Border Security, Asylum and Immigration Bill

Lord Sandhurst Excerpts

Report stage
Monday 3rd November 2025 Lords Chamber

[Lord German (LD)]

My Lords, I will make just a brief intervention from us on this matter, which was raised in Committee. I am grateful to the Minister for telling me what reasons he had for not taking out Section 12 of the Illegal Migration Act. It raises some further questions, which I guess the Minister might have been expecting. Essentially, the noble Baroness’s amendments aim collectively to inject greater protection of civil liberties and to ensure proportionality in the use of detention powers, and they demand clarity regarding the mental element required for the new immigration offences in the Bill.

In his letter to me, the Minister said of Section 12 that

“policies to differentiate in line with the provision can be resumed if required”.

He said that they

“are not currently in use”,

and they have not been in use since this Government took office. He said:

“This Government is prioritising steps to restore order to the asylum system”,


et cetera, as one might expect. But, he continued:

“While the Government reviews the approach, it would not be appropriate to remove these provisions from the statute book”.


Can the Minister tell me what review of what approach will determine whether this provision should be removed, and whether, in the immediate future, there is any intention to recommence Section 12 of the Illegal Migration Act?

In conclusion, having some clarity on this matter would be useful. The Law Society, as noble Lords might expect, says that the retention of Section 12, by removing the

“court’s ability to decide for itself whether the detention of a person for the purposes of removal is for a reasonable period”,

risks increasing unlawful and prolonged detention. There is currently a legal aspect to retention; I know that it is not being used, but we need to ensure that the fallback described by the Law Society is in place. I look forward to the Minister’s response to those questions.

[Lord Sandhurst (Con)]

My Lords, I begin by making plain our opposition to the amendments in this group. In Committee, we spent much time rehashing the arguments over the Illegal Migration Act 2023. We have made our position abundantly plain. It is obvious that there exists a gulf in opinion regarding that Act between many of us in this House. This is Report, so now is not the time for me to repeat those arguments. As noble Lords know, we strongly oppose the repeal of the bulk of the Illegal Migration Act, but I should say that it is at least some solace to us that the Government have deemed it right to retain Section 12. Since we support the Government’s intent to keep that section on the statute book, we oppose Amendments 28, 30 and 32, notwithstanding the elegant arguments of the noble Baroness, Lady Jones of Moulsecoomb.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her amendments and how she presented them. She said that she was trying to be helpful and supportive on these matters, and I am grateful for that.

Amendment 28 seeks to add Section 12 of the Illegal Migration Act to the list of sections of that Act being repealed under this Bill. Section 12 of the Illegal Migration Act establishes that it is for the Home Secretary, rather than the courts, to determine what is a reasonable period to detain an individual for a specific statutory purpose, such as for removal. The noble Lord, Lord Harper, raised a point that I would wish to set out: the Home Secretary is a Member of the House of Commons, and I answer for the Home Secretary in this House on matters to do with the Home Office. Therefore, we are accountable to Parliament for the decisions that are taken.

The important point that I want to put to the noble Baroness is that, even with Section 12 in force, the courts will continue to have significant oversight over detention. That goes to the point that the noble Lord, Lord German, made today and my noble friend Lady Lister made in Committee. Individuals detained under immigration powers may apply at any time to the First-tier Tribunal Immigration and Asylum Chamber for immigration bail, where a judge will assess whether their continued detention is justified. If they consider that it is not, they will grant immigration bail. Therefore, the Home Secretary will have more discretion, but there will still be judicial oversight of immigration bail.

Additionally, as I said in Committee, individuals can challenge the legality of their detention through a judicial review in the High Court, where the court will consider whether the Secretary of State made a reasonable decision in detaining a person or in continuing their detention. If the court considers that the Secretary of State did not act reasonably, it will ensure that that person has access to an appropriate remedy, including ordering a release if appropriate. Again, there will be greater discretion for the Home Secretary, but there will also be strong judicial oversight and parliamentary oversight of this matter.

Section 12 simply makes it clear that the Secretary of State’s judgment of what is a “reasonable” period of detention should have more weight. That is logical, since the Home Office is in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances. That could include safeguarding the public, safeguarding an individual or the issues of cost that have been mentioned. Ultimately, the Home Secretary will determine what is reasonable based on the information before her. The noble Lord, Lord Sandhurst, from the Opposition Front Bench, added his voice to those general concerns.

Section 12 also provides for detention to continue for a reasonable period while arrangements are made for a person’s release. That is particularly important when, for example, we need foreign national offenders to be accommodated in a specific location in accordance with their licence conditions, or to make safeguarding referrals for vulnerable people. Previous case law established the principle of a grace period to enable a person’s release, and Section 12 now provides legal clarity by placing that on a legislative footing.

Section 12 applies to all immigration detention powers. The noble Baroness’s Amendment 30, which is consequential to Amendment 28, seeks to ensure that the provisions that apply to Section 12 are repealed. Although I know that the noble Baroness is trying to be helpful on this matter, for the reasons I have just set out, it is right that Section 12 is retained for all immigration detention powers, to give the Secretary of State an additional discretion. None the less, that will be subject to parliamentary oversight and judicial oversight.

The noble Baroness’s Amendment 32 seeks to remove the retrospective effect of Clause 41. As Members have discussed, Clause 41 clarifies the existing statutory powers of detention where the Home Office is considering whether deportation is conducive to the public good and consequential amendments to existing powers to take biometrics and searches upon being detained for this purpose.

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[Lord German (LD)]

My Lords, I support my noble friend and the three amendments that she has in her name, Amendments 29, 69 and 79B.

Amendment 29 seeks to repeal Section 29 of Illegal Migration Act and to remove individuals who have sought to use modern slavery protections in “bad faith”. We have heard clear warnings that Section 29 represents a dangerous expansion of the public order disqualifications originally introduced by the Nationality and Borders Act 2022. Crucially, Section 29 transforms the disqualification of potential and confirmed victims of trafficking and modern slavery from a discretionary power to a mandatory duty—unless compelling circumstances exist. This mandatory disqualification extends to non-British nationals sentenced to imprisonment of any length for a crime of any seriousness. This blanket approach fails to consider that victims of modern slavery are frequently coerced by their traffickers into committing criminal offences. By lowering the threshold so severely and making disqualification mandatory, there is an increased risk that vulnerable survivors will be denied protection, denied a recovery period and ultimately be removed from the United Kingdom, potentially exposing them to re-trafficking or retribution. The International Organization for Migration has explicitly called for the repeal of this section.

The Government argued in Committee that Section 29 needs to be retained for its potential “operational benefit” and to allow flexibility in reforming the national referral mechanism. While reviewing the national referral mechanism is vital, retaining a measure that institutionalises the potential criminalisation of victims is fundamentally unjust and unnecessary. Section 29 seriously undermines our commitment to tackling modern slavery. We must uphold our duty to protect the exploited.

Amendment 69 would introduce a new clause to strengthen protection for victims of slavery or human trafficking by placing a duty on the Secretary of State to amend the Modern Slavery Act 2015. This amendment seeks to establish crucial firewall arrangements. Its intention is to safeguard vulnerable individuals by preventing public authorities, when determining whether a person is a victim of slavery or human trafficking, sharing information with immigration authorities that might result in deportation or prosecution for an immigration offence. That firewall is critical for many people to report on what is happening to them.

We must ensure that these victims feel safe seeking help and engaging with the national referral mechanism process. Without a robust firewall, a victim coerced into illegal entry might fear that disclosing their history of exploitation to obtain assistance will simultaneously expose them to immediate prosecution and removal. It is chicken and egg, egg and chicken. This is an unacceptable dilemma for them to face.

Amendment 69 seeks to weaken the grip of traffickers and enable victims to come forward and seek justice. By implementing this firewall, we align safeguarding duties with our enforcement aims, preventing information provided for protection purposes being weaponised against the victim by the state.

Amendment 79B seeks to address a fundamental vulnerability in our system: the inherent conflict faced by a victim of labour abuse who is simultaneously subject to immigration controls. This secure reporting clause is designed to prevent information disclosed by a victim or a witness of labour abuse being used for a purpose within Section 40(1) of the UK Borders Act 2007, which of course is the gateway for immigration and nationality purposes.

This firewall is desperately needed because exploitative employers rely on the fear of their workers that authorities will prioritise issues around their immigration status over the abuse that they have faced. Unscrupulous employers use threats about illegality, detention and removal as a method of control and coercion. This turns the state’s immigration framework into a tool of the exploiter—Amendment 79B would combat this.

These Benches also oppose Amendments 29A and 31A, which are a reversal of the modern slavery safeguards that appeared in the Illegal Migration Act. Sections 22 to 28 of the Illegal Migration Act removed protections for victims of modern slavery who had arrived in the country without a valid visa. The current Bill includes the repeal of those sections, a step that is widely welcomed, because these positions could have been catastrophic for survivors. Therefore, we support the Government in proceeding with these amendments and in removing those sections from the Illegal Migration Act. Section 29, as proposed here, is dangerous because it expands the scope of public order disqualifications and makes them mandatory. This measure mandates disqualification for potential victims of modern slavery unless there are compelling circumstances, even if they have been convicted of an offence of any length.

In conclusion, we support the Government in their intention of removing those sections in the Illegal Migration Act and press them on a way in which the firewall of which we have spoken earlier can be protected.

[Lord Sandhurst (Con)]

My Lords, efforts to tackle modern slavery are indeed a noble and important cause—we all agree on that—but, as my noble friend Lord Harper said in Committee, there is a balance to be struck.

My noble friend Lady Maclean of Redditch has made many of the points I would have made, and I will not repeat those arguments, particularly on Report. Suffice to say, however, that protections which were initially intended to protect victims of modern slavery have now become loopholes that are being exploited by those with no right to be here, and whose claims are too often totally spurious. It does our country no good. It does not build public faith in the immigration and asylum systems when illegal migrants abuse modern slavery protections to circumvent their own legitimate deportation.

To that end, my noble friend Lady Maclean is right to highlight that the Government have a number of legislative tools at their disposal. It is unfortunate that they are seeking to repeal those powers, and even more unfortunate that the Liberal Democrats wish to remove those others that the Government intend to retain.

We take particular issue with Amendment 69. When it comes to tackling the border crisis, surely there cannot ever be enough information sharing. The noble Baroness’s amendment would prohibit public authorities mentioned in it sharing information regarding a suspected victim of modern slavery. We fear this may only encourage more people to make spurious claims in a last-ditch attempt to halt removal from the United Kingdom.

[Lord Hanson of Flint (Lab)]

I am grateful for this series of amendments. Having served as the lead shadow spokesperson for the Labour Party in the other place on the Modern Slavery Bill in 2015, I can say that we continue to be steadfast in government in our commitment to tackling modern slavery in all its forms and to supporting survivors.

Amendment 29, from the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, seeks to amend the public order disqualification to allow more foreign national offenders to be considered on a case-by-case basis for disqualification from modern slavery protections on public order grounds. I argue that Section 29 needs to be retained in its current form so that it can be considered for future commencement alongside potentially wider reforms as part of the Government’s commitment to work with partners on the long-term reform of the national referral mechanism. I will come back to that point when I discuss Amendment 69.

Amendments 29A and 31A, from the noble Baroness, Lady Maclean of Redditch, seek to retain further modern slavery sections from the Illegal Migration Act and for those sections to be commenced on the day this Act is passed. For the reasons that the noble Lord, Lord German, has mentioned, the Government have been clear that we are repealing those sections because we have committed to ending the migration and economic partnership with Rwanda, which we did not feel served a useful purpose. The Government are going to retain only the measures in the Illegal Migration Act that are assessed to provide operational benefit in delivering long-term, credible policies to restore order to the immigration and asylum system. I am afraid that Amendments 29A and 31A, for the reasons that the noble Lord, Lord German, has mentioned, are not ones that we can accept today. However, I am grateful to the noble Baroness, Lady Maclean, for her contribution and for raising those issues.

Amendment 69, from the noble Baroness, Lady Hamwee, and the noble Lord, Lord German, seeks to prevent a public authority, when determining whether a person is a victim of slavery or human trafficking, sharing information with immigration authorities and other public authorities that might result in deportation or prosecution for an immigration offence. The noble Lord, Lord Sandhurst, from His Majesty’s Opposition’s Front Bench, made valid points on the amendment by the noble Baroness, Lady Hamwee, and the noble Lord, Lord German.

On restricting information shared in respect of modern slavery identification, the Modern Slavery Act 2015 provides certain public bodies in England and Wales with the statutory duty to notify the Secretary of State when there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking. This information provides that notification enables the UK to fulfil its obligations to identify and support victims. The duty to notify is discharged for adults by making a referral into the national referral mechanism for consenting adults, or by completing an anonymous entry on digital systems where the adult does not consent. The information provided is used to build a better picture of modern slavery in England and Wales and to help improve law enforcement responses. It does not include—this is the key point—information that identifies the person, unless the person consents to the inclusion of that information. It should be noted that child victims do not need to consent to enter the national referral mechanism. As such, the national referral mechanism referral discharges the duty to notify.

This is another key point. If a person is identified as a potential victim of modern slavery or trafficking, they are currently eligible for a recovery period during which they are protected from removal from the UK if they are a foreign national and are eligible for support, unless disqualified on grounds of public order or bad faith. Imposing restrictions on the information provided to identify and support victims of modern slavery would be to the detriment of our obligations to those vulnerable people and, I suggest, to our duty to protect UK borders and protect the public.

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[Lord German (LD)]

My Lords, at the beginning of his remarks, the noble Lord, Lord Bach, said that this was Pro Bono Week. I must say to the noble Lord, Lord Carlile, that he has fulfilled his job for this House. I am sure that the Minister will be very grateful for the advice that he has given pro bono and I hope that, if he asks for more, the noble Lord will be willing to give it.

I have learned two things from what has been said so far in this debate. First, we have a crisis of legal aid. No one who has spoken has said that it is all fine and dandy. Secondly, what is available is not working well.

On the first of those, a survey by Bail for Immigration Detainees found that only 42% of people held in IRCs had a lawyer in their immigration case in 2025. That is a steep decline, down from 75% in 2012—some years ago. For those detained in prison, 71% of respondents had not received legal advice under the scheme. The second concern raised is of course about what is provided; that is the 30 minutes, often considered to be of doubtful quality and insufficient. As professionals have argued, immigration law is highly complex: those of us who are working on the Bill will understand that this is a very highly complex area of work. It is unrealistic to believe that a detained person, who may be traumatised, speak little English or have just arrived, can navigate this complex labyrinth of law on their own and without professional assistance.

The amendment is necessary not merely on humanitarian grounds but to protect the integrity of the rule of law itself—first, access to justice, and secondly, practical effectiveness. I do not want to repeat the points about cost, which are obviously going to come up in the response, but it would save taxpayers’ money: invest to save early. That is quite clear from everything that has been said so far. We must be clear also that a failure to provide legal aid can amount to a breach of fundamental rights, particularly under Article 6 of the European convention, so this amendment offers a practical and necessary solution to a systemic failure. It mirrors existing successful arrangements, such as the immigration police station advice scheme, which is used when detained persons are found to have no criminal element in their case. It would simply ensure that an immigration lawyer is allocated to an individual upon entering detention, providing a necessary check against unlawful incarceration and ensuring fair process.

I end with a quote that was given by one of the organisations working in this field:

“Ensuring prompt legal counsel for detained persons is not merely a gesture of goodwill; it is the necessary foundation for a fair judicial process. A system that incarcerates first and allows access to justice later is like starting a race 48 hours behind the starting gun—the individual is severely disadvantaged before they even begin to fight for their rights”.

[Lord Sandhurst (Con)]

My Lords, in Committee we had a very detailed and well-informed discussion of this amendment in the existing framework of legal aid in the asylum and immigration system—with a House full of eminent lawyers, this was always bound to be the case. On our side, of course we welcome efficiency, and we have looked hard at this amendment, but we are not persuaded by the arguments of the noble Lord, Lord Bach, and other noble Lords that the proposals they advance will have the beneficial effect that they seek.

Amendment 33 would ensure that any person detained under a relevant detention power would have access to a raft of legal aid within 48 hours, but to move from the current situation, where a person is given a 30-minute window for free legal advice, to one where there is a 48-hour window in which legal aid can be given, would come with entirely unknown costs. The current system already diverts scarce resources away from those in genuine need: every pound spent on repeat litigation, in particular, is a pound not spent on border security, faster processing or refugee support. We are unable to support Amendment 33.

[Lord Hanson of Flint (Lab)]

I am grateful to my noble friend Lord Bach for his amendment. I am grateful for the opportunity I have had, limited though it is, to speak to him outside the Chamber about the motivation for the amendment, which remains unchanged since Committee and would seek to impose a duty to make civil legal aid available to detained persons within 48 hours of them being detained. I note the support of the noble Baronesses, Lady Ludford and Lady Prashar, the noble Lord, Lord Carlile of Berriew, and my noble friend Lady Lister for my noble friend Lord Bach. I cannot go as far, dare I say it, as the noble Lord, Lord Sandhurst, in his denunciation of my noble friend’s amendment, because I feel it is a point well made, but I assure him and other noble Lords who have spoken that access for justice for those in immigration detention is a priority shared by the Government.

I agree with those who spoke in previous debates on this subject, and indeed today, that provision of legal aid for those seeking protection is important in maintaining an effective asylum system, reducing costs and reducing the asylum backlog. Indeed, it will help to end hotel use and increase returns, because speeding up the asylum process depends on good legal aid, but also depends on the measures that the Government are taking separately, putting extra investment into that area to speed up asylum claims. That is why, as I noted in the previous debate, we have legal aid available for asylum cases and immigration advice for victims of domestic abuse, modern slavery, separated migrant children and those challenging immigration decisions.

As I noted in the previous debate, to additionally support detained individuals, all those in immigration removal centres can access the 30 minutes of free legal advice that has been described today, through the detained duty advice scheme, DDAS. This triage appointment supports people to meet a legal provider who may provide further legal advice, subject to the matter being within the scope of legal aid and the detained person’s eligibility for that legal aid.

Concerns were raised in the previous debate about the take-up of this advice. I can assure noble Lords that all detained individuals arriving at an immigration removal centre are advised of their right to legal representation and how they can obtain such representation. That is done within 24 hours of their arrival as part of their induction. All individuals arriving at an immigration removal centre in England are booked an appointment with a legal representative under the scheme that I have just described, unless they decline to have that appointment. Their appointment will take place as soon as possible after they attend the immigration removal centre, which could be as early as the next working day, but obviously, as noble Lords have mentioned, it may on occasion be longer. We have produced leaflets in 26 languages on the operation of the scheme, and I therefore suggest gently to my noble friend that Amendment 33 would have no material effect on access to justice, as those in the system are entitled to an initial appointment under that long-standing scheme.

In Committee, the noble Viscount, Lord Goschen, and I questioned the potential cost of this. I have had the opportunity to look into the costings, and I just clarify that the Government’s position on this is not now related to cost. This has been assessed, and we have looked at it in detail. Were the proposed amendment to be passed, the overall spend on legal aid would be unaffected, so the cost element is not one of the things that we need to look at now, because there is a high likelihood that detained individuals will seek legal aid-funded support regardless of a time limit, and their eligibility for legal aid would be unchanged were a time limit to be introduced. The concern and discussion around the amendment is based on the consideration that existing arrangements already enable detained individuals to seek an initial appointment, and therefore the amendment is unnecessary.

I reiterate to all Members the vital role that legal aid plays, both in mainstreaming and maintaining an effective immigration and asylum system, and ensuring that the most vulnerable, such as victims of modern slavery and human trafficking, can navigate the complex legal system. As my noble friend mentioned and knows, we have taken important action to support the provision of immigration and asylum legal aid. The Government have confirmed uplifts to immigration and asylum legal aid fees, which is a significant investment and the first since 1996. The Government are also funding the costs of accreditation for immigration and asylum caseworkers, providing £1.4 million in 2024 and a further £1.7 million this year.

I want to continue to work with my noble friend Lord Bach and with the noble Lord, Lord Carlile of Berriew, to look at how we can improve the efficiency of this system still further. I am happy to meet them to look at the suggestions that were made today. Those made by the noble Lord, Lord Carlile, are hot off the press this evening and worthy of examination. I am happy to reflect on those and to work with my noble friend Lord Bach. I suggest to him that the amendment does not add to what we currently offer and therefore I ask him to withdraw it, with the assurance that we will look at the issues that both he and other noble Lords have raised in this debate.