Illegal Migration Bill

Baroness Lister of Burtersett Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak in support of the amendments in the name of the noble Lord, Lord Moylan, and also in the clause stand part debates, to which I was pleased to add my name. He has made the case so clearly and powerfully that I need say only a few words, but I do want to emphasise the significance of these amendments, from the perspective of both citizenship—the practical and symbolic importance of which we debated last year during the passage of the Nationality and Borders Bill—and of children, who are, as we have heard, the main victims of these clauses that deny citizenship rights in perpetuity.

As the noble and learned Baroness, Lady Hale of Richmond, said in the Supreme Court, the “intrinsic importance of citizenship” should never be played down. I thus agree with the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty that the provisions are “profoundly misconceived and harmful”. A theme running through our proceedings has been the Bill’s failure to give primary consideration to the best interests of children, as required by the UN convention and Section 55 of the Borders, Citizenship and Immigration Act 2009. The Bill’s citizenship provisions, which really have no place in a Bill focused on irregular migration, target children in a way that is both discriminatory and punitive. Not surprisingly, this is of profound concern to the Refugee and Migrant Children’s Consortium, which advises that this is a

“fundamentally discriminatory approach to citizenship acquisition”

and potentially, as we have already heard, in breach of Articles 8 and 14 of the ECHR. Babies and children will be subject to a “harsh and life-determining penalty” for an immigration breach when they were minors.

Of course, it is deemed to be immaterial that the breach was due to their parents’ rather than their own actions. The Northern Ireland Human Rights Commission warns that the provisions risk discriminating against a child for the actions of a parent, contrary to Article 2 of the UNCRC—a warning echoed in the JCHR report. I also congratulate the JCHR on getting this out so quickly, especially as the Home Secretary apparently did not answer until the last second. In fact, we had already started in Committee before the committee received her reply to its questions, sent some time ago, I believe.

The UNHCR makes a similar point in arguing that punishing a child for the actions of a parent in this way runs counter to Article 34 of the refugee convention, Article 32 of the 1954 convention, and Articles 3 and 7 of the UN Convention on the Rights of the Child. It is an example of how the Bill puts at risk the safety and welfare of children.

I will just give an example—a hypothetical example of how it might work—from the Project and Amnesty. Thomas is brought to the UK as a child. He is so neglected or abused by his parents that the local authority is compelled to apply for, and is granted, a full care order. He is now growing up in the care of the UK state, and his future properly now lies here, meaning that he may be registered as a British citizen under Section 3(1). However, if his entry to the UK was without permission, he will be permanently excluded from his citizenship rights by Clause 31(2). You can hardly blame the child for what has happened.

Both the UNHCR and the JCHR argue that Clause 35 —which, as we heard, gives the Secretary of State the power not to treat a person as ineligible for British citizenship if this is necessary to comply with the ECHR—should be not discretionary but based on compliance or otherwise with the ECHR. The PRCBC and Amnesty argue that the link here is inappropriate —they may well be right—but, if it is going to be made, it should revert to the original wording, as proposed by the noble Baroness, Lady Ludford, in Amendment 98EA. The JCHR expresses puzzlement as to why the Government chose to narrow the available exceptions originally listed, thereby risking contravening international law obligations other than those arising from the ECHR. So, as the noble Baroness, Lady Ludford, asked, can the Minister now explain the justification for doing so?

In conclusion, once again this Government are showing disregard for the importance of citizenship and for the best interests of children. As they have made one welcome concession in this area, I hope that they will accept the strength of the case for removing entitlement to citizenship entirely from the Bill, or, at the very least—and it is the very least—reverting to the original wording of Clause 35.

[The Lord Bishop of Durham]

My Lords, I thank the noble Baroness, Lady Brinton, for tabling Amendment 98I, and I thank Amnesty International and the Project for the Registration of Children as British Citizens for their steadfast support for those who wish to register as British citizens. My friend the right reverend Prelate the Bishop of St Albans, who added his name, was here earlier in the day but was unable to stay through to the evening.

This amendment aims to tackle a matter of great significance that affects the lives of many individuals residing in the UK under British national overseas visas. They include many people from Hong Kong who are rightly entitled to British citizenship but face serious uncertainty about their legal status. Many Hong Kongers have reported appalling responses from immigration officials regarding their children born here, being told that they cannot have any travel documentation and even querying whether they are allowed to become British citizens in the future.

We all know the turmoil and uncertainty that has plagued the people of Hong Kong in recent years—many have been subjected to unimaginable hardships, fearing for their safety and the future of their families—so it is concerning that so many face anxiety about the citizenship status of their children. The people of Hong Kong have shown immense courage and resilience against Beijing’s totalitarian regime, and many of those who have come to the UK face profound challenges, including concern about the safety and security of their families living abroad. The nature of the treatment of protesters and dissidents by the Chinese Communist Party means that many of them are now permanently settling in the UK. This amendment is, simply, testament to our support for the people of Hong Kong, and it ensures that their status is not subject to further confusion.

All the way through Committee, it has appeared that the Minister and his team have set their face against accepting any amendments whatever. Here, I suggest, are two—the well and clearly argued one from the noble Lord, Lord Moylan, and this one from the noble Baroness, Lady Brinton—on which they could really give something tonight.

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[Lord Murray of Blidworth (Con)]

On the first point, there is no suggestion that these measures impute culpability in the way that the noble Baroness suggests. On the second point, I would have thought that the noble Baroness would approve of the fact that the statute relies upon the convention rights as being the pressure valve for exceptional circumstances in the way that I have described.

[Baroness Lister of Burtersett (Lab)]

It may be that I have not quite understood what the noble Lord is saying, but the noble Baroness, Lady Ludford, and I specifically asked the kind of question that was posed by the JCHR. Why have the Government narrowed the reference down from the original wording of the clause to the ECHR, when originally it was to any other international agreement to which the United Kingdom was a party? Why has that gone?

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Let us be clear: if these clauses are left unamended then, taken alongside the removal of all constraints on the detention of unaccompanied children, a child may be detained and, on the basis of an unreliable visual Home Office age assessment, could be removed from the United Kingdom having not even had the chance to challenge the decision. The determination that an individual may be a child and therefore could deserve all the rights of a child should, and must, be reason enough to prevent their removal. The situation must not be allowed to stand and it is for this reason that I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, Amendments 124 and 125 are in my name and they have the support of the noble Baroness, Lady Neuberger, the noble Baroness, Lady Prashar, who cannot be here but wanted me to say that she strongly supports the amendments, and the right reverend Prelate. I also support other amendments to which I have added my name—indeed, all amendments in this group, including the propositions that Clauses 55 and 56 should not stand part of the Bill. My amendments are more limited and would simply remove the power through regulation to treat those claiming to be a child as an adult, should they refuse to consent to scientific age assessment, and instead stipulate that regulations must make it clear that refusal to consent to such an assessment should not be taken to damage credibility.

The Immigration Minister justified the introduction of these clauses by way of government amendment on the unevidenced grounds that

“a very large number of young adults do pose as children”

and that he did not want

“to see a situation in which young adults are regularly coming into the UK illegally, posing as children, and ending up in our schools, in foster-care families and in unaccompanied-minor hotels, living cheek by jowl with genuine children”.—[Official Report, Commons, 26/4/23; col. 777.]

The new provisions would, he concluded, help to “stamp out this evil”. Clearly, it was not such an evil that these provisions were included in the original Bill. Instead, they appear to be a response to an assertion in Committee from Ben Bradley MP, again unevidenced. Yet, as the JCHR points out, it is not clear why the Government are legislating again on the issue so soon after passing the Nationality and Borders Act, without first subjecting that to post-legislative scrutiny.

More detailed evidence published around the same time by the Helen Bamber Foundation and cited by the right reverend Prelate indicated that the Minister had “wildly”—its word—exaggerated the proportion of age-disputed children found to be adults; this was based on freedom of information requests. Just today, Full Fact reported that a claim made in Parliament by the Immigration Minister that up to a fifth of adult male asylum seekers pretend to be children on arrival was false. FoI data showed that, between January and November last year, the actual figure was 1%. Can the Minister explain the discrepancy please?

This all reinforces the evidence from a Refugee Council study last year, which found that only 14 out of 223 young people with whom it worked in 2021, whose age had initially been determined as “certainly adult” by the Home Office, were in fact found to be adult. The council expressed serious concern that the wrongful assessment of children as adults is causing long-term harm to children as well as significant safeguarding risks. More recently, some of the children it has helped, who are at risk of being sent to Rwanda because of wrongful assessment, spoke of their fear and shock.

A different form of evidence came last year from a highly critical report by the independent Chief Inspector of Borders and Immigration on the processing of small boat arrivals. It said:

“The treatment of those claiming to be children was not child-centred …The age assessment process was perfunctory and engagement with the young people was minimal”.


As the interim Age Estimation Science Advisory Committee pointed out, safeguarding issues do not arise only when adults pose as children. It said in a report:

“There is an equally important safeguarding issue when minors are incorrectly aged as adults and so inappropriately placed in adult facilities where they may be at risk”.


The implications of all this have become that much more serious in the context of Clauses 55 and 56 and of changes to age assessment—rejected by this House last year, to no avail. Our main focus last year was the introduction of scientific assessment and, in particular, the use of X-rays, in response to considerable concerns voiced by health bodies such as the British Dental Association and the Royal College of Paediatrics and Child Health. The latter is particularly concerned about Clauses 55 and 56 in the current Bill, noting that

“The science on age assessment is not robust enough to accurately determine a person’s age, which could result in a child being incorrectly assessed as an adult”.


The interim advisory committee itself proposed a cautious approach given that:

“There is no method, biological or social worker-led, that can predict age with precision”.


It also advocated that

“Any methodology used for the assessment of age must respect and prioritise the dignity of the individual being assessed and should minimise physical or psychological harm”.

I would argue that these clauses do not respect and prioritise the dignity of the child, as they are based on the assumption that the child is lying.

Crucial here is the issue of consent, on which the committee’s recommendation was very clear, saying that the child

“should be provided with clear information explaining the risks and benefits of biological evaluation in a format that allows the person undergoing the process to give informed consent and no automatic assumptions or consequences should result from refusal to consent”.

The committee’s advice underlined that

“in cases of refusal, the applicant should not be automatically considered an adult”,

and that:

“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.


It advised that

“it should be accepted that there may be many reasons”

for refusal to consent to biological assessment, which reflect different backgrounds. For example, the child may

“have witnessed or experienced trauma from their own homeland’s government institutions and may view all authority with suspicion and fear”.

Critical too is the question of capacity for consent. Can the Minister say how capacity will be determined and what will happen to children who lack the capacity to consent to the use of scientific methods? The British Association of Social Workers makes the point:

“The question of whether the asylum seeker can consent to the medical intervention is completely separate from the question of whether they are a child”.


Yet Clause 56, which gives the Home Secretary considerable discretion through regulations, in effect conflates the two. In doing so, it undermines the possibility of genuine consent and risks further trauma for children.

In response to the interim advisory committee’s report, the CEO of the Refugee Council said:

“These children simply want to start rebuilding their lives after the traumatic experiences they went through. They put their trust in us hoping they will get the support they need — it’s vital that they are safeguarded and provided the care that they need as they go through the system. The government must not ignore the committee’s findings”.


Can the Minister explain why the Government have ignored the very clear advice of their own advisory committee on the question of consent?

Do the Government at least accept the Constitution Committee’s recommendation that

“The power in clause 56(1) has such significant implications for an individual’s legal rights that it should be subject to the draft affirmative procedure”,


and the committee’s suggestion that “indicative draft regulations” should be made available during the Bill’s passage? In a similar vein, the JCHR recommends that guidance is issued

“as soon as possible setting out what would constitute reasonable grounds for refusing consent”.

Can we expect to see this before Report?

The Constitution Committee also warned that Clause 55 raises serious legal and constitutional issues. Others are better placed to pursue these, but as Justice, among others, points out, it “drastically reduces the accountability” of the Home Secretary for complex decisions about age and permits a child’s

“deportation when they are still pursuing a legal claim that they are a child”—

the normal right of appeal having been abolished.

The supplementary ECHR memo states that the Government

“concluded that it is important to make this change to prevent individuals frustrating the aims of the Bill”.

Could the Minister explain how this mean-minded conclusion can justify the limitations on a child’s rights? As the JCHR points out, this is clearly not in any child’s best interests and is not, in its view, reasonable given the

“far-reaching consequences for their treatment, their lives and their rights”.

What is the Government’s response to the clear recommendation of the UN Committee on the Rights of the Child that age-disputed children should not be removed to a third country? What steps will be taken to ensure that, in the words of the memo,

“The appropriate support and facilities”


are

“in place in the country of removal to ensure that the individual can effectively participate in their judicial review from abroad”?

Even with Zoom et cetera, it is difficult to see how a child can participate effectively from afar.

In conclusion, I simply quote the Children’s Commissioner, who has said in no uncertain terms that it is unacceptable to treat a child as an adult on the basis of their refusal to consent to scientific methods. She asks how genuine consent is possible, free from duress, given the implications of not consenting. She concludes:

“Where a child’s age is disputed … those awaiting resolution should be treated as vulnerable children first and foremost”.


Instead, as elsewhere in this Bill, it is a case of migrant first, not child first and certainly not child foremost.

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[Lord Murray of Blidworth (Con)]

I fear that we are speaking at cross purposes. I certainly would not compel any child to participate in age assessment.

[Baroness Lister of Burtersett (Lab)]

The whole point is that they are, in effect, being compelled. This point was made by the interim age advisory committee—a committee set up by the Government. Why are the Government ignoring its advice? They are doing the opposite of what it says should be done. It said:

“The consequences of refusal should not be so disproportionately adverse as to bias the applicant towards consent”.


That is exactly what is happening.

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[Lord Murray of Blidworth (Con)]

The noble Baroness now invites me to embark on a discussion that she just said she did not want to have. I agree with her first position because it is not relevant to the amendment that she raises.

Amendment 127 in the name of the noble Lord, Lord Coaker, would place a duty on the Secretary of State to publish an annual report on scientific age assessment methods, the attendant scientific advice and the statistics relating to their use. The Home Office already publishes such information: quarterly datasets including age disputes are available on GOV.UK—we have heard references to those in Committee this evening—and, when scientific methods of age assessment are introduced, the Home Office will ensure that we report and monitor that information. The Age Estimation Science Advisory Committee continues to provide scientific advice to the Home Secretary and the Home Office’s chief scientific adviser. Their first report was published on GOV.UK, as the noble Baroness, Lady Lister, identified, and the Government will continue to seek advice from the committee. Given that we already publish the kind of information and data proposed by the noble Lord, I submit that his amendment is unnecessary.

[Baroness Lister of Burtersett (Lab)]

What is the point of seeking advice if it is then ignored? While I am on my feet, because I was not quick enough earlier, the Minister gave some figures that the right reverend Prelate, other noble Lords and I disputed, but it is as if we have not spoken. The evidence we presented was just ignored. It suggests that government Ministers tend to wildly exaggerate the proportion of children who are wrongly assessed as adults presenting themselves as children. We want the Minister to engage, if not now then in writing, with the figures that we came up with. I am appalled that the Minister has not even read the Helen Bamber Foundation report, because that is the best report on age assessment that there is. I very much hope that at least his officials have read it, but I will leave it at that.

[Lord Murray of Blidworth (Con)]

Of course we consider the advice provided by the Age Estimation Science Advisory Committee and the Home Office’s chief scientific adviser, and we will continue to do so. It is because we are in the process of awaiting such advice that the age assessment process is not fully operational. That demonstrates that we take and appreciate the advice that we are given.

As to the information questions, I will look at the statistics that the noble Baroness raises. I do not recognise them immediately, which is not to say that they are not properly reflective. There are a lot of statistics published on the Home Office website, so I appreciate that there may be some conclusions to draw. I will certainly look at that.

Government Amendment 123C is a clarificatory amendment that simply ensures that Clause 55 applies to any decisions following the regulations made under Clause 56, which automatically assumes someone to be an adult as a result of their refusal to consent to a scientific age assessment. It includes a decision as to whether an individual has reasonable grounds to refuse consent to a scientific age assessment.

We cannot escape the fact that almost half of asylum seekers claiming to be children were found to be adults. Those seeking to game the system in this way create clear safeguarding risks to genuine children and delay their removal. Clauses 55 and 56 are a necessary part of the framework of the Bill to ensure that we can swiftly remove those subject to the duty in Clause 2. I therefore invite the right reverend Prelate to withdraw his amendment.

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Moved by

[Baroness Lister of Burtersett]

128A: Clause 57, page 59, leave out line 4
Member's explanatory statement
This amendment seeks to remove Albania from the list of “safe states” with reference to which asylum and human rights claims will be deemed inadmissible.

[Baroness Lister of Burtersett (Lab)]

My Lords, Amendment 128A is also being proposed by the JCHR. I thank my noble friend Lord Cashman for his support, although I am afraid he has had to leave.

The amendment seeks to remove Albania from the list of safe states with reference to which asylum and human rights claims will be deemed inadmissible. I was prompted to table this amendment following a meeting with a group of young Albanians, which was organised by the Migrant and Refugee Children’s Legal Unit, MiCLU, and the Shpresa Programme. I am grateful to them, and to Professor Helen Stalford, for the information they have provided. All the young people had sought asylum in the UK. Some had been accepted, and some were still awaiting determination of their claims.

The young people had two clear messages. The first related to how they are talked about and perceived, by politicians and the media in particular, which frames discussions about the rights of Albanians to enter and stay in the UK. The young people talked about how hurtful and injurious to their identity it was to be constantly talked about as criminals with no right to be here.

One young Albanian asylum seeker quoted in the MiCLU briefing talked about having experienced racism:

“When you say you are from Albania, people distance from you. People have said I am a criminal and other words. It becomes hard for people to engage in society. Even people who have status”.

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[Lord Murray of Blidworth (Con)]

My Lords, I thank all noble Lords who have spoken: the noble Baronesses, Lady Lister and Lady Ludford, and the noble Lord, Lord Hacking.

The measures in Clause 57 aim to deter claims from nationals from safe countries who seek to abuse our asylum system and do not need to seek protection in the UK. It will consequently reduce pressure on our asylum system and allow us to focus on those most in need of our protection.

Treating asylum claims from EU nationals in this way is not new, as I think all noble Lords recognised. It has been a long-standing process in the UK asylum system and is also employed by EU states. However, EU states are not the only safe countries. It is right that we expand these provisions so that they apply not only to nationals of the EU but to other safe countries that we have assessed as generally safe. At this time, the list has been expanded to include the other European Economic Area countries, Switzerland and Albania. This clause also includes powers that would allow us to expand this list further to other safe countries of origin in future.

Furthermore, these provisions will expand this approach to include human rights claims. If a country is generally safe, it stands to reason not only that asylum claims should be declared inadmissible but that any related human rights claims should be treated likewise. If a person has other reasons for wishing to come to the UK, they should apply through the appropriate routes. People should not seek to use our asylum system to circumnavigate those routes.

However, even if a country is generally considered safe, it is acknowledged that there could be exceptional circumstances in which it may not be appropriate to return an individual. If the person does not meet the conditions of the duty and makes an asylum or human rights claim, and there are exceptional circumstances as a result of which the Secretary of State considers that a claim ought to be considered, then their claims will be considered in the UK. If a person meets the conditions of the duty and makes a protection and human rights claim, and the Secretary of State accepts that there are exceptional circumstances which prevent removal to their country of origin, they will instead be removed to a safe third country. Therefore, it is considered that these provisions incorporate appropriate safeguards to ensure that we will not return an individual where it would not be safe to do so.

Amendment 128A in the name of the noble Baroness, Lady Lister of Burtersett, seeks to remove Albania from the list of safe states for the purposes of Section 80A. For a country to be added to the list of safe countries of origin, it must be assessed as safe, as per the test set out in new Section 80AA of the 2002 Act. We are satisfied that, in general, Albania—a NATO member, an ECAT signatory and an EU accession country—meets that test. Indeed, the cross-party Home Affairs Committee, chaired by Dame Diana Johnson, said in its report published just yesterday:

“Albania is a safe country and we have seen little evidence that its citizens should ordinarily require asylum”.


Furthermore, as already set out, the provisions incorporate appropriate safeguards, should it be accepted that there are exceptional circumstances why an Albanian national should not be returned there.

As I have indicated, these sensible extensions to the inadmissibility arrangements which currently apply to EU nationals will help to reduce the pressures on our asylum system and enable us better to focus on those most in need of protection. I commend the clause to the Committee and invite the noble Baroness to withdraw her amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to those who have spoken, especially my noble friend Lord Hacking; he has been extremely noble to stay this late to speak, and he speaks from his first-hand experience of Albania.

The noble Lord, Lord Hodgson of Astley Abbotts, said that if there had not been so much repetition, we would not still be here at this time. However, the Minister, in his reply, has shown why sometimes there is repetition: because there is no evidence that the Minister listens. I talked about the Home Affairs Committee and why the response to it was not good enough, but he read his speech about the Home Affairs Committee as if it had not been mentioned. This happens time and time again. The main repetition I heard this evening was from the Government Benches giving very detailed information about the Policy Exchange report over and again. We could have done without that.

It is late, and I do not think that we want to go beyond 2 am, if we can possibly help it; I am shaking with tiredness. The Minister has not engaged at all with the arguments put that, while Albania may be a safe country for many people, it is not safe for everyone. It is just not good enough to say, “Well, in exceptional circumstances, their claims can be considered”. There are some very vulnerable people—people who have fled extremely difficult circumstances that none of us would want to face—who have sought asylum here and been granted asylum here for good reason. I sometimes wonder what the point is of us standing up saying these things, when the Minister then stands up and gives us a response that takes no account whatever of what has been said. That said, I beg leave to withdraw the amendment.

Amendment 128A withdrawn.