Nationality and Borders Bill Debate

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Department: Home Office
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I recognise that the Bill removes discrimination against those, including some descendants of Chagossians, unable to claim previously through their mothers or unmarried fathers. But with this amendment we are talking about a limited number of people, in the hundreds—maybe 800 to 1,000—who, as descendants of Chagossians evicted from the islands, will still have no rights to British overseas citizenship and, in due course, British citizenship even with Part 1, even though they would have that right if they had not been evicted. In Committee, the Minister’s only answer was that

“offering this right is contrary to long-standing government policy.”—[Official Report, 27/1/22; col. 497.]

That position does not take into account the exceptional nature of what happened to the Chagossians. No other British Overseas Territories citizens suffered this fate. Chucking out colonial subjects in the modern age was also, I hope, contrary to good government policy. If an exception could be made for the Chagossians then, one can be made now.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, in Committee there seemed to be some representations from noble Lords who did not know about the plight of the Chagos Islanders; they were hearing about it for the first time. There is so much injustice in the world that it is very difficult to keep track of all the consequences of British and American imperialism, but it is one of the beauties of your Lordships’ House that any of us can table amendments that can be debated and discussed. I say a big thank you to the noble Baroness, Lady Lister, for debating this issue and for her powerful speeches on this cause. Having had the issue raised in Committee, and now again on Report, no one can claim ignorance of this real injustice. We have to take action. It is time for the United Kingdom to make reparations for forcing changes on the Chagos Islanders. This amendment is the beginning of that process and the Greens support it completely.

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Lord Pannick Portrait Lord Pannick (CB)
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My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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The Greens support the amendment too.

Lord Wolfson of Tredegar Portrait The Paliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.

Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.

Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.

The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.

Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.

On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.

Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.

It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.

The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”

Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.

What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.

To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.

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Lord Dubs Portrait Lord Dubs (Lab)
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My Lords, I very much agree with the right reverend Prelate, and I am totally in support of the noble Lord, Lord Kerr, and his amendment.

I agree with the right reverend Prelate: all the evidence we have from Australia is that it is not working. I have talked to people in Australia who say that we should not go down this path because it is not sensible and it does not work.

I shall be extremely brief. The idea that, at this stage, we start renegotiating the 1951 Geneva convention—presumably on the basis of clauses such as Clause 11—is a frightening prospect. This is no time to be tearing up one of the most fundamental human rights documents that we have, which protects vulnerable, innocent victims of war and persecution. This is no time to be saying that we will change that. If the Government are not proposing to do it that way, why have this clause?

It seems to me that there are too many examples—whether it is Afghans who have got to neighbouring countries but cannot get any further, or Ukrainians who have got to neighbouring countries—that give the lie to the idea that, somehow, you can get here by the sort of route that the Home Office approves of. It is complete nonsense. It is not workable and it diminishes this country in the eyes of the world.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I was so annoyed by what the noble Lord, Lord Horam, was saying, because part of it was absolute nonsense. Australia is actually riven with debate on the whole system of asylum that it offers to refugees, and the offshoring is extremely contentious, not to mention inhumane. Plus, of course, what he has described as all the problems that we have with refugees are actually failures of the Government. Why does he not ask his Government to set up safe systems for refugees to arrive in Britain? That is the real problem: we do not have them.

I shall go back to what I want to say: compliance with the refugee convention seems absolutely part of what we should be doing as an honourable country. We should not think in terms of interpreting it in our own way. Just as countries all over Europe are throwing open their doors to Ukrainian refugees and refugees from other countries who have found themselves in Ukraine, we are putting up walls and nailing doors shut, rather than being honourable about the situation. Imagine people from Ukraine being subject to the two-tier refugee system, as the so-called legitimate ways of escaping Putin’s violent invasion are cut off and Ukrainian refugees have to use so-called illegitimate ways of getting to the UK. The Bill harms those refugees.

If people do get here from Ukraine or other countries, are they to be left homeless and begging on the streets because there is no recourse to public funds and they are banned from work? These people are professionals: they are teachers, nurses, skilled engineers and tradespeople with lifetimes of hard work behind them. They are all banned from contributing in this country, and it makes absolutely no economic or social sense. When Ukrainians claim asylum, do we lock up the women and children in detention centres if they are struggling to find the right paperwork?

If this Government were brave, they would go out and celebrate the asylum system and create one that was fit for purpose and champion the UK as a place of refuge. But this Government are not brave: they pander to the far right and use national rhetoric to divide and rule. At this point, the Government ought to reflect on the whole Bill and realise it is not appropriate for the circumstances we are in. It is cruel, it is inhumane, and quite honestly, the invasion of Ukraine should be a turning point for us. The Government should abandon the Bill and perhaps start thinking about a “refugees are welcome” Bill.

Baroness Stowell of Beeston Portrait Baroness Stowell of Beeston (Con)
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My Lords, may I just ask my noble friend a question, based on listening to this debate and looking at Clause 11 as it stands? Subsections (5) and (6) say that the Secretary of State “may” treat group 1 and 2 refugees differently. My interpretation is that this clause is introducing an element of discretion to the Home Secretary to deal with a situation in a way that allows some difference of treatment, should she see fit—not a requirement that she must do so.

On the point the noble Baroness, Lady Jones, just made in response to my noble friend Lord Horam, I say that the Government are not seeking not to comply with the refugee convention, but seeking to allow for some flexibility and discretion to deal with some of the changing situations in this context, which are very different now from when the convention was introduced 50 or so years ago.