Safety of Rwanda (Asylum and Immigration) Bill

Baroness Lister of Burtersett Excerpts

Report stage
Wednesday 6th March 2024 Lords Chamber

Moved by

[Baroness Lister of Burtersett]

34: After Clause 4, insert the following new Clause—
“Section 57 of the Illegal Migration Act 2023Section 57 of the Illegal Migration Act 2023 (decisions relating to a person’s age) does not apply in relation to removals to the Republic of Rwanda.”Member's explanatory statement
This amendment disapplies section 57 of the Illegal Migration Act 2023 in relation to removals to the Republic of Rwanda, to restore the ability of domestic courts and tribunals to fully consider suspensive judicial review claims regarding removal decisions taken on the basis of age assessments of unaccompanied children, given that the Rwanda Treaty “does not cover unaccompanied children”.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to move Amendment 34, in my name and that of my noble friend Lord Dubs and with the welcome support of the right reverend Prelate the Bishop of Chelmsford and the noble Baroness, Lady Neuberger. Worded slightly differently to those tabled in Committee in relation to removals to Rwanda, the amendment would ensure that any unaccompanied child wrongly assessed as an adult could challenge their assessment in domestic courts and tribunals from within the UK and could make that challenge on the basis of the facts and not just the law. In other words, we want to minimise the risk of any unaccompanied child being sent to Rwanda, which the treaty supposedly rules out but acknowledges might happen because they have been wrongly deemed to be an adult. I am grateful to ILPA, the Refugee and Migrant Children’s Consortium and RAMP, of which I am an associate, for their help.

This amendment is about ensuring the best interests of the child, in line with our duties under the UN Convention on the Rights of the Child as translated into UK immigration law and strongly advocated by the Children’s Commissioner. In Committee, a number of noble Lords detailed the evidence of the significant number of child asylum seekers wrongly assessed as adults, which I will not repeat. However, I note that just last week a study by the Centre for Criminology at the University of Oxford revealed that child asylum seekers with ongoing age disputes, under the Nationality and Borders Act 2022, were arrested, charged and convicted as adults and ended up in adult prisons at serious and obvious risk of harm. This is shocking.

The Minister failed to engage seriously with the evidence presented in Committee of frequent wrongful age assessment and of how the supposed safeguards he has now outlined three times already exist and simply are not working. Instead, he—and in some cases, his colleagues—tried to argue either that the amendment was unnecessary, which I will come to, or that it was harmful because it would act as an incentive to adults to represent themselves as children and would undermine the Bill’s supposed deterrent effect. Well, the deterrent argument was disposed of in Committee by the noble Lord, Lord Kerr, and the noble Baroness, Lady Brinton. I cited from the impact assessment for the Illegal Migration Bill that

“The academic consensus is that there is little to no evidence”


of immigration policies having a deterrent effect.

The incentive argument ignores the permission stage that was built into the judicial review process to weed out weak, frivolous or unmeritorious claims. Ultimately, if an asylum seeker is found to be an adult, they can then be removed, but first they will have been through a proper, thorough age assessment process involving qualified and experienced social workers as well as due legal process, which allows for consideration of the factual and legal correctness of the age assessment.

That brings me to why this amendment is so necessary. Without it, a child can be sent to Rwanda as an adult on the basis of a short visual assessment by two immigration officers, who are now defined in law as a relevant authority for age assessment purposes. This is despite the Home Office’s own advice that physical appearance and demeanour represent

“a notoriously unreliable basis for assessment of chronological age”.

The much-vaunted scientific methods, prayed in aid in Committee, do not even come into play if the age is decided on the basis of immigration officers’ visual assessment.

It was then argued that there was nothing wrong with a child having to challenge an age assessment from Rwanda. I am sorry, but there is everything wrong with that. It will be difficult for a probably traumatised child to make their case virtually—and it will have to be purely on legal grounds—and to access suitable legal support and representation. During that time, they will be placed in adult accommodation, which could be unsafe. Even if they are successful, there is the unedifying prospect of them being sent back to the UK as objects in a cruel game of pass the parcel. To quote the noble Baroness, Lady Mobarik:

“Surely, flights returning traumatised children to the UK from Rwanda are not an image that the UK Government, the Rwandan Government or the public wish to see”.—[Official Report, 19/2/24; col. 429.]


Such an image would shame us, and we have a duty to safeguard the best interests and welfare of children by ensuring that they are not wrongly sent to Rwanda as adults.

I hope, therefore, that noble Lords from all Benches will support this amendment. I beg to move.

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[Lord Sharpe of Epsom (Con)]

My Lords, we have discussed on numerous occasions the question of a number of vulnerable individuals who may end up being relocated to Rwanda. The treaty makes specific provision for the precise and detailed professional help those people will need.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank noble Lords who have spoken in support of my amendment. To pick up what the noble Lord, Lord Scriven, has been saying, that is part of the point: if two immigration officials say that the child is an adult, the Merton assessment does not come into operation. The point is that we do not have professional social work assessment of the children.

I will not go into what noble Lords who have spoken in support said, but I point out that the right reverend Prelate raised two specific questions which were not addressed. One was about our still not having a child rights impact assessment; the other was a request. I do not know what will happen to these amendments but, at the end of the day, I hope there will be a meeting of all those who have signed them and that stakeholders are consulted on the assessment process, in order to address the very point raised by the noble Lord, Lord Scriven. Does the Minister wish to intervene?

[Lord Sharpe of Epsom (Con)]

My apologies: I meant to say that, yes, of course I am happy to meet.

[Baroness Lister of Burtersett (Lab)]

I thank the Minister very much, but there is no child rights impact assessment, needless to say.

Noble Lords who spoke against very much used the arguments used in Committee, and evidence was produced there to rebut those arguments. I thank the Minister for his response—he did engage with the evidence this time—but to be honest, if I am asked which evidence I believe more, the Home Office’s figures or the figures collected by people working in the sector with local authorities, I am afraid that I put more confidence in the latter.

I have heard nothing today that has effectively countered the rebuttal of the arguments made by the Minister and his colleagues—some of them put for the fourth time—that I gave in my opening speech. I do not propose to repeat them, in the interests of time. I simply note that the Home Secretary said this week that he would look closely at any amendments that your Lordships’ House supported but would reject any that wrecked or watered down the Bill. Mine is not a wrecking amendment and were the Government to accept it, that would demonstrate true strength in the willingness to be flexible in order to protect the best interests of children. I do not call that watering down. In the interests of children and their welfare, I would therefore like to test the opinion of the House.

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[Lord Dubs (Lab)]

My Lords, I will speak to Amendment 44A, which is on a different point from the one the noble Lord made about Northern Ireland. The point is simple. There is a long-standing convention that the United Kingdom Government do not legislate for the Channel Islands or the Isle of Man without seeking their consent before doing so. I had a letter from the Government of Jersey asking me whether I could raise this on Report. I understand that, on this occasion, no consultation took place with the Government of Jersey before the Bill’s introduction, and I do not have any evidence of whether the Government of Guernsey and the Isle of Man think the same as the Government of Jersey. All I know is that the Government of Jersey do not consent to this permissive extent clause.

In the event, neither the Rwanda treaty nor the Rwanda memorandum of understanding apply to Jersey, and any extension would be complex given that Jersey has its own Human Rights (Jersey) Law 2000. I am not sure whether this is an oversight by the Government in their haste to get the Bill through or whether something else is going on that I do not understand, but I would very much like the Government to explain why they have not sought the consent of Jersey, whether they have sought the consent of Guernsey and the Isle of Man, and what they propose to do to rectify this position.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will say a couple of things about Northern Ireland, following the noble Lord, Lord Dodds of Duncairn, although I suspect from a very different perspective. First, as I pointed out in Committee, the Joint Committee on Human Rights asked for a full explanation before Report. We are almost at the end of Report and, as far as I am aware, despite all the talk of imminence, we still do not have the Government’s response to the JCHR’s report. I very much support what the noble Lord, Lord Alton, said about that earlier—it really is not good enough.

I turn to the disapplication of human rights and the implications for the Good Friday agreement and the Windsor Framework. I know I will not change the Government’s mind on this, but I say this partly to amplify what was said earlier and put this on the record. The cases that the noble Lord referred to have been brought to my attention. In their revised fact sheet—and in almost identical words in a letter to me—the Government said that

“the bill does not engage the Belfast (Good Friday) Agreement, including the rights chapter - those rights seek to address longstanding and specific issues relating to Northern Ireland’s past and do not extend to matters engaged by the bill”.

But the cases to which the noble Lord referred made something absolutely clear. The 28 February decision in the 2024 case of Dillon and others—NIKB 11 —referenced the overarching commitment to civil rights in the relevant chapter of the Belfast Good/Friday agreement. It said in paragraph 554:

“A narrow interpretation of ‘civil rights’ undermines the forward-facing dimension of the non-diminution commitment in article 2(1)”.


It says it is “future-facing”; it is made clear that it is not looking just to the past.

Similarly, in Angesom, which was also referred to by the noble Lord, the decision said:

“The court rejects the submission by the respondent that the rights protected by the relevant part of the GFA are frozen in time and limited to the political context of 1998. The GFA was drafted with the protection of EU fundamental human rights in mind and was therefore intended to protect the human rights of ‘everyone in the community’ even ‘outside the background of the communal conflict’”.


So I do not think that what the Government have come up with so far is good enough in explaining why they believe that the disapplication of the Human Rights Act does not apply and will not affect the Good Friday agreement and the Windsor Framework.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo the importance of the issue that the noble Lord, Lord Dodds, has raised in his Amendment 44ZA. That issue, in a nutshell, is that relevant provisions of EU law apply in Northern Ireland and may, under the Northern Ireland protocol and Windsor Framework, result in the judicial disapplication of incompatible legislation.

The Northern Ireland Human Rights Commission, which of course is the statutory body appointed to look at these things, reported that Clauses 1 and 2 of this Bill are contrary to Article 2 of the Northern Ireland protocol. I asked the Minister in Committee whether the Government agreed with that, and he wrote to me on Monday as he had promised. The letter expressed the Government’s disagreement with the NIHRC, though without engaging with the detailed provisions that it had identified relating to asylum seekers as problematic for the application of the Bill in Northern Ireland. I respectfully question whether that conclusion is correct, given statements already made by the High Court of Northern Ireland in the various cases referred to by the noble Lord and the noble Baroness, Lady Lister.

I understand that the final judgment in the Northern Irish challenge to the Illegal Migration Act 2023, to which the noble Lord, Lord Dodds, referred—I think that he referred to the commission decision—is expected in the next 10 days or so, perhaps even in time for what we must assume will be ping-pong. I do not support the noble Lord, Lord Dodds, in his amendment, which asks us to disapply the EU withdrawal Act, but let me make a different suggestion. As the Government apply themselves to the judgments of the Northern Ireland courts, which have been referred to, I hope that they will reflect that, by accepting some of the amendments that your Lordships have already made to this Bill, they can protect it from successful judicial challenge in Northern Ireland and so ensure that it applies across the whole United Kingdom as intended.

On Amendments 44A and 44B, relating to the position of the Channel Islands, I declare an interest as a soon- to-be-retired member of the Courts of Appeal of Jersey and Guernsey. I have written to the Minister on this issue already and await with interest his response to the compelling points made by the noble Lord, Lord Dubs. I add only that the irregularity that he has identified surely applies, as he indicated, not just to Jersey or the Channel Islands generally but to all the Crown dependencies—including, I assume, the Isle of Man.

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[Lord Stewart of Dirleton (Con)]

In that event, as with any adverse decision, I think, the Government would have to reserve their right to consider the matter, but the position is as I have stated, and we are confident of success.

I turn to the points raised by the noble and learned Lord—

[Baroness Lister of Burtersett (Lab)]

Before that, I know that I am not learned, but I did say some things and I have been ignored. What has happened to the response to the report of the Joint Committee on Human Rights? We are getting very close to finishing Report and, when I last checked, it still had not been published. I point out that the Government may have been consistent in their position on Northern Ireland, but is it possible that they have just been consistently wrong?

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[Lord Stewart of Dirleton (Con)]

I first beg the noble Baroness’s pardon; I had not intended to overlook her. In relation to the answers to which she and the noble and learned Lord refer, as we have said on previous occasions at the Dispatch Box, these responses will be issued imminently.

[Baroness Lister of Burtersett (Lab)]

I am sorry, but that really is not good enough. We are practically at the end of Report. This was promised to us by Wednesday. It is now 7.55 pm, on Wednesday evening, and we are about to finish Report, and still we are just promised it “imminently”.

[Lord Stewart of Dirleton (Con)]

I beg the noble Baroness’s pardon. I think that we had indicated that we were trying to get it by this point. That has not been possible, and I apologise to the noble Baroness.

I turn now to the matters raised by the noble Lord, Lord Dubs. Home Office officials meet the Justice and Home Affairs department officials of Jersey and officials from the Isle of Man and Guernsey on a regular basis. This engagement includes detailed updates on the Illegal Migration Act and this Bill. I note the points that noble Lords have raised with regard to consultation and confirm that the Government remain committed to consulting the Crown dependencies on legislation that might impact them. Unfortunately, due to the tight timeframes leading up to the introduction of the Bill, the Home Office was unable to engage in advance. However, as I have set out, I know that engagements have taken place since introduction.

Although it may seem unlikely, if, down the line, the United Kingdom-Rwanda treaty were to be extended to the Crown dependencies without the permissive extent clauses in this legislation—to which the noble Lord, Lord German, referred in his contribution—relocations from Jersey to Rwanda would not be able to take place, and it would be considerably harder to unpick this if the PEC is removed.

It is important to note that inclusion of a PEC in a Bill does not constitute legislating for the Crown dependencies, nor does it require any Crown dependency or the United Kingdom to do anything. Rather, it is a legislative tool that enables the United Kingdom’s provisions to be extended to the Crown dependencies when either a Crown dependency or, in extremis, the United Kingdom thinks necessary. There is no obligation to activate a PEC, but the enabling power remains in reserve.