Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords—

[Lord Cashman (Lab)]

My Lords—

[Lord Hodgson of Astley Abbotts (Con)]

I think it is this side.

[Lord Cashman (Lab)]

It is this side; an independent has just spoken.

[Lord Hodgson of Astley Abbotts (Con)]

Speaking independently, I think it is this side, but I will give way to the noble Lord.

[Lord Cashman (Lab)]

My Lords, I thank the noble Lord for giving way and therefore I will be brief. I am not a lawyer, but I come to these matters from a very personal perspective.

I stand here as someone who, for most of my life, has faced discrimination and illegality. Why? Because the views of a majority were used against people like me enjoying the equal protection of the law and freedom from discrimination. I believe it is incumbent on anyone in public life to challenge public opinion, to lead public opinion and to have the courage to do the right thing for the long term, and never follow the short term.

I am grateful for the many briefings I have received on this from the Refugee Council, the Red Cross, the Law Society and many other eminent organisations. I think it is the first time that I have read from such reputable organisations that a Bill should be rejected on grounds of legality and constitutionality.

I particularly welcome Amendment 4 in this group because it states, quite rightly, our legal obligations. It neuters the power of Clause 1 to mandate that the rest of the Bill be in conformity with what I believe is an attempt to deny the right to seek asylum and refuge in this country.

I am lucky that I was born in the United Kingdom. I have to stand back and say: what if I had not been? What if I had been born in a country where I could not be myself, love someone of the same sex or have a different political opinion or a different religion? What if I was that person? What would I do to value my family, my life or my liberty? I would seek refuge.

To leave your home is not an easy option. I say to the Government: do not represent it as a rush through Waitrose with a three-wheeled shopping trolley. It is about life and death. Yes, there are young men who have the courage to step into a leaky boat at the end of their journey and cross the English Channel. They cross the English Channel so that they can find a place where they might belong, where they might be able to use the language or learn the language or seek out others who have similar cultural and social values. What about them, coming to earn money to send back home to liberate their families from poverty and oppression? Are they not worthy of being given the right to a fair hearing and the equality of the law?

Finally, as I said, I was born in the United Kingdom, but I am told that my family left Spain as Jews in the 16th century and travelled across Europe for the centuries that followed in search of refuge—in search of asylum. Some ended up in Ireland, where they had enough of persecution because of their religion and converted to Roman Catholicism. That branch of my family came here, and I come from that branch of the family. When I was old enough to understand that my religion was being used against me to deny me my rights and to deprive me my place and my right to love, I became a born-again atheist.

The noble Baroness, Lady Fox, referred to the speeches she had heard. She might have heard me refer to a brilliant speech in a play by Shakespeare, which I am not going to give to your Lordships this afternoon.

[Noble Lords]

Oh, go on.

[Lord Cashman (Lab)]

It is a brilliant speech, which reminds us that what was done hundreds of years ago is still being done: othering. “You bid that the strangers be removed”. These strangers have made their way from Calais to Dover to London.

“Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Imagine you are the stranger and bid that they be removed and show your mountainish inhumanity”.—[Official Report, 10/5/23; col 1849.]


That is what these amendments address and if, at some later stage, Amendment 4 is pressed, I will have absolutely no hesitation in supporting it.

Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

We are country with a proud reputation of accepting refugees. Unaccompanied children do not just leave their country of origin for anything other than exceptionally dire circumstances. We should be protecting them, and removing Clause 2(7) is a start in the right direction.

[Lord Cashman (Lab)]

My Lords, I speak in favour of the amendments in this group, including my Amendment 8; I thank the noble and learned Lord, Lord Etherton, for adding his name to it. My amendment deals specifically with Clause 2(4) and would include persecution of a person on the basis of gender, sexuality and gender identity for the purposes of the third condition under which a person could be removed. However, I wish to now speak against Clause 2 and the duty to deport.

As we have heard from other noble Lords, the Bill seeks to give unprecedented powers to the Home Secretary to deport people without even a fair hearing of their case. The Home Secretary is in fact compelled to carry out that duty, even when it conflicts with human rights protections. The Bill seeks to limit the circumstances in which legal challenges could prevent a removal and allows the Home Secretary to add or remove countries to the list of so-called safe countries. This is even more worrying, looking at Schedule 1. At present, four of the countries on that list are not signatories to the UN convention, and some may not even have a functional asylum system. I will come back to this later on a further grouping but, if a person were deported or returned to most of the countries on the list in Schedule 1, they would face discrimination on the grounds of their sexual orientation or gender identity. Nigeria is one that springs to mind.

Without the requirement to make individualised assessments about whether it is safe to remove a person seeking asylum, and in providing very limited opportunities for individuals to present evidence of the risks that they could face, there is a real concern that many refugees will be deported to a country where their safety is at risk, or returned to their home country where their life could be threatened again, as I have said. The refugee convention makes it clear that return is prohibited to any country where a refugee could face persecution and not just their own.

I return now to the thinking behind my own amendment. In passing through a so-called safe third country, I refer to the internationally accepted definition of a refugee, which makes reference to five possible grounds for persecution: race, religion, nationality, membership of a particular social group, or political opinion: UN General Assembly 1951, page 137. These grounds are also recognised as covering persecution on the basis of sexual orientation or gender identity and gender-based human rights abuses.

Such examples also illustrate that persecution may happen where the state is not itself the perpetrator. Although some definitions have in the past required this, it is not universal. I believe it is therefore right to expand within the Bill the acceptance of individuals becoming refugees both when persecution is perpetrated by the state and where there is a failure of the state to provide protection against persecution by others. On that basis, I commend my amendment to noble Lords.

[Baroness Ludford (LD)]

My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?

The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention, under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.

I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.

The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.

To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.

Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

What empirical evidence—not mere assumptions but facts—have the Government based their equality impact assessment on? The policies that we are now dealing with are based on their facts and their equality impact assessment. Therefore, the Committee must understand whether it is assumption or fact. The provision for young people being in this Bill, based on an assumption from the Government that it will stop them coming here, does not seem to stand up to the evidence when it is examined by others.

[Lord Cashman (Lab)]

My Lords, like my noble friend Lord Touhig, I was not going to speak to this group of amendments because the arguments have been put so brilliantly. However, I cannot remain silent. I will be brief.

At Second Reading, I said that I could not believe that we were debating such a piece of legislation in a British Parliament. This afternoon, I cannot believe that we are having to argue for basic, decent, fundamental principles for those who are most vulnerable, and particularly for unaccompanied children who, as others have said, have left their country because they had no other choice. The reality of what they were facing drove them from their families, from their homes, and from a place where they felt that they would be safe and where they belonged.

I merely say this to the Government. The Government have two options: to work with those who have tabled these amendments to make a disgusting piece of legislation less so, or to explain to me and other noble Lords why these amendments are unacceptable and how this Bill will not diminish the rights of the most vulnerable children who present themselves on our shores.

[Lord Purvis of Tweed (LD)]

My Lords, having listened to the debate, I have three questions for the Minister.

First, if I understand the Government’s position correctly, the use of punitive measures against unaccompanied children in this Bill is for a deterrent effect. That is what the Minister said at Second Reading, and it has been a consistent line. For the Government to come to that view, they must have information about the numbers of unaccompanied children that the Bill will affect—otherwise it would have been impossible for them to have determined that this policy will be a deterrent. What is the Home Office’s core estimate of how many unaccompanied children it will require facilities for under this Bill? I know that the Minister has that information in his pack. He must tell the Committee what it is.

My second question is on the Government’s assertion that this measure complies with the UN Convention on the Rights of the Child. The Government say that they will act in the interests of the child. At the moment, the UN checklist is the mechanism used to determine the best interests of the child. Will the Minister commit to the Committee that the UN checklist for the determination of the best interests of the child will be used under the terms of this Bill? If the Government’s plan is for it not to be used, like the noble Lord, Lord Hannay, and others I fear that they will not be acting in the interest of the child according to the UN convention. This is particularly relevant given that the policy shift is moving away from determining what will be the safety of a child and towards what is considered to be a safe country. That is a very radical change. For example, there are a number of countries on the Government’s safe list that they are today advising against all travel to. Therefore, a British official, or any British charity, may seek to accompany an unaccompanied child back to a country that is considered to be safe while the Foreign Office advises against all travel to that area. How can that be consistent? Last year, I visited the Rwanda reception centre in Kigali. There were no children’s facilities. Can the Minister confirm that there are now?

My third question is this. The Government’s fact sheet on children states that:

“For any unaccompanied child who is removed when under 18, we will ensure that adequate reception arrangements are in place where the child is to be removed to”.


That is not true. What in this Bill provides for the assurance and the duty that there will be reception arrangements in place for any unaccompanied child? There is no mention of that in the Bill. The fact sheet cannot be correct if the Bill does not state that this will be the case. If the Minister can tell me where in the Bill there is a duty to ensure that there are reception facilities and reception arrangements in place for a child to be removed to, I would be very grateful.

Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Monday 5th June 2023 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, I rise mainly to introduce Amendment 52F, in my name, but before doing that I would like to endorse everything that my noble friend Lord Carlile has just said. We should recognise that there are countries that people should not be sent to, where convention rights would not then apply to the subsequent refoulement. I also agree with the opening remarks made by the noble Baroness, Lady Hamwee, in moving her amendment. Again, I endorse those and associate myself with those remarks.

The noble Baroness, Lady Hamwee, was one of those who attended a meeting that I organised here before Second Reading of the Bill, which the Salvation Army and a number of other stakeholders attended; the noble Lord, Lord Coaker, was also present. The point about the Salvation Army is particularly relevant because, of course, it is one of the stakeholders that works for the Home Office in dealing with many of the people whom we are discussing in the context of this Bill. Arising out of that discussion, I thought it would be good to table amendments along these lines. In fact, there are others elsewhere in group 19 and I will come back to that in a moment.

In this group—group 4—Amendment 52F would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with international obligations and that detailed assessments are made in respect of protection and support. I remain concerned that the Bill denies access to protections, safety and support for those seeking refuge and victims of modern slavery. I touched on that in previous groups that we debated earlier this afternoon.

In doing so, far from breaking the business model of people smuggling—as the Government repeatedly state—and deterring illegal entry into the UK, I think the Bill merely enhances the ability of people smugglers and people traffickers to operate with impunity. Currently, there has been very little assessment of the implications of the Bill for those seeking refuge and victims of modern slavery, including compliance with international legal instruments, as well as the financial implications if implemented and the effect on the wider modern slavery strategy.

I know the House is waiting with anticipation for the findings of the Joint Committee on Human Rights, which will meet again tomorrow to, I hope, come to a final conclusion about the report it has had to rush—pell-mell, one might say—because of the pace at which the Bill has been taken through both Houses of Parliament. Nevertheless, that report—I hope it will be unanimous but, if not, it will be a majority report—will be available to your Lordships for further consideration in Committee and on Report.

The Bill could have devastating effects on the rights of survivors of modern slavery. Furthermore, it is clear that my concern is shared right across party divides. We have seen that in the context of the debates in another place and the speeches made by people such as Sir Iain Duncan Smith and Theresa May that have been quoted in our earlier debates, but also from the survivors of modern slavery themselves. Indeed, the Joint Committee on Human Rights has had evidence from people who have been victims. I personally found it very moving to hear some of their own accounts. We have also heard from former law enforcement officials, lawyers and people who have dealt with these issues over very many years.

Rather than repeating what has already been said, I will speak specifically to Amendment 52F, which would ensure that there is consultation with relevant stakeholders in the country to ensure compliance with our international obligations and that detailed assessments are made in respect of protection and support. As I have said, the amendment sits alongside Amendments 85C and 92B, which are also tabled in my name but do not come until much later, in group 19. They would put on the face of the Bill an obligation for the Government to carry out due diligence to ensure the safety of those who are removed from the UK to other territories and countries. Indeed, we will come on to that question in a later group of amendments.

These amendments have been drafted with survivors of modern slavery and human trafficking in mind, as they too will be subject to removal from the UK if they have been deemed to enter the country irregularly. We know from experience the time it can take for a survivor to feel safe and begin their journey of recovery. We all know how heightened vulnerabilities need to be protected against trauma and the kinds of experiences people have had to endure, which have been referred to in some of our earlier debates. I cited one example earlier, reported to me by the Children’s Commissioner—I am still shocked by the story of a young boy from Iran who watched his parents being executed. It took him a year to get to the safety of this country, and the idea that he could be returned to who knows where, who knows when, is unconscionable as far as I and probably most Members of the Committee are concerned. That is why we have to think very carefully about the protections we place in the legislation. We also know that removal of survivors to another country against their will—or the fear that they might be repatriated—can exacerbate their vulnerabilities, delay or prevent that recovery process and unfortunately lead to the individual being re-exploited or re-trafficked, doing nothing to break the wicked cycle of exploitation.

If the Government insist on pushing forward with these plans of removing trafficking and modern slavery survivors from the UK, they must do so with the utmost diligence and transparency. That is why Amendment 52F would require the Government to undertake comprehensive assessments, including detailed consultation with relevant safeguarding and support organisations in the country or territory to which the survivor may be removed. It would also require the Government to assess the human rights situation of the relevant country, the protection and support available to potential and identified victims, the risks of further harm by exploitation and trafficking, and the risk of direct and indirect refoulement in that country.

The amendment would also require the Government to confirm whether the duty in Clause 2 and the powers in Clause 3 would not contravene both national and international legal instruments, including but not limited to: the Equality Act, the European convention against trafficking—which I referred to in an earlier group of amendments—the refugee convention, and the UN Convention on the Rights of the Child, which we discussed at length in an earlier group.

Many of us in this House and in the other place will continue to work to ensure and enshrine the rights of survivors of modern slavery. Amendment 52F, alongside Amendments 85C and 92B when we get to them, are there to ensure some level of transparency and due diligence, which have so far been lacking within this process. The removal of survivors from protection in this country risks fuelling the cycle of exploitation that consumes lives and spits out profits for ruthless criminals. For this reason these amendments have been tabled, to ensure that the bare minimum is done to ensure the safety of those who are at risk of further harm of traffickers.

In summary, I will make four points. First, the amendment is primarily about ensuring that if there is intention to remove people to specific countries, there is a detailed understanding of both the risks and legislation, policy and practical resources in-country to meet the needs of those seeking refuge and victims of modern slavery.

Secondly, the amendment would require an assessment of the levels of protection and support, including risks of trafficking and retrafficking and wider direct and indirect non-refoulement.

Thirdly, detailed consultation with national and international stakeholders will mean greater transparency for the implementation of this legislation and make sure that it is put into place with appropriate structures around due diligence and accountability given the significant implications for those seeking refuge and victims of modern slavery.

Lastly, it would necessitate the Government making clear how the duty in Clause 2 and the powers in Clause 3 do not contravene national or international legal instruments in the implementation of the Bill should it become law, which includes those various international conventions which I referred to earlier. The failure to be able to declare the compatibility of the Bill with the European Convention on Human Rights speaks to the remarks made earlier on today by my noble friend Lord Hannay about the reputational loss there will be to this country if we are seen to be derelict in our upholding of conventions and treaties which have served us so well in the past.

[Lord Cashman (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Alton, and I agree with every single word he said in respect of protections and securities for the most vulnerable.

I have added my name to the amendments in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Bennett. I will not repeat the excellent intervention by the noble Lord, Lord Carlile, but I refer the Committee to the contribution by the Minister—the noble Lord, Lord Murray—on day one of Committee, when he categorically rejected my explicit reference to LGBTQ as a protection because he said, quite rightly, that it is covered within the definition of a social group. Therefore I am sure—or rather I hope—that the Government will have absolutely no problem with our intention within the amendments, removing countries or adding corrections for definitions.

I want to look in particular at Amendment 50 in relation to Rwanda. We do not believe it is appropriate to include Rwanda when there are legal proceedings currently in the Court of Appeal as to the legality of the removal arrangements, otherwise the Government may contend that, whatever the courts in the UK or the European Court of Human Rights may say, Parliament has by this Act approved the removal arrangements in respect of Rwanda, and that trumps any court decision under our constitution.

I also want to refer to Amendment 43A in relation to Hungary and Amendment 49A in relation to Poland—both members of the European Union, as your Lordships know. We believe it is not appropriate to include these countries, because both Hungary and Poland are subject to proceedings under Article 7 of the Treaty on European Union. Such proceedings apply where the appropriate majority of the European Parliament or the Commission and the council

“may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”

of the Treaty on European Union, which provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. I do not have to remind your Lordships that there are, and have been for many years, deep concerns within both Hungary and Poland about the discrimination faced by LGBTQ people and the ongoing threats to their safety.

--- Later in debate ---

[Lord Bellamy (Con)]

My noble friend Lord Murray tells me that that is already in train—or, certainly, there is no objection from the Government’s point of view.

[Lord Cashman (Lab)]

My Lords, I too thank the Minister for his patience and graciousness. Given the amendments that I raised, which I co-signed with others, particularly with the noble and learned Lord, Lord Etherton, and given the notion that deterrent trumps all, I am still not reassured that a person would not be returned to somewhere like Uganda, where you face 14 years’ imprisonment or the death penalty for “aggravated homosexuality”. I am not reassured that a person will not be sent to those countries if they are at serious risk. Historically—and I shall close on this intervention—in the Home Office, people have been told that they will be returned to countries where they should not make their sexual orientation or gender identity known. I do not want us to return to those days.

[Lord Bellamy (Con)]

In taking full account of what the noble Lord, Lord Cashman, has just said, which was obviously a powerful comment, I simply reiterate, as I have said to the noble Baroness, Lady Chakrabarti, that the Government will consider the content of this debate. However, I reiterate first of all that this is a judicial and not a Home Office decision, and that those concerned will need to explain to the tribunal why they do not want to be sent back to these countries.

Illegal Migration Bill

Lord Cashman Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

We do not go so far as the JCHR has. We are seeking to qualify the power to at least make it clear that it cannot be exercised in a way to remove from the list any of the examples that are set out in Clause 38(4). We assume that that is not the intention, but it is a possibility because of the wide wording of the provision as it stands. The safer course is to make it absolutely clear that the power cannot be exercised in that way. Perhaps the Minister would be kind enough to give us a little more explanation as to the circumstances in which the power would be exercised and the extent of it. If it is not the intention to remove any of the examples set out in subsection (4), I would have thought that a proviso to make the exact position entirely clear would be perfectly acceptable. That is the point we make in Amendment 110.

[Lord Cashman (Lab)]

My Lords, I will speak briefly to the amendments in this group. In so doing, I refer your Lordships to my entries in the register of interests, particularly as patron of the AIDS and HIV charity, the Terrence Higgins Trust.

I particularly support the amendments of the noble and learned Lord, Lord Etherton, who brilliantly explained the reasoning behind them. As he says in his explanatory statement to Amendment 105, the current wording of Clause 38(5)(c) is too wide and would preclude

“a human rights claim pursuant to Article 3 of the European Convention on Human Rights”,

which the Government are suddenly clinging on to. It would also preclude a protection claim pursuant to the refugee convention. I am not a lawyer, so I will not dwell too much on those matters; however, I support the argument that what is proposed in this clause is not in conformity with the jurisprudence of the European Court of Human Rights in Strasbourg and not in accordance with the jurisprudence of the United Kingdom.

At the heart of this provision is the removal to the so-called safe countries in Schedule 1. As your Lordships will know, I am not alone in my concerns; they were discussed with great concern on the first and third days in Committee and today. Indeed, the Minister, the noble and learned Lord, Lord Bellamy, tried to reassure me and others that the list was really an amalgam and that the countries, where people who might be subject to discrimination because they belong to a particular social group will be going, might perhaps say, “We don’t want them”. That is a wonderful hypothetical answer, but my reply is: what if a person who is HIV positive is sent to a country, such as Uganda, where that person, if they are lesbian, gay or bisexual, would have to say to their medical practitioner that they are lesbian, gay or bisexual? That medical practitioner, if they did not reveal that information to the Government, would face two years’ imprisonment, while the person receiving treatment themselves could be criminalised. That is just one country from a huge range of countries, not only around the world but particularly within the Commonwealth. Some 80% of the countries of the Commonwealth currently criminalise people because of their sexual orientation and gender identity.

Because of the lateness, I will now take my place. But for the reason I have just cited, and many more, I heartily and unreservedly support these amendments, particularly those of the noble and learned Lord, Lord Etherton.

[Lord Carlile of Berriew (CB)]

My Lords, I will speak in support of both my noble and learned friends, who sit to my right in the Chamber. I am particularly grateful, as I think the whole Committee is, to my noble and learned friend Lord Etherton for the very clear exposition he gave of the law and of the consequences of these provisions which change the law.

I will put my very short analysis of this into “faults” and “conclusions”. Clause 38 is word soup, full of tautology and contradictions—the sort of thing that makes fortunes for lawyers if they can get in front of judges, like my noble and learned friends in the very senior courts, and make esoteric arguments based on an analysis of the text. The word soup is most certainly not a consommé clarified by the use of egg whites, so that you can see through it to the bottom of the bowl. It is more like a sort of mad minestrone, into which the draftsman has thrown every word vegetable that he or she could find.

Let us look at Clause 38(3), where the “serious harm condition” is in inverted commas. I was taught at school never to use inverted commas, if you could avoid it, because they show a weakness in your argument, unless it is a quotation that someone said. It says:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a real, imminent and foreseeable risk”.


Supposing we missed out the words “real, imminent and”, what difference would it make if it simply read,

“before the end of the relevant period, face a … foreseeable risk of serious and irreversible harm”?

If one missed out the words “and irreversible”, would it mean less if it read:

“The ‘serious harm condition’ is that P would, before the end of the relevant period, face a … foreseeable risk of serious … harm if removed from the United Kingdom”?


What are they trying to gain by the word soup—the possibility of making bizarre submissions in front of the senior courts in which my noble and learned friends sat?

After those comments, if you were asked, “What does all this mean?” by a lay man who might be up at 10.10 pm looking at parliamentary TV or parliamentlive.tv and fascinated by every word in this debate, you would say to him, “Just go and have a look at Clause 38(5)(c)”, which refers to

“where the standard of healthcare available to P in the relevant country or territory is lower than is available to P in the United Kingdom”.

They—or at least those who were well informed enough to be sitting up at 10.10 pm, watching parliamentary TV—would immediately say, “This is deliberate discrimination against gay men”. What else is this for?

We should be ashamed of ourselves if, at least when it comes to Report, we allow this kind of provision to remain in the Bill and do not help my noble and learned friends to pass their amendments. But I hope that we do not have to reach that stage, because this word soup should seem as ridiculous to our noble friends the Ministers as it does to some of us.

Illegal Migration Bill

Lord Cashman Excerpts

Report stage
Wednesday 28th June 2023 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, we cannot countenance a situation in which people who sought asylum here because of a well-founded fear of persecution in their country of origin are then removed to a third country where they may face a similar, or even greater, level of risk. For that reason, I join others in supporting Amendment 37.

It was my privilege earlier this year to be invited to attend a reception on the Parliamentary Estate, where I met a group of LGBTQI+ women who had sought and gained asylum in this country. Their stories were harrowing. By contrast, their efforts to rebuild their lives here in Britain were inspirational.

It seems to me beyond any doubt that the threshold of safety must be different and, indeed, higher for people like these women—people who are persecuted on the basis of their sexuality or their gender identity. Putting it bluntly, if His Majesty’s Government’s travel advice to British tourists is that they should not be open about their sexuality when visiting certain countries, two things surely follow. First, those same countries are not places to which we should remove LGBTQI+ people; secondly, the Bill must provide explicit protection to that end. The noble and learned Lord’s amendment achieves that aim, and unless the Minister can offer equally concrete protections, I hope that your Lordships’ House will support it at such time as the voting machines are resurrected from the dead.

[Lord Cashman (Lab)]

My Lords, I speak in support of the amendments in this group, particularly the amendment to which I have added my name and which the noble and learned Lord, Lord Etherton, so eloquently expounded, as did the noble and learned Baroness, Lady Butler-Sloss. We have of course addressed, and will continue to address, vulnerable people in all the categories affected by the Bill. We have done so consistently—for example, for pregnant women and vulnerable children, as we have done today, and for others. When it comes to protecting the vulnerable, that is arguably how a country is judged, so we make no omission when dealing with Schedule 1.

As was said earlier—I will be brief—there are 63 countries that currently criminalise people merely because of their sexual orientation or gender identity. In a country such as Uganda, for example, for you to know that somebody is in a SOGI minority, as the UN refers to it, and not to report it to the authorities is to face two years in prison. If in Uganda you rent a home to a homosexual person, you can face up to 20 years in prison. Some 63 countries criminalise; now seven have the death penalty. The reality of state discrimination, as has been said, is death, mutilation, persecution, blackmail and coercive rape. I remember David Kato, the Ugandan activist murdered some nine or 10 years ago; his murderer has still not been brought to justice. Lives are being denied, blighted and criminalised.

We raise this issue because within Schedule 1 the majority of those countries that criminalise and offer the death penalty are on the list and there are currently no protections. We have sought reassurances throughout—at Second Reading, in Committee and now—but reassurances there have come none.

Let me finish with the words of a young Ugandan, Arthur Kayima, who said this, yesterday, here in Parliament:

“Without a Mother I grew up as a very vulnerable child and as if that was not enough, as a child, signs of not being straight were just too visible”.


Growing up in a country like Uganda, he said, being considered gay is to be considered evil—

“a curse, an abomination and a dangerously unforgiven sin”.

He continued that the President of Uganda, Museveni,

“signed into law the world’s harshest anti-LGBT+ law, which allows the death penalty for homosexual acts, long serving in prison for promoting homosexuality or renting a room to a gay couple (20 years in prison)”.

Without any reassurances, Uganda is on the list in Schedule 1.

That is the reality of being in a country with homophobic laws: those words, spoken by a man seeking asylum in the United Kingdom. No LGBT person should be sent to such a country, and that is one of the many reasons why I support Amendment 37, in the name of the noble and learned Lord, Lord Etherton.

[Lord Coaker (Lab)]

My Lords, I will briefly remind the House why this set of amendments is extremely important. I particularly support Amendment 37.

The thing to remember—I remind us all—is that the Bill automatically detains everybody who arrives irregularly. All those who arrive irregularly and are detained will then, at some point, as far as the Government are concerned—although this is unclear—be deported. There will be thousands upon thousands of people detained and then deported.

The amendments are extremely important, therefore, because if we are saying that thousands upon thousands of people are to be automatically detained and then deported, is there not a responsibility to ensure that the places where those people are to be deported to are safe? This puts an increased burden upon us to ensure that that is the case. As it stands, the Government will reply by saying that Clause 5(5) refers to “exceptional circumstances”, and that therefore there is no need for the worries and concerns expressed by a number of noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, because if anybody faced deportation to a country which was not safe, the exceptional circumstances would protect them.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, the Government Front Bench will reflect, as your Lordships would expect, on submissions made on the Floor of the House at this stage. With respect to the noble Lord, I will defer my consideration of that point until later in my submission and will take matters in a different order. I will return to that point.

[Lord Cashman (Lab)]

My Lords, I accept the principle of non-refoulement to a country—a Ugandan going back to Uganda—but there is the wider issue of a gay Ugandan being sent to a country such as Gambia or Kenya. I seek reassurances on that.

Illegal Migration Bill

Lord Cashman Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Lord Lilley (Con)]

I have reread the debate on 9 December and he does not give a policy in it. I ask him to reread it himself, come back to the House and tell us what that policy is. Because it is not there; it is a non-policy. His policy for other people to have policies is not a policy.

[Lord Cashman (Lab)]

My Lords—

[Noble Lords]

Order!

Illegal Migration Bill

Lord Cashman Excerpts

Consideration of Commons amendments
Wednesday 12th July 2023 Lords Chamber

Why is that important? That is important because we do not want to reach a situation with a constitutional debate about whether the approval of Schedule 1, with Rwanda in it, means that the Government can say that, whatever the courts decide, Parliament, having legislative sovereignty under our constitution, has determined that it is a safe place, and so that country must be identified as one which is unsafe, unless and until some litigation is found—if it is ever found—in favour of the Government in relation to Rwanda, and that may never happen. On that basis, I will seek to press my amendment.

[Lord Cashman (Lab)]

My Lords, I will speak very briefly to the amendment in lieu, in Motion G1, in the name of the noble and learned Lord, Lord Etherton. Taking what the Government have said at face value on their protections of LGBT people, I ask them to accept the amendment, because it reinforces the principle of the protection of LGBT people and others.

On reflection, I point out that, of the 58 countries that currently criminalise homosexuality—and they are on the increase, as we have seen with Uganda—over 50% are in the Commonwealth. They are countries with which we are more than likely to reach safe third country agreements. Furthermore, 11 countries currently have the death penalty, and there is further agitation for the increase of that across other states. I therefore argue that the amendment is proportionate and necessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate the noble Lord, Lord Carlile, on getting a concession from the Government and understand the point he made with his Motion, which I understand he will not move. I am pleased that it has been accommodated.

The noble Lord, Lord German, explained his amendment extremely well; it provides a backstop for the taxpayer to stop people going into legal limbo, being a burden on the taxpayer indefinitely and getting into the grey area which so many in this situation are in right now. As he said, it is totally in line with the Government’s expectations of the Bill, so if the noble Lord chooses to press his Motion F1 then we will support it.

My noble friend Lord Cashman summed up the support for Motion G1, in the name of the noble and learned Lord, Lord Etherton. If he chooses to move it, we will support him. As my noble friend said, it reinforces the principle of protection for LGBT people. In the words of the noble and learned Lord, Schedule 1 should not provide a veneer of respectability to certain countries that are currently on it, so we would support him.