Committee (2nd Day)
Relevant documents: 7th and 9th Reports from the Joint Committee on Human Rights and 11th Report from the Constitution Committee
34: After Clause 10, insert the following new Clause—
“Acquisition of British citizenship by birth or adoption: comprehensive sickness insurance
(1) The European Union (Withdrawal Agreement) Act 2020 is amended as follows.(2) After section 15, insert—15A Comprehensive sickness insurance(1) For the purposes of any decision taken by a public authority under this Part after commencement of this section, a person is to be treated as having met a requirement to have held comprehensive sickness insurance, whenever they—(a) had access to the NHS in practice, or(b) held a comprehensive sickness insurance policy.(2) This section applies in particular to any decisions taken under residence scheme immigration rules.”(3) The British Nationality Act 1981 is amended as follows.(4) After section 1(3A) insert—“(3B) A person born in the United Kingdom after commencement who is not a British citizen is entitled, on application, to register as a British citizen if the person’s father or mother would have been settled in the United Kingdom at the time of the person’s birth, if Assumption A had applied.(3C) Assumption A is that, in assessing whether the person’s father or mother met a requirement to have held comprehensive sickness insurance, this is to be regarded as having been satisfied whenever they—(a) had access to the NHS in practice, or(b) held a comprehensive sickness insurance policy.(3D) Registration under subsection (3B) is free of charge.”(5) After section 50A insert—50B ExceptionsNotwithstanding any provision of section 50A, for the purposes of an application for naturalisation or registration made under this Act, a person—(a) is not to be treated as having been in the United Kingdom in breach of the immigration laws during a period of time that has been counted as part of a continuous qualifying period in a grant of leave to that person under Appendix EU of the Immigration Rules, and(b) is not to be treated as not being of good character on account of a failure to hold comprehensive sickness insurance during some period of residence in the UK.””Member’s explanatory statement
This new Clause provides that a person seeking to naturalise as a British citizen, seeking to exercise family reunion rights as a naturalised British citizen, or seeking to have their UK-born children recognised as British at birth, need not have had comprehensive sickness insurance prior to naturalising or prior to the birth of their child.
My Lords, I hope not to have to detain the Committee for too long on this admittedly complicated subject of the anomalous historical legacy of comprehensive sickness insurance—hereafter CSI—because I am hoping that the Minister will spring up, interrupt me and pledge that the Home Office will resolve all the left-over problems faced by some EU citizens today. She was kind enough to meet me virtually last week, and I detected a degree of thoughtfulness in her department on the subject. I cannot yet put it higher than that, but I am hopeful.
Attentive listeners might recall that some of us— especially, perhaps, I—banged on about the obscure issue of CSI at various points in the debates on EU withdrawal and, in particular, on the UK’s EU settlement scheme. It is a long and, in my view, sorry history. I will recap as briefly as I can: in the EU citizens’ rights directive of nearly 20 years ago—which I worked on as a Member of the European Parliament, hence my long-standing interest—so-called free movers were required to have comprehensive sickness insurance; that was the term used. On the continent, health systems are often covered by state insurance systems. In the UK, we have the NHS or private health insurance. Although of course we have national insurance, people do not think of the NHS as an insured scheme. So there has been a long-running problem of EU citizens in Britain who are not employed, such as students, the self-employed and homemakers, being expected—although, crucially, not usually told—to have private insurance. This was a matter of legal dispute in Brussels, which rumbled on, and I do not think it ever got resolved.
Fast forward to Brexit and the acute issue of whether those lacking private health insurance were legally resident in the UK and could seek settled status under the withdrawal agreement. Fortunately, the UK Government wisely cut through that residual red tape and said, in an admirably pragmatic decision, that they would let everyone get settled status. However, often unbeknownst to individuals, they fell into one of two groups: the true cohort and the extra cohort. The significance of this distinction arises only—indeed only becomes known —when a settled person seeks to register a child’s birth, to naturalise themselves as British or to bring a family member to join them in this country. Then they face a veritable series of snakes and ladders, because any historical gap in CSI—private insurance—may make them slide down into a pit of reptilian problems. Only when they seek to register a child, bring in a spouse or become a British citizen might they be told: “Aha! Your historic lack of CSI is a bar.” Noble Lords will recall that it was not a bar to them getting settled status, but it raises its ugly head at this later stage. At the risk of mixing my metaphors, it is Kafkaesque.
Certainly, in the case of bids for naturalisation, caseworkers have—but only through guidance—been given discretion to waive this historic need for CSI to meet the lawful residence requirement. On Report in the other place, the Minister, Kevin Foster, said that
“no one has been refused British citizenship purely on the basis of the CSI requirement in free movement regulations.”
The trouble is that if an applicant has to stump up around £1,300, without the certainty of the outcome because of the discretion for the caseworker, that is a gamble—potentially an expensive one.
I am asking the Government to carry through the pragmatic logic whereby they decided to ignore the past lack of CSI for settled status and now to wipe the slate entirely clean for subsequent immigration applications and statuses. On 7 December, Minister Foster told the other place
“we are considering how the issues could be picked up as part of our work on simplification”.
He hoped that MPs would
“be pleased to hear that we are looking closely at that work.”—[Official Report, Commons, 7/12/21; col. 260.]
That was a bit encouraging.
Perhaps the Minister could give us a more solid basis of hope, in relation not just to naturalisation but to the other applications, such as the registration of a baby’s birth and family reunion. I am sure that millions of EU citizens, resident in and contributing to this country, would be immensely grateful for the peace of mind they would thereby secure. Who knows? Their gratitude might rebound on this Government. I hope for good news. I beg to move.
My Lords, I hesitate to follow my noble friend, who is an expert on this issue. I declare an interest as a British citizen seeking a residence permit in Norway, where I have lived with my husband for the last 14 years. I have always had access to the Norwegian national health system. My application for a residence permit—the equivalent of settled status—has been outstanding for over 12 months because of issues with comprehensive health insurance.
I start by thanking the Government for their generous approach to EU and EEA citizens seeking settled status in the UK. The Government have taken the general approach that, if someone has been living here for years and was legally accessing the NHS when the UK was part of the EU, they do not need to have, to have had or acquire comprehensive health insurance, even if—as with me in Norway—they are not working or studying. This goes beyond the Brexit agreement, but is entirely consistent with the principle that EU and EEA citizens living in the UK prior to Brexit should be able to continue to live here on the same terms after Brexit. It is the right thing to do. I am grateful to the Government for taking such an approach. I wish Norway would do the same.
My understanding of this amendment is that it goes a step beyond settled status—where EU and EEA citizens who have qualified for settled status seek to be naturalised as British citizens, to exercise family reunion rights as a naturalised British citizen, or to have their UK-born children recognised as British at birth. Even though they do not have to have comprehensive sickness insurance for settled status, it currently appears that they may have to have it for citizenship purposes. This amendment seeks to rectify that anomaly between settled status and citizenship. I am getting a nod, so that is okay.
What this amendment seeks to achieve follows on logically from the generous and welcome stance of the British Government on settled status in relation to comprehensive sickness insurance. We support the amendment.
My Lords, we support Amendment 34, tabled by the noble Baroness, Lady Ludford. We raised this issue in the Commons and pushed it to a Division in Committee. I will not repeat all the points that the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, have made.
I want to make a few observations. This is an opportunity for the Government to clear up an obscure, largely technical anomaly which is having real-world consequences for a number of people. CSI was not required for any EEA or Swiss citizen to live in the UK and to be able to access the NHS. However, it was not generally communicated that this was an additional requirement. Most people now being impacted by this relatively obscure provision had no idea about it.
I do not believe that this should be controversial; it is a sensible change. There are two reasons for that. First, when the Government designed the EU settlement scheme, they chose not to include CSI as a requirement, so they have already decided that this requirement was not necessary and to waive it entirely. Secondly, the Government openly acknowledge that this is causing problems because they have introduced guidance, as we have heard, for caseworkers that some degree of discretion might be exercised where there are compelling grounds for granting citizenship. The amendment simply but constructively builds on that, rather than leaving it up to a vague discretionary power, the flaws of which have been discussed.
This is a simple, clear change to the law to reflect the reality of the situation that prevails in the UK. It is very much in the spirit of rectifying obscure anomalies and barriers in our nationality law, which the early clauses of the Bill, notwithstanding those that are controversial, attempt to do.
I thank both noble Lords for their comments and, in particular, the noble Baroness, Lady Ludford, for tabling this new clause about comprehensive sickness insurance, or CSI, which, under EU free movement law, was needed by EEA nationals in certain circumstances in order to reside lawfully in the UK. I was most grateful to have the chance to discuss this with the noble Baroness last week, as she said.
The EEA regulations set out the requirements that EEA nationals had to meet if they wished to reside here lawfully as a qualified person exercising free movement rights. Those who were working in the UK, or indeed who were self-employed, did not need CSI to be here lawfully, but students, the self-sufficient and their family members did. That requirement was set out in published guidance.
I note the noble Baroness’s comments about EEA nationals being able to access the NHS. Under UK legislation, all EEA nationals here under free movement had the ability to access state-provided healthcare on the basis of their ordinary residence, but the requirement to hold CSI ensured that the financial burden of providing free state-funded healthcare did not fall on the host member state, as is the clear objective of free movement law. Therefore, having access to the NHS did not equate with the requirement for CSI, although it could include the European health insurance card, otherwise known as the EHIC, issued by the EEA national’s home state.
The first part of this amendment would amend the European Union (Withdrawal Agreement) Act 2020 so that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any requirement for CSI in the residence scheme immigration rules—the rules for the EU settlement scheme in Appendix EU—for an EEA national to obtain status under the scheme.
Consistent with the citizens’ rights agreements and the relevant EU case law, a so-called Lounes dual EEA/British national can currently sponsor relevant family members under the EU settlement scheme where that national was living in the UK in accordance with free movement law, including any requirement for CSI, before they also acquired British citizenship. However, I am pleased to be able to inform the noble Baroness that the Government have decided that, as a matter of fairness, they will amend the Immigration Rules for the EUSS and the EUSS family permit at the next appropriate opportunity to disapply any requirement for a Lounes dual national to have held CSI in order to sponsor applications by relevant family members.
I think that is one of the only times I will get a “hear, hear” over the course of this Bill, so I will milk it for one small second.
This will mean that such family members will in practice be treated in the same way as an EEA national or their family member in applying to the EUSS or for an EUSS family permit. Their eligibility will not be affected by any past lack of CSI on the part of their sponsor.
The second part of this new clause would create a new registration route for children of EEA nationals. A child born in the UK will be a British citizen automatically if their parent is a British citizen or settled in the UK at the time of the birth. The suggested clause would allow a child who did not become British automatically—because their parent did not have CSI and so could not be settled in the UK—to be registered as a British citizen. The noble Baroness has also proposed that such an application should be free of charge. I note her concerns about doing the right thing for this group, but it would not be right to single out EEA nationals in this way. All those coming to the UK are expected to ensure that they meet the requirements for the route or rights on which they rely to enter and remain, including by paying the immigration health surcharge where applicable.
Nationality legislation provides routes to citizenship for children born in the UK who do not become British automatically. Like other nationals, once an EEA parent becomes settled in the UK, they can of course apply for their child to be registered as a British citizen. The EU settlement scheme allows them to be given “settled status” on the basis of five years’ continuous, but not necessarily lawful, residence in the UK.
The third part of this new clause would change the requirements for naturalisation so that a person who needed but did not have CSI could still meet the lawful residence and good character requirements. In the other place, concerns were raised that some EEA nationals did not know that they needed CSI. We introduced guidance for naturalisation caseworkers, which set out when discretion can be exercised over the lawful residence requirement. The legislation allows for discretion to be exercised
“in the special circumstances of any particular case”,
which means that each application needs to be considered on a case-by-case basis.
The current guidance states that it will normally be appropriate to exercise discretion where a person did not meet an additional or implicit condition of stay under EEA regulations—rather than illegal entry or overstaying—and where they can provide sufficient evidence to justify discretion being exercised in their favour. We have been monitoring this and are confident that caseworkers are using the guidance proactively and fairly. I am pleased to say that, to date, I am not aware of anyone having been refused naturalisation solely because they did not have CSI, as the noble Baroness said earlier.
The new clause would change the naturalisation requirement for EEA nationals who did not have CSI and so had not been in the UK lawfully before acquiring settled status. We do not think that we can accept this, as all applicants are required to meet the same requirements for naturalisation in terms of lawful residence, and it would not be right to treat certain nationalities differently.
With that, I hope that the noble Baroness is satisfied with my explanation and will be happy to withdraw her amendment.
My Lords, I do not want to sound churlish at all by asking this question. The “Hear, hears” were probably not as loud as they might have been for Hansard to pick them up; I hope that it does. My question will display my lack of grip of the EU settled status scheme. The Minister said that the Immigration Rules will be changed at the next appropriate opportunity. Am I right in thinking that 29 March is a significant date for those with pre-settled status? As I said, I have a lack of grip of this and an even greater lack of grip in pulling the bits together in my head but, if it is a significant date, then it is a significant question to ask whether the change will be made before 29 March.
I do not have the exact detail on the date. I understand her point about 29 March being a significant date; noble Lords will all be informed in due course of when the changes will come about and I will let the noble Baroness know.
My Lords, just to follow that up, the Minister will understand that I am concerned that some people may fail to qualify because the rules are not changed by that date, so I wonder whether she could come back to us well before then.
I will of course do that.
My Lords, I certainly welcome a great deal of what the Minister had to say, and I thank her for it. I will have to read Hansard just to make sure that I have mastered every detail of her response. This is an incredibly complicated subject; I think I have forgotten almost everything I thought I knew about settled status. It is one of those things that has become a bit of a blur over the last six years. Certainly, she said some very positive things, and was very clear, in particular, about family reunion rights. I was not entirely sure about the registration of a birth. The Minister maintained the need for discretion and the caseworker guidance for naturalisation. I was not really sure why that was necessary.
With the slight caveat that I will want to read in detail what she said on this complex subject, there is, indeed, room for considerable congratulations and gratitude that the Minister has grasped this issue by the horns. I had better stop the metaphor there. She has made progress, and there is cause for considerable rejoicing. On that note, I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
35: After Clause 10, insert the following new Clause—
“European Convention on Nationality
Her Majesty’s Government must within six months of this Act coming into force ratify the European Convention on Nationality 1997.”
My Lords, this might scramble our brains a little less than the last amendment. Amendment 35 would require the Government to ratify the 1997 European Convention on Nationality. This is a Council of Europe treaty, signed, obviously, in 1997, originally by 15 countries. It now has 29 signatories and 21 ratifications. The UK has not followed through on it. In 2002, the then Labour Government said that they planned to ratify it “in due course”, but “due course” has apparently not yet arrived.
The convention sets out the principles to which each country’s nationality laws should conform. The key principles are that everyone has the right to a nationality; statelessness should be avoided; no one should be arbitrarily deprived of his or her nationality; and neither marriage nor the end of a marriage, nor a spouse changing their nationality, should change someone’s nationality. The key part relates to the deprivation of citizenship, preventing states making people stateless unless their citizenship was obtained through fraud, false information or concealment.
The convention sets the bar for deprivation at acts that are seriously prejudicial to the vital interests of the state. This was deliberately mirrored in our legislation in 2002, but with the test being lowered in 2006 to cases where the Home Secretary is satisfied that it is conducive to the public good to order a deprivation. Does the UK believe that, as part of a global community, it would be good to be part of a worldwide group of countries in its approach to nationality? Do we want to be an outlier? I beg to move.
My Lords, I shall be exceptionally brief as we had a number of significant debates on statelessness last week and we are only too aware of the crucial issues that we need to reach today.
As we have heard, the 1997 convention provided a series of general principles relating to nationality, including non-discrimination and governing principles on statelessness. I gently point out to the noble Baroness, Lady Hamwee, that no Government of any complexion have ratified it since 1997. The Labour Government in 2002 was referred to, but no Government since have ratified it either. That is just a general point.
It would be helpful and constructive for the Committee at this stage of the debate, if the Minister could confirm the following points. These are very detailed, so, to be fair, the noble Baroness may wish to write to us. Do the Government have any plans to consider ratifying the treaty or intend to do so in the near future, and is that under consideration? Have the Government made any assessment of the specific elements of the treaty that they may be opposed to and, if so, could the Minister tell us what they are? Lastly, what are the existing provisions in UK law that are currently outside the provisions of that treaty? It would be helpful to have a bit more detail about the convention, where it relates to existing law and where there are any gaps or points that we may wish to consider in future.
My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Coaker, for their brief and succinct points in speaking to the amendment.
British citizenship affords benefits and privileges; the vast majority of us enjoy the freedom that they bring, while of course respecting the rights of others and the rule of law, but there are high-harm individuals who do not share our values. The noble Lord, Lord Coaker, is right that no Government since 1997, including the coalition Government of 2010-15, have ratified the convention, and he is right that we are not going to. The convention does not address the modern threat from global terrorism, among other things, and I would add that Spain, Belgium and Switzerland have not signed it either, perhaps for the same reasons.
The convention on nationality is at odds with domestic law. The Government do not consider it right that our sovereign powers to deprive a person of citizenship should be constrained by signing the convention, as the amendment would oblige us to do. That would severely limit the ability of the Home Secretary to make a deprivation decision in relation to high-harm individuals and those who pose a threat to public safety. Sadly, we have seen too often the effect of terrorist attacks on our way of life and the impact of serious organised crime on the vulnerable. It cannot be right that the Government are not able to use all the powers at their disposal to deal with today’s threats to our way of life.
It is the Government’s duty to keep the public safe and we do not make any apology for seeking to do so. I hope that, with that, the noble Baroness will withdraw her amendment.
My Lords, I shall be brief because I regard this amendment as an amuse-bouche, if you like, before the very substantial groups to come. I am sure the Minister recognised that this was a probing amendment, as I was asked to find out what the Government’s view was. I think that together we have fulfilled that task. I beg leave to withdraw the amendment.
Amendment 35 withdrawn.
36: Before Clause 11, insert the following new Clause—
(1) Not less than six months before this Act comes into force, the Secretary of State must publish a report to Parliament regarding discussions with the governments and authorities of other countries, including those bordering the English Channel and the North Sea, concerning the steps taken or proposed to prevent or deter a person from—(a) charging refugees for assistance or purported assistance in travelling to or entering the United Kingdom;(b) endangering the safety of refugees travelling to the United Kingdom.(2) The report must focus on steps other than the provisions of this Act.”Member’s explanatory statement
This amendment requires the Secretary of State to publish a report on the actions that are being taken to tackle people smugglers.
My Lords, I shall also speak to the other amendment in this group. The group is about probing what the Government should be doing in the asylum and immigration space instead of this appalling Bill. As I said at Second Reading, the Bill does lots of things that are unnecessary, unhelpful and unreasonable—in fact, some of it is arguably legal—while it does nothing to directly tackle the real issues, one of which is people smuggling.
The fact is that thousands of desperate individuals grudgingly pay people smugglers because they believe there is no other choice; in the overwhelming majority of cases, they are right. If we have learned anything from the war on drugs, for example, it is that, where demand is not allowed by or provided by the state, it will be met by criminals, with all the associated dangers that come from an absence of regulation and control. In this Bill, the Government are targeting the mere 6% of those seeking to move to the UK who are asylum seekers, the most deserving of those who want to settle in the UK in that they are seeking safety from war and persecution rather than career advancement. They are criminalising the users, the asylum seekers, rather than just the suppliers, the people smugglers, and taking away the rights of the users rather than just those of the suppliers. We need to know what the Government are doing to directly target the suppliers—the people smugglers.
This Government are actually helping the suppliers, or people smugglers, rather than the users. We should be in no doubt that by failing to provide sufficient, effective and accessible safe and legal routes, and increasing security around Channel ports, making it almost impossible for individuals to cross the Channel on their own, the Government are helping the people smugglers increase their turnover and their profit margins.
The Government make much of the rhetoric of breaking the people smugglers’ business model. I studied economics at university—back in the day when PPE stood for politics, philosophy and economics rather than personal protective equipment—and I have a master’s degree in business administration. From my knowledge and experience, it appears to me that the Government do not understand business models or how to break them. These amendments aim to probe what the Government are doing to target the real criminals in all of this, the people smugglers, rather than targeting innocent, desperate seekers of sanctuary, which is what most of the Bill is actually about. I beg to move.
My Lords, I will say a little more than I have on the two previous groups. I think Amendment 36, which the noble Baroness, Lady Hamwee, has tabled with the noble Lord, Lord Paddick, and to which I have added my name, is a brilliant amendment.
Amendment 129, which I have signed with the noble Baroness, Lady Neville-Rolfe, seeks to give a practical illustration of what may be done and should be done. Frankly, most of us would believe that it is a no-brainer type of amendment that we would expect the Government to approve with the stroke of a pen. I will speak just briefly to this amendment, because I want to come back to Amendment 36, which is a better amendment than mine, to be frank; it is more wide-ranging and encompassing. I am sure that noble Lords have looked at it with the noble Baroness, Lady Neville-Rolfe, who has apologised for being unable to be with us today. The amendment proposes a new clause, headed:
“Advertising assistance for unlawful immigration to the United Kingdom”.
Social media platforms are advertising how they can help illegal immigration into our country. Sky News googled it and came up with a list of the adverts.
No wonder sometimes people stop you in the street and say, “Do you know what you’re doing?”, because we would assume that the Government would stop illegal activity, published on a website for people to use while being exploited. The Minister should at least respond by saying, “Lord Coaker, you are quite right. Nobody condones that. We don’t condone it, and this is what we’re going to do about it.” I know that social media companies are difficult; there are platforms and there are ways around it. But we should at least make the effort to say that we are doing everything within our power to stop social media platforms being used in such a way by these criminal gangs.
Therefore, Amendment 129 speaks for itself. The explanatory statement says:
“This amendment would provide it is an offence to advertise illegal routes to the UK.”
Who could object to that? The amendment may be flawed—it may not be right or accurate or it may not meet the test of the lawyers who could look at it—I have no idea. But I do not think that anyone would disagree with an attempt to do that. So, if it is not right, perhaps the Government could tell us what they are doing or what amendment they will bring forward to do that, and we could look forward to that on Report or some other government action. I know that the Minister and the Government will disagree with that, so the question is: what will we do about it?
Having spoken to my amendment, also signed by the noble Baroness, Lady Neville-Rolfe, I will come back to that of the noble Baroness, Lady Hamwee. I apologise; I know that we want to get to Clause 11, which we will oppose and which is a shocking part of the Bill. But the noble Lord, Lord Paddick, was quite right when he spoke about Amendment 36, which deals with the people smugglers—where else in the Nationality and Borders Bill are they actually being dealt with by the Government?
I do not know whether noble Lords saw it, but, today and yesterday, the Times, the Telegraph and other newspapers reported the latest statistics on migrant crossings. I make no comment on what is causing them, but it is a statistical fact that the Home Secretary promised that she would sort this out and deal with it and the Government promised that they would be tough on the borders and said that the point of leaving the EU was that we would take back control. There is all of that, but then we look at the statistics: the number of migrants crossing the channel this January has gone up six times compared with last year. There should be a Statement by the Home Secretary in the Commons. Whatever the rights and wrongs, and whatever the causes, this is an astonishing increase. We find out that this means that there have been 46 boats, compared with 15 last year. By the way, it is also pointed out that the French stopped 29 boats last month. I know that we do not think that they do anything, but they did stop 29. Perhaps they should have stopped more, but they are doing something.
We find out something else here—this is why I am spending some time on this and why the noble Baroness, Lady Hamwee, is quite right in her amendment. We find out that part of the Government’s plan, announced in the Times and the Telegraph—not here, unless it was put in a Written Ministerial Statement or Question that I cannot find; it may have been, and I apologise if it was—is locking up all single male migrants. This is according to the Secretary of State for Defence, who outlined further details of the plan for dealing with this—perhaps that is what would appear in a report that would come forward under Amendment 36. This may be the right policy, but I would have thought that that would be a subject for debate in Parliament. It is a fairly major thing to say that you are going to do—it must be a change, and it must be government policy because the Secretary of State announced it in the Times and the Telegraph today and yesterday. I saw it in the Times only about an hour ago—noble Lords may be better informed than me—while I was reading the sport section. I just flicked through the paper and there it was, and I thought, “Goodness me.” But, seriously, that is a really serious policy initiative that will be part of the plan to deal with migrants crossing the channel. The only point that I am making is that we should debate and discuss whether we believe that this is an appropriate way of dealing with this.
I was further shocked. I also deal with defence, and I asked the Defence Minister in the Lords about this. Tom Pursglove, who is a Member in the other place in the Home Office, said in the Times that the Bill will
“strengthen the powers of Border Force to stop and redirect vessels”.
This is how a Home Office Minister in the other place described what is in the Bill.
I thought that this was not the Government’s policy any more. Certainly, the Defence Minister, the noble Baroness, Lady Goldie, who spoke for them on this—I do not mean to misquote her—told me that. That is push-back by another name. Redirecting boats or strengthening the powers of the Border Force to stop and redirect boats is push-back. This is simple: it is either yes or no. They are not going to use a destroyer—nobody is that stupid about this; they will not have a naval destroyer pushing a dinghy back—but is a naval commander going to be able to direct a smaller Border Force vessel to redirect a dinghy, as Tom Pursglove MP said in the papers today? I thought the Government had given up on that policy. Certainly, as I understood it, the Ministry of Defence’s understanding was that it was not going to require the Border Force to do that. I apologise if I am confusing noble Lords but I am confused by the Government’s policy. I thought it was one thing, but now, according to the papers, it appears to be another.
All I am saying is that you can see why the amendment in the name of the noble Baroness, Lady Hamwee, is so important, because it would require the Government to publish reports on what is going on regarding discussions with Governments and authorities, not only of our own country but of others, to tackle the smugglers. These people are not finding the dinghies themselves, collaborating with 30 other people—or whatever the numbers are—and deciding that they are all going to pile on. These people are exploited by the people smugglers, yet this is mentioned hardly anywhere in the Bill. Indeed, instead of dealing with the smugglers, the Bill changes the way we treat refugees and victims fleeing war and persecution, who are being loaded on to these boats. They are regarded almost as the criminals rather than the real criminals. That is what noble Lords will come on to when they discuss Clause 11 and other parts of the Bill. I cannot tell the noble Baroness, Lady Hamwee, how important this is. That is why I am labouring this: Amendment 36 is really important.
If noble Lords get the chance to have a look, Amendment 36 also says, quite rightly, in proposed new subsection (2):
“The report must focus on steps other than the provisions of this Act.”
What sensible person, in seeking to deal with people smuggling, refugees and asylum seekers, does not also believe and understand that part of the solution lies in dealing with the situations that individuals are fleeing from? I have not spoken to the noble Baroness, Lady Hamwee, about this, but I suspect that what she is also trying to do through this amendment is say that you deal with asylum seekers and refugees not through sanctions, provisions, criminalising people and making them afraid but by addressing the problems in the countries, areas and regions they are fleeing from.
I tell your Lordships this: if I was living with my family and we were being bombed, I would flee. If my family was in a place where there was starvation, no water and poverty, and where we were threatened by criminal gangs or torture, I would flee, and I would go anywhere. I would want to protect myself, my family and my children. If you want to deal with asylum seekers and refugees, of course you must have a policy that deals with them when they arrive, but you also have to understand why they are fleeing and escaping from the country in which they were born and do something about it there.
I know that the noble Lord, Lord Russell, is on the Council of Europe; he and I have spoken about many of these things. I think I am right in saying that the noble Lord and I went to Jordan, near its border with Syria. We say about countries such as Jordan, Turkey and others, “Oh, it’s about time somebody else did something”. We went to a refugee camp in Jordan where there were hundreds of thousands of people; I went to a refugee camp in Angola where there were more than a million people.
Some of the poorest countries in the world are dealing with some of the biggest refugee crises, and sometimes with almost more resource and compassion than we do. There are astonishing numbers of people displaced and moving between these regions and countries. The thousands whom we deal with are a problem—I am not decrying that or saying that we should not do anything—but some of these other countries are having to deal with things in biblical proportions. I could not believe what I saw in Jordan when people were fleeing war and persecution, but I will tell you what the Jordanians did not do. When nearly 1 million people came across the border, they did not turn round to them and say, “We’re going to split you into different groups” but “We’re going to do what we can to help you”, while recognising that the problem in Syria or elsewhere also needed to be addressed.
That is why the second part of Amendment 36 says:
“The report must focus on steps other than the provisions of this Act.”
It is to show that if you want to deal with refugees and asylum, and people moving, you cannot just do it through law and order provisions—by policing, criminalising and locking people up. Of course, that has to be a part of what you do but it cannot be the only way to do it because, let me say this, it will fail without a shadow of a doubt. I go back to this point: if I and my family were being bombed, I would not look up what the criminal provision was in a particular country and whether I was going to be made a group 1 or group 2, or whatever; I know that is for a future debate. What I would say is, “I’m going because I want to protect my family”.
Amendment 36 is also saying “Let’s deal with the people who seek to exploit misery”. Too much of the Bill deals with the victims: those who are fleeing persecution or seeking sanctuary. Deal with the criminals; do not criminalise those being exploited by the people smugglers. Support the victims and deal with the smugglers. Amendment 36 seeks to address that, as does my Amendment 129. Let us go after the people smugglers and stop criminalising the victims.
I agree with the noble Lord—he made the point comprehensively—except that he pulled his punches. Yes, the last line of Amendment 36 is very important, for the reason he gave, but it is a paradox because the effect of the Bill, if we pass it in its present form, will be to increase people smuggling. It will produce more deaths in the channel because, instead of opening safe routes, we are criminalising unlawful arrival. We are criminalising people who come undocumented and seek asylum. We are putting into group 2, where they are to be discriminated against, people who come indirectly even if they come by a regular route—say, on an airline. Tell me: how do you come directly from Kabul? How do you come directly from Syria, if that is your country of citizenship but you are one of the 3 million Syrians who are in Lebanon and Turkey?
It is a Catch-22 situation, since 90% of asylum seekers who come to this country do so from countries where we insist that the people coming must have visas or entry certificates, but we do not issue entry certificates to people who want to come and seek asylum. The effect of this Catch-22 is to make safe routes impossible and close them down. The only way to stop deaths in the channel is to create more safe routes but the effect of the Bill, if passed in its present form, will be to produce more deaths there. I entirely agree with the noble Lord, Lord Coaker, when he says that we do not solve the problem by passing laws but, if we pass the Bill in this form, we will make the problem a lot worse.
My Lords, I rise to briefly support what the noble Lord, Lord Kerr, has just said to the House about the importance of creating more safe routes and dealing with the Catch-22 he described. The noble Baroness, Lady Williams, will recall that I raised with her the position of British embassies in parts of the world of the sort the noble Lord has just referred to and the role they might play in sorting out genuine asylum claims, which people cannot make. I gave the noble Baroness examples of the Yazidis and others in northern Iraq, which I visited in 2019, who, if they could have gone to a British post or embassy and had the matter dealt with on the ground, would have been saved much misery. I appeal to the noble Baroness to look at this question of safe routes and how we bring about a way in which incredibly vulnerable people are able to be sorted out and given a chance to come to places of safety and sanctuary.
I want to support what the noble Lord, Lord Coaker, said as well. So much in this Bill is about what can be described as the pull factors that the Home Office always refers to, but we have failed to give sufficient attention to the push factors that bring some of those more than 80 million who are displaced or refugees in the world today. There was a Cross-Bench debate only last month where Members from all sides of your Lordships’ House called for greater international efforts to be made, co-ordinating a campaign by the great nations in the way we have done over issues from COP 26 to Covid. Eighty million people displaced or refugees worldwide requires international action. We should be convening an international conference on that subject alone, and I would love to see this country taking the lead on that.
I would also like this country to take the lead in standing up to some of the internet companies that are referred to in Amendment 129, from the noble Lord, Lord Coaker, and the noble Baroness, Lady Neville-Rolfe. It is outrageous that companies believe they can be above the law and do as they wish in enticing people—the kind of people the noble Lord, Lord Coaker, described—who feel they are destitute and at risk with advertisements for illegal routes to countries such as the United Kingdom. That is against the law; it should not require a new Act of Parliament to deal with it. I hope when the noble Lord, Lord Sharpe, comes to reply to the debate, he will be able to tell us that more is going to be done about that now.
My Lords, first, I would like to apologise to the House, the Front Bench in particular, the Minister and the movers of amendments in the next group, because I have a medical appointment, and under the conventions of the House, if I spoke in the next group, I would have to leave and be rightly reprimanded. I just want to say, under this group of amendments, just how much I have agreed with what everyone has said. I would have said something very similar in relation to Clause 11.
My Lords, I rise first of all, briefly, to support Amendment 129, in the names of the noble Lord, Lord Coaker, and the noble Baroness, Lady Neville-Rolfe. It is clear, necessary and relatively simple, at least in principle, so I trust that the Government will consider it very carefully.
Our asylum system is already overwhelmed, with a backlog of cases approaching 125,000, which is, I think, rather more than the British Army. So we have to do everything we can to reduce the inflow of those entering by illegal means. In brackets, I say to the Minister that I hope he will take this opportunity to deny that the Government now intend to bury the statistics and emerge only every three months to tell us what is happening.
That said, I would like to speak briefly about the points that have just been made by other noble Lords about the need for safe routes for asylum seekers wishing to come here. I think we need to be a lot more careful about how we address this. My noble friend has just referred to the 80 million refugees in the world. The numbers are huge, even if these are only a third of those who are actually going to move from one country to another. Is it really being suggested that we have a system whereby any who would like to leave his own country has only to purchase a ticket to London and will then be accommodated, et cetera, and his case will be heard? Is that really what is proposed? What about those who fail? Some 70% of the people now arriving across the Channel are young males. I suspect that they are not, in most cases, the ones who are most in need. If this is not to fly completely out of control and reach a level at which the public will react rather strongly against the sheer size of the inflow, we have to be a lot more careful.
It has been suggested that one way to tackle this would be to have missions overseas to take the applications. I am sure that is being considered very carefully, but I am sure that the outcome of that consideration will be that it just will not work. Those posts—whether embassies or some special posts set up in the third world—would be overwhelmed in a matter of weeks. Then you have to ask the Governments of the countries concerned what will happen to those who turned up, quite often from neighbouring countries, did not get the permission that they were hoping for, and are hanging around the embassy or wherever it is in ever-growing numbers. The host Governments would not care for that at all, and it would not achieve anything as far as we are concerned; it would simply mean that the inflow would become, in principle, pretty unmanageable. I really think we have to be careful about this talk of “safe routes”. We keep hearing it all the time; we never hear what is actually meant. I would like to hear from colleagues in this Committee how they propose to organise 30 million people who would like to come here. It cannot be done; there is no public support for it on that scale, and we really need some clear and logical thought.
Can I just ask the noble Lord about his assumption—it seemed to be a stereotype—that young single men are not at risk? I do not claim to be an expert on the profile of asylum seekers, but one can imagine that, because a young man might be seen to be less vulnerable than a young woman in a dangerous journey towards safety and, perhaps, also vulnerable to recruitment into ISIS, for instance, actually it is not that surprising that it may be young single men who are arriving on our shores in greater numbers than young single women. I just think that it is probably important to avoid prejudicial stereotypes that, somehow, young men are not at any risk and therefore can be locked up—I just looked at the Times article that the noble Lord, Lord Coaker, mentioned. It sometimes seems to me that we are at risk of demonising young men.
My Lords, it is not demonising; it is common sense. The routes that now exist are dangerous and difficult, and the people who are capable of getting through them are the young. But they are by no means the only people, nor necessarily the most deserving of our help. This is why I ask that we have a little more logic and thinking before we simply rattle off about safe routes for asylum seekers.
But that is why we need family reunion routes.
Can I just point out that the Refugee Council, for example, has made the point that cutting back and restricting family reunion rights, which the Bill will do—this is one of the key safe and legal routes—will particularly affect women and children? Plenty has been written about what safe and legal routes might look like—it is family reunion; it is humanitarian visas. Is the noble Lord really suggesting that we have no responsibility to the kind of people that my noble friend talked about? No one is suggesting that everyone comes over here, but much poorer countries than this country are taking responsibility for asylum seekers, and we will not take any responsibility.
I certainly accept the last part of that. Many countries in the third world are doing far more for people in serious difficulties than we are, and certainly far more in relation to their own incomes. But I would turn that round and say that if our aim is to help people in serious difficulty, of whom there are plenty, our money would be much better spent on the ground, on the food, shelter and medical attention that could be provided, rather than doing something fairly similar here at five or 10 times the price.
Can I ask my noble friend to return to the point about what might constitute a safe route? The specific example I gave the noble Baroness, Lady Williams, was about Yazidis and other minorities in northern Iraq who were faced with genocide. That was a category of people who could have been helped by our posts on the ground by dealing with their claims. To turn that into 80 million people all applying at British consulates and embassies around the world—that was not what anyone was suggesting. My noble friend asked for realistic proposals. Is this a proposal that he himself would be prepared to have a look at?
My Lords, on the question of safe routes, which has just been touched on from both sides, the point is that by definition, they tend to include the whole family: a whole group of people tend to come together. That is part of the point of safe routes. The problem with illegal, unsafe routes is that 80% of the people who use them are young men, below the age of 34. That is a fact of life we have to put up with. We hope by means of this Bill to improve the rights of people who come by safe routes, and to discourage those who come by illegal routes who, by definition, are a dysfunctional family group.
If I may answer my noble friend’s point, my answer to the Yazidis or particular problems of that kind—you will find them in Africa as well, of course—is to examine the situation that has developed, see how many people there are, where they are and how best they can be helped. That is certainly what our aid programme should be doing and what our missions should be advising on. I do not think that is the same as saying that we should consider shifting an entire community from northern Iraq to southern London.
Before my noble friend concludes, does he also agree that instead of constantly going on about the pull factors, we should be doing more about the push factors and maybe co-ordinating the kind of international conference that I was calling for?
I think there probably is scope for discussion between Governments as this problem becomes an increasingly serious one for countries, certainly throughout Europe. Yes, I would not be opposed to that but what I am calling for is some realism and not slogans.
May I just suggest to the Committee that we proceed with the Committee? I occasionally have nightmares about these issues and I am probably too sensitive to engage in human rights debates, but the die is cast—what can I say? I can think of nightmares I might have about who would be at the Dispatch Box to answer to my questions. At the moment, the little “question time” I have just heard is exceeding the worst nightmare. Can we perhaps hear from the Minister we have, rather than the potential Minister of my nightmares?
I will take that as an invitation. Thank you very much indeed. I will try not to be a nightmare.
I am sorry to disappoint the noble Baroness, Lady Chakrabarti. I thank those who have been complimentary about this amendment and make it clear that it is a team effort on our part. I really did not expect it to provoke such debate, but the thoughts that are teeming round people’s minds are bound to burst out at some point.
I want to ask about Amendment 129, and I will return the compliment to the noble Lord, Lord Coaker. It makes an immensely important point but reading it, I wondered whether there was not already an offence—an inchoate offence, possibly, under the existing immigration legislation, or possibly even conspiracy. I do not want to anticipate Clause 40, but are there any problems in using Sections 25 and 25A of the Immigration Act 1971?
My Lords, I shall comment briefly on the discussion we have been having. Why is it young men? I talked to some of the Afghans who got to Calais—this was before the Taliban took over Afghanistan completely—and they said to me that the Taliban were trying to recruit young men into their fighting forces, so the family clubbed together to help them escape, because they were the ones who, at that time, were most vulnerable. Today, it may be that the women in Afghanistan who are more vulnerable, except that they cannot find their way out. But that is one of the reasons why more young men than young women have fled. Indeed, if one looks at the people who got to northern France, quite a few of them have connections with this country, and quite a few are seeking to establish family reunion. That is an argument why we should be able to provide safe and legal routes for people from northern France to come here: so they can achieve family reunion. We should recognise what they have fled.
My noble friend Lord Coaker described the terrible conditions. My comments are going to go a bit wide of the amendment, but I hope that your Lordships will allow me to continue. I think that if we actually explained to people in this country what it is that people are fleeing from—the awful circumstances, the terrifying persecution, war, people being killed in front of them, and so on—they would be much more sympathetic to refugees coming.
The majority of the refugees who reach France claim asylum in France. A small proportion of those claim asylum here—if they can manage to get to this country. In relation to the number of refugees in the world, we are talking about rather small numbers, but there are some very important points of principle, because we are talking about people who are very vulnerable. That is why I am keen on Amendment 36 and I do not agree with the noble Lord, Lord Green.
I thank all noble Lords who participated in this wide-ranging and powerful debate. We did perhaps stray slightly off the subject of the amendments, and some of the debate has bled into the next group and was, I suppose, more philosophical, about the Bill in general. I will confine my remarks to the amendments, if I may, because I know that many of the matters debated will come up again—not in their “proper place”, because that would be to demean the arguments, but in their more appropriate context.
I will begin with Amendment 36, a new clause proposed to be inserted before Clause 11 on the issue of smuggling, from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. I will then address the amendment put forward by the noble Lord, Lord Coaker, on advertising illegal routes to the UK. As I said, I thank all noble Lords for their contributions.
The UK takes smuggling and illegal migration extremely seriously. We are absolutely committed to tackling organised immigration crime, or OIC, in all its forms. We work closely with near-neighbour countries such as France, Belgium and the Netherlands, and key international partners beyond Europe to address this exploitative crime and tackle smuggling networks. To tackle this threat, we have in place a multi-agency OIC taskforce which brings together law enforcement, border guards, immigration officials and prosecutors to tackle organised crime groups involved in people smuggling. This taskforce is currently working with partners in some 17 source and transit countries.
In addition, there are already agreements in place to tackle smuggling and illegal migration. For example, in November 2021 the Prime Minister signed an agreement with Belgium reaffirming the two countries’ close partnership and commitment to tackling shared threats such as serious and organised crime, including human smuggling. The two countries are committed to strengthening the legal framework for co-operation between our law enforcement agendas with a co-operation agreement and a focus on information exchange. The UK is committed to working with France to maintain the security of our shared border and to tackle illegal migration. This relationship is long-standing, supported by the Sandhurst Treaty.
Most recently, in 2021 a bilateral arrangement was reached between the UK and France. The UK pledged to make a further financial investment of approximately £54 million in 2021-22. Last year’s investment saw the French doubling the numbers of officers patrolling beaches.
Addressing the organised crime groups that facilitate illegal migration to the UK remains a UK priority. In July 2020, the Home Secretary and the French Minister of the Interior signed an agreement to create a joint intelligence cell to crack down on people-smuggling gangs. In 2021, over 23,000 crossing attempts were prevented by French law enforcement, to which the noble Lord, Lord Coaker, referred. Since the UK-France JIC was established, along with France we have dismantled 17 small-boat organised criminal groups and secured over 400 arrests.
I stress that the UK has a strong stance on smuggling and illegal migration and has agreements in place with near neighbours to reflect this. This amendment will not be helpful in the Government’s continued efforts to tackle these crimes. It may hinder the fruitful and open dialogue on these issues between the UK and its international partners, many of which would not agree to their discussions and domestic activity aimed at reducing people smuggling to be published to a domestic UK audience.
I cannot support Amendment 36 because it is not appropriate to provide a running commentary on the actions that are being taken to tackle people smugglers, much of which will be sensitive activity, particularly from an operational point of view, and based on intelligence sharing with the aim of protecting vulnerable people.
If I may be permitted a personal anecdote, I have some experience in operational sensitivities. When I served in the Royal Hong Kong Police Force, I spent much of my time on the border and was heavily involved in matters of migration. Some of it was profoundly harrowing, particularly the Vietnamese boat people, who were helped by Hong Kong and the Royal Hong Kong Police Force, but much of it was organised by criminal gangs. This was not a multinational but a multi-agency approach. However, the principles remain the same. If the smugglers, who in colloquial Cantonese were known as snakeheads, got wind of our countermeasures, they changed their methods, and changed them very quickly. Unfortunately, these people may be evil and prey on others’ vulnerability but they are not stupid.
During the debate we discussed safe and legal routes, and my noble friend the Minister sent a letter to the noble Lord, Lord Dubs, outlining some of them recently. If more detail is required, we will write again. Without going into all the detail, I shall highlight the headlines of the various safe and legal routes that are available. It is slightly off-topic but, given the tone of the debate, it is worth doing.
Obviously, there is a UK resettlement scheme, which commenced in February 2021 and prioritises the resettlement of refugees. There is a community sponsorship scheme and a mandate resettlement scheme. There is a refugee family reunion scheme, which many noble Lords referred to. The Bill does not cut down on family reunion. On the point raised by the noble Baroness, Lady Lister, we have granted over 39,000 refugee family reunion visas since 2015. There is the well-known Afghan citizens’ resettlement scheme, the Afghan relocations and assistance policy and the immigration route for British national overseas status holders from Hong Kong. As I said, that is slightly off-topic with regard to these amendments, but I hope that noble Lords appreciate that brief digression.
Turning to Amendment 129, I am grateful to the noble Lord, Lord Coaker, for raising this important topic. We agree unreservedly with the need to target those who assist unlawful immigration to the UK. It is imperative that we take action to prevent and prosecute people smuggling. We are taking steps to combat illegal migration and the activities associated with people smuggling by increasing the maximum penalty for facilitation from 14 years’ imprisonment to life imprisonment. This aligns with the maximum penalty for human trafficking as contained in the Modern Slavery Act. By doing so, we are emphasising to the courts the gravity with which the most serious offenders should be treated.
We have also turned our attention to Section 25A of the Immigration Act 1971. Currently, Section 25A relates to helping the arrival or entry for gain—I stress that—of an asylum seeker into the UK. Clause 40 removes the current requirement for the facilitation to be “for gain”. Removing the “for gain” element from Section 25A will allow for successful prosecution of those facilitating the arrival or entry into the UK of asylum seekers where the “for gain” element cannot be proven beyond reasonable doubt.
To be absolutely clear, the focus of Clause 40 is on criminals who act to exploit and endanger people. We have made it clear that persons do not commit an offence of facilitation if the act is done by, on behalf of, or co-ordinated by, Her Majesty’s coastguard or overseas equivalent. This provides protection not only for organisations such as the RNLI, but for individual seafarers who respond to mayday relays.
Separately, we have also provided defences for persons who show that they had to assist an individual in danger or distress at sea between the time that the individual was first in danger and being delivered to a place of safety on land. There is a defence for masters of vessels bringing stowaways into the UK, if they discover them on board after the ship has left port and reported it to immigration authorities. Finally, there is a defence for ship crew members or passengers who provide humanitarian assistance to the stowaway, as long as the presence of the stowaway is reported. This means that seafarers will be protected if they are unable to contact the coastguard for a good reason.
These defences mean that it is extremely unlikely for someone to be charged unless the authorities have concrete evidence to the contrary, such as intelligence suggesting that they are linked to people-smuggling gangs or where the same person launches multiple rescues over several days and has no good reason for being at that location.
As the noble Baroness, Lady Hamwee, suggested, the conduct which the offence outlined in the amendment seeks to capture may already amount to an offence under Section 25 of the Immigration Act 1971. Section 25 deals with facilitation of a breach of immigration law which may include behaviour linked to
“recruiting, transporting, transferring, harbouring or receiving or exchanging control over another person.”
Section 25(4) already provides that the offence applies to things done whether inside or outside the United Kingdom.
In addition to this provision, we also have the benefit of Section 44 of the Serious Crime Act 2007. It is already an offence intentionally to encourage or assist another person to commit an offence, including pursuant to Section 25 of the 1971 Act.
Whether placing an advert would be captured by these provisions would depend on the exact circumstances of the case, including the precise wording of the advert. The overlap with existing statutory provisions would need to be carefully considered to see what value—if any—an additional offence would add.
There are complications around prosecutions in this area more generally. A key issue is the difficulty in identifying the defendant and the added complexity of the extra-jurisdictional nature of the problem.
In addition to the legislative measures I have already mentioned, we continue to work with partner agencies to combat illegal migration. We liaise with the French authorities and provide financial resources to aid and boost their operations. All this needs to be seen in the context of other liaison—for instance, the online safety Bill, led by the Department for Digital, Culture, Media and Sport. The online safety Bill will consider user-generated content and focus on examining the harms associated with paid-for online advertising and the role of platforms in disseminating harmful advertising content. I hope this will please the noble Lord, Lord Coaker—he is quite right.
In addition, DCMS is seeking to introduce online advertising programmes which aim to reduce harms for consumers, businesses and society as a whole. The programmes will review illegal, as well as legal but harmful, content and the placement of advertising online across all actors involved. Consultation will be launched shortly, inviting views on how the Government might best build on the regulatory framework to improve transparency and accountability in the system, with the goal of reducing harm.
To reiterate, we do not agree with the broad intent behind the proposed new clause, which is to prevent and prosecute people smuggling. Resistance to the amendment is based on the effectiveness of the offence in achieving our common aim of targeting those who assist unlawful immigration to the UK. For these reasons, I hope that the noble Baroness will feel able to withdraw the amendment.
My Lords, I thank all noble Lords who have spoken in this debate. It was rather longer and broader than perhaps we expected but it was a debate that needed to be had at some stage so we might as well have had it now. I thank particularly the noble Lord, Lord Coaker, for his Amendment 129, which we of course support, and for his support for our amendment.
I also thank the noble Lord for drawing our attention to the Times article, which does indeed say that the Government’s intention is to arrest all single male migrants crossing the channel. The newspaper estimates that, on the basis of the number who crossed last year, that would mean 20,000 people being put in prison. Now, I know that the Government have a prison-building programme, but I thought that that was to accommodate those people who would be spending longer in prison as a result of the Police, Crime, Sentencing and Courts Bill; so, this does not seem to make much sense. As the noble Lord, Lord Alton of Liverpool, said, the pull factors are completely overwhelmed by the push factors. When you are being bombed and persecuted, you do not worry about pull factors—you just want to get out of there. You want to get to safety and get your family to safety.
As far as the noble Lord, Lord Green of Deddington, is concerned, bombs do not differentiate between men and women. Young men, or families, probably feel that they stand a better chance of making this very hazardous and dangerous journey to get to the UK because there are no safe and legal routes. Of course we are not saying that every eligible refugee should make their home in the UK. We are saying that the UK should take its fair share of asylum seekers—and, by any measure, we do not do that at the moment.
Would the noble Lord like to say what he thinks the fair share should be?
Yes, I can give the noble Lord an example. Let us look at the number of asylum claims per 10,000 people of countries across the whole of Europe, take the average and say that the UK should significantly increase the number of applications in line with the average number for European countries. That would be a good start, because we are nowhere near the European average in taking people who are seeking asylum. I hope that that answers the noble Lord’s question.
In giving that figure, will the noble Lord take into account the relative density of population of the country?
The number of applications per 10,000 population, I think, takes into account the population in each country.
I cannot have been clear. There is a relative density of population. This country is about to overtake the Netherlands as the most densely populated country in Europe. We are already three times as densely populated as France and about one and a half or two times as densely populated as Germany. All I am asking the noble Lord is whether, in giving the figure to the noble Lord, Lord Green, he will allow for relative densities in making that assessment.
I am not in the Government. I do not set what the policy will be in relation to the number of asylum seekers that can be brought into this country. The noble Lord, Lord Green of Deddington, asked whether, rather than rhetoric, we could give examples of how we might set the number of asylum claims that this country handles. I gave an example of the sort of thing that could be considered in setting the number of asylum seekers that could come. The noble Lord has suggested something else that might be taken into account, and that may well be something that can be taken into account. However—
This will be my last intervention on this matter. We have resettled more than 25,000 people since 2015—the most in Europe.
No—I am afraid that the note that the noble Lord was just passed by the Minister is not accurate. That is the number of people settled through resettlement schemes, not the number of people who have travelled to various different countries under their own steam to claim asylum. Therefore, that figure is absolutely, totally misleading.
As far as the Minister is concerned, he says that the Government take people smuggling seriously but do not want to give a running commentary on what they are doing, yet the first half of his response was a running commentary on what the Government were doing. I do not understand that at all. What we want to see is the strategy—the Government’s overall plan—to tackle people smuggling directly. At the moment, the Government’s entire focus appears to be on the victims, the asylum seekers, and not on the people smugglers. The whole purpose of this amendment is to try to refocus the Government’s attention on the real villains of the piece, the people smugglers, rather than on the persecution of asylum seekers, which is what this Bill is about. However, I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
Clause 11: Differential treatment of refugees
37: Clause 11, page 13, line 33, leave out “a refugee is a Group 1” and insert “a person is a”
Member’s explanatory statement
This amendment ensures equality of treatment by removing the distinction between Group 1 and Group 2 refugees.
My Lords, I speak in place of the noble Baroness, Lady McIntosh of Pickering, and welcome the opportunity to speak on the amendments she proposed. I wish she could be here to speak on Amendments 37, 38, 42 and 49. I hope to do justice to her concerns and offer a bipartisan dimension to our treatment of the Bill.
It is perhaps important for me to say before launching myself into the amendments that my clear preference would always have been to propose the elimination of Clause 11 in its entirety. Having said that, however, I respect the intention behind the amendments in seeking to eliminate the distinction between two tiers of refugees. I hope that nobody groans when we cite the 1951 convention, which prohibits the penalisation of refugees
“on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … present themselves without delay … and show good cause for their illegal entry or presence.”
The Bill before us purports to change the way in which the provisions of the convention are applied, with important divergences from hitherto accepted practices.
I am a member of the Council of Europe. I was asked to compile a report to commemorate the 1951 convention; my report was endorsed by the Council just a few weeks ago. In writing it, I worked in collaboration with UNCHR officers in London, Strasbourg and Geneva. This has led to my conviction of the vital importance, in seeking a way through these critical issues, of maintaining the closest possible working relationship with UNHCR. Everyone I consulted in writing my report agreed that the key underpinning tenets of the convention are non-refoulement, non-discrimination and non-penalisation. Those are the principles that must be upheld at all costs, however much circumstances may have changed.
Although I am hugely critical of the Bill, I must, in reality, acknowledge that the United Kingdom is only one of a number of nations in search of new ways of dealing with what is undoubtedly a global crisis. A wide variety of measures has been put forward across our continent. In my report, I cited the following; some were mentioned in our previous debate. There are those who are pushing asylum seekers back, or else denying them disembarkation. Others are protecting their borders, building fences, sometimes deploying their military and even using live ammunition. Some are transferring their protection obligations to other—usually poorer—nations and isolated islands, detaining asylum seekers in poor conditions indefinitely. There are those set on criminalising solidarity and life-saving activities: making the saving of lives, the feeding of starving people and providing shelter to families in need a crime. Nor must we forget those who resort to the use of Covid-19, economic challenges or irregular arrivals of migrants as cover for disproportionate measures, restricting access to asylum and rights. The proposals in the Bill, set alongside the proposals of other nations that I just cited, would effectively undermine the very principles and obligations of the 1951 convention.
It is my view that our consideration of these important questions should seek always to be in harmony with the advice of UNHCR. That commission provides authoritative guidance in a manner consistent with the 1951 convention’s ambition to ensure,
“the widest possible exercise of these fundamental rights and freedoms”
by refugees. UNHCR, incidentally, has responsibility for all the 80-plus million refugees spread around the world.
The amendments we are considering are seeking what is fundamentally guaranteed by the 1951 refugee convention: namely, fair and equal treatment and, especially, non-discrimination. Not to observe these principles would set us at odds with the demands of international law. What is more, it would create a totally unworkable situation if applied more generally: 73% of refugees are hosted in countries neighbouring their country of origin. The noble Lord, Lord Coaker, mentioned one such example.
The proposals as currently put forward in the Bill would disrupt global co-operation, since no system could be built on the expectation that those countries bearing the majority of migrants do more and geographically distant countries do less. Furthermore, no system could be built on the expectation that those arriving in our country unconventionally deserve worse treatment than those who arrive via conventional routes.
In Committee, it is important to recognise the exploratory nature of our discussion. The proposal in Amendment 37 would remove the differentiation between two categories of people arriving on our shores and vest them with greater dignity and humanity.
In conclusion, I find a proposal dominated by the often-repeated slogan “Taking back control of our borders” is in direct contradiction to the spirit of those British lawyers—yes, British lawyers—who not only helped frame the 1951 convention but ensured at a subsequent meeting of plenipotentiaries that,
“governments in the countries of first refuge”
“grant the right of asylum within their territories with the utmost liberality,”
and that other countries would,
“undertake jointly with the countries of first reception to bear the costs arising out of”
such efforts. It went on to urge governments to
“continue to receive refugees in their territories and that they act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement.”
We should note the key phrases in this declaration: “utmost liberality”, “bearing the costs jointly”, and
“in a true spirit of international co-operation”.
That was the spirit in which British negotiators reached their conclusions in 1951. Somehow, we must rediscover this generosity of spirit that moves beyond the merely contractual, beyond what might appear be mere self-interest, and towards a collective effort in our attempt to find solutions to our problems.
This seemed to be what the Minister agreed to in her summing up speech at Second Reading on the Bill on 5 January. On that occasion, after a typically spirited defence of government policy, she readily accepted the need for us to work with our international partners to tackle what really are shared global challenges. She concluded:
“All countries have a moral responsibility to tackle the issue of illegal migration.”—[Official Report, 5/1/22; col. 668.]
It is not difficult to agree with her on that. But it is harder to accept the assurance she gave that, as she put it,
“we remain in line with our international obligations”.—[Official Report, 5/1/22; col. 666.]
A refusal to accept the two-tiered proposals, as put forward in these amendments, would be a small but important step in the right direction. I commend these amendments to the Committee. I beg to move.
I would like to say a word in support of the spirit of these amendments. Specifically, I would like to speak in support of Amendments 37, 38 and 42, in the name of the noble Baroness, Lady McIntosh, introduced brilliantly by the conscience of the House, the noble Lord, Lord Griffiths. Yet, my heart is not in this game. This is what Americans call “putting lipstick on a pig”—it is still a pig.
The only element of this group which I can whole- heartedly support is that Clause 11 should not stand part of the Bill. Our Constitution Committee gave us a choice: it said that we should either remove or redraft Clause 11. I understand what all these redrafting amendments are trying to do, but it is not a good idea. This is not a case for “death by a thousand cuts”; it is a case for a “short sharp shock”. We need to take Clause 11 out of the Bill.
Why? Because the refugee convention matters; it is an important plank in the international legal order. Clause 11 flies directly in the face of the refugee convention, because it creates two classes of refugees: one with convention rights, and one without convention rights. The charge that it is a breach of the convention is put authoritatively not only by our Law Society and the Law Society of Scotland, but by UNHCR in its 72-page memorandum. That is a pretty authoritative source; indeed, it is the authoritative source. When we set up the refugee convention, we asked UNHCR to be its guardian, to supervise its application, and to report to the Secretary-General on laws on refugees in the signatory states. Therefore, it was not interfering, but doing the job which we, when we wrote the convention, asked it to do. I find it a shaming thought that its report on this Bill will have been seen by all 147 signatory states.
Why is UNHCR so sure that the Bill undermines the convention? Clause 11 is the heart of the matter. UNHCR believes that creating a two-tier system for handling asylum seekers—one class legitimate, one illegitimate—conflicts with the simple definition of a refugee in Article 1 of the convention. A refugee, says the convention, is someone who,
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.
That is all: he is outside his country of origin. The definition says nothing about any requirement to seek asylum in a particular place, and nothing about regular or irregular routes; it contains no suggestion that he is out of order if he does not seek asylum in the first safe country—there is no such requirement anywhere in international law.
A refugee is a refugee is a refugee, and must be treated as such, according to the provisions of the convention, however he got there. That is what the convention says and that is what we have believed down the years. Stretching the meaning of Article 31, as the Government seek to do, cannot change or qualify what Article 1 says, or add something that it does not contain. I have set out the definition of a refugee. There are no two categories; the definition is very simple.
I am no lawyer, and here I am surrounded by eminent, terrifying legal expertise—even including the noble and learned Lord, Lord Clarke of Nottingham; as his former private secretary, I am horrified to see him there—but the definition of a refugee, and of our sin in this Bill, from the UNHCR and the law societies, must be right, because I cannot see how 147 countries would have signed up to the convention if they had thought it meant what the Government now say it means. Four in every five refugees are in developing countries adjacent to their country of citizenship. Would host countries have agreed that guests should never move on, and that they should be required to apply for asylum only in their first host country? Would the developing world have agreed that the developed world could wash its hands of the problem of looking after refugees because they were going to have to stay in the first safe country they reached on fleeing over a frontier? I do not think so. It plainly was not what those who signed up to the convention thought it meant, and the attempt to have an expansive reading of Article 31 and so change the meaning of the convention as a whole, in particular Article 1, looks quite a legal stretch. I agree with our Constitution Committee, the law societies and, importantly, the UNHCR.
I feel for the Minister, because the case she is asked to make on the legal position and the convention seems as eccentric and unconvincing as the claim of the noble Lord, Lord Frost, that you can extinguish the role of the CJEU in Northern Ireland by using Article 16 of the Northern Ireland protocol. I will stay away from the law—this is a rash foray—but I will stick with the UNHCR, the law societies and the conventional reading of the convention, which is how 146 countries still read it, and say that we really need to get rid of Clause 11.
My Lords, Clause 11 is the most objectionable clause in this whole objectionable Bill. It has to go, and not just because of what the convention says, our having signed and supported it and so on. It is not just because there is a convention but because the convention is right. However, we have to pick at the Bill. We will have the debate that the noble Lord, Lord Kerr, has started us off on so well on Report, but this is our opportunity to see whether there is any give in the Government’s position and whether there is anything we can, quite bluntly, take apart on Report in a way we have not yet thought of.
My noble friend Lord Paddick, the noble Lords, Lord Rosser and Lord Blunkett, and the right reverend Prelate the Bishop of Durham have indicated their objection to the clause standing part. Had we been able, under the procedures of this House, to add more than four names, I think there would have been a very long list.
We have a number of amendments in this group that are picking at this clause. Some of what I had planned to say—and probably will say because I cannot edit my notes as I go as quickly as I should—was covered in the previous group when we debated smuggling. The legislation’s objective, as it has been explained to us, is to disrupt the criminals who smuggle people. No one in their right mind supports that “trade”, but it is based on a premise about what prompts people to seek asylum with which we completely disagree.
I said at Second Reading that the Government have not attempted to walk in the shoes of refugees. I do not resile from that at all. Most asylum seekers would want to travel by a safe and legal route—they must be desperate to—but other than in a few narrow circumstances these are not available. The policy rests on deterrence, which is misconceived, because, as has been said, you do not stop to think about whether you will be in group 1 or group 2 when you get here. You do not even think about the chances of being criminalised. I am advised that Clause 11, if enforced, could mean that of those fleeing conflict and/or persecution in Iran, Iraq, Sudan, Syria and Afghanistan—the top five countries from which people arrive here, the last stage of the journey by a small boat—an estimated 9,000 to 21,000 people currently accepted as refugees would be denied protection under the convention. It will be the most vulnerable and women and children who will be affected. The noble Baroness, Lady Lister, was the first to refer to that.
I do not think there are any amendments in this group with which we disagree; we just want to get rid of the clause. However, on Amendment 39, Clause 11(2) requires that one presents oneself
“without delay to the authorities.”
It is not the only instance in the Bill where there is a failure to recognise the difficulties for many asylum seekers who simply cannot tell their story instantly and coherently. The Bill is simply not trauma-informed. I suspect this might in fact be the least troublesome example, because most asylum seekers want to get into the system and to have their application approved as soon as possible, but the difficulties still need to be recognised.
Amendments 43 and 50 are to the subsections that give examples of the different treatment proposed for the two groups. The differentiation of treatment, if it should happen, should be completely clear and in primary legislation. We should not just have examples. It should not be variable or vulnerable to being changed or made worse through the Immigration Rules, which are a matter of the Secretary of State’s fiat without touching either House of Parliament. I am very pleased that the noble Lord, Lord Blunkett, added his name to most of our amendments. I understand why he has had to leave, but it is significant that he did so.
Amendments 44 and 45, and similarly Amendments 52 and 53, would challenge the differentiation regarding leave to enter and remain, because how long you are able to remain has considerable consequences for the “undeserving” asylum seeker. That is on top of all the insecurity inherent in the reduction of the length of leave and increasingly frequent reassessment processes. We cannot expect people’s well-being and mental health, or their ability to integrate into the community where they have found themselves, not to suffer in the absence of certainty; nor can we expect landlords or employers to be keen to take on quite short-term tenants and employees.
Currently, a refugee can apply for ILR—that is, indefinite leave to remain, or, in other words, settlement after five years. What are the criteria for group 2 refugees? What will they have to meet to achieve ILR? Will they have to wait 10 years, like people who have been here on a work visa, and make substantial payments periodically through that period? Quite apart from the impact on the individuals, is this not extra bureaucracy and workload for the Home Office? What is the estimate of the cost to the Home Office? Will that be reflected in the full economic impact assessment that I believe we are promised?
Amendments 47, 48, 51 and 53 are there because, however you travel, family is of the utmost importance. I do not think I need to spell it out; I will just say “common humanity” and “integration”. Family reunion is recognised as important by the Home Office, even if it is not as extensive as we argue it should be. Perhaps the Minister can explain which family member refugees will be able to reunite with, whether that will be an automatic right and whether there will be a fee attached to this route.
Amendment 55 is different but the theme is familiar. It would require the Immigration Rules into which these appalling provisions will be incorporated at any rate to be approved by a resolution in each House of Parliament before coming into force. As I have said, I think all these things should be in the Bill, but we have a provision in here for the rules and that point needs to be taken up. I am pleased to see that the Delegated Powers and Regulatory Reform Committee takes the same view of the need for an affirmative resolution and even more pleased to note its report, which says:
“Given the clause’s significance and the controversy surrounding it, we consider that, where it is proposed to amend the immigration rules to make different provision for different groups of refugees, the amendment should be subject to the draft affirmative procedure so that it cannot come into force until approved by both Houses.”
However, the short point, which others will make too, is that Clause 11 needs to go.
My Lords, I would like to introduce into this debate a subject about which we have heard almost nothing so far: the views of the British people. We are, after all, the upper House of the British Parliament. Their views should be heard.
I have some figures here from the latest YouGov poll on the subject of immigration. The interesting thing is that immigration is now regarded as the third most important subject after health and the economy—even more important than Covid, curiously; I am not sure about that but, none the less, that is what it says. A previous YouGov poll said that 70% of people thought illegal crossings were a serious issue, so the public are well aware of the issue; indeed, they have been seeing it every night on television, particularly during last summer. Some 63% said that illegal immigrants should not be allowed to settle here while 60% said that they should be removed. In a June 2021 YouGov poll, 60% said they thought that illegal immigrants should be banned from claiming asylum, while only 20% thought they should be allowed to claim asylum. Some 64% thought it was fair to remove people who come from safe countries, while only 15% thought it unfair. Those are opinion polls so take them for what they are worth—we all have our views about opinion polls—but they are a snapshot of opinion in the recent past.
My own view is that, on an emotional subject such as immigration, you need to develop a policy with which the British people are comfortable. If you do not have a policy with which the British people are comfortable, it will not be sustainable in the long run. I point that out to the noble Lord, Lord Kerr, who understandably made a point about our international obligations. If we had had a policy on immigration more widely that the British people had been comfortable with in the last 20 years, we might not have had Brexit. Sadly, whether we like it or not, immigration was a huge issue in the Brexit debate. I put it to the noble Lord that the extent to which people’s views on immigration were ignored was a factor leading to the decision that we took. I am a remainer, so I regret that.
I wonder if I could ask the noble Lord two questions. First, obviously public opinion is always relevant, but does he concede that, by definition, someone who is a genuine “refugee convention” refugee is not and never was an illegal immigrant? Secondly—again, this goes to the comments made about opinion—does he agree that opinion is something that the people with the privilege to be in this place, and certainly those in government, play a role in shaping and leading as well as hearing?
My point is that we should pay regard to opinion but it is rarely mentioned in debates about immigration—almost never, in fact. There is a case for putting forward what the British people think about this, whether you think it is right or wrong. I do not think it is wholly right but, none the less, we have to take it into account. We have eventually to reach a position where the British people are comfortable with the Government’s policies; in my view, that is what the Government are trying to do.
I agree that public opinion is incredibly important but, at the same time, we are meant to be leaders; even here, we are meant to lead. Quite honestly, if you asked the British public, they would probably want hanging back; that is still very popular in some parts. Then, of course, there has been a lot of scaremongering by right-wing groups of all kinds, including parts of the Tory party—the ERG and so on—that have misrepresented a lot of what is happening with the refugees who are crossing the channel.
I am one of those people who agree with the noble and learned Lord, Lord Kerr—actually, is he learned? No, sorry—that a lot of these amendments are picking at a scab and there is no point in doing that because it just makes it worse. We have to get rid of Clause 11 because it just makes life harder for refugees and, as we have heard from the noble Lord, Lord Paddick, we are not—
Sorry. I disagree with the noble Lord.
I think there has been plenty of leadership on this issue over the years. People who have supported a pro-immigration policy—or a relaxed immigration policy, whatever you like to call it—have been pretty vociferous over the years; they have not been quiet. We have known what they think. There has been lots of leadership. Leadership is an issue at the moment but I had better not go too far into that. None the less, the people who support an expansive and comprehensive immigration policy have been vociferous; it is the people who are against it who have had their views ignored.
I read a book about Dagenham the other day, written by a Labour activist, which pointed out the comprehensive effect of immigration in Dagenham over a 10-year period. It went from being 85% white British to less than 50% white British and the local joke was whether if you went into a shop anyone there would speak English. People appealed to the Labour Party, because it was the Labour Party that introduced these policies, and were ignored. Dagenham, a long-standing Labour seat, nearly voted Tory in the last general election—and would have done, if not for the Brexit vote—because people had been ignored on the issue of immigration. For them, immigration had simply gone too far, too fast.
I will not take another intervention, if the noble Baroness does not mind, as I have given way twice and want to finish what I am saying. I do not want to go on too long.
This House has to take into account that the silent majority have very clear views about this which they have held consistently for a long period and which have not been heard, and this has had a major effect on the policy positions of the country. In my view, it has had a deleterious effect, unfortunately; I would rather we had stayed in the European Union, but that is the fact we have to face.
It is generally admitted that we are now dealing with a very difficult, specific problem, one aspect of the whole immigration problem, namely illegal crossings of the channel. It is a small part of the problem that creates a bigger problem. Many people have raised wholesale migration, which I understand is a huge issue which is tackled in many different ways—through international development policies, as well as immigration policies, and so forth. However, there is a specific problem here which any Government of any colour would have to tackle, namely people smuggling people—not brandy, tobacco or commodities, but people—into this country illegally, day after day, against the law. That is something that no self-respecting Government can ignore; they simply cannot.
The noble Lord, Lord Horam, makes a fair point: we must certainly take account of public opinion. But I think he should take account of the extent to which political leaderships affect public opinion. The history of the last decade is a history of one of our great parties swinging right on issues of immigration. It is a history of a referendum campaign, where one side argued that 80 million Turks were going to come and there was nothing we could do to stop them. It is a history of a period in which we have constantly been told that we are beleaguered and the target of innumerable people who wish to come here. As the noble Lord, Lord Paddick, explained earlier in the debate, we are well down the league table in per capita terms for hosting immigrants of any hue. It is not good enough just to say, “There go my people. I am their leader; I must follow them.” We are capable of influencing public opinion and that is what we should be trying to do. I will give way in a second—
Can I just—?
I am not sure who is interrupting whom. If I am interrupting the noble Lord, I will stop.
With due respect to the noble Lord—I really do have great respect for him—I do not think we want to go through the whole business of Brexit again. My point is a simple one: we have to pay regard to British opinion. It is not as though people are manipulated; they have their own views. They are perfectly capable of taking a sceptical view of some of the people who have tried to make them do things in the past, frankly. They can form their own views—I am sure the noble Lord would agree. I was trying to narrow it down to this particular point on the problem of illegal immigration which, in my view, any Government would have to deal with, whatever their nature or colour.
As the noble Lord who initiated this debate said, many countries are tackling this problem in quite horrific, awful ways. In comparison with what they are doing, what we are doing is completely rational and sensible. It is trying to make a distinction. There are those who are coming in legally and properly, by the routes which are well known. We have a very good record on that, despite what the noble Lord, Lord Paddick, said, in comparison with the rest of Europe. We have not only a reasonable number of people coming in by the normal asylum-seeking routes each year but also the consequences of the Commonwealth, for example our links with Hong Kong, with up to 90,000 people having already accepted the chance to come here from Hong Kong. That is something which Germany, France and so forth do not have the same problem with.
My Lords, since an illustration I gave has been added to the discourse of the noble Lord, I feel I must interrupt. While I was painting the pig with lipstick—a squirmy pig, very difficult to hold fast to—I certainly listed a number of the horrendous ways in which countries are departing from the principles of the 1951 convention, but also added our own, which are equally nefarious and certainly not to be presented in a positive way.
I think that is a matter on which the Government will no doubt make their position plain. As I understand it, they do not believe that they are departing from the international convention of 1951. Of course, many other countries have taken similar positions. Australia, for example, has divided people into those coming in in the normal, legal way and those coming in illegally, and that has not been denounced by the United Nations. Japan has done the same thing and, interestingly, the Social Democrats in Denmark are about to too. In Australia, they have a cross-party agreement on the immigration policy. I think the Labour Party ought to be more careful in its view of this because it may well become the Government in future and it will face the same problems which the present Government face. These are not only problems which the Government must face simply to be responsible and give people a sense that they control things and that borders mean something, which is their bottom-line responsibility, but also the issues of immigration.
With what we have here, if we can reduce it to the particular problem which the Government face on illegal immigration across the channel, the approach they are adopting helps, first, to deal with the pull factor, by pointing out the advantages of the normal asylum-seeking methods of getting into this country, on which this country has a good record; and, secondly, to dissuade people from adopting the illegal methods which they are at present forced into using.
The noble Lords, Lord Paddick and Lord Kerr, made the point that they are economists, and I am an economist too. The problem is that, if you expand safe routes, you can never expand them wide enough to take account of all the people who want to come here. That is a simple fact of demand and supply, if I may say so, well known in economics. That is the problem which the Government face. As the noble Lord, Lord Liddle, mentioned in a previous debate, you have to have some limit on the number of people coming to this country for good population control reasons. If you decide on a limit and people are comfortable with that, you can decide how many immigrants will be allowed into the country in any one year and then deal with the problem of illegal immigration. In my view, that is the right order in which this should be dealt with, and I believe the Government are following exactly that policy.
My Lords, it is interesting—
Sorry, I thought the noble and learned Lord, Lord Clarke, gave way to me.
I am not accustomed to the practices of this place; I am quite happy to see the debate alternate between different sides. I arrived at this debate—I regret that I have not got to the earlier debates on this difficult Bill—intending to listen but not to speak. I was hoping it would help to resolve the dilemma I face, which turns out to be exactly the same dilemma that has just been addressed by my old and noble friend Lord Horam.
I dare to venture that no one sitting in this Chamber has more liberal instincts than me on the subjects of race, xenophobia, multiculturalism and so on. In fact, one of the satisfactions of finding yourself elevated to the peerage is that you can come into this Chamber, where I suspect 99% of Members have perfectly sound liberal instincts. I have seen society in this country change considerably in my lifetime in the post-war world, and I have said publicly more than once that I think the multi-ethnic and multicultural society in which I now live is a much healthier, stronger and more enriched society than the rather narrow and insular all-white society in which I was born and raised.
The 1951 convention was one of the great contributions that British lawyers and politicians made to the post-war world, and it was obviously highly desirable after the horrendous shock of finding that a European country had organised—or tried to organise—the industrial genocide of a whole race. That is the context in which it was drafted. So my instincts are of course, first, that we should comply with the convention and, secondly, that this is a suitable place to accommodate the many people who need refuge. We have done so very successfully as a country. Although race relations are a problem in some places in this country, I think that our society has handled this better than any other European country. We do not really have the serious problems that quite easily break out in other countries.
But the circumstances have changed worryingly and dramatically. As has been pointed out, because of the horrendously dangerous state of the world, about 80 million people are now displaced, are looking for a better life and would take desperate measures to get it. If my noble friend Lord Horam and I were a couple of 18 year-olds living in Nigeria, I suspect that, if we had more than averagely prosperous families, we would hope that they would raise the money for us to take the horrendously difficult journey of leaving Nigeria to make a new and better life for ourselves. We would then hope for a family reunion and that our family could come and join us once we had made our way in Britain.
Among that 80 million—an extraordinary number—the favourite destinations are probably the United States, this country perhaps second and then France and Germany. They will want to go to these countries because, in the modern world of communications, they can see and know perfectly well that they are where the quality of life is likely to be best for them, if they can get there. The tenor of the debates that I have listened to so far is that we should make sure that there are legal and safe ways in which, in one place or another, we can consider all of these applications and make ourselves at least as attractive as any other country, particularly at a time when many other, previously normally ultra-liberal countries are setting up very considerable barriers to going there.
But we have to reflect on the impact that that might have on our society and culture, because things have been deteriorating recently. The growing public reaction to immigration—albeit expressed in perfectly civilised ways by most people at the moment, fortunately—is one of the reasons why our politics is deteriorating so badly. Every democracy in the western world is seeing the rise of right-wing populist nationalism, which I deplore wherever it occurs, including within the Conservative Party. It is rising—that is the reaction—and it is leading to developments of a kind that have gone further in other countries. In France, the position of Marine Le Pen, who now even has a right-wing competitor for the vote, shows what can happen when you get the wrong public reaction.
Among the public, the overwhelming reaction to the publicised symbol of these worries at the moment—the dinghies coming across the channel and being picked up—is that the Government are failing to stop them. The Government do not have the first idea how to do so, and, actually, neither do I. Plainly, you have to rescue these people and bring them here when they are in our territory—and then they are an asylum and refugee problem.
Our success in deporting the ones who are blatantly abusing their claim of asylum is very poor because it is extremely difficult to dismiss the asylum claim when there is so little first-hand evidence. The legal and practical problems of returning them have also proved extraordinarily difficult. If you believe that they have the nationality that they say they have, you then have to hope that the Government of that country will allow you to deport them back. So I even feel that we are at the beginning of this problem: I do not think that the world at the moment is in a state where the number of displaced people in the Middle East and Africa will go down—indeed, the pressures could grow. So we are in a genuine dilemma. I came to listen to this debate hoping that my mind would be clarified and that I would be converted to the self-confident assertions of people with whom I usually agree on this subject—but I have not been yet. I still have doubts that the Bill will really make the improvements that are claimed.
I close by mentioning this business of making the crossings illegal and giving people a criminal record when they arrive. Will that really give rise to desirable developments? Our incarceration rate is ludicrously high in this country at the moment. We have an excessive number of criminals already in overcrowded prisons like Victorian slums, which are not the right place to punish or deal with them. What will happen to the tens of thousands of refugees if you are going to send them to prisons and detention centres? How will that improve matters, and what will you do when you have refused even to entertain their asylum claim?
So the debate so far has not clarified my mind, but I think that the simplistic solutions that have been offered by some of the speakers moving these amendments need to be challenged. I congratulate my noble friend Lord Horam on raising the big dilemma that faces us all. We do not want the equivalent of Alternative für Deutschland and the extreme-right parties of other countries being strengthened and provoked if we do not get this right.
My Lords, I speak solely as a lawyer. I did not speak at Second Reading; I would have needed to apologise for and explain that a few years ago. Consistently, we have been permitted to engage at a later stage, and that is no longer so.
I confess that I have been working hard to try to catch up with the legal appreciation of the effect of this Bill. I wish to respond to the noble Lords, Lord Kerr and Lord Horam, as a lawyer and in terms of the consistency of the Bill with our international obligations under the refugee convention. Under Article 35, we and our courts are required to have regard to what UNHCR says on the proper interpretation of the Bill in applying it in this country.
Although my views on the Bill overall are still not fully formed, as a lawyer I have come to the clear conclusion that Clause 29 and the clauses that follow Article 31 most directly for present purposes are simply impossible to reconcile with the clear jurisprudence of our courts of the most authoritative nature. For that, reason, I take essentially the same root-and-branch objection to Clause 11 and say to the noble Lord, Lord Horam, that I wonder whether this large proportion of people who, understandably, object to the problems this country has with asylum—and who would wish to exclude, so far as possible, those who are trying to gain refugee status here—would add, “And we don’t care a fig if what we are doing to give effect to that policy flatly contradicts our international law obligations under the refugee convention”.
Intrinsically, the group of clauses to which I refer, including Clauses 31 and 36, bear very closely on Clause 11, which is of course the subject of this group of amendments. The centre of the Bill’s approach, and that of Clause 11, is to try to create a particularly disadvantaged subcategory of asylum seekers, essentially on the footing that they fall outside the protection of Article 31 of the convention. The fact is that Article 31 is addressed both in Clause 31 and, as it happens, in closely similar terms, in Section 31 of the Immigration and Asylum Act 1999. So there it is: we are talking about Article 31 of the convention, Clause 31 of the Bill and Section 31 of the preceding legislation, the 1999 Act.
Clause 36, more particularly, seeks to override well-established case law most directly. All this is explained in the series of authoritative legal opinions that have been addressed, certainly to me and probably to other lawyers in the House, by the Bingham Centre, the UNHCR and Amnesty—and by the Joint Committee on Human Rights, which is a very authoritative body of both Houses.
The Bill now seeks to overcome the effect of a divisional court case known as Adimi. I confess that, way back in the last century, I gave the leading judgment in that case but, much more importantly, it was approved explicitly on the critical questions—of coming here without delay and so forth—by the Appellate Committee of your Lordships’ House, presided over by the late and much-lamented Lord Bingham of Cornhill, in a case called Asfaw. The reference is 2008 1 AC 1061. It is a compelling leading judgment and indicates that the position, authoritatively decided in accordance with UNHCR advice and all the earlier indicia, is not compatible with what Clause 11, by reference to Clauses 31 and 36, seeks to do: to create this category B, to be regarded as illegal entrants to this country. It is on that basis, and not the narrower although well understandable objections to Clause 11 from other quarters, that I shall particularly resist the inclusion of Clause 11 in the Bill.
My Lords, in rising to support the proposal that Clause 11 do not stand part, to which I have added my name, I declare my interest in relation to both RAMP and Reset, as set out in the register. Along with colleagues on these Benches, I looked carefully at the possibility of making amendments to Clause 11 along the lines of those proposed, and reached the conclusion that the only thing we could fully support was the removal of the clause.
The proposal to separate refugees into two groups depending on how they arrived in the country, and whether it was their first country of arrival, are inimical to the whole basis on which the refugee convention is built. It is a betrayal of the letter and spirit of it. The idea that asylum must be claimed in the first country of arrival has no basis in international law; this is the view of the UNHCR and of the legal community. If imposed, it would place an unsustainable burden on a small number of nations, most of which are already under immense strain. The whole purpose of an internationally agreed convention is to recognise that the responsibility for the care and support of refugees needs to be carried by the whole global community. We recognise this as a nation by setting up and running resettlement schemes, working with the international community. So to try and declare this for those who claim asylum on arrival here, even if they have passed through other nations, does not logically fit with our recognition of the need for global collaboration and a global sharing of the demands.
I say to the noble and learned Lord, Lord Clarke, that the danger is that we go into a wider refugee debate rather than debating the clause. The vast bulk of the 80 million refugees have no desire to go anywhere other than back into their own country. That is where most of them wish to go; I have seen that and talked to them first-hand.
However, let us for a few minutes work with the idea of claiming asylum only in the first nation of arrival, and see how this would work with the proposals in Clause 11 for our nation. We are an island nation; therefore, no one could ever make a first arrival here by land—no one in group 1. We are an island nation, so arrival by sea is a clear option, but none of us wants to see arrivals by sea in unsafe boats. So the safe ways must be via ferries, or cargo or passenger ships coming from longer distances away. The likelihood that such journeys could be undertaken in a way that is deemed legal under the Bill is very slim.
Those fleeing persecution, domestic violence, war and the impact of climate change may well have to do so without all the relevant paperwork, and certainly with no valid visa. They might just secure a paid-for passage without all this but it is highly unlikely. It is more likely that they will find themselves having to stow away in a van, lorry or container, or somewhere on the boat, so they will arrive having travelled illegally—hence they go into group 2. The number who would travel in complete fulfilment of the Bill in a legal manner would be minimal—almost no one in group 1.
We are an island nation, so arrival by air is the other clear option. Stowing away on an aeroplane is decidedly harder than on a ship but might just be possible. However, I think we all understand it is illegal, so such arrivals would go straight into group 2. Perhaps someone somehow manages to purchase a ticket and travel with their own passport but with no visa. As it happens, I was nearly refused entry to a plane when returning home from Portugal last autumn because of an issue over my Covid vaccine passport, so how one would succeed without a valid visa is an interesting question. It might just happen; however, on arrival, there is no visa so they could easily be deemed an illegal arrival, therefore in group 2.
Perhaps they have a visa as a student, so entry happens legally. But this student is not simply studying; they are fleeing because they are gay and know that they will be persecuted in their home nation if they come out. That will be made worse for them because they also come from a minority tribe who already feel put down, so on arrival they claim asylum on the basis of their sexuality and the likelihood of persecution. However, this was not the purpose of their visa. This is not theory: it is the story of Azmat, who I, along with several other Peers, met online last week. Such people do not qualify for group 1 but go into group 2.
The UK resettlement scheme and the Afghan citizens resettlement scheme are not open to all the nationalities most commonly accepted as refugees by the UK Government. Vulnerable people requiring protection will therefore become group 2 refugees. People cannot jump a queue where there is simply no queue to join.
I believe that this clause will effectively make the vast majority of asylum seekers group 2 refugees. I additionally believe that every attempt will be made to reduce what is regarded as “good cause” for arriving illegally. Can the Minister set out the evidence that shows how reducing the rights and entitlements of refugees will have the effect of actually deterring dangerous journeys? Is there any evidence? Secondly, what estimate has the Home Office made of the cost of needing to reassess a refugee’s protection needs every two and a half years, and what impact will that have on existing delays in making asylum decisions?
At Second Reading, the Minister challenged those of us opposed to many aspects of the Bill to say what should happen. On this matter, I believe it is straightforward: accept that, for a wide variety of perfectly reasonable grounds, some people seeking asylum want to do so in this country—although most actually choose to go to other countries. Huge numbers do not prefer us; they prefer to seek asylum elsewhere. But, for those who do, we must treat them all equally; ensure that there are adequate, well-trained staff to process applications in a timely and accurate way; have a wide volunteer force to support people seeking asylum while they go through that process; and supply good legal aid for people seeking asylum at the beginning of their asylum application. Yes, it will cost more initially, but if the right to work is also granted—we will come back to that later—and the process is handled with due speed, it will not cost more than the lengthy periods currently endured by far too many people seeking asylum, together with the costs to the Government of their reliance on the appeals process to ensure that a correct decision is made.
Additionally, far more time and energy should be put into the creation of really effective, safe and regular routes. The UK resettlement scheme should be expanded to ensure that it is open to more people who would otherwise use irregular routes. We should make it possible for people to apply for humanitarian visas in order to claim asylum and ensure that all refugees have access to family reunion, with a broader definition of family members who qualify. These all give people ways of cutting out the criminal gang in their journey to safety; we all want to cut out the criminal gangs.
The whole purpose of an internationally agreed system is to ensure that all asylum seekers find themselves treated on the basis of an equal opportunity for their case to be presented and heard. Distinguishing in the way proposed is immensely dangerous for such equal treatment and for the maintenance of an internationally agreed system. As framed, these proposals present a nation that wants to be not a global, generous Britain but a little, mean-minded Britain, determined to play less and less of a role in the world. This will not do, and I do not believe that the British public want us to play less and less of a role in the world.
I say to the noble Lord, Lord Horam, that one of the things that happens when people meet those seeking asylum and refugees, and hear their stories, is that they change their mind and heart. I have seen it time and again in Gateshead, Hartlepool, Darlington, Stockton and Sunderland: people welcome the refugees and discover that they want these people to be their neighbours and to be part of this nation. This clause needs simply to be removed.
My Lords, I feel profoundly uncomfortable with Clause 11, and I am very tempted to vote for it to be completely removed. But I wanted to listen to the debate, and I am afraid that the people who have argued for the removal of Clause 11 have given me pause for thought, which was not what I expected to happen when I arrived. The reason is the way that this discussion has taken a particular form politically.
I am somebody who voted to leave the EU from the left—in the Tony Benn tradition—and I have historically been liberal on immigration. I have fought on many anti-deportation campaigns, and I am not somebody who thinks that one should close the borders. I am, more than anything else, a democrat; even in this House, I try to stay a democrat. I appreciated, with some irony, the comments of the noble Lord, Lord Horam, and the noble and learned Lord, Lord Clarke—Conservative remainers with whom, to be honest, I have not historically had a great deal in common but who raised some important issues that should inform this debate.
My concerns about Clause 11 were very well expressed by the right reverend Prelate the Bishop of Durham, who explained in great detail where I was finding difficulties with this. But I have a problem with the solution and the way in which this debate has been conducted. I think it is important to consider the British public’s opinion. It was interesting that a lot of people have asked us to walk in the footsteps of asylum seekers; I think empathy is hugely important and humane. But I also ask noble Lords to walk in the footsteps of the British public, who, if you ask them their opinion, do not all want hanging. Leadership is, broadly speaking, not the same as usurping their perfectly reasonable concerns.
What are their concerns? They are not that they do not meet any asylum seekers and, when they meet them, they change their minds; not that they lack generosity; not that they are xenophobic, mean spirited or narrow minded; and not that they want to close the borders and hate foreigners, as is often implied. Their concerns are that they would like control over the borders, which I think is a perfectly reasonable demand. A visceral illustration of a lack of control over the borders has been given to us by those arriving in boats, and we are all trying to untangle what to do about it as humanely as possible. That includes the British public, millions and millions of whom are incredibly generous of spirit towards all sorts of people and do not need lectures from here about how they have to open their hearts to people. They are full of heart-brimming generosity in all sorts of ways. Why do we have an issue here?
This is the bit that I cannot untangle. There are people who are seeking asylum legitimately, and one wants to welcome them. There are people trying to come to the country who are undoubtedly illegal immigrants, as anyone would understand them, but because there are very few ways to arrive as an economic immigrant, they may choose to describe themselves as asylum seekers. On a different set of amendments I will say that we should have more liberal immigration rules that would allow unskilled people to come as economic immigrants to this country.
We can see, and it is perfectly reasonable, that you cannot just say to people that everybody who arrives on a boat is obviously an asylum seeker, and that everybody who worries about them arriving must be a mean-spirited, horrible person who hates foreigners. That is my concern. I am trying to untangle that, because I genuinely do not know what to do. As I said, I would be liberal about economic migrants coming to the country, as much as I would about asylum seekers coming to the country, but I feel as though everyone is being forced to declare that they are asylum seekers because it is the only route in where you will not get kicked out. So I think that we are in a mess.
The Government need to answer this. What happened in relation to Brexit—for noble Lords who are interested in this—was not that people did not want any foreigners to come into the country but that they were told that freedom of movement was a non-negotiable international agreement that nobody could ever debate. So as democrats, people said, “Well, I live here; I’m a British citizen”—many of them from ethnic minorities, before anyone goes down the racist road—and they said, “Shouldn’t we be able to control who are British citizens who come here?” That is what happened. Other people said, “No, we can’t because we’re in the EU; we’ve got no choice”. So they got annoyed. My concern here is that if we say to the British public, “You either agree with us or you’re a xenophobe”, or, “You have to agree with us because we’ve got a refugee convention”—another international agreement from 1951, however good it is—“and it’s the only thing going; there’s no alternative”, that will also indicate that they have no democratic power.
I cannot understand why the Government keep trying to fit in what they are doing to the 1951 refugee convention, which, although one noble Lord described it as having been written in utmost liberality by British lawyers, was written by British lawyers—not by the British public. I want the laws to be written by the British public and for the British public, not just by lawyers—and in 2022, not necessarily referring back to 1951 all the time. I have no objection to that convention, but if it is not fit for purpose in 2022 to take control of our borders, the debate about immigration and asylum seekers will become toxic, if we just keep telling people that they cannot have this discussion. I believe I can convince my fellow citizens to be more liberal on immigration, but not when they are told that they cannot have the debate or that if they want to have the debate or to express worries about people arriving in boats, they must by their very nature be lacking in generosity and xenophobic. That is not the way to go. I am still likely to vote against Clause 11, by the way.
My Lords, I think we have been having this debate all my adult life and probably all my life, but I am certainly happy to keep having it; there is nothing wrong with that. However, I do think that it is very important in the context of Clause 11 to make a distinction in Committee between immigration and asylum. If I may say so, I do not think that Brexit is terribly helpful to an analysis of Clause 11. It used to be said that for the French, a meal without wine is like a day without sunshine. Clearly, for some people the equivalent is a discussion without Brexit, but I am not one of them.
It is important to make this distinction between immigration and asylum, which are both big and important debates, but they are too often conflated—not just in our discussions in this Committee but to some extent in Clause 11 itself. The noble Lord, Lord Horam, did not have the opportunity to reply to my question—all sorts of people intervened in his speech, to be fair—but if somebody is a convention refugee, they are not and never were an illegal migrant. That is incredibly important.
I congratulate the right reverend Prelate, who I think gave the speech of this Committee, and not just because I agree with him. I do agree with him, and also the noble and learned Lord, Brown of Eaton-under-Heywood, and, of course, the noble Lord, Lord Kerr. What was so important about the right reverend Prelate’s speech was its specificity to the refugees’ journey and the way that that would be affected by this differentiation. I congratulate him on that, because it is a very good way to analyse Clause 11: whether it works and whether it complies with the refugee convention.
Why is compliance with the refugee convention so important? It is not like choosing to vote in or out of something that began as a trading bloc but was always a particular grouping of countries rather than the whole civilised world. The reason why the refugee convention is so important is because, after two world wars, it was literally the world’s apology for the Holocaust. That is the best way that I can sum up why the refugee convention is so important. While Britain did wonderful things, not least standing up to Hitler with lots of Americans and Russians and people from the Commonwealth too, and there are very good things to be said about Britain’s contribution, there were also less noble things that have to be remembered—about the people who did not manage to get out, who did not escape the Holocaust, including people who were not allowed into this country and other countries around the world.
It was through learning from that experience that we, led by Winston Churchill, decided to have a refugee convention so that in future people would be able to escape, including by clandestine means, with false documents, on little boats or whatever. That has not yet been said. I know it is a sensitive thing to say but, much as I would love to, I am afraid you cannot discuss the intentions of the drafters of the refugee convention without remembering how it came to be. The right reverend Prelate’s speech was perfect in looking at somebody in that situation today, but it is not a bad idea to look at people who did not make it then either. By the way, we in this country refused refuge to none other than Albert Einstein—something I occasionally remind myself of.
Subsequent to the war, the word “refugee” became quite a noble concept, particularly during the Cold War, when refugees made us feel really good about ourselves. They were defecting spies; sometimes they were great athletes and ballet dancers, and so on. The numbers seemed relatively small, but they made us feel good about ourselves, because they were defecting—escaping totalitarianism—and this was the place to be instead. We thought that was great. But then the numbers increased because of airline travel, and we were no longer just talking about people escaping across a land border. Particularly post-colonisation, it was open to people to get on planes and come to a country that was not across a land border but with which they had some association—maybe the language, family, the common law—and suddenly, the Home Department got a little more concerned about the numbers of refugees.
By the way, this is not a partisan issue: if one looks at the history of the refugee convention and its application, Governments of both persuasions have been good and bad in their treatment of both migrants and refugees. Once the first aircraft of, I think, Tamil refugees landed at Heathrow Airport and people claimed asylum, suddenly the Home Department decided to move into territory such as “carrier’s liability”, and not just visas but “transit visas” and, in subsequent years, applying the transit visa regime even to countries that we knew to be either war-torn or producing genuine refugees. This happened some years ago and is something that people in both parties do not like to talk about, because it is a slightly dirty little secret that we have been closing this door on genuine refugees for some years. It did not just happen with this Bill, but the Bill is taking it to a pretty horrific conclusion.
We have the current proposals in Clause 11 for the two-track differentiation and, thanks to the announcement in the Times mentioned by my noble friend Lord Coaker, we have further proposals to differentiate against all men in boats. On Clause 11, to talk about “differential treatment” is horrendous in itself when you think about persecution. At the heart of all persecution is discrimination and differentiation; it is about people in a particular country who are being picked on and persecuted on some ground of difference. To then repeat that discrimination and bake it into a system supposedly of refugee protection is not just in violation of the convention—it is particularly obscene.
The way that Clause 11 mashes and contorts Articles 1 and 31 is really quite perverse. Article 31 was designed to give extra protection to the most desperate refugees and to ensure that they were not penalised for coming via clandestine means. The travaux demonstrate this. The drafters of the convention understood that some of the most genuine refugees of all—the most desperate, the most persecuted—are, by definition, those who have to come by clandestine means. Article 31 was designed to ensure that we did not refuse or penalise them automatically because of that. In Clause 11, we have almost flipped Articles 1 and 31 over, as the noble Lord, Lord Kerr, said, so that coming by clandestine means now puts you into the worst category. The noble Lord has to be right that when the UNHCR—the custodians and guardians of the refugee convention—is as concerned as it is, we are really in trouble, let alone all our domestic NGOs and other international ones.
As to the Times report, referred to by my noble friend Lord Coaker, the idea that all these young men are automatically, as a class, to be detained is not just obvious discrimination and obviously contrary to the refugee convention—and, by the way, Articles 5 and 14 of the European Convention on Human Rights and the Human Rights Act—it also seems slightly odd from a Government who do not like people banging on about misogyny, but have no problem with a bit of misandry. Young men are now going to be discriminated against by the Government for being, perhaps, the fittest and, therefore, the ones most able to escape via these unsafe routes. It does not make them less worthy. It just means that the young women and elderly people back home did not have the means of escape; it does not make their escape any less worthy. Desperation looks like that and sometimes it is the fittest who get away.
The noble Lord, Lord Horam, talked about the views of people, as did the noble Baroness. I, like the right reverend Prelate, have worked with lots of refugees over the years. I have also conducted polling and talked to people about their attitudes to refugees. I believe in the best of people. People want fair play; people want a sense of control over their lives and, if you like, their borders. However, this is not free movement; this is not immigration policy. This is about saying to people, “These are desperate people. These are people who want to make a contribution, as so many before them did. Give people decent jobs and services and a decent quality of life and do not divide and conquer or turn people against their neighbours. Let refugees and asylum seekers work and live as neighbours in the community.” When that happens, people feel positive about refugees and asylum seekers and conduct community campaigns to stop them being deported. I have seen this happen all over this country.
In conclusion, I agree with the right reverend Prelate; I am on his team and those who spoke with him. The way forward is family reunion, humanitarian visas and improving the first-tier administration in the Home Office. I once worked there, and the first-tier decision-making is appalling. By the way, seeking to avoid wars over there is quite a good idea if you are worried about the obligation under the international rule of law to give refuge over here. Noble Lords should think about the consequences. If every country—particularly every developed country—around the world adopted the approach in this Bill, would there even be a refugee convention left?
The noble and learned Lord has an amendment and he wishes to speak to it.
My Lords, I would like to speak to my Amendment 41. It is a very specific amendment relating to Clause 11 as it currently stands. Before I turn to that, however, I will take up the words of my noble and learned friend Lord Brown in relation to providing a legal structure for our discussion here. The first thing, which has been emphasised by a number of noble Lords, though not all, is that Article 31 is central to the discussion. This is because it is obvious that the Government, in relation to Clause 11 and the following clauses, are seeking to interpret and apply their view of Article 31.
It has been suggested that we can ignore the convention because we must have regard to what people think today, but I am afraid that we cannot do that. We are a party to this convention: if we do not like it, the Government will have to recuse themselves from it and try to get other countries to change it. At the moment, however, the convention applies.
Article 31 says that no penalty shall be imposed on account of illegal entry or presence on a refugee who satisfies three requirements. These are the three requirements set out in Clause 11. The first is that the refugee comes directly from the territory of persecution. The second is that the refugee presents themselves without delay to the authorities. The third is that the refugee shows good cause for their illegal entry or presence. That is what Clause 11 is about. However, you cannot read Clause 11 on its own because the subsequent clauses all have some impact on it. In particular, Clause 36 is critical because it seeks to give a definition of coming directly from the territory of persecution.
Noble Lords will see from what I have just described that, although Article 31 says what the Government cannot do—that is, they cannot impose a penalty if those three requirements are satisfied—it does not go on to say that, if they are not satisfied, you can have a differentiation such as that in Clause 11. That is a matter of policy, and I can certainly see the force of the argument for saying that this division that has taken place in Clause 11 is sufficiently inconsistent with the definition of a refugee to make it improper.
There is a more fundamental point: Clause 36, referred to by my noble and learned friend, in seeking to define “coming directly from another country,” says that the requirement is not to be taken as satisfied if the refugee stopped in another country outside the UK, unless they can show that they could not have reasonably been expected to have sought protection under the convention in that country. There is no such qualification in Article 31, and it appears that the Government believe they can, through legislation, elaborate on the meaning of Article 31 in whatever way would best suit the current asylum policy of the day. This, I am afraid, is entirely misguided as a matter of law.
As an international treaty, the convention has the same meaning for each and every member state that signed up to it. It cannot bear different meanings for each member state, according to the policy of the Government of the state for the time being. In England and Wales, the court has, pursuant to its constitutional role of interpreting legislation and written law, held that a refugee may still come directly to a member state, within the meaning of Article 31, even if the refugee passes through one or more intermediate countries, if the final destination of the refugee has always been the state in which the asylum is finally claimed and the halts in the intermediate country or countries are no more than short-term stopovers. My noble and learned friend Lord Brown referred to his judgment in the Adimi case, which decided that very point.
On the global picture, to cut matters short—before I turn to the particular amendment—I am against the division, the separation, between group 1 and group 2 in Clause 11 because it depends on a requirement, or the failure to meet a requirement, which is directly contrary to the convention. Therefore, I certainly object to the division between group 1 and group 2 so long as Clause 36 stays in its present form, with its present definition of coming “directly”, on both logical and legal grounds—quite apart from the matter of general principle, which other noble Lords have mentioned, about the demeaning nature of distinguishing between two different categories.
On another requirement, that of presenting directly to the authorities, I think the right reverend Prelate already referred to the fact that in many of these cases—for example, wives who have fled from abusive marriages in a conservative religious country such as Pakistan—people have to flee in a clandestine way. That was the word used before. The idea that they can present themselves straightaway—for example, to a male representative of authority—and describe their situation seems unrealistic in many of these cases. Yes, it is true that we welcome large numbers of people under resettlement schemes—Afghanistan and Hong Kong are examples of those—but when we are talking about these other refugees, whom I would describe as the genuine refugees seeking one by one to escape from persecution, it seems to me that Clauses 11 and 36 as currently worded are inconsistent with the convention. For that reason, like my noble and learned friend Lord Brown, I would object to them.
I am very grateful to the noble and learned Lord for giving way, and I agree with his analysis entirely. I just wanted to ask him this question, which the Committee might want to know the answer to: if his view, and the view of the noble and learned Lord, Lord Brown, is right, what would be the consequences of some of these cases—were the Bill to become enacted as it is—if they reached the courts?
Strictly speaking, the legal position is that there is no basis for individuals to enforce the convention, but it is enforceable by other member states, which can complain that this country is not complying with its obligations. I would expect that that may well happen. So far as coming here illegally is concerned, my noble and learned friend Lord Brown referred to the Adimi case, which was about whether there was an illegal entry. He held that there was not, because although these refugees passed through intermediate states, they did in fact come directly. So, the individual is placed in a not very satisfactory situation, but the state can certainly be held accountable in the International Court of Justice, and that may well happen.
If I may now descend from the wider view to the narrower, I want to deal with a point I have raised in relation to Clause 11(3) and other similar clauses which impose a requirement on a refugee. The requirement, as it were, or even a breach of it can be overcome if
“they can show good cause for their unlawful entry or presence”,
and there are other provisions saying that this can happen where there is a “reasonable” expectation of something happening or where something is “reasonably practicable”. In all those cases, I have sought to table an amendment which says that, in deciding what is good cause, practicable or reasonable, the immigration officer should take into account any protected characteristic of the refugee within the meaning of the Equality Act which is innate or immutable. I do not want to get too involved in the legality of those terms; basically, that is relevant under decisions in our law to people who claim to be a member of a particular social group. Being a member of particular social group that is being persecuted is one of the categories of refugee in Article 1 of the convention, so I do not want to spend too much time on that. There are nine protected characteristics in the Equality Act, but only some of those will be innate or immutable.
That expression, “innate”, is used in the Bill itself in describing the meaning of a particular social group. Your Lordships will find it in Clause 32, which also expressly states that a
“social group may include a group based on a common characteristic of sexual orientation”.
I want to take up that point to explain why I suggest it is necessary that wherever there is a reference to reasonable cause, reasonable expectation or what is practicable—as I have said—there is an express statement in the Bill that the fact that the refugee has a protected characteristic which is innate or immutable should be taken into account.
I want to take the case of LGBTQI+ people to illustrate the reasons why. First, experience has shown that, all too often, difficulties arising from a characteristic such as that have not been taken sufficiently into account. The approach to LGBTQI+ refugees has often been woefully inadequate and misguided. It was not until the 2010 decision of the Appellate Committee of the Supreme Court in HJ (Iran) that it was established that the Home Office could not refuse an asylum claim from a gay man or lesbian simply on the basis that if they could reasonably be expected to act discreetly in their home country, rather than live openly with their sexuality, they would not suffer persecution. Therefore, it was only some 12 years ago that the Home Office, which fought HJ (Iran) right up to the highest court in the land, was obliged to accept that its approach to LGBTQI+ refugees, in the words of then Supreme Court Justice Sir John Dyson—later Lord Dyson and Master of the Rolls—frustrated
“the humanitarian objective of the Convention and”
denied LGBTQI+ people
“the enjoyment of their fundamental rights and freedoms without discrimination.”
Secondly, it is well known that LGBTQI+ refugees face a large number of practical difficulties in claiming asylum. I will address these in due course, when we come to the relevant clauses in the Bill, to show why there has been a failure to satisfy a particular requirement. In the case of Clause 11(2)(b), the issue is whether they presented themselves without delay to the authorities and can show good cause for their unlawful entry. This is the question of clandestine exit. As I have said, it applies also to abused women in abusive relationships coming from a conservative religious community. They cannot go and buy a plane ticket. They cannot indicate in any way in these countries what the reason for their seeking asylum is. The result could be honour killings, stoning or being thrown off a wall, so they keep their characteristics as far as possible to themselves. It is not surprising that they are slow to report themselves or that their routes here are clandestine.
Finally, on this point, the Home Office’s own statistics show the extent to which claims by LGBTQ+ asylum seekers have been wrongly rejected by immigration officers. Experimental statistics published by the Government in August 2019 on lesbian, gay and bisexual asylum claims show there was an initial decision grant rate of 29% in 2018. However, 38% of appeals relating to LGBT asylum applications were allowed in respect of applications made in 2015-18. These published statistics are qualified in some respects but, in broad terms, they reflect the reality of a substantial proportion of successful appeals. That is why, in my suggestion, wherever we see in this Bill as currently framed any reference to good cause, those with protected characteristics that are innate or immutable must be protected by an express reference on the face of the Bill.
My Lords, I think the House would be grateful if somebody, in one sentence, expressed appreciation for the speech of the noble and learned Lord, Lord Clarke of Nottingham. No one doubts that, over the past 50 years or so, he has been a beacon of liberalism within his party. The point he made in this connection is that there is a great dilemma facing us all. Apart from climate change, the dilemma is that, for governance systems in parts of the world—Africa is the continent that springs to mind—we will have to have a new arrangement for crossing the Mediterranean whereby we do not get into all these problems, which are getting worse. That speech is not easy to make, but I just want to say that the honesty and the examination of the dilemmas we all face has been a credit to this House.
My Lords, I remind everyone that Clause 11 is not only not about immigration, let alone illegal immigration; it is not even about asylum seekers. It is titled “Differential treatment of refugees”—people who have been recognised and accepted as entitled to asylum in this country. What Clause 11 means is that the Government want to penalise a certain category of people who have been accepted as refugees. On the one hand, we accept them as refugees, but then we are going to turn round and penalise them in various ways for how they arrived. I have agreed with all the critics of Clause 11, and I agree that Clause 11 as a whole needs to get the chop.
Clause 11 wants to penalise people with a much-reduced permission to stay; by requiring several frequent applications for further permission to stay; by keeping them in uncertainty for many years; by excluding them from public funds; and by delaying or denying altogether a visa for family reunion. I suggest that this is not only pernicious, as everyone has said, but costly. It is costly to that individual and it is costly to society, because it is not good for society when you have people who are unable to integrate and living with instability, isolation, possible destitution, homelessness and separation from family. They have been recognised as refugees, which means that we expect these people to be part of our society. I cannot see that it is good for society.
I had the opportunity, when the Minister was kind enough to meet me, to receive the great news on CSI. I come at this with an approach of both principle and practicality. As I say, I cannot see that it is in the interests of either society or the Home Office to have people living in this constant fear of what their futures are going to hold. We are told that the asylum system is broken. We know about the 125,000 unresolved applications. We know about the time and delays; on average, it now takes a year to decide a case. When I was an MEP, I had people who had been waiting three and a half years for an initial application, with the harm it did to them physically and mentally and to their status within their family as well. How is it going to help the Home Office to have more administration in constantly having to review these applications to decide whether it is going to deny public funds or renew the permission to stay?
There is also bound to be an increase in litigation that arises as a result of Clause 11. I appreciated the comments of the noble and learned Lord, Lord Etherton, on the likely legal situation but there is bound to be strain on the legal and judicial systems from all this. I cannot see that this is going to help the problem of overload in the Home Office. It is shooting itself in the foot with all this.
I want to say something about family reunion in particular. I had an opportunity with the Second Reading of a Private Member’s Bill on family reunion, which I sort of took in relay from my noble friend Lady Hamwee. That was last September; I do not know whether it will make any further progress. Penalising group 2 refugees through family reunion is going to penalise women and children in particular and remove the largest single visa route by which they have a chance of arriving. Other people have made the point that that is going to create the incentive for dangerous and unsafe routes to this country—even more business for the smuggling gangs we are told the Home Office is so keen to put out of business.
My Private Member’s Bill wants to enlarge the opportunities for family reunion, particularly by allowing unaccompanied refugee children the right to sponsor their parents and siblings under the age of 25, as well as allowing adult refugees to sponsor adult children and siblings under the age of 25. Clause 11 goes completely in the opposite direction to what I and many other people want, but I do want to ask what the situation would be under Article 8 because there are no details in this Bill or any of the supporting documents on what the family reunion rights for group 2 would be, other than that the temporary protection status they would get would “restrict” those rights. In the other place, Tom Pursglove MP from the Home Office said, in writing to members of the Public Bill Committee, that
“we will not permit Group 2 refugees to reunite with families unless a refusal would be a breach of our international obligations under Article 8 of the European Convention on Human Rights (ECHR). Our policy on Article 8 is already clear.”
I am grateful to the British Red Cross briefing for reminding me that, far from being clear, the Home Office’s current guidance on Article 8 runs to 100 pages.
This Bill will make the family reunion process far more complicated, again going completely in the wrong direction. It is also not clear what level of evidence would need to be provided to substantiate an Article 8 claim. The Home Office has not set out under what circumstances it would consider that a refugee in the UK would not engage Article 8. If you are seeking to have your family, spouse and children come and join you, how would that not come within Article 8, which concerns the right to family and private life? I ask the Minister to give in her reply a bit more clarity about what family reunion rights group 2 refugees would have under Article 8.
Clause 11 is not only pernicious in principle: it has bad practical implications all round for the refugee, for our society and for the workload of the Home Office.
My Lords, I listened carefully to the noble Baroness, Lady Ludford, and she quite rightly reminded the House that we are talking about asylum seekers. I have to say that, after that, our paths diverged quite considerably.
In listening to a debate covering 16 amendments and a clause stand part, I discerned three angles. The first, what I might call the ultras, led by the noble Lord, Lord Kerr, want to remove the clause completely. The second angle is to take the clause to pieces, as in the amendments from my noble friend Lady McIntosh, moved by the noble Lord, Lord Griffiths of Burry Port. Thirdly, there are the other amendments, described by, I think, the noble Baroness, Lady Hamwee, as picking at the scab. If you leave aside the point that the clause should not exist and take the other two, the inevitable result is that what we are doing, maybe imperceptibly, is widening the opportunity for asylum seekers to come to this country. How many and whether it is a good or a bad thing can be debated, but that is going to happen if we accept the amendments put forward in this group.
That, in turn, raises a couple of issues for me about fairness. First, there is fairness to those who have so far followed the scheme for tier 1 and are therefore going to find their position disadvantaged by the arrival of more people who would otherwise have been in tier 2. Once that thread is broken and the rules become more judgmental, then there are obviously issues of fairness for those who have the clearest position.
The second question of fairness is about the contract with the British public. In the debate on Clause 9 at the last meeting of the Committee, I discussed the nature of what I call “informed consent”. I described it as a concept that Peter Bauer had expressed to me half a century ago in a debate at my business school. Here, I touch very much on the point made by my noble and learned friend Lord Clarke, and the noble Baroness, Lady Fox. There is a question of informed consent. The informed consent is not absolute; it is conditional. One of the reasons I think we have had reasonably satisfactory race relations so far is the point made by my noble and learned friend Lord Clarke that the public have felt, though stretched, often badly stretched, their consent is still there. But, as I say, it is not absolute and we need to make sure that the British public is able to see rules that are clear, unequivocal and comprehensible in their impact on them, their families, their communities and the society in which they live. The more complex the rules become, the greater the chances of cases emerging that will endanger and maybe break that informed consent.
My second point of concern about this is what I call “foreign shopping”. For a number of years I was a trustee of a charity called Fair Trials International—the name is self-explanatory—which does excellent work in many areas but in particular as regards extradition. We came across the extremely unattractive practice of people seeking extradition going round looking for the best jurisdiction, the best legal system or the best court to enable them to be successful. I think we have to be very careful to ensure that similar practices, which may already exist now, do not grow further as regards asylum seekers.
Again, my noble and learned friend Lord Clarke referred to it. He said, “If I was in Nigeria with my noble friend Lord Horam and we were deciding we were a couple of likely lads and we thought the future looked better outside Nigeria, we would look around at all the jurisdictions that might offer us the best prospects.” Now, I think the United Kingdom is an extremely attractive place to go to. We have had a long debate tonight and I am not going to go through the reasons why I think it is. They include a series of things, not least that people can see that the Parliament of the United Kingdom spends time talking and thinking about it and is concerned about it. What better way to try and find your way into a country that has the interest and the focus to make sure that even the lowest person is looked after and their rights are protected?
When my noble friend the Minister comes to wind up, I hope she will be able to say that the Government are going to look very carefully at the impact of more asylum seekers of variable abilities, perhaps—more people who may risk breaking the informed consent of the British people. For all these reasons, we need to be very careful before we widen the aperture and widen the opportunities any further than proposed in the Bill as presently drafted.
My Lords, I oppose Clause 11 and simply want to pose four questions, the answers to which I hope might help clarify the mind of the noble and learned Lord, Lord Clarke of Nottingham—my home city.
First, how is it possible to decide a priori whether someone is an economic migrant or a refugee on the basis of how they arrive in the country? It appears to be a key assumption on which Clause 11 and much of the Bill is based. The evidence—in particular the Refugee Council’s analysis of channel crossings—shows that most of those crossing the channel irregularly, and therefore deemed illegal, are likely to be recognised as in need of refugee protection. That does not support the assumption.
I recently met virtually with members of the Baobab Centre for Young Survivors in Exile and was told that, in their 32 years of work, they had never met an unaccompanied young person who had arrived by a safe and legal route, yet all had been fleeing danger, with many having seen family members killed and many traumatised. A constant refrain among the young survivors themselves was that they wished Ministers would put themselves in their shoes—a refrain we have heard before this evening—and that they felt the proposed policy was based on a lack of compassion and trust.
Secondly, what assessment has been made of the likely impact on integration—an issue raised by the noble Baroness, Lady Ludford, which Ministers claim is still a goal—of creating a second-class group of refugees with no security and only very limited rights?
Thirdly, what assessment has been made of the case made by a number of organisations, including the UNHCR, that placing restrictions on the right to family reunion for this group will, in the words of the Refugee Council, “all but destroy” the
“main safe route out of conflict for women and children at risk”.
Fourthly, and finally, why should we accept the Government’s interpretation of the refugee convention over that of the body with global supervisory responsibility for it? The UNHCR has provided detailed legal observations in support of its claims that the Bill is
“fundamentally at odds with … the United Kingdom’s international obligations under the Refugee Convention”.
Likewise, Freedom from Torture has published a joint legal opinion from three chambers which states that
“this Bill represents the biggest legal assault on international refugee law ever seen in the UK”
“is wrong as a matter of international refugee law.”
To my knowledge, the Government have not published the legal advice on which their claims that Clause 11 is compatible with international law are based. Will they now do so, particularly in light of the very important speech from the noble and learned Lord, Lord Brown?
My Lords, I shall be extremely brief; this has been a long debate. I just want to commend the noble Lords, Lord Horam and Lord Hodgson, and the noble Baroness, Lady Fox. They all pointed out the need to take full account and understanding of public opinion. I agree with that; I do not need to repeat it. As for Clause 11, it is clearly a legal problem. I suspect that it will also be a policy problem, but we will come to that later.
My Lords, this part of the Bill has a very simple purpose: it is designed by the Government to make life harder for refugees. The two-tier refugee system is designed to give the illusion of there being a proper way of being a refugee, but it will inflict huge suffering and injustice on desperate people.
It is probably not the normal tactic to plan what we are going to do next in front of the Government Front Bench, but although I applaud the intentions of noble Lords who tabled the 16 amendments to the clause, the only way is to take it out of the Bill. It is so vile, so obnoxious, that it really should not be in here.
This has not been mentioned very much but we must remember that, to some extent, we have a moral duty to take refugees. A lot of these refugees are coming from countries we have invaded, or where we have interfered or done all sorts of things, whether it is burning too much fossil fuel, causing climate change, or destabilising their Governments. Please can we remember that there is a moral duty? It is all very well referring to population density and so on, but we owe these people and we should never forget that.
My Lords, I shall resist the temptation to offer a view on what public opinion is. What I do remember is that a lot of people expressed a view on what public opinion was over climate protesters and people who threw statues into the water at Bristol, but when cases came up before a jury, they reached some very interesting decisions on guilt or otherwise. That suggests that some of those who profess to know what public opinion is may not necessarily be right when the public have a chance to hear the arguments presented to them and are then asked to make a decision.
Clause 11 is about differential treatment of recognised refugees and its impact and implications. We believe that it contravenes the 1951 refugee convention. It sets a dangerous precedent by creating a two-tier system for refugees, and it is also inhumane. Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim—contrary to the 1951 refugee convention, of which Britain was a founding member.
Under the clause, only those refugees who meet specific additional requirements will be considered group 1 refugees and benefit from the rights currently granted to all refugees by the refugee convention. Other refugees who are not deemed to meet those criteria will be designated as group 2 refugees, and the Secretary of State will be empowered to draft rules discriminating against group 2 refugees with regard to the rights to which they are entitled under the refugee convention, as well as their fundamental right to family unity. The different ways in which those two groups could be treated is not limited in any way by the Bill. Clause 11 does, however, provide examples of ways in which the two groups might be treated differently, even though they are nearly all recognised as genuine refugees. Those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees. The clause goes on to set out how the length of limited leave, access to indefinite leave, family reunion —that is, whether family members, mainly women and children, are entitled to join them—and access to public funds are likely to become areas for discrimination against group 2 refugees.
The government policy paper, the New Plan for Immigration, proposed that instead of fully fledged refugee status, group 2 refugees will be granted “temporary protection” for a period of no longer than 30 months,
“after which individuals will be reassessed for return to their country of origin or removal to”
a safe third country. Temporary protection status
“will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution”—
in other words, a state, deliberately created, of complete uncertainty over their future for group 2 refugees.
Clause 11 would therefore make a significant and unprecedented change in the law, resulting in the UK treating accepted refugees less generously, based on the journey they have taken to reach the UK and the timeliness of their asylum claim. This attempt to create two different classes of recognised refugee is surely inconsistent with the refugee convention and has no basis in international law. The refugee convention, which was enshrined in UK law in 1954, contains a single unitary definition of “refugee”. It defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition and is not excluded is a refugee and entitled to the protection of the refugee convention.
The Commons committee considering the Bill heard in evidence from the United Nations High Commissioner for Refugees’ representative to the UK that this clause and the Bill were inconsistent with the UN convention and international law. If the Government disagree with that—an issue raised by my noble friend Lady Lister —no doubt they will spell out in some detail in their reply their legal argument for saying that the clause does comply with the convention and international law.
This is, however, not just a matter of law but of fairness and humanity. By penalising refugees for how they were able to get to the UK, the Bill builds walls against people in need of protection and shuts the door on many seeking a safe haven. Most refugees have absolutely no choice about how they travel. Is it really this Government’s intention and desire to penalise refugees who may, for example, as a matter of urgency, have had to find an irregular route out of Afghanistan? Are the Government saying that people are less deserving if they have had to take a dangerous route to our shores? Is an interpreter from Afghanistan who took a dangerous journey to our shores less deserving than a refugee who was lucky enough to make it here on one of the flights out of the country?
The Government acknowledge that such journeys are very dangerous and sometimes fatal, yet they do not seem to appreciate the compulsion—that the alternative of not doing so is even worse—which drives people to make such journeys. If people truly had a reason to believe that they would be safe where they are, they would not make the journey. Simply making the journey more dangerous or the asylum system more unwelcoming will not change that. Of the first 5,000 people who came in 2020 by boat, well over 90% were deemed by the Home Office to be eligible to apply for asylum: they were genuine asylum seekers. They were not here illegally—but they will become illegal if the Bill is enacted.
Penalising people for how they arrived in the UK has particular implications for already vulnerable groups of refugees such as women and those from LGBT communities. Women are often compelled to take irregular routes to reach safety, as we see only too clearly in Afghanistan. There are simply no safe and legal routes. Under the proposed changes, however, women who arrive irregularly, including through a safe third country, will be penalised and could be prosecuted, criminalised and imprisoned. The same obstacles will apply to those from LGBT communities.
Unless the Government can provide safe routes, penalising people for making unsafe journeys is simply inhumane, although, even then, not everyone would have the time or ability to access a safe route, even if one existed. By not providing safe routes, the Government are also fuelling the business model of the people smugglers they claim their proposals will destroy, and then penalising the victims they have had a responsibility for creating. The Conservative-led Foreign Affairs Committee, of which the Home Secretary was then a member, warned in 2019:
“A policy that focuses exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups”.
The Government’s impact assessment warns that increased deterrence in this manner
“could encourage these cohorts to attempt riskier means of entering the UK.”
As has been said, Clause 11 also says that group 1 refugees must have
“come to the United Kingdom directly from a country or territory where their life or freedom was threatened”.
In other words, the Government are setting an expectation that, to be recognised as a refugee supposedly deserving of the support usually afforded, the UK must be the first safe country in which they have sought asylum. Commenting on the Bill, the United Nations High Commissioner for Refugees said:
“Requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian, and cooperative principles on which the refugee system is founded.”
It was pointed out in oral evidence to the Joint Committee on Human Rights that it was unlikely that
“any country close to the main countries of origin of refugees would have ever considered signing a convention if that meant that they would assume total and entire responsibility for all the refugees.”
In addition, when the refugee convention came into being in the early 1950s, there was little or no commercial air travel, so any refugee reaching this country would have to have crossed land borders from safe states. Yet there was no view then that such a refugee should be seen—as under this Bill and the Government’s interpretation of the refugee convention in international law—as a criminal liable to up to four years in prison and to being sent back to France, and with any claim for asylum being regarded as inadmissible.
Even within Europe, most of the countries that refugees pass through on their way to the UK already host significantly more refugees and asylum seekers per population than the UK does. According to the Home Office’s own statistics, the UK is 17th in terms of the numbers it takes, measured per head of population. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the United Kingdom.
As it is, France takes three times more asylum seekers than the UK, as does Germany. Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. As my noble friends Lord Griffiths of Burry Port and Lord Coaker have pointed out, most refugees are hosted in developing countries and the UK receives fewer asylum applications than most other European countries. Under international law, the primary responsibility for identifying refugees and affording international protection rests with the state in which an asylum seeker arrives and seeks that protection.
Clause 11 sets out a non-exhaustive list of the ways in which refugees who arrive irregularly and become group 2 refugees may be treated differently. The Explanatory Notes to the Bill state that the purpose of this is
“to discourage asylum seekers from travelling to the UK”,
and to encourage
“individuals to seek asylum in the first safe country they reach after fleeing persecution.”
It is not clear, since the Government have provided no explanation, how the stated aim will result from the policy; perhaps the Government in their response will provide that explanation.
Evidence from many refugee organisations suggests that refugees seek asylum in the UK for a range of reasons, such as proficiency in English, family links or a common heritage based on past colonial histories. In addition, refugees do not cite the level of leave granted or other elements of the asylum system as decisive factors. The Home Office’s own study from 2002—I do not think there has been one since then—noted that there was little evidence that respondents seeking to come to the UK had a detailed knowledge of UK asylum procedures, benefit entitlements or the availability of work in the UK. There was even less evidence that the respondents had a comparative knowledge of how these conditions varied between different European destination countries.
Given that individuals have little knowledge of the asylum systems of the countries they end up in, it is not clear that differential treatment will dissuade individuals from coming to the UK via safe countries. However, what the Government are proposing will certainly result in a refugee population that is less secure, and it will punish those who have been recognised through the legal system as needing international protection, such as women and girls fleeing the Taliban or Uighurs fleeing genocide in China.
The Explanatory Notes also state that 62% of asylum claims in the UK up to September 2019 were from people who entered irregularly. This means that the policy intention is to impose strictures on the rights and entitlements of the majority of refugees coming to the UK, even though we take fewer than comparable countries. Those penalties would target not just those who have entered the UK irregularly or have made dangerous journeys but all those who have not come directly to the UK, regularly or irregularly, from a country or territory where their life or freedom was threatened, those who have delayed claiming asylum or overstayed, and even those who arrive in the UK without entry clearance and who claim asylum immediately.
I repeat that Clause 11 envisages that group 2 status will be imposed on recognised refugees and will stigmatise them as unworthy and unwelcome, maintain them in a precarious status for many years, deny them access to public funds unless they are destitute and restrict their access to family reunion. We are talking here about recognised refugees. A number of studies have shown that that precarious status itself is a barrier to integration and employment Yet, despite these challenges, the Bill will specifically empower the Secretary of State to attach a no recourse to public funds condition to the granting of leave to group 2 refugees. The adverse consequences of no recourse to public funds conditions will fall not only on the refugees themselves but on their families, including children who travel with them, who are able to join them later, or who are born in the UK.
Those consequences have been documented in numerous studies. They include difficulty accessing shelters for victims of domestic violence, denial of free school meals where those are linked to the parents’ benefit entitlement and de facto exclusion from the job market for single parents who have limited access to government-subsidised childcare, as well as significant risk of food poverty, severe debt, substandard accommodation and homelessness. Yet the Home Office’s own indicators of integration framework identifies secured immigration status as a key outcome indicator for stability, which is
“necessary for sustainable engagement with employment or education and other services.”
On that issue, in paragraph 58 of its report relating to secured immigration status and the idea of safe routes, the JCHR said:
“The Government’s New Plan for Immigration contains a commitment to provide an unspecified number of refugee resettlement places, review support for eligible refugees to come to the UK through the points-based system and consider a new process to enable people in urgent need of protection to travel directly to the UK from their country of origin.”
While we welcome the commitment to safe and legal routes, we were disappointed that, in his evidence to us on 1 December 2021, the Minister was unable to give any update or detail on how the Government will fulfil those commitments. In their response tonight, can the Government now tell us how they will fulfil those commitments, as the Minister was unable to do on 1 December 2021?
There must, frankly, be a suspicion that, more than any other consideration, Clause 11 is about saving the political skin of a Home Secretary and Government who have previously promised their supporters that they would stop people crossing the channel irregularly, only to see the numbers subsequently increase. As a result, Clause 11 is largely silent on addressing the continuing and apparently expanding horrendous activities of the people smugglers and instead concentrates on hitting their victims, nearly all of whom are recognised as genuine asylum seekers.
There appears to be little in this Bill that addresses reducing or stopping this awful traffic of people smugglers and in that way reducing or stopping the level of trafficking. That would surely be one of the best ways to address the issue of people crossing the channel in the unsafe way that they currently do.
As my noble friend Lord Coaker pointed out, we now find that the Government apparently intend to arrest and lock up all single males crossing the channel. This casts even more doubts on this Government’s true intentions and motives as far as these proposals are concerned. I hope that the Minister will be able to tell us in her reply that what appeared in the Times today —to which my noble friend Lord Coaker referred—is just not true and is not what the Government intend to do. Frankly, if we do not have this clear statement, this really will be a very sorry reflection on the motives behind the Bill.
We now have a clause and a Bill under which individuals who have been recognised as refugees would be given inferior treatment, based on the way in which they came to the UK. This is contrary to the UK’s obligations under the refugee convention and inconsistent with the right to private and family life and the prohibition against discrimination under the ECHR. That is why Clause 11 should be removed from the Bill.
I am sorry to disappoint noble Lords, but I am the lead signatory on the Clause 11 stand part proposal. The noble Lord, Lord Rosser, has kindly allowed me to speak last from this side.
The United Nations High Commissioner for Refugees—the UN Refugee Agency—leads international action to protect people forced to flee because of conflict and persecution. As many noble Lords have said, a 1951 convention and a 1957 protocol together make the refugee convention, which sets out the UK’s and other signatories’ international obligations.
The UNHCR’s considered view—as well as that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from what I understand—is that the Bill is fundamentally at odds with the Government’s commitment to uphold the United Kingdom’s obligations under the refugee convention. Clause 11 is at the heart of this considered view.
The Government seem to misunderstand the purpose of international conventions, such as the refugee convention. They have recently adopted the phrase “different countries will interpret the convention differently”. Is not the whole purpose of an international convention and its protocols for there to be a shared understanding of what an international convention means, to ensure that each signatory interprets the convention in the same way and acts accordingly? I think that was the view expressed by the noble and learned Lord, Lord Etherton. I will address his concerns about protected characteristics in a future group.
More honestly, some Conservatives—and the noble Baroness, Lady Fox of Buckley, who has apparently given up—have called the refugee convention outdated. They say that we should renegotiate or withdraw from it. That is not the Government’s position. They say that they can treat asylum seekers differently, depending on their circumstances, and that this is in compliance with the refugee convention.
Much has been said—and we have had many briefings on this clause—but I will restrict my comments to the primary concerns of the custodian of the refugee convention, the UNHCR. It says that the “first safe country” principle does not exist in international law, is unworkable and would undermine global co-operation. This is obviously the case. With most refugees—at least before the fall of Afghanistan—making their own way to safety from the African continent, only Turkey and those countries bordering the Mediterranean Sea would be legally able to take refugees, if that were the case. The UNHCR says that already three-quarters of refugees are hosted in countries neighbouring their own. Some 85% are hosted in developing and middle-income countries. As other noble Lords have said, almost all the countries through which refugees pass on their way to the UK already have more refugees and asylum-seeking applicants than the UK does.
This is a global crisis, requiring a global response in which every country plays its part and where every country, including the UK, takes its fair share of genuine asylum seekers. A disproportionate burden should not be placed on border countries; nor should it be that the further north and west you go, the fewer asylum seekers you have to take.
The UNHCR says that the claims of refugees seeking safety in the UK need to be considered solely on the basis of whether the circumstances from which they have fled justify their refugee status. If a refugee is entitled to the rights given to him or her by the refugee convention, all those rights should be exercisable in any convention country, including the UK. This clause would deny recognised refugees the rights guaranteed to them under the refugee convention and international law. That is why it should not stand part of the Bill.
The noble Lord, Lord Horam, described me as an economist. I think my tutor at Oxford, Dieter Helm, would disagree with that. In a previous group, I purposely said that I studied economics at university, but I still have no clue about it. The noble Lord talked about illegal immigrants. Other noble Lords tried to correct him. Genuine refugees are not illegal immigrants.
The noble Lord, Lord Horam, and other noble Lords talked about public opinion. That is all very well, provided that opinion is informed. Some 94% of immigrants to the United Kingdom are not refugees. If the British public understood that this Bill is only talking about 6% of the people who come to this country, I think they would have a very different view of it.
The noble and learned Lord, Lord Clarke of Nottingham, said that the public were concerned about people coming across the channel in dinghies. What the public do not understand is that we do not have record numbers crossing the channel in order to claim asylum by clandestine means. So many are now coming across the channel in dinghies because we have been so good at stopping them getting on the Eurostar and entering lorries and because of security around the ports. It is just that the problem has become a lot more visible than it ever was before. It is not out of control compared with the past.
The noble Lord is absolutely right. Asylum has accounted for about 40,000 people a year for the last 10 years. Net migration has been about 250,000. The problem is that immigration is much greater than asylum. I shall be saying more about this
The noble Lord, Lord Green of Deddington, and I agree. This Bill has totally the wrong focus. It is all about asylum seekers. If there is a problem with public opinion on immigration, it should be focused on the 94%, not the 6%.
As the noble Lord, Lord Kerr of Kinlochard, said, with the best of intentions, amendments in this group that attempt to improve this clause are doomed to failure. Any kind of differential treatment of those who are genuine refugees is totally unacceptable and questionably legal. To say that the revising amendments are putting lipstick on a pig—equating Clause 11 to a pig—is insulting to pigs.
My Lords, I thank all noble Lords who have spoken in this debate. I have been requested to confirm that I did not send a note to the noble Lord, Lord Green of Deddington. I confirm that I did send him a note. There is no law against it, and I am not sure why I was asked. I sent him a note to tell him that he was right.
I welcome my noble and learned friend Lord Clarke to this debate; I am very pleased to see him here and welcome his comments. The Committee will be very well served by listening to him, to my noble friends Lord Horam and Lord Hodgson of Astley Abbotts, and to the noble Baroness, Lady Fox, although she concluded that she was not sure that she could support Clause 11. The points that they made around how generous, warm and welcoming this country is and how we must be careful to take public opinion into account are pertinent. The noble Baroness, Lady Jones of Moulsecoomb, said that if you asked the British public, they would bring back hanging; actually, it was because of public opinion that hanging was abolished in this country, so I do not agree with her premise.
As the noble Baroness, Lady Ludford, said, this group is not, largely, about the 1951 convention but about the point on differentiation. There will be three groups further on dealing with the 1951 convention, but I will answer a couple of points on it now. The noble Lord, Lord Griffiths of Burry Port, said that we should be working with UNHCR. Other noble Lords have made the point that UNHCR disagrees with us. We do not think that there is only one interpretation of the refugee convention. It is for Parliament to decide, and I say to the noble Lord, Lord Kerr, that I do not think that is eccentric. It is democracy. It is for Parliament to decide, subject to the general principles of the Vienna convention on the law of treaties.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to Article 31 flowing from Asfaw and Adimi, and asked why we were altering that. Parliament’s original intention regarding Article 31 is clear in Section 31 of the Immigration and Asylum Act 1999 that a refugee will not be determined to have come directly if they stopped in a third country outside the United Kingdom unless they can show that they could not reasonably have been expected to be given protection under the convention in that country. The courts have interpreted this more generously and we are therefore taking the opportunity to reset the definition to the original intention of Parliament.
The noble and learned Lord, Lord Etherton, made a point about the proposed interpretation of “coming directly” under Article 31 of the convention in Clause 36 not being how it was intended by the convention. We have been very clear that people seeking protection must claim it in the first safe country they reach. That is the fastest route to safety. We will not tolerate criminal smugglers exploiting vulnerable people to come to the UK when a claim could easily have been made in another safe country. The convention does not explicitly define what is meant by coming directly and therefore, it is ultimately for our sovereign Parliament to set out its interpretation of international obligations subject only to the principle of treaty interpretation of the Vienna convention.
The noble and learned Lord also talked about LGBT+ communities, which again we will come to later. We know that they can have difficulties in making and evidencing a claim. That is why our policies and training are designed to support claimants in being able to explain their claim in a sensitive and safe environment.
If I understand the noble Baroness aright, there is nothing to stop this sovereign Parliament setting out how it interprets the refugee convention in future. She enumerated four Members of the Committee who had spoken supportively. I think it is the case that none of them argued that the Bill was not a breach of the convention. We had some powerful legal advice that it was a clear breach of the convention. I ask her to remember that the last time this House was asked to pass a Bill that broke an international commitment was on the internal market Bill, and it took the very clear view that pacta sunt servanda mattered and that we should stick to our word.
I was not clear about the noble Baroness’s reference to me. The fact that I did not actually say that I believed Clause 11 breaks the refugee convention does not mean that I do not think that it does, because everybody else had said it. I was not quite clear what she meant.
I think what I was trying to say, maybe clumsily, was that the noble Baroness was trying to get back to the amendments.
The clause breaches the refugee convention, in my opinion. I agree with many people who said that.
I was not making that point, but I accept the noble Baroness’s point.
The noble Lord, Lord Kerr, just said that the four Members did not argue that the clause is not a breach of the convention. The four Members I singled out for mention were trying to explain public opinion in the round and the need to take note and do something about their concerns, notwithstanding the fact that the British public are warm and welcoming. We are a nation of immigrants. I think my noble and learned friend wants to intervene.
Yes, as I am having various motives attributed to me. As I said, I came here with a dilemma. I do not think we will turn British public opinion round to the views I personally would like to support if I thought we could. I wait to be persuaded that the Government’s package will actually work and make the problem any easier. I reject the simplistic solution that all we have to do is provide safe and easy routes and accept that many more people will come, because they undoubtedly will if some of the things that have been proposed are accepted. That would cause very nasty further damage to our society and the level of our political debate. I am not convinced that Clause 11 and Clause 9 are a satisfactory solution to that yet. That is what I hope to hear my right honourable and noble friend persuade me of the course of this winding-up speech.
Unfortunately, I am not right honourable, although you never know. I hope to persuade my noble and learned friend, but no one piece of legislation will be the silver bullet to solve all the problems. I do not think I have ever made any secret of that, but I thank him very much indeed for his points.
To get back to the LGBT+ community, it can have particular issues with claims. There is sensitivity about this. Our guidance on sexual orientation and gender identity was developed to take these issues into account. The UNHCR, Stonewall and Rainbow Migration contributed to its development and we are most grateful to them. We will review and update our training and guidance where necessary to support people who are LGBT+.
I would like to get back to the first safe country principle, which is internationally recognised. In fact, it underpins the common European asylum system, particularly the Dublin system, which I note that a number of noble Lords are separately seeking to replicate through the Bill. Broadly speaking, the first safe country principle defines countries which are presumed safe to live in, based on their stable democratic system and compliance with international human rights treaties. Dublin therefore functions on a twofold logic: first, that first countries of entry are safe and should normally be responsible for determining an asylum claim; and, secondly, that burden sharing can then take place where there is a family connection in another safe country. In essence, the first safe country principle removes asylum seekers’ ability to choose where to go—and undertake dangerous journeys in the hands of criminal smugglers to do so—in favour of safe, orderly, and regular management of flows. That is a reasonable approach.
To demand that the UK do more to share the burden, but also to hold that asylum seekers have the right to choose where to claim—the point that my noble friend Lord Hodgson of Astley Abbotts made, this concept of forum shopping—is simply contradictory. On this logic, the number of people who claim in the UK is exactly the right number and there is nothing more that the UK needs to do. Conversely, the reason that the Bill enshrines the idea that asylum seekers ought not to choose where they claim, by setting out various measures in defence of the first safe country principle, is precisely because removing that choice enables us to do more on burden sharing from regions of origin. In what is decidedly a more ambitious approach than anywhere in the EU, such a policy would provide far more generosity, fairness, and control in managing global asylum flows. Can I turn now to pull factors?
The Minister has not addressed the UNHCR’s point that if every country insisted on the first point of entry as the sole thing, it would completely undermine the entire international system.
As I have said, we disagree with the UNHCR on that point. If I can turn to pull factors—
Excuse me, why? Why do you disagree? I am sorry but it is not enough to simply say “We disagree”.
I hope that, through the course of my response here, I will lay out the rationale for why we are doing what we are doing. We disagree with the UNHCR and we feel that, as a sovereign nation, it is up to us to interpret the 1951 convention.
If the Government’s argument is to be that they have a different interpretation, it is not clear why we should accept their interpretation over the UNHCR’s interpretation. I asked if the Government would publish the legal advice on which their interpretation rested. Then we can judge against other interpretations.
I think the noble Baroness knows that we do not do that. I am not going to commit to publishing the legal advice. I am, however, going to come to her questions later if the Committee will be patient.
Can I get on now to pull factors? They are complex, but it is reductive to claim that asylum seekers do not ever make decisions about their destination based on policy calculations. They are like the rest of us; they do not simply respond to one or two factors such as family or language in making a choice. Many more factors come into play in this respect, as my noble friend Lord Hodgson of Astley Abbotts mentioned, and one of those will very naturally concern how to rebuild the life they lost after being forced to flee their country of origin. But to defend the first safe country principle for the reasons I have set out, we must do everything we can to deter dangerous secondary movements from countries that are already safe and provide perfectly good means for a flourishing life.
Noble Lords have mentioned Denmark, Australia and Japan. We have seen large reductions in spontaneous intake in both Denmark and Australia, following similar approaches to that which we intend to take. In fact, Australia resettles the single largest number of refugees in the world.
My noble and learned friend Lord Clarke asked about prosecutions of asylum seekers coming here by small boat. We seek prosecutions only where there are aggravating features, such as major costs and disruption to shipping, or repeated efforts to cross.
I categorically reject the contention that the UK does not do its fair share. As the noble and learned Lord has pointed out, since 2015 we have resettled more than 25,000 people, half of whom were children, and that is the most in Europe. That is under national resettlement schemes. We are the fourth highest in the EU in terms of asylum applications to the EEA, EU and Switzerland in the year to June 2021. Our family reunion scheme has seen a further 39,000 people settle in the UK. I want to hold up a prop—
I apologise to the Minister, but it will not do. The noble Lord, Lord Paddick, corrected a misapprehension earlier. The numbers she is citing for resettlement are the numbers from the resettlement schemes run by UNHCR. She is not citing the number of people who have come to Turkey, to Lesbos, to Italy or to Spain and have been settled across Europe. It is a narrow definition of “resettlement” that is most misleading. We are taking relatively few, relative to our size, compared to others across Europe.
My Lords, I was at pains to say that this is under national resettlement schemes. I have not tried to mask the figures. I have been very clear about how many people we have taken under national resettlement schemes.
I was about to hold up a prop, although I know that is not done in your Lordships’ House. I wrote to the noble Lord, Lord Dubs, who had to go, as did the noble Baroness, Lady Fox; she apologised for that. I wrote to noble Lords about the safe and legal routes, and I think the reason that some noble Lords do not want to acknowledge it is that they do not accept what we have done. I have looked at how many different family reunion schemes we have. We have four, including refugee family reunion. I will spend a moment to really spell this out, because some noble Lords just seem to not want to hear it. We have granted over 39,000 refugee family reunion visas since 2015, of which more than half were granted to children. Comparing that to the Dublin scheme, under the Dublin regulation, we transferred 714 people to the UK in 2019. In the same year, we issued 7,456 visas under our family reunion rules. It does not take a genius to work out that is 10 times the amount. Part 8 of the Immigration Rules—paragraph 319X—allows relatives to sponsor. We also have paragraph 297 and Appendix FM. Under Appendix FM, in 2020 there were 40,255 family-related visas granted. Please do not keep talking about us undermining family reunion, because we just have not. It is not true. I ask noble Lords to refer back to the letter that I sent to the noble Lord, Lord Dubs—I think that was last week.
I hope the Minister would acknowledge that—speaking only for myself—what I was doing was objecting to the restriction. I did not criticise the existing record, although my proposed Private Member’s Bill would expand the scope. The objection is to the poor proposed treatment of group 2 refugees under family reunion. I was not talking about the numbers to date.
My Lords, noble Lords have repeatedly talked about undermining family reunion. I confirm to the noble Baroness, and for Hansard, so that noble Lords do not come back at me again and again to make this point, that group 2 refugees will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion, compatible with the ECHR. Most importantly, they will be provided with protection against refoulement. I make that point again: group 2 refugees will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion. I hope noble Lords will not come back to that point—well, they will do so, but I have made my point, I hope.
If I can, I will continue on the generosity of the great British public and this Government. Over 88,000 BNO status holders and their family members—almost 90,000, as my noble friend said—have chosen to apply for the BNO route, with over 76,000 granted it so far. Meanwhile, we led Europe in airlifting some 15,000 people out of Afghanistan to the UK from mid-August under Operation Pitting. If any noble Lord wants to stand up and say we were not generous in that situation, I beg them to do that now. That is over and above the earlier transfers of around 2,000 locally employed staff and their families under the Afghan relocations and assistance policy. Our new Afghan citizens resettlement scheme also aims to welcome a total of 20,000 people. These people, who noble Lords were talking about earlier, are the most vulnerable people in the world today and our generosity has been exemplary.
Can I just clarify a point? The Minister has said it is not true that family reunion rights are going to be restricted. But as I understand it, the Government’s New Plan for Immigration did give a detailed indication of what different treatment might look like for group 2 refugees. I am perfectly willing to stand corrected if what I am saying is wrong, but as I understand it, the New Plan for Immigration said, in relation to group 2 refugees who will be granted temporary protection:
“Temporary protection status will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution.”
Is that quote from the Government’s new plan wrong? In other words, is it not correct that family reunion rights will be restricted?
It is not correct to say that family reunion rights will be restricted for group 2 refugees. They will be afforded the entitlements in a way that is compatible with the refugee convention, including family reunion. If someone, be they a group 1 or group 2 refugee, is deemed a refugee, they will be afforded family reunion rights compatible with the ECHR.
My Lords, I—
Can I just carry on? I will then of course allow an intervention from the noble Lord; he is always courteous to me.
I want to further reassure the noble Baroness that, even where a refugee or a family member is a group 2 refugee, “reasonable discretion” will be exercised with respect to the determination of differentiated entitlements. We have built this notion into current drafting by ensuring that the determination of whether a refugee is in group 1 or group 2 will depend on whether they could have been reasonably expected to claim asylum in another safe country, and their asylum claim in the UK was made as soon as is reasonably practicable. Our view is that these standards provide adequate discretion to take into account particular facts of an individual case when determining tiering and therefore whether they are granted differentiated entitlements. Would the noble Lord like to intervene now?
I would because I am getting thoroughly confused, which is something I perhaps do quite frequently, I accept. I will read out again from the JCHR report. It says:
“The policy paper that preceded the Bill, the Government’s ‘New Plan for Immigration’, gave a more detailed indication of what different treatment may look like, as it proposed that instead of fully fledged refugee status, Group 2 refugees would be granted ‘temporary protection’ for a period of no longer than 30 months ‘after which individuals [would] be reassessed for return to their country of origin or removal to a safe third country.’ Temporary protection status ‘will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution.’”
Those are quotations from the Government’s New Plan for Immigration policy statement. In relation to group 2 refugees, who are being created by Clause 11 —that is the new bit and what the Bill is doing—it quite clearly states:
“family reunion rights will be restricted”.
I ask again: is that correct or incorrect? If it is not, why is it written in the JCHR report? If the Minister is going to tell me that the JCHR has got it wrong, please say so clearly now.
Before the noble Baroness responds, I add that I do not think that the noble Lord, Lord Rosser, is confused: I fear that the Minister is being mildly disingenuous with us. Can she confirm that there is a difference in the intended treatment of group 1 and group 2 refugees as concerns family reunion? Otherwise, what is the point of Clause 11(6):
“The Secretary of State or an immigration officer may … treat the family members of Group 1 and Group 2 refugees differently, for example in respect of … whether to give the person leave to enter or remain”
et cetera? What is the point of this being in the Bill if there is no intention to treat group 2 refugees differently? The Minister told us about how this will not breach the refugee convention and so on. I asked specifically about the comments on Article 8, and I look forward to her replying specifically on that. But can she confirm whether their intention is to treat group 1 and group 2 refugees differently in terms of rights to family reunion?
May I just add to that? Clause 11(5) says:
“The Secretary of State or an immigration officer may treat Group 1 and Group 2 refugees differently, for example in respect of … whether leave to enter or remain is given to members of the refugee’s family.”
My Lords, I hope that I can clarify: everyone gets ECHR-compliant family reunion rights. Having clarified that, on the points made by the noble Baroness, Lady Ludford, on Article 8, family reunion will be permitted only where refusing would be a breach of our international obligations under Article 8 of the European Convention on Human Rights.
On how the restrictions for all group 2 refugees will look and whether they will be indefinite or will not apply in certain circumstances, the power under Clause 11(5)(d) of the Bill enables the Secretary of State to differentiate in respect of leave to remain for the family of group 2 refugees. The power is flexible and there is no duty to impose such a condition. Policy will be set out in guidance in the Immigration Rules in due course, but family reunion will be granted to group 2 refugees where a refusal would breach our international obligations under Article 8 of the European Convention on Human Rights.
To comply with the ECHR means complying not just with Article 8 but with Article 8 read with Article 14, which means respecting the right to family life but also not discriminating in that context. How can it not be discrimination when the whole purpose of Clause 11 is discrimination between group 1 and group 2? It is blatantly a breach of Articles 8 and 14 read together.
It is differentiation rather than discrimination. The two are quite different.
Amendments 44, 45, 47, 51 and 52 seek to remove the powers to differentiate entitlements. As we have noted elsewhere, these powers are broad and flexible; they do not require the Secretary of State to act in a particular way. Equally, there is ample discretion available in respect of whether a person is granted group 1 or group 2 refugee status. While the detail will be set out in rules and guidance in due course, suffice it to say that the exercise of the powers in question will be sensitive to vulnerabilities and individual circumstances. That enables us to balance the need to take a tough approach with the need to protect the most vulnerable.
We have been clear that our starting point in respect of the length of leave will be a grant of no less than 30 months. Similarly, settlement will be available by virtue of our long-residence rules. We have gone further in our defence of refugee family reunion, noting that we will continue to uphold our international obligations under Article 8, but in any event, there is no requirement to apply such entitlements in each and every case. I repeat that we fully intend to be sensitive to vulnerabilities and individual circumstances in that respect. That is why we have retained a considerable amount of discretion in the drafting.
Turning to Amendment 55, I do not think it would be appropriate or right for us to step outside of the existing power to make immigration rules under the Immigration Act 1971. This is the same power that we use to implement most other aspects of UK immigration policy, including but not limited to asylum policy. Indeed, areas in which we regularly use Immigration Rules to administer the system include the type of leave to remain, the length of leave to remain, the routes and conditions of settlement, and family reunion. It would be inappropriate to do otherwise in this case. The rules are the appropriate vehicle: they have a long-standing and clear procedure, with the appropriate level of scrutiny built in. As I have noted, however, I am absolutely committed to this policy being exercised sensitively with a view to protecting the most vulnerable. There will always be discretion in our policies to make the right decisions in each case, and that extends to the Immigration Rules.
I cannot agree to Amendment 39, which would remove the requirement for a person to claim without delay to be a group 1 refugee. That means that anyone claiming asylum, regardless of whether that was done at the last moment to defer removal, could be a group 1 refugee. That would undercut the entire purpose of the policy and embolden those seeking to abuse our rules. There are already safeguards within the legislation enabling discretion to be exercised, such that a claim should be made as soon as reasonably practicable.
Amendments 43 and 50 would amend the list of ways in which we can differentiate from a non-exhaustive list to an exhaustive one. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do that only by retaining flexible powers to respond to situations as they arise.
Amendment 48 would prevent the ability to differentiate in respect of family members. This is primarily about coherent policy. We should ensure that, where appropriate, family members of refugees are not treated more or less favourably than the lead applicant, but the flexibility that we wish to retain will also enable us to respond sensitively to particular circumstances as appropriate, including in respect of how we treat family members. For example, let us say we discover that a child has been a victim of abuse by their parents and needs to be taken into care. The flexibility in the powers would enable us to respond to such a tragic situation by granting a more generous entitlement to that child compared to their parents, in order to sympathetically reflect the need in those individual circumstances.
Amendment 53 would remove the ability to differentiate in respect of requirements for settlement for family members. We must keep all options on the table to prevent dangerous journeys from safe countries, and we can do this only through retaining flexible powers to respond to situations as they arise. That said, I anticipate that many if not most families will receive the same length of leave to remain to ensure that all qualify for settlement on the same terms at the same time. However, we want to retain the ability to respond flexibly to challenging situations that might require us to do otherwise in respect of length of leave for a refugee and their family.
I turn to Amendment 41, in the name of the noble and learned Lord, Lord Etherton. I hope I can offer some reassurance that his concerns have already been accounted for in the policy, so there need be no further amendments to the Bill in this respect, as I outlined earlier. We envisage that the provision will apply in cases where a refugee meets the first two limbs of Article 31— that is to say, they came direct and claimed “without delay”—but, at the time of the claim, they had entered or were present in the UK unlawfully, having, for instance, overstayed an economic migrant visa.
To illustrate, let us say a person overstayed their visa and then lodged an asylum claim. Because they had entered the UK directly and ostensibly claimed without delay, they might be eligible for group 1 refugee status but, due to having overstayed, we would also check whether they had
“good cause for their illegal … presence”
at the point of claim. If they had no good reason for having been in the UK illegally, they might be liable for group 2 status. An example of where good cause could be shown might be if a person had overstayed their visa and then lodged an asylum claim—a very similar situation to that described by the right reverend Prelate the Bishop of Durham. If their reason for overstaying and lodging an asylum claim while in the UK illegally was on the grounds that they feared presenting to the authorities because they were homosexual, in such a case this may well amount to a good cause.
Suffice it to say that the powers in the Bill are broad and flexible and therefore enable us to exercise discretion where appropriate, including with respect to “good cause”, which will be reflected in guidance to caseworkers.
I turn my attention to Clause 11 as it currently stands. These powers are primarily intended to uphold the “first safe country of asylum” principle. Clause 11 provides a power, as noble Lords have pointed out—they are not very happy about it—for the UK to differentiate according to whether people satisfy certain criteria based on those in Article 31.1 of the refugee convention. The Government have set out their interpretation in Clause 36. I will not distract the Committee from the issue at hand by going through the provisions of Clause 36, because they will be debated in full.
If I may just pick up the points made by the right reverend Prelate the Bishop of Durham, and the noble Baronesses, Lady Ludford and Lady Chakrabarti, on Article 31, the criteria we use as the basis for differentiation are not based expressly on one’s method of arrival. Instead, they are based on the criteria within Article 31 of the convention: whether someone came directly and claimed without delay, and, where applicable, had
“good cause for their illegal entry or presence”.
The clause acts on our commitment to do everything we can to deter individuals, as I have said, from making dangerous and unnecessary journeys through safe third countries, often putting lives at risk. I hope I have fully explained the Government’s rationale and addressed noble Lords’ questions. If I have missed anything out, I am very happy to follow up in writing but I hope that noble Lords will feel happy to withdraw or not press their amendments.
My Lords, what a debate this has been. I thank all those who have contributed to it. It has certainly laid bare the points of difference that are going to have to be resolved at a later stage in the consideration of this Bill. I say to the noble Lord, Lord Kerr, that the lipstick is back in my pocket and the piglet is running free.
I appeal to the noble and learned Lords who have so helpfully intervened in this debate. I made the case at Second Reading that I was hearing two legal positions established that I, as a non-lawyer, could not reconcile. I was hoping that noble and learned Lords would bring all their pals in to help us see the basis on which the Government’s legal judgment is reached, since the Government do not choose to reveal this; perhaps they do not do so habitually. I said that this would help those such as me to understand. The UNHCR statement I read—all 72 pages of it—is very clear, it really is. I have not heard what convinces me that an opposite case can equally be true. I think we are going to need some help. I implore noble and learned Lords not to go on holiday before Report, please.
So we come to the end of this long debate. I thank the Minister for her spirited response. It is no joke standing there and defending yourself against what you perceive to be the slings and arrows of outrageous fortune, but she did it with some courage. I also thank all those who intervened on her because, in this way, we have opened matters up. Before Report, some of us are going to have to do some serious thinking and come back in a focused way to take this matter further in a way that satisfies all of us.
Is it not incredible that the Prime Minister is, this very day, in Kiev in Ukraine, arguing that Britain honours its international agreements directed towards those at the far-flung edges of Europe? I would that he come back in his plane via Turkey, Greece, Spain and Italy to show how he is equally committed to the international agreements and treaties we have entered into in respect of the way we treat refugees. With all that said and a little bluster on my part, I am glad to put the piglet running and out of the way. I beg leave to withdraw the amendment.
Amendment 37 withdrawn.
Amendments 38 and 39 not moved.
House resumed. Committee to begin again not before 9.25 pm.