Border Security, Asylum and Immigration Bill

Lord Faulks Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Lord Davies of Gower (Con)]

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

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

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

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

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

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

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

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

[Lord Faulks (Non-Afl)]

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

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

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

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

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

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

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

[Lord Faulks (Non-Afl)]

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

[Lord Hanson of Flint (Lab)]

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

[Lord Faulks (Non-Afl)]

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

[Lord Hanson of Flint (Lab)]

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