Nationality and Borders Bill

Debate between Lord Sentamu and Lord Paddick

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Sentamu (CB)]

My Lords, I want to give practical expression to what those who have spoken, including the noble Lord, Lord Dubs, and the noble Baroness, Lady Ludford, have said, and to the exposition of the noble and learned Lord, Lord Brown: if a law is going to be passed, it needs to be clear, simple and not confused, as in Clause 31.

I shall tell a story. A friend of mine was going to be best man at our wedding, but Amin’s soldiers were hunting for him, so he left Uganda on the very day that we got married, dressed like a woman, and landed up in Kenya. That was the only way he could get away. He had nothing. Friends in Kenya managed to get him a ticket and he came to Oxford with nothing. There he studied law and did very well as a result, but if the test had been on the grounds of probability, he probably would not have done so. It comes down to the question of “reasonable likelihood”. All he could do was describe how he left Uganda. If you are from Uganda, you know you do not go around dressed like that, but the people who listened to his case at Oxford could associate with it.

I ask this for the reasons that the noble and learned Lord, Lord Brown, has given: why in one clause do we have “reasonable likelihood” and in another “the balance of probabilities”? That confuses the legislation.

I have been able to represent some asylum seekers when they have come here. I think the Joint Committee on Human Rights is right that this is what should be incorporated in our law and we should not try to change it—unless of course we are following the analysis of the noble Baroness, Lady Chakrabarti, that instead of making it clear as we incorporate this into our legislation, we are saying, “Throw it out. We know better and we are going to do it in our own way.” I do not think that that makes for good law. It is not simple, straightforward or clear. In the old days, it was said that any good law must be understood by the woman or man on the Clapham omnibus—if they cannot understand it, your law is not very clear. The judgment of Lord Bingham is clear.

Why abandon our case law as we begin to incorporate this into our law? This time the Minister will have to give us reasons why that is the case, instead of—forgive me—what sounds like a bullish reaction to every reasonable thing that has been said. I plead with the Minister to use simple language and retain “reasonable likelihood”, because that is much easier to deal with when people come here without papers or documents and their lives are in danger.

[Lord Paddick (LD)]

My Lords, I could simply repeat what I said at the conclusion of the last group: the UK should not engage in the unilateral reinterpretation of the refugee convention—not that we are rewriting it, but we are reinterpreting it—but I shall go into a little more detail.

The JCHR, supported by Amnesty and Migrant Voice, believes that the standard of proof as to whether an asylum seeker has a well-founded fear should remain as “reasonable likelihood”. Amnesty makes the additional point that, as well as raising the standard, Clause 31 makes the decision more complex and the Home Office is getting it wrong too many times already.

We support Amendments 103 and 104 but we also agree with the noble Baroness, Lady Chakrabarti, that Clause 31 should not stand part of the Bill. Amendment 105, to which I have added my name, attempts to bring the definition of “particular social group” into line with international standards and UK case law. Again, based on the principle that the Bill should not be unilaterally reinterpreting the refugee convention, as I said in the previous group, I agree with the noble Baroness, Lady Chakrabarti, that Clause 32 should not stand part of the Bill.

Amendment 111 seeks to prevent the definition of “particularly serious crime” from being reduced to 12 months’ imprisonment. As my noble friend Lady Ludford said, bearing in mind that the Bill attempts to set the maximum penalty for entering the UK without authority at four years’ imprisonment, the two changes could potentially exclude all asylum seekers who do not enter through resettlement schemes. As before, we support the assertion of the noble Baroness, Lady Chakrabarti, that Clause 37 should not stand part of the Bill.