Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 19A is on modern slavery. I will speak to a series of my other amendments relating to Clauses 4 and 21. I am grateful to the noble Baroness, Lady Hamwee, and my noble friend Lord Bach for their support.

I think we are all aware that modern slavery is a brutal crime involving sophisticated criminal networks buying and selling people for profit. Victims of this appalling crime may be forced to enter the UK illegally, coerced, deceived and forced against their will, with their identity and decision-making powers stripped away. If left unamended, the Bill would see victims punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating pre-existing traumas.

In the past 12 years, organisations such as Hestia—the leading modern slavery charity in the UK—to which I pay great tribute, have supported victims via the modern slavery victim care contract. In that time, these organisations have supported over 18,000 victims of modern slavery. Survivors have been exploited for profit by criminals often operating as part of organised networks, both in the UK and internationally. The Bill will do incredible damage to those efforts.

Clause 4 applies the Bill’s provisions to people who claim to be victims of slavery or human trafficking, or those who have made an application for judicial review in relation to their removal from the UK under the Bill. Clause 21 relates to the Council of Europe Convention on Action against Trafficking in Human Beings, which provides that, once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person. Under the Bill’s provisions, where a protection or human rights claim falls within subsection (5), it will be declared inadmissible by the Secretary of State and will not be considered in the UK.

Were the Bill to come into effect without any provisions to protect victims from the duty to remove that is set out in Clause 4, many of these survivors would be denied the opportunity to rebuild their lives and reclaim their autonomy, based purely on their route of entry. This would also apply in circumstances of trafficking, where individuals have been forced to enter the country illegally. The Bill will do nothing to break cycles of exploitation or help people to break free of modern slavery. Instead, it will feed the criminal networks that profit from the lives of vulnerable people, and it will undo the great work of the Modern Slavery Act.

Noble Lords will have received a briefing from Justice about its significant concerns that proposals to deport potential victims of modern slavery and human trafficking, without properly considering their claim, are incompatible with Article 4 of the ECHR and the ECAT. The Government say that there will be protections for those supporting criminal investigations and proceedings, but even those limited protections have been watered down in late-stage government amendments in the Commons. Clauses 21(5) and 28 require the Home Secretary to assume that an individual can co-operate with criminal proceedings from abroad, unless there are “compelling circumstances”. But, as Justice says, this is troubling because individuals with vulnerabilities are likely to struggle to co-operate with criminal proceedings from abroad. It faces a further presumption in favour of deporting potential victims of trafficking and modern slavery.

As the previous Independent Anti-Slavery Commissioner said during the Nationality and Borders Act 2022 debate, providing a sufficient recovery and reflection period is often essential to enable potential witnesses to co-operate with criminal proceedings—therefore, limiting such support

“will severely limit our ability to convict perpetrators and dismantle organised crime groups”.

We discussed this at Second Reading, when the Minister claimed that

“The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order … the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse”.


He argued:

“The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people—to 73% in 2021 … Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals”.—[Official Report, 10/5/23; col. 1923.]


That is surely flawed logic. As Justice says, it is the Home Office-approved first responders who refer individuals to the competent authority if there are suspicions that someone is a victim of trafficking or modern slavery. Some 90% of the competent authority’s decisions last year were positive—in other words, decisions that there were reasonable grounds that someone was a victim of trafficking and modern slavery. Some 91% of conclusive grounds decisions were also positive, so where is the evidence that the system is being abused? Surely the Home Office’s own data highlights the overwhelming majority of credible victims of trafficking and modern slavery. As Theresa May made clear at Second Reading in the other place:

“The Home Office knows that the Bill means that genuine victims of modern slavery will be denied support”.—[Official Report, Commons, 13/3/23; col. 593.]


Furthermore, by closing the route to safety and support, the Bill risks strengthening the hands of trafficking networks. Traffickers keep people under their control with threats that they will not receive help if they reach out to the authorities. The Bill will substantiate that claim and further dissuade survivors from coming forward. We know that successful prosecutions of traffickers rely on the testimony and co-operation of those whom they exploit. As it stands, the Bill would have a devastating impact on survivors of modern slavery and human trafficking, offering them no recourse for support or protection, removing them from the country, leaving them entirely unsupported and leaving criminal gangs and traffickers unchecked.

My amendments first seek to remove the inclusion of people who claim to be victims of slavery or human trafficking from the provision in Clause 4 under which the Secretary of State must declare the claim inadmissible. My amendments to Clause 21 seek to amend the Bill so that a person who is in the process of being referred by a first responder to a competent authority, who awaits its reasonable grounds decision, who receives a positive reasonable grounds decision, who has a positive conclusive grounds decision or who is challenging a negative reasonable grounds or conclusive grounds decision may remain within the main referral system in the UK and subsequently receive modern slavery support, subject to Section 50A of the Modern Slavery Act, which includes protections from being removed.

These amendments essentially seek to ensure that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I sat out the Second Reading debate in favour of a meeting of the Constitution Committee, in which we discussed our draft report on the Bill. That report is no substitute for the report of the Joint Committee on Human Rights—which I, for one, await with impatience—although I hope that it does deserve study. It discusses, in particular, the remarkable variety in the Bill of what might be called ouster clauses. Among them is Clause 4(2), which is the subject of Amendment 21, in the name of my noble and learned friend Lord Hope of Craighead, who cannot be here today, and to which I have added my name.

Some ouster clauses are aimed at restricting appeals or reviews from the decisions of a legally qualified tribunal. Examples include Clauses 49 and 51, which appear to be modelled on Section 2 of the Judicial Review and Courts Act 2022. The Supreme Court’s decision in the Privacy International case concerned an ouster of that nature.

More fundamental in their scope are the ousters in Clauses 4, 12 and 55. They bite not on claims that have already been adjudicated by tribunals but on claims that have never been adjudicated by any court or tribunal—and, in the case of Clause 4, any claim to the effect that removal from this country would be contrary not only to our laws against slavery and human trafficking, as we have just heard, but to the refugee convention, the Human Rights Act and the principles applied by the courts on judicial review. Such claims can be pursued, if at all—I am mindful of the jurisdictional limitations on the Human Rights Act—only after removal from the United Kingdom.

Through the kind offices of the Bar Council, I spoke this morning to a number of immigration law practitioners. They told me that so-called bring-backs, historically, have been vanishingly rare. Indeed, they are measurable in single figures. These are people who win their cases from abroad and then see those judgments implemented in the sense that they are brought back. Pursuing such a claim from out of country seems, for most people, to be a remedy which, in the time-honoured phrase, is not practical and effective but theoretical and illusory.

Clause 4 is supported by two buttresses: Clause 52, which prevents our courts issuing interim measures to prevent or delay removal; and Clause 53, which, if passed into law, will give parliamentary authority to Ministers to disregard interim measures issued by the European Court of Human Rights. A final nail is hammered into the coffin of judicial review by government Amendment 25A, which was debated in the previous group.

The Minister will no doubt say that the effect of the Clause 4 ouster is mitigated by the new suspensive claims provided for by Clauses 37 to 51 to deal with cases of serious harm and factual error. That is right, but only up to a point. The problem with those clauses is not only the punishing time limits and evidential requirements proposed in the Bill but their limited scope of application. For example, they afford no scope to challenge removal on slavery and human trafficking grounds, on private and family life grounds, or for the breach of elementary legal principles, such as prejudging and procedural error.

As my noble and learned friend Lord Brown of Eaton-under-Heywood referred to at Second Reading, the difficulty we face as a revising Chamber is that this degradation of existing judicial powers to keep the Executive in check is a feature of this legislation and not a bug. The Government’s theory of deterrence is based, in significant part, on the neutering of the courts. No doubt we will have to decide on Report whether we think that the objectives of the Bill, and the likelihood of achieving them, are enough to justify such a significant rebalancing of powers. If we think that they are not, we will have to decide whether to try to reverse the ousters in Clause 4 or to work with the grain of the Bill, however unpalatable we may find it, and seek to increase the range and feasibility of the new suspensive claims. In any event, it may not be controversial, but, in the words of a unanimous Constitution Committee:

“The cumulative impact of the ouster and partial ouster provisions in the Bill gives rise to very considerable constitutional implications”.


I wonder whether the Minister agrees.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.

Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.

The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.

As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.

The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister. In the circumstances that he accurately sets out, could a declaration of inadmissibility be reversed so that the human rights claim or the protection claim could proceed in the normal way?

[Lord Murray of Blidworth (Con)]

The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.

Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.

The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.

Illegal Migration Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

Finally, the Delegated Powers and Regulatory Reform Committee’s report says that the procedures of the SI that are to come, the regulations, should be done by the positive procedure and not the negative resolution procedure which has been adopted. I would be grateful if the Minister said that the Government are considering that matter. In the end, what steps are the Government taking to ensure that individuals who are vulnerable and cannot be safely detained will be swiftly identified by appropriately qualified staff and released, with appropriate safeguards in place, following the removal of currently available legal challenge? Of course, we expect to see the Home Secretary’s risk assessment in the impact assessment which we understand is to follow.

[Lord Anderson of Ipswich (CB)]

My Lords, I would like to accept the invitation of the noble Lord, Lord German, as another lawyer, to address the Hardial Singh principles and habeas corpus, but since, on my reading of the Bill, they arise under Clauses 11 and 12 respectively, I think it might be best to reserve that treat for another day. I do have a question about Clause 10, which I candidly admit I do not find the easiest to understand. The Bar Council, in its briefing prepared by immigration practitioners far more expert than me, states that the powers already exist to detain any individual who is suspected to be subject to the Clause 2 removal duty, that Clause 10 does not provide for any additional persons to be detained, and that the purpose of the clause is simply to remove existing protections for unaccompanied minors, families and pregnant women. Is there any more to it than that?

[Baroness Mobarik (Con)]

My Lords, I shall speak to Amendments 59, 63, 64 and 67 standing in my name. I am immensely grateful to my noble friends Lady Helic and Lord Bourne of Aberystwyth and the right reverend Prelate the Bishop of Durham for adding their names to these amendments. I am also extremely grateful to the many children’s organisations that sent invaluable briefings and gave clarity on the subject. I refer noble Lords to the relevant interests in my name in the register. 

The words “detention” and “children” have no place in the same sentence. In the case of this Bill, it can also mean the possibility of indefinite detention, as proposed by the Government. In 2010, the organisation Medical Justice coined the term “state-sponsored cruelty” in relation to children in immigration detention. Its reports highlighted the great calamity being inflicted on thousands of innocent children, with lasting and detrimental consequences, including leaving them traumatised and suicidal. This led to a deep conviction across the political spectrum that such practices were inherently wrong and that a better, more humanitarian approach had to be taken. A pledge was given in 2010 by someone seeking the office of Prime Minister—David Cameron. He pledged that, if elected as Prime Minister, child detention would end. He was true to his word, and it became part of the coalition’s programme for Government in 2010, with policy changed as soon as 2011. With the Immigration Act 2014, the routine detention of children came to an end. That was progress. It was, as one would expect, a humanitarian response to an unacceptable and cruel practice. It is therefore with some dismay and disbelief that we are seeing attempts to reverse the progress made. Almost a decade on, we are discussing the reintroduction of those measures in an even more draconian form.

This Bill creates powers to detain en masse those who arrive in the UK without permission, on or after 7 March 2023, because they are not coming directly from a country where their life and liberty are threatened. Fleeing war-torn Syria but crossing through, for example, Belgium disqualifies them. As mentioned many times, there are no legal routes to the UK for most of those seeking asylum here. Of those coming, thousands of children could face detention. This is not a random statement but one based on the Refugee Council’s careful analysis in its impact assessment of the Bill. The exact figures are available in its report, but over a three-year period it equates to around 13,000 to 15,000 children in detention per annum. We are talking about babies, toddlers, children who are victims of child trafficking, unaccompanied children and children with families—defenceless little people, many of whom have not yet learned to speak and others who may be of speaking age but have no English language. They are detained, and with no legally defined time limit to their detention. They are detained anywhere,

“in any place that the Secretary of State considers appropriate”,

and without the possibility of bail for 28 days. Needless to say, children’s and refugee organisations are aghast at what is being proposed. They are not alone. Many of us across all Benches in this House and the other place feel the same.

Let us stop and think for a moment that perhaps it is not the intention of the Home Secretary to lock up thousands of children. Perhaps we can put this down to the lack of an economic impact assessment or child’s rights impact assessment conducted by the Home Office itself. If that is the case, now is the opportunity, in Committee in this House, for my noble friend the Minister to reconsider what is being proposed. Of course it is understood that there will inevitably be very specific and limited occasions when children are detained, but the existing legislation already gives parameters for this. That is why I propose amendments to Clause 10, to retain the existing time limits of 24 hours in detention and with safeguards for unaccompanied children. Amendments on those who are with families seek to retain existing time limits so that they can be detained only for up to 72 hours, or not more than seven days where detention is personally authorised by a Minister. Importantly, this should be in short-term holding facilities or pre-departure accommodation.

Existing legislation on the detention of children, as under the Immigration Act 2014, is already in place. I ask only that the status quo be maintained. The Home Secretary may argue that by not detaining children we are creating another pull factor, but the evidence shows that there was no significant increase in the number of children seeking asylum once routine detention ended in 2011.

The question then is what the intention of the Government is if, as Prime Minister Sunak says:

“The intention of this part of the policy objective is not to detain children”.


We were given reassurances by the Minister during the Commons Report stage on 26 April that,

“we do not want to detain children. We will do so only in the most exceptional circumstances”.

There was also assurance from the Minister that the time limits

“will be as short as practically possible”.—[Official Report, Commons, 26/4/23; col. 837.]

However, these tests of “most exceptional circumstances” and

“as short as practically possible”

cannot be found in the Bill. All that can be found following the Government’s amendment is a delegated power for the Home Secretary to make regulations under the negative procedure that specify circumstances for the detention of unaccompanied children. There is also a discretionary power for the Home Secretary to make regulations that specify time limits. There is no clarification in the Bill as to the length of the time limits for detention or to which unaccompanied children they might apply, or how discretion might be exercised. Moreover, the regulations may or may not specify time limits for unaccompanied children. We have no assurance in the Bill that they will. Either way, they will do nothing for children and families.

I understood from my noble friend the Minister that later in the Bill’s passage the Government propose to

“set out the new timescale under which children may be detained for the purposes of removal without judicial oversight”.—[Official Report, 10/5/23; col. 1783.]

I must ask for clarification from my noble friend. If the Government truly wish to detain children for as short as practically possible, why are they disapplying the 2014 safeguards to children affected by this Bill? These safeguards were put in place by a Conservative Prime Minister and a Conservative Home Secretary.

Given this late stage in the Bill’s passage, when do the Government propose to set out these new timescales in the Bill, and what will they be? What are the circumstances in which unaccompanied children would be detained and why can these “most exceptional circumstances” not be stated on the face of the Bill and be open to full scrutiny during its passage? Will those timescales in regulations be an absolute time limit for the detention of children, or merely a timescale for judicial oversight of that detention? As a country in which the rule of law is a pillar of our constitution, can we detain children without judicial oversight? I presume detention is for the purposes of removal but would like clarification on whether the Government are proposing child detention for other purposes. If so, can the legal basis for such detention be explained?

Verbal reassurance is completely inadequate. I am no expert but I understand that this is not the way that laws are made. Laws must be much more firmly established. They cannot just fluctuate depending on which Home Secretary is in the driving seat; that is surely a dangerous precedent. Amendments 59, 63, 64 and 67 seek to place our current safeguards for the detention of children in the Bill, so that children impacted by it need not rely on mere verbal assurance. I understand that the issue of illegal migration is complex and requires a deterrent factor so that those who genuinely qualify can be identified, and that it requires a genuine solution, but I think most here would agree that the solution being proposed is not the right one on so many levels.

We are speaking about defenceless children. I say to noble Lords that it may be difficult for us to think back to our six year-old selves, so let us think about our children or grandchildren, who have neither the physical strength to defend themselves nor the verbal sophistication. We have a moral obligation to ensure that we protect the rights of these most vulnerable human beings.