Nationality and Borders Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

Finally, at Third Reading, the noble Baroness, Lady Stowell of Beeston, for whom I have the greatest respect and no little liking, cautioned us, with some justification I felt, against a tendency to treat those opposed to this Bill, as we are, as “kind and generous” in feeling and those promoting and supporting it as uncaring and ungenerous. Indeed, I for my part would accept that, on occasion, some of us do seem to fall or succumb to the temptation of what I think we can call virtue signalling, rather than facing up to harsh realities. However—I really cannot overemphasise this—I assert that standing up for the rule of law, internationally as well as domestically, is not virtue signalling, but rather our constitutional duty. The only way to achieve this in the Bill and to even have the opportunity of testing the Bill for compliance in future is by including this clause, the subject of Motion C1. We need to stand up and be counted. I support this group as a whole, but if ever one cannot afford to lose a provision, this is it.

[Lord Kerr of Kinlochard (CB)]

My Lords, after two such learned speeches and such fireworks, I fear it falls to me to make an unlearned speech on the Motion in my name, Motion D1. Most of my arguments have just been pre-empted, of course, because the case for Motion C1 applies in full to Motion D1. I would not dare to go into the law as powerfully as the two previous speakers have done. However, it is perfectly clear that the 146 states party to the refugee convention, the courts of the United Kingdom and the UNHCR have all applied the convention in one way up to now and, if we pass this Bill, we will have decided that it should be applied in a different way. There is nothing in the refugee convention about how the individual reaches the country in which he seeks sanctuary. There is nothing in the refugee convention which provides a basis for differentiation and the creation of two classes of refugees, which Clause 11 of the Bill introduces. The only question one asks is: does the would-be asylum seeker have a well-founded fear of persecution back home? If so, under the convention, he is entitled to seek our protection and, since 1951, we have been committed to providing it. That, in layman’s terms, is what is wrong with Clause 11 of this Bill and that is why we struck it out by a large majority.

What happened then is really rather bizarre—and very similar to the description from the noble and learned Lord, Lord Brown, of the debate on Clause 9 in the House of Commons. The arguments that have just been made by two distinguished learned Members of this House, and the argument that I am making, had been advanced over several days of debate in this House. They were dismissed in three sentences in the other place. The Minister simply said, without attempting to refute anything that had been said here, that the new differentiated approach was needed to deter dangerous journeys to this country. That is not so. We all know that the way to stop tragedy in the channel is to open a safe route. We all know that if somebody from Kyiv, desperate and despairing of our creaking bureaucracy, were to turn up here without a visa it would be quite wrong to refuse her full rights to refugee protection. Her well-founded fear of persecution would be all too obvious, yet Clause 39 might criminalise her and Clause 11 would guarantee that, if she were accepted as a refugee, she could be only a class 2 refugee, subject to offshoring and all the nastiness that follows in the subsequent clauses of the Bill, and those who had helped her could face criminal charges. With respect, the Minister in the other place was wrong. Clause 11 would not deter her from coming here; it would simply penalise her for doing so. I do not believe that the country would think that right.

The same goes for those coming from Kabul. Like from Kyiv, there is no direct route, so they automatically all fall into class 2, as with those fleeing famine in Ethiopia, Eritrea and the Yemen, the great majority of those now trafficked across the Channel. Since we do not issue humanitarian visas, there is no official route open to them. The way to put the traffickers out of business is to open such a route. For us to treat with group 2 inhumanity those who the traffickers have exploited and endangered would be rather immoral and would certainly be a breach of the refugee convention. I think we got it right the first time in taking the clause out. I think the concern across the country about the way that the Government are treating the victims of Putin’s war in Ukraine shows that we are more in tune with the national mood than the Home Office.

I have been advised, however, that I should offer a compromise, hence Motion B1, which concedes to group differentiation but only if it does not rob group 2 of any of their rights under the convention. It would permit the Secretary of State to privilege group 1, if she so wished, but it would mean that we did not betray our traditions or breach international law. I hope that, given another chance, the other place may be willing to consider the legal arguments so thoroughly explored in this House and by the two preceding speakers.

--- Later in debate ---

Moved by

[Lord Kerr of Kinlochard]

At end insert “and do propose Amendment 6B to the words so restored to the Bill—

6B: Page 14, line 7, leave out subsections (5) to (8) and insert—
“(5) The Secretary of State must make provision within the Immigration Rules to—
(a) guarantee Group 1 and Group 2 refugees all of their rights under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and international law, without distinction;
(b) ensure that the classification of a refugee as a Group 1 or a Group 2 refugee does not affect the ability to maintain the unity of that person’s family.””

[Lord Kerr of Kinlochard (CB)]

I beg to move.