Border Security, Asylum and Immigration Bill

Lord Harper Excerpts

Committee stage
Monday 8th September 2025 Lords Chamber

[Lord Harper (Con)]

My Lords, I was not able to be here at the opening of the debate on the earlier group, so I hope noble Lords will forgive me if anyone else has already said this, but I was delighted when I walked into the Chamber and saw the noble Lord still in his place. I have worked very closely with him on these matters over the years and I am pleased that his qualifications have been appropriately recognised over the weekend.

I certainly support the thrust of these amendments, and I will come on to the concerns expressed by the noble Lord, Lord Pannick, in a moment. They are important because the public believe that, if you are in the United Kingdom and you are not a British citizen, you owe some obligations and responsibilities to the country that has provided you with a home. People generally feel that if you come to the United Kingdom and you are here lawfully, and you subsequently break the law, it is something we should deprecate. There should be some consequences, and we should set a very clear expectation that those who come here under the Immigration Rules and who are not British citizens are expected to be exemplary in obeying the law. It is both a sanction, as the noble Lord said, and something that sets an expectation about behaviour. That is ultimately the thrust behind the amendments from my friends on the Front Bench and my noble friend Lord Jackson.

To pick up one point my noble friend Lord Jackson made, and I hope the Minister can cover it in his response, I believe the issue around Irish nationals is that they have unique legal status here that is not connected to the Republic of Ireland’s membership of the European Union. It is to do with our entwined history and the Act which set up the Irish Republic—or separated it from the United Kingdom. That is therefore a more complicated position and it would be helpful if the Minister could deal with that when he responds, because my noble friend made some points that the public would not necessarily understand.

I want to pick up some of the points made by the noble Lord, Lord Pannick, which I thought had some merit, and which have been considered previously by Ministers. I was pleased that my noble friend Lord Jackson referred to the very successful deportation period in 2012—I just throw out as an aside that that was when I happened to be the Immigration Minister and responsible for such matters; I will just leave that there. When we toughened up the legal regime in what became the Immigration Act 2014, we contended with exactly the points that the noble Lord raised, about whether you put an absolute position in the legislation or allow any judicial weighing-up of these factors at all. I agree with him that there is a role in allowing there to be some judicial oversight, and we did that in the Immigration Act 2014; we said that if you were sentenced to over four years in prison, you must be deported unless there were compelling reasons over and above the two exceptions set out in the Act. This was to circumscribe the ability of judges to use Article 8 to allow people to stay here at the drop of a hat.

Where I part company with the noble Lord is that I do not think that the Government’s current plan to simply set out in guidance, or some non-statutory mechanism, directions to judges is going to be adequate. When we looked at this, we found that because the Immigration Rules are set out in secondary legislation, courts felt very confident about inserting their judgment on whether people should be removed from the country. We put the balancing arguments—particularly those for Article 8—in the primary legislation, which set out some exceptions and the need for compelling circumstances. The effect was that judges, as they properly do, put a great deal of weight on what Parliament said, rather than what Ministers put into secondary legislation.

Therefore, if my noble friends withdraw and do not move their amendments today, I urge the Minister to think about coming back on Report—we can think about that as well—with something tougher than simply guidance, advice or directions for judges. My experience is that, unless you put it in the legislation, it does not have the desired effect.

Appeals in this area of law are different than in others because, if somebody is in the United Kingdom unlawfully or if we are trying to deport them, it is in their interests for the appeal process to take as long as possible, because for every day the appeal process is not concluded, they are able to stay in the United Kingdom and effectively achieve their objective. That is not like the situation in other areas, where they do not have an incentive to make the process go very slowly. Therefore, we need to do something in the legislation.

The noble Lord, Lord Pannick, has a point when he says that there should be some element of judicial discretion. The challenge, of course, is that as soon as you allow there to be any, it is very easy for that to creep along and for judges to widen it. Then we get all the cases we read about in the paper that bring the law into disrepute.

Therefore, the expert drafters in the Home Office—whom I know are there—should bring forward some tightly drawn amendments that achieve the spirit of what my noble friends have put on the Marshalled List but that perhaps allow some judicial discretion. I was certainly told that, by allowing some judicial discretion, you actually strengthen the power of the statute, because it means that the courts will not seek to overturn it in creative ways, because they feel that justice can be done by following what is in the law. That is perhaps the approach I would urge the Minister to take as he puts together his response to this and what he may come forward with on Report.

Of course, I am more hopeful about the Minister bringing something forward on Report than one would perhaps normally be in this debate because, having seen some of the opening remarks of the Home Secretary, I note that she seems very taken with the idea of a more robust approach to removing foreign national offenders in particular from the country.

I hope the approach I have set out, taking inspiration from what my noble friends have done, is something that the Minister will find meets favour with his new boss in the Home Office. I therefore commend these amendments in moving the debate in the spirit I think the public would wish.

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[Lord Hanson of Flint (Lab)]

My Lords, I am grateful, as ever, to the noble Lords, Lord Cameron and Lord Jackson, for their amendments. I echo the comments of the noble Lords, Lord Pannick and Lord Jackson, about my noble friend Lord Ponsonby of Shulbrede. He has served his party and Government over many years, and he deserves to be recognised for the efforts that he has put in. I am pleased to endorse those sentiments from the Committee today, not least because I have shared an office with him for the past 13 months of my term in this Government. I will pass on the Hansard reference to him, so he can read the responses himself.

Foreign nationals who commit crime in the UK should be in no doubt that the law will be enforced and, where appropriate, we will pursue their deportation. The noble Lord, Lord Jackson, mentioned this in passing, but it is worth placing it on record that 5,179 foreign national offenders have been deported in the 12 months between July 2024 to July 2025—a 14% increase on the previous year.

On a personal note, I am grateful for the comments about my continuing tenure in this job. I am commencing my 15th year as a Minister, 28 years overall as either a Minister or a shadow Minister, which is quite a long time. I have been around this block several times and I can recall, on foreign national prisoners, going to Nigeria in 2008 and negotiating a foreign national prisoner transfer with the Nigerian Government. Because this falls within the MoJ, I will update colleagues in due course about any potential new prisoner transfer agreements being developed.

Amendment 138 seeks to prevent any challenge—this is a key point from the noble Lord, Lord Pannick—to an automatic deportation decision and to prevent a deportation order being made when there is an appeal against a sentence. Amendment 203A, from the noble Lord, Lord Jackson, seeks to prevent any appeal against deportation; I will refer to the circumstances around that in a moment. Both amendments would remove any challenge to deportation and would, if nothing else, be contrary to the withdrawal agreement, which the previous Government negotiated and which requires us to provide a right of appeal against deportation for beneficiaries of the withdrawal agreement.

For other foreign national offenders, the right to appeal deportation was removed by statute in 2014 by the previous Government. Appeals can now be made against only the refusal of a human rights claim, the refusal of a protection claim or a decision to revoke a protection status. In any event, the amendments would be contrary to Article 13 of the ECHR when read with other rights. We can have a debate about the ECHR, and I am sure that we will, at the moment, the amendments would be contrary to those rights. It would also be unconstitutional and contrary to the ECHR to deny courts the ability to set aside a decision by the Secretary of State when such a decision may be manifestly wrong. This Government take citizens’ rights very seriously and we continue to work constructively with the EU to ensure that we meet our obligations under the withdrawal agreement.

Amendment 203A, from the noble Lord, Lord Jackson, would also undermine the UK’s agreement with Ireland on the deportation of Irish citizens. There is a range of legislation around that, but since 2007, public interest has been the qualifying matter. Irish citizens are exempt from automatic deportation, except in exceptional circumstances where the Secretary of State can determine that it is in the interests of the public at large. It would also undermine the protections against deportation afforded to certain Commonwealth nationals. It would set an artificial deadline for the making of a deportation order, preventing any leave being granted to a person who made a successful human rights or protection claim.

Amendment 139 seeks to extend automatic deportation to any foreign national convicted of an offence in the UK or charged with an immigration offence, without consideration of their human rights. As the noble Lords, Lord Oates and Lord Pannick, mentioned, it would remove protections for under-18s and victims of human trafficking. It would also require a court to pass a sentence of deportation to any foreign national convicted of an offence in the UK. In my view, these amendments would not be workable and would be contrary to our international obligations.

For the benefit of the noble Lord, Lord Pannick, I say again that the Government are committed to the protection of human rights and to meeting our international obligations. The Prime Minister has made clear that the United Kingdom is unequivocally committed to the ECHR, and these amendments would not prevent persons being deported from raising human rights claims with the European Court of Human Rights. They would deliver nothing except the outsourcing of deportation considerations to Strasbourg and would slow down the removal of those being deported. The amendments would also undermine our obligations to identify and support victims of trafficking, as set out in the Council of Europe Convention on Action against Trafficking in Human Beings, of which we are a signatory.

I hope that noble Lords are getting the general sense that I am not going to be in favour of the amendments. I can continue, should noble Lords wish me to do so.

[Lord Harper (Con)]

The Minister has made very clear his approach to the amendments, but I want to press him a bit. The Government accept that in some cases the courts are not drawing the lines in the right place, which is why the Government have suggested, as the noble Lord, Lord Pannick, referenced, that they will issue further guidance to courts to make these decisions and draw the lines in a different place. Is guidance going to be sufficient to alter where judges make these decisions, or do we need to change the law? The Minister may not agree with these proposals, but I would argue that you do need to change the law. If he does not think that these proposals are okay but thinks that courts are not getting it right at the moment, the Government should bring forward their own amendments on Report. I suspect that this House will give them a fair hearing.

[Lord Hanson of Flint (Lab)]

The noble Lord raises perfectly valid questions. I was clear to the House and have been today to the Committee that the Government will examine the European Court of Human Rights Article 8 requirements. We will be issuing guidance on that and have some further discussion on what that means in practice. We are still considering those matters, but we not minded at the moment to bring forward legislation—and I am certainly not minded to support, for the reasons that I have said, the amendments from the Opposition Front Bench and from the noble Lord, Lord Jackson. I hope that I have been clear on that.

We are committed to reforms across the immigration system. It is right that we take action against foreign national offenders in the UK before they get the opportunity to put routes down in the UK. We will do what we can to protect local communities and prevent crime. We will simplify the rules and processes for removing foreign national offenders and take further targeted action against recent arrivals who commit crime in the UK before their offending can escalate.

Later this year, as the noble Lord is intimating, we will set out more detailed reforms and stronger measures to ensure that our laws are upheld, including streamlining and speeding up the removals process. We will table legislation to strengthen the public interest test, to make it clear that Parliament needs to be able to control our country’s borders and take back control over who comes to and stays in the UK. We need to strike that balance between family rights and the wider public interest. That is why we will clarify Article 8 rules and set out how they should apply in different immigration routes so that fewer cases are treated as exceptional. We will also set out when and how a person can genuinely make a claim on the basis of exceptional circumstances.

Amendment 139, tabled by the noble Lord, Lord Cameron, seeks to amend the penalty for immigration offences in Section 24 of the Immigration Act 1971, replacing this with a sentence of deportation and removing the lack of knowledge as a defence against these offences. We have been clear in our response to the sentencing review that we will reduce the use of short sentences and increase the use of suspended sentences, so there will be a significant reduction in the number of such offenders being sent to prison. Foreign nationals convicted of immigration offences can be considered for deportation at present, and we will act to ensure that such action is taken in future.

Removing lack of knowledge as a defence will likely result in consequential deportation decisions being subject to more ECHR challenges, resulting in delay, the consequence being fewer successful removals.

[Lord Harper (Con)]

To pick up on a point made by the Minister, he confirmed that the Government are undertaking this review of Article 8 and how it is interpreted by the courts. He also said that, if necessary, the Government would bring forward legal provisions to put reforms in place. We have a bit of time before Report, with another day in Committee in October and Report a little bit after that. Can I urge the Minister to speed up that review? If it is necessary to put into statute any changes in how Article 8 is being interpreted, he can then bring that forward in this legislation, to take advantage of bringing those reforms in urgently, rather than waiting for another piece of legislation to come down the track in a year or two.

[Lord Hanson of Flint (Lab)]

We keep all matters under review. This will go at the pace that it goes at. We will be making further announcements in due course on how we will review Article 8 and the issues that will result accordingly.

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[Lord Kerr of Kinlochard (CB)]

My Lords, I thank the noble Baroness, Lady Lawlor, for her interesting statistics. As a former chairman of a university court, I find high student numbers a cause for delight. I am not quite sure why we should see it as bad news; the university sector as a whole finds large numbers of students wanting to apply from abroad rather good news, and so do I.

I would like to put a question to the noble Lord, Lord Davies, about Amendment 198, on which the noble Lord, Lord Pannick, has expressed some doubts. I am struck by the plight of the British Romeo, who happens to go to Verona and meet Juliet. Not only does he have to tell her that they have to wait until they are both 23—the point made by the noble Baroness, Lady Hamwee—but they have to wait until he is earning £37,750 a year and until they have already been married for two years. Even then, they cannot be sure, because they have to get a place in the quota. The quota for Italy will be 7% of an unknown number, to be determined at some future annual date by the Secretary of State. So, they would be well advised to get up very early on 1 January, two years after they got married, and register their application to come to this country. On what basis, I ask the noble Lord, Lord Davies, does one pick 7%, and on what basis is the Secretary of State to pick the annual number?

[Lord Harper (Con)]

My Lords, I want to touch on three matters—two to do with these amendments and one of a more topical nature. We have at previous stages of this Bill talked about the ability of the Government to remove people from the country. Amendment 199 touches on illegal removals. The Minister has been very keen to champion the deal the Government have done with France. Given that the French Government have, just a few moments ago, been voted down by the National Assembly and therefore collapsed, I wonder if the Minister, as he has been in post—I am sure the Home Office will have given it a great deal of thought—could comment on what impact, if any, that will have on the deal that the Government have done, whether in substance or the speed with which they will be able to implement it. That would be both of interest to the Committee and relevant to this legislation.

I strongly support Amendments 141 and 141A, from my noble friends Lord Jackson and Lady Lawlor, because they are about making sure that we better understand the system. While I welcome students who come here to go on good courses, who are here to study, it is useful for us to know if those students are breaching criminal law. I will not rehearse the arguments that my noble friend Lord Jackson made so eloquently, but there is a very good reason why having this data is helpful: one of the things that the Home Office pays a great deal of attention to, when it is making judgments about granting student visas in the first place, is looking at countries where there is a high risk of abuse. It puts a great deal of weight and expectation on universities to ensure that students are genuinely here, that they are competent to study courses and that they are going to study those courses when they get here. If the data highlights countries that are a particular risk, it would enable the Home Office and universities to take that into account when they are making decisions; it would tighten our immigration system and it would make sure that people are genuinely coming here to study—which is, of course, the reason they have been given the visas. So I strongly support both those amendments.

I also support Amendment 199. There is an argument for it—the noble Lord, Lord Pannick, was not enormously persuaded, but I will just give him one argument for where it might be helpful. One of the things that the Home Office finds difficult at the moment is when it wants to deport people to countries that will not have their nationals back. This is internal government politics, but I suspect that the Home Office is very keen to implement those visa requirements. I do not know—and I would not expect the Minister to confirm this at the Dispatch Box—but I suspect that other bits of government, such as the Department for Business and Trade and perhaps the Foreign, Commonwealth and Development Office, are not very keen on implementing those visa sanctions. They would come up with all sorts of compelling reasons—for them—for why the Government should not do so. The countries know this, and they also make those arguments about why we would not want to implement those visa sanctions—damage to our trade and all sorts of other reasons.

This provision may be helpful when Ministers are having those conversations because, by making it mandatory, if the country will not up its game and if is not willing to take back citizens who are not entitled to stay in the United Kingdom, the Government can explain to those countries that their hands and discretion have been fettered by Parliament. Therefore, the only possible sensible course for that country is to improve its compliance and, frankly, do what it is required to do by its international obligations, which is to take back the citizens who are not welcome here. So I think there is a very sensible argument. It may be that the drafting of this amendment can be improved, and the noble Lord is well qualified to help with that.

[Lord Jackson of Peterborough (Con)]

Is my noble friend as pleased as I am by the news that the new Home Secretary is a keen reader of the amendments that His Majesty’s loyal Opposition have put down on this Bill? The top story in the Times today is:

“Mahmood plans visa crackdown on countries that won’t take back migrants”.


Is she a sinner repenting, and is my noble friend full of joy about this?

[Lord Harper (Con)]

I am very pleased that my noble friend Lord Jackson raised that, because I read that piece this morning and it is part of the reason why I was keen to speak on this amendment. In the debate that was going on this morning, our friend the shadow Home Secretary was challenging the new Home Secretary on this. She hit back and made the point that this permissive power had been in place for some time and had not been used for the reasons that I set out and because of all the other arguments that will be brought forward in government about why you would not want to disturb the relationship between the United Kingdom and the other country that is refusing to take back its citizens. It was interesting to note that the Home Secretary appears a little more seized of using this power.

We are trying to be helpful here because—I do not know, but I suspect—when she has these arguments inside government and expresses her intention to use this power, she will get quite a lot of push-back from the Foreign, Commonwealth and Development Office and from the new Foreign, Commonwealth and Development Secretary, who perhaps may not have remembered that, just a short while ago, she was responsible for these important matters in the Home Office; it is amazing how quickly Ministers forget when they change departments. The Business Department and the new Business Secretary will be making the point about our important commercial relationships. Actually, the new Home Secretary may well welcome the strengthening of her hand that would be put in place by the Government accepting Amendment 199.

When the Minister responds, even if he does not like the specific drafting of the amendment on the Marshalled List today, and given what my noble friend Lord Jackson said about the Home Secretary’s views, I hope that he gives it a fair wind and commits to come back with a government amendment on Report. If he does not, perhaps we will discover that the Home Secretary’s tough words are just that—words.

[Lord in Waiting/Government Whip (Lord Lemos) (Lab)]

My Lords, if the noble Lord, Lord Harper, will forgive me, I will not comment on the consequences of the fall of the French Government on this legislation or any other. My noble friend Lord Hanson has been a Minister for 15 years; I am of a rather more recent vintage, like a cheap wine, so, if the noble Lord does not mind, I will pass on that. But I have not the slightest doubt that it will be the subject of further debate and comment in your Lordships’ House before too long.

Amendment 198, from the noble Lords, Lord Davies and Lord Cameron, proposes a cap on the number of entrants of partners and proposes amendments to the immigration requirements for a partner of a person present and settled in the UK. I will set out the overall position. The Government are very clear that net migration must come down, and the swift return of those with no right to be in the UK forms a key part of a functioning migration system that commands the confidence of the British public. The provision for family members to come to or stay in the UK is set out in the Immigration Rules, so this is not, strictly speaking, the correct legislation for this debate. But the Government’s position is clear: we support the right to family life and we value the contribution that migrants make to our society. As a migrant myself, I am profoundly grateful for the opportunities that I have had in this country. Like so many others, I have an ineradicable respect and admiration for British institutions and values. Perhaps that is why I am here today.

The noble Lord, Lord Harper, talked about the expectations of immigrants. I entirely endorse those remarks but, as an immigrant myself, I should also say that, in large numbers, immigrants are happy and proud to fulfil the expectations that he sets out.

However, this commitment to supporting the right to family life must be balanced, as we all know, by a properly controlled and managed immigration system that commands public confidence. I note that the noble Lord, Lord Jackson of Peterborough, commented on earlier amendments that there is a great deal of consensus on these points. Our immigration system welcomes people from across the globe to come to the UK to join family here, and it is right that we continue to enable family migration.

To ensure financial independence, the family rules include financial requirements. The minimum income requirement is currently set at £29,000. On 10 June, the Migration Advisory Committee published its independent review of the financial requirements across the family route. The report is now under review, and we will consider the recommendations made by the MAC.  The Home Secretary will respond to the review in due course.