Illegal Migration Bill

Lord Coaker Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group, including the probing amendments tabled by my noble friend Lady Hamwee. It is quite clear from all sides of the Committee that just listing countries as being safe is not sufficient. The Government have already acknowledged that some countries are not safe to remove women to, for example. Therefore the principle is established that a country may be considered sort of generally safe, but not safe for particular individuals, whether because of their gender or sexual diversity. The noble Lord, Lord Carlile of Berriew, introduced amendments aimed at that. The amendment in the name of the noble Lord, Lord Alton, would ensure that victims of trafficking and modern slavery are not removed to a country where they would not be safe. As both my noble friends said, when you contrast the list of countries in Schedule 1 with the Government’s advice to travellers, for example, there is clear inconsistency between the two, or at least a case for the Government to answer in terms of using the countries in Schedule 1 as a blanket list rather than looking into the specific problems or dangers faced by people who belong to different social groups.

The other concern I have is, if people who arrive by means of what the Home Office calls irregular routes are not to have their asylum claims considered at all, how will the Government know whether the individual concerned is, for example, gay or a lesbian and therefore will be put in danger if they are removed to a country that clearly persecutes people from those groups? If there is going to be no consideration of the merits of an individual’s claim, how can the Government be certain that the person is going to be safe if they are removed to one of these countries?

[Lord Coaker (Lab)]

My Lords, this is another important group of amendments and we support all of them. I remind noble Lords of the importance of this. Since the Bill assumes that everybody arriving irregularly will be detained and automatically removed, where they are going to be removed to becomes important to us all, and for us to have some consideration about the criteria which the Government will use is of particular importance. Can the Minister confirm that deterrence does not trump human rights with respect to removals? That was the implication of what his noble friend Lord Murray said earlier—that deterrence is everything and something that has to be achieved irrespective of any other consequence.

Since the Government always say that they are on the side of the British people, let me be controversial for a moment. With regard to the issues that we have been discussing in this group of amendments, I do not believe that the British people believe that deterrence should trump human rights. Let us make this real. I have looked at this, as other Members have done, in relation to various LGBTQ rights in countries that the Government say will be safe to send failed asylum seekers to through the Bill. Let us take the case of Nigeria; as my noble friend Lord Cashman has said, you can be flogged for being gay there. In Malawi, it is up to 14 years’ imprisonment with or without corporal punishment. In Liberia, it is a maximum of three years in prison.

Can the Minister tell us, on behalf of His Majesty’s Government, whether a failed asylum seeker who is gay would be removed to those countries? In the end, that goes to the essence of what we are talking about. I want to know, and the British public and this Chamber want to know: will such an individual—or anyone in circumstances detailed in the helpful amendments tabled by the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, my noble friend Lord Cashman and the noble Baroness, Lady Bennett—be deported, or not? I do not think they should be deported in those circumstances. I do not see how those countries can be included in Schedule 1; I do not understand that at all. I do not believe that the Minister would want anyone —a female asylum seeker, for example, who has failed according to the terms of the Bill—to be returned to a country where they would be persecuted. Would such a country be included in Schedule 1? Rather than these general terms, let us see the specifics of what would happen.

Some noble Lords who have been Members of the other place will know that people will often say in general terms, “It’s an outrage”, or that “It’s about time those people were sent back” or “dealt with”. Then, the individual case—the individual family, the individual asylum seeker, the individual gay person—comes up and that very same community launches a campaign to stop them being deported. You can see it happening up and down the country because people are genuinely decent. When the human consequences of a piece of legislation are made clear, that general enthusiasm and support dissipates because they understand its consequences.

When the Minister answers the various questions of noble Lords, I want him to answer the specifics about an individual gay person who has failed as an asylum seeker under the terms of the Bill. Will they be returned to the sorts of countries and the sorts of persecution that other noble Lords and I have outlined?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am extremely grateful to all noble Lords who have put forward amendments in this group and contributed to this debate. The Government completely understand the sincerity and thought that has gone into these amendments and we are grateful for those observations but, for the reasons that I hope I will be able to explain, the Government do not feel that we should accept the amendments.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, the Government are always prepared to talk to anybody who would like to put forward various ideas. We will come to the question of legal advice and legal protections and procedures in a later group, where I will be very happy to elaborate on the Government’s plans in that respect.

[Lord Coaker (Lab)]

The judge in an Upper Tribunal would no doubt be trying to determine the will of Parliament in deciding the issues before us. In what circumstances do the Minister or the Government believe a judge would send a gay individual going to the Upper Tribunal as the result of a suspensive claim back to Nigeria or a similar country?

[Lord Bellamy (Con)]

I am not sure I completely understood the question. It may well be that in practice there will be various countries to which people with certain characteristics will never be sent because it is well known either at the level of the case worker and the Home Office or at the level of the judiciary that such a claim would give rise to a risk of “serious and irreversible harm”.

[Lord Coaker (Lab)]

Let me try again for the Minister. It is often said in court that judges were uncertain as to the intention of Parliament and it was not clear in the legislation what Parliament actually meant and therefore there was ambiguity. For the sake of avoiding any ambiguity, let us say that a suspensive claim goes to the Upper Tribunal, where the judge will determine whether that claim is right and whether an individual should be sent back to a particular country. So that the judge in the Upper Tribunal is not in danger of misreading the will of Parliament, I do not think that Parliament would want a gay individual who had failed because of the terms of the Illegal Migration Bill to be sent back to a country such as Nigeria which flogs gay men. I am asking the Minister of the Crown to say what the Government’s attitude is towards gay men in those circumstances, so that a judge in an Upper Tribunal will know what the intention of Parliament was. I hope that was clear enough for the Minister.

[Lord Bellamy (Con)]

My Lords, the Government’s position is that no one should be sent back if to do so would lead them to face

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

If that is the position in relation to gay men in Nigeria, there should be no difficulty in them satisfying those conditions.