Illegal Migration Bill

Lord Murray of Blidworth Excerpts

2nd reading
Wednesday 10th May 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

I am grateful to all noble Lords who have spoken. It is a measure of the importance of the issue before us that there have been some 80 speakers in this debate. As we have heard from noble Lords across the House, as well as from my right honourable friends the Prime Minister and the Home Secretary, it is clear that we must stop the boats. That much, at least, is common ground.

Our approach is driven by a desire to do right by the people of this country and guided by that most British of principles—fairness. The present situation is anything but fair. The case for decisive action could not be clearer. I say again: ours is a generous and compassionate country. We will continue offering sanctuary and refuge to those fleeing persecution, conflict and tyranny, but we will not accept mass illegal migration to our shores. That is why we need this Bill: to stop the boats and address this challenge once and for all.

I turn to the matters raised in the debate, including the points addressed in the amendment moved by the noble Lord, Lord Paddick. First, the most reverend Primate the Archbishop of Canterbury and other noble Lords were right to place the Bill in its moral context. Proceeding with this Bill is the moral course. We must put a stop to the dangerous channel crossings putting lives at risk and splitting families. We must end the callous exploitation of vulnerable people by the people smugglers, uphold the law and ensure fair play for those who abide by our Immigration Rules.

A number of noble Lords commented on the fact that, on the introduction of this Bill in your Lordships’ House, I made a statement under Section 19(1)(b) of the Human Rights Act. I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious; as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect.

Section 19(1)(b) statements have been made by Governments of all stripes. One was made by the then Deputy Prime Minister, Nick Clegg, when bringing forward the House of Lords Reform Bill in 2012. Similarly, Tessa Jowell made a Section 19(1)(b) statement in what became the Communications Act 2003. It is noteworthy that, when that Act was later challenged in the European Court of Human Rights, it found in the Animal Defenders case that there was no violation of the convention.

A number of noble Lords, including the noble Lord, Lord Cashman, and the noble Baroness, Lady Ludford, argued that this Bill breaches our international obligations. There were some equally forthright contributions making the contrary and, in my view, very persuasive case from my noble friends Lord Howard of Lympne, Lord Lamont, Lord Wolfson KC and Lord Sandhurst KC, some of them drawing on the work of Professor Ekins KC and others at Policy Exchange, which has written extensively on this topic. The Government take their international obligations, including under the ECHR, very seriously. There is nothing in the Bill, including in Clause 53, that requires the UK to breach its international obligations.

In any event, it is not correct that a failure to comply with interim measures invariably involves a breach of international law. There are exceptional circumstances where non-compliance with an interim measure is not a breach of international law.

The noble Baroness, Lady Lister, the right reverend Prelate the Bishop of Durham, and the noble Lord, Lord Alton, among others, argued that the Bill breaches the refugee convention. I can assure the House that we are satisfied that the provisions in the Bill comply with the refugee convention.

It is a long-standing principle that those in need of protection should claim asylum at the earliest opportunity in the first safe country they reach. This is an established part of international asylum procedures and applied across the EU, such as through the Common European Asylum System. This concept seeks to ensure that migration from safe countries does not undermine concerted efforts to help those most in need. Plainly, all illegal arrivals across the channel come from a safe country, mostly France; as my noble friend Lord Dobbs, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, rightly pointed out, their lives are not in danger in France, and they are taking the place of those in genuine need.

In December, the High Court upheld the lawfulness of this principle—that those in need of protection should claim asylum in the first safe country they reach —concluding that the Government can relocate asylum seekers to Rwanda, for their claims to be determined by Rwanda rather than by the United Kingdom. We look forward to the Court of Appeal’s judgment on this question in the near future.

This addresses the concerns in this regard expressed by various noble Lords, including the noble Lords, Lord Browne of Ladyton, Lord Howarth of Newport, and the noble Baroness, Lady Jones. We have always made it clear that no one will be returned or removed to a country where they may be persecuted, and this will not change.

The noble Lord, Lord German, argued that, in disapplying Section 3 of the Human Rights Act 1998, the Bill was transferring powers from Parliament and the courts to the Secretary of State. However, the opposite is the case. The Human Rights Act, especially Section 3, has in some cases shifted the balance away from Parliament towards the courts. We are already proposing to repeal Section 3 of the Human Rights Act in the Bill of Rights Bill, so our courts will no longer be required by that Act to rewrite legislation passed by this Parliament. Ahead of wider reforms to our human rights framework, we are implementing this disapplication to the provisions of this Bill to avoid courts adopting an interpretation which is inconsistent with Parliament’s intentions.

A number of noble Lords, including my noble friend Lady Helic, have been labouring under a misapprehension that the Bill removes judicial oversight. I would gently invite those who think this carefully to read the relevant clauses of the Bill. In all cases, individuals will have the opportunity to make suspensive claims with judicial oversight in the Upper Tribunal—these claims are suspensive of removal.

In all cases, individuals can institute other legal challenges, including judicial reviews on human rights grounds, in the normal way. However, these claims are non-suspensive of removal. These claims can continue remotely, as they have done historically for other immigration claims, for example in the case of the refusal of a spousal entry clearance application. Additionally, the Bill provides for continued judicial oversight of detention as it will be open to any detainee at any time to apply to the High Court for a writ of habeas corpus or its equivalent in Scotland.

Many noble Lords, including the noble Lord, Lord Hunt of Kings Heath, questioned whether there is evidence of the misuse of our modern slavery protections. The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order. However, it is clear that the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse.

Modern slavery referrals from detention and prison have also increased. In 2020, 27%—that is, 1,005—of the people detained within the UK following immigration offences were referred as potential victims of modern slavery, and only 1% of individuals detained within the UK following an immigration offence who made a modern slavery claim—I repeat, only 1%—were returned. The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people —to 73% in 2021. The referral rate has since fallen slightly to 65% between January and September 2022. In contrast, where people were not detained for return, less than 3% of people who arrived in the UK on small boats in 2021 were referred to the NRM within three months of entering the UK. Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals.

My noble friends Lady Mobarik and Lady Stroud, as well as other noble Lords, including the right reverend Prelate the Bishop of Gloucester, expressed concerns about the impact of the Bill on victims of modern slavery. The Government are committed to tackling the heinous crime of modern slavery and supporting victims. The Bill ensures that individuals who arrive in the UK illegally will no longer have the potential to misuse modern slavery protections to thwart their removal from the UK.

The measures are not a blanket approach. If a person needs to stay in the UK to help support an investigation into and the prosecution of their people traffickers, they will be exempt. If someone is identified as a potential victim of modern slavery, the Government will ensure that they are safely returned to their home country where possible, or to another safe third country, such as Rwanda. This will mean that trafficking victims are given modern slavery support and that traffickers can be brought to justice, while preventing people from abusing our modern slavery laws. These provisions are consistent with our international obligations. Indeed, under Article 13 of ECAT, the UK has a right to disqualify individuals who pose a threat to public order. However, we recognise that this is a significant step, and that is why the modern slavery provisions in the Bill are time-limited; unless renewed, they will cease to apply after two years.

A good many noble Lords, including my noble friend Lord Bourne of Aberystwyth, argued that the solution to the small boats problem is to open up more safe and legal routes. I am sorry to say that this is of itself no answer. The UK has a long and proud history of supporting refugees, and we are committed to maintaining clear, well-defined, global safe and legal routes for people in need of protection. The UK, working with the UNHCR, currently operates a number of safe and legal routes which support people directly from regions of conflict and instability. In addition, we operate country-specific schemes for those who are eligible from Afghanistan, Ukraine and Hong Kong. But with worldwide refugee displacement now standing at around 100 million people, as observed during the debate, the United Kingdom cannot help everyone. I think there is agreement on that point around much of the House.

It is important to add that those seeking protection should claim asylum in the first safe country. This is the fastest route to safety. The Prime Minister has committed to introduce a cap on the number of people coming via safe and legal routes, which will be based on the capacity of our local authorities, agreed by Parliament and amendable in the event of humanitarian crises.

The Bill delivers this, and I welcome the support from the Front Bench opposite for the principle of a cap. I too well remember the most reverend Primate proposing such a cap during his debate in December. The cap is necessary if we are to ensure that the number of individuals we welcome through safe and legal routes does not exceed the capacity of the UK to integrate and accommodate them effectively—a point well made by my noble friend Lord Farmer in respect of stretched children’s services. This is the right way to ensure that we can continue to provide sanctuary to those in need of international protection as part of a well-managed and sustainable migration system.

As now provided for in the Bill, the Government will publish a report within six months of Royal Assent on current and any proposed additional safe and legal routes. I repeat: we will implement those new routes by the end of next year.

A number of noble Lords, including the noble Lord, Lord Scriven, and the noble Baroness, Lady Brinton, argued for the exclusion of children from the duty to remove or the detention powers in the Bill. We also heard calls to exclude pregnant women from the detention powers. I am glad to tell the House that, to date, there have been very few pregnant women in the small boats. Let me say to the House that such a move would only serve to incentivise the people smugglers to target particular groups or those with certain characteristics. The result could well be that more children and pregnant women were put into flimsy boats, putting more young lives at risk, splitting up families and encouraging adults to make false claims that they are a child.

I can assure your Lordships’ House that families will be kept together wherever possible and that children will be detained for as short a period as possible in age-appropriate accommodation. Moreover, as we have already made clear, our policy is not to arrange to remove unaccompanied children before they turn 18, save in very limited circumstances, as now set out on the face of the Bill—for example, for the purpose of reunion with a parent or where removal is to a safe country of origin; and they may only be detained in specific circumstances, to be prescribed in regulations.

On the issue of detention more broadly, contrary to what a number of noble Lords opposite have said, the Bill does not provide for indefinite detention. It does enable detention for the purposes of removal, and in doing so codifies in part the long-standing common-law principles governing immigration detention, including that a person may be detained only for a period that is reasonable in all the circumstances. They will not be, as the noble Baroness, Lady Chakrabarti, put it, interned in legal limbo indefinitely.

The noble Baroness, Lady Lister, expressed concerns regarding the provisions strengthening scientific age-assessment methods. It is critical that the Government take action to disincentivise individuals who are deliberately mispresenting their age in order to cheat the system, as well as to protect genuine children. Determining the age of a young person is an inherently difficult task, and we are aware that no single age-assessment method, scientific or not, can determine an individual’s age with precision. However, we believe that considering a wider range of evidence will enable more informed and robust decisions. I can assure the House that regulations under Clause 56 will not be made to introduce an automatic assumption of adulthood until the science is sufficiently accurate to support such a finding. Moreover, the assumption will only be applied in the circumstances set out in regulations if an individual refuses to undergo scientific age-assessment without good reason.

It is important to note that negative consequences such as automatic assumptions are applied, with variations, by ECHR signatories, including the Netherlands, Luxembourg, Poland, Slovakia and the Czech Republic. So it is the UK which is the outlier, as one of very few European countries that does not currently employ scientific methods such as X-rays as part of age assessments.

The noble Lord, Lord Coaker, and others asked about the detention capacity required to give effect to the Bill. The purpose of the Bill is to deter people from coming to the UK illegally, as they know they will be swiftly returned to their home country if it is safe to do so, or to a safe third country. When the Bill is implemented, this will mean that numbers will start to come down, and that will reduce pressure on accommodation and services in the UK.

We are absolutely committed to making this legislation work and to find further solutions to scale up our detention capacity, but the first step is this change in the law, which is why we are focused on getting the Bill through the House.

Various noble Lords challenged the deterrent effect of the Bill. We have always said that there is no one solution to the global migration crisis, and certainly no overnight fix, but doing nothing is not an option. The Bill will remove the incentive to pay criminal gangs and attempt dangerous channel crossings in the hope of settling in the UK. Its provisions are designed to deter such dangerous and illegal activity.

My noble friend Lord Horam reminded us of the instructive Australian experience of what happens when illegal routes are rendered unviable, and as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, correctly warned, every amendment to soften the Bill will weaken its objectives. My noble friend Lady Lawlor put it well: this Bill is stringent but necessary and proportionate, but it is not the only step we are taking. It comes alongside our partnership with Rwanda, bolstered enforcement action to bear down on the criminal gangs and the co-operation with France, as my noble friend Lord Howard of Lympne rightly pointed out.

This Government will always act in the interests of the law-abiding majority. That means securing our borders, delivering a fair and effective immigration and asylum system, and stopping the boats. Enough is enough. The British people want this problem dealt with. The Bill will enable us to do exactly that, and I commend it to the House and invite noble Lords to reject the amendment standing in the name of the noble Lord, Lord Paddick.

--- Later in debate ---

Moved by

[Lord Murray of Blidworth]

That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the Bill in the following order:

Clauses 1 to 5, Schedule 1, Clauses 6 to 14, Schedule 2, Clauses 15 to 67, Title.

Motion agreed.