Border Security, Asylum and Immigration Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

Moved by

[Baroness Chakrabarti]

184: After Clause 48, insert the following new Clause—
“Primacy of the Refugee Convention(1) The Asylum and Immigration Appeals Act 1993 is amended as follows.(2) For section 2 (Primacy of Convention) substitute—“2 Primacy of Convention(1) So far as it is possible to do so, primary legislation, subordinate legislation, immigration rules within the meaning of the 1971 Act, and guidance issued by the Secretary of State must be read and given effect in a way which is compatible with the Convention.(2) This section—(a) applies to primary legislation and subordinate legislation whenever enacted, immigration rules whenever laid, and guidance whenever issued,(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation, and(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.”(3) After section 2 insert—“2A Declaration of Incompatibility(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with the Convention.(2) If the court is satisfied that the provision is incompatible, it may make a declaration of that incompatibility.(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with the Convention.(4) If the court is satisfied—(a) that the provision is incompatible with the Convention, and(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.(5) In this section “court” means—(a) the Supreme Court,(b) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session, or(c) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.(6) A declaration under this section (“a declaration of incompatibility”)—(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; (b) is not binding on the parties to the proceedings in which it is made.””Member's explanatory statement
These two new clauses follow the model of the Human Rights Act in attempting to ensure harmony between international convention and domestic law. Primary and secondary legislation, immigration rules, and guidance are to be interpreted in compliance with the Refugee Convention so far as possible. Where it is not possible to interpret primary legislation in compliance, the higher courts may make a declaration to that effect.

[Baroness Chakrabarti (Lab)]

My Lords, I will introduce Amendments 184 and 185 in my name. I am grateful for the support of the right reverend Prelate the Bishop of Chelmsford and the noble Baroness, Lady Jones of Moulsecoomb. Both amendments are inspired by the Government’s commitment in last year’s election manifesto that we will once again be a defender of the international rule of law.

The late Lord Bingham of Cornhill’s eighth principle on the rule of law is that it

“requires compliance by the state with its obligations in international law as in national law”.

The rule of law is a fundamental constitutional principle that safeguards against arbitrary power. What are we here for if not to protect the constitution?

Throughout debates on this Bill and other annual asylum Bills of recent years, noble Lords have raised concerns about compliance with international law, including the 1951 refugee convention. More than 20 years ago, in 1993, a Bill was passed through Parliament, with the noble Lord, Lord Clarke of Nottingham, as Home Secretary. It was implemented by the noble Lord, Lord Howard of Lympne, and contains a section titled “Primacy of Convention”. This section, still in force, provides that:

“Nothing in the immigration rules … shall lay down any practice which would be contrary to the”


refugee convention.

My Amendment 184 is in the spirit of this provision, but addresses the relationship between the convention and our domestic legal system more holistically. Drawing from the hallmark constitutional balance agreed by Parliament in the Human Rights Act 1998, it seeks to ensure harmony between primary legislation, subordinate legislation, the Immigration Rules, executive guidance and the refugee convention, so far as that is possible. It would give effect to Parliament’s intention to legislate in compliance with human rights. As with the Human Rights Act, courts would interpret laws only with the grain of the legislation and do no more than necessary to ensure compliance with human rights standards. This would help realise Parliament’s overarching intention and rectify drafting errors or address factual circumstances not foreseen by legislators.

Just as our courts have exercised judicial restraint in using Section 3 of the Human Rights Act, our independent judiciary could be trusted to exercise restraint in using this proposed new clause. Where primary legislation cannot be compatibly interpreted, then, as with Section 4 of the Human Rights Act, a declaration of incompatibility could be made which would not affect—I repeat not affect—the validity or continued operation of that law.

Those who rail against judicial human rights decisions with which they disagree should be reminded of this relationship between Sections 3 and 4 of the Human Rights Act. It explicitly protects parliamentary sovereignty and, in contrast with, say, the US Bill of Rights, prevents our Supreme Court reinterpreting, let alone striking down, explicitly incompatible primary legislation. For the sake of completeness, the injunction in Section 2 of the Act is to “take into account”, not be bound by, decisions of the European Court of Human Rights in Strasbourg.

Amendment 184 would, so far as is possible, ensure, for example, that our criminal penalties do not violate the immunity provided by the refugee convention, that our guidance on nationality does not treat refugees for evermore as not of good character if so to do would breach the refugee convention, and that refugees would not face being sent to places called safe where they will, in fact, face persecution.

Amendment 185 is specific to the question of immunity from criminal penalties. As your Lordships have heard time and again, Article 31.1 of the refugee convention protects refugees from

“penalties, on account of their illegal entry or presence”

if they come directly from the country persecuting them,

“present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

The reason for this immunity is simple. People fleeing persecution and seeking sanctuary are often compelled to arrive, enter and be present in a state irregularly. It is clear that Section 31 of the Immigration and Asylum Act 1999 is intended to cover this defence. Indeed, it is titled:

“Defences based on Article 31(1) of the Refugee Convention”.


However, it is insufficient and does not reflect the full scope of that article. It provides only a narrow defence to an insufficient list of offences, including forgery and connected offences, possession of false identity documents, deception and falsification of documents.

Therefore, while there is a statutory defence for arriving with false documents, there is no statutory defence for arriving without requisite documents. Someone who uses a fake passport to get on a boat or plane directly from where they face persecution is provided with a narrow defence, but as we know, with our ever-tightening visa regime and with airlines afraid of penalties, refugees cannot board safe planes—if they could, they might not risk crossing Europe on foot or the channel in dinghies. If they had instead walked barefoot or been trafficked and arrived in Libya, Turkey or France, having lost or had stolen any papers they had along the way, they would have no statutory defence against prosecution for irregular arrival or entry in the UK, or indeed against the new facilitation offences in this Bill and the Nationality and Borders Act 2022 before it.

This is not a mere hypothetical. The best available data shows that 556 people arriving by small boat were charged with illegal arrival and 455 were convicted—a number of them young people, who are treated and prosecuted as adults, with insufficient initial age assessments. The vast majority of those charged and convicted had ongoing claims for asylum, as well as experiences of trafficking and/or torture, but had to share prison cells with adults before being released into the care of local authorities.

In its recent report on this Bill, the Joint Committee on Human Rights stated:

“Article 31 is partially incorporated into domestic law by way of section 31 of the Immigration and Asylum Act 1999. However, the Committee agrees with its predecessor that this provision is not fully compliant with the Refugee Convention”.


Therefore, my amendment is one endeavour to ensure compliance. I appreciate that there are other such attempts, including from the chair of that committee, the noble Lord, Lord Alton of Liverpool, in his Amendment 203. I am sure that we all wish him a full and speedy recovery from his recent injuries.

In Amendment 203I and other amendments, the noble Lord, Lord Murray of Blidworth, has proposed a restrictive interpretation of Article 31.1 of the refugee convention. Our courts have interpreted the term “directly”—as in coming directly—broadly and purposively to ensure that refugees who have crossed through and had mere short-term transitory stops in other countries, such as while crossing deserts and seas, may still be exempt from penalties if they were en route to their place of intended sanctuary. The late and much lamented Lord Brown of Eaton-under-Heywood in Adimi provided a clear test for interpreting whether someone has come directly, looking at the length of stay in the intermediate country, the reason for the delay and whether or not the refugee sought or found protection in that intermediate country. We must return to and uphold that common law position, as the late Lord Bingham of Cornhill did in the House of Lords Judicial Committee in Afshar.

As we repeatedly discuss, the entire system of international refugee protection would collapse if this were not the case—if every person were subject to penalties if they passed through or stopped in a safe country. The UK could say that all refugees are the responsibility of France. France would look to Italy, which would no doubt point to Tunisia. Tunisia would say “Libya”, and Libya would say “Sudan”. Thus, immediately, neighbouring countries would bear all the responsibility, of which they already bear a great share, or refugees would be pushed back into their countries of persecution. This was never the intention and could never logically have been the intention of a refugee convention. With this approach, like dominoes, our system of post-war legal protection and the international rule of law would fall. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I signed the two amendments in the name of the noble Baroness, Lady Chakrabarti, not because I have any legal training but because I trust her judgment on this. I was hoping that some of our estimable Cross-Bench KCs and former judges would stand up and say, “This is rubbish; you can’t do this”. In their absence, I will say just a few words.

--- Later in debate ---

[Lord Kennedy of Southwark (Lab Co-op)]

I will keep talking while we get my noble friend Lord Hendy in. He will be here shortly. I thank all noble Lords particularly for their consideration today at Question Time, which was much appreciated by everyone here. My noble friend is, I hope, here now. No, he is not.

[Baroness Chakrabarti (Lab)]

Can I interrupt my noble friend for a moment to say that I understand the reasons for breaking mid-group but that the period of the break will give me a little longer to reflect on the many positive contributions that precede my other noble friend’s return to the Chamber?