe that it is right and fair that fees and policies for non-UK family members of Armed Forces personnel are not more generous than those for dependants of British citizens and are applied consistently. Any decision to relax the fees or policies for non-UK family members of Armed Forces personnel could undermine current fees and the rules would be discriminatory.

Non-UK family members of Armed Forces personnel can apply for settlement once they have spent an initial five-year period in the UK with limited leave. The fees and policies that apply to the dependants of non-UK members of the UK Armed Forces are closely aligned with those that apply to dependants of British citizens and other settled persons under the standard family rules. Furthermore, reducing the fees for dependants of both non-UK and British Armed Forces personnel would be similarly discriminatory and unfair to those in other professions, many of whom face similar concerns and are contributing to the UK in other ways.

There is additional support for families in planning for the cost of visa fees. That is provided by things such as the Joining Forces credit union service for the Armed Forces. That was launched under the Armed Forces covenant in 2015, and it offers savings and loans schemes at fair rates through the payroll scheme. The issue raised by this amendment has largely been addressed by the recently announced government policy, which is due to be implemented in the near future.

I turn next to Amendment 78, tabled by the noble and gallant Lord, Lord Craig, regarding citizenship and settlement rights for British-Hong Kong veterans. I know he will listen to me extremely carefully, as indeed will those Hong Kong veterans watching live.

The Government remain extremely grateful for the contribution made by former British-Hong Kong service personnel. That is why the Minister for Safe and Legal Migration announced to the House of Commons on 7 December last year that the Home Secretary has identified an option that will enable our Government to treat this group of personnel in a similar way to other non-UK service personnel who were based in Hong Kong before the handover.

I appreciate that the noble and gallant Lord wants reassurance that the Government are taking concrete steps to further support British-Hong Kong veterans where possible. I can confirm that the Government will update Parliament by the end of June and implement any changes by the end of this calendar year. The Government remain committed to implementing a solution to the issue of British Hong-Kong veterans before the end of this calendar year, but I respectfully ask the House to give us the necessary space to do so.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will let the noble and gallant Lord, Lord Craig, talk about Amendment 78 when we come to it, but, as one of the signatories, it would be churlish not to recognise the way the Government have moved on that issue.

With respect to Amendment 77, I appreciate that the Government again have made some movement on this but I do not think it is enough. It should be four years; that is what the demand is. I do not understand or accept the point the Minister made about the exclusion of dependants. Dependants should be included in any scheme we take forward. As such, I wish to test the opinion of the House.

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Lord Paddick Portrait Lord Paddick (LD)
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I thought that I would short-circuit the process. The noble Lord said that Covid had sent immigration into a tailspin. Certainly it has distorted the immigration figures and, although refugee numbers were high in 2021, as the noble Baroness, Lady Neville-Rolfe, said, that is because they were much lower in the previous two years because of Covid.

The International Passenger Survey is not the vehicle by which accurate immigration figures should be counted, as the noble Lord, Lord Hodgson of Astley Abbotts, said. The IPS conducts between 700,000 and 800,000 interviews in a normal year, of which over 250,000 are used to produce estimates of overseas travel and tourism, so I do not even think that it is intended to be an accurate measure of people coming here to live, as such. As the noble Lord said, the people who conduct these surveys come up to you with an iPad and ask you a series of questions, none of which is verified, and participation is voluntary. This is hardly a basis for accurate migration figures.

Can the Minister please tell the House how the Home Office keeps track of those entering and leaving the UK, particularly those entering visa-free from the EU/EEA and the 10 other countries whose nationals can now use the e-passport gates? In particular, how do the Government keep track of how many of those leave at the end of the maximum six-month period? Can the Minister also explain why citizens of the United States, say, can enter visa-free and use the e-passport gates but UK citizens cannot do the same when entering the United States? I thought that we were taking back control of our borders.

Amendment 81, as drafted, would include those crossing the channel by ferry and by Eurostar legitimately, which is not quite what the noble Baroness was seeking to achieve.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will briefly say that, like the noble Lord, Lord Paddick, I agree with most of what many noble Lords have said. The need for accurate immigration data is absolutely fundamental to any discussion on this issue. The noble Baroness, Lady Fox, made this point: one of the things that is important is to distinguish clearly between immigration, asylum and migration. All that gets conflated into one, which is not helpful to the debate or the discussion, and it simply confuses people. It would be interesting to hear from the Minister the Government’s position on data. Irrespective of the debate that we will have about policy, if we are going to build trust, that data basis is essential not only for the public but for us to understand the policy prescriptions that we will debate between ourselves.

This is in line with Amendment 81 of the noble Baroness, Lady Neville-Rolfe: on trust, whatever the rights and wrongs, the decision of the Government to abandon the daily figures for migrants crossing the channel was a disaster in public relations terms, because people knew that the Government were failing on it. It was going up and up, and the Government were making prescription after prescription, in terms of policy, to try to deal with it. In the end, they brought the MoD in, in a confused way where we are still not sure how that is meant to work, and they are going to quarterly figures. What people say to me, and what I think—to be perfectly blunt, although I am not a cynic—is that the Government would not have acted as quickly as that if the numbers were going in the right direction; that is what people think. If people think you hide figures when they are bad, and publish them only when they are good or meet your policy objectives, it is no wonder there is distrust among the public about official statistics.

The amendments before us are absolutely essential. They ensure that we have data which is accurate, objective, allows us to make decent policy decisions, and is a basis for our debates. Can the Minister say something about what the Government’s policy is on data? Also, what is happening with respect to the migrants crossing the channel? What is the figure today, compared to what it was a couple of weeks ago? When can we expect the next figure? When the Government are seeking to build trust in passing the Bill—controversial in its own right—why on earth have they taken the decision, which is hard to comprehend, to produce figures on a quarterly basis? It simply looks as though they are hiding bad news.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I thank noble Lords for their amendments and their participation in this debate. I note that their interest lies in ensuring that the Secretary of State publishes regular data on a range of areas on immigration. I acknowledge the importance which my noble friend Lady Neville-Rolfe attaches to statistics, and I acknowledge the important work which the noble Lord, Lord Green of Deddington, has carried out over many years, which serves to inform debates not only in the public sphere but in this place.

I assure the House that the Home Office provides a wide range of immigration data on a regular basis and has done for many years. This includes information on many parts of the immigration system, including the asylum and resettlement systems, returns and detention, and other areas such as visas and citizenship. All this demonstrates our commitment to ensuring that the public have the information they need to understand migration trends, and that the approach to small boat arrivals is in line with these other statistics on the immigration system.

The Home Office reviews the statistics that it publishes as a department, in line with the Code of Practice for Statistics. Where it is clearly in the public interest to do so, it will publish new statistics and amend existing statistics to ensure they continue to provide transparency around key government policies. However, we must weigh up the need for more statistics against other considerations. This includes the practicalities and costs of producing resilient, assured data derived from operational systems, presenting that data in such a way as to enhance the public’s understanding of key issues, and putting the data into appropriate context, as well as recognising the need to prioritise the department’s resources.

Amendment 80 would require reviewing and updating the International Passenger Survey by the Office for National Statistics. I emphasise that the ONS is a statistical agency, which is independent of government, and whose work is overseen by the UK Statistics Authority. While the Home Office publishes statistics in relation to the operation of the immigration system, the ONS is responsible for the national migration and population estimates. It would be inappropriate, I submit, for politicians to interfere with or seek to direct the National Statistician in his statistical duties.

My noble friend Lady Neville-Rolfe and the noble Lord, Lord Green of Deddington, referred to the International Passenger Survey, as did my noble friend Lord Hodgson of Astley Abbots. Prior to April 2020, the Office for National Statistics used this to measure migration but it is important to note that, as your Lordships have heard, it is no longer used for that. While the noble Lord, Lord Green of Deddington, calls in effect for the reinstatement of the IPS, I have to advise the House that it was the ONS that concluded that the IPS had failed to meet changing user needs. It did not tell us what we needed to know about migrant patterns or give us enough detail to get a robust understanding of migration. I happily adopt the useful points made in this regard by the noble Lord, Lord Paddick.

As acknowledged by the noble Lord, Lord Green of Deddington, the IPS was paused during the pandemic. The Office for National Statistics is instead working on producing statistics that will tell us more about migrant patterns. This is a work in progress but it should better meet the needs of policymakers. It is experimental statistical work, and we do not yet know whether it will provide robust answers, but the Home Office is committed to supporting ONS statisticians in exploring every avenue. We need to ensure, as I think the House agrees, that we have a clear understanding of such issues and their implications for the data before we publish anything or we risk doing precisely what the noble Baroness, Lady Fox of Buckley, said we risked: misleading the public and undermining faith in statistics, rather than enhancing the public’s understanding of such important matters.

In relation to Amendment 81, the noble Lord, Lord Coaker, from the Opposition Front Bench and others have pressed us on the alteration or the presentation of small boat statistics. Following advice from the independent UK Statistics Authority on making sure statistics on small boat crossings are published in an orderly way, the Home Office published a new statistics report on irregular migration to the United Kingdom. The report, which includes statistics on those arriving across the channel in small boats, was published for the first time on 24 February, covering data up to December 2021. We will update on a quarterly basis.

The decision to publish small boats figures in a quarterly report ensures regular statistics are released in an orderly, transparent way that is accessible to everyone, meeting the principles set out in the code of practice for statistics. The approach has been particularly important in allowing us to present small boats data in the wider context of longer-term trends, other methods of irregular entry and the immigration system more widely, and hence to provide statistics on a more sound basis. Where it is clearly in the public interest to have more frequent releases of information, we will consider this, as we have done with the EU settlement scheme, on which we publish statistics monthly.

In the case of small boats, publishing frequent updates will not provide sufficient time to collate the data collected in the field by operational staff and integrate that with the information from the asylum applications. Nor will it allow us to perform the robust assurance processes we undertake for our wider published statistics. This increases the risk of incomplete or incorrect data being put into the public domain.

The motivation for these changes is not to obfuscate or conceal. It is an attempt to provide more useful statistics —not to hide figures but to provide more assured data. Given that assurance, I ask the noble Lord and the noble Baronesses to withdraw their amendment.

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Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I thank the noble Baroness, Lady McIntosh of Pickering, for so ably introducing this amendment. I recognise the commitment of the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Alton of Liverpool, on these issues over many years.

Enabling eligible citizens to register their British citizenship is a positive thing, not just for the individual concerned but for society as a whole, for the reasons many noble Lords explained. Fees should not be set so prohibitively high as to prevent anyone who is eligible having their British citizenship officially registered.

We have raised before, and say again: why are immigration and nationality unique among government departments in being required to be self-funding when the services they provide are of benefit to everyone, not just the users of these services? We support the amendment.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I join other noble Lords and various noble Baronesses from across the House in welcoming Amendment 83, as tabled by the noble Baroness, Lady McIntosh, the right reverend Prelate the Bishop of Durham, the noble Lord, Lord Alton, and my noble friend Lady Lister. There is universal agreement that fees should not be a barrier to citizenship. I think the Government probably agree with that, so the only plea I make is that they act on it to make sure that fees do not act as a barrier. The Government have the power to do something about this. They can hear what people think about the importance of citizenship as a social glue in our society, and the reverence we all have for it, yet a barrier is placed because of the fee. The Government have it in their power to resolve it. Let us do it.

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, I am grateful to my noble friend Lady McIntosh for tabling Amendments 83 and 84, concerning the fees that may be charged in relation to registration of British citizenship. Please be in no doubt that we recognise the strength of feeling on this subject, which I know is of particular importance to my noble friend, as well as the noble Lord, Lord Alton of Liverpool, the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister. I say at the outset that the Government recognise that the acquisition of British citizenship is a significant life event and offers particular value to those able to obtain it, particularly children. All noble Lords agree with this point and have observed it.

Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up. It also offers specific practical, legal and intangible benefits, including the right to vote on reaching adulthood, of course, and the particular sense of identity and belonging that results from knowing that the country that you have grown up in is your own.

Please let me also reassure the House that the Government are actively considering fees in this space. Following the Court of Appeal judgment in the case brought by the project for the registration of children as British citizens last year, the Secretary of State committed to reviewing the fee in line with her duties under Section 55 of the Borders, Citizenship and Immigration Act 2009. While I recognise that the House has been very patient, waiting for the outcome of that review as though waiting for Godot, it is the Government’s view that it was important to allow the Supreme Court to give its view on the questions raised by a separate ground in this case, which considered fundamental questions around whether the powers that underpin the setting of fees had been lawfully applied, before concluding that work. Following the Supreme Court judgment of 2 February, the Secretary of State is currently considering her policy response to the review, and I hope to update the House by early May. I cannot give a specific date.

Furthermore I reiterate that, as regards the new routes introduced by the Bill to correct instances of historical legislative unfairness, it remains the Government’s intention not to charge in instances where there has been historical unfairness and/or discrimination. This is in line with our approach to other instances of historical unfairness, where waivers and exceptions were introduced in fee regulations, as is appropriate for provisions of this nature. The Government are currently exploring options in this regard for the routes introduced by the Bill. I hope that this reassures my noble friend to some extent.

However, it is important to consider the legislative history of the fee-setting regime, and the intent that has underpinned it. Since the establishment of the current nationality regime in the British Nationality Act 1981, registration of British citizenship for those who either have an entitlement under the provisions of that Act or who are applying on a discretionary basis under Section 3(1) has been contingent on payment of a fee. Current fee-setting for British citizenship is underpinned by the powers set out under Section 68(9) of the Immigration Act 2014 which, as the Supreme Court has affirmed in its recent judgment, were explicitly authorised by Parliament and empowered the Secretary of State to set fees at a level that reflected the costs of exercising the function, the benefits that accrue to an applicant as a result of acquiring that British citizenship, and the wider costs of the borders and migration system. Parliament also explicitly authorised the maximum amount that may be charged in relation to an application for British citizenship registration at £1,500, through the Immigration and Nationality (Fees) Order 2016, which sets the framework for the current fees set out in secondary legislation.

The wider application of these principles and the powers to set immigration and nationality fees have underpinned the Government’s policy over the last decade of moving the borders and migration system to an increasingly self-funded basis, reducing the reliance on the UK taxpayer. Accordingly, fees across several routes, including nationality, have increased to support those broader funding objectives.

However, it is important to be clear on the role that these fees play in supporting the essential work of the border and migration system and particularly in funding the critical activity that supports and safeguards the interests of the people in the UK. These activities, which include ensuring that the UK’s borders are secure from threats and illegal activity, the effective operation of resettlement schemes to support those who are in greatest need and the management of a visa system that attracts the best and brightest to contribute to the UK’s prosperity, are essential to the delivery of the department’s wider mission and objectives.

Any reduction in income from fees must therefore be considered in terms of its impact on these activities, with the likely result being that activity in those areas will be reduced or income must be recovered through other means. This funding includes support for front-line operations that keep the country safe. A need to secure funding through other means may impact on fees for economic routes where the department’s objective is to attract visitors and skilled individuals to support the UK’s economy, which in turn benefits all those who live in the UK, or it will place an increased reliance on the taxpayer to fund these activities, which may in turn reduce the funding available for other important government work.

As such, there is a complex balance of considerations that the Secretary of State must take into account when setting fees, and, in line with the charging powers established by Parliament through the 2014 Act, these have informed the current fees structure. Fees charged are kept under review, as they are in other countries, and, as I have stated, there are ongoing considerations regarding fees charged for citizenship registration specifically, the outcome of which we will share in due course.

Additionally, I emphasise that elements of the amendment, such as the requirement to except fees for children in local authority care, although of course well intentioned, would more appropriately be set out in fees regulations and should not be introduced in primary legislation. In addition, it is not appropriate for a duty to have regard to the need to promote British citizenship in primary legislation that is setting fees. I therefore request that the noble Baroness withdraw her amendment for the reasons that I have outlined.

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Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support this amendment. The hour is very late and it is customary at this time of night to say that I shall be brief. I am not proposing to say that—which is probably just as well because, normally, if a noble Lord says they are going to be brief, they talk for at least 10 minutes.

This is an incredibly important amendment. In many ways, it is worthy of a debate in its own right—perhaps a Question for Short Debate—which would allow the House to discuss the details and the Minister to give a full answer. Six months ago, we were all talking about Afghanistan and our duties to people who had worked with us, alongside our forces, for the British Council and as security guards. In the last two weeks we have heard little about Afghanistan. When the Secretary of State for Defence was asked on the radio yesterday morning whether the Afghan citizens resettlement scheme had been opened, he was unable or unwilling to answer. He eventually said, “Well, it’s a matter for the Home Office, and by the way we’re very busy with Ukraine.” Yet as the noble Baroness, Lady Bennett of Manor Castle, has pointed out, the issues that we are thinking about here have parallels in Ukraine.

Importantly, the fact that there is a war in Ukraine does absolutely nothing to take away our moral duties to those people in Afghanistan who have been left vulnerable because they worked with us—perhaps for the British Council as contractors. There is a group of people who are petrified now, moving to safehouses on a regular basis and going underground so that we do not know where they are. Their lives are at risk. While the world is looking at Ukraine, we still have a duty to Afghanistan.

This amendment is detailed and specific. As the noble Baroness, Lady D’Souza, made clear when moving it, it is extremely important as a way of delivering on the commitments that we made six months ago. The ARAP scheme, when it was announced by the Secretary of State for Defence in April 2021, was seen as being important; nobody quite thought it would be needed to the extent that it has been. But the rules have changed, and they keep being changed. People who worked for the British Council as contractors and as interpreters—as the noble Baroness, Lady Coussins, said—thought they had a right to come under ARAP but then that has become unclear. The Minister has on previous occasions agreed with me and other noble Lords that it is important that the Home Office, the MoD and the FCDO work together. Could she tell us, at least, that there is going to be some progress on ARAP?

It is now so late and there are so few Peers around that I believe it is unlikely we will take this to a vote, because it would be unfortunate and unhelpful to those who might wish to come under ARAP that a vote be lost. That would look like a kick in the teeth, which I hope is not a message that your Lordships’ House would wish to send.

Even if this amendment is not put to a vote, can the Minister give us some commitments on the ARAP scheme and the ACRS that might give hope to people who are still stuck in Afghanistan? Finally, might people who have been in Ukraine as Afghan refugees and are now seeking refuge yet again be able to come here? Might we deliver on some of our commitments under the Geneva convention on refugees?

Lord Coaker Portrait Lord Coaker (Lab)
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I will speak briefly in support of the amendment in the name of the noble Baroness, Lady D’Souza; it is a really important amendment, which goes to the heart of the matter. Whichever way you look at it, there are Afghans who helped us who cannot relocate to the UK; that goes to the core of the importance of the noble Baroness’s amendment. The noble Baroness, Lady Coussins, has given us some examples and the noble Baroness, Lady Smith, reminded us of the obligations that we continue to have. What assessment has the Home Office made, with the Ministry of Defence and the Foreign Office, about the number of people they would have expected to help who are still trapped in Afghanistan? What is the current situation there?

The amendment in the name of the noble Baroness, Lady D’Souza, seeks to extend that eligibility to others who may be at risk from the Taliban-controlled Government in Afghanistan. We have a duty to help those who helped us; we all accept that, but what is the current situation? What are the routes available, and why would the Government not accept the amendment? We all agree with the principle but we know that problems still exist. An explanation would be extremely helpful; even at this late hour, this amendment enables us, once again, to ask the Government the extent of the problem and what they are going to do about it.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I apologise for being slow to rise; I was frantically writing down the points made by the noble Lord, Lord Coaker. I will perhaps answer the last question first on how many are yet to come. That is a very difficult question to answer; I do not think that anyone would pretend to know. I can give an answer the other way round in that ARAP has already seen over 8,000 people relocated to the UK, many as part of the Operation Pitting group who were safely evacuated from Afghanistan last summer. Eligibility has actually been expanded, not reduced. I am not sure which noble Lord said that it had been reduced, but it has been expanded several times since it was launched: first to include people who had resigned from service, then to include people who had been dismissed for all but serious or criminal offences, and then in December last year to include people who had worked alongside rather than directly for HMG, and their non-Afghan family members.

The ACRS opened on 6 January this year; it is up and running. The noble Baroness, Lady Smith of Newnham, spoke earlier of an almost dismissive comment about the ACRS. I do not think that she was referring to me—I hope she was not.

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Baroness Hollins Portrait Baroness Hollins (CB)
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My Lords, this amendment, which I am pleased to add my name to, aligns well with the principles of my own earlier amendments on Report and in Committee. On all the previous occasions, the government response highlighted just how underappreciated the impact of trauma is on the health and recovery of refugees and asylum seekers.

Public Health England has produced advice and guidance on the health needs of migrant patients for healthcare practitioners. This was updated in August 2021 to include advice that practitioners should:

“Consider applying trauma-informed practice principles when working with migrants affected by trauma.”


The guidance emphasised the six principles of trauma-informed practice, including safety, trust, choice, collaboration, empowerment and cultural consideration. I will quote just one paragraph from the guidance:

“Trauma-informed practice is not intended to treat trauma-related issues. It seeks to reduce the barriers to service access for individuals affected by trauma. While more evidence is needed to gain an in-depth understanding of the effects of trauma-informed practice for migrant populations, there is evidence that services provided to vulnerable migrants without a trauma-informed approach can result in harm.”


Unfortunately, the recent report We Want to Be Strong, But We Don’t Have the Chance, published by the British Red Cross in 2022, stated that

“for many women, the UK’s asylum process is not sensitive to gender or trauma and does not provide the support they need.”

It gave examples, which I will not repeat at this time of night, but one of the key recommendations of the report is to

“Ensure each stage of the asylum process is trauma-informed and gender-sensitive”.


This amendment seeks to achieve consistency and accountability in achieving this, with the person at the centre, not the process. I urge the Minister to accept this amendment.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will just make a couple of remarks about this amendment from the noble Baronesses, Lady Hamwee and Lady Hollins, which I support. It is a shame that we are right at the end of the evening—or in the middle of the night, or in the morning, or whatever—because it is one of those amendments that raises a number of really important questions for the Government. It is really quite an appropriate way—not at this time—to end the Report stage, because it encompasses so much of what has been debated on the Bill so far.

We are talking about people who are traumatised, fleeing war, risking their lives; people who have lost their homes and loved ones, experienced extreme violence, and children who have been trafficked and exploited. One of the criticisms throughout the passage of the Bill so far is that we are debating measures that we believe would remove support from these people, damage their credibility, penalise them for not providing evidence neatly to a deadline, as we heard earlier, and make it harder, for example, for modern slavery victims to report abuse. That is a point of difference between us.

I am sure the Minister will say that of course, people will take account of trauma, and they will interview, meet and discuss such issues with these individuals and support them in a way which reflects that. But what this really important amendment is driving at is the absolutely essential need to have a trauma-informed approach. If the amendment does nothing else but remind those who work with victims and survivors that that sort of approach is the best way forward, then it has served its purpose.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I thank noble Lords for their comments. I say to them, in particular the noble Baroness, Lady Hollins, that the impact of traumatic experiences is writ large throughout the whole decision-making process in the asylum system. For example, the asylum interview policy guidance includes a specific section on

“Victims of torture or other trauma”,


and this supports interviewers to create a suitable environment for claimants who have experienced trauma to explain their claim. The impact of trauma has also been carefully considered in the drafting of the Bill.

In relation to modern slavery and human trafficking, we are acutely aware of the trauma that victims of modern slavery may experience, and already recognise the impact that this trauma might have on a potential victim’s ability to even recognise themselves as a victim or indeed be identified. We are committed to identifying victims of modern slavery as quickly as possible and ensuring that they receive support as early as possible too.

The effects of trauma are already considered as part of the decision-making process and included in the current modern slavery statutory guidance of the Modern Slavery Act 2015, and they will continue to be applied in decision-making. There is a code of conduct for all professionals working with survivors of human trafficking and slavery, published by the Helen Bamber Foundation, and The Slavery and Trafficking Survivor Care Standards, produced by the Human Trafficking Foundation. We will build on this approach in updated published guidance, ensuring that decision-makers have the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall, share or recognise such events. This will give decision-makers the flexibility to take a case-by-case approach and the tools to recognise the possible effect of exploitation and trauma and ensure that decisions are based on an understanding of modern slavery and trafficking.

We will also continue to engage with the six thematic modern slavery strategic implementation groups, bringing together government, the devolved Administrations, NGOs and businesses. We recognise that modern slavery remains a rapidly evolving area, and it is very important that the guidance be continually updated to ensure that it is reflective of current policy and practice.

In summary, I hope that I have explained that trauma-informed decision-making is writ throughout the whole asylum system process, and I hope the noble Baroness will be happy to withdraw her amendment.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Lord Dodds of Duncairn Portrait Lord Dodds of Duncairn (DUP)
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I shall speak briefly on Motion T1. It was a pleasure to listen to the noble Lords who have spoken to this important matter. One thing we all agree on is that there should be no checks or barriers along the border between Northern Ireland and the Irish Republic, and certainly there should be no barriers between Northern Ireland and the rest of the United Kingdom. That is an equal assertion. Unfortunately, those of us from a unionist position sometimes feel that the concentration is very much on the north-south dimension and that the east-west dimension is almost forgotten or people call for the rigorous implementation of checks, which is a bizarre position to adopt when there has been so much passion. I agree with those who have argued that there should be no checks between Northern Ireland and the Irish Republic and vice versa.

As someone who lives just about 15 miles from the border, I understand the concerns. However, there are a couple of myths that need to be dispelled. First, we are talking about an international border between Northern Ireland and the Irish Republic and between the United Kingdom and the Irish Republic. It is a different jurisdiction for currency, taxation and fiscal rules. For goodness’ sake, even the road signs change from kilometres to miles. We have different voting systems. All these things matter, and it is wrong to dismiss the guarantees and agreements that were made in the Belfast agreement, as amended by the St Andrews agreement, because it enshrined the principle of consent and that the people of Northern Ireland should remain part of the United Kingdom so long as they voted that way.

The second thing to say gently to the House is that there were checks for immigration on the UK side and on the Irish Republic side of the border—not at the border because nobody wants to stay at the border—even before we left the European Union. I am looking at a tweet put out by the Garda and PSNI in 2018, which eulogises and praises a checkpoint near the Monaghan/Armagh border seeking those in breach of immigration law. There are many other examples we could give. Eight illegal immigrants were caught at a checkpoint in Dundalk just across the Irish border by the Garda Síochána after travelling via England and Northern Ireland. These checks are not done at the border but they are intelligence-led, so it is wrong to suggest that somehow any checks are contrary to the spirit of the Belfast agreement because that is exactly the sort of regime that will apply going forward as it did previously.

The final thing I will say, very briefly, is that—as I mentioned at the start—we must have the same considerations and the same passion and desire to avoid problems against the spirit of the Belfast agreement which has been evoked today and we must ensure that it applies east-west for strand 3 as it does for strand 2. In June 2021, the European Union, as published by the DAERA department in January of this year, was complaining to the UK Government that ferry passengers coming from Great Britain into Larne or Belfast, where there is no border at all—British citizens moving from one part of the United Kingdom to the other—were not having their luggage checked. If anything illustrated the detriment to tourism, for instance, which has been mentioned in this regard, there is an example.

Issues have been raised about people getting access to health and the protocol’s effect on medicines for UK citizens and Irish citizens coming from one part of the United Kingdom to the other. There are barriers to that, yet we do not hear the same concerns. All I am pleading for is balance and equivalence. If checks are wrong north-south, they are wrong east-west.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I speak to Motion L1 in my name and, briefly, to some of the other amendments before us. I congratulate the Government on Motion A and welcome the movement from them with respect to the Chagossian community—the Minister deserves credit for persuading the Government to move on that, as does my noble friend Lady Lister and many others for the campaign to advance this cause and issue. The noble Lord, Lord Horam, was right also to point out the efforts of Henry Smith MP who has worked exceedingly hard on this issue.

There will be a number of disagreements between us as we debate this Bill today, as well as many challenges to the Government and pushback—if that is the right phrase to use in the context of this Bill—asking the Government to think again. It shows the importance of how the Lords works to ask the Government to revise their legislation. This is an example of where the Government have responded positively to the various concerns that have been expressed. This shows Parliament at its best and, hopefully, with respect to other issues that I and other noble Lords will raise through our amendments, we will see the same happen elsewhere before the Bill becomes an Act.

On Motions B and B1, the deprivation of citizenship in certain cases, with proper safeguards, is an important tool of our national security. We do not believe that the Government have made the case for the suggested powers under Clause 9 to remove citizenship without giving notice. It remains our preference that the clause should be removed altogether; however, it is clear the debate has moved on from this. In that light, we strongly welcome that there has at least been some movement to introduce safeguards. I pay tribute to the noble Lord, Lord Anderson, whose work has improved the clause and has added much-needed safeguards into the process.

However, Motion B1 from the noble Baroness, Lady D’Souza, raises further extremely important questions about Clause 9. I ask again: is it not the case that the Government must reissue existing deprivation orders that were made without notice under the processes now defined by—what I would call—the Anderson amendments? If a person is currently subject to a deprivation order but they have not been notified of that, when do their appeal rights start and finish? Can the Minister provide clarity on this? There are a number of questions and the noble Baroness, Lady D’Souza, is quite right to point out through her Motion the various problems that still exist, notwithstanding the improvements that have been made. I will be interested to hear the Minister’s response to the noble Baroness with respect to her Motion B1.

On Motion L and my Motion L1, the proposed arrival offence makes arriving in the UK to seek asylum a criminal act. We feel really strongly about this, as indeed your Lordships did. The Commons reason for disagreeing with the Lords over this offence is that

“the Commons consider that it should be a criminal offence for a person who requires entry clearance to knowingly arrive in the United Kingdom without such clearance.”

But do the Government genuinely believe that a person arriving in the UK and asking for sanctuary is a criminal act? That is what is suggested by this offence. At the same time, Ministers have repeatedly stated that they do not intend it to be used in all circumstances to which it applies.

A specific example of what we are talking about came up last week in the debate in the other place when considering a Ukrainian who had fled to the UK to join their family in the first few days after the appalling Russian invasion to escape the bombing and destruction of their home, but who had not completed a lengthy visa process. Under the Government’s proposals, that Ukrainian person would have been guilty of a criminal offence and liable to up to four years in prison. That is surely not what the Government want, but that would be the consequence of their Bill as drafted. Therefore, although that is a very emotive example to give because we all feel so passionately about that, that is exactly what the Bill does. That cannot be right.

The Government say that we need to ensure that there are safe and legal routes, and much of this has been driven by what has happened with respect to migrants crossing the channel. As Damian Green MP, a former Immigration Minister, asked of the Government,

“Home Office data confirms that 87% of those arriving by small boats in 2021 comprised nationals from Iran, Iraq, Syria and Yemen,”—[Official Report, Commons; 22/3/22; col. 199.]

but what safe route is open to them? I know the Government’s answer is that they should stop in the first country in which it is safe for them to do so, but if 87% are from those four countries—as the Home Office data itself says—what difference does the criminalisation of the offence of arrival make? The Bill does not make sense in this regard.

Throughout the passage of the Bill, as I say, Ministers have repeatedly said that this offence is intended to be prosecuted only in specific cases, such as where a person arrives in the UK in breach of a deportation order. If the Government’s intention is for those cases to be prosecuted, they should pass a law which says that. That is why we have tabled our amendment in lieu: to do just that. We have listened to Ministers and what they are seeking to achieve and have actually tried to find a way through. So, our Amendment 13B would provide a specific offence of arriving in the UK in breach of a deportation order. It is an example of the type of specific offence that Ministers can put into the Bill to achieve their desired outcomes. The Commons reason regarding the offence as drafted does not reflect the assurances or the policy intent expressed to both Houses by Ministers. For that reason, we believe that further action is needed on the issue—hence my Motion L1.

On Motions M and M1, the Government have ended up in a position where a person who saves lives at sea without co-ordination of that rescue attempt by the coastguard risks committing an offence. The Government’s answer is that a rescuer in that situation will have a full defence that they have gone to the aid of people in distress, which they are duty bound to do under international law. I accept that the change is not intended to lead to the prosecution of anyone who rescues lives at sea, and we recognise that the Government have moved some way during consideration of the Bill to put beyond doubt that a coastguard co-ordinated rescue is not in the scope of the offence. But we are still left with an unsatisfactory outcome and a lack of clarity on what should be included in the scope of the offence. We have this problem throughout the Bill, and this is yet another example of an offence capturing behaviour that should not be captured. The Bill does not clarify the position and the Government so far refuse in many instances to give us the clarity we need.

Turning to Amendment 20, tabled by my noble friend Lord Rosser, regrettably, we do not believe that there is more to be gained by insisting on sending it back to the Commons a further time. But the Motion tabled by the noble Lord, Lord Paddick, perfectly highlights the remaining issue and would be a simple and sensible addition to the Bill. We support it, and we ask the Minister to consider it seriously.

On Motions T and T1, spoken to by my noble friend Lord Murphy and supported by the noble Baroness, Lady Ritchie, and the noble Viscount, Lord Brookeborough, there is a real problem here, notwithstanding the important points made by the noble Lord, Lord Dodds. We have been raising this issue for months; the border is still an afterthought, and we are seeking to clear the issue up at this juncture. The problem is that the proposed approach is not only unworkable but does not reflect the reality of those who live and work on the border at all.

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Moved by
Lord Coaker Portrait Lord Coaker
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Leave out from “Amendments” to end and insert “13, 14 and 16 to 19, to which the Commons have disagreed for their Reasons 13A, 14A and 16A to 19A, do insist on its Amendment 15, to which the Commons have disagreed for their Reason 15A, and do propose Amendment 13B in lieu of Amendment 13—

13B: Page 40, leave out lines 5 to 9 and insert—
“(D1) A person who knowingly arrives in the United Kingdom in breach of a deportation order commits an offence.”
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Lord Harris of Haringey Portrait Lord Harris of Haringey (Lab)
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My Lords, I intervene briefly in support of the noble Baroness, Lady Hamwee, and the remarks made by my noble friend Lady Lister. In doing so, I declare my interest as chair of the General Dental Council. In that capacity, I had a meeting with the British Dental Association earlier today, not specifically about this issue, but the British Dental Association is still very exercised by it.

I again pursue an issue I raised on Report, to which I have not seen a satisfactory response: the precise terms under which consent will be known to exist in respect of certain scientific procedures being carried out. For example, if there is to be a dental X-ray, will freely given consent be obtained from the individuals concerned? By “freely given” I mean not under duress. The reality is that young people who are fearful of not having their rights accepted are hardly likely to give their consent willingly. Can the Minister tell us exactly how we can be reassured that that consent will be freely given and that it will genuinely be the case that if somebody does not give consent that will not be in some way held against them elsewhere? The reason why this matters is that for a professional, whether a dental professional or any other professional, to carry out a medical procedure, including a dental X-ray, without that free consent is unethical and against all professional standards. It is an extremely important point.

Can we also have clarity about whether it will always be an appropriate professional who will carry out the necessary scientific assessment? If, for example, someone employed by the Home Office or some other agency carries out an X-ray or whatever without being an appropriate professional, that is a criminal offence. I would really like clarity on whether the Government have thought through these ethical and professional issues in terms of these clauses and in rejecting the amendment passed by your Lordships’ House that was moved on Report by the noble Baroness, Lady Neuberger.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, before I move on to Part 5, I will speak briefly to Motion N1 on Part 4 and age assessments. I support the concerns raised by the noble Baroness, Lady Hamwee, and supported by my noble friend Lady Lister. I pay tribute to them for their work on this issue.

In the Commons, the Conservative MP Peter Aldous raised the concerns we have just heard of the British Dental Association on ethical, health and accuracy grounds about using X-rays for age assessment purposes. In response, the Minister could not even give a commitment that a dentist would be included on the planned oversight committee for the policy, as my noble friend Lady Lister has just pointed out. It seems to me that what is being asked is perfectly reasonable and moderate: that before a method is approved as somehow being scientific, advice is taken by experts in the field. It is remarkable that these concerns have to be raised.

I will concentrate my remarks on Part 5, but first I declare my interest as a research fellow at the University of Nottingham’s Rights Lab, and as a trustee of the Human Trafficking Foundation.

I hope that noble Lords will forgive me for pointing out, as the noble Lord, Lord Alton, and the noble Baroness, Lady Hamwee, have done, that it is quite remarkable that a series of changes to the modern slavery legislation is included in an immigration Act. That is unbelievable. I say to Conservative Members, indeed to all Members of this House, that the Modern Slavery Act 2015—I got it out and read it again—is a signpost piece of legislation of which we are all proud, and one of the legacies of Prime Minister Theresa May.

Throughout our debates and in the amendments that we are debating now, we are trying to improve a piece of legislation that should not be in here—but, having said that, we will try to improve it. For example, the House voted to remove Clause 58 in its entirety from the Bill. There was recognition of the dangers of penalising a victim for not meeting a deadline to disclose information. It can be difficult for a victim to even recognise themselves as a victim, let alone to process and communicate that trauma to a deadline.

The Bill provides that credibility will not be damaged where a person has a good reason for late compliance, but we struggled throughout the Bill to get certainty on what counts as a good reason. It was our belief that the authorities should not be instructed to consider a victim’s credibility damaged because they might have disclosed information about what they had been subject to—human trafficking, exploitation or modern slavery—a little late.

Therefore, we strongly welcome the step taken by the Government today to exempt at least child victims from this clause; we welcome the amendment that the Minister has just brought before us. I recognise that the Government have listened to some of the concerns raised and have moved some way on this issue. We are grateful to them for that. For that reason, we will not seek to vote again on Clause 58 today, since we have narrowed our focus to, as the Minister pointed out, key issues where there is still need for further movement from the Government.

This leads us to Motions S and S1, which focus in greater detail on child victims of trafficking. We are talking about children here, and my Amendment 27B would put in the Bill that the best interests of the child must be primary in all decisions about child victims. I do not understand why that is not a reasonable thing to include in the Bill. Also, it would not allow slavery and trafficking notices to be served on a victim under the age of 18. You could have a child of 12 or 13, or even younger, being given an information notice to be complied with—not late notice now; they will not be penalised for that—and being required to present an information notice about the circumstances of their trafficking. It is ridiculous that we are asking children to do that.

My amendment would also exempts children from restrictions under Clauses 61 and 62, so that they have access to additional recovery periods if they are re-trafficked and are not covered by public order provisions. It would provide that child victims can have leave to remain, to give them time to access support as well as supporting prosecutions against their traffickers. Finally, it would ensure that the burden of proof for a child victim to enter the NRM is not heightened by the Bill, so that no extra barriers are put in place to a child victim being recognised by the system.

It is worth pointing out again that child victims constituted 43% of the referrals to the NRM. That is what we are talking about—nearly a majority of those referred to the NRM were children. The Office for National Statistics says that, in the UK, 24,675 children have been referred to the NRM since 2009—a frankly unbelievable figure. That is why it is so important that, although the Government have moved on this, there must be more done to protect children and child victims of trafficking.

Our original Amendment 27 provided that a trafficking notice could not be served where a person had experienced exploitation while they were under 18. In the Commons, the Minister, Tom Pursglove, said when a trafficking notice was served on a person the precise timeline or date of their exploitation would not be known, so it would not be possible to exempt people based on when their exploitation took place. In light of that, we have amended subsection (2) of our proposed new clause to specify that a trafficking notice cannot be served on a person under the age of 18. In these cases, there is no question that the exploitation took place while this person was a child, because they are still under 18 years of age.

Another argument put forward by the Minister in the Commons is that our clause provides protection for children yet not for other victims. Of course, we are seeking to provide specific protection for children; that is the responsible way to make law. It is crucial to recognise that the Government have now moved to exempt children in respect of Clause 58 so that, as I have said, they will not be penalised. That is important for two reasons. I am hugely grateful to the Minister for the concession; it also shows that the Government now accept that in certain cases it is right to recognise child victims for what they are—exploited, traumatised children—and to exempt them from the provisions of this part. We do that in every area of law; we provide differently for children than for adults. It is important that we do the same with respect to modern slavery; we are asking the Government for further concessions on that.

It is most important that we resolve the part relating to Motions Q and Q1 as well. The anti-slavery commissioner has said that the Government’s proposals make it harder to prosecute people traffickers. The Government recognise that it is common for victims to be criminally exploited and so have a criminal record as part of their exploitation. Our replacement for Clause 62 therefore seeks to protect children and adults—all victims of slavery—against being penalised for having been at some point criminally exploited.

The key issue raised by Ministers about our original amendment is that it did not provide a definition of who could be considered a threat to public order. So, our Amendment 25B provides that a person is considered a threat if they have been convicted of a terrorism offence; it also requires the Secretary of State to consult within a year on whether further offences listed under Schedule 4 to the Modern Slavery Act should be added to this definition. In other words, we have made an important concession in that we understand the need for a definition and that the Home Office is debating what that definition should be. Rather than hold up the Bill, let us have a situation where, within one year of this Act coming into force, the Government must come forward with a consultation on whether a person convicted of any offence listed in Schedule 4 to the Modern Slavery Act 2015, other than a terrorism offence, should be considered as presenting

“an immediate, genuine, present and serious threat to public order”.

We have tried to be reasonable, but we say to the Government again that excluding victims of trafficking from the NRM on the basis that at some point they have had a minor conviction for a crime does not recognise the reality of the situation in which these victims find themselves.

To conclude on this, I say to the Minister that if he were a victim of slavery, he, like me, would in many instances be forced into criminal action. As it stands, the Bill will penalise those people and prevent them from getting the support that should be given to them under the NRM. That is not acceptable. It is not in the spirit of the Modern Slavery Act, nor what the Government themselves would want to happen.

Finally, on the amendment from the noble Lord, Lord McColl, I pay tribute to the noble Lord for the work that he has done on this over so many years. It is an important amendment; frankly, it is disappointing and unbelievable that the Government have not accepted his effort to ensure that people get the support they deserve for 12 months. I hope that your Lordships will support the noble Lord, Lord McColl, as we will, if it comes to a Division.

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Moved by
Lord Coaker Portrait Lord Coaker
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At end insert “and do propose Amendment 25B in lieu—

25B: Leave out Clause 62 and insert the following new Clause—
Identified potential victims etc: disqualification from protection
(1) This section applies to the construction and application of Article 13 of the Trafficking Convention.
(2) A competent authority may determine that it is not bound to observe the minimum recovery period under section 60 of this Act in respect of a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that it is prevented from doing so—
(a) as a result of an immediate, genuine, present and serious threat to public order, or
(b) because the person is claiming to be a victim of modern slavery improperly.
(3) For the purposes of section (2)(a), a person is considered as presenting an immediate, genuine, present and serious threat to public order where the person has been convicted of a terrorist offence.
(4) The Secretary of State must, within one year of this Act coming into force—
(a) prepare and publish a consultation on whether a person convicted of any offence listed in Schedule 4 to the Modern Slavery Act 2015, other than a terrorist offence, should be considered as presenting an immediate, genuine, present and serious threat to public order for the purposes of section (2)(a); and
(b) lay a response to the consultation before each House of Parliament.
(5) In subsection (3), “terrorist offence” means any of the following (whenever committed)—
(a) an offence listed in—
(i) Schedule A1 to the Sentencing Code (terrorism offences: England and Wales), or
(ii) Schedule 1A to the Counter-Terrorism Act 2008 (terrorism offences: Scotland and Northern Ireland);
(b) an offence that was determined to have a terrorist connection under—
(i) section 69 of the Sentencing Code (in the case of an offender sentenced in England and Wales), or
(ii) section 30 of the Counter-Terrorism Act 2008 (in the case of an offender sentenced in Northern Ireland, or an offender sentenced in England and Wales before the Sentencing Code applied);
(c) an offence that has been proved to have been aggravated by reason of having a terrorist connection under section 31 of the Counter Terrorism Act 2008 (in the case of an offender sentenced in Scotland).
(6) Any determination made under subsection (2) must only be made—
(a) in exceptional circumstances,
(b) where necessary and proportionate to the threat posed, and
(c) following an assessment of all the circumstances of the case.
(7) A determination made under subsection (2) must not be made where it would breach—
(a) a person’s rights under the European Convention on Human Rights,
(b) the United Kingdom’s obligations under the Trafficking Convention, or
(c) the United Kingdom’s obligations under the Refugee Convention.
(8) For the purposes of a determination under subsection (2)(b) victim status is being claimed improperly if the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves.
(9) A good reason for making a false statement includes, but is not limited to, circumstance where—
(a) the false statement is attributable to the person being or having been a victim of modern slavery, or
(b) any means of trafficking were used to compel the person into making a false statement.
(10) This section does not apply where the person is under 18 years at the time of the referral.
(11) Nothing in this section affects the application of section 60(2).””
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Motion S1 (as an amendment to Motion S)
Lord Coaker Portrait Lord Coaker
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Moved by

At end insert “and do propose Amendment 27B in lieu—

27B: Insert the following new Clause—“Slavery and human trafficking: victims aged under 18 years (1) Where a competent authority is making a decision in relation to a person who is aged under 18 years, the best interests of the child must be a primary consideration.(2) The Secretary of State may not serve a slavery or trafficking information notice on a person who is aged under 18 years. (3) Section 61 of this Act does not apply in cases where either the first reasonable grounds decision or a further reasonable grounds decision made in relation to a person relates to an incident or incidents which occurred when the person was aged under 18 years.(4) Section 62 of this Act does not apply in cases where a positive reasonable grounds decision has been made in respect of a person which relates to an incident or incidents which occurred when the person was aged under 18 years.(5) The Secretary of State must grant a person leave to remain in the United Kingdom where a positive conclusive grounds decision is made in respect of a person who—(a) is under 18 years, or (b) was under 18 years at the time of the incident or incidents to which the positive reasonable grounds decision relates.(6) Guidance issued under section 49(1)(c) of the Modern Slavery Act 2015 on determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking must provide that, where the determination relates to an incident or incidents which occurred when the person was aged under 18 years, the determination must be made on the standard of “suspect but not prove”.””

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Consideration of Commons amendments
Tuesday 26th April 2022

(1 year, 11 months ago)

Lords Chamber
Read Full debate Nationality and Borders Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 26 April 2022 - (26 Apr 2022)
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I have Motion K1 in this group but I will speak to each of the other Motions. I will say very little on the individual Motions, but I remind the House of what I said at Second Reading. If British people, as we are constantly told, are concerned about immigration, this Bill, which targets asylum seekers and victims of modern slavery, is not focused on their primary concern.

In an article in the Telegraph yesterday, Nick Timothy, Theresa May’s former chief of staff, wrote about his concerns about mass immigration. Nowhere in that article does he mention asylum seekers, victims of modern slavery or the Nationality and Borders Bill. He points to the real causes of mass immigration: 240,000 work visas, up 25% compared with 2019, which was a big year for immigration; 280,000 family visas, up 49%; and 430,000 student visas, up 52%. These numbers dwarf the numbers claiming asylum.

Work permits have become unlimited; the definition of a skilled worker has been watered down; the shortage occupation list has been extended; employers no longer have to prove that they could not recruit from the resident population; and foreign students are allowed to stay on after their studies no matter what their qualification. An Australian-style points-based system, designed to increase immigration into Australia, is having the same effect here, despite the end of free movement. Yet this Government, and this Bill, address none of these issues but instead focus on the small minority fleeing war, persecution and modern slavery, who desperately need sanctuary.

On Motions A and A1, we believe that the safeguards the noble Lord, Lord Anderson of Ipswich, has secured in relation to deprivation of British citizenship without notice will ensure that further abuse of the system is prevented. While we have sympathy with the position of the noble Baroness, Lady D’Souza, we are pleased that she is not going to divide the House on this occasion.

On Motions K and K1, I understand the Government’s determination to prosecute people smugglers but the unintended consequences of removing the “for gain” element of the offence of facilitating the entry of an asylum seeker into the United Kingdom are to subject individuals, most importantly those seeking to rescue migrants drowning in the channel, to prosecution.

The first amendment approved by this House to reinstate “for gain” was a Labour amendment. The second, a Liberal Democrat amendment, provided that those with a reasonable excuse for facilitating entry would not commit an offence. Both were rejected by the other place. This third attempt would mean that individuals engaged in genuine humanitarian activity, including the preservation of life, would not commit an offence.

This is about removing doubt from the minds of those who come across drowning migrants in the channel that they may be prosecuted if they effect an immediate rescue. The Bill, as drafted, says that they commit a criminal offence. The only current defence is that, once charged, they may present a defence in court—once they have been arrested and prosecuted. Whatever the Government might say, that could cause people to hesitate when decisive, life-saving action is needed. We believe that lives depend on Motion K1 being agreed by this House, and I urge noble Lords around the House to support it.

We support Motion L1, and do not believe that modern slavery should be part of this Bill at all. These victims are extremely vulnerable and should be supported, apart from in very exceptional circumstances. The current “public order” concern is far too broad. We believe that Motion L1 provides a solution to that issue, as I am sure the noble Lord, Lord Coaker, will explain.

On Motion M, it is with great regret that the efforts of the noble Lord, Lord McColl, over many years, to protect and properly support victims of modern slavery, have come to a point where his own party, the Conservative Party, refuse to support him in his attempts to make appropriate provision for such victims.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I will start by saying a couple of words about a couple of the Motions and will then concentrate my remarks on Motion L1, in my name, on modern slavery.

On Motion A1, and the amendment in the name of the noble Baroness, Lady D’Souza, I pay tribute to the noble Baroness and the work she and many others in this House have done on this particular issue. As she knows, we originally wanted the whole clause to be removed, but we recognise that the Government have changed the clause significantly by accepting the safeguards tabled by the noble Lord, Lord Anderson. The Minister is to be congratulated on moving as far as she did on that issue. On that basis, and that of other safeguards, as the noble Lord, Lord Paddick, has mentioned, there is nothing further we can do with respect to this clause. As I said, we all note the work which the Minister has done. Certainly, the amendment moved by the noble Lord, Lord Anderson, would not have been as well accepted as it was by the Government without the work she has done.

On Motion K1, and the amendment in the name of the noble Lord, Lord Paddick, we agree entirely with the problems which the removal of the words “for gain” creates. He knows that I have supported him all the way through the Bill. But we are left with difficult decisions and, although the Government have removed rescue efforts co-ordinated by the coastguard from the scope of the offence, a captain who takes a split-second decision to rescue lives at sea will officially commit an offence. This is addressed, as the noble Lord, Lord Paddick, said, only by the fact that they will have an exceptionally strong defence for doing so. I note that the Minister has said on a number of occasions that she does not believe that someone would be prosecuted in those circumstances, and it would helpful if she reiterated that again from the Dispatch Box as a further safeguard and reassurance to people who may be put in that position. We would have liked to see this remaining problem fixed but, as I said, as the Government have already significantly amended this clause, we are doubtful that there is anything more to be achieved in this respect and there are other issues we wish to focus on—one of which I will turn to now.

I first thank the Minister, who tried to address many of the issues which have been raised around Clause 62. I remind noble Lords that, as my amendment points to, this clause deals with disqualifying potential victims of modern slavery from protection. As the Minister confirmed, this includes children. We are genuinely trying to be helpful on this issue. As the Minister outlined, the Government clearly recognise the real problem here. The clause, as originally drafted, was too broad, and it remains too broad. It will actually capture victims who have a criminal record only as a consequence of their slavery—because they have been exploited and forced into crime by their traffickers. This legislation, even as amended, and even with the reassurances from the Minister, will still capture victims of modern slavery and disqualify them from protection. This is the reality of the legislation before us: it will prevent victims entering the NRM; it will tighten traffickers’ hold on their victims; and it will stop us being able to find, stop and prosecute the vile people traffickers.

The Government have been generous with their time; they have met me and trafficking organisations on numerous occasions. But the problem remains in the way that this clause is drafted. The amendment that I have put before the House seeks to give the Government time to sort out the issue, which they recognise as a problem, of defining “public order”. As it is in the Bill at the moment, victims of trafficking who commit minor offences are potentially disqualified from protection. That cannot be what the Government, this House or anyone would wish, but it is the consequence of the Bill—it is the consequence of the legislation as it is drafted. Whatever the warm words and intentions of the Minister—who would not want that to happen and says that it will be all right on a case-by-case basis—you cannot legislate on the basis that it will be all right on the night. That is not the right way of doing it. The legislation creates the problem. We also tried to address concerns around terrorism, and that is why we added TPIMs to the amendment.

I want to refer to the Government’s latest statistics to conclude my remarks on modern slavery. According to the Government’s own document, published a couple of weeks ago, 43% of those who claimed asylum last year because of exploitation were children. This means that 43% will potentially be impacted—I am not saying that they will be—by this clause as it is currently drafted. That is the reality of what is before your Lordships this afternoon and why I am so insistent on my amendment, in Motion L1.

The Minister referred to the number of adults who are not officially referred—if you are an adult, you have to give consent—and where instead the first responders act on their duty to notify. In the past year, this number has increased by 47%—47% of adults are refusing to consent to be referred to the national referral mechanism. The Minister will say that it is up to them whether or not they consent, but let me say why I think they do not consent. I think that an increasing number of victims or potential victims of trafficking do not consent to be referred to the national referral mechanism because they are scared. They do not see authority in the way that we do. They do not see police officers in the way that we do. They do not see immigration officials in the way that we do. They do not see civil servants in the way that we do. They are frightened. They are victims. They may have been forced into criminality and, as such, they do not want to have it imposed on them that they must be referred to an official system. That there has been a 47% increase in victims or potential victims refusing to consent to being referred to the system should ring alarm bells with everyone.

My amendment says that, because of an increased emphasis on things such as public order, there is a failure to recognise the reality for victims of slavery and their lives. Many noble Lords here, including me, have met victim after victim and potential victim after potential victim—people who are terrified, mortified and scarred for ever by their experience. Yet the way this Bill is drafted, it will penalise them for that experience and any forced criminality. This is not the Government’s intention—I accept that—but it is the reality of the legislation before them. I ask your Lordships this: why, either in this place or the other place, would you pass a piece of legislation that flies directly in the face of the policy objectives that you have? It is nonsense. The Government do not want to exclude potential victims of modern slavery from referring themselves or being referred, but that will be the consequence of this legislation if it is unamended.

We will divide the House on this. We want the Commons once again to think whether they really want to pass legislation that will potentially lead to victims of modern slavery not coming forward or having the help and support they deserve. I do not believe they do. That is why we should support Motion L1 in my name.

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Of course, those who are in breach of a deportation order or who have been excluded on national security grounds will know that they are committing a criminal offence if they enter the UK, as Motion J1 provides for, but the legislation, as in the case of Motion K1, is too widely drawn. We support Motion J1.
Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I too will try to be brief, which does not always come naturally to me. I start by congratulating my noble friend Lord Hacking on his 50th Lords birthday, or whatever the equivalent is; that is absolutely amazing.

This is a very serious group of amendments, and I will try to cut to the nub on each of them. I take the point made very well by the noble Viscount, Lord Hailsham, about how sometimes in this place—I have limited experience here compared to many other noble Lords—the policy with respect to the Bill changes as we read our morning newspapers. The Government have completely retreated on the pushback policy, which we see withdrawn from the Bill. There was a debate on whether it needed to be part of the Bill; we could not get a clear answer on that. I said that the MoD and the Home Office were at loggerheads, the Government told us that they were not, and then the MoD refused to do something, so the Government had to withdraw it before it gets to court. Is it any wonder that we say to the Commons, “Do you know what you’re doing?” and “You need to think again”?

I say to noble Lords, as I have to many people, that if the Commons had debated the 12 amendments and votes that went from this place for longer than an hour before they voted, we may have thought that this had been considered properly. While it is the constitutional right of this place to revise legislation and to say to the Commons to think again, we may have accepted that they had done that. However, in this case, as the House of Lords we are perfectly entitled to say to the Commons, “You spent an hour on it a couple of days ago; you can spend another hour on it this evening to think about whether you’ve got it right.”

Of course, at the end of the day, the elected Chamber has the right to get its way, but so has this place the right to say to the Commons, “Do you really think you’ve got it right?” On serious matters, when we are talking about asylum and refugee status, we have the right to say to the Commons, as each and every one of these amendments does, “Are you trebly or doubly sure that you’ve got it right?”

None Portrait Noble Lords
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Hear, hear!

Lord Coaker Portrait Lord Coaker (Lab)
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I turned around then because thought I was back in the Commons being heckled. That is why these amendments are so important.

Very briefly, on Motion C1, in the name of the noble Lord, Lord Kerr, and my Motion J1, which essentially deal with the same thing—the offence of arrival and the differential treatment—the Government and the Commons have failed to answer how on earth anybody can claim asylum in this country if they arrive here through an irregular route. They cannot; they are automatically assumed to be illegal. We are saying to the Government: surely that cannot be right.

Nobody wants unlimited irregular migration, but without Motion C1 or Motion J1 we are essentially saying in this Bill that Uighurs, Christians fleeing persecution and people from Ukraine or any of the hot spots of the world who come to this country are criminalised and are second-class refugees. Is that what we really want? On something as fundamental as that, we are perfectly entitled to turn around to the Government and ask, “Are you sure you’ve got that right? Is that what you really want?”. If in the end they say yes, as I suspect they will, of course we will have reluctantly to give way, but do we really want to say that a Ukrainian being bombed and fleeing on 3 January or whenever the illegal Russian invasion started—it applies from 1 January—who arrives in this country without a visa, a passport and the proper papers is illegal and a second-class refugee? Is that right? All the amendments from the noble Lord, Lord Kerr, and me seek to do is to ask, “Do you not need to think again on that?”. I suggest that they do.

The right reverend Prelate’s amendment essentially deals with safe and legal routes and the importance of what we have seen with respect to Rwanda. We saw in the Private Notice Question yesterday and the short remarks made today that there should have been a full and fundamental debate about Rwanda and the rights and wrongs of that policy. Rather than seeking workable safe return agreements with our closest neighbours, which we have successfully used in the past, the Government have instead spent millions of pounds press-releasing a deal that the Civil Service could not even sign off as being value for money. That is what we are being asked to accept and what Motion F1 on offshoring, in the name of the right reverend Prelate, seeks to deal with.

In closing, so that people get the gist that I support the amendments—I think we are right in sending a few back, if we and other noble Lords are lucky enough to get a majority in this House—I will speak to my noble friend Lady Chakrabarti’s amendment. The noble Lord, Lord Pannick, and some other noble Lords have supported Motion B1. What I am going to read is so important; it speaks for itself. The Government say the Bill conforms to the refugee convention. Motion B1 is saying, “Let’s put that in the Bill, then”. Why is this so important? It is because this country flies in the face of what the UNHCR said. I will read the paragraph. I hope noble Lords will bear with me while I read this, then I will finish. The UNHCR said:

“The Nationality and Borders Bill follows almost to the letter the Government’s New Plan for Immigration Policy Statement, issued on 24 March 2021, in some cases adding further restrictions on the right to claim asylum and on the rights of refugees. UNHCR must therefore regretfully reiterate its considered view that the Bill is fundamentally at odds with the Government’s avowed commitment to upholding the United Kingdom’s international obligations under the Refugee Convention and with the country’s longstanding role as a global champion for the refugee cause.”


That is why Motion B1 is so important, why the noble Lord, Lord Pannick, and other noble Lords have made the remarks they have, and why my noble friend Lady Chakrabarti has moved this Motion. The UNHCR has said that our global reputation is at risk. That is why we should ask the House of Commons to think again, and we are perfectly entitled to do so.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I join other noble Lords in wishing the noble Lord, Lord Hacking, a very happy 50th anniversary of his maiden speech. I do not think I will be here on the 50th anniversary of my maiden speech; my family will not let me.

Yes, people have taken longer in this debate than they might have. It is an incredibly important Bill, so I do not accuse my noble friend Lord Horam of being long and rambling. As is the convention of your Lordships’ House, everyone has a right to have their say. In my time I have listened to many a long and rambling speech and managed to keep a smile on my face, so I think we all should.

I will first talk to the points made by the noble Baroness, Lady Lister, supported by my noble friend Lady Stroud, on the cost of the right-to-work amendment. We have carefully considered all the evidence put forward on the issue, and the financial assumptions made by the Lift the Ban report are not supported by our findings. They are optimistic and do not reflect the nuanced reality of asylum seeker employment. To the extent that there would be any savings at all—that is doubtful—they are likely, in all cases, to come with a loss to the Home Office stemming from operating a more relaxed policy. There are a number of operational challenges, but the main ones relate to the likely need for many asylum seekers either to transition in and out of support while working, due to the nature of low-paid transitory jobs, or to continue to be supported while working. This would mean that savings on support payments would be extremely limited, while setting up and maintaining a system to calculate adjustments to such payments as wages rise and fall, week to week and month to month, would be complex and costly.

As a result, the Government’s view is that our resources would be better deployed in reforming the end-to-end asylum system and reducing unfounded intake, thereby resulting in faster decisions and genuine refugees being able to work and integrate more quickly. My noble friend and I agree on the ends, just not on the means to get there.

I turn next to the speech made by the right reverend Prelate the Bishop of Manchester. I repeat that the UK is a global leader in resettlement. We have provided a route to resettlement for more than 100,000 people.

On the refugee convention, as my noble and learned friend Lord Mackay of Clashfern said, the Attorney-General has signed off this Bill. We maintain that our policy complies fully with our international obligations and is a good faith interpretation in line with the Vienna convention. As the noble Lord, Lord Kerr, said, the Vienna convention is not intended to be a free-for-all; there are parameters in it. Where the terms of the refugee convention are open to some interpretation, there may of course be more than one good faith, compatible interpretation. I notice that the noble Lord is shaking his head—I never expected him to agree with me—but that is our view. My noble friend Lord Wolfson has set out at great length his view on the refugee convention.

The noble Lord, Lord Pannick, challenges me to make the statement that we do not think it complies but are doing it anyway; he will not be surprised that I am not going to do that. The noble Lord, Lord Paddick, said it is for the courts to decide our interpretation. No, it is for Parliament.

In response to the speech made by my noble friend Lord Hailsham, supported by my noble friend Lord Cormack, I reiterate that these amendments would go significantly beyond existing legislation, which has of course been in place for decades.

The noble Lord, Lord Dubs, asked me to confirm that there will be a chance to debate the Rwanda partnership in both Houses before any individual is removed. There has already been significant debate on the partnership in a Statement by the Home Secretary, in Commons Questions, in a PNQ and again in this House today. I know there will be many more opportunities to debate this.

The noble Lord, Lord Dubs, also asked about family reunion. As I have said to him on many occasions, those with family links in the UK who want to be considered for entry to the UK should seek to do so via legal and safe routes. No one should put their life into the hands of criminals by making dangerous and irregular journeys. I assure the noble Lord that access to family reunion will be available to all group 1 and group 2 refugees where a refusal would breach their Article 8 rights, in line with our international obligations.

My noble friend Lord McColl and the noble Lord, Lord Paddick, asked how the Rwanda partnership would apply to victims of modern slavery. Decisions on the partnership will be taken on a case-by-case basis and nobody will be relocated if it is unsafe or inappropriate for them. Everyone considered for relocations will be screened, interviewed and have access to legal advice. The provision in the MoU ensures that Rwanda supports everyone who is transferred. Again, I reassure noble Lords that we will only ever act in line with our commitments under our international legal obligations, including those that pertain to potential and confirmed victims of modern slavery.

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Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I have already spoken to Motion J and I beg to move.

Motion J1 (as an amendment to Motion J)

Lord Coaker Portrait Lord Coaker
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Moved by

At end insert “and do propose Amendment 13D as an amendment in lieu and Amendment 13E as a consequential amendment—

13D: Page 40, leave out lines 5 to 9 and insert—“(D1) A person who knowingly arrives in the United Kingdom—(a) in breach of a deportation order, or(b) following their exclusion from the United Kingdom on the grounds of national security,commits an offence.”
13E: Page 41, line 4, leave out paragraph (e)”
Lord Coaker Portrait Lord Coaker (Lab)
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I beg to move Motion J1 in my name.

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Moved by
Lord Coaker Portrait Lord Coaker
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At end insert “and do propose Amendment 25D in lieu—

25D: Leave out Clause 62 and insert the following new Clause—
“Identified potential victims etc: disqualification from protection
(1) This section applies to the construction and application of Article 13 of the Trafficking Convention.
(2) A competent authority may determine that it is not bound to observe the minimum recovery period under section 60 of this Act in respect of a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that it is prevented from doing so—
(a) on the grounds of public order; or
(b) where the person is claiming to be a victim of modern slavery improperly.
(3) For the purposes of subsection (2)(a), the circumstances in which there are grounds of public order are where—
(a) the person has been convicted of a terrorist offence; or
(b) the person is subject to a TPIM notice (within the meaning given by section 2 of the Terrorism Prevention and Investigation Measures Act 2011).
(4) The Secretary of State must, within one year of this Act being passed—
(a) prepare and publish a consultation on whether the circumstances in which there are grounds of public order under subsection (3) should be expanded to include circumstances where a person has been convicted of any specific offence listed in Schedule 4 to the Modern Slavery Act 2015, other than a terrorist offence; and
(b) lay a response to the consultation before each House of Parliament.
(5) A consultation response published under subsection (4)(b) must include a statement setting out how any proposed additions to subsection (3) are compliant with the Trafficking Convention.
(6) In subsection (3) a “terrorist offence” means any of the following (whenever committed)—
(a) an offence listed in—
(i) Schedule A1 to the Sentencing Code (terrorism offences: England and Wales), or
(ii) Schedule 1A to the Counter-Terrorism Act 2008 (terrorism offences: Scotland and Northern Ireland);
(b) an offence that was determined to have a terrorist connection under—
(i) section 69 of the Sentencing Code (in the case of an offender sentenced in England and Wales), or
(ii) section 30 of the Counter-Terrorism Act 2008 (in the case of an offender sentenced in Northern Ireland, or an offender sentenced in England and Wales before the Sentencing Code applied);
(c) an offence that has been proved to have been aggravated by reason of having a terrorist connection under section 31 of the Counter- Terrorism Act 2008 (in the case of an offender sentenced in Scotland).
(7) Any determination made under subsection (2) must only be made—
(a) in exceptional circumstances;
(b) where necessary and proportionate to the threat posed, including that the person in question poses an immediate, genuine, present and serious threat to public order; and
(c) following an assessment of all the circumstances of the case.
(8) A determination made under subsection (2) must not be made where it would breach—
(a) a person’s rights under the European Convention on Human Rights;
(b) the United Kingdom’s obligations under the Trafficking Convention; or
(c) the United Kingdom’s obligations under the Refugee Convention.
(9) For the purposes of a determination under subsection (2)(b) victim status is being claimed improperly if the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves.
(10) A good reason for making a false statement includes, but is not limited to, circumstance where—
(a) the false statement is attributable to the person being or having been a victim of modern slavery, or
(b) any means of trafficking were used to compel the person into making a false statement.
(11) This section does not apply where the person is under 18 years at the time of the referral.
(12) In section 49 of the Modern Slavery Act 2015 (guidance about identifying and supporting victims), after subsection (1)(c) insert—
“(d) under what circumstances a person may be considered to pose an immediate, genuine, present and serious threat to public order, for the purposes of the application of Article 13 of the Trafficking Convention.”
(13) Nothing in this section affects the application of section 60(2).””
Lord Coaker Portrait Lord Coaker (Lab)
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I beg to move Motion L1 in my name.

Nationality and Borders Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Nationality and Borders Bill

Lord Coaker Excerpts
Consideration of Commons amendments
Wednesday 27th April 2022

(1 year, 11 months ago)

Lords Chamber
Read Full debate Nationality and Borders Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 152-I Marshalled list for Consideration of Commons Reasons - (27 Apr 2022)
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, like the noble Lord, Lord Kerr of Kinlochard, whom I have the greatest respect for, I am not a lawyer, so it is with some trepidation that I enter the arena. But that is my role. As far as my common sense tells me, international agreements such as the 1951 refugee convention mean nothing if each and every signatory to the convention can reinterpret the agreement to suit its own political ends. The whole point of the refugee convention, like the European Convention on Human Rights, is to prevent rogue states passing domestic legislation that overrules the rights of refugees or the basic human rights of their own citizens in the wake of what was then the recent history of the Second World War.

On the back of their attempts to reinterpret the 1951 refugee convention, this Government appear to be about to remove the United Kingdom from the European Convention on Human Rights, judging by the comments of the Deputy Prime Minister on BBC Radio 4’s “Today” programme this morning. In the context of those convicted of terrorism offences challenging their segregation in prison, Dominic Raab said, at two hours and 21 minutes into the programme,

“it shows you why our Bill of Rights is so important to replace the Human Rights Act.”

So much for the Minister relying on the Human Rights Act in her arguments. I am reminded of “First they came” by the German Lutheran pastor, Martin Niemöller. If we do not speak out about this Government eroding the rights of refugees, as they seek to do in this Bill, the next step will be to erode the rights of each and every one of us.

Motion A1 is a final attempt to at least make the Government honest. As the noble Lord, Lord Kerr, said yesterday, if the Government were to say, “We know this Bill does not comply with the refugee convention, but we are going to enact it anyway”, they would at least be being honest. Motion A1, as I understand it, simply allows the courts to make a declaration that any parts of the provisions in Part 2 of the Bill are incompatible with the refugee convention and require the Government to take note of the finding—the Government having been given the opportunity to be joined as a party to the proceedings. If the noble Baroness, Lady Chakrabarti, divides the House, we will support her. I understand why she may not want to divide the House, but if this were our amendment, we would. This time, it is refugees’ rights; next time, it could be our rights that are in danger if the Lord Chancellor, the Secretary of State for Justice, the Deputy Prime Minister, gets his way.

We also strongly support Motion B1 for similar reasons. It should be for the Secretary of State to prove why a genuine refugee is to be categorised as a class 1 or class 2 refugee. In any event, any Immigration Rules that are applied to whichever group a genuine refugee is categorised by the Secretary of State as falling into must not permit any practice that would be contrary to the Government’s international obligations. If this were our amendment, we would be dividing the House, but we respect the noble Lord’s decision.

On Motion C, I can understand why the noble Baroness, Lady Lister of Burtersett, having won the argument yesterday by one vote, has chosen not to pursue the right to work for refugees, despite the Government being unable to produce a shred of evidence to counter the comprehensive and compelling evidence provided yesterday by the noble Baroness, Lady Stroud, which clearly demonstrated that the right to work is not a so-called pull factor. The arguments made by the Minister about costs, devoid of any facts based on real-world experience unlike those of the noble Baroness, Lady Stroud, were speculative and, never having been presented before during the passage of the Bill from my recollection, smacked of last-gasp desperation.

Liberal Democrats have long campaigned and will continue to campaign for the right of asylum seekers to pay their own way, to secure the dignity that comes from being able to support themselves and to integrate more effectively in society by being able to work. In case this is my last opportunity to speak on this Bill, may I say how appalled and disgusted I am by it? There is only one political party to blame for this shameful legislation, and that is the Conservative Party.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, let me start by saying that I totally agree with my noble friend Lady Chakrabarti; I totally agree with the noble Lord, Lord Kerr; I totally agree with the noble Lord, Lord Paddick, and I totally agree with the noble and learned Lord, Lord Brown. Along with many noble Lords and Baronesses in this House, I have argued time and again against a Bill that most of us think is wrong and unethical. We have argued against the Government time after time on these issues, and I am going to spend a couple of minutes saying why I support the amendments from the noble Lord, Lord Kerr, and my noble friend Lady Chakrabarti.

I wanted to put that on record to start with because I do not want the position that we have taken—thinking that we have come to the end of the parliamentary political process with this—to be misunderstood to mean that we do not agree with my noble friend Lady Chakrabarti or with the noble Lords, Lord Kerr, Lord Pannick and Lord Paddick, or with any other Member who supports these amendments, because I do, and we do. But there comes a point—even I accept this, after what I said yesterday—where you have to recognise that this would be the fourth time that we would have sent this back.

The noble Lord, Lord Kerr, was kind enough to say what he did about me in the Commons, but I think that the Commons currently guillotines legislation far too quickly, which means that things are not properly considered. Frankly, that causes resentment—as happened the other day when we sent 12 amendments back and they were discussed in an hour—and people to ask why we should not send things back more often.

That is the root of the problem. But as someone who has stood for election on many of these issue and, like others, lost, fighting for this out in the community, I accept that the battle or argument now has to go beyond Parliament and out into the country. This is what elections are about. The Government get their way in the end because they won the 2019 general election and can pursue their agenda in Parliament. I can be angry, and this House can send a Bill back 10 or 12 times, but if the Conservative Government have a majority in the Commons, they will simply reject it. Of course we have a right to ask the Commons to think again, and in some cases it has done. I accept that there is a debate around how many times we should send Bills back, and whether we should send this one back once more; there is a legitimate question as to whether three times is enough or whether it should be four. But the position we have come to is that we think we are now at the end of the line. That is clearly not a view that everyone agrees with, but let it not be said that the disagreement is about the content of the Bill or the worth of the amendments; it is not. It is just about the best way to take this forward. That is the point I wanted to make.

It is worth reiterating that, as much as any other, the amendment from the noble Lord, Lord Kerr, goes to the heart of the Bill. Essentially, it was trying to say that the differential treatment of refugees would mean that vast numbers of people who come and claim asylum in this country would be criminalised. I cannot believe that that is acceptable, and that is what the amendment is getting at. We had the almost farcical situation where we were trying to imagine how someone could actually get here legitimately to claim asylum. We are an island, so what country can you come through unless you fly? But you cannot fly, because of the database checks that are carried out when you get on a plane, and so by definition you must come through a safe country to get here. According to the Bill we have before us, anybody doing that is coming illegally and should be stopped—unless they have come on one of the safe routes, but these are unavailable to large numbers of people.

The amendment from the noble Lord, Lord Kerr, goes absolutely to the heart of the matter. He and other noble Lords pointed out that this would have criminalised Ukrainians fleeing at the beginning of the conflict, and Afghans who had helped the British Army. That is why the noble Lord’s amendment is crucial, but these arguments have to be won not only in this Chamber but out in the country. But instead, to be frank, the Government say that we have a real problem with illegal immigration in this country and they are the only ones who will fix it—ignoring the fact that they have been in power for 12 years and have not managed to sort it out in that time.

The noble Lord, Lord Kerr, will appreciate that this is not a debate as to whether the amendment is right but about where we go to now. That is a position that noble Lords will have to consider for themselves, but we have considered it very carefully and come to the view that we have.

I have not always agreed with my noble friend Lady Chakrabarti, but on this she is absolutely right and I totally agree with the points she has made. Other noble Lords have joined in: the noble Lord, Lord Pannick, made his usual excellent contribution, as did the noble and learned Lord, Lord Brown, supported by the noble and learned Lord, Lord Clarke, who pointed out the importance of obeying international law and respecting our international obligations.