Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Clarke of Nottingham (Con)]

My Lords, I attended throughout the debate on the Bill yesterday and remained completely silent, and I arrived today intending to follow that good advice again, because I was actually unable to attend the earlier stages of the Bill at any scale and thought it would be quite wrong for me to join so late. But this is an important issue, which I have listened to very carefully, and I would quite like to register my views.

Yesterday, I voted with the Government against all the amendments to the Bill, because I think we have reached the stage where the opinion of the Commons should prevail, and I am not fundamentally against them trying this new innovation of offshoring illegal immigrants. I very much doubt that it will work, but I think they are allowed to have their way and see what happens. But I did vote yesterday in favour of the amendment from the noble Baroness, Lady Chakrabarti, and the more I listen to the debate, the more it seems to me that there are hugely important constitutional issues here. We are not getting a satisfactory reply, and we are not even getting, in the House of Commons, any very considered response from the Ministers available.

We all know that the present Government particularly dislike their important subjects being subject to judicial review: they were very upset when their Prorogation was overturned. Many other Governments have rather regretted it, but I think it is a vital protection. The Government’s view that what they are doing complies with our international legal obligations and with our own unwritten constitution—which has no force if the courts could not sometimes apply it—is very unwise. I think we should just defend that essential protection. The idea that the opinion of the Attorney-General, whoever he or she may be, in a Government of whatever complexion, if accepted by the Government, should not be a matter that goes any further or be a subject either for Parliament or for the courts, is sweeping and, with the greatest respect, slightly absurd, because no Attorney-General, however distinguished, has ever been infallible on these matters. So I do believe that, among the many important provisions of the Bill, this is the most important of all because of its wider constitutional questions.

I congratulate the parliamentary draftsmen on their ingenuity in producing terms that exclude the jurisdiction of the courts entirely on such matters. I am sure that, if it were done this time, we would find it happening with ever more regularity, in Bill after Bill presented by future Governments to this House. We should make one last attempt to stop that and I am afraid that I have not been persuaded to turn away from my support for the noble Baroness, Lady Chakrabarti, if she presses her amendment again.

[Lord Kerr of Kinlochard (CB)]

My Lords, it is a great challenge as well as a great honour to speak after the noble and learned Lord, Lord Clarke. I shall speak to Motion B1, which again seeks to bring the Bill into line with our international commitments. I believe there is a very important point of principle at stake here. There may actually be two points of principle—I am not sure about the second one—but the key one is pacta sunt servanda. The rules-based system works only if the rules are respected by all. We have just heard again—and we could hardly have heard more authoritatively —that this Bill is in breach of our commitments under the refugee convention.

The noble Lord, Lord Coaker, reminded us yesterday that UNHCR, to which we gave the job of supervising the interpretation of the convention, has confirmed yet again, authoritatively, in the strongest possible terms, that the Bill breaches that convention. We have heard from the Government Front Bench chop logic about how the Vienna Convention on the Law of Treaties allows conflicting national interpretations—but that really will not wash, as the noble Lord, Lord Pannick, has reminded us. We agreed to UNHCR’s supervising role: it is in the convention. We can complain from the stands when the referee rules our man offside, but we are not allowed to send on a substitute referee, and the referee’s ruling stands. So, it is not surprising that this House has voted three times to remove or improve Clause 11, which is where the breach of the convention is crystallised.

Yesterday, we heard from the Conservative Back Benches suggestions—I think it was just one suggestion—that all this was foreshadowed, and so legitimised, in the 2019 Conservative manifesto. Not so. I have checked. What the manifesto says is:

“We will continue to grant asylum and support to refugees fleeing persecution”—


and, later on:

“We will ensure, no matter where you come from, your rights will be respected and you will be treated with fairness and dignity.”


“Fairness” and “dignity” are fine words, but how can they be reconciled with depriving desperate people of their convention rights and their access to public funds, condemning them to destitution without even the miserable £5 a day subsistence that we pay to those stuck for years in the asylum process queue? Can we honestly say that those to whom we would in future be giving nothing at all would be being treated with fairness and dignity? No: Clause 11 is wrong in principle—pacta sunt servanda—and it would be shaming in practice.

My second point I put much more tentatively. Again, it is one the noble Lord, Lord Coaker, touched on yesterday. I put it tentatively because I have never served in the other place, but he has, with some distinction. It seems to me that this House is being treated with contempt. Of course, the elected Chamber must have the last word, but its view must surely be informed by an understanding of the considerations that led the revising Chamber to propose the changes it did. If I am right, are the Government, with all due respect, not cheating when they blandly assert no incompatibility the convention, when they make no attempt to refute—but simply ignore—this House’s demonstration that there is clear incompatibility, and when they allow minimal time to discuss an issue that is so important to our reputation as a law-abiding country?

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I shall speak to Motion F2, which stands in my name. Perhaps I might make three preliminary points. First, I apologise to your Lordships for having come late to this debate. I was moved to table Motion F2 by the Government’s announced decision to enter into the agreement to offshore responsibility for asylum seekers to the Government of Rwanda; that is what has moved me to participate. Secondly, as alluded to by the right reverend Prelate the Bishop of Manchester, the substance of Motion F2 is in fact drawn from the Motion moved by the right reverend Prelate the Bishop of Durham, which successfully passed in this House on 4 April. Lastly, on a point alluded to by the right reverend Prelate, Motion F1, which he tabled, is of course to be considered before F2. I am sure that the right reverend Prelate, and certainly myself, will listen very carefully as to the sense of the House, as to whether there is support for either or both and, if so, in which order; that doubtless will influence us in deciding whether to test the opinion of the House.

The purpose of Motion F2 is a simple one: to ensure that the designation of a state as a safe country requires a resolution of both Houses of Parliament. As to the merits of the policy, I have very grave reservations about the cost and practicality of the Rwanda proposals. The experience of the Israeli Government, when they tried something rather similar, is not encouraging. I have great reservations about the legality of what is proposed. I accept of course that the noble Lord, Lord Pannick, has much greater expertise in this field than I do.

I note, of course, that Ministers have repeatedly said that the policy is consistent with international law and our obligations under the 1951 convention. Ministers repeatedly said that the policy of turning back the boats of asylum seekers was both legal and practical. However, it seems that, in the face of legal challenge as to both the practicality and the legality of the policy, the Home Office yesterday backed away from that position. I view the advice from this Home Office on these matters with very great caution.

Above all, my reservations about the Rwanda policy are based on my concerns as to its propriety. Can it be right to offload to somewhere else the responsibility for individuals who, for a time, have come into our jurisdiction? By doing so, we will have ensured that Ministers who are responsible for where they have gone are not accountable for the way in which they are treated, and I am finding myself extraordinarily uncomfortable with that concept. I might say, as someone who was here yesterday morning when the Minister had to answer a Private Notice Question on this matter, that I think she would agree the House was deeply concerned about that proposal.

However, if the Government wish to proceed with this policy, I can see no reason in principle why they should not seek as a precondition the express authority of Parliament. If I have correctly interpreted the Minister’s remarks in the debate on 4 April with regard to the 2004 Act, the principle of the affirmative resolution as a precondition to adding states to the list of safe countries has already been conceded. As I understand the 2004 Act—and it is not an easy one to understand—in respect of transfer to safe countries it provided for individual certification in respect of specific persons, whereas the present Bill is general in its application. But the principle of the affirmative resolution has been conceded; it is in legislation. So by all means have a debate about necessity but let us not have a debate about the principle, because that has been conceded.

The express parliamentary sanction for this policy is what Amendment F2 proposes—nothing more, nothing less. Before that consent will be given, the Government will have to satisfy Parliament that the criteria in paragraphs (a), (b) and (c) of new subsection (2B) contained in Schedule 3 are complied with.

The position of the Government as set out on the Order Paper is that it is not necessary to make the designation of a safe state by order dependent upon a statement as to costs. That was the position in the amendment moved by the right reverend Prelate the Bishop of Durham but it is not the position today, because the requirement for an assessment of costs has been removed from Amendment F2, which stands in my name.

In my view, it comes down to this: decisions of this kind, which affect the future and liberty of subjects of other countries but who have come here, is a matter that should be resolved by a vote of Parliament, not by the sole decision of the Executive. It is in furtherance of that view that I hope your Lordships, if circumstances allow, will support Amendment F2 in a Division.

[Lord Kerr of Kinlochard (CB)]

I shall speak to Motion C1, which takes us back to the refugee convention. The House may well think that, after the learned crescendo from the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Brown, there is nothing left to say on the subject—but I will try. The fact is that the biggest and most blatant breach of the convention in this Bill is in Clause 11; this brings in the two-class system, with the underclass not allowed convention rights or access to public funds because they did not come directly from the country where they feared persecution.

I have to say to the Minister that the safeguard of Clause 36 is insufficient. You cannot come directly from Asmara, Sana’a, Kabul or Kyiv—and in any case, of course, the convention does not allow for such segregation. When we signed up to it, we agreed that the only check made would be whether the asylum seeker’s fear of persecution was real and well founded. That is what we have always done. Among those asylum seekers arriving by irregular routes—I note that, in every one of the last 10 years, there have been asylum seekers coming from Rwanda—75% of those coming by irregular routes have been found by the courts to be genuine asylum seekers and have been granted asylum. Their fears were well founded, but this Bill would put all of them in the underclass, with no convention rights.

This House has twice, by large majorities, thought that wrong, and that we should continue to honour the convention deal. As the noble and learned Lord, Lord Brown, reminded us, noble and learned Lords have repeatedly challenged the Government to explain why they see no incompatibility between the Bill and the convention. The Government’s silence has been eloquent. In the other place, on 20 April, a junior Minister took two sentences to dismiss our views. Our principled objections to Clause 11 were not refuted, explained, or even mentioned.

My amendment today concedes the differentiation that the Government want, but diffuses it. They can have their two classes, provided that the distinction takes account of the fact that you cannot come directly from a warzone, and provided that those in the underclass are not made destitute, losing all their convention rights. Although the Government say that it is, this is not about small boats in the channel. Illegal, inhumane differentiation would have no deterrent effect because these are desperate people. The way to defeat the traffickers is to open safe routes and not to close the family reunion route as this Bill seeks to do.

I am no lawyer, as is probably obvious, but I have served my country for long enough to see how international reputations are built over time and destroyed overnight. Britain’s reputation on humanitarian issues is a national asset, which should not be lightly thrown away. And for what? As the noble Lord, Lord Paddick, keeps reminding us, asylum seekers represent 4%, or sometimes 5%, of the annual immigration flow.

Finally, I have to say to the Minister that the Vienna Convention on the Law of Treaties does not permit a free-for-all of conflicting national interpretations, and it is misleading to imply that it does. In this House, we tend to insist that the rules-based system and international law matter. On the internal market Bill, we insisted, and our insistence carried the day. I think we must again insist that the other place finally address the big issue—better late than never—and think again about Clause 11. So, I am afraid, it is once more unto the breach, dear friends.

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Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendments 6D, 6E and 6F in lieu—

6D: Page 13, line 44, at end insert—
“(2A) A refugee is not to be regarded as failing to comply with the requirement in subsection (2)(a) if, in coming to the United Kingdom, they have stopped in another country outside the United Kingdom with the intention that the stopover in the intermediate country was to be a brief transit on the way to the United Kingdom.
(2B) A refugee is not to be regarded as failing to comply with the requirement in subsection (2)(b) if they had good cause to delay the point at which they presented themselves to the authorities.”

6F: Page 14, line 32, at end insert—
“(8A) In accordance with section 2 of the Asylum and Immigration Appeals Act 1993, no such immigration rules shall lay down any practice or differentiate in any way which would be contrary to the Refugee Convention.
(8B) Immigration rules implementing this provision must take due account of the best interests of children and the fundamental right to family unity in all cases.””

[Lord Kerr of Kinlochard (CB)]

I beg to move Motion C1.

UK-Rwanda Asylum Partnership Arrangement

Lord Kerr of Kinlochard Excerpts

Monday 25th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I think I said to the noble Earl that I would clarify the point.

[Lord Kerr of Kinlochard (CB)]

Will the Minister comment on another possible reason, in addition to the one advanced by the noble Lord, Lord Coaker, for this not being a treaty? If it were a treaty, it would have to be registered at the United Nations, and there might be some embarrassment in seeking to register a memorandum of understanding governing an arrangement that is clearly totally inconsistent with the refugee convention, for which the United Nations is responsible. Can the Minister tell us in addition, since the agreement says that it is not justiciable in international law, how is it to be justiciable?

[Baroness Williams of Trafford (Con)]

My Lords, I am sure that people will find ways and means of doing that should they be motivated to do so. I go back to the point about both the EU and UNHCR engaging with Rwanda on the relocation of asylum seekers and refugees.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Finally, at Third Reading, the noble Baroness, Lady Stowell of Beeston, for whom I have the greatest respect and no little liking, cautioned us, with some justification I felt, against a tendency to treat those opposed to this Bill, as we are, as “kind and generous” in feeling and those promoting and supporting it as uncaring and ungenerous. Indeed, I for my part would accept that, on occasion, some of us do seem to fall or succumb to the temptation of what I think we can call virtue signalling, rather than facing up to harsh realities. However—I really cannot overemphasise this—I assert that standing up for the rule of law, internationally as well as domestically, is not virtue signalling, but rather our constitutional duty. The only way to achieve this in the Bill and to even have the opportunity of testing the Bill for compliance in future is by including this clause, the subject of Motion C1. We need to stand up and be counted. I support this group as a whole, but if ever one cannot afford to lose a provision, this is it.

[Lord Kerr of Kinlochard (CB)]

My Lords, after two such learned speeches and such fireworks, I fear it falls to me to make an unlearned speech on the Motion in my name, Motion D1. Most of my arguments have just been pre-empted, of course, because the case for Motion C1 applies in full to Motion D1. I would not dare to go into the law as powerfully as the two previous speakers have done. However, it is perfectly clear that the 146 states party to the refugee convention, the courts of the United Kingdom and the UNHCR have all applied the convention in one way up to now and, if we pass this Bill, we will have decided that it should be applied in a different way. There is nothing in the refugee convention about how the individual reaches the country in which he seeks sanctuary. There is nothing in the refugee convention which provides a basis for differentiation and the creation of two classes of refugees, which Clause 11 of the Bill introduces. The only question one asks is: does the would-be asylum seeker have a well-founded fear of persecution back home? If so, under the convention, he is entitled to seek our protection and, since 1951, we have been committed to providing it. That, in layman’s terms, is what is wrong with Clause 11 of this Bill and that is why we struck it out by a large majority.

What happened then is really rather bizarre—and very similar to the description from the noble and learned Lord, Lord Brown, of the debate on Clause 9 in the House of Commons. The arguments that have just been made by two distinguished learned Members of this House, and the argument that I am making, had been advanced over several days of debate in this House. They were dismissed in three sentences in the other place. The Minister simply said, without attempting to refute anything that had been said here, that the new differentiated approach was needed to deter dangerous journeys to this country. That is not so. We all know that the way to stop tragedy in the channel is to open a safe route. We all know that if somebody from Kyiv, desperate and despairing of our creaking bureaucracy, were to turn up here without a visa it would be quite wrong to refuse her full rights to refugee protection. Her well-founded fear of persecution would be all too obvious, yet Clause 39 might criminalise her and Clause 11 would guarantee that, if she were accepted as a refugee, she could be only a class 2 refugee, subject to offshoring and all the nastiness that follows in the subsequent clauses of the Bill, and those who had helped her could face criminal charges. With respect, the Minister in the other place was wrong. Clause 11 would not deter her from coming here; it would simply penalise her for doing so. I do not believe that the country would think that right.

The same goes for those coming from Kabul. Like from Kyiv, there is no direct route, so they automatically all fall into class 2, as with those fleeing famine in Ethiopia, Eritrea and the Yemen, the great majority of those now trafficked across the Channel. Since we do not issue humanitarian visas, there is no official route open to them. The way to put the traffickers out of business is to open such a route. For us to treat with group 2 inhumanity those who the traffickers have exploited and endangered would be rather immoral and would certainly be a breach of the refugee convention. I think we got it right the first time in taking the clause out. I think the concern across the country about the way that the Government are treating the victims of Putin’s war in Ukraine shows that we are more in tune with the national mood than the Home Office.

I have been advised, however, that I should offer a compromise, hence Motion B1, which concedes to group differentiation but only if it does not rob group 2 of any of their rights under the convention. It would permit the Secretary of State to privilege group 1, if she so wished, but it would mean that we did not betray our traditions or breach international law. I hope that, given another chance, the other place may be willing to consider the legal arguments so thoroughly explored in this House and by the two preceding speakers.

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Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendment 6B to the words so restored to the Bill—

6B: Page 14, line 7, leave out subsections (5) to (8) and insert—
“(5) The Secretary of State must make provision within the Immigration Rules to—
(a) guarantee Group 1 and Group 2 refugees all of their rights under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and international law, without distinction;
(b) ensure that the classification of a refugee as a Group 1 or a Group 2 refugee does not affect the ability to maintain the unity of that person’s family.””

[Lord Kerr of Kinlochard (CB)]

I beg to move.

Homes for Ukraine Scheme

Lord Kerr of Kinlochard Excerpts

Monday 28th March 2022 Lords Chamber

[Lord Harrington of Watford (Con)]

The noble Baroness asked two questions—the first one about an outside provider. As far as I know, the Home Office uses some agency staff to boost up staff; for example, with the night shifts we are doing. I do not know whether there is one general provider. There is not to my knowledge, but if there is, I will drop her a line and say so.

In answer to the question about health workers, we have a section in the welcome pack for Ukrainian refugees about recognising overseas qualifications and we have people who are doing that. Quite as to the specific healthcare qualifications that she mentions, I do not know—I think it depends on the nature of the qualification. But if we are not doing it, we should be, and I will do my best to make sure that happens.

[Lord Kerr of Kinlochard (CB)]

My Lords, I have every sympathy with the Minister in trying to defend the indefensible, but I would be very grateful if he would go back to the department and ask three questions. First, is there any overriding reason why we have to have a visa requirement and none of our European neighbours do? Secondly, if there is a requirement for a visa, could we not initiate—as suggested in debates on the borders Bill—a temporary provisional humanitarian visa for issue on demand? Thirdly, would the Minister please consider whether the security case is still as strong as was put to him? Would he please have a look at this personally? I find it very hard to see these desperate, destitute Ukrainian mothers and children as a plausible security risk compared to, say, Russian oligarchs with strong KGB or FSB connections.

[Lord Harrington of Watford (Con)]

I could not really dispute the rationale of what the noble Lord said last; I do not think we can compare oligarchs who are not allowed here to refugees who are. We want to expedite them coming here as quickly as possible. I will look at the security advice. To reiterate, at the moment, our policy is that we need the security advice. A visa is needed, but it is done as quickly as possible. As the days and weeks go on, I intend to make sure that that happens faster and faster.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

3rd reading
Monday 14th March 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on these Benches we support the amendments, but I ask the Minister to go back to the—to me quite worrying—announcement she made at the beginning of this debate, regarding the legislative consent Motions or otherwise. The fact that the Scottish and Welsh Governments do not support the Bill—I assume that is the political and, if you like, philosophical reality behind their stance—seems to raise not just political but practical and procedural issues and matters of enforcement.

I will refer to one issue in the Bill: the arrival or entry into the UK. If asylum seekers arrive at the coasts of Scotland or Wales rather than England, what is to happen? I understand that the Minister’s tone had to be quite neutral and not alarmist, but there are very serious issues related to this. I think the House would be grateful if the Minister were able to flesh out the position a little more.

[Lord Kerr of Kinlochard (CB)]

We have greatly improved Part 2 of the Bill, because it no longer flies in the face of the 1951 refugee convention as understood by our courts, all the other parties to the convention and UNHCR, the institution given the responsibility of overseeing the implementation of the convention. I really hope the Minister will ensure that her colleagues in the other place understand that many in this House feel very strongly about this and would be unlikely to change our view if we were again asked to consider the introduction, contrary to the convention, of a first safe country rule.

There is never a good time for a unilateral reinterpretation of international obligations, but there could not be a worse time than when there are 2.7 million refugees in continental Europe and the Russians are trampling on the 1949 Geneva conventions. We really need to hang on to our reputation for believing in a rules-based system and the rule of law.

[The Lord Bishop of Durham]

My Lords, I support all the amendments because they all seem to make complete sense in terms of tidying up, including those in the Government’s name. I too was disturbed by the announcement about the devolved legislatures—it expresses the deep unease about the Bill out in the country as a whole. I ask the Minister to take away from this House a real concern that this is not the right time to press ahead and that Ukraine has raised questions about the Bill and whether some kind of pause ought to be considered.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

I take up the theme that my noble and learned friend Lady Butler-Sloss took up, concerning Afghan young men or boys with beards and moustaches. My noble friend Lord Green of Deddington’s amendment would clearly affect unfairly the physically fit, the tall and the physically strong. For example, it would disadvantage a 16 year-old who had trained in the Dynamo Kyiv football academy or one of those many young Ukrainian men who become stars around the world in basketball, who have trained and become very fit at an early age. I understand what my noble friend is trying to do, but what he has produced is ill conceived and rather discriminatory. It should not trouble your Lordships’ House very much.

[Lord Kerr of Kinlochard (CB)]

I will add 60 seconds’ worth on Amendment 64. I am a trustee of the Refugee Council, which provides legal advice in a number of age assessment cases. The overwhelming majority of the cases we take on are won: the initial assessment has been wrong and the child is a child. The effect of this amendment, if carried, would be to put these children in harm’s way.

[Lord Coaker (Lab)]

My Lords, I am pleased to support Amendment 64A in the names of the noble Baronesses, Lady Neuberger and Lady Hamwee, my noble friend Lady Lister and the right reverend Prelate the Bishop of Durham. I will not repeat all the concerns, but clearly there are safeguarding issues that a number of noble Lords have raised. I give one quote from the British Association of Social Workers, which warns that

“any age assessment proposals must recognise that although there is a risk when adults are wrongly assessed and treated as a child, there is a much greater risk when a child has been wrongly assessed and treated as an adult. It is predominately children who are wrongly sent and dispersed as adults, sometimes to unsafe accommodation and detention”.

As a last comment on Amendment 64A, it does not seem to me that there is any dispute about the need for age assessment, but the noble Baroness, Lady Neuberger, has set out that, if we are to have age assessment, which is clearly needed at times, let us do it on the basis of science and not of subjective judgments, whoever is making them.

I quickly mention the amendment I put down, Amendment 84D, which has not been mentioned yet. It would provide that the age assessment provisions apply to England only, and is clearly a probing amendment. The Minister will know that, while we would rather these provisions did not apply anywhere, this amendment is to reflect the concerns raised by the Welsh and Scottish Governments that clauses in Part 4 require legislative consent.

Welsh Ministers and three separate cross-party Senedd committees have advised that the age assessment provisions are within the legislative competence of the Senedd. When put to a vote, the Senedd voted to withhold consent from the UK Government’s intention to legislate on these matters. Its concerns were that the Bill creates a method of assessing age that is in “direct opposition” to existing practice in Wales; that the Bill

“does not recognise the devolved context of Wales”

and provides the Secretary of State with powers to impose conditions on Welsh local authorities; and, finally, that all unaccompanied asylum-seeking children are recognised as looked-after children in Wales. This will leave local authorities trying to navigate two “statutory but conflicting” approaches.

This is an important probing amendment about what engagement the Government have had with the devolved Administrations and the grounds on which they are disputing that legislative consent is necessary. What are the Government saying to the Welsh and Scottish Governments about this?

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[The Earl of Sandwich (CB)]

My Lords, my noble friend Lord Hylton very much regrets that he could not stay for this amendment because he had to leave early. He and I have been involved with the problems of domestic workers over decades, it seems—certainly since the 1990s. I should declare that I was once a council member of Anti-Slavery International, and I well remember meeting domestic workers through Kalayaan and being shocked at their predicament, which continues today in some cases.

This amendment has been very skilfully drafted by the right reverend Prelate. It includes domestic workers in diplomatic missions, where a few cases have come up, and, secondly, it allows workers to change their employer, within the same type of work—but they must register this change. They may renew their visas for 12 months at a time but without having recourse to public funds. Thirdly, they may bring in spouses and children while that visa still applies. After five years of continuous residence, they may apply for indefinite leave to remain, and, if their employer wants to continue that employment, that is all right. Thus the amendment is full of limitations, which should satisfy the Home Office. There is also subsection (2)(c), which favours family reunion and prevents the loneliness that often comes from separation.

In the public perception, the Home Office is moving backwards at the moment, and all I can say is that, as the noble Baroness, Lady Lister, said, this amendment is simple, and there seems to be no reason why Her Majesty’s Government should not support it.

[Lord Kerr of Kinlochard (CB)]

I will speak in support of my noble friend Lord Sandwich. This amendment would take us back to the pre-2012 situation. There is no doubt—there is overwhelming evidence—that not being able to change employer means that these luckless people get stuck with an abusive employer in some cases. This is easily remedied. I agree with the noble Earl that the amendment is skilfully drafted. It proposes a modest change that would undoubtedly do good, and I very much hope that the Minister will be able to accept it.

I detected a slight trace of politics coming into our debate on Amendment 75. I was a Sir Humphrey once, and I commend to the Minister “unripe time”, which is very good, and “due consideration”—“shortly” is very dangerous. Seriously, I see no difficulty with an investor visa, provided that it is for a real investment that is actually invested in plants, machinery or jobs in this country. What worries me is that it is sufficient simply to hold some gilts for a short period and then sell them again—I do not think that that is good enough.

[Baroness Hamwee (LD)]

My Lords, golden visas and gilts—exactly. I am pleased to have my name to the right reverend Prelate’s amendment, which I moved in Committee as she was unable to speak to it—she had to leave part way through. The amendment from my noble friend Lord Wallace is very topical—sadly topical; having continued for far too long and being topical throughout the period, is the position of migrant domestic workers.

By definition, I failed to persuade the Minister in Committee. She cited James Ewins’s report about the length of stay and the likelihood of exploitation. The report made two key recommendations. One was about information meetings, which I understand have fallen into disuse, the other was the partial but significant relaxation of the visa tie, on which he said

“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.

I hope the right reverend Prelate has more success than I did on the previous occasion and if she does not, then I hope the group meeting with Home Office officials does.

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[Lord Kerr of Kinlochard (CB)]

My Lords, I supported the noble Lord, Lord Oates, last time, as did the House, as he said, by an enormous majority. I did this because I was impressed by the postbag I got from people who argued that they would feel more confident, and that it would be easier to rent accommodation, open a bank account and so on, if they had some physical proof. I am sure that is the case.

The Minister then argued against me that there was a cost involved in doing as I asked and providing physical proof. I confess that she was probably right. There is no cost involved now if one follows the example of the QR code on the NHS vaccination app. That works brilliantly well, as she acknowledged in Committee, and I see no reason why it should not be applied here. There is no reason why one should not be able to download a document off the Home Office website, and present it—with the QR code on it—as the necessary authentication, thus avoiding the need for any biometric card. It seems to me that it is now genuinely cost-free.

Since it would provide considerable reassurance to a large number of people, I hope that this time the Minister will feel able to accept the amendment in the name of noble Lord, Lord Oates.

[Baroness Shackleton of Belgravia (Con)]

My Lords, I speak not only on my own behalf but on behalf of my noble friend Lady Altmann, who has had to leave the Chamber due to the illness of one of her children.

I sat on the Select Committee which investigated settled status. We interviewed, at length, as I have said before, the ambassadors for the other European countries. Each and every one of them identified as the most egregious problem the lack of giving their nationals with settled status physical proof. What was more abhorrent is that every English person living in their states was offered such physical proof.

As I am known to be speaking out on this, my inbox has been inundated with examples of people being stuck at airports, at hospitals and when renting. It is iniquitous, because the Government have failed to give any comprehensive, sensible, rational reason why they will not simply change their mind and look at this from the perspective of the people being disadvantaged by it. If I could be persuaded that it was just about money, I am sure that given the choice of having to buy physical proof for a small fee, most applicants would be more than happy to pay to give them peace of mind.

It is simply not good enough to rely on machinery. Machinery lets us down. Why do we have a centre outside the Chamber for when our voting system does not work? Why do we have back-up systems? What happens when the power goes down? What happens when people interfere with systems, which is probably going to happen in any war? What happens if you are dispossessed?

The Government should reflect seriously on how we welcome the many people who live in this country and who give their lives for this country. They are considered to be citizens equal to the people born here but they are disadvantaged by not having the simple provision of a piece of paper—a card, a passport, a driving licence or any other of the pieces of paper we carry around—with no viable explanation as to why it is refused. Please, can they change their mind?

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

Yes. There is no point in making them otherwise.

[Lord Kerr of Kinlochard (CB)]

Is the Minister sure that it is undesirable to include Amendments 62 and 63? Her arguments were all about whether it was necessary or not. The French say that if something goes without saying, it is always better said. It seems to me that Amendments 62 and 63, in the Minister’s view, are unnecessary. She is probably right, because I cannot see the Border Force or the Royal Navy behaving in a rash way. But would it not be better—would it not be desirable—to have it on the statute book that we will respect maritime law and will not risk lives at sea?

[Baroness Williams of Trafford (Con)]

I have just explained why not.

Can I say something at this point? The noble Lord, Lord Paddick, and the Whip have pointed this out. Generally, after the Minister has spoken, the person who moved the amendment can ask questions of elucidation, but it is not generally the case that people who have not spoken in the debate then stand up and start adding to it. I know the noble Lord, Lord Kerr, is going to be cross with me yet again, but this has been quite a long and arduous process, and it would be helpful for the House if the Companion were to be followed.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

I hope that I have answered the noble Lord’s question, and with that I ask the noble Lord to—

[Lord Kerr of Kinlochard (CB)]

Before the Minister sits down, the letter that she kindly sent us today sets out at greater length what she has just said: she cannot tell us with which countries she is negotiating with, what exactly she is negotiating for or what exemptions would be provided. She admits that the policy is novel and that she is not surprised that the House is asking questions, but she tells us that she can answer none of these questions now. So with this provision she is asking us to sign a blank cheque.

She has answered none of the questions asked by the noble and learned Lord, Lord Etherton, of which the biggest, in my view, is how legal assistance on British immigration law is to be provided to these people, in these unknown countries, who are going through a process about which we have been told nothing. I really do not think that we can sign this blank cheque.

--- Later in debate ---

[Baroness Stroud (Con)]

My Lords, again in the absence of my noble friend Lord Kirkhope, who still has Covid, I wish to speak to Amendment 49, tabled in his name, which introduces a global resettlement target of 10,000 people each year.

We have just heard from the Home Secretary that the Government have committed to expanding their family visa scheme and introducing a new community sponsorship scheme for Ukrainians, both of which are significant and welcome steps. I thank my noble friend the Minister for the further policy details that she gave us earlier. But it is difficult to know exactly what is being proposed and, more critically, exactly how many Ukrainians will be able to access these routes and the timeframe in which they will be able to do so.

Community sponsorship, while effective, is typically not a rapid response option and requires considerable planning, resource and buy-in from local community advocates and groups. I have long been an advocate for this kind of policy but it is a solution that requires people to be able to plan and build the infrastructure to support it, as exists in, say, Canada. However, as we are all too aware, the moment of crisis is now. This is the second time in a few short months that a major global refugee crisis has emerged, with Ukraine swift on the heels of Afghanistan. The reality is that on both occasions we have simply not had the infrastructure in place to care for people properly in terms of both civil society’s response and local authority capacity.

With that in mind, I turn to Amendment 49, which offers the Government an effective, carefully planned and responsive solution for refugees as regards not only the protracted crisis that we expect to develop in Ukraine but those seeking protection on these shores from other conflict zones. There are two important reasons for that amendment. The first is that we would be playing our part as a nation in responding to global crises and resettling 10,000 of the world’s most vulnerable each year. Secondly, it would mean that we could plan and build a basic level of infrastructure at a local community level to be resilient to crises like the one playing out before us right now.

One of the greatest challenges for Afghan arrivals has been the fact that we have not had the capacity to take in such a big influx so quickly. That is largely because we have not had the stable infrastructure in place for welcome and integration. The success of the Canadian approach to refugee resettlement lies in its consistency. There is strong integration infrastructure there, well-resourced civil society groups and genuine expertise in the local authorities. That is why the Government setting a baseline target for the number of refugees who will be resettled by safe and legal routes could help to build the infrastructure required. If the response to Afghanistan proves one thing, it is that we need to guarantee consistency to both the local authorities and civil society groups that do so much to ensure the smooth transitions for asylum seekers.

A predictable but flexible global resettlement model in which the Government retain control over how places are allocated enables the Home Office to react swiftly to international refugee crises and in a co-ordinated fashion with local authorities, to scale provision in line with demand. Without this amendment, we will continue to lurch from one major crisis to the next. The best way to avoid that outcome is to ensure that we can plan and prepare the infrastructure and manage the flow of refugees. Amendment 49 does not prescribe the exact manner in which the Government should meet their target but simply seeks to address the underlying and fundamental issue—that at the moment we are unprepared and are not playing our part fully in the emerging international crisis.

The success of the Syrian programme in no small part was due to the political commitment and leadership associated with the 20,000-person commitment, which produced voluntary buy-in from local government and, in turn, enabled the build of a well-functioning and properly resourced system. The baseline of 10,000 people is an appropriate number for the future.

I conclude by taking a step back. If we fail to enshrine safe and legal routes, I fear that the two-tier system that the Government are creating with this legislation will come back to haunt us. Does the Minister imagine that the British public will endorse this legislation when its consequences become clear and we criminalise or remove public fund provisions for Ukrainian and Afghan women and children, who will inevitably in their desperation seek other avenues to reach our shores? War clarifies public opinion. The British public are hugely supportive of those fleeing Vladimir Putin’s war. I urge the Minister to consider whether, in the heat of the most major war and potential refugee crisis in a generation, it is the right moment to introduce a two-tiered refugee system. Surely it would be better to pause this legislative process to allow for reflection and see where the land lies.

However, if the Minister cannot consider that, I commend Amendment 49 to the House as a pragmatic way in which to ensure that we have the community infrastructure needed to support people for the long haul. It will send a signal both at home and abroad that we are a compassionate and fair nation.

[Lord Kerr of Kinlochard (CB)]

I support all the amendments in this group but particularly Amendment 48, which has my name on it, to which the noble Lord, Lord Dubs, spoke. It is a great pity that the Government wound up the Dubs scheme for unaccompanied children, which was doing a great deal of good, and that the Government did not want to stay in Dublin III or try to negotiate on that. We are not part of that agreement, and that removed two safe routes for unaccompanied children.

Under the Immigration Rules, as I understand them, it is not possible for a child to come to stay with a grandparent, sibling—a brother or a sister—uncle or aunt. It has to be a parent. Suppose the parents are lost or the situation is such as that unfolding in Ukraine now. Suppose the child has lost the parents en route. Why can he or she not come and stay with their grandparents in this country? The Immigration Rules seem to be too harsh. I therefore support the language of Amendment 48.

The more worrying point for me is the one made by the noble Lord, Lord Dubs, when he cited the Safe Passage numbers. It is alarming that the number of unaccompanied children coming in by a safe route has dropped steeply now that we are no longer in Dublin, the Dubs scheme has gone and these Immigration Rules are being applied. Where are these children going? Safe Passage tells us that in more than 50% of the cases that it is trying to follow, the children just give up, drop out and disappear off the books. Where do they disappear to? I fear that they disappear down to the beach and into the hands of the crooks.

Safe and legal routes really matter, so Amendment 48, which opens up the possibility again of having a safe and legal route for unaccompanied children, matters in my book. It was in this Chamber that the Dubs scheme was first approved by large majorities. For exactly the reasons that we approved it then, we should approve Amendment 48 now in a world that is, if anything, more dangerous, with more children in such a plight than then. I give my strong support to that amendment.

[The Lord Bishop of Durham]

My Lords, in rising to speak to Amendment 48 tabled by the noble Lord, Lord Dubs, to which I have added my name, and Amendment 49 in the name of the noble Lord, Lord Kirkhope, presented by the noble Baroness, Lady Stroud, I declare my interests in relation to both RAMP and Reset, as set out in the register.

I support Amendment 48 as one of a range of safe routes needed to give people seeking asylum an alternative to using criminal gangs. People will do whatever it takes to reach family. I simply endorse the comments of the noble Lord, Lord Dubs, the case for family reunion made by the noble Baroness, Lady Ludford, and the remarks of the noble Lord, Lord Kerr. I urge the Minister to consider this proposal as a pragmatic response to the need to find durable solutions to desperate people dying on our borders in order to reach their family. This route will prevent some from ending in the traffickers’ hands.

I now turn to Amendment 49. I support it because we need a target for the global resettlement scheme, to ensure that it is operational to a level which provides a real alternative to people forced to use criminal gangs, and that it reaches countries such as Iran, Eritrea and Sudan, from which the majority of those arriving on small boats originate. We had the annual target of 5,000 for the Syrian resettlement scheme, and that is indeed the number who came, in a controlled, predictable and prepared way. We currently do not have a target for the global resettlement scheme, and just 1,587 came in 2021.

A target enables local authorities, charities, faith communities and the wider community, including businesses, to create and maintain the infrastructure needed to provide good welcome and ongoing support. This infrastructure also makes emergency response easier, as we have needed with Afghanistan and now Ukraine. It becomes less a crisis-to-crisis response and rather a strong infrastructure that can scale up when needed.

I note for the Minister that community sponsorship is deliberately not named in subsection (2) of the new clause proposed by this amendment, as there has been an earlier commitment made by Her Majesty’s Government that those coming through community sponsorship should be seen as additional to those in any set target. However, it is named in subsection (3). The Minister has previously spoken of her strong support for community sponsorship, so I hope that she will take this opportunity also to reaffirm Her Majesty’s Government’s commitment to the growth and development of community sponsorship widely, as well as the welcome announcement for it with Ukraine. Further details around that would also be welcomed, particularly by Reset.

It is welcome to see the Home Secretary committing to the humanitarian pathway for Ukrainians. We wait to learn the detail of this and the expected capacity. The point is that over five years, the number coming through on community sponsorship is 700, for the reasons that were named. It takes time. That capacity is growing and building strongly, but it will not answer the Ukrainian question quickly.

Returning to the need for a clear resettlement target, I conclude that without one, I fear that the global resettlement programme will be sidelined, and refugees will have no alternative but to use criminal gangs as what they perceive as their route to safety.

Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Lords Hansard - Part 2 & Report stage
Monday 28th February 2022 Lords Chamber

[Lord Marlesford (Con)]

My Lords, I strongly support my noble friend Lady Stroud’s amendment for one simple, overriding reason. One of the big problems of handling the big numbers involved—125,000, as we have been told—is morale. One of the crucial elements of morale is hope. If people do not have hope, they really do deteriorate. The loss of hope for a long time is a terrible thing to inflict on anybody.

As to whether their employment can be accommodated, there is one obvious area where there are limitless opportunities to do something that would make people really feel part of the country and would remain for ever: the whole field of conservation. An enormous number of projects could be carried out; they would be exciting to do and very fulfilling. I certainly hope the Government accept my noble friend’s amendment.

[Lord Kerr of Kinlochard (CB)]

I hope the Government accept the amendment from the noble Baroness, Lady Stroud, which clearly is supported all around the House. I believe it is supported in the higher ranks of the governing party. I quote from no less an expert than Mr Dominic Raab in the Spectator from 2 October:

“If they learn the language and they can work, they integrate much better and they make a positive contribution.”


Correct.

The noble Baroness, Lady Ludford, said it is a win-win. No less an authority than the Adam Smith Institute and Bright Blue said that asylum seekers pay increased tax and national insurance revenue and we pay them a lower asylum support payment, and that it is a win for the Exchequer. These are very Conservative arguments, and they happen to be true. It is a win for them and a win for us. I hope the Government accept the amendment.

[Baroness Hollins (CB)]

My Lords, I rise to speak to Amendments 30A and 84A, but I also support the amendments from the noble Baroness, Lady Stroud, and I will explain why as I introduce these two amendments.

I first thank representatives from the Royal College of Psychiatrists and the Helen Bamber Foundation for their support of these amendments. The proposed new clause in Amendment 30A would make provision for the Secretary of State to

“commission a review of the processes and services”

that will be in place and their impact on

“the well-being of refugees and asylum seekers.”

We know a great deal more about the long-term impact of trauma on people’s mental and physical health, their memory and their ability to make sense of their experiences, adjust to a new situation, engage productively in work, advocate for themselves and avoid being retraumatised. The very system designed to protect them, whether by poor design or by poor execution, risks worsening the health of refugees and people seeking asylum, and increasing their vulnerability.

With respect to work, there is evidence that people with mental health problems of any sort who are out of work for more than six months have real difficulty getting back into work—ever. This is a really key, important point. Research by the Royal College of Psychiatrists has evidenced that people with significant mental illness, as well as those with evidence of torture or sexual or gender-based violence, are being detained despite their mental health-related vulnerabilities, and that their mental health is deteriorating further in immigration detention. This remains the case, despite the statutory guidance on adults at risk and associated caseworker guidance introduced by the Government in response to the highly critical Shaw report.

The health needs of refugees and those seeking asylum require close multidisciplinary working, continuity of care and a regular review of these processes to ensure that, unlike what happened in Napier barracks, these systems are working in the way intended. I urge the Minister to commit to a review of the processes and services in place with regard to the well-being of refugees and asylum seekers, carried out by a body with the necessary expertise.