Illegal Migration Bill

Lord Kerr of Kinlochard Excerpts

Consideration of Commons amendments
Monday 17th July 2023 Lords Chamber

Moved by

[Lord Kerr of Kinlochard]

At end insert “, and do propose Amendment 9D in lieu—

9D: 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 subsections (3B) and (3C).
(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.(3C) Subsection (3) does not apply if the reason that the person has not been removed from the United Kingdom can be attributed to the actions of that person.””

[Lord Kerr of Kinlochard (CB)]

My Lords, when the House last debated this issue, the noble Lord, Lord German, stressed the risk to the public purse as thousands are locked up while the search goes on for further Rwandas to send them to. I will not repeat his arguments. The House found them convincing and supported his Motion by a majority of 61; nor need I remind the House that neither my Motion nor the Motion tabled by the noble Lord, Lord German, asks that those locked up for over six months be granted asylum. We ask simply that their cases be heard, as the refugee convention requires. Nothing in the Motion pre-judges the asylum adjudication procedure. It simply rules out the possibility—maybe the probability—of limbo, of extended inadmissibility gagged and incarcerated behind barbed wire.

I will make only three points, two new and one sadly familiar. First, the Minister, in arguing against the Motion moved by the noble Lord, Lord German, advanced only one argument—which he made again tonight. He said that it would simply encourage people to game the system, drawing things out to reach the six-month cut-off date. I suspect that the threat of being sent to Rwanda might be sufficient reason to seek a delay. However, in any case, the Minister’s point is met in the new version of the amendment. With all due respect to him, the change is substantive. The final subsection, proposed new subsection (3C), is new and means that nothing that a detainee does can advance the date on which the Government would have to countenance and begin to consider his application for asylum. Gaming the system would not be possible. If the Government’s concern was real, their objection is really met.

Secondly, the reason that the other place gave tonight for rejecting the amendment tabled by the noble Lord, Lord German, and so many other amendments, was that it is contrary to the purpose of the Bill to prevent and deter unlawful migration. However, willing the end does not and cannot mean willing all and every possible means. Capital punishment might be an effective deterrent, as might tarring and feathering or hanging, drawing and quartering. Willing the end does not absolve Parliament from discriminating among possible means, distinguishing the acceptable from the unacceptable. Sine die incarceration, case unheard, surely falls on the wrong side of the line.

My third and final point is that the underlying issue here is simple and sadly familiar. Our debate has not been just about conventions and commitments. It has been about people, about common humanity. It is about whether the House and the country think that locking people up sine die is a fair and reasonable way to treat those fleeing oppression, famine and war—locking them up and denying them any chance to explain why they seek sanctuary here and what it is that they fear back home. Doing that was in no party’s election manifesto. The House has so far taken the view that it is not what the country should do. I hope that we shall maintain that view. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I shall speak to Motion D1. I remind the House that this issue was raised at an earlier stage, either on Report or in ping-pong, by a Member of the Conservative Benches in this House. I also remind the House that how the law will be applied is not what the Minister says; it is what the law actually states. We are hearing from the Minister that in relation to unaccompanied children it will not be used very much, but that is absolutely not good enough. If the law allows unaccompanied children to be detained for well over 28 days—that is, unless the child gets to the tribunal, and how will the child know that he or she is to apply to the tribunal?—then under this law they could remain there indefinitely.

I have four points to make. First, there is a risk to the welfare of the child of this indefinite detention instead of the present 24-hour maximum—a very considerable increase. The Government talk about child-appropriate detention. I just wonder what that really means.

I am afraid that I have banged on to this House again and again about the Children Acts, but I am particularly concerned about the impact of the Children Acts on Home Office detention if the detention goes beyond just two or three days, because there is no parental responsibility. What happens, as a Conservative Peer said much earlier, if a child suffers a serious medical emergency? There is no one, particularly not in the Home Office, with the right to sign the consent form for a child. They would have to go to the court to get an emergency protection order for the child to be able to receive proper medical attention. It would be quite a good idea if the Home Office remembered that. I said it to it earlier, and so did the Conservative Peer, but it does not seem to have put that in its mind.

Secondly, I worry about the Department for Education. To what extent does it know the implications of the Bill? I get the impression that the members of the DfE in this House do not really have any knowledge of it.

Thirdly, there may be disputes between local authorities and the Home Office over a child being removed from local authority care under the Children Acts and taken into detention. What happens if there is a care order where a judge has ordered that a child should be living in a particular place under the care of a local authority? Is the Home Office really going to move the child where there has been a judicial order over where the child lives?

Fourthly, although I know this is not necessarily popular with many people, Article 5 of the human rights convention talks about detention. In due course I would like to test the opinion of the House.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

My Lords, His Majesty’s Government cannot accept any of the proposed amendments. I shall deal first with the matter raised by the noble Lord, Lord Kerr, in relation to his Motion B1 and his amendment concerning a proposed subsection (3C) where subsection (3) would not apply

“if the reason that the person has not been removed from the United Kingdom can be attributed to the actions of that person”.

I suggest that that phrase would generate a tidal wave of litigation were this amendment to be accepted. It would make the statute wholly uncertain and, I suggest, open a very large loophole in the scheme of the Bill.

I turn to the points raised by the noble and learned Baroness, Lady Butler-Sloss, and the right reverend Prelate the Bishop of Bristol in relation to the provisions concerning the responsibility in respect of children. I can reassure both the noble and learned Baroness and the right reverend Prelate that we are working closely with DfE on the implementation of this Bill, but I am afraid that I cannot accept the other propositions that they advanced.

Finally, in response to the noble Lord, Lord German, it is not our intention to “lock up children”, as he put it, under this Bill. It is our intention to have the power to do so should that be necessary in very rare circumstances. For those reasons, I invite the House to reject these amendments in the event that they are not withdrawn.

[Lord Kerr of Kinlochard (CB)]

The Minister said at the outset that Motion B1 contained no substantive change. He has now asserted that it contains a change that would be unworkable, wrecking and mammoth. He ought to make up his mind; but I hope the House’s mind is made up that we are not prepared to see sine die incarceration. I ask to test the opinion of the House.