Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the right reverend Prelate and the noble and learned Lord, Lord Hope of Craighead, for bringing back these amendments. I am also grateful to the Home Office for finally publishing its child rights impact assessment yesterday afternoon although, I must say, getting it has been like pulling teeth.

However, on age assessment and other children’s rights issues, it reads more like an attempt at post hoc justification than a serious analysis of the implications for children’s rights. The initial reaction from the children’s sector is damning. That it continues to use misleading statistics on age assessment that were challenged in Committee is disappointing, to put it mildly.

In Committee, I asked for an explanation of

“why the Government have ignored the very clear advice of their own advisory committee on the question of consent”,

raised by Amendment 161. The Minister’s response was:

“Of course we consider the advice”,—[Official Report, 12/6/23; cols. 1806-16.]


but the fact is that Clause 57 represents a rejection of that advice. Will the Minister explain why, having considered the expert advice, the Government then rejected it? In effect, their approach is that of guilty until proven innocent but, as we have heard, Clause 56 will make proving innocence—or, more accurately, that one is a child—much more difficult than now in what is increasingly a culture of disbelief.

The limitations on appeal and JR rights are, as the JCHR points out and despite what the CRIA says, clearly not in any child’s best interests. Likewise, the UN Committee on the Rights of the Child has expressed concern and recommended that age-disputed children should not be removed to a third country. I asked in Committee what the Government’s response is, but received no reply; nor was it explained what steps would be taken to ensure the following, in the words of the supplementary ECHR memorandum, echoed in the CRIA:

“The appropriate support and facilities will need to be in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”.


It is difficult to believe that effective participation would be possible, even with support. We need, at the very least, to know what that support would be. Even if the child managed to challenge the decision successfully from abroad, they could then order only a reassessment. How would that be meaningfully carried out if the child is no longer in the UK? If the child were then reassessed as a child, would they be moved back to the UK?

I have a final question. The Nationality and Borders Act provided for a new statutory right of appeal to the First-tier Tribunal to replace judicial review as the means to challenge age assessment under that Act, so that it

“can be resolved as swiftly as possible”

and

“to ensure that genuine children don’t slip through the net and are classed as adults”.

Over a year on, this section has not been commenced. Can the Minister say why and set out the Government’s timetable for doing so, or has it been jettisoned before it has even come into force?

[Viscount Hailsham (Con)]

My Lords, I will speak briefly in support of Amendment 156A, although I regret the limited nature of the appeal contemplated by that amendment. I very much welcome Amendment 158A, in the name of the noble and learned Lord, Lord Hope.

As a matter of principle, I am very much in favour of giving individuals the right of appeal although, as I said when I intervened on the right reverend Prelate, I fear that his amendment provides for a more limited right of appeal than I would wish.

A decision on the age of an individual is critical in determining a person’s status under the legislation. I am concerned that, in many instances, the original decision about age will be made in a somewhat perfunctory manner. I imagine that immigration officers may get rather impatient and make rather perfunctory decisions. At the end of the day, age is a matter of evidence and I cannot find any persuasive reason why the original position on age should not be challenged. In my view, the right of appeal should extend to appeals based on the ground that the relevant authority had made a mistake of fact. That is what the noble and learned Lord seeks to achieve in Amendment 158A. However, if I have correctly understood the amendment and its relation to the Bill, the grounds of appeal are limited to those set out in Clause 56(5) of the Bill as it stands. The grounds specified there are essentially judicial review grounds—for example, that there was some procedural unfairness, or the ground of irrationality—and appeals based on fact are expressly excluded. I regard that exclusion as highly regrettable.

To meet some of the anxieties that I fear will be expressed by the Minister regarding my comments and the amendments, I make this point as well: the rights of appeal could be abused, and I would therefore like the burden of establishing the appeal to be on the appellant. It must be for them to satisfy the relevant appellate body that the grounds of appeal are made out. That may in fact be the existing law and practice—it has been such a long time since I practised in that field of law that I simply do not know. If it is not, it should be, and it would meet many of the anxieties likely to be expressed on the government Benches.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

64: Clause 10, page 17, line 30, leave out subsection (10)
Member's explanatory statement
This is a technical amendment that is consequent on the amendment in my name to Clause 10, page 17, line 32. This is because section 10(10) as currently in the Bill is consistent with the exclusion of pregnant women from section 60 protection, and should therefore be removed as a consequence of the other amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I move Amendment 64 and will introduce Amendment 65. One is consequential to the other so I will take them together. I thank the right reverend Prelate the Bishop of Gloucester and the noble Baronesses, Lady Sugg and Lady Gohir, for their invaluable support, and Women for Refugee Women for all its work on the amendments.

The amendments do no more than restore the status quo ante by limiting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This aim is supported by the JCHR, Children’s Commissioner and many organisations.

The existing time limit represented a compromise put forward by the then Home Secretary Theresa May in response to your Lordships’ House voting time and again for the absolute exclusion of pregnant women from detention, as recommended in the government-commissioned review by Stephen Shaw, former Prisons and Probation Ombudsman. Shaw based his recommendation on what he considered to be the incontrovertible evidence of detention’s deleterious effects on the health of pregnant women and their unborn children. His verdict was referenced in a recent letter to the Times from, among others, the CEO of the Royal College of Midwives and the president of the Royal College of Obstetricians and Gynaecologists, calling on us to oppose the removal of the detention limits.

I still await an answer to the question I posed in Committee, citing an unanswered letter from the Independent Advisory Panel on Deaths in Custody to the Home Secretary. Has the Home Office

“carried out a full assessment of the risks linked to the indefinite detention of pregnant women”?—[Official Report, 7/6/23; col. 1494.]

Given that the limits on detention for pregnant women were introduced only seven years ago, and it has been admitted that very few have come over in small boats, there must surely be strong grounds for this change in policy. However, as the noble Baroness, Lady Sugg, exposed so skilfully in Committee, we have been given the flimsiest of justifications, lacking any evidential base. For example, in Committee the Minister declared that he was

“happy to repeat … that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes”.—[Official Report, 7/6/23; col. 1504.]

Could the Minister explain what the Government have in mind here? Are they suggesting that women might deliberately get pregnant to avoid unlimited detention or that people smugglers will be scouring refugee camps for pregnant women?

To be fair to the Minister, he tried to persuade us that pregnant women would be treated well on a case-by-case basis. But let us remember what Theresa May said in 2016:

“This new safeguard will ensure that detention for pregnant women will be used as a last resort and for very short periods”.—[Official Report, Commons, 18/4/16; col. 679WS.]


For a safeguard to be effective, it needs the backing of law. Discretionary case-by-case consideration is simply not enough to ensure the protection of women in very vulnerable circumstances. We can see this from what was happening before the time limit was introduced. Previous Home Office guidance stated:

“Pregnant women should not normally be detained”.


However, under this guidance, nearly 100 pregnant women were detained in 2014, with one-third held for over a month and four held for between three and six months. The gulf between policy and practice has been closed only with the implementation of the statutory time limit.

The Minister also insisted that pregnant women will be protected through categorisation as adults at risk level 3. Yet during the passage of the 2016 Act, the Government ultimately recognised that this approach provided insufficient safeguards. Why are they now arguing the opposite? The Minister further tried to reassure us by pointing out that

“it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days”

or that

“a writ of habeas corpus”—

which, as pointed out in Committee, is very limited in its application—could

“be made at any point”.—[Official Report, 7/6/23; col. 1505.]

But these are women who are likely to be very stressed and may already be traumatised by what they have been through, with damaging effects on their unborn baby. Twenty-eight days in detention is a long time, particularly in the context of a pregnancy.

How realistic is it to expect them to have to engage with the legal system for protection that they receive automatically now? If they did so, why would the Government want to spend time and money on what should be unnecessary legal challenges? This is all in the context of what the JCHR has described as a severe restriction on judicial supervision.

When we debated a similar amendment in Committee, not only did all those who spoke give it unequivocal support but I was aware of a number of noble Lords sitting on the Government Benches and the Cross Benches who were supporting the amendment in silent solidarity. That was quite something, given that it was well past midnight. While I feel passionately about the amendment, it is a very small cog in the wider wheel of the Bill. It is one which the Government could easily concede without undermining the Bill’s objectives, as much as I disagree with them. I very much hope that the Minister will remember what is at stake for pregnant women and their unborn children and will do the right thing today. I beg to move.

[The Lord Bishop of Gloucester]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who expertly outlined why the amendment is needed.

I will not repeat all the points made, but this is an issue of dignity for a highly vulnerable group. I will highlight one or two things that have been said. There is no evidence to suggest that the current 72-hour time limit on their detentions resulted in lots of pregnant women making the crossing. The Government have previously conceded that the adults at risk policy would not adequately safeguard pregnant women, and, in response, the 72-hour limit was brought in. We have research from prior to the introduction of this time limit that highlighted the inadequate healthcare for detained pregnant women. It is hard to believe that any healthcare arrangements would therefore relieve the stress of detention and the damaging impact on both a pregnant woman and her unborn baby.

We have already heard from the noble Baroness, Lady Lister, on the number of medical organisations and people who are opposed to removing the 72-hour limit. I join with them by strongly supporting this amendment, and I urge noble Lords to do likewise.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, as we have heard, with these amendments we return to the issue of detention time limits in relation to pregnant women. As I explained last Wednesday, holding people in detention is necessary to ensure that they are successfully removed from the United Kingdom under the scheme provided for in the Bill, which is designed to operate quickly and fairly.

However, our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants back to their home country or to a safe third country will send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people-smuggling gangs facilitating their passage across the channel in small boats on the false promise of starting a new life in the UK.

Under the Bill, detention is not automatic. The Bill confers powers to detain, and the appropriateness of detention will be considered on a case-by-case basis. As regards pregnant women, we expect that anyone who is in the later stages of pregnancy and who cannot be removed in the short term will not be detained but would instead be released on immigration bail.

For women who are detained in the earlier stages of pregnancy, we already operate our adults at risk policy, where pregnant women are recognised as a particular vulnerable group. In all cases in which a pregnant woman is detained for removal, the fact of her pregnancy will automatically be regarded as amounting to level 3 evidence under the adults at risk policy, and thus the pregnancy will be afforded significant weight when assessing the risk of harm in continued detention. This means a woman known to be pregnant should be detained only where the immigration control factors that apply in her case outweigh the evidence of her vulnerability—in this case, the evidence of her pregnancy. Such control factors at level 3 are where removal has been set for a date in the immediate future or where there are public protection concerns.

The detention of a pregnant woman must be reviewed promptly if there is any change in circumstances, especially if related to her pregnancy or to her welfare more generally. Examples of specific welfare considerations that may need to be taken into account include the stage of pregnancy, whether there have been complications in the pregnancy, any known appointments for scans, care or treatment, and whether particular arrangements may be needed to facilitate safe removal. While in detention, pregnant women will receive appropriate healthcare.

I assure the House that, as now, the enforced removal of a pregnant woman must be pursued only where it can be achieved safely and there is no suggestion that her baby is due before the planned removal date. Additionally, pregnant women will not be removed from the UK if they are not fit to travel based on medical assessments.

Given the safeguards we have already built into the arrangements for the detention of pregnant women, the Government remain of the view that these amendments, however well-meaning, are not necessary. I am very grateful to those who have spoken in this debate for outlining their—I am sure—well-held concerns and for their thoughtful contributions. However, in light of what I have just said, I ask the noble Baroness, Lady Lister, to withdraw her Amendment 64. If, however, she is minded to test the opinion of the House, I invite noble Lords to reject the amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am very grateful to everyone who spoke, and to the Minister as well. Unfortunately, I do not think that he really heard, or listened to, the arguments put. He says he does not think that the amendment is necessary. I am sorry, but countless health organisations, Members of this House and many others think that it is. It is not enough simply to give us assurances here. I have no choice but to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

65: Clause 10, page 17, line 32, leave out from “paragraph” to end of line 33 and insert “(a) of the definition of “relevant detention power”, after “paragraph 16(2)” insert “or (2C)”.”
Member’s explanatory statement
The effect of this amendment is that section 60 of the Immigration Act 2016 (which limits the detention of pregnant women normally to 72 hours under existing powers of immigration detention) will apply to the new powers of detention created by Clause 10 of the Bill.

--- Later in debate ---

I could make more points, but I will rest and simply say that, although I do not intend to press these amendments to a vote, I hope to hear some consolation and comfort from the Minister. The number of people involved in these circumstances is likely to be very small and the deterrent effect of the Bill is not diluted by this. The conflation of registration and naturalisation, to which the Home Office adheres, is exactly the sort of sloppy thinking that underlay the Windrush scandal. There will potentially be scandals, even if individually rather that in great numbers, as a result of this. I urge my noble friend to take this opportunity to think again and to remove registration from the deterrent elements of the Bill.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Lord, Lord Moylan, for bringing back these amendments, but I am disappointed that he had to do so given the strong case that he made for them in Committee. They are important from the perspective of both citizenship and the rights of children. I once again declare my interest as a patron of the Project for the Registration of Children as British Citizens.

From reading the exchanges in Committee, it seemed to me that the Minister was not really listening to the arguments put but simply responded by trying to justify what, in our view, is unjustifiable. Once again, children are the main victims, as highlighted by the noble Baroness, Lady Brinton, whose amendments I also support. As the noble Lord, Lord Moylan, said, it was welcome that the Minister, when challenged on this point, did not impute any culpability to children. However, the fact remains that children are being punished for the actions of a parent, which is contrary to the refugee and other conventions, as has been pointed out by the UNHCR, JCHR and the Northern Ireland Human Rights Commission, among others. This is yet another instance of where we need to see the child rights impact assessment yet, despite the Government Chief Whip promising it for today “if possible”, there is still no sign of it.

It is not an indicator of strength to refuse to countenance any amendments in pursuit of the mythical god of deterrence, regardless of the force of the argument. The main losers are, again, children, whose best interests are being ignored and trampled on. I hope the Minister will think again today.

[Lord Murray of Blidworth (Con)]

My Lords, as we have heard, these amendments relate to the bans on re-entry, settlement and citizenship which are a key part of the deterrent effect of the Bill and send an important message that, if you enter the country illegally, you will not be able to build a life here.

Amendments 114 and 116, in the name of the noble Baroness, Lady Ludford, and spoken to so eloquently by the noble Baroness, Lady Brinton, seek to remove from the scope of the bans those who meet the duty in Clause 2 but who are under the age of 18.

As the Bill is currently constructed, anyone, including children, who meets the criteria of the duty also becomes subject to permanent bans on obtaining leave to remain, settlement, citizenship and re-entry. The application of the bans is irrespective of whether the child was complicit in the act of entering illegally. I hope that addresses the points noble Lords have raised in that regard.

The inclusion of children is to ensure that there is no perverse incentive for parents or others to put children in harm’s way by forcing them on to small boats or other dangerous methods in an attempt to gain entry to the UK. We want to send a clear message that children cannot be exploited and forced into making dangerous attempts to gain entry into the UK for the purpose of starting a new life here. Instead, the only way to come to the UK for protection will be through safe and legal routes. This will take the power out of the hands of criminal gangs and protect vulnerable people, including children.

--- Later in debate ---

I will answer the question asked by the noble Baroness, Lady Lister. I regret that the child rights impact assessment is not available today, but I can confirm that it will be published tomorrow.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Government Chief Whip promised that it would be published well before Report concludes. Does the Minister really think that tomorrow is well before Report concludes on Wednesday?

[Lord Murray of Blidworth (Con)]

Yes.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak briefly in support of the amendments tabled by the noble Baroness, Lady Mobarik.

First, on the principle of third time lucky, for the third time today I ask where the child rights impact assessment is. By my reckoning, nearly half the groupings on Report concern children, and yet we have not been given the child rights impact assessment that we need to assess these amendments.

To return to these amendments, it is worth recalling what the Conservative Immigration Minister, Damian Green, said in his Written Statement in December 2010, following the announcement of the policy to limit child detention:

“This Government believe that children should not be detained in our immigration system … This new system will strengthen families’ trust and confidence in the immigration system, maintain public confidence in the Government’s ability to control the UK’s borders and ensure that families with children are treated humanely and in a way that meets our international obligations and our statutory duties in relation to children’s safety and welfare”.—[Official Report, Commons, 16/12/10; cols. 125-26WS.]


He had previously explained that:

“We want to replace the current system with something that ensures that families with no right to be in this country return in a more dignified manner”.—[Official Report, Commons, 17/6/10; col. 211WH.]


We have still not heard a plausible justification for why the Government are going back on their own policy. The deterrence argument is all the more unconvincing in the light of the impact assessment.

In Committee, I asked what steps would be taken to ensure that children are detained for as short a period as possible, as we have been assured of that. There was no reply. I asked about the estimate of the numbers of children in detention. There was no reply, and nothing, as far as I could see, in the impact assessment.

Yesterday, I received an open letter from 12 young people who arrived in the UK as unaccompanied children and child trafficking victims and who comprise a youth advisory group for ECPAT UK. They expressed their concerns about the Bill’s impact on children who come after them. They asked us to think what it would be like for us as children, or for our own children, and to ensure that children are treated as children first.

In a similar vein, I quoted earlier from a Barnardo’s report which set out ways to give a warm welcome and hope to child asylum seekers. Locking these children up in detention is the very antithesis of this. Please can we vote on Monday to treat children as children and give them a modicum of comfort and hope?

[Baroness Sugg (Con)]

My Lords, I rise briefly to support my noble friend’s Amendment 51 on maintaining the current protections for unaccompanied children. The commitment that the Government would set out a new timescale under which genuine children may be detained—made by the Immigration Minister in the other place and my noble friend in Committee—was very welcome. I hope that my noble friend the Minister will at this point on Report be in a position to provide further detail. If not, the other place will want the opportunity to discuss the matter further with the Government.

I fully acknowledge the verbal reassurances that we have been given by the Government on their ambition to limit the use of powers given by this Bill in relation to the detention of children, which are very welcome. However, accepting my noble friend’s amendment, or bringing forward one of their own in relation to the timescale for the detention of children, will really provide the reassurance that we are looking for.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My Lords, with these amendments we return to the issue of detention time limits in relation to unaccompanied children and the limiting of places of detention. Amendments 49, 53, 56 and 61, tabled by the noble Lord, Lord German, limit the “place of detention” in the Bill to those that are presently authorised for detention. We detain persons for immigration purposes only in places that are listed in the Immigration (Places of Detention) Direction 2021. As I set out in Committee, following Royal Assent we will update the direction in line with the new detention powers.

For more than 50 years we have operated a framework where the Home Secretary sets out the places where persons may be detained for immigration purposes in an administrative direction. The provisions in paragraph 18 of Schedule 2 to the Immigration Act 1971 have operated perfectly satisfactorily. I see no case now to change to a position whereby places of detention are to be set out in primary legislation.

I assure noble Lords that the welfare of detained individuals is of paramount importance. Any place of detention must be suitable for the persons we are detaining there, and adequate provision will be made for the safety and welfare of the detained person. The Detention Centre Rules 2001 make provision for the regulation and management of immigration removal centres. These rules set out:

“The purpose of detention centres shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment”.


The rules also set out the specific requirements which an immigration removal centre must comply with, including, but not limited to, provision for maintenance, general security, healthcare, access and welfare. These rules will continue to apply to detention in immigration removal centres under this Bill. I hope that is a complete answer to the points raised by the noble Lord, Lord German. I add that, as their name suggests, these rules apply to detention accommodation, not to non-detained accommodation such as the Bibby Stockholm barge, from which of course people may come and go.

Moreover, we already have robust statutory oversight of immigration detention, including inspection by the Inspectorate of Prisons and independent monitoring boards at every detention facility, and effective safeguards within the detention process which, I would suggest, are efficient.

I turn to the issue of detention time limits. Amendments 51, 57, 59 and 63, tabled by my noble friend Lady Mobarik, seek to retain the existing time limits on the detention of children. It is an unavoidable fact that holding people in detention is necessary to ensure that they can successfully be removed from the United Kingdom under the scheme provided for in the Bill, which is designed to operate quickly and fairly. However, our aim is to ensure that no one is held in detention for any longer than is absolutely necessary to effect their removal.

The duty on the Home Secretary to make arrangements for the removal of all illegal entrants back to their home country or to a safe third country will send a clear message that vulnerable individuals, including children, cannot be exploited by the people smugglers facilitating their passage across the channel in small boats on the false promise of starting a new life in the United Kingdom. The detention powers are an integral part of ensuring the success of this Bill, both as a deterrent and as a means of ensuring that the Home Secretary can comply with the duty to make arrangements for removal.

We must not create incentives for people-smuggling gangs to target children or provide opportunities for people to exploit any loopholes. Children may be put at further risk by adults seeking to pass off unaccompanied children as their own. I know this is not my noble friend’s intention, but that is what these amendments would, perversely, achieve.

Under the Bill, detention is not automatic. The Bill provides powers to detain, and the appropriateness of detention will be considered on a case-by-case basis. Moreover, recognising their vulnerability, I remind my noble friend that the Bill makes particular provision for the detention of unaccompanied children.

It is important to recognise that unaccompanied children would be detained only for the purposes of removal in a minority of cases. They are not subject to the duty to remove, and our expectation is that they will generally be transferred to the care of a local authority until they turn 18. Where they are to be detained, the powers in the Bill may be exercised in respect of unaccompanied children only in circumstances to be prescribed in regulations, as we have already discussed during today’s debate. This would be, for example, for the purposes of an initial examination or, where necessary, in the limited cases where they are to be removed to effect a reunion with the child’s parent or to return them to a safe country of origin. As we have already debated, such regulations are now to be subject to the affirmative procedure, as a result of the government amendments to Clause 10.

The Bill also includes a power to place a time limit on the detention of unaccompanied children where that detention is for the purposes of removal. We will keep the operation of these provisions under review, and should it be necessary to introduce a time limit, we have the means to do so.

Given the safeguards we have already built into the arrangements for the detention of unaccompanied children, the Government remain of the view that these amendments, however well-meaning, are not necessary. I therefore ask my noble friend not to press her Amendment 51. However, if she is minded to test the opinion of the House, I ask noble Lords, if and when the Division occurs, to reject the amendment.

Ahead of that, I hope that I have been able to satisfy the noble Lord, Lord German, and that he will be content to withdraw his Amendment 49.

[Baroness Lister of Burtersett (Lab)]

Before the Minister sits down, will he please answer my question, which I put for the fourth time, at the risk of being extremely boring and sounding like a broken record: where is the child rights impact assessment? We have nearly finished the first of three days on Report, and we still do not have it.

[Lord Murray of Blidworth (Con)]

As I said yesterday, the child rights impact assessment will be provided in due course.

Asylum: Channel Crossings

Baroness Lister of Burtersett Excerpts

Tuesday 27th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

The noble Lord will not be surprised to learn that I disagree with him. The purpose of the Illegal Migration Bill is to deter dangerous crossings of the channel and other methods of illegal entry. This is an entirely responsible and appropriate policy step.

[Baroness Lister of Burtersett (Lab)]

My Lords, following the question from my noble friend Lord Dubs, can the Minister explain why we still do not have a child rights impact assessment, so that we can assess the Government’s argument that the Bill is in the best interests of children? All organisations, including children’s commissioner, believe that it is not.

[Lord Murray of Blidworth (Con)]

I am afraid that I cannot provide the noble Baroness with an update on the child rights impact assessment, but I am sure that it will be provided.

Illegal Migration Bill: Economic Impact Assessment

Baroness Lister of Burtersett Excerpts

Tuesday 27th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

As I made clear during its earlier stages, the Bill introduces a new legal regime, and it is the Government’s view that it is consistent with our international obligations, which we always strive to meet. It is right that the facts in this impact assessment, and in the overall assessment of the situation made by the Government, are in favour of this legislation.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Statement said that the Bill will have a deterrent effect and that there was strong evidence of that effect. Could the Minister therefore explain why the impact assessment says that

“it is not possible to estimate with precision the level of deterrence that the Bill might achieve”?

It refers also to:

“The academic consensus … that there is little to no evidence suggesting”


such a deterrent effect.

[Lord Murray of Blidworth (Con)]

I refer the noble Baroness to the answer I gave in relation to the evidence from Australia, and, in particular, to paragraph 38 of the impact assessment.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Stroud (Con)]

My Lords, in speaking to Amendment 128C in my name, I shall also lend support to many of the amendments in this group, particularly Amendment 128B in the name of the right reverend Prelate, which he has just outlined and to which I have added my name.

Amendment 128C is very simple. It places a duty on the Government to do what they say they want to do and are going to do anyway. This amendment imposes a duty on the Home Secretary to create additional—I emphasise “additional”—safe and legal routes by 31 January 2024, six months after the anticipated passage of the Bill, under which refugees and others in need of international protection may come to the UK lawfully from abroad.

The whole purpose of the Illegal Migration Bill is to shut down unsafe and illegal routes and its whole narrative is to ensure that genuine asylum seekers and refugees can then come via safe and legal routes. If that is the motive for the Bill, as the Government have repeatedly communicated, this amendment will not be difficult for the Minister to accept.

I have been asked why I believe it necessary to establish a duty on the Government to create these routes: why is it not enough for the Government just to be required to lay before Parliament a report detailing the safe and legal routes that they intend to introduce? There are pages of the Bill weighted towards eliminating illegal and unsafe routes, but only a few sentences indicating an intention to create legal and safe routes—and then only to lay a report before Parliament detailing the Government’s intention to create safe and legal routes.

This is simply not certain enough. If the Government are genuinely seeking to establish safe and legal routes, they would do so with the same weight of legislation as is committed to the abolishing of unsafe and illegal routes. I have the greatest respect for the character and integrity of my noble friend the Minister but, with the all the best will in the world, many assurances have been given and many reports written that have never delivered on the well-meaning and well-intentioned promises of Ministers. For this House to be certain that the abolishing of unsafe and illegal routes will genuinely lead to the creation of safe and legal routes, a legal duty set out in the Bill is what is required to balance the Bill and make good on the Government’s intent.

When announcing the Bill, the Home Secretary told the other place:

“Having safe and legal routes, capped and legitimised through a decision by Parliament, is the right way to support people seeking refuge in this country”.—[Official Report, Commons, 7/3/23; col. 170.]


This amendment would simply create a duty to have these safe and legal routes, capped and legitimised through a decision by Parliament, as the Home Secretary so eloquently laid out. Indeed, in December the Prime Minister announced that through the Illegal Migration Bill:

“The only way to come to the UK for asylum will be through safe and legal routes”,


and he indicated that that would be through the Illegal Migration Bill. He promised that

“as we get a grip on illegal migration, we will create more of those routes”.—[Official Report, Commons, 13/12/22; col. 888.]

The Government assure us that the Bill will swiftly get a grip on illegal migration so this amendment provides assurance that the Government will deliver on the Prime Minister’s stated intent of creating, through the Bill, safe and legal routes. Vague promises for establishing safe and legal routes towards the end of 2024 or commitments to establish safe routes after we have stopped the boats are not sufficient. A duty is required in the Bill that the Home Secretary must, by 31 January 2024, make regulations specifying additional safe and legal routes.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am very pleased to follow the noble Baroness and the right reverend Prelate. Amendment 130 is in my name and those of the noble Lords, Lord Carlile, Lord Kerr and Lord Dubs, to whom I am very grateful for their support.

First, I must apologise for inadvertently misleading your Lordships’ Committee in the early hours of Tuesday morning, when referring to age-assessment data from Full Fact, at col. 1805. Although, in the absence of transparent published data there remains a big question mark over the Immigration Minister’s claims about the percentage of adult males pretending to be children, and similar ministerial claims, the Full Fact data were not in fact comparable and had been misinterpreted by a journalist. Clearly, I should have checked my facts rather than relying on a newspaper report. I apologise for that.

The amendment provides for a visa scheme that would allow those with viable asylum claims who meet specified conditions to travel safely and legally to the UK to make such claims. Before providing a more detailed explanation, I emphasise that the proposal is based on the premise that unites us, so clearly articulated by the right reverend Prelate: a desire to stop unsafe travel to the UK, be it by boat or other routes, such as hidden unsafely in a lorry. As such, it would damage significantly the people smugglers’ business model—again, a goal that unites us. Where we differ from the Government is in our belief that the way to do this is not by, in effect, ending the right to claim asylum in the UK. There is a clear distinction between deterring people from making dangerous journeys and stopping them claiming asylum.

Of course, safe and legal routes are part of the answer, and here I support in particular Amendment 128B, to which I have added my name, and Amendment 128C. Personally, I am unhappy with the idea of a fixed cap on the numbers entitled to enter on safe and legal routes if it is what the JCHR describes as a “hard” cap. The right reverend Prelate makes an important point in excluding the listed schemes from the cap, on the grounds that these schemes are not currently capped. I also support the Children’s Commissioner’s recommendation that children should be excluded from the cap. I would be grateful to know the Government’s response to that. It should also be noted that she emphasises that

“safe and legal routes must be agreed in parallel to the passage of the Bill”,

which is relevant to Amendment 128C.

But however generous the safe and legal routes option is, the UNHCR makes it clear that it is not a substitute for the right to claim asylum under the refugee convention. As my honourable friend Olivia Blake said when she spoke to a similar amendment in the Commons,

“as it stands … there is no way for the many thousands of people who have already started their journey to get on to a safe and legal route … You cannot reduce the number of boats if the people who are going to try to make that journey are already on their journey and have no alternatives to come to the UK”.—[Official Report, Commons, 27/3/23; col. 754.]

This proposal offers a means of reducing significantly the numbers arriving by boat or other irregular and unsafe means. It does so by retaining the right to claim asylum, but in a way that, in effect, opens up another safe and legal route. I thank Care4Calais and the PCSU —two organisations working on the front line—for all the work they have put into it. When a similar amendment was proposed in the Commons, the Minister did not grace it with a response, so we are giving the Government an opportunity to do so today.

The proposal builds on the Ukraine model of safe passage, for which, for all its difficulties, the Government can take credit. I hope that they will learn and apply lessons to other groups with a strong case. It is no coincidence that no Ukrainian has, to my knowledge, crossed on a small boat or used people smugglers. Where the proposal differs from the Ukrainian scheme is that, on arrival in the UK, applicants holding a safe passage visa would enter the normal UK asylum process —speeded up considerably, I hope—and if, at that stage, they were found not to be eligible for asylum, they would not be allowed to stay in the UK.

A safe passage visa would typically be claimed online, as in the Ukrainian scheme, although provision would be made for applications also to be made at existing visa centres. I am assured that NGOs would undoubtedly help those with literacy problems. To qualify for a safe passage visa, a person would have to be in the EU—although, if successful, it could be expanded at a later date—not be a national of the EU, Liechtenstein, Norway or Switzerland, and have a viable asylum claim. The viability of the claim would be determined in a similar way to the initial screening interview that currently takes place at the first step in the asylum process in the UK. This would ensure that clearly unfounded claims would be turned down at this point. Successful applicants would be sent an electronic letter that they could use to enter the UK lawfully. On arrival, they would be required to visit a UK centre to provide biometric data.

An initial fear that I had was that well-founded claims might be turned down as a way of reducing the numbers entering the UK, and that, although legal aid would be available on appeal, an applicant not in the country would clearly be at a disadvantage. The point was made to me, however, that the scheme relies on it being applied in good faith. It will work only if it is seen to work fairly—if claims are processed in a timely manner and a realistic number receive visas. If the Government are genuine in their claim that their primary motivation with the Bill is to stop unsafe journeys on flimsy boats, they have a real incentive to make it work.

I know, too, that some fear that this represents an open-borders policy, so I emphasise that it does not. The reverse is the case: it offers a way of replacing the current chaos in the channel—the Government’s attempts to regulate that have failed—with managed and controlled borders, where we know who is making the crossing. As I said, safe passage visas would be available only to those with viable asylum claims. Those refused a visa would receive a clear personal communication explaining that they do not have a viable claim, nor, therefore, the chance of a safe future in the UK were they to try to reach it by irregular means. Surely that would be a more effective deterrent, consistent with our international obligations, than the Bill—the deterrent effect of which is at best uncertain.

Nor does the evidence support the fear that this would attract more asylum seekers to the UK. Research suggests that immigration policies do not drive asylum seekers’ destinations. The introduction of the Ukrainian scheme, on which the safe visa scheme is modelled, did not lead to the great majority of those fleeing Ukraine seeking refuge in the UK. We know that the great majority of those seeking asylum in Europe do so in other European countries and there is no evidence to suggest that they will not continue to do so.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

On the first point, I do not have that detail to hand so I will go away and find that out and write to the noble Lord. But on the second point, obviously, the UK resettlement scheme is a general scheme to take refugees who have been identified by the UNHCR and in that sense it is not geographically specified. Obviously, these are all issues which would be considered in the report provided for under Clause 59, so the noble Lord is right to identify that.

[Baroness Lister of Burtersett (Lab)]

Before the Minister moves on, I asked a question about children, which was echoed by my noble friend Lord Coaker. The Minister mentioned children in relation to appropriate routes but the Children’s Commissioner has argued that children should be excluded from any cap. I asked what the Government’s response was to that recommendation.

[Lord Murray of Blidworth (Con)]

I ask the noble Baroness to forgive me; I was going to come to that. I have met with the Children’s Commissioner and we have an ongoing dialogue on the provisions in the Bill. There is no intention to exclude children, for the simple reason that children utilise resources in the same way as adult asylum seekers do. Therefore, in assuming the global level of resources needed to provide adequate support and integration for asylum seekers, whether adults or children, it is appropriate that a global view be taken. Therefore, it is necessary to take a global view of the cap.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I am afraid I do not have answers to the noble Lord’s questions. I will have to come back to him on them, if he will permit me to do so.

Amendment 134, tabled by the noble Lord, Lord Coaker, and signed by the noble Lord, Lord Carlile, and Amendment 149, tabled by the noble Baroness, Lady Hamwee, bring us back to the question of the publication of the impact assessment for this Bill. I will take this opportunity to remind noble Lords that the equality impact assessment for the Bill was published on 10 May. Unfortunately, on the economic impact assessment, I can but reiterate what my noble friend Lord Murray has said on a number of occasions: namely, that it will be published in due course.

[Baroness Lister of Burtersett (Lab)]

On the subject of impact assessments, I am sure that my noble friend meant to ask where the child rights impact assessment is. It should have been available and shaped the decisions affecting children made during the Bill process, yet we still do not have a copy of it.

[Lord Sharpe of Epsom (Con)]

I think that that question has been asked and answered by my noble friend; I cannot update the House on that at the moment.

As my noble friend set out on Monday, we will provide an update to the House before the first day of Report.

--- Later in debate ---

[Lord Cormack (Con)]

My Lords, I well remember a speech made on my first day in Parliament in 1970, on the Queen’s Speech. Sir John Nott was speaking; he was moving the Address, and I have never forgotten his remark that the real poor of the 20th century are those without hope. The same applies to the 21st century. We are dealing with a group of people who are pretty close to being without hope, and one thing that can give people a bit of hope is the opportunity to put something back into the community of which they wish to become a part. Therefore, it seems to me that the prohibition on working is consistent neither with Conservative principles, as the right reverend Prelate pointed out a few moments ago, nor with any principle of humanity. That is what we are really talking about today.

I hope there will be a positive response here because the other point, and the right reverend Prelate referred to this too, is that if they are not allowed to work, they will tend to drift into the black and grey economies, and perhaps become victims of modern slavery. We all know of those who man car washes and other things, who work under excruciatingly difficult circumstances and conditions, and who are effectively the creatures of those who employ them. Is that really what we want? I do not think we do; I do not think the nation wants that.

Of course, we all want to see sensible control of immigration. We all accept that the country cannot receive everybody for ever. I am glad to see the noble Lord, Lord Paddick, nodding vigorously at that point. But we are dealing with human beings and with people who deserve the opportunity to maintain their self-respect. This amendment is a little move in that direction, and I say to my noble friend who will reply that it would be entirely consistent with our Conservative principles of self-help and self-improvement to adopt an amendment along these lines, preferably a government amendment on Report.

[Baroness Lister of Burtersett (Lab)]

I will not make the speech I was going to, because all the points I planned to make have been made. In the early hours of yesterday morning, I criticised the Minister for not listening to what had been said. There is sometimes repetition because of a hope that it will eventually be heard.

We have heard such powerful arguments today, particularly from the noble Lord, Lord Cormack, who has expressed the humanity behind this amendment. We have heard that giving the right to work is about human dignity, and we have heard about people with lived experience of that. They keep asking why they cannot do paid work and saying, “This is what we want to do”.

I am pleading to the Minister to put away whatever briefing he has been given, which talks about pull factors and so forth, and address the points that have been made in this debate.

[Baroness Stowell of Beeston (Con)]

My Lords, some very powerful remarks have been made in this short debate so far, some of which I will respond to in a moment. At the start of my contribution, it is important to emphasise an obvious statement of fact that bears repetition: the Bill is about dealing with immediate and urgent issues—the current situation in which we find ourselves and the practice of boats crossing the channel. This has to stop, as it is unacceptable not just on the basis of illegal entry into the country by that route being wrong in principle but because of the threat to life involved in those journeys.

Often, important and powerful points are made as if we can just deal with them quickly or with them and bigger issues at the same time. I support what the Government are trying to do here: they are trying to deal with an immediate issue. Through this legislation, I would like the Government to deal—as I think they are trying to do—with that problem, which is vexing not just the Government but the country at large. It is causing a widespread sense of concern and disquiet. Once that has been dealt with and we are on top of the issue, some of the topics raised in these debates will merit proper consideration and further thought.

The noble Baroness, Lady Ludford, said in her opening remarks on this group—and I have heard her say it many times, as have other noble Lords who are raising objections to the Bill—that one of the problems with the Government’s approach to this legislation is that the assumption is being made that those claiming asylum must be accepted as asylum seekers and cannot be defined in any other way. Somehow, the fact that a lot of people are concerned by the legitimacy of that claim is not acceptable to many noble Lords. As I said at Second Reading—

--- Later in debate ---

[Baroness Stowell of Beeston (Con)]

The information I have is that there are 5 million people receiving out-of-work benefits. In my view, if they are qualifying for these, they are therefore out of work.

[Baroness Lister of Burtersett (Lab)]

My Lords—

[Baroness Stowell of Beeston (Con)]

I will give way in a moment; let me just finish the point I am trying to make. An argument on economic and productivity grounds is not as compelling as some noble Lords are seeking to make it, given that, as I said, a large proportion of our current population are not in work but could be, and are in receipt of out-of-work benefits. I give way to the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

I appreciate that. Can the noble Baroness tell us what proportion of those people are not in work because of chronic sickness, disabilities that may get in the way of being in work, and caring responsibilities?

[Baroness Stowell of Beeston (Con)]

I cannot, and I am not here to get into a detailed discussion about that. I am simply trying to make this point. Noble Lords are raising the issue of productivity and the economy as a justification for accepting this right now in the Bill. As I said to the Committee earlier, there is some value and legitimacy, in principle, to some of the arguments being made. For instance, I would support the right reverend Prelate’s argument about ensuring that people who come to this country and are waiting for their application to be processed are able to make their contribution. However, we need to get to a position where the current rate of asylum seekers in the system is not that with which we are currently dealing.

Some noble Lords are arguing to be able to do both at the same time. Of course, I absolutely agree that the Home Office must be much better than it currently is at processing these things. I am not disagreeing with any of this. Unlike those noble Lords, however, I am saying that, for that kind of change to be accepted by the country at large, we have to take steps to get there. If you look at the bigger issue of immigration, part of what we are trying to do is to create a system that is acceptable and works for the country as a whole, and that everybody can have confidence in, so that they can feel much more in line with what the noble Baroness, Lady Ludford, would like everyone to feel and believe regarding the changes she wishes to see. We cannot do it all at the same time.

That is what I am trying to do. I am not trying to argue about pull or push factors; just that the Bill is about an immediate issue that the Government are rightly trying to respond to—

--- Later in debate ---

I quite appreciate that the Minister may not be able to provide a full response to this proposal now but I ask that he kindly write to me in advance of Report if this amendment is believed to be unworkable. It is of the utmost importance that we understand the inspection framework for detention sites and its legal underpinning. The expansive duties and powers provided to the Home Office by the Bill demand they be matched by statutory and mandatory accountability.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 139B from the right reverend Prelate, to which I was pleased to add my name. I also support everything he said about Amendment 139A and thank Medical Justice for its helpful briefing. As the right reverend Prelate has stated, this Bill would dramatically increase the detention estate, with many vulnerable asylum seekers including children, pregnant women, and survivors of torture and trafficking experiencing the devastating harm that detention is known to inflict, particularly indefinite detention.

It is therefore imperative, as this amendment recommends, that the Home Secretary implements any relevant recommendations made by the Chief Inspector of Prisons. The chief inspector plays an integral role in monitoring immigration detention. The most recent report noted that following its inspection of all short-term holding facilities run by Border Force, children were sometimes restrained unnecessarily or inappropriately, which goes back to an earlier amendment on the use of force.

Disturbingly, that report mentioned

“documentation showing how Border Force staff at Tilbury took a child to foster accommodation in handcuffs”.

The chief inspector stated that:

“The use of handcuffs for this purpose was disproportionate and unacceptable”.


As already noted earlier in our discussion, the provisions in the Bill risk situations where there is little judicial scrutiny of the exercise of the power to detain for the first 28 days of detention with, as Medical Justice notes, only extremely limited scrutiny thereafter. This lack of accountability seems to be something of a theme in the Bill. In fact, the detention provisions ignore previous findings from the chief inspector, including that detention facilities built and operated according to prison standards should be ended and that a time limit should be introduced.

In conclusion, I echo the right reverend Prelate. Given that the Bill is likely to increase significantly the numbers of people who are held in immigration detention, including groups in particularly vulnerable circumstances, it is essential to strengthen the chief inspector’s role. Will the Government therefore commit to implementing in future the relevant recommendations made by the Chief Inspector of Prisons proposed by the right reverend Prelate?

Debate on Amendment 139A adjourned.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

With respect to my noble friend, I would say that the Government’s position is the moral position, but that is possibly an argument for a different type of debate, so I will revert to the topic of the proposed amendment from the most reverend Primate.

[Baroness Lister of Burtersett (Lab)]

The most reverend Primate’s amendment does not say what the strategy should be; it says just that there should be a strategy. Is the Minister really suggesting that another Government would say, “We’re not bothered about slavery; we don’t want a strategy on slavery”? The whole point is to get Governments to think strategically.

[Lord Murray of Blidworth (Con)]

I assure the noble Baroness that this Government certainly do think strategically, but there is no reason for such a strategy to be required by reason of a statutory amendment. I appreciate that the most reverend Primate has laid this amendment, and I do not think that he realistically expects such an amendment to be accepted by the Government. What is clear is that—

--- Later in debate ---

[Lord Bourne of Aberystwyth (Con)]

My Lords, I will speak to Amendment 139D in the name of the most revered Primate the Archbishop of Canterbury; the noble Lord, Lord Blunkett, and the noble Baroness, Lady Kennedy of The Shaws, are also signatories.

In passing, I note that it is highly undesirable that Peers have been forced to withdraw from speaking to amendments and giving their views because of the way that things have been organised. I do not lay blame anywhere for that, as I know that the usual channels have tried to accommodate it, but I hope that, when we reach Report, we can have a more reasoned way of dealing with the hours that Members are sitting and the way that we are approaching these things. That would be highly desirable.

I declare my interests as set out in the register. I am strongly of the view that a 10-year strategy is appropriate. I do not quite understand the Minister’s stance of not wanting a long-term strategy. As the most revered Primate set out, we have strategies that are long-term on all sorts of things. We also currently have a strategy for the refugee convention; it has been there for 70 years, and successive Governments have supported it. It seems to me that, rather than have individual approaches by countries around the world on such a global and international issue, it is clearly of interest that we all come together to work on a global and international solution. This problem is not going to go away; it will get much more serious as time goes on, as is clearly the case, with climate change refugees and issues of food security, gender-based violence and so on.

I accept that the Government are doing individual things, but I do not understand why they cannot be developed into a strategy in relation to both trafficking, which we looked at in the last group of amendments, and to the refugee convention, which we are looking at in this group. I anticipate that the Minister will not be any warmer towards this amendment than he was to the last one, but I hope that I stand to be corrected; perhaps I am wrong on that.

It seems to me that on something such as this there is truly an international scenario after 30 years of the refugee convention. Admittedly, the convention has a protocol, but, in essence, it was introduced to deal with the aftermath of World War II and issues related to the Holocaust and so on. We are living in a very different world, and we need a different solution; we need a different strategy to be developed to deal with this issue. I hope that the Minister will see that point, but it seems to me that he has set his face against dealing with something so obvious, and I do not understand why. As I said, I hope I am proved wrong.

We need that international effort. The noble Lord, Lord Coaker, talked about regional solutions as well, which is part of it, but, clearly, the UN would be the most appropriate way of bringing this towards some sort of international order and of dealing with what will be a much more serious problem than we have seen hitherto. It is absolutely right that it has affected the UK—I accept totally that we need to do something about it—but it has not affected us nearly as much as our European neighbours, and certainly not as much as many countries around the world.

The idea that we can deal with this in a piecemeal way, with every single country doing something differently, is for the birds. In fact, where we have had success at all—I accept that we have had some—is in talking to partners, including France. I do not understand why the Government set themselves against dealing with this on a broader front. The Minister shakes his head; if he wants to intervene on me, I am very happy to take an intervention. I hope that he can accept the case for international action being necessary.

We have had differences of opinion during the debates on the Bill—understandably, passions have been running high; it has very often been fractious—but here we have a chance to unite as a House and to say that this is something that can be done in a very constructive way to meet the challenges of the future—and, I hope, to deal with some of the issues that have been dividing the House as we have moved through the debates. Frankly, what we have at the moment is something that appears to be an ad hoc approach to dealing with the issue, of coming up with a conglomeration of different ideas, of throwing paint at a wall Jackson Pollock-like and hoping for the best, rather than developing something with a bit more vision of Michelangelo about it.

I hope that the Minister will respond in a positive way, particularly given the ecumenical way that we have been developing, with two new bishops nominating themselves and my noble friend Lord Deben and the noble Lord, Lord Coaker, wanting to join the Spiritual Benches—which shows the fluid nature of the House. As I say, I hope we will be able to come back on Report with something a bit more constructive than the Minister has given us sight of so far. I know that the Minister’s intentions are good. I am sure that he will be going back to the department to seek to convince the Home Secretary, who I know will be listening carefully, how we can move on these issues.

[Baroness Lister of Burtersett (Lab)]

My Lords, I very much welcome this amendment. I should say that this is not a bid to join the Bishops’ Benches and I thank the most reverend Primate for introducing it. I want to make just three points.

The first has been implicit in quite a lot of what has been said by the most reverend Primate and by other noble Lords on the previous amendment. It is that, if we are to have a global, collaborative strategy, it has to be from a different mindset from the one that underpins the Bill, because that mindset would prevent such a global strategy. We have to stop acting as if we are somehow uniquely burdened by this global refugee crisis. The figures have been given showing how other countries are pulling their weight much more than we are. Countries with far fewer resources than we have are doing so, yet with the Bill we act as if somehow the poor UK is under siege from this global crisis. To think globally means thinking differently, and we have to think and act with compassion. Compassion has certainly been lacking in this Bill and in the approach being taken.

My second point, which links with this, is that we have to start using a different language. The point has been made a number of times during our debates: people are not illegal and journeys are not illegal, but they are being turned illegal when they arrive here. Please let us not talk about “illegal routes” or “illegal migrants”. They are coming by irregular routes but they are not illegal. This goes right back to the beginning, when we talked about the language that is often used by some politicians and by the media: the language of invasion, cannibalisation and so forth.

It reminds me that I spoke in an even later debate—I think it was at about 2 am—on Albania. I met a group of young Albanians and have just discovered the notes I made from that meeting. I could not find them anywhere, and now I have. They talked about how disturbing they found the way that they were talked about in the media. In one newspaper—I leave the Committee to guess which—they were called “vermin”. I wrote down what they said: they felt violated, unsafe, scared, despised and unwanted. It is dreadful that young people feel that because of the way that we talk about them, so we have to change our language when we talk about the future migration strategy. The research of HOPE not hate suggests that every time politicians or the media talk negatively, it leads to a spike in far-right activity against migrants. Again, that is no basis for building a strategy.

Thirdly and perhaps more positively—this goes back to something that the right reverend Prelate the Bishop of Durham said earlier—if we are going to develop a strategy, and I hope that we will, we will have to involve refugees themselves in its development. We need the expertise of their experience of what it is like to flee countries and start a new life elsewhere. We have to base our strategy on that understanding, and it involves what the right reverend Prelate referred to earlier as “co-production”. It is not good enough for politicians to sit in their offices and come up with a strategy, then talk to politicians in another country and say, “Right, here’s our strategy”. We need to work from the very start with those people who are experiencing this. That is simply all I want to say.

I wish we could have had this debate at a better time. I am very sorry I was not able to be part of the debate that the most reverend Primate instigated in December, but I have read it and know that there were some inspiring speeches and lots of ideas that could go into the strategy. As I said in my earlier intervention, this is not requiring the Government to do X, Y and Z so that the next Government have to do X, Y and Z; it is simply saying that there has to be a strategic framework, and then Governments work within that. It does not matter what the complexion of the Government is. I certainly hope that my party in government would want to develop a strategic approach towards refugees and, as I say, one that works with refugees in building that.

[Lord German (LD)]

My Lords, it is a privilege to be able to follow the words we have just heard from the noble Baroness, Lady Lister, and my erstwhile colleague the noble Lord, Lord Bourne of Aberystwyth. There are just a few things I want to add to what I said on the previous amendment. I think that, as a principle—the principle that the noble Baroness, Lady Lister, espoused just now—we need to look beyond ourselves. It is only by looking beyond ourselves that we will find a sustainable and effective solution for the problems we have in front of us.

I was thinking about the models for the sort of process that the most reverend Primate is suggesting. One is the Global Campaign for Education. It is known for its Let me Learn campaign, and it works across the globe to bring together people. I have been in meetings in this House with children from around the globe, from the poorest countries to the richest, using modern technology. The Global Campaign for Education basically wants to ensure that every child in this world has the right and the privilege to be educated by being sent to school. That level of collaboration brings together the United Nations, the rich countries and the donor countries, who then meet the poorer countries—there is a whole structure that sits around it. Unless we start thinking about this as being outward looking, and unless we look beyond ourselves, we are never going to find a sustainable solution.

We support this amendment, as it is seeking to recognise that our UK response to refugees has to be considered by how it interconnects with the global community. We cannot pretend that we can pull up the drawbridge and be isolated from the global issues around us. What we do impacts on other countries.

There are some countries which would follow the lead that the UK takes, but that is a race to the bottom. If we seek to discharge responsibilities for refugees to other countries, there is every chance that other countries will follow the UK’s lead. As countries do this, refugees will be pushed back to the border countries and further to the regions from which they fled. A smaller number of countries will end up shouldering the world’s refugee resources, which will be stretched, and regions will be destabilised. That is a real possibility around the globe.

The UK will be impacted in one way or another, and we cannot separate ourselves from this. The whole global refugee protection system would be at risk of collapse. Forced displacement is a global issue which requires a global response. We need to work towards these ends as described in this amendment, and we need to be seen as a country which is able to take a lead.

--- Later in debate ---

[The Archbishop of Canterbury]

I am grateful to the noble Lord. This is an international problem, and it requires an international strategy. Britain has the capacity to deliver it and lead on it. We must stop the boats. We require an international approach to do that.

We must control our borders. That cannot be done simply by cutting off people who arrive; it must be done by cutting them off far further back. To cut them off simply when they arrive is like what happens in the parts of the Diocese of Canterbury which are prone to flooding: thinking that by putting up sandbags at the front door, you can stop the water coming in round the back.

[Baroness Lister of Burtersett (Lab)]

The point was made earlier in relation to the previous amendment about our international obligations: we cannot expect international collaboration and to provide the kind of leadership that is being talked about if we do not meet our international obligations. One criticism of the Bill is that it does not do so, and that it undermines our international obligations.

[The Archbishop of Canterbury]

The noble Lord, Lord Hannay, and the noble Baroness have made the same point with great eloquence. It is obviously essential.

I have a final quote. I am going to quote the Bible —I am sorry about that but it is sort of my job. It comes from the Old Testament, where one of the prophets asks: “What are we called to do?” We are called to love mercy, to act justly and to walk humbly with our God. I beg leave to withdraw the amendment.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak in support of the amendments in the name of the noble Lord, Lord Moylan, and also in the clause stand part debates, to which I was pleased to add my name. He has made the case so clearly and powerfully that I need say only a few words, but I do want to emphasise the significance of these amendments, from the perspective of both citizenship—the practical and symbolic importance of which we debated last year during the passage of the Nationality and Borders Bill—and of children, who are, as we have heard, the main victims of these clauses that deny citizenship rights in perpetuity.

As the noble and learned Baroness, Lady Hale of Richmond, said in the Supreme Court, the “intrinsic importance of citizenship” should never be played down. I thus agree with the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty that the provisions are “profoundly misconceived and harmful”. A theme running through our proceedings has been the Bill’s failure to give primary consideration to the best interests of children, as required by the UN convention and Section 55 of the Borders, Citizenship and Immigration Act 2009. The Bill’s citizenship provisions, which really have no place in a Bill focused on irregular migration, target children in a way that is both discriminatory and punitive. Not surprisingly, this is of profound concern to the Refugee and Migrant Children’s Consortium, which advises that this is a

“fundamentally discriminatory approach to citizenship acquisition”

and potentially, as we have already heard, in breach of Articles 8 and 14 of the ECHR. Babies and children will be subject to a “harsh and life-determining penalty” for an immigration breach when they were minors.

Of course, it is deemed to be immaterial that the breach was due to their parents’ rather than their own actions. The Northern Ireland Human Rights Commission warns that the provisions risk discriminating against a child for the actions of a parent, contrary to Article 2 of the UNCRC—a warning echoed in the JCHR report. I also congratulate the JCHR on getting this out so quickly, especially as the Home Secretary apparently did not answer until the last second. In fact, we had already started in Committee before the committee received her reply to its questions, sent some time ago, I believe.

The UNHCR makes a similar point in arguing that punishing a child for the actions of a parent in this way runs counter to Article 34 of the refugee convention, Article 32 of the 1954 convention, and Articles 3 and 7 of the UN Convention on the Rights of the Child. It is an example of how the Bill puts at risk the safety and welfare of children.

I will just give an example—a hypothetical example of how it might work—from the Project and Amnesty. Thomas is brought to the UK as a child. He is so neglected or abused by his parents that the local authority is compelled to apply for, and is granted, a full care order. He is now growing up in the care of the UK state, and his future properly now lies here, meaning that he may be registered as a British citizen under Section 3(1). However, if his entry to the UK was without permission, he will be permanently excluded from his citizenship rights by Clause 31(2). You can hardly blame the child for what has happened.

Both the UNHCR and the JCHR argue that Clause 35 —which, as we heard, gives the Secretary of State the power not to treat a person as ineligible for British citizenship if this is necessary to comply with the ECHR—should be not discretionary but based on compliance or otherwise with the ECHR. The PRCBC and Amnesty argue that the link here is inappropriate —they may well be right—but, if it is going to be made, it should revert to the original wording, as proposed by the noble Baroness, Lady Ludford, in Amendment 98EA. The JCHR expresses puzzlement as to why the Government chose to narrow the available exceptions originally listed, thereby risking contravening international law obligations other than those arising from the ECHR. So, as the noble Baroness, Lady Ludford, asked, can the Minister now explain the justification for doing so?

In conclusion, once again this Government are showing disregard for the importance of citizenship and for the best interests of children. As they have made one welcome concession in this area, I hope that they will accept the strength of the case for removing entitlement to citizenship entirely from the Bill, or, at the very least—and it is the very least—reverting to the original wording of Clause 35.

[The Lord Bishop of Durham]

My Lords, I thank the noble Baroness, Lady Brinton, for tabling Amendment 98I, and I thank Amnesty International and the Project for the Registration of Children as British Citizens for their steadfast support for those who wish to register as British citizens. My friend the right reverend Prelate the Bishop of St Albans, who added his name, was here earlier in the day but was unable to stay through to the evening.

This amendment aims to tackle a matter of great significance that affects the lives of many individuals residing in the UK under British national overseas visas. They include many people from Hong Kong who are rightly entitled to British citizenship but face serious uncertainty about their legal status. Many Hong Kongers have reported appalling responses from immigration officials regarding their children born here, being told that they cannot have any travel documentation and even querying whether they are allowed to become British citizens in the future.

We all know the turmoil and uncertainty that has plagued the people of Hong Kong in recent years—many have been subjected to unimaginable hardships, fearing for their safety and the future of their families—so it is concerning that so many face anxiety about the citizenship status of their children. The people of Hong Kong have shown immense courage and resilience against Beijing’s totalitarian regime, and many of those who have come to the UK face profound challenges, including concern about the safety and security of their families living abroad. The nature of the treatment of protesters and dissidents by the Chinese Communist Party means that many of them are now permanently settling in the UK. This amendment is, simply, testament to our support for the people of Hong Kong, and it ensures that their status is not subject to further confusion.

All the way through Committee, it has appeared that the Minister and his team have set their face against accepting any amendments whatever. Here, I suggest, are two—the well and clearly argued one from the noble Lord, Lord Moylan, and this one from the noble Baroness, Lady Brinton—on which they could really give something tonight.

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[Lord Murray of Blidworth (Con)]

On the first point, there is no suggestion that these measures impute culpability in the way that the noble Baroness suggests. On the second point, I would have thought that the noble Baroness would approve of the fact that the statute relies upon the convention rights as being the pressure valve for exceptional circumstances in the way that I have described.

[Baroness Lister of Burtersett (Lab)]

It may be that I have not quite understood what the noble Lord is saying, but the noble Baroness, Lady Ludford, and I specifically asked the kind of question that was posed by the JCHR. Why have the Government narrowed the reference down from the original wording of the clause to the ECHR, when originally it was to any other international agreement to which the United Kingdom was a party? Why has that gone?

--- Later in debate ---

Let us be clear: if these clauses are left unamended then, taken alongside the removal of all constraints on the detention of unaccompanied children, a child may be detained and, on the basis of an unreliable visual Home Office age assessment, could be removed from the United Kingdom having not even had the chance to challenge the decision. The determination that an individual may be a child and therefore could deserve all the rights of a child should, and must, be reason enough to prevent their removal. The situation must not be allowed to stand and it is for this reason that I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, Amendments 124 and 125 are in my name and they have the support of the noble Baroness, Lady Neuberger, the noble Baroness, Lady Prashar, who cannot be here but wanted me to say that she strongly supports the amendments, and the right reverend Prelate. I also support other amendments to which I have added my name—indeed, all amendments in this group, including the propositions that Clauses 55 and 56 should not stand part of the Bill. My amendments are more limited and would simply remove the power through regulation to treat those claiming to be a child as an adult, should they refuse to consent to scientific age assessment, and instead stipulate that regulations must make it clear that refusal to consent to such an assessment should not be taken to damage credibility.

The Immigration Minister justified the introduction of these clauses by way of government amendment on the unevidenced grounds that

“a very large number of young adults do pose as children”

and that he did not want

“to see a situation in which young adults are regularly coming into the UK illegally, posing as children, and ending up in our schools, in foster-care families and in unaccompanied-minor hotels, living cheek by jowl with genuine children”.—[Official Report, Commons, 26/4/23; col. 777.]

The new provisions would, he concluded, help to “stamp out this evil”. Clearly, it was not such an evil that these provisions were included in the original Bill. Instead, they appear to be a response to an assertion in Committee from Ben Bradley MP, again unevidenced. Yet, as the JCHR points out, it is not clear why the Government are legislating again on the issue so soon after passing the Nationality and Borders Act, without first subjecting that to post-legislative scrutiny.

More detailed evidence published around the same time by the Helen Bamber Foundation and cited by the right reverend Prelate indicated that the Minister had “wildly”—its word—exaggerated the proportion of age-disputed children found to be adults; this was based on freedom of information requests. Just today, Full Fact reported that a claim made in Parliament by the Immigration Minister that up to a fifth of adult male asylum seekers pretend to be children on arrival was false. FoI data showed that, between January and November last year, the actual figure was 1%. Can the Minister explain the discrepancy please?

This all reinforces the evidence from a Refugee Council study last year, which found that only 14 out of 223 young people with whom it worked in 2021, whose age had initially been determined as “certainly adult” by the Home Office, were in fact found to be adult. The council expressed serious concern that the wrongful assessment of children as adults is causing long-term harm to children as well as significant safeguarding risks. More recently, some of the children it has helped, who are at risk of being sent to Rwanda because of wrongful assessment, spoke of their fear and shock.

A different form of evidence came last year from a highly critical report by the independent Chief Inspector of Borders and Immigration on the processing of small boat arrivals. It said:

“The treatment of those claiming to be children was not child-centred …The age assessment process was perfunctory and engagement with the young people was minimal”.


As the interim Age Estimation Science Advisory Committee pointed out, safeguarding issues do not arise only when adults pose as children. It said in a report:

“There is an equally important safeguarding issue when minors are incorrectly aged as adults and so inappropriately placed in adult facilities where they may be at risk”.


The implications of all this have become that much more serious in the context of Clauses 55 and 56 and of changes to age assessment—rejected by this House last year, to no avail. Our main focus last year was the introduction of scientific assessment and, in particular, the use of X-rays, in response to considerable concerns voiced by health bodies such as the British Dental Association and the Royal College of Paediatrics and Child Health. The latter is particularly concerned about Clauses 55 and 56 in the current Bill, noting that

“The science on age assessment is not robust enough to accurately determine a person’s age, which could result in a child being incorrectly assessed as an adult”.


The interim advisory committee itself proposed a cautious approach given that:

“There is no method, biological or social worker-led, that can predict age with precision”.


It also advocated that

“Any methodology used for the assessment of age must respect and prioritise the dignity of the individual being assessed and should minimise physical or psychological harm”.

I would argue that these clauses do not respect and prioritise the dignity of the child, as they are based on the assumption that the child is lying.

Crucial here is the issue of consent, on which the committee’s recommendation was very clear, saying that the child

“should be provided with clear information explaining the risks and benefits of biological evaluation in a format that allows the person undergoing the process to give informed consent and no automatic assumptions or consequences should result from refusal to consent”.

The committee’s advice underlined that

“in cases of refusal, the applicant should not be automatically considered an adult”,

and that:

“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.


It advised that

“it should be accepted that there may be many reasons”

for refusal to consent to biological assessment, which reflect different backgrounds. For example, the child may

“have witnessed or experienced trauma from their own homeland’s government institutions and may view all authority with suspicion and fear”.

Critical too is the question of capacity for consent. Can the Minister say how capacity will be determined and what will happen to children who lack the capacity to consent to the use of scientific methods? The British Association of Social Workers makes the point:

“The question of whether the asylum seeker can consent to the medical intervention is completely separate from the question of whether they are a child”.


Yet Clause 56, which gives the Home Secretary considerable discretion through regulations, in effect conflates the two. In doing so, it undermines the possibility of genuine consent and risks further trauma for children.

In response to the interim advisory committee’s report, the CEO of the Refugee Council said:

“These children simply want to start rebuilding their lives after the traumatic experiences they went through. They put their trust in us hoping they will get the support they need — it’s vital that they are safeguarded and provided the care that they need as they go through the system. The government must not ignore the committee’s findings”.


Can the Minister explain why the Government have ignored the very clear advice of their own advisory committee on the question of consent?

Do the Government at least accept the Constitution Committee’s recommendation that

“The power in clause 56(1) has such significant implications for an individual’s legal rights that it should be subject to the draft affirmative procedure”,


and the committee’s suggestion that “indicative draft regulations” should be made available during the Bill’s passage? In a similar vein, the JCHR recommends that guidance is issued

“as soon as possible setting out what would constitute reasonable grounds for refusing consent”.

Can we expect to see this before Report?

The Constitution Committee also warned that Clause 55 raises serious legal and constitutional issues. Others are better placed to pursue these, but as Justice, among others, points out, it “drastically reduces the accountability” of the Home Secretary for complex decisions about age and permits a child’s

“deportation when they are still pursuing a legal claim that they are a child”—

the normal right of appeal having been abolished.

The supplementary ECHR memo states that the Government

“concluded that it is important to make this change to prevent individuals frustrating the aims of the Bill”.

Could the Minister explain how this mean-minded conclusion can justify the limitations on a child’s rights? As the JCHR points out, this is clearly not in any child’s best interests and is not, in its view, reasonable given the

“far-reaching consequences for their treatment, their lives and their rights”.

What is the Government’s response to the clear recommendation of the UN Committee on the Rights of the Child that age-disputed children should not be removed to a third country? What steps will be taken to ensure that, in the words of the memo,

“The appropriate support and facilities”


are

“in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”?

Even with Zoom et cetera, it is difficult to see how a child can participate effectively from afar.

In conclusion, I simply quote the Children’s Commissioner, who has said in no uncertain terms that it is unacceptable to treat a child as an adult on the basis of their refusal to consent to scientific methods. She asks how genuine consent is possible, free from duress, given the implications of not consenting. She concludes:

“Where a child’s age is disputed … those awaiting resolution should be treated as vulnerable children first and foremost”.


Instead, as elsewhere in this Bill, it is a case of migrant first, not child first and certainly not child foremost.

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[Lord Murray of Blidworth (Con)]

I fear that we are speaking at cross purposes. I certainly would not compel any child to participate in age assessment.

[Baroness Lister of Burtersett (Lab)]

The whole point is that they are, in effect, being compelled. This point was made by the interim age advisory committee—a committee set up by the Government. Why are the Government ignoring its advice? They are doing the opposite of what it says should be done. It said:

“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.


That is exactly what is happening.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

The noble Baroness now invites me to embark on a discussion that she just said she did not want to have. I agree with her first position because it is not relevant to the amendment that she raises.

Amendment 127 in the name of the noble Lord, Lord Coaker, would place a duty on the Secretary of State to publish an annual report on scientific age assessment methods, the attendant scientific advice and the statistics relating to their use. The Home Office already publishes such information: quarterly datasets including age disputes are available on GOV.UK—we have heard references to those in Committee this evening—and, when scientific methods of age assessment are introduced, the Home Office will ensure that we report and monitor that information. The Age Estimation Science Advisory Committee continues to provide scientific advice to the Home Secretary and the Home Office’s chief scientific adviser. Their first report was published on GOV.UK, as the noble Baroness, Lady Lister, identified, and the Government will continue to seek advice from the committee. Given that we already publish the kind of information and data proposed by the noble Lord, I submit that his amendment is unnecessary.

[Baroness Lister of Burtersett (Lab)]

What is the point of seeking advice if it is then ignored? While I am on my feet, because I was not quick enough earlier, the Minister gave some figures that the right reverend Prelate, other noble Lords and I disputed, but it is as if we have not spoken. The evidence we presented was just ignored. It suggests that government Ministers tend to wildly exaggerate the proportion of children who are wrongly assessed as adults presenting themselves as children. We want the Minister to engage, if not now then in writing, with the figures that we came up with. I am appalled that the Minister has not even read the Helen Bamber Foundation report, because that is the best report on age assessment that there is. I very much hope that at least his officials have read it, but I will leave it at that.

[Lord Murray of Blidworth (Con)]

Of course we consider the advice provided by the Age Estimation Science Advisory Committee and the Home Office’s chief scientific adviser, and we will continue to do so. It is because we are in the process of awaiting such advice that the age assessment process is not fully operational. That demonstrates that we take and appreciate the advice that we are given.

As to the information questions, I will look at the statistics that the noble Baroness raises. I do not recognise them immediately, which is not to say that they are not properly reflective. There are a lot of statistics published on the Home Office website, so I appreciate that there may be some conclusions to draw. I will certainly look at that.

Government Amendment 123C is a clarificatory amendment that simply ensures that Clause 55 applies to any decisions following the regulations made under Clause 56, which automatically assumes someone to be an adult as a result of their refusal to consent to a scientific age assessment. It includes a decision as to whether an individual has reasonable grounds to refuse consent to a scientific age assessment.

We cannot escape the fact that almost half of asylum seekers claiming to be children were found to be adults. Those seeking to game the system in this way create clear safeguarding risks to genuine children and delay their removal. Clauses 55 and 56 are a necessary part of the framework of the Bill to ensure that we can swiftly remove those subject to the duty in Clause 2. I therefore invite the right reverend Prelate to withdraw his amendment.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

128A: Clause 57, page 59, leave out line 4
Member's explanatory statement
This amendment seeks to remove Albania from the list of “safe states” with reference to which asylum and human rights claims will be deemed inadmissible.

[Baroness Lister of Burtersett (Lab)]

My Lords, Amendment 128A is also being proposed by the JCHR. I thank my noble friend Lord Cashman for his support, although I am afraid he has had to leave.

The amendment seeks to remove Albania from the list of safe states with reference to which asylum and human rights claims will be deemed inadmissible. I was prompted to table this amendment following a meeting with a group of young Albanians, which was organised by the Migrant and Refugee Children’s Legal Unit, MiCLU, and the Shpresa Programme. I am grateful to them, and to Professor Helen Stalford, for the information they have provided. All the young people had sought asylum in the UK. Some had been accepted, and some were still awaiting determination of their claims.

The young people had two clear messages. The first related to how they are talked about and perceived, by politicians and the media in particular, which frames discussions about the rights of Albanians to enter and stay in the UK. The young people talked about how hurtful and injurious to their identity it was to be constantly talked about as criminals with no right to be here.

One young Albanian asylum seeker quoted in the MiCLU briefing talked about having experienced racism:

“When you say you are from Albania, people distance from you. People have said I am a criminal and other words. It becomes hard for people to engage in society. Even people who have status”.

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[Lord Murray of Blidworth (Con)]

My Lords, I thank all noble Lords who have spoken: the noble Baronesses, Lady Lister and Lady Ludford, and the noble Lord, Lord Hacking.

The measures in Clause 57 aim to deter claims from nationals from safe countries who seek to abuse our asylum system and do not need to seek protection in the UK. It will consequently reduce pressure on our asylum system and allow us to focus on those most in need of our protection.

Treating asylum claims from EU nationals in this way is not new, as I think all noble Lords recognised. It has been a long-standing process in the UK asylum system and is also employed by EU states. However, EU states are not the only safe countries. It is right that we expand these provisions so that they apply not only to nationals of the EU but to other safe countries that we have assessed as generally safe. At this time, the list has been expanded to include the other European Economic Area countries, Switzerland and Albania. This clause also includes powers that would allow us to expand this list further to other safe countries of origin in future.

Furthermore, these provisions will expand this approach to include human rights claims. If a country is generally safe, it stands to reason not only that asylum claims should be declared inadmissible but that any related human rights claims should be treated likewise. If a person has other reasons for wishing to come to the UK, they should apply through the appropriate routes. People should not seek to use our asylum system to circumnavigate those routes.

However, even if a country is generally considered safe, it is acknowledged that there could be exceptional circumstances in which it may not be appropriate to return an individual. If the person does not meet the conditions of the duty and makes an asylum or human rights claim, and there are exceptional circumstances as a result of which the Secretary of State considers that a claim ought to be considered, then their claims will be considered in the UK. If a person meets the conditions of the duty and makes a protection and human rights claim, and the Secretary of State accepts that there are exceptional circumstances which prevent removal to their country of origin, they will instead be removed to a safe third country. Therefore, it is considered that these provisions incorporate appropriate safeguards to ensure that we will not return an individual where it would not be safe to do so.

Amendment 128A in the name of the noble Baroness, Lady Lister of Burtersett, seeks to remove Albania from the list of safe states for the purposes of Section 80A. For a country to be added to the list of safe countries of origin, it must be assessed as safe, as per the test set out in new Section 80AA of the 2002 Act. We are satisfied that, in general, Albania—a NATO member, an ECAT signatory and an EU accession country—meets that test. Indeed, the cross-party Home Affairs Committee, chaired by Dame Diana Johnson, said in its report published just yesterday:

“Albania is a safe country and we have seen little evidence that its citizens should ordinarily require asylum”.


Furthermore, as already set out, the provisions incorporate appropriate safeguards, should it be accepted that there are exceptional circumstances why an Albanian national should not be returned there.

As I have indicated, these sensible extensions to the inadmissibility arrangements which currently apply to EU nationals will help to reduce the pressures on our asylum system and enable us better to focus on those most in need of protection. I commend the clause to the Committee and invite the noble Baroness to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to those who have spoken, especially my noble friend Lord Hacking; he has been extremely noble to stay this late to speak, and he speaks from his first-hand experience of Albania.

The noble Lord, Lord Hodgson of Astley Abbotts, said that if there had not been so much repetition, we would not still be here at this time. However, the Minister, in his reply, has shown why sometimes there is repetition: because there is no evidence that the Minister listens. I talked about the Home Affairs Committee and why the response to it was not good enough, but he read his speech about the Home Affairs Committee as if it had not been mentioned. This happens time and time again. The main repetition I heard this evening was from the Government Benches giving very detailed information about the Policy Exchange report over and again. We could have done without that.

It is late, and I do not think that we want to go beyond 2 am, if we can possibly help it; I am shaking with tiredness. The Minister has not engaged at all with the arguments put that, while Albania may be a safe country for many people, it is not safe for everyone. It is just not good enough to say, “Well, in exceptional circumstances, their claims can be considered”. There are some very vulnerable people—people who have fled extremely difficult circumstances that none of us would want to face—who have sought asylum here and been granted asylum here for good reason. I sometimes wonder what the point is of us standing up saying these things, when the Minister then stands up and gives us a response that takes no account whatever of what has been said. That said, I beg leave to withdraw the amendment.

Amendment 128A withdrawn.

Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, Clause 8 ensures that there is support available to individuals who would otherwise be destitute where their asylum claims have been declared inadmissible, pending their removal from the United Kingdom. It also seeks to incentivise those whose asylum claims have been declared inadmissible to comply with the arrangements to remove them from the UK, whether that be to their country of origin—where it is safe to do so—or to a safe third country. These provisions will support the overall objective of the Bill and ensure that those who come to the UK illegally will not be able to stay. Pending their removal, we will ensure that we support those who are complying with arrangements for removal. I make no apology for introducing these measures to protect and preserve the integrity of our asylum and migration system.

I am grateful to the noble Baroness, Lady Lister, for setting out her amendments to Clause 8. Amendments 57C and 57F seek to create a right of appeal against a decision to refuse an application for support under Section 95A of the Immigration and Asylum Act 1999, which would take effect only if supporting provisions in the Immigration Act 2016 are brought into force. The Government keep these matters under review but I can answer the noble Baroness’s question directly: there are no current plans to bring those measures into force, and so we consider these amendments unnecessary. Therefore, those who are refused support under Section 4 of the 1999 Act will still be able to appeal the decision.

Similarly, we do not consider Amendment 57D necessary. As I have told noble Lords frequently throughout Committee, our intention is to detain and swiftly remove people. We expect that the overwhelming majority of those who fall within the scope of the duty to remove will need accommodation as well as financial support. These individuals will therefore be provided with financial support to meet their essential living needs, pending their removal from the UK.

Although I recognise the intention behind Amendment 57E, the Government do not consider it necessary to provide a statutory basis on which to provide temporary support. As I have said, our intention is to detain and swiftly remove those who enter illegally and meet the conditions in Clause 2. The details of how the scheme will work in practice, including the support provided during this interim period, are currently under active consideration. We are confident that there is sufficient scope to be able to provide adequate support to individuals pending a determination of their application under Section 4 of the 1999 Act. Obviously, we will bear in mind the contributions made during this short debate.

Finally, Amendment 57G seeks to amend uncommenced provisions in the Immigration Act 2016 and, in so doing, alter the long-standing position that Section 4 support would be available only to people who face a genuine obstacle in leaving the UK. The Government have no plans to implement the 2016 Act provisions in the immediate future; even if we were to do so, we see no need to alter the existing approach to eligibility under Section 4 for this group of people. Eligibility for Section 4 support is a long-standing position. As long as individuals whom we support pending their removal co-operate with the process, they will remain eligible for support.

The noble Baroness, Lady Lister, the noble Lord, Lord German, and the train-bound right reverend Prelate the Bishop of Durham asked about the Section 4 application form. We are working on the arrangements for implementing these provisions. As part of that, we will consider what changes, if any, are required to the Section 4 application form.

Where necessary, the Government will provide accommodation and basic support for those who are subject to the duty to make arrangements for removal and who are not being detained pending their removal. In answer to the right reverend Prelate, I can assure him that, with the changes made by Clause 8, we consider that there is sufficient legislative cover to provide such support where a person would otherwise be left destitute. On that basis, I invite the noble Baroness, Lady Lister, to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to all noble Lords who have spoken, including the right reverend Prelate, in his absence; we know that he had to get his train. I am also grateful to the Minister for answering more questions than I expected him to be able to.

I am disturbed by the proposition that it is not necessary to provide a statutory basis for temporary support because the intention is to remove people quickly. The Government are the only people who think that removal will be quick. All the organisations on the ground predict a state of semi-permanent limbo—purgatory, as some of them have called it. There needs to be a proper statutory basis for the support that these people are provided with. I hope that the Minister will look at this point again.

Other noble Lords have asked questions that have not, I think, been answered. I would be grateful if the Minister or his officials could look through Hansard and answer any remaining questions. The noble Lord, Lord German, certainly asked a number of questions that have not been addressed. I will not detain the Committee now by pressing them—I am sure that the noble Lord will not either—but I ask that a letter answering those questions goes to the noble Lords who have participated in Committee before Report.

It would also be helpful if the Government published as clearly as they can a statement on what is proposed. We can piece bits together from the Minister’s reply today but the point has been made that local authorities, faith groups, refugee organisations and others need to start planning; they need to know. A clear statement would therefore be helpful.

I finish by quoting the right reverend Prelate the Bishop of Durham, who said that this is going to be like detention without walls. That is a very telling statement. It is important that we get this right. We do not want large numbers of people destitute on our streets because they are in this permanent limbo. I look forward to seeing what the Minister has to say in any subsequent letters but, for now, I beg leave to withdraw the amendment.

Amendment 57C withdrawn.

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Noble Lords who spoke about this in Grand Committee were uneasy about the SI’s intentions and its implications. The answers that we have received mean that these regulations need to be repealed as a matter of urgency. Remember that HMO licensing came in because of the tragic deaths of eight asylum seekers. With the latest comments over the weekend from certain Home Office Ministers about the living conditions of people seeking asylum, with up to four people having to share each hotel room, it is clear that the Home Office cannot be trusted with the safety and dignity of those seeking asylum and their having safe, habitable accommodation. HMOs, regardless of who is living there, need to be safe and to be inspected by an independent local authority licensing scheme. That is why this statutory instrument should be repealed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise in support of Amendment 58. I am sorry that I could not be at the Grand Committee debate on the regulations because of another commitment. Given the representations that have been made by a range of an organisations, I felt it was important to say a few words.

All people should have access to secure, safe and decent accommodation, no matter what status they hold. While it is right that we should not have people housed in hotels for longer than necessary, the removal of so-called red tape, which potentially includes shortcuts around safety standards, as we have heard, seems exceedingly risky. Once again, we have been asked to put our trust in the Home Office and its subcontractors instead of properly resourcing local authorities to provide adequate housing. This is not the way to address the backlog or accommodation shortages. The speed of procurement should not come at the possible cost of life.

Earlier this month, while the Levelling-Up Secretary was unveiling new laws protecting renters’ rights, his colleagues were debating the Government’s intention to scrap HMO licensing for asylum seekers’ accommodation. That seems somewhat perverse. The Government state in their Explanatory Memorandum to the regulations that part of the rationale for the change was that subcontractors

“raised concerns that … regulation is posing a barrier to acquiring … properties”.

But the suspicion is that subcontractors’ concerns are motivated more by profits than by the need to reduce backlogs and move people into accommodation. As my noble friend Lady Taylor of Stevenage asked during the Grand Committee debate, what evidence is there—again there is this question of evidence; it seems that with every amendment we are asking for evidence—to suggest that this change in regulations will speed up procurement of accommodation? The potential to undermine safety and standards seems very risky if there is not clear evidence to suggest that it will achieve the Home Office’s intended outcomes. Local authorities are concerned that any further erosion of enforcement powers will lead to a decrease in accommodation standards, where the reverse is needed.

The excellent briefing from the Chartered Institute of Housing, Crisis, JCWI and others argued:

“The assertion from the Government that HMO licence levels of protection will be maintained in these properties, but overseen by the Home Office rather than the local authority, is deeply suspect. People are already losing their lives in asylum accommodation managed by private subcontractors on behalf of the Home Office”.


Echoing the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, it was alarming to read at the weekend that asylum seekers were left on the streets in Westminster for two nights running because of accommodation problems and that the Immigration Minister had led moves to require groups of up to four adult males to share single rooms in so-called Operation Maximise. Richard Drax, a Conservative MP, has equated this to putting them in prison. As the leader of Westminster Council commented, to ask people who are

“likely to have been through significant and traumatic events … to share an inappropriately sized room”—

we are talking about a single room here, not some palatial five-star room—

“with multiple strangers defies common sense and basic decency”.

Basic decency, as well as safety, is what is at stake with these regulations.

Can the Minister give us an assurance that Operation Maximise will be abandoned at once in the interest of basic decency? With regard to these regulations, can he reassure us that the Home Office or its contractors have the skills to make a proper assessment of the risks around fire safety that an experienced and qualified local authority environmental health officer would have?

In the recent debate in Grand Committee, the noble Lord, Lord Scriven, asked the Minister to confirm that the same conditions that apply to an HMO licence will be replicated in the contract with the provider of accommodation for those seeking asylum. I do not think that the noble Lord has asked this again tonight, but I hope he will forgive me if he has. As the DLUHC Minister was unable to answer the question because it related to Home Office responsibilities, perhaps the Minister could provide an answer now.

In conclusion, this amendment should have never been needed but, unless we get serious assurances around living and safety standards, I can only question how the Government have decided that creating unsafe homes and putting asylum seekers in them is a decent strategy. As the Chartered Institute of Housing has said, HMOs will undoubtedly prove cheaper, but at what cost?

[Lord German (LD)]

My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.

I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.

My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO₂ alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.

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That is why initial health assessments for children must be carried out by a qualified doctor in a safe environment, with an interpreter. IHAs should not be carried out by care assistants working for detention centres and their contractors. Too much is at stake. Does the Minister believe, as he has repeatedly said in Committee, that deterrence should take precedence over rights? What is happening to these children in detention should not be tolerated. What healthcare and well-being standards will be in place for those in detention centres, especially minors, whether with their families or unaccompanied? The amendment sets out the legal framework by which it is perfectly possible to create safe standards to ensure that these children are protected properly. If the Minister cannot provide details, will he accept my amendment?

[Baroness Lister of Burtersett (Lab)]

My Lords, I was going to ask this question in the next group, but it is more appropriate to ask it here. It was raised by Doctors Without Borders in its damning briefing: what specific care will be provided for children with pre-existing or emergent health needs?

Also, following on from my noble friend Lady Chakrabarti, I have been in correspondence with the UNHCR about the different interpretations of the UN convention and the refugee convention that came up when I asked on our first day in Committee why we should accept the Government’s interpretation of the refugee convention over that of the body which has global responsibility for it. The Minister was rather dismissive of the UNHCR, which, in response, highlights that its position on the Illegal Migration Bill—one diametrically opposed to the Government’s—is that it will go against the obligations under the refugee convention. The UNHCR’s institutional position has been conveyed to the Government in the exercise of its responsibilities under Article 35. It does not accept that this is a legitimate interpretation of the refugee convention.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak briefly on Amendment 69 in the name of the noble and learned Lord, Lord Etherton, and others. My intervention is prompted by a meeting I had earlier today with the disabled Greens group, specifically on the question of meeting the needs of disabled asylum seekers and refugees. That caused me to look up the details of the UNHCR Detention Guidelines, specifically point 9.5, which says that states may be required to make reasonable accommodations to ensure that they meet the specific needs of disabled asylum seekers. It says:

“As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained”,


and that accommodation needs to be accessible.

The disabled Greens raised with me their particular concern about the barges, about which the Government seem very enthusiastic and to which they have been paying a great deal of attention. It is difficult to see how those barges could possibly meet the accommodation requirements of disabled asylum seekers.

A number of noble Lords referred to the historic situation at Manston, but we have seen the Chief Inspector of Prisons expressing great concern about what is happening there right at this moment. The focus has very much been on children but, if we are not able to identify and assist children appropriately, I really wonder whether we are also able to identify and assist refugees with disabilities, who may have specific needs. Can the Minister say how the Government will ensure that they meet the needs of asylum seekers with disabilities?

Finally, without in any way daring to intervene in a discussion between two lawyers on a fine technical point, I just note that Article 35 of the convention, referred to by the noble Baroness, Lady Chakrabarti, says that:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


The relationship does not look much like co-operation at the moment.

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My noble friend the Minister has a really difficult task, and he is aware that I am not comfortable with many aspects of the Bill. However, I hope he will acknowledge that with these amendments I am offering something he can accept as a viable alternative to what is currently proposed in the Bill. I look forward to his response.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments generally, in particular those in the name of the noble Baroness, Lady Mobarik—it is a pleasure to follow her powerful speech. I have added my name to Amendments 60 and 65.

It was to the Conservative-led coalition Government’s credit that they ended the routine detention of children and replaced it with strict limits. It is thus inexplicable, as the noble Baroness said, that the present Conservative Government should choose to reverse that policy. Prior to that reversal, the Royal College of General Practitioners, together with other royal colleges, published an intercollegiate briefing paper which described the

“significant harms to the physical and mental health of children and young people in the UK who are subjected to administrative immigration detention”.

It concluded that the immigration detention of children and their families is “harmful and unacceptable”. Among the evidence at the time was that provided by Medical Justice clinicians, who

“identified psychological harm to be caused and exacerbated by detention. Symptoms included bed wetting and loss of bowel control, heightened anxiety, food refusal, withdrawal … and persistent crying. Many children exhibited signs of developmental regression … some attempted to end their own lives”.

Today, many organisations—health, children’s and refugee—have briefed us about the likely health implications of such a reversal. To quote the Refugee and Migrant Children’s Consortium, the effects on children’s

“physical and mental health included weight loss, sleeplessness, nightmares, skin complaints and self-harm, depression and symptoms of post-traumatic stress disorder”.

It also cites, as did the noble Lord, more recent collaborative evidence from Australia. The Royal College of Psychiatrists warns of the likely damaging impact on child mental and physical health of

“the restriction of movement, lack of community exposure, and limited access to health and educational services”

associated with detention. The Independent Advisory Panel on Deaths in Custody, a non-departmental public body, has warned the Home Secretary that this is

“a group who are particularly vulnerable, including in respect of mental ill-health, self-harm, and suicide due to trauma caused by dislocation from family”.

It also emphasises

“the link between the indefinite nature of detention and feelings of uncertainty and hopelessness, which can increase the risk of suicidality”.

A group of people with lived experience of the asylum system who advise Doctors of the World have written an open letter to Peers which speaks of their particular concern about the detention of children and pregnant women, whose plight I think we will debate shortly. However, more generally on the basis of their experience they write that

“some of us start shaking when detention centres are mentioned, or crying when watching the news about this Bill”.

The Children’s Commissioner has expressed deep concern at the prospect of children being detained for significant periods of time. She has not been reassured by the government amendment—mentioned by the noble Baroness—which does not specify any time limits or cover children who are with their families. Can the Minister tell us what steps will be taken to ensure that children are detained for as short a period as possible, as he assured us they would be? Also, what is his estimate of the numbers of children in detention as a result of this change of policy, in the absence of an impact assessment?

The Children’s Commissioner points out that Article 37 of the UNCRC is clear that children must be detained for as short a time as possible. UNICEF makes the point even more strongly, warning that the broad discretion on the detention of children provided by the Bill

“is not compatible with international standards”

and

“would not comply with the principle of the best interests of the child”.

Some, including the Committee on the Rights of the Child, have gone so far as to argue that Article 37 means that children should simply not be detained at all in an immigration context. Whether or not one accepts that interpretation, it is clear that the powers given to the Home Secretary in Clause 11 once again contravene a key international convention.

Although the Chief Inspector of Prisons’ report published yesterday, mentioned earlier by the noble Lord, Lord German, welcomed some improvements in the short-term holding facilities in Kent, it noted:

“Children were detained for far too long at all sites”.


During the previous six months:

“Detention records indicated that 337 children had been held in breach of the statutory 24-hour time limit”,


with one held for just over three days. It notes that some particularly vulnerable children were held for too long, giving the example of a 17 year-old girl with a 10 month-old baby—conceived, she said, following rape—who was held from 11.30 am and then overnight, for nearly 24 hours. If this is already happening, I dread to think what the situation will be like if Clause 10 reaches the statute book.

The incentives—pull factor—argument used by Ministers in their attempt to justify this retrograde policy would be laughable if the implications for children’s well-being and best interests were not so serious.

[Baroness Helic (Con)]

My Lords, I support Amendments 59, 63, 64 and 67. I believe these are measured and proportionate steps to preserve existing safeguards around child detention—safeguards introduced by a Conservative Government.

Child detention must only ever be a last resort. That is a clear requirement, as many have said, of Article 37 of the UN Convention on the Rights of the Child, which also requires that detention be for the shortest appropriate time. Article 22 requires states to ensure that children seeking refugee status receive “protection and humanitarian assistance”. I hope and believe that these principles will be recognised and shared across your Lordships’ Committee.

There is strong evidence that the mental and physical health impacts of detention on children are severe. For refugee children, often escaping from traumatic circumstances, detention can further compound their trauma. Detention separates children from their peers, interrupts their education, exposes them to violence and denies them the safe, loving and supportive environment that children need to develop and thrive, and which is their right. Detention undermines parental authority and strains the parent-child relationship. This lasts well beyond the period of detention itself. Even short spells in detention can cause trauma and long-term mental health risks for children. When we detain refugee children, we should know that we are making their future lives and integration into society even harder.

My noble friends in government may have said that they recognise these impacts and do not want to detain children, but I am afraid that, as written, this is precisely what the Bill will do. My noble friend Lady Mobarik has explained the existing limits and how the Bill would change them. To reiterate: the detention powers in the Bill would apply to all migrant children and could see them routinely detained in any location for an indefinite period. This is simply not in line with the principle of child detention as a limited last resort.

We know that the immigration system is overstretched. As such, we can reliably expect every time limit and latitude granted to immigration officials by the Bill to be exploited to the full. Therefore, we must make certain that children’s rights and the limits on their detention are guaranteed in law. It is not good enough for my noble friend the Minister to say that child detention should be exceptional. The law must make it exceptional.

There are some problems which new laws can solve. There are other times when new laws will have no effect—or such serious side-effects that they are entirely disproportionate to the problem. If the Government do not feel that they can regulate immigration and asylum without locking up children for extended periods, that is indicative of a broken system. It is not a problem that is resolved by detaining children.

There is no evidence that the introduction of the existing limits on child detention have led to an increase in illegal immigration. There is no reason to think that removing these limits will improve the Government’s ability to control immigration and prevent the dangerous channel crossings. Exposing children to greater risk of harm, with no guarantee of preventing harm, is not a step we should accept.

The existing limits on child detention, brought in after careful consideration by the Conservative Government, meet the practical need that sadly exists. They ensure that detention is strictly controlled and time-limited, as the UN Convention on the Rights of the Child requires. They mitigate the harm that detention causes. They make detention the last resort. That is what we must retain, and I urge noble Lords to support these amendments.

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Moved by

[Baroness Lister of Burtersett]

68: Clause 10, page 17, line 18, leave out from “paragraph” to the end of line 19 and insert “(a) of the definition of “relevant detention power”, after “paragraph 16(2)” insert “, (2C) or (2D)””
Member's explanatory statement
The effect of this amendment is that section 60 of the Immigration Act 2016 (which limits the detention of pregnant women normally to 72 hours under existing powers of immigration detention) will apply to the new powers of detention created by Clause 10 of the Bill.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I will also speak briefly to Amendment 70, which is also in my name. Before I start, I wish to put on the record my protest at the fact that we are debating these important issues after midnight. It is disgraceful.

[Noble Lords]

Hear, hear!

[Baroness Lister of Burtersett (Lab)]

I am very grateful to the right reverend Prelate the Bishop of Gloucester, who sends her apologies that she cannot be here, but who asked me to underline her strong support. I am grateful to the noble Baroness, Lady Gohir, for her support for both amendments, and the noble Baroness, Lady Sugg, and my noble friend Lady Chakrabarti for each signing one of them. I am grateful to Women for Refugee Women and Medical Justice for their briefings on the amendments, but I feel we really cannot do them justice at this hour.

Amendment 68 does no more than restore the status quo ante, restricting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This restriction was introduced by the Immigration Act 2016 thanks to the strong opposition in your Lordships’ House to the detention of pregnant women.

Prior to that, there was no time limit and, although policy stated that pregnant women should be detained only in exceptional circumstances, in practice they were all too often detained in far from exceptional circumstances, and often for long periods. The Bill would return us to those dark days.

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I conclude by reminding the Committee that the challenge we face in addressing the current levels of illegal entry into the United Kingdom calls for a new and radical approach. That means having to re-evaluate some legislation passed in recent years with the best of intentions. The challenges that we face now are different in kind and scale since Section 60 of the Immigration Act was enacted. Of course, pregnant women must be properly cared for while they are in detention and will be detained only in suitable accommodation with appropriate healthcare provision, but the fact that they are pregnant cannot of itself act as a bar on detention under the Bill. On that basis, I invite the noble Baroness to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, first of all, I thank all noble Lords who have spoken. All, apart from the Minister, spoke in support of the amendment. I am very grateful to them for staying until this ungodly hour and not allowing the Government to chase them off, in effect, through tiredness. I know that others have not spoken, but I have felt their support anyway. People are nodding, and I thank them. I know that others who cannot stay this late have had to leave.

My noble friend Lord Ponsonby remarked on my anger that we are discussing this at such a ridiculous time. Yes, I am angry about that, but I am also angry because, as the noble Lord, Lord Alton, set out very clearly, we are having to refight the battles that we fought in 2016 at some length in this House and won. It is so depressing to have to put the same arguments yet again, because the Government and Theresa May accepted them then, and we reached a compromise. That is why, although in my heart I agree with the noble Lord, Lord Scriven, because that is what I argued for in 2016, with my head I say that we have to just try to get back to where we were. There is no point trying to go further, I am afraid, although I accept what he said in principle.

I should also note that there are a whole lot of other people here who probably would not normally sit in on our Committee proceedings, and I hope they have learned something. I hope they have learned through having to listen to what we are doing to pregnant women—what their Government are doing to pregnant women. I hope they will think about it. Some of their colleagues on the government Benches might have words, perhaps, afterwards, because as my noble friend said, the noble Baroness, Lady Sugg, made a very powerful case.

I thank the Minister for his response, but it was utterly disappointing. He utterly failed to engage with what his noble friend said about the vacuity of the incentives argument, and he had no other argument to put. There is no case, really, because, as she made clear, that argument does not stand up. It was very depressing and disappointing that there was no case.

I am also disappointed that a number of the questions I asked were not answered. I am not going to press them now— it is nearly 1 o’clock in the morning.

[Lord Stewart of Dirleton (Con)]

I apologise to the noble Baroness. Any oversight was entirely a failure on my part. I will review the record and revert to the noble Baroness in writing, if that is acceptable.

[Baroness Lister of Burtersett (Lab)]

It is perfectly acceptable. I was just going to suggest that the Minister do that. I do not blame him at all, because I do not imagine he is that keen on arguing this out at 1 o’clock in the morning either.

We will return to this at Report—we have to. As a number of noble Lords said, this is a narrow amendment that does not drive a coach and horses through the whole Bill, much as I hate the Bill. It would not cost the Government anything to concede to this amendment before Report, rather than forcing us to come back then and go through the whole thing again, voting for the health of pregnant women and their babies. For now, however, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.