Border Security, Asylum and Immigration Bill

Committee stage
Wednesday 3rd September 2025 Lords Chamber

Committee (4th Day) (Continued)

20:31

Amendment 106

Moved by

[Lord Davies of Gower]

106: After Clause 38, insert the following new Clause—
“Unaccompanied children and power to provide for exceptions(1) The duty in section (Duty to make arrangements for removal)(1) does not require the Secretary of State to make arrangements for the removal of a person from the United Kingdom at a time when the person is an unaccompanied child.(2) The Secretary of State may make arrangements for the removal of a person from the United Kingdom at a time when the person is an unaccompanied child.(3) The power in subsection (2) may be exercised only—(a) where the person is to be removed for the purposes of reunion with the person’s parent;(b) where the person is to be removed to a country listed in section 80AA(1) of the Nationality, Immigration and Asylum Act 2002 (safe States for the purposes of section 80A of that Act) which is—(i) a country of which the person is a national, or(ii) a country in which the person has obtained a passport or other document of identity;(c) where the person has not made a protection claim or a human rights claim and the person is to be removed to—(i) a country of which the person is a national,(ii) a country or territory in which the person has obtained a passport or other document of identity, or(iii) a country or territory in which the person embarked for the United Kingdom;(d) in such other circumstances as may be specified in regulations made by the Secretary of State.(4) Regulations under subsection (3)(d) may confer a discretion on the Secretary of State.(5) For the purposes of this section a person (“C”) is an “unaccompanied child” if—(a) C meets the four conditions in section (Duty to make arrangements for removal),(b) C is under the age of 18, and(c) at the relevant time no individual (whether or not a parent of C) who was aged 18 or over had care of C.(6) In subsection (5) “the relevant time” means the time of C’s entry or arrival in the United Kingdom by virtue of which the duty in section (Duty to make arrangements for removal)(1) would apply in relation to C apart from this section.(7) The Secretary of State may by regulations make provision for other exceptions from the duty in section (Duty to make arrangements for removal)(1). (8) Regulations under subsection (7) may make provision—(a) for this Act or any other enactment to have effect with modifications, in relation to a person to whom an exception applies, in consequence of the application of the exception to that person;(b) for an exception, or for any provision made by virtue of paragraph (a), to be treated as having had effect from a time before the coming into force of the regulations.(9) Regulations made by virtue of subsection (8)(a) may, in particular, disapply any provision of this Act or any other enactment in relation to a person to whom an exception applies.(10) In subsections (8) and (9) “enactment” includes—(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;(c) an enactment contained in, or in an instrument made under, a Measure or Act of Senedd Cymru;(d) an enactment contained in, or in an instrument made under, Northern Ireland legislation.(11) A statutory instrument containing regulations under subsection (7) must be laid before Parliament after being made.(12) Regulations contained in a statutory instrument laid before Parliament under subsection (11) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.(13) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—(a) Parliament is dissolved or prorogued, or(b) either House of Parliament is adjourned for more than four days.(14) If regulations cease to have effect as a result of subsection (12) that does not—(a) affect the validity of anything previously done under the regulations, or(b) prevent the making of new regulations.(15) In this section—“human rights claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002;“national” includes citizen;“protection claim” has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002.”

[Lord Davies of Gower (Con)]

My Lords, I will also speak to Amendments 107, 108 and 111 standing in my name. They are all linked to the amendments in the previous group and once again are aimed at understanding exactly why the Government are repealing each of these clauses.

First and foremost, Amendment 106 rightly acknowledges the unique vulnerability of unaccompanied children. Unlike adults, these children do not have the benefit of parental guidance, support or protection, which fundamentally changes the context in which any immigration or removal decision should be made. The exemption from removal under proposed new subsection (1) reflects the humane principle that children, especially those who arrive without guardians, require special consideration. At the same time, the amendment incorporates a balanced discretion for the Secretary of State to make exceptions, but, crucially, only in narrowly defined and principled circumstances. This discretion is limited to cases of family reunion or removal to a safe state to which the child has a clear connection, such as nationality or passport holding. This would ensure that the state maintains the ability to act in the best interests of the child and public policy without resorting to indiscriminate removals.

Amendment 107 would bring much-needed clarity and accountability to the handling of European Court of Human Rights interim measures, in relation to the duty to remove under Amendment 105. Interim measures, often issued to prevent irreparable harm while a full hearing is pending, are a critical tool in safeguarding human rights. However, this amendment rightly recognises that these measures must be balanced with national sovereignty and the Government’s responsibility to manage immigration effectively. First, the amendment would establish that the decision to give effect to a European Court of Human Rights interim measure is the discretionary personal responsibility of a Minister of the Crown. This personal involvement emphasises the gravity of the decision, ensuring that it is not delegated lightly or handled bureaucratically. Such a provision would enhance political accountability, requiring Ministers to engage directly with complex legal and humanitarian issues rather than allowing automatic suspension of removal without sovereign consideration.

Furthermore, by restricting the obligation of immigration officials, courts and tribunals to give effect to the interim measure where a Minister has chosen not to recognise it, the amendment would prevent conflicting mandates within the system. This avoids a confusing legal limbo where different authorities might take contradictory positions regarding removal actions that undermine coherence and efficiency in immigration enforcement. This provision strikes a pragmatic balance between respecting international human rights obligations and preserving the Government’s capacity to maintain effective border control. It avoids rigid, automatic enforcement of interim measures that could paralyse immigration functions while still providing a structured framework to engage with the European court’s decisions.

Amendment 108 is a crucial step towards ensuring the duty in Amendment 105 is not needlessly hobbled, and that anyone who enters illegally is removed no matter who they are. It would tackle head-on abuse of asylum and human rights claims, a process that can delay removals and undermine the integrity of the immigration system. The amendment would make it clear that, for individuals meeting the statutory conditions for removal, any protection claim, human rights claim, trafficking or slavery victim claim or application for judicial review cannot be used to delay or frustrate the removal process.

This is vital. Currently, the system is frequently exploited through repeated and sometimes frivolous claims, causing prolonged uncertainty, administrative backlog and resource drain on the Home Office and courts. Declaring claims inadmissible at the outset when conditions for removal are met would significantly reduce abuse. It sends a strong message that these legal routes are not loopholes for indefinite delay. This also enables faster removal decisions, preserving our ability to control our borders effectively.

We have also included a judicial ouster clause in this amendment to prevent courts from setting aside inadmissibility declarations, promoting legal certainty and finality in removal proceedings. This avoids protracted litigation and vexatious legal challenges, which often tie up judicial resources without improving outcomes for genuine claimants.

Finally, Amendment 111 addresses the question of what support, if any, is available to individuals whose asylum or related claims are declared inadmissible under these amendments. By amending the Immigration and Asylum Act 1999 and related legislation, the proposed clause ensures that the withdrawal or withholding of support aligns consistently with the inadmissibility framework. This is essential for legal clarity and operational coherence. Without these amendments, there would be a disconnect between the removal of rights to remain and the removal of support, potentially creating gaps or confusion in how support is administered. The amendment ensures that, when a person’s claim is declared inadmissible under the new rules, the support framework adjusts accordingly, reflecting that the individual is no longer entitled to certain forms of state assistance. It also protects the integrity of the asylum support system by preventing those whose claims do not meet the admissibility criteria from accessing support intended for genuine asylum seekers. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I know that the Government vigorously opposed the Rwanda Bill, and indeed the Prime Minister described it as a gimmick, or words to that effect. I understand that that is the Government’s position, and I do not expect them to change their mind. But the point worth making is that, although the Rwanda scheme as a whole may not have found favour with the Government, it does not follow that some of the provisions in that Act are not appropriate to whatever policy the Government ultimately may think is appropriate. I know that this is something of a moving picture, as the Minister acknowledged.

I will not repeat what I said in the wrong group in relation to Amendment 107, but I place particular emphasis on that amendment because that issue was a pretty obvious excess of jurisdiction on the part of the European Court of Human Rights. This Government, whatever the final form their policy takes in statutory terms, may find that they have an interim ruling from the European Court of Human Rights that offends natural justice. The fact that—as the noble Lord, Lord Davies, quite rightly said—it needs a Minister before a decision is taken to reject it is an important safeguard. It is not a question of casting it aside and ignoring it; it is considered at an appropriate level, having regard to the unsatisfactory nature of the interim order that the court made under Rule 39. It is important that that provision should be inserted, whatever form the policy takes.

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

I am grateful to the noble Lord, Lord Davies, supported by the noble Lord, Lord Cameron of Lochiel, for the amendment. As I have said previously, the Government are trying to ensure that we have a properly functioning immigration system. The Illegal Migration Act 2023 included provisions that, in my view, prevented asylum decision-making, increased the backlog of asylum cases awaiting an outcome and put impossible pressure on asylum accommodation, with significant costs to the taxpayer, which we have discussed on other groups.

The Act has largely not been commenced, and it is this Government’s policy—I confirm this to the noble Lord, Lord Faulks—that we will not commence the Act, as we have accordingly stated in our manifesto and elsewhere. Therefore, Clause 38 repeals the majority of the measures contained in the Illegal Migration Act 2023, including Section 2 on the duty to remove and associated provisions. However, it is not a blanket approach to repealing the Act. The six measures that the Government intend to retain include provisions that are in force and that have been identified as having operational utility and benefit. The Government see all these powers as important tools to allow for the proper operation of the immigration system and to achieve our wider priorities, along with the other measures that we brought forward.

Amendment 106 seeks to retain Section 4 of the Illegal Migration Act. I believe this measure to be unnecessary. The new clause would, for example, preserve the power to remove unaccompanied children under 18 in specific circumstances when the duty to remove applies.

Section 55, which the noble Lord, Lord Faulks, referred to and which Amendment 107 seeks to retain, would provide for a Minister of the Crown to disregard an interim measure of the European Court of Human Rights where the duty to remove applies. I have heard what the noble Lord said. We have made a judgment that we do not need that provision, and therefore this is part of our proposals on the repeal of the Act.

Section 5 of the Illegal Migration Act, which Amendment 108 seeks to retain, would have meant that an asylum claim and/or human rights claim would be declared inadmissible and would not have been substantively considered in the UK where the person had entered or arrived illegally and had not come directly from a country in which their life or liberty were threatened. It would also have meant that an asylum claim and/or human rights claim would have been declared inadmissible if the person was from a country of origin considered generally safe.

Section 9 of the Illegal Migration Act, which Amendment 111 seeks to retain, would ensure that individuals whose claims are disregarded as a result of being subject to the duty to remove and disregard of certain claims provisions—these are a result of amendments we have considered earlier, such as Amendment 105, and now Amendments 108 and 109—are entitled to support only under Section 4 of the Immigration and Asylum Act 1999. This would align their entitlement to support to others declared inadmissible under Sections 80A or 80B of the Nationality, Immigration and Asylum Act 2002, akin to that of failed asylum seekers. This clause is also unnecessary.

The sections included in this group of amendments were designed to operate alongside Section 2 of the IMA Act, which imposed the duty to remove. As we are now repealing Section 2, this group of amendments has no legal or practical effect. Leaving them in place would simply create confusion. Repealing these sections is a necessary step to ensure the law reflects the Government’s policy direction and avoids ambiguity. Again, I appreciate the comments from the noble Lord, Lord Faulkes, and the Front Bench, but, on the basis of the comments I have made, I invite the noble Lord, Lord Davies, to withdraw his amendment.

20:45

[Lord Davies of Gower (Con)]

My Lords, I am not sure that the noble Lord has explained fully why the Government are removing these sections of the Illegal Migration Act and why they oppose these amendments. The first amendment sought to protect unaccompanied children from automatic removal, while allowing for carefully defined exceptions. The second amendment aimed to clarify ministerial discretion when it comes to interim measures from the European Court of Human Rights—a safeguard that balances human rights considerations with the practicalities of border control. The third amendment addressed the worrying practice of disregarding outright certain protections, human-rights trafficking claims and judicial review applications—something that risks undermining access to justice. The fourth amendment ensured the coherence of asylum support provisions in cases where claims are declared inadmissible, preventing gaps and confusion around entitlement to state assistance. I make it clear that these concerns remain very much alive with us and may well be brought forward again in the future. But for now I beg to withdraw my amendment.

Amendment 106 withdrawn.

Amendments 107 to 109 not moved.

Amendment 110

Moved by

[Lord Cameron of Lochiel]

110: After Clause 38, insert the following new Clause—
“Powers to amend Schedule (Countries and territories to which a person may be removed)(1) The Secretary of State may by regulations amend Schedule (Countries and territories to which a person may be removed) to add a country or territory, or part of a country or territory, if satisfied that there is in general in that country or territory, or part, no serious risk of persecution.(2) If the Secretary of State is satisfied that the statement in subsection (1) is true of a country or territory, or part of a country or territory, in relation to a description of person, regulations under subsection (1) may add the country or territory or part to Schedule (Countries and territories to which a person may be removed) in respect of that description of person.(3) A description for the purposes of subsection (2) may refer to—(a) sex,(b) language,(c) race, (d) religion,(e) nationality,(f) membership of a social or other group,(g) political opinion, or(h) any other attribute or circumstance that the Secretary of State thinks appropriate.(4) In deciding whether the statement in subsection (1) is true of a country or territory, or part of a country or territory, the Secretary of State—(a) must have regard to all the circumstances of the country or territory, or part (including its laws and how they are applied), and(b) must have regard to information from any appropriate source (including member States and international organisations).(5) The Secretary of State may by regulations amend Schedule (Countries and territories to which a person may be removed) to omit a country or territory, or part of a country or territory, and the omission may—(a) be general, or(b) have the effect that the country or territory, or part, remains listed in Schedule (Countries and territories to which a person may be removed) in respect of a description of person.”

[Lord Cameron of Lochiel (Con)]

My Lords, the amendments in this group seek to understand why the Government have decided to remove key parts of the legal architecture that we say provided a robust legal framework for dealing with this issue. Amendment 110 seeks to reintroduce an essential power from the Illegal Migration Act which enables the Secretary of State to update, through regulation, the list of countries to which individuals can be safely removed. These are countries that meet the test of presenting no serious risk of persecution in general. I repeat the point that I made earlier: the test is “in general”. The provisions in the amendment allow that list to evolve with circumstance, reflecting real-world developments, legal reforms and international assessments.

The capacity to have that list is a crucial part of the architecture of deterrence, because the only way we will stop people risking their lives to come here illegally is if they know with certainty that doing so will not result in a permanent right to stay. That means that swift and lawful removals to safe third countries must be a central pillar of our strategy. To achieve that, we need a legal framework that enables such removals to happen. That is what this clause does; it gives the Government flexibility to respond to changing global conditions and build bilateral or multilateral returns agreements on a lawful, transparent and evidence-based footing. Without that power, our capacity to remove inadmissible claimants is drastically reduced.

It is not about denying protection to the vulnerable. Proposed new subsection (4) rightly requires the Secretary of State to have regard to the legal, social and political context of any country before designating it as safe. It allows for targeted assessments—for example, recognising where certain groups might still face harm, even if others do not. As I have suggested, this is a balanced, evidence-led provision which allows us to remove those with no right to stay, while also upholding our obligations to those who genuinely need refuge. Amendment 120 works in conference with Amendment 110 and sets out the list of safe third countries to which I have already referred. To conclude, we cannot reduce illegal migration by making it easy to stay. We reduce it by making it clear, through law and through action, that illegal entry will not be rewarded. We hope the Government can set out why they have now abandoned that strategy.

[Lord Alton of Liverpool (CB)]

My Lords, I return to something I said in the earlier groups of amendments. The country that is at the heart of so much of this debate and previous debates is Rwanda. The noble Lord, Lord Cameron, has introduced his amendments with customary coherence but, ultimately, I do not think he has thought through some of the countries he is talking about. He certainly has not responded to the points that were made earlier about Rwanda.

It is not just about Rwanda. The problem is that this is about generalities, and we are required by the obligations that we have entered into to get down to specifics. I shall give one illustration of what I mean by that from another example in this long list in Amendment 120—that is, the country of Nigeria. The Joint Committee on Human Rights report, referred to in earlier proceedings on this Bill, quotes the United Nations High Commissioner for Refugees as saying that,

“while designation of safe countries may be used as a procedural tool to prioritise or accelerate the examination of applications in carefully circumscribed situations”,

which is really what the noble Lord, Lord Cameron, was saying to us, and I do not think that there is conflict about that,

“it does not displace the requirement for an individualised assessment of an asylum claim”.

The UNHCR notes that the risk of refoulement in the absence of individualised assessments is unacceptable. I refer the noble Lord, if I may, as well as the Minister when he comes to respond, to paragraph 122 of the Joint Committee on Human Rights report that deals with that.

The JCHR concluded that it shared the concerns of its predecessor committee—because this is not a new issue; it has been around for predecessor committees. I look at the noble Baroness, Lady Hamwee, because she and I seem to have gone around this course many times over the past few years. It said:

“We share the concerns of our predecessor Committee that, whilst the states listed may be considered safe in general, this does not guarantee the safety of all individuals from these states, especially those who are members of particular social groups facing persecution. It must be possible for such individuals who face a real risk of persecution upon return to make a protection or human rights claim which must be considered on its merits in order to guard against the risk of refoulement. If the Government chooses to bring section 59 of the Illegal Migration Act into force, it should, at the very least, periodically review the list of safe states, with a particular consideration of the rights of minority groups”.


Again, the noble Lord, Lord Cameron, accepted that there would be regular review, but I would like him to respond further, when he comes to reply to the group of amendments, on how he looks at the position of minority groups in some of these countries. These are not just groups that are defined by issues such as ethnicity, religion, gender or orientation: it is also about what happens inside particular countries. A country such as Nigeria may be safe, and that is the example that I shall turn to in a moment, if you are in Lagos or Abuja, but it is not necessarily safe in Benue state or northern Nigeria—depending, again, on aspects of your background. How will that be dealt with in a list of this kind?

I have a dislike of these kinds of lists anyway, as a principle. I do not know that they help matters. We should look at every single case and country on the merits of the arguments. These are things that we should keep abreast of without having to draw up lists. I shall give a specific example of the dangers of this one-size-fits-all approach in what can be variable conditions, depending on many issues—everything from minority ethnicity or religion to gender or orientation. It is an issue that I raised in the debates on the Nationality and Borders Bill, when we were debating it on 8 February 2022, and again on Report on the Illegal Migration Bill, and I refer to Hansard of 5 July 2023.

I cited the case of Mubarak Bala, president of the Humanist Association of Nigeria, who was sentenced to 24 years in prison for so-called blasphemy committed on Facebook. Nigeria is one of 71 countries that criminalise blasphemy, and as long as those laws exist people will face persecution, prosecution and imprisonment. As I have said, some will even face the possibility of death and be pushed to find safe haven abroad. During those debates, I also raised the case of Usman Buda, a Muslim, who was murdered in Sokoto state in north-west Nigeria because it was alleged that he had blasphemed. I raised the case of the lynching of Deborah Emmanuel, a Christian, at Shehu Shagari College of Education, again following an unsubstantiated accusation of blasphemy.

Last year, I raised the plight in your Lordships’ House of Nigerian Christians in the northern and middle belt states and pointed out that some 82% of Christians killed for their faith in the previous year were in Nigeria—4,998 Christians were slaughtered, with 200 murdered during the Christmas services in 2023. The highly respected voluntary organisation and charity Open Doors reports that

“Christians in Nigeria continue to be terrorised with devastating impunity”

with

“abductions for ransom, sexual violence and death … leaving a trail of grief and trauma”.

I met Dominic and Margaret Attah, who were survivors of the Boko Haram Pentecost attack at St Francis Xavier Church in Owo, where 30 were murdered. Margaret’s legs had been blown off. She wanted to know why nobody had been brought to justice. I asked the then Minister, who told me in reply:

“We continue to call for those who committed this attack to be brought to justice and held to account”.


Needless to say, they have not been brought to account. Nor have the abductors of Leah Sharibu, who was abducted on 19 February 2018 by ISIS West Africa from the Government Girls Science and Technology College in Dapchi, Yobe State. Leah was told to convert; she refused, and was raped, impregnated and enslaved. She is still held captive. I promised her mother, Rebecca, who I showed around your Lordships’ House, that I would lose no opportunity to raise her case. I have done so on a number of occasions with Ministers.

When I see that this country is safe, according to the amendment, to send men back to, I wonder what will happen to these men if they come from a particular religious group or one that holds a set of views that are unacceptable, or a group that is defined by their sexual orientation. The Government’s travel advice contradicts the presumption that it is safe, particularly for gay men:

“Same-sex sexual activity is illegal in Nigeria with penalties of up to 14 years in prison. Some northern states observe Sharia Law which can prescribe the death penalty for same-sex sexual activity … Same-sex relationships are generally viewed as socially unacceptable in Nigerian society. There is an increased risk of violence, attacks and threats, such as blackmail and intimidation against anyone being thought to be part of the LGBT+ community or supporting their rights”.


This advice is based on facts, not wishful thinking that adding Nigeria to this list will somehow make it a safe country. We have got to follow facts and evidence. Similarly, atheists face significant risks, including discrimination, marginalisation, ostracism, violence and, as I said, potentially death, particularly in the northern states. No differentiation is made in this list between different parts of the country. No distinction is made according to people’s minority status. It demonstrates the dangers of drawing up lists of this kind. I plead with the Official Opposition to give this further thought before we are perhaps asked to vote on this on Report, which I hope we will not be.

[Baroness Brinton (LD)]

It is an honour to follow the noble Lord, Lord Alton, and his detailed introduction to Amendment 120. I will start there and then very briefly go back to Amendment 110. I will not repeat what I said earlier or what he has just said.

I have checked every single country on the list where it says, in brackets, “in respect of men”. All of them have similar approaches to gay men in particular, as the noble Lord described. There are a number of European countries that are now doing that, including Hungary and Slovakia. When I was last in Bratislava, we went to place some flowers where a friend of a local had witnessed her two colleagues being shot as they went into a bar. It includes Moldova and a number of other countries which are becoming extremely intolerant.

Going back to Amendment 110, the detailed descriptions in proposed new subsection (3) which start with sex, language and race are helpful, but they are exclusive. They exclude key protected characteristics which we and our courts recognise in this country. Can the Official Opposition say whether there is a particular reason for doing that? For example, the protected characteristic is “religion or belief”, not just religion. There is gender reassignment, sexual orientation and pregnancy and maternity, which is extremely important for not just adult women but young girls, who may be returning to a place where young girls are traded for marriage and pregnancy. The last remaining two are age and—I am sorry to say I do not find this here—disability.

21:00

I hope that, should the Official Opposition bring this back on Report, this will be remedied. If the courts here say that these are special reasons why somebody might face a particular problem in their life, I would find it astonishing if we ignored them and sent people back, particularly when we know there are problems in some of the countries on the list in Amendment 120.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord, Lord Cameron, for his introduction to Amendments 120 and 110, which respectively seek to retain the Schedule 1 list of countries to which a person subject to the duty to remove under the Illegal Migration Act could be removed, and the power to amend that list of countries. If noble Lords examine the amendment in detail, they will see that it is reliant on Amendment 105, which we discussed in a previous group and which seeks to retain the duty to remove from the IMA, and a number of other amendments that we have already debated that hinge on these attempts to reinstate the IMA. In a sense, without Amendment 105, which has been withdrawn by the noble Lord, this cannot be implemented. Of course, we have had the debate and I will still answer the points raised.

The Bill does not take a blanket approach to the repeal of the IMA, and the Government intend to retain provisions that have been identified as having operational utility and benefit. However, these amendments do not do that—particularly now that Amendment 105 has been withdrawn. They would have no effect without retention of the duty to remove and associated provisions. Those provisions were introduced for the purposes of the previous Government’s failed Rwanda scheme and, as we have said in the manifesto and beyond, we intend to remove the Rwanda scheme as a whole.

I note the comments from the noble Baroness, Lady Brinton, and the noble Lord, Lord Alton; they made extremely valid points about the country list and the mechanism for that list. It backs up the provisions that we have mentioned from the Government’s perspective as to why we are not going to progress Amendments 120 and 110. Self-evidently, the previous Government tried and failed to implement those provisions, so even without Amendment 105 it is quite challenging for us to agree to pick up the torch and carry on when the previous Government could not do that themselves. Those policies also brought the system to a standstill. There were thousands of asylum claims put on hold, an increase in the backlog, incredible pressure on the asylum accommodation system and significant cost to the taxpayer. Those are some of the challenges that, even now, the 13 month-old Government are trying to pick up.

Therefore, I cannot support the amendments that seek to reintroduce those measures from the IMA. Through Clause 38, which we have considered already, this Government seek to repeal the majority of the measures contained in the IMA, including the provisions that these amendments seek to retain.

It is also worth noting that this list is, in effect, more restrictive as to where we could remove an individual who has come to the UK unlawfully under well-established powers to remove that we already have in place. Under existing inadmissibility provisions, an asylum claim may be treated as inadmissible if the claimant has previously been present in, or has a connection to, a safe third country where it is considered reasonable to expect them to have sought protection. Under existing powers, we can remove people to a country or territory to which there is reason to believe a person will be admitted.

Therefore, for the reasons given in relation to Amendment 105 and with a strong—I hope—listening message to the points made by the noble Baroness, Lady Brinton, and the noble Lord, Lord Alton, I invite the noble Lord not to press these amendments.

[Lord Faulks (Non-Afl)]

Before the Minister sits down, I understand exactly what he said about the list, but how does a tribunal determine in an individual case whether a country is safe?

[Lord Hanson of Flint (Lab)]

I have said to the Committee previously that that has to be examined on an individual basis. The examples that the noble Lord, Lord Alton, has given, where a country may be safe but a small region of that country or a protected characteristic of the individual may not be, are judgments that are made based on the evidence put before a tribunal. We will of course examine those issues in detail, but the blanket approach we have here is not appropriate.

[Lord Faulks (Non-Afl)]

I am sorry to pursue the point, but it seems to be quite important. Therefore, does an individual court have to make an assessment without any guidance from Parliament as to whether, for that individual, with their particular characteristics, a particular country is safe?

[Lord Hanson of Flint (Lab)]

It is fair and reasonable for a tribunal to look at those representations accordingly. In this legislation, we are trying to remove the effective provisions which meant that the Rwanda offer was in place under legislation. As we have done through the immigration White Paper and other statements, we are continually monitoring how the practice is going to be implemented once this has been completed. I will certainly reflect on the points that the noble Lord, Lord Faulks, has made, but the principle before the Committee today is that the list of countries without the provisions we have already agreed are being repealed or the amendment which has already been withdrawn is superfluous. Backed up by the comments of the noble Lord, it also means that what is deemed to be a safe country may not be a safe country. There are elements that can be examined and representations that can be made to ensure that people who either have a characteristic or are from a particular region in a country can make the case to the tribunal that their individual circumstances demand a decision not to be removed.

[Lord Cameron of Lochiel (Con)]

I am very grateful to all noble Lords who have spoken in this debate. Of course, the Minister is correct that, with the prior amendment having been withdrawn, then as a matter of technicality these amendments, if pressed, would struggle. However, I feel it is important to reiterate the general point being made: that the amendments are not rhetorical but seek to reintroduce practical, enforceable tools that were part of a wider strategy to restore control over our borders.

I apologise for not addressing the point made by the noble Lord, Lord Alton, and the noble Baroness, Lady Brinton, before now, but the answer is in Amendment 110 and the proposed new clause under discussion: that the power exercised by the Secretary of State has to be a general one—it cannot take account of a particular individual assessment or scenario. That is why in its first subsection the amendment says that the Secretary of State must be

“satisfied that there is in general in that country or territory, or part, no serious risk of persecution”.

Having made the general point, I would suggest that, thereafter, the Secretary of State is allowed to take into account specificity, in effect, and to say, for instance, that the statement in subsection (1) is true of a country or territory, or part of a country or territory, in relation to a description of person. Therefore, already, a country can be divided into its constituent parts.

Subsection (3) states that the description can include

“sex … language … race … religion … nationality … membership of a social or other group … or… any other attribute or circumstance that the Secretary of State thinks appropriate”.

I suggest to the noble Baroness, Lady Brinton, that this allows a particular attribute or characteristic to come into play. She is right that the various characteristics described in that subsection do not mirror protected characteristics in UK discrimination law. There is an absence of disability; political opinion is not a protected characteristic in UK discrimination law, but it is included in this list. The catch-all in subsection (3)(h) allows that specificity to be created, and for the protection to exist.

In conclusion—

[Baroness Hamwee (LD)]

I am sorry to interrupt the noble Lord, but perhaps I may raise a point which he has referred to but which has not been referred to in the debate, which is “part of a country”? Is it possible to be assured that if one is returning someone to a country where in one part there is a problem, that country—through its internal procedures—will not move somebody into that part?

[Lord Alton of Liverpool (CB)]

I am very happy to butt in and to say that was exactly the point I wanted to make. The noble Lord referred us to subsection (1) in the amendment and the phrase “in general”. That in itself needs to be fleshed out as to what it really means. The noble Baroness, Lady Hamwee, has asked the right question.

[Lord Cameron of Lochiel (Con)]

I am grateful to the noble Baroness and the noble Lord for their interventions. “In general” is a well-known phrase; it is used in the 2002 Act and in this subsection. If one is to imagine a Secretary of State taking a decision, it has to be a generalised decision. It has to take into account a general view of whether that country, or part of that country, is safe.

In answer to the noble Baroness, Lady Hamwee, I would say what the “part of a country” aspect allows the Secretary of State to do is to specify in the list—which is an evolving list—whether one part of the country is safe.

In light of everything that has been said—I am grateful for all the thoughtful contributions from across your Lordships’ House—I beg leave to withdraw the amendment.

Amendment 110 withdrawn.

Amendments 111 to 113 not moved.

Amendment 114

Moved by

[Lord Davies of Gower]

114: After Clause 38, insert the following new Clause—
“Decisions relating to a person’s age(1) This section applies if a relevant authority decides the age of a person (“P”) who meets the four conditions in section (Duty to make arrangements for removal) (duty to make arrangements for removal), whether that decision is for the purposes of this Act or otherwise.(2) If the decision is made on an age assessment under section 50 or 51 of the Nationality and Borders Act 2022, P may not bring an appeal against the decision under section 54(2) of that Act.(3) Subsections (4) and (5) apply if P makes an application for judicial review of—(a) the decision mentioned in subsection (1), or(b) any decision to make arrangements for the person’s removal from the United Kingdom under this Act which is taken on the basis of that decision.(4) The application does not prevent the exercise of any duty or power under this Act to make arrangements for the person’s removal from the United Kingdom. (5) The court or tribunal must determine the application on the basis that the person’s age is a matter of fact to be determined by the relevant authority; and accordingly the court or tribunal—(a) may grant relief only on the basis that the decision was wrong in law, and(b) may not grant relief on the basis that the court or tribunal considers the decision mentioned in subsection (1) was wrong as a matter of fact.(6) In this section “relevant authority” means—(a) the Secretary of State,(b) an immigration officer,(c) a designated person within the meaning of Part 4 (age assessments) of the Nationality and Borders Act 2022,(d) a local authority within the meaning of that Part, subject to subsection (7), or(e) a public authority within the meaning of that Part which is specified in regulations under section 50(1)(b) of that Act (referral of age-disputed person for age assessment).(7) This section applies in relation to a decision of a local authority which is a decision within subsection (1) only if it is for the purposes, or also for the purposes, of the local authority deciding whether or how to exercise any of its functions under relevant children’s legislation within the meaning of Part 4 of the Nationality and Borders Act 2022.(8) For the purposes of this section, the cases in which a relevant authority decides the age of a person on an age assessment under section 50 or 51 of the Nationality and Borders Act 2022 include where a relevant authority is treated by virtue of regulations under section (Age assessments: power to make provision about refusal to consent to scientific methods) of this Act as having decided that a person is over the age of 18.(9) This section applies only in relation to a decision which is made after this section comes into force.(10) The Nationality and Borders Act 2022 is amended as follows.(11) In section 54(6) (appeals relating to age assessments)—(a) omit the “and” at the end of paragraph (a), and(b) at the end of paragraph (b) insert “, and(c) section (Decisions relating to a person’s age) of the Border Security, Asylum and Immigration Act 2025 (decisions relating to a person’s age).”(12) In section 56(1) (new information following age assessment or appeal), for paragraph (b) (and the “and” at the end of that paragraph) substitute—“(b) an appeal under section 54(2)—(i) could no longer be brought (ignoring any possibility of an appeal out of time),(ii) has been finally determined, or(iii) may not be brought as a result of section (Decisions relating to a person’s age)(2) of the Border Security, Asylum and Immigration Act 2025 (age assessments relating to removal under that Act), and”.”

[Lord Davies of Gower (Con)]

My Lords, we all agree that our system must be fair, and that there must be opportunities for proper dialogue and challenge when decisions are made about an individual’s age. That is right, and it is in keeping with our values. However, it is equally clear, and can be argued, that the balance has shifted too far in one direction. We have seen repeated last-minute legal challenges which have little merit but which succeed in frustrating or delaying removals. These are not genuine safeguards; they are tactical devices often deployed to prolong a person’s stay and undermine the integrity of our borders.

Amendment 114 seeks to restore the balance which we identified in government by reintroducing Section 57 of the Illegal Migration Act. It would ensure that factual decisions on age made by the appropriate authority could not be endlessly relitigated as a matter of opinion before the courts. Legal errors could still, rightly, be challenged, but the endless recycling of disputes over fact would no longer come at the cost of our border security. The Government would retain the power they currently have to remove those who they determine should not remain in the United Kingdom.

If we are to reduce the numbers and regain control of this issue, the Government must have the flexibility to act decisively once the facts have been properly determined. That is the balance we strike here: a system that is fair but firm; that is open to genuine challenge but closed to vexatious delay.

Furthermore, Amendment 115 is about ensuring that we have the tools to make accurate, authoritative determinations on the age of those who arrive here illegally. This information is not a minor detail; it shapes the protections a person is entitled to, the facilities in which they may be placed and the level of safeguarding that must be applied. To make decisions that are safe, appropriate and in the best interests of both the individual and the wider community, we must have reliable information.

21:15

If someone is genuinely under 18, it will be reflected in a scientific assessment. These methods are objective, evidence-based and independent of political or personal bias. If an individual refuses to take such a test without reasonable grounds, it is right to assume that they are an adult. If there is nothing to hide, there is no reason to refuse. The Government must be able to act on accurate data, not guesswork, which means having the power to require credible scientific verification of age. I do not understand why the Government are removing this set of powers from their remit with the passage of the Bill. I hope the Minister can take this opportunity to update the Committee on what mitigating measures, if any, the Government are proposing if they are insisting on removing the powers they already have, which were introduced by the previous Government.

Finally, Amendment 200 would require the Secretary of State to make regulations to specify scientific methods for assessing a person’s age and to disapply the requirement for consent for scientific methods to be used. This amendment speaks to the principle that I have already outlined: if a person lands in the UK illegally, the Government have a right and duty to understand how old that person is. If the person in question refuses to co-operate, this cannot be a way for them to frustrate the determination and removals process. The balance that I discussed earlier can be reached only if these powers are maintained and if the Government retain the authority to take action, whether a person consents to an age assessment or not.

These amendments are about maintaining the tools the Government need to act decisively on the basis of authoritative information and without being hamstrung by vexatious delays. We cannot afford to slip into a system in which removals are paralysed by endless backlogs, where spurious challenges proliferate and where factual determinations are relitigated to no end. We struck the right balance when these provisions were first drafted: fair but firm; open to genuine challenge but closed to tactical obstruction. If the Government truly believe that removing these powers will have no adverse effect, they must explain why to the Committee. Otherwise, they should reintroduce them, so that those who they themselves have determined have no right to remain can be removed swiftly and the integrity of our immigration system can be preserved. I beg to move.

[Lord Jackson of Peterborough (Con)]

My Lords, I support the amendments on age assessments moved by my noble friend Lord Davies of Gower.

When we ventilated these issues in 2023, when we were looking at the then Illegal Migration Bill, we had a very good debate. The noble Baroness, Lady Brinton, was very voluble and passionate about this issue, as one would expect of her, and as we have come to know and love during the course of these debates. However, I think the public have moved on. When we debated the earlier clauses of the Bill, we talked about the crisis of confidence and the lack of public support for any actions taken by parties in government, whether Labour or Conservative. That crisis of confidence is worse than ever now. I do not think that it is improved by anecdotal and media portrayals of people who are quite obviously young men and not children, but who are purporting to be children and using various methods to thwart the reasonable expectation of most people that they should be removed because they should not be allowed to settle in the United Kingdom on a permanent basis as asylum seekers.

Therefore, we have to use our common sense here. I regret the fact that the Government seem to be throwing the baby out with the bath water. The noble Baroness, Lady Fox of Buckley, said earlier that it was a moveable feast, but in fact, she is now a compatriot of the Government on many of the proposals. I know she has always been a compatriot of the Minister, as they both hail from north Wales. However, we have moved on significantly since we debated this issue two years ago. People expect fair and equitable treatment of minors and people purporting to be minors. Therefore, we have to use our common sense.

Often, it is young men—disproportionately so—who are arriving without any identification. They will have disposed of their passports or ID cards and will therefore be able to make the case that they are children or very young people, and there is no identification to disprove that notion. The appearance of young people over 18—facial growth, bone structure, beards and so on—decries the idea that they are allegedly children. They look over 18. Across the world, artificial intelligence and scientific methods are used to ascertain the precise age of young people.

The Government should look more favourably on these amendments, because they were put in the earlier legislation for good reason. I specifically support my noble friend Lord Murray of Blidworth’s amendment, and Amendment 200, because this is not being done surreptitiously; it is being done in the open. You will be able to test the veracity of the scientific assessment, judge it against international comparators and get scientific experts in anatomy to test whether these scientific assessments work. A blanket ban on a reasonable scientific assessment is not the right way to proceed, particularly as this will be a relatively small number of people. There will be a relatively small number of young men claiming they are children. A robust scientific regime to test that and, more importantly, parliamentary scrutiny and oversight of the regulations the Minister will lay before the House for this scientific assessment and method, is a reasonable position to adopt.

If the Government are seeking to persuade the electorate that they are serious about and committed to tackling the egregious abuses of our border, they must recognise that people pretending to be children—forcing often cash-strapped local authorities to find them a school place or provide a statement of special educational needs and other contingent liabilities and funding—is an issue of public importance, safety and security.

I know that the noble Baroness, Lady Brinton, is champing at the bit to disabuse me of my notions. It is unfortunate that the Government and the Minister, for whom I have huge respect, as he knows, have seen fit to remove this provision for no particular reason. He has not made the case for why he is doing that. Therefore, he needs to think again. Hopefully, he will have better news for us on Report. In the interim, naturally, I support all four amendments.

[Baroness Butler-Sloss (CB)]

My Lords, I rise to speak very briefly, before the noble Baroness, Lady Brinton, because I am unhappy about these amendments. I was very relieved when the Government put forward a situation that would not support them.

I was invited by the charity Safe Passage to attend a drop-in session at its drop-in house in London, where I met two young men. Safe Passage was absolutely satisfied that both of them were 16. They were Afghans; one had a beard, and the other had a moustache. The point made by the noble Lord, Lord Jackson of Peterborough, seems to me to be unsafe, because what we are looking at is Europeans. Europeans do not normally get beards and moustaches under the age of 18, but those who come as refugees and asylum seekers come from all over the world, where they grow up and mature much more quickly.

I was extremely relieved to see the approach of this Government and very disturbed to see these amendments, which I hope will not succeed.

[Lord Jackson of Peterborough (Con)]

Before the noble and learned Baroness sits down, if I may, for the avoidance of doubt, I was not arguing that it would be merely a subjective assessment or value judgment of appearance: it would be complementary to a robust scientific method, which would be tested both in this House and by other scientists in the course of the work. It would not just be a border officer saying, “You look like a 21 year-old”. The amendments make reference to scientific assessment, which would be an important complementary safeguard that might address the particular concerns of the noble and learned Baroness.

[Baroness Butler-Sloss (CB)]

I am very interested in what the noble Lord, Lord Jackson of Peterborough, says, because he did talk about common sense and looking at a person. That is what encouraged me to speak. When I met those two young men, I absolutely took the view that they were over 18, but I was disabused, not only by their age, which was identified, but by the fact that I had been thinking in European terms. That is the danger of what is being said by the Opposition.

[Lord Murray of Blidworth (Con)]

My Lords, I had better rise at this stage to introduce my Amendment 203H. As with my last amendment, the mysteries of grouping have left me slightly confused, because this amendment does not actually relate to the Illegal Migration Act. This is an amendment which I offer to the Home Office as a sensible amendment that will save public money. It will be a sensible and useful use of time, and I implore the Minister, who I know to be a sensible and reasonable person, to look at this carefully.

Amendment 203H refers to the National Age Assessment Board, which was set up under the Nationality and Borders Act 2022, before I was in this House—I know there are some noble Lords here who remember the debates about that particular Bill. The Bill presently before the Committee does not repeal any provisions in the Nationality and Borders Act. The National Age Assessment Board was set up by the 2022 Act to bring into the Home Office the system whereby those who claimed to be minors would be assessed. Prior to these provisions coming into force, that was done by local authorities. What had routinely been the case was that a person who purported to be younger than 18 and who wished to challenge a decision would then seek a judicial review of the assessment made by the local authority. There is a whole run of cases in which the courts considered what the test should be, on judicial review, of a social worker’s evaluation of the person’s age. Across the country, different local authorities had different approaches.

In a case called A v Croydon, the Supreme Court, led by the noble and learned Baroness, Lady Hale, determined that age assessments would not be made on the usual basis of a judicial review. As noble Lords will be well aware—and I am sorry that I am teaching grandmothers to suck eggs, but in case there is anyone watching who does not know this—a decision on judicial review is not normally taken by means of a court looking at the decision afresh, considering the evidence and taking a decision for itself; instead, what the court does is to look at the decision to see whether it is lawful and not unreasonable in the public law sense, which is classically defined as being so unreasonable that no decision-maker could have reached that decision —the “Oh gosh” test, as it has been described previously.

21:30

What the noble and learned Baroness, Lady Hale, said in the case of age assessment was that the age of the individual was a question of precedent fact, and so it should be determined by the consideration of evidence, which is incredibly rare in the Administrative Court. Because it was set by the Supreme Court, that is still the law. What happens today is that, if somebody seeks to challenge a decision of the National Age Assessment Board, they go to the Administrative Court, which, in accordance with the practice direction, transfers it to the Upper Tribunal, and it goes off for oral and expert evidence, at enormous expense. So the Upper Tribunal judges have to listen to the evidence and then evaluate for themselves what the age is.

I suggest to the Committee that that is not the correct approach, and I do so for this reason. The National Age Assessment Board was specifically set up in the 2022 Act and has been carried on, I am glad to say, very sensibly, by this Labour Administration, to bring in-house the making of age-assessment decisions, to gather together expertise and to provide training to those who make age assessments of those who claim to be under 18. These are the experts in assessing age—I see the noble Baroness, Lady Brinton, shaking her head, but I am afraid I disagree with her. These are the people who know exactly what is going on, in a way that when it was diffused across the local authorities was not the case. So the National Age Assessment Board is the expert body. As such, the conventional position in public law is that the court should defer to those expert bodies and overturn their decisions only in the event that they have done something which is illegal in public law terms—so either Wednesbury unreasonable or otherwise unlawful in public law terms, without an assessment of the evidence.

With that little bit of background, let us just look at the amendment. I really want the Minister to consider this carefully. It seems to be a cross-party point, but it will accelerate the pace at which disputes about age assessments can be resolved, save a huge amount of public money and use the resources that are available to the Home Office in the best way.

The proposed new clause says that it applies to all decisions taken by the National Age Assessment Board. There is an option in rare cases for local authorities still to make decisions; those, of course, would not be caught by this clause—that is in subsection (1). Subsection (2) says that this applies only if there is a judicial review of the age-assessment decision. Subsection (3), as I am sure the Minister will have seen, requires the court or tribunal determining the judicial review application to determine that application on the basis that the person’s age is a matter of fact to be determined by NAAB and not by the court—this has the effect of reversing the decision in A v Croydon—in light of the new statutory regime which this Government have enacted. Accordingly, as it says at subsection (3)(a), the court or tribunal

“may grant relief only on the basis that the decision was wrong in law, and … may not grant relief on the basis that the court or tribunal considers the decision mentioned in subsection (1) was wrong as a matter of fact”.

That provision restores the law to where it was prior to A v Croydon, and it appropriately reflects the level of deference to the expert decision-makers in this field. As a result, I strongly commend Amendment 203H to the Government.

[Baroness Brinton (LD)]

My Lords, I am very grateful to both noble Lords, Lord Murray and Lord Jackson, for thinking that they absolutely know where I am coming from, and I hope that the noble Lord, Lord Jackson, at least, might be relieved to find that we are on slightly more common ground than he believes. I am going to start backwards; I am going to start with the amendment from the noble Lord, Lord Murray. I happen to have with me the SI on age assessment of asylum-seeking minors, because a number of us did regret Motions for that on 27 November 2023. Initially, the Home Office, of which I think he was a Minister at that point, said that, as per the Age Estimation Science Advisory Committee report from October 2022,

“the Home Office will not use the scientific methods to determine an age or age range, but rather use the science to establish whether the claimed age of the age-disputed person is possible”.

Possible is not scientific fact.

[Lord Murray of Blidworth (Con)]

Forgive me for intervening. I should clarify that the National Age Assessment Board is not using scientific methods, so my amendment has nothing whatever to do with scientific methods. The National Age Assessment Board is using conventional social work methods to identify age.

[Baroness Brinton (LD)]

I am very grateful for the noble Lord’s intervention. One of the problems is that social workers are using exactly those techniques—perhaps not in full, but they are. What is more, the NNAB social workers are paid through the NNAB by the Home Office. They are not independent, which is the other key point we wanted to make. I am very grateful for what the noble Lord, Lord Jackson, said at the start. He said that the public had moved on. But, as a former trustee of UNICEF, I say that my priority has to be the protection of young people who are under 18, and an arrangement for those where it may not be possible to decide that exactly—and we have had many debates about all that.

The issue is not just one of public satisfaction. The public may be very irritated by the young men who are clearly over 18 who are doing this, and that is fine for the system. Those of us who are bringing back amendments, probably on Monday, want to make sure that it is not happening the other way round: that people under 18 are being deemed to be adult. We know that this has happened and I hope that the Minister will be able to reassure me that we might finally see some data on this. Every time I have asked over the last three or four years, there has been no data about those who are deemed to be 18 and over who were under, and, indeed, the other way around. That is important for the Home Office, because it needs to understand about provision for those who are in this very small group, who need to be looked after in a slightly more special way.

By the way, not every young person who is under 18 who goes to a school is going to have special needs. They may need some language support, but not necessarily special needs. They may need emotional support if they have come from a war zone such as Sudan but, if we are saying that they are awaiting assessment as asylum seekers, that is something that this country really ought to be prepared to look at. So I am much more cynical about the NNAB being as truly independent and clear as the noble Lord, Lord Murray, was making out. Those of us who have amendments will go over this in detail next week.

I want to go back to Amendments 114 and 115. Young people having no right of appeal contravenes the United Nations Declaration on the Rights of the Child. They absolutely must have support in complex issues, particularly in a country where they may not speak the language. When the official Opposition were in power, they also refused to let young people who were having age assessments carried over have any access to legal or advisory support during that process. They said it was not necessary. But I have to say that those European countries that use age assessments all have independent support for these young people from that Government’s own process. I particularly pray in aid the Netherlands, because it was cited by the noble Lord, Lord Murray, when he was at the Dispatch Box in the past.

These protections are built in because we have a formal duty to look after those under 18 and, yes, it may be difficult to work out if some are, but we will know about most of them. I really think that the first two amendments need to be reviewed, and I do not think we can support them. I can remember when I read the first full report: it is not as clear as the noble Lord, Lord Murray, said. There is always talk about ranges. I do not know about noble Lords, but I have a son of six foot four and he was certainly sprouting a beard by 16 or 17 and was already over six foot. We make mistakes, and I absolutely support what the noble and learned Baroness, Lady Butler-Sloss, was saying. You cannot just assume that that is right and, if we get it wrong, you have a young man—they usually are young men—who is put into an adult centre. They then are at risk, and that is on us as a country.

[Lord Jackson of Peterborough (Con)]

I absolutely applaud the laudable work of UNICEF. The point that I was attempting to make was that we must focus our efforts on weeding out those who are clearly, as she concedes, not reaching the age criteria, so that we can focus on those in most need, who have suffered terror, despotism, trauma et cetera.

Taking the noble Baroness back to the appeals, what is the alternative? If you have an open-ended, liberal, permissive appeals system, it will be gamed by many people. She might want to think about this before she tables an amendment: can you have an appeals system that pays due regard to the universal human rights of children but does not allow the system to be gamed by endless appeals that take months and years?

[Baroness Brinton (LD)]

The problem is that Amendment 114 in the name of the noble Lord, Lord Davies of Gower, says there is no appeal—full stop, end. None. Therefore, that young person, who probably has English as a second language, whichever side they are and who will be arguing that they are under 18, does not even have the right that the noble Lord, Lord Jackson, was talking about, and that worries me. I have argued this for some time, as the noble Lord, Lord Murray, knows, to his cost. I agree that the public are concerned. I have no doubt about that. However, are we only concerned with what the public are concerned about? Do we not need to focus on children who are seeking asylum in this country and can get some help? If we go by, “Well, actually the public don’t want it”, it will all start going the wrong way.

[Lord Murray of Blidworth (Con)]

I am sure the noble Baroness will agree that she is balancing two things here. First, a problem arises if a young person is put into adult accommodation, as she identifies. However, a bigger problem arises if you put an adult who is fraudulently claiming to be a child into facilities for young people. At that point, there is a very significant risk to those young people.

As a House, we have a significant responsibility in this area to ensure that we do not gullibly take people’s claims to be young people, which can put other young people in those homes and facilities at risk. It is very important that the Home Office has a coherent system, which it does, and that the system is capable of review, which of course it is by judicial review. The noble Baroness will agree that there is a balancing act to be performed here.

[Baroness Brinton (LD)]

I am very grateful to the noble Lord for his intervention. I have argued before to him, and I say it again, that there is a very straightforward answer. You have smaller group homes for those who are around the borderline, because the protection we need is for the younger ones. The noble Lord is absolutely right that, if we put a load of people in who are over 18, those younger children are at risk. But we do not have to, given the number of children that there are.

[Baroness Butler-Sloss (CB)]

Does the noble Baroness have any figures for the number of young people whose ages are in dispute, because I suspect that there are not that many? We may be worrying about a relatively small number of people compared with the huge number who are seeking asylum.

[Baroness Brinton (LD)]

I am very grateful to the noble and learned Baroness and say again to the Minister, who will probably curse me for it, that there is no data and we need that data to understand the size of the problem. It must be not just pure data about age. It must also be about the response when children or young people are placed in the wrong one, and what support they need. I will leave it there.

[Baroness Lawlor (Con)]

My Lords, I support the amendments of my noble friends Lord Davies of Gower and Lord Murray. They are interesting amendments because they seek to tackle the same problem by different means. The aim is to have accurate information about age and to require that it be secured.

21:45

At the moment, as we have heard, the cases go on and on. My noble friend Lord Murray’s amendment, proposing the NAAB, and my noble friend Lord Gower’s, proposing scientific methods, both aim to deal with a difficult problem. We have to decide on as near a factual way as possible, for the very reasons that have been stated—the danger we pose by putting people who are over 18 into a category with younger people in all the circumstances that the local authority oversees, and the cost to the taxpayer of protracted proceedings and judicial review. It is unsatisfactory and undermines confidence in our judicial system, the courts and, indeed, the way we organise our democracy. There will never be a perfect solution, but we must work towards whichever amendment is judged to be better for securing the best available evidence on age.

[Lord Kerr of Kinlochard (CB)]

My Lords, I concur with the noble Baroness’s point about proceedings lasting for ever, but one must not take that point too far. It takes one into authoritarian territory where we really should not be going.

All the points I wanted to make were made much better by the noble Baroness, Lady Brinton. I vividly remember our 2023 debates. Indeed, we are in a time warp with this whole debate. We have been here several times and there are no new points to be made. I remember the ethical, moral and practical arguments about scientific methods being debated.

Although I am sure we did, I cannot remember whether we discussed the equity of the point made in Amendment 115, which says that if the young person refuses to subject himself to a scientific test, because he is scared or whatever, the law will say that he is an adult and a liar. In equity, that seems to me to be a strange thing to put into a statute book. The process of going to law takes a long time, but it is our tradition. To cut it all short by saying, “If you don’t agree to be tested in this particular way then you’re an adult and a liar” seems quite extreme. I cannot remember if the point was debated before. I think the noble Lord, Lord Murray, is going to tell me that he answered it in lapidary terms in 2023.

[Lord Murray of Blidworth (Con)]

The noble Lord, Lord Kerr, is of course right to remember those happy exchanges. I draw his attention to the fact that, obviously, there are many examples in the law of presumptions being made if people do not do things: for example, the breath test, as the noble Viscount sitting next to me has just observed. If you say “no comment” in a police interview, inferences will be drawn. It is the same presumption system. There is nothing unusual in terms of the drafting.

[Baroness Hamwee (LD)]

There was discussion about consent, because a child cannot consent. I do not know whether the noble Lord recalls it, but we talked about that fairly extensively.

[Lord Hanson of Flint (Lab)]

I am grateful—again—for the amendments which have elicited this discussion. I want to put a central premise before the Committee: that age assessments, as has been proved by the contributions of noble Lords today, are a difficult area and no single or combination assessment technique is able to determine age with precision. But as the noble Lord, Lord Murray of Blidworth, said, there are serious safeguarding issues if adults are treated as children and placed in settings with children. Similarly, there are serious safeguarding risks in treating children as adults. We have to try to improve the performance on age assessment and get it right. The Government treat this issue with real seriousness and with the importance it demands, and we will continue to explore with partners how we can improve the robustness of age-assessment processes by increasing the reliability of the methods used.

That leads me to the amendments before the Committee today. Amendment 114 seeks to incorporate Section 57 of the Illegal Migration Act 2023, which is subject to repeal, into the Border Security, Asylum and Immigration Bill. The fact that we are already repealing that means that we are revisiting again, as we are on a number of amendments, things that the Government are seeking to repeal. The provision—the noble Baroness, Lady Lawlor, referred to this—concerns decisions relating to a person’s age and would bring into effect measures to disapply the statutory rights of appeal in the Nationality and Borders Act, which, if commenced, enable a person to bring an appeal challenging a decision on their age. The noble Baroness, Lady Brinton, referred to the difficulties of that. The provision applies only to individuals subject to the Section 2 duty to remove in the IMA, which itself is under repeal in the Bill.

I know what the noble Lord, Lord Kerr has said, and I feel that I am going around in a number of circles, but the impact is the same. We are repealing these sections; the official Opposition are trying to put them back in. We cannot put them back in because we are repealing these sections. At the end of the day we are still trying to improve the performance on age assessment for the public and the immigration system. We are committed to focusing on delivering long-term, credible policies and will try to ensure that we do that by retaining only measures of the IMA which we have assessed as offering operational benefit. As I have said, we are repealing most of the measures, including Section 2, the duty to remove. Therefore, Sections 57 and 58, relating to age assessments, which this amendment seeks to reinstate, are both unworkable and indeed irrelevant without the duty to remove. The circular movement continues.

There are robust processes in place to verify and assess an individual’s age where there is doubt. It is important that we do so, and I again emphasise to the noble Lord, Lord Jackson, the Opposition Front Bench, the noble Lord, Lord Murray, and the noble Baroness, Lady Lawlor, that these are important matters to get right. Where an individual claims to be a child without any credible documentary evidence and where there is reason to doubt the claimed age, immigration officers will currently conduct an initial decision on age to determine whether the individual should be treated as a child or an adult. Where doubt remains following the initial decision, which occasionally it does, individuals will be treated as a child and transferred to a local authority for further consideration of their age, in the form of the acknowledged Merton-compliant age assessment.

The Government are committed to improving age-assessment practices to enable all individuals to be safeguarded and treated appropriately, for the very reasons that the noble Lord, Lord Murray has mentioned. We have retained—as again the noble Lord, Lord Murray, has referred to—the National Age Assessment Board, which was launched on 31 March 2023 by the previous Government. It is now being rolled out nationally, continues to offer significant improvements, and has the support now of over 55 expert social workers whose task it is to support local authorities by conducting comprehensive age assessments, increasing capacity, and putting expertise in the system. Since its launch, 77 local authorities have signed up to the work of the NAAB. Greater consistency in age-assessment practice is now the case; improved quality of decision-making is there. Well over 1,137 individuals, predominantly social workers from local councils, are responsible for conducting age assessments, and the training has received positive feedback from local authorities.

Those are all positive things, and I again pay tribute to the hands that laid on those regulations and efforts previously. It is all very good, positive stuff. The Home Office, with the support of the Department for Education, has also commissioned user research into age assessment processes, with participation from Home Office members of staff, non-governmental organisations, local councils, accommodation providers and others. It has already started to implement positive change following the research that we have undertaken, and we are currently reviewing initial decisions on age training that have been received by Home Office staff at, for example, the Western Jet Foil premises in Kent.

Amendment 203H, tabled by the noble Lord, Lord Murray, would, as the noble Baroness, Lady Brinton, and others have said, restrict the jurisdiction of the court to determine applications for judicial review brought against a decision on age made by the National Age Assessment Board on conventional public law grounds such as rationality, reasonableness and procedural fairness. The court would be unable to grant relief because it considers that the board’s decision on a claimant’s age is wrong as a matter of fact. It would also prevent the court from substituting its own decision on age. This is an important point, as it is contrary to the decision of the Supreme Court which held that the court is required to determine for itself the age of the claimant as an issue of fact.

In addition, this amendment would result in a court treating challenges brought against decisions on age made by the board differently from challenges brought against decisions on age made by a local authority.

[Lord Murray of Blidworth (Con)]

I am very grateful to the Minister for his thoughts on that. That is the whole point. The thrust of my submission was that the Supreme Court got the law wrong in that instance. The creation of the National Age Assessment Board as an expert body means that the situation is different from that which pertained when the Supreme Court made that earlier decision. That is why the Home Office should trust its own expert social workers and grasp this opportunity to accelerate the pace and change the test that the court is using.

[Lord Hanson of Flint (Lab)]

I think we are going to have an honest disagreement on this amendment. I am grateful for the thought that the noble Lord has put into this, but I again put it to him that the amendment would result in a court treating challenges brought against decisions on age made by the board differently from challenges brought against decisions on age made by a local authority. We are going to have to part company on that, for the moment at least.

Amendments 115 and 200, tabled by His Majesty’s loyal Opposition, concern scientific methods of age assessment. Repealing Section 58 of the Illegal Migration Act, which the Bill seeks to do, will not affect the provisions related to scientific methods of age assessment set out in the NABA and the Immigration (Age Assessments) Regulations 2024, such as the power to use X-rays and MRI scans and to take a negative inference on the credibility of a person who refuses consent where there are no reasonable grounds to do so.

Amendment 200 looks to have the Secretary of State lay regulations under Section 52 within six months. Regulations have already been made under this power. It would also place a duty on the Secretary of State to make regulations under Section 58 of the IMA. Again, the Bill will repeal that section, although Amendment 115 would reintroduce it as a clause in this Bill. We are going round again in the circle of life on the amendments to this Bill.

In any case, the Secretary of State would not make regulations to the effect that these amendments seek to achieve unless and until satisfied that the scientific methods in question are sufficiently accurate to mean that applying the automatic assumption in cases of refusal to consent would be compatible with the ECHR. The specified methods do not currently meet this threshold. Again, we can have a debate about the ECHR, but that is where the Government currently are.

The Government will continue to explore the latest developments in things such as artificial intelligence and age assessment technologies to ensure that we have the most accurate information available. Facial age estimation is promising and potentially cost effective, allowing early assessments, and it could produce useful results far more quickly than potential methods of scientific age assessments such as the bone X-rays mentioned by noble Lords and MRI scans. It requires only a facial image, and we will look at how that develops.

Again, the IMA was part of the previous Government’s initiative. We are repealing the IMA but will not compromise on border security. We remain fully focused on long-term credible policies. For that reason, I invite the noble Lords, Lord Davies, Lord Cameron and Lord Murray, not to push these amendments at this time.

22:00

On the data point of the noble Baroness, Lady Brinton, we are trying to keep data separate between the Home Office asylum side of the business and the Home Office NAAB side of the business. There is a sort of wall between them, and that data is not shared. I will reflect on her points and examine them in detail, but that is where I am coming from at the moment.

[Baroness Brinton (LD)]

Is there a plan to publish this in annual form at some point in the future? We need that data.

[Lord Hanson of Flint (Lab)]

I have heard what the noble Baroness said. I will reflect on that point. I give way to the noble Lord, Lord Jackson.

[Lord Jackson of Peterborough (Con)]

The Minister anticipated my point, and the noble Baroness put it much more clearly. I was going to ask whether there would be periodic production of qualitative and quantitative data around the numbers coming in. As the noble and learned Baroness, Lady Butler-Sloss, said, we are debating in the dark on numbers—we need the numbers. But the Minister answered the question, for which I thank him.

[Lord Hanson of Flint (Lab)]

I am grateful for our agreement on the answering of the question and I retain my position. I hope noble Lords will not press their amendments.

[Lord Davies of Gower (Con)]

My Lords, I am grateful for the contributions from noble Lords. That was an informative if not intriguing debate, and I shall be brief in closing our discussion on this group. I return to the central principle that has underpinned all my remarks: our immigration system must be balanced. It must allow for proper dialogue, proper challenge and proper safeguards, but it must also be able to function effectively. The system serves a vital purpose: it protects our borders, it maintains public confidence in our Government’s ability to protect us and it upholds the rule of law. If we allow it to become paralysed by delays, backlogs and spurious challenges, it fails not only in its legal duties but in its duty to the British people.

We on this side of the House are rightly concerned that removing these clauses will jeopardise that balance and that, without them, the Government’s ability to take timely authoritative decisions and to act on them will be weakened—

[Lord Hanson of Flint (Lab)]

I do not want to break the noble Lord’s chain of thought, but information has just been supplied to me that we now have on the government website the number of age disputes raised, the number of age disputes resolved, the number of adults found to be children, et cetera. That information is available now on GOV.UK, and I will supply further details to the noble Baroness in due course.

[Lord Davies of Gower (Con)]

The Government should either reintroduce these provisions or make it clear to this House here and now how they intend to prevent the harm that their removal will cause. Without such assurances, we cannot be confident that our borders will be secure, that our processes will be respected or that the British public can have faith in the system that serves it. On that note, I beg leave to withdraw.

Amendment 114 withdrawn.

Amendment 115 not moved.

Clause 39: Sections 37 and 38: consequential amendments

Amendments 115A to 115E not moved.

Clause 39 agreed.

Amendment 116

Moved by

[Lord German]

116: After Clause 39, insert the following new Clause—
“Repeal of certain provisions of the Nationality and Borders Act 2022The following provisions of the Nationality and Borders Act 2022 are repealed—(a) sections 12 to 65;(b) sections 68 and 69.”Member’s explanatory statement
This new clause would repeal specified provisions of the Nationality and Borders Act 2022.

[Lord German (LD)]

My Lords, I will speak to Amendments 116 and 118 in my name. This is a bit of a reversal, because it is looking not at what is happening but at what is left behind. I am asking the Government to consider this in some detail, so I am worried that the Minister may have some difficulty answering all the questions. If it is not possible, I am hopeful that we will get the answers in writing later.

The position is this. We support the repeal of the provisions in the Illegal Migration Act. What I am concerned about is what policy is left behind when you take those out. As it stands, in several places the Nationality and Borders Act 2022 will become the default directive, even though this was not regarded as being something of satisfaction when that Bill went through this House, so there are concerns about what is left in that area. This amendment brings together a range of issues, presenting the Government with the opportunity to explain the continuing concerns about the aspects of the Nationality and Borders Act that they have chosen to not repeal in this Bill but to rely on in sections where the IMA has been taken out from it.

There are sections of the Nationality and Borders Act which worsen the risk of violations of human rights, build further delays into the asylum system and increase the likelihood of legal challenges and judicial reviews in the future. I will dwell on several sections, but there are more than I am speaking about in the whole of this area. Section 12 of the Nationality and Borders Act is officially paused, but it allows for differential treatment between different groups of refugees, dependent on how they arrived in the United Kingdom. Can the Minister explain why the Government wish to retain that ability, even though it has not been brought in yet? Why are the Government retaining this section? If it is for operational benefit again, it would be useful to know what the operational benefit is.

The main issue of concern with Section 13 of the Nationality and Borders Act is that subsection (9) could lead to people being held in accommodation centres, including at such large sites as Wethersfield, for lengthy periods of time. Before the Nationality and Borders Act, there was a limit of a continuous period of six months, which could be extended to nine months by the Secretary of State. This section of the NaBA enables the Secretary of State to increase the time. There are ongoing concerns about the conditions of asylum accommodation, particularly the large sites such as Napier and Wethersfield, and there seems to be a pattern of repeating mistakes rather than learning from them. Safeguards are therefore important and it is concerning that this section, which we will fall back on, would enable people to be accommodated at such sites with no indication of how long they will be there for. My personal experience when I visited Wethersfield was that it was quite clear that, when people understood that they were going to be there for a maximum of nine months, it reduced the concerns and increased the well-being of residents. So, having a time limit is very important.

Section 14 is about safe countries, but we have already debated that. Section 18, which is not in force, creates a requirement to provide evidence. The argument about this is that it can only lead to additional bureaucracy for the Home Office. Providing evidence is part of the existing process for applying for asylum. If evidence is provided at appeal which could have been provided at the initial decision stage, the immigration judge will seek an explanation for this, and that could impact an individual’s credibility. With very tight deadlines, it could be a short window of time to provide the evidence. Also, it might be difficult, if not impossible, for individuals to provide the necessary evidence if they are unrepresented, and more than half of asylum claimants are currently without legal representation owing to the legal aid shortage.

Section 19, which is not in force, amends the assessment of whether to treat a person as truthful. That may be a straightforward assessment, but I do not know how it might work. Sections 20 to 25—also not in force, but the Government are retaining them—relate to priority removal notices, which warn people that they are being prioritised for removal. The person then needs to respond in the cut-off period. If they respond late, it will damage their credibility unless they have a good reason.

The concern about this is that a late claim is not necessarily without merit. It can take time for people to make a claim, because they are suffering from trauma relating to torture or sexual violence. It is unclear whether these reasons could be included in the good reason element of the priority removal notice, but it builds on a culture of disbelief in a decision-making process that already exists and is widely relied on. The inference is that not providing responses in time indicates the poor credibility of a person, which could result in improper refusal of protection claims.

Section 27 creates, although it has not yet happened, an accelerated detained appeal system in the First-tier Tribunal, which can be used for any detained appeal if it is considered that the appeal is likely to be disposed of expeditiously using the fast-track procedure. At the time, of course, it was an attempt by the Government to revive the detained fast-track scheme, but the Court of Appeal ruled it unlawful in 2015, and it described the timetable for such appeals as so tight that it was inevitable that a significant number of appellants would be denied a fair opportunity to present their cases. So what is the operational reason for retaining the ability to have an accelerated detained appeals system? If there is an operational reason for it, perhaps the Minister could tell us.

Section 29 makes it possible to move someone to a safe third country when their asylum claim is pending—not when it has been determined but when it is pending. In other words, while there is an appeal going on or a claim is being determined by the Home Office, you could deport someone in that process. That removes important rights of appeal. Members of this Committee will remember that, when we discussed the difficulty with the Rwanda scheme, people were going to have to make appeals from another country, and it would have been very difficult to maintain any means of correct procedure in that respect.

I am sorry this speech is quite long, but these are very important issues. Each one of them is about what the Bill does in making this the fall-back position that we are falling on.

Sections 30 to 38 require decision-makers to interpret the refugee convention in ways that do not accord with the long-settled meaning of that convention. We may already have had that discussion earlier today, and most of the interpretations concern Article 1A(2), which of course we have talked about, and we will further exhaust that when I talk about Amendment 118 in a moment.

Sections 40 to 41 relate to the criminalisation of asylum seekers. Those who arrive outside official routes in the UK, and people who facilitate arrivals, are committing an offence under this Act and are liable to prosecution. I understand the difficulties that there are with that one, but it is one that the Government need to describe so we have it on the record as to why that is important.

Sections 42 to 47 significantly expand maritime enforcement powers for pushbacks in international waters, removing the requirement to consider the duty of rescue. That is a fundamental in international maritime law; although it may not have been used yet, this is what the law will now say and it is important to understand why the Government want to retain that.

Sections 49 to 57 deal with age assessments, which we have just dealt with in the previous group, and Sections 58 to 63 exclude people, including children, from modern slavery protections if they have received a prison sentence of 12 months or more, even if the offence was committed as a result of their exploitation. The Government have distanced themselves in that respect from some, or indeed many, of these issues, so the question is why they are being kept.

I turn to Amendment 118, which is really an exploration of changes in the rates of refusal of asylum, which is particularly marked in in relation to Afghans, Iranians and Eritrean people claiming asylum. There has been a dramatic decline in the initial grant rate of asylum applications from those three countries. In the last two years of the previous Government, the grant rate of Afghan asylum claims stood at 98%. In the first year of this Government, that grant rate more than halved to 44%; the average grant rate for Afghans across the EU as a whole was 72% in Q1 of 2025. Eritrean grant rates are down by 13%; those of Iranians reduced by 26%. I do not observe any positive changes inside those countries during the relevant periods—certainly no change in Eritrea. The Taliban rule has been more oppressive and the human rights situation in Iran remains dire.

22:15

In Section 32 of the Nationality and Borders Act, a more complex and higher standard of proof was introduced, such that refugees are now required to establish their status in the UK. Section 33 requires a refugee whose fear of persecution is on account of their membership of a particular social group—such as refugees persecuted because they are women or LGBT—to establish their membership of such a group to a more exacting standard in the UK.

We need to understand, and perhaps the Minister can confirm, to what extent this increase in refusals is a result of the interpretation of the refugee convention in Sections 30 and 38 of the Nationality and Borders Act. We do not yet know how people are going to deal with appeals under the new arrangements, but it seems unrealistic that the UK will be able to return Afghans or Eritreans in large numbers, even if the system upholds any of the refusals.

There will be a sizeable number of people who cannot be returned. This amendment probes the impact of the changes brought in by the Nationality and Borders Act. Have the Government assessed the number of asylum seekers from Iran, Eritrea and Afghanistan who have exhausted their rights of appeal? Will the Government be seeking to return these people? If so, are they seriously intending to return them to those countries? If it is not safe to do so, what will the Government do? That is the series of questions we have to ask on this matter. It is about looking at what is left behind by the actions of this Bill, and we have to examine the legislation we now fall back on. That is the reason for these probing amendments. I am sorry it has taken such a long time. I beg to move.

[Lord Cameron of Lochiel (Con)]

The amendments in this group do not require a great deal of commentary from this side of the House. It will not come as any great surprise to the noble Lord, Lord German, given that his Amendment 116 proposes removing the majority of the 2022 Act, and we have spent the last few hours trying to reinsert the Illegal Migration Act, that we do not agree with the amendment.

I look forward to hearing what the Minister has to say in reply. We have made this point many times. We believe that the number of people coming into this country illegally is far too high and we must take urgent steps now to stop this happening, with a strengthened legal regime, not a weakened regime, to tackle this issue. The noble Lord’s amendment would weaken and undermine our efforts to remove those who have no right to remain in the United Kingdom. I cannot say more than that.

Amendment 118 relates to the impact assessment. We on these Benches are not opposed to the principle of reviewing the impact of government policy, but we do not recognise the justification given for this; nor do we believe that this amendment is necessary. Therefore, with those brief remarks, I look forward to hearing from the Minister.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord for his detailed questions. At 10.19 pm, it is a great test of stamina to examine those issues in some detail. The noble Lord is proposing that numerous sections of the 2022 Act be repealed. I should start by making it very clear that we are determined to restore order to the asylum system, as I have mentioned before. We want it to operate swiftly, fairly and firmly, and to ensure that the rules are properly enforced. That means we need to deal with the backlog of issues that are before the House as a whole.

The noble Lord raised a number of particular issues. I am very happy to go through the detail I have on inadmissibility of asylum claims, the UK’s interpretation of key concepts of the refugee convention, and Sections 30 to 39. If he wants me to do that now, I can. If he wants me to write to him so he can reflect on it more slowly, before Report, I can do that. I am happy to take his advice on how he wishes me to respond.

[Lord German (LD)]

I thank the Minister. As I said at the beginning, it would be very helpful to have it in writing so that, as he rightly says, we can reflect on it in the greater time we will have available to us.

[Lord Hanson of Flint (Lab)]

I have before me in my notes a full encyclopaedia of responses to the many points the noble Lord made, and I am very happy to go through them. However, it may be more sensible—given the hour and the fact that the noble Lord will not, I suspect, be pushing these amendments to a Division this evening—if I reflect on what he said in Hansard and respond to those points with clarity, using this document. I will place a copy of that letter in the Library, so that other Members can see the detail. In my view, this would speed up the response and give some clarity to the noble Lord, so he can reflect on whether he wishes to return to these matters on Report. If that is satisfactory, it would seem to be a useful way of progressing.

With that assurance, I urge the noble Lord to withdraw the amendment, pending any discussion and response to the letter I will send him.

[Lord German (LD)]

I thank the Minister for that. That is exactly what we were hoping for from this amendment: to understand the Government’s intention in these various areas. I am grateful for his response, and I therefore withdraw my amendment.

Amendment 116 withdrawn.

Amendments 117 and 118 not moved.

Clause 40 agreed.

Amendment 119

Moved by

[Lord German]

119: After Clause 40, insert the following new Clause—
“A three-month service standard for asylum casework(1) The Secretary of State must, within six months of the day on which this Act is passed, implement a three-month service standard for asylum casework.(2) The service standard must specify that 98% of initial decisions on all asylum claims should be made before the end of three months after the date of claim.”Member's explanatory statement
This new clause would require UK Visas and Immigration to reintroduce a three-month service standard for decisions on asylum cases.

[Lord German (LD)]

I will be as brief as I possibly can, given the hour. What is important in this amendment is to try to return to having a service standard. The amendment proposes a three-month service standard to determine asylum decisions. I know that the Minister, and others in the past, have looked at the issue and whether it might be six months. The important question here is whether there should be a service standard for dealing with these matters.

The history of this is that a service standard to decide 98% of straightforward asylum applications within six months was introduced in 2014 after a report which criticised delays in asylum decision-making. Of the claims that were submitted from March 2014 to the end of the year, only 8% received a decision within six months. In the second quarter of 2018, 56% of decisions were received within six months. In the third quarter of 2018, 25% received a decision within six months. Subsequent to that, the service standard was abandoned.

The reasons given by the Government at that time were:

“We have moved away from the six-month service standard to concentrate on cases with acute vulnerability and those in receipt of the greatest level of support, including unaccompanied asylum-seeking children. … Additionally, we will prioritise cases where an individual has already received a decision but a reconsideration is required. … the current service standard does not always allow us to prioritise applications from the most vulnerable people in the system if their claim is ‘non-straightforward’”.


That told me that there is a sort of on-off switch and a whole range of categories, and the Home Office would move the arrow to whichever one it thought was the most concerning at the time. I know that, in the context of things such as accident and emergency departments in the health services around this country, having a service standard is an important way—though it may not be kept—of having that focus.

Therefore, this seems to be an issue of prioritisation. The Home Office says that it can prioritise different targets or different circumstances rather than having a service standard. There was a large backlog of 91,000 at the end of 2024, with the associated costs to the taxpayer and slow decision-making hampering integration. Of those waiting for an initial decision, around 50,000 people had been waiting for more than six months. Arguing for a new service standard means that we could speed things up, because people would have a standard in mind.

I know that the Minister has dealt with this in the past in response to questions, but I would be grateful if he could say whether the Government have reviewed the potential benefits of reintroducing a service standard, what the current prioritisation is for asylum decision-making, and, of course, what the Government are doing to reduce the backlog.

[Baroness Hamwee (LD)]

My Lords, I have added my name to my noble friend’s amendment. I was not proposing to speak to it until recently. I may well have it wrong, but I would be grateful if the Minister could confirm the position. I think I read that arrangements have been put in place for bonuses for caseworkers who meet a standard. As I recall it, it was a very small amount of money, but if the Minister could tell the Committee what the standard is for asylum applications and say something about that bonus, it would be helpful. I am trying to ask that in a very neutral fashion.

I have Amendment 195, to which my noble friend has his name, relating to the use of artificial intelligence in the system. Obviously, artificial intelligence is going to be used. Asking whether it is used is probably like asking whether electricity is going to be used—of course it is these days. As this is about data as well, we start from the position that migrants are not criminals, and they should not be treated as criminals. Immigration, asylum seeking and refugee matters are civil matters, and any interference with privacy must be proportionate and subject to safeguards. I think we would all agree that our data is valuable, it is very precious, and that generally it needs regulation and oversight, and transparency is hugely important.

When I chaired the Justice and Home Affairs Committee, every Home Secretary we questioned assured us that the human would remain in the loop. Frankly, we were sceptical about what that really meant and the efficacy of it. The data subject must know what the authorities know, or think they know, about him. There is a lot more public discourse now about training of AI, but I doubt that we are all completely reassured about that. Immigration decisions are hugely impactful; they are life changing. The amendment would ensure that no machine alone may determine a person’s immigration fate, and that personal data remained insulated from algorithmic training.

22:30

Just to take one issue, it must be obvious that the scope for bias must be large if algorithms and systems are trained using data where there is any concern about the basic information—I am editing what I have written, but not very successfully—being used. Without knowing what that basic information is, it is difficult to assess how successful it is and to know what is going on.

I came across another issue regarding transparency related to AI and that is in—I may have mentioned this to the Minister—the initial interviews which are conducted, where the applicant is sitting alone in a room with a screen, not knowing who is on the other end and how many screens that person is looking at. In other words, what is the supervision of interviews and discussions that are going on? How many people are involved? Applicants do not know who is conducting the interview—I know that there are concerns about this—and are not told, generally, that they can request a copy of the interview transcript. Of those who do, who have good English, too many have found significant errors. In a sense, this is an anecdote, but my conclusion from it is of the importance of using AI properly and in a way which is transparent. This is a probing amendment on how the detail of one’s personal information is used, what guidance is given to caseworkers and how the use is monitored and evaluated.

[Lord Davies of Gower (Con)]

My Lords, we on these Benches agree to a degree with the noble Lord, Lord German, and the noble Baroness, Lady Hamwee. We may not agree on everything, but we are, in this small way, united. I shall speak briefly on the other amendments in this group, before turning to those in my name and that of my noble friend Lord Cameron.

On Amendment 119, it is right that asylum casework should be completed as quickly as possible. Delays are costly to the taxpayer and to public confidence in the asylum system. When cases drag on for extended periods, it not only increases the financial burden but undermines the perception that our system is effective, fair and controlled.

However, while I support the principle behind the amendment, I have concerns about the rigidity of imposing a legal service standard. What happens when the limit is breached? Would this create a new legal avenue for challenge, further delaying removals and adding yet more strain to the system? The real solution lies not only in faster processing but in reducing the pressures in the first place. While I support the intention behind the proposal, I believe that our priority must remain on addressing the root causes of the pressure and not just on setting ambitious targets that may ultimately prove counterproductive.

We also have some sympathy for Amendment 195. It concerns a matter that this side has raised in relation to other Bills currently going through the House, such as the fraud, error and recovery Bill. When decisions are being taken that greatly affect the life of another person, we need to have some guarantee of human involvement. I therefore welcome this as an opportunity for the Minister to set out how AI will be used in this process.

I turn to the amendments in my name and that of my noble friend. Amendment 201 would compel the Government to produce a report into the cost of providing asylum support. The British people engage with the principle of asylum in good will; they want to see those who are genuinely in need of protection given the support they require. That is a national characteristic of which I am proud. However, part of maintaining that good will is being open and honest about the costs involved. We have all seen what happens when there are information gaps: mistrust grows, narratives fill the space and confidence in the system is undermined; the Government then lose control, and it does not matter what they have done or delivered as it all becomes noise in a vacuum. Our amendment therefore seeks to address that by ensuring that the Government provide a comprehensive report on the cost of providing asylum support. Transparency should not be something that the Government resist; it is a hallmark of good governance.

Finally, Amendment 202 would require the Secretary of State to commission a review of proposals for the establishment of third-country removal centres. We, on this side of the Committee, have been clear that we are facing a massive, escalating and serious problem with illegal entry into the United Kingdom. If Ministers are serious about ending the crisis in the channel, they must be willing to consider the full range of options, and this review will be a vital step towards that.

Taken together, our two amendments are about realism, transparency and ambition: realism in recognising that our current approach is not working; transparency in being honest with the British people about the costs and consequences of our policies; and ambition in being prepared to consider tougher, more effective measures that match the scale of the challenge we face. The public’s patience is wearing thin and their confidence in the system will not be restored by half-measures. These proposals would give the Government the tools, evidence and mandate to act decisively.

[Lord Hanson of Flint (Lab)]

I am grateful to the Liberal Democrat and His Majesty’s loyal Opposition Front Benches for their amendments.

The noble Lord, Lord German, and the noble Baroness, Lady Hamwee, tabled an amendment to introduce a new service standard. I want to thank them for the amendment, as it helpful to look at that. We absolutely agree that there needs to be a properly functioning, effective immigration system. Our asylum processes should be not just efficient but robust. We are committed to ensuring that asylum claims are considered without unnecessary delay. We want to ensure that protection is granted as soon as possible so that people can start to integrate and rebuild their lives, including by obtaining employment when they have the right to do so. As such, I want to provide reassurance of the important steps we are already taking to achieve this aim.

As I have said on a number of occasions, during the passage of the Bill as well as in Questions and Statements, we have inherited a very large backlog, which we are trying to clear at pace. We are delivering the removals of people with no right to be in the UK, and we want to ensure that we restore the system very quickly. By transforming the asylum system, we will clear the backlog of claims and appeals. We have taken steps to speed up asylum processing while maintaining the integrity of the system. We have put in resources to ensure that we can do that at pace. That is why we are also looking at the efficiency of appeals and decisions, which we see to be of paramount importance.

The Bill proposes setting up a statutory timeframe of 24 weeks for the First-tier Tribunal to dispose of supported asylum appeals and appeals from non-detained foreign national offenders. The measures aim to speed up the appeal decisions, to ensure that we increase tribunal capacity and have a timely consideration of appeals. I hope that the noble Lord and the noble Baroness agree with me that the work that we are conducting at pace is appropriate and is having a real impact now on the size of the backlog. Although we cannot discuss the three-month time scale proposed in the amendment, I can reassure them that it is certainly on our agenda.

Amendment 195 from the noble Baroness, Lady Hamwee, looks particularly at generative AI tools to support caseworkers. I want to emphasise that no immigration decision is made solely by automatic decision-making, for there is still always a human eye on the decision-making. It is important that case summarisation and policy search tools, both of which are designed to help decision-makers, mean that we have improvements and efficiency in that process, which is also helping to reduce the backlog, which we want.

We have had an evaluation of the tools to date. We published that on GOV.UK in May. Therefore, we can demonstrate that the new technologies, such as AI, can potentially save around an hour per case, which is allowing decision-makers to access information more easily and to streamline the asylum process without, I hope, compromising the quality of the decisions.

Ethics and data protection are at the forefront of the considerations—the noble Baroness has mentioned that. The Home Office is taking significant steps to ensure that, where we trial and adopt AI in decision-making, we do so responsibly and in a way that maintains public confidence and that any tools are being trialled and are used to assist Home Office staff. With those assurances, I hope that she will not press her amendment.

The noble Baroness also mentioned other issues, which I will return to in a moment.

Amendment 201 from the noble Lord, Lord Davies, addresses ensuring transparency in the asylum system. I hope he will understand that we think the amendment is unnecessary, not because it is not right that he presses us on this, but because, as we have discussed throughout the scrutiny of the Bill, the cost of accommodating and supporting asylum seekers has grown significantly. I have put those proposals before the House as a whole. This is a due in large part to the strain we have had on the asylum system in recent years, including the number of unprocessed claims and a record number of arrivals via small boats. We are taking steps to reduce the cost and ensure public funds are managed responsibly.

I understand the intention behind this amendment; it aims to enhance transparency and provide Parliament with a clear picture of how asylum support is being delivered. But I note that the information that the noble Lord is requesting is published each year in the Home Office’s annual accounts. The figures are publicly available and subject to parliamentary scrutiny, and we remain committed they are as clear and comprehensive as possible.

The amendment seeks a breakdown of the proportion of asylum seekers who have had their claims denied but are still receiving support. It may be helpful to note that failed asylum seekers can, under certain conditions, remain eligible for support, for example if they are taking steps to leave the UK or face temporary barriers. They are all important issues. I appreciate the spirit of the amendment, but that information is already available.

I will touch on this issue briefly, because I have the information on my phone, which will lose its signal and sign out if I do not look at it immediately. On the issue of rewards and bonuses for staff that was mentioned by the noble Baroness, there is a consistent delivery of high-quality work and professional behaviour. We want to ensure that asylum decisions are subject to stringent quality checks, with individual performance targets agreed with managers and reviewed regularly to ensure that the high standards expected are consistently met. I will give her more information about the bonus scheme—as far as I can—after the discussions today.

I should also say, in passing, that all claimants will receive a written transcript of any interview that has taken place, and they can also have an audio recording of that. I hope that reassures the noble Baroness about the issues she has put before me.

[Baroness Hamwee (LD)]

They have been entitled to receive the transcript; the problem is that people are not told that they are entitled to have it, and I wonder whether the Minister can take that back. I will have to come back in writing on the details of the use of AI. With regard to performance standards and targets and so on, I asked about some details of the scheme. Can he come back to me in writing on that? What he read out, about keeping up standards and so on, I hope we would all take for granted as being exactly the basis on which the work is done, but the detail of the bonuses and so on—

22:45

[Lord Hanson of Flint (Lab)]

I hope that we can agree that we will examine Hansard tomorrow to determine the information required from each of us and provide it in the fullness of time.

On Amendment 202, I thank noble Lords for their interest in ensuring transparency in the Government’s approach to third-country removal centres. I think the amendment is unnecessary. On 15 May, the Prime Minister set out that we are actively exploring the establishment of return hubs with international partners. Our approach will be guided by what is workable and what reduces the impact of migration on the British public. The hubs could facilitate the swift and dignified removal of failed asylum seekers. It is not the Rwanda model; the return hub proposal is fundamentally different. It does not outsource asylum decision-making but targets those whose claims have already been fully considered by the Home Office and the courts. Details of any agreements and associated policy would be made publicly available when the time is right. I hope that, at that stage, in the event of any schemes progressing, we could have some scrutiny and take decisions accordingly. I give him a commitment that we will publish such details in the event of any scheme progressing. In the light of those assurances, I hope that noble Lords will not press their amendments.

[Lord German (LD)]

My Lords, I think I heard the Minister say on the service standard that he would take that into consideration or look at the matter. I also heard him say that there is a standard already, upon which appeals would be completed. In a sense, that is what a service standard is: you are setting targets for what you want to happen. If that is the case and both those things are factually accurate—we can look at Hansard—then I think that starts to satisfy what we are looking at here. Obviously there will be some more questions on the detail, but it seems to me that it is therefore appropriate for me to withdraw my amendment.

Amendment 119 withdrawn.

Amendment 120 not moved.

Schedule 1: Immigration advisers and immigration service providers

Amendment 121

Moved by

[Lord Cameron of Lochiel]

121: Schedule 1, page 67, line 7, leave out paragraphs 2 and 3
Member's explanatory statement
This amendment probes what amendments to the definition of “relevant matters” the Government might seek to make.

[Lord Cameron of Lochiel (Con)]

My Lords, this is a busy group of, essentially, probing amendments around the subject of immigration advisers and immigration service providers. I shall do my best to be as brief as possible. There are a lot of probing amendments in this group. I hope the Minister can take this as an opportunity to address some of the questions that my noble friend Lord Davies of Gower and I have raised through these amendments, although it may be—I cannot pre-empt him—that, as he undertook to do in relation to an earlier group of probing amendments, he chooses to do so in writing or tonight in the Chamber.

Amendment 121 seeks to probe the very broad powers in the Bill to amend the definition of what constitutes a “relevant matter” in the Immigration and Asylum Act 1999. As it stands, the text appears to give the Government significant latitude to reinterpret or even redefine that term at will. I ask the Minister what sort of scope he envisages here: how far could this power reach and in what circumstances does he believe it would be necessary to use it? When legislation confers such a wide discretion, it is right that this House seeks clarity on both its limits and justification.

Amendment 122 seeks to understand why the Immigration Services Commissioner would need to give a person who is not a relevant person a penalty notice. This question is somewhat self-explanatory and I hope that the Minister can clarify it in his response.

Amendment 123 would in turn remove the ability of the Secretary of State to amend the amount charged in a variable penalty notice. Variation in the amount charged under such a notice should be clear, justified and open to scrutiny. As it stands, we are being asked to approve a power whose future use and financial impact is presently unknown. Parliament should have some assurance about how we will be kept informed of such changes. Will further variations be subject to debate or are we to accept them after the fact? If we achieve clarity now, I suggest that that would avoid disputes later. I hope, again, that the Minister can provide such clarity.

Amendment 124 would require the Secretary of State to publish a report assessing the impact of the tribunal backlogs on the operation of the monetary penalties that the Immigration Services Commissioner can impose. As with much of our discussion on the Bill, backlogs and delays are central to how effective any enforcement process will be. In the context of appeals, such delays can too often be exploited. Vexatious claims are lodged not with the aim of overturning a penalty but to take advantage of delays, which can prevent prohibitions from being enforced and allow those in breach to avoid consequences for longer than is reasonable. Therefore, we need to be mindful of the role backlogs play, not only as an administrative challenge but as a weakness in the system that can be deliberately abused. This amendment seeks to bring attention to that issue and assure transparency over the scale of that problem in the First-tier Tribunal. The scheme that we are creating here can work only if the appeals process is not allowed to become a flaw in its design.

Amendment 125 is in a similar spirit to Amendment 123 in that it seeks to incorporate greater oversight into the use of the powers granted to the Government to specify fees and amounts. Oversight allows us to do our job as the Opposition properly, namely in holding the Government to account and checking that what is being done is both right and effective. We need this to be built into the legislation as much as possible if it is to work. Again, I hope the Minister can tell us how he will ensure that this happens.

Briefly, Amendments 128 and 129 in the name of the noble Baroness, Lady Hamwee, require little commentary from us as it is a question put directly to the Minister. But I add that it tangentially speaks to the point that we on these Benches are making about proportionality and oversight. Clarity from the Minister on these points would be welcome. Amendment 130 is consequential to the amendment to Schedule 1, page 78, line 9.

To conclude, at its heart this group is about asking questions and probing the Government—one of the most important functions of this House—and any clarity that the Minister can provide will be welcome in order to ensure that there is proper oversight of the powers of the Bill, that proportionality is built into its operation and that the system it creates is both effective and ready to function from day one. I hope the Minister will be able to reassure us of that.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 128 and 129. This issue was brought to our attention by the Immigration Law Practitioners’ Association. I want to make it quite clear that this is not a self-serving pair of amendments. It is about the fees charged for services by the commissioner for things such as competence assessments, registration, training, events accreditation and advice going beyond the cost to the IAA of exercising the function.

The point that ILPA makes is that if the fees charged are a burden on practitioners, which they will be, they should not be more of a burden than they need to be to pay for the functions. That is in itself a barrier to access to justice. When we come to the amendment on legal aid, we will, I am sure, talk about the importance of access to justice, its place in the rule of law and so on. I have made a note for that amendment to talk about the terrifically hard work that it is being an immigration legal practitioner. When I was in practice many years ago, I shied away from immigration work because, even then, it was so difficult.

There is a shortage of practitioners. It is important that they are not deterred from maintaining their staffing numbers, upskilling existing advisers or recruiting. It may sound counterintuitive given that what we are talking about is, in essence, assistance and support from the IAA, but we must not see this impeding the growth in the sector’s capacity and the supply of high-quality advice. That is important in maintaining a good asylum system.

[Lord Hanson of Flint (Lab)]

I am grateful again, as ever, to His Majesty’s loyal Opposition and to the noble Baroness, Lady Hamwee, for their amendments. I give them the general assurance that we are committed to ensuring that those seeking immigration advice and services can access a regulated and competent advice sector, and the clauses in the Bill as drafted will strengthen the availability of good-quality regulated immigration advice and therefore bolster access to justice. Therefore, we hope that the amendments will not be pressed either today or at a later stage, but I just want to explain why.

As she has just completed her comments, let me begin with Amendment 128 from the noble Baroness, Lady Hamwee. It is intended to probe whether access to justice will be impeded if fees are higher than the cost of the services provided under those fees. The amendment tabled would remove the ability of the Secretary of State—that is, my right honourable friend the Home Secretary—and the commissioner to charge fees for a function that may exceed the cost of exercising that function, as well as removing the safeguards related to that ability. The noble Baroness may be aware that under the Treasury’s guidance, Managing Public Money, the basic principle is that fees and charges should be set at a level to recover costs. The fees charged to advisers for applications for registration or continued registration with the commissioner are not currently at full cost recovery levels. Quite frankly, in the current economic climate, that position is no longer sustainable.

Changes to the charging power will reduce the burden on the taxpayer. As drafted, new subsections (3) and (4) will allow for an average of the cost of providing services across organisations to be charged, rather than attempting to make a calculation of the number of hours spent on providing services to one organisation versus another, which would not be feasible. This approach is in accordance with Treasury rules on managing public money. Different fee levels for different types of users should reflect differences in average costs for providing the services to those groups, and ensuring that fees are proportionate to organisation size will, I believe, help bolster access to justice. We may have some reflection on that, but that is the initial point I put to the noble Baroness on her amendment.

There are a number of amendments from His Majesty’s Opposition. I will deal first with Amendment 125 which, with consequential amendments, aims to alter the type of secondary instrument used to charge fees in respect of certain commissioner functions from an order to regulations. This would make regulations specifying the fees chargeable by the commissioner subject to the affirmative procedure under Section 166 of the Immigration and Asylum Act 1999. The measure in this Bill replaces the current power to charge fees by order set out in paragraph 5 of Schedule 6 to the Immigration and Asylum Act 1999. As the new charging power in the Bill is to be inserted into the 1999 Act, the use of an order as a relevant statutory instrument ensures drafting consistency between this Bill and current legislation. The negative procedure is considered appropriate to afford an appropriate level of parliamentary scrutiny, and of course I remind all noble Lords that the negative procedure can be prayed against and there can be a debate accordingly.

23:00

Amendment 121, in the name of the noble Lords opposite, intends to probe the planned changes to the definition of “relevant matters” on which the immigration advice for which the commissioner has regular oversight would be made. The amendment would remove the ability of the Secretary of State to amend the definition of “relevant matters” by secondary legislation. I hope that noble Lords will recognise that secondary legislation gives the Secretary of State flexibility to act quickly. The agreement that we would have for a clear definition of “relevant matters” is essential to support effective regulation and enforcement of the immigration advice sector.

Again, I give noble Lords the example that amending relevant matters will allow us to clarify what is not a relevant matter—for example, providing technical assistance in a Ukraine permission extension application —meaning that more support is available for vulnerable advice seekers without fear that it could lead to prosecution or fines. Regulations will be subject to an affirmative procedure, and again Parliament can determine and debate that in due course.

Amendment 122 seeks to probe why commissioners would need to give a person who is not a relevant person a penalty notice. A relevant person in this case means a person registered with the commissioner under Sections 84(2)(a) and 85(1) of the Immigration and Asylum Act 1999 and therefore under regulatory oversight. The amendment as tabled would remove the commissioner’s ability to impose a penalty notice on a person who is not a relevant person. This would prevent the commissioner imposing a penalty on rogue, unregulated advisers—persons who were at the time of the act or omission to which the penalty notice relates a relevant person but who are no longer relevant and registered with the commissioner at the point of receipt of such notice. This amendment would allow previously registered persons to avoid penalties by de-registering, thereby avoiding being penalised for wrongdoing. I hope that, with that explanation, the noble Lord will not move his amendment.

Amendment 123 seeks to remove the ability of the Secretary of State to amend the amount charged in a variable penalty notice. The maximum amount of a variable penalty notice is currently set in the Bill at £15,000. The power to amend this by regulations subject to the affirmative procedure, again giving Parliament the driving seat on this, gives the ability to respond to the effectiveness of the fixed penalty as well as inflation, and to tackle abuse with adequate parliamentary scrutiny. The £15,000 figure could be changed, but it is subject to affirmative parliamentary scrutiny.

Amendment 124 would require the Secretary of State to publish a report assessing the impact on First-tier Tribunal backlogs of the introduction of appeals against monetary penalties within three months of the sections coming into effect. There is already established procedure for government departments to assess the impacts of the judicial system through the justice impact test, which has been completed for this policy proposal. I intend to update that prior to the introduction of any secondary legislation and keep it under review.

In summary, a fairer charging structure, clarity over the list of regulated matters that immigration advisers may provide advice on and an enhanced ability to penalise those who do not co-operate are all positive things. To that end, the clauses should remain as drafted in their entirety. Noble Lords can examine this again in the cold light of day tomorrow, but I hope that, with those reassurances, they will not press their amendments this evening.

[Baroness Hamwee (LD)]

Is the Minister saying that there is to be an exercise of averaging out the fees, so that we are talking about total cost and total fees, but they might not be absolutely exact for the particular function; however, taken overall, they will not exceed the total amount?

[Lord Hanson of Flint (Lab)]

I will give a one-word answer, which I hope will be helpful. Yes.

[Lord Cameron of Lochiel (Con)]

My Lords, I am grateful to the Minister for comprehensively explaining the Government’s position on these probing amendments. I listened very carefully to what he said. I was not entirely convinced by all of it, but satisfied enough that, in the circumstances, I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

Amendments 122 to 130 not moved.

Schedule 1 agreed.

Clause 41: Detention and exercise of functions pending deportation

Amendment 131

Moved by

[Lord German]

131: Clause 41, page 36, line 8, leave out subsection (17)
Member's explanatory statement
This amendment removes the retrospective element of the changes made by this clause.

[Lord German (LD)]

My Lords, in moving Amendment 131, I will also speak to Amendments 132 to 135 and Amendment 210 in my name. First, this amendment would provide a time limit of 28 days’ detention for persons detained for immigration purposes; secondly, it would introduce general criteria for detention to ensure that detention for the purpose of removal would be used only when strictly necessary and proportionate, and when the person can be shortly removed; thirdly, it would ensure effective judicial oversight of detention via the First-tier Tribunal, with automatic bail hearings after 96 hours of detention.

I tabled this amendment because, having engaged with the findings of the Brook House Inquiry, visited immigration detention centres and spoken to current and ex-detainees, I believe that it is a change that needs to happen. When I visited an immigration removal centre last year and spoke to detainees and staff, it was made clear to me that case progression for immigration detainees is slow and hampered by staff shortages. Further to this, detainees were unaware of the progress on their cases and when they could expect to leave detention or be removed. Communication to them was minimal and this clearly led to despair and frustration with the lack of hope for the future.

In its 2025 report on the progress of Harmondsworth IRC, the inspectorate noted that case progression was poor in six of the eight cases reviewed. The inspectorate reports common reasons for excessive periods of detention as including

“poor case progression; delays obtaining travel documentation; delays in securing appropriate release accommodation; and failures or delays in recognising high levels of vulnerability.”

With no limit on how long someone can be detained and no set time for their detention, there is no incentive for or pressure on the Home Office to make swift, accurate decisions.

A time limit set at 28 days, together with automatic bail hearings, would ensure sufficient time for the Home Office to proceed with removal in circumstances where impediments to these processes, such as outstanding legal appeals or unavailability of travel documents, have already been resolved.

In 2024, more than 50% of people held in immigration detention by the Home Office were later released back into the community under some form of immigration bail—a clear indication that the detention was likely unnecessary or even unlawful. According to the most recent Home Office annual report and accounts published on 17 July, from 2024 to 2025 the Government paid out compensation for unlawful wrongful detention in 334 cases, totalling £10.4 million. In 2023-24, there were 838 cases, totalling £11.8 million. This is clear evidence that significant numbers of people are detained wrongly or unlawfully each year. Without their having access to appropriate legal appeals or processes, the Home Office could have continued to detain them.

These amendments intend to significantly reduce the incidence of unnecessary detention and reduce the considerable suffering and inefficiency inherent in the current detention system. This would help to ensure that immigration detention is used only when a person has exhausted all appeals and removal is imminent and no viable alternatives are available. I appreciate that the Government will state that immigration detention is not indefinite. Indeed, the Minister for Border Security and Asylum recently stated:

“Immigration centres are not used for indefinite detention. We can only keep anyone in detention in an immigration centre if there is a reasonable prospect of their removal. If there is not, they have to be released”.—[Official Report, Commons, 2/6/25; col. 18.]


The point here, of course, is that for the individual that experience can be indefinite, but there is certainly no straightforward answer when people ask that question.

The call for a statutory time limit on immigration detention has been made consistently by lots of expert bodies, including, of course, the Home Affairs Select Committee of the other place, the Joint Committee on Human Rights, the Chief Inspector of Prisons, the Independent Monitoring Boards, the British Medical Association, the Equality and Human Rights Commission, the Bar Council and, of course, the Brook House Inquiry. So against that, there is a mound of evidence in favour of these amendments.

Even in the most serious criminal cases, judicial oversight of detention is required after 36 hours and individuals must be released from detention after 96 hours if charges are not laid. Those suspected of terrorism offences can be held for a maximum of 14 days. Further to this, the statutory purpose of immigration detention is to effect removal, not to serve as indefinite detention to prevent reoffending.

Conditions in IRCs are often harsh and prison-like, with people routinely locked in cells for up to 12 hours a day. In a recent report on an IRC, the Chief Inspector of Prisons noted:

“A longstanding and fundamental problem was that all immigration detainees at Brook House, who should be held in relaxed conditions with minimal restrictions, were instead in an institution that looked and felt like a prison”.


The centre simply did not have enough space or experienced staff to manage an increasingly vulnerable population. Behind that, of course, we have the Brook House Inquiry, published in 2023, which recorded over a five-month period 19 incidents or acts of omission capable of amounting to mistreatment in breach of Article 3 of the ECHR.

Reducing the period of detention is therefore important in reducing harm. When this proposal has been debated previously, the concern has been expressed that detainees will run down the clock to frustrate removal and subsequently be granted release. But the amendment permits re-detention beyond the period of 28 days when there has been a material change of circumstances which could, for example, include a situation when an individual’s appeal rights are exhausted or a travel document is issued.

There are, however, a range of criminal sanctions available under Section 26 of the Immigration Act 1971 that enable anyone seeking to frustrate the system to be prosecuted. Under these proposals, the tribunal can refuse to grant bail if removal restrictions are set and removal is to take place within the following 21 days. Further, these proposals do not impact the broad powers of the First-tier Tribunal to set conditions for immigration bail under paragraph 2 of Schedule 10 to the Immigration Act 2016. These include reporting and residence conditions, financial conditions and such other conditions as it deems fit. These proposals all exempt cases where the Secretary of State has certified that the decision to detain was taken in the interest of national security.

I would like to probe the Minister on another avenue to reducing time in immigration detention. For people serving a sentence of imprisonment who have been issued with a deportation notice in prison, custodial sentences provide sufficient time for immigration cases to be resolved. In this time, the Home Office can obtain the travel documents and make arrangements to facilitate a person’s lawful and efficient deportation on release from prison—in other words, a straight-through process without having to go through the intermediary steps and the time that that takes.

As a way of reducing the cost and harm of immigration detention, will the Minister consider the merits of progressing individuals’ criminal deportation cases while they are serving their sentences? Further to this, the Independent Chief Inspector of Borders and Immigration, following his inspection in 2022-23, stated that the Home Office was “not making best use” of the early removal scheme or the facilitated return scheme. These schemes could also reduce numbers entering immigration detention.

23:15

With all that in mind, I hope that these amendments will enable us to understand how the information that has been provided by such a wide range of organisations will enable the Government to look at changing the measures that they currently use and to implement measures, such as those contained in these amendments, both to increase the number of people who voluntarily return to their home who are detained for the purpose of removal and to ensure that we do not have the ins and outs of a continuing cycle of removal and bail in immigration detention, with people going in and out without seeing an end in sight. There is a lot to be dealt with here. A lot of expert independent inspection advice has been given to the Government and made available to both Houses through our Joint Committee on Human Rights and the Home Affairs Committee in the House of Commons. It requires action, which these amendments seek to fulfil in this part of the Bill.

[Lord Davies of Gower (Con)]

My Lords, I shall make my remarks as brief as possible. We on this side of the House oppose Amendment 131 on the grounds that it undermines a key provision of the borders Bill and creates a two-tier system where some people are rightly subject to stricter conditions but others are not. The amendment would, in effect, disapply these provisions from individuals who ought to be subject to them. If these provisions are, as noble Lords rightly recognise, necessary to strengthen our ability to act, then surely they should apply equally to all relevant cases from the moment the Act comes into force.

We on this side also oppose Amendment 132, which would result in the release of people from detention possibly before any determination had been made on them and before we could be assured that it was safe and in the national interest to do so. This would result in the release of people when their identities remained unclear and we did not know why they were here or what threat they might pose to the country. We know of cases where people who arrived here illegally went on to plan and very nearly execute major terrorist attacks sponsored by hostile foreign states, as happened in May last year. It would be deeply irresponsible to allow such individuals to walk free while essential checks were still ongoing.

Amendment 140 in the name of my noble friend Lord Swire, who I note is not present in his place, would require the Secretary of State to make a biannual report on the number of foreign criminals detained awaiting deportation under any authority broken down by nationality, and on the number of illegal entrants detained for any purpose under any authority broken down by nationality. This amendment would provide much-needed clarity on who was being detained and goes to the heart of a point that we on these Benches have raised consistently.

The British people have a right to know who is being detained and where they are from. If we are to foster good will towards those who genuinely need our help, this must be done in a framework of trust and openness between the Government and the public. For these reasons, while we welcome Amendment 140 for the clarity and transparency it brings, we cannot support the majority of the amendments in this group. They would weaken key provisions, create loopholes and make it harder for us to maintain the strength and integrity of our immigration and asylum system.

The challenge we face is significant and demands a robust response. No one will benefit in the long term if we fail to take control now. The British people will lose patience, trust will erode and good will towards migrants who genuinely need our help will diminish. Once that good will is lost, it cannot easily be recovered. We must bring the public with us, not alienate them, and that requires a system that is both strong and fair. These amendments do not achieve that.

[Lord Hanson of Flint (Lab)]

What a note to finish the evening on. I find myself in agreement with the tone of the noble Lord, Lord Davies, and I find myself not in agreement, I am afraid, with the noble Lord, Lord German, so it is an interesting end to a long day of debate.

Immigration detention is an issue that I know noble Lords feel strongly about. The purpose of Clause 41 is to clarify the existing statutory powers of detention where the Home Office is considering whether deportation is conducive to the public good, and the consequential amendments to existing powers to take biometrics and searches upon being detained for this purpose. It is the Home Office’s position that the current detention power is lawful. This clause provides greater legal clarity regarding its application. Without the retrospective effect of this clause, individuals could challenge the lawfulness of their detention. Such claims risk undermining the integrity of past deportation proceedings and frustrating future deportation proceedings.

Amendment 131 in the names of the noble Lord, Lord German, and the noble Baroness, Lady Brinton, seeks to remove that retrospective effect. I do not believe that is a productive way forward because, as I mentioned, Clause 41 clarifies these powers. The Home Office already detains individuals at the first stage of deportation. Clause 41 is not expected to increase the use of detention powers but is intended to remove ambiguity and ensure that existing practices are legally robust.

On Amendment 132, tabled by the noble Lord, Lord German, with support from other noble Lords, it is important to make clear the Government’s position that a statutory time limit on detention will not, in our view, be effective in ensuring that those with no right to be in the UK actually leave the UK. The Government have been clear that we are committed to increasing removals of people who have no right to be here. That is what the public expect and, in that vein, I am on the same page as the noble Lord, Lord Davies.

In the year ending March 2025, there were 8,600 enforced removals—a 22% increase on the previous year—and that would not be possible with a time limit on detention because it would simply not be possible to achieve that level of numbers. It is crucial that we have an immigration system that encourages compliance. Under a 28-day time limit, people who have no legal right to be in the UK—including, as the noble Lord, Lord, Davies, mentioned, some who potentially have committed serious crimes—would be automatically released after 28 days, regardless of whether they have actively obstructed removal efforts or pose a clear risk to the public. We have a duty to protect the British public, and it is simply not safe to have an automatic release date, particularly because foreign national offenders, who may have committed serious criminal offences, would benefit from this amendment equally to anybody else.

Additionally, such a time limit is likely to encourage and reward abuse of the system by allowing those who wish to guarantee their release to frustrate removal processes until they reach that 28-day limit. It would encourage late and opportunistic claims to be made that would potentially push people over the 28-day limit, and this would undermine effective immigration control and potentially place the public at risk.

Amendment 133 requires that, after 96 hours of detention, a person may continue to be detained only if they have been refused bail by the First-tier Tribunal or are awaiting a scheduled bail hearing. This would again, in my view, place significant additional burdens on an already-stretched tribunal service, and the increases would simply be unsustainable.

There are a number of safeguards in the detention process—I hope this will reassure the noble Lord—including access to the courts by judicial review; bail applications, which can be made at any point; and automatic referrals for consideration of bail for those detained for slightly longer periods. With these mechanisms in place, the transfer of these powers to the tribunal is not necessary.

I recognise and understand that there are concerns about prolonged periods of time in detention. The law is currently clear that we have powers to detain people only for a reasonable period to carry out a specific purpose, either to examine a person on their arrival, to remove or to deport. We have a number of safeguards in place, and I assure noble Lords that, where removal cannot be achieved within a reasonable timeframe, these safeguards ensure that people are released. I know that will not satisfy the noble Lord, but I put that for him to consider today in order to withdraw the amendment, which we can return to later.

I know the noble Lord, Lord Swire, has tabled Amendment 140. Sadly, he has not managed to be here this evening, but when he looks at Hansard in the cold light of day tomorrow morning, he will see that we include data which includes illegal entrants. We also produce and publish additional statistics on the number of foreign national offenders subject to removal and deportation, so that amendment is unnecessary. With that, I hope the noble Lord, Lord German, will withdraw his amendment.

[Lord German (LD)]

My Lords, I am obviously disappointed that the evidence produced by the inspectorate and many other bodies, including the House of Commons Justice Committee and our own committee on human rights, if not exactly thrown out of the window, has not necessarily received the full consideration we are speaking of. I hear what the Minister says, and I will reflect on that. I and the other supporters of this issue may well come back to it later. With that, I beg leave to withdraw my amendment.

Amendment 131 withdrawn.

Clause 41 agreed.

Amendments 132 to 135 not moved.

House resumed.

House adjourned at 11.27 pm.