Nationality and Borders Bill

Lord Paddick Excerpts

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

[Lord Rosser (Lab)]

My Lords, Clause 15 puts into the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through, or has a connection to, a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

Clause 15 as it stands is neither acceptable nor deliverable in practice. We also have concerns on the definitions of “safe third state” and “connection”, and on the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries to which they will be denied rights owed to them under the refugee convention.

Safe returns as part of an international asylum system are not new and are accepted under agreed conditions, but this clause does not provide for safe reciprocal return agreements. Even as it stands, the Government do not have returns agreements with EU member states, namely the safe third countries that refugees are most likely to have passed through. Instead, this provides for cases to be stalled and unilaterally declared inadmissible, without a requirement for a relevant returns agreement but on the basis of dubious connections to another state, where a person may or may not be able to enter an asylum system. We are talking here about asylum, not general immigration.

The clause provides that a claim is inadmissible if a person has a connection to a third state. It then clarifies that a connection can be made with a state that a person had never been to. It further clarifies that a person can be removed to a completely different state other than the one that they have been deemed to have a connection with. The UNHCR has described this as

“a significant and highly problematic departure from international practice and UK case law.”

I will endeavour to be brief. I appreciate that this is Report and not a rerun of Committee, but in Committee the Government accepted on more than one occasion that we needed to have returns agreements in place. There was no direct answer given to a question asked by my noble friend Lord Dubs, who sought confirmation that to date we do not have an agreement with any country for the return of the people whom we are now talking about. This is about asylum. The answer no doubt is that we just do not have any such agreements. Despite saying in Committee on more than one occasion that we needed formal returns agreements in place to return people, the Government later went on to claim that we do not necessarily need formal return agreements in place, and that we could have

“formal and informal, diplomatic and otherwise.”—[Official Report, 3/2/22; col. 1106.]

The reality is that we need formal return agreements in a situation where the number of people the Government intend to deem inadmissible will be high. In that situation, you cannot address this through unstated, unclear, ill-defined, informal ad hoc arrangements, as the Government seek to suggest. This clause is clearly based on the presumption that the Government can persuade other countries who already take greater asylum responsibility than the UK to accept people from the UK and agree to relieve us of a substantial part of the modest responsibility we currently take.

The reality of Clause 15 is that no such agreements are likely to materialise in the foreseeable future, as was clear from the debate in Committee. Dublin III has now gone and not been replaced. That is why my Amendment 32 provides the much-needed safeguards that Clause 15 can come into force only if the UK has safe returns agreements with third states and not before. I beg to move.

[Lord Paddick (LD)]

My Lords, Clause 15 allows the Secretary of State to declare an asylum claim inadmissible if the person has a connection with a “safe third state”. Because it is a declaration of inadmissibility, there is no appeal other than judicial review, and there is nothing to stop the Home Secretary from removing the person to another third state with which they have no connection in the meantime, as the noble Lord, Lord Rosser, has explained. A connection to a safe third state includes where a claim for asylum in that country has been refused, a country where they could have claimed asylum but failed to do so, or where the Home Secretary thinks that it would have been reasonable to expect them to have claimed asylum in another country.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords for their contributions. I say at the outset that the Government have been consistent and clear about their belief that people who require international protection should claim asylum in the first safe country they reach, rather than make dangerous and unnecessary journeys to the UK to claim asylum here.

Inadmissibility processes, in particular the first safe country principle, are well established, both in the UK, through long-standing measures in the Immigration Rules, and internationally, including as part of the Common European Asylum System. For example, the procedures directive recognised at recital 22 that

“Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country.”

An overriding objective of these processes is to prevent secondary movements by those who have already reached safety. By definition, that is not about denying safety to those who need it but about having rules which aim to reduce unnecessary travel across borders by those who are already safe.

Amendment 31 seeks to remove third-country inadmissibility powers from primary legislation altogether. It would weaken our ability to deploy inadmissibility processes appropriately and decisively within a strong legal framework, and with that, erode our ability to deter unsafe migration and focus our resources on those most in need of our help.

We are confident that the measures in Clause 15 are fair, appropriate and fully in line with our international obligations. The clause sets out the strict circumstances in which a person’s behaviour or circumstances could lead to inadmissibility action. It requires decision-makers to take account of exceptional mitigating factors that may apply when considering those circumstances. It sets out minimum criteria that must be met by any country before it can be regarded as a safe third country of return, including it being one where a person would not be at risk of persecution, would not experience a breach of Article 3 ECHR rights, and would not be sent to another place where they would be persecuted.

The primary protection afforded refugees under the refugee convention and its protocol is non-refoulement, including no onward refoulement. It is therefore clear that non-refoulement is the primary requirement of “safety”. The same is true for protection afforded under Article 3 of the ECHR. Furthermore, an individual may not meet the definition of refugee under the convention but still require protection. A state may still be safe for them where they will not be refouled, even though they are not a refugee. Therefore, our criteria for determining whether a country is safe, and for subsequently making a claim inadmissible, upholds the UK’s obligations under international law.

Nothing in Clause 15 requires extensive delay in processing inadmissibility decisions. It is right that we consider inadmissibility action and, where appropriate, seek the agreement of the relevant third country, or countries, for the person’s admission there. In some cases, particularly where we are reliant on case-by-case requests to partners, this may take some time, but we have not operated, and will not operate, the inadmissibility system in a way that puts someone in indefinite limbo, as the noble Lord, Lord Paddick, talked about—able to access neither the asylum system in the country of proposed removal nor the UK system. That would be contrary to the object and purpose of the refugee convention. Our existing processes, which Clause 15 strengthens, are clear that where return cannot be arranged within a reasonable period, the person’s claim would be admitted to the UK asylum system for substantive consideration. That ensures compatibility with the refugee convention.

Individuals will have an opportunity to explain their actions and circumstances prior to claiming asylum in the UK, and that explanation will be carefully considered in deciding whether an inadmissibility decision is appropriate. They will also be able to make representations on why any safe third state is not safe in their particular circumstances. Any decision to declare a claim inadmissible and remove an individual will be subject to the standard principles of public law, including rationality. The inadmissibility provisions are therefore compatible with the refugee convention. For these reasons, I do not agree with the amendment seeking to leave out the clause.

Turning to Amendments 32 and 86, as we have stated on previous occasions, the UK-EU joint political declaration made clear the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements on issues around asylum and illegal migration. We continue to do that with EU member states on these issues. We have been clear that formal agreements, though valuable, are not the only way in which an inadmissible asylum seeker may be accepted for removal by a safe third country. I think it is right to seek removals on a case-by-case basis where appropriate and, with the consent of the relevant country, make that removal. This approach has formed part of our inadmissibility process since the changes to the Immigration Rules in December 2020—and, until the Bill’s provisions come into force, we will continue to rely on the Immigration Rules.

The structure of case-by-case removal arrangements will not be uniform for each country of removal. A wide range of factors will still affect the formality and administration around such removals, not least the diverse organisational structures in place in the third country, the levels of centralised and decentralised decision-making, and other circumstances that may be specific to the individual. These arrangements will inevitably vary, but the framework in which cases are considered, within which third countries are assessed for safety and claimants are progressed to removal, will not. We have a clear and consistent approach to these fundamental and important issues, and we stand by our international obligations.

I do not agree that these provisions are unworkable without formal agreements in place. We aim to make the process work as a whole and to return people where appropriate. Where it becomes clear that an individual cannot be removed to a safe country, either because we do not have formal returns agreements in place or because a case-by-case removal cannot be agreed within a reasonable period, the individual’s asylum claim will be considered in the UK. To go back to the assertion made by the noble Lord, Lord Paddick, I say that this will ensure that we do not keep people in limbo, in accordance with our obligations under the refugee convention. I do not think this amendment is required and ask that it be withdrawn.

[Lord Paddick (LD)]

Before the Minister sits down, can she clarify? She insists that the Government’s intention is not to put asylum seekers into indefinite limbo; in other words, if the Government attempt to send them back to a safe third country and fail to do so, at the moment there is a six-month time limit on that. Can the Minister confirm that there is nothing in the Bill to prevent an indefinite status of limbo?

[Baroness Williams of Trafford (Con)]

Given what I have already stated about an indefinite state of limbo, surely the Minister’s words would have some sort of weight. I have also said that any decision to declare a claim inadmissible and remove an individual will be subject to standard principles of public law, and that we will consider their obligation within a reasonable time.

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[Lord Green of Deddington (CB)]

My Lords—

[Lord Paddick (LD)]

Order.

[Lord Green of Deddington (CB)]

If I may—

[Lord Paddick (LD)]

No. My Lords, this is Report. First, we are allowed to speak only once during a debate. Secondly, even if noble Lords were not here for Second Reading or Committee, they should not be making Second Reading or Committee speeches on Report.

We cannot support this amendment because there is no differentiation between documents that are genuinely lost or stolen. We know that people smugglers control the people they are smuggling, including stealing and taking their documents away from them deliberately, so it may not be the fault of the asylum seeker that they do not have a document. This amendment and the other provisions in the Bill seem to ignore the fact that officials and tribunals are quite capable of deciding, on the basis of the evidence, what weight they place on the evidence that is provided to them and what should be considered in terms of the credibility of the claimant, without what is contained in the Bill or in this amendment.

The noble Baroness, Lady Neville-Rolfe, said, on the basis of a freedom of information request, that only 2% of asylum seekers were in possession of a passport. Only four in 10 Americans have a passport. Is it any wonder that those fleeing war in less developed countries, often when normal government services have completely collapsed, do not have passports? If you are fleeing war, if you are being bombed, if you are being persecuted because of your sexuality or your political views, the first thing on your mind is to get out of that country, not to go to the Government and ask for a passport.

This amendment and the related clauses in the Bill that seem to be telling officials and tribunals what interpretation they should put on evidence should not be supported by this House.

[Lord Coaker (Lab)]

My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.

As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.

There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak briefly in support of the amendment, which I hope the Minister will be able to respond to positively, given that it has been revised to take account of concerns that he raised in Committee about its wording, as the noble Baroness, Lady Coussins, said.

I want to come back to the question of children. I welcome the publication last week of the factsheet on the Bill’s impact on children—better late than never—although it was only by chance that I found out about it, even though I had raised a number of concerns in Committee about the Bill’s failure to protect children. That point was made strongly by children’s organisations such as the Children’s Society. The factsheet, not surprisingly, echoes what the Minister said in Committee about guidance setting out how decision-makers will exercise their discretion with regard to children and more generally on a case-by-case basis.

However, as the Children’s Society warns:

“Assurances that children will be looked after in guidance are not sufficient. Guidance and case-by-case determinations do not provide the legal protection children desperately need. As highlighted in the recent inspection report of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed ‘they did not have time to consider each case on its own merits, contrary to the guidance they receive’. Leaving decisions that will have a profound impact on a young person’s life to case-by-case determination can trigger further trauma for young and vulnerable claimants.”


Moreover, when the factsheet states:

“The best interests of the child are a primary consideration in every decision taken in respect of the child”,


forgive me if I am sceptical, given that the Court of Appeal last year ruled that the Home Office had failed to take account of the child’s best interests when setting the fee for citizenship registration—an issue to which we will return on day three.

Therefore, I am afraid that I am not reassured by what has been said about guidance and a case-by-case approach. Can the Minister tell us when that guidance will be published? Will organisations working with children seeking asylum be consulted on it? What opportunity will there be for Parliament to consider and provide views on the guidance? I realise that those questions may need to be referred to the Home Office but, if so, I should be grateful if the Minister would undertake to pass them on and request that the Home Office writes to me with the answers.

[Lord Paddick (LD)]

My Lords, we support the amendment as far as it goes, particularly the emphasis on those subjected to sex and gender-based violence, abuse or exploitation. However, there are many others, such as those from sexually and gender-diverse communities, who will hesitate to bring forward all the evidence that they rely on in support of their claim. As I said in the last group, and as the noble Lord, Lord Wolfson of Tredegar, said, officials and tribunals already weigh evidence and credibility but if, in the Bill, the Government insist on leaning on decision-makers in relation to the weight that they should place on late evidence, then this or an expanded amendment should be included; that should also include children.

[Lord Coaker (Lab)]

My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.

The amendment relates to Clause 25(2), which says:

“Unless there are good reasons why the evidence was provided late”.


It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.

At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.

As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.

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[Lord Etherton (CB)]

My Lords, I entirely agree with and support what has been said by the noble Baroness, Lady Stroud, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Cashman. Offshoring while an asylum seeker is having their claim assessed is wrong in principle, oppressive in practice and, critically, lacking sufficient safeguards under the Bill. The noble Lord, Lord Horam, mentioned Australia’s policy of offshoring as a successful process, as he did on Monday. On the contrary, from a humanitarian perspective, Australia’s offshoring shows all the defects and injustices of such a policy.

In Committee, I mentioned the 2013 Amnesty International report This is Breaking People, highlighting a range of serious human rights concerns at the immigration detention centre on Manus Island, Papua New Guinea. I also mentioned and quoted from Amnesty’s follow-up report, which stated that on 16 and 17 February 2014, violence at the detention centre led to the death of one young man and injuries to more than 62 asylum seekers. Indeed, some reports suggested that up to 147 were injured. I quoted more from this report in Committee, but it is not appropriate or necessary to repeat that now.

What is absolutely critical—here I take serious issue with the noble Lord, Lord Horam—is that before any such notion of offshoring can be pursued by the Government under this or any other legislation, certain assurances have to be provided in primary legislation, none of which is addressed in the Bill, the Explanatory Notes or any other guidance by the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, which is complex and difficult? Is that going to be done four and half thousand miles away on Ascension Island? Secondly, legal aid and advice is available to refugees in the United Kingdom. Is there anything to suggest that it will be available to refugees in offshoring holding centres? If conditions, as in Australia, in the proposed offshore centre are so bad as to cause physical or mental harm to refugees—whether through physical conditions in the centre or, in the case of single women or LGBTQI people, for example, because of discrimination, harassment, bullying and violence from staff or other asylum seekers—will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign countries?

These are fundamental questions. They cannot be left outstanding while individual arrangements with separate countries are being negotiated or considered. They have to form the legal framework within which any such discussions should take place and be seen on the face of any legislation, including this Bill. Although I raised these points in Committee, the Government have not given any answer on any of those issues and, until they have done so, I suggest that these amendments necessarily have to be carried.

[Lord Paddick (LD)]

My Lords, I want to briefly restate what I said in Committee. Not only is the Home Office seeking the power to remove an asylum seeker to any country while their claim is being considered but it is seeking to remove them to a country and then tell that country, “If you think they are a refugee, you take them; they’re not our problem any more”.

As the noble and learned Lord, Lord Etherton, has just said, according to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny. It has cost it over half a billion pounds a year, according to the British Red Cross, and failed to stop those seeking asylum, including by boat. Evidence to the Public Bill Committee in the other place from independent academics supports these conclusions. The UNHCR has

“voiced its profound concerns about such practices which have ‘caused extensive, unavoidable suffering for far too long’, left people “languishing in unacceptable circumstances’”

and denied them “common decency”.

I accept what the noble Lord, Lord Horam, says: the Government should be looking at every option, but surely they should be taking into consideration the evidence that I have just cited and considered any counterevidence. Then, having worked out its practicalities and decided whether it is to go ahead, they should bring forward legislation—not bring forward legislation and then decide whether they are going to use it.

Clause 28 and Schedule 3, as drafted, should not be part of the Bill. We support all the amendments in this group that seek to prevent anyone being removed from the UK while their asylum claim is being considered, particularly Amendment 35, to which I have added my name.

[Lord Rosser (Lab)]

Amendments 35 and 37 would remove the subsections of Clause 28 and Schedule 3 which allow for offshoring. That is, as we know, the power to export offshore any person in the UK who is seeking asylum without first considering their claim. Let us just repeat: we are talking here about asylum, not general immigration policy.

Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed. The Bill withdraws that right by allowing the transfer of any asylum seeker to any country listed by the Government. The Government have been somewhat reticent in telling us about the progress of any negotiations they are having with any other countries on this score. I think that is where we hear the term about the Government not wishing to give a running commentary; in other words, “We’re going to keep you in Parliament in the dark about what is going on”.

The Bill is silent on what, if any, legal obligations the UK would consider itself to have towards asylum seekers once their asylum claims have been dealt with. This issue was raised again by my noble friend Lady Lister of Burtersett and others. The United Nations High Commissioner for Refugees has commented that the provisions of the Bill allow the Government to externalise their obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards, an issue to which my noble friend Lord Cashman referred. The only thing the Government have said is that the model the Home Office intends to proceed with is

“one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.”

It is not just offshoring—it is also treating and dealing with people under another country’s asylum system rather than ours.

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[Lord Paddick (LD)]

On a point of clarification, the Minister said that the Minister in the other place had given an undertaking that children would not be offshored under this scheme. Does that mean that if a family arrives on UK shores the parents of the child could be sent overseas—offshored—while the child remained in the UK, because of that undertaking?

[Baroness Williams of Trafford (Con)]

I thought that I had made it clear that unaccompanied asylum-seeking children would not be offshored.

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[Lord Green of Deddington (CB)]

My Lords, I offer just a sentence on some of these amendments.

On Amendment 48, we need to bear in mind the risk that if we set up what is now proposed, children who are not yet in Europe will feel obliged to take quite serious risks to get into Europe to take advantage of it. With regard to Amendment 49, Syria is a good example. We decided that something needed to be done. We chose a target that, if you like, was doable—5,000 a year—and we did it. I take some encouragement from that. However, we need to be careful about the numbers, because we are already taking 40,000 a year, and if the Channel gets any worse that could be 70,000. We need to be careful not to lose the public’s support, which underlies all this.

Lastly, on Amendment 51, I have a good deal of sympathy with the comments of my noble friend Lord Alton on the Yazidis and others in Iraq. It may be that we should aim to do something similar to what was done over Syria, but again with a cap, in case the numbers run out of control. That has, indeed, been included in subsection (4) of the amendment, I think.

I mentioned public opinion, which changes from time to time. There is certainly very strong opposition to what is happening in the Channel; there is widespread public feeling that the Government, having promised to reduce immigration, have in fact lost control of the Channel. That, indeed, is the case. We cannot really expect the public to distinguish very clearly between asylum and other kinds of immigration. They are very uneasy, and in taking policy forward we need to keep that well in mind.

[Lord Paddick (LD)]

My Lords, as we have heard, in addition to the family reunion amendments so ably explained by the noble Lord, Lord Dubs, and my noble friend Lady Ludford, this group includes amendments on setting an annual target for the acceptance of asylum seekers into the UK and the acceptance of refugees in specific circumstances—such as those faced by female judges in Afghanistan, the victims of genocide and those fleeing the appalling situation in Ukraine. If the noble Baroness does not take up the challenge set by the noble Lord, Lord Hylton, to combine the best parts of the two family reunion amendments, we will vote for Amendment 48, in the name of the noble Lord, Lord Dubs.

As the noble Baroness, Lady Stroud, explained, the Government need to build capacity in this country to enable us to take in at least 10,000 refugees a year—a number that is seen almost universally as the UK’s annual fair share of global refugees. Without a target to aim for, the necessary arrangements—the infrastructure and capacity in local services—will not be in place to cope with situations, such as Ukraine, that can arise, as we have seen, with relatively little notice. It is no excuse for the Government to say, “We are unprepared”. We must be prepared, and Amendment 49 seeks to ensure that we are.

I reiterate what I said late on Monday: the British people want to help genuine refugees, like those fleeing the conflict in Ukraine. What they worry about, rightly or wrongly, is being overwhelmed by immigrants. I repeat: in recent years only six in every hundred people coming to the UK to live have been asylum seekers. The British people have nothing to fear from this amendment. On the contrary, if it was explained to them, I am sure that they would support it overwhelmingly.

We support Amendment 50—so powerfully spoken to, and in the name of, the noble Baroness, Lady Kennedy of The Shaws—which makes special emergency provision for people at particular risk, such as human rights defenders, including journalists, and minorities. We also support the amendment from the noble Lord, Lord Alton of Liverpool, to make special provision for victims of genocide.

To put beyond doubt the mixed messages from the Government about what they will do to support refugees from Ukraine, Amendment 54A in my name, and signed by the noble Lord, Lord Coaker, puts into primary legislation the requirement to support, by whatever means necessary, Ukrainian refugees who need to come to the UK. We passionately support all the amendments in this group.

[Lord Coaker (Lab)]

My Lords, what a powerful debate we have just had on what is one of the most important parts of the Bill. The noble Lord, Lord Paddick, spoke about wishing that we could inform the public. I sometimes wish—I do not know how you would do it, unless you put it on live television—that the public could hear more of the speeches made in places like this. That would inform the debate and take it forward in a way that allowed people to make their own mind up. It is disappointing that it does not happen.

It is important, in this context, to remind ourselves that we are all wrestling with how we deal with refugees, family reunion and resettlement schemes. The point made by the noble Lord, Lord Paddick, needs to be repeated time and again: this is not about immigration, it is about refugees fleeing persecution and about asylum. That is extremely important.

The noble Lord, Lord Alton, was also right, with his Amendment 51, to remind us of some of the people who need support.

In speaking to her Amendment 50, my noble friend Lady Kennedy referred movingly to her work to support the judges in Afghanistan. She has dedicated her life to trying to do something for people in such situations.

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 1 & Report stage
Monday 28th February 2022 Lords Chamber

[The Lord Bishop of Durham]

My Lords, I hold my hands up: I am one of those who, as the noble Baroness, Lady Jones of Moulsecoomb, mentioned earlier, did not know much about this issue before we started this debate. However, I followed it and pay tribute to the noble Baroness, Lady Lister, for the way in which she has led this. It is quite clear that it is completely unjust and needs to be dealt with. I hope that the Minister has noted that, while in most debates, many of us around this House and the noble Lord, Lord Horam, will not agree, we agree on this one completely—100%. There is no justification for anything other than accepting this amendment.

[Lord Paddick (LD)]

My Lords, to assist the House to move swiftly on to votes, we on these Benches will try to restrict ourselves to one speaker who will speak for us all, unless we are provoked by subsequent contributions. I say to the noble Lord, Lord Cormack, that it is rather unfair to the Minister—particularly as he is a new Minister—to ask him to deviate from his script. However, we agree with my noble friend Lady Ludford and with all other noble Lords.

[Lord Rosser (Lab)]

My Lords, my noble friend Lady Lister of Burtersett has set out the background to and purpose of this amendment. As we know, currently only those born on the islands and the first generation born in exile have the right to British Overseas Territories citizenship and, therefore, to British citizenship. As a result, families have been broken up and communities divided. Some members have access to citizenship rights while others do not.

In the Commons, as has already been commented on, the Government accepted, on 4 November last year during the Committee stage of the Bill, that the Chagossians presented a unique case. By Report Stage in the following month, however, the Government seem to have decided that the Chagossians were no longer a unique case, because going down the road proposed,

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories”.—[Official Report, Commons, 7/12/21; col. 258.]

The reason that the small number of Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British overseas territory. That is why they are unique, as the Government have already conceded. They did not leave of their own free will to settle elsewhere: they were kicked out—forcibly evicted. There would be no precedent set by agreeing to this amendment. In effect, the Government are using, in support of their case to deny these Chagossians the right to British citizenship, the cause of the very injustice which this amendment seeks to address. We support this amendment, and it would appear that we are far from the only ones in this House to do so.

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[Baroness Hamwee (LD)]

My Lords, I do not want to take the time of the House other than to say, with thanks for the letter, that I hope the Minister will accept that discretionary registration is qualitatively different from automatic citizenship, which is what we have been seeking, and understand my concern that the letter uses terms such as addressing

“exceptional cases in a flexible and proportionate way”.

This is vaguer than one would wish to see and a situation which I am sure is nobody’s fault but one of those unintended consequences of legislation not aligning.

[Lord Paddick (LD)]

My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.

I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.

In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.

In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:

“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]


However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?

The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:

“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”


and, in brackets:

“(We do not have data on how many actually attempted to register the birth)”.





In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:

“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.


That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.

If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?

If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.

I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.

[Lord Rosser (Lab)]

My Lords, I will not say anything on the amendment addressed by the noble Lord, Lord Russell of Liverpool, in view of what he has indicated about the progress that has been made between Committee and Report, although of course we will listen very closely to what the Minister has to say and indeed read what is in the Minister’s letter, which I think is what the noble Lord, Lord Russell of Liverpool, referred to.

As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. Under our international obligations we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here. Through Clause 10 the Government propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied a child was unable to acquire another nationality before being permitted to register as a British citizen. That, of course, creates an additional—and one would probably feel unjustified—hurdle to stateless children’s registration as British citizens which could be difficult for a child or those acting on their behalf to prove.

There is also the issue that the uncertainty created by Clause 10 could be highly damaging to a child’s personal development and their feelings of security and belonging, due to this exclusion and potential alienation being inflicted in their formative years. Indeed, the question was asked in Committee: how can this be in the best interests of the child?

The noble Lord, Lord Paddick, made reference to the figures which were given by the Government in their response. He also referred to the question which was asked as to whether the figure of 1,175 was the number of stateless children born in the UK who were granted British citizenship, or whether it was the number of cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system. The noble Lord, Lord Paddick, referred to the letter that was received on behalf of the Government, and to the apparent discrepancies between what was said in Committee and the figures which appear in the letter.

I wait with interest to hear the response of the Government, because we, too, asked the question about what the case for Clause 10 was. I think I am right in saying—I recall it being said—that the Government felt that the figures that they gave at Committee were a fairly conclusive argument in favour of abuse of the system, and therefore that this was the case for Clause 10. On the basis of the letter which has been received, and the comments which have been made by the noble Lord, Lord Paddick, there is some doubt as to whether the case has been made.

The noble Lord has asked a number of questions and asked for a number of assurances. The answers he receives will clearly influence the decision he then makes in respect of Clause 10 standing part, and will influence what we, as the Official Opposition, do if the matter is put to a vote.

--- Later in debate ---

[Lord Marlesford (Con)]

My Lords, I support the amendments from the noble Lord, Lord Anderson. I think that the way this matter has been handled reflects extremely well on the flexibility and the detailed application of the minds of Members of your Lordships’ House in dealing with very great problems, especially when these problems are new and have recently arisen.

I was struck by the words of my noble and learned friend Lord Mackay of Clashfern, when he referred to the fact that when the 2011 Act was passed, he could not have imagined the need for these arrangements. Let us be aware that the thing that is new is the creation of a new political body, which has nothing do with religion, the Islamic State. It claims the ability to grant citizenship and demands loyalty but also—by definition, because it believes in theocracy rather than democracy, and the theocracy itself is an aberration with little to do with the noble aspects of Islam—believes in something that puts its members in permanent enmity with this country. They deny the right of other states to exist, which is why, of course, we should be taking steps to defend the realm against the possibility of such people using citizenship for the destruction of this country.

[Lord Paddick (LD)]

My Lords, although at first glance it would seem reasonable for the Home Office not to have to give notice to a terrorist overseas that they were being deprived of their British citizenship, it of course means that there is no effective right to appeal, as the subject would be unaware of the decision. We have also seen cases where the Home Office could have given notice, even to the last known address or by email, and chose not to. The increase in the use of this power needs to be reversed.

The amendments proposed by the noble Lord, Lord Anderson of Ipswich, seek to introduce a range of judicial oversights, would remove the subjective element of the decision and tighten the grounds on which a deprivation of citizenship order may be made without notice to the person concerned. Others would strengthen the test for making such a decision; ensure, if the person concerned contacts the Home Office, that he is told what has happened and that he has a right of appeal; and allow the Special Immigration Appeals Tribunal to oversee such decisions. Any time limit on appeal would start when the subject is notified.

I understand that a government Minister would have signed these amendments from the noble Lord, Lord Anderson, had they not been out of time—the deadline for tabling government amendments being several days before that for other amendments. I pay tribute to the noble Lord, Lord Anderson, for the time, effort and ingenuity he has brought to bear in bringing forward such a comprehensive suite of amendments that could arguably halt, if not throw into reverse, the current practice by the Home Office increasingly to use this power to deprive citizenship without notice. We wholeheartedly support these amendments.

However, were the House to divide on taking Clause 9 out of the Bill, we would, along with the right reverend Prelate the Bishop of Chelmsford, support that Division. At the end of the day, the Government should be taking ownership of the actions of British citizens, including terrorists overseas, ensuring, wherever possible, that they are extradited to the UK to stand trial, rather than depriving them of British citizenship, preventing them returning to the UK, and making them some other country’s problem, whether with notice or not. However, while therefore agreeing with much of what the noble Baroness, Lady Bennett of Manor Castle, has said, we are unable to go so far as to support her amendment, as there could be exceptional cases where, as a last resort, citizenship should be removed.

[Lord Rosser (Lab)]

I think I am right in saying that until the noble Lord, Lord Paddick, spoke, all those speakers who had spoken against Clause 9 were noble Baronesses. I am not sure what the significance of that is, and I do not say that in any wrong way; I think it is a great credit to them. Like the noble Lord, Lord Paddick, I hope they will forgive me for intruding on their space.

Although we appreciate that the amendments tabled by the noble Lord, Lord Anderson of Ipswich, are certainly an improvement on Clause 9—I, too, would like to express my thanks to the noble Lord for all the work I know he has put in—as it stands, we do not feel the case has been made by the Government for why Clause 9, and deprivation of nationality without prior notice to the individual concerned, are actually necessary. That is what we are talking about: not whether nationality should be removed but whether it should be possible for the Secretary of State to remove it without prior notice.

Currently, under the British Nationality Act 1981, an individual must be notified if they are to be deprived of their citizenship. So what is the problem when, for example, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address, or to a parent, or to a parent’s last known address? I say that against the background that the Government have already said there have been no cases where the requirement to give notice has stopped—prior to the recent High Court decision—a deprivation of citizenship order coming into being. It is also against a background where the number of people deprived of their citizenship has risen considerably over the last 12 years—an upward trend with a peak, I think, in 2017.

One thing we can be sure of is that if the Government have the powers under Clause 9, even with the amendments of the noble Lord, Lord Anderson of Ipswich, we will see deprivation of citizenship orders being made without prior notice, because if it is not the Government’s intention to take advantage of the powers to deprive a person of their citizenship without prior notice, why are they seeking them? Against that scenario, we need to be satisfied that there is a real and overriding necessity for this additional power now, when it has not been deemed necessary before, beyond it being perhaps more convenient or helpful on occasions not to have to go through the procedure of giving prior notice to the individual concerned. The lack of a compelling and meaningful government response on that point, and there having been no cases where the requirement to give notice has stopped the deprivation of citizenship order coming into being, is significant.

If a proven national security need does arise for the power not to have to give prior notice of a deprivation of citizenship notice coming into being, the Government can get such necessary legislation through Parliament, as we know, with remarkable speed. In the absence of such a case being made for this power—and the lack of it clearly has not caused a serious difficulty until now—we should be wary of agreeing to Clause 9, even as amended, remaining in the Bill.

I suggest that the situation has not been helped by finding out from information in the Court of Appeal decision that in the D4 case the Home Secretary

“argued that notification had been given to D4 … by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”

That ought to make us very wary about giving the Secretary of State and the Home Office the additional powers in Clause 9, now that we know how existing statutory powers and requirements on notification have been interpreted and implemented in the D4 case.

The consequences of the clause are likely to be felt most—but certainly not exclusively, as the noble Baroness, Lady Mobarik, said—by those from ethnic minority backgrounds. It is no surprise that it is in this area that the Bill, particularly Clause 9, has caused most concern about how the new powers might be applied and interpreted and what the evidence is that they are needed now and have not been needed before.

It is unlawful to deprive someone of their citizenship and leave them stateless. Even so, the Home Office is still on record that British citizenship

“is a privilege, not a right”.

Yet without citizenship people do not have rights, and we are talking about significant rights. It has been estimated that nearly 6 million people in England and Wales could be affected, and that under this proposal two in five British citizens from an ethnic minority background are eligible to be deprived of their citizenship without being told, since they have, or may have, other citizenships available to them—I think that was the basis of the comment about two classes of citizenship—compared with one in 20 characterised as white. That is a sobering consideration for the Government, or should be, when looking at the merits or demerits of Clause 9, not least in the light of how the Secretary of State and the Home Office in the D4 case interpreted and implemented the requirement to give prior notice under the law as it exists at present. What would be tried if Clause 9, even as amended by the amendments by the noble Lord, Lord Anderson, gave the power not to have to give prior notice?

The right reverend Prelate the Bishop of Chelmsford raised the issue of trust, or rather the lack of it, among society groups. The Government ought to reflect very carefully on that in considering whether Clause 9, even as amended, should remain in the Bill. I have to say that as far as we are concerned the case has not been made for Clause 9, even as amended, to remain in the Bill, and we shall certainly be looking for an opportunity to vote against it.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I would not want that to be quite the last word. The speech made by my noble friend Lord Kerr was not merely powerful, it was compelling and irrefutable. As a matter of law, I have spoken on this before in Committee. I am not going to repeat all that, but do we really believe that the inhabitants of Blackpool, Doncaster or the deprived towns spoken of by the noble Lord, Lord Horam, and reflected in the contribution of my noble friend Lord Green, are so much less understanding, less sympathetic or less kind than the Poles, who are welcoming these vast hordes of people? We are not going to be asked to take that sort of number.

It is a dismaying thought that we really believe that our fellow countrymen, at this crisis in world events, would turn their backs, which is, in effect, what is being suggested. Are we really going to condemn, as Clause 11 is designed to do, rafts of asylum seekers—genuine refugees—to the loneliness, isolation, desperation, destitution and failure to be able to bring their families that it is suggested we now must to stop people crossing the channel, or to appease those in our deprived areas who do not want vast numbers of more refugees? I fervently suggest not. I would have hoped that, in this ghastly moment of history, the Minister would say, “This is not a moment to promote a Bill like this. We must withdraw it and think again”. No doubt, that is above his pay grade: indeed, considering that he is unpaid, that is not a very high bar. However, I really urge those responsible for this grotesque piece of legislation not to try to persist in it at this juncture.

[Lord Paddick (LD)]

My Lords, if those seeking asylum in the UK are genuine seekers of sanctuary from war and persecution, they are entitled to all the rights afforded to refugees under the refugee convention. Even if they are eventually found not to be genuine refugees, they are entitled to have their claim considered and their welfare safeguarded while it is being considered. A number of noble Lords have talked about public opinion. In answer to the noble Lord, Lord Horam, who appears to think that this is all about people crossing the channel, Clause 11 would make Ukrainian refugees who made it to Poland and then flew to the UK second-class refugees. If—I say “if”; I am not saying that this is the case—there is concern in public opinion, it is a concern about immigration, not a concern about refugees.

This is a very generous nation. If you speak to people in the towns and cities that the noble Lord, Lord Horam, has mentioned, the vast majority will say, “Of course we want to help those people fleeing the war in Ukraine”. They are concerned about being overwhelmed by immigrants, but only 6% of immigration in recent years has been by asylum seekers. That is why Clause 11 is not right and not necessary. Once asylum seekers have presented themselves and their claim in the UK, they are entitled to have their claim considered without fear or favour, regardless of where they came from and how they got here. They should not be treated differently on that basis. We should take Clause 11 out of the Bill and, when the noble Lord, Lord Kerr, tests the opinion of the House, we will be voting with him.

[Lord Green of Deddington (CB)]

Before the noble Lord sits down—

Refugees and Asylum Seekers

Lord Paddick Excerpts

Monday 28th February 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

It is what you tweet.

[Lord Paddick (LD)]

My Lords, given that the UNHCR has criticised the UK’s response to the humanitarian crisis unfolding in and around Ukraine, why have the Government not allowed visa-free entry of refugees from Ukraine into the UK?

Immigration and Nationality (Fees) (Amendment) Order 2022

Lord Paddick Excerpts

Wednesday 23rd February 2022 Grand Committee

In conclusion, I emphasise again that we are not changing any fee levels through this order today. Any changes to specific fees would be subject to cross-government consultation and further parliamentary clearance and would be implemented through fees regulations, not this fees order. I hope that the Committee will see the need for this order. I beg to move.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining the order. As she said, it increases the maximum fee that can be charged for applications for entry clearance into the UK for short-term visits of up to six months from £95 to £130 and for students from £480 to £490. Those are the maximum amounts that could be charged, but the fee is set under different regulations.

Interestingly, the reason given in the Explanatory Memorandum

“to better reflect the cost of processing applications”

applies only in the case of the visitor visa, not the student visa. Will the Minister tell the Committee the cost of processing both types of visa and how much headroom these new maxima will provide? Is it the case that the cost of the student visa is nowhere near the cost of processing the application, as the Explanatory Memorandum appears to suggest? If the current fee for student leave to remain applications is £475 and for student leave to enter applications is £348, why is it necessary to increase the maximum fee chargeable to £490 now when neither fee is currently charged at the maximum allowed? Can the Minister explain why it is so much expensive for a student to apply to remain in the UK than to apply to enter the UK? Intuitively, once a student’s details have been processed and retained, it would be easier and less costly for the Home Office to extend the visa.

The Explanatory Memorandum states that the consultation on this order took place more than eight years ago, between November and December 2013. Why has more recent consultation not taken place?

The draft impact assessment states that:

“The strategic objective is to attract talent and take back control.”


Can the Minister explain how either of these increased maxima will achieve those objectives? We have asked this question before, and we ask it again.

The impact assessment states that:

“Visa and immigration fees are set … to ensure that the Home Office has appropriate funding to provide effective Border, Immigration and Citizenship (BIC) services … and to move closer towards ‘self-funding’ and reduce the burden on the taxpayer.”


The Minister referred to the reduction of the burden earlier. Can she explain why the Home Office is unique in being required to be self-funding in the broader immigration and citizenship services it provides? Those services benefit every citizen of the UK through effective border and immigration control. Why is the health service not funded by those who use its services? Is the reason not the one set out in paragraph 8 of the impact assessment:

“The main groups affected are those migrants wishing to come to or extend their stay in the UK”?


They are people who cannot vote.

In addition, the impact assessment talks about providing

“additional scope to ensure that the department’s charging structure is flexible enough to support evolving products and services.”

Can the Minister confirm that fees are now being charged at a rate not just to fund existing services but to pay for research, development and provision of new products and services, such as the electronic travel authority?

The impact assessment says the impact of increasing fees on volumes is “highly uncertain”, yet paragraph 46 says:

“The proposed changes will generate direct benefits for the Home Office. Revenues will be higher from those applicants that continue to apply despite higher fees.”


I understand that the increased maximum for a student visa is small, and a small proportion of the overall cost of studying in the UK, but the increase in the maximum for a visitor visa is significant. Only last week I was in Cape Town talking to South Africans about the deterrent effect of the current UK visitor visa fee, even without the potential increase that this order would allow.

The order gives the Home Office the potential to increase the fees for visa applications, impacting on overseas visitors and potentially damaging our tourism and education sectors. At the same time the Home Office, rather than taking back control of our borders, has added 10 more countries to visa-free entry, while retaining visa-free entry from EU and EEA countries. The Government seem determined not to be seen to be giving EU or EEA citizens any advantages post Brexit, but in order to maintain this ideologically driven stance they have thrown open our borders to even more countries. It seems that the Home Secretary would rather be tough with migrants than with the Treasury over the Home Office funding settlement. I look forward to the Minister’s response, either now or subsequently in writing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Paddick, asked a number of the questions that I was planning to ask. I am aware that there is a wider debate on immigration fees and the Government’s policy of making a profit on certain groups, such as Commonwealth veterans or those paying for optional premium services. That wider debate is being carried out on the Nationality and Borders Bill as we speak.

I am aware that in this SI we are talking about two specific cost increases to the cap. Specifically, I noticed the note in the impact assessment that the optional premium services are

“charged above cost … to meet customer demands and to limit fee increases in other areas.”

Is the Minister able to say how much extra money is made through these optional premium services? By how much does that reduce other costs?

Another point, which was touched on by the noble Lord, Lord Paddick, is about tourism. Does the Minister recognise the importance of supporting the tourism industry? As she will know, there was an interesting Question in the Chamber earlier this month about school parties coming from France. I think she will have picked up the general sense of frustration in the House that school parties from our nearest neighbours are not coming. I understand the point about Covid, but nevertheless I hope she picked up the general sense of frustration in the House at the answers she gave to that Question.

The noble Lord, Lord Paddick, explored another point by asking the Minister to give a wider explanation about the need to provide extra headroom on the fees. As he asked, what is the cost of processing the fees? How much headroom is the Minister seeking in this SI? I understand the reasoning behind it, but what is that headroom and what is the processing cost?

The other point that I wanted to make—to pick up a point also made by the noble Lord, Lord Paddick—was about the general move to self-funding, which is a clearly stated aim by the Government. The noble Lord went on to question why this element within the visa system should be moving to self-funding when other large departments have not had that constraint put on them. I would be interested to hear from the Minister a philosophical defence of that position, given that we benefit from immigrants. That point is acknowledged, so why should the department be moving towards self-funding?

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Marlesford (Con)]

My Lords, it seems to me that this debate reflects what we said yesterday in our debate and what some of us tried to say on Second Reading. There is an irreconcilable conflict and quandary between our desire to receive people in the way in which we would wish them to be received and treated and the number of people who have been coming—and are likely to continue to come—and our capacity to handle them. The Home Office’s proposals attempt to increase the capacity and the quality. I totally understand the criticism of the proposals, but it seems to me that we are in no way in sight of a practical solution to this problem.

[Lord Paddick (LD)]

My Lords, I start by thanking the noble Baroness, Lady Lister of Burtersett, for so comprehensively and clearly setting out the issues addressed in this group. I also thank the noble Baroness, Lady Neuberger, for her detailed exposition of the negative impact that accommodation has on the health and well-being of asylum seekers.

We have Amendments 58, 62 and 63 in this group, which are about accommodation centres, which are—if the Government were honest about this—immigration detention centres, as the noble Lord, Lord Cashman, said. I say that because Section 30 of the Nationality, Immigration and Asylum Act 2002 allows the Secretary of State to make regulations about conditions to be observed by residents of an accommodation centre—including, in subsection (3)(a), the power to

“require a person not to be absent from the centre during specified hours without the permission of the Secretary of State or the manager”.

Hence my noble friend Lady Hamwee’s Amendment 62, which we strongly support, to remove such a condition.

If these are not intended to be detention centres, the Government will have no objection to this amendment—but I am not optimistic. The noble Lord, Lord Green of Deddington, will be heartened by the news in the Telegraph today that the Secretary of State

“is in talks with the Attorney-General about potential restrictions that could be placed on their movements”—

that is, the movements of asylum seekers housed in accommodation centres. The noble Lord will be heartened; we will be horrified.

We have already seen from the Government’s attempts to warehouse large numbers of asylum seekers in former military camps how such an approach is not “conducive to the public good”, to adopt a phrase from another part of the Bill. Noble Lords have talked about Napier barracks. In the same article in the Telegraph today, apparently the Home Office confirmed that it has acquired military barracks at Manston, in order to accommodate further asylum seekers.

The noble Lord, Lord Horam, suggested that there was no objection in practice to accommodation centres. To some extent, that is true, but having large numbers of asylum seekers in one place creates tensions with local communities and hampers asylum seekers’ attempts to integrate into their adopted country. While I am on the subject of the noble Lord, Lord Horam, can we nail the illegal immigrant issue? The noble Lord said that a lot of these asylum seekers had yet to have their claim determined. We have a principle in British law called being innocent until you are proved guilty. These people are not illegal immigrants unless and until their claim for asylum has been rejected.

So many objections to immigration generally are on the basis that immigrants do not integrate into society; that they do not attempt to learn the language, for example, or mix with those already established in the UK. Accommodation centres would prevent asylum seekers integrating and force them to isolate themselves from local communities. It is the very opposite of what we should be doing to ensure the integration that is so important to foster good community and race relations.

As the noble Baroness, Lady Neuberger, said, we have seen the appalling conditions that asylum seekers have been forced to live in at Napier barracks, which drew universal condemnation. Amendments 56, 57 and 61 seek to provide some safeguards and protections for the most vulnerable asylum seekers. Amendment 60 would enable children housed in accommodation centres to attend local state schools, and Amendments 58 and 59 try to restrict the length of time that asylum seekers can be held in accommodation centres.

--- Later in debate ---

[Lord Green of Deddington (CB)]

The noble Lord mentioned that most applicants will become refugees. I have the Home Office figures here: 49% of the 450,000 asylum applications between 2004 and 2020 were withdrawn or rejected, including those that went to appeal. Those are the basic stats from the Home Office; they should surely underline the whole debate.

[Lord Paddick (LD)]

I am very grateful for the historic information that the noble Lord has provided. My understanding is that, as the years have gone on, the number of successful appeals has increased and the number of first-time decisions to reject application from refugees has gone down. While I do not deny that those might be the overall numbers going back to 2004, in saying that most applicants for refugee status are successful, we are basing it on the last few years—the current trend rather than the historic numbers the noble Lord refers to.

I am reminded of heavy-handed policing of football supporters in the 1980s. I remember a football fan saying to me, “If you treat us like animals, we’ll behave like animals”. Warehousing asylum seekers may be a short-term gain, but it is likely to create long-term problems.

[Lord Rosser (Lab)]

I too express my appreciation to my noble friend Lady Lister of Burtersett for the determination and commitment she has shown in pursuing not only this but so many other key issues about which she rightly feels very strongly. I repeat what the noble Baroness, Lady Neuberger, said: this clause and these amendments are about asylum seekers. In the Bill—a government document—Clause 12 is titled “Accommodation for asylum-seekers etc”. We are talking about asylum seekers, not illegal immigration, although I accept that there are those who make no distinction between the two. The other point I make at this stage is about the quite interesting exchange between my noble friend Lord Dubs and the noble Lord, Lord Green of Deddington. I think there was rough agreement—if not I am sure I will stand corrected—that the kind of numbers coming over in the back of a lorry are very similar to those coming over in small boats across the channel.

[Lord Rosser (Lab)]

The potential is, of course, a matter of speculation. I note the point the noble Lord makes, but up to now there is agreement between him and my noble friend Lord Dubs that the numbers have been roughly the same.

[Lord Paddick (LD)]

I am sorry to interrupt the noble Lord, but my understanding is that the number of asylum claims a decade or more ago was something like double what it is now. We are talking not about similar numbers crossing the channel in boats compared to those in the past, but about half as many.

[Lord Rosser (Lab)]

The point I wanted to make was that, when people were coming over in the back of lorries—not all that long ago—they were largely unseen and the Government were not proposing the measures in the Bill. However, when similar numbers started to come over in small boats across the channel, with pictures of them landing on our shores regularly appearing on TV, it became a big political issue for the Home Secretary and the Government, following some rather rash promises they made to their supporters. Consequently, we now see the Bill, which frankly is an attempt to save the political skins of the Home Secretary and the Government. It really has nothing to do with properly trying to solve a problem. We ought to remember what is driving it—the political future of a Home Secretary and Government who made rash promises. Because people are coming over no longer in the backs of lorries, where you do not see them regularly on television every night, but in small boats across the channel, with pictures of them on television, it has become politically very awkward.

The amendments in this group are driven, as has been said, by serious concern over the Government’s track record on accommodation for asylum seekers, not least in connection with Napier barracks, and the provision in Clause 12 for creating asylum accommodation centres. It is worth repeating that last June a court judgment ruled that the accommodation at Napier barracks was inadequate, in that it did not meet the minimum standards required by the Immigration and Asylum Act 1999. Both the process for selecting people to be sent to Napier barracks and the process for monitoring its ongoing suitability while they were there were flawed and unlawful. From January 2021 the residents were given an order not to leave the site until they were permitted to do so. The claimants were unlawfully detained, under both common law and the European Convention on Human Rights.

The report on Napier of the Independent Chief Inspector of Borders and Immigration and Her Majesty’s Inspectorate of Prisons raised a number of serious concerns, including that the screening of potential residents for physical and mental health problems was “wholly inadequate”, with all of those interviewed reporting feeling depressed and one-third feeling suicidal, and that there was extremely poor communication with those accommodated at Napier. We have heard today from the right reverend Prelate the Bishop of Durham that Napier has improved, but it is fair to say that he also said that it is far from being as it should be. It is a legitimate question to ask why the Home Office allowed Napier barracks to get into the position where it required a court judgement, and why we should now accept that the same thing will not happen again.

Clause 12 gives the Government powers to house different groups of asylum seekers in undefined accommodation centres. It appears that these centres would involve congregated living in hostel-type accommodation—the type of accommodation which has been shown to be unsuitable to house people, many of them traumatised, in the asylum system for long periods. As others have said, this move away from housing in the community is likely to impede integration prospects and will surely make access to needed support and services more difficult. I simply ask the Government, and I hope that we get an answer in their response: is it now their policy to move away from housing in the community for asylum seekers?

The Explanatory Notes to the Bill say that the accommodation centres for those at different stages of their asylum claim, including those with “inadmissible” asylum claims, will

“increase efficiencies within the system and increase compliance”,

but no evidence is given to support that assertion. It would be helpful if the Government could provide that evidence in their response to this debate.

While the term accommodation centre is not defined—again, perhaps the Government will do so in their response —there is an implication that the Government are seeking to replicate the kind of inferior accommodation that we have seen at Napier. This more prison-like and isolated accommodation provides a very poor environment for engaging with asylum claims and is more likely to retraumatise extremely vulnerable people and hinder future integration.

As I understand it, last summer the Home Secretary visited the notorious reception centre on the Greek island of Samos, which campaigners have described as “prison-like” and “inhumane”. Is that what the Home Secretary seeks to emulate in her accommodation centres? The Government must know the answer, since I believe I am right in saying that initial submissions for the procurement of these accommodation centres were invited by the end of September last year. The contract is to be delivered in accordance with Part 2 of the Nationality, Immigration and Asylum Act 2002, and it stated, as I understand it, that it is for housing up to 8,000 people for periods of up to six months. Could the Government say in their response how accountability and standards will be maintained in such asylum accommodation when there is no public access to the contracts? How did the Government decide that commercial confidentiality should take priority over the public interest in knowing about the contracts and transparency?

Since April 2020, the Home Office has been using two large-scale accommodation centres for asylum-seeking men who have arrived in the UK by boat: Napier barracks in Kent and the Penally camp in Wales, which is now closed. A report by the All-Party Parliamentary Group on Immigration Detention noted that, although legally speaking these are not detention centres, they none the less replicate

“many of the features found in detained settings—including visible security measures, shared living quarters, reduced levels of privacy, and isolation from the wider community”.

Frankly, that seems wholly inappropriate. No doubt the Government in their response will wish to provide some reassurance on this point.

It would be helpful too if the Government could spell out what freedoms and rights will be restricted or diminished for the occupants in these accommodation centres, and what independent access will be allowed, and to whom, to these centres to ensure there is some regular accountability for conditions and standards.

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Moved by

[Lord Paddick]

64: After Clause 12, insert the following new Clause—
“Asylum seekers’ right to work
The Secretary of State must make regulations providing that adults applying for asylum in the United Kingdom may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within 3 months of the date on which it was recorded.”Member’s explanatory statement
This new Clause would require the Secretary of State to make regulations enabling asylum seekers to work once they have been waiting for a decision on their claim for 3 months or more.

[Lord Paddick (LD)]

My Lords, this is a rare treat: a group with only two amendments. I will speak both to Amendment 64 in my name and to Amendment 65. I am reminded of the phrase “lies, damned lies, and statistics”, but apparently, according to the figures that I have—perhaps we need a Hansard fact-checker, like the BBC has—every year from 2012 to 2019 the majority of asylum seekers in the UK were successful.

[Lord Green of Deddington (CB)]

Yes, indeed, and 49% were not.

[Lord Paddick (LD)]

There is agreement. In 2019, it was 65%. To prevent such a large proportion of asylum seekers working while their claim is resolved is demoralising, debilitating and expensive—increasingly so as the time taken to process applications continues to increase. The latest Home Office data shows 76% of applications taking more than six months to resolve. The Minister did not have the average figures, but I appear to have them. Figures published by the Independent suggest that more than 1,200 asylum seekers currently in the system have waited more than five years for a decision and 399 have waited more than a decade. That can result in asylum seekers becoming deskilled, leaving gaps in their work experience and long-lasting demotivation. To be willing and able to work but not be allowed to, for months or even years, must be devastating.

Our amendment, supported by the noble Baronesses, Lady Chakrabarti, Lady Meacher and Lady Jones of Moulsecoomb, simply allows an asylum seeker to ask the Home Office for permission to work if their application has not been resolved after three months, instead of the current 12 months. It is intended to establish the principle that it is better for asylum seekers and for society if they are allowed to work. Amendment 65, in the name of noble Baroness, Lady Stroud, goes into more detail, requiring the Home Office to allow an asylum seeker to work without restriction after six months, rather than the current situation where asylum seekers can apply to work. Currently, however, they will only be given permission to work in the types of employment on the shortage occupation list maintained by the Home Secretary. These jobs are very limited and asylum seekers are unlikely to be qualified for them or have recent experience of them. Moreover, asylum seekers are unlikely to be attractive to potential employers while their claim for asylum is being considered. We are currently facing worker shortages in some sectors. Providing asylum seekers with work means they can start to pay their own way in society through tax and national insurance rather than relying on handouts. They are less likely to disappear if they have a job and a steady income.

In November, a cross-party group of MPs and the right reverend Prelate the Bishop of Durham wrote an open letter to the Home Secretary saying it was “nonsensical” that there were people in the UK who wanted to work but were not permitted to do so. They described allowing asylum seekers to work as common sense, fiscally responsible, and enabling those living here to pull themselves and their families out of poverty. The Lift the Ban coalition, which includes businesses, recruitment firms, trade unions and refugee organisations, estimates that removing the ban would save the economy £181 million a year. As I said in the previous group, the key to any successful immigration policy is integration, and allowing people to work is key to their integration into society. It also makes them less likely to be exploited, for example by becoming victims of modern slavery. We support Amendment 65—

[Lord Alton of Liverpool (CB)]

My Lords—

[Lord Paddick (LD)]

—and I beg to move Amendment 64.

[Lord Alton of Liverpool (CB)]

My Lords, I was trying to intervene on the noble Lord’s speech, and I apologise to him for doing that. As I am also going to be involved in the other business going on in Grand Committee a little later on, I might not be able to be here to hear the Minister’s reply, so I am going to have to forego the opportunity of speaking on this group of amendments. However, I wanted to register my strong support for them, not least because, in 2016, I moved an amendment on the six-month issue and this House passed it by 218 in favour to 195 against. One point that the noble Lord might also like to register is that Article 23 of the 1948 Universal Declaration of Human Rights specifically sets out the right to work. That is something that this House has an obligation to consider, but I thoroughly endorse everything that the noble Lord has said. I should mention that I am patron of Asylum Link Merseyside, which has made representations on this subject.

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[Baroness Williams of Trafford (Con)]

My Lords, we often say that we will not provide a running commentary, but I will provide a running commentary on said letter. When we break for the Statement at 3.30 pm, I shall look to the Box as to the whereabouts of the letter —which I did clear some time ago.

[Lord Paddick (LD)]

My Lords, we have the famous Dubs letter; I do not know why others have not—maybe it was sent to selected recipients.

I thank all noble Lords from all sides of the Committee for their support for these amendments—with the exception of the noble Lord, Lord Green of Deddington, whose case seemed to be that public opinion polls in the future might turn on their head from where they are now, with 70% of the public supporting asylum seekers being able to work, and that might be a minority rather than a majority.

I am losing patience with the noble Lord, Lord Green of Deddington. When he intervened on my opening remarks he accepted that, from 2012 to 2019, the majority of asylum seekers were successful in their applications and that, in 2019, 65% were successful. But in his speech, he maintained that the majority of asylum seekers’ claims were not accepted. It is getting difficult.

The Minister talked about an impact assessment in due course on the effects on the labour market of this change. What is the Migration Advisory Committee for if it is not to advise the Government on the likely impact of changes in migration policy? The MAC recommends that asylum seekers are allowed to work. The Minister claimed that if the amendments were accepted, it would go against what people voted for in 2019. Is she really saying that in 2019 people voted not to allow asylum seekers to work, particularly in the light of the evidence of opinion polls showing 70% support for the contrary?

The Minister seemed to claim that allowing asylum seekers to work was a pull factor, but then said it was complicated and more research was needed. If there is evidence that allowing asylum seekers to work is a pull factor, what is it? She talked about other countries making the UK appear more attractive to asylum seekers, yet we have already heard that the UK is an outlier in terms of most other European countries allowing asylum seekers to work. How does that happen? She also said that European countries that allow asylum seekers to work still provide them with accommodation. Asylum seekers could pay for the accommodation that they are provided with if they were allowed to work.

The Minister’s explanations are not acceptable and we will return to this issue on Report. At this stage, I beg leave to withdraw the amendment.

Amendment 64 withdrawn.

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[Baroness Jones of Moulsecoomb (GP)]

Am I a terrier as well? I think of myself as a larger animal, but a terrier will do. There is almost nothing left to be said. I am delighted to have my name on this amendment. The noble Baronesses, Lady Lister and Lady Hamwee, have said virtually everything, but I would like to say a couple of things.

In spite of our rather uncertain economic situation—if anyone from the opposing side wants to say that it is all terribly healthy, a Radio 4 programme more or less corrected that conceit yesterday; we have a slightly unhealthy economic situation, and it is not as good as people in the Government claim—we are still a rich country. We ought to show a little more generosity to people who have lost virtually everything, not to mention the fact that we have often caused the instability that forced them to leave their homes. Whether it is Afghanistan, Syria or other countries, when we have sold weapons, invaded or, as I have said before, used fossil fuels to the extent that we continue to do, we have destabilised many countries throughout the world. We have a moral obligation to behave better and take in refugees. This amendment is worthy of acceptance.

[Lord Paddick (LD)]

My Lords, however undesirable accommodation centres may be, being thrown out on to the street as the first acknowledgement by the state that it has accepted your claim to be a refugee is not acceptable. The current limit of a 28-day transition has proved in practice not long enough for all refugees to avoid homelessness and destitution. Amnesty and Migrant Voice point to the fact that it takes time to find alternative accommodation, open a bank account and find a job, particularly if refugees have been prevented from working while their applications are considered, which in itself makes it more difficult for them to find work.

The limit is therefore more likely to result in refugees having to rely, at least initially, on benefits, which take time to apply for and to come on stream. It also takes time to readjust from the trauma and anxiety caused by the war or persecution from which they have fled or by the often hazardous journey to the UK and the uncertainty of whether they will be granted asylum.

Twenty-eight days is simply not long enough. This amendment extends that transitional period to 56 days, with the Secretary of State being given discretion to extend it further. We strongly support it. I say to the noble Baroness, Lady Stowell of Beeston, who looked aghast when I said I was losing patience with the noble Lord, Lord Green of Deddington, that the noble Lord and I have had words offstage and we are all good.

[Baroness Stowell of Beeston (Con)]

As the noble Lord has mentioned me by name, I feel duty-bound to respond. It is far from my responsibility to feel in any way concerned for the noble Lord, Lord Green, but I am pleased that he and the noble Lord have been able to come to some kind of resolution.

The reason I looked aghast was because I feel—I have listened to a lot of these debates over the last few days—that whenever anybody raises any opinion which is not widely held by those moving amendments or supporting them, there is a tone and reaction which I do not think becoming of your Lordships’ House. We have to be as courteous and considerate to those with whom we disagree on this topic as to those with whom we agree.

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[Baroness Williams of Trafford (Con)]

My Lords, again, I thank noble Lords who have made points. I will attempt to assist the noble Lord, Lord Coaker, on the extension. First, I will say that I am glad the noble Lord, Lord Kerr, is in his place—I hope noble Lords will indulge me; because different amendments are bleeding into different groups, I know noble Lords will not mind. The basic approach to the asylum support calculation is based on the essential needs of the claimant—but I will get him more detail and perhaps more of a breakdown if that is what he would like.

I also say before we start that I agree with my noble friend Lady Stowell: I disagree with many points that people make, but I hope I always approach the House with courtesy. I know the Committee generally does not agree with the noble Lord, Lord Green of Deddington, but I must admire his tenacity in coming to this place, week in and week out, and making points that a lot of people do not agree with—I feel like that sometimes. That is a light-hearted point, rather than a point for debate.

[Lord Paddick (LD)]

My Lords, perhaps I could just explain to both noble Baronesses that it was facts that were in dispute, not opinions. I actually agree with a lot of what the Lord, Lord Green of Deddington, says about immigration as a whole, and I would not want that misconstrued.

[Baroness Williams of Trafford (Con)]

That is not in dispute; I was just echoing the point made by my noble friend Lady Stowell about respect, because I think it is always a good thing to be promoting.

I too listened to “More or Less” yesterday—the programme that the noble Baroness, Lady Jones of Moulsecoomb, referred to—and I think the conclusion was that it depended on how you looked at it. So everyone was right and everyone was wrong, all at the same time; I think that was the conclusion. But I very much enjoyed listening to that calculation.

Anyway, before I cause any more controversy, I will start by saying that it is very clear that individuals leaving asylum support following a positive immigration decision receive the assistance that they need to obtain other housing and apply for other benefits, such as universal credit, that they are entitled to. We do not think it is sensible to increase the length of time they remain eligible for asylum support from 28 to 56 days, and I will explain why.

The asylum accommodation estate is under huge strain and demand for normal asylum dispersal accommodation —that is to say, flats and houses obtained from the private rental market—is exceeding supply. The only way to meet this demand has been to use hotels, and there are currently around 26,000 people accommodated in them. A programme of work is under way to drive down the use of hotels by obtaining more dispersal accommodation and introducing accommodation centres. This clause would impede this work—I hope that answers the question put by the noble Lord, Lord Coaker, about “Why not 56 days?” In simple terms, the longer that successful asylum seekers remain in asylum accommodation, the fewer beds will be available for those entering the asylum system, including those temporarily accommodated in hotels at great expense to the taxpayer.

We are aware of reports that some refugees do not access UC, as it is called, or other benefits or adequate housing within 28 days. The reasons for this are complex, but the problem is not solved by increasing the 28-day move-on period, for reasons I have explained, and that is why our focus has been on implementing practical changes with the aim of securing better outcomes for refugees within the 28-day move-on period. The noble Baroness, Lady Lister, talked about some of the things that have been done during the pandemic that have actually improved the situation. These include ensuring that the 28-day period does not start until refugees have been issued with a biometric residence permit, the document that they need to prove that they can take employment and apply for universal credit, and that the national insurance number is printed on the permit, which speeds up the process of deciding a UC application.

We also fund Migrant Help which, as noble Lords will know, is a voluntary sector organisation that contacts refugees at the start of the 28-day period and offers that practical, move-on assistance, including advice on how to claim UC. I think this is a big change from the last time the noble Baroness and I spoke on the subject. We offer advice on the importance of an early claim; on other types of support that might be available; on booking an early appointment at their nearest DWP jobcentre, if needed; and on how to contact their local authority for assistance in funding alternative housing. We did evaluate the success of the pilot scheme that booked an early appointment with the local jobcentre for those who wanted one. The evaluation showed that all applicants for UC in the survey received their first payment on time—that is, 35 days from the date of their application—and that those who asked for an earlier advance payment received one, although I take her point about the advance payment. This assistance is now offered to all refugees leaving asylum support and is provided by Migrant Help, which again, as the noble Baroness knows, is a voluntary organisation funded by the Home Office.

Asylum accommodation providers are under a contractual duty to notify the local authority of the potential need to provide housing where a person in their accommodation is granted refugee status. Refugees can also apply for integration loans which can be used, for example, to pay a rent deposit or for an essential domestic item or work equipment, or for training.

We have a proud history of providing protection to those who need it, and I can reassure the Committee that this Government are committed to ensuring that all refugees are able to take positive steps towards integrating and realising their potential. We keep the move-on period under review, but we must consider the strong countervailing factors that make increasing it very difficult at this stage. For the reasons that I have outlined, I hope that the noble Baroness will withdraw her amendment.

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 2 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for putting my mind at rest. I initially hesitated to support Amendment 40 as it highlights particularly vulnerable asylum seekers, potentially giving the false impression that we do not believe that all asylum seekers are vulnerable, as my noble friend Lady Hamwee just said. Nor do we want to give the false impression that we on these Benches support in any way, shape or form what we believe to be the illegal practice of differentiating asylum seekers, as Clause 11 attempts to do, for any reason. This amendment only probes the requirement of Clause 11(2)(b) that asylum seekers must

“have presented themselves without delay to the authorities”,

which might be an issue whether Clause 11 remains part of the Bill or not.

Amendment 40 lists examples of those who may have suffered particular trauma that may cause them to hesitate in claiming asylum. I can talk only about my personal experience as a gay man, trying to conceal my sexuality for fear of being found out for the first 40 years of my life, even in a country that decriminalised homosexual acts between consenting men aged 21 and over when I was nine. The point is this: just because it is legally safe to be gay in this country does not mean that it feels safe to be gay in this country. Even Dame Cressida Dick—the person of the moment—did not feel able to be publicly open about her sexuality until she became Commissioner of the Met, and it has never been illegal to express your sexuality as a lesbian in the UK. I can only imagine what it might be like, coming from a country where you can still be executed if you express your sexuality, to come here and then be expected to claim asylum “without delay” because of your sexuality. It is so clearly and obviously unreasonable.

As the noble Lord, Lord Cashman, said, it is also less likely that those fleeing persecution will be able to produce evidence of their sexuality, be open about it or overcome the fear of being open about it because of concerns about family members who remain in their home country. The noble Baroness, Lady Neuberger, spoke compellingly, from personal experience of helping particularly vulnerable refugees, of how long it takes asylum seekers to recover, as my noble friend has just highlighted. There is compelling evidence of the need for this amendment and we support it.

[Lord Rosser (Lab)]

As my noble friend Lady Lister of Burtersett said in moving this amendment, Clause 11 provides that to be a group 1 refugee you must have presented yourself to the authorities “without delay”. This amendment would provide that vulnerable groups are not subject to this time constraint. As one sees from reading the amendment, this would include, though not exclusively, children, survivors of torture, sexual violence and gender-based violence, LGBT refugees, victims of modern slavery and disabled refugees. This is a probing amendment to find out more about how the “without delay” provision will work in practice. As has been said, traumatised people, for example survivors of sexual or gender-based violence, who are largely, but certainly not exclusively, women, do not always feel —to put it mildly—in a position to unburden themselves to the first complete stranger or border, immigration or other government official that they meet on arrival.

The position of single men and sexual orientation has also been raised. The noble Baroness, Lady Neuberger, referred to the article in the Times about single men who arrive from across the channel being detained and locked up. In a previous debate, I asked whether the Minister could say whether that Times article was true. I ask again: is that article true or false? It is important that we get an answer because it relates to this amendment as well.

As well as answering that question, I hope the Minister will give some indication of how the “without delay” provision will work in relation to the vulnerable groups covered by the amendment, what kind of leeway or otherwise the Government intend there to be and what exactly “without delay” means in this context.

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[Lord Hunt of Wirral (Con)]

Would the noble Baroness, Lady Lister, please ask the French?

[Lord Paddick (LD)]

My Lords, after the emotionally draining Police, Crime, Sentencing and Courts Bill, I told myself not to get so involved with this one, but how can noble Lords not get so involved when we are dealing with measures such as this? I cannot believe that it is not also taking a toll on the Minister, who, at all times and in every circumstance, tries everything she can personally to meet and persuade noble Lords. I wanted to put that on the record in case there was any misunderstanding of my remarks on the other Bill.

Again, we reiterate that we believe that the sole determinant of how an asylum seeker should be treated by the UK are the circumstances that forced them to seek sanctuary in the United Kingdom. If they genuinely have fled war or persecution, they should be treated as refugees, with all the rights associated with that status, regardless of how they arrived in the UK. These amendments seek to clarify in what circumstances a second-class refugee, as defined by Clause 11, would have no recourse to public funds, and what would happen to those individuals in such circumstances, as the noble Baroness, Lady Lister of Burtersett, explained. The noble Baroness, Lady Stroud, articulated the consequences of having no recourse to public funds. In short, do the Government intend to make group 2 refugees—a dreadful and, we believe, illegal term—destitute and homeless, or just for them to suffer grinding poverty?

I assume these measures are supposed to be a deterrent, but I ask noble Lords to put themselves in the position of a genuine asylum seeker in a migrant camp in northern France, considering what their next move should be. Would they feel that they would be better off destitute and homeless in France, or destitute and homeless in the United Kingdom, where they speak the same language, for example, or have friends or relatives? Would they believe, despite the Government’s best efforts, that they would still be better off in the United Kingdom than in France, for the reasons that the noble Baroness, Lady Stroud, listed so clearly?

Can the Minister answer this question? Are the Government really on a race to the bottom with other countries, such as France, to see who can make life more intolerable for genuine asylum seekers? The noble Lord, Lord Hunt of Wirral, raised the issue of France. I agree with my noble friend Lady Ludford: my understanding was that the French were complaining that it was easier to work illegally in the UK than in France, which was why people were coming to the UK. My understanding is also that the benefits given to refugees in France are higher than in the UK, but I stand to be corrected. Having asked the Minister that question, with some trepidation I await the Government’s response.

[Lord Rosser (Lab)]

My Lords, one of the ways that the Government can differentiate under the Bill between group 1 and group 2 refugees is to apply “no recourse to public funds”. The two probing amendments in this group would remove that provision. I listened with interest to what the noble Baroness, Lady Stroud, had to say, as I did to my noble friend Lady Lister of Burtersett in moving the amendment. The noble Baroness, Lady Stroud, asked what the policy intent of NRPF is—I think she asked that twice during her contribution. Having heard the view of the noble Lord, Lord Hunt of Wirral, I will be interested to hear what the Government’s view is of the policy intent behind no recourse to public funds being applied to group 2 refugees.

We fully agree with these amendments, which are probing. A question was put to the Minister, and I simply want to support that ask of the Minister to set out in detail when the Government would consider this an appropriate differentiation to use, and in what cases. To whom within group 2 refugees do the Government expect this differentiation on no recourse to public funds to be applied, and in what circumstances? Against what criteria will that decision be made?

We are not talking about applying no recourse to public funds to persons without a valid refugee claim or economic migrants. Clause 11 applies solely to people the Government recognise as refugees with a valid right to be here and to seek safety. Bearing that in mind, it would be interesting to find out in what circumstances they think it appropriate to apply no recourse to public funds to people in the group 2 category.

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[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who have spoken. There have been some very powerful arguments for the amendment. I am particularly grateful to the noble Baroness, Lady Stroud: she put it better than anyone else could, drawing on her knowledge of these issues. I thank the Minister but I must say that I am disappointed. The whole point of the amendment was to try to get a bit of clarity—my noble friend Lord Rosser has been trying, without success—but, to be honest, I am none the wiser now than I was at the beginning as to who will and will not be subject to the “no recourse to public funds” rule.

The noble Baroness, Lady Stroud, made the point that discretion involves subjective judgment. I have been involved in social security for a long time. There was a reason why we reduced the element of discretion in it: because subjective judgment may be used in ways that we do not feel very happy with. It can be negative as well as positive. All that we know about the culture of disbelief in the Home Office, the refugee system and so on does not fill me with great hope.

I am glad that the Minister said that she will write to my noble friend; I hope that she will copy it to everyone who has taken part in this debate. I hope that she will look at Hansard and the questions I asked to see whether she can answer some of them. If she cannot, it suggests that, as my noble friend said, this has been put in the Bill without a clue as to what it will actually be used for—and that is not good.

[Lord Paddick (LD)]

I am sorry to intervene, but will the Minister include in the letter to noble Lords how this measure, which will be broad and flexible—I think that is what she said—and at the discretion of the Home Office, will amount to a deterrent?

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I hope not to have to detain the Committee for too long on this admittedly complicated subject of the anomalous historical legacy of comprehensive sickness insurance—hereafter CSI—because I am hoping that the Minister will spring up, interrupt me and pledge that the Home Office will resolve all the left-over problems faced by some EU citizens today. She was kind enough to meet me virtually last week, and I detected a degree of thoughtfulness in her department on the subject. I cannot yet put it higher than that, but I am hopeful.

Attentive listeners might recall that some of us— especially, perhaps, I—banged on about the obscure issue of CSI at various points in the debates on EU withdrawal and, in particular, on the UK’s EU settlement scheme. It is a long and, in my view, sorry history. I will recap as briefly as I can: in the EU citizens’ rights directive of nearly 20 years ago—which I worked on as a Member of the European Parliament, hence my long-standing interest—so-called free movers were required to have comprehensive sickness insurance; that was the term used. On the continent, health systems are often covered by state insurance systems. In the UK, we have the NHS or private health insurance. Although of course we have national insurance, people do not think of the NHS as an insured scheme. So there has been a long-running problem of EU citizens in Britain who are not employed, such as students, the self-employed and homemakers, being expected—although, crucially, not usually told—to have private insurance. This was a matter of legal dispute in Brussels, which rumbled on, and I do not think it ever got resolved.

Fast forward to Brexit and the acute issue of whether those lacking private health insurance were legally resident in the UK and could seek settled status under the withdrawal agreement. Fortunately, the UK Government wisely cut through that residual red tape and said, in an admirably pragmatic decision, that they would let everyone get settled status. However, often unbeknownst to individuals, they fell into one of two groups: the true cohort and the extra cohort. The significance of this distinction arises only—indeed only becomes known —when a settled person seeks to register a child’s birth, to naturalise themselves as British or to bring a family member to join them in this country. Then they face a veritable series of snakes and ladders, because any historical gap in CSI—private insurance—may make them slide down into a pit of reptilian problems. Only when they seek to register a child, bring in a spouse or become a British citizen might they be told: “Aha! Your historic lack of CSI is a bar.” Noble Lords will recall that it was not a bar to them getting settled status, but it raises its ugly head at this later stage. At the risk of mixing my metaphors, it is Kafkaesque.

Certainly, in the case of bids for naturalisation, caseworkers have—but only through guidance—been given discretion to waive this historic need for CSI to meet the lawful residence requirement. On Report in the other place, the Minister, Kevin Foster, said that

“no one has been refused British citizenship purely on the basis of the CSI requirement in free movement regulations.”

The trouble is that if an applicant has to stump up around £1,300, without the certainty of the outcome because of the discretion for the caseworker, that is a gamble—potentially an expensive one.

I am asking the Government to carry through the pragmatic logic whereby they decided to ignore the past lack of CSI for settled status and now to wipe the slate entirely clean for subsequent immigration applications and statuses. On 7 December, Minister Foster told the other place

“we are considering how the issues could be picked up as part of our work on simplification”.

He hoped that MPs would

“be pleased to hear that we are looking closely at that work.”—[Official Report, Commons, 7/12/21; col. 260.]

That was a bit encouraging.

Perhaps the Minister could give us a more solid basis of hope, in relation not just to naturalisation but to the other applications, such as the registration of a baby’s birth and family reunion. I am sure that millions of EU citizens, resident in and contributing to this country, would be immensely grateful for the peace of mind they would thereby secure. Who knows? Their gratitude might rebound on this Government. I hope for good news. I beg to move.

[Lord Paddick (LD)]

My Lords, I hesitate to follow my noble friend, who is an expert on this issue. I declare an interest as a British citizen seeking a residence permit in Norway, where I have lived with my husband for the last 14 years. I have always had access to the Norwegian national health system. My application for a residence permit—the equivalent of settled status—has been outstanding for over 12 months because of issues with comprehensive health insurance.

I start by thanking the Government for their generous approach to EU and EEA citizens seeking settled status in the UK. The Government have taken the general approach that, if someone has been living here for years and was legally accessing the NHS when the UK was part of the EU, they do not need to have, to have had or acquire comprehensive health insurance, even if—as with me in Norway—they are not working or studying. This goes beyond the Brexit agreement, but is entirely consistent with the principle that EU and EEA citizens living in the UK prior to Brexit should be able to continue to live here on the same terms after Brexit. It is the right thing to do. I am grateful to the Government for taking such an approach. I wish Norway would do the same.

My understanding of this amendment is that it goes a step beyond settled status—where EU and EEA citizens who have qualified for settled status seek to be naturalised as British citizens, to exercise family reunion rights as a naturalised British citizen, or to have their UK-born children recognised as British at birth. Even though they do not have to have comprehensive sickness insurance for settled status, it currently appears that they may have to have it for citizenship purposes. This amendment seeks to rectify that anomaly between settled status and citizenship. I am getting a nod, so that is okay.

What this amendment seeks to achieve follows on logically from the generous and welcome stance of the British Government on settled status in relation to comprehensive sickness insurance. We support the amendment.

[Lord Coaker (Lab)]

My Lords, we support Amendment 34, tabled by the noble Baroness, Lady Ludford. We raised this issue in the Commons and pushed it to a Division in Committee. I will not repeat all the points that the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, have made.

I want to make a few observations. This is an opportunity for the Government to clear up an obscure, largely technical anomaly which is having real-world consequences for a number of people. CSI was not required for any EEA or Swiss citizen to live in the UK and to be able to access the NHS. However, it was not generally communicated that this was an additional requirement. Most people now being impacted by this relatively obscure provision had no idea about it.

I do not believe that this should be controversial; it is a sensible change. There are two reasons for that. First, when the Government designed the EU settlement scheme, they chose not to include CSI as a requirement, so they have already decided that this requirement was not necessary and to waive it entirely. Secondly, the Government openly acknowledge that this is causing problems because they have introduced guidance, as we have heard, for caseworkers that some degree of discretion might be exercised where there are compelling grounds for granting citizenship. The amendment simply but constructively builds on that, rather than leaving it up to a vague discretionary power, the flaws of which have been discussed.

This is a simple, clear change to the law to reflect the reality of the situation that prevails in the UK. It is very much in the spirit of rectifying obscure anomalies and barriers in our nationality law, which the early clauses of the Bill, notwithstanding those that are controversial, attempt to do.

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Moved by

[Lord Paddick]

36: Before Clause 11, insert the following new Clause—
“Smuggling
(1) Not less than six months before this Act comes into force, the Secretary of State must publish a report to Parliament regarding discussions with the governments and authorities of other countries, including those bordering the English Channel and the North Sea, concerning the steps taken or proposed to prevent or deter a person from—(a) charging refugees for assistance or purported assistance in travelling to or entering the United Kingdom;(b) endangering the safety of refugees travelling to the United Kingdom.(2) The report must focus on steps other than the provisions of this Act.”Member’s explanatory statement
This amendment requires the Secretary of State to publish a report on the actions that are being taken to tackle people smugglers.

[Lord Paddick (Lab)]

My Lords, I shall also speak to the other amendment in this group. The group is about probing what the Government should be doing in the asylum and immigration space instead of this appalling Bill. As I said at Second Reading, the Bill does lots of things that are unnecessary, unhelpful and unreasonable—in fact, some of it is arguably legal—while it does nothing to directly tackle the real issues, one of which is people smuggling.

--- Later in debate ---

To reiterate, we do not agree with the broad intent behind the proposed new clause, which is to prevent and prosecute people smuggling. Resistance to the amendment is based on the effectiveness of the offence in achieving our common aim of targeting those who assist unlawful immigration to the UK. For these reasons, I hope that the noble Baroness will feel able to withdraw the amendment.

[Lord Paddick (LD)]

My Lords, I thank all noble Lords who have spoken in this debate. It was rather longer and broader than perhaps we expected but it was a debate that needed to be had at some stage so we might as well have had it now. I thank particularly the noble Lord, Lord Coaker, for his Amendment 129, which we of course support, and for his support for our amendment.

I also thank the noble Lord for drawing our attention to the Times article, which does indeed say that the Government’s intention is to arrest all single male migrants crossing the channel. The newspaper estimates that, on the basis of the number who crossed last year, that would mean 20,000 people being put in prison. Now, I know that the Government have a prison-building programme, but I thought that that was to accommodate those people who would be spending longer in prison as a result of the Police, Crime, Sentencing and Courts Bill; so, this does not seem to make much sense. As the noble Lord, Lord Alton of Liverpool, said, the pull factors are completely overwhelmed by the push factors. When you are being bombed and persecuted, you do not worry about pull factors—you just want to get out of there. You want to get to safety and get your family to safety.

As far as the noble Lord, Lord Green of Deddington, is concerned, bombs do not differentiate between men and women. Young men, or families, probably feel that they stand a better chance of making this very hazardous and dangerous journey to get to the UK because there are no safe and legal routes. Of course we are not saying that every eligible refugee should make their home in the UK. We are saying that the UK should take its fair share of asylum seekers—and, by any measure, we do not do that at the moment.

[Lord Green of Deddington (CB)]

Would the noble Lord like to say what he thinks the fair share should be?

[Lord Paddick (LD)]

Yes, I can give the noble Lord an example. Let us look at the number of asylum claims per 10,000 people of countries across the whole of Europe, take the average and say that the UK should significantly increase the number of applications in line with the average number for European countries. That would be a good start, because we are nowhere near the European average in taking people who are seeking asylum. I hope that that answers the noble Lord’s question.

[Lord Hodgson of Astley Abbotts (Con)]

In giving that figure, will the noble Lord take into account the relative density of population of the country?

[Lord Paddick (LD)]

The number of applications per 10,000 population, I think, takes into account the population in each country.

[Lord Hodgson of Astley Abbotts (Con)]

I cannot have been clear. There is a relative density of population. This country is about to overtake the Netherlands as the most densely populated country in Europe. We are already three times as densely populated as France and about one and a half or two times as densely populated as Germany. All I am asking the noble Lord is whether, in giving the figure to the noble Lord, Lord Green, he will allow for relative densities in making that assessment.

[Lord Paddick (LD)]

I am not in the Government. I do not set what the policy will be in relation to the number of asylum seekers that can be brought into this country. The noble Lord, Lord Green of Deddington, asked whether, rather than rhetoric, we could give examples of how we might set the number of asylum claims that this country handles. I gave an example of the sort of thing that could be considered in setting the number of asylum seekers that could come. The noble Lord has suggested something else that might be taken into account, and that may well be something that can be taken into account. However—

[Lord Green of Deddington (CB)]

This will be my last intervention on this matter. We have resettled more than 25,000 people since 2015—the most in Europe.

[Lord Paddick (LD)]

No—I am afraid that the note that the noble Lord was just passed by the Minister is not accurate. That is the number of people settled through resettlement schemes, not the number of people who have travelled to various different countries under their own steam to claim asylum. Therefore, that figure is absolutely, totally misleading.

As far as the Minister is concerned, he says that the Government take people smuggling seriously but do not want to give a running commentary on what they are doing, yet the first half of his response was a running commentary on what the Government were doing. I do not understand that at all. What we want to see is the strategy—the Government’s overall plan—to tackle people smuggling directly. At the moment, the Government’s entire focus appears to be on the victims, the asylum seekers, and not on the people smugglers. The whole purpose of this amendment is to try to refocus the Government’s attention on the real villains of the piece, the people smugglers, rather than on the persecution of asylum seekers, which is what this Bill is about. However, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

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[Lord Horam (Con)]

Can I just—?

[Lord Paddick (LD)]

Order!

[Noble Lords]

Intervention!

--- Later in debate ---

We now have a clause and a Bill under which individuals who have been recognised as refugees would be given inferior treatment, based on the way in which they came to the UK. This is contrary to the UK’s obligations under the refugee convention and inconsistent with the right to private and family life and the prohibition against discrimination under the ECHR. That is why Clause 11 should be removed from the Bill.

[Lord Paddick (LD)]

I am sorry to disappoint noble Lords, but I am the lead signatory on the Clause 11 stand part proposal. The noble Lord, Lord Rosser, has kindly allowed me to speak last from this side.

The United Nations High Commissioner for Refugees—the UN Refugee Agency—leads international action to protect people forced to flee because of conflict and persecution. As many noble Lords have said, a 1951 convention and a 1957 protocol together make the refugee convention, which sets out the UK’s and other signatories’ international obligations.

The UNHCR’s considered view—as well as that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from what I understand—is that the Bill is fundamentally at odds with the Government’s commitment to uphold the United Kingdom’s obligations under the refugee convention. Clause 11 is at the heart of this considered view.

The Government seem to misunderstand the purpose of international conventions, such as the refugee convention. They have recently adopted the phrase “different countries will interpret the convention differently”. Is not the whole purpose of an international convention and its protocols for there to be a shared understanding of what an international convention means, to ensure that each signatory interprets the convention in the same way and acts accordingly? I think that was the view expressed by the noble and learned Lord, Lord Etherton. I will address his concerns about protected characteristics in a future group.

More honestly, some Conservatives—and the noble Baroness, Lady Fox of Buckley, who has apparently given up—have called the refugee convention outdated. They say that we should renegotiate or withdraw from it. That is not the Government’s position. They say that they can treat asylum seekers differently, depending on their circumstances, and that this is in compliance with the refugee convention.

Much has been said—and we have had many briefings on this clause—but I will restrict my comments to the primary concerns of the custodian of the refugee convention, the UNHCR. It says that the “first safe country” principle does not exist in international law, is unworkable and would undermine global co-operation. This is obviously the case. With most refugees—at least before the fall of Afghanistan—making their own way to safety from the African continent, only Turkey and those countries bordering the Mediterranean Sea would be legally able to take refugees, if that were the case. The UNHCR says that already three-quarters of refugees are hosted in countries neighbouring their own. Some 85% are hosted in developing and middle-income countries. As other noble Lords have said, almost all the countries through which refugees pass on their way to the UK already have more refugees and asylum-seeking applicants than the UK does.

This is a global crisis, requiring a global response in which every country plays its part and where every country, including the UK, takes its fair share of genuine asylum seekers. A disproportionate burden should not be placed on border countries; nor should it be that the further north and west you go, the fewer asylum seekers you have to take.

The UNHCR says that the claims of refugees seeking safety in the UK need to be considered solely on the basis of whether the circumstances from which they have fled justify their refugee status. If a refugee is entitled to the rights given to him or her by the refugee convention, all those rights should be exercisable in any convention country, including the UK. This clause would deny recognised refugees the rights guaranteed to them under the refugee convention and international law. That is why it should not stand part of the Bill.

The noble Lord, Lord Horam, described me as an economist. I think my tutor at Oxford, Dieter Helm, would disagree with that. In a previous group, I purposely said that I studied economics at university, but I still have no clue about it. The noble Lord talked about illegal immigrants. Other noble Lords tried to correct him. Genuine refugees are not illegal immigrants.

The noble Lord, Lord Horam, and other noble Lords talked about public opinion. That is all very well, provided that opinion is informed. Some 94% of immigrants to the United Kingdom are not refugees. If the British public understood that this Bill is only talking about 6% of the people who come to this country, I think they would have a very different view of it.

The noble and learned Lord, Lord Clarke of Nottingham, said that the public were concerned about people coming across the channel in dinghies. What the public do not understand is that we do not have record numbers crossing the channel in order to claim asylum by clandestine means. So many are now coming across the channel in dinghies because we have been so good at stopping them getting on the Eurostar and entering lorries and because of security around the ports. It is just that the problem has become a lot more visible than it ever was before. It is not out of control compared with the past.

[Lord Green of Deddington (CB)]

The noble Lord is absolutely right. Asylum has accounted for about 40,000 people a year for the last 10 years. Net migration has been about 250,000. The problem is that immigration is much greater than asylum. I shall be saying more about this

--- Later in debate ---

[Lord Paddick (LD)]

The noble Lord, Lord Green of Deddington, and I agree. This Bill has totally the wrong focus. It is all about asylum seekers. If there is a problem with public opinion on immigration, it should be focused on the 94%, not the 6%.

As the noble Lord, Lord Kerr of Kinlochard, said, with the best of intentions, amendments in this group that attempt to improve this clause are doomed to failure. Any kind of differential treatment of those who are genuine refugees is totally unacceptable and questionably legal. To say that the revising amendments are putting lipstick on a pig—equating Clause 11 to a pig—is insulting to pigs.

Data Protection: Immigration Exemption

Lord Paddick Excerpts

Monday 31st January 2022 Lords Chamber

Moved by

[Lord Paddick]

That this House takes note of (1) the Data Protection Act 2018 (Amendment of Schedule 2 Exemption) Regulations 2022 and the safeguards to protect individual data subject rights, and (2) the Court of Appeal judgment in Open Rights Group and another v the Secretary of State for the Home Department.

Relevant documents: 25th Report from the Secondary Legislation Scrutiny Committee

[Lord Paddick (LD)]

My Lords, I have asked that these regulations be brought to the attention of the House to highlight what appears not to be an isolated incident of the courts ruling against the Government, requiring the Government to change the law, and the Government not complying fully with the court’s findings. In such circumstances, the only course of action is for a further case to be brought against the Government in the courts to rectify the situation, which clearly costs both time and money and needs non-governmental organisations or philanthropists to bring such an action. Such contempt for the courts should be drawn to the attention of the House, hence this Motion.

Liberal Democrats opposed the immigration exemption when we debated the Data Protection Act in 2018. The Government sought to exempt data controllers and let them bypass and restrict fundamental data rights if officials believed compliance with data protection law was prejudicial to the maintenance of effective immigration control through what has become known as the immigration exemption. This could be used by the Home Office to withhold information from those applying for leave to remain in the UK, for example, hampering their ability to challenge Home Office decisions to withhold permission.

The Court of Appeal decided the immigration exemption contained inadequate safeguards to protect individual data subject rights and was therefore incompatible with the UK GDPR. This SI is an attempt to comply with the judgment. Legal minds greater than mine say that this statutory instrument does not bring legislation into line with the Court of Appeal judgment. The court said greater safeguards needed to be incorporated into legislation and not just placed in guidance, but that is exactly what this SI proposes to do. The court said legislation needed to be clear and precise; not simply the withholding of information which is in the interests of immigration control. The court said the consequences of the law must be foreseeable to those it is likely to affect, unlike this SI that relies on guidance that can be changed at any time, without notice and without parliamentary scrutiny.

I understand the Home Office has been distracted—have not we all?—by the Police, Crime, Sentencing and Courts Bill and the Nationality and Borders Bill. The Minister will no doubt agree with me that we need this Motion like a hole in the head, but we will not allow the totally unreasonable tabling of government business to prevent us from bringing matters to the attention of the House when we believe the Government are not complying with the orders of a court. I beg to move.

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[Baroness Williams of Trafford (Con)]

Perhaps I could reiterate that Recital 41 states that:

“Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament”.


We will beg to differ on that, but I am just quoting what Recital 41 says.

To address the court’s concerns, the regulations therefore amend the immigration exemption, primarily to include all the relevant matters in Article 23(2)(a) to (h) of the UK GDPR. It might be helpful if I provide some details on those matters that are not relevant and are already covered in the DPA 2018. For those particular matters, no amendments are needed to the legislation, as well as for those matters that are not relevant. I will provide some details on the measures that are relevant and for which amendments have been made.

Before I do that, I point out that the regulations introduced a statutory requirement for the department to have an immigration exemption policy document before the immigration exemption could actually be applied—that is in response to the noble Lord, Lord Paddick. Regulation 2(2)(b) specified what must be addressed in the policy, and the controller must have regard to it. In answer to the noble Baroness, Lady Hamwee, we are working to tighten the deadlines set by the court, and we did publish the IEPD draft on 10 December on GOV.UK.

Continuing now on what is and is not relevant, the following limbs of Article 23(2) are already sufficiently covered in the DPA 2018. Therefore, no amendments will be made to the legislation in relation to those limbs. They are, from Article 23(2):

“(a) the purposes of the processing or categories of processing; (b) the categories of personal data; (c) the scope of the restrictions introduced … (g) the risks to the rights and freedoms of data subjects”.


The requirement under Article 23(2)(f) to make provision in respect of

“the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing”

is not relevant, as the immigration exemption does not purport to extend data storage periods, and so no amendments are proposed in this regard.

On amendments made in relation to Article 23(2)(d), including the IEPD, the article states that where relevant there shall be provisions for safeguards to prevent abuse or unlawful access or transfer. This instrument will introduce additional measures to address Article 23(2)(d). It will mandate the Secretary of State to have an immigration exemption policy document in place prior to the exemption being relied on; that they must have regard to their IEPD when applying the exemption; that a record is kept of the application of the immigration exemption; and that the data subject be informed of its application, save in certain circumstances.

The IEPD and any subsequent updates to it will be published in a manner that the Secretary of State considers appropriate. Publication will allow for flexibility, where future concerns arise—I will take back the comments that the noble Baroness, Lady Hamwee, made this evening. There is no requirement to go through Parliament and any future concerns, if they arise, could be addressed in a shorter timeframe.

The regulations also specify what the IEPD must address. This additional measure will promote high standards of safeguards in applying the immigration exemption, consistent with those in relation to personal data relating to criminal convictions and offences. The IEPD explains how the immigration exemption must be operationally applied and the circumstances in which data rights might be exempted. These are set out in clear and precise terms. They will form part of Schedule 2 to the DPA 2018 once in force and, as such, will clearly constitute legislative measures.

Amendments are also made to Article 23(2)(e), on provisions as to the specification of the controller or categories of controllers, and to Article 23(2)(h), which states that where relevant there shall be provisions for the right of a data subject to be informed about the restriction, unless that is prejudicial to the purposes of the restriction—we went through that during the previous debate. The instrument will amend the immigration exemption so that the controller will have to inform the data subject that the exemption has been relied upon unless to do so would prejudice the purpose of the restriction, once again proving our commitment to be as open and transparent as we are able.

I am not sure whether it was the noble Baroness or the noble Lord who asked about the consultation process, but they almost played my words back to me. We consulted the parties to the litigation and the ICO and considered carefully their observations and comments, making amendments to the draft as appropriate, but clearly we did not take everyone’s comments on board, and therefore the court process came into being. We have tried, as far as possible, to address the issues through the IEPD.

I hope that noble Lords are now satisfied—I do not think they are, judging by their faces. I shall leave it there.

[Lord Paddick (LD)]

My Lords, I am grateful to the Minister for reiterating the Government’s position. I am also grateful to my noble friend Lady Hamwee for her detailed analysis of the issues, my noble friend Lord Clement-Jones for his support, and the noble Lord, Lord Ponsonby of Shulbrede. To quote the Minister, I think we will have to agree to disagree. Sadly, another case appears to be inevitable. I beg leave to withdraw the Motion.

Motion withdrawn.

Nationality and Borders Bill

Lord Paddick Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[Baroness Falkner of Margravine (CB)]

My Lords, I did not have the opportunity to speak at Second Reading and I apologise for that. I declare my interests in the register and want to clarify that I am speaking in a personal capacity, and I will keep my intervention very brief. I agree with every speech that has been made today, but I particularly want to reference some points made by the noble Lord, Lord Horam.

I gave a speech at the Mauritian Foreign Ministry in 2019 in advance of the United Kingdom’s court case. While my speech was wide-ranging about international affairs and Britain’s role in the world generally, I was astonished by the strength feeling that the people present, mainly civil servants working in the Foreign Office, had about this issue. They were not all affected by the Chagossians’ claims—some were, some were not—but there was a national sense of disbelief that a law-abiding, rules-abiding great power in the world was behaving in this shabby manner towards a very small number of people.

I want to pick up on one point raised by the noble Baroness, Lady Lister, about the reason given by the Minister in the House of Commons as to why he would not support the amendment moved there. He said that it would overturn, and set a precedent over, years of British nationality law. My simple response to that is: the Government profess that we are increasingly bringing rights home, in terms of their assessment of the Human Rights Act and so on. But, as the noble Baroness knows very well, our courts are increasingly taking account of precedent with regard to Ministers’ intentions when they speak in both Houses of Parliament —and Parliament’s intentions when it decides to do whatever it decides to do.

So, if she has concerns similar to those expressed by the Minister in the House of Commons about setting precedent, all she would need to do when this Bill comes back to the Chamber on Report is to make it clear in her speech that she does not intend this Act—a humanitarian Act—to set a precedent in any other way. That is all she has do to reassure the House, and the courts will take account of that. I hope she will listen with great sympathy to the speeches on this matter across the House today, because that is what this small number of people deserve from us.

[Lord Paddick (LD)]

My Lords, as we have heard from my noble friend Lady Ludford, the Chagos Islanders were evicted by the UK Government in the late 1960s and early 1970s to make way for a US naval base, and they are still exiled from their homeland. I would say to the noble Lord, Lord Horam, there are two separate and very distinct issues here. The first, as the noble Lord quite rightly says, is giving the Chagos Islands back to the islanders, which is very much an issue for the Foreign Office. This amendment is about giving Chagos Islanders nationality, and that is very much the responsibility of the Home Office, not the Foreign Office. I would also say, in response to the last speaker and to the noble Lord, that century-long precedents are not necessarily good precedents.

One impact of the eviction has been to deprive descendants of their citizenship rights. The Chagos Islands remain a British Overseas Territory and, as we have heard, were it not for the eviction, they would have passed British Overseas Territories citizenship from generation to generation. In certain circumstances, they could have acquired entitlement to be registered as British citizens and, since 2002, they could have benefited from a general discretion from the Home Secretary to register as British citizens.

As the noble Baroness, Lady Lister of Burtersett, said, the Government’s objection in the other place does not hold water. The situation of the Chagos Islanders is unique and, while the other measures in this part of the Bill to address historic injustices are welcome, they are incomplete without the amendment of the noble Baroness, Lady Lister of Burtersett, which we wholeheartedly support. As the noble Baroness explained, it is narrow in scope, focused exclusively on the Chagos Islanders’ direct descendants and limited to a five-year window, either from the date the amendment comes into force or five years from when the eligible person turns 18. The Minister will have to do more than simply repeat the words of her colleague in the other place to convince noble Lords not to pursue this matter further on Report.

[Lord Rosser (Lab)]

I would like to express our support for this new clause. I wish to be clear about its objectives and will read from the Member’s explanatory statement:

“This amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force, before they reach 23 years old.”


As we have heard, the proposed new clause is intended to rectify a long-standing injustice which impacts descendants of the Chagos Islanders who were forcibly removed from British Indian Ocean territory in the 1960s. I too wish to express my appreciation and admiration of all those who have been raising and pursuing this issue over a number of years, not least my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Whitaker—although I know they are not the only ones who have been working on behalf of the Chagos Islanders.

The issue has significant cross-party support, and the case for this change was powerfully made by a Member of the Minister’s own party in the Commons, Henry Smith MP, who was supported by Members across that House. The clause, as I have indicated, would extend the right to register for citizenship to the grandchildren and other descendants of this population, and it would, as has been pointed out, apply to only a small number of people.

In the Commons, the Minister’s response was not too encouraging, suggesting that this would be too significant a departure from existing law. However, he did say that the Government had heard the strong points made and would

“continue to consider what more we could do, particularly given the low uptake of the £40 million Foreign, Commonwealth and Development Office fund designed to assist this diaspora community, and we will certainly be keen to look at that and, potentially, at how it could allow those people to settle here in the UK.”—[Official Report, Commons, 7/12/21; col. 258.]

What consideration of this issue has since occurred across Government? What have Ministers settled on as to

“what more we could do”?

In recent years, we have raised significant concerns about this Government’s ongoing foreign and defence policy as regards the Chagos Islands. The Bill provides an opportunity for a distinct and limited change to our own law—one which would have a significant impact for those affected by half a century of injustice. This is surely a unique case. Frankly, we are not setting a precedent, which is what the Government seem to have been arguing to date.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I am not a lawyer either, but like my noble friend Lady Blower I have read the Bingham Centre’s report on this. I want to draw your Lordships’ attention to one aspect of it, which I do not think has been mentioned—I apologise if it has. There have been so many good speeches, particularly from the other side of the House, and across the House.

According to the report, the clause includes a retroactive power which would allow what was not lawful at the time to be made lawful now. The report suggests that this is retroactive lawmaking of the worst kind and particularly offends the rule of law. I think we should do away with the clause altogether. I have also read an article by Dominic Grieve, the much-respected former Conservative Attorney-General, on the “ConservativeHome” blog, which I must admit is not normally at the top of my daily reading list. It is an instructive piece. I will not read at length, because time is getting on, but he calls it,

“using legislation as a form of propaganda”

That is from a former Attorney-General and worth taking note.

I also draw attention to the fears that this is creating in the wider public. I have just had an email saying that over 100 organisations have written an open letter to the Prime Minister asking that this clause be removed. I hope that, when we come to Report, the House will remove this clause, which offends the rule of law.

[Lord Paddick (LD)]

My Lords, I am also not a lawyer, but we have Amendment 29 in this group and we join the noble Lord, Lord Anderson of Ipswich, in opposing the Question that Clause 9 stand part of the Bill. I accept that Clause 9 is about giving notice, but the amendments in the group go beyond that. The main concerns that this group addresses are the significant increase in the use of the power to deprive British citizens of their citizenship and the new provision of dispensing with the requirement that the Secretary of State requires notice to be given to a person deprived of citizenship.

There have been many detailed and compelling speeches and I do not intend to repeat them, but I will refer to the powerful and personal speech of the noble Baroness, Lady Warsi, about how this provision is affecting some British citizens. This is not going to affect some British citizens, like me, at all, but when you hear her personal recollections of the fear that this clause is generating and about the importance of the family attaché case—reinforced by the noble Baroness, Lady Mobarik—you understand that, although it may not be targeting particular communities within the cohort of British citizens, it is certainly causing distress among certain parts of that cohort.

To answer the question of the noble Lord, Lord Hunt of Wirral, on what we do with those people who wish to do us harm, I say that we prosecute them in the courts. We do not dump them on other countries.

Depriving someone of their citizenship is a very serious step to take and it is being taken with increasing regularity. To then do away with the requirement even to notify the subject is totally unacceptable. How can anyone take any steps to correct or challenge a decision that they know nothing about? The noble Lord, Lord Hunt, talked about how we notify the unnotifiable. Even in the case that he and other noble Lords referred to, which has been in the courts, the individuals were not uncontactable; they were not unnotifiable within the law. As the noble Lord, Lord Anderson of Ipswich, explained, notice could have been served on that individual, but the Home Office chose not to. In the figures he gave about how many times that has stopped the Home Office from serving notice on somebody of deprivation of nationality, the answer was zero. Clause 9 is not only unreasonable but, based on the facts, unnecessary as well.

With the increased use by the Secretary of State of the power to deprive a British citizen of their citizenship, we support Amendment 28 in the name of the noble Lord, Lord Anderson of Ipswich, which says that reviews of the use of the power should be annual and not every three years. We also agree with Amendment 27 in the name of the noble Lord, Lord Moylan, to restrict the circumstances in which someone can be deprived of their British citizenship. My noble friend Lady Hamwee will address our Amendment 29, which removes the power of the Secretary of State to directly deprive a British citizen of their citizenship, requiring an application to be made to a court.

We agree with the principle behind Amendments 32 and 33 in the name of the noble Baroness, Lady Bennett of Manor Castle, that the powers the Secretary of State has to deprive British citizens of their citizenship need to be curtailed and the process made more transparent, but we believe that our Amendment 29 achieves those objectives.

[Baroness Hamwee (LD)]

My Lords, I sense very well that the Committee would like to move on, so I will be much quicker than I had intended to be, but my noble friend Lord Paddick has asked me to speak to Amendment 29. Before I do so, I cannot resist rising to the challenge about my party’s involvement in the 2014 legislation. Perhaps after this debate I will explain to the noble Lord, Lord Moylan, the concessions gained in negotiation at that time in response to the agreement.

Amendment 29 would change the requirement from an assessment of conduciveness, if that is a word, to the public good to necessity in the interests of national security. I thank the Minister for her letter following Second Reading. I could not help thinking that the two examples she gave of where Clause 9 could apply probably were matters of national security. She says so for one example, and the other is where it is assessed to be

“in the interests of the relationship between the UK and another country”.

That must be very close to national security, unless the issue is a very long way away from the other country’s security, which would not be a good basis on which to move forward. The amendment would change the requirement of an order to allow for judicial involvement. These two examples actually show why the matter should go to a judge.

I am editing my speech as I go. Reference has been made to particular communities being especially affected by this provision. I say to the passengers on what, in my neck of the woods, is the 337 bus to Clapham that something does not need to be designed to have a particular effect. If it has that effect, it falls into the area we are concerned about.

Our amendment would also add to the exclusions a person holding British citizenship by birth, and where it would

“affect the best interests of a child in the family”.

That is looking at a fairly wide family. Use of the power would require an annual review, which I think is in the amendment from the noble Lord, Lord Anderson.

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[The Lord Bishop of Durham]

My Lords, I am trying to imagine how it could ever be in the best interests of a child born and raised in this country not to be given the right to be a citizen of this country. In what possible circumstances could we decide that it would be in the best interests of someone born and raised in this country to be decreed, at the age of 13 or 14, a citizen of another state? That is the situation. You could almost forget the 1961 convention, human rights and so on; we are simply talking about the best interests of the child. You can then back it up with all the international stuff on top. I support these amendments.

[Lord Paddick (LD)]

My Lords, Clause 10 talks about, to quote the Explanatory Notes,

“cases where parents have chosen not to register their child’s birth, which would have acquired their own nationality for their child, which means that the child can register as a British citizen under the statelessness provisions.”

I seriously question how many parents have such a detailed understanding of nationality law that they choose not to register their child’s birth in order to register their child later under statelessness provisions to give them British citizenship. That is just not credible. How many cases can the Minister cite where parents have deliberately not registered the nationality of their child in order for that child to get British citizenship under the statelessness provisions?

This strikes me as a cynical attempt to tighten the law, in a similar way to that in which the Bill tightens the provisions around modern slavery, to give the impression of being tough—bordering on xenophobic —on immigration, when there really is not a problem. It should not be part of the Bill. The power in this clause given to the Secretary of State to deny British citizenship to a child, unless she is satisfied that the child cannot reasonably acquire the nationality of its parents, needs to be qualified at the very least.

Amendment 30 in the name of the noble Lord, Lord Dubs, would give effect to the recommendation of the Joint Committee on Human Rights

“to ensure that British citizenship is only withheld”

from a stateless child born in the UK

“where the nationality of a parent is available to the child immediately”,

without any legal or administrative hurdles. We will support this amendment if this clause stands part of the Bill.

These are decisions being taken by parents and the Secretary of State about an innocent child who has no influence over what is being decided about their future—decisions about something as fundamental as citizenship. For that reason alone, we strongly support Amendment 31: that the best interests of the stateless child born in the UK must be central to any decision whether to grant or refuse British citizenship.

This is what we have come to: seeking to deny stateless children born in the UK British citizenship. As I said on a previous group, British citizenship has benefits to society as well as to the individual concerned. This is not just about the best interests of the child, although it should be; it is about what is in the best interests of society. Keeping children stateless as they grow into adults surely increases their chance of being radicalised and becoming a threat to society. On the last group, the Minister kept talking about high-harm individuals. All the evidence points to one of the most important factors in radicalisation being people not feeling part of society or of this country. Keeping a child stateless surely will increase the danger of that person growing into a terrorist.

[Lord Rosser (Lab)]

My Lords, my name has been added to the proposal to oppose Clause 10 standing part of the Bill, which was tabled by the noble Lord, Lord Paddick. As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. It proposes amending and restricting a vital safeguard in British nationality law that prevents and reduces childhood statelessness. Under our international obligations, we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here.

Through Clause 10, the Government now propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied that a child was unable to acquire another nationality before being permitted to register as a British citizen. That creates an additional and unjustified hurdle to stateless children’s registration as British citizens, which could be difficult for a child or those acting on their behalf to prove.

Rather than helping such children attain citizenship, the Government are intent on putting up more barriers and making it more difficult for children under 18 to be registered. They seem to want to try to deny citizenship, particularly citizenship of the place where the child was born and lives—in fact, the only place they know. No doubt the Government will explain what substantial wrong they consider this clause addresses and what hard evidence there is that that wrong is actually significant, as opposed to it being claimed as such.

Clause 10 can only be highly damaging to a child’s personal development and their feelings of security and belonging, with this exclusion and potential alienation being inflicted in their formative years. The noble Lord, Lord Paddick, referred to the serious implications that can have. There has been no assessment made by the Government of the impact this proposal will have on those children affected, which suggests that this issue does not trouble the Government. As my noble friend Lady Lister of Burtersett said, how can this be in the best interests of the child? This issue is addressed in Amendment 31, reflecting a JCHR recommendation.

In the Commons, we supported an amendment to Clause 10 which sought to ensure that the Government act in compliance with Article 1 of the 1961 UN Convention on the Reduction of Statelessness, the Government having failed to protect the existing safeguards, which are in line with international law, in this Bill. The amendment altered Clause 10, so that British citizenship was withheld from a stateless child born in the UK only when a parent’s nationality was available to the child immediately, without any legal or administrative hurdles. That is as per Amendment 30, moved by my noble friend Lord Dubs, which also reflects a JCHR recommendation.

I am probably being overoptimistic in hoping that there will be a positive government reply to this stand part debate. At the very least, if my fears are justified and we do not get a positive reply from our point of view, I hope that we will be told what the hard evidence is that Clause 10 actually addresses a significant wrong, rather than one being claimed as such.

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I hope that, with those explanations, noble Lords will be happy to withdraw and not press their amendments to Clause 10.

[Lord Paddick (LD)]

My Lords, can the Minister clarify something? She gave us some figures; I did not have a chance to write to them down. She talked about the figures peaking at, I think, somewhere around 1,700 cases. Is that the number of stateless children born in the UK who are granted British citizenship, or are they cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system?

[Baroness Williams of Trafford (Con)]

I assume that it is the latter, but I will write to the noble Lord with the details of the figures I have here. In particular, I will give him more detail about the countries from which these cases derive.

Misuse of Drugs Act 1971 (Amendment) Order 2022

Lord Paddick Excerpts

Tuesday 25th January 2022 Grand Committee

We all know the destructive effect that illegal drugs have on the lives not only of those who take them but of their families and wider society. This is demonstrably the case for GHBRS, which have been weaponised to enable crime. The advice from independent experts makes it clear that these substances are harmful. It follows that they must be subject to stricter controls. I commend the order to the Committee.

[Lord Paddick (LD)]

My Lords, I should remind the Committee that a former partner of mine died from an accidental overdose of GHB.

I thank the Minister for introducing this order. I must admit to being in something of a quandary about how to approach it. On the one hand, I do not believe that reclassification of these drugs to class B is enough. On the other hand, the classification of drugs is largely irrelevant.

I have said before that the classification of drugs under the Misuse of Drugs Act has very little credibility among those for whom it is most important—those who use controlled drugs. I do not know of anyone, particularly young people, who consider what class a drug is in before deciding whether to take drugs or what drugs to take before going on a night out, for example. Similarly, those addicted to controlled drugs pay no attention to the classification under the Misuse of Drugs Act. The reclassification of GHB and associated compounds from class C to class B, as the Minister has explained, further undermines the credibility of the system of classification, as it places GHB in the same class as cannabis. GHB is used to facilitate rape and to commit murder; it can result in sudden accidental death; and it is being moved into the same class as cannabis.

GHB is a colourless, odourless liquid that can easily be mixed unknowingly into someone’s drink, for example. It can and has been used, as the Minister said, as a so-called date-rape drug because, as the impact assessment shows, it can cause drowsiness and amnesia and the victim to slip into and out of unconsciousness. It is also rapidly eliminated from the body, making it very difficult to definitively identify in criminal cases.

But it is worse than that. Taken in small quantities over a period of time, it may not cause critical short-term effects but, over a long period, it can cause mental and social health harms. People can easily become psychologically addicted. GHB is one of the few drugs from which people can die while trying to withdraw from taking it. It is very easy to overdose, as my former partner found out.

Michael apparently took some GHB before going to a party. Forgetting he had already taken some, he took another dose on arrival, realised his mistake and made himself sick to get the second dose out of his system. He was allowed to fall asleep and began to snore. At that point in the evidence, which was being given by the host of the party at the inquest into Michael’s death, the coroner interrupted and said that snoring was a sign of the respiratory system shutting down and, for future reference, was the time to call an ambulance. Michael had not been breathing for about an hour before, the hosts say, they realised and called an ambulance. I was holding Michael’s mother’s hand as we listened to the evidence at the inquest.

GHB is widely used in connection with so-called chemsex, where parties are held and drugs are consumed to overcome inhibitions that some have to such an extent that they cannot have sex without these drugs. GHB is often taken in combination with other drugs such as crystal meth, making it increasingly difficult for some to keep track of how much GHB they have actually taken. As I have described, it is very easy to go from conscious to unconscious to respiratory failure to death, whether accidentally or when GHB is weaponised by sexual predators.

Noble Lords will recall Stephen Port, who was convicted of murdering four young men by administering GHB. In terms of risk to life, if ever any drug should be classified as class A, this is it. My understanding is that, in addition to reclassification, the Advisory Council on the Misuse of Drugs advised the Home Office that a public information campaign was necessary to raise awareness of the dangers these drugs pose, as well as better data collection, such as compulsory testing for GHB in post-mortems where death is unexplained, and increased support and rehabilitation for users and those addicted. In addressing the London Assembly this morning, the Metropolitan Police Commissioner talked about Stephen Port and how, in all cases of sexual assault, they now conduct tests for GHB, even when no complaint is made. I would welcome any information the Minister has about whether that will be extended to post-mortems.

Can the Minister also explain what other measures the Home Office is taking to address—to quote the ACMD—

“strong new evidence of significant harm due to the criminal use of GHBRS, including murder, drug-facilitated sexual assault … and robbery … a marked increase in deaths … physical, mental and social health harms”?

Reclassifying GHB as a class B drug and updating the information on FRANK is simply not good enough.

The reclassification of cannabis from class C to class B was ineffective in terms of harm and use reduction. GHB is characterised here as being only as dangerous as cannabis. It was only when there was publicity about the health dangers of prolonged, excessive use of genetically modified cannabis, the potential to trigger schizophrenia in those with a propensity to it and the harm to the developing brains of young people that cannabis use declined. Education, not criminalisation, caused that reduction in use.

We have seen people who have fallen unconscious from taking GHB being dragged from dancefloors on to the streets to save nightclub operators’ licences. We have seen people hesitate to call ambulances or otherwise seek medical help for fear of being prosecuted for illegal possession of drugs. Criminalisation of drug misuse costs lives. Education on the effects of these substances is where the emphasis should be, not on rearranging the deckchairs on the “Titanic” war on drugs.

If GHB is to be illegal and is to be reclassified, it should be a class A drug. To classify it as equivalent to cannabis is quite obviously ridiculous—but the most important step is a public information campaign to ensure that people are aware of how dangerous GHB and related substances are, despite it being classified by this order only as class B.

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[Baroness Williams of Trafford (Con)]

I thank both noble Lords for their very constructive points during this debate. The case example that the noble Lord, Lord Ponsonby, gave was very pertinent to how we might approach drug use in society: seeing someone as a user but also as a potential victim. The noble Lord, Lord Paddick, may have told me before his moving story about the tragic consequences of using a drug that, as he said, is not only hard to detect once taken but very difficult to detect post-mortem because of how quickly it clears from the body. If someone is in a slightly confused state, having taken it and forgotten that they have taken it, the danger is compounded. I thank them both very much for those stories. On what further work will be done on post-mortem, which in itself is a difficult thing to determine, I will get more information if I can, but we recognise the difficulty of detecting post-mortem. I assume that people whose intent is criminal exploit those difficulties.

As I said earlier, the ACMD recommended that GHBRS be moved from class C to class B. We hope that reclassification will benefit the public by reflecting our new understanding of the harms of those drugs. Increased penalties for offences under the Misuse of Drugs Act, coupled with the effect of the regulation in restricting supply, are expected to deter and prevent crime, but I take the points of both noble Lords about education. The Government’s drugs strategy is not a simple one of legislation; it is about support, education and moving “from harm to hope”, as the long-term strategy on drugs we have in place is called. That symbolises what the Government are trying to do.

On investment—putting our money where our mouth is—we are investing another £780 million to rebuild drug treatment and recovery services, including for young people and offenders, with new commissioning standards to drive transparency and consistency. Strengthening the evidence base for how best to deter use, ensuring that adults change their behaviour, alongside targeted activity to prevent young people from getting into this lifestyle in the first place, is really important.

The noble Lord, Lord Paddick, said that young people do not pay attention to classification—I totally agree—so how would reclassification meet our ambition in the drugs strategy? We need to take a better approach; I think we have all recognised that. No matter who you are and where you use, you should be encouraged to change your behaviour and to face consequences if you do not. We all know that recreational drug use fuels criminal markets—they thrive on it—which has a terrible impact on those involved in supply and the communities in which it takes place.

The noble Lord also asked me about treatment available to support users of GHB. As I said earlier, there is now significant investment in treatment, which will mean that everyone who needs help with their drug use will be able to get it. Substance misuse commissioners and sexual health commissioners will be supported to work together to improve pathways between services for those who use drugs in a chemsex context, where GHB is of course frequently used, and local authorities will continue to play their role here.

On challenging the Government’s approach to drugs, we are clear that it is anchored in education and effective consequences to reduce demand, tough and intelligent enforcement to restrict supply, and evidence-based treatment to aid recovery and co-ordinated global action. As we know, the problem is a global one.

On discriminatory effects and the groups that are disproportionately affected by tougher penalties, I refer now to the MSM community. The ACMD says in its report that men who have sex with men are the largest user group of GHBRS—I do not think that is disputed. They are often taken in the context of chemsex. The changes in classification and scheduling will disproportionately impact this group. However, the potential benefits of reducing the prevalence and the harms from GHBRS will also benefit the group.

As both noble Lords have said, legislative changes in and of themselves will not act in isolation. We expect to respond shortly to the ACMD’s educational and treatment-based recommendations, which will be delivered by the Office for Health Improvement and Disparities. We hope that this will help to counteract any unintended impact of the reclassification of GHBRS.

I hope that I have answered both noble Lords’ questions. I am sure that if I have not, they will intervene on me. If there are no further points, I commend the regulation to the Committee.

[Lord Paddick (LD)]

I thank the Minister for her comprehensive explanation. I was not suggesting at all that it would be wrong if this change had a disproportionate impact on a particular section of society. My main concern is that, to me, with the knowledge that I have of controlled drugs and the way they are used, I cannot think of anything more dangerous in terms of risk to life than GHB and the related substances. Perhaps the ACMD felt that it could not do two steps at once—in other words, it could not go from class C to Class A, because that might undermine its previous assessment of the drug. As I explained, I understand that the long-term effects of cannabis can be quite damaging to people’s mental health, but there is not the same danger of cannabis being weaponised to commit sexual offences, for it to be used as a murder weapon, as it was in the Stephen Port case, or as an overdose resulting in immediate and sudden death. Yet it is being reclassified as the same class as cannabis when it appears to me, from my experience, to be far more dangerous than cannabis. Does the noble Baroness have anything to say on that point?

[Baroness Williams of Trafford (Con)]

I did not for a moment think that the noble Lord was objecting to the disproportionate effect on certain groups. When the ACMD considers things, it considers them very carefully and keeps them under review. I have tried to outline concern today about the stigma caused by increasing the classification on those who use the drugs, but also the desire to help people with the terrible problems that these drugs can cause. I am sure that it will keep it under review, and the noble Lord may well be right: it may recommend further classification in due course.