All 13 Lord German contributions to the Illegal Migration Act 2023

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Wed 24th May 2023
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Committee stage: Part 2 & Committee stage: Minutes of Proceedings Part 2
Mon 5th Jun 2023
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Committee stage: Part 1
Wed 7th Jun 2023
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Committee stage: Part 1
Wed 7th Jun 2023
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Committee stage: Part 2
Wed 14th Jun 2023
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Committee stage: Part 2
Wed 14th Jun 2023
Illegal Migration Bill
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Committee stage: Part 3
Wed 28th Jun 2023
Wed 28th Jun 2023
Mon 3rd Jul 2023
Wed 5th Jul 2023
Mon 10th Jul 2023
Wed 12th Jul 2023
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Consideration of Commons amendments
Mon 17th Jul 2023
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Consideration of Commons amendmentsLords Handsard

Illegal Migration Bill Debate

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Department: Home Office

Illegal Migration Bill

Lord German Excerpts
Debate on whether Clause 1 should stand part of the Bill.
Lord German Portrait Lord German (LD)
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My Lords, on behalf of my noble friend Lord Paddick, who will respond later, I am pleased to suggest the deletion of Clause 1, largely because some parts of it have been scrutinised in huge detail but it has not had that scrutiny as a whole. Also, I suspect that many Members of the Committee are waiting for answers to some of the questions that they raised in the earlier debate. I particularly enjoyed the company of noble and learned Lords of all varieties. During the break, I was trying to think what we might call a collection of lawyers giving such erudite opinions. I have perhaps alighted on “a mêlée of lawyers”. It was interesting that, while they had very different views about what was happening, it was clearly not as simple as saying, “This will be the way in which matters arise from the clause”. We have not yet reached an understanding of the legal position, certainly on Clause 1(5).

The clause is the prism through which the whole Bill is understood. It speaks to its true purpose and impact: to prevent and deter people arriving in the UK irregularly by the threat of their removal, regardless of the rights and conventions disregarded in the process.

While stopping the boats has been the headline, at its heart this Bill enables removal as its primary aim and, in mandating it by statute, people will not have a chance to put their case for asylum in the UK and never be able to acquire leave to remain. There will be extremely limited opportunity for judicial oversight and detention powers will be significantly enlarged.

This is deeply concerning, and it is an approach for which the Government are not even able to provide an impact assessment to demonstrate its efficacy—we have been promised it, but it has not yet been published. Thankfully, the Refugee Council has done an impact assessment based upon the statistics and figures produced by the Home Office, so it would be useful to know, in his reply, how the Minister intends to answer this impact assessment, which is based upon their own figures, without providing the evidence themselves to be able to combat it.

I will not go through the whole detail of the impact assessment produced by the Refugee Council but will focus on some of the headlines. They say that, in the first three years, 30,000 people will be sent to Rwanda; the Government have said that is the total number of people who can be accommodated in Rwanda. Some 257,000 will have their claims rendered inappropriate, undesirable and certainly not admissible. Of those 257,000 people, 45,000 will be children.

Some 193,000 inadmissible people will remain in the United Kingdom because, apart from Rwanda, there is nowhere else to send them. They will be stuck in limbo indefinitely until such time as an alternative can be found. The cost of keeping that number inside the United Kingdom, based upon the current estimates provided by the Home Office, will be £9.6 billion in those first three years. On top of that, we have to add on the 181,000 people still inside the United Kingdom who are waiting for a decision.

It is doubtful, to put it mildly, that this will act as a deterrent to the boat owners. We are currently 20th in Europe, by headcount, on receiving migrants and therefore we are nowhere near the top of the league. The question for the Minister is: does he accept that these figures, which have been produced based upon their own, are correct? If they are not correct, when will we have the evidence to say that they are not?

In excluding the application of Section 3 of the Human Rights Act to those covered by the Bill, there is an expressed acknowledgement that the Bill risks putting human rights at bay. It is interesting that paragraph 5 of the Government’s own European Convention on Human Rights Memorandum says that Clause 1(5), which removes Section 3,

“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.

If that is true, I would like the Minister to tell me whether the removal of Section 3 of the Human Rights Act, as contained in Clause1(5), will still mean that those who are seeking refuge here in the United Kingdom will be afforded the rights under the convention, which says that they will be allowed to have their case heard quickly by those who are detaining them. That is a right under the convention. Is that in contradiction to what the Government are proposing, and is it in contradiction to paragraph 5 of the memorandum which the Government have provided?

The concern, which has not yet been answered clearly and to the satisfaction of many Members of this Committee, about the human rights matters and Section 3 of the Human Rights Act, is a concern also highlighted by the Equality and Human Rights Commission, which of course advises the Government. It advises them that it will create a two-tiered system of human rights protection in this country, whereby an individual’s human rights will be interpreted solely on the basis of how they entered the United Kingdom. That is wrong: a human right is a human right, regardless of whoever that human being is. Here, we are talking about some of the most vulnerable people in the world: the female political activist from Iran; the gay man from Uganda; the young man escaping forced conscription in Eritrea; a family fleeing war in Sudan. Those are the people who are going to be affected most by this clause and this Bill.

The provision of Section 3 is an essential mechanism through which courts can correct human rights violations and enable individuals to access justice. It is a basic moral requirement for governing and one which is in the convention. In its report on the Bill, our Select Committee on Constitution confirmed there has been no Act of Parliament which has yet sought to disapply Section 3 of the Human Rights Act 1998. By its application, Section 3 has also reduced the number of people currently pursuing litigation in Strasbourg because they have been able to secure justice domestically. This clause therefore brings with it the potential for extensive litigation in the future. Any observer of the proceedings on the previous group of amendments will have noted that this may well provide a fair playing field for lawyers as these legal battles develop down the line.

In taking this approach in Clause 1, the Government have accepted the likelihood that they could possibly lead to the UK breaching its international obligations. That puts us on that collision course with the Council of Europe and the ECHR. Having the High Commissioner for Human Rights send a letter to the Lord Speaker, in order that all Members of your Lordships’ House should be able to see the views of the human rights commissioner, was most telling. The last but one sentence was a message to all of us from the commissioner:

“it is now essential that Members of Parliament and Peers prevent legislation that is incompatible with the UK’s international obligations being passed”.

That is the chilling message for us.

I heard earlier about the impact on the rule of law and the way in which these matters will be interpreted by those who look at the reputation of the United Kingdom. I noted the words of the noble Lord, Lord Hannay, in the previous debate. The implications for how people will look at this country seem not yet to have been considered.

The fact that all the provisions in the Bill will have to be read in line with this clause means that it has profound cross-cutting detrimental implications for human rights. Parliament is here as the supreme lawmaker in the United Kingdom, yet this Bill hands broad lawmaking powers, which implicate fundamental human rights, to the UK Government in the form of delegated powers and explicit shifts of power. Our democracy depends on there being a clear separation of powers, and this Illegal Migration Bill represents an attempt at a power shift which enables the UK Government to play the roles of all three branches of state: lawmaker, adjudicator and administrator. In undermining the separation of powers in this way, both the UK’s constitution and our democracy is diminished.

Clause 1 is an extreme assault on the ability of people to have a fair hearing in the UK. The rule of law is essential, and undermining that will upset the influence we have as a country across the globe. The stated purposes, as I outlined at the beginning of the speech, to detain people and send them away from the United Kingdom without having their cases heard, will undoubtedly be debated further in the clauses that are to follow. However, it makes me feel very sad that, at this point, this clause, which lays out in such detail the purpose of the Bill, is one that runs so counter to the principles we uphold as a nation.

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Lord Murray of Blidworth Portrait The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
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My Lords, Clause 1 sets out the Bill’s overarching purpose and provides an overview of the provisions in the Bill. The purpose of the Bill is to prevent and deter illegal migration and, in particular, migration to the UK by unsafe and illegal routes, by requiring the removal from the UK of individuals who arrive in breach of immigration control.

Subsection (2) then summarises the key provisions of the Bill that advance this core purpose, including the duty on the Secretary of State to make arrangements for the removal of persons from the UK who meet the conditions in Clause 2.

The numbers arriving on small boats in 2022 exceeded 45,700, and, as I set out at Second Reading, the Bill is essential to deal with these illegal, dangerous and unnecessary channel crossings. Putting the purpose of the Bill front and centre, right at the start of the Bill, will make it abundantly clear to all, including the illegal entrants themselves, NGOs, the courts and others, what Parliament’s intent is in enacting this Bill. As subsection (3) provides, the subsequent provisions in the Bill should be interpreted by the courts and others in line with this statutory purpose. Again, it is incredibly helpful to make this explicit on the face of the Bill, although I should add that subsection (3) simply reaffirms the established principle that the courts and others should interpret the Bill to deliver its purpose.

To assist this purpose, Clause 1 also disapplies Section 3 of the Human Rights Act 1998. As I have already explained in the previous debate, the disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than strained interpretations by the courts to achieve compatibility with convention rights.

The noble Lords, Lord German and Lord Paddick, asked about the impact assessment. We have already published an equality impact assessment and will publish an economic impact assessment in due course. The noble Lord, Lord German, referred to the purported impact assessment published by the Refugee Council. We do not recognise the assumptions and costs referenced in that document. Any assessment of the impact of the Bill must also acknowledge the cost of not proceeding with it. Our broken asylum system is costing this country £3 billion a year, and over £6 million a day in hotel costs. This cannot continue. The noble Lord also seems to be labouring under an assumption that Clause 1—

Lord German Portrait Lord German (LD)
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The noble Lord has made two points. I am particularly asking about this sentence in the Government’s ECHR memorandum—so the Government’s position. It says at paragraph 1.5 about the removal of Section 3 of the Human Rights Act:

“This does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.


Article 5 of the convention clearly states:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.


So is the paragraph in the memorandum compatible with what I have just read out? If so, it means that when people are detained, they will be able to take their cases to a court in this country.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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The answer to the question, if I have understood the noble Lord, is yes, but I think he misinterprets the purpose of Section 3 of the Human Rights Act. It is not the clause by which the articles of the European Convention on Human Rights are reflected in UK domestic law. Section 3 of the Human Rights Act invites a court to construe parts of other domestic statutes or secondary legislation compatibly with convention rights. It does not mean that this is the mechanism by which convention rights are actionable in UK law, which is the standpoint that I think the noble Lord, Lord German, appears to suggest is the basis for his point. I fear that, as a matter of legal analysis, I think that to be wrong.

The noble Lord also seems to be labouring under an assumption that Clause 1 somehow upsets the separation of powers. It does not. It simply makes it clear that in interpreting this legislation, judges should seek to advance the purposes of the Bill. The Bill, and actions taken under it, are still clearly capable of review in the courts, and individuals can seek to prevent their own removal by making a suspensive claim. So, the courts are still involved, and regulations are still subject to approval by Parliament. I hope the noble Lord can rest assured that on closer inspection, this Bill leaves our separation of powers undisturbed.

I also want to pick up on a point made by the noble and learned Lord, Lord Hope, who suggested that the Bill prevents human rights challenges. This is simply not the case. The Bill provides for two kinds of challenges that would have the effect of suspending removal. Other legal challenges, whether on European Convention on Human Rights grounds or other grounds, are not precluded, but they do not suspend removal. As I have indicated, Clause 1 makes the purpose of the Bill crystal clear for all to see. This will help to guide all decisions made by officials and immigration officers, Ministers, the courts and others in giving effect to the Bill. I commend the clause to the Committee.

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Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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The Government do not recognise the figures in the purported impact assessments provided by the bodies that were referred to, such as the Refugee Council, because we do not recognise the assumptions and costs referenced in them. Furthermore, those documents do not acknowledge any assessment of the impact of the effect of not proceeding with the measures in the Bill.

Lord German Portrait Lord German (LD)
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What is the Minister’s definition of “soon”, which he said was when we would receive the impact assessment? Will it be before the end of Committee, before the start of Report or after Report and before Third Reading? Perhaps he could be more explicit.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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The impact assessment will be provided when the decision is taken that it is appropriate to disclose it.

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None Portrait Noble Lords
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Oh!

Lord German Portrait Lord German (LD)
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Does the Minister therefore think that it is appropriate that the body which is deciding about this Bill—Parliament—should receive the impact assessment, and should that impact assessment be with us before we complete Committee on the Bill? Surely that is appropriate. It is not for the Government to decide. It is for the Government to make their case to Parliament. If they cannot do so, because they have not got the document, because the document is not sufficiently robust or because it is not available, then the Minister should be able to tell us that right now, so that we know the basis on which we are judging this Bill.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I am afraid that I can tell the noble Lord only that it will be published in due course and that this is entirely normal.

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Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I will go where I was going without being distracted. I am aware that there is no Green group name on any of these amendments, which is the result of an administrative hitch earlier in the week, so I will be very brief—I am also aware of the hour. I shall make just three points about this group of amendments.

First, we have discussed the issue of retrospectivity a great deal. I align myself with the comments of the noble Baroness, Lady Chakrabarti, among many others, who talked about approaching this as a lay person, which indeed I do as a non-lawyer. However, I have had a lot of contact with the law through my time as a journalist, and one of the things you learn is that the nature of the law is that they do not make laws retrospectively. That is in the general public understanding of what is law, so I associate myself with all the anti-retrospectivity amendments.

However, I particularly want to address Amendment 91, to which there has not been much attention given, which aims to prevent victims of human trafficking and modern slavery from having their leave retrospectively revoked to permit their deportation. This is leave granted to people under the Nationality and Borders Act 2022. I am sure many noble Lords taking part in this debate can think of victims of trafficking and modern slavery whom they have met. I am thinking of one in particular, whom I will not identify in detail. She was a person who had clearly been enormously mentally scarred by the experience of losing control of her own life and being a slave. To think that we would put them in this position again, having granted them status and then snatched it away, highlights the emotional damage that that would do to people.

Secondly, my favoured position is to write out this whole Bill but, if we do not do that, then that Clause 2 should not stand part. The noble Baroness, Lady Lister, made a powerful speech on this point. I want to raise a point no one else has raised. I ask the Minister to answer, although I expect he will be reluctant to, so maybe some of the other legal minds in the Committee can be put to this. Let us imagine that, after the next election, we have a change of government, and there has been written into law a duty for the Secretary of State to deport people. There is going to have to be an emergency Bill passed as soon as possible to stop that. I very much hope that would be the case for whoever the next the Government are. But there is going to be a total legal mess, I would imagine, when the people of the country have elected a Government standing on a different platform—I would hope—but that is the law of the land. I am not sure where that would leave us; I do not know if anyone could help me with that one.

I also want to address why the duties to remove in Clause 2 should not remain. Some 90% of the people in need of international protection who come to the UK could not do so directly as defined by this Bill. The refugee convention prohibits states from imposing penalties on refugees for how they have entered the country, because most people have no choice but to enter a country irregularly. The convention explicitly states that you do not have to come directly to the country; there is no requirement of “first safe country”. That is the convention, yet we are writing this piece of this Bill. This clause simply must not stand part.

Thirdly, I want to identify particularly with Amendment 8. The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, have already made this argument very powerfully. All I want to say is that my Second Reading speech addressed this issue at some length, and I would like to stress the Greens’ support for Amendment 8 in particular.

Lord German Portrait Lord German (LD)
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My Lords, there are two matters in this group that are in my name, but I shall address just one of them briefly—the other matters having been covered by earlier speakers—and that is the issue about coming directly to the United Kingdom.

The UNHCR, in its legal opinion, says that the vast majority of people in need of international protection will meet those criteria of not being able to come directly to the UK. Almost 90% of people in need of international protection globally come from countries where it is impossible to come directly to the UK—there are no direct flights, nowhere to get a visa, nowhere to make any of the paper arrangements we have set up. We will come to the issue of safe routes later, but the question I have to ask relates to the role of the UNHCR in supporting those who are in need of protection.

Apart from the one relating to Afghanistan, the UNHCR states that there are only two active legal resettlement schemes in the UK. The first is the UKRS, which is the UK resettlement scheme. Since 2020, the UNHCR

“has been requested by the Government not to submit new cases other than in extremely compelling circumstances and on an ad-hoc basis, amounting to a handful per year”.

The second one is the mandate resettlement programme, which provides a pathway for refugees:

“An average of fewer than 25 people a year come to the UK on this route. … they must be identified and referred by UNHCR in accordance with criteria agreed upon with the receiving State”.


So, essentially, the UNHCR has been told that it can have probably about 25 and perhaps five or six more. That is the total—apart from the Afghani stream—from the resettlement schemes that are open. In his reply, perhaps the Minister could tell us how people can get to the UK directly from the places from which they are seeking refuge, and also how these people can be filtered so that only the 30 or so people who can currently come per year will be accommodated.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, this group covers a wide range of amendments concerning the duty to make arrangements for removal. To summarise, it shows that the Government have not thought through the issues that arise from Clause 2. The noble Lord, Lord Carlile of Berriew, and the noble and learned Lord, Lord Etherton, have spoken compellingly about the unfairness and uncertainty of retrospection. My noble friend Lady Hamwee spoke about the impact on unaccompanied children affected by the retrospection caused by Clause 2. My noble friends Lady Suttie and Lady Ludford spoke about the extreme dangers around the impacts of Clause 2 on the arrangements between the north and south of Ireland. The noble and learned Baroness, Lady Butler-Sloss, spoke about the perhaps unintended consequences of impeding the prosecution of traffickers and perpetrators of modern slavery.

The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, spoke about neglecting issues around sexual orientation and gender identity, which could be an extreme risk to people if they were to return to certain countries; they are completely left out of the Bill. My noble friend Lord German raised the important point about what it means when somebody has not come directly to the UK, and what the higher courts in this country have said about that. It was debated endlessly during the passage of the Nationality and Borders Act but goes even further in this Bill, which is why Clause 2 should not stand part of the Bill.

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Lord German Excerpts
At its heart, how many claimants are there from before 7 March who have been refused asylum and are waiting to be deported and where do the Government expect them to be deported to? How many people assumed to be inadmissible since 7 March are waiting to be deported? Where do the Government expect them to go to? What planning assumptions are the Government working to? They will exist within the Home Office. What budget are the Government expecting to use for dealing with all this?
Lord German Portrait Lord German (LD)
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My Lords, to help the Minister with the questions he has just been asked, can I add a quite straightforward and simple one? Is it the Government’s intention that return and removal agreements will be made with every country in Schedule 1 to the Bill to which they are seeking to remove people?

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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My question is even more simple: where is the impact assessment? I think the purpose of impact assessments is to inform the legislative decision. We hear that there will be an impact assessment and it will be produced shortly, but it seems unlikely to be produced while this Bill is being considered in this House. I think that is rather insulting, particularly as the Government rest their intellectual case on the deterrent effect. They say that the numbers will go down as word gets about of how people are to be treated, what “inadmissibility” means and how it is to be applied.

I am strongly against that on legal grounds—I think we should honour our international commitments—and humanitarian grounds, but it is impossible just to consider this argument on its merits if we cannot see the assumptions underlying the Government’s judgment of the impact. The questions from the noble Lord, Lord Coaker, are all extremely apposite and I look forward to the answers to them, but it seems to me that in relation to the deterrent effect, the impact assessment—wherever it is, whenever we will see it—will have to consider why people leave their home country and seek asylum far away. Why are they coming here? Will they be deterred by talk of us getting more brutal? We are going to get more brutal if we pass this Bill, but we are not going to get half as brutal as the conditions of the countries from which they are fleeing—75% of those seeking asylum in this country are found by the processes to have a well-founded fear of death or persecution back home.

Talk of pull factors is all nonsense: it is all about push factors. They are fleeing from horrors, from famine, from massacre, from murder and from war. It is difficult to see the deterrent factor as likely to be to be large, given the scale of the factors that are bringing about the flow. The impact assessment may prove me wrong. Certainly, the Government should, if they have the courage of their convictions, produce the evidence and the assumptions that underlie these convictions, and they should do it before we finish considering the Bill.

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Lord German Portrait Lord German (LD)
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My Lords, I have the Clause 3 stand part amendment in my name. A lot of the words already spoken have covered some very important parts of this clause. At its heart, of course, the clause does not protect unaccompanied asylum-seeking children; it just defers their removal. Such children will not be able to start to rebuild their lives or focus on their futures because of the threat of removal. I would like to look at a couple of issues—some of which have been touched on already but which are in this clause—that will need explanation from the Government and understanding if I believe them to be the truth.

On 16 June last year, the United Kingdom Government said in their report to the United Nations Committee on the Rights of the Child:

“The UK remains fully committed to the United Nations Convention on the Rights of the Child”.


Further, they added that they are

“committed to ensuring that the best interests of all children are a primary consideration in any decision that affects them”.

So, my first question to the Minister is: do the Government stand by that second statement: that all children are a primary consideration in any decision that affects them?

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Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I signed the intention to oppose the Question that Clause 4 stand part of the Bill.

I do not often say anything good about this Government but they do, at times, think outside the box. They really do think up novel practices and novel moves in all sorts of areas. I admire massively the people who have gone through this Bill and put amendments forward. Sometimes I have time to do that myself on Bills. This particular clause is so bad—how can we improve it? There are two particularly dangerous proposals, which we have already heard. The first is that the courts will not be able to pause or prevent a deportation, even where that deportation will be clearly unlawful. Secondly, the Government can, by diktat, declare a person’s human rights as inadmissible. Where does that come from? Who thought that up? It is just incredibly creative. As it is novel practice, it is also dangerous. A precedent is being set that the Government can simply rule that some people do not have any human rights and that a Government can act unlawfully without any intervention from the courts. Human rights are for everyone—which is something this Government seem to forget—or they are not human rights. The courts must be allowed to protect those rights against the Government.

We have to stop this illegal Bill. I see no option but to start voting out chunks of it. If we can possibly intervene at the end, we should vote all of it down.

Lord German Portrait Lord German (LD)
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My Lords, I have given notice of my intention to oppose this clause standing part. I was also able to meet the Bar Council this morning, and it was very interesting to hear its views about current practices and the difficulties following through from this law that might arise.

I want to address two or three issues in this clause which set it apart. I of course support wholeheartedly the human trafficking amendment. I talked at Second Reading about a case involving a young person who, if the current Bill were to become an Act, would be placed in perpetual slavery or alternatively deported to somewhere she has no knowledge of and no friends or people she could communicate with.

The two issues I will look at are the impact this will have upon this country and whether the Minister is going to be able to tell us whether or not the fears that people have expressed are actually true. One of the first ones is the fear of people living in limbo for years and years. The second one is about whether it is disgraceful lawyers and traffickers who have caused the problems we are now facing. I am very grateful to the noble Lord, Lord Carlile, for debunking the issue of lawyers having that responsibility put upon them by what he called the Daily Mail sidebars.

It is important to realise that there are a significant number of issues sitting behind this clause which will affect people profoundly. Essentially, this clause is the Government’s trump card upon which it can play: there is no way you can come to this country if you are one of the vast and overwhelming majority of people seeking asylum from the fear of living in countries which are under siege or war, or where people’s reputations are at risk.

We hear today that government papers which have been put aside—unless some people have spotted them—say that in the first two years between £3 billion and £6 billion extra will be required to make sure that they can cope with the number of people living in limbo. These sorts of government papers do not just fall into hands, because somebody else outside of government has written them. The figures themselves must have some credibility. They hold truth and light for those who believe that there is no way that people can be sent elsewhere under this Bill, given the limited circumstances.

I ask the Minister to repeat his claim that there is no limit on the number of people who can be sent from this country to Rwanda. No limit, he said—does that mean 150,000 or 170,000? Is that the case? We heard this morning from the lawyers who were dealing with the very small number of cases attempting to bring people back from Rwanda who had had their claims misheard that the Government did not tell them about the circumstances surrounding their existence in that country. One of the barristers concerned found out that it is an offence in Rwanda to speak out against the Government. That issue was the one that played a big hand in them being able to work around the legislation to be able to bring back incredibly small numbers of people to our country.

The third issue is the assertion by the Minister earlier that this is an emergency. If it is an emergency then obviously it is an emergency that has been going on for many years. The claim by the Prime Minister this morning that the policy we are talking about is already working is not borne out by the figures that the Government themselves provided on 25 May. Those are the only figures that are available to see, and this Government have an adverse nature to giving figures to us in any other way.

Illegal Migration Bill Debate

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Lord German Excerpts
Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, Clause 7 relates to further provisions about removal. I have three amendments in this group. Amendment 55—I apologise for the grammatical error in it—would require the Secretary of State to publish guidance about the criteria for the order in which individuals are to be removed. It is not likely to be a tidy process and, as we have been debating for two and a half days now, an awful lot of people will be involved.

Therefore, as much transparency as possible about the process is required. For instance, will decisions be taken on the basis of how long individuals have been detained compared with others, where they have been detained, the receiving country, a mixture of all of these, or none of them? On Monday we heard from the noble Lord, Lord Carlile of Berriew, about a woman who had been waiting for 10 years—sadly, not that unusual a situation. The people who will be subject to these provisions are left not knowing what is going to happen to them. The lack of certainty is, to my mind, a cruelty among many others. To know not just that the decision is unfavourable but when its implications are going to be felt in the form of removal, as distinct from detention, will be very relevant.

Amendment 55A probes the process of notifying the Secretary of State under Clause 7(3)(b) regarding a suspensive claim, that the individual P

“does not intend to make a suspensive claim”

and proposes that that can be made through an immigration officer. I assume that that is the case. After all, the Secretary of State does not deal personally with every single application. However, with regard to the reference to notification being given orally, I want to raise the problem in my mind that it is too easy to be misrepresented when you make an oral representation, or simply not heard. I hesitated about tabling an amendment here because, on the other hand, I do not want to disadvantage an asylum seeker by requiring notification in writing if that is a difficult thing to do. I assume that P’s representative can give the notification on P’s behalf, but I would be glad of that assurance and also to know who that representative can be. Would it have to be a legal representative or could it be somebody who was providing support through one of the many organisations that work in this sector?

Amendment 57A would leave out the term “or indicated” in Clause 7(8). That provides for directions to transport officers about removal in a ship or whatever other vehicle

“specified or indicated in the direction”.

What does “indicated” mean? Does it mean “a ship” or “a train”? I suppose the latter would be Eurostar or perhaps a train between Northern Ireland and the Irish Republic—I do not know. It seems—again referring back to the previous debate—that “indicated” is perhaps a rather loose term. I may be wrong—I will probably be told that it is used in other legislation—but I would be glad to hear from the Minister what we should understand by it. I beg to move Amendment 55.

Lord German Portrait Lord German (LD)
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My Lords, I have Amendment 57 in this group, and also the clause stand part debate. I will address my Amendment 57 first, but there are serious matters in the clause as a whole which I will come back to in a moment.

Amendment 57 addresses the far-reaching and perhaps unrealistic legal obligations being placed on private actors and companies to effect removal. This includes the captain of a ship, the pilot of an aircraft, the train manager or the train driver being required to enforce removal of an individual by enforcing detention on the ship, aircraft or train, if required, to prevent disembarking before removal has been fulfilled—and also of course to do it the other way round, as these people are mandated to ensure that the person is taken by those means of transport to the country to which they are being deported.

Two things arise from this part of the clause. One is that it gives inordinate powers to the Secretary of State to requisition not just ships, boats, aeroplanes and whatever else but the services of those who run those means of transport to detain and restrain those who are being transported. I will address in a moment the criminalisation of those people in making them subject to this sort of regulation.

The Explanatory Memorandum says that the Government will procure those services by privately chartering planes or ships or whatever but, clearly, this part of the clause, as drafted, gives the power to the Government to requisition those services. The Explanatory Memorandum also says that the Government can requisition scheduled services—scheduled flights to Kigali, perhaps. There are no direct flights from the United Kingdom to Kigali, by the way, and the flights are all operated by airlines based mostly in the European Union. So the Secretary of State can intervene in scheduled flights and require that they take the asylum seeker to a destination.

The other problem is that clearly, there has been no consultation on this matter with those who are now going to be required by the Government to execute this role on their behalf. To emphasise that, I will read to the Committee the views of the UK Chamber of Shipping, the people whose vessels are likely to be requisitioned:

“We are greatly concerned about these clauses becoming law which could require the ship’s master and crew to detain passengers, something which they are not trained to do, at the direction of the Government. The clauses also seem to allow the Secretary of State to set the period for which a ship’s master is required to detain a person on board a vessel—this could potentially lead to a situation where a ship’s crew is stuck in port for an indeterminate amount of time having received an instruction to detain individuals who are then awaiting the outcome of various legal processes to determine their rights. We are concerned that this puts seafarers at much greater risk from positions of conflict and potential harm”.


That is from the chamber of shipping, which obviously has not been consulted. We have also received a letter from the RMT that makes the same points.

The issue here now is: why has this power been taken? The situation is very similar to that in the Nationality and Borders Bill, which, Members of the Committee will remember, would also have criminalised seafarers who perform humanitarian rescues of persons in distress at sea and bring them to the UK, but those provisions were dropped from that Bill because these people should not be criminalised in this manner.

My first question to the Minister is: if it was determined and agreed by Parliament that this sort of clause was not required for the Nationality and Borders Bill, what is different now? How are the circumstances different? Is it because there are many people—airline pilots or crew, perhaps—who have not been willing to deport people in the manner the Government propose? Secondly, is it because the Government are not intending to provide anyone to accompany these people on their journey but are expecting them to be dealt with entirely by the crews of existing means of transport?

It is beyond my ability to understand why this law is now being put in place when it was previously deleted from an Act that had some of the same intentions. It seems to me that this is an unworkable section of the Bill, particularly in respect of people’s understanding of how they are to be expected to carry out jobs for which they have received no training, in which they have no experience and which they may find morally repugnant.

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Lord Murray of Blidworth Portrait The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
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My Lords, Clause 7 makes provision for a removal notice to be given to a person and specifies what information this must contain. Each notice must specify that the individual is to be removed under the duty, be clear on their destination and set out a claim period in which to make a factual suspensive claim or a serious harm suspensive claim. That is, of course, suspensive of removal.

The noble Baroness, Lady Hamwee, described her Amendment 55 as a probing amendment, seeking to elicit our intentions as to the order in which individuals will be removed from the UK under the duty to remove in Clause 2. The whole purpose of the Bill is to remove persons who satisfy the conditions as soon as practicable. On the day of commencement, we will be dealing with two separate cohorts. First, there will be those who enter the UK illegally on or after the commencement date. Putting unaccompanied children to one side, as we already have debated how they will be considered, our aim will be to process new arrivals as quickly as possible as they arrive. Clearly, the speed with which individuals are removed will depend on whether they consent to a voluntary departure or, if not, whether they make a suspensive claim. Secondly, as we have discussed, the Bill will have a retrospective effect and the duty to remove will apply to those who entered illegally on or after 7 March this year. Where, in the case of this cohort, any asylum or human rights claim has not been decided by the commencement date, we will commence removal action in accordance with the duty in Clause 2, in parallel with the enforcement action that is being taken against new arrivals.

I assure the Committee that the necessary planning is under way to support the effective and efficient implementation of the Bill, which will ensure that we have an integrated and robust end-to-end process from arrival through to removal. This will cover the use of detention, case-working operation, management of appeals and the logistics associated with the returns themselves. I agree with the noble Baroness that development of robust guidance and training will be a key component across all of this. However, while work on implementation is well under way, we should not get ahead of ourselves. First, we must get the Bill on to the statute book in a form that is operable. We cannot be legislating for a scheme that is so full of holes that it is unworkable.

Amendment 55A seeks to probe how the process will operate, should an individual indicate that they do not wish to make a suspensive claim. If an individual notifies the Secretary of State that they do not intend to make a suspensive claim, the person may be removed to the country or territory which they have been given notice of. As the noble Baroness suggests, such notification may be to an immigration officer or a Home Office official. Where it is given orally, it will be duly recorded. I hope that affords an answer to her point.

Amendment 56, tabled by the noble Lord, Lord Coaker, would set out in statute two additional requirements to the notice, which must be given to the person before they may be removed—that it is provided in a language which they understand and provides information on how to access legal advice. It would be prohibitively expensive to provide translations of decision notices in all possible languages and dialects up front, and there would be a time delay in doing this on an individual basis. It is therefore more efficient to work with interpreters. It is already our current policy to ensure, when serving notices in person, that the contents are explained to the individual in a language which they understand, using interpretation services where required. We also provide information on how to access legal services where relevant.

On the question of legal advice, I reassure the Committee and the noble Lord that, in giving this notice, we will ensure that we also provide information on how to access any legal advice which individuals are entitled to and on how to make a voluntary departure. We will discuss this further in relation to the legal aid provisions, which will come before the Committee in the next few days. Therefore, it is unnecessary to put these additional requirements into the statute.

Amendment 57, in the name of the noble Lord, Lord German, deals with the legal obligations that these provisions place on transport operators. The noble Lords, Lord Davies and Lord Paddick, the noble Baroness, Lady Jones, and my noble friend Lord Balfe raised the same point. This amendment, as the noble Lord, Lord Davies, pointed out, overlaps with his own group of amendments, which we are debating in the next group. I hope that the noble Lord, Lord German, will be content if I deal with the substance of his Amendment 57 when we reach Amendment 57B.

Amendment 57A seeks to test the drafting of Clause 7(8), where it refers to a vehicle being

“specified or indicated in the direction”.

A direction “specifying” a ship, train, aircraft or vehicle may refer to a particular ship et cetera scheduled to depart at a specified date and time, whereas a direction “indicating” a ship may be a more generic item, for example, specifically or simply referring to a flight to depart that day rather than to a particular flight. Moreover, I point out that the drafting here is drawn from and reflects long-established terminology used in Schedule 2 to the Immigration Act 1971.

I will deal briefly with Clause 9. It simply makes a number of consequential amendments to existing immigration legislation to ensure that it works smoothly. There is no contradiction alongside the new provisions for removal in the Bill.

To respond to the noble Lord, Lord German, persons served with a removal notice will have eight days to submit a suspensive claim beginning from the day that they were given such a notice. We will come on to Clause 54 in due course; as I have already said, it provides for free legal advice for those issued with a removal notice. To answer the noble Lord, Lord Bach, persons subject to the duty to remove will have access to advice.

Lord German Portrait Lord German (LD)
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I was interested in two stages. The Minister has talked about when the notice of removal is issued. Presumably there is also a statement of inadmissibility when you have arrived, because it takes some time to prepare the document or whatever the detail is for a removal certificate or notice. Is there an earlier notice? If so, is that the place where people can seek advice?

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I do not have the answer to that at my fingertips but, if I may, I will revert to the noble Lord with it. I suspect that the availability of legal advice will be drawn to the attention of individuals at the earliest possible time, but I will check that point and come back to the noble Lord.

In conclusion, the noble Lord, Lord Coaker, made some valid points on which I will further reflect. I hope I have at least gone some way to respond to the probing amendment of the noble Baroness, Lady Hamwee. On that basis, I ask whether she is content to withdraw her Amendment 55.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, it is Committee stage and, as the whole Committee knows, that is what I will do.

On this amendment, the Minister said, possibly twice, that things will be done “as soon as practicable”, but we know that not very much is practicable. It sounds like a parallel, idealised—well, it is not ideal to me but it may be in the Government’s mind—universe where all is possible. On the previous group, my noble friend referred to being somewhere within the wizardry of Oz. I do not know who is which character, and perhaps it would be inappropriate to speculate. However, the point about uncertainty in the minds of the individuals concerned is serious, which is why I made it earlier.

I do not think the Minister answered my question on Amendment 55A about whether notification can be given by a representative of the individual and whether that has to be a legal representative or could be a support worker from an organisation in the sector. Is he able to respond to that now?

Lord German Portrait Lord German (LD)
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I also asked a question to which the Minister did not reply, about a person escaping from South Sudan via Kenya. Kenya would be treated as an unsafe country because it is in Schedule 1. Could the Minister respond to that when he has a moment?

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I apologise for not answering the noble Baroness’s question. Yes, is the answer; representatives could be provided in that way.

To reply to the hypothetical situation that the noble Lord referred to about someone from South Sudan travelling via Kenya, it would depend on the facts of the specific case and whether the conditions were met. It is perhaps not directly relevant to the debate we are having on this amendment, but I am happy to consider that hypothetical in more detail and write to the noble Lord.

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These provisions simply carry across provisions that have already been on the statute book for over 50 years and been operated without difficulty. In answer to the noble Lords, Lord Hacking and Lord Coaker, I suggest that these are workable provisions. They have been so without adverse comment for 50 years. I hope therefore that I have been able to provide some reassurance to the noble Lord, Lord Davies—
Lord German Portrait Lord German (LD)
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We are discussing the issues raised in the previous group and I accept that the Minister wants to talk about them now. I also accept that there are provisions in existing law. Perhaps the Minister can tell us why, therefore, the Government need to put these provisions into the Bill if there is already legislation that stands by that. The difference that I can perceive is the requisitioning of services, particularly transport services. That may be slightly different from what we had before. If the Minister cannot say exactly why these provisions are needed, because they are already in existing powers, there is no point putting them into the Bill.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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The powers in Schedule 2 to the Immigration Act will continue to apply to those being removed who are not subject to the new duty in the Bill but are otherwise liable to removal from the UK. The powers in the Bill will relate to those who fall within the cohort in Clause 2. They provide clarity and certainty by being present in the Bill in this context. It is also clearly right that the 1971 Act powers need to be applied to the Bill, so that is the purpose for their inclusion. I hope that answers the noble Lord’s question.

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Lord Bishop of Durham Portrait The Lord Bishop of Durham
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My Lords, I refer to the register of interests and my involvement with the RAMP project and Reset.

I thank the noble Baroness, Lady Lister, for tabling Amendments 57C to 57G to provide us with the opportunity to discuss issues relating to the level of support that will be provided for those declared inadmissible but who are unable to be removed from the country. I too am highly grateful to the Refugee Council for supporting us to probe this area of policy well, especially in the absence of an impact assessment.

Before I outline questions for the Minister, it is important to note that those deemed inadmissible will include not just those whose asylum cases would likely have been found valid but individuals who would not have qualified. In the absence of any return deals, this could leave the Government in the absurd position of needing to support at public expense those who could be appropriately returned to their own country.

The Government will also need to support those excluded from the asylum system, who of course could support themselves and their families through employment after gaining refugee status. Let us remember again that more than three-quarters of asylum cases assessed last year were found to be valid. Support will need to be indefinitely provided to these families, and every year this group will increase in number. I hope that these amendments, while raising technical issues, will also help us to understand the rationale behind this and the costs associated with this approach.

My noble friend excellently laid out the grave mental health impacts of being confined to a life of permanent precarity and inescapable destitution. I remarked at Second Reading that this amounts to the continuation of detention simply without walls. It is therefore vital to understand what level of financial and accommodation support will be provided to those living in this state-sanctioned situation. I will try to add complementary questions to those already posed, but there will inevitably be some overlap.

Currently, far more people are supported under Section 95 of the Immigration and Asylum Act 1999 than under Section 4. According to Home Office statistics, in the first quarter of this year, there were 11,662 applications for Section 95 support, compared with 642 under Section 4. The Bill before us will change that, as those people whose claims are declared inadmissible will, in most cases, not be eligible for Section 95 support and instead will need to rely on Section 4 to avoid destitution.

I will ask the Minister some questions. First, how will someone who is, in effect, banned from claiming asylum be able to apply for Section 4 support? It is not clear, as the current guidance for Section 4 states that those deemed inadmissible cannot apply on the grounds that there is no viable route of return to their own country as they are due to be removed to a third country. Individuals will also not be able to judicially review the inadmissibility decision and cannot demonstrate that they are taking reasonable steps to leave the UK, given that their country of origin may be unsafe, and they will not have permission to enter another jurisdiction. How will applications from those with inadmissible asylum claims therefore be treated when they apply for support?

Secondly, what will happen to those who have arrived since 7 March and are currently in receipt of Section 95 support—a number already in the several thousands? Will their asylum claims be immediately declared inadmissible, removing eligibility to Section 95 support in one fell swoop? Can the Minister clarify what assistance this group will be given to apply for Section 4 support, or will he commit to automatically transferring people to Section 4 support without requiring a further application? Finally, what assessment has the Home Office made of how many people will be supported under Section 4 in the months and years after the Bill has come into effect? I stress that, to support the effective scrutiny of the Bill, we must know how many families with children will be left solely reliant on Section 4 support.

This set of amendments highlights major questions which remain unanswered about how the Bill is intended to work in practice, beyond the mantra that people will be “swiftly detained and removed”. These are not needlessly prosaic questions to frustrate the passage of the Bill, but a genuine attempt to help those on the front line plan their operational response, which we heard the Minister say earlier was well under way in its planning.

As the Government know, the asylum support system plays a vital role in ensuring that those who would otherwise be homeless and destitute, and who are unable to work and support themselves, have access to basic accommodation and financial support. There is a debate to be had about what form that accommodation should take and how much the financial support should be, but that debate is meaningless if the system is inaccessible. If the system is not adapted to respond to the circumstances created by the Bill, tens of thousands of people could find themselves with no support. On top of the intolerable consequences that this will have for individuals and families, it will inevitably lead to local authorities, faith groups, communities and voluntary groups picking up the pieces.

We often find ourselves in moments of our lives needing to console ourselves and our loved ones that this stage is only temporary and that hope remains. I am constantly in awe of refugees who live with such instability but retain that sense of a brighter future. It is therefore only right that I close my comments by stating the obvious: there is a different way, where asylum seekers have their applications processed in an effective and timely manner so that hope, not desolation, remains a possibility.

This is my week for making apologies. I have to be in Durham very early tomorrow and trains up north are limited, so after dinner break business I will not be able to contribute on those things that I said I would. However, I expect my good friend the right reverend Prelate the Bishop of Southwark to be present and to speak, in his name, on those matters.

Lord German Portrait Lord German (LD)
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My Lords, it is a pleasure to speak after the right reverend Prelate. I make no apologies for supporting this group of amendments and I signed the stand part proposition to probe these issues, because they are of such great importance. I also make no apology for using the word “assessment” very frequently in what I am about to say. The Minister will gather that what I am after is some of the contents of the promised impact assessment before it eventually appears.

Clearly, the essence of the clause is to ensure that people get some support for accommodation and subsistence while they are in this world of being inadmissible but have not yet been removed from the country. The starting point here is: how many people are there likely to be in this situation? I have previously asked the Minister whether he thinks that people who are covered by the duty to remove will actually be removed quickly. In other words, will it be in six or nine months? An estimate will do. That is my first question, because it will give us a sense of the size of the problem that we are about to face. We would then be able to identify and understand how many people would therefore require accommodation and subsistence under Section 4.

In the absence of a government impact assessment as yet, the Refugee Council has done its own analysis. Based on the current 0.7% success rate of removing people under the inadmissibility rules, it has assessed that, by the end of the third year after the Bill has passed,

“between 161,147 and 192,670 people will have had their asylum claims deemed inadmissible but not have been removed”.

So that could be the size of the problem. We do not know what the Government think, because they will say that they do not recognise those figures. However, as the Government have not given us any figures, we have no means of judging that.

That group of people will then be without permission to work and will be reliant on Home Office support and accommodation indefinitely. If you look at the size of that cohort and the amount of money that it will cost, you see that it will be between £4.9 billion and £5.7 billion in the first three years. That is based on the assumption that everyone deemed inadmissible would be awarded Section 4 support and that there would be few people who would not get it. The issue arises that, if you do not get it, you will be destitute. As the right reverend Prelate said, the destitute can get picked up by the voluntary sector. But, frequently, local government is picking up the pieces, using funds which are due for other things that should be going on in local authorities, so that they do not have families in absolute destitution on their doorstep.

On the assessment process—just to help the noble Lord—has there been an assessment of the numbers of those who will not qualify for Section 4 support? In other words, is there an estimate of how many would be left with no recourse to public funds and would become destitute? On the suspensive claims, will people who have made a suspensive claim be eligible to apply for Section 4 support? That is probably an easy one for the Minister to answer.

Has there been an assessment of the impact of this legislation on local government funding? Clearly, it would be useful for the Government to understand how much they are currently spending on picking up the pieces of those who are destitute, and how much that would cost if it were magnified by the numbers we have just been talking about. That is why there needs to be a risk assessment for those on no recourse to public funds indefinitely in terms of their vulnerability to exploitation and trafficking. Having no money and accommodation are the sorts of things which fuel the operation of criminal gangs in the United Kingdom.

Illegal Migration Bill Debate

Full Debate: Read Full Debate
Department: Home Office

Illegal Migration Bill

Lord German Excerpts
Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, I had got as far as “My L—” when I was interrupted. I am sorry, I do not mean “interrupted”: I mean when we heard the Motion that the House be resumed. It was not going to be a major speech—it still is not, although I could have spent the last half-hour working on it.

I thank the noble Baroness, Lady Lister, who dealt with the issues very comprehensively, and the Refugee Council, which has been so helpful in briefing us. I simply observe the irony of our debating state support in the context of state-inflicted detention.

Lord German Portrait Lord German (LD)
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I apologise to the Committee for speaking twice, but of course this is Committee so I can do it again.

To reiterate some of the issues that the noble Baroness, Lady Lister of Burtersett, raised, this is an issue which you need to understand if you are to propose and manage this policy and move it further forward. “What happens next?” is not just a big question, it is of crucial importance to people and people’s lives. I will not repeat my statements about assessments, which are well made and obviously made all the time, but we have heard an exposition of this issue, which needs to be resolved. We need answers to those questions.

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Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I rise in support of Amendment 58. I am sorry that I could not be at the Grand Committee debate on the regulations because of another commitment. Given the representations that have been made by a range of an organisations, I felt it was important to say a few words.

All people should have access to secure, safe and decent accommodation, no matter what status they hold. While it is right that we should not have people housed in hotels for longer than necessary, the removal of so-called red tape, which potentially includes shortcuts around safety standards, as we have heard, seems exceedingly risky. Once again, we have been asked to put our trust in the Home Office and its subcontractors instead of properly resourcing local authorities to provide adequate housing. This is not the way to address the backlog or accommodation shortages. The speed of procurement should not come at the possible cost of life.

Earlier this month, while the Levelling-Up Secretary was unveiling new laws protecting renters’ rights, his colleagues were debating the Government’s intention to scrap HMO licensing for asylum seekers’ accommodation. That seems somewhat perverse. The Government state in their Explanatory Memorandum to the regulations that part of the rationale for the change was that subcontractors

“raised concerns that … regulation is posing a barrier to acquiring … properties”.

But the suspicion is that subcontractors’ concerns are motivated more by profits than by the need to reduce backlogs and move people into accommodation. As my noble friend Lady Taylor of Stevenage asked during the Grand Committee debate, what evidence is there—again there is this question of evidence; it seems that with every amendment we are asking for evidence—to suggest that this change in regulations will speed up procurement of accommodation? The potential to undermine safety and standards seems very risky if there is not clear evidence to suggest that it will achieve the Home Office’s intended outcomes. Local authorities are concerned that any further erosion of enforcement powers will lead to a decrease in accommodation standards, where the reverse is needed.

The excellent briefing from the Chartered Institute of Housing, Crisis, JCWI and others argued:

“The assertion from the Government that HMO licence levels of protection will be maintained in these properties, but overseen by the Home Office rather than the local authority, is deeply suspect. People are already losing their lives in asylum accommodation managed by private subcontractors on behalf of the Home Office”.


Echoing the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, it was alarming to read at the weekend that asylum seekers were left on the streets in Westminster for two nights running because of accommodation problems and that the Immigration Minister had led moves to require groups of up to four adult males to share single rooms in so-called Operation Maximise. Richard Drax, a Conservative MP, has equated this to putting them in prison. As the leader of Westminster Council commented, to ask people who are

“likely to have been through significant and traumatic events … to share an inappropriately sized room”—

we are talking about a single room here, not some palatial five-star room—

“with multiple strangers defies common sense and basic decency”.

Basic decency, as well as safety, is what is at stake with these regulations.

Can the Minister give us an assurance that Operation Maximise will be abandoned at once in the interest of basic decency? With regard to these regulations, can he reassure us that the Home Office or its contractors have the skills to make a proper assessment of the risks around fire safety that an experienced and qualified local authority environmental health officer would have?

In the recent debate in Grand Committee, the noble Lord, Lord Scriven, asked the Minister to confirm that the same conditions that apply to an HMO licence will be replicated in the contract with the provider of accommodation for those seeking asylum. I do not think that the noble Lord has asked this again tonight, but I hope he will forgive me if he has. As the DLUHC Minister was unable to answer the question because it related to Home Office responsibilities, perhaps the Minister could provide an answer now.

In conclusion, this amendment should have never been needed but, unless we get serious assurances around living and safety standards, I can only question how the Government have decided that creating unsafe homes and putting asylum seekers in them is a decent strategy. As the Chartered Institute of Housing has said, HMOs will undoubtedly prove cheaper, but at what cost?

Lord German Portrait Lord German (LD)
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My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.

I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.

My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO2 alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, for moving this amendment. It was a good idea to address this issue in this context, even though it was fully addressed when the SI was debated. The Labour Party voted against the SI in the House of Commons, but it was not pushed to a vote in this House. Nevertheless, this is an appropriate Bill for us to address the issue again.

As we have heard, the regulations for HMOs were brought in following a fire in Notting Hill in which eight people died and almost 100 people lost their homes and possessions. Almost six years after that came the catastrophic fire in Grenfell Tower. These DLUHC regulations could lead to another fatal fire in an HMO used to accommodate people seeking asylum or other people in housing need. As we have heard from the briefings that we have all received—particularly the Shelter briefing, which was a particularly full briefing —people seeking asylum can be particularly vulnerable to fire risks, due to disabilities and health problems, being unaware of what standards to expect in a new country, being unable to read or speak England, and perhaps being reluctant, or less able, to complain to the authorities.

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Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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Again, the noble Lord asks a question of some detail and I will, with his leave, respond in writing. I appreciate his point that doubling from one to two is not significant. However, the Committee has heard me speak of the breadth of support and inspection that will be given and the expertise of those carrying out the inspections. I am grateful to the noble Lord, Lord Scriven, for nodding his assent; he can expect to receive a letter from the department in due course.

These regulations are subject to the draft affirmative procedure, and the noble Baroness, Lady Hamwee, said as much in introducing the debate. They have been considered and approved by this House and await approval by the House of Commons. They are subject to sunsetting provisions, as stated. They are an appropriate response to the short-term challenges we face accommodating asylum seekers.

The Home Office has put additional measures in place of a robust nature to ensure that housing quality is maintained to a national standard. In addition to the usual assurances via the terms of contracts entered into, an enlarged team of appropriately qualified inspectors will inspect each eligible property at least once during the exemption period, as I said to the noble Lord a moment ago.

I reassure the Committee once again that these regulations and the actions of the Home Office in drawing them up and moving this policy forward are informed by our consciousness of the terrible past tragedies which have overtaken people living in accommodation of this sort. We are all too well aware of the incidents the noble Lord, Lord Scriven, drew to the attention of the Committee, and to which the noble Baroness, Lady Hamwee, adverted in passing at the outset of her remarks. I offer to the Committee an assurance that we are aware of this and that the inspection regime we set up will, as much as is humanly possible, look to prevent such things happening again.

Lord German Portrait Lord German (LD)
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I wonder if the noble and learned Lord could answer my question about the devolved Administrations and their licensing powers?

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I beg the noble Lord’s pardon; I meant to answer that question and sought specific information from the Bill team on it. The regulations apply only to England and not to Wales, Northern Ireland or Scotland.

Finally, I invite the noble Baroness, Lady Hamwee, to withdraw her amendment.

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Moved by
58B: Clause 10, page 14, line 5, leave out “and (3)” and insert “, (3) and (3A)”
Lord German Portrait Lord German (LD)
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My Lords, as Amendments 61, 62 and 66 are consequential to Amendment 58B, I will speak to all three at the same time as moving it; they all sit together.

Currently, pursuant to Schedule 2 to the Immigration Act 1971, the Secretary of State for Home Affairs may detain people for immigration purposes only in places set out by her in a direction. Detention in places not specified by her in a direction will be unlawful. The Bill amends that direction to include

“any place that the Secretary of State considers appropriate”.

Following the publication of the Bill, the Immigration Minister in the other place outlined that the expansion of the asylum and migrant estate will include military barracks and that the Home Office will

“continue to explore the possibility of accommodating migrants in vessels”.—[Official Report, Commons, 29/3/23; col. 1018.]

More recently, the Government announced plans to house 500 asylum seekers on a barge in Portland, off the coast of Dorset. It remains unclear whether these settings will also be used as detention facilities as the provisions of the Bill seek to give the Home Secretary the power to detain individuals in such places, despite the risks posed by facilities such as Manston, which I will come to later. Some of the further mooted facilities present additional risks of their own, with military bases potentially triggering pre-existing vulnerabilities in people who have likely fled war and/or persecution. Will the Minister explain the reasons for granting the Secretary of State the power to detain people in “any place” that she “considers appropriate”?

If the intention is to allow detention in places not currently set out in the Immigration (Places of Detention) Direction 2021, will the Minister give details of where these places will be? For example, will the detention centres include military sites, such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or barges, such as the “Bibby Stockholm”, due to be moored in Portland? With the announcement this week by the PM of more barges to house asylum seekers, can the Minister advise on the cost of these, given that the aim has been to reduce money spent on accommodation, especially if some of this will be used for detention purposes?

Current Home Office plans suggest that these facilities are being considered for use as asylum accommodation only rather than detention. Can the Minister confirm whether the Government in fact plan to use them in whole, or part, as detention sites? If the intention is to allow detention in places not currently set out in the immigration direction of 2021, will the Minister explain how the Secretary of State will ensure that the standards set out in the Detention Centre Rules 2001 and the Short-term Holding Facility Rules 2018 are met in relation to the treatment of detained persons, including the safeguarding of vulnerable people known to be at particular risk of suffering harm in detention, such as victims of torture and trafficking, pregnant women and those with serious mental health conditions? What legal framework will exist to ensure these standards in such places? Are we to expect regulations and, if so, will we see them in draft before the Bill is completed? Has the Home Office carried out a full risk assessment linked to the proposed expansion of the detention estate and will it be published? How will the Minister seek to avoid scenes such as those at Manston, described by the Chief Inspector of Borders and Immigration as “wretched”, if there is no extra detention capacity when the Bill passes?

It is interesting to note that, just this week, we have had the publication of the report of the unannounced inspection of Manston by His Majesty’s Chief Inspector of Prisons. I am sure Ministers have seen his comments. They are clearly concerning, and I shall briefly mention four priority areas: detention in the facilities was too long; the governance of adult and child safeguarding was poor; there was no accurate data on the use of force or separation from the general population or of incidents of violence and non-compliance; and professional interpretation was not always used consistently. There is a danger that Manston will not be able to cope any better than it was coping when the disturbances took place there more than 12 months ago. The response to the report from the Chief Inspector of Prisons is therefore important, to show that the Home Office will ensure safeguarding and care for individuals, which is not currently present.

According to Charlie Taylor’s report, there is no oversight of leadership and safeguarding, or of the use of force. These are incredibly important issues in places of detention. Care planning for vulnerable detainees and children with disabilities was poor and did not demonstrate individual planning, risk assessment or meaningful welfare checks.

Given the responses that we see about the current detention regime in this very recent report from His Majesty’s Chief Inspector of Prisons, how does the Minister expect to provide new and extra accommodation, given the challenges the Government are already facing, across the country, from many Conservative MPs, for example, who do not want these in their backyards—not in the run-up to an election, I understand? Can the Minister tell us whether barges are really suitable places for the detention of families and children?

Amendment 62 would place the Secretary of State under a duty to consult local residents before authorising the use of any new facility within these categories. This is critical for community cohesion and well-being. Removing someone’s liberty is a deeply serious issue and we are extremely concerned about the consequences of this clause for the most vulnerable in our society, particularly children, torture victims, pregnant women and victims of modern slavery. It seems to us that the Home Secretary is moving far beyond the sorts of powers necessary to detain people in an appropriate manner, and this manner at the moment gives us minimal recourse to scrutiny.

The lives, liberty and well-being of fellow human beings should not be put on the line as collateral damage for a policy which most of us know will never achieve its stated aims but is being used for political appeasement. For the reasons I have outlined, I also oppose Clause 10 standing part of the Bill. I beg to move Amendment 58B.

Lord Scriven Portrait Lord Scriven (LD)
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My Lords, I shall speak to Amendments 59B, 61A, 64B, 66A and 79C in my name.

Amendments 61A and 66A would ensure that, if children are to be detained or held in temporary accommodation before they are placed with a local authority, there are basic standards in the Bill to ensure that the type of accommodation is suitable, along with the services and standards that are needed to ensure that the best interests and the welfare of the child are paramount, and that the provisions are exactly the same as in the Children Act 1989.

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Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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The noble Baroness raises an important point. It is obviously right that our guidance reflects the special needs of disabled people in accordance with our duties under the Equality Act. That will continue to be the case. I hope that provides some reassurance for the noble Baroness.

Lord German Portrait Lord German (LD)
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My Lords, this has been a very interesting debate, not least because I have seen two lawyers agreeing with each other after having a debate of 10 or 15 minutes about a point of law. It is a fascinating experience.

To turn back to the amendments before us, I thank everyone who participated. In the response the Minister just gave, there are a number of matters which I would like to ask him about. If I understood correctly, he said it is the intention to only allow detention in line with the Immigration (Places of Detention) Direction 2021. I think that is what the Minister said. He then immediately said that, after this Bill is enacted, we will amend it—we will uprate it. I do not quite understand what the uprating mechanism is and why you need to uprate a direction you presently agree with. It would be helpful if the Minister could say what he means by uprating and if they are following the Immigration (Places of Detention) Direction 2021—which, I acknowledge, is the right thing to do.

On Campsfield and Gosport, the Minister said that the capacity would be increased. Could he give an indication of the numbers of places there will be in each of those, or the total for both.

Finally, I have what I consider a bit of a non sequitur, but the Minister said it several times and repeated it today. He said that return agreements are not a prerequisite for returns. I did not quite understand that because if you want to return somebody, you need an agreement that they will be taken. That seems to be an agreement. It was a bit of a non sequitur and certainly did not fall within the wonderful statements we had from the noble and learned Lord, Lord Bellamy, about these matters earlier. If the Minister could address those three questions, I will then be in a position to deal with the amendment.

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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As I hope I made clear, once the Bill is passed, the direction will need to be updated, rather than “uprated”. It will reflect the new provisions and any new detention facilities that are available to be utilised at that point. I am afraid that I am not in a position to give the noble Lord an indication of the size at this stage.

On returns agreements, as I think I made clear in a previous group on the second day in Committee, there are different relations with various countries, so circumstances can arise where people can be returned to countries with which we do not have a formal returns agreement. I can write to the noble Lord in more detail on that subject.

Lord German Portrait Lord German (LD)
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I thank the Minister for his answer. It would be helpful to know whether the matter of capacity of the two places is just unknown or whether it has not been concluded yet. If that is the case, I presume that the Minister could tell me at some stage what the capacity is.

This has been an important debate and I am sure we will return to it on Report. On the basis of those answers, I beg leave to withdraw my amendment.

Amendment 58B withdrawn.
Moved by
58C: Clause 10, page 14, line 9, leave out “suspects” and insert “has reasonable grounds for suspecting”
Member's explanatory statement
This amendment probes the threshold for detention.
Lord German Portrait Lord German (LD)
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My Lords, we now move to the second area of Clause 10, which is about the powers of detention. The clause significantly expands the current powers and use of immigration detention. It removes the current protections for vulnerable groups and the current limits on the detention of children, which offer UASCs 24 hours, children and families 72 hours, and pregnant women 72 hours. It gives extensive detention powers to the Home Secretary, away from the scrutiny of the courts, removing effective remedies to challenge unlawful or unjustified detention. That upsets the constitutional principle of the separation of powers. I am sorry that one of the lawyers has disappeared, because I would have liked to have raised the matter of the separation of powers whereby, in the past, the courts have determined the appropriateness of how long people will be detained.

The Bill says that it is for the Secretary of State, not the courts, to decide the reasonableness of the period of detention. It therefore weakens judicial scrutiny and removes a safeguard which is especially important for individuals who are particularly vulnerable to harm from prolonged detention. The Hardial Singh principles, which were established through UK case law, place limitations on the Home Office’s detention powers, so that it is for the courts to determine the reasonableness of a given period of detention. Those are the current principles under which the courts operate.

The role of the courts, including the High Court in particular, in reviewing the lawfulness of detention is critical to maintaining the rule of law fully in accordance with the role of the judiciary under the constitutional principle of the separation of powers. In respect of detention, the Bill infringes that principle. I expect that the Minister will talk about habeas corpus, but that is not about the reasonableness of detention; it is about whether it is legal to detain. Clearly, that is a distinction which makes the case I am trying to make more appropriate and important.

Amendments 58C, 58D, 63A and 63B probe the threshold for detention; my noble friend Baroness Hamwee will talk about that in a moment. Leaving out “suspects” and inserting “reasonable grounds” to believe the person meets the four criteria of Clause 2 for removal. The lower threshold of “suspects” requires no evidence; I can suspect that something is happening without evidence, except when I see what I think I am seeing in front of me. However, having a cause for “reasonable grounds” means that there has to be some evidence. It is unclear whether legal advice will be available in presenting their case for the inadmissibility of due process, especially when there will have been no judicial oversight for 28 days, under the Bill.

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Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I am grateful for that clarification.

Lord German Portrait Lord German (LD)
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My Lords, it has been an interesting debate in which it appears there has been one speaker against and everybody else in favour of changing the Government’s proposal.

To sum up the discussion, with the exception of the Minister, the key issues have been the impact of detention on children, that this is a backward step, that it is not in line with the United Nations Convention on the Rights of the Child and that no evidence is given of a sufficiently robust nature to state the objectives of these clauses. To sum it up in a single phrase, “We are going to lock children up to deter the boats”. The rationale of locking up children has just been put to one side. It is a backward step. Therefore, I am sure we will return to these matters at the next stage of the Bill. In the meantime, I beg leave to withdraw my amendment.

Amendment 58C withdrawn.
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Baroness Sugg Portrait Baroness Sugg (Con)
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My Lords, I have co-signed Amendment 68, which, as we have heard, would keep the existing protection of a 72-hour time limit on the detention of pregnant women for immigration purposes. I appreciate that the Minister will make a similar closing speech to the one for the previous group, but I want to make some different, practical points on pregnant women specifically. I believe that there is a case for special treatment here.

In our debates on previous groups, my noble friend the Minister warned against introducing loopholes that could be exploited. I do not believe that that will be the case here. This is a narrow amendment. It does not seek to exempt pregnant women from the other provisions in this Bill, such as the duty to remove. It simply ensures that their and their babies’ health will not be put at risk by being detained with no time limit.

There is no evidence to support the suggestion that maintaining the time limit will result in more pregnant women crossing the channel. Women’s groups and experts working in this area do not believe that it will increase the number of pregnant women making these journeys, so I do not believe that there will be an incentive effect. I am not really clear on the reasoning behind that argument. I do not think anyone is suggesting that this will incentivise women to get pregnant so that they can claim asylum. Nor will women take the decision to put themselves and their unborn baby at risk of a dangerous crossing and eventual deportation just because they will not be detained on arrival for more than 72 hours.

If the broader measures in the Bill work as the Government intend and people are swiftly removed to another country, we will not see people traffickers seeking out pregnant women to make the crossing, exploiting a loophole, because they will not be exempt from removal. The risk of the very small number of people on whom this will have an impact absconding is very low, given the desire and need for healthcare when pregnant. Further, where there is a real risk of absconding, Section 60 allows for detention to be extended with ministerial authorisation.

Despite the same arguments being made when this issue was debated in 2016, the 72-hour time limit placed on pregnant women’s detention has not had an incentivising effect on women claiming asylum. Unfortunately, the Home Office does not collect specific statistics on the number of pregnant women claiming asylum, but the number of women claiming asylum annually prior to the time limit was about 7,000. This figure has stayed broadly the same post time limit; there has not been any increase.

Secondly, there is the argument that there will be sufficient protection for pregnant women thanks to existing or updated guidance. I do not believe that that will be the case either. The existing “adults at risk” level 3 does provide some guidance but, as we saw before the Immigration Act 2016, with just guidance, pregnant women were being detained on a far more routine basis than they should be.

During the passage of the Immigration Act 2016, the original proposition was for pregnant women to be protected through guidance but ultimately it was recognised that that just would not be robust enough, and we saw the introduction of the time limit. I appreciate what my noble friend the Minister said in the previous group about updating the guidance following this Bill, but the gap between policy and practice was really only closed through the introduction of a clear time limit in primary legislation which reduced the elasticity of or room for interpretation of guidance. This protection should remain in primary legislation.

There is widespread support for this amendment from across this House, from the other place and from organisations such as the End Violence Against Women coalition, which is made up of 143 specialist women’s support services and experts, from Refuge, the largest domestic abuse organisation in the UK, from medical professionals, and from the Royal College of Obstetricians and Gynaecologists. I will not detain your Lordships by reading out their supporter quotes but, believe me, they are very supportive. I am happy to share them at a more appropriate time.

This is a narrow amendment that would impact just a small number of vulnerable women and keep the protection against detention that pregnant women currently have. It would not create loopholes as it would not exempt women from the duty to remove. The known negative impacts of detention on pregnant women outweigh the un-evidenced—and in my view, incorrect—argument that this will incentivise women to cross in small boats.

This amendment is about protecting women, not putting them at further risk. It would maintain current protections that have been widely acknowledged as working well. If my noble friend the Minister still believes the current time limit should be removed, I would welcome an explanation of the specific reasons for that. I ask him to take into account the widespread support for this narrow amendment and to consider its merits ahead of Report.

Lord German Portrait Lord German (LD)
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My Lords, this has been another interesting debate in which there has been one side only, and we face a series of debates where we are looking at fact versus forecasting. All of the speakers who have entered this debate in this short and very narrow area of work have been clear about the issues, which are evidenced—the health and well-being of pregnant women, the effect on unborn children, the dangers of restraint, which have been very well explained.

We are in exactly the same position as we were on the last group. We are asked to make a decision in this Committee based on unevidenced forecasting—in fact, we heard the Minister say earlier that he cannot be expected to look into a crystal ball. That is exactly what the Government are doing here, against all the evidence.

If you think about the number of organisations that have been referred to in this short debate, we are not talking about a small, narrow area of influence; we are talking about huge numbers of organisations representing women throughout this country, human rights and every other sphere you can imagine, believing that this is the wrong way to go. It is the wrong way because we do not have any evidence that it will do the job the Government want it to do.

The Government should stop their crystal ball-gazing to which they directed our attention earlier and concentrate on the evidence they have given. If they cannot provide the evidence themselves, listen to the evidence of the world around us.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.

In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn child and I take this to be a statement of the obvious”.

That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.

However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.

If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.

Illegal Migration Bill Debate

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Illegal Migration Bill

Lord German Excerpts
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I am, of course, hugely disappointed that some of our colleagues do not want to listen to a fascinating debate on Clause 60 of the Illegal Migration Bill, just as some of those who stayed until 4 am the other morning did not want to participate in the debates on the Bill. However, I am delighted that the noble Earl, Lord Russell, is joining our ranks. It is wonderful to have an Earl Russell back. Those who remember Conrad Russell will know what a formidable Member of this House he was, and I am sure that his son will do justice to his memory.

I am talking against Clause 60 standing part. This clause was added by the Government on Report in the Commons, so it was not discussed by MPs. It would amend a section of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that is about factors that damage the credibility of an asylum applicant.

The point of Clause 60 is to expand the circumstances in which credibility would be damaged—where a claimant fails to produce or destroys an identity document or, indeed, where they refuse to disclose information such as a passcode that would enable access to information stored electronically, such as on a mobile phone. It is rather odd that we should be debating this poor, lonely little clause on its own. Indeed, there was perhaps a good argument that it should have been grouped with Clause 14, which my noble friend Lord German, on whichever day it was—

Lord German Portrait Lord German (LD)
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On a variety of days.

Baroness Ludford Portrait Baroness Ludford (LD)
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Yes, when it was proposed that Clause 14 should not stand part of the Bill. My noble friend debated issues about the powers of the Government to extract information concealed behind PIN numbers on phones. If memory serves, Clause 14 was particularly in relation to people who are detained, while Clause 60 oddly stands on its own—apart from Clause 14. But they need to be looked at holistically, to try to get some assessment as to what new powers the Government want. Are we in danger of getting spillover to sectors other than asylum?

The failure to provide information, an identity document or a PIN number would be added as a type of behaviour considered damaging to a claimant’s credibility. It is not restricted to people who are caught by Clause 2; the intended effect seems to be directed more at people seeking asylum who arrive on a direct flight from the country in which they face persecution. In a sense, it does not have much to do with this Bill, which is another reason why it sets off a bit of an alarm bell. The problem is that making a direct journey from a country in which the person is at risk of persecution, perhaps where the persecutor is the state or an agent of the state, may require the person not to travel with documentation that would identify them if they presented that documentation or were searched as they passed through an airport. That would concern an identity document—so there are some issues around penalising a person because they have not produced such a document, and I would be grateful if the Minister could respond on that issue.

On the other arm of it, with regard to insisting on the person delivering the passcode or PIN for their phone, I am wondering how widely that is expected to apply and how it relates to Clause 14 on getting access to PIN numbers and, indeed, to handing over mobile phones. My noble friend Lady Hamwee raised the problem that that would mean asylum applicants not having access to their contacts. In the scenario that this Bill covers, that means that people could not phone their family to say, “I’m safe—I haven’t drowned in the channel”. So that is one aspect that arises. The other aspect is that of access and forcing someone to give up the PIN on their phone. When the Minister replied to the debate on Clause 14 and Schedule 2, he said that that the information on the phone

“can … assist in determining a person’s immigration status or right to be in the UK … We all know that mobile telephones contain a wealth of data relating not just to the owner of the phone but to where that phone has been and who they have been with—all of which can be used to build up an intelligence picture which can facilitate criminal prosecutions”.—[Official Report, 7/6/2023; col. 1542.]

We are all in favour of facilitating prosecutions. That is one of the reasons why we have been so dismayed by the provisions on victims of modern slavery and trafficking. Another reason is that there is nothing in the Bill to enhance the prosecution of smugglers and traffickers. Suddenly the Minister came out with this route which is supposed to facilitate criminal prosecutions. My noble friend Lord German referred to a High Court case which said that what the Government had been doing was illegal and that they were wrong to extract information concealed behind PINs on phones. The Minister said that the powers that have been put into the Bill in Clause 14 are fresh powers to respond to the High Court judgment, so this is a new suite of powers.

What we have got is in two different clauses. We have new powers, and the common theme across them is access to people’s mobile phones and other electronic devices by forcing them to give up PINs. I am wondering what the scope of this is, beyond people detained or caught by Clause 2, because Clause 60 appears to apply to anybody who is outwith the scope of the Bill. What are the boundaries of the powers that the Government are granting themselves to access people’s mobile phones? I cannot claim to be an expert on this issue, but I know there has been a lot of commentary and activity on the question of victims’ mobile phones in sexual abuse cases. Will the Minister clarify exactly what the purpose of Clauses 14 and 60 is? Why was Clause 60 brought in to stand on its own rather than Clause 14 being amended? What is the composite picture that the Government are painting? How are their powers going to be constrained? Are the rest of us going to find that one day all these powers apply to us as well? I am raising this point as a clause stand part debate because Clause 60 seems to raise some rather troubling questions about the powers that the Government want to give themselves to access mobile phones.

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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I think that that question has been asked and answered by my noble friend; I cannot update the House on that at the moment.

As my noble friend set out on Monday, we will provide an update to the House before the first day of Report.

Lord German Portrait Lord German (LD)
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In talking about this matter, could the Minister address the issue of why the Cabinet Office has issued guidance which the department has clearly ignored? Is there a need for the Cabinet Office to give guidance to Ministers on how they should produce legislation? If so, why have the Government not followed that advice?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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My Lords, the answer lies in the words the Home Secretary used this morning in front of the Home Affairs Select Committee. She said:

“We will be publishing it in due course”.


I am sorry to repeat those words again. She added:

“The issue is that there are many unknown factors … upon which the Bill’s success is contingent … For example, … the delivery of our Rwanda agreement. We are currently in litigation and those timelines are out of our control. We need to conclude our litigation relating to our Rwanda agreement. Once we have a clear view of the operability of Rwanda confirmed by the courts, then we will be able to take a very firm view about the economic impact of this Bill. … I would also say that to my mind it is pretty obvious what the economic impact … will be. We will stop spending £3 billion a year on … asylum cost”.


The Bill

“will lead to the cessation of 45,000 people in hotels and £6 million a day. To my mind, those are savings that we cannot ignore”.

I am afraid that I am unable to improve on that.

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Baroness Hamwee Portrait Baroness Hamwee (LD)
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Amendment 139A is in the name of the noble Lord, Lord Alton of Liverpool. The noble Lord, Lord Carlile of Berriew—who has managed to escape for the moment—has added his name to it, as has the right reverend Prelate the Bishop of London.

This amendment seeks to prevent immigration data being shared for the purposes of Clause 2(1), under which the Secretary of State must make arrangements for the removal of people who meet the four conditions. I am very happy to have my name to this—I would not have signed it if I were not happy—because the issue of exemption from the Data Protection Act is one which my noble friend Lord Paddick and I have raised many times since we debated the then Data Protection Bill. The exemption from restrictions on sharing data for the purposes of immigration enforcement or immigration control—I do not recall which but it amounts to the same thing—is a very wide exemption.

The concern here is to ensure that victims can approach the authorities for assistance without the fear of removal as a result of that contact, or of data being shared with immigration enforcement. Noble Lords have frequently made the point about people without secure status having more confidence in smugglers and traffickers than they do in the authorities. The traffickers’ threats are not ones that they will take lightly; they control their victims, notwithstanding that the victims have “escaped”.

We have a number of other clause stand part notices, all amounting to the fact that we oppose the whole of the Bill. The clauses which are listed in this group are not substantive clauses; in other words, they are not about policy. I will mention just one, which is about financial provision. I am alarmed—we all are—at how much will be spent on what we consider to be the likely costs of the policy. I will not go over them again. We are firmly opposed; I do not think I need to spend time re-emphasising that point. I beg to move Amendment 139A.

Lord German Portrait Lord German (LD)
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My Lords, I have two sets of amendments in this group. First, Amendments 142, 143, 144 and 147 seek to examine how the Brook House inquiry findings can influence the way in which the Bill will be enacted. Secondly, Amendment 139FE seeks to examine the devolution issues, which I will be looking at specifically through the legislation governing Wales and, very specifically, the Act of Parliament which I want to test the Government on.

First, my intention is to find out how the Government intend to deal with the recommendations of the Brook House inquiry when it reports and apply them to the changes that it will necessitate in the implementation of the Bill. Under the Inquiries Act 2005, the Brook House inquiry into mistreatment and abuse in breach of Article 3 of the ECHR at Brook House immigration removal centre was instituted in November 2019, following a judicial review proceeding. The inquiry has heard extensive evidence, and it is the first public inquiry into the mistreatment of those detained under immigration powers. The conditions of that detention provided a unique opportunity for public scrutiny of and accountability for detention practices and culture.

The inquiry, which we understand will be published in late summer, has heard evidence from detained persons, detention officers, healthcare providers, G4S—which was the contractor responsible for Brook House at the time—employees, Home Office officials, members of the independent monitoring board and His Majesty’s Inspectorate of Prisons. The inquiry also appointed and heard from three experts to address the key issues of the use of force, the institutional culture, and clinical care provision and safeguards. It also examined a vast amount of documentary material and video footage.

Illegal Migration Bill Debate

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Illegal Migration Bill

Lord German Excerpts
Lord German Portrait Lord German (LD)
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The bit of procedure that I am looking for is whether the Government intend to do the proper consultation exercise, as laid out in the Cabinet Office directions about the way to manage that process, which is one of consultation and agreement rather than imposition. Two of these legislative reform memoranda have been laid already, and both concern that important section in the Welsh legislation on looking after children. In that area, we need some confidence that this will be a dialogue rather than an imposition.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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I am grateful to the noble Lord for that intervention. I assure him, first, that the Government are aware of the legislative consent Motions to which he refers, but they are of the view that the LCM process is not engaged. None the less, I further assure the noble Lord that, although Clause 19 enables regulations to be made applying the provisions in Clauses 15 to 18, we will of course consult with the devolved Administrations—the process for which the noble Lord called—within the devolution settlement. In so doing, we will grant the respect that the noble Lord was keen to stress and the importance of which we on the Front Bench recognise.

The noble Lord also tabled Amendments 142, 143, 144 and 147, which seek to delay the commencement of the Bill until the current Brook House inquiry has reported. We acknowledge that these amendments are well intentioned. The whole Committee can agree that we want to see the conclusions of the Brook House inquiry, but, none the less, I cannot agree that the implementation of the Bill should be made conditional on this event, important as it is. It is worth adding that, as the Committee and certainly the noble Lord will be aware, this inquiry focused exclusively on one immigration removal centre, not the whole detention estate. Clearly, matters of great interest may well emerge and potentially apply across the whole estate, but I submit that we should not confine ourselves to proceeding on the basis of such evils as may be disclosed in this report and as are identified in a single case, rather than considering the estate as a whole.

As the noble Lord said in presenting his argument, the chair of the inquiry has indicated that she intends to issue her final report in the late summer, so the noble Lord and the Committee should not have too long to wait. But my point is that, as a Parliament, we should legislate from the general rather than the particular. Well intentioned though it is, the noble Lord’s amendment places the Brook House inquiry at the forefront and everything else would flow from that. I submit that that would not be the best course on which to proceed.

We will carefully consider the recommendations of this inquiry, including recommendations for that wider application to the immigration and detention estate and the practice of detention, but I submit that that is not a reason for delaying the commencement of the Bill. The debate has been interesting, and I am grateful to Members from across the Committee who contributed, but at this stage I invite the noble Baroness to withdraw the amendment.

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Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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My Lords, I support these amendments that the most reverend Primate has put down and thank him, again, for initiating a whole day’s debate here last December on Britain’s immigration policy and the need to take an overall approach, a general approach, not just dealing with it like the little Dutch boy, running around sticking his finger in one hole in the dyke and another hole comes—that is what we are faced with with this Bill. The most reverend Primate is helping us to avoid the mistake of a patchwork approach, so I welcome these amendments. I think it is a shame, myself, that we should be debating this at this hour in the evening in a rather scantily attended House, just in order to save one extra day in Committee; it would have been much better to have had that.

The point that the most reverend Primate is making about the need for an overall approach—this long-term approach which Governments of both parties no doubt would stick to—must be the right one. The other point he has made very forcefully in this context is the need for international co-operation. That is also absolutely vital.

Unfortunately, as innumerable speeches in Committee have shown, there is a very strong view, supported by many outside this House and many international bodies, that the action in the Bill is contrary to our international obligations. That in itself is bad enough, but what is worse is that it is totally inimical to getting the wider international co-operation we will need if we are to handle these problems. If we insist on going ahead and breaking our international obligations, we will get zero co-operation from other countries which are also bound by them and which believe that they are being broken by the Bill.

I wish the Minister would listen to what I was saying rather than having a conversation. That would be very helpful. I will wait until he stops having his conversation. He has stopped; I thank him very much.

I think the Government need to address this point—oh dear, he is talking again.

If what we are planning to do in the Bill breaks our international obligations in the view of many of our closest partners—the ones in the rest of Europe, for example, without whose co-operation we will get absolutely nowhere with the measures being proposed—we are not going to get that co-operation. That would be extremely serious, with its knock-on effects on the trade and co-operation agreement and so on.

I hope the Government will listen carefully to this debate, on both the amendments in the name of the most reverend Primate, and see that there is a great need to go down that road.

Lord German Portrait Lord German (LD)
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My Lords, I am pleased to offer our support from these Benches. The most reverend Primate has delivered what I would call a swerve ball: he has gone around the side of what is being proposed by the Bill and tried to find a route for what will follow it. He raised the issue of the Modern Slavery Act at the beginning, which we have debated in Committee as being something this Parliament has been very proud of indeed. All of that has been put to one side in order for the Government to make these short-term decisions.

It is interesting that, on many occasions, Ministers on the Government Front Bench have referred to the Bill as dealing with an emergency, whereas they have not yet recognised the context that what is happening is a global problem. The interesting figures at the beginning of the Joint Committee on Human Rights report on the Bill enlighten us:

“In mid-2022, the UN Refugee Agency … estimated that there were 103 million forcibly displaced people worldwide. Of those, 32.5 million are refugees and 4.9 million are seeking asylum — the highest number since the UNHCR was created in 1950. This number is likely to increase given the deadly conflict that has erupted in Sudan”.


Over the page, it says that we will not solve this on our own. Treating this as an emergency will never satisfy the issue that the Government are trying to address of trying to deal with the problem at source.

The Government say that they will stop criminal gangs with the Bill, but many in the Committee believe that this simply will not happen. Many of your Lordships believe that the Bill, as it stands, is as a gift to traffickers, who know that their victims will be too frightened of the threat of removal to approach authorities.

The logic behind the most reverend Primate’s amendment is quite clear to us, in relation to trafficking. It focuses on efforts to tackle the traffickers rather than penalise the victims. What most of us find most abhorrent about the Bill is that it tackles the victims to try to deal with a problem that is well beyond its reach. I absolutely support the view of the noble Lord, Lord Deben, on the supply chain process: it is just silly—not sensible—to think that it will work.

That is why we need a global and collaborative approach with international partners. That is what is needed when traffickers operate across national boundaries and borders. This amendment therefore addresses the question: what next? It puts co-operation front and centre of its approach and it seeks a role for the UK in which it is a leader, rather than a follower and a country trying to pull up a drawbridge. Trafficking is an abhorrent crime and we need to play our part in tackling the crime at source. It needs a global perspective and collaboration, rather than headlines with an election in mind.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, as other noble Lords have said, a 10-year strategy, implementation plan and associated measures are needed to tackle human trafficking, particularly, as the most reverend Primate’s amendment suggests, through international collaboration to deal with issues upstream and downstream—as the former oilman said. His experience of supply chains is similar to that of the noble Lord, Lord Deben.

However, the noble Lord, Lord Hannay, raised a justified concern about the reluctance of other partners, who would be central to the success of such a strategy, if they believed that the United Kingdom were breaking its international commitments, whether regarding the European Convention on Human Rights or the European convention on trafficking. The most reverend Primate highlights the worrying slowdown in prosecutions for human trafficking, which must be reversed.

I have one concern about the most reverend Primate’s plan. I understand the need to establish a long-term strategy, but an incoming Home Secretary could thwart a 10-year strategy by asking Parliament to repeal any law that contains the provisions in this amendment. Sadly, enshrining a 10-year strategy in law does not guarantee its longevity, but it would make it more difficult to dislodge. That is why we support these amendments.

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Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I very much welcome this amendment. I should say that this is not a bid to join the Bishops’ Benches and I thank the most reverend Primate for introducing it. I want to make just three points.

The first has been implicit in quite a lot of what has been said by the most reverend Primate and by other noble Lords on the previous amendment. It is that, if we are to have a global, collaborative strategy, it has to be from a different mindset from the one that underpins the Bill, because that mindset would prevent such a global strategy. We have to stop acting as if we are somehow uniquely burdened by this global refugee crisis. The figures have been given showing how other countries are pulling their weight much more than we are. Countries with far fewer resources than we have are doing so, yet with the Bill we act as if somehow the poor UK is under siege from this global crisis. To think globally means thinking differently, and we have to think and act with compassion. Compassion has certainly been lacking in this Bill and in the approach being taken.

My second point, which links with this, is that we have to start using a different language. The point has been made a number of times during our debates: people are not illegal and journeys are not illegal, but they are being turned illegal when they arrive here. Please let us not talk about “illegal routes” or “illegal migrants”. They are coming by irregular routes but they are not illegal. This goes right back to the beginning, when we talked about the language that is often used by some politicians and by the media: the language of invasion, cannibalisation and so forth.

It reminds me that I spoke in an even later debate—I think it was at about 2 am—on Albania. I met a group of young Albanians and have just discovered the notes I made from that meeting. I could not find them anywhere, and now I have. They talked about how disturbing they found the way that they were talked about in the media. In one newspaper—I leave the Committee to guess which—they were called “vermin”. I wrote down what they said: they felt violated, unsafe, scared, despised and unwanted. It is dreadful that young people feel that because of the way that we talk about them, so we have to change our language when we talk about the future migration strategy. The research of HOPE not hate suggests that every time politicians or the media talk negatively, it leads to a spike in far-right activity against migrants. Again, that is no basis for building a strategy.

Thirdly and perhaps more positively—this goes back to something that the right reverend Prelate the Bishop of Durham said earlier—if we are going to develop a strategy, and I hope that we will, we will have to involve refugees themselves in its development. We need the expertise of their experience of what it is like to flee countries and start a new life elsewhere. We have to base our strategy on that understanding, and it involves what the right reverend Prelate referred to earlier as “co-production”. It is not good enough for politicians to sit in their offices and come up with a strategy, then talk to politicians in another country and say, “Right, here’s our strategy”. We need to work from the very start with those people who are experiencing this. That is simply all I want to say.

I wish we could have had this debate at a better time. I am very sorry I was not able to be part of the debate that the most reverend Primate instigated in December, but I have read it and know that there were some inspiring speeches and lots of ideas that could go into the strategy. As I said in my earlier intervention, this is not requiring the Government to do X, Y and Z so that the next Government have to do X, Y and Z; it is simply saying that there has to be a strategic framework, and then Governments work within that. It does not matter what the complexion of the Government is. I certainly hope that my party in government would want to develop a strategic approach towards refugees and, as I say, one that works with refugees in building that.

Lord German Portrait Lord German (LD)
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My Lords, it is a privilege to be able to follow the words we have just heard from the noble Baroness, Lady Lister, and my erstwhile colleague the noble Lord, Lord Bourne of Aberystwyth. There are just a few things I want to add to what I said on the previous amendment. I think that, as a principle—the principle that the noble Baroness, Lady Lister, espoused just now—we need to look beyond ourselves. It is only by looking beyond ourselves that we will find a sustainable and effective solution for the problems we have in front of us.

I was thinking about the models for the sort of process that the most reverend Primate is suggesting. One is the Global Campaign for Education. It is known for its Let me Learn campaign, and it works across the globe to bring together people. I have been in meetings in this House with children from around the globe, from the poorest countries to the richest, using modern technology. The Global Campaign for Education basically wants to ensure that every child in this world has the right and the privilege to be educated by being sent to school. That level of collaboration brings together the United Nations, the rich countries and the donor countries, who then meet the poorer countries—there is a whole structure that sits around it. Unless we start thinking about this as being outward looking, and unless we look beyond ourselves, we are never going to find a sustainable solution.

We support this amendment, as it is seeking to recognise that our UK response to refugees has to be considered by how it interconnects with the global community. We cannot pretend that we can pull up the drawbridge and be isolated from the global issues around us. What we do impacts on other countries.

There are some countries which would follow the lead that the UK takes, but that is a race to the bottom. If we seek to discharge responsibilities for refugees to other countries, there is every chance that other countries will follow the UK’s lead. As countries do this, refugees will be pushed back to the border countries and further to the regions from which they fled. A smaller number of countries will end up shouldering the world’s refugee resources, which will be stretched, and regions will be destabilised. That is a real possibility around the globe.

The UK will be impacted in one way or another, and we cannot separate ourselves from this. The whole global refugee protection system would be at risk of collapse. Forced displacement is a global issue which requires a global response. We need to work towards these ends as described in this amendment, and we need to be seen as a country which is able to take a lead.

Lord Bishop of Durham Portrait The Lord Bishop of Durham
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My Lords, the most reverend Primate might be nervous—he did not know I was going to stand up and he has no clue about what I will say. But I will start by saying I fully support his amendment. I will ask the Minister about the Global Compact on Refugees. The UN has been seeking to develop a global strategy on refugees for a number of years, and it was my privilege to join the Home Office team dealing with the Syrian refugee crisis in Geneva in 2018, at its request. It asked me to make an address. I say this partly in answer to my colleague: actually, the Home Office as well as the FCDO has been engaged in some of those discussions. But it seems to me that we have almost lost sight of the fact that we signed up to the global compact. I accept that the Minister may need to write on this, but I ask him: where are we now with our commitment to the global compact on refugees and our commitment to engage in that ongoing development of a UN strategy that responds to refugees? Are Home Office people still involved in those discussions, or has it all moved to the FCDO?

Illegal Migration Bill Debate

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Department: Scotland Office
Lord Dubs Portrait Lord Dubs (Lab)
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My Lords, I am grateful to the noble Lord, Lord Scriven, the noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate the Bishop of Durham for supporting this amendment.

The issues are pretty clear and I shall be ever so brief. We have been over these arguments in principle both in Committee and, implicitly, in some of the earlier amendments on Report. The clear point is this: the impact of the Bill will be that children claiming asylum in the UK will automatically be turned away, based on the method by which they have travelled and arrived in the UK. That, in effect, will mean that children will be refused an application for asylum, regardless of their need for protection as child refugees.

This is in the light of the most recent figures, which show that, of all the unaccompanied children who arrived and whose cases were determined, 86% were given refugee status. Therefore, we are saying no to the equivalent children who will be coming in the future. We are dealing with some of the most vulnerable of all refugees. We know that. Even the Minister said in Committee:

“We recognise the particular vulnerabilities in relation to unaccompanied children”.—[Official Report, 5/6/23; col. 1168.]


There has been virtually nothing in the impact assessment about children. At Question Time the other day, the noble Lord, Lord Hannay, referred to the United Nations Committee on the Rights of the Child. Earlier this month, the committee expressed concerns about the potential impact of the Illegal Migration Bill on children and went on to specify in detail how it would work.

The Government seem to think that, by having this, somehow children will stop coming over. I do not believe there is any evidence to support that. I have talked to some of the children in the Calais area. Those who get to Calais are absolutely determined to continue their journey.

The Government seem to think that most of the world’s refugees should claim asylum in the first safe country they reach. Most of the world’s refugees, in any case, are in countries adjacent to the one they fled. We know that the majority of children who reach France claim asylum there; it is a minority who claim asylum in this country.

What we are doing with this Bill is shutting the door on some of the most vulnerable human beings on earth: refugee children. These are children who have escaped the most appalling situations. The Government was wobbly even in the Commons during Report on this issue, and the right thing would be for them to accept this amendment. There is absolutely no argument why they should turn their backs on children, the most vulnerable refugees that there are. I beg to move.

Lord German Portrait Lord German (LD)
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My Lords, I will speak to the second amendment in this group, which is in my name and the name of the noble Lord, Lord Kerr. I declare my interests as set out in the register. I obviously support the amendment from the noble Lord, Lord Dubs, as an absolutely important amendment.

The amendment I am proposing has two purposes. The first is to provide a route out of the limbo which thousands of people could fall into if they were not removed from this country and had to remain here without any opportunity to make their case. The second purpose is to provide a backstop for the Government so that they can bring matters to a conclusion where there is no conclusion in this Bill.

This amendment provides a backstop for the Government if, for whatever reason, an individual cannot be removed within six months. It means that the Government do not have to indefinitely support them. The Government can consider their asylum claim in the UK which, if successful, means they can get on with their life in the United Kingdom. If it is unsuccessful, they can be removed to their country of origin. Without this amendment, the Government are unable, because of the powers in the Bill, to consider their asylum application in the United Kingdom. So, if a safe third country cannot be identified for a person’s removal, the Home Secretary has no way to discharge the responsibility to them.

The economic impact assessment of the Bill assumes that people will be detained for 40 days before removal. In fact, I will quote the Minister at the beginning of today’s debate. He said:

“We need a scheme that will enable removals in days and weeks, not … in months”.


If that is the case, and the Government are true to their meaning, this backstop will never apply. But it is a backstop in case it does not work. We have not seen the evidence that it might work. The backstop will ensure that taxpayers’ money is not tied up in supporting thousands of people indefinitely. It is not a commitment to spend additional money but a financially prudent course of action that will help planning for both national Government and local authorities in this country.

This amendment also recognises the human dignity of each individual. Keeping them in a state of limbo, unable to support themselves and their families, and dependent on the state, is not healthy for any society. It has the great risk of fuelling exploitation in the United Kingdom.

The migration and economic development partnership with Rwanda is currently the only removal agreement that the UK has in place that includes third country nationals. The legal and practical challenges faced by that scheme are well documented and, even if it becomes operational, it will not be possible to remove to Rwanda all of the thousands of people whose claims are deemed inadmissible. That is why this backstop clause for the Government is so important.

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Moved by
15: Clause 4, page 6, line 16, leave out “cannot be considered under the immigration rules” and insert “must be considered under the immigration rules if the person who made the claim has not been removed from the United Kingdom within six months of the day the claim is deemed inadmissible.
(3A) From the point at which the provisions of subsection (3) apply to a person, no other provision made by or by virtue of this Act applies to that person.”Member’s explanatory statement
This amendment would require the Home Secretary to consider a protection claim or a human rights claim if the applicant has not been removed from the UK within six months of the claim being deemed inadmissible, and disapply other provisions at this point.
Lord German Portrait Lord German (LD)
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My Lords, I listened very carefully to the explanation of why the Government think this amendment ought not to be accepted, on the grounds that they are going to remove people within weeks of their arrival in the United Kingdom, without any evidence. It is also the case, I think, that this House generally does not believe that will happen. As it is a backstop for the Government to save money, I think it absolutely appropriate that we do our job to help the Government along and make sure that the public finances are not screwed up in that way. Therefore, I wish to test the opinion of the House.

Baroness Pitkeathley Portrait The Deputy Speaker (Baroness Pitkeathley) (Lab)
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My Lords, there is a technical problem and it has been decided that the Division will be deferred. We will take the Division together with the next Division after the next group.

Illegal Migration Bill Debate

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Department: Home Office
Moved by
49: Clause 10, page 14, line 21, leave out “and (3)” and insert “, (3) and (3A)”
Member's explanatory statement
This amendment is consequential on Lord German’s amendment to page 15, line 37.
Lord German Portrait Lord German (LD)
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My Lords, there are two sets of amendments in this group. I am speaking to Amendments 49, 53, 56 and 61, which all concern standards in places of detention. The other amendments have been tabled by the noble Baroness, Lady Mobarik. From these Benches, we support all the amendments in her name and would be pleased to have been able to add our name to them.

We discussed this matter of standards very briefly in Committee, but the rules on where people can be held for detention are being altered by the Bill. Rather than following the Immigration Act 1971, which lays out clearly where people could be detained, this says that people can be detained anywhere the Minister feels appropriate. I have been thinking about a number of questions which arise from that, but clearly the issue that I am particularly concerned about is the boundary-line between where people are going to be detained—because, of course, that is part of the Bill—and where they might be placed when that detention ends and what offering they might get.

I regret to say that today we heard about the government costs for the barge in Portland: a contract has been let, without tendering, for £1.6 billion for the first two years of that contract. I have in front of me a copy of the floor-plan of that barge, and it is quite clear that the only way that the numbers the Government say will be accommodated will be achieved is by putting in bunk beds in each of the single bedrooms on the “Bibby Stockholm”. We are also led to understand, apart from the huge cost involved, that there will be curfews and that people will only be allowed on to the dockside in a compound—that is the only space they will occupy. To me, that seems to be detention. The only thing that I need to understand is whether the standards of a place of detention are going to be the same as where people are accommodated when they are not in detention. It seems that what the Government are proposing in this £1.6 billion contract is very clearly a place of security and secure boundaries. If there is a curfew when people are not allowed to leave, clearly that means that there are very strict rules that people will have to follow.

Consequently, if the Minister would ensure that the standards of the Detention Centre Rules, which have been in place since 2001, and the Short-term Holding Facility Rules, which were put in place in 2018, are going to be followed, we can expect to have at least some boundary-lines about what sort of accommodation it will be like. However, I fear that the worst aspect is that we are going to see a dehumanisation of people by being put into places which will not suit the current legislation and certainly will not suit what most people would think of as somewhere decent for people to be detained or to live.

I ask these questions to seek some clarity. Are there any rules at all which the Government are going to follow in relation to the detention of the people they now propose to detain, with everybody being put in detention when they arrive?

Baroness Mobarik Portrait Baroness Mobarik (Con)
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My Lords, I will speak to Amendments 51, 57, 59 and 63 in my name, which retain existing time limits for the detention of children, both unaccompanied and those with families.

Under a Conservative-led Government over a decade ago, Parliament rectified what David Cameron called the scandal of routinely detaining innocent children, so it is regrettable that we are conducting this debate again. The evidence is unequivocal, the debate long since settled: detention does immense and long-lasting harm to children.

I made my points at Second Reading and in Committee, so I shall not repeat the arguments other than to remind my noble friend the Minister of warnings of leading medical organisations in a letter to the Home Secretary outlining the serious harm and risks that refugee children will face if the detention powers in the Bill become law.

There is no policy rationale for why the Government should detain vulnerable young people. The argument is that not detaining children would lead to adults pretending to be children or smugglers exploiting loopholes. But preventing presumed future actions of an unknown number of adults is not a justification.

My noble friend the Minister has recognised the particular vulnerability of unaccompanied children, and for that I thank him. He told us in Committee that, for the most part, unaccompanied children will not be detained. Yet any such exceptionality of a lone child’s detention is nowhere in the Bill. Indeed, the proposed legislation expressly does away with the existing statutory provisions that limit an unaccompanied child’s detention.

In fact, the new powers to detain them are unrestricted. Under the Bill, unaccompanied children may be detained under the new powers only in circumstances prescribed in regulations. We do not know what will be in these regulations or when we will see them. While I thank my noble friend the Minister for the positive step in making the unaccompanied children regulations subject to the affirmative procedure, there is still no knowing what circumstances will be specified in them.

The law governing something as extreme as the power of the state to detain an individual without charge or trial must be much more firmly established. In Committee, my noble friend the Minister said that

“the Bill will also allow the Secretary of State to make regulations specifying time limits to be placed on the detention of unaccompanied children for the purpose of removal, if required”.—[Official Report, 7/6/23; col. 1491.]

I remind noble Lords that the Bill does away with precise time limits, as established by a Conservative Government, that keep unaccompanied children’s detention to no more than 24 hours and only in short-term holding facilities. The Bill will replace existing limits with a power, if required, to make regulations with any as yet unknown time limits on detention and of unaccompanied children only. To my mind, this is wholly insufficient.

I turn from the Government’s possible future time limits in regulations for unaccompanied children to the promised government timescale for child detention. This, we are led to believe, is a timescale for detention of all children—those who are unaccompanied and alone as well as those with their families. The timescale was to be set out during the passage of the Bill through this House, but as yet we do not have it. However, following a very positive engagement with the Immigration Minister earlier today, I am hopeful that we will have clarity and that my amendments will receive consideration on return to the Commons. For that reason, I am minded to test the opinion of the House on Monday.

In October 2020, a Kurdish-Iranian family from Sardasht near the Iraqi border died after the boat they were travelling in capsized in the channel. They were Rasoul Iran-Nejad, 35, Shiva Mohammad Panahi, 35, Anita, nine, Armin, six, and Artin, 15 months, whose tiny body washed up on the coast of Norway months later. I am sure that noble Lords will join me in continuing to mourn the loss of these lives. If these three children, Anita, Armin and Artin, had survived, under the Bill they would be detained indefinitely upon arrival in the UK. Surely that cannot be right. I urge the Government to think again about undoing the progress made when we ended the cruel practice of detaining babies, toddlers and children.

We can and must do better by these vulnerable young people whom the world has already put through so much. Trafficked and refugee children need recovery and protection in line with their rights under the UN Convention on the Rights of the Child, trafficking conventions and the refugee convention. Let us not take away the existing time limits for the detention of migrant children as laid out by a previous Conservative Government. The ending of lengthy child detention was a humanitarian response to what had been an unacceptable practice with grave impacts. This is a proud legacy that we must protect.

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Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I have listened very carefully to what the noble Lord has said and I will certainly take it back to the department.

Lord German Portrait Lord German (LD)
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My Lords, this has been a very interesting but short debate. It is interesting that once again we focus on evidence. I often find it strange in this House when people are asked to make judgments about very important matters, particularly affecting young people, and we are not provided with the evidence.

It is not just four times that the noble Baroness, Lady Lister, has asked. It is probably four on top of four and many times beforehand. She always asks for this in a very decent manner. It is so important that we have that information in order to make judgments about legislation we are being asked to approve or to change. It is not good enough for the Government to say, “Take our word for it”. They should provide that evidence as we would normally expect, at the right time and in the right place. We are now moving rapidly beyond the place where it will be in demand. I dread to think about the devices that one uses in the legislative process that allow us to keep coming back to this matter until such time as we can deal with that evidence.

On the amendments I was talking to, I think I have had a partial answer in that the Detention Centre Rules 2001 are to be followed, so that is something about standards. The bit that I did not have answered was what the difference would be between detention and the places where people will be held or provided with accommodation. In the case of the barge that I told the House about earlier, the only difference was that there would be no curfew and the gate would be closed. That seems the only difference in the standards between the two.

It is a matter that I will keep coming back to, but I am minded to withdraw. Before I do, I say to the noble Baroness, Lady Mobarik, that on these Benches we are certain that if she were to move these to a vote we would support her. The issues she has raised are crucial, especially as we lack the evidence for anybody to say that the case being made has been dealt with appropriately. If I could encourage that, I would be very grateful. In the meantime, I withdraw Amendment 49.

Amendment 49 withdrawn.

Illegal Migration Bill Debate

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Department: Home Office

Illegal Migration Bill

Lord German Excerpts
Baroness Sugg Portrait Baroness Sugg (Con)
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My Lords, I support the cross-party amendments in this group. I thank my noble friend the Minister for his engagement, which I have truly appreciated, but I regret to say that I have yet to hear an argument as to why this amendment should not be accepted.

This is a very narrow and focused amendment that simply maintains the current protection on the detention of pregnant women. There is a clear medical case, which is why it is supported by the royal colleges, medical professionals and over 140 groups representing women. It will not create loopholes. It will not incentivise pregnant women to make a dangerous crossing across the channel. It does not exempt women from the rest of the provisions of the Bill, such as removal. It will not create a pull factor, and there is really no way it can be exploited by the criminal gangs who arrange crossings. There cannot be false claims of pregnancy, as the time limit starts only once the Home Office is satisfied that a woman is pregnant.

Some have said that pregnant women are unlikely to be removed, given fitness to fly, but that is not the case, as NHS guidelines say that women can travel safely well into their pregnancy. That argument also misses the point, as this narrow amendment is not about removal; it is about detention. If it is the Government’s case that pregnant women may not be removed, it is even more important that this amendment be accepted, so that pregnant women are not detained for lengthy periods of time.

The amendment does not undermine the Bill. It is not a wrecking amendment; I have been very careful to try to avoid those. It impacts just a small number of women, but it will have a big impact on those women’s health and futures.

My noble friend the Minister is sincere when he says that the Government do not wish to detain pregnant women for any longer than is strictly necessary. Sadly, however, before this protection was in place and in legislation, women were kept in detention for weeks and sometimes months. We should not return to that. This narrow amendment is designed to ensure that that does not happen and that no women can slip through the cracks. Even at this last minute, I sincerely hope that my noble friend will accept the amendment. If he does not, however, and the amendment is pressed, I will, with regret, vote against the Government and in support of the amendment.

Lord German Portrait Lord German (LD)
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My Lords, we on these Benches are pleased to support both amendments in the name of the noble Baroness, Lady Lister. I recommend that the Minister take note of the request she has made time and time again in this House for some form of impact assessment in respect of pregnant women.

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Lord Green of Deddington Portrait Lord Green of Deddington (CB)
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My Lords, I shall be even briefer. I listened with great interest to our two lawyers. They spoke with the fluency and knowledge that one simply has to respect. However, I point out that we face a very difficult policy problem, with serious effects on public opinion towards immigrants and arrivals in Britain. We face a situation in which, so far, what the Government have done has had no or very little effect. If this continues for some months or longer, there will be a serious impact on the authority of this Government and, possibly, the successor Government. I ask the lawyers and other Members of the House to bear those aspects in mind.

Lord German Portrait Lord German (LD)
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My Lords, in the absence of my noble friend Lady Ludford, who cannot be in her place today, I will speak to Amendments 77, 78 and 79, which are in her name and that of the noble Lord, Lord Anderson of Ipswich. Those three amendments are intended to tackle the same issues as those tackled by the noble Lord, Lord Carlile, albeit with a different approach. If the noble Lord wishes to press his Amendment 66 to a vote, we will support him.

It is critical that the decision about the reasonableness—we have just heard that word from the noble Viscount, Lord Hailsham—of the length of immigration detention remains a matter for judges, not for the Secretary of State. Incidentally, those who read the judgment of the Appeal Court last week will have noted subsection (5) of paragraph 264, in which the Appeal Court questions

“whether the culture of the Rwandan judiciary will mean that judges are reluctant to reverse the decisions of the Minister”.

This very much puts the separation of powers between the courts and the Executive in Rwanda under question. Here we have virtually the same process, in which the courts of this country are being denied the principles on which they have operated. Set against that is a decision that is down to the reasonableness of the Secretary of State.

It is critical to preserve the Hardial Singh principles to ensure that the most vulnerable people do not have their freedoms curtailed unjustifiably. When the Secretary of State deprives someone of their liberty, there must be a clear avenue for the person to seek independent review of the legality and necessity of their detention. Detention should be for only a short period pending removal. We know now from the judgment that that will be much more unlikely. With no viable agreements in place, save with individual countries for individual persons who belong to those countries, it is highly likely that the 28 days that people will be detained on arrival in the UK will not be pending removal but will be purposely and purely to deter others.

We will be building up more and more people in detention or in some form of curtailed liberties. That is wrong, and it is why the judiciary needs to maintain oversight. This is critical, given that the Bill intends to detain everyone, regardless of age, ill health, disability and trauma. I am pleased to speak to these amendments and, as I say, these Benches will support the noble Lord, Lord Carlile, if he wishes to press his amendment.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, we will support the noble Lord, Lord Carlile, when he presses Amendment 66, and we would expect the subsequent amendments he mentioned to be consequential to that. He clearly and helpfully set out the four Hardial Singh principles and gave their legal basis and history, and I thank him for doing so. As he pointed out, the Government themselves recently cited those principles in a High Court case. I also thank the noble Viscount, Lord Hailsham, who succinctly summed up the Opposition’s view on the Bill. He said that there is little prospect of unilateral action succeeding, and we agree. He deplored the Secretary of State’s using the power of detention to reinforce the message of deterrence, rather than speaking of the need to implement the Bill, and we agree with that as well. He said that the power should not go to the Secretary of State rather than the courts, and he cited the Explanatory Memorandum. We agree with that too, so I thank the noble Viscount for summarising our view of the Bill.

The noble Lord, Lord Green, said that what the Government have done so far has not had much had effect. The Government are asking us again to support them to do more, yet they have been unsuccessful in the various Bills they have introduced in recent years to try to address this problem. It is a real problem, and there needs to be a different approach to reduce the numbers. Of course, I agree with the noble Lord, Lord German, as well. For all those reasons, we will be happy to support the noble Lord, Lord Carlile.

Illegal Migration Bill Debate

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Lord German Excerpts
Baroness Neuberger Portrait Baroness Neuberger (CB)
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My Lords, most of what I wished to say has been said by others. I pay tribute to my noble and learned friend Lady Butler-Sloss, the noble Viscount and my noble and learned friend Lord Hope for what they have said, and I support the amendment in the name of the right reverend Prelate the Bishop of Durham.

I will simply say this: it is a matter of fairness. In its scrutiny of the Bill, the Joint Committee on Human Rights remained unconvinced by this approach and believes that any penalisation for refusing to undergo some form of age assessment should be challengeable in the courts, which remains not the case at the moment. Removing a young person’s right of appeal against an age assessment which may have been carried out on appearance only, or by any other means, is, as my noble and learned Friend, Lady Butler-Sloss, said, cruel and demeaning.

It is all the more disgraceful if that young person has been tortured or abused and is terrified of being touched by strangers when there is a scientific assessment. It is all the more disturbing given that the so-called scientific methods for age assessment are widely questioned by the scientific community, especially those who have particular expertise, such as the Royal College of Paediatrics and Child Health. I chair two hospitals, as noted in my interests set out in the register. I have never met a doctor or any other health professional who supports these so-called scientific age assessment methods, yet I have met several asylum-seeking young people who have been tortured and abused and are terrified of being touched. If they refuse, they can be penalised and treated as adults. This is a matter of fact. Any young person should have the right of appeal.

Lord German Portrait Lord German (LD)
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My Lords, I note my interests in the register. I shall speak to the amendments in this group proposed by the right reverend Prelate the Bishop of Durham and the noble and learned Lord, Lord Hope, because I think they are a package, and we see them as being important together. I believe that age assessment is an art rather than a science, because it is absolutely the case that mistakes can be made and there is no absolutely right way of assessing the age of a person.

I recently had an experience like that of the noble and learned Baroness, Lady Butler-Sloss. As part of the Learn with the Lords programme, I was talking to group of sixth-formers in a school in England, and one of them had a beard. It was quite surprising but natural. We must not jump to the assumption that if someone has a beard, they are an adult. The rules of this sixth form are that they are allowed to grow their hair longer if they wish to.

I want to look at one area of this work which has not yet been probed by those who have spoken, which is the relationship with other European countries. The Minister repeatedly prays in aid the practice in some European countries, but the European Asylum Support Office, which provides formal guidance for member states of the European Union, has a different view from that which has been expressed by the Minister. Importantly, the safeguards in its guidance contrast with what is in this Bill and what we discovered last night in the child’s rights impact assessment.

Once again I say that the child’s rights impact assessment arrived at virtually the last moment when we are able to discuss anything which impacts unaccompanied children or children in general. It states that,

“until the Home Secretary determines the science and analysis is sufficient to support providing for an automatic assumption of adulthood, which would bring the UK closer to several European countries like Luxembourg and the Netherlands”.

However, the European guidance to all member states says on age assessment:

“In applying benefit of the doubt”—


that is the important phase—

“the applicant shall be considered to be below 18 years and, if unaccompanied, a guardian/representative shall be immediately appointed … The BIC—

best interests of the child—

“shall be observed from this point onwards until conclusive results point out that the applicant is an adult”.

It is evident from this Bill’s Explanatory Notes and the child’s rights impact assessment, which was just received, that this Government do not plan to do either.

The child’s rights impact assessment appeared only in the middle of last night, so it would have been difficult for people to have read it. I shall therefore quote the relevant paragraph. On page 13, it says that:

“The bill includes a regulation making power to make an automatic assumption that a person is an adult if they refuse to undergo scientific methods”—


I repeat, “scientific methods”—

“of age assessment without good reason.”

How does that equate with the guidance to European member states that the benefit of the doubt should be given and the best interests of the child should be provided? It does not. By contrast, the European guidance says on page 42:

“The refusal to undergo the assessment should not imply an automatic consideration of age of majority”.

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Lord Bishop of Durham Portrait The Lord Bishop of Durham
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My Lords, the will of the people often gets quoted—for instance, by the noble Baronesses, Lady Stowell and Lady Lawlor. Many of us work on the ground with refugees and people who support refugees. The will of the people is to be a compassionate, welcoming nation to refugees and asylum seekers, as we have seen demonstrated by the welcome to Ukrainians and Afghans, and as I see demonstrated regularly. The will of the people is also that we find ways of stopping the boats—I agree. That is exactly why we need to get on with doing a 10-year strategy. It is about trying to bring all those people together, who can be compassionate and want to stop the boats at the same time. This is the right and proper time to do that, off the back of the Bill, so that we move forward with a 10-year strategy. I think that what the people want is for us to get the refugee thing out of party-political toing and froing and find a way forward together.

Lord German Portrait Lord German (LD)
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My Lords, I thank the most reverend Primate, because this amendment gives us an opportunity to look beyond the Bill. It is clear from the days and days that we have been debating the Bill that there are severe doubts about whether it will achieve its aims and severe doubts about the way that it is doing it. But we need to look beyond that if we are trying to find something that will beat the situation that we are all going to face in the years and decades to come.

We support this amendment because it sets out a different approach in responding to the global challenges of refugees and trafficking. Global challenges—that is what they are—require global solutions. We just cannot be isolationists. We need to recognise and take responsibility for the impact of our responses in an interconnected global community. We have to work with our European neighbours and global partners, building on frameworks and building new partnerships that should be broad and inclusive, with the active engagement of refugees and victims of trafficking, who can contribute from their lived experience.

In the UK, there needs to be a cross-departmental approach involving real consultation with a range of stakeholders, including local government, our devolved Governments, civil society organisations and international partners, which deliver some of the resettlement and humanitarian responses we have to deal with in this country. Any strategy should include a diversity of routes to safety and a harmonised approach to entitlements and protection once in the United Kingdom, particularly access to integration support. Partnerships with faith groups and their diasporas should be forged to secure good integration outcomes, and refugee family reunion should underpin all the offers of protection that the strategy outlines.

This amendment speaks to a sensible conversation because that is what it is intended to do: to start us on that route of a journey of thinking. There are great people in this House and great wisdom is expressed in a multitude of views, but in the end we are a humane and compassionate country and I would like to see us start on that journey. I recommend the amendment put forward by the most reverend Primate as a way to begin that sensible conversation .

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, I would like to open by addressing the speech by the noble Baroness, Lady Stowell. To summarise what she said, one can have a strategy only when one has people’s trust, and this Bill is about stopping the boats; I think that was the gist of her argument. My argument, and the other argument I have heard in this debate, is that even if this Bill achieves its end completely, the most reverend Primate’s amendment would still be appropriate because we still need a strategy as the situation develops over the next 10 years. I think that addresses the point the noble Baroness made.

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Moved by
168AB: Clause 67, page 68, line 6, leave out “(3) and” and insert “(2A) to”
Lord German Portrait Lord German (LD)
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My Lords, in the name of my noble friend Lord Paddick, I shall say a few words about Amendment 168BA and the consequential amendment that is at the rear end of this debate. Essentially, these amendments represent a protection for the Government. The purpose of the Bill is to use removal as a deterrent to people arriving on irregular routes. Without a place to remove people who claim asylum, the intended deterrent is absent, and that applies to a third country to which people can be removed. Therefore, by the Government’s logic, without a third country to remove people to, this legislation will, for the greater part, not work.

Once the Government’s plans come into force, they will be unable to process asylum claims. All that they will be doing is detaining people. After 28 days, once the individual is able to apply for immigration bail, they will remain in limbo until such time as there is a removal agreement. That may well all be solved by the Supreme Court making its judgment, but in the meantime—and I hope that somebody who has a legal background can explain roughly how long the Supreme Court will take in dealing with the matter—if we have more and more people coming here, all of whom will first be detained and then will be in some form of detention, that will spell disaster.

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Lord German Portrait Lord German (LD)
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I beg leave to withdraw the amendment.

Amendment 168AB withdrawn.

Illegal Migration Bill Debate

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Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, this is a bad Bill. We have done our best in your Lordships’ House to improve it. However, it is quite obvious that the Government, when we talk about kindness, compassion and humanity, seem to think that these are weaknesses. I argue that they are actually strengths. It is part of our British psyche to give that sort of kindness, so the Bill does not work for anybody in Britain. It certainly will not work for the Government to stop the boats. I just wish the Government had more common sense.

Lord German Portrait Lord German (LD)
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My Lords, while echoing all the sentiments that have been expressed, I will address the remarks of the Minister in introducing new material at the very beginning of his statement about the legislative consent Motion of the Welsh Parliament, the Senedd. The impression given by the Minister was that these were matters reserved to the British Government, and that therefore any legislative consent Motion from the Welsh Senedd was not appropriate and certainly not allowed. But the matter on which it passed the legislative consent Motion was a very narrow issue indeed about how children in Wales are to be looked after, and the responsibilities of local authorities towards those children, no matter where those children came from.

The piece of legislation that the Government are now putting a red line through is an Act of the Welsh Parliament that has been signed by the Head of State. It is one of which the Welsh people are truly proud, because it projects certain obligations on local authorities to commit to those children who find themselves in Wales, no matter where they come from. I wonder whether the Minister, in reminding us why the Government have overturned that piece of legislation, knows that they are actually overturning a piece of primary legislation that was passed five years ago and has universal support from all parties in Wales. It is that narrow point that the Government seek to overturn, not the Bill as a whole, even though the Welsh Parliament has of course expressed widespread concerns about the Bill as a whole. But that is what the legislative consent Motion was denied for: the overriding of a piece of primary legislation in that respect.

Illegal Migration Bill Debate

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Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB)
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My Lords, I hope I will be allowed a moment when referring to my Motion B1 and Amendment 22R on page 5 of the Marshalled List to pay a very short tribute to the staff of the Public Bill Office. I was treated very kindly by a very tolerant member of staff there when I was being completely dysfunctional late last night and early this morning. They have been put under enormous pressure, and I think we should appreciate that. It may have felt to them like bullying, I am afraid.

I do not know why we have been forced to consider these amendments today, or indeed before the Summer Recess. The very earliest this Bill could ever be used would be after the Supreme Court decision in October, or whenever that is given; we do not know the exact date. Indeed, that may not be the end of the litigation in any event. I do not understand why we were not left to consider this in the sittings in September. I hope we will not be put in this position again.

I now turn to my Motion. This is where I express my genuine gratitude to the Government—to the Minister and others, including the Chief Whip—because they have made, in my view, a correct and noble concession to the objections that this House voted for in an amendment I moved on retrospectivity, pointing out as I did at the time that retrospectivity, though not a “never”, is frowned on in our law.

My Motion on page 5 of the Marshalled List—which I will not test the opinion of the House on tonight—mitigates the rigour of the exception that has been created in the Government’s amendments. They say they have abandoned retrospectivity, to put it crudely, but they have retained a regulatory power to abandon retrospectivity. I am not going to force the issue tonight, but I ask the Government to reflect on the constitutionality of that approach, because it makes me feel decidedly uncomfortable. I do not want to dilute my thanks for the acceptance in principle of what I moved a few days ago.

Lord German Portrait Lord German (LD)
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My Lords, I draw attention to my interests as laid out in the register. These Benches are supportive of the discomfiture, which the noble Lord, Lord Carlile of Berriew, just referred to, to find that eventual clarification. We also support Motion G1 in this group.

My Motion F1 would mean that if an individual has been made inadmissible under this legislation and has not been removed to a safe country after six months, their claim will be processed within the UK system. The Ministers in both Chambers, in response to my amendment at an earlier stage, said—it has been repeated here—that people might game the system or that it would incentivise people to make spurious claims so as to extend their time in the United Kingdom in order to reach the magic six months.

In response to this concern, the current form of Motion F1 would pause the calculation of six months during any suspensive claim as set out in the Bill. It is also important to be mindful that the Bill in itself is claimed by Ministers to prevent people from making last-minute legal challenges to stop removals. My Motion totally disincentivises people from making spurious claims.

The Minister in the other place said that my earlier amendment would undermine the Bill. It does not. It would simply provide a backstop that protects the taxpayers of this country from indefinitely supporting people existing in the UK in limbo.

The Government’s own impact assessment on the Bill assumes that people will be detained for 40 days before removal. In this Chamber, we have heard constantly from the Minister that it will be not months but weeks or days when people are removed. On that basis, the ability to make a claim after six months should not be a problem, because it is totally in line with the Government’s expectations of their very own Bill.

Without this amendment, the Home Secretary is setting herself up for an extremely challenging time. There will be no way of resolving the foreseeable challenge of not having anywhere to remove people who arrive in the United Kingdom on irregular routes. Whether that is resolved in the future, the Government express the desire that they will be able to make this happen. If you believe, in the Government’s own words, that the Bill can be “workable”, then it is entirely financially prudent for us in this Chamber to try and insist that, in the current climate, the Government should be prudent with their spending of the public purse in using taxpayers’ money to support people indefinitely and without a returns agreement—because six months will have passed.

In addition to the financial considerations, it does not seem to me to be particularly in line with a Conservative mindset to enforce that people remain in the United Kingdom without being able to contribute, use their skills or participate in society. If these people cannot be removed after a reasonable amount of time, their claim should be processed, so that they either get on with their lives in the United Kingdom or be removed to their country of origin.

Lord Etherton Portrait Lord Etherton (CB)
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My Lords, I draw attention to Motion G and my Amendment 23B in lieu. I thank the noble Lord, Lord Cashman, in particular, who has been a stalwart supporter of me in relation to this clause from the very beginning.

The clause identifies countries currently specified in Schedule 1 which, the evidence and the law show—by virtue of decisions made by UK courts—are not safe places. I explained to the House on Report what the evidence briefly was in relation to each of them. The House and I have not received any refutation of the point that I made—that all these countries are unsafe places for LGBT people. The only answer that is given by the Government and repeated by the Minister is that this will all come out in the wash when a removal notice is served, and a serious harm suspensive claim can be made.

I am afraid that simply is not good enough. The Bill contains a schedule: Schedule 1. Schedule 1 identifies itself as listing places to which persons can be removed. Schedule 1 is related back to the provisions of Clauses 5 and 4, which provide that people can be moved only to those countries in Schedule 1.

If the approach of the Minister were correct, we would not have a schedule at all. But we have a schedule, and it rightly makes a distinction between those countries which are safe—so it says—and those which are not. There is also a division between those which are safe for women and those which are not. I have put forward the amendment for another group of disadvantaged people, who, as the Minister referred to, are long recognised in our own law: LGBT people.

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Moved by
Lord German Portrait Lord German
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At end insert “, and do propose Amendment 9B in lieu—

9B: Clause 4, page 6, line 13, leave out “cannot be considered under the immigration rules” and insert “must be considered under the immigration rules if the person who made the claim has not been removed from the United Kingdom within six months of the day the claim is deemed inadmissible, subject to subsection (3B).
(3A) From the point at which the provisions of subsection (3) apply to a person, no other provision made by or by virtue of this Act applies to that person.
(3B) For the purpose of calculating the period of six months under subsection (3), any period during which the person cannot be removed by virtue of section 46 (suspensive claims: duty to remove) is to be disregarded.””
Lord German Portrait Lord German (LD)
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I beg to move Motion F1 and wish to test the opinion of the House.

Illegal Migration Bill Debate

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Lord German Excerpts
Throughout the Bill’s passage, we have debated the debilitating effect and lifelong impact of detention on children, and I respectfully disagree with the Government that the high number of asylum arrivals requires such damaging impacts down the generations. Indeed, if the Government’s assurances on using detention powers for the shortest possible periods are to be believed, as we have heard earlier this evening, they will not fear having their powers subject to a degree of limitation when it comes to children—all children. I will want to press this Chamber to a resolution this evening.
Lord German Portrait Lord German (LD)
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My Lords, we on these Benches support all three amendments, Amendments B1, D1 and E1. The amendment of the noble Lord, Lord Kerr, on admissibility is very sensible, because it is in line with the Government’s expectations of the Bill. It is not a wrecking amendment. The Government say that the deterrent impact of the Bill will be sufficient to ensure that everyone being removed will be processed within six months—in fact, the Minister already said this evening that it will be days or weeks, not months. The amendment of the noble Lord, Lord Kerr, does not alter any of the intended deterrents, and any time spent on an appeal pauses the six months. So this amendment protects the indefinite commitment of taxpayers’ money to support people kept in limbo, and it must be the expectation that in their rejection of it, the Government expect people to be detained for six months or more—otherwise they would not be objecting to it.

The amendment of the noble and learned Baroness, Lady Butler-Sloss, is very worthy of support. This Government have taken a regressive step without justification and without evidence of it causing a pull factor—even from recent history since the current limits were introduced in 2014. Children should be treated as children first, not by their immigration status. We know enough about detention of children to know that it is not in the child’s best interest, whether they are on their own or with their family. That is why we also support the amendment from the right reverend Prelate the Bishop of Bristol on accompanied children. If we ought to have them, we need proper time limits in the Bill, not permission to make a bail application. This part of the Bill will be a stain on our reputation, and it is not the will of the British people—although people will say it is—to lock up children. We can control immigration without inflicting suffering on children.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, the noble and learned Lord, Lord Etherton, has asked me to give a short commentary. He did not put an amendment down, but he wanted me to say, first, that the Government have never denied that the specified countries in the Bill are unsafe for LGBT people, and that includes Rwanda. He also asked me to say that it is reasonable that there should be no removals to Rwanda so long as there is litigation in process, and that prohibition on removal in the case of countries facing a proposal of proceedings under Article 7 is right in principle and mirrors the existing provisions regarding return under Section 80A. He wanted me to make those points even though he has chosen not to table a further amendment.

We have heard all the movers of amendments give a full explanation of their amendments. The noble Lord, Lord Kerr, spoke about common humanity—I of course agree with that—and about trying to support people who will potentially be kept in limbo through this Bill. The noble and learned Baroness, Lady Butler-Sloss, gave four examples of why she will be moving her amendment. The one that resonated most with me was her second point about needing to get an emergency protection order for a medical intervention for a child. As a family magistrate, I occasionally do those orders. I find it really quite shocking that, even for relatively routine orders, the Home Office would have to go to court to get a medical intervention. She made other points as well but that is the one that particularly resonated with me.

The right reverend Prelate the Bishop of Bristol introduced her amendment about a time limit of 120 hours, or up to seven days when authorised by a Minister; we will support the right reverend Prelate should she choose to move to a vote.