British Nationality (Regularisation of Past Practice) Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Monday 19th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing the Bill. I agree with his first sentence: it is a short Bill with a clear objective and we in the Labour Party support it. Given that it is a short piece of legislation which codifies the long-standing policy position of the Home Office under successive Labour and Tory Governments, we see no need to offer any amendments and look forward to supporting its speedy enactment. In the meantime, we call on the Government to set out further detail on their plans on issues including: data collection on individuals potentially affected by the Bill; provision of information and support to affected individuals on passport applications; and the timing of implementation across the UK, its Crown dependencies and overseas territories.

First, what steps will the Government take to assess the number of people likely to be affected by the Bill? Will they work with the ONS to carry out further research and publish fuller sets of data on passport applications by affected individuals? What discussions has the Minister had with Administrations in the Crown dependencies and overseas territories on the implementation of the Bill? What assessment has he made of the number of people who may be affected in those areas?

Secondly, can the Minister tell us what advice will be made available to concerned members of the public, and to Members of this House making inquiries on their behalf, to ensure that they are provided with all the information they may need? The noble Lord, Lord German, raised this point.

Thirdly and finally, when will the processing of passport applications which were placed on hold in October 2022 be resumed? Given the delays these applications have already experienced, will there be an expedited process for dealing with them without further delay?

We agree that we need to put the citizenship of this group of people beyond doubt. We thank the Minister for facilitating today’s business and for the meetings that I had with his officials earlier in the week.

Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, we on these Benches support all the amendments in this group, for the reasons my noble friends have explained.

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord has caught me out as I gather my notes.

Amendment 139A, which the noble Baroness, Lady Hamwee, spoke to, is about encouraging victims or witnesses to report offences. The right reverend Prelate the Bishop of Durham also spoke to this. I absolutely understand and support the sentiments behind that amendment. I thought I would reflect a little on my experience as a magistrate in Westminster Magistrates’ Court, where I remember that, about 10 years ago, we had officials from the Home Office sitting in our courts. They were basically there to try to pick up business to do with illegal migrants and asylum seekers, whether they be offenders, witnesses or people who just appeared in court.

It just so happened that one of my magistrate colleagues was a Home Office official—particularly, part of the Border Force organisation but within the Home Office. She explained to me that it was a pilot that had worked for three months, I think from memory, but which was stopped after that period because they just did not pick up enough business. It was not worth the officials sitting in court for that period. I thought that was an interesting reflection on the points which the noble Baroness made. I absolutely understand the point which she and the right reverend Prelate the Bishop of Durham made about people being reluctant to come forward, because of their distrust of the criminal justice system as a whole, However, my practical experience of that, as just described—and Westminster Magistrates’ Court deals with perhaps the most diverse group of people to pass through the doors of any magistrates’ court in the country—was that not a lot of business was picked up. That is my first reflection.

My second reflection is on Amendment 139B, regarding the implementation of the report by the Chief Inspector of Prisons on immigrants in detention centres. This also goes to the point made by the noble Lord, Lord German, about the Brook House inquiry. Again, a few years ago I was a lay inspector and in that role I went to Littlehey Prison with the then chief inspector. It was an unannounced visit and extremely illuminating to see the prison itself, which was a sex offenders’ prison, but also to talk to the inspectors about how they conduct their activities and how important it is to have unannounced inspections. The way they explained it to me was that the inspections need to be, on the one hand, unannounced, but perhaps even more importantly, regular, and there need to be follow-up inspections. The prison officers and governors whom I met were very sure that they would be continually inspected over a period of time. It would be a working relationship with the inspectorate to try to ensure that standards were kept up.

I am sympathetic to Amendment 139B, as it is a process; it is not a one-off. I very much hope that the Government have confidence in their inspectorate to put in place, over time, an inspection regime which is in-depth and can do its best to maintain standards, while identifying any shortcomings it may see on its inspections. Nevertheless, I look forward to the Minister’s response.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I will not detain the Committee by going through Clauses 61 to 67 in turn. They contain entirely standard provisions, relating, for example, to the making of regulations under the Bill, commencement, extent and the short title. Instead, I will focus on the various amendments in the group and on the contributions that noble Lords helpfully made from a variety of perspectives.

I will first deal briefly with government Amendment 139D. This relates to the standard power in Clause 66(5) which enables the Secretary of State, by regulations, to make transitional or saving provision in connection with the commencement of any provision of the Bill. Amendment 139D simply enables such regulations to make consequential, supplementary and incidental provision and different provision for different purposes. Again, this is an entirely standard provision to facilitate the smooth implementation of an Act.

Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for introducing her clause stand part debate. As she said, the clause adds behaviours that would be considered damaging to the credibility of an asylum or human rights applicant by amending the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 to widen false “passport” to false “identity document” which ensures that by presenting false documents, failing to produce documents or destroying documents an applicant damages their credibility. It also adds electronic information to the list. If an applicant fails to disclose passcodes or electronic devices, their credibility can be damaged.

In a sense, this would not be a particularly controversial part of the Bill. However, there have been reports about confiscation of mobile devices which has left migrants unable to contact the outside world or to provide the electronic documents needed for their applications. The noble Baroness, Lady Ludford, referred to the recent High Court case where the Home Office policy on blanket mobile seizure was found unlawful. She also referred to the Minister saying that Clause 14 provides fresh powers through the Bill to respond to the High Court judgment.

I thought that the noble Baroness raised interesting questions about the scope of this clause and whether it goes beyond what is covered in Clause 2 and how widely it will apply. The tone with which she introduced her clause stand part notice seemed to be seeking information and reassurance regarding these enhanced powers. I look forward to the Minister’s response.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to speak briefly only to Amendment 133, to which I would have attached my name had there been space. In the interests of time, I will overlook the other amendments in this group.

I do not know how many noble Lords took the opportunity of our lunch break to join the British Red Cross, which was holding an event with its VOICES Network downstairs. It was launching an excellent report that I commend to your Lordships’ House, We Want to be Strong, But We Don’t Have the Chance: Women’s Experiences of Seeking Asylum in the UK. A large number of the contributors to that report were at the event. It is of particular relevance to Amendment 133 that one of the first things one of them, a very senior medical professional—again, like the right reverend Prelate, I am going to anonymise this as much as I can to make sure that I do not identify anybody—said to me was, “I want to work”; we know how much need we have for her professional skills. Another, a business master’s graduate, also said to me that they wanted to work. These are people who are experts by experience, and that is one of the first things they say when they have an opportunity to speak to a politician.

I also want to make a point that no one else has made; I saw the noble Lord, Lord Wigley, earlier so he may have made this point already but I will make it in his place. In responding to the Migration Advisory Committee’s call for evidence in relation to shortage occupations in the UK, the Welsh Government stressed that asylum seekers should be allowed to work. Their submission said that

“asylum seekers bring with them a wealth of experience, skills and knowledge, and as such it is a missed opportunity to not allow asylum seekers to work. We urge the UK Government to reconsider its decision”

on this issue.

We have been talking in the abstract a lot so I want to draw on one other account—a piece of practical evidence of actual individuals. We have heard a lot about the housing of asylum seekers in hotels and, I am afraid, seen a great deal of horrific attempts to stir up xenophobia and local concern about that. However, I want to tell the story of the 100-plus asylum seekers who have been housed in a hotel in Thatcham in West Berkshire for up to a year. They started a litter-picking group, and then a broader volunteering group. Each charity shop in Newbury and Thatcham now has one or two asylum seekers there regularly to help out. They are a great example of people contributing despite our attempts to stop them doing so; indeed, they have won a local award recognising the contribution of their volunteering.

This is particularly relevant to Amendment 133 when we look at what those asylum seekers who have been litter picking and volunteering in charity shops are. They are doctors, teachers and engineers. They are making a wonderful contribution but surely it would make more sense to allow them to work.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to speak briefly to the two amendments in the name of my noble friend Lord Coaker. The new clause proposed in Amendment 139FA

“requires the Home Secretary to establish a process to fast-track asylum claims from safe countries”,

while the proposed new clause in Amendment 139FC

“seeks to require regular reports from the Secretary of State on progress toward eliminating the current backlog of asylum cases”.

As of March, there were 172,758 asylum seekers in the UK waiting an initial decision on their case, with 128,812—that is 75%—waiting longer than six months. The backlog is so extreme that the Government have tried to quietly drop a key measure of the Nationality and Borders Act to speed up 55,000 people who have arrived over the past year.

The purpose of these two amendments is first to re-establish, if you like, the fast-tracking so that the people who are very likely to succeed in their appeals are dealt with as quickly as possible and, secondly, to monitor the situation to see how it is progressing. In the press I read that Robert Jenrick, the Immigration Minister, said he believes that reducing the backlog would increase the pull factor for those seeking to apply for asylum. Can the Minister confirm whether the Government’s view is that by decreasing the backlog you are increasing the pull factor? People taking part in today’s debate would be very sceptical of that, but I wonder whether the Minister can confirm that that is indeed the Government’s view.

We have had a wide-ranging debate, and I agree with the noble Baroness, Lady Stowell, that the debate has gone far wider than the Bill and has been focusing on right to work and issues such as that, but what I seek to do in this brief contribution is to talk specifically to the amendments in my noble friend’s name, and I look forward to hearing the Minister’s response.

[Lord Paddick (LD)]

My Lords, we support all the amendments in this group. On Amendment 133 in the name of my noble friend Lady Ludford, it makes complete sense to ensure that asylum seekers are not a burden on taxpayers as soon as practicable. If the Government do not agree, perhaps they should ensure that claims are decided within the three or six months suggested in the amendment.

As the right reverend Prelate the Bishop of Durham says, a lot of asylum seekers who are granted permission to work send money back home, as it were. Surely that helps to ensure that people stay in the country where they are and do not add to the problem of asylum seekers.

On Amendment 150, there is no point in creating an even greater backlog until the Government have addressed the existing one.

On the amendment from the noble Lord, Lord Coaker, fast-tracking claims from countries with high rates of success makes complete sense and any ongoing impact assessment should include the impact of the Act on the backlog.

The noble Baroness, Lady Stowell, made a significant contribution and I hope she does not mind me responding to it. I think she is absolutely right that we have to bear in mind how all this is viewed by members of the British public, but we have already heard one noble Lord— I cannot remember who it was—saying that 77% of the public support allowing asylum seekers to work.

On the issue that the noble Baroness raised around job vacancies versus UK citizens who are jobless, the adult social care system cannot attract British workers, to the extent that the Government allow special provision for foreign workers to come in and fill those vacancies. The agriculture sector cannot attract British workers—for example, seasonal workers to pick crops—and the Government make special provision to allow foreign workers to come into the country. I do not know whether the figure that the noble Baroness quotes of 5 million is right, but the Government allow foreign workers to come in and do those jobs. Why can asylum seekers not do those jobs while they wait for their application to be decided by the Government?

Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, as my noble friend Lady Ludford said, proper scrutiny of the Bill rests with this House, as the Commons was not given sufficient time to scrutinise it, so that is what we are determined to do.

Bearing in mind the draconian measures in the Bill, proper legal aid must be provided, including for those referred to the national referral mechanism, particularly in light of the changes introduced by the Nationality and Borders Act that adjusted the reasonable grounds threshold and the standard of proof required—and not just to those served with a removal notice. We also support Amendment 120A to ensure that legal aid is provided, rather than just allowed.

In response to the noble Baroness, Lady Lawlor, it seems an extraordinary argument to say that, because British people are denied justice and cannot access legal aid, people seeking asylum should also be deprived of justice. Surely, the answer is to provide justice to everyone who needs it.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments looks at legal aid in the context of the Bill. Prior to a removal notice, the Bill does not provide legal aid to a person in detention in England and Wales. There is no provision for a person awaiting a decision on removal in Northern Ireland and Scotland, so I wonder whether the Minister can say something about the position in Northern Ireland and Scotland.

The Bill provides an extremely short timeframe of eight days for an individual to seek legal advice and representation and provide sufficient instructions for a representative to lodge a suspensive claim with compelling evidence against removal to a third country. The non-government amendments in this group would expand legal aid provisions to persons potentially facing removal. The government figures suggest that around half of asylum seekers already do not have access to legal aid advice, with advice being much harder to obtain outside of London. My noble friend Lord Bach amplified that point very powerfully, when he gave the figure of the gap of 25,000 between the numbers of asylum applicants and legal aid provisions in 2022, showing that about 50% of asylum applicants have no legal advice.

My noble friend also gave a powerful exposition on the background of legal aid following the cuts we saw with the LASPO Act. The noble Baroness, Lady Lawlor, also acknowledged those cuts, which have been extended from when the LASPO Act originally came into force. As my noble friend Lord Bach summed up very effectively, the overwhelming danger of Clause 54 is that it becomes a sham and a fig-leaf; the rights may be there on paper, but they will never be provided in practice. The amendments in this group are seeking to ameliorate that fear.

The noble Baroness, Lady Ludford, also summed up this group of amendments very effectively, when she talked about the importance of legal aid for making fair decisions. I agree with her that this will reduce appeals, will let applicants properly understand the process of what is happening to them, and, perhaps above all, will uphold the UK’s reputation as a country which is ruled by law, as people need to understand the laws being applied to them.

This has been a relatively short group, but it goes to the heart of the Bill, because it concerns what is available in practice to people coming over and applying for asylum. They need to understand the situation they are in and that they will be treated fairly. Reflecting on my own time sitting in courts, I say that people may not like the decisions being made, but it is a much better position when they understand them. It will resonate beyond the courtroom itself, if people understanding the decisions being made about them.

Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as we have just heard, Clauses 29 to 36 place a permanent bar on those who fall within the scheme outlined in Clause 2 from lawfully travelling to the UK or securing settlement or British citizenship through naturalisation or registration; this is subject only to exceptions to comply with international agreements or where there are compelling circumstances. If the Bill fails to succeed in its aim of removing people, there will likely be a whole class of people stuck in the UK for extended periods without access to a system through which they can obtain lawful status. Therefore, they will be unable to work or rent a home. The noble Baroness, Lady Ludford, expanded on this point eloquently. To sum up the noble Baroness’s speech: she wants compliance with international law. We support her Amendment 98EA.

The noble Lord, Lord Moylan, gave a clear exposition of the Government’s intentions with this Bill, and on the different statuses on the second step, as he put it—the ban on acquiring citizenship by naturalisation but also by registration. As he said eloquently, registration is not a concession or a reward for good behaviour but an entitlement. His amendment seeks to address that point, with particular examples given in his speech.

The noble Baroness, Lady Brinton, also spoke about the specific cases of Hong Kongers and BNOs, and how this Bill could cut across—or seems to cut across—their potential rights. My noble friend Lady Lister, who added her name to the amendment in the name of the noble Lord, Lord Moylan, attacked the problem from the perspective of concern for children who could be subject to this ban because of the actions of their parents. As she rightly argued, this is not fair on those children; she wants to revert to the original wording of Clause 35.

We support the amendments in this group. I look forward to the Minister’s response.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, I thank all noble Lords who have spoken in this short debate. It has been particularly illuminating; I have noted the quality of the speeches and hope that I can answer the questions that have been put in relation to these clauses.

Clauses 29 to 36 prevent a person who has entered the United Kingdom unlawfully, and meets the conditions in Clause 2, being able to lawfully re-enter the UK, secure settlement or become a British national through naturalisation or most registration routes. A person who arrives in the UK illegally should not be able to make the UK their home and eventually settle here. Settlement in the UK confers significant benefits, such as the freedom to study, work and access healthcare and public funds; of course, it is also a pathway to British citizenship which, in turn, confers further benefits.

Allowing someone who arrives in the UK illegally to settle clearly creates an incentive for people to make those dangerous journeys. It is a vital part of the deterrent effect that those categories should be included. This is because people taking advantage in that way is unfair. It is unfair on those who play by the rules and come here legally, it is unfair on those who are genuinely in need, as it constrains our capacity to help, and it is unfair on the British public.

Clause 29 precludes people who meet the conditions in Clause 2 from ever settling here and, once removed, being able to re-enter. This is achieved by preventing them from being granted any form of permission through the immigration system. We do, however, recognise there will be occasions when we will need to waive the bans and grant permission; for example, as the noble Baroness, Lady Lister, noted, where not granting permission would contravene our obligations under the European Convention on Human Rights. Clause 29 balances our need to disincentivise people from making dangerous journeys to the UK by ensuring that there is no benefit to be gained from entering the UK illegally, while recognising there may be a limited number of scenarios in which it is appropriate to grant permission. I put it to the noble Baroness, Lady Ludford, that this is a proportionate and balanced provision. Therefore, I do not recognise her description of the Bill as “wielding a sledgehammer”.

Clause 30 sets out that a person will not be eligible for British citizenship, British Overseas Territories citizenship, British overseas citizenship and British subject status if they enter the UK unlawfully and meet the criteria in Clause 2. The ban will also apply to someone who enters a Crown dependency or British Overseas Territory unlawfully in a similar way. We have included the other types of British nationality as we do not think it is right that illegal entry should allow a person to acquire any form of British nationality, but also to prevent a person using it as a stepping stone to register as a British citizen. Illegal entry into the UK, a Crown dependency or an overseas territory will have the same effect. We do not want people to be able to enter illegally in any of those locations and use that as a way to acquire citizenship and, ultimately, a right to enter and live in the UK.

Clauses 31 to 34 set out the routes to which the citizenship ban will apply. The key citizenship route which will be affected is naturalisation, as my noble friend Lord Moylan noted. This is the main way in which adults born outside the UK can acquire British citizenship and British Overseas Territories citizenship. The ban will also apply to certain registration routes. However, those applying under provisions that address historical inequalities in British nationality law will not be affected. This includes people born before 1983 to British mothers, those who missed out on citizenship because their parents were not married or those applying on the route for descendants of Chagossians.

Clause 35 allows us to exempt a person from the citizenship ban if treating them as ineligible for citizenship would contravene our obligations under the human rights convention. This means that if a person can demonstrate that, for example, their right to a family or private life can be met only by us considering a grant of citizenship, we will not exclude them from applying. We do not think that acquiring citizenship will usually be essential to allow a person to have a private or family life in the UK; other options, such as leave to enter or remain, may satisfy that. However, in very exceptional cases where considering a grant of citizenship is needed to prevent us breaching our ECHR obligations, Clause 35 may apply. We will publish guidance for nationality caseworkers setting out how to assess human rights in the nationality context.

The amendments tabled by my noble friend Lord Moylan would remove registration routes for British citizenship and British Overseas Territories citizenship from the ban so that it applies only to naturalisation. They would also remove the bans on becoming a British overseas citizen and British subject through registration. My noble friend Lord Moylan has described registration as an “evidence-based process”, with decisions not based on the Secretary of State exercising discretion. I am afraid to say that I disagree with my noble friend as this is not universally the case: some registration routes are dependent on ministerial discretion and there is no automatic entitlement.

Let me explain this further. As my noble friend Lord Moylan said, not all registration routes are included in the ban. Those that allow people to acquire British nationality they missed out on because of previous unfairness are not included; nor are the specific routes for children born in the UK or stateless persons. However, registration routes that rely on residence or specifically for children born outside the UK are included in the ban, as we expect people who want to become citizens to have followed a compliant pathway, including having entered lawfully.

For example, Section 4(2) of the British Nationality Act 1981 allows people who already hold another form of British nationality to register as a British citizen on the basis of five years’ lawful residence in the UK. The residence requirements mirror those for naturalisation: the only significant difference between the routes is that other British nationals wanting to register under that route do not need to meet the knowledge of English and life in the UK requirements. Given that the residence requirements are the same as for naturalisation, it would be appropriate for them to be subject to the ban in the same way as naturalisation applicants. This is the route that BNOs can use if they come to the UK under our scheme and become settled: they can go on to apply for citizenship. It is right that those who apply and come through legal routes should have the right to become citizens, but we do not think it is right that those who enter unlawfully should benefit.

The registration routes for children who are subject to the ban include two routes for children born abroad to British citizens by descent. Both have a residence element: either that the parent lived in the UK for a period of three years before the child was born or the family lived in the UK for the three-year period before applying to register the child. We do not anticipate that children of British citizens would be brought to the UK on a small boat when there are routes available to them as family members, but should that happen, the child will not be able to register as a citizen.

The other child route that is included in the ban is registration of children at the Home Secretary’s discretion. The only statutory requirements are that the child is under 18 and is of good character if over 10. However, guidance sets out expectations about when a child will be registered. The normal expectation is that the child will be settled in the UK, and that the parents will be British, or at least settled. It is unlikely that children who enter the UK unlawfully would be able to meet the normal expectations of having a British or settled parent, being lawfully present and having completed a period of residence, as under the Government’s proposals, children who have entered illegally will be removed. The citizenship ban will, however, prevent a child being registered under this provision unless there are ECHR grounds. This fits with the Government’s intention to discourage parents from bringing children to the UK via dangerous methods, including crossing the channel in a small boat, and that such a child cannot become a British citizen and create a means for the family to stay.

My noble friend raised, quite rightly, the issue of compassionate cases. As I have said the ECHR exemption will allow us to consider registering, in rare and exceptional cases, where a person meets the statutory requirements and granting citizenship would be essential to allow them to exercise their family or private life.

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[Lord Paddick (LD)]

My Lords, my noble friend Lady Ludford has clearly explained why Clauses 43 to 51 should not stand part of the Bill. The Government just seem to dismiss all the safeguards around access to justice and making sure that the court process has integrity, to speed up any sort of appeal process against decisions under this Bill, to the extent that they are destroying the whole principle of justice. That is why we do not believe these clauses should stand part of the Bill.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness, Lady Ludford, for explaining this really quite complex area. The only thing I was going to ask the Minister was whether he could explain the timeframes within which the appeal must be lodged: seven days for the Upper Tribunal and then 23 days for a further appeal to the Court of Appeal or the Court of Session. Are those timeframes standard in these types of cases? How have they arrived at them?

The noble Baroness, Lady Ludford, expressed the case very fully and I thought the way the noble Lord, Lord Paddick, summarised it was a fair comment about the accessibility of these processes to people taking part in them.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, Clauses 43 to 51 are an essential part of the scheme of the Bill, just like Clause 54 on legal aid, which we discussed earlier. I think by now your Lordships are very familiar with the scheme of the Bill but, just briefly, for the record, I will try to outline these clauses and answer the questions that have arisen as we go through.

The first thing the Bill does is to render certain claims —protection of human rights and modern slavery claims—non-suspensive so that making them does not delay the removal of an illegal migrant to a safe third country. However, the Bill then provides safeguards for removal in two cases: where there is a serious harm suspensive claim and where there is a factual suspensive claim—there has been a mistake as to whether the conditions are met.

Then the Bill goes on to provide that if the Secretary of State refuses those claims there is then an appeal to the Upper Tribunal. In general, the Government’s position is that that provides proper safeguards. It does not dismiss safeguards—if I may use the phrase just used by the noble Lord, Lord Paddick—it strikes a fair balance between expedition and fairness to the migrant. It does not in any way destroy justice because the ultimate decision in relation to the suspensive claims is in the hands of a very respected and senior judicial body and legal aid is available in order to bring those claims.

The basic timetable, to answer the question from the noble Lord, Lord Ponsonby, is that there are seven working days from receipt of the notice of removal to bring the claim, subject to the possibility of an extension if that is necessary to secure justice in a particular case. The 23-day period—I think I am right although I will correct myself in writing if I am wrong—is for the Upper Tribunal to take its decision. Those time limits for appeals are specific to this Bill. This is an expedited procedure that provides strict time limits, but in the Government’s view they are fair time limits.

One should make it clear that we have two situations. The first is where the Secretary of State certifies that the claim is clearly unfounded. In that circumstance, the person concerned has to apply for permission to appeal. That is the current approach, as I and the Government understand it, in the asylum and human rights system. It is effectively to weed out unmeritorious appeals as those designed to do no more than frustrate removal. Those cases are decided by the tribunal on the papers. Similarly, if you make a late suspensive claim—a claim out of time—it will be considered only if there are compelling reasons. That is at the level of the Secretary of State but if they consider that there are no compelling reasons, you can go to the tribunal and say, “There are compelling reasons why I was out of time”. Again, that is for the tribunal to decide on the papers.

These provisions are designed to ensure that claims are made at the earliest opportunity and prevent late claims being used to frustrate removal, undermining the overall effectiveness of the claims process. Once a claim has been made to the Secretary of State but not refused, and then to the Upper Tribunal as well, the whole process is suspended until the tribunal has taken a decision, so there is protection during that period.

Clause 47 also deals with another problem that constantly arises in this kind of case, where somebody tries to raise something new at a late stage. Again, there is a procedure for dealing with that: effectively, that the new matter can be considered by the Upper Tribunal only if there have been compelling reasons for it not to have been raised earlier. In relation to late claims, claims out of time and new matters, there are those checks to prevent the system being abused.

Clause 48 then requires the various timeframes to be respected. It places a requirement on the tribunal procedure rules to secure that those timeframes are respected. As I have just said, there are seven working days for the submission of a substantive appeal—I think that is in Clause 48(1)(a)—and a 23 working-day period for the tribunal to decide that substantive appeal. Those timeframes may, as I say, be extended. What we have here is a process that, in the Government’s view, is essentially a fast-track process but none the less a fair and balanced one.

[Lord Ponsonby of Shulbrede (Lab)]

These very short timescales are no doubt part of the deterrent effect which the Government are seeking to put in place through the Bill. What estimate have the Government made about the workload on the tribunal process? Is it really sustainable to have such short timescales?

[Lord Bellamy (Con)]

My Lords, the Government have been working closely with the senior judiciary to ensure that we have the relevant judicial manpower and resources to deal with the workload. I am not, as of this moment, in a position to give specific details but one of the reasons for allowing the judges of the First-tier Tribunal to sit in the Upper Tribunal, which gives us a pretty wide pool to draw upon, is that it enables us to draw upon recorders, retired judges and others. The Government are at the moment satisfied from the discussions they have had that there will be sufficient judicial capacity to meet any reasonably foreseeable workload, but that is a perfectly good question and I thank the noble Lord for raising it.

I will come in a moment to the point from the noble Baroness, Lady Ludford, about judges in general, but I will first deal with government Amendment 115A, which provides for the first set of tribunal rules effectively to be made by the Lord Chancellor rather than, as would normally be the case, by the Tribunal Procedure Committee. That committee normally takes quite a long time to make new rules—maybe 12 months or more—so, since we are working to implement the Bill as soon as practicable, government Amendment 115A provides for the first set of tribunal procedure rules, including these time limits, to be made by the Lord Chancellor so that we have the relevant tribunal procedure rules in place as soon as possible after Royal Assent.

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[Lord Paddick (LD)]

What I am hearing from the noble Lords opposite is that if the Government ignored Rule 39 it would not be a breach of international law. But the Government accept that Rule 39 is binding on them; otherwise, there would be flights to Rwanda, surely.

The other thing to say about the two clauses is the stunning silence about Clause 52—absolutely no comment at all. For the noble Lords opposite to say this is not about the rule of law when they have said nothing at all to defend Clause 52 is quite extraordinary.

I think enough has been said—and there has been a very interesting sideshow for 20 or 25 minutes from the noble Lords opposite—but it takes us no further forward as far as the arguments here are concerned. Even if one was to accept the arguments of Policy Exchange, there has been no argument about the fact that Clause 52 is contrary to the rule of law, and that is why we believe that neither Clause 52 nor Clause 53 should stand part of the Bill.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I think everybody is really waiting to hear what the Minister has to say about this. It has been a fascinating debate and, as the noble Lord, Lord Carlile, said, it appears that Government, whatever the rights and wrongs, accept Rule 39—the Minister made that very clear in what he read out—and yet we have had the silence about Clause 52. I do not think I can add anything of substance to the debate at this stage and I look forward to what the Minister has to say.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 52 underpins the suspensive claims and appeals process by prohibiting the courts from granting interim remedies in relation to any other proceedings which would prevent or delay the removal of an illegal entrant subject to the duty. Amendments 116 and 117 would require the Home Secretary to provide a statement to Parliament, on a case-by-case basis, explaining why the courts should prevent the granting of an interim remedy and for this to be approved by the other place—and only the other place, I note—before the restrictions set out in Clause 52 could come into effect.

These amendments seriously risk undermining our efforts swiftly to remove illegal entrants from the UK. To prevent the courts granting an interim remedy and delaying removal, it would be necessary to seek parliamentary approval in every case subject to the duty to remove. This, I am sure the Committee will agree, is simply not practicable; nor is it necessary or appropriate.

These amendments are fundamentally misconceived. They proceed on the basis that there is an individual rationale for barring interim remedies in each case, but the rationale is universal; namely, that the Bill itself provides for a mechanism for a person subject to the duty to remove to challenge their removal and for removal to be suspended while the claim and any appeal to the Upper Tribunal have yet to be determined. That being the case, it is the Government’s contention that there is no case for the courts separately to grant interim remedies. The blanket approach taken by Clause 52 is therefore entirely appropriate, and I suggest to the Committee that that is an entire answer to the second point made by the noble Baroness, Lady Chakrabarti.

Clause 52 will encourage compliance with the suspensive claims process. It also provides an effective safeguard against other types of legal challenges being brought in an attempt to thwart removal. This will ensure that our ability promptly to remove those with no legal right to be in the UK is not undermined.

Turning then to what may be seen as the main event, Clause 53, I want to make it clear from the outset that the UK is fundamentally committed to the international rules-based order and there is nothing in this clause which requires us to act incompatibly with our international obligations. Under Rule 39, an interim measure may be indicated by the European Court of Human Rights where there is an imminent risk of irreparable harm. The inclusion of Clause 53 reflects the concerns we have raised with the Strasbourg court about its interim measures process, as identified by the noble Baroness, Lady Chakrabarti.

We want the interim measures process to have greater transparency and fairness to ensure the proper administration of justice, reflecting what we would apply in a domestic scenario, as identified by the noble and learned Lord, Lord Hope. This includes clear and reasoned decisions and an opportunity to make meaningful representations before and after a decision is made. It cannot be right that our ability to control our borders is undermined by an opaque process conducted at the last minute, with no formal chance to put forward our case or to appeal that decision. This process risks derailing our efforts to tackle the people smugglers and prevent people making dangerous, illegal and unnecessary journeys across the channel.

Clause 53 affords the Home Secretary, or other Minister of the Crown, personal discretion to suspend the duty where an interim measure has been indicated. This will mean that a Minister may suspend removal in response to a Rule 39 interim measure but, crucially, is not bound by UK law to do so. This will be dependent upon the individual facts of each case. For broader context, I direct noble Lords to the recent and well substantiated paper by Professor Ekins of Policy Exchange, already discussed by the Committee, together with its valuable forewords written by Lord Sumption and the noble and learned Lord, Lord Hoffmann. The key arguments made by Professor Ekins were helpfully summarised and powerfully expanded upon by my noble friends Lord Sandhurst and Lord Wolfson, who I know will have given great consideration to the Strasbourg court’s jurisdiction and procedural rules in their preparation for the Committee.

Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank my noble friend Lady Lister for introducing this group of amendments, which concern the duty to remove those who are not detained, and their access to support because they would be otherwise destitute.

Clause 8 amends relevant legislation to provide support on the same basis as for those whose claims are declared inadmissible under Section 80A or 80B of the 2002 Act. My noble friend introduced her amendments in great detail. They would allow for appeals to be made on decisions around support. They would allow financial support to be provided where accommodation support is not needed. They would allow people awaiting decisions on accommodation support to be provided with interim accommodation. They make it clearer that if someone has not yet been removed from the UK, despite the duty from the Secretary of State to do so, they face a genuine obstacle. As my noble friend said, the Government must ensure that no one awaiting deportation faces destitution and danger.

Given the questions about the Government’s ability to actually remove people given the lack of returns agreements, what assessment have the Government made of the support that will be needed? We read in the newspapers that the Government are renting two more barges. Of course, the numbers the barges can accommodate will not touch the sides of the amount of accommodation that will be needed.

My noble friend Lady Lister and the noble Lord, Lord German, asked a number of detailed questions, as did the right reverend Prelate the Bishop of Durham, who I suspect is getting his train as we speak. As the right reverend Prelate said, in practice it will be local authorities, faith groups and voluntary organisations which will be picking up the pieces if there is not adequate government support for people who find themselves in this position. I will listen to the Minister’s response with interest.

[The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)]

My Lords, Clause 8 ensures that there is support available to individuals who would otherwise be destitute where their asylum claims have been declared inadmissible, pending their removal from the United Kingdom. It also seeks to incentivise those whose asylum claims have been declared inadmissible to comply with the arrangements to remove them from the UK, whether that be to their country of origin—where it is safe to do so—or to a safe third country. These provisions will support the overall objective of the Bill and ensure that those who come to the UK illegally will not be able to stay. Pending their removal, we will ensure that we support those who are complying with arrangements for removal. I make no apology for introducing these measures to protect and preserve the integrity of our asylum and migration system.

I am grateful to the noble Baroness, Lady Lister, for setting out her amendments to Clause 8. Amendments 57C and 57F seek to create a right of appeal against a decision to refuse an application for support under Section 95A of the Immigration and Asylum Act 1999, which would take effect only if supporting provisions in the Immigration Act 2016 are brought into force. The Government keep these matters under review but I can answer the noble Baroness’s question directly: there are no current plans to bring those measures into force, and so we consider these amendments unnecessary. Therefore, those who are refused support under Section 4 of the 1999 Act will still be able to appeal the decision.

Similarly, we do not consider Amendment 57D necessary. As I have told noble Lords frequently throughout Committee, our intention is to detain and swiftly remove people. We expect that the overwhelming majority of those who fall within the scope of the duty to remove will need accommodation as well as financial support. These individuals will therefore be provided with financial support to meet their essential living needs, pending their removal from the UK.

Although I recognise the intention behind Amendment 57E, the Government do not consider it necessary to provide a statutory basis on which to provide temporary support. As I have said, our intention is to detain and swiftly remove those who enter illegally and meet the conditions in Clause 2. The details of how the scheme will work in practice, including the support provided during this interim period, are currently under active consideration. We are confident that there is sufficient scope to be able to provide adequate support to individuals pending a determination of their application under Section 4 of the 1999 Act. Obviously, we will bear in mind the contributions made during this short debate.

Finally, Amendment 57G seeks to amend uncommenced provisions in the Immigration Act 2016 and, in so doing, alter the long-standing position that Section 4 support would be available only to people who face a genuine obstacle in leaving the UK. The Government have no plans to implement the 2016 Act provisions in the immediate future; even if we were to do so, we see no need to alter the existing approach to eligibility under Section 4 for this group of people. Eligibility for Section 4 support is a long-standing position. As long as individuals whom we support pending their removal co-operate with the process, they will remain eligible for support.

The noble Baroness, Lady Lister, the noble Lord, Lord German, and the train-bound right reverend Prelate the Bishop of Durham asked about the Section 4 application form. We are working on the arrangements for implementing these provisions. As part of that, we will consider what changes, if any, are required to the Section 4 application form.

Where necessary, the Government will provide accommodation and basic support for those who are subject to the duty to make arrangements for removal and who are not being detained pending their removal. In answer to the right reverend Prelate, I can assure him that, with the changes made by Clause 8, we consider that there is sufficient legislative cover to provide such support where a person would otherwise be left destitute. On that basis, I invite the noble Baroness, Lady Lister, to withdraw her amendment.

--- Later in debate ---

[Lord German (LD)]

My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.

I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.

My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO₂ alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, for moving this amendment. It was a good idea to address this issue in this context, even though it was fully addressed when the SI was debated. The Labour Party voted against the SI in the House of Commons, but it was not pushed to a vote in this House. Nevertheless, this is an appropriate Bill for us to address the issue again.

As we have heard, the regulations for HMOs were brought in following a fire in Notting Hill in which eight people died and almost 100 people lost their homes and possessions. Almost six years after that came the catastrophic fire in Grenfell Tower. These DLUHC regulations could lead to another fatal fire in an HMO used to accommodate people seeking asylum or other people in housing need. As we have heard from the briefings that we have all received—particularly the Shelter briefing, which was a particularly full briefing —people seeking asylum can be particularly vulnerable to fire risks, due to disabilities and health problems, being unaware of what standards to expect in a new country, being unable to read or speak England, and perhaps being reluctant, or less able, to complain to the authorities.

--- Later in debate ---

[Lord German (LD)]

My Lords, this has been another interesting debate in which there has been one side only, and we face a series of debates where we are looking at fact versus forecasting. All of the speakers who have entered this debate in this short and very narrow area of work have been clear about the issues, which are evidenced—the health and well-being of pregnant women, the effect on unborn children, the dangers of restraint, which have been very well explained.

We are in exactly the same position as we were on the last group. We are asked to make a decision in this Committee based on unevidenced forecasting—in fact, we heard the Minister say earlier that he cannot be expected to look into a crystal ball. That is exactly what the Government are doing here, against all the evidence.

If you think about the number of organisations that have been referred to in this short debate, we are not talking about a small, narrow area of influence; we are talking about huge numbers of organisations representing women throughout this country, human rights and every other sphere you can imagine, believing that this is the wrong way to go. It is the wrong way because we do not have any evidence that it will do the job the Government want it to do.

The Government should stop their crystal ball-gazing to which they directed our attention earlier and concentrate on the evidence they have given. If they cannot provide the evidence themselves, listen to the evidence of the world around us.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.

In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn child and I take this to be a statement of the obvious”.

That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.

However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.

If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.

[Lord Stewart of Dirleton (Con)]

My Lords, this group deals with the detention of pregnant women and the use of reasonable force to effect the detention and removal of children and pregnant women.

Amendments 68 and 76A deal with the detention of pregnant women. Before getting into the specifics, it is worth briefly reiterating some general points made by my noble friend Lord Murray when he responded to the previous group. Our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal from the United Kingdom. The scheme is designed to be operated quickly and fairly, but holding people in detention is necessary to ensure that they are successfully removed under the scheme. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants, save unaccompanied children, back to their home country or to a safe third country will, we calculate, send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people smugglers facilitating their passage across the channel in small boats on the false promise of starting a new life in the United Kingdom. The only way to come to the United Kingdom for protection will be through safe and legal routes. This will take power out of the hands of the criminal gangs and protect vulnerable people.

I am happy to repeat for the benefit of the noble Baronesses, Lady Lister of Burtersett and Lady Chakrabarti, the noble Lord, Lord Scriven, and my noble friend Lady Sugg that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes. I assure the Committee that pregnant women who have arrived illegally will not be removed from the United Kingdom when, based on medical assessments, they are not fit to travel. I offer that assurance to the noble Baroness, Lady Bennett of Manor Castle.

Electronic Passport Control Systems

Lord Ponsonby of Shulbrede Excerpts

Wednesday 7th June 2023 Lords Chamber

[Lord Murray of Blidworth (Con)]

I thank my noble friend for that question. The Home Office is not responsible for security facilities at the airports beyond those provided by Border Force. I reassure her that Border Force takes seriously maintaining the operation of the e-gates during peak periods. As I have said, we have certainly learned lessons from what happened last week.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord said that 95.9% of travellers go through the e-gate system within the published wait times. What is the position during half terms, when people are travelling with children and there are many more people travelling? Are extra staff put on during half terms?

[Lord Murray of Blidworth (Con)]

I do not have those statistics to hand—I will of course find them and write to the noble Lord in respect of them—but, as your Lordships will recall, there was an SI approved by this House to lower the age at which children could use e-gates from 12 to 10. I am pleased to report that the pilot was incredibly effective and that it will now be rolled out across the e-gates by the end of July, so 10 year-olds across the country will be able to use them. This will increase the flow through airports, particularly during peak periods of half term and holidays.

Illegal Migration Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, the proposed amendments are to cover the technical situation where somebody who is not necessarily a citizen or a national happens to hold an identity document of that country, and therefore—almost by definition, but certainly by strong presumption—is clearly someone who has a close relationship with that country. Assuming it is a safe country and that there are no other circumstances that might create an exception, that is a place to which they should normally be returned. If, as I think the question is posing, there are real risks in sending that person back to a particular country, the procedures in the Bill kick in. That would be a question of fact in each case.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Lord for his explanation of the government amendments. I have two questions. First, what would be the status of people who have no passport: stateless people? Of course, there are stateless people in refugee camps. There are, perhaps preponderantly in refugee camps but also elsewhere, people who have no recognised state.

Secondly, it so happens that I was in the West Bank in Palestine last week. Palestinians who live in the West Bank are entitled to a Jordanian passport. They are not entitled to an Israeli passport, but they have an identity document as Palestinians in the West Bank. That is a different category from the category of people who are completely stateless. I am wondering whether the Minister could explain how these two particular examples might be accommodated within these government amendments.

[Lord Bellamy (Con)]

My Lords, I will, if I may, look into the questions posed by the noble Lord, Lord Ponsonby, and give a more precise answer. I think, just as an initial answer, we are essentially dealing with nationals of a country listed in proposed new Section 80AA of the Nationality, Immigration and Asylum Act 2002, which is to be added by this Bill. They are EU and EEA countries, together with Albania and Switzerland. It is to those countries that this applies. The provisions I referred to relate to EU countries, EEA countries, Albania and Switzerland, and I do not think that they touch at all on the situation of stateless persons in particular, or those who hold a Jordanian but not an Israeli passport, et cetera.

--- Later in debate ---

The amendment in the name of the noble Lord, Lord Dubs, granting re-entry to the asylum system for those whom the Secretary of State is unable to remove is thus a pragmatic measure that would go some way in ensuring we do not disqualify all individuals from claiming asylum. It would bring us closer in line with the basic rationale of the refugee convention. It does not completely overturn that which the other place has sent to us, but neither does it leave us, nor the people to whom it is directed, with insoluble problems.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group focuses on the disregarding of protection claims, trafficking claims, human rights claims and judicial review, as outlined first in Clause 4. This is quite a large group, with different strategies to remove or edit Clause 4 to remove the duty on the Secretary of State to declare human rights claims and other claims inadmissible if the person arrives into the UK illegally.

My noble friend Lord Dubs has tabled Amendment 23, which would mean that a protection or human rights claim must be considered if the person has not been removed within six months. In his very eloquent speech he said that it would have the effect of trying to reduce the number of people who are effectively in a permanent limbo—he gave the figure of 160,000 who are stuck in this status. As he said, the amendment goes a little way to ameliorating this position. I am glad that the right reverend Prelate the Bishop of Coventry supports my noble friend.

My other noble friend Lord Hunt’s series of amendments beginning with Amendment 19A would ensure that potential and recognised victims of trafficking would not be removed before they got the opportunity to submit an application to the national referral mechanism and have it considered. His amendments would remove trafficking from the list of claims that the Secretary of State can ignore, so although they would help trafficking victims, they would not help others making claims under different legislation, which would remain on the list. In my noble friend’s speech he referred to the Liberty brief, which I also found extremely helpful, and to the statistics there about the increase in the NRM claims we have seen over recent years, to which the Home Office makes particular reference. My noble friend made the point that the Bill as currently drafted would dissuade victims of modern slavery from coming forward.

As a youth magistrate, I very much recognise the point about the modern slavery system and the national referral system getting completely overwhelmed by the number of referrals into that method of checking for modern slavery. Certainly, in my experience as a youth magistrate, it almost logjammed the system of reviewing what I might call normal criminal cases referred into the NRM, which were sometimes stuck in that system for literally one or two years.

The noble Lord, Lord Carlile, gave a couple of very appropriate anecdotes. He did not particularly explain the amendments in the name of the noble and learned Lord, Lord Etherton, but, as he said, they were fully explained by the noble and learned Lord himself. I think the central point that the noble Lord, Lord Carlile, was making was that the people who find themselves making appeals are not an unworthy cohort. They very often win their claims, so surely we should be reinforcing and backing up the systems we have signed up to in international law for protecting claims of legitimate claimants.

I think all other noble Lords supported my noble friend Lord Hunt’s amendments; in fact, most noble Lords supported all the amendments in this group. I just want to make a particular aside to the noble Lord, Lord Morrow, who also supported my noble friend Lord Hunt. As he will know, he facilitated a trip for me to Ballymena district court, where I sat in on a youth court. I found it very interesting that the Modern Slavery Act has not been enacted in Northern Ireland. I have tried to get an explanation for that but, as far as I know, I have not received one. Although I am sure that the noble Lord supports the Modern Slavery Act, I find it surprising that the Act has not been enacted for young people in Northern Ireland.

As I said, I think all noble Lords who have spoken on this group of amendments have supported them. In many ways they go to the heart of the Bill, because it is where the Government are seeking to step away from some of the commitments they have made in a number of treaties and in a number of different forums over many decades. It is for the Government to justify why they should take such a radical step.

[Lord Murray of Blidworth (Con)]

My Lords, Clause 4 provides that if a person meets any of the four conditions set out in Clause 2, regardless of any claim made by an individual, including a protection claim, a human rights claim against their country of nationality or citizenship, a claim as a victim of modern slavery or human trafficking, or an application for judicial review in relation to their removal, they will still fall under the duty to remove.

As such, if a protection or human rights claim is made, this will be declared as inadmissible. Inadmissibility is a long-standing process and is explicitly provided for in UK law, most recently in the strengthened provisions in the Nationality and Borders Act. So although the noble Baroness, Lady Jones, was praising the innovation of the Home Office, the concept of inadmissibility is indeed a long-standing one that appeared in immigration legislation from the turn of the millennium.

As the noble Lord, Lord Ponsonby, correctly identified, Clause 4 is critical to the Bill. By expanding the scope of existing inadmissibility provisions to apply to anyone who has arrived illegally to the UK, the Government’s intention is made clear: namely, that those who fear persecution should claim asylum in the first safe country they reach and not put their lives at risk by making unnecessary and dangerous journeys to the UK.

We know that some people make spurious claims in a conscious attempt to frustrate their removal. Provisions in Clause 4 will restrict the right to challenge the decision to remove those who enter the UK illegally. In doing so, it will put a stop to the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal. In 2022 there were 60% more small boat arrivals—45,755—than in 2021, when there were 28,526. Our asylum system is consequently under significant pressure, and with this inexorable rise in the number of illegal arrivals adding more pressures to our health, housing, educational and welfare services, the Government must take action and prioritise support for those who are most in need.

We remain committed to working with the United Nations High Commissioner for Refugees to identify those who are most in need so that the UK remains a safe haven for the most vulnerable. Once illegal migration is under control, we will create more safe and legal routes following consultation with local authorities, and that will be subject to an annual cap set by Parliament—we will come on to debate those provisions later in Committee.

The Bill will send an unequivocal message that if you come to the UK on a small boat or via another illegal route, you will never be able to return to the UK or build a life here. It is only right that we prioritise people who come here safely and legally, and it is unfair that those who enter illegally should benefit over those who play by the rules. If people know that there is no way for them to stay in the UK, they will not risk their lives and pay criminals thousands of pounds to get here.

Having set out the purpose of Clause 4, I turn to the specific amendments. First, Amendment 19A and the other amendments in the name of the noble Lord, Lord Hunt of Kings Heath, effectively seek to exclude all potential victims of modern slavery from the duty to remove and the associated detention powers until a conclusive grounds decision has been made following a referral to the national referral mechanism, or NRM.

There is no escaping that, regrettably, the NRM affords opportunities for those who enter the UK unlawfully to frustrate their removal. In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021, when there were 12,706, and a 625% increase on 2014, when there were 2,337. The average time taken from referral to conclusive grounds decisions made in 2022 across the competent authorities was 543 days. Given these decision times, it is self-evident that, were the noble Lord’s amendments to be made, the intentions of this Bill—namely, to deter illegal entry and to allow for the swift removal of those who do enter illegally—would be undermined.

Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Tuesday 23rd May 2023 Lords Chamber

[Baroness Wheatcroft (CB)]

My Lords, I thank the noble Baroness, Lady Ritchie, for reintroducing this issue to the Chamber. I declare an interest as chairman of the Association of Leading Visitor Attractions. I hear from members how concerned they are about the effect that this could have on their industry, when it is just recovering from Covid.

As we have heard, 70% of tourism to Northern Ireland comes from the Republic of Ireland. Can the Minister tell us, not just the details of the impact assessment but whether he is aware of how many of the visitors to Northern Ireland from the Republic simply make day trips and how he feels those trips might affected by the introduction of the ETA? Can he also tell the House what the cost of the ETA will be, and what it will cost to operate? Has that been taken account of? I have been brief, but I would like answers to my questions.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I think I am happy to agree with everything that has been said in this debate. I agree with the way the noble Baroness, Lady Suttie, opened her speech by saying that my noble friend Lady Ritchie asked a lot of pertinent questions and proposed some interesting solutions and that the noble Lord, Lord Dodds, from a different perspective, also asked pertinent questions. One particularly interesting question from the noble Lord was about any reciprocal arrangements which may have been discussed with the EU regarding this set of circumstances. I look forward to the Minister’s answers to those points.

It is worth pointing out that, in the other place, a prayer was laid by colleagues, which received signatures from Members of various Northern Ireland parties on this matter—so there is considerable interest in this.

The Government have stated they have held back the economic assessment of the regulations until the fee for the ETA is confirmed. An economic assessment has been drafted, but not released. The Minister stated to the Secondary Legislation Scrutiny Committee that the assessment, if released now, would be a much less useful document without the fee information. However, although the fee is an important part of the economic impact, it does not represent all of it. The fact that the assessment has been drafted demonstrates that there is a lot of substance in it, even without that particular number, to make calculations on the economic impact itself.

The issues raised in the Motion represent wider economic concerns about the consequences of the introduction of the ETA for the tourism industry in Northern Ireland. As we have heard, 70% of all visitors arriving in Northern Ireland arrive through Dublin. I was interested in the question from the noble Baroness, Lady Wheatcroft, about how many people make day trips from Dublin, or the surrounding area, to visit various places in Northern Ireland. I was also particularly taken by my noble friend’s suggestion of a five- to seven-day exemption, which may meet the vast bulk of those tourists’ needs. I am interested to hear the Minister’s answer to that proposal.

I understand that a series of regulations will be put in place before the ETA system is introduced, but, as it stands, there is no set date for the introduction of the ETA, no set fees for the ETA, and no impact assessment from the Government on this aspect of it. As we have heard, this puts the travel industry in Northern Ireland, and related industries, at a disadvantage. We have also heard, from my noble friend, about how important tourism is, how it is perhaps the least controversial of any activity in Northern Ireland, and that it needs to be encouraged.

I look forward to the Minister’s response to the questions raised in this brief debate. It is an important issue to raise, and I commend my noble friend Lady Ritchie for her tenacity in doing so.

Police, Crime, Sentencing and Courts Act 2022 (Extraction of information from electronic devices) (Amendment of Schedule 3) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Monday 22nd May 2023 Grand Committee

[Lord German (LD)]

My Lords, this is a straightforward piece of secondary legislation, adding the Royal Military Police, the Royal Air Force Police and the Royal Navy Police to the list of people who can exercise extraction of information powers under Section 41 of the Police, Crime, Sentencing and Courts Act 2022.

First, I declare what may be a tangential interest: I have a son-in-law who flies jets for the RAF. I would never have thought about it, but it is possible that his and my family would be affected if Section 41 powers were to be used in the event of his untimely death, if that were to happen.

I have two questions to ask the Minister. They relate to the guidance in the extraction of information code of practice, which was provided in relation to the Act and as a result of the words of the Information Commissioner, who believed that this was necessary. I am pleased that it is provided.

My first question relates to paragraph 69 of the guidance, which talks about the use of a mobile phone device “around the time of” the death of the person concerned. It uses the words “the user”. Earlier, in relation to Section 37 of the Act, the code of practice talks about where people are not necessarily the owner of the phone or mobile device. It distinguishes clearly people who own a phone from people who have a phone which is owned by somebody else—something we parliamentarians know because we have a parliamentarian phone that is not our property but is used for all sorts of communication, as well as for the business of Parliament. I do not expect the Minister to have an answer yet, but could there be some clarification of paragraph 69 that refers back to the earlier information given in the code of practice to say exactly what it means about a shared-user phone?

My second question is about paragraph 90 of the code and current practice among police forces to keep up to date with technology in order to separate personal information from necessary information related to the event being investigated—the death, criminal event or whatever. Does the Minister have any information about whether police forces of all sorts are using similar technology? The real problem, which is quite obvious, is that there is a variety of technological options available to police forces and they may all be using different ones. That means that they may not necessarily be able to do what is required in the code of practice and keep up to date with

“the technology options available in their organisations”.

There may be a question here—again, the Minister may not be able to answer it now—about whether the technology available to police forces is of sufficient robustness to allow them to be ahead of the game and whether there is one piece of software that is recommended for police forces to use.

With those two questions, I am perfectly satisfied that this is a sensible piece of legislation.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too am happy to say that this is a straightforward statutory instrument, and we are happy to support it from the Labour Party’s point of view. The SI adds members of the Royal Navy Police, the Royal Military Police and the Royal Air Force Police to those given the power to extract information from a device after a user of that device has died, as part of an investigation or inquest into the death, to investigate crime and to safeguard others.

I think it is fair to ask the Minister why these police forces were left out of the original Bill. Was there a particular reason, or was the consultation process not complete?

The Labour Party tabled a series of amendments to the PCSC Bill creating new checks on police powers to extract data from electronic devices. This was due to concerns about vulnerable people and the intrusive nature of these searches—in particular, for rape and sexual abuse victims, who can feel that requests for information, including digital information taken from their phone, can be overly invasive and collect highly personal information that is not relevant to the inquiry. It may make people more reluctant to come forward to the police if they know that they will get this interrogation of their phones.

I understand that this SI covers something different—cases in which the owner of the device has died—and we are happy to support this amendment. However, I would still like to ask the Minister what assurance he can give about how devices and information taken from them will be handled sensitively so as not to discourage potential victims and witnesses from coming forward.

There have also been serious concerns about digital resources and the use of digital information by the police, outlined in the report last year from His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services. Can the Minister give any update on what action is being taken and whether any specific concerns have been raised about the use of digital items by the forces being given additional powers today? That is a more general question; the two questions raised by the noble Lord, Lord German, are very pertinent, so I shall be interested to hear the Minister’s response on shared-user phones and what impact the measure would have on them, as well as on the interoperability of different technologies and different police forces, as I am sure that that will be a tripping block. I am sure that it is not the intention to create any problems but it is always difficult, in my experience, to get different sources of technology to work together in a seamless way. That seems to be a challenge facing businesses, police forces and everybody battling with new digital technologies. However, overall, we support this SI.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords who have spoken in this very short debate. I shall address all the questions asked of me shortly. Before I do that, I make the general point that the introduction of extraction of information powers in the 2022 Act and its code of practice are just the start of changes being made to improve the experiences of victims involved in the criminal justice system. These specific powers were introduced to ensure that victims and witnesses who report crime can be confident that their personal information will be handled appropriately and that their privacy rights will be respected.

As has been discussed, the amendment relates to the extraction of information from electronic devices when the device user is deceased, so some of the issues debated during the passage of the Police, Crime, Sentencing and Courts Bill are not available there.

The noble Lord, Lord Ponsonby, asked why it was not introduced with regard to these police forces in the original iteration. As I said in my opening remarks, at the time it was not agreed that the Royal Navy Police, the Royal Military Police and the Royal Air Force Police had a sufficient investigative requirement to use Section 41 powers or that their investigative needs could not be met with other existing powers. We have now taken the time thoroughly to consider their case and are in agreement with those police forces that their investigative duties meet the requirements for the use of the powers. In short, it is about ensuring that giving those police forces those powers is indeed the proportionate and correct thing to do, which is why it has taken a little bit of time.

On some of the more technical questions asked of me by the noble Lord, Lord German, there is a broader debate here about whether extraction of information from a personal device is always necessary, given the risks to privacy. Of course, there is a balance to be struck, which must be achieved when undertaking any investigation. All reasonable lines of inquiry must be followed to guarantee a fair trial with the right to privacy. As I said in my opening remarks, it is vital that victims and witnesses feel confident to come forward, but it is equally important that police and other agencies have access to the evidence that they need—I accept that there is no disagreement about this—including mobile data, to fully investigate crime and guarantee a fair trial.

Where information is being extracted from a deceased person’s device, the authorised person must have reasonable belief that the information on that device is relevant to an investigation or inquest into that person’s death, and be satisfied that extracting the information is necessary and proportionate. In answer to the specific question about “the device”—whether it is the owner’s own or one that just happens to be in use—I think it is any device that happens to be in the deceased’s possession. If I am wrong on that, I will of course come back and clarify. By the way, I sincerely hope that it is never a personal matter.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

I am sorry to interrupt the Minister again, but the acronym RASSO stands for rape and serious sexual offences.

[Lord Sharpe of Epsom (Con)]

I thank the noble Lord very much for that.

On the progress being made on recommendation 5 of the HMICFRS report, which relates to budgets and the funding of digital forensics, we have also set up a commissioning board, jointly led by policing and the Home Office, to enable joint decision-making around prioritisation and to increase the transparency of funding decisions, including those in digital forensics, in line with that recommendation. In addition, we are investing £11 million into providing forces with technology that will enhance their capability to carry out rape investigations quickly and to provide a better service to victims.

I thank noble Lords very much for their questions. I hope I have answered them; I think I have. In closing, I repeat my thanks for the time taken to discuss and consider these issues. I once again commend the regulations to the Committee.