Border Security, Asylum and Immigration Bill

Lord Faulks Excerpts

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am inclined to agree with the noble Lord, but that does not lead me to have any sympathy at all for Amendment 203J.

[Lord Faulks (Non-Afl)]

The noble Lord says that it would be “Trumpian” to take the course that is being suggested. Supposing that in the Supreme Court, the majority and the minority had been the other way round—and it may be that the majority was taking the correct view—there would be a decision of the Supreme Court which would be at odds with his interpretation and general understanding of the refugee convention. Why is that Trumpian? When we have a dualist system in this country, where we are capable of legislating for our own interests, why is it Trumpian to say that we cannot do that?

[Lord Horam (Con)]

I am very interested in the remarks made by the noble Lord, Lord Kerr. He always makes a very pertinent point, but this is surely wrong in common sense. I do not speak as a lawyer, as the noble Lord, Lord Faulks, did, but this is common sense. Surely, as my noble friend Lord Murray said, the refugee convention as it stands would want someone from Afghanistan to be accepted in a country near Afghanistan, and they would probably prefer that. But that person is given four or five alternatives. He need not stop in one country or another country. Surely it is designed to discourage “asylum tourism”, whereby you decide which countries suit your purpose.

That is surely something we shall consider. It is not necessarily the case that someone coming from Afghanistan will be sent back to Afghanistan. They may come from France, in which case they may stay in France, where they are in no danger. If they go via Italy, they are in no danger there, either. Surely this is the logic of the situation, which ordinary people cannot understand. Why do we have to accept these people who come through multiple countries when there is a refugee convention which accepts that they need not be accepted if they have come through more than one country?

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[Lord Gascoigne (Con)]

My Lords, I am conscious that this has been a long group already, and I know that the Government Whips will be staring at me with glaring eyes. I did not intend to speak in this debate; this is my first raising of my head into the fray of the Bill. I was listening to what my noble friend and others have said. As some will recall, I was answering from the Dispatch Box on behalf of the Home Office at the tail end of the last Government, and I confess to the noble Baroness, Lady Chakrabarti, that, I am sorry to say, I was involved in the drafting of the then Rwanda deal in No. 10 when one of the previous Prime Ministers was there. It was good then; it is good now.

[Lord Faulks (Non-Afl)]

The noble Lord says that it was good. There was a provision in the Rwanda Bill which said that, notwithstanding deeming that Rwanda was safe, it might not be safe for the individual, so the Bill would not even have worked.

[Lord Gascoigne (Con)]

I suppose that was a slight defect of the Bill, but that ship has sailed. The crucial point, which I will come back to—and I respect the noble Lord enormously—is that the Rwanda deal had a deterrent, and that is what we are lacking. It may have been only for small numbers, not anywhere near the numbers we wanted, but it was a deterrent. It was one part of a series of steps that we should have taken, but, as I say, that ship has sailed.

I am backing the amendments from my noble friend Lord Murray and my noble friends on my Front Bench, certainly not because I have been asked or told to, and, as my noble friend Lord Jackson said, this is not about pulling out of the ECHR or the refugee convention, nor—as I think the noble Baroness, Lady Lawlor, was saying—about saying that we do not want to accept any refugees, but because it is about tackling illegal migration and the crossings we have had.

We have seen one so-called spectre raise its head today in the form of the elected President of the United States. There is another spectre on the horizon that we have not yet heard about, but I am sure we will at some stage: Reform UK and Farage. It is certainly not a view that I share, nor is it that of Reform voters. I am not saying that the Ministers do not know this, but I echo what the noble Baroness, Lady Fox, and the noble Lord, Lord Empey, said: outside this hallowed hall there is a genuine, deep, growing sense of unease, anger and frustration, which is building. I know that it is not unique to this Government, as it has been growing for some time, but it has grown exponentially of late because of this sense of injustice and lack of control.

As I think the Government have said—which the noble Baroness, Lady Fox, alluded to—crucially, we need a deterrent to tackle the crossings. We have to grip this; we have to tackle the numbers and, as I think my noble friend Lord Goschen was saying, we have to tackle the pull factor. There is no deterrent in the Bill as it currently stands. That is why I wholeheartedly support my noble friend, and the two amendments from my Front Bench.

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[Lord Cameron of Lochiel (Con)]

My Lords, this has been a very wide-ranging debate that has departed in many ways from the list in the group that we are debating. But it has been a worthwhile and fascinating debate and, as my noble friend Lord Gascoigne said, the context for it has to be what he termed the growing sense of injustice on the part of many people in this country about the direction of our immigration system. That should be borne in mind by us all as we debate not just this group but the Bill in general.

Returning to the amendment in the name of the noble Lord, Lord Browne of Ladyton, which attempts to remove Section 59 of the Illegal Migration Act from the statute book, I suggest that the principle of that section is straightforward and hard to disagree with. That principle is: if an individual is a national of a country where there is no general risk of persecution, where human rights are respected and where there is access to justice and democratic accountability, is it not right that their claim be considered inadmissible unless there are exceptional grounds? Is it not right that, instead, we focus our finite resources and time on those fleeing regimes where oppression, conflict and state violence are real and present dangers?

The practical benefits of Section 59 are significant. It reduces administrative and clerical delay, streamlines caseworking, ensures that officials can focus on the most serious and urgent claims, and establishes a clear statutory list of safe states, with the ability to amend that list through accountable parliamentary procedure. That list is not set in stone; it can change, and it creates both clarity and flexibility.

By failing to adopt this section, we risk achieving the opposite. We risk a system clogged with vexatious or unfounded claims by legal gamesmanship—I say that as a lawyer—and by delay, which comes at a cost not only to the taxpayer but, more importantly, to those who truly do need our help: the victims of torture, persecution, war and trafficking, whom we have a moral duty to protect. I suggest to the Committee that Section 59 helps to ensure that that duty is fulfilled, not diluted, and that it prioritises principle, preserves the fairness of the system and promotes justice. For all those reasons, and despite my long-standing respect for the noble Lord, I am unable to support his amendment.

Amendment 192, tabled in my name and that of my noble friend Lord Davies of Gower, does not target genuine refugees or close the door to those in real and urgent need who use safe and legal routes to come to the UK. It ensures that the law applies equally to all and that those who enter this country legally or who make claims from safe third countries are not placed at a disadvantage compared to those who enter clandestinely or via criminal routes. We cannot have a two-tier legal system: one for citizens and legal migrants and another for those who deliberately breach our laws and then ask for protection. We need to remember that this is not just damaging for us and our legal system; it is damaging and dangerous for the migrants themselves. It hands power to the criminal or gangs; it encourages risky and dangerous unlawful crossings; and it ensures that vulnerable people are drawn into a system that is harder, not easier, to navigate.

That ties in with Amendment 203J, tabled by my noble friend Lord Murray of Blidworth and spoken to by him with his customary lucidity and compelling arguments. I note that it was supported by the noble and learned Lord, Lord Hope, at least tentatively, and he prayed in aid Lord Rodger of Earlsferry in the court case that he mentioned—two of Scotland’s most eminent jurists of the last 25 years. My noble friends Lord Murray and Lord Jackson of Peterborough and many others made excellent points about that amendment, which has a simple and sensible underlying premise: genuine asylum seekers should claim asylum when they get to a safe country. Travelling through multiple safe countries and then attempting to cross the channel to claim asylum in the UK is an abuse of that system, and I therefore support that amendment.

[Lord Faulks (Non-Afl)]

What is the noble Lord’s answer to the point made by the noble Lord, Lord Kerr, that we have no business interpreting the refugee convention on a domestic level and that it is a matter for the wide world that considers the convention?

[Lord Cameron of Lochiel (Con)]

I am grateful to the noble Lord. My answer is that it is our business and that we can devise an asylum and immigration system for this country—and that entitles us to make the points that not only my noble friend Lord Murray but the Conservative Party Front Bench have made throughout the Bill: that this is about achieving a system that deters illegal migration and yet allows those who are in real need to use safe and legal routes to come to the UK.

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[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

I am grateful to noble Lords for what has been a very wide discussion, wider than I anticipated. I sense that at the end of the debate I probably will not have satisfied many noble Lords in the Chamber today, but such is the nature of government responsibilities.

I was not intending to say this, but given the comments from the noble Viscount, the noble Baroness, Lady Fox, the noble Lords, Lord Gascoigne and Lord Empey, and others, I think it is worth setting out that the Government have taken this issue extremely seriously in their manifesto and in their actions, not just in this Bill but in the immigration White Paper that we have published and in the unilateral actions that we have taken independently without requiring legislation. The issues of illegal entry, defining our asylum system and tackling an effective immigration system are extremely important. I do not wish to rehearse all the arguments, but it is worth placing on the record again that this Government have spent time talking to their allies in France and agreed the treaty looking at an exchange. It is a pilot that will be looked at in detail. We are working with the Calais Group of Belgium, France and Holland on international action to stop smuggling. We are working downstream with the German Government to tackle issues to do with boat manufacture and transfers. We have signed agreements with Iraq. We have put powers in this Bill to establish the Border Security Command and to make some activities criminal, which we discussed earlier today. We have a commitment to end hotel use by the end of this Parliament and we have saved £1 billion-worth of expenditure over the past 12 months by reducing the number of hotels being used but also by maximising the use of those hotels. We have put a lot of energy into cracking down on illegal working to try to stop some of the pull factors that make people think they can come to this country, disappear into the system and work illegally. We are trying to crack down on that and we have increased the number of arrests and prosecutions. We have speeded up the asylum claims system, because at the heart of this is determining who has a right to stay in this country and removing those who do not. We have speeded up the processing of asylum claims and removed 9,000-plus people in the past 12 months who have no right to be in the UK.

A number of Members have said that the Bill seems to have been frozen in time and things have moved on. I can assure the noble Baroness that we will have a debate about how lily-livered she is—we can discuss that in due course in a friendly, competitive way—but we are continually looking at these issues. The measures that my right honourable friend the Home Secretary has brought forward this week are based on the assessment that she has made of the situation, which is ongoing. To give the example of this week, if we find that family reunion applications have increased by over 100% in the past two years and there is a big issue in terms of people coming to the country through that route, it is right to suspend that family reunion route to review it, as we will do very shortly. That is what Governments do. We look at the problems and challenges and we review it.

We have set out measures in this Bill to establish a fairer, stronger system. We have done the same in the immigration White Paper and we have taken actions accordingly elsewhere to have a purpose. I do not want to see the type of concerns, distrust and disorder that there are around hotel use and people who are here while their asylum claims are assessed. I want to understand those concerns. I am not making this a party-political issue. The concerns that have arisen over the past nine years are driven by small boat crossings. The noble Lord, Lord Gascoigne, stood at this Dispatch Box while I had my interregnum from both Houses of Parliament and made cases for the Rwanda scheme, which he has admitted today had some flaws and which we have taken a decision to repeal in full. I think that we have a shared understanding from all sides of this Committee that this is an issue that needs to be challenged and tackled, which is why we are setting out the measures today.

There are a number of amendments before us, and I shall try to talk to them as a whole, starting with the Opposition Front Bench, because they are the Opposition and they are the Front Bench, so it is fair to start with them. I shall return to my noble friend Lord Browne in due course.

The two amendments from the noble Lords, Lord Cameron and Lord Davies, Amendments 192 and 193, seek to widen the current inadmissibility provisions. Currently, individuals can be removed to a safe third country if their asylum claims are declared inadmissible. That includes illegal entrants as well as other claimants whose asylum claims are liable to inadmissibility. The inadmissibility process is intended to support the safety of asylum seekers and the integrity of the border, as well as the fairness of the asylum system, by encouraging asylum seekers to claim asylum in the first safe country they reach, deterring them from making unnecessary and dangerous onward journeys to the UK.

For a claim to be declared inadmissible and not substantively considered by the UK, the individual has to have been present previously in, or have a connection to, a safe third country where they could claim asylum or could reasonably be expected to have done so. Under Amendment 192, anyone who arrives illegally must have their asylum claim declared inadmissible. With due respect to the noble Lord, that amendment would mean in practice that all asylum seekers who entered the UK illegally would have their claims declared inadmissible, with no regard for whether there is a safe third country for them to return to. Such an approach would, in my view, mean a rapidly growing number of people whose claims would be inadmissible, which in turn would mean that we could not establish whether they qualify for refugee status. In that scenario, those individuals would be in a holding position, unable to be removed, including those with genuine claims who would have their claims assessed now under the system, where 60%-plus of people who make a claim have it approved. That is a difficult challenge. It is with integrity that the noble Lord has moved the amendment, but it is difficult, and it would not have the objective that he seeks.

Similarly, with Amendment 193, the noble Lord also seeks to ensure that individuals will have their asylum claims declared inadmissible when they fail to register an asylum claim within 12 months. Again, there is a motive behind that which has an integrity, but it is one that I cannot share. Some people do lodge asylum claims in an opportunistic manner, sometimes to extend the time that they can remain in the UK, but this amendment would not deal with that particular issue. It would simply extend indefinitely the time in which those individuals would be able to remain in the UK because, without an ability to examine their claims, we cannot determine whether they qualify for refugee status.

The amendment also fails to take account of sur place refugees, which would mean that anyone lawfully in the UK from a country in which the circumstances have changed—and we have had much discussion around that today—in a significant and detrimental way, for example if there has been an armed conflict in the 12 months they have been here, would be unable to avail themselves of the protection of the UK.

In contrast to that, we have the amendment from my noble friend Lord Browne, the noble and right reverend Lord, Lord Sentamu, the noble Lord, Lord Cashman, and the noble and learned Lord Hope, have spoken in support of it. That amendment would repeal Section 59 of the Illegal Migration Act, which amends Section 80A of the Nationality, Immigration and Asylum Act 2002, which itself provides that asylum claims from EU nationals must be declared inadmissible to the UK’s asylum system, other than where exceptional circumstances apply. Inadmissibility procedures in this section allow a state to declare an asylum claim inadmissible when the claim is made by nationals of countries that are declared generally safe. It is an important, long-standing process that can help prevent asylum claims from nationals of countries that are safe absorbing the limited resources that we have.

I understand the motivation behind the amendment from my noble friend, but I remind the Committee that Section 59 is not yet fully commenced. Indeed, the only part of Section 59 that has been commenced is the power to add or remove countries from that list of safe countries. However, and this goes to the question posed to me by the noble Lord, Lord German, the Government believe that it is important and the right approach to retain the flexibility to expand the use of inadmissibility in the event that we see asylum claims from individuals from countries that we would generally consider safe. That addresses the point that my noble friend made.

Amendment 203J has had support from a number of noble Lords, including the noble Baronesses, Lady Fox of Buckley and Lady Lawlor, the noble Lord, Lord Jackson, and the noble Lord, Lord Murray, who proposed this system. We have had some discussion around ECHR Article 8 and the French treaty from the noble Lord, Lord Jackson. Let me just say again, for clarity and for this Committee, that the Government believe in the ECHR and are committed to our international obligations, for a whole range of reasons that I have outlined on a number of occasions, but that does not mean that we cannot look at things.

The Article 8 provisions that we have trailed that we will look at, which again goes to other points that have been made by other noble Lords, are issues that we will return to in the coming months that we want to consult on, including consulting colleagues in the judiciary to ensure that we have an understanding of the interpretation of Article 8 and whether it needs to be tightened to ensure that the country is not taken for a ride by individuals using that premise under circumstances where effectively they are using it as a last resort, in a way in which we all really think is inadmissible, to use a word that we have used a lot today. I do not think that that is appropriate. That Article 8 review is ongoing. The French treaty that we have established is in pilot form and we will review it during this month. We hope to extend it further and I shall report back to the House on the numbers involved. There are other tools that we are working on to ensure that we help put some energy into tackling this important problem.

[Lord Faulks (Non-Afl)]

I am grateful to the Minister for taking this intervention and grateful to him as well for explaining in general terms what the Government are thinking about. I understand why at the moment he cannot be more specific. He says that the consideration is to Article 8, but should it not also embrace Article 3, which is very often used in circumstances where many people would raise a question as to how appropriate it is?

[Lord Hanson of Flint (Lab)]

I am happy to examine that. We have said publicly that Article 8 is the focus for our examination, discussion and wider review. However, that does not mean—and this is the key, important point—that we will ditch the ECHR. Although it is 75 to 80 years old and was established in 1950, as a number of noble Lords, including Lord Kerr, have mentioned, it establishes a number of basic rights, which are important to me and to the people we represent and the people in our communities. They set a basic framework, but that does not mean that we cannot look at how those interpretations are made. That is why we are trying to do that.

To come back to Amendment 203J from the noble Lord, Lord Murray, this would impose a legal obligation to refuse all asylum claims made by illegal or other irregular migrants who travel from safe countries. The stated intention of the measure is to deter such people from using dangerous and illegal methods to enter the UK. I am with the noble Lord, Lord Kerr, on this: the amendment would not achieve that aim. Refusing a person’s asylum claim and proposing removal to their country of origin without consideration of the merits of their claim would put the UK in breach of its obligations under the refugee convention. We may not want to be in the refugee convention, but we are in it and we cannot in my view unilaterally breach those obligations accordingly. Even if a person’s asylum claim could be refused on account of this measure, the humanitarian protection claim would still need to be properly considered on its merits.

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[Lord Hanson of Flint (Lab)]

The intervention that I took invited me to examine that issue. I have said I will examine it, but, as I said in response to that question, the focus of the Government as a whole is on Article 8. We anticipate energising the review of Article 8 to ensure that we examine how it is currently interpreted, what actions are taken as a result of the article, and whether further guidance needs to be issued about those matters. In response to the intervention as to whether I would look at Article 3, I have said that I will look at the point that was made then. The focus of the Government is Article 8.

[Lord Faulks (Non-Afl)]

To clarify the position, I was not suggesting derogating from Article 8. The possibility of giving guidance to judges is, I believe, under consideration and it may be that, in resolving issues under both Articles 8 and 3, it might be necessary for the Government to think again as to what guidance to give to courts.

[Lord Hanson of Flint (Lab)]

I thought that was what I said. I hope we can agree, at the end of this group of amendments that was livelier than I initially anticipated, that the Committee can support the Government’s direction of travel. However, I hope the amendment before the Committee today will be withdrawn.

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[Baroness Brinton (LD)]

My Lords, it is an honour to follow the noble and learned Baroness, Lady Butler-Sloss, who eloquently set out some of the history of the most recent slew of immigration Acts.

I have a slightly more practical question for both the noble Lord, Lord Cameron of Lochiel, and the Minister, which relates to the various lists of safe countries. The Opposition will discuss their Amendment 120 later. In Amendment 109, proposed new subsection (5) states:

“P may be removed to a country or territory … only if it is listed in”


their proposed new schedule. That schedule is in Amendment 120, where, for many of the countries listed, it states “in respect of men”—in other words, men will be regarded as safe to go back to that country. However, many of those countries already have severe discrimination against LGBT people, including men. In some countries, it is punishable by death and, in others, by imprisonment—but, much more importantly, society feels at liberty to attack and kill gay men. I ask both the Minister and the Opposition spokesperson: what happens to an individual in that position, where the country is regarded to be safe in general but for one group of people it is clearly not?

[Lord Faulks (Non-Afl)]

My Lords, I am sure the Minister will answer that question in due course.

The noble and learned Baroness suggested that the Government should not even be asked to respond to these amendments. With very great respect, I do not agree. The previous Government’s Bill that eventually fell away—the Rwanda Bill—was intended to provide a deterrent. I think it is common ground that a deterrent is necessary. The nature of that deterrent may be very much in dispute. Government thinking is still forming on the best way to deal with this very real problem.

The Government need to come up with a response. They had quite a lot of time in opposition in which to generate what they thought was an appropriate deterrent. They have now been in power for a year, and it appears that there is more thinking going on in recognition of the very real problem that they face. In my respectful view, the Government have a case to answer as to what precisely the deterrent will be. What will prevent what we see in our papers and on our screens every day?

My second point is about Amendment 107 and the interim measures of the European Court of Human Rights. I think it was during the Minister’s interregnum that there was a great deal of debate about the interim order made by the European Court of Human Rights. Even the most fervent defender of the European Court of Human Rights would be hard pushed to defend the order it made, which rejected a decision by our courts. It was made by an unnamed judge, it did not give the Government an opportunity to make representations and it did not have a return date by which, in accordance with normal practice, a Government or any other party would have a chance to answer the original order. This was a flagrant breach of natural justice, as was more or less accepted.

Whatever form the Government’s policy finally takes, they would be well advised to bear in mind what is in Amendment 107. It would give the Government the chance to consider the appropriateness of the interim measure—it is a very carefully drawn amendment because it gives that responsibility to a Minister of the Crown. There were many debates about whether the European Court of Human Rights even had the jurisdiction to make these interim measures. I respectfully suggest that, whatever else the Government think about these amendments, Amendment 107 ought to be very carefully considered.

[Lord Deben (Con)]

My Lords, I will just ask for two things. First, I hope that the Government will take and answer these amendments seriously. Secondly, I hope that the noble Lord, Lord Cameron of Lochiel, will accept that it is not proper for the previous Government, who failed to answer this problem, constantly to suggest that this Government are also failing.

None of us has an answer to what is a very real problem. We do not help it by saying, “Yah boo, we thought we should do this”, particularly when, we may have thought we should do it, but it would be very difficult to argue that the previous Government were terribly successful at stopping the boats. I plead that we have these debates in a form which says that we want to find an answer to what is a very difficult issue. Both sides have to accept that. The noble Lord, Lord Murray of Blidworth, who is not in his place now, was a Minister and did not solve the problem. I do not blame him for that, because it is an almost impossible problem to solve, due to the whole range of issues that we have talked about.

I hope that the Committee will talk about this issue in a way where we are all trying to solve it, rather than sides trying to suggest that they are better at solving it. We know perfectly well that, at the moment, the Government have not shown themselves able to solve it and the Opposition have to admit that, in all the years of being in power, we did not solve it. Can we start off with a bit of humility on this side and a bit of acceptance of vulnerability on the other?