William Cash
Main Page: William Cash (Conservative - Stone)Department Debates - View all William Cash's debates with the Home Office
Monday 27th March 2023
(1 year, 8 months ago)
Commons ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 27 March 2023 - (27 Mar 2023)
Sir William Cash (Stone) (Con)
I beg to move amendment 133, page 40, line 7, at end insert—
“(2A) A suspensive claim, or an appeal in relation to a suspensive claim (only as permitted by or by virtue of this Act), shall be the only means through which a removal notice may be challenged.
(2B) Accordingly, other than claims identified in (2A), there shall be no interim relief, or court order, or suspensive legal challenges of any kind, available which would have the effect of preventing removal.”
This amendment intends to ensure that the only way to prevent a person’s removal is through a successful suspensive claim.
The First Deputy Chairman of Ways and Means (Dame Rosie Winterton)
With this it will be convenient to discuss the following:
Amendment 76, page 40, line 8, leave out from “means” to the end of line 12 and insert—
“(a) a protection claim,
(b) a human rights claim, or
(c) a claim to be a victim of slavery or a victim of human trafficking.”
Amendment 77, page 40, line 22, after “a country or territory” insert
“where there are, in law and in practice—
“(i) appropriate reception arrangements for asylum seekers;
(ii) sufficiency of protection against serious harm and violations of fundamental rights;
(iii) protection against refoulement;
(iv) access to fair and efficient State asylum procedures, or to a previously afforded refugee status or other protective status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention.
(v) the legal right to remain during the State asylum procedure; and
(vi) if found to be in need of international protection, a grant of refugee status that is inclusive of the rights and obligations set out at Articles 2-34 of the 1951 Convention and”.
This amendment changes the definition of a “third country”.
Clause stand part.
Clause 38 stand part.
Amendment 78, in clause 39, page 41, line 19, leave out “not”.
Amendment 79, in clause 39, page 41, line 22, leave out “no” and insert “a”.
Amendment 134, in clause 39, page 41, line 28, leave out subsections (3) to (5) and insert—
“(3) The Secretary of State must declare as inadmissible any human rights claim, protection claim, application for judicial review, or other legal claim which is not a suspensive claim or an appeal in relation to a suspensive claim, and which, if successful, would have the effect of preventing the removal of a person from the United Kingdom under this Act.”
This amendment intends to ensure that the only way to prevent a person’s removal is through a successful suspensive claim, as defined in clause 37.
Amendment 80, in clause 39, page 41, line 37, leave out “no” and insert “a”.
Clause 39 stand part.
Amendment 81, in clause 40, page 42, line 10, leave out from “and” to the end of line 16 and insert
“decide whether to accept or reject the claim.”
Amendment 82, in clause 40, page 42, line 17, leave out subsection (3).
Amendment 83, in clause 40, page 42, line 30, leave out “compelling evidence” and insert
“evidence that there is a real risk”.
Amendment 84, in clause 40, page 42, line 34, leave out from the start of paragraph (b) to the end of subsection (5).
Amendment 85, in clause 40, page 43, line 1, leave out “8” and insert “21”.
Amendment 86, in clause 40, page 43, line 3, leave out “4” and insert “7”.
Clause 40 stand part.
Amendment 87, in clause 41, page 43, line 20, leave out subsection (3).
Amendment 88, in clause 41, page 43, line 28, leave out “compelling evidence” and insert
“evidence on the balance of probabilities”.
Amendment 89, in clause 41, page 43, line 31, leave out from the start of paragraph (b) to the end of subsection (5).
Amendment 90, in clause 41, page 43, line 40, leave out “8” and insert “21”.
Amendment 91, in clause 41, page 43, line 42, leave out “4” and insert “7”.
Clause 41 stand part.
Amendment 92, in clause 42, page 44, line 18, leave out paragraph (a) and insert—
“(a) in the case of a serious harm suspensive claim—
(i) the grounds in section 84(1) or (2) of the Nationality, Immigration and Asylum Act 2002, or
(ii) the grounds that the person is a victim of slavery or a victim of human trafficking;”.
Amendment 93, in clause 42, page 44, line 25, leave out
“contain compelling evidence of such ground”
and insert
“set out the grounds for appeal”.
Amendment 94, in clause 42, page 44, line 27, leave out “must” and insert “may”.
Amendment 95, in clause 42, page 44, line 30, leave out “must” and insert “may”.
Amendment 96, in clause 42, page 44, line 34, leave out paragraphs (a) and (b) and insert
“whether to allow or refuse the appeal”.
Amendment 97, in clause 42, page 44, line 41, leave out subsection (7).
Clause 42 stand part.
Amendment 98, in clause 43, page 45, line 14, leave out from “considers” to the end of subsection (3) and insert
“there are reasonable grounds to believe that the claim is not bound to fail.”
Amendment 99, in clause 43, page 45, line 20, leave out
“there is compelling evidence that”.
Amendment 100, in clause 43, page 45, line 30, leave out subsection (7).
Clause 43 stand part.
Amendment 101, in clause 44, page 46, line 4, leave out “compelling” and insert “good”.
Amendment 102, in clause 44, page 46, line 5, insert at end
“or if the risk of serious and irreversible harm faced by the person is such that the claim ought to be considered despite it having been made after the end of the claim period”.
Amendment 103, in clause 44, page 46, line 6, leave out “compelling” and insert “good”.
Amendment 104, in clause 44, page 46, line 10, leave out “compelling” and insert “good”.
Amendment 105, in clause 44, page 46, line 12, leave out “compelling” and insert “good”.
Amendment 106, in clause 44, page 46, line 15, leave out paragraph (a) and insert—
“(a) set out the good reasons for the person not making the claim within the claim period, and”.
Amendment 107, in clause 44, page 46, line 18, at end insert
“unless the Upper Tribunal considers that an oral hearing is necessary to secure that justice is done in the particular case”.
Amendment 108, in clause 44, page 46, line 22, leave out subsection (7).
Amendment 109, in clause 44, page 46, line 30, leave out “4” and insert “7”.
Clause 44 stand part.
Government amendment 67.
Amendment 41, in clause 45, page 47, line 21, at end insert—
“(2A) In cases where subsection (2) applies to a person who has made a protection claim or a human rights claim, that claim may no longer be considered inadmissible.”
This amendment stipulates that where a person has successfully made a suspensive claim against their removal from the UK, any asylum or human rights claim made by that person can no longer be classed as inadmissible.
Government amendment 69 and 68.
Clause 45 stand part.
Amendment 110, in clause 46, page 48, line 1, leave out subsections (3) to (10).
Clause 46 stand part.
Amendment 111, in clause 47, page 48, line 34, leave out “7” and insert “10”.
Amendment 112, in clause 47, page 48, line 41, leave out “23” and insert “28”.
Amendment 113, in clause 47, page 49, line 7, leave out “7” and insert “10”.
Amendment 114, in clause 47, page 49, line 11, leave out “7” and insert “14”.
Amendment 115, in clause 47, page 49, line 18, leave out “7” and insert “10”.
Amendment 116, in clause 47, page 49, line 22, leave out “7” and insert “14”.
Clause 47 stand part.
Amendment 117, in clause 48, page 49, line 32, leave out “or refuse”.
Amendment 118, in clause 48, page 49, line 35, leave out “or refuse”.
Clause 48 stand part.
Amendment 119, in clause 49, page 50, line 17, leave out from “provision” to the end of subsection (1) and insert
“to ensure compliance with interim measures indicated by the European Court of Human Rights as they relate to the removal of persons from the United Kingdom under this Act.”
Amendment 122, in clause 49, page 50, line 30, at end insert—
“(2A) Regulations under subsection (1) may not make provision so as to deny or undermine the binding effect of such measures on the United Kingdom under Article 34 of the European Convention on Human Rights.”
This amendment would recognise that the UK is bound to comply with interim measures issued by the European Court of Human Rights, and would ensure that any regulations made under clause 49 do not undermine this. This amendment is consistent with recommendations made by the Joint Committee on Human Rights in its report on the Bill of Rights Bill.
Clause 49 stand part.
Amendment 120, in clause 50, page 51, leave out line 21.
Clause 50 stand part.
Amendment 179, in clause 51, page 53, line 3, leave out from “must” to the end of subsection (1) and insert
“within six months of this Act coming into force, secure a resolution from both Houses of Parliament on a target for the number of people entering the United Kingdom each year over the next three years using safe and legal routes, and further resolutions for future years no later than 18 months before the relevant years begin.”
This amendment seeks to enhance Parliament’s role in determining the target number of entrants using safe and legal routes.
Amendment 177, in clause 51, page 53, line 3, leave out “maximum” and insert “target”.
The purpose of this amendment is to set a target, rather than a maximum, number of entrants through safe and legal routes.
Amendment 180, in clause 51, page 53, line 6, leave out “making the regulations” and insert
“securing the resolution mentioned in subsection (1)”.
This amendment is consequential on Amendment 179.
Amendment 173, in clause 51, page 53, line 7, after “authorities”, insert—
“(aa) the United Nations High Commission for Refugees,
(ab) the Scottish Ministers,
(ac) the home affairs select committee of the House of Commons,”.
The purpose of this amendment is to broaden the scope of consultees on setting the target for the number of entrants using safe and legal routes.
Amendment 176, in clause 51, page 53, line 12, leave out “exceeds” and insert
“is greater or less than 10% of”.
The purpose of this amendment is to require the Secretary of State to explain the reasons why, if the target for entrants through safe and legal routes is not met.
Amendment 178, in clause 51, page 53, line 17, after “exceeds” insert “or falls short of”.
This amendment is consequential on Amendment 176.
Amendment 137, in clause 51, page 53, line 29, at end insert—
““Persons” means a person over the age of 18 on the day of entry into the United Kingdom;”.
This amendment would exclude children from the annual cap on number of entrants.
Amendment 72, in clause 51, page 53, line 31, at end insert
“under section [Safe and legal routes: regulations]”.
Amendment 149, in clause 51, page 53, line 31, at end insert—
“(7) Regulations under subsections (1) and (6) must come into force no later than three months from the date on which this Act comes into force.”
This amendment seeks to require that regulations to establish the cap on the number of people permitted to enter the UK via safe and legal routes must be in effect by three months from this Bill’s entry into force.
Clause 51 stand part.
Government new clause 11—Judges of First-tier Tribunal and Upper Tribunal.
Government new clause 12—Special Immigration Appeals Commission.
New clause 3—Refugee resettlement target—
“(1) The Secretary of State must make an order by statutory instrument setting an annual target for the resettlement of refugees to the United Kingdom.
(2) An order under subsection (1) must set an annual target of no fewer than 10,000 people.”
This new clause would require the Secretary of State to set a resettlement target, by order, each year of at least 10,000 people.
New clause 4—Humanitarian travel permit—
“(1) On an application by a person (“P”) to the appropriate decision-maker for entry clearance, the appropriate decision-maker must grant P entry clearance if satisfied that P is a relevant person.
(2) For the purposes of subsection (1), P is a relevant person if—
(a) P intends to make a protection claim in the United Kingdom;
(b) P’s protection claim, if made in the United Kingdom, would have a realistic prospect of success; and
(c) there are serious and compelling reasons why P’s protection claim should be considered in the United Kingdom.
(3) For the purposes of subsection (2)(c), in deciding whether there are such reasons why P’s protection claim should be considered in the United Kingdom, the appropriate decision-maker must take into account—
(a) the extent of the risk that P will suffer persecution or serious harm if entry clearance is not granted;
(b) the strength of P’s family and other ties to the United Kingdom;
(c) P’s mental and physical health and any particular vulnerabilities that P has; and
(d) any other matter that the decision-maker thinks relevant.
(4) For the purposes of an application under subsection (1), the appropriate decision-maker must waive any of the requirements in subsection (5) if satisfied that P cannot reasonably be expected to comply with them.
(5) The requirements are—
(a) any requirement prescribed (whether by immigration rules or otherwise) under section 50 of the Immigration, Asylum and Nationality Act 2006; and
(b) any requirement prescribed by regulations made under section 5, 6, 7 or 8 of the UK Borders Act 2007 (biometric registration).
(6) No fee may be charged for the making of an application under subsection (1).
(7) An entry clearance granted pursuant to subsection (1) has effect as leave to enter for such period, being not less than six months, and on such conditions as the Secretary of State may prescribe by order.
(8) Upon a person entering the United Kingdom (within the meaning of section 11 of the Immigration Act 1971) pursuant to leave to enter given under subsection (7), that person is deemed to have made a protection claim in the United Kingdom.
(9) In this section—
“appropriate decision-maker” means a person authorised by the Secretary of State by rules made under section 3 of the Immigration Act 1971 to grant an entry clearance under paragraph (1);
“entry clearance” has the same meaning as in section 33(1) of the Immigration Act 1971;
“persecution” is to be construed in accordance with its meaning in the Refugee Convention;
“protection claim” in relation to a person, means a claim that to remove them from or require them to leave the United Kingdom would be inconsistent with the United Kingdom’s obligations—
(a) under the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to that Convention (“the Refugee Convention”);
(b) in relation to persons entitled to a grant of humanitarian protection; or
(c) under Article 2 or 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950 (“the European Convention on Human Rights”); and
“serious harm” means treatment that, if it occurred within the jurisdiction of the United Kingdom, would be contrary to the United Kingdom's obligations under Article 2 or 3 of the European Convention on Human Rights (irrespective of where it will actually occur).”
New clause 6—Safe Passage Pilot Scheme—
“(1) The Secretary of State must by regulations made by statutory instrument establish a humanitarian travel permit scheme.
(2) The scheme under this section must come into operation within 3 months of the date on which this Act is passed and must remain in operation for at least 12 months.
(3) The scheme under this section must permit persons from designated countries or territories (see subsections (3) and (4) below) to enter the United Kingdom for the purpose of making a claim for asylum immediately on their arrival in the United Kingdom.
(4) The regulations under subsection (1) must designate countries or territories from which nationals or citizens may be considered for humanitarian permits under this section.
(5) Countries or territories designated under subsection (4) may include only countries or territories from which the proportion of decided asylum claims which have been upheld in the United Kingdom in the 5 years before the date on which this Act is passed is at least 80 per cent.
(6) Regulations made under subsection (1) are subject to annulment by resolution of either House of Parliament.
(7) The Secretary of State must lay before Parliament an evaluation of the humanitarian travel permit scheme under this section not later than 15 months from the date on which this Act is passed.”
New clause 7—Refugee family reunion—
“(1) The Secretary of State must, within 6 months of the date on which this Act is passed, lay before Parliament a statement of changes in the rules (the “immigration rules”) under section 3(2) of the Immigration Act 1971 (general provisions for regulation and control) to make provision for refugee family reunion, in accordance with this section, to come into effect after 21 days.
(2) Before a statement of changes is laid under subsection (1), the Secretary of State must consult with persons as the Secretary of State deems appropriate.
(3) The statement laid under subsection (1) must set out rules providing for leave to enter and remain in the United Kingdom for family members of a person granted refugee status or humanitarian protection.
(4) In this section, “refugee status” and “humanitarian protection” have the same meaning as in the immigration rules.
(5) In this section, “family members” include—
(a) a person's parent, including adoptive parent;
(b) a person's spouse, civil partner or unmarried partner;
(c) a person's child, including adopted child, who is either—
(i) under the age of 18, or
(ii) under the age of 25 but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum;
(d) a person's sibling, including adoptive sibling, who is either—
(i) under the age of 18, or
(ii) under the age of 25, but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum; and
(e) such other persons as the Secretary of State may determine, having regard to—
(i) the importance of maintaining family unity,
(ii) the best interests of a child,
(iii) the physical, emotional, psychological or financial dependency between a person granted refugee status or humanitarian protection and another person,
(iv) any risk to the physical, emotional or psychological wellbeing of a person who was granted refugee status or humanitarian protection, including from the circumstances in which the person is living in the United Kingdom, or
(v) such other matters as the Secretary of State considers appropriate.
(6) For the purpose of subsection (5)—
(a) “adopted” and “adoptive” refer to a relationship resulting from adoption, including de facto adoption, as set out in the immigration rules;
(b) “best interests” of a child must be read in accordance with Article 3 of the 1989 UN Convention on the Rights of the Child.”
This new clause would make provision for leave to enter or remain in the UK to be granted to the family members of refugees and of people granted humanitarian protection.
New clause 10—Safe passage visa scheme—
“(1) Within three months of the passing of this Act, the Secretary of State must lay before Parliament statements of changes to the immigration rules to make provision for a safe passage visa scheme (referred to in the remainder of this section as the “scheme”).
(2) The purpose of the scheme referred to in subsection (1) is to enable a qualifying person to travel safely to the United Kingdom in order to make an application for asylum (within the meaning given by paragraph 327 of the immigration rules) or a claim for humanitarian protection (within the meaning given by paragraph 327EA of the immigration rules).
(3) A person is a “qualifying person” for the purposes of subsection (2) if the person—
(a) is present in a member State of the European Union when the person makes an application to the scheme;
(b) is not a national of a member State of the European Union, Liechtenstein, Norway or Switzerland; and
(c) would, on securing entry to the United Kingdom, be able to make—
(i) a valid application for asylum in accordance with paragraph 327AB of the immigration rules; or
(ii) a valid claim for humanitarian protection in accordance with paragraph 327EB of the immigration rules,
which would not be clearly unfounded.
(4) For the purposes of determining whether the conditions in subsection (3)(c) above are satisfied, the following are disapplied—
(a) the conditions in subsections (4) and (5) of section 80C of the Nationality, Immigration and Asylum Act 2002; and
(b) the duty in section 2(1) of this Act.
(5) Changes to the immigration rules made under this section must also make provision for—
(a) applications to the scheme, including—
(i) identification of the relevant gov.uk webpage through which applications must be made;
(ii) the provision of relevant biometric data by the person;
(iii) the supplying of relevant information and supporting documentation related to applications;
(iv) confirmation that applications will be without cost to applicants; and
(v) provision for legal aid in relation to applications made to the scheme;
(b) any additional suitability requirements for applications to the scheme, including matters referred to in Part 9 of the immigration rules;
(c) entry requirements for those granted entry clearance under the scheme, including the requirement that the person be provided with a letter by the Secretary of State confirming that the person can enter the United Kingdom;
(d) limitations on the entry clearance granted under the scheme, including provision that clearance is provided solely to enable the person to make an application for asylum or a claim for humanitarian protection and requiring that such an application or claim be made immediately on entry into the United Kingdom; and
(e) appeal rights for those denied entry clearance under the scheme, including legal aid to be made available for persons making such appeals.
(6) The scheme referred to in this section is to be specified as a “safe and legal route” for the purposes of regulations referred to in section 51(6) of this Act.
(7) In this section “immigration rules” means rules under section 3(2) of the Immigration Act 1971.”
New clause 13—Safe and legal routes: regulations—
“(1) The Secretary of State must by regulations specify safe and legal routes by which asylum seekers can enter the United Kingdom.
(2) The routes specified must include—
(a) any country-specific refugee and resettlement schemes already in operation on the day this Act is passed; and
(b) safe and legal routes additional to those in subsection (2)(a).
(3) The regulations must set out which routes specified under subsection (2)(b) are available to—
(a) adults, and
(b) unaccompanied children.
(4) The regulations must make provision about—
(a) who is eligible to access the routes specified under subsection (2)(b); and
(b) the means by which such persons may access the routes.”
New clause 17—Safe and legal routes—
“(1) The Secretary of State must within six months of the date on which this Act is passed lay before Parliament a report setting out—
(a) all safe and legal routes which individuals from relevant countries may take in order to apply lawfully for asylum in the United Kingdom; and
(b) the numbers of applicants in each of the last five years who have followed each of those safe and legal routes.
(2) The report must be approved by a resolution of each House of Parliament.
(3) A person originating from a relevant country may not be removed from the United Kingdom unless a safe and legal route from that country has been set out in a report under subsection (1).
(4) For the purposes of this section “relevant countries” means—
(a) every country or territory not listed in the Schedule; and
(b) in relation to all applicants other than men, those countries listed in the Schedule in respect of men.”
This new clause would require the Secretary of State to set out a comprehensive list of safe and legal routes to the UK from countries not listed in the Schedule, as the latter are by definition countries the Government considers “safe”. A person could not be removed from the UK to a country not listed in the Schedule unless a safe and legal route from that country to the UK exists.
New clause 19—Refugee family reunion—
“(1) The Secretary of State must, within two months of the day on which this Act is passed, lay before Parliament a statement of changes in the rules (the “immigration rules”) under section 3(2) of the Immigration Act 1971 (general provisions for regulations and control ) to make provision for refugee family reunion, in accordance with this section, to come into effect after 21 days.
(2) The statement made under subsection (1) must set out rules providing for leave to enter and remain in the United Kingdom for family members of a person—
(a) granted refugee status or humanitarian protection,
(b) resettled through Pathways 1 or 3 of the Afghan Resettlement Scheme, or
(c) who is permitted to enter the United Kingdom through a safe and legal route specified in regulations made under section 51(1) (see also subsection (6) of that section).
(3) In this section, “family members” include a person’s—
(a) parent, if the person was under the age of 18 at the time they made an application for protection status within the meaning of subsection (4) in the United Kingdom, including adoptive parent;
(b) spouse, civil partner or unmarried partner;
(c) child, including adopted child, who is either—
(i) under the age of 18
(ii) aged 18 or over and dependant on the person;
(d) sibling, including adoptive sibling, who is either—
(i) under the age of 18, or
(ii) under the age of 25 but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum; and
(e) such other persons as the Secretary of State may determine, having regard to—
(i) the importance of maintaining family unity,
(ii) the best interests of the child,
(iii) the physical, emotional, psychological or financial dependency between a person granted refugee status or humanitarian protection and another person,
(iv) any risk to the physical, emotional or psychological wellbeing of a person who was granted refugee status or humanitarian protection, including from the circumstances in which the person is living in the United Kingdom, or
(v) such other matters as the Secretary of State considers appropriate.
(4) For the purpose of subsection (3)—
(a) “adopted” and “adoptive” refer to a relationship resulting from adoption, including de facto adoption, as set out in the immigration rules;
(b) “best interests” of a child is to be read in accordance with Article 3 of the 1989 UN Convention of the Rights of the Child.”
New clause 23—Asylum processing for low grant-rate countries—
“(1) Within 60 days of this Act coming into force, the Secretary of State must issue regulations establishing an expedited asylum process for applicants from low grant-rate countries who have arrived in the UK without permission.
(2) Within this section, “low grant-rate countries” are defined are countries with a grant rate for asylum applicants below 50% in the 12 months preceding the initial decision being taken.”
This new clause requires the Home Secretary to establish a process to fast-track asylum claims from safe countries.
New clause 24—Safe and legal routes: family reunion for children—
“(1) The Secretary of State must, within three months of the date on which this Act enters into force, lay before Parliament a statement of changes in the rules (the ‘immigration rules’) under section 3(2) of the Immigration Act 1971 (general provision for regulation and control) to make provision for the admission of unaccompanied asylum-seeking children from European Union member states to the United Kingdom for the purposes of family reunion.
(2) The rules must, as far as is practicable, include provisions in line with the rules formerly in force in the United Kingdom under the Dublin III Regulation relating to unaccompanied asylum-seeking children.”
This new clause seeks to add a requirement for the Secretary of State to provide safe and legal routes for unaccompanied asylum-seeking children with close family members in the UK, in line with rules previous observed by the UK as part of the Dublin system.
New clause 25—International co-operation—
“(1) The Secretary of State must, within three months of the date on which the Illegal Migration Act 2023 comes into force, publish and lay before Parliament a framework for new agreements to facilitate co- operation with the governments of neighbouring countries, EU Member States and relevant international organisations on—
(a) the removal from the United Kingdom of persons who have made protection claims declared inadmissible by the Secretary of State;
(b) the prevention of unlawful entry to the United Kingdom from neighbouring countries;
(c) the prosecution and conviction of persons involved in facilitating illegal entry to the United Kingdom from neighbouring countries;
(d) securing access for the relevant authorities to international databases for the purposes of assisting law enforcement and preventing illegal entry to the United Kingdom; and
(e) establishing controlled and managed safe and legal routes.
(2) In subsection (1)—
(a) “neighbouring countries” means countries which share a maritime border with the United Kingdom;
(b) “relevant international organisations” means—
9. Europol;
10. Interpol;
11. Frontex;
12. the European Union; and
13. any other organisation which the Secretary of State may see fit to consult with.
(c) “relevant authorities” means—
(i) police forces;
(ii) the National Crime Agency;
(iii) the Crown Prosecution Service; and
(iv) any other organisation which the Secretary of State may see fit to include within the definition.
(d) “international databases” means—
(i) The Eurodac fingerprint database;
(ii) the Schengen Information System; and;
(iii) any other database which the Secretary of State may see fit to include within the definition.
(e) “controlled and managed safe and legal routes” includes—
(i) family reunion for unaccompanied asylum- seeking children with close family members settled in the United Kingdom; and
(ii) other resettlement schemes.”
This new clause would require the Secretary of State to lay before Parliament a framework on new agreements to facilitate co-operation with the governments of neighbouring countries and relevant international organisations on matters related to the removal of people from the United Kingdom.
New clause 26—Equality Impact—
“The Secretary of State must lay before Parliament an equality impact assessment of the measures in sections 37 to 51 of this Act with, in particular, an assessment of the extent to which people with protected characteristics under the Equality Act 2010 will be particularly affected by the changes to legal proceedings and by the cap on numbers of entrants using safe and legal routes.”
Government amendment 66.
Amendment 73, in clause 57, page 57, line 2, at end insert—
“(o) section [Safe and legal routes: regulations]”.
Amendment 74, in clause 57, page 57, line 7, at end insert—
“(7) No regulations may be made under subsection (1) until regulations specifying safe and legal routes have been made under section [Safe and legal routes: regulations].”
Amendment 75, in clause 1, page 2, line 13, at end insert—
“(i) establishes and defines safe and legal routes to be open to refugees and asylum seekers with a legitimate claim to be able to come to the United Kingdom legally.”
Amendment 131, in clause 1, page 2 , line 29, at end insert—
“(6) Provision made by or by virtue of this Act must be read and given effect to notwithstanding any judgement, interim measure or other decision, of the European Court of Human Rights, or other international court or tribunal; and notwithstanding any international law obligation.”
The intention of this amendment is that the provisions of the Bill should operate notwithstanding any orders of the Strasbourg court or any other international body.
Amendment 132, in clause 1, page 2, line 29, at end insert—
“(7) Section 4 (declaration of incompatibility), section 6 (acts of public authorities) and section 10 (power to take remedial action) of the Human Rights Act 1998 do not apply in relation to provision made by or by virtue of this Act.”
This amendment would disapply other provisions of the Human Rights Act 1998 in addition to that already disapplied by clause 1(5) of the Bill.
Sir William Cash
I voted for the Bill on Second Reading because it was most emphatically going in the right direction, but I emphasised that we wanted to be sure that it would actually work in the national interest by preventing illegal immigration. The Bill is getting better with the amendments proposed by the Government today, for which all credit to the Home Secretary, the Immigration Minister and the Prime Minister. The number of Back Benchers who are supporting our constructive amendments, including mine, is growing.
This Bill to stop the boats is both legally and politically necessary, because illegal migration is out of control, partly because of a failure to distinguish between genuine refugees and others who are illegal and economic migrants. This is not only a real problem in the UK; increasingly, it is a real global and European problem as well, as can be seen from the dreadful tragedies in the Mediterranean in the last few weeks and months.
This legislation sets out a fair regime for dealing with people who have arrived here illegally. It gives them a reasonable but limited ability to raise any exceptional reasons as to why it is unsafe for them to be sent to Rwanda or another safe country. These are known as suspensive claims, and they are clearly defined in clause 37. Those claims ensure that we are compliant with our international obligations and that we would not send somebody overseas if they were not medically fit to fly or if they would face persecution in the destination country.
The success of this scheme depends on it working predictably and quickly. Those who come over on small boats need to know that they will not be able to stay here and that the vast majority of them will be removed to Rwanda or elsewhere. If courts intervene in unexpected ways, it removes the deterrence and the whole scheme breaks down, along with our ability to control our own borders.
However, this is also a procedural, legal and judicial issue, because under the Human Rights Act 1998, the UK courts have not been given suitable guidance by Parliament via statute to draw the appropriate boundaries that are needed in the national interest. As I pointed out on Second Reading, for example, the international refugee convention does not apply between the UK and France, because France is not a country where asylum seekers fear persecution, yet the European Commission is by all accounts refusing to make legal changes to EU law to allow returns of illegal asylum seekers from the UK to France. There are also provisions setting out other named safe countries. I ought to remind House what happened when the Dublin regulation was torn up by Angela Merkel and 600,000 or so refugees were allowed to pour into Europe.
When the Human Rights Act was passed in 1998, I was in the House of Commons. Human rights lawyers and activists claimed that the Act was a “constitutional Rubicon” enabling the courts to override parliamentary sovereignty. This was a massively overstated and exaggerated claim that is refuted by clear statements, which I hope those on the Labour Front Bench will take on board, made by the then Lord Chancellor, Lord Irvine of Lairg, in the House of Lords on its Second Reading on 3 November 1997. He said of the legislation:
“It maximises the protection of human rights without trespassing on parliamentary sovereignty.”
He also stated that
“the remedial action will not retrospectively make unlawful an act which was a lawful act—lawful since sanctioned by statute.”—[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1229.]
But the question remained: what does statute provide?
Mr David Davis (Haltemprice and Howden) (Con)
I agree with my hon. Friend. In fact, that was demonstrated when we had the case of prisoner votes and Jack Straw, who took through the Human Rights Act, supported my motion to give instruction to the Government to get by exactly that issue.
Sir William Cash
I could not agree more with my right hon. Friend. In that context, “takes into account” is what the courts have to do with respect to the convention, but not necessarily to obey the Court. That is precisely what happened there.
In the House of Commons during the passage of the Human Rights Act, the Home Secretary Jack Straw made similar observations. The Government rejected giving the courts the power to set aside an Act of Parliament, which was being considered. This was a Labour Government rejecting giving the courts the power to set aside an Act of Parliament. He stated that this was because of
“the importance which the Government attaches to Parliamentary sovereignty”.
The White Paper at the time made that abundantly clear, even in respect of declarations of incompatibility by the courts, and furthermore made it clear that declarations of incompatibility would not necessarily lead to legislation.
I was glad to note, in principle, clause 1(5) regarding the application of section 3 of the Human Rights Act. In the context of parliamentary sovereignty, it is clear from the pre-eminent authorities that, in respect of section 3 of the Human Rights Act, any suggestion of a limitation of Parliament’s sovereign will would be permissible only to the extent that in doing so the courts give effect to the intention
“reasonably to be attributed to Parliament”
in enacting section 3. It must surely be clear to all of us, in the case of illegal immigration, that Parliament would never intend to condone illegality or criminality.
This analysis that I have put forward as to the interpretation of the Human Rights Act clearly requires further discussion with the Government. Furthermore, the pre-eminent authority also states that
“the Courts are thus not empowered to construe legislation compatibly with the convention at all costs”
and must not cross the constitutional boundaries, which would include not endorsing illegality.
Joanna Cherry (Edinburgh South West) (SNP)
The hon. Gentleman is, of course, expounding a very Anglocentric view of sovereignty, but I will leave that to one side for the moment.
Is it not a legal flaw in the hon. Gentleman’s argument that at least some of the people who come to this country in small boats come not as immigrants but to seek asylum? The United Nations High Commissioner for Refugees says this Bill
“would amount to an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how…compelling their claim may be”.
Does the hon. Gentleman not accept that?
Sir William Cash
As I just said, I believe it is very important properly to protect genuine refugees. The problem we have been presented with over the last couple of years or so is that it is blatantly obvious that quite a significant number—I cannot put a precise figure on it, but it is very substantial and runs into the tens of thousands—have a serious case to answer in respect of their status.
Joanna Cherry
Unfortunately for the hon. Gentleman, the facts simply do not support what he is saying, because the majority of people arriving in small boats who have had their asylum claim resolved have had their claim granted. That is the evidence.
Sir William Cash
That is certainly the case, but it is equally the case that we have 160,000 unresolved asylum cases. It is also true that there is no persecution in France on this account.
As the Government have rightly said, the Labour party voted against the Nationality and Borders Act 2022, wants to scrap the Rwanda deal and opposes the Government’s Bill to detain and remove people swiftly from the UK. This amounts to demonstrating that the Labour party is in favour of open borders and is not on the side of the British people, who want us to deal with this problem.
The current Leader of the Opposition, in an article in Counsel on 9 January 2015, wrote, contrary to what the former Lord Chancellor and Home Secretary said, that the sovereignty of Parliament has nothing at all to do with the Human Rights Act. He clearly does not understand what the sovereignty of Parliament is, or the enactments and case law involved. Quite clearly, the statute itself was not intended to lead to circumstances in which illegal migration is not prevented but almost encouraged, to the profound detriment of practical control over our borders.
I tabled an amendment to the Nationality and Borders Bill in December 2021 that had a clearly expressed “notwithstanding” formula. The amendment was strongly supported by Conservative Back Benchers and would have greatly helped to ensure the flights to Rwanda. With this new Bill, we have a further opportunity to tackle the problem of illegal migration. This Bill is necessary because of the smuggling and criminality of the unscrupulous gangs that exploit migrants and cause death.
In addition, because of the consequences of the failure to control illegal migration, we have endured monumental expenditure of up to £6 million a day, disruption to local services, hotels, health services and social housing, and instances of criminality. It does no good to perpetuate a situation with such adverse consequences for our constituents and our voters, and the Government understand that.
Indeed, I am confident that, when the Bill is enacted, the courts will apply it and court procedures will be adapted accordingly, provided the intention of the words used in the Bill, as enacted, are clear, express and unambiguous, as I propose. It is not appropriate for the current situation to continue to the point where, as I have indicated in the past, the number of illegal migrants is growing exponentially.
My amendments, and further discussion with the Government, are conducive to resolving the issues properly, fairly and reasonably—with an appeal system and other measures, as I shall mention in a moment, and in line with domestic and international law—and to removing the unintended and unexpected legal consequences of the Human Rights Act and the courts’ rules in respect of illegal migration in small boats, which together have led to the breaching of our borders on an unprecedented scale. That is emphatically not in our national interest, and it was not anticipated when the Human Rights Act was originally passed. My amendment would ensure that what Parliament intends actually happens.
Stephen Kinnock (Aberavon) (Lab)
I start by reiterating the point that I made in closing the debate on Second Reading: we on the Labour Benches are absolutely clear that we must bring the dangerous channel crossings to an end, and that we must destroy the criminal activity of the people smugglers. Indeed, Labour has a five-point plan to do just that. It is a plan based on common sense, hard graft and quiet diplomacy, as opposed to the headline-chasing gimmicks that are the stock in trade of those on the Government Benches.
Our opposition to the Bill—and our introduction of the amendments on which I am about to speak—is based on the fact that it will serve only to make it harder for the Government to achieve their stated aims. The central premise of the Bill is that it will act as a deterrent by banning the right to asylum and replacing it with blanket detention and removals policies. For a deterrent to be effective, it must be credible, and the Bill fails the credibility test because there is nowhere near enough capacity to detain asylum seekers in the UK, there is no returns agreement with the EU, and the Rwandan Government are agreeing to commit to take only thousands at some unspecified future date. That means the boats will keep on coming, the backlog will keep on growing, and the hotels will keep on filling, all of which leaves the House in the somewhat surreal position of debating a Bill that everyone knows is not really worth the paper on which it is written, and yet we must all go through the motions and pretend that we are participating in a meaningful process.
Nevertheless, I assure you, Dame Rosie, and the entire House that Labour Members will do all that we can to amend and improve the Bill in a concerted effort to limit the damage that it will inflict on the international reputation of our country, on the cohesion of our communities, and on the health and wellbeing of those who have come to our country in the hope of sanctuary from the violence and persecution from which they are fleeing.
Sir William Cash
Is the hon. Gentleman implying that Labour Members will not oppose the Bill any further on these matters, because they want to improve and enact it, but no more?
Stephen Kinnock
I think I was crystal clear that we oppose the Bill. It will be entirely counterproductive and make all the challenges that we face worse. Labour Members believe in supporting legislation that addresses the substance of an issue rather than one that chases tabloid headlines.
The competition for the most absurd aspect of this entire process is pretty stiff, but the programme motion is a strong contender. Ministers in their infinite wisdom decided that we should debate the second half of the Bill on the first day, and the first half on the second day. Whatever the rationale for that, I suppose that there is something strangely appropriate about the idea that we should consider the Bill back to front given that so many of its provisions put the cart before the horse.
The other point that I wish to make at the outset is that the refusal of the Home Office to publish a full set of impact assessments ahead of Second Reading—and they still have not been published—is completely unacceptable. Surely, as a matter of basic respect for this House and for our constituents, Members should be entitled to expect to be given the opportunity to have an informed debate, based on comprehensive assessments of the impact that the Government expect their proposals to have.
The fact is that the Government’s entire handling of this shambles of a Bill has been utterly chaotic, while Ministers’ statements have generally been incoherent, inconsistent or simply incomprehensible. I spoke earlier in my point of order about the Government’s conjuring up statistics to suit their needs that have now been rubbished by the statistics watchdog. However, we are where we are, and on that basis I will move on to consider some of the substantive issues.
It is with regret that, given the time available, I will have to limit my remarks to our own Front-Bench amendments tabled on behalf of the Opposition. I begin with our new clause 25, which sets out how Labour would approach these matters if we were in government, in order to deliver meaningful progress on a range of issues, from border security, to authorised safe routes, as part of a comprehensive strategy to stop the crossings and keep people safe, in line with our international commitments. In particular, new clause 25 calls for a multifaceted overarching strategy for securing the agreements with international partners that our country urgently needs.
Joanna Cherry
I will give way in a moment. I just want to develop my point and then I will give way to the hon. Gentleman, because I know that we have been arguing about this for years. This is an important point to make.
It is sometimes assumed that this Parliament just took on the character of the English constitution when it unified with the Scottish Parliament. Perhaps it is worth considering that there are other notions of sovereignty. In my country, the people are sovereign, not the Parliament, and they can choose to share their sovereignty with, for example, the Edinburgh Parliament, this Parliament and other international institutions. The endless obsessing about the sovereignty of Parliament is not particularly helpful. Where I really disagree with the hon. Gentleman is in this: I think that the Human Rights Act was an elegant solution to fulfilling our rights under the convention, while also respecting the sovereignty of this Parliament.
Sir William Cash
I wish to reply to the hon. and learned Lady by saying that the sovereignty of the United Kingdom Parliament rests with the United Kingdom Parliament. I know that she would quite like to leave it, but, on the other hand, she is bound by it, and the European Union (Withdrawal Agreement) Act 2020 specifies quite clearly that the sovereignty is guaranteed.
Joanna Cherry
The Union between Scotland and England was freely entered into. I know that some people are under the misapprehension that now it is some sort of “Hotel California” situation, where we can check out but cannot leave, but that is a fundamental misunderstanding of the nature of the Union. The views that I am expounding about sovereignty are not just my eccentric views, but the views that have been expounded by many well-respected Scottish jurists, as the hon. Gentleman knows. It is worthwhile sometimes to take a step back. With all due respect to some of my English friends, they get a bit hysterical about parliamentary sovereignty. Sovereignty can be shared and, ultimately, I believe that sovereignty lies with the people. I will just leave it at that.
Laura Farris
I will in a moment; I am going to make my points.
On the first element of amendment 132, which seeks to exclude the operation of the Human Rights Act, the only realistic basis for someone who arrived via small boat to challenge their removal to a safe third country under the Human Rights Act would be either article 2 or article 3 of the European convention—the right to life, or not to have one’s life endangered, and the right to freedom from torture.
Laura Farris
I am sorry; I will come to my hon. Friend in a moment.
My right hon. Friend the Member for Middlesbrough South and East Cleveland and my hon. Friends the Members for Devizes and for Stoke-on-Trent North (Jonathan Gullis) wrote an article in “Conservative Home” today in which they said and endorsed:
“Individuals would not be removed if they are medically unfit to fly, or will face persecution in the destination country.”
That is the non-refoulement principle, which is at the heart of the refugee convention. One thing that shows the lack of expertise in this area is that the same principle ripples through the common law, the refugee convention and the European convention of human rights; it applies across the board. It is even set out in terms in this legislation. Therefore, it would be pointless to derogate from the Human Rights Act on that question, because the principle that protects people from persecution is so embedded in any event.
Sir William Cash
I just wanted to point out, in case other Members of the House do not know, that Professor Ekins is a professor of law at Oxford University and Sir Stephen Laws is a former first parliamentary counsel. I think those are rather good credentials compared with the views of what I would describe as ordinary barristers.
Laura Farris
No disrespect is intended, but it is clear that they are not frequently in court arguing these cases, because if they were, they would know the way the law ran.
The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
Order. I am anticipating four Divisions and I will try to assist the House as to when they are likely to happen. First, we go to Sir William Cash.
Sir William Cash
In the light of the firm and clear assurance given by my right hon. Friend the Minister in relation to my amendments, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 76, in clause 37, page 40, line 8, leave out from “means” to the end of line 12 and insert:
“(a) a protection claim, (b) a human rights claim, or (c) a claim to be a victim of slavery or a victim of human trafficking.”—(Alison Thewliss.)
Question put, That the amendment be made.