Nationality and Borders Bill (Third sitting)

Stuart C McDonald Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[Bambos Charalambous]

Q Do you have any figures on the cost of offshoring?

George Brandis: I do not have those figures in front of me. Under the regional processing agreements that Australia entered into with Nauru and New Guinea, the establishment of those centres, which required capital works and so on, was contributed to by Australia.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Q Thank you for giving up your time this morning, Mr Brandis. On the capacity of the offshore centres, am I right to say that it would be in the region of around 3,000 offshore places in total?

George Brandis: There were always more in Nauru than in New Guinea. Whether at the maximum point they reached as many as 3,000, I am not sure, but I would not be surprised if it was roughly that figure.

[Stuart C. McDonald]

Q Is it fair to say that there was a challenge within a few months that these places were essentially taken up pretty quickly and capacity was reached?

George Brandis: What happened, as I indicated in the timeline I outlined at the start of my evidence, is that from the introduction of the policy, beginning in September 2013, there was a period during which the effectiveness of the policy was tested by people smugglers. The numbers of people seeking to enter Australia in an irregular fashion continued and then dwindled to nothing by July 2014. Again, I do not have the figures in front of me, but I think it is generally true to say that in the early days of the policy the numbers were greater, obviously, than in subsequent years when the efficacy of the policy was established.

I wonder, Mr McDonald, whether I may make a broader point about this, because I know that this country is seeking to address a problem that has some resemblances but also important differences. The people who put these individuals, groups and families on boats were criminal gangs. People smuggling and people trafficking is a variety of organised crime. Organised crime is a business and, like every other business, it depends upon cash flow. The most important thing that Australia was able to do was drive the people smugglers out of business by depriving them of a product to sell and destroying their cash flow.

[Stuart C. McDonald]

Q We all want to see that happen, but we have different views about how we can do it and the other implications of various policies. Madeline Gleeson, for example, and others suggest that the offshoring itself achieved very little for the first year or two after it was introduced. Numbers did not decline at all; in fact, they soared for a while. What actually achieved the reduction in the number of boats arriving in Australia was the pushback policy. Would it be fair to say that it was this that delivered success, rather than the offshoring?

George Brandis: I respectfully disagree with you, Sir, and I say that having been both a member of the National Security Committee of Cabinet throughout that time and, in fact, the Attorney General who wrote the legal advice on the basis of which the policy was founded. With respect, it was not the Australian experience, and it would be artificial and wrong, to isolate one of those three elements—disruption and deterrence activities, pushbacks and offshore processing—as being more effective than the others. Rather, it is the case that they were a suite of policies that, operating together, had the effect of driving the people smugglers out of business.

[Stuart C. McDonald]

Q But when was the last time anyone was sent to an offshore processing centre? Is it not years ago?

George Brandis: Let me get that information for you—I cannot give you a date. It is certainly the case that, from the early days, the need for offshore processing significantly dwindled because of the efficacy of the policy.

[Stuart C. McDonald]

Q But is that not more because it costs billions of dollars and subjects people to what many regard to be cruel and inhuman treatment?

George Brandis: Sir, I am not going to engage in rhetoric. The fact is that most Australians took the view, as did the Government and the Opposition, that the inhumanity was in letting thousands of people drown.

[Stuart C. McDonald]

Q Nobody wants to see thousands of people drown. What we are challenging is whether or not the policy of offshoring people in particular conditions had anything to do with that, as opposed to the boat pushbacks. In relation to the pushbacks—

George Brandis: Sorry to interrupt, but if I have not made this clear already, it is absolutely not the case that one element of this policy was the effective element, and another element was not effective. The policy was a policy suite in which all three elements mattered.

[Stuart C. McDonald]

You have given your analysis of that. Obviously others disagree.

[The Chair]

Mr McDonald, this will have to be your last question.

[Stuart C. McDonald]

Q You have mentioned that a certain number of boats could not be turned back, because it would not have been safe to push them back. One of several issues with the pushback policy here is that we are talking about small dinghies, and that lives would be put at risk by attempting to push them back. There is nothing in the Australian policy that would have seen Australian vessels putting lives in danger by attempting to push back small dinghies, for example.

George Brandis: No, but because the distances involved are so different. Embarkations from the southern shores of Indonesia, across the Timor sea, were not in dinghies; they were largely in dilapidated wooden fishing boats.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Q Welcome, Your Excellency. You said that in 2014 your policies had successfully stemmed the flow of illegal migrants. In September 2015 you announced that you would take 12,000 Syrians and Iraqis into Australia. Do you feel that you would have been in a position to do that, and had the capacity to do that, had you not stemmed the flow of illegal migrants into your country?

George Brandis: I remember that decision very well; it was an NSC decision and I remember the debate as if it were yesterday. I am very proud that Australia did that. Sir, let me answer your question in this way. What we have found in Australia—this is both the view of those who have studied the issue and empirically verified by many public opinion surveys—is that there is a very direct correlation between the public’s willingness to accept a big immigration programme, with a big humanitarian and refugee element, and public confidence that the Government are in control of the borders. When the public have that confidence, they back a big immigration programme. When that confidence is eroded, they are less enthusiastic about it.

That sentiment was captured by former Prime Minister Howard in words that became almost a mantra in Australian politics of the day. He said in 2004, “We will always fulfil our humanitarian obligations, but we will decide who comes into this country and the circumstances in which they come.” Australia is a big immigration nation. To give some figures, in the year in which the Syrian refugee programme was at its most ambitious, 2016-17, Australia accepted 21,968 refugees under our various humanitarian programmes. We also accepted, under our other immigration programmes—skilled migration; family reunions—183,608 people. More than 200,000 people came that year, of whom about 10% came under humanitarian and refugee programmes.

The numbers have gone up and down a bit. That was the biggest year because of the Syrian element, which was an additional element to the normal humanitarian and refugee programme. In the most recent year, 2019-20, we accepted 140,366 people—13,171 people under our humanitarian and refugee programme. The numbers over the last several years have fluctuated between more than 13,000 and almost 22,000 per year under our humanitarian and refugee programme. In most of those years that is per capita the most generous humanitarian and refugee programme in the world, second only to Canada.

Nationality and Borders Bill (Fourth sitting)

Stuart C McDonald Excerpts

Committee stage
Thursday 23rd September 2021 Public Bill Committees

[Paul Blomfield]

Q I wondered if I could follow up on clause 48—a clause you did not mention—and the proposals in the Bill that would, effectively, increase the threshold for initial identification for a reasonable grounds decision through the national referral mechanism. Do you think the threshold is currently set too low? Are there risks associated with setting it higher in the way the Bill does?

Dame Sara Thornton: There are two schools of thought on this. Many in the sector will argue that the current, very low bar is appropriate, but I know colleagues in law enforcement think it is too high. The Bill is suggesting that we use the wording in the European convention against trafficking, or reasonable grounds to believe that an individual is a victim of modern slavery and human trafficking. On balance, I think that is appropriate.

Reasonable grounds is a pretty low threshold that people understand. It is more than a hunch or a suspicion, but it is not as much as a balance of probabilities. There needs to be some sort of objective information to base that reasonable grounds decision on. The obvious thing to say is that the guidance given to staff in the competent authority will be key, but it is not an unreasonable proposal—not least because the current legislation in Scotland and Northern Ireland uses the word “is” and, as far as I understand, the competent authority uses the same test across the United Kingdom. I do not think it will make that much difference, and to be consistent with the European convention is a reasonable proposal.

Siobhán Mullally: A concern here would be the possible impact of changing the threshold in terms of potential victims of trafficking accessing support and assistance and in processes of identification. Is it likely to have a negative impact? Is it likely to increase difficulties in identifying victims and referring them in a timely way for assistance and protection? That would be a concern if it is a regressive measure from where we are now; in terms of human rights law, you want to ensure non-regression in the protection of human rights of victims of trafficking.

I have concerns about the impact of that and whether it will increase the difficulty of timely and early identification of victims, because early identification is critical to ensuring effective access to protection. There is a question about how it will be implemented in practice and what the fallout will be in its implementation.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Q I thank the witnesses for their evidence so far. If I may start with Dame Sara, in answer to Holly Lynch’s questions earlier about clause 51 you expressed concern about the range of offences that might end up excluding people from access to the NRM. Are there concerns that some of the offences created by the Bill might also have that effect?

Dame Sara Thornton: That links to a comment I made in my correspondence with the Home Secretary. If the penalty for illegally entering the country is increased to four years, we could have a situation where, as a matter of course, if somebody had been prosecuted for that they would not be able to access the NRM. It is a risk that probably exists more on paper than in reality, because most of the time immigration enforcement does not use the law to prosecute; it tends to use administrative processes.

[Stuart C. McDonald]

Q Something to be aware of, then. On disclosure, you have both expressed concern about the traffic information notices, particularly in relation to children. More generally, how awkward is it to have that sort of system and deadline in place when you are talking about victims of trafficking and their ability to disclose information about their experiences in a timely manner?

Siobhán Mullally: As I said, clauses 46 and 47 pose serious difficulties with regard to both adults and children in terms of the state’s compliance with international human rights law on the protection of victims, because of the particular difficulties a victim of trafficking may have not only in disclosing information, but even in identifying as a victim of trafficking. It is not the obligation of the victim to self-identify, but we know that where the context is new, where there may be a distrust or lack of familiarity with officials within a state, where there may be language barriers or delays in accessing legal assistance, or where there may be fears of reprisals for the victims or their families, that can lead to delays.

The European Court of Human Rights has repeatedly addressed that in terms of not properly taking account of the delays that can occur, the inconsistencies that may arise and the trauma that is endured by victims. That is not appropriate in terms of ensuring the fullest protection of the rights of victims of trafficking.

[Stuart C. McDonald]

Q Dame Sara, have you anything to add?

Dame Sara Thornton: Briefly. Siobhán has explained the issue of trauma, what we know about its impact on the brain, the way it affects memory and the way people recall with inconsistencies. We know that in practice that is very often the case with victims, and until they form trusting relationships you do not get a narrative that starts at the beginning and ends at the end; it is very piecemeal. As people trust and become more open, they might disclose more. That is a really big consideration. If we are not careful, these two clauses disregard that. Secondly, I have come across cases where victims are more able to disclose labour exploitation, for example, but it might take several years for them to disclose the most awful sexual exploitation because they may be embarrassed or ashamed about it. That is a concern. Also, of course, we know that some victims just do not identify as victims. They do not see that the awful things that they have endured mean that they are, in fact, victims.

I have been thinking about whether any amendments could acknowledge this issue about trauma. We have slavery and trafficking care standards, which are all about trauma-informed care. Is there a potential amendment that says that when you are doing this process it has to be done with those sorts of standards and principles in mind?

Similarly, the Bill does not talk at all about how long people might be given to respond to a trafficking information notice. Again, I would be really worried if that were just a matter of a few days. Colleagues have looked at arrangements in some asylum cases. It may be 20 days. I think this might be more complex, so you might think about 30 days. Is it worth thinking about putting in the Bill what sort of time period might be appropriate?

Lastly, colleagues have suggested that you might even want to define in the Bill what might be a good reason for disclosure, because at the moment it is left very much open. It could be open to guidance, but one aspect would be to list—whether it is trauma, mistrust of authority, or a threat from traffickers—all the sorts of reasons that could cause late disclosure, and perhaps, as I say, have them in legislation rather than just relying on guidance.

[Stuart C. McDonald]

Q Thank you. In your correspondence with the Home Secretary you query the idea behind the Bill that deterrence is an effective strategy. You also express concern that differential treatment of refugees based on the nature of their arrival may serve only to exacerbate vulnerability. Can you say a little about those two points?

Dame Sara Thornton: I will start with the second first. The earlier witnesses gave evidence about the two-tier approach. The concern would be that that creates vulnerability for people who are in this country in that situation because they have fewer protections, and no recourse to public funds unless they are destitute. I know from my work that people in that situation are driven by desperation to take exploitative work. It is a real concern that it could create vulnerability, which criminals and traffickers would exploit.

On the second point, I referred to material that was in a House of Commons Library report that suggested that when you look at the reasons why people choose or choose not to come to a country, there are many other factors that they consider. There is better evidence that they consider other factors than the nature of the law and the situation when they get there—the policy and practice of the country. My concern would be that you risk making more people vulnerable, because they live lives of precarity anyway, with a hope that this will deter. I completely understand the Government’s position that this is a very dangerous way for people to come to this country and we need to stop it, but I am concerned about the extent to which there is evidence that suggests that it might be effective, given that I think it could increase vulnerability.

[Stuart C. McDonald]

Q A final question: what are your thoughts and views on the proposals in the Bill to reduce the recovery period?

Siobhán Mullally: Again, it is disappointing to see that reduction in the recovery period. It is a regressive measure in terms of current standards and protections, so I would have concerns that it is moving backwards the human rights protections of victims of trafficking. There have been previous examples of regressive measures, in terms of attempts to reduce assistance levels to victims of trafficking. Again, it breaches the principle of non-regression in human rights protections, so I would have concerns around that and the longer-term impact, in terms of ensuring effective protection of victims of trafficking and trying to break the cycle of re-trafficking and vulnerability to exploitation.

Dame Sara Thornton: I really welcome the fact that it is going to be in statute, because it was not in statute in the Modern Slavery Act 2015. I acknowledge that the current guidance is 45 days and that this is only 30 days, but 30 days is what is set out in the European convention. The other thing that is worth saying—I do not know whether Members are aware of this—is that the wait from reasonable grounds to conclusive grounds is very, very long. In 2020, the average was 465 days. We have a big debate about 45 days versus 30, but the reality is that when I meet victims and survivors, most of them have a sense of waiting a very, very long time. They are being provided with support, but they feel that their lives are on hold.

I have a couple of other thoughts about the time period. Of course, if people are being supported for a long time, there is some benefit to that, but there is also a disadvantage, particularly when cases are related to criminal proceedings, the courts are waiting for decisions and the system is grinding very slowly. One particular issue might seem very tactical and technical, which maybe it is, but it is important. One of the weaknesses of the current national referral mechanism is that, historically, all the decisions have been taken by the Home Office—the competent authority. I think a lot of the decisions about whether somebody has been trafficked are best taken locally by local safeguarding partners, and I am really pleased to say that the Home Office established a pilot early this year in 10 local authority areas, whereby local safeguarding boards are making those decisions. You have the right people around the table, and they have a much fuller picture of what has been going on.

Those pilots are going very well. One of the things they are able to do is that, when they meet to discuss what has happened to a child, they are able to take both the reasonable grounds and conclusive grounds decisions at the same meeting—you might imagine how that speeds things up. I would not want anything in the legislation to undermine the really good best practice that is currently being developed, which means that decisions about children’s trafficking are being made locally by the people who are best qualified to do them, and it is happening so much more speedily. I would hope that the Bill does not undermine that good practice.

[Stuart C. McDonald]

Q Thank you. To push you a little, imagine that we lived in a country where things moved a bit more efficiently, there was not a 400-odd day wait and, generally speaking, these decisions were made timeously. Would you have concerns if the recovery period had been reduced from 45 days to 30 days, if that was the reality?

Dame Sara Thornton: If it was the case that that meant that people were getting just 30 days’ support, it would have a negative impact. If you think about providing people with counselling and helping with their medical support and legal advice—a whole range of things— 30 days is not very long. I am just saying the reality in the UK at the moment is that it is taking so much longer that the difference between 45 and 30 is less significant.

[Stuart C. McDonald]

One more question, Ms McDonagh?

[The Chair]

I have not seen anybody indicate, so yes.

[Stuart C. McDonald]

Q Dame Sara, another thing that you mentioned is the consultation process. You had some concern that there had not been enough involvement with survivors or people with lived experience of trafficking. Can you say a bit more about that?

Dame Sara Thornton: The period between the new plan for immigration in March and the publication of the Bill in July was very short. We are aware that groups involved in asylum were much more involved in the consultation process than some of the groups that support victims of slavery and trafficking. It is too late now, but it would have been good to see more involvement of survivor groups particularly, so that people could give their views about what this would mean on a personal level, from that survivor perspective.

--- Later in debate ---

[Holly Lynch]

Q We are still waiting to probe some of the information around these trafficking information notices, perhaps in Committee, but do you have a sense that it would be appropriate to receive legal aid and legal advice at the point at which you receive a trafficking information notice, as well?

Adrian Berry: Yes, of course. As you know, there is a whole series of notices, including in relation to trafficking, which increasingly assimilate it to the asylum process where you get punished for producing evidence or material after an arbitrary cut-off date. There is no safeguard in the Bill for when that cut-off date is—it could be too soon, before you have had an opportunity to recover, to produce the information and receive support. Legal aid is one way of enabling people to properly frame their case at the earliest possible opportunity. The use of notices throughout the Bill, whether trafficking, asylum or priority removal notices, is a subject of serious concern in terms of procedural fairness and ensuring convention compliance, whether that is the trafficking convention or the refugee convention.

[Stuart C. McDonald]

Q I will address this question to Patricia Cabral and the European Network on Statelessness. Could you just explain what the implications of this Bill are for children who face statelessness, and how this might impact on them?

Patricia Cabral: Thank you for the question. Clause 9 proposes to amend and restrict a vital safeguard in British nationality law that was initially introduced with the aim of preventing and reducing childhood statelessness. It is important to note that the UK has international obligations in this area, so the existing safeguard implements those international obligations by enabling a child who was born in the UK and has always been stateless to acquire British citizenship after five years of residing here. We are concerned that the amendment proposed by clause 9 restricts children’s ability to access that safeguard and acquire British citizenship. It is not in line with the UK’s international obligations, and it clearly risks leaving even more children in the UK stateless and in limbo throughout their childhood.

In the last year, we developed a project to understand the issue of childhood statelessness specifically in the UK, so we have gathered some evidence about the barriers these children are facing and who the stateless children in the UK are. Perhaps it would be useful for us to share some of our findings in this area. I will just note that the stateless children in the UK are mainly children who are currently affected by statelessness because their parents belong to a recognised stateless community—for example, the Kuwaiti Bidoon, Rohingya, Palestinian or Kurdish populations—but many of them are also children in care, especially where they have a migrant background. There may be issues with acquiring parental consent if it is required for the child to access nationality, because the documentation may be missing. Children in care are at particular risk of statelessness, because there is a general lack of awareness from local authorities about nationality issues. There may also be children of Roma families or children affected by domestic abuse, trafficking or other forms of exploitation. We are generally talking about children who are already vulnerable and marginalised, and who are also stateless.

We should also bear in mind that clause 9 would amend the provision that applies only to children who were born in the UK and who have lived here for at least five years. We are talking about children who were born here, who grew up here and who really feel that they belong in the UK. They do not know any other country, they feel British and they wonder where else they belong, if not in the UK. We have received some statements from children who grew up in the UK without British nationality, and it really has an impact on them. They describe feelings of alienation, a loss of self-confidence and the challenges to their identity. We have heard from a child who told us that she could not join her class on a trip to France, and she felt that the situation was really insecure and that it was not safe for her to make close friendships. We can only imagine the emotional burdens of this.

We can see how children feel the impact of being stateless, but they really do not understand why they are stateless, and they feel disempowered to change this. That is because the power to change this is really with the UK authorities—for them to grant nationality and a sense of belonging to the UK. Therefore, that starts with simply not amending the existing safeguards that are in line with international law, so clause 9 of the Bill should simply be dropped.

[Stuart C. McDonald]

Q Adrian Berry, you wanted to come in on that question. At the same time, can you say whether the Home Office has explained why it wants to make it more difficult for already vulnerable children not to have access to recognition of statelessness?

Adrian Berry: There are two things to say. First, there is a real problem with the efficacy of this provision. At the moment, you can apply for registration under this route only when you reach the age of five. But at the age of 10, any child, regardless of whether they have a nationality, can apply for registration as a British citizen under a different provision—section 1 of the British Nationality Act 1981. This is a provision on the face of the Bill that is designed to capture children between the ages of five and 10, because you have another route once you reach the age of 10. The question needs to be asked: what is the point of doing that? You have to have some compelling advice about the cohort aged between five and 10 in order to do it, and there is no evidence at all that that particular cohort of people are the subject of concern. There is no data adduced to show that there is any abuse of the current provision in schedule 2 to the British Nationality Act 1981, which deals with stateless children. There is no reason why you would just leave a child stateless between the ages of five and 10, knowing that there is another provision in law once they reach the age of 10. There is no gain by using this provision. On the question of—[Inaudible.]—simply that the provisions become more available.

[Stuart C. McDonald]

Q On a slightly different question, perhaps one area where we can all be fairly positive is clauses 1 to 8. This is about correcting historical unfairness in the nationality system—is that right? Are we right to welcome these provisions but with the caveat that we have to see how effective the provisions become, how accessible they are, what fees are charged and so on?

Adrian Berry: Yes. Clauses 1 to 8 are good stuff, as far as they go. They correct—[Inaudible.]—on the grounds of sex discrimination, discrimination on the grounds of illegitimacy, and historical unfairness in relation to people who might have been prejudicially treated in the Windrush scandal. There is not much not to like about that. There are some omissions. They cure prejudices against people who would be British citizens and overseas territory citizens today, but they ignore the people who would be British overseas citizens today. You will know that their concern is directly because they have no ability to come to the UK, but they still have British nationality. So there is more work to do, but so far, so good, and there are some welcome developments in clauses 1 to 8.

[Stuart C. McDonald]

Q Can I ask about the scope of the criminal offence created by the Bill for coming into the United Kingdom irregularly? The Government’s focus is on boats, but does that catch other people who arrive here and claim asylum? For example, if I arrived here on a visit visa and then sought to claim asylum, and clearly I had applied for the visit visa only for the purposes of coming to claim asylum, would that be a criminal offence? Is it clear from the Bill?

Adrian Berry: If you apply for a visit visa, you are making a representation that you intend to return to your country of origin. At some point, unless you claim on arrival when you land, you may be declared an illegal entrant under existing provisions. The problem with clauses 37 and 38 is that they criminalise arrival and assisting arrival in the UK. So it is the crime of arrival or assisting arrival, if you want to think about it like that. What that does is that applies to asylum seekers. So you say, “Of course, we are not impeding the efficacy of the refugee convention”. In the explanatory notes the Home Office says that, but in practice it is. If you criminalise arrival, that is precisely what you are doing. You cannot see those provisions separately from clause 12, which prohibits you from claiming asylum in UK territorial waters.

When you fit them all together, you have the criminal offence of arrival: you do not have to have entered the UK, you are still on a vessel. You are in UK territorial waters because you are on your way to the UK and you cannot claim asylum there. However, the maritime enforcement powers, which the Home Office gives itself under schedule 3, allow it not only to board your vessel and not take your asylum claim, but require you to go back to the port from which you came and require you to leave UK territorial waters. If you look at the package—criminal offence, not being able to claim asylum, and power to board your vessel and require you to leave—not only might that put you at risk in your insecure vessel, but it just shuts you out from the refugee convention. It is a full-scale assault on being able to claim territorial asylum in the UK.

[Stuart C. McDonald]

Q In essence, the only part of the asylum system that would be left would be people who happened to be in this country and there was a dramatic change of circumstances in their home country—refugee sur place. It is not so much an objection to shutting down unsafe routes; it is an objection to shutting down the UK asylum system, pretty much.

Adrian Berry: Yes. The whole point of the refugee convention is not about resettlement; it is about people making it to the territory and processing and determining their claims. That is why you have the prohibition on penalties in article 31. It is all about coming to the UK to claim asylum and being a refugee on an irregular route. If you shut that out, all that is left is sur place claims, as they are called, where you are on the territory, as you suggest.

[Paul Howell]

Q I have a question for Patricia Durr, more focused on children. One of the things we hear about is people claiming to be children when they are not, and where the boundary is in that. There are questions about what the boundary of assessment is. Do you have an opinion on that, because I do not think we have heard anything so far on that? Where do you feel that sits? Obviously, it is very important that we keep adults separate from children in any holding pattern.

Patricia Durr: We are waiting for more information about the age assessment, given the placeholder clauses in the Bill. I guess our biggest concern is about children being treated as adults. I know that the Committee has expressed some concern about adults being treated as children, but we need to consider that the greater risk is that children are being pushed into adult systems through inappropriate age assessments. Obviously, it is a concern all round, but that is the greatest concern, I think, because the consequences of the adultification of children who are then also criminalised are huge. In any provision for children and young people in this country, we should have in place very strong, robust safeguarding measures that provide better protection for children and young people there than would be provided for a child in adult provision. That is the way I would consider that.

We are concerned that age assessment should remain within a safeguarding framework and remain with professionals who are skilled in children’s development and care. I think the British Medical Association has given written evidence to the Committee to disavow the idea that there is a scientific method or approach to age assessment. It is obviously about professional judgment by skilled professionals—in this case, social workers—who have a better understanding of child development.

--- Later in debate ---

[The Chair]

Are there any other questions? Mr McDonald, I stopped you on a question. Would you like to carry on?

[Stuart C. McDonald]

Q Thank you, Ms McDonagh. I have just a couple more questions. Mr Charalambous was very comprehensive in his own questioning. Can I go back to the change to the standard of proof? How problematic is it having this balance of probabilities test in there alongside the refugee convention definition of a refugee, which talks of real risk?

Adrian Berry: It is extremely problematic, and not just because it is deprecated in other jurisdictions, but because it makes the judge’s task so much harder—they have to have a split personality. They have to weigh some of the evidence—including the question of whether the person has a refugee convention reason, such as a political opinion or membership of a particular social group—on the balance of probability standard, and then they have to assess the question of what happened in the past on that standard. Then they have to evaluate future risk, which is intimately bound up with how you have been treated in the past, on the lower civil standard of reasonable degree of likelihood.

It is a charter for errors of law creeping into decision making and for onward appeals. It will almost certainly lead to more onward appeals, which will lengthen the process. It will add to costs and uncertainty, and ultimately it will leave people without protection, when there is a commonly understood threshold test, with the reasonable degree of likelihood across the piece, whether it is past facts or future risk, that has applied in this country and other common law jurisdictions and is endorsed by the United Nations High Commissioner for Refugees.

[Stuart C. McDonald]

Q Thank you. Finally, can I ask Patricia Cabral about statelessness? You have indicated what is wrong with the Bill and how it makes access to recognition of statelessness for children more difficult. What would you like to see in the Bill? Is it fair to say that the system for applying to be recognised as stateless in the United Kingdom is fairly good by international standards, but there are still hurdles and problems that need to be improved? What could be put in the Bill to improve the system for recognising statelessness in the UK?

Patricia Cabral: Yes, there are a number of issues with statelessness in the UK anyway, but with this Bill we want to focus on clause 9, in particular. Our research shows that children who are brought up stateless in the UK already face a number of significant issues in acquiring British citizenship. There is a lack of legal advice and quality legal support. Legal aid is not always available. There are a number of challenges in evidencing and proving statelessness. There are already all these barriers for children trying to acquire British nationality, which might be the only nationality available to them.

What we are really aiming for today is just to make sure we do not create even more barriers for these children, and that we remove clause 9 to ensure that we do not amend any of the existing safeguards. Paragraph 3 of schedule 2 to the British Nationality Act 1981 is in compliance with international law—the 1961 convention on the rejection of statelessness and the convention on the rights of the child. We simply do not need to touch those safeguards or make this amendment.

[Stuart C. McDonald]

Thank you very much.

[Holly Lynch]

Q I have a question for Every Child Protected Against Trafficking. Patricia, in your written submission you were very critical of the lack of due process. Could you take me through just how dissatisfied you were with the consultation process and why?

Patricia Durr: We have talked about how children’s rights are exercised by the provisions in the Bill. A children’s rights impact statement would really have assisted consideration of some of the measures, by setting out which children’s rights are invoked and how they are impacted. It is something the Committee on the Rights of the Child has asked the UK Government to do systematically. It is safe to say that the length of the consultation period was not sufficient.

We were quite surprised that the part 4 provisions are being included in this asylum and immigration Bill, particularly given that there is currently a review of the modern slavery strategy. On the lack of consultation, certainly from our perspective, what implications might there be for child victims of trafficking? Their experience of waiting in limbo, and the lack of provision for leave to remain as recognised child victims of trafficking, rather than through asylum provisions within the immigration rules are certainly a huge concern for the young people we work with, and that would come through very strongly from them. It was that combination: why these provisions in this Bill, and the lack of engagement with children and young people—from our perspective—but also, survivors of trafficking and exploitation more broadly.

Nationality and Borders Bill (First sitting)

Stuart C McDonald Excerpts

Tuesday 21st September 2021 Public Bill Committees

[The Chair]

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

[The Chair]

--- Later in debate ---

[The Chair]

[Stuart C. McDonald]

[Stuart C. McDonald]

[Stuart C. McDonald]

[Stuart C. McDonald]

[Stuart C. McDonald]

[Stuart C. McDonald]

[The Chair]

Nationality and Borders Bill (Second sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

I call Stuart McDonald.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Q Thank you for your evidence so far. Earlier we heard from Jon Featonby of the Red Cross that there was only one clause in the Bill that would directly impact smugglers themselves, by increasing possible sentences. You have gone further, saying that, on the whole, those gangs would celebrate the Bill passing through Parliament. Why do you go that far?

Zoe Gardner: There is considerable evidence that every time we spend more money on trying to close down a route that is regularly used by smugglers to bring people through irregular means to the UK—indeed, this is the case in any other country—the people who are desperate to take that route do not simply disappear. In fact, the routes are simply redirected, often to more dangerous paths. It does not stop the journeys, but it does allow the smugglers to charge more, for yet more dangerous journeys and yet more complicated ways of making it through these barriers. There is always going to be more flexibility on the side of the smugglers than on the side of the state. Until we provide people with a regulated alternative means of travel to the UK, every round of security spending that we throw at this and every attempt at this failed model of deterrence and pushbacks will be celebrated by the smugglers, because it simply lines their pockets.

The increased sentences proposed by the Bill are all very well, and would be perfectly reasonable if in reality they were aimed at smuggling gangs. However, what we have seen in the last 12 months is that the Home Office has used legislation that was intended to be used against smuggling gangs and members of international criminal gangs to unjustly prosecute asylum seekers themselves. Several asylum seekers have served jail time on the basis that they were facilitating the entry of other asylum seekers on the same boat.

That practice was being undertaken until, in August this year, the Crown Prosecution Service published some clarified guidance confirming that it is not a crime to enter the UK, even on a small boat or through other irregular means, if your purpose is to present yourself to the authorities and seek asylum. That is the case for almost all, if not all—I think the official figure is 98% —of the people on these boats. It has been confirmed that those people are not committing a crime or an immigration offence.

The danger of the increased sentences is that they will be targeted at the wrong people and that they will be used to punish people who are exercising their right to claim asylum rather than being targeted at the people at whom it should be targeted: the organised criminal gangs. That should be done on the basis of credible intelligence and international co-operation, and not on the basis of picking people up off the beach in Kent when they clearly intend to make an asylum claim.

[Stuart C. McDonald]

Q You have said that you think the policy of trying to disincentivise people from making these crossings is not going to work and that, on the other hand, some of the measures used to pursue that disincentive effect, such as the notices of intent, will have a pretty awful impact on those affected by them. Can you say more about some of the other disincentives? You have mentioned the notices of intent, but obviously there is criminalisation and measures around no recourse to public funds and family reunion. How will those impact on individuals and the local authorities that are trying to support them?

Zoe Gardner: This refers to the differential treatment for people who, once they have arrived and been served with their notice of intent, have to wait six months in this unnecessary and harmful limbo situation in the asylum system. If the Government do not find somewhere else to send them—another country willing to take on our responsibilities for them—as is likely to happen in most cases, they will have their asylum claim assessed in the usual system. Given that the nationalities are overwhelmingly those recognised as refugees in this country—people from countries such as Afghanistan, Iran, Iraq, Sudan and Syria, which have a high recognition rate—they will be recognised as refugees in need of protection from persecution.

The Government then propose, with this Bill, to offer them only temporary protection status, which is not the same as the refugee protection status that we have provided them with until now. That would mean people having an unstable status that would need to be consistently renewed, potentially once every 30 months, and with no guarantee of obtaining permanent settlement.

That is completely harmful to the mental health and integration prospects of refugees. It runs counter to obligations under the UN refugee convention, which requires that recognised refugees are assisted to naturalise and integrate. It also simply does not work from a practical perspective. We have an example of a JCWI client who is a gay man from Iran. He has been granted a temporary protection status for six months, due to complicated factors of his case. The Home Office proposes to reassess whether this gay man from Iran will be at risk again in six months, and again in six months, and again in six months. If it was every 30 months, I am sure that members of the Committee can see the lack of logic being applied there.

People who obtain refugee protection almost always need long-term, stable protection status. They come from countries where it is very unlikely that it will be safe to remove them again within 30 months. That puts a huge additional bureaucratic burden on a Home Office that is already failing to get through its case load at a reasonable speed and will very seriously hamper those people’s integration prospects.

Furthermore, as Lucy Moreton mentioned, those people may be denied the right to family reunification. That means that the largely female or child contingent of refugees who are currently able to get protection through a safe route of family reunion would then be denied that protection. That might mean that, in desperation to join their loved one who has come to the UK, they may then embark on those dangerous irregular journeys, so this may in fact provoke more irregular journeys and, again, enrich and empower the smugglers yet more.

Finally, the proposals also suggest that refugees granted this secondary status of protection would not be granted access to public funds. Aside from being cruel and harmful to refugees, that follows the same pattern of being illogical and impractical. The reality is that if these refugees are destitute, they will be able to apply to have the “no recourse to public funds” conditions lifted. Given that they will have waited for at least six months and then gone into the standard asylum procedure, which at the moment takes well over six months in many cases, and during that time will not have been allowed to work, plus being people who are recovering from trauma, the likelihood that they can go into a job and start earning straightaway is extremely low. The likelihood that they will be destitute under those circumstances is extremely high.

This just adds a huge additional bureaucratic burden where there will be application after application for these “no recourse to public funds” conditions to be lifted. In the meantime, there is the risk that people will fall into destitution. From the perspective of fairness and compassion, this plan does not work. From the perspective of having a functioning asylum system and a Home Office that produces efficient and tolerable procedures that work on a reasonable time frame, again, it completely fails.

[Stuart C. McDonald]

Q Lucy Moreton, do you want to pick up on the issue of additional work that this will create for the Home Office, in terms of having to revisit asylum applications every 30 months, even though someone has been recognised as a refugee, and dealing with applications to lift no recourse to public funds conditions and so on? Also, on another subject: do you think pushbacks at sea are more about headline grabbing than worthwhile legislation?

Lucy Moreton: My colleague’s point on the administrative burden of constantly having to reassess and read asylum claims was absolutely right. It feeds back into the point I made about resourcing: you cannot make this work if you do not put the resources in. If you want civil servants to reconsider applications every six or 30 months, you are going to have to put enough civil servants in there to do it.

On the issue of pushbacks, as things stand at the moment, given the instructions that we work under to ensure the safety of life at sea and the legality of it, it seems to us—the trade union, and the members who advise us—extremely unlikely to happen in practice. The restrictions are, quite rightly, very tight. No one wants to see a fatality from what is a very dangerous manoeuvre. It was not expected to be announced as it was. It had been in discussion in various iterations for a couple of years, but for it to be announced suddenly in the press came as a surprise.

It had the unfortunate impact of endangering both border officers and migrants because suddenly migrants feared that they were going to be pushed back, even though they are in circumstances where they never would be—they are vulnerable, the vessel is vulnerable, it has vulnerable people in it and it is not in the right bit of the channel. Because they are frightened of being approached by border officers, they are less willing to be rescued in circumstances where they deeply need rescuing. That was most unfortunate.

I recognise the risk in saying this, but I will personally be very surprised if this ever actually happens and is completed. I would be amazed. We do not see migrant vessels that are not vulnerable in one way or another.

[Stuart C. McDonald]

Thank you.

[Paul Howell (Sedgefield) (Con)]

Q I want to turn to your last point before I come to the one that I was going to make. You say that the people in the boats would be scared of Border Force because of what has been said. We were told by the Red Cross earlier that the people getting into boats were not informed about what was going on or what sort of law applied. How would they have a perception that the law had changed and that they were going to be pushed back, given that, as the Red Cross said earlier, they would not have any perception of what laws applied to them?

Lucy Moreton: There are communications channels between migrants who make it and those who are waiting. Also, the spin put on it by the smuggling gangs is absolutely phenomenal. For example, we were seeing a lot of migrants being told that the small vessel route over the English channel would become illegal once the UK had left the EU. It was illegal before and it was going to be illegal after: nothing changed. But the gangs used that to pressure more people into taking the route—“Go now, before they stop it!”—and to charge more money for that route. Different vessels have different amounts of information, but this has been reported quite widely in the press.

Migrant groupings in France, I understand, are now aware that this is a risk. We know that they resist approaches by the French; they put themselves at risk in order to prevent the French intercepting and returning them while they remain within French waters. We get reports from our members on the cutters, particularly the smaller ribs, that migrants make absolutely sure that they have got a British vessel. They are far more likely to trust the RNLI or the coastguard, who they recognise because they are on telly and have different uniforms, than to trust us. The last thing we need is someone standing up and going overboard. If they are trying to avoid being intercepted, either by the French, by us or anyone they do not recognise, that is the risk.

--- Later in debate ---

[Tom Pursglove]

Q I noted the broad support for the national age assessment board approach that we are proposing to try to deal with some of this, but what impact do you believe the current judicial review-based processes for settling disputes of age assessments have on your organisation? I am conscious, as a former councillor, that it is not always just financial; it is also around officer time in particular, and the impact on services more generally. What would you say about that?

Councillor Rachael Robathan: Anything that moves towards a uniform process will greatly help. At the moment, involving the local authorities and putting the responsibility on them is very difficult for what are very often stretched institutions. Having a uniform, joined-up process would be very welcome.

Councillor Roger Gough: Already when you see changes in, for instance, what the courts have found about what is a reasonable basis on which a challenge can be presented by Border Force, as we have seen recently, that has made a huge difference. The proportion of young people coming to us age disputed is significantly lower than it was before that.

When you get changes in the process, it can make a material difference. Authorities like ours are at least experienced in this area, even if we are in the eye of the storm. As dispersal happens, or when, as I mentioned earlier, those who have been placed as adults launch a challenge within their own authority, issues may arise for an authority that is not nearly as well set up to deal with them as we are.

To pick up on the point that Councillor Robathan made, it is worth emphasising what a difference going into the children’s system or the adult system makes. As we have both said, first there are children in care and then there is the care leaver process, all of which, quite properly in their own way, have particular requirements for children’s services departments in authorities. The process around adult dispersal clearly still makes demands on council services, but in the first instance it is a housing-related issue, from which a number of other things follow. It is not quite the same as building in what can be a seven, eight or 10 year process of somebody being part of the children’s services operations of the council.

[Stuart C. McDonald]

Q I thank the witnesses for their evidence so far. I have a couple of follow-up questions on age assessments. You have spoken about the safeguarding issues that arise if somebody who is an adult finds themselves in a space for children, but of course the opposite can also happen; there are huge safeguarding issues if somebody aged 15 or 16 ends up being put in a hotel with adults or dispersed to some other part of the United Kingdom with limited supervision. It is in all our interests to get that absolutely right. Would it make any difference, for example, if we took the pressure off these decisions—I am thinking slightly off the top of my head—by continuing UASC leave to a higher age, say 20 or 21?

Councillor Roger Gough: Sorry, could you just run your last point by me again?

[Stuart C. McDonald]

It just strikes me that a lot of the pressure around these decisions, and perhaps even a degree of cynicism about where a number of age claims fall, arises from the fact that UASC leave, as I understand it, takes young people up to 17 and a half. If UASC leave carried on until 19, 20 or 21 there would be much less pressure, or motivation—if you are cynical about it—to make a claim that you were 15, 16 or 17 than there is now. Would that be a different way to try to go about fixing this?

Councillor Roger Gough: I need to think about this one, but I suspect my answer will probably be that where the pressure arises is not so much on the immigration side of things as in respect of the children’s services obligations. As long as a young person is identified as being of a particular age that, under the current rules, makes them a child in care for the council, that is where the issues for councils arise. As has been mentioned, that takes those involved through to the age of 25 as care leavers. The answer almost certainly is that it is Children Act responsibilities that matter in this case. As you say, there is normally UAS leave to remain, which will then usually transfer over into a five-year leave to remain. In a sense, the age issues tie into Children Act responsibilities.

[Stuart C. McDonald]

Okay, I will give that some further thought.

Councillor Roger Gough: And so will I.

[Stuart C. McDonald]

Q Safeguarding obviously does work both ways. Ultimately it is just imperative that we get this right. I think other local authorities have expressed some concern about this national body possibly taking their decision-making power away from them. Nobody would object to anything that drives up standards and helps to make sure we get these decisions right, but do you have any sympathy with local authorities that say, “Ultimately, it is our social workers who will implement this decision. It should be them who make the decision in the first place”?

Councillor Roger Gough: I am certainly more supportive of something that is there to support local authorities and provide more of a framework and a structure, rather than completely taking the process over—I do not think that that is necessarily what would be envisaged. In short, going back to the two points you have posited, you are quite right that safeguarding arguments would cut both ways. What all of us are asking is simply, how do we find a process that is as robust as it can be and that does not have a hugely distorting effect on local authority children’s services departments in terms of their time, their resources and their officers’ commitment?

In terms of the function that this body could have, there is a suggestion that it could support, and take decisions with, authorities who wish it. But the key thing in many ways is that it provides more of a framework within what, at present, is a relatively hazy area of activity. To the degree that you can do that, I think you would make local authorities’ lives easier and better, and they would hopefully provide better services in this area than would otherwise be the case.

Councillor Rachael Robathan: I would largely agree. In terms of your first point, about moving the age higher, I would be wary of introducing a hurdle or age bar that was different from that for other young people in our care. I would be quite wary about introducing a parallel process that has different criteria. I suspect that you might just push the problem forward a few years; then you would have a 19-year-old, but are they really 19 or actually a 22-year-old who is presenting as a 19-year-old? That might move the issue around, rather than addressing it.

I agree with what Councillor Gough said: having a national process that helps local authorities in determining age would be a support. It is not determining the shape of the services that local authorities then deliver; it is basically saying, “This young person qualifies on this age basis to access your services.”

[Stuart C. McDonald]

We will have to see what the placeholder clauses in the Bill are replaced with, but thank you both very much.

[The Chair]

If there are no more questions, I thank the witnesses for their evidence. We will move on to the next panel.

Examination of Witness

Tony Smith gave evidence.

--- Later in debate ---

[Paul Howell]

Q Thank you, Chair. This question is similar to one that I asked a previous witness. Mr Smith, what aspects of the Bill would you particularly welcome, and what do you feel needs to be more robust, or indeed less? Could you cover that at the same time?

Tony Smith: I particularly welcome the distinction between those people who are entering the country from safe third countries, with the new interpretation of article 31 where we can actually test whether they face an immediate fear of persecution in the circumstances under which we find them, and those who are genuinely fleeing persecution coming through refugee resettlement routes. I think that is the part that I favour the most.

The other thing we will have to consider is whether we will have to establish proper arrangements for the reception of people coming via this route. The facilities in Tug Haven—I do not know whether the Committee has been there—are appalling. We have a marquee there and we have Border Force officers changing nappies and ordering pizzas because we simply do not have the infrastructure to cope with these numbers. Other countries at least provide sensible, safe accommodation. You are going to hear lots of evidence about the circumstances at Napier Barracks. There is a real problem in the Home Office right now about being able to manage the proper reception of these people, whether or not we allow them to stay.

[Stuart C. McDonald]

Q Thank you, Mr Smith. As ever, it is very interesting to hear from you. I have two quick questions. I am slightly confused because on one hand, you speak about the necessity of deterrence, but the way you want to go about deterring people from making the crossings is through removals to France. That is exactly what we have lost because of Brexit and the end of the Dublin regulations at the start of the year, and this Bill does not bring us any closer to removals to France. On the other hand, you think that criminalisation is not the right way to go, but that is what is in the Bill; it criminalises people who make those crossings. Although I understand your logic, I do not understand how that takes you to supporting this Bill.

[The Chair]

Sorry, Stuart, but I am going to break in here so that we can get an answer. Mr Smith, you have 30 seconds.

Tony Smith: The Dublin convention never worked. It certainly did not work with France even when we were in the EU. In fact, we were in the EU when some of the boats started coming. They still would not take anybody back because it relied on a flawed policy framework. I stand by what I say about the criminal justice system, because we have tried this many times before and people do not fear prison. What they fear is not achieving their ultimate ambition, which is to get settlement in the UK. That is where we need to focus our minds.

--- Later in debate ---

[Tom Pursglove]

Q Presumably trying to focus our approach on safe and legal routes is also very helpful from a national security perspective.

Rob Jones: Absolutely, with the normalisation of clandestine entry, where people are allowed to hide in a crowd. When this problem began, a big day was 100. We are now looking at a big day as being over 700. Within that, you get an increased risk that people will enter the country in a truly clandestine fashion. The more that you can do to offer safe and legal routes, and to disincentivise the business model through deterrents and a range of provisions, the more effective we can be at tackling the organised crime element, because we can then concentrate on the worst groups, which pose the highest risk and will potentially be moving people with a criminal history, whom we are most concerned about.

[Stuart C. McDonald]

Q Thank you for your evidence, Mr Jones. I do not think that anyone would beg to differ on the need to deter and disrupt the smuggling gangs and to support safe legal routes; the issue is much more about where we draw the line in trying to deter people who use those gangs, whether it is appropriate to criminalise them, and so on. May I ask you about another challenge on which I think you have given evidence to the Foreign Affairs Committee: the use of social media companies and encryption to try to organise these sailings, and so on? Back then, I think you indicated that there was a lack of co-operation from a lot of the social media companies, which was posing a lot of challenges. Has there been any progress in that regard?

Rob Jones: There has been some progress. We have been working constantly with the social media companies to get a better response, and to ensure that their platforms are not being used to promote dangerous crossings, and there is progress. We are working in a voluntary environment. We are, in some ways, short of regulation, particularly in relation to this element, but we continue to work with those companies on a day-to-day basis to take material down. That response has improved. It is still not as good as I would like it to be, and we are working to an action plan where we have a common agreement of standards in terms of takedown and our aspiration to prevent adverse outcomes in the English channel, which is ultimately what this is all about. It has got better. It is not as good as it could be. Your point on encryption and some of the closed spaces that we cannot see that are being used to promote these crossings remains an issue for us.

[Stuart C. McDonald]

Q Are both these things that you continue to pursue solutions to through agreement, or has the time come for there to be regulation, perhaps through the Online Safety Bill or something else?

Rob Jones: Obviously, we welcome the Online Safety Bill and its passage. It is a complex area, and only some of this can be dealt with in the Bill. We still require platforms and technology companies to be responsible, because however far regulation takes us, we still need the platforms to understand who is using them and to ensure that they are not being abused by organised crime figures, who are making money out of desperate people.

[Stuart C. McDonald]

Q Finally, are there any other barriers that you would highlight, in terms of how we go about trying to tackle the smuggling gangs? Is it resources? Is it co-operation? Over the last four, five or six years that I have been in this place, a number of Ministers have said, “We’re doing a, b and c, and this will solve the issue, or at least drive it down,” yet here we are, and records continue to be set.

Rob Jones: This is a shared endeavour. I say that the centre of gravity for the organised crime element of this is in France—that is really important—so building on the partnership with France in order to deal with the issue is really important, and we continue to do that. We are also working with partners across Europe and developing those relationships. The factors that surround this, many of which are touched on in the Bill—safe and legal routes, the deterrents effect and so forth—are all important, because there is no silver bullet here. Because of the pull factors, the incentive for organised crime remains, and that is what we are trying to deal with by tackling the problem upstream. It is a range of all those factors, which need concurrent effort, and you cannot underestimate the need for the French to prevent departures in order to allow space for other measures, such as the organised crime element being tackled, to actually kick in and make a difference.

[Stuart C. McDonald]

Q Sure. I would challenge very little of that. The issue we have on this side of the fence is that a lot of the evidence is that some of the deterrents in the Bill, which are aimed not at smugglers but at people using them, will not work and are, in themselves, objectionable from the point of view that if you put someone in prison, they could be an Afghan interpreter who is fleeing because of what happened yesterday. We draw the line there.

Rob Jones: I understand the point you make, but in relation to illegal entry, you do need an offence and you do need to be able to deal with it. None of that should create the issues that you describe, if the legislation is applied judicially and proportionately, and with properly trained people. I say that because we still have a position at the moment whereby, in relation to illegal entry, there is a difference between entry and arrival. In a maritime scenario, that is really unhelpful. It is not helpful for the safety of the migrants who could be on a smuggler’s boat, and it is not helpful for law enforcement.

One of the things that the proposal suggests is tidying up the position around arrival and entry for illegal entry, which is quite important. I recognise what you describe, but the NCA would never be involved in uniformed border control, where the mass criminalisation that you describe as a risk is something that would be the net impact of what we do. We are intelligence-led and deal with organised crime. Looking at it from that angle, I can see the benefit of those measures.

[Stuart C. McDonald]

Sure, but our concern is that that is exactly what the Bill does, and obviously we will hear evidence from UNHCR and various others who have that concern as well. Thank you for your evidence.

[Paul Blomfield]

Q Clearly, we are all concerned and admire your commitment to stopping these dangerous crossings and the risks at which they put people. Our issue as a Committee is to determine whether the measures in the Bill are the best way to achieve that objective.

You talked about the factors that had led smuggling gangs and others to move from lorry and train crossings to boat crossings. We heard from witnesses earlier that we blocked off the opportunity to board lorries through the fortifications around terminals, which was one of the factors that pushed people to the more desperate route of boats. The Home Office’s own impact assessment of the Bill says that there is a serious risk that these measures could encourage people to attempt even riskier routes. Do you think that is a factor we should bear in mind?

Rob Jones: Displacement, in terms of protecting security measures, is always a potential second-order consequence. Organised crime is flexible, and we will respond to that. In terms of where we are at now with the general maritime threat, this does need dealing with. We are trying to second guess where people will go next. We had a terrible mass casualty event in Purfleet, where people were locked into a fridge box. We have had fatalities in the channel already, so we know just how ruthless some of the individuals involved are. We are trying to second guess where they may go next. We already know that bigger vessels have been used, and some of these tactics we have spoken about are important in dealing with bigger vessels.

I think we have pretty much got to the point now where a lot of the tactics and trade craft used in the eastern Mediterranean and other areas of the world are now being deployed in high-risk clandestine entry to the UK. That risk has already manifested itself. We need to live with it, confront it and deal with it, because it is happening now. With the numbers that we see and some of the vessels that are in the channel, we do need to do something different. It has grown to the point where you now have 50 or 60 people in vessels that are not licensed and that are taped together with plywood floors. That is, unfortunately, going to end one way unless it is disrupted, so it does need a second look.

On the displacement point, yes, it is a risk, but where is it? We are now living with a range of tactical options from smugglers that pretty much covers all of the modes. The riskiest one right now is, unfortunately, the English channel and small boats.

Nationality and Borders Bill (First sitting)

Stuart C McDonald Excerpts

Committee stage
Tuesday 21st September 2021 Public Bill Committees

[The Chair]

That is not strictly a matter for the Chair; it is a matter for the usual channels. That should be discussed between the Government and Opposition Whips. I had better ask for the relevant parties to do that privately, and to have a conversation with you. It is not something, I am afraid, that I can adjudicate, but you have made your point. The opportunity to discuss it was at the Programming Sub-Committee yesterday, where it should properly have been raised. It was not raised on that occasion.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Further to that point of order, Sir Roger. I may have raised it had the Programming Sub-Committee started at the time it was supposed to start. I arrived yesterday a minute before the start time, and the sub-committee had finished its work. I was going to make the point that Government witnesses had disappeared. We have now lost a couple of hours, and the opportunity for other witnesses to give evidence. I wanted to put it on the record that I was disappointed not to be able to make that point yesterday.

[The Chair]

The sub-committee was quorate when it started yesterday. Members are expected to be there in a timely fashion. I think that I am right in saying that we started on the nose of the time at which we were supposed to start. I take your point, but again it is a matter for the usual channels, not the Chair.

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Tom Pursglove.)

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Tom Pursglove.)

--- Later in debate ---

[The Chair]

I must offer other Members the opportunity to ask questions. I will come back to you if there is time, Mr Charalambous.

[Stuart C. McDonald]

Q How many clauses in this Bill do you think will have a direct impact on people smugglers?

Jon Featonby: There are 71 clauses and four schedules in this Bill. As far as we can see, from our reading of the Bill, there is one clause that directly targets people smugglers themselves. That is the clause extending the criminal sentence for somebody convicted of that to a life sentence. We absolutely welcome that tightening of people smuggling. We absolutely believe that one approach that the Government should continue to take is in targeting those people smugglers who take advantage of people trying to seek safety.

Our concern is about the other aspects of the Bill, which seem to be more about trying to deter people from making those dangerous journeys. As I said earlier, we do not believe that those clauses will have that impact.

[Stuart C. McDonald]

Q You have said, essentially, that you do not think disincentives work. I want to look at one of the Government’s attempts to disincentivise people from using people smugglers: this new scheme of notices of intent. It is in the Bill, but it is also already in the immigration rules as of the start of this year. What impact have those notices had?

Jon Featonby: It is not clear that they have had any impact. I suppose that you could rightly say that one of the things the Bill does through clause 14 is move the current inadmissibility rules, which are in the immigration rules, into primary legislation. Those have been in force since 1 January, replacing what was the Dublin system, which the UK was part of when it was a member of the European Union.

Since those rules were introduced, 4,500 notices of intent have been issued to individuals. When somebody first arrives in the UK’s asylum process, they are interviewed by a member of the Home Office at the initial stage. Then, if, for whatever reason—there are five potential reasons—the Home Office believes that that person’s asylum claim may be inadmissible in the UK’s asylum system, a notice of intent is issued to that person at that instance. At that point, the person’s asylum claim is still live, but it does not go any further. There are no interviews and it is not substantively considered by the Home Office. The guidance that was introduced by the change in rules then gives the Home Office six months to try to get a return agreement in place, or to look further at that person’s claim to try to work out whether that claim is inadmissible.

What we have not seen since the beginning of this year is a decrease in the number of people making dangerous journeys. It is not apparent to us that it has deterred people. However, because of that in-built six-month delay, it has further increased the delays that people already face while waiting for a decision on their asylum claims.

[Stuart C. McDonald]

Q So basically, people are waiting another six months. What impact does that and the other measures in the Bill have on local authorities that are involved in asylum work?

Jon Featonby: We pay tribute to the local authorities that are part of the dispersal scheme. We work very closely alongside them, and the ones that we work with are very proud of the roles that they play. However, we also recognise that the local authorities that support people are under quite a lot of pressure. There are not enough local authorities currently taking part in the dispersal system, and we encourage more to do so and believe that that should be a priority for the Home Office.

One of the problems with the increased delay, whether it is caused by the inadmissibility rules or by wider decision-making delays, is that people are left in limbo in the asylum system longer, unable to work and reliant on the Home Office for support. There is then a negative impact on people who do go on to get refugee status, on their ability to integrate and to stand on their own feet; they are more likely to have to rely on local authority support for a longer period.

[Stuart C. McDonald]

Q What does that mean for the cost of the system?

Jon Featonby: It is well known, and it was mentioned in the equality impact assessment published at the beginning of the week, that the cost of the asylum system has increased significantly over the last year. While we are not aware of a breakdown of the drivers of that cost, it is likely that a lot of it has been driven by the increased pressure on asylum accommodation, and in particular the increased use of hotels over the last year or so. One of the quickest ways to reduce that cost would be to get people moving through the system much faster again—making those decisions and reducing the pressures on the accommodation system.

Because the Bill will not deter people or reduce the number of people entering the asylum system—if anything, it is just going to increase some of the delays in the system—there is a danger that it will increase the overall cost. It is unknown at the moment what the cost of the accommodation centres might be. A contract notice was issued in August saying that they will potentially accommodate up to 8,000 people, but there is very little known about the cost of that.

[Stuart C. McDonald]

I know colleagues will have other questions on provisions relating to the asylum system. Does the Red Cross want to speak about the provisions relating to modern slavery or statelessness?

Jon Featonby: One of the roles of the Red Cross in the UK is that we work alongside police forces when they undertake anti-trafficking raids to disrupt situations of exploitation; we are there to work alongside police forces and local authorities to support people at those points. We also support people who have gone through the national referral mechanism and been found to be survivors of modern slavery in terms of what happens next—to support them with their onward journeys.

The Modern Slavery Act 2015 was definitely a landmark change. It has very much changed the way the UK has responded—it has improved it. We know from our work with other Red Cross national societies around the world that the UK is now seen as an international leader through that legislation. We are concerned, though, that this is an immigration Bill that contains a large modern slavery element; there is a danger that part 4 moves away from protection as a first port of call in cases of modern slavery. In particular, when we set up reception centres at anti-trafficking raids, we found that the vast majority of people who are taken out of situations of exploitation do not enter the national referral mechanism. When we monitored 10 reception centres, 170 people were taken out of those situations and only four consented to go into the NRM. Some of the changes to the NRM contained in part 4 of the Bill may raise those barriers.

However, there is also an opportunity in the Bill to improve the treatment of people who come out of the national referral mechanism with a positive conclusive grounds decision. We welcome the commitment in the Bill to offer immigration status to some of the people with positive conclusive grounds decisions. When people get a positive conclusive grounds decision and the support that they received while they were in the NRM ends, one of the challenges that they face is that, if they do not have a secure immigration status, it is very difficult for them to get on with their lives—to make decisions about what happens next. It potentially also means that, if they are unable to work and access local authority support or welfare support, they are at risk of being re-exploited. We have made recommendations in the past that people should get that status.

We feel that those provisions can be strengthened to make it clearer that more people will be able to access that immigration leave. At the moment, if the Home Office believes that somebody would be able to receive protection in their country of nationality, they are not eligible for that grant of leave. Having seen the need in people who have gone through the NRM, we believe that it should pretty much be a universal offer of leave at that point. We would like to see the Bill strengthened in that way. I pay tribute to the work of Lord McColl and Sir Iain Duncan Smith in particular for their campaign around this in recent years.

[Stuart C. McDonald]

Q Anything on statelessness, or do you want to leave that to other witnesses?

[The Chair]

There are other Members who wish to ask questions, Mr McDonald. If there is time, I am happy to bring you back in. At present I have Jonathon Gullis, Paul Blomfield and Anne McLaughlin who are waiting to speak. Minister, would you like to come in now or wait?

Afghanistan Policy

Stuart C McDonald Excerpts

Monday 13th September 2021 Commons Chamber

[Victoria Atkins]

I thank my right hon. Friend for that; I suspect he has identified one of the most common questions I am going to face this afternoon. That is completely understandable, because he and every other Member of Parliament wants to help in the sorts of cases he has described.

One of the difficult messages I have to relay this afternoon is that because of the security situation in Afghanistan we have to be very careful about offering either encouragement or support for people who may be in a perilous situation in Afghanistan on making that journey to borders. We cannot, here today in the Chamber, understand the risks to those individuals themselves, particularly given the high profile, which my right hon. Friend has described, of some of the people we are talking about, and we do not know the situation this afternoon and this evening on the ground around borders. We have processes in the region, run by the Foreign, Commonwealth and Development Office and the Ministry of Defence, and the Defence Secretary has made it clear that his defence attachés in the region will be working very hard on such cases. But I am afraid we have to deal with the reality of the situation; much as we, as constituency MPs, would like to be, we are not in circumstances where we can persuade people to move or not move, because of the dangerousness they face. I ask everybody to refer their constituents who may have concerns to the gov.uk website, which will be updated as soon as we are able to do this. In addition, this afternoon colleagues will, through a “Dear colleague” letter, be receiving the online form that people who believe that they are eligible for ARAP should use for contact, so that the processes we are able to control are then put in place. We must, please, be very, very careful about the safety of these people.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

First, let me welcome the Minister to her new role and join her in paying tribute to all those involved in getting people to safety from Afghanistan. We know from the Syrian scheme that resettlement done well can save and transform lives, and that those who are resettled often go on to make brilliant contributions to our communities in return, so of course we want to work constructively to help deliver as many places for Afghans as possible. Equally, her Government must work constructively with partners here as well. It is welcome that local authorities now have more detail about the support they will receive, but when will the four-nations summit, agreed to by the Prime Minister, take place? That local authority support that was mentioned will be crucial. Does that tariff go at least as far as the support offered under the Syrian scheme? Were local authorities consulted about the fact that this would operate over three years, rather than five?

We will also be critical when that is required. Let us say unequivocally that we believe the number of resettlement places on offer is a long, long way below what events in Afghanistan require of us, in the context of more than 2 million Afghan refugees, with many more to come. Outside the 5,000 in the first year, the numbers put forward by the Home Office are vague aspirations, not detailed plans. Indeed, today the Minister referred to “up to 20,000”, so we could be talking about fewer. Can she at least confirm that 20,000 is the minimum number that will be resettled under the scheme? What are the prospects of frontloading the programme so that the initial 5,000 can also be increased? When will all this start?

On the Afghans already here, we need urgent clarity that they will be recognised as refugees. I am tempted to ask when the country guidance will be published, but do we really need the country guidance to tell us that people from Afghanistan should be recognised as refugees? Should that process not be expedited immediately? Will the Minister also revisit the tightly drawn refugee family reunion rules and ensure that those with family in the UK that might not otherwise qualify them for reunion—adult children, siblings, uncles, aunts and cousins—can apply to join them here? If that does not happen, they are the people who will attempt to make it to the UK on their own initiative and who will then, under the Nationality and Borders Bill, be criminalised and jailed simply for seeking asylum here. The Minister spoke about a compassionate approach, but imagine prosecuting and imprisoning people fleeing the Taliban and seeking safety here with their family. Surely this is the moment that the Government must think again about those outrageous proposals.

[Victoria Atkins]

First, I thank the Scottish Government and, indeed, all the devolved Administrations for their constructive work with us so far. It genuinely is a great example of the United Kingdom really pulling together.

I very much hear some of the hon. Gentleman’s criticisms in respect of numbers. I suspect that he and I will not be able to find accommodation on that. We have been careful to ensure that those people whom we can welcome, we can welcome and integrate well, which is why, working with local authorities, we have settled on the 5,000 figure. I remind the hon. Gentleman that the ACRS, which is for members of civil society, vulnerable people and so on, is in addition to those who are welcomed under ARAP. Unless things have suddenly changed over the past 24 hours or so, it is truly one of the most ambitious schemes in the world, so we should be really proud of it.

On looking after people who have been evacuated here, the hon. Gentleman will be pleased to hear that the tariff applies throughout the devolved nations as well. There are additional funds for education and so on.

On the Nationality and Borders Bill, I would argue that the very generosity of our country, though the resettlement scheme, shows our commitment as a Government to ensuring that there are safe and legal rights, which act as a balance against those people traffickers who exploit people at great personal risk—we saw only this weekend terrible news from the channel—for their own criminal ends. We want to encourage people to use safe and legal routes and we want to go after those people traffickers.

Nationality and Borders Bill

Stuart C McDonald Excerpts

2nd reading
Tuesday 20th July 2021 Commons Chamber

[Rob Roberts (Delyn) (Ind)]

It is a pleasure to follow the hon. Member for Airdrie and Shotts (Anum Qaisar-Javed). It will come as no surprise that I do not agree with a great number of things that she said, but she may get some comfort from one of the proposals that I will make later to improve the Bill.

I welcome any Bill that aims to address historical anomalies and areas of unfairness in British nationality law, and to make the current system of applying for asylum fairer and more efficient. This Bill will ensure that those who are in genuine need can be supported, and, at the same time, deter illegal entry into the UK. This is a timely and important topic and an area of law that we have needed to address for some time.

In recent years, we have sadly been haunted by terrible scenes and tragic reports of migrants losing their lives while attempting to enter the UK. That is why I welcome the changes proposed in this Bill. The Bill aims to save and protect lives by ensuring that only safe and legal routes into the UK remain, and proposes harsher punishments for human smugglers and traffickers, who are responsible for so much suffering. The introduction of life sentences for human smuggling, by way of which so many lives have been endangered, will attempt to combat and condemn the exploitation of migrants. Tougher criminal sentences for those attempting to enter the UK illegally will also steer those seeking asylum towards safe and legal routes, and ultimately protect their lives.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

What the hon. Member is advocating and what the Government have in this Bill is a criminal offence punishable by up to four years in prison that would apply to a Uyghur fleeing ethnic cleansing in China, to a Syrian fleeing war crimes there, or to a persecuted Christian fleeing for their life. How can any Government or any party justify locking up these people for four years?

[Rob Roberts]

I recall serving with the hon. Gentleman on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, so I am very much aware of the experience and expertise that he brings to this debate. The short answer is that this Bill does an awful lot to end human trafficking and the nasty, awful environment that is being fostered by the criminal gangs who are putting lives at risk. I appreciate everything that the hon. Gentleman says and the expertise that he brings to the debate, but I do not necessarily see it in the same way as he does.

The UK has a proud history of supporting the most vulnerable people worldwide, having resettled more refugees than any other country in Europe. The Bill ensures that the Government stand by their moral and legal obligations to help people fleeing cruelty around the world, while condemning those who break the law.

Let me turn briefly to another element of the Bill. Attention needs to be given to the costly and arduous routes to citizenship that are bureaucratic and expensive for those who are already settled and working in the UK. I declare an interest, as my partner is an overseas NHS worker. This is a perfect example of what I mean: many of our NHS workers who have worked day in, day out to provide the best possible care to patients throughout the pandemic have come from other countries. Often these individuals have travelled great distances and put their own lives at risk to help and save our lives, regardless of their or our citizenship; their duty to care and contribute to the wellbeing of their patients is what comes first and I commend their hard work.

However, with fees for indefinite leave to remain at almost £2,400 and citizenship applications another £1,330, the process of becoming a citizen for many of our NHS workers is a costly and challenging one. As the hon. Member for Edinburgh West (Christine Jardine) said last week during an intervention in the Health and Care Bill debate, if we offered indefinite leave to remain to all of our NHS workers who are here on renewable visas, I feel confident that the gap in the NHS workforce would almost certainly close and, simultaneously, we would be recognising their hard work and sacrifices. The over 160,000 NHS staff from over 200 different countries who stated that they were of non-British nationality account for nearly 15% of all NHS staff for whom a nationality is known. It is undeniable that we would be in dire straits without them. Should we not therefore consider changing our current citizenship process to one that does not deter NHS workers through high costs and time-consuming processes, one that does not leave them in debt and in poverty but instead rewards their commitment to their communities?

I welcome the many steps that the Bill takes to improve the UK’s asylum and immigration system to make it one that is based on needs, and I welcome the new NHS visa that has been announced by the Home Office. Given that the Government themselves have already recognised the importance of creating a bespoke route for incoming NHS workers, I feel it is also our duty to focus on those who have already given so much to our country, by creating a new route to citizenship for existing NHS workers.

One of the objections to this could be that once indefinite leave to remain or citizenship had been conferred, the NHS worker would be free to go to the private sector or to a different role altogether, having benefited from the fee abolition. That could be easily resolved. Companies do this all the time, paying fees for qualifications for individuals that would become repayable if that individual then left the company’s service. There does not seem to be any reasonable reason why a similar scheme could not be put in place to make this workable.

As I have said before, in this place and in Westminster Hall, it is time to abolish the fees for indefinite leave to remain and for citizenship for those who work in our NHS, so that those who spend time helping and treating us can finally feel like they belong and are welcomed in our country with open arms.

--- Later in debate ---

[James Sunderland (Bracknell) (Con)]

Since I was elected to Parliament, one of the issues that I have been left in no doubt about whatsoever by many of my constituents is that the UK must take back control of its borders and deal with the tide of illegal immigration. We have all seen the sad and appalling scenes—images of asylum seekers making the perilous journey across the channel in small boats, on dangerous tides. Frankly, it is suicide, and it needs to stop, for all the reasons that have been debated today. The UK has shown itself over many years to be more than generous and hospitable, but there cannot be an indefinite blank cheque for those who come here illegally.

The Bill, as we know, has three main objectives. The first is to increase the fairness of the system—I emphasise the phrase “fairness of the system”—to better protect and support those in need of asylum. The Bill deters illegal entry into the United Kingdom, thereby breaking the business model of people-smuggling networks and protecting the lives of those they wilfully endanger. The Bill also enables those with no right to be in the UK to be removed more easily. The UK’s legal immigration system is being reformed by the ending of free movement and the introduction of a new points-based immigration system. In my view, this Bill is intended to tackle illegal migration and asylum seekers and to control the UK borders, and it fulfils the manifesto promise that was made in 2019.

Let me set out some of the facts. The number of asylum seeker cases is growing. We must assess the current system and innovate to create a fairer and more efficient, modern system. There were 29,500 asylum applications in 2020 alone, and many more continue to arrive. Contrary to popular perception, the UK will continue to resettle genuine refugees directly from regions of conflict and instability. That has protected over 25,000 people in the last six years, more than any other European country.

The proposals in the Bill will rightly create a differentiated approach. How someone arrives in the UK will impact the type of status they are granted in the UK if their asylum claim is successful. Ministers rightly argue that that approach will discourage irregular entry into the UK, such as entry across the channel via small boats, as we have discussed, which, again, increased significantly in 2020.

[Stuart C. McDonald]

Even on its own terms, that will not work. There is not a shred of evidence in the world that tinkering with the asylum system discourages people from coming to claim asylum. In fact, parts of the Bill are already in force, including the six-month palming off of complaints, and of course we already have Napier and Penally barracks, yet still the number of crossings continues to rise. It just will not work. People will still come. They will not be put off coming to Britain; they will just be put off claiming asylum because of how bloody awful this Government are making the system.

[James Sunderland]

I am pretty clear that the Bill is designed to do exactly what I said it is designed to do. What we have to do is disincentivise the ongoing passage across the channel. We have to break the cycle. If asylum seekers know that entering the UK illegally via that method is not going to result in a successful claim for asylum, then it may stop. That will also discourage those gangs from wilfully imposing their own selfishness on these vulnerable people.

Let me move on to immigration enforcement. The Australian experience has shown what can be done legally and fairly with state intervention. The Bill will provide our border force with additional powers to search unaccompanied containers located in ports for the presence of illegal migrants. It will seize and dispose of vessels intercepted and encountered, including disposal through donation to charity if appropriate, and it will stop and divert vessels suspected of carrying illegal migrants to the UK, and, subject to the agreement of the relevant country, such as France, return them to where their sea journey to the UK began. Almost all these migrants have passed through many other countries, which should by rights have offered them asylum, to get to the UK, which, clearly, people perceive to be a soft touch, and that has to end.

Currently, there are more than 109,000 asylum cases in the system, 52,000 of which were awaiting an initial decision at the end of 2020. Around 5,500 have an asylum appeal outstanding and approximately 41,000 cases are subject to removal action. These figures are completely outrageous and point not to any failure by the Home Office, but to the sheer numbers of people who continue to seek the UK as a soft touch. Doing nothing is no longer an option. I therefore welcome the measures outlined in the Bill, and I am clear that our current asylum system is unequivocally in need of reform.

In conclusion, this is not a moral or an emotional judgment, but a pragmatic one. Although I urge the Government to ensure that implementation is as humane, kind and hospitable as possible, as we have seen for many years, it is time for change and I shall be voting this Bill through tonight.

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[Richard Burgon]

It appears that there is a twitching of a conscience one Bench back from the Tory Front Bench. If the hon. Gentleman has a conscience on these matters, if he cares about the people he purports to care about from Syria or from anywhere else, I would urge him to vote against the Bill, because this reactionary Bill should be killed off today.

[Stuart C. McDonald]

To bring things a little more up to date, if we are looking at the statistics about who is in these boats crossing the channel, the nationalities are Iranian, Iraqi, Syrian, Eritrean and Sudanese. People from almost all those countries have success rates when they claim asylum of about 60% or 80%. The vast majority of people crossing the channel are refugees. Instead of locking them up, let us look at their applications.

[Richard Burgon]

The hon. Gentleman makes an important point and brings some reality to this debate. This reactionary Bill should be killed off today.

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[Shaun Bailey]

My hon. Friend makes a very good point. I have a lot of respect for the hon. Members for Enfield, Southgate (Bambos Charalambous) and for Newport East (Jessica Morden), but, as I say, where are the rest of them? Where are they? We could all ask that question, and my hon. Friend has articulated it in his unique way. [Laughter.] I assure him that that was a compliment.

I sat here last night and listened intently to the contributions on both sides of the House. I was pretty aghast, to be honest, by some of the stuff I heard—particularly the parallels that people tried to draw between the Kindertransport and this Bill. That was abhorrent. There is no way that any conscionable Government would illegalise the saving of people from a regime such as the Nazis. For Opposition Members to use that parallel in a debate shows, quite frankly, that when they have lost the argument, they just throw mud. That is exactly what that analogy—

[Stuart C. McDonald]

Will the hon. Gentleman give way?

[Shaun Bailey]

Not at this point. I will give way to the hon. Gentleman, but I will just make a bit more progress.

I thought that was a disgraceful analogy to make. I also want to draw on a point on the 1951 convention that was articulated very well last night. I agree that we make international agreements and we should abide by those international agreements, but it was interesting to hear in the contributions last night that one of the debates that has had to happen is around how the international community defines “migrant” and “refugee”. We have seen the debate that has been going on, and we heard from my right hon. Friend the Member for Maidenhead (Mrs May) about the conversations she had had with the UN about really drilling down into what that definition meant. By getting the definition right, and through this Bill, we can ensure that we protect those most vulnerable.

Let us just remind ourselves of one thing. We are not trying to turn away refugees and people that need our help. I am sure that my hon. and right hon. Friends who have been lambasted today and yesterday by some of the most disgraceful slurs I could possibly have heard would agree that we uphold our place in the international community to protect the most vulnerable.

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[Stuart C. McDonald]

The most important thing is to have a sense of perspective. Everyone supports safe, legal routes, but even in a good year, pre-covid—I think the figure was about 25,000 last year—the total number of resettlements globally from UN-mandated camps was in the region of 50,000. We are talking about 25 million or 30 million refugees. We would be here for centuries before resettlement provided a complete solution. We will have resettlement but we must also have an asylum system alongside that. All we are asking is for the United Kingdom to offer a relatively small, by European standards, number of asylum seekers a place of sanctuary.

[Anne McLaughlin]

I completely agree, as I always do, with everything that my hon. Friend says.

I ask Conservative Members: just imagine it was you. I talked about a Belarusian MP, but imagine it was you. Imagine that for some reason—lucky us; we do not have to—you ended up in that situation where you had to flee. Is there anything Conservative Members would not do to keep their families safe? If there is anything they would not do to keep their families safe, maybe they should be thinking about their moral code.

Ireland has been through attempts to reform the system. It argued at the time, as Conservative Members do, that its system was a deterrent. Those at the Ministry of Justice in Ireland wanted to build misery into the accommodation system. It was not a train of thought imagined by critics; it was their actual policy. But they realised it was wrong and there is now cross-party consensus that it must stop. They reached that consensus not just because it did not work, but because they have recognised the inhumanity of that system.

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[Bambos Charalambous]

The hon. Member misunderstands me. It is the process of the Bill getting here that has been rushed, not the debate we have had today.

There is also no impact assessment accompanying the Bill. We have no idea how much it will cost or what the overall impact will be.

[Stuart C. McDonald]

The Bill has seven placeholder clauses—something I have never seen before—so the House will not see what the Government are up to until the Committee stage where most Members will not take part.

[Bambos Charalambous]

The hon. Member makes an excellent point.

Less than a week ago, we had hon. Members rightly berating the Minister for Care, screaming blue murder at her failure to produce an impact assessment for the health and social care regulations. Where are those howls today? Not a word. I dare not ask about the legal advice that was sought to formulate this Bill, but if there was an Olympic event for legal gymnastics, it would definitely win a gold medal.

The Bill is riddled with holes. It is fatally flawed and it will not work. It will not work because of the glaring omission of the lack of bilateral agreements with France and other EU countries. Conservative Members can huff and puff all they like, but it should begin to dawn on them that without any such agreements the Bill will not work and it will not stop any channel crossings.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I thank all Members who have spoken in this extremely thorough two-day debate.

The public expect this House to protect our borders, they expect us to combat the dinghies crossing the English channel and they expect us to remove those with no right to be here. This Bill will deliver those people’s priorities. The Labour MPs who say those priorities are somehow racist are not only wrong, but they are insulting our fellow citizens who rightly want proper border control. The Bill is fair but firm: fair to those in genuine need, but firm towards those seeking to abuse the system. Let me reiterate the Government’s commitment to supporting those in genuine need. Of course, we cannot help all 80 million displaced people around the world who may wish to come here, but we will play our part.

First, we are continuing our world-leading resettlement programme. We are working with the UNHCR. We resettle the world’s most vulnerable. We have resettled 25,000 people in the last six years—more than any other European country—half of them children. We will be strengthening that arrangement by immediately granting indefinite leave to remain to those entering via the resettlement programme. I am concerned about the poor integration outcomes in the resettlement scheme—fewer than 5% are in work after a year—so we are going to do more on integration. We are also going to draw in a wider range of persecuted people, recognising, for example, that the most persecuted group globally are persecuted Christians, whom we should make an effort to look after as well.

[Stuart C. McDonald]

The Minister talks of what the public expect, but one thing I do not think they would expect is for this Government to create a criminal offence that would see a Uyghur fleeing genocide in China, a Syrian fleeing war crimes or indeed a persecuted Christian who gets here without a visa subject, potentially, to a four-year prison sentence under this Bill.

[Chris Philp]

The hon. Gentleman mentions Syrians fleeing war crimes. Our resettlement programme has principally focused on Syrians fleeing war crimes, who, via the UNHCR working in the region, have been able, safely and legally, to come to this country in greater numbers than are seen in any other European resettlement programme. That is quicker, safer and easier than illegally crossing the channel in a dinghy. We are not just running Europe’s resettlement programme; as we speak, we are bringing locally engaged staff from Afghanistan to the UK, and we have opened up a route for British nationals overseas from Hong Kong to come here, escaping the oppressive regime of the Chinese Communist party. In addition, 29,000 people have come in the past six years as part of refugees family reunions. So when the Opposition claim that we are not offering safe and legal routes, that is simply not true.

The Scottish nationalists have been saying that Scotland would like to do more. I am very disappointed, as I said in my intervention, when I was able to get in, that out of the 32 local authorities in Scotland only one, Glasgow, takes dispersed asylum seekers. If Scotland wants to do more, they have the opportunity to do so. Moreover, when it comes to taking unaccompanied asylum seeking children under the national transfer scheme, Scotland took only a very small handful of the 600 or so who were transferred last year. Scottish National party Members cannot talk about money, because those children have more than £50,000 a year of funding going with them. There are children right now in Dover who need to be looked after, so I call on the Scottish Government to put action behind their words and take some of those children on—tonight. They do not need independence to do that; they can do it now.

Let me be clear: we will always play our part for those in genuine need, but we should choose who deserves our help. Illegal immigration undermines that choice. Instead of the UK being able to choose the children and families most in need, illegal immigration instead allows those who pay people smugglers or who are strong to push their way to the front of the queue.

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[Chris Philp]

I thank my right hon. Friend for his very timely intervention and I agree with what he says. This Bill contains provisions such that people arriving by small boat and other illegal means will be liable to prosecution and a four-year jail term, and people smugglers will face a life sentence. This Bill also gives Border Force the powers it needs to make interceptions at sea. Let me be clear: nothing in this Bill would have made the Kindertransport from the 1930s illegal. That was an authorised and organised programme that would be perfectly legal. Indeed it is rather analogous to the safe and legal route we are at this very moment offering locally engaged staff from Afghanistan. Let me also reassure the House, and in particular my hon. Friend the Member for Folkestone and Hythe (Damian Collins), that there is no intention in this Bill to criminalise bona fide, genuine rescue operations by the RNLI.

Let me also be clear that nothing in this Bill infringes our international obligations. Opposition Members should study article 31 of the refugee convention, which makes it clear that it is permitted to impose penalties where someone has not come “directly” from a place of danger and where they did not have a reasonable opportunity to claim asylum somewhere else.[Official Report, 22 July 2021, Vol. 699, c. 10MC.] The people coming from France are not coming directly from a place of danger, as required by article 31, and they did have a reasonable chance to claim asylum in France. These measures are wholly consistent with our international obligations.

[Stuart C. McDonald]

rose—

[Chris Philp]

I must finish soon. I apologise.

My right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) asked about the legal system, which also needs reform as it is open to abuse. People make repeated human rights claims to asylum and modern slavery claims, which are often strung out over many years in an effort to avoid removal. Very often those claims are later found to be without merit. For example, in 2017, 83% of the last-minute claims that were raised in detention to frustrate removal were later found to be without merit. I have seen terrible examples of murderers and rapists making last-minute claims, without merit, to avoid deportation. It is not just me saying that. Let me quote what the Lord Chief Justice, Lord Burnett of Maldon, said in a judgment last October:

“Late claims raised shortly before…removal have been endemic, many fanciful or entirely false…It is a matter of regret that a minority of lawyers have lent their professional…support to vexatious representations and abusive late legal challenges.”

In those remarks, the Lord Chief Justice of England and Wales is saying that change is needed.

The Bill also contains measures on age assessment. We are the only European country not to use scientific age assessment. Recent evaluations in Kent concerning 92 people claiming to be children later found that half were not. There are obvious and serious safeguarding issues if men who are 23 years old, for example, successfully pretend to be under 18 and get housed or educated with 16-year-old girls. We cannot tolerate that.

Nationality and Borders Bill

Stuart C McDonald Excerpts

2nd reading
Monday 19th July 2021 Commons Chamber

[Priti Patel]

I will shortly, but I am going to make a bit of progress. It is important to reflect on the fact that when it comes to reforming the immigration system and tackling many of these complex issues, there is no one-size-fits-all approach. I think it is important for all right hon. and hon. Members to recognise that we would be kidding ourselves if we thought there was a silver bullet and said, “There is one thing that could be done.” There are a range of cumulative issues that this legislation seeks to address.

When we launched our new plan for immigration, Labour effectively spoke out about many of the measures in the Bill and in the new plan for immigration. I think it is fair to say that the Opposition seem to think that the British people have the wrong priorities when it comes to tackling issues of migration and illegal entry.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

rose—

[Priti Patel]

I will give way shortly, but I want to make progress first. The Opposition argue that it is wrong to deport murderers, rapists and dangerous criminals—[Interruption.] It is a fact. They think that border controls are wrong. They think that ending free movement is wrong. Well, Labour Members can sigh and shake their heads, but the fact of the matter is that over the last 12 months, when it has come to ending free movement and having discussions about reforming immigration and our points-based system, they seem to think that open borders are the answer. They obviously do not support our new plan for immigration. They do not like the people’s priorities when it comes to these issues, yet they have no plan.

--- Later in debate ---

[Jim Shannon (Strangford) (DUP)]

rose—

[Stuart C. McDonald]

Will the Secretary of State give way?

[Priti Patel]

No, I will not.

For years, people have risked their lives to enter our country, such as those crossing the channel in dangerous boats to claim asylum. [Interruption.] I have been generous in giving way and I will give way again shortly, but I would like to make progress.

If there were simple and straightforward solutions to many of these challenges—my right hon. Friend the Member for Maidenhead (Mrs May) has touched on this—issues such as illegal migration to the UK would have been resolved by now, but illegal entry to the UK and the subsequent claims of asylum have become complex because of the nature of cases that arise. But I am absolutely clear that no one should seek to put their life, or the lives of their family, in the hands of criminals to enter the UK illegally, and I would like to think that that is an important point that this House can unite on.

The Bill will finally address the issues that over a long period of time, cumulatively, have resulted in the broken system that we have now. It is a system that is being abused, allowing criminals to put the lives of the vulnerable at risk, and it is right that we do everything possible and find measures to fix this and ensure that a fair asylum system provides a safe haven to those fleeing persecution, oppression and tyranny.

--- Later in debate ---

[Priti Patel]

I thank the hon. Gentleman for his question. I will shortly address some of these wider issues, but obviously, along with our work on safe and legal routes, we have to provide the right pathways and a secure environment for children to rebuild their lives. That is at the heart of our work in being humane, compassionate and fair.

Our system is overwhelmed, and it is a strong point of reflection that, because of the trends we have been seeing in organised immigration crime and gangs that are effectively exploiting vulnerable individuals, we now need to be able to provide support and to understand where those needs are coming from. Genuine people are being elbowed aside by those who are paying traffickers to come to our country.

[Stuart C. McDonald]

rose—

[Priti Patel]

I will not give way.

As a nation, we have always stepped up to support refugees in need, and rightly so. This is a great source of national pride for our country, and of course that will never change.

--- Later in debate ---

[Priti Patel]

My hon. Friend is right, and that is where the system becomes conflated and there is no separation between the two. He is absolutely right to make that point.

[Stuart C. McDonald]

rose—

[Priti Patel]

I will not give way. [Interruption.] I have been very generous in taking interventions, and I would like to make some progress.

It is important to reflect on the fact that, when it comes to anyone claiming asylum in the UK—this is established in long-standing legislation—we have a statutory duty in relation to accommodation, subsistence, cash and transportation. The system, as I have already mentioned to the hon. Member for Bermondsey and Old Southwark (Neil Coyle), is currently costing the taxpayer more than £1 billion a year. It is right that we look to reform the system, and not just to make it efficient but to ensure that we do the right thing. The very principle of seeking refuge has clearly been undermined by those who are paying to travel through safe countries and then claiming asylum in the UK. As my hon. Friend the Member for North East Bedfordshire (Richard Fuller) said, many of those are economic migrants and not just those fleeing persecution. People should be claiming asylum in the first safe country that they reach and not using the UK as a destination of choice. That is why our intention is to work—

--- Later in debate ---

[Priti Patel]

No, I will not.

[Stuart C. McDonald]

Will the Home Secretary give way?

--- Later in debate ---

[Nick Thomas-Symonds (Torfaen) (Lab)]

I beg to move,

That this House declines to give a Second Reading to the Nationality and Borders Bill, notwithstanding the need to address the increasing number of dangerous boat crossings in the English Channel, because the Bill breaches the 1951 Refugee Convention, does not address the Government’s failure since 2010 to competently process asylum applications which has resulted in a backlog of cases and increased costs to the taxpayer, fails to deal with the serious and organised crime groups who are profiteering from human trafficking and modern slavery, does not address the failure to replace the Dublin III regulations to return refugees to safe countries, fails to re-establish safe routes and help unaccompanied child refugees, and fails to deliver a workable agreement with France to address the issue of boat crossings.

We on these Benches will be opposing this Bill. It is a Bill that is wrong and will make the dangerous situation in the English channel worse. We on these Benches do not want to see people risking their lives making a sea crossing in some of the busiest shipping lanes in the world, often in boats that are unfit for purpose, but the measures proposed will not address that.

By judging claims on the type of journey people make, Ministers will create

“a discriminatory two-tiered approach to asylum”.

Those are not my words but the words of the United Nations Refugee Agency. That must be our starting point today. Any proposals—I will come to some in a moment—to address this profoundly serious issue must be compliant with the 1951 convention relating to the status of refugees.

We should in this House remember the circumstances in which that convention was created. Drafting began in 1946, after the end of the second world war, as the full horrors perpetrated in that conflict had been brought into public view. It was a noble ideal for nations to work together to prevent such awful things from happening again. Countries came together to ensure that, across the world, we would offer a new protection to those who suffered persecution. Countries would not look the other way when there was systematic persecution in other parts of the world. We all bore a responsibility in our common humanity to help others.

The convention was signed under the post-war Labour Government in July 1951, but the document became one of the foundation stones upon which all post-war British Governments stood—a matter of pride to our country and a sign of the values we stand for around the world. It sent a clear signal that Britain was a force for good and was setting a strong moral example that gave it the authority to argue that other countries take responsibility as well. It is to this Government’s shame that they stand outside that fine British tradition. Seventy years after the 1951 convention was signed, this Government have decided to renege on its commitments. [Interruption.] I hear what the hon. Member for Croydon South (Chris Philp), the Minister for immigration compliance, says, but do not take my word for it. This is what the United Nations High Commissioner for Refugees says about the proposals:

“The international refugee protection system, underpinned by the 1951 Convention, has withstood the test of time and it remains a collective responsibility to uphold and safeguard it. If States, like the UK, that receive a comparatively small fraction of the world’s asylum-seekers and refugees appear poised to renege on their commitments, the system is weakened globally and the role and influence of the UK would be severely impacted. UNHCR is concerned that the Plan, if implemented as it stands, will undermine the 1951 Convention and international protection system, not just in the UK, but globally.”

If the Minister doubts that, this is what the United Nations Refugee Agency had to say ahead of this Second Reading debate:

“Plans to create a new lower class of refugees are discriminatory, breach commitments in the Refugee Convention and should be dropped”.

They are breaching commitments in the refugee convention that a past British Government who truly believed in a global Britain had signed.

In fact, the UN Refugee Agency said the two-tier approach is:

“a recipe for human suffering, social problems, inefficiency and greater cost to the taxpayer.”

Frankly, it is a dangerous and ill-thought-out proposal with profound consequences.

[Stuart C. McDonald]

Given that there seems to be unanimity that the Bill should be interpreted in the light of the refugee convention and apparently the Government intention is to follow the refugee convention, surely there could be no possible objection to an interpretation clause in the Bill. We can all work together to put that in there to ensure that all the provisions follow refugee case law and the refugee convention as it is.

[Nick Thomas-Symonds]

The hon. Gentleman is absolutely right. In reality, this is a Bill based on an immigration plan that is harmful. Just listen to the story of Waheed Arian, now an NHS doctor who escaped the Taliban in Afghanistan as a child. These are his words:

“When I arrived alone in London, a bewildered 15-year-old with nothing to my name but $100 and my hopes and dreams, I had no idea I’d end up two decades later working as an NHS doctor fighting Covid-19 on the frontline in A&E. As a former child refugee from Afghanistan, under the UK government’s so-called New Plan for Immigration, it is doubtful I would be here at all.”

I repeat:

“It is doubtful I would be here at all.”

We also know the serious concerns that have been raised by campaigners across the LGBT+ community about the Bill. The way it is so badly drafted risks us turning our back on people fleeing persecution. This is particularly chilling when we know the scale of the dangers faced by so many LGBT+ people across the world, including state-sanctioned persecution. The plan is wrong and it is wrong-headed.

--- Later in debate ---

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I am afraid that I regard this as a dreadful Bill, and the Refugee Council was absolutely right to characterise it as the “anti-refugee” Bill. There are eight welcome clauses on nationality, but thereafter what we see risks trampling international convention after international convention, and vulnerable children, stateless children and victims of trafficking will all pay a penalty. Nowhere is the retreat from international law, international co-operation and basic human decency more apparent than in the absolute trashing of the refugee convention as it approaches its 70th birthday. A convention that has saved and protected countless millions of people is being undermined by one of its first champion countries.

Refugees and asylum seekers—we have skirted over this so far—will be criminalised, stripped of their rights and offshored. That is true whether they are Uyghurs fleeing atrocities in China, Syrians fleeing war crimes or persecuted Christians seeking refuge here. The Bill does absolutely nothing to stop them getting in boats in France; what it does is punish them when they get here. That is morally reprehensible.

It is not just the Bill’s awful ends that justifies the Scottish National party refusing it a Second Reading and stopping it in its tracks but the means by which it seeks to pursue those ends. We are talking about a unilateral rewriting or reinterpretation of our obligations under international law. That is, once more, a hugely dangerous precedent to set. It will make our international partners query whether this country gives two hoots about international law and keeping its word.

Secondly, to put it directly, what we have here is a deliberate policy decision to inflict harm on people seeking sanctuary by criminalising them, splitting them from their family, forcing them into destitution, putting them in legal limbo and offshoring them. That is not just ineffective and dangerous, but morally outrageous.

Not only is the Bill the opposite of the right solution, but it wrongly identifies the problem that needs solving. The problem in the asylum system is simply down to the incompetent management of it by this Home Office and this Government. We live in a world in which 80 million people have been forcibly displaced, and 30 million of them are outside their country of origin and are therefore refugees. Four million of them are asylum seekers pursuing recognition as refugees. Some 86% of them are hosted in developing countries, 73% in neighbouring countries.

What we are asking of wealthy western countries barely scratches the surface of their share of responsibility. In European terms, what has been asked of the UK is very little at all. I applaud and support everything that has been achieved through the Syrian vulnerable persons resettlement scheme and other resettlement programmes, but none of it justifies what the Government propose today.

The Government regularly trot out that they have resettled more Syrian refugees than other European countries. In absolute terms that is true but, per head of population, neighbours such as Norway, Sweden, the Netherlands, Switzerland, Finland and Ireland have all resettled more. Yes, although the UK resettled a few thousand more Syrians than Germany and France, those two countries have offered sanctuary to more Syrians through their asylum systems by massive margins.

In 2019, the UK received around five applications for asylum per 10,000 people, compared with the European average of 14, putting the UK 17th in the table of member states, just behind Italy, Finland and Ireland. Similarly, the UK granted roughly two applications per 10,000 people, compared with the European average of 13, putting it 16th in the table. Yes, although by international standards the UK has a decent history of offering protection, let us not pretend that it has been bearing an unbearable burden that entitles it to rip up the refugee convention and start trying to pass refugees back up the chain to those that already do much more.

The real problem, as we have heard, is that the Home Office’s handling of asylum cases is abysmal. We have heard the extraordinary figures on how long it is taking, and it is not just the length of time it takes to make a decision but the number of decisions that it gets wrong. We are at record levels of successful appeals—it is almost 50:50.

It is not just statistics that cause grave concern but the regular stories of life inside the Home Office: impossible targets, a culture of fear, ill-treatment of staff, high staff turnover, a shortage of skilled asylum caseworkers and administrative chaos. Asylum decision making is a matter of life and death, and it seems clear to me that it should no longer be entrusted to the Home Office, a Department that has again shown itself to be unfit for that purpose. Such decisions should be removed from political interference and entrusted to an independent body, as they are in Canada. That would be a sensible approach.

[Chris Philp]

What about democratic oversight?

[Stuart C. McDonald]

Absolutely, as there is in Canada.

Members from all parties in this House, sitting on the Front Benches and the Back Benches, regularly speak up for some of the most oppressed people on the planet. We have seen brave interventions on Uyghurs fleeing atrocities in China. The plight of Syrians fleeing a decade-long conflict has been championed, and Christians around the world, including Christian converts, have numerous ambassadors in this Chamber, but we have hardly come to terms with what this Bill means for them.

This Bill prompts a question: why speak up against persecution abroad only to say, when they come knocking at our door seeking shelter, “You are not our responsibility. Go somewhere else”? France seems to be the popular answer among Conservative Members. What if France and the rest of Europe say the same thing? We would end up with the system of international protection of refugees breaking down, as the UNHCR points out.

If the Bill passes, that is exactly what it means. Prior to the Bill, we would have sheltered people fleeing persecution. The Bill expressly seeks to discourage them from coming here by making life miserable for those who do. Today, if a Uyghur, Syrian or persecuted Christian convert arrives in the UK to seek asylum, life will be far from plain sailing, precisely because of the outrageous waiting times, the dreadful asylum accommodation, the prohibition on work and the dreadful levels of financial support. They get here and, thanks to our amazing non-governmental organisations and charities, they slowly start to rebuild their lives.

But next year, if this Bill passes, for many of those Uyghurs, Syrians or persecuted Christian converts claiming asylum here, things will be infinitely bleaker, and that will be a deliberate policy choice of this Parliament. Arriving next year, the Uyghur, Syrian or persecuted Christian will be much more likely to be criminalised, regardless of arguments about whether they had come here directly or not.

Section 24 of the Immigration Act 1971 already punishes illegal entry by those without leave to enter. Sensibly, however, those who claim asylum on arrival are granted immigration bail, which does not count officially as entry. Clause 37 of the Bill changes all that. It would essentially criminalise the very act of arriving to claim asylum, because, as the explanatory notes acknowledge, the majority of asylum seekers will not have the ability to secure entry clearance. Despite the Home Secretary’s protestations last week, as the right hon. Member for Maidenhead (Mrs May) said, this criminal offence will apply to Uyghurs, Syrians, persecuted Christian converts and anybody else, and the penalty is up to four years in prison.

The next problem for the Uyghur, Syrian or persecuted Christian convert is that although they are absolutely obviously in need of international protection, this Government, in their wisdom, are not even going to consider their claim for protection for six months. The Government are trying to pretend that that is some sort of replication of the Dublin regulations that the UK was party to prior to Brexit, but of course it is not, because, as we have heard, there are no returns agreements with any remotely relevant country and little indication at this stage that there will be any time soon. Any such returns agreement would have to be carefully circumscribed so as to be consistent with the convention and to have carefully considered the circumstances of the individual, including any ties to the UK, such as family members here.

By contrast, the powers in the Bill will allow the Home Secretary to remove a Uyghur, persecuted Christian or Syrian to any country at all, even if there is no connection, and with very little by way of restriction. Today, the Uyghur, Syrian or persecuted Christian faces outrageous delays in asylum protection systems, and the Bill simply adds another six months.

Where will the Uyghur, Syrian or persecuted Christian be during that time—during that limbo—while the Home Office goes through the futile motions of seeking to remove them? Just now, for those who seek asylum we have a struggling, privatised, over-concentrated system of dispersed asylum accommodation. Numerous Committees have told the Home Office how it could be improved, only to be ignored. Under this Bill and this plan, that is not where the Home Secretary envisages the Syrian, the Uyghur or the persecuted Christian going. Instead, the grim future for these refugees appears under this Bill and this plan to be the disgraceful, disreputable open prison-like conditions that we have already witnessed at Napier or Penally.

Even worse, as we have heard, they may face being removed to an offshore centre to have their claim resolved. Here is the real asylum shopping: the British Government grubbing around to find a country to palm off their responsibilities on to. Let us think of the outrages and the lack of accountability we have seen in relation to immigration detention and the Napier open prison—the abuses that have been meted out there and the harm done. As we know from the Australian experiment, that will be as nothing compared to the hell that is likely to await at an offshore asylum facility. How on earth have we gone from having a Parliament where there was widespread support for time-limiting and restricting the use of detention, to imposing a form of it that is infinitely worse?

Having endured their limbo period, these three groups of refugees will finally have their case assessed by the Home Office. But instead of working to improve asylum decision making, the Bill seeks to make it harder for them to prove their case. It seeks to alter the long-established test set out in the refugee convention that the standard of proof required is a lower, but far from negligible, standard of real risk. That standard is clearly justified by the possible consequences of getting decisions wrong and the huge challenges of proving circumstances that happened thousands of miles away in a country the person has fled.

The Bill seeks to muddy the waters by applying a higher legal threshold. The claimant now has to prove, on the balance of probabilities, that they do belong to one of the protected convention groups and that they fear persecution based on that characteristic. That not only undermines the cautious approach in the convention, justified by the dangers that exist for asylum seekers, but pays no regard to just how difficult it is to prove events that happened in faraway countries.

In addition, by having two different standards of evidence in the same proceedings, it makes life harder for already struggling caseworkers. The judge or decision maker may be certain that the proselytising Christian convert will face the death penalty or torture on return, but now the “real possibility” that the claimant is such a proselytising Christian convert is not enough. If the judge is only 49% satisfied that the person is a proselytising Christian convert, the claim is going to be rejected, even though the risk of torture or death is absolutely certain if the decision maker has got that assessment wrong. I find that deeply troubling, and it is clearly inconsistent with the refugee convention.

Let us imagine that the persecuted Christian, the Syrian and the Uyghur have survived their limbo period and made it through the asylum system, and the Home Office refusal of their application has been overturned on appeal. Unbelievably, the harms inflicted on them by the Bill have barely started. On the contrary, the repugnant programme of disincentives is ramped up further, even after they navigate that system. Because they have stopped temporarily in a European country, they are to be treated as a second-class refugee. Regardless of what any Minister says, that is absolutely contrary to the refugee convention and, more importantly, it is simply disgraceful. It is not just nasty, but sickening—

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Does my hon. Friend agree that on many occasions, particularly for those seeking asylum on the basis of their sexuality, those in the LGBT+ community are the most likely to be adversely impacted by this new legislation? Does he agree that more should be done to protect them and ensure that they can come here as a safe haven?

[Stuart C. McDonald]

My hon. Friend makes a good point. There are all sorts of problems with provisions in the Bill that penalise late disclosure of information, which can very often be the case in modern slavery or LGBT cases, or even religious conversion cases.

Having established that these people are refugees—and the Government have had to recognise that—the system should allow them to rebuild their lives after the trauma of their persecution, their journeys and their asylum claim, but instead this Government still want to turn the screw. Instead of the stability and permanent residence refugees were once provided with, today they are given five years’ leave, with a review that is fairly light-touch, before settlement. But this Bill and the Government’s plan propose endless 30-month cycles of review and ongoing attempts to remove. Nobody can rebuild their lives in those circumstances—and I do not know how on earth the Home Office is going to cope with having to revisit every single asylum case every 30 months.

These refugees will not be entitled to public funds unless they are destitute. So if, say, the Christian convert finds some part-time, low-paid work—a big ask, given the language and cultural barriers, the enforced years out of work, and the trauma—there will be no universal credit to cover housing or income shortfalls, and if he or she was able to bring a child, there will be no support for that child. Their refugee family reunion rights will be diminished, according to the plan, meaning that they cannot be joined by a spouse or perhaps a child. The detail is not in the Bill, but that is what the plan suggests and the Bill enables.

That inevitably gives the Christian convert a choice: does the family stay apart or do other family members—often the women and children that the Home Secretary professes to be protecting—then have to follow and make their own dangerous journeys? Without the family, without state support and without stability, the Uyghur, the Syrian and the persecuted Christian convert have no hope of rebuilding their lives. That amounts not to a place of sanctuary, but to a place of punishment—and the Home Office has the audacity to claim that it is in their best interests. This is, in short, an outrageous way to treat refugees, and it is why the Bill is rightly being called the anti-refugee Bill.

There is so much that could be said about the undermining of efforts to support trafficking victims, the total absence from the Bill of protection for children, and the undermining of rights of stateless children. We need to know what the placeholder clauses will give rise to. We do not even have the chance to debate them here on Second Reading, and there are six or seven of them. The whole of the dentistry profession is up in arms at the suggestion that the discredited and unethical dental X-rays system could return as an inaccurate method of assessing age.

[Chris Philp]

Just like in any other European country.

[Stuart C. McDonald]

Well, the dentistry profession and the United Nations High Commissioner for Refugees say that it is not accurate and it is entirely unethical.

The Home Secretary is also making it harder to identify victims of modern slavery and cutting their recovery period to the minimum allowed in international law.

There is so much that should be in the Bill that is not. I mention just one thing: the failure to end the disgracefully painful 10-year route to settlement that many essentially British kids face and the outrageous fees that others are charged for registering their entitlement to British citizenship. When will that finally be done? This is an abysmal and, indeed, shameful Bill. It does not remotely deserve a Second Reading.

--- Later in debate ---

[Sir John Hayes]

Absolutely, it does not, nor is it just to pillory the public and those who speak for them when they argue that we should enforce the law and that migration should be controlled. As a number of hon. Members have said, legal migration has been out of control for some time, and illegal migration, by its very nature, is both unjust and unfair because it breaks the law. It breaches that principle that people who arrive here and pursue legal routes are doing the right thing and that those who do not are simply doing the wrong thing and should be deported. That is what the public think, and that is what we should say very clearly.

[Stuart C. McDonald]

Is no one on the Conservative Benches remotely concerned that the Bill would see a Uyghur fleeing persecution in China, a Syrian fleeing disastrous war crimes in that country or a persecuted Christian seeking sanctuary on this shore criminalised with an offence that could see them in prison for up to four years, stripped of their family reunion rights, offshored and whatever else? Does nobody on those Benches have any qualms about that whatsoever?

[Sir John Hayes]

Surely the hon. Gentleman must realise that while the principle of granting asylum—of giving sanctuary to people in desperate need—is a noble one, it is being gamed, day after day and month after month, with people travelling through many safe countries before claiming asylum, repeated claims on a whole range of different grounds, and even modern slavery, which we all deplore, being used as a justification to stay here when it is invented. That is to insult—to besmirch—those who are really suffering persecution and who come here in genuine need. It is being gamed, frankly, by a combination of unscrupulous civil rights and human rights activists, and people-traffickers. Although they do not work together in an organised fashion, the combination of the two is damaging public faith in our ability to control our borders. If “take back control” means anything, surely it means taking back control of our sovereign borders.

When the average Briton sees the asylum system being played, it leaves them bewildered, frustrated and angry that we should be taken for such fools. British people do not want to pull up the drawbridge to the world’s needy. What they want is a consistent system that helps the right people in the right way: one that will remove those with no right to stay in Britain just as it protects those we ought to be protecting, not one that grants favour to those who manage to successfully break our laws when they first arrive here.

--- Later in debate ---

[Jack Brereton]

Glasgow is the only official asylum dispersal area in Scotland. Other authorities have the opportunity to come forward as dispersal areas, but SNP-controlled authorities in Scotland have failed to do so. All the pressure has fallen on the minority of authorities that are dispersal areas, while numerous authorities have failed to resettle a single asylum seeker.

The west midlands is currently accommodating 12.26%, an increase on 2019, but all of this is falling on only half of the authorities in the region. In Stoke-on-Trent it is having a significant impact on our overstretched local services.

[Stuart C. McDonald]

Perhaps the hon. Gentleman can join our delegation tomorrow, because what we seek and what the cross-party Home Affairs Committee has advised is that the Home Office properly fund the dispersal system. Every single local authority in Scotland got involved in the refugee resettlement scheme because it was properly funded. I am more than happy to join him in seeking more money for dispersal areas, and we will all then happily sign up to do the job properly.

[Jack Brereton]

What the hon. Gentleman is actually saying is, “We are happy for authorities like Stoke-on-Trent to continue to pull their weight, and we in Scotland will just sit here, not pull our weight and continue not to support asylum seekers in this country.”

--- Later in debate ---

[Richard Fuller]

My right hon. Friend speaks very wise words.

Let me just say to Opposition Members that there is no monopoly on compassion, and that it does not mean saying that the system must apply to everyone in a particular process. Compassion applies to an individual claim. The importance of our system is that we get to that individual and do not lose sight of him or her. In a previous life as a Member of Parliament, I spoke in a debate on another immigration Bill and bemoaned the lack of compassion in our immigration system. It was encouraging to hear the Home Secretary use the word “compassion” so often, and to hear stories of compassion from other Conservative Members, whether they were about how a council looks after the people who are claiming asylum or about people’s feelings about the system. So there is no monopoly on compassion here, and I look forward to working with Opposition Members in finding ways in which we can make it work more deeply in the Bill.

[Stuart C. McDonald]

I have a lot of respect for the hon. Member, particularly for his stance on immigration detention and his campaigning for time limits on it. The Home Secretary talks about compassion, but at the end of the day—I have said this a few times, but people do not seem even to acknowledge it—the Bill would criminalise people it recognises as refugees, strip them of their family reunion rights, strip them of recourse to public funds, limit the amount of leave that they are allowed here and never let them even apply for settlement. That is not remotely compassionate. We are talking about refugees.

[Richard Fuller]

I look forward to the hon. Gentleman talking about specifics, because again there was a bit of broad generalisation there. However, one thing that I will say for SNP Members is that at least they have some ideas, whereas 10 minutes into the shadow Home Secretary’s speech he said, “Let me tell you what the Labour party will do”—and in the rest of his speech he came up with one idea, which was to set a legal target for how quickly asylum claims get processed. Is that it? Is that all the Labour party has to offer? I see that it is, so let us work with the SNP.

Let me tell the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East where I think we can work together. Let us have some compassion for victims of slavery; there is plenty of support on the Conservative Benches for that. Let us have some compassion in how we treat children in the Bill; there is lots of support on both sides of the House for that. Let us have some compassion for how the particular issues of women will be affected by the separation of regular from irregular routes. And let us have some compassion, Minister, by ending indefinite detention once and for all.

Racist Abuse on Social Media

Stuart C McDonald Excerpts

Wednesday 14th July 2021 Commons Chamber

[Mr Speaker]

I now call the SNP spokesperson, Stuart C. McDonald.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]]

The disgusting online racism faced by England players is unfortunately overshadowing a fantastic tournament and a fantastic performance by an England team that has lately attracted admiration and perhaps even a little bit of envy.

Yes, we urgently need stronger online regulation. Content must be taken down faster, and platforms must no longer be allowed to support racist content through shamefully lax rules. We also need a debate on how we identify and punish those peddling this hate. Does the Minister agree that social media regulation is not a silver bullet, that online racism reflects offline racism, and that the Government need to take tackling racism, including structural and institutional racism, more seriously?

Whatever our disagreements, no one could say that the previous Prime Minister did not take tackling racism incredibly seriously. Why do we struggle to say the same about the current Prime Minister? Is it not because on his watch too many in his party have spent more time downplaying racism than tackling it, and more time ridiculing anti-racism campaigners than going after those who actually peddle racism? So yes, we will support action to clamp down on online platforms, but will the Minister support a change of attitude in her party?

[Victoria Atkins]

I thank the hon. Gentleman for his question. I can assure him that had Scotland reached the same dizzy heights as England, I would have been cheering them on with great passion and strength of feeling, so I am pleased that he was able to concede some support for the England team.

As for the hon. Gentleman’s wider question about racism and hate speech across society, he is right to acknowledge that this is a matter for us all to tackle. As a member of the Home Affairs Committee, he will be aware of the work that the Government are doing to tackle hate speech and hate crimes. Of course, “hate crimes” is a very broad term: it includes not only racism but hatred towards disabled people, hatred towards transgender people, and so on. That is why we have asked the Law Commission to look at online crimes to ensure that the position is up to date and meets our expectations.

However, there is a wider message on racism more generally. I have been overwhelmed by the public’s response to those trolls over the weekend—by, for example, the way they responded to what happened to the mural in Withington: how angry they were that some individual had defaced it, and how positive their reaction has been. I think that that is what we need to reflect on and act on. Indeed, that is why I quoted our team’s manager. I think he has summed up where the public are and where we are on this, and I think it is by working together that we will tackle some of these hateful attitudes.

Oral Answers to Questions

Stuart C McDonald Excerpts

Monday 12th July 2021 Commons Chamber

[Chris Philp]

My right hon. Friend is quite right to point out that countries such as France and Germany are obviously safe and that someone genuinely in need of protection or asylum can claim asylum quite properly and easily in such countries rather than attempting dangerous and unnecessary crossings over the English channel. Notwithstanding the CPS’s recent announcement, we can, do and will prosecute people who organise and pilot dangerous boat crossings across the English channel for gain or with the intention of avoiding immigration controls. The Bill, which will receive its Second Reading next week, critically contains provisions that will close some of the loopholes that may have led to the CPS’s recent decision and will make it clear that any attempt to arrive in the United Kingdom from a safe place, such as France, will be rightly treated as a criminal offence.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]]

Each year, about 5,000 or so family members benefit from refugee family reunion rights, 90% of whom are women and children. Depriving refugees of family reunion rights would drive many of those women and children straight into the arms of despicable people smugglers through desperation to be reunited with their loved ones. Why on earth will the Government provide exactly that massive bonus to people smugglers through their nasty anti-refugee Bill?

[Chris Philp]

The hon. Gentleman is misinformed and misguided on this point. There is no plan to weaken or undermine the refugee family reunion provisions that have been used by 29,000 people in the last six years. In addition, in the last five or six years we have been operating Europe’s largest resettlement programme, which has seen an additional 25,000 people come to the UK directly from places from danger. Because we have these effective and well-used safe and legal routes, it is reasonable—indeed, it is our responsibility—to clamp down on the people smugglers who are exploiting migrants and charging them money to make an unnecessary and dangerous journey, often across the English channel from France, which is patently a safe country. No one needs to leave France to claim asylum. It could be quite easily and properly claimed in France.

--- Later in debate ---

[Priti Patel]

My right hon. Friend is absolutely right and I look forward to the discussion that we will have tomorrow. This is a very harrowing case and I have been following the details of it for some time. Although we will discuss the matter tomorrow, my right hon. Friend is speaking to the fact that our asylum system is completely broken. We are seeing too many abuses of the system and vulnerable people being preyed on, and that scuppers our ability to assist those who are fleeing persecution and having the most appalling and abhorrent acts forced on them or taken against them. That is why the Nationality and Borders Bill is so important. I urge all colleagues in the House to work with us and support the Bill as it comes to Second Reading next week.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]]

What we have just heard is errant nonsense. If a Uyghur fleeing torture, a Syrian fleeing war crimes, or a Christian convert escaping death threats, arrives in the UK seeking protection but without a visa, under the Home Secretary’s outrageous anti-refugee Bill, that would make them guilty of an offence punishable by up to four years in prison. How on earth can she defend criminalising torture victims—victims of war crimes, persecuted Christian converts and other refugees—for seeking our protection?

[Priti Patel]

With respect to the hon. Gentleman’s question, I am afraid that he has not read the Bill, or the new plan for immigration, or followed the debate and the discussion. I have been absolutely clear that we will support those individuals who, as he says, are fleeing persecution and torture. It is our objective as a Government to support those individuals, but not those who come to our country by paying money to illegal people traffickers and who could have claimed asylum in many of the EU countries through which they have travelled. I am sorry that he fails to realise that flagrant abuses are taking place through the use of people smugglers and people traffickers, and that individuals could claim asylum in other countries, but are simply choosing not to do so.