Missing Asylum Seeking Unaccompanied Children

Baroness Chakrabarti Excerpts

Monday 10th July 2023 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask His Majesty’s Government what steps they are taking to find all the asylum seeking unaccompanied children who have gone missing from Home Office care.

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

While the responsibility for locating missing children is ultimately for the police, the Home Office works closely with local authorities and other partners to try to locate missing unaccompanied asylum-seeking children and ensure that they are safe. As part of this, the Home Office continues to collaborate with the National Police Chiefs’ Council and the National Crime Agency to ensure consistency in our national approach and response.

[Baroness Chakrabarti (Lab)]

I am grateful for that. Could the Minister help the House with the number of those who were lost and the number who have been found to date, and whether photographs have been passed to the police for a national campaign? What about the ongoing safeguarding issue? Recent court proceedings reveal that 40% of those now in unregulated hotels are under 16, including some as young as nine. Is that not a grave and dangerous dereliction of duty?

[Lord Murray of Blidworth (Con)]

The noble Baroness would not expect me to comment on ongoing litigation. I can provide her with the statistics: there are presently 154 unaccompanied children who are currently missing. Of that 154, 100 have since turned 18, and 25 of the 154 currently missing were age-disputed individuals.

Windrush Generation: 75th Anniversary

Baroness Chakrabarti Excerpts

Friday 7th July 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am very grateful to the Minister for bringing forward this debate and, if I may say, for the tone in which he opened it. It is right that this House should take note of this important anniversary of the arrival of the Windrush generation. This is, as he has said, a moment to celebrate the enormous contribution of so many who came to rebuild Britain after the Second World War. Notwithstanding complex colonial history and a mixed welcome, they came as some of the most loyal and patriotic British subjects to work in our NHS, construction, transport and, as he said, other vital public services—often, it must be remembered, in undervalued and back-breaking employment.

However, we must also reflect, as the Minister has done, on the betrayal of their children. In one of the worst scandals in British history, inhumanity and illegality on the part of government cost people jobs, homes, healthcare and liberty and saw some of them forcibly transported to faraway islands that some had never known in their adult lives, despite lives of hard work and service to the United Kingdom. Many died broken-hearted and uncompensated. Some are uncompensated still; I am grateful to him for his update, but I hope that the noble Baroness the Minister will take the opportunity perhaps to go further on the ongoing plans to right that wrong, and do so for all outstanding claims very quickly. What is His Majesty’s Government’s estimate of outstanding claims for compensation and what prospect is there of resolving all such claims this year or before the next anniversary?

Preparing for this debate gave me the opportunity to return to Amelia Gentleman’s fine book—which will shortly be returned to your Lordships’ Library. The Windrush Betrayal records not only outstanding and persistent independent journalism, but the real human stories of Paulette Wilson, who had worked in catering in the other place, Anthony Bryan, Sarah O’Connor and countless others and how their lives were devastated by a toxic cocktail of culture war, cruelty and incompetence which we must never repeat. I commend the book to all noble Lords, particularly those with close interest in the working of the Home Office. I remind your Lordships that the background to that scandal—the scandal of demanding papers of people who had come to this country as children 50-plus years earlier—was called the hostile environment: a policy of targets that will always penalise the lowest hanging fruit, and a policy of deterrence. People who had evidence of working and paying tax for decades were detained and even removed, while their landing cards were destroyed in the annals of the Home Office.

It is incumbent on those who speak from this particular spot to always mention ships. Today that task is easy. However, my noble friend the admiral reminds me that the “Empire Windrush” brought not only Caribbean Britons but a number of Polish refugees to these shores. At the time, they were rightly welcomed by the then Government while the refugee convention was still being negotiated and settled. Today, the refrain is a little different. The refrain is “Stop the boats”. There is a universal aspiration that should be striven for with justice and compassion so that human beings are never again relegated to statistics, with all the consequences that will follow. Debate the boats, by all means, but never let us forget the stories of those who came in ships.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the House will be aware that I support the direction of travel of the Bill quite strongly. It represents a serious effort—it may be a vain one, and will certainly be so if the Government accept all the loopholes in the amendments we have discussed this afternoon—to address an issue of considerable concern to our fellow citizens. But, although I support the direction of travel, that does not mean that I think it perfect in every sense. I will therefore take a minute to support Amendment 131, in the name of the noble and learned Lord, Lord Hope of Craighead—to which he has just spoken—and the noble Lord, Lord Anderson of Ipswich.

I do not want to add to the background as the noble and learned Lord has obviously explained that very clearly. However, this does come under the issue that the noble Lord, Lord Blencathra, and I tried to draw to the attention of both Houses when we chaired the Delegated Powers Committee and the Secondary Legislation Scrutiny Committee respectively: the way in which power has been slipping through the hands of Parliament, with extensive and wide powers being taken by means of secondary legislation. Some might say that their use is improper, but let us say “extensive” for the purposes of this afternoon. Too often, these issues should have had a degree of scrutiny appropriate for primary legislation, and it is not satisfactory to introduce major issues of policy without that scrutiny.

We have to remember that we do need secondary legislation. Without it, the Government’s machine would gum up completely. But we need to make sure that its use is restricted to what it says on the tin—namely, issues of secondary importance. In my view, Clause 39, entitled

“Meaning of ‘serious and irreversible harm’,”


is of pretty fundamental importance.

I agree with the need for regulation. The world moves on much faster than the rather stately pace of primary legislation. That is why I could not support Amendment 132 in the name of the noble and learned Lord, Lord Etherton, and the noble Lords, Lord Carlile and Lord Paddick, because it seeks to delete the whole clause. We need some regulatory power. In much the same way, I am concerned about Amendment 130, because it opens up a whole series of other loopholes that impede the impact of the Bill as a whole.

In response to the wider powers that the Government are seeking under the present formulation, Parliament is entitled to ask for some limits on future ministerial power. Let me use the analogy of driving down a road. The Government are entitled to drive down the road, but in turn Parliament is entitled to ask for guard-rails—guard-rails that will ensure that a future Minister cannot swerve off into parts of—

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for giving way and for all his remarks thus far. Would he agree with me, in the light of the Companion, that this would be a good moment to hear from his noble friend the Minister?

[Lord Hodgson of Astley Abbotts (Con)]

If the noble Baroness had given me another two sentences, I would have finished. I was going to say we need guard-rails to make sure that future Ministers do not swerve off in directions hitherto undreamed of. It is because I think Amendment 131 represents those guard-rails that I support it.

Migration and Economic Development Partnership

Baroness Chakrabarti Excerpts

Thursday 29th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I thank my noble friend. As the Lord Chief Justice made clear in his summary of the judgment which he gave earlier today, the decision taken by the court was founded on a perception of a possible breach of Article 3 of the European convention. Under the effect of the Human Rights Act 1998, that meant that the decision was unlawful. It is unquestionably right that that was the basis for the Court of Appeal’s decision today. Be that as it may, the point remains that even that thin basis for the decision was made by only two of the three judges. For that reason, it is entirely appropriate that the Government appeal the decision.

[Baroness Chakrabarti (Lab)]

My Lords, I have no desire to relitigate the Court of Appeal here today, not least because of the late night that the Minister had again last night, and there are no doubt more to come. I am grateful to him for repeating the Statement, and I am relieved that it is relatively mild and respectful of the court, which I think is appropriate. The words “respect the court” are even used in the Statement. However, we then have the Home Secretary taking to the airwaves and suggesting that our judicial system is somehow rigged against the British people. Is that really helpful to the rule of law in our country? How can any youngster on any council estate learn to respect the local magistrate if senior Cabinet Ministers will not respect the Court of Appeal?

I agree with the noble Lord that you win some and you lose some. Welcome to being a Home Office Minister. The Government have won in the High Court and lost in a majority decision in the Court of Appeal. No doubt, the Government will appeal to the Supreme Court, but no doubt, the appellants will cross-appeal on the matters that the Minister is happy with. In the meantime, shall we leave the referees alone and maintain respect, at least in this House? I suggest this to the noble Lord, Lord Lilley. Shall we still maintain a modicum of respect for the rule of law that is a precursor even to democracy, let alone civilisation itself?

[Lord Murray of Blidworth (Con)]

I am afraid I disagree with the noble Baroness. The Home Secretary certainly has the greatest respect for the judicial system, as you would expect of a former Attorney-General. All she observed is that the legislation under which the decision was made is a topic of legitimate comment and she is entitled to reach a different view. Just because the Government appeal against a decision does not mean there is an attack on what the noble Baroness calls the rule of law. In this case, as the noble Baroness rightly observes, you win some and you lose some. The Government are confident that at the end of the day the correct decision will be reached.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I thank my noble friend. He is absolutely right: we realised that, unfortunately, institutional changes were required. That is why we brought forward the innovative scheme set out in the Illegal Migration Bill. The changes brought forward by that Bill will ensure that a removal system that acts as an effective deterrent to illegal entrants will be fully operational and stop the dangerous channel crossings. My noble friend is entirely right to highlight that, to date, it has been all too easy for removals of those who should not be in our country to be thwarted—not least, I regret to say, by the activities of representations at the last minute relating to foreign national offenders, for example, from Members of the other place sitting on the Opposition Benches.

[Baroness Chakrabarti (Lab)]

My Lords, I will speak as there is still time. The Minister mentioned foreign national offenders. Was today really the appropriate day to slip out the really rather damning report from the Chief Inspector of Borders and Immigration into the handling—or non-handling—of the removal of foreign national offenders, who can in law be removed from United Kingdom? It seems that that has been slipped out on Rwanda day. It is a pretty damning report. I have not had time to read it properly yet. Can the Minister promise that it was just a total coincidence that the report was slipped out today? Will he and his colleagues make sure that noble Lords have the opportunity to debate that report into the failure on data and casework and this being no way to run a department? We should remember that these people that the Home Office is not getting a grip on are not asylum seekers and refugees but foreign national offenders. Can we have the opportunity in due course to debate that matter?

[Lord Murray of Blidworth (Con)]

The noble Baroness amply demonstrates the problem identified by my noble friend a moment ago: the difficulty with removing people is the overenthusiasm of our overdefensive decision-making, which frustrates removal in all too many cases. It is not helped by the fact that regular representations have been made to prevent the deportation of foreign national offenders by Members of the opposition parties. The Bill will address the problems that surround the removal of those who should not be in our country. I should add that among that cohort of foreign national offenders are those who have entered the country illegally and those who have claimed asylum. So, the noble Baroness cannot draw a clear distinction between foreign national offenders, asylum seekers and those who enter the country illegally.

UK: Violence Against Women and Girls

Baroness Chakrabarti Excerpts

Thursday 29th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

I congratulate my noble sisters on facilitating this debate on the vital issue of violence against women—an epidemic exacerbated by decades of austerity.

While I totally agree with the noble Baroness, Lady Helic, on the need for more judicial training, today also feels like a moment to celebrate our judiciary. I pay tribute to my dear friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who retired from your Lordships’ House last week due to fading health. It is sometimes hard to believe that it was as late as 1991 that rape within marriage was outlawed in this country, and that it was judges, not parliamentarians, who established such an obvious and civilised reform. This is what the ever self-deprecating noble and learned Lord said about his landmark decision in the Crown v C years later in 2017:

“I have few boasts to my name by way of legal achievement, few jewels in my judicial crown, but I can and do boast of being the first judge in this jurisdiction … to rule that a husband is not permitted in law to have intercourse with his wife quite simply whensoever he chooses—in short, that there is such an offence as marital rape. That decision was said at the time to fly in the face of centuries of established legal principle but in fact, happily, it was upheld by both the Court of Appeal and indeed the Appeal Committee in your Lordships’ House”.—[Official Report, 10/3/17; col. 1584.]


But now, six years later, it is political priorities and economic resources, rather than the law, that are letting so many women in the United Kingdom so badly down. As we have heard, attrition rates between the reporting and charging of rape, let alone trials and convictions, are so dire as to amount to de facto decriminalisation of one of the gravest offences, the prevalence of which casts a very long shadow on any society’s levels of basic common decency.

Further, we are now in a vicious spiral of such low trust in policing and the criminal justice system, on the part of women in particular, that they are reluctant, as we have heard, even to come forward as victims of terrible, inhuman and degrading abuse. Rape and other types of violence against women are complex crimes, and all the more difficult, evidentially, on account of their intimate nature. It takes expensive expert personnel and generous support services to even begin to tackle the problem, and years of neglect now render the challenge even greater. Will the Minister commit to making this a personal priority for his tenure in the Home Department?

Will the Government guarantee the provision of specialist rape provision in every police force in the country, of more publicly funded refuge places and of other priority support for victims? Will the Prime Minister, himself a father of daughters, lead a public campaign for women’s and girls’ dignity and rights, in contrast with, I am afraid, the rather laddish and often misogynistic political culture of recent years?

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, this is the first of a number of proposed new clauses relating to the efficiency of the Home Office and the elusive—maybe even illusory—impact assessment statement. We know we will be told that the impact assessment will be published “in due course”. The timetabling may be clear to the Home Office but it is not to any other noble Lord who has spoken. It occurred to me that the Home Office could really teach even Avanti West Coast or TransPennine Express something about timetabling.

We cannot put into the Bill that it should not go to Report without an impact assessment. Amendment 149 is therefore one of a number that I have tabled, all following the same form of drafting, so that the Bill should

“not come into force until”

and unless various things had happened, one of them being the receipt of the impact assessment. I realised, on reflection, that it was not my cleverest thought because I did not mean any old sort of impact assessment; I meant the sort that the noble Lord, Lord Carlile, was referring to the other day, when he talked about due diligence. That is a term I understand pretty well, as I think most people would. However, the amendment enables me to make the point that noble Lords have been making throughout.

On Monday, the Minister certainly referred to an economic impact assessment, as I think he mentioned before. My reading of the debates is that noble Lords want far more than just an economic assessment. I do not need to spell out that the impact of the Bill on third-sector organisations and so on, as well as individuals, will be considerable.

Amendment 132 is about the operation of the Home Office. Frankly, it is a pretty mild amendment, especially given how often it is remarked—I agree with this—that the backlog of applications is the problem, not the number of asylum seekers. The amendment simply calls for a management review by independent experts.

Many people are calling for the Home Office to clear applications from asylum seekers who come from countries whose nationals succeed in their applications in almost every case. We have heard reference to this throughout the Committee. It should be quite straightforward, but I confess that I am in two minds about it. I am anxious that asylum seekers are not all in the same position or with the same characteristics, even if they come from the same country. It would be too easy not to see each asylum seeker as an individual whose application should be treated as that particular individual’s application. However, that does not invalidate the point that what has been happening—or not happening —in the Home Office, rather than in the channel, is at the heart of the situation.

I mentioned earlier today the Justice and Home Affairs Select Committee’s report, All Families Matter: An Inquiry Into Family Migration, and the Home Office’s response to it. During the inquiry that led to that report, the committee, which I chair, heard from witnesses vivid descriptions of their attempts to find out what was happening to their applications. To give one example, people said that they had to hold the line for long periods and had to give a credit card number in their details because they had to pay for the call. They paid to sit on the phone but then found, when they got through, that they were not speaking to the right person or that the number that they had been told to call was not the right one. The frustration and distress mount and mount. We know that the Home Office’s service standards were affected by the Ukraine visa scheme and that the Home Office aims—I stress that word—to begin republishing quarterly performance data as soon as possible. Let me stress that I do not think that any of this is the fault of individual officials; there is something about leadership and management that needs to be sorted.

I will not read a lot from the Government’s response to the committee’s report but I want to pick out a couple of points. We made these recommendations:

“The Home Office should adopt a new approach to communication … The Home Office should establish standards about its communication with applicants and routinely publish statistics on whether these standards are met. Applicants should be able to contact the Home Office free of charge”.


The Government’s response states that the Home Office

“is working on a notification service”;

it is “currently in test”, it says. It goes to say:

“All applications are proactively monitored, and customers”—


I hate the word “customers” in this context—

“are notified prior to the end date of the service standard”.

Communication does not seem to be the Home Office’s strongest point or its natural behaviour; it is not one of its characteristics. So much of this goes back to efficiency and sympathy for customers, which matters an awful lot. These people feel that, too often, too many of them are treated as statistics and numbers. The service is a poor one. That is one of the reasons why I have tabled Amendment 132, which I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, Amendment 139 in this group is in my name. This group is all about efficiency and administration. Amendment 139 is purely a probing amendment—there is no way that anyone would seek to engineer changes to the machinery of government via an opposition amendment to yet another immigration Bill—but I put it down to probe the tensions that have been emerging and increasing in recent years, even months and weeks, between the respective competencies and missions of the Foreign, Commonwealth and Development Office on the one hand and the Home Office on the other. I also tabled it to stress the vital importance of international co-operation in dealing with the worst refugee crisis since just after the Second World War. It is, I am afraid, a crisis that is only going to deepen with the threats posed not just by the various conflicts all over the globe but by the climate crisis, as others have said.

Amendment 139 probes and sets out the kind of functions that sit with the Secretary of State. Noble Lords will remember that the Secretary of State is indivisible, so when Governments of various stripes move the deckchairs around and pass functions from one department to another or even rename or reconstruct departments, the Secretary of State is the Secretary of State. The kind of functions that I set out in my suggestion for an office for refugees and asylum seekers are those in general that are much more suited to the expertise and mission of the Foreign Office. That is why consideration of the various international obligations is set out, such as the function of considering safe passage and humanitarian protection and advising the Secretary of State in relation to aid and other action in conflict. It is the relationship between over there and over here.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I am sorry to upset the noble Lord opposite, but that is the best I can do.

Amendment 138, again put forward by the noble Lord, Lord Coaker, is similar to his earlier amendment on returns agreements. It anticipates the debate we will come to later today about action to tackle people smuggling. As I do not want to pre-empt my noble and learned friend’s response to later amendments, I will keep my remarks brief at this stage. Suffice it to say that I support the broad intent of this amendment—namely, the need to strengthen the cross-border law enforcement response to modern slavery and people trafficking—but you do not advance such co-operation by setting out in a public document the UK’s negotiating strategy to agree co-operation agreements with other countries.

Moreover, there are also existing established channels which the NCA and others use when working with their counterparts to tackle human trafficking. Where new bilaterals or multilaterals are needed, we will pursue these, but, as I have said, there are well-established mechanisms which already support cross-border co-operation in this area.

In answer to the noble Lord’s questions about specific figures, I am afraid that I do not have those to hand; I will make those available to him later.

Amendment 135, also tabled by the noble Lord, Lord Coaker, looks to the Government to publish an assessment of the likely impacts of the Bill on the use of contingency asylum accommodation and the costs associated with any necessary increase in the use of contingency asylum accommodation. The Home Office is committed to ending the expensive use of hotels for asylum seekers, costing nearly £7 million a day. We recognise the need to take urgent action and will look at all available options for looking at reducing the use of hotels, including alternative sites and vessels. Asylum seekers will be in basic, safe and secure accommodation appropriate for this purpose, while providing value for money for the taxpayer. We are working closely to listen to the local communities’ views and to reduce the impact of these sites, including through providing on-site security and financial support.

Amendment 139, tabled by the noble Baroness, Lady Chakrabarti, effectively seeks to transfer responsibility for the UK asylum system—the national referral mechanism, which considers and provides safe and legal routes and other similar functions—to the FCDO. She acknowledged that this is a probing amendment and put her case. I suspect that the noble Lord, Lord Kerr, gave a rather better explanation than I will give, but I will attempt to explain the status quo. The Home Office is responsible for all aspects of control of the UK border. Managing and controlling legal and illegal migration into the UK, including processing asylum claims and the designation and operation of safe and legal routes, are part and parcel of this strategic function. Different parts of the system cannot, and should not, be considered and managed in isolation.

To take one example, as we have previously debated, our capacity to admit people to the UK through safe and legal routes is impacted by the level of illegal migration, so hiving off aspects of immigration policy and operations to a separate department is a recipe for confusion, disjointed policy-making and ineffective operations. The migration and borders system is highly complicated and this change would serve only to add unnecessary complexity. However, I assure the noble Baroness that the Home Office already works closely with other government departments, including the FCDO, on all cross-cutting matters to ensure that relative interests are considered accordingly during the development and implementation of immigration and asylum policy, and it will continue to do so.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister. He was quite right about this being a probing amendment to demonstrate the importance of the joined-upness of this being over here and that over there. I am equally grateful to the noble Lord, Lord Kerr, who is doing his old department a great service in dodging that particular bullet. The Minister talked about respective competencies and so on, so the Foreign Office should keep doing foreign affairs, including negotiating treaties, for example. Why did the Home Secretary and the Home Department negotiate the Rwanda pact, as opposed to leaving treaty negotiation to the Foreign Office? That came into my mind because the Minister mentioned the Rwanda agreement in the context of the impact assessment. Just to help him, I suggest that the impact assessment should be provided on the basis that the Government believe they will succeed in the litigation, so the impact assessment could be produced without delay on the predication that the Government are confident that their litigation will succeed.

[Lord Sharpe of Epsom (Con)]

I will certainly ensure that the noble Baroness’s points are noted in the department.

Finally, Amendment 139FD would place a duty on the Home Secretary to publish quarterly statistics on the Bill’s operation after it is enacted. Again, I have no issue with the basic premise underpinning the amendment. We already publish a raft of immigration statistics on a quarterly basis and I have no doubt that these regular publications will be augmented to report on what is happening under this Bill once it is commenced. We will consider carefully what data it is appropriate to record and publish as part of our implementation planning. I am sure that the noble Lord, Lord Coaker, and his Front-Bench colleagues in the other place will not be slow to press the Government for the kind of data referenced in the amendment.

I and my ministerial colleagues, in particularly my indefatigable noble friend Lord Murray, have heard loud and clear the calls from around the Committee that the economic impact assessment for the Bill should be available to your Lordships before the start of Report. My noble friend has committed to updating the House before the first day of Report and I have already read out the Home Secretary’s comments from this morning. However, having had this opportunity to debate the issue again, together with the other issues addressed in these amendments, I invite the noble Baroness to withdraw her amendment.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have my doubts about the term “safe and legal routes” as well. I would prefer to focus on safety; to talk about legal routes now impliedly accepts the argument that people who come here in the way that we have been discussing are in some way illegal. I do not think the routes are illegal any more than the people.

I did not know that my noble friend was going to refer to the recent report of the Justice and Home Affairs Committee on family migration, published in February. It raised a number of matters pertinent to the debate. Noble Lords will be familiar with the problem that one of our recommendations addresses. We recommended that the Home Office should allow biometrics to be completed on arrival in the UK for a wider range of nationalities in crisis situations. As noble Lords will know, there are many countries in which it is not possible to reach a visa application centre before travelling in order to enrol your biometrics. There are countries which do not have them. My noble friend Lord Purvis of Tweed said of the Government’s attitude to Iran and Sudan that they do not recognise the reality of the situation. In this connection, I do not think they recognise the realities either.

The reply from the Government arrived less than a week ago. I hope that this “in due course” is quite quick, and we will have the opportunity to debate it, but who knows? The Government said:

“Where an applicant considers they cannot travel to a Visa Application Centre … to enrol their biometrics, they can contact us to explain their circumstances”.


Well, that sounds practical, does it not? They continued:

“New guidance will be published in the near future setting out the unsafe journey policy. Where an applicant believes that travelling to a VAC would be unsafe, their request will be placed on hold pending the new guidance being published, however, should there be an urgent requirement to resolve their request this should be made clear in the request and consideration will be given as to the applicant’s circumstances and whether there is an urgent need to travel to the UK. If the request is deemed to be urgent we will contact the applicants to explain available options prior to the guidance being published”.


What a neat and tidy world the Home Office thinks exists.

[Baroness Chakrabarti (Lab)]

My Lords, I know this is not something I say very often, certainly not in the context of this debate, but the Government are to be commended for their welcome to Ukrainians and Hong Kongers, and a little less so for their slightly less warm welcome to Afghans.

Even more than commending the Government, I commend the British people who opened their homes and hearts to these desperate people. When we are making these generalisations about what our countrymen will or will not tolerate and what the will of the people is or is not, it is important to remember that. There is real value in allowing people to open their homes and hearts, rather than putting people on barges or in de facto prisons and so on. It is that separation that leads, in part, to the dehumanisation of these people who are coming to our shores in the most difficult times.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

It is because that is the structure of the legislation, and it simply makes for good parliamentary drafting. There it is. Forgive me: I shall make some progress because we have a lot of groups to deal with.

Clause 58 provides for the Home Secretary to consult local authorities, and any other organisation or person deemed suitable, to understand their capacity. The cap figure, and by extension the routes to be covered by the cap, will be considered and voted on in Parliament through a draft affirmative statutory instrument. The cap will not automatically apply to all current and new safe and legal routes that we offer or will introduce in the future. The policy intention is to manage the accommodation burden on local authorities, and my officials are currently considering which routes are most suitable to be included within the cap.

Alongside the cap on safe and legal routes, Clause 59 further requires the Home Secretary to publish a report on existing and any proposed new safe and legal routes. In response to the right reverend Prelate, we will continue to work with the UNHCR and other organisations as the Secretary of State considers appropriate in devising proposed additional safe and legal routes.

[Baroness Chakrabarti (Lab)]

This is a technical point, but it is important to reflect on it before Report. It is not a substantive policy point, but the noble Lord, Lord Kerr, may have hit on something, in relation not just to the question of why it does not say “asylum seekers” but to a potential unlawful sub-delegation. If the regulation-making power is about safe and legal routes, and “safe and legal routes” will not be defined in vires in the primary legislation but will be determined in the regulations, there is a circularity that is in danger of looking either too vague or specifically like a potential unlawful sub-delegation. No doubt the Minister and his colleagues can discuss that with parliamentary counsel. I may be totally wrong, but the noble Lord may have hit on a point which the Government have been given an opportunity—there is time—to consider before Report. That is what Committee is for.

[Lord Murray of Blidworth (Con)]

As I said, we have considered these issues and are satisfied with the drafting as it is, but of course I will look again at what the noble Baroness suggests.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

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

My Lords, I thank all noble Lords who have spoken in this short debate. It has been particularly illuminating; I have noted the quality of the speeches and hope that I can answer the questions that have been put in relation to these clauses.

Clauses 29 to 36 prevent a person who has entered the United Kingdom unlawfully, and meets the conditions in Clause 2, being able to lawfully re-enter the UK, secure settlement or become a British national through naturalisation or most registration routes. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Settlement in the UK confers significant benefits, such as the freedom to study, work and access healthcare and public funds; of course, it is also a pathway to British citizenship which, in turn, confers further benefits.

Allowing someone who arrives in the UK illegally to settle clearly creates an incentive for people to make those dangerous journeys. It is a vital part of the deterrent effect that those categories should be included. This is because people taking advantage in that way is unfair. It is unfair on those who play by the rules and come here legally, it is unfair on those who are genuinely in need, as it constrains our capacity to help, and it is unfair on the British public.

Clause 29 precludes people who meet the conditions in Clause 2 from ever settling here and, once removed, being able to re-enter. This is achieved by preventing them from being granted any form of permission through the immigration system. We do, however, recognise there will be occasions when we will need to waive the bans and grant permission; for example, as the noble Baroness, Lady Lister, noted, where not granting permission would contravene our obligations under the European Convention on Human Rights. Clause 29 balances our need to disincentivise people from making dangerous journeys to the UK by ensuring that there is no benefit to be gained from entering the UK illegally, while recognising there may be a limited number of scenarios in which it is appropriate to grant permission. I put it to the noble Baroness, Lady Ludford, that this is a proportionate and balanced provision. Therefore, I do not recognise her description of the Bill as “wielding a sledgehammer”.

Clause 30 sets out that a person will not be eligible for British citizenship, British Overseas Territories citizenship, British overseas citizenship and British subject status if they enter the UK unlawfully and meet the criteria in Clause 2. The ban will also apply to someone who enters a Crown dependency or British Overseas Territory unlawfully in a similar way. We have included the other types of British nationality as we do not think it is right that illegal entry should allow a person to acquire any form of British nationality, but also to prevent a person using it as a stepping stone to register as a British citizen. Illegal entry into the UK, a Crown dependency or an overseas territory will have the same effect. We do not want people to be able to enter illegally in any of those locations and use that as a way to acquire citizenship and, ultimately, a right to enter and live in the UK.

Clauses 31 to 34 set out the routes to which the citizenship ban will apply. The key citizenship route which will be affected is naturalisation, as my noble friend Lord Moylan noted. This is the main way in which adults born outside the UK can acquire British citizenship and British Overseas Territories citizenship. The ban will also apply to certain registration routes. However, those applying under provisions that address historical inequalities in British nationality law will not be affected. This includes people born before 1983 to British mothers, those who missed out on citizenship because their parents were not married or those applying on the route for descendants of Chagossians.

Clause 35 allows us to exempt a person from the citizenship ban if treating them as ineligible for citizenship would contravene our obligations under the human rights convention. This means that if a person can demonstrate that, for example, their right to a family or private life can be met only by us considering a grant of citizenship, we will not exclude them from applying. We do not think that acquiring citizenship will usually be essential to allow a person to have a private or family life in the UK; other options, such as leave to enter or remain, may satisfy that. However, in very exceptional cases where considering a grant of citizenship is needed to prevent us breaching our ECHR obligations, Clause 35 may apply. We will publish guidance for nationality caseworkers setting out how to assess human rights in the nationality context.

The amendments tabled by my noble friend Lord Moylan would remove registration routes for British citizenship and British Overseas Territories citizenship from the ban so that it applies only to naturalisation. They would also remove the bans on becoming a British overseas citizen and British subject through registration. My noble friend Lord Moylan has described registration as an “evidence-based process”, with decisions not based on the Secretary of State exercising discretion. I am afraid to say that I disagree with my noble friend as this is not universally the case: some registration routes are dependent on ministerial discretion and there is no automatic entitlement.

Let me explain this further. As my noble friend Lord Moylan said, not all registration routes are included in the ban. Those that allow people to acquire British nationality they missed out on because of previous unfairness are not included; nor are the specific routes for children born in the UK or stateless persons. However, registration routes that rely on residence or specifically for children born outside the UK are included in the ban, as we expect people who want to become citizens to have followed a compliant pathway, including having entered lawfully.

For example, Section 4(2) of the British Nationality Act 1981 allows people who already hold another form of British nationality to register as a British citizen on the basis of five years’ lawful residence in the UK. The residence requirements mirror those for naturalisation: the only significant difference between the routes is that other British nationals wanting to register under that route do not need to meet the knowledge of English and life in the UK requirements. Given that the residence requirements are the same as for naturalisation, it would be appropriate for them to be subject to the ban in the same way as naturalisation applicants. This is the route that BNOs can use if they come to the UK under our scheme and become settled: they can go on to apply for citizenship. It is right that those who apply and come through legal routes should have the right to become citizens, but we do not think it is right that those who enter unlawfully should benefit.

The registration routes for children who are subject to the ban include two routes for children born abroad to British citizens by descent. Both have a residence element: either that the parent lived in the UK for a period of three years before the child was born or the family lived in the UK for the three-year period before applying to register the child. We do not anticipate that children of British citizens would be brought to the UK on a small boat when there are routes available to them as family members, but should that happen, the child will not be able to register as a citizen.

The other child route that is included in the ban is registration of children at the Home Secretary’s discretion. The only statutory requirements are that the child is under 18 and is of good character if over 10. However, guidance sets out expectations about when a child will be registered. The normal expectation is that the child will be settled in the UK, and that the parents will be British, or at least settled. It is unlikely that children who enter the UK unlawfully would be able to meet the normal expectations of having a British or settled parent, being lawfully present and having completed a period of residence, as under the Government’s proposals, children who have entered illegally will be removed. The citizenship ban will, however, prevent a child being registered under this provision unless there are ECHR grounds. This fits with the Government’s intention to discourage parents from bringing children to the UK via dangerous methods, including crossing the channel in a small boat, and that such a child cannot become a British citizen and create a means for the family to stay.

My noble friend raised, quite rightly, the issue of compassionate cases. As I have said the ECHR exemption will allow us to consider registering, in rare and exceptional cases, where a person meets the statutory requirements and granting citizenship would be essential to allow them to exercise their family or private life.

[Baroness Chakrabarti (Lab)]

I have two short questions. First, how can a child be culpable? The whole point of the Bill, as I understand it, is that people should not be encouraged to come by illegal means, they should not jump the queue, et cetera. We disagree about that, but none the less, in that conversation about culpability, how can a child be culpable? Secondly, why should the ECHR take on the slack of compassion? There are many members of the Minister’s Government who do not think we should even be signatories of the ECHR any more, and now the ECHR is being relied on for discretion and for slack and compassion. How can that sit well with this Government?

[Lord Murray of Blidworth (Con)]

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

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I look forward to hearing the Minister’s response to those specific questions.

[Baroness Chakrabarti (Lab)]

My Lords, it is an enormous pleasure to follow the noble and learned Lord, Lord Etherton. I declare an interest as a former and retired Home Office lawyer and therefore there is a small pension that is being administered by some private company. The important point about that declaration is that when I was a Home Office lawyer in the 1990s, working on matters that included asylum, there was a moment when a particular failed asylum seeker who was removed was shot on arrival in their home country.

I make that point because the noble and learned Lord, Lord Etherton, has made the detailed, forensic point so clearly, but as we move into this part of the Bill and start considering non-suspensive appeals, interim relief and what should happen to someone while there is a dispute about the safety of the place to which they are being sent, that is the story that hangs in my mind, and that is really the best contribution that I can make to the Committee’s thinking when we think about non-suspensive and suspensive appeals, and when we think in due course about my own group of amendments, which is about interim relief from domestic courts and international courts.

To facilitate the swift progress of the Committee I will do something that seems counterintuitive. The Government Chief Whip, who is returning to her place, gave us some very good advice about the Committee not liking reading. Which day was that on exactly? Was it Wednesday or Thursday? Was it this year or last year? I understand that point but this is not a filibuster; this is a very short, pithy quote from the JCHR report, which makes the point better than I could about what is wrong with the particular provisions dealt with in this group.

Noble Lords will find the quote on page 105 of the blockbuster JCHR report, which we will not all be able to read in its totality. Paragraph 333 says:

“Making human rights claims ‘non-suspensive’”—


non-suspensive means that you can appeal from the place you say are not safe in; it is perhaps not the place you say you will be shot but the place you might be sent to where you will be shot or otherwise persecuted—

“can only be consistent with our human rights obligations if pursuing those claims from the destination state is viable”.

This is from the JCHR, which is an all-party committee of both Houses. It continues:

“We are concerned that this has not been established for the states deemed safe for removals”.


That was one of the many excellent points made by the noble and learned Lord. It goes on:

“The threshold required to establish a suspensive claim based on serious harm under the Bill, and the requirement for ‘compelling evidence’ to support it”—


for those desperate refugees—

“puts at risk of removal those who have genuine human rights reasons why they should not be removed. Furthermore, allowing the Secretary of State to redefine ‘serious and irreversible harm’ by regulations opens up the possibility of increasing disparity between the protections against refoulement in domestic law and those to which the UK is committed in international law, including”—

the Minister’s favourite—

“the ECHR. We urge the Government to reconsider its decision to make human rights claims non-suspensive, and the extremely high threshold imposed to establish serious harm suspensive claims. The meaning of ‘serious and irreversible harm’ should not be open to amendment by regulations. Clause 39 should be removed from the Bill”.

[Lord Hope of Craighead (CB)]

My Lords, I have three amendments in this group: Amendments 101, 110 and 113. Two of these amendments, to which the noble Lord, Lord Anderson, has added his name, are about the meaning of words. They are words to which the noble Baroness, Lady Ludford, drew attention in her opening remarks on this group.

Amendment 101 directs attention to the definition in Clause 38(3) of the serious harm condition. The Bill says that this requirement will be satisfied if the person faces a

“real, imminent and foreseeable risk of serious and irreversible harm if removed from the United Kingdom … to the country … specified in the third country removal notice”.

Amendment 113 directs attention to the requirement in Clause 41(5) that a serious harm suspensive claim must

“contain compelling evidence that the serious harm condition is met in relation to the person”

making the claim. I am grateful to the noble Baroness, Lady Chakrabarti, for drawing our attention to the reference in the JCHR report to the word “compelling” and its consequences.

So far as

“real, imminent and foreseeable risk”

is concerned, we suggest that that phraseology is unnecessarily complex. If a risk is imminent and foreseeable then one would say it must be a real risk and not a hypothetical one. Conversely, if the risk is real then it would follow that that is because it is imminent and foreseeable. These words are unnecessarily complex. It would be better, we suggest, to delete the words “imminent and foreseeable” or, alternatively, delete the word “real”. The real question is whether the word “real” adds anything if the other two words are satisfied.

As for the word “compelling”, there is an important question in addition to the fundamental point raised in the JCHR report as to what exactly “compelling”, in Clause 41(5), is dealing with. Clause 41(5) is telling the asylum seeker what his or her claim must contain. There are various requirements set out, and the first is that it

“must … contain compelling evidence that the serious harm condition is met”.

The first question is who is to judge that the evidence in that claim is compelling? The clause begins by telling us that the Secretary of State must consider the claim, before the end of the decision period, and make one of the following decisions:

“that the serious harm condition is met … or … that the serious harm condition is not met”.

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Moved by

[Baroness Chakrabarti]

116: Clause 52, page 54, line 1, at beginning insert “Providing the procedure set out under subsection (3A) has been followed,”

[Baroness Chakrabarti (Lab)]

My Lords, this may be the graveyard shift, but I will do my best to keep the Committee awake for a little longer. I give huge thanks to all members of the Committee for being here for whatever reason—under pain of whipping, out of love for human rights or whatever it is. I thank you for being here.

The whole Bill is a clash between politics—I would say rather tawdry, populist politics, but politics none the less —and human rights. But this group—Amendments 116 to 119 and the issue of whether Clauses 52 and 53 should stand part of the Bill—is not even about human rights. It is about something that precedes both human rights and democracy itself: the rule of law. In our country, the rule of law came before we had even democracy. I would argue that no civilised society, let alone a democracy, can be sustained anywhere in the world without the rule of law.

Clauses 52 and 53 are, in effect, about ousting the jurisdiction of domestic and international courts to grant interim relief—interim injunctions in our domestic courts and interim measures in the European Court of Human Rights. They deal with some of the concerns that have been raised in previous groups about what you do when you have not actually considered the person’s substantive claim yet. They say, “You send me to Rwanda, Uganda et cetera. I will not be safe there. Bad things might happen to me there and/or I might be sent on to the country from which I originally came, where I feel I would be killed or tortured”. This is about interim relief: whether the courts should be allowed to grant it and whether our Government should respect that. All other parties to litigation have to respect the decisions of courts in relation to interim relief when there is an arguable case and a real risk.

If noble members of the Committee will forgive me, I will take the clauses backwards to make my point better. I will start with Clause 53, work backwards to Clause 52 and come to the amendments last.

Clause 53 deals with the European Court of Human Rights, and I am delighted to see the Foreign Office Minister in the Chamber to hear this. I am very grateful for that, because this is a matter of foreign policy and our relationships with the Council of Europe and the wider world, as well as a domestic legal matter.

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These clauses are essential to put a stop to the merry-go-round of repeated and late legal challenges to removal. For these reasons, I invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who spoke in this debate—it was not that short—and even more grateful to those who sat through it without getting anything off their chest. I am grateful to the noble Baroness, Lady Ludford, who pointed out, and I agree, that the double act of the noble Lords, Lord Sandhurst and Lord Wolfson, did not help the Government very much, nor was the Committee hugely assisted. To suggest that rulings of interim measures indicated by the court are not binding or important except sometimes is a very strange approach to any kind of court order or indication. If a court order is important only sometimes, we get into who gets to choose and when, which is not the way to develop any kind of trust between people, nations or legal systems.

Neither of the noble Lords mentioned the Russia situation or answered on whether it would be okay for the Russian Federation now to ignore interim indications that prisoners of war in the Russia-Ukraine conflict should not be executed. They also did not mention that, in an earlier group, the Government prayed in aid the Strasbourg test as the test that they want to adopt before anyone can have a non-suspensive claim. That is odd, because you would expect the Strasbourg court to trust Governments more than you would expect His Majesty’s Government to trust removal of individual people to places outside the jurisdiction of the Council of Europe.

I was grateful to the noble Lord, Lord Paddick, for pointing out that Clause 52, which is about our own courts, was totally ignored in the extensive vaudeville. We had the pleasure of the vaudeville but there was no mention of the ouster in Clause 52 of our own courts, and that is rather telling. However, I am grateful to the Minister. I think he got to the point of the debate between us in his closing remarks. He talks about the last-minute opaque process. With emergency interim measures, there is always the possibility for ex parte—get the judge out of the Garrick Club late at night or get the judge up in his or her pyjamas. The crucial thing is that I agree with the Minister that thereafter, even if that emergency relief has to be granted, even ex parte, there ought to be the possibility of looking again, with both parties represented. The Minister and I agree about that.

I think that Clause 52 is totally unconscionable. I think that Clause 53 is the Government’s attempt at negotiating. We are negotiating now by legislation—so we do policy by legislation and now we do negotiation with the Council of Europe via this legislation. I disagree about whether that is the right way to make friends and influence people, but it may be that I am wrong about that. Perhaps it will work, but if it has not worked by the time of Report I will be back, and I will be urging the Committee, and by that point the whole House, to reject not just Clause 53 but Clause 52 as well. For the moment, I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Etherton (CB)]

My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.

The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:

“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.


This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.

People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.

The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.

The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.

Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

[Lord Wolfson of Tredegar (Con)]

Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?

[Baroness Chakrabarti (Lab)]

Well done. Article 35 continues:

“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.


The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—

[Lord Wolfson of Tredegar (Con)]

I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.

[Baroness Chakrabarti (Lab)]

I am very grateful, obviously, to the noble Lord for his intervention. I repeat:

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


This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.

If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.

[Baroness Brinton (LD)]

My Lords, Amendment 70A in this group is in my name and also signed by my noble friend Lord German. It is focused on the protection of unaccompanied migrant children and child victims of modern slavery. Picking up on the theme from the noble Baroness, Lady Chakrabarti, I want to make a brief reference to the United Nations Convention on the Rights of the Child. Article 22 on refugee children says if a child is seeking refuge or has refugee status Governments must provide them with appropriate protection and assistance to help them enjoy all the rights in the convention.

There is consistent medical evidence that immigration detention is damaging the mental health of those who are detained. This Bill now forces children to be detained beyond the very short period which has been about acceptable before, although it was good that during the coalition years we stopped children being held in detention.

People seeking asylum have a very high prevalence of pre-existing vulnerabilities, including serious mental health conditions and histories of being trafficked, tortured and suffering sexual and gender-based violence. This puts them at particular risk of being further harmed in their time in detention.

The health implications of this Bill to detain people anyway without adherence to particular standards was highlighted by the events at Manston. As the right reverend Prelate the Bishop of Southwark has mentioned, it had a capacity of 1,600 but last autumn it was overcrowded, with the number of people detained nearing 4,000 following a decision by the Home Secretary not to send people on to hotels. People were beyond the 24-hour time limit without clear lawful basis for detention in holding rooms or five days in holding facilities.

My noble friend Lord German referred to the recent reinspection of Manston, but it is worthy of note that Charlie Taylor said there seemed to be some improvements while it was “fairly empty” but that he

“was not assured that if numbers increase … the site will be able to cope much better”

than last autumn, which is why I wish to persevere with my amendment. Conditions at Manston deteriorated very quickly and are likely to have amounted to inhuman and degrading treatment in violation of Article 3 of the ECHR, including overcrowded living conditions, unclean and unhygienic facilities, inadequate food provisions—some days without sufficient food or drinking water—lack of adequate medical care and spread of infectious diseases.

--- Later in debate ---

[Baroness Ludford (LD)]

If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:

“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”


I suggest that that is not a million miles from assisting in the common interpretation of the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

--- Later in debate ---

Your Lordships may be wondering why I am so worried about the use of force. The use of force in law enforcement could potentially include handcuffing, the use of a baton, the use of dogs, the use of irritant spray, body restraints, spit hoods, Tasers, and aiming firearms. The Government have a duty to safeguard the most vulnerable in society, so I hope they carefully listen to our concerns today.

[Baroness Chakrabarti (Lab)]

Good morning, my Lords. I hope all Members of the Committee—it is a large group; larger than usual, for which I give credit to the Committee and to Members opposite in particular—will remember 8 June 2023. I will always remember where I was this morning, and I hope that other noble Lords will too, because this was the morning when we began debating whether detention and force are appropriate for pregnant women and small children.

I am very privileged to follow the noble Baroness, Lady Gohir, with her various well-put medical and other reasons why it is not a good idea to use force against pregnant women. It seems that this is now necessary in the context of debating amendments to the Bill. It would seem that there is the edge of depravity, and then there is the abyss. In the last group, we talked about detention. We now take it to its further conclusion, because in the end, a consequence of detention will sometimes be force. It is as well that we confront that, and confront it in the case of both children and, in this example, pregnant women.

Whatever our views about the basic policy here, I rather agree with the noble Baronesses in the previous group and with the speeches we have just heard that it would be appropriate for the Government to think again about this group of vulnerable people in particular, considering all the reasons that were given. Surely, whatever is said about deterrents and so on, there can be some concession to humanity, please, in relation to children and pregnant women. That will not hurt the signalling and the deterrents and so on. We cannot go on like this—and I do not just mean that we cannot go on at 12.20 am. When we were younger, hey, we used to go on all night, so we can go on all night in here; this is how we get our kicks in the Committee. However, we cannot go on degrading ourselves and our values by suggesting that there is no difference between a child or a pregnant woman and an adult, and that everybody is illegal. We need to make some restraints, just for decency, for our own sake.

Illegal Migration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am grateful to the noble Baroness; I should have mentioned the point myself. I am concerned that the Government keep saying that the UNHCR runs safe and legal routes and that it is perfectly possible for someone in Iraq, Syria or Afghanistan to register with UNHCR, which will see them right. It is simply not true. UNHCR has again said so, formally and on the record. It does not run a clearing house. It does not run a general scheme open to all. It is able to cope with approximately, it says, 1% of the demand.

It is the case that if you are a persecuted young woman in Iran, there is no safe and legal route by which you can come to this country. If you are fleeing in Sudan from the war that the noble Baroness, Lady Hamwee, referred to, there is no safe and legal route to the United Kingdom. UNHCR does not stand up the Government’s story that it is the fallback, the clearing house, that we can always turn to. It says it cannot do that. Obviously, it cannot do that; it is not resourced to do that. I agree that the impact assessment, in considering the deterrent effect on what the Government call illegal immigration, must address the question of how people from war-torn, famine-struck, civil war countries can achieve a legal route.

[Baroness Chakrabarti (Lab)]

My Lords, it is an absolute privilege to follow such a distinguished former Permanent Secretary to the Foreign department. To return to my noble friend’s amendment, it may seem a little counterintuitive or surprising for me to welcome a probing amendment about removal and about a duty to negotiate removal agreements, but I do. The reason is that there is actually a greater and stronger link between the principles that we have been discussing and the practice that my noble friend is considering here, because in this neck of the woods, in particular, the two go together.

I say, with respect to the Committee, that it would have been wise for the Government to have thought about a duty to negotiate removal agreements before they proposed to legislate for a duty to remove. The sin is to have duties to remove with nowhere to remove people to, and duties to detain with no ability to remove, because that leads to indefinite detention.

There were all the arguments that we had on the last illegal Bill, and the arguments that we will have again about whether refugees and asylum seekers should be allowed to work after a period of time. People argued about pull factors, and some of us said that there were push factors, not pull factors. But if people’s claims were being considered quickly, including of those who did not qualify for asylum—who were genuinely illegal migrants and never qualified for asylum—some of us would have no problem with the principle or practice of having a short period of arrest and detention for the purposes of facilitating a lawful removal.

My noble friend Lord Coaker has really hit the nail on the head. What is the practice here? If there is no practical agreement to remove people to whichever country they are from, and people are in practice irremovable, that is where the cruelty comes in. That is a cruelty towards people who are detained for lengthy periods, quite possibly at great public expense, in inappropriate accommodation; this could include accompanied or unaccompanied children not being housed or detained appropriately, not being educated, and so on. That is the sin—the terrible maladministration and lack of good practice, which is then translated into this culture war via more draconian legislation for a general election that will no doubt be sloganed, “Stop the boats”. We do not stop the boats, but we do not welcome the vulnerable people either, so we perpetrate this great swindle on the British people. We toxify a debate that needs to be handled much more temperately, and we do not achieve anything very much at all.

The final link between principle and practice in this area is that, in this amendment, we are talking about a duty on the Secretary of State to negotiate these practical removal agreements for those people who do not meet the tests and do not qualify in the end as refugees. In this probing amendment we are talking about that duty and asking whether it does not need to be a duty because the Secretary of State genuinely wants to negotiate. To go back to what the noble Lord, Lord Patten, said before the break, whether that is the case or not, who will negotiate with us? We have heard some flummery from the Benches opposite about how international law is not real law—“We have a dualist system and let me not give you a law lecture, but it’s not real law, it’s only international law”. If our word is not our bond, who will negotiate with us?

There is currently a contradiction at the heart of government between those who want to be leaders on the world stage, with all the challenges that have to be met internationally at the moment, and those who want a culture war. My understanding is that the Prime Minister is now saying not only that we are going to be part of the Council of Europe and honour our international commitments but that we are going to be the architects of new ones. London is apparently going to be at the heart of regulating artificial intelligence—this is where it is all going to happen. But why should anyone allow us that moral leadership on the world stage, if we will not honour international law?

I look forward to the answers to my noble friend’s questions about the moment when principle really does need to meet practice.

[Lord Paddick (LD)]

My Lords, perhaps the Minister can help us here. Is not it the case that, without removal agreements, the Bill is likely to make the current situation worse in terms of costs to the Exchequer? As the noble Baroness, Lady Chakrabarti, has said, if people are not able to work, and they are not allowed the right to remain but cannot be removed, they will have to be looked after by the state. The difficulty that the Minister has is that, without an impact assessment, there are all sorts of organisations that are filling that vacuum. The vacuum was filled at the weekend—and the estimated additional costs of this Bill were £3 billion to £6 billion in additional accommodation needed to detain those people who could not be removed.

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[Lord Murray of Blidworth (Con)]

I am afraid that I must disagree with the noble Lord. The point about the Bill is that we know that deterrence has effect, and we have seen that, as the Prime Minister announced this morning, in relation to the effect of our returns agreement with Albania.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for his patience. Could I try this another way in relation to the debate on the impact assessment? If I am wrong about this, I want to be set right. This is not a rhetorical question; this is a genuine question about the process and purpose behind these impact assessments. I had been thinking that the purpose of these various assessments by the department was that they become part of the case for the legislation in Parliament. The department does the drafting and the policy and that is the Bill, that will be law; and to back it up, it has its case based on the evidence that it has marshalled.

If I am right about that, that gives rise to the concerns about why we are going further and further down the legislative process before the court of Parliament—if you like—without the evidence base. Of course, that is particularly important in the case of so-called illegal migration, because public expense is such a concern in the public debate about immigration: cost-benefit economic analysis is always a keen part of the debate in the Committee, in Parliament and in the public square.

Finally, on this same point about process and the impact assessment, the Minister said earlier that it was not for him to dictate what would be in the impact assessment, and I do understand that, because no Minister would want to dictate that. However, if I am right, and the purpose of these assessments is that they are part of the Government’s case for the legislation, surely it is for the Minister and his colleagues at ministerial level to sign off on the quality of this work and the soundness of the proposition in it. Perhaps the Minister could clarify that. It is not a judicial process; it is an executive process of marshalling the economic case for this legislation.

[Lord Murray of Blidworth (Con)]

There is no statutory requirement to have a public impact assessment in relation to items of public legislation. Indeed, as I understand it, many pieces of legislation do not have one at all; so it is not a statutory requirement, as perhaps the noble Baroness seemed to suggest. Clearly, there is work done in the department behind the development of policy, and an economic impact assessment is certainly not an essential part of that process; nor is it a fundamental part. It is a part and, as I say, it will be published in due course.

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[Baroness Chakrabarti (Lab)]

I hope the Minister will forgive me, but a narrow but important point of principle was raised by both the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Purvis of Tweed; they spoke on different matters but on the same issue of principle. One case was about what would happen to a child who came to this country as an infant and was adopted; another, put by the noble Lord, Lord Purvis of Tweed, concerned a child who would not be returned to adequate reception arrangements. I believe that the Minister said to the noble and learned Baroness, Lady Butler-Sloss, that we can deal with that in regulations—so nothing to worry about there—and the answer to the noble Lord, Lord Purvis, was that the Government have no intention of removing children to a country which, even if it meets the other criteria in the clause, does not have adequate reception arrangements for an unaccompanied child.

The whole structure of this so-called robust legislation is about creating tightly crafted duties to tie the hands of the Secretary of State. We know what that game is: it is about ensuring that we have, in effect, ousted the court’s supervisory jurisdiction. Powers become “duties to remove” and then, because there is a little ounce of compassion in relation to children, they say they will flip the duty and so there will not be a duty but, in certain circumstances, a power to remove even unaccompanied children. Given that this is the approach of the scheme, why on earth cannot comfort be given in the Bill to both the noble and learned Baroness and the noble Lord on those two limited circumstances? Why can the Bill not say that a child who came as an infant and who has now been adopted by a British national cannot be removed? For a child who would otherwise be removable because they have an identity document—there is a thought—or sent to a country where they are a national but there are no reception arrangements, why can it not be a criteria that there should be adequate reception arrangements? Why cannot that be in a Bill that is so tightly and robustly drawn by the Home Office?

[Lord Murray of Blidworth (Con)]

The noble Baroness is always a powerful advocate but, in this instance, these provisions are already clear. As I have said, and for the reasons that I have explained, there is no need, in those limited circumstances, for further exploration in the Bill. As I have said, these are things that we can explore, and doubtless will return to in other parts of the Bill, but for the moment I am afraid there is no need for further additions in relation to those areas.