House of Lords
Wednesday 2 March 2022
Prayers—read by the Lord Bishop of Exeter.
Music Education in State Schools
My Lords, the Government are committed to high-quality education for all pupils and music is integral to this. We are working with experts to refresh the national plan for music education for publication later this year. This follows the publication of the Model Music Curriculum last year. We will also invest around £115 million a year, for the next three years, in music, arts and heritage education, including the network of music hubs working across England.
My Lords, I thank my noble friend for that Answer. The sad, blunt truth is that music education in state schools is on life support. The number of pupils taking A-level music is down by a third since 2014—sadly, often because it is simply not available as a subject. GCSE applicants have come down by 17% over the same period and 29% of state schools have seen a reduction in the number of qualified music teachers, while the number of trainees is falling inexorably. Is my noble friend aware that while 50% of pupils in private schools get sustained music education, just 15% of state school pupils do so? Should this not be at the top of the levelling-up agenda? We need a national plan soon, so can she tell us more precisely when that is coming? Can we also be assured that practitioners and musicians will be able to have their say before it is implemented?
The Government share my noble friend’s concern about the importance of music education in all of our schools. We see it, along with other arts subjects, as integral to a good, strong curriculum. In relation to the numbers that my noble friend quoted on the music GCSE, I point out that while he is right that uptake of the GCSE has declined, uptake of the VTQ—the vocational qualification—has increased, so actually there are almost 53,000 children today taking either the GCSE or the VTQ, compared to almost 50,000 in 2016. On the timing of the announcement of the plan, as I said, it will be later this year. I will take his recommendations on further consultation back to the department.
My Lords, I will follow directly from the question of the noble Lord, Lord Black. The Minister may be interested to know that my daughter is a professional musician who spends part of her working life, like so many of her colleagues, teaching in an independent school where the list of peripatetic and full-time music education staff takes up half a page on the school’s website. This shows that parents value music education and, in that case, are prepared and able to pay for it. Does the Minister think that parents of state school pupils care any less about music education? I am sure that she does not. None the less, she will be aware that my daughter’s own children, who attend state schools, do not have access to anything like the provision which my daughter is part of providing in an independent school.
I agree with the noble Baroness that parents in every school care about the richness and breadth of the curriculum which their children undertake. The music education hubs that were created in 2012 now work with around 91.4% of primary schools in this country and almost 88% of secondary schools. Since 2018, there has been a sharp increase in both music tuition and whole-class ensembles.
My Lords, the effect of the accountability measures on the arts is becoming increasingly clear as the years pass by. The narrowing of the curriculum at key stage 3 has led to a reduced uptake in music courses at key stages 4 and 5. In some cases, courses are not even being offered. If the Government truly believe in a broad and balanced education, then the EBacc and Progress 8 measures will need to be fundamentally reassessed.
My Lords, does the Minister have any figures on the number of schools without qualified, musically trained teachers attached to them? I declare my interests as a former chair of the Voces8 Foundation, which has been going into primary schools, particularly where there is no teacher present with any musical training, to introduce some basic singing.
Would my noble friend agree to receive a small group from the Royal School of Church Music, which reaches out to children in all parts of the country, many of whom go to state schools where they are not properly tutored in music? It does enormous work.
My Lords, could the Minister join me in congratulating Nicola Benedetti on becoming director of the Edinburgh International Festival? Bear in mind that she is on record as saying that
“Music teaching is vital to a child’s education.”
Moreover, is the Minister aware of the concerns of musicians, such as Julian Lloyd Webber, that music is being squeezed out of state school syllabuses and is increasingly coming to be seen as the preserve of only the rich? Music has the ability to enrich all children’s lives, throughout their lives.
I remind the noble Viscount, as I am sure he knows, that music is compulsory in all maintained schools from the ages of five to 14. After the age of 14, all pupils in maintained schools must be offered the opportunity to study at least one subject in the arts.
My Lords, my grand- daughter went to a splendid primary school, Eleanor Palmer, in Camden, where every child aged nine had to learn a musical instrument—whatever it might be; the recorder or anything else—for a year. Does the Minister think that is something that could be pushed in primary schools?
My Lords, unfortunately, the noble Lord, Lord Black, has had the same answers in the same kinds of debates for many years, since he has been asking this really important question. It is very clear that music education enhances memory, improves dexterity, includes collaboration and is a major part of learning. Indeed, it has been shown repeatedly that it improves and facilitates learning in other subjects. However, not even sufficient instruments are available in primary schools, despite what the noble Baroness asserts. There should be far more done to ensure music is an essential part of the curriculum. Does the noble Baroness agree?
I absolutely agree that it is an essential part of the curriculum: that is why it is compulsory in all maintained schools. I go back to the work of the music education hubs, which have had fantastic outreach into schools but have also linked schools and the children in those schools with music groups in their communities, so they can expand their interests.
My Lords, is my noble friend aware, following my noble friend Lord Black’s point, that whereas 85% of independent schools have school orchestras, only 12% of state schools do? While the music hubs she has mentioned indeed do a good job in providing individual instrumental tuition, the best way of encouraging young people to love music is to give them the opportunity to play in school-based orchestras and ensembles. Will the new national plan please take this into account?
The new national plan is being led by my noble friend Lady Fleet, leading a team of experts from the industry, education and other relevant fields, with a focus on making sure that music education is available to all those children noble Lords have referred to, both regionally and in terms of disadvantage and diversity.
My Lords, the figures enunciated by the noble Lord, Lord Black, are indeed compelling. They are very largely the result of the English baccalaureate being introduced and will not be offset by the updated national music plan, to which the Minister referred. In the 2019 Tory manifesto, there was a pledge to introduce an arts premium in all secondary schools, with the aim of “enriching” the experience of all pupils. That was reinforced in 2020 in the Budget by the Chancellor, offering a £90 million arts premium. Both of these promises have been reneged on. Should we be concerned that the man who, as Education Secretary, introduced the English baccalaureate is now the man entrusted with delivering the so-called levelling-up agenda?
Her Majesty’s Treasury and UK authorities have taken a series of actions to support innovation while mitigating risks to stability and market integrity. These include launching a new anti-money laundering and counterterrorist financing regime for crypto assets in 2020, and consulting on a proposal to ensure that crypto assets, known as stablecoins, meet the same high standards expected of other payment methods. The Government will issue our response to this consultation shortly. In January, the Government announced our intention to legislate to bring certain crypto assets into the scope of financial promotions regulation, requiring them to be fair, clear and not misleading.
I thank the Minister for her response, which certainly deals with the marketing and promotion of crypto but does not deal with its actual use. For example, as reported in today’s Financial Times, crypto is being used as a way round the financial sanctions against Russia and can be used to get round the controls of the proposed economic crime Bill. Does the Minister agree with the Financial Stability Board that this poses a risk to the stability of traditional currencies and public security? Will the Government listen to these concerns and apply strong, prudential controls? Most importantly, will they give agencies the resources and powers to enforce controls, and, for example, call on the G20 to co-ordinate international regulation and supervision?
In my original Answer I did not only talk about the financial promotion of crypto assets; I also talked about the regulation of stablecoin. In response to the noble Lord’s point about the anti-money laundering regulations and counterterrorist financing regulations which apply to crypto assets, I would like to reassure noble Lords that the regulations imposing sanctions on Russia apply to crypto assets. Legislation being introduced this week in the economic crime Bill will give the Office of Financial Sanctions Implementation the powers it needs to enforce financial sanctions.
Does my noble friend not think that the point made by the noble Lord, Lord Haskel, is very important in the current context of sanctions? Is it a practical proposition to ask the providers of cryptocurrency facilities to remove from their list anyone with a Russian email address?
I absolutely agree on the importance of this issue. On firms placing blocks on Russian transactions, the Government and the FCA have communicated with crypto firms to ensure that they understand their obligations with regards to sanctions, which include applying risk-based controls to mitigate the risk of sanctions evasion. However, we do not require that all Russian persons have their accounts suspended or frozen; that would not be in line with our current approach.
Does the Minister agree that cryptocurrencies, which are unfortunately named, and all digital assets are widely misunderstood? Does she further agree that they are here, we have them—more than 3 million people in this country already hold them—and when they are properly regulated, as the noble Lord, Lord Haskel, would have us do, they will be an important and innovative growth opportunity for the UK economy? Cryptocurrencies were referred to by another noble Lord this week as “the beast”. Will the Minister be “the beauty” whose good offices turn the beast into a handsome prince?
I agree with all the points that the noble Lord makes. Earlier this week I tried to emphasise that, while we are cognisant of risks from certain types of crypto assets and will regulate appropriately, we are also keen to see the opportunities for the technology that lies behind these and want to promote innovation in a secure way.
My Lords, I cannot resist the temptation to engage a Minister on this issue for the third day in a row. From January 2020 firms carrying out crypto asset activities in the UK have had to comply with the money laundering, terrorist financing and transfer of funds regulations and to register with the FCA. The FCA helpfully publish a list of 220 or more businesses that appear to be, in its words,
“carrying on crypto asset activity that is not registered with (the FCA)”
for anti-money laundering purposes. I have given the Minister notice of my question, which is: why are we allowing—if we are—non-compliant crypto asset businesses to trade with impunity, and when can we expect that they will be put out of business?
I hope the third time is at least in part the charm. It is a criminal offence for a crypto asset exchange provider or custodian wallet provider to operate in the UK without anti-money laundering registration, and the FCA is empowered to take enforcement action against such a firm and its offices. The FCA is contacting firms on this list to establish whether they are operating in the UK, and it will take appropriate follow-up action.
My Lords, I would like to pick my noble friend up on the Answer she gave to the noble Lord, Lord Haskel. My understanding is that the Government have consulted on the Financial Action Task Force’s recommendation that international standards be brought in to clamp down on crypto- currencies being used for money laundering, terrorist financing and sanctions busting. There was a consultation last summer, and my understanding is that it ended on 14 October. Can she be very precise, given the current international situation and crisis we are in: when will the Government implement these recommendations?
My Lords, I will have to write to my noble friend with the precise answer to that question, but I can say that there were discussions at the G7 yesterday, in part on this issue, following which we are considering how the UK along with its allies can prevent crypto assets emerging as loopholes to evade sanctions. Also, at an international level we will seek to intensify our lobbying efforts to drive improved anti-money laundering and counterterrorist financing regulation, licensing and supervision across other jurisdictions, as well as the UK.
My Lords, at this moment, thanks to economic sanctions, ordinary Russians effectively cannot transfer from roubles into currencies such as dollars and pounds, but they can move into crypto if they are not one of the named sanctioned individuals. There are exceptions: the exchange Coinbase has shut Russia out entirely, and so have some others. Binance has not and, notably, is registered in the Cayman Islands. On Monday, the Minister said she would look to talk to those exchanges and make sure that they understood that they had to follow the advice of the Ukrainian Government and shut out Russia. Has she done so, and why are the Cayman Islands not co-operating?
My Lords, I did take the point that the noble Baroness raised back to the Treasury. As I said in an earlier answer, on blocking Russian transactions, the position is that firms are currently obliged to apply risk-based controls to mitigate the risk of sanctions evasion, rather than taking a blanket approach.
My Lords, further to the question from the noble Lord, Lord Cromwell, I do indeed believe that this is a beast that needs to be tamed. Has my noble friend read the comments of the Governor of the Bank of England, who said of cryptos:
“It’s not a financial stability issue today, but it has all the potential to be one, particularly if the system starts getting leverage into it”?
Does this not underline the need for some sort of regulation if we are to avoid the problems we saw in 2008, when financial institutions and others dealt with products that were not fully understood and not properly regulated, leading to a major recession?
My Lords, I have indeed read those comments by the Governor of the Bank of England. My noble friend is absolutely right that the situation is dynamic and the market in crypto assets is growing. That is why the Bank of England is monitoring crypto assets’ financial stability. It is also why the Cryptoassets Taskforce, the Treasury, the Financial Conduct Authority and Bank of England are taking an approach to regulate aspects of crypto assets, particularly those that pose the greatest threat to our financial stability.
My Lords, profits from trading in and gains from disposing of crypto assets are taxed in the same way and at the same rate as those from other assets, as the noble Lord says. HMRC’s Cryptoassets Manual is one of the most detailed publications from any tax administration and explains the tax consequences for different types of transactions involving crypto assets, for both businesses accepting them and individuals using them.
Investments: Environmental, Social and Governance Criteria
To ask Her Majesty’s Government what assessment they have made of the level of demand for investments that are advertised as meeting Environmental, Social, and Governance (ESG) criteria; and what steps they are taking, if any, to ensure that such investments are in line with (1) the United Nation’s Sustainable Development Goals, and (2) the Paris Agreement on climate change.
My Lords, demand for sustainable finance is growing rapidly. Some 49% of UK-managed assets now integrate ESG factors, and there is strong demand from consumers and investors for such assets. The Government are committed to ensuring that this growing market is well regulated and that the UK is the best place in the world for sustainable finance. That is why the Government have taken world-leading action to green our financial system, safeguard consumer interests and prevent greenwashing.
I thank the noble Baroness for her Answer. I know that she is aware of the recent article in the Financial Times, entitled “ESG: the next mis-selling scandal?” This suggested that there were strongly misleading claims being put on financial products labelled as green, sustainable, ESG, et cetera. Does the Minister agree that no product should be so labelled if it is not compliant with the Paris and, indeed, Glasgow climate agreements, international biodiversity treaties and the sustainable development goals? Given that report and many others, do the Government not need to act urgently to ensure that there is adequate regulation or legislation to make sure that people are actually getting what they believe they are putting their money into?
The noble Baroness is absolutely right. That is why the UK is developing an economy-wide regime for ESG disclosure, focusing in the first instance on those requirements related to climate change. Alongside that, the FCA is creating a consumer-facing label, so that consumers seeking to invest in ESG products know what they are investing in and that it meets the high standards that they would expect.
My Lords, is the Minister aware of the comments made yesterday by the chair of the US Securities and Exchange Commission? He said of the ESG funds:
“When I think about these questions, I’m reminded of walking down the aisle of a grocery store and seeing a product like fat-free milk … in that case you can see objectives figures like grams of fat … Investors should be able to drill down and see the ingredients underlying these funds.”
What activity is the FCA taking to ensure that such detail is provided? Is there co-ordination with the Securities and Exchange Commission in the United States?
On the point about co-operation with the United States, I will have to check and write to the noble Lord. On the FCA, in addition to developing this consumer-facing label so that people can, with transparency, understand what they are investing in, it is also looking at the question of regulating the firms and providers that look at ESG ratings and providing that information also.
My Lords, I commend the Government on their commitment to green finance and on encouraging sustainable investing. Following on from the previous Question by the noble Lord, Lord Haskel, will the Minister tell us what assessment the Government have made of the impact in terms of climate change of the so-called mining of cryptocurrencies like bitcoin, which, in itself, seems to have caused more greenhouse gas emissions per annum than many countries over the last year or two? Are the Government concerned about the sustainability of crypto from that perspective?
The noble Baroness is absolutely right. We are aware of the huge energy use that can be involved in these currencies. The UK is developing a green taxonomy, which will make us the first country in the world to make disclosures aligned with our Paris and other commitments mandatory economy-wide, including the financial-services sector. That will bring transparency over the climate impacts of firms’ activities and allow the market and consumers to respond accordingly.
My Lords, in recent days, we have seen a variety of organisations announce their intention to divest from investments in, or associated with, Russia. This is a welcome response to Vladimir Putin’s ongoing and flagrant breaches of international law in Ukraine. While it is not for government to dictate how private organisations invest their money going forward, what steps are Ministers taking to promote investment opportunities that are greener, socially responsible and likely to be of long-term economic benefit to the UK, as well as our friends and neighbours?
The work that we are doing to green finance and green our economy means that there will be far greater transparency on the impact of firms on climate change and the wider environment. This will allow firms to make those kinds of decisions. The noble Lord talked about divestment. In terms of our approach or view on that with regard to climate activities, we expect investors to use SDR disclosures to integrate climate into stewardship activities. That may eventually lead to divestment, but beforehand, they may use their position as investors in major companies to encourage them to greener positions before considering divestment altogether.
My Lords, I declare my interest as an adviser to Banco Santander and apologise because I probably should have mentioned that when I spoke on the previous Question. Can my noble friend clarify, in the Government’s approach to the green taxonomy and ESG, how nuclear and certain types of gas power stations will be classified? Will they be classified as green and environmental?
My Lords, I declare my interests as set out in the register. I understand that the noble Baroness cannot prejudge what the panel will say on the green taxonomy. However, does she agree that it is essential, if that taxonomy is to be useful both in this country and internationally, that it is both science- based and free of vested interests?
The director of the think tank InfluenceMap said about the same FT article to which the noble Baroness, Lady Bennett, referred, that if you label something that invests in fossil fuels “sustainable”, and there is a whole body of scientific opinion that new gas, oil and coal production is incompatible with net-zero targets, there is probably quite a good chance that the fund is being mis-sold in some way. Does the Minister agree that a legal definition of greenwashing is urgently needed to prevent mis-selling of financial products?
My Lords, I do not think we will be taking quite that approach to a legal definition of greenwashing. We will, through the green taxonomy, provide a clear way by which firms are transparent and what counts towards their sustainability claims, accompanied by regulation from the FCA on the consumer-facing label, but we will also look at whether firms that provide ESG data and ratings should be included in regulation.
My Lords, many investors are saying that with the EU, the UK, the US and other countries choosing different definitions for their green taxonomy, it is becoming almost impossible to work around and through this confusing, complex system. What are the Government, together with other centres, doing to try to come to a single, clear definition that the world can rely on?
My Lords, the noble Baroness makes a good point. The UK is working with the International Sustainability Standards Board to develop global sustainability reporting standards. We are also signed up to an initiative that combines the UK and China to create a globally recognised approach to the green taxonomy that will be common across different jurisdictions.
National Farmers’ Union
My Lords, I declare my farming interests as set out in the register. Defra continues to actively engage with the farming industry to deliver the changes we are implementing to support a strong and thriving agricultural sector, including measures to support productivity, raise standards and deliver environmental public goods. The NFU president raised many interesting and wide-ranging points during her keynote conference speech on 22 February, and we welcome them as a constructive contribution to the ongoing debate on the future of our agricultural industry.
I thank the Minister for his reply. What assessment have Her Majesty’s Government made of our nation’s food security in the light of the current conflict between Ukraine and Russia, mindful of the fact that those two nations between them produce 30% of the world’s wheat? In anticipation of the loss of that harvest, the conflict will have a catastrophic impact. Does he agree that now is the moment for us to give active encouragement and increase support to our hard-working farmers as they try to guarantee our nation’s food supply, particularly given that household bills are going up?
The right reverend Prelate makes some good points. It is now a requirement under the Agriculture Act for the Government to publish where we are on food security in this country, which we did a few weeks ago. It shows that the position has been more or less static for at least two decades, and we want to make sure that we increase the amount of food that we produce locally. It is obviously too early to say what the impact will be on wheat imports as a result of the conflict in Ukraine, but we want to make sure that we are working with other departments so that we are as prepared as possible and that the market is able to adjust itself.
My Lords, will the Minister protect British farmers and consumers by ensuring that those companies that have manipulated falsely markets in their own financial interests, as we have discussed before, are not allowed to operate in the United Kingdom market? I point out to him, as I am sure he knows, that one of those companies with a terrible track record of abuse of market opportunities owns two subsidiaries in the United Kingdom.
The noble Lord is right to point out that it is vital that we protect the agricultural and food supply chain. We have powers in the Agriculture Act that allow us to introduce statutory codes of conduct that increase the transparency of business relationships and protect farmers and others from imbalanced commercial terms. We are currently exercising that in a number of sectors.
Will my noble friend join me in celebrating livestock farming in this country? He will be aware that much livestock production is conducted by tenant farmers in upland and common land areas. What future does he envisage for tenant and livestock farming?
I and my ministerial colleagues are keen to sustain jobs in agriculture in our uplands and make sure that the support incentives that we give to farmers are accessible to tenant farmers, freeholders and all the varying degrees of the tenanted sector, that there is a future for livestock farming, and that we continue to produce at high standards in a way that the consumer will want.
Is my noble friend aware that the National Farmers’ Union still believes that Defra has been extremely unable to explain to it the full programme that will follow the removal of production subsidies? Is he also aware that the NFU is fed up with a Government who promised to protect farmers and are now signing trade deals that mean that the farmers will be competed with by countries that are not meeting our climate change obligations?
We as a sovereign nation are negotiating trade deals with other countries. We recognise that some concerns have been expressed around the impact of new trade deals on our farming and food sectors. I reassure the House that our recent agreements with Australia and New Zealand, and, indeed, those with any future partner, will not compromise our high standards. All products imported into the UK will have to, as now, comply with our import requirements.
My Lords, already over 40,000 healthy pigs have been culled and the meat thrown away. A further 200,000 pigs are stranded on farms awaiting slaughter with no one available to slaughter them. Does the Minister agree with Minette that the disaster in the pig industry
“should have, and could have, been avoided”,
and that the situation with pig farmers truly is an utter disgrace?
The situation for pig farmers affected by this is serious. That is why we continue to work very closely with the industry. There was a perfect storm of a loss of exports to the Chinese market, disruption to CO2 supplies and a temporary shortage of labour in the processing sector. We have been working hard on that with the private storage aid, the slaughter incentive payment and a package of measures to address these unique circumstances. On 10 February, my colleague Victoria Prentis chaired a pig summit and she is doing another one on 3 March. We are working really hard to resolve the problems in this sector.
I speak as a member of the Environment and Climate Change Committee and, in fact, in relation to a letter that Minister Prentis sent us in relation to ELMS. She says that the Government are exploring how they can best support leverage of private finance into ELMS. The recent spending review set an ambitious target to raise £500 million in private finance every year to support nature’s recovery to 2027, rising to £1 billion by 2030. Exactly how will the Government commercialise the environmental land management scheme?
I should explain to the House that this is not as part of ELMS. In addition to the support we are giving through the environmental land management scheme, which is ring-fencing the £2.4 billion to the end of this Parliament, we are seriously encouraging green finance similar to the points made in the Question earlier. That is a responsibility I have in Defra. We are taking the publishing of the Treasury’s green taxonomy extremely seriously and making sure that we are focusing what Minette Batters talked about in her speech—the trillions of pounds floating around in the ESG markets —on nature’s recovery and benefiting farmers’ incomes by getting them access to that green finance.
The call to increase wages for seasonal workers is causing concern among fruit and vegetable growers. While it is important to pay a decent wage, this will lead to food inflation. Given the increase in fuel prices already heralded and those likely to arise from the invasion of Ukraine, does the Minister believe that this is the right time to put added strain on the growers and increase the cost of food?
I think there is a bit of confusion, which again was pointed out by Minette Batters in her speech, in relation to the minimum basic payment and the amount of hours a week that seasonal agricultural workers will be working. We are working hard to resolve that with the Home Office and I am very happy to write to the noble Baroness with information on that.
The common agricultural policy and the basic payment scheme were, and to an extent still are, not small-farmer friendly. We want to make sure that the environmental land management scheme is much more focused on supporting smaller farms. I have visited farmers on the edge of Dartmoor who rent 100 or 200 acres and have grazing rights on Dartmoor. I realise the difficulty they have in gaining a living from their activities. We want to make sure that they have a living, and that the whole support network that we are providing and the addition of green finance will help them as much as it will help other farmers.
My Lords, does the Minister agree that what has happened in Europe in the last week should be a warning for us, because the environmental schemes that we have just passed through this House in two Bills are inevitably going to lead to a reduction in the amount of land actually used for farming for food? What is happening indicates that we cannot rely simply on being able to buy cheaper food from other countries. Will he commit to maintaining the amount of land still used for farming and to encouraging food as the primary enterprise of farmers?
The noble Baroness makes a very good point and it was well made in Minette Batters’s speech at the conference. I entirely agree with her that we do not want to create some sort of idyllic garden in the countryside and export our carbon and other footprints to other countries with worse livestock and environmental standards. We want to continue to see farmers producing food of the highest possible quality, and that is what underpins our reforms.
Coroners (Determination of Suicide) Bill [HL]
Order of Commitment
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Cigarette Stick Health Warnings Bill [HL]
Order of Commitment
My Lords, I too understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Onshore Wind Bill [HL]
Order of Commitment
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Occupational Pension Schemes (Collective Money Purchase Schemes) Regulations 2022
Motion to Approve
Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2022
Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2022
Motions to Approve
Nationality and Borders Bill
Report (2nd Day)
Relevant documents: 7th and 9th Reports from the Joint Committee on Human Rights, 11th Report from the Constitution Committee, 18th and 19th Reports from the Delegated Powers Committee
Clause 15: Asylum claims by persons with connection to safe third State: inadmissibility
31: Clause 15, leave out Clause 15
My Lords, Clause 15 puts into the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through, or has a connection to, a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.
Clause 15 as it stands is neither acceptable nor deliverable in practice. We also have concerns on the definitions of “safe third state” and “connection”, and on the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries to which they will be denied rights owed to them under the refugee convention.
Safe returns as part of an international asylum system are not new and are accepted under agreed conditions, but this clause does not provide for safe reciprocal return agreements. Even as it stands, the Government do not have returns agreements with EU member states, namely the safe third countries that refugees are most likely to have passed through. Instead, this provides for cases to be stalled and unilaterally declared inadmissible, without a requirement for a relevant returns agreement but on the basis of dubious connections to another state, where a person may or may not be able to enter an asylum system. We are talking here about asylum, not general immigration.
The clause provides that a claim is inadmissible if a person has a connection to a third state. It then clarifies that a connection can be made with a state that a person had never been to. It further clarifies that a person can be removed to a completely different state other than the one that they have been deemed to have a connection with. The UNHCR has described this as
“a significant and highly problematic departure from international practice and UK case law.”
I will endeavour to be brief. I appreciate that this is Report and not a rerun of Committee, but in Committee the Government accepted on more than one occasion that we needed to have returns agreements in place. There was no direct answer given to a question asked by my noble friend Lord Dubs, who sought confirmation that to date we do not have an agreement with any country for the return of the people whom we are now talking about. This is about asylum. The answer no doubt is that we just do not have any such agreements. Despite saying in Committee on more than one occasion that we needed formal returns agreements in place to return people, the Government later went on to claim that we do not necessarily need formal return agreements in place, and that we could have
“formal and informal, diplomatic and otherwise.”—[Official Report, 3/2/22; col. 1106.]
The reality is that we need formal return agreements in a situation where the number of people the Government intend to deem inadmissible will be high. In that situation, you cannot address this through unstated, unclear, ill-defined, informal ad hoc arrangements, as the Government seek to suggest. This clause is clearly based on the presumption that the Government can persuade other countries who already take greater asylum responsibility than the UK to accept people from the UK and agree to relieve us of a substantial part of the modest responsibility we currently take.
The reality of Clause 15 is that no such agreements are likely to materialise in the foreseeable future, as was clear from the debate in Committee. Dublin III has now gone and not been replaced. That is why my Amendment 32 provides the much-needed safeguards that Clause 15 can come into force only if the UK has safe returns agreements with third states and not before. I beg to move.
My Lords, Clause 15 allows the Secretary of State to declare an asylum claim inadmissible if the person has a connection with a “safe third state”. Because it is a declaration of inadmissibility, there is no appeal other than judicial review, and there is nothing to stop the Home Secretary from removing the person to another third state with which they have no connection in the meantime, as the noble Lord, Lord Rosser, has explained. A connection to a safe third state includes where a claim for asylum in that country has been refused, a country where they could have claimed asylum but failed to do so, or where the Home Secretary thinks that it would have been reasonable to expect them to have claimed asylum in another country.
By that definition, any refugee who has travelled through a so-called safe third state could be considered to have a connection with that country and therefore risks having their claim for asylum in the UK being ruled inadmissible, and therefore not even being considered by the Home Office. My understanding is that currently inadmissibility creates a six-month delay in processing an application while the Home Office tries to deport the person, and that if the Bill is passed that delay will become indefinite.
The likelihood of the UK Government being able to send back an asylum seeker to any third country that the Government have no agreement with appears unlikely, as the noble Lord, Lord Rosser, has said. The other place may be bored with too many take-out amendments. As an alternative, therefore, Amendment 32, in the name of the noble Lord, Lord Rosser, to which I have added my name, would ensure that the powers in this clause would be brought into force only once the Government have agreed a formal returns agreement with the third country that the Government claim the asylum seeker has a connection with and to which they intend to send them. Amendment 32 is not as good as taking out the clause but it is better than no change at all, so we will support this amendment in the event of a Division.
My Lords, the provisions for an admissible asylum claim, where there is a connection —as defined in new Section 80B, which is to be inserted into the 2002 Act—are quite plainly contrary to the refugee convention and a breach of the UK’s obligations under it. In particular, the conditions in new Section 80C(4), which is where a claim could have been made to a third state—the claimant was present in a state eligible to receive and offer a safe space for him or her—and new Section 80C(5), where the claimant should have made a claim to a safe third state whether or not he or she had ever visited or been associated with it, are both plain breaches of the convention and find no place in its wording.
Condition 4 in new Section 80C is really another way of stating the coming directly from the country of persecution requirement in Clause 11 and Clause 36(1). On Monday this House rejected the Government’s interpretation of Article 31 of the convention in relation to that requirement, by rejecting Clause 11 as part of the Bill. With regard to condition 5 there is nothing whatever in the convention to justify rejecting as inadmissible a claim to asylum by a refugee as defined by the convention in the circumstances specified there. The only explanation, or example, given in the Explanatory Notes, is where the asylum seeker has close family members in the safe third country, whether or not there is another connection of any kind whatever.
Both these conditions are a rewriting of the convention and not a legitimate interpretation of it. The fact that Clause 15 provides, in new Section 80B of the 2002 Act, that a decision that a claim is not admissible because of an asylum seeker’s connection to a safe third state is not subject to a right of appeal, makes Clause 15 an all the more egregious breach of the convention. There is, in effect, no legal redress for the refugee if the Secretary of State has declared the asylum claim inadmissible under the proposed safe third state provisions.
Logically this leads to the conclusion that Clause 15 should be left out of the Bill. I am content, however, to support the alternative approach of the noble Lords, Lord Rosser and Lord Paddick, in Amendment 32, which is to fix a start date for the Clause 15 provisions if a formal returns agreement has been reached between the United Kingdom and a third state to which it is said the asylum seeker has a connection.
My Lords, I thank noble Lords for their contributions. I say at the outset that the Government have been consistent and clear about their belief that people who require international protection should claim asylum in the first safe country they reach, rather than make dangerous and unnecessary journeys to the UK to claim asylum here.
Inadmissibility processes, in particular the first safe country principle, are well established, both in the UK, through long-standing measures in the Immigration Rules, and internationally, including as part of the Common European Asylum System. For example, the procedures directive recognised at recital 22 that
“Member States should not be obliged to assess the substance of an application for international protection where a first country of asylum has granted the applicant refugee status or otherwise sufficient protection and the applicant will be readmitted to that country.”
An overriding objective of these processes is to prevent secondary movements by those who have already reached safety. By definition, that is not about denying safety to those who need it but about having rules which aim to reduce unnecessary travel across borders by those who are already safe.
Amendment 31 seeks to remove third-country inadmissibility powers from primary legislation altogether. It would weaken our ability to deploy inadmissibility processes appropriately and decisively within a strong legal framework, and with that, erode our ability to deter unsafe migration and focus our resources on those most in need of our help.
We are confident that the measures in Clause 15 are fair, appropriate and fully in line with our international obligations. The clause sets out the strict circumstances in which a person’s behaviour or circumstances could lead to inadmissibility action. It requires decision-makers to take account of exceptional mitigating factors that may apply when considering those circumstances. It sets out minimum criteria that must be met by any country before it can be regarded as a safe third country of return, including it being one where a person would not be at risk of persecution, would not experience a breach of Article 3 ECHR rights, and would not be sent to another place where they would be persecuted.
The primary protection afforded refugees under the refugee convention and its protocol is non-refoulement, including no onward refoulement. It is therefore clear that non-refoulement is the primary requirement of “safety”. The same is true for protection afforded under Article 3 of the ECHR. Furthermore, an individual may not meet the definition of refugee under the convention but still require protection. A state may still be safe for them where they will not be refouled, even though they are not a refugee. Therefore, our criteria for determining whether a country is safe, and for subsequently making a claim inadmissible, upholds the UK’s obligations under international law.
Nothing in Clause 15 requires extensive delay in processing inadmissibility decisions. It is right that we consider inadmissibility action and, where appropriate, seek the agreement of the relevant third country, or countries, for the person’s admission there. In some cases, particularly where we are reliant on case-by-case requests to partners, this may take some time, but we have not operated, and will not operate, the inadmissibility system in a way that puts someone in indefinite limbo, as the noble Lord, Lord Paddick, talked about—able to access neither the asylum system in the country of proposed removal nor the UK system. That would be contrary to the object and purpose of the refugee convention. Our existing processes, which Clause 15 strengthens, are clear that where return cannot be arranged within a reasonable period, the person’s claim would be admitted to the UK asylum system for substantive consideration. That ensures compatibility with the refugee convention.
Individuals will have an opportunity to explain their actions and circumstances prior to claiming asylum in the UK, and that explanation will be carefully considered in deciding whether an inadmissibility decision is appropriate. They will also be able to make representations on why any safe third state is not safe in their particular circumstances. Any decision to declare a claim inadmissible and remove an individual will be subject to the standard principles of public law, including rationality. The inadmissibility provisions are therefore compatible with the refugee convention. For these reasons, I do not agree with the amendment seeking to leave out the clause.
Turning to Amendments 32 and 86, as we have stated on previous occasions, the UK-EU joint political declaration made clear the UK’s intention to engage in bilateral discussions with the most concerned member states to discuss suitable practical arrangements on issues around asylum and illegal migration. We continue to do that with EU member states on these issues. We have been clear that formal agreements, though valuable, are not the only way in which an inadmissible asylum seeker may be accepted for removal by a safe third country. I think it is right to seek removals on a case-by-case basis where appropriate and, with the consent of the relevant country, make that removal. This approach has formed part of our inadmissibility process since the changes to the Immigration Rules in December 2020—and, until the Bill’s provisions come into force, we will continue to rely on the Immigration Rules.
The structure of case-by-case removal arrangements will not be uniform for each country of removal. A wide range of factors will still affect the formality and administration around such removals, not least the diverse organisational structures in place in the third country, the levels of centralised and decentralised decision-making, and other circumstances that may be specific to the individual. These arrangements will inevitably vary, but the framework in which cases are considered, within which third countries are assessed for safety and claimants are progressed to removal, will not. We have a clear and consistent approach to these fundamental and important issues, and we stand by our international obligations.
I do not agree that these provisions are unworkable without formal agreements in place. We aim to make the process work as a whole and to return people where appropriate. Where it becomes clear that an individual cannot be removed to a safe country, either because we do not have formal returns agreements in place or because a case-by-case removal cannot be agreed within a reasonable period, the individual’s asylum claim will be considered in the UK. To go back to the assertion made by the noble Lord, Lord Paddick, I say that this will ensure that we do not keep people in limbo, in accordance with our obligations under the refugee convention. I do not think this amendment is required and ask that it be withdrawn.
Before the Minister sits down, can she clarify? She insists that the Government’s intention is not to put asylum seekers into indefinite limbo; in other words, if the Government attempt to send them back to a safe third country and fail to do so, at the moment there is a six-month time limit on that. Can the Minister confirm that there is nothing in the Bill to prevent an indefinite status of limbo?
Given what I have already stated about an indefinite state of limbo, surely the Minister’s words would have some sort of weight. I have also said that any decision to declare a claim inadmissible and remove an individual will be subject to standard principles of public law, and that we will consider their obligation within a reasonable time.
I thank the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton, for their contributions to the debate. I also thank the Minister for her response. I appreciate that there are two amendments down: one takes the clause out and the other seeks to amend the clause to provide for safe return agreements to be put in place. I appreciate that other noble Lords can ask for a vote, but I will not be seeking a vote on taking the clause out. Instead, I intend to seek a vote on the amendment we have put down.
I appreciate what the Minister has said about Clause 15 and the arguments she has made as to why it should remain in the Bill. I will, however, come back to the issue of return agreements, which is essentially what our amendment seeks to address. Those safe return agreements must be in place before Clause 15 is brought into effect. There was no argument from the Government about this in Committee. I appreciate that the Minister was speaking on behalf of the Government, but what she said was:
“I am not disagreeing with the need to have formal arrangements in place to return people. On that we are at one.”
She then said:
“I think it is both. We need to assess people on a case-by-case basis and we need to have return agreements in place.”
Subsequently, she said:
“I do not accept that Clause 15 is meaningless. I am agreeing that we need to have return agreements in place. I do not think anyone would disagree with that point.”—[Official Report, 3/2/22; col. 1104.]
This is all that my amendment is seeking to say. Before you bring it into effect, have these safe return agreements in place in respect of one or more states. So clearly I will have to put my amendment to a vote, since I am not confident the Government actually agree with it, despite what they said in Committee. All my amendment is seeking to do is put on the face of the Bill what, as far as I am concerned, the Government were agreeing with in Committee.
I have made clear what my intentions are, and I will not be seeking to put the stand part Motion to the test. However, when reference is made to Amendment 32, I will be seeking a vote on that.
Amendment 31 withdrawn.
32: After Clause 15, insert the following new Clause—
“Safe third State: commencement
(1) The Secretary of State may exercise the power in section 83(1) so as to bring section 15 into force only if the condition in subsection (2) is met.(2) The condition in this subsection is that the United Kingdom has agreed formal returns agreements with one or more third States.(3) A “formal returns agreement’’ means an agreement which provides for the safe return of a person making an asylum claim (a “claimant”) to a State which is party to the agreement, where the claimant has a connection to that State.”
Clause 18: Asylum or human rights claim: damage to claimant’s credibility
33: Clause 18, page 22, line 36, at end insert—
“(6C) This section also applies to failure by the claimant to produce identifying documents when entering the United Kingdom or when intercepted in the territorial waters of the United Kingdom.”
My Lords, I rise to move my Amendment 33 and thank my noble friend Lord Green of Deddington for his support. This amendment would add the failure to produce identifying documents as a factor that could be taken into account in an asylum or human rights claim and might damage a claimant’s credibility.
The background to this is my concern that migrants, especially those coming across the channel in boats, are destroying any documents they have because they believe—usually on the advice of the people smugglers— that they will secure better treatment under the asylum system. I fear that the system we operate makes this a reality.
My concern increased when I saw the results of a freedom of information request by Migration Watch UK, which showed that just 2% of the thousands who have made their way to the UK in small boats across the channel are in possession of a passport. Between January 2018 and June 2021, there were 16,500 such arrivals, and only 317 were found to have a passport at the time of being processed in the UK. This figure also dropped from 4% to 1% during that period, so something was happening.
Asylum claimants found to have destroyed their documents can be prosecuted under a 2004 law passed by the then Labour Government, but there were only two prosecutions in 2019—a sharp decline since 2013, when there were 49 prosecutions, 44 of which were successful. The fact is that by destroying their documents, migrants make it harder for the authorities to identify the claimant and assess their claim.
In responding to a similar amendment in Committee, the Minister, my noble friend Lord Wolfson of Tredegar, emphasised the case-by-case nature of decision-making, which I think was welcome to noble Lords. Clause 18 of the Bill before us adds two new behaviours to Section 8 of the 2004 Act: providing late evidence without good reason and not acting in good faith. He hinted that the destruction of documents would be an example of the behaviour that a deciding authority might think was not in good faith and concluded that my amendment was not necessary. However, when pressed by my noble friend Lord Green, he refused to confirm the documentation example and wished to leave the matter to decision-makers and the courts. This is not always the safest or cheapest approach.
Against the worrying factual background that I have been able to set out today, I believe that this is much too uncertain and likely to lead to a continuation of the current deplorable practice. The lack of clarity is an invitation to the people smugglers to persist with their wicked advice, and their wicked and dangerous trade. My Lords, what are the Government going to do about it?
My Lords, I will not be quite as brief as that, but I will try to be brief.
I rise to support Amendment 33 in the name of the noble Baroness, Lady Neville-Rolfe, which I have co-sponsored. It is surely right that the failure to produce identifying documents should be a factor—I put it no stronger than that—in assessing the credibility of a claimant. The destruction of identity documents has long been a means of undermining our asylum system. As I mentioned in Committee, we overcame a similar problem for those arriving by air simply by photographing the documents before they got on the plane, so if they stuck them down the loo, it was not going to help them, and that had been going on for some considerable time.
It is no accident that today, 98% of all cross-channel arrivals, whether by truck or boat, have no documents. Indeed, it is not in dispute that people smugglers instruct them to destroy any documents to reduce the risk of being returned to their home countries. In many cases, the applicants are making fools of us. Surely, the least we can do is to specify in law a requirement to take into consideration the absence of documents as a factor in judging the applicant’s credibility. I can think of no reason why that should not be the case and I strongly support the amendment put down by the noble Baroness.
I rise briefly to support this amendment. I had an opportunity years ago, when we were part of the European Union, to participate in an inquiry about FRONTEX and to go to Heathrow Airport to see the issues that the noble Lord, Lord Green, has just addressed. We were asked to be there at 8.30 in the morning to see what happened when people arrived at Heathrow on the overnight flights. Issues that have since been cured, largely, were then putting the immigration officers under enormous strain.
For example, on the day that we were there, a young man from Australia arrived who claimed to be British, but he came without any documentation; and a man from Brazil arrived for a holiday but without any money, so he was obviously going to work. Most significantly, a man on a flight from Nigeria claimed that he could not speak any of the languages available through interpreters at terminal 3, which is quite a wide range. I asked the reason for that, and they said that he will not speak until the flights back to Nigeria have left, and then he will start to speak, because otherwise he will be put back on the next flight to Nigeria. This was a prevalent issue, but I think it has now largely been tackled for the reasons given by the noble Lord, Lord Green. It was a huge gap in our ability to provide control. Those measures are not applicable to channel crossings, but we do need to find ways to tackle this issue, just as the noble Lord, Lord Green, described how we tackled it at airports. In the absence of that, we need to make it clear in law that the lack of clarity referred to by my noble friend when she moved the amendment should be taken into account by immigration officials.
My Lords, I invite the noble Baroness who moved this amendment and her supporter to consider the actual conditions of refugees who have passed through Europe and managed to get somewhere near our shores. They usually face closed frontiers. They probably live rough over a considerable period, being chased, for example, by the French police and the garde républicaine de sûreté. They are tear gassed, pepper sprayed and so on. Can they always be expected to have retained their correct documentation?
My Lords, I have been following this Bill since its inception. I have not spoken up to this point, but I have been increasingly concerned about the effect of this particular legislative initiative and its potential impact on our reputation internationally, which had been very good in this area up to now, largely because of our role as one of the founding signatories of the refugee convention.
The present situation is one about which the Government are clearly not being frank with the public and the House. My noble friend Lord Rosser quoted chapter and verse very effectively just now when he quoted the Minister saying that at one point she was in favour of, and at another point against, having reciprocal return agreements with other countries. If she wants me to give way to her, I am happy to do so. We should know the answer to that. We should know the answers to things we do not know the answer to. For example, in this country, are we committed to not breaking up families? Can we assume it is a guiding and regular principle that we will not break up families? If we do break up families of asylum seekers or otherwise, we shall be acting completely outside the pale of civilised behaviour. That would be extremely worrying to an awful lot of us.
The Government are known, in international rumour, to be in negotiation with a number of African countries—Rwanda, for example—on establishing some sort of camp or facility to take failed asylum seekers from this country, but we do not know what the terms of such an arrangement would be. The Government have not been frank enough to tell us. There are a lot of rumours going around, most of which are very unattractive. I hope the Government might do something about that.
There is a fundamental weakness at the root of what the Government are trying to structure here. People who have come in small boats and hidden in lorries have been accused of coming here illegally. Logically, one can see the reason for that accusation, but there is no way in which they can come legally, as far as I can see. The Government should think about setting up an office in, say, Dunkirk, Calais and Boulogne-sur-Mer so that there will be some direct contact with these potential illegal immigrants. It would not cost that much. They could make some progress in filling out forms and getting an initial reaction from the bureaucracy to their claim. That might be helpful all round.
The fact is that the Government are proceeding in their own way and have not always been very straight- forward with us. I hope that changes. I think all of us remember from our school days the Spartans in ancient Greece. They led a terrible life and were third-class citizens.
I am endeavouring to do so but I shall not stand here for very long.
The ancient Spartans were helots. Their problem was that they had no rights—they had a growing population but no rights at all. I am very much afraid that if we take on board illegal immigrants and send them to some place in Africa, they will have no legal rights. It would be very worrying to have a population with no rights at all in a country that believes that that is firmly based on the law.
No. My Lords, this is Report. First, we are allowed to speak only once during a debate. Secondly, even if noble Lords were not here for Second Reading or Committee, they should not be making Second Reading or Committee speeches on Report.
We cannot support this amendment because there is no differentiation between documents that are genuinely lost or stolen. We know that people smugglers control the people they are smuggling, including stealing and taking their documents away from them deliberately, so it may not be the fault of the asylum seeker that they do not have a document. This amendment and the other provisions in the Bill seem to ignore the fact that officials and tribunals are quite capable of deciding, on the basis of the evidence, what weight they place on the evidence that is provided to them and what should be considered in terms of the credibility of the claimant, without what is contained in the Bill or in this amendment.
The noble Baroness, Lady Neville-Rolfe, said, on the basis of a freedom of information request, that only 2% of asylum seekers were in possession of a passport. Only four in 10 Americans have a passport. Is it any wonder that those fleeing war in less developed countries, often when normal government services have completely collapsed, do not have passports? If you are fleeing war, if you are being bombed, if you are being persecuted because of your sexuality or your political views, the first thing on your mind is to get out of that country, not to go to the Government and ask for a passport.
This amendment and the related clauses in the Bill that seem to be telling officials and tribunals what interpretation they should put on evidence should not be supported by this House.
My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.
As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.
There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.
My Lords, I am grateful to my noble friend Lady Neville-Rolfe for raising the issue and of course I understand the concerns that lie behind it.
Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where, conversely, there are good reasons for providing evidence late, that would not affect the claimant’s credibility.
The concept that certain conduct should be damaging to credibility is not new. Decision-makers must already consider the claimant’s conduct. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. The focus of Clause 18 is, therefore, the Home Office and then the judicial decision-making process. It is intended to address the issue of late evidence raised in unfounded protection and human rights claims and put beyond doubt that behaviour designed to abuse the system will be taken into account. Clause 18, therefore, is intended to apply to those individuals who have made a protection or human rights claim and have been issued with an evidence notice as per Clause 17. It is not intended to apply, for example, to individuals immediately when intercepted in the territorial waters of the United Kingdom.
Against that background, I suggest that Amendment 33 is unnecessary. The destruction, alteration or disposal of a passport without reasonable explanation, or the failure to produce a passport on request to an immigration officer or to the Secretary of State—again, without reasonable explanation—are behaviours to which Section 8 already applies. The good faith requirement in the Bill is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Specific instances of a lack of good faith are necessarily caught by the broader provision that refers to good faith: the greater includes the lesser. Therefore, there is no need to single out the behaviours prescribed in this amendment.
As to the detail of the amendment, I say that verification of someone’s identity normally takes place on land. However, should a claimant be in possession of their passport or identity document and fail to provide this when requested by an immigration officer, Section 8 will apply, as I said. Moreover, where evidence is provided late following receipt of an evidence notice in a protection or human rights claim—again, without good reason—this should be taken into account as damaging the claimant’s credibility.
As this amendment refers to specific examples of behaviour designed to abuse the system, and that type of behaviour as a whole is already caught by the provisions of the Bill, I respectfully suggest that the amendment is necessarily unnecessary. For those reasons, I respectfully invite my noble friend Lady Neville-Rolfe to withdraw it.
My Lords, I thank those who have spoken in this brief debate. The very real problems of refugees, noted by the noble Lord, Lord Hylton, and of course the fact that some people do not have passports are very well understood by me. That is why my proposal is to add an extra factor that needs to be taken into account, not least to reduce the power and profiteering of the traffickers. As has been said, tribunals and officials can then take a fair view.
Having said that, I think that there seems to be a chink of light in some of the comments from my noble friend Lord Wolfson on how this would work. Perhaps we could discuss further before Third Reading what the Government’s approach will be, the associated regulations and so on. I am very conscious that we need time for many votes today, especially as the electronic system seems a bit slow, so for today I beg leave to withdraw my amendment.
Amendment 33 withdrawn.
Clause 25: Late provision of evidence in asylum or human rights claim: weight
34: Clause 25, page 30, line 25, at end insert—
“(2A) The deciding authority must treat evidence provided late as provided late for good reason where the applicant is a child, or where it is reasonable to attribute its lateness to the applicant's experience of, but not limited to —(a) torture,(b) trafficking or modern slavery, or(c) sex or gender based violence, abuse or exploitation.”
My Lords, Amendment 34 is in my name, and I thank the noble Baroness, Lady Lister, for her support. I am also extremely grateful to the Minister for meeting me last Friday to discuss this amendment and for agreeing to follow up our discussions with the Home Office. I am hopeful that this is going to lead to a positive outcome.
Clause 25 authorises the deciding authorities to give minimal weight to late evidence submitted by asylum applicants unless there is a good reason for it. My amendment would require the authorities always to assume that there was a good reason for late evidence in certain circumstances: where the applicant is a child or where the reason for lateness could reasonably be attributed to their experience of torture, trafficking or modern slavery, or sex or gender-based violence, abuse or exploitation. I have based that on the evidence to which I referred at Second Reading: that it is widely acknowledged that the trauma associated with sexual violence or trafficking can lead to significant problems with memory and recall, as well as a reluctance to share details which could bring shame, fear or humiliation. Critically, I rely also on existing Home Office guidance, which acknowledges all that and says that an application should not be disadvantaged in those circumstances.
However, in Committee, the Minister explained why he could not accept the amendment, which was admittedly drawn much more widely at that stage. I accept that one of the flaws in that version of the amendment was that, as he pointed out, there are unintended consequences which are undesirable—for example, the lateness of the evidence could be completely unrelated to the categories of situations that I listed. In addition, he pointed out that listing some categories and not others could, in principle, tie the judiciary’s hands and result in unfairness—for example, treating an applicant who is two days short of an 18th birthday differently from somebody who was 18 two days previously. Other circumstances could equally have resulted in an asylum seeker’s trauma which were not listed—for example, faith-based persecution.
I have tried to adapt and amend the wording of my amendment to accommodate those reasonable objections, and I have done so by not listing the categories of person but by listing experiences and linking directly the attribution of late evidence to those experiences. I have also inserted the words “but not limited to” to try to encompass some of the other circumstances, which would otherwise have resulted in a list as long as the Bill itself.
Another way of coming at the problem of late evidence which the Minister and I discussed is by looking at the crucial role of Home Office guidance, which currently refers to some but not all of the criteria listed in my amendment. It refers to trafficking and sex and gender-based violence, but not to the other conditions or experiences which could equally lead to good reason for late evidence, such as torture, modern slavery, mental health issues or faith-based persecution. With that in mind, the Minister kindly undertook to consult Home Office colleagues over the weekend to see what scope there might be to expand, strengthen and update the Home Office guidance to cover a much broader range of those contingencies. The aim was to see whether that would, in practice, provide sufficient reassurance for asylum seekers suffering the kind of trauma which could account for late evidence, but which would avoid the need for an inevitably selective list being included in the Bill—which might at first sight look like the right thing to do, but which could arguably have the effect of disadvantaging some refugees not caught by the stated categories.
I hoped that my inclusion of the words “but not limited to” could overcome that concern, but I shall be interested to hear what the Minister can report from his discussions with the Home Office to see whether we can find an acceptable way forward through new strengthened and updated Home Office guidance rather than an amendment which, I agree, could risk unintended consequences. I beg to move.
My Lords, I shall speak briefly in support of the amendment, which I hope the Minister will be able to respond to positively, given that it has been revised to take account of concerns that he raised in Committee about its wording, as the noble Baroness, Lady Coussins, said.
I want to come back to the question of children. I welcome the publication last week of the factsheet on the Bill’s impact on children—better late than never—although it was only by chance that I found out about it, even though I had raised a number of concerns in Committee about the Bill’s failure to protect children. That point was made strongly by children’s organisations such as the Children’s Society. The factsheet, not surprisingly, echoes what the Minister said in Committee about guidance setting out how decision-makers will exercise their discretion with regard to children and more generally on a case-by-case basis.
However, as the Children’s Society warns:
“Assurances that children will be looked after in guidance are not sufficient. Guidance and case-by-case determinations do not provide the legal protection children desperately need. As highlighted in the recent inspection report of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed ‘they did not have time to consider each case on its own merits, contrary to the guidance they receive’. Leaving decisions that will have a profound impact on a young person’s life to case-by-case determination can trigger further trauma for young and vulnerable claimants.”
Moreover, when the factsheet states:
“The best interests of the child are a primary consideration in every decision taken in respect of the child”,
forgive me if I am sceptical, given that the Court of Appeal last year ruled that the Home Office had failed to take account of the child’s best interests when setting the fee for citizenship registration—an issue to which we will return on day three.
Therefore, I am afraid that I am not reassured by what has been said about guidance and a case-by-case approach. Can the Minister tell us when that guidance will be published? Will organisations working with children seeking asylum be consulted on it? What opportunity will there be for Parliament to consider and provide views on the guidance? I realise that those questions may need to be referred to the Home Office but, if so, I should be grateful if the Minister would undertake to pass them on and request that the Home Office writes to me with the answers.
My Lords, we support the amendment as far as it goes, particularly the emphasis on those subjected to sex and gender-based violence, abuse or exploitation. However, there are many others, such as those from sexually and gender-diverse communities, who will hesitate to bring forward all the evidence that they rely on in support of their claim. As I said in the last group, and as the noble Lord, Lord Wolfson of Tredegar, said, officials and tribunals already weigh evidence and credibility but if, in the Bill, the Government insist on leaning on decision-makers in relation to the weight that they should place on late evidence, then this or an expanded amendment should be included; that should also include children.
My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.
The amendment relates to Clause 25(2), which says:
“Unless there are good reasons why the evidence was provided late”.
It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.
At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.
As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.
My Lords, I thank the noble Baroness, Lady Coussins, for her engagement with me, as the House will have heard, on the amendment, which she has redrafted since Committee, for the reasons she set out in her speech. I am also grateful to the amendment’s co-sponsor, the noble Baroness, Lady Lister of Burtersett.
We have a proud history of providing international protection to those most in need. This is a responsibility that we take seriously, but we need a system that is efficient as well as effective. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers have regard to the principle that minimal weight is given to evidence that is late following the receipt of either an evidence notice or a priority removal notice without good reason. The House will appreciate that Clause 25 is therefore essential to the architecture of this part of the Bill. However, at the same time, it is important not to tip the balance too far. Decision-makers in the Home Office and the judiciary will maintain their discretion as to whether, having considered the principle and in the absence of good reasons for lateness, it is appropriate in all the circumstances of the particular case to apply minimal weight to late evidence, taking into account the claimant’s particular claim and any specific vulnerabilities.
I have been asked to define “good reasons”. This has not been defined in the Bill for, if I may say so, a good reason. We cannot legislate for every case type where someone may have good reasons for providing late information or evidence in relation to their protection claim. To do so would be impractical and would detract from the important principle that decision-makers are best placed to consider an individual’s particular vulnerabilities on a case-by-case basis. I say this because “good reasons” can include both objective factors, such as practical difficulties in obtaining evidence—for example, where the evidence was not previously available—and subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental and physical health. Decision-makers must be able to respond on a case-by-case basis.
I contrast that with Amendment 34, which would place an obligation on decision-makers not only in the Home Office but in the judiciary to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. I suggest that this would undermine the principle that we want decision-makers and the judiciary to apply their discretion on a case-by-case basis. By setting out a non-exhaustive list—I appreciate that it includes the words “not limited to”—of potential experiences or categories of claimant, it is true that this amendment does not exclude those not listed in the amendment from having good reasons. However, in any non-exhaustive list, there is a risk of focusing attention on the factors in the list, thus putting other applicants with different issues at a relative disadvantage.
I suggest that the amendment is unnecessary because Clause 25 already provides sufficient safeguards to all individuals captured by the amendment and, indeed, further individuals not covered by it. I have indeed followed up on the undertaking I gave and can confirm to the noble Baroness and the House that guidance on good reasons will set out how decision-makers should make an assessment of reasons for lateness. I can specifically confirm that the guidance will cover all those categories of claimant and types of experience listed in this amendment as well as others. As to the timing, I can also confirm that the guidance will be published at least two months before it comes into effect.
I will make some other short points in response to the amendment. The noble Baroness, Lady Lister, referred to children in particular, so let me say a word about that. Where a child raises a protection or human rights claim, decision-makers will take into account the age and particular characteristics of the child before deciding whether to issue them with an evidence notice. Where evidence is thereafter provided late, it will be, as I have said, for the Home Office and the judiciary to decide on a case-by-case basis whether there are good reasons.
In that context, guidance will be published, and I have set out the timing, setting out how decision-makers should take into account the age of the unaccompanied asylum-seeking child in the exercise of their discretion. The evidence provided by a child will be considered in the light, therefore, of their age and their degree of mental development and maturity, both currently and at all relevant earlier material times. Where there are good reasons for late evidence, there will be no penalty or adverse consequences for the claimant and decision-makers will not therefore need to have regard to the principle that minimal weight should be given to the late evidence.
I point out, as I think the noble Baroness accepted, that there is a problem with Amendment 34 because it can create a different statutory approach to individuals who may be equally vulnerable—for example, where a claimant is suffering from severe anxiety or depression or other mental health-related issues that are not included in the amendment. The noble Lord, Lord Paddick, referred to other categories and it is essentially the same point. I invite the House to accept that the approach in Clause 25 is the better one because that preserves the discretion for the decision-maker.
Finally, there is a risk as well of perverse outcomes. The amendment would possibly encourage claimants. There would be incentive to claim that you fall into one of the listed categories when you do not if there a hard cut-off, for example at the age of 18. That would incentivise somebody who is 18 and a half to claim that they were just about six months younger than they were. That would increase the burden on the authorities and act to the detriment of those under 18 and any others who need a high level of support.
I hope I have set out—
My Lords, I do not have the detail at my fingertips, but I can certainly undertake to write to the noble Baroness. I was just about to sit down after inviting the noble Baroness, Lady Coussins, to withdraw the amendment for the reasons that I have set out.
My Lords, I thank the Minister for his reply and all other noble Lords for their support on this amendment.
I was very happy to hear the Minister’s commitment, having discussed it with the Home Office, that there would be new guidance. Assuming that this new guidance on late evidence is genuinely expanded and strengthened, this has the potential to go a long way towards meeting my objectives. However, I underline the point just made by the noble Baroness, Lady Lister, that it would be very helpful to be consulted on a draft before the two-month cut-off point when the new guidance would come into force. I would be very grateful if Home Office colleagues could take that on board. Although the noble Lord is an MoJ Minister, can he please keep on this as well, and ensure that the Home Office does not lose sight of this guidance in the greater scheme of things?
Assuming that this will be on track, it amounts to a satisfactory way of meeting my objectives and would give vulnerable and traumatised refugees some of the comfort that they deserve. On that basis, I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
Clause 28: Removal of asylum seeker to safe country
35: Clause 28, page 33, line 20, leave out paragraph (a)
Member’s explanatory statement
This amendment is linked to the amendment to leave out paragraphs 1 and 2 of Schedule 3.
My Lords, in the absence of my noble friend Lord Kirkhope due to Covid, I will be moving Amendment 35 in his name.
It is disappointing that the concerns expressed by many noble Lords in Committee have gone unheeded and the practical questions that were posed are yet to be answered. My noble friend Lord Kirkhope is a former immigration Minister, who speaks with authority on this matter. Many years ago, after carefully examining this policy of offshoring, he rejected the proposal to offshore asylum seekers on the basis that it was impractical and ineffective. The reasons that he did so still apply today.
There is still too much that we do not know about this policy, even at this late stage. How would the powers given be used by the Government? Whose legal system would be used to assess asylum seekers that we have offshored—Britain’s or the third country’s? Once assessed, would these asylum seekers be returned to the UK? How would the Government exercise their safeguarding responsibility for families thousands of miles out of UK jurisdiction? How much would each case cost? The numbers from Australia suggest up to £2 million per year just to keep one person who is in need out of this country.
All this fails to fit in with our legal and international obligations, let alone our constitutional principles. Today, we see this clearly, more clearly even than when we were discussing it last time, through the events in Ukraine. This tragic and unnecessary unfolding humanitarian crisis will certainly play out through the European continent. Many refugees fleeing Ukraine may well attempt to come to the UK. Last Saturday evening, the Prime Minister clearly stated that we would welcome refugees from Ukraine here. By Sunday, that commitment had become that we would support refugees in neighbouring countries to Ukraine. Today, we can see that the approach has moved again and that the Government are committed to expanding their family visa scheme and introducing a new community sponsorship scheme for Ukrainians, both of which are significant and welcome steps.
However, are we still saying that every other Ukrainian refugee who reaches these shores would fall into tier-2 status, have no recourse to public funds and be subject to potential offshoring? How would this work practically? How are we going to apply an operation that would be, at the best of times, excruciatingly complex to execute on a potentially huge scale? Of course, there is the irony of people seeking safety only to find themselves in a position of renewed vulnerability, potentially held indefinitely in detention abroad. Instead of designing a structure that draws a proper distinction between economic and humanitarian motivations for migrants trying to reach our shores, it seems that the Government are muddying the water and resorting to this extraordinary measure of offshoring.
As we have learned more about the realities of life in the Australian processing centres, many noble Lords have become increasingly concerned by the reports of what children have been forced to endure. The Nauru files—a cache of more than 2,000 leaked incident reports from the detention centre on Nauru—highlight hundreds of reports of neglect, violence and abuse against children in the detention centre, often by guards. I cannot fathom a situation where the UK would tolerate the mistreatment of children, but in the absence of explicit protections and the rule of our own legal system, we have to assume that any scenario is possible.
In conclusion, this proposal is deeply concerning and unworkable on numerous levels. The powers it would grant our Government are on the one hand ill-defined and on the other far-reaching. They are potentially hugely expensive and yet ineffective, exposing vulnerable people to further trauma rather than offering protection.
As great as these concerns are, I have one further concern: what does this policy make us? This is our moment as an independent nation that can demonstrate western liberal values at a moment when they are under attack—values of democracy, rule of law and freedom of speech, yes, but also the value and dignity of every human being. We all believe in taking back control, but if there is one lesson to learn from Australia’s experience, it is this: any country that chooses to outsource its constitutional responsibilities compromises its control. I beg to move.
My Lords, in rising to support Amendment 35 in the name of the noble Lord, Lord Kirkhope, to which I have added my name, I declare my interests in relation to both RAMP and Reset and set out in the register. I thank the noble Baroness, Lady Stroud, for the way she introduced this amendment, and I fully support all her points.
I set out my reasons for supporting this amendment in Committee. However, a significant concern for me now is that the Minister was not able to give assurance that children in families would be excluded from offshoring, nor that families would not be split up in the process. This is deeply concerning. I appreciate that the policy document of 25 February sets out that exemptions will depend on the country where people are being offshored and tat publicising exemptions will fuel the movement of the most vulnerable not subject to offshoring.
However, I would set out that, for children, onward movement to any country after an often traumatic journey to the UK, in addition to the trauma in their country of origin, is simply never in their best interests. All the concerns I set out in my Committee speech regarding the monitoring of the practice of offshoring processing centres are especially true for children.
The Home Office has processes to confirm identity and actual family relationships, which it uses for a range of visas as well as in the asylum process. It would seem that, if this is the concern, there are ways to avoid children being used in this way. Given the deep harm that offshoring would do to everyone, particularly children, I fail to see why the Minister cannot give this commitment.
I am deeply concerned that throughout the Bill, where we have highlighted the deep harm of policies on the most vulnerable, we are told that guidance and discretion can be applied on a case-by-case basis. I understand the logic of that, but what worries me is that it does not speak of any standardised process where everyone can be confident that there is equal treatment.
I further ask whether an economic assessment of the costs of offshoring has been properly made, and, if so, what the outcome of that assessment has been—and if it has not, why not? I ask these questions while fully supporting the need to remove this clause of the Bill in its entirety.
My Lords, I support Amendment 35. In Committee, I and a number of other noble Lords asked various questions to which the Minister responded that she promised to write to us. Well, I have not received a letter. I contacted her office this morning, checked with our Whips’ office, and—the right reverend Prelate is also shaking his head—there was no letter.
I was going to raise the question of children, but the right reverend Prelate has already dealt with that very well. The fact sheet came out at the end of last week. My reading of it was that, yes, families with children will potentially be offshored—which is, as the right reverend Prelate said, very troubling.
I simply return to a question I raised at the very end of our debate in Committee, when I said that
“a whole range of noble Lords asked a question, in different ways, about what happens to the asylum seekers if they are granted refugee status in the country to which they have been offshored. Are they allowed back into this country or are they just left there? If they are left there, they have, in effect, been deported.”—[Official Report, 8/2/22; col. 1421.]
That seemed to me a rather basic question, and I was rather surprised that the Minister said that she could not answer it. I took her at her word that she would write to us, and she has not—so could she answer that question today, please?
My Lords, I spoke on this subject in Committee, so I will not make any more than a few brief remarks on Report. I cited the Australian example, which now has all-party support in Australia, for dealing with a particular form of offshoring.
The problem of dealing with cross-channel migration is undoubtedly very difficult, but it is not impossible; we have had some success in dealing with the problem of people coming across in lorries, which is one of the reasons they are now coming by sea. But the reason I cannot go along with my noble friend Lady Stroud is that if you are dealing with a very difficult, protracted and visible problem like this, you need to consider all the options available. Some of them will turn out, on closer analysis, to be impractical. It will turn out that you simply do not want to do some of them because of the reasons raised by the right reverend Prelate the Bishop of Durham and the noble Baroness, Lady Lister, about some of the ramifications. Some of them may simply be politically impossible to do, but it is an obligation on the Government to explore every avenue to resolve this very difficult problem.
Also, this is clearly an international problem. It is not only Britain that is dealing with this issue; it is Greece, Italy, France, Spain and so on. One thing I am sure noble Lords have said in the past is that, when looking at this, we should not simply confine ourselves to what we think is right. We should look abroad to see how other countries have tackled it. Some countries have had some success, some have had less success, but it would be foolish to ignore what is happening abroad and what methods they are trying.
For all those reasons, it is just common sense to keep the wording of the Bill as it is at the moment to give the Government the opportunity to explore a number of different avenues, some of which, I agree, may not turn out to be very sensible, and some of which may be more productive. To stop this now and to exclude some aspects because there are unanswered questions at this stage, when the Government are clearly in negotiations on this—they are half way or quarter way through the process; I do not know—would be foolish in the interests of looking at the whole picture.
Finally, the noble Lord, Lord Paddick, often makes the point that this aspect of asylum seekers and refugees coming across the channel is only a small part of a much larger picture of migration; I think he used the figure that asylum seekers make up 6% of those coming over. But we have to get back to the bigger picture of what is happening on migration. By the way, I include Ukraine in that. Obviously, we all hope that no Ukrainian has to find a way across the channel via a smuggler. We hope that this country will be generous enough to deal with all those coming here properly. As I understand it, the Prime Minister said at Question Time today that he had been in discussions with the Poles, for example, about how Britain could help the Polish Government to deal with the massive influx they have had over their borders. That is an entirely separate issue which I hope we can deal with far more generously than so far.
I think this is a distraction, if you like—a difficult and problematic distraction from a very much bigger picture, which I hope we can return to if we really can solve this. But I urge the House not to rule out any particular measure, however difficult it may be and however many questions it may pose, at this stage.
My Lords, I will speak rather briefly; it seems to me that brevity has a very wide definition. Let me just say that outsourcing is entirely unacceptable. I would like to see the back of this clause and schedule; they should not be in a Bill dealing with asylum or refugees. As I said in Committee, this will place vulnerable people again at risk. I give the simple example of someone who might be lesbian, gay, bisexual or transgender ending up in a country to which they are outsourced where they could be criminalised, persecuted and under real threat. What kind of signal do we send to the rest of the world when we treat vulnerable people in this way? I support all the amendments in this group. I think that is brief enough.
My Lords, I think the noble Lord, Lord Horam, makes the mistake of thinking that this House trusts the Government. Of course, it does not—or rather, by and large, the majority in this House does not, because the Government have broken their word so many times.
I will speak briefly as well, because I am very concerned that we can vote as much as possible but I do not understand why the Government are trying to move people to other countries. This makes no sense, and it is one of the many ways that the Government are trying to avoid their obligations. Instead of trying to deport people while the Government dither about processing their claims, we should provide them with decent accommodation and work so that they can start to retrieve some of their lives. If there was ever a moment when this Government should come out against the far-right ideology within their own ranks, this is it.
My Lords, I entirely agree with and support what has been said by the noble Baroness, Lady Stroud, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Cashman. Offshoring while an asylum seeker is having their claim assessed is wrong in principle, oppressive in practice and, critically, lacking sufficient safeguards under the Bill. The noble Lord, Lord Horam, mentioned Australia’s policy of offshoring as a successful process, as he did on Monday. On the contrary, from a humanitarian perspective, Australia’s offshoring shows all the defects and injustices of such a policy.
In Committee, I mentioned the 2013 Amnesty International report This is Breaking People, highlighting a range of serious human rights concerns at the immigration detention centre on Manus Island, Papua New Guinea. I also mentioned and quoted from Amnesty’s follow-up report, which stated that on 16 and 17 February 2014, violence at the detention centre led to the death of one young man and injuries to more than 62 asylum seekers. Indeed, some reports suggested that up to 147 were injured. I quoted more from this report in Committee, but it is not appropriate or necessary to repeat that now.
What is absolutely critical—here I take serious issue with the noble Lord, Lord Horam—is that before any such notion of offshoring can be pursued by the Government under this or any other legislation, certain assurances have to be provided in primary legislation, none of which is addressed in the Bill, the Explanatory Notes or any other guidance by the Government. First, how will asylum seekers have access to legal advisers with knowledge of the law and practice relating to UK asylum claims, which is complex and difficult? Is that going to be done four and half thousand miles away on Ascension Island? Secondly, legal aid and advice is available to refugees in the United Kingdom. Is there anything to suggest that it will be available to refugees in offshoring holding centres? If conditions, as in Australia, in the proposed offshore centre are so bad as to cause physical or mental harm to refugees—whether through physical conditions in the centre or, in the case of single women or LGBTQI people, for example, because of discrimination, harassment, bullying and violence from staff or other asylum seekers—will they be able to have recourse or bring proceedings in the UK, or will they be restricted to such remedies as might be available in the foreign countries?
These are fundamental questions. They cannot be left outstanding while individual arrangements with separate countries are being negotiated or considered. They have to form the legal framework within which any such discussions should take place and be seen on the face of any legislation, including this Bill. Although I raised these points in Committee, the Government have not given any answer on any of those issues and, until they have done so, I suggest that these amendments necessarily have to be carried.
My Lords, I want to briefly restate what I said in Committee. Not only is the Home Office seeking the power to remove an asylum seeker to any country while their claim is being considered but it is seeking to remove them to a country and then tell that country, “If you think they are a refugee, you take them; they’re not our problem any more”.
As the noble and learned Lord, Lord Etherton, has just said, according to Amnesty and Migrant Voice, offshoring by Australia effectively excluded legal, judicial, medical, humanitarian and media scrutiny. It has cost it over half a billion pounds a year, according to the British Red Cross, and failed to stop those seeking asylum, including by boat. Evidence to the Public Bill Committee in the other place from independent academics supports these conclusions. The UNHCR has
“voiced its profound concerns about such practices which have ‘caused extensive, unavoidable suffering for far too long’, left people “languishing in unacceptable circumstances’”
and denied them “common decency”.
I accept what the noble Lord, Lord Horam, says: the Government should be looking at every option, but surely they should be taking into consideration the evidence that I have just cited and considered any counterevidence. Then, having worked out its practicalities and decided whether it is to go ahead, they should bring forward legislation—not bring forward legislation and then decide whether they are going to use it.
Clause 28 and Schedule 3, as drafted, should not be part of the Bill. We support all the amendments in this group that seek to prevent anyone being removed from the UK while their asylum claim is being considered, particularly Amendment 35, to which I have added my name.
Amendments 35 and 37 would remove the subsections of Clause 28 and Schedule 3 which allow for offshoring. That is, as we know, the power to export offshore any person in the UK who is seeking asylum without first considering their claim. Let us just repeat: we are talking here about asylum, not general immigration policy.
Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed. The Bill withdraws that right by allowing the transfer of any asylum seeker to any country listed by the Government. The Government have been somewhat reticent in telling us about the progress of any negotiations they are having with any other countries on this score. I think that is where we hear the term about the Government not wishing to give a running commentary; in other words, “We’re going to keep you in Parliament in the dark about what is going on”.
The Bill is silent on what, if any, legal obligations the UK would consider itself to have towards asylum seekers once their asylum claims have been dealt with. This issue was raised again by my noble friend Lady Lister of Burtersett and others. The United Nations High Commissioner for Refugees has commented that the provisions of the Bill allow the Government to externalise their obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards, an issue to which my noble friend Lord Cashman referred. The only thing the Government have said is that the model the Home Office intends to proceed with is
“one where individuals would be processed as part of the asylum system of the country that we had an agreement with, rather than people being offshore and processed as part of our asylum system.”
It is not just offshoring—it is also treating and dealing with people under another country’s asylum system rather than ours.
The UNHCR has been highly critical of efforts to offshore asylum processing, noting how
“offshoring of asylum processing often results in the forced transfer of refugees to other countries with inadequate State asylum systems, treatment standards and resources. It can lead to”
indefinite warehousing of asylum seekers
“in isolated places where they are ‘out of sight and out of mind’, exposing them to serious harm. It can also de-humanise asylum-seekers.”
I have a sneaking suspicion that that reference to “out of sight and out of mind” may well be a big attraction for the Government. There would be no pictures in the papers or on TV, apart from the ones showing these asylum seekers being bundled out of this country.
Clearly this policy is intended, in the Government’s view, to act as a deterrent. Such measures assume that people have a choice in the decisions they make. In reality, people forced to flee their country because of violence and persecution have no such choice. Consequently, deterrent measures will not stop them making the journey to find safety.
Can the Government say what their evidence is to substantiate the claim in the Explanatory Notes that the policy will
“deter irregular migration and clandestine entry to the UK”?
As I say, we are talking here about refugees and asylum seekers. Where is the evidence to substantiate that claim in the Explanatory Notes?
In the Commons, the Minister said
“Schedule 3 is designed to be part of a whole system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise”.—[Official Report, Commons, Nationality and Borders Bill Committee, 26/10/21; col. 388.]
Yet since no assessment would be made of need before a person could be moved to a third country, need cannot enter into it as far as the Government are concerned. Although the Minister in the Commons mentioned “criminal enterprise”, this clause is not targeted at criminals. It is targeted at people who are desperately seeking refuge and have legitimate reasons to be granted it. It is not targeted at those involved in the kind of criminal enterprise to which we all object most strongly and wish to see stamped out.
The proposal to offshore asylum claims is inconsistent with the global humanitarian and co-operative principles on which refugee protection is based. Frankly, if every country adopted the Government’s proposed approach, where would that leave the provisions and spirit of the refugee convention? I do not agree with the noble Lord, Lord Horam, that we should take the Government on trust and accept that we are not going to be told the details of how it would work.
I fully sympathise with what the noble Baroness, Lady Stroud, said in reiterating that a number of questions had been asked in Committee and we have not had a response. Quite honestly, if the Government are not prepared to tell us what they intend to do and why, and answer legitimate questions raised by Parliament, which surely has a right to know the answer, then I sincerely hope that Amendments 35 and 37 get carried if they are put to a vote. I have tabled amendments about leaving out Clause 28, but we would be prepared to support the amendments spoken to by the noble Baroness, since they take out the worst parts of Clause 28.
My Lords, I thank all noble Lords who have spoken in this debate. I thought it might be helpful, although we will be dealing with this in further groups, to start off about Ukraine and our support for our friends and colleagues there. I know that things are moving quite quickly, and noble Lords may not have caught up with the latest, so I thought it might be helpful to outline it.
We are establishing an expansive Ukrainian family scheme that will allow British nationals and settled people in the UK to bring a wide group of family members to the UK, extending eligibility to adult parents, grandparents, children over 18, siblings and their immediate family members. We are committing to establishing a humanitarian sponsorship pathway, which will create a new route to the UK for Ukrainians. These will be fee free; no fee will be required for any of the elements of the packages we are offering.
In terms of other support, we have extended visas for Ukrainian temporary workers in some sectors so that they can now stay until at least 31 December 2022, if they cannot return to Ukraine. We are providing £40 million-worth of humanitarian support to provide Ukrainians with access to basic necessities. This will be on top of the £100 million-worth of ODA funding that has already been pledged for energy, security and reform.
We have deployed a team of UK humanitarian and military logistics experts to the countries neighbouring Ukraine. We have called on Russia to enable humanitarian access and safe passage for civilians to flee the violence. We also have 1,000 troops on standby to support the humanitarian response in the region. We stand ready to further support Ukraine’s economy through £500 million- worth of multilateral development bank guarantees. I think that demonstrates that we are trying to do everything we can to help our Ukrainian friends and colleagues.
Before I turn to the amendments, I will update the noble Baroness, Lady Lister, on the letter. I will not assert that it was sent at 3 pm, but that is my understanding. Given my record on letters in this place, I know that the noble Baroness will come back to me if she has not received it—
I am so pleased that my noble friend has been able to confirm that to me. I was just trying to be helpful.
In terms of these amendments, I will remind noble Lords from the outset that changes within Clause 28 via the schedule do not enable overseas asylum processing. The final arrangements will depend on our negotiations with like-minded partners. The arrangements will of course be compatible with our domestic and international obligations—this goes to the point made by the noble Baroness, Lady Jones of Moulsecoomb. On the face of the Bill, we set out the requirements a state must meet for us to remove a person with a pending asylum claim there.
I turn now to the amendments. Changes within Clause 28 via Schedule 3, which the noble Lords, Lord Paddick and Lord Rosser, and my noble friend Lord Kirkhope propose, relate to two policies. The first is to improve our ability to remove individuals with no right to remain in the UK to safe third countries. The second supports our future objective of enabling asylum processing overseas by making it possible to remove someone overseas while their asylum claim is pending and without having to issue a certificate under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 in every case. I will now consider each policy in turn.
At the moment, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative, and in some cases unfounded, Article 3 human rights claims. The changes we propose will ensure we continue to adhere to our obligations under the ECHR, while preventing unnecessary delays to removal. The introduction of a rebuttable presumption that an individual’s rights under Article 3 will not be breached in certain specific safe countries, upon their removal there, is intended to prevent speculative, unfounded human rights claims from delaying removals—although individuals will be able to present evidence to overturn this presumption to prevent removal. It will also make changes to simplify the current legislative drafting in relation to asylum claim appeals, although the effect remains the same: an individual has no right of appeal against the decision that removal to the specified countries would not breach the UK’s obligations under the refugee convention. I cannot support Amendments 36 and 39 which, perhaps unintentionally, block these important improvements to our ability to swiftly remove individuals who have no basis to remain in the UK.
As I made clear in Committee, we are currently undertaking discussions with like-minded partners which seek to establish overseas asylum processing. This policy is novel and has garnered significant attention as a result. The fact that discussions are ongoing means that I cannot give any particulars on how the process would work or how the costings would pan out. Many of these matters are for the negotiating table. I will reiterate that this policy will only ever be operationalised in accordance with our international obligations. We are committed to ensuring that overseas asylum processing is both humane and safe, taking into account circumstances which may mean that overseas processing is not appropriate for particular individuals.
For far too long, we have allowed people smugglers to decide where and how people cross borders and claim asylum. These uncontrolled and unsafe routes have led to terrible tragedies off our shores—as we have all seen. The key aim of the Government is to destroy the business model of the people smugglers. One facet of achieving this is to reduce demand for smugglers’ services by making it easier to remove individuals who undertake dangerous journeys or otherwise abuse the asylum system. We believe that access to protection in the UK should be based on need and focus primarily on people who remain in regions of conflict.
My noble friend Lady Stroud and the noble Lord, Lord Rosser, talked about Australia to this end, and I will illustrate the point. The Australian high commissioner gave evidence on 23 September 2021 in which he clearly explained that, within 9 months of Operation Sovereign Borders, flow had
“ceased completely. Since then, there has not been a single irregular maritime arrival on Australia’s shores, as far as we can tell.”
The high commissioner stated that the most important thing was to
“drive the people smugglers out of business by depriving them of a product to sell and destroying their cash flow.”—[Official Report, Commons, Nationality and Borders Bill Committee, 23/9/21; cols. 76-78.]
That is a very clear message, and it is precisely what the new plan for immigration is designed to do.
The agreements that we are pursuing will have these principles at their core. They will be based on a shared commitment to finding fair and sustainable solutions to address global migration challenges, and to protect the most vulnerable. We are working to establish an effective, functioning system which provides protection to those in need while simultaneously preventing abuse.
Noble Lords will want to know who will be removed overseas for asylum processing and who will be exempted from this. Some noble Lords have already referred to the fact that, in the other place, my right honourable friend Minister Pursglove made clear that unaccompanied asylum-seeking children would not have their claims processed overseas. This demonstrates our commitment to safeguarding and promoting the welfare of children, as expressed in Section 55 of the Borders, Citizenship and Immigration Act 2009. This is one example of how this policy will only be operationalised in accordance with our domestic and international obligations—and, of course, there are other examples.
After a fuller consideration of issues pertaining to vulnerability, we have determined that we should not be drawn further into listing particular exemptions to removal, partly because exemptions depend on the particular circumstances of the countries with which we are working. More importantly, however, being definitive about exemptions from the policy at this stage is likely to hamper its potential to be effective and would incentivise people smugglers to target the most vulnerable in the hopes of keeping their operations viable. It is essential that we do not curtail our efforts to undercut the business model of people smuggling and discourage other dangerous or unwanted behaviours by eroding the policy before it has even begun.
My noble friend Lady Stroud and, I think, another noble Lord asked about those who are granted refugee status being allowed to return to the UK. We will take all reasonable steps, in accordance with international human rights standards, to enable a transferee who is available for return to the UK to do so, should the UK be legally obliged to facilitate that person’s return.
I hope that I have answered the noble Lord’s question, and with that I ask the noble Lord to—
Before the Minister sits down, the letter that she kindly sent us today sets out at greater length what she has just said: she cannot tell us with which countries she is negotiating with, what exactly she is negotiating for or what exemptions would be provided. She admits that the policy is novel and that she is not surprised that the House is asking questions, but she tells us that she can answer none of these questions now. So with this provision she is asking us to sign a blank cheque.
She has answered none of the questions asked by the noble and learned Lord, Lord Etherton, of which the biggest, in my view, is how legal assistance on British immigration law is to be provided to these people, in these unknown countries, who are going through a process about which we have been told nothing. I really do not think that we can sign this blank cheque.
On a point of clarification, the Minister said that the Minister in the other place had given an undertaking that children would not be offshored under this scheme. Does that mean that if a family arrives on UK shores the parents of the child could be sent overseas—offshored—while the child remained in the UK, because of that undertaking?
I have been trying to read the letter on my phone, but it did not arrive until after 4 pm and the Minister’s office did not have the courtesy to reply to my email. If I had had the letter at 3 pm I would have been able to read it. So I may have missed this, but I am not clear—and I apologise if the Minister explained this right at the very end—what happens to an asylum seeker who has been offshored, a horrible term, and is deemed to have refugee status by whatever country they have been sent to. Will they be sent back to the UK, or not?
My Lords, it is clear that a number of very serious outstanding questions about this policy need to be answered before we can give the Government these powers. In response to the point made by the noble Lord, Lord Horam, I agree that it is right to explore every possible policy, and that some of them will turn out to be impractical—or even, as he stated, impossible. But that process is undertaken before you bring in legislation and take powers like this: you do not bring in the legislation and then work out whether it is impractical or impossible. So I believe it is right to test the will of the House on this policy.
Amendment 36 not moved.
Schedule 3: Removal of asylum seeker to safe country
Amendments 37 to 39 not moved.
Clause 31: Article 1(A)(2): well-founded fear
40: Clause 31, page 34, line 45, leave out “first”
My Lords, I shall speak to Amendments 40 to 45 in place of my friend, the right reverend Prelate the Bishop of Gloucester, who greatly regrets that she cannot be in her place. She is very grateful to the noble Baronesses, Lady Lister and Lady Chakrabarti, for their support, and to Women for Refugee Women for its briefings.
Amendments 40 to 44 relate to Clause 31. They are being brought back at this stage because the Government’s response stopped short of providing the reassurances we hoped for. Some 27 organisations with significant expertise in supporting people seeking asylum support these amendments to Clause 31.
In Committee, the Minister stressed that Clause 31 was necessary to provide clarity and consistency of decision-making, the argument being that proving a status of persecution on the basis of reasonable likelihood is too vague and inconsistently applied. Clause 31 seeks to resolve this apparent lack of clarity by instead inserting the balance of probabilities test and a new fear test. This will raise the standard of proof for gaining refugee status, which will have a disproportionate impact on certain vulnerable groups. For women fleeing gender-based violence and those seeking asylum on the grounds of sexuality, providing this increased proof will be difficult and is likely to be highly traumatising, particularly given what we already know of the Home Office’s culture of disbelief and approach to such victims. For this reason, the UNHCR and, indeed, UK courts have consistently applied the reasonable likelihood test. Clause 31 will put us consciously and deliberately out of step with the way the UNHCR believes that the convention should be interpreted and how our own courts, notably the Supreme Court, have interpreted it.
What is most odd, and the reason for pressing this again, is that the Government believe this change will provide clarity. It is not clear why this should be true. There is already a problem with disbelief in the Home Office, which can be readily shown by the fact that 48% of appeals against the Home Office’s decisions to the First-tier Tribunal are successful, and 32% of judicial reviews are settled or decided in favour of claimants. Clause 31 does not seem to provide any additional clarity. Adding two different limbs to the test with different standards of proof seems a recipe for creating more confusion, making it harder for legitimate victims and so inevitably prompting more appeals. Amendments 40 to 44 therefore look to keep the status quo standard of proof and keep us aligned with the UNHCR and existing UK case law.
I turn briefly to Amendment 45, which relates to Clause 32. This was discussed at length in Committee and I will not go over the old ground, but in short, the interpretation of the convention applied in Clause 32 seems punitive towards women and other victims who use the particular social group reason without any clear or positive purpose. As the noble Baroness, Lady Lister, argued in Committee, if Clause 32 is necessary to clarify the “particular social group” definition, there is no reason it could not be provided by clarifying once and for all that the two conditions are alternatives, not cumulative, as has been the understanding in UK law since Fornah and was recognised by the Upper Tribunal as recently as 2020. This would provide clarity without disadvantaging women and other vulnerable groups.
More than 40 organisations in the ending violence against women and girls and anti-trafficking sectors have supported this amendment to Clause 32. This week, three UN special rapporteurs released a statement on the impact of the Bill, in particular Clause 32, on women. I urge the Minister to listen to their plea. As of 2019, only 26% of asylum applications have come from women. Why would we want to make it harder for legitimate victims of gender-based violence and other gender-related forms of persecution to seek help? Might the Minister say why gender is not mentioned in Clause 32 in the way that sexual orientation is, since it is mentioned in the EU directive on which the Government seek to rely?
Clause 32 not only reverses UK case law but does so against the UNHCR’s standards, following an interpretation of EU law that was rejected by our own Upper Tribunal in 2020. The Home Office did not appeal that decision; nor was that change included in the New Plan for Immigration. It seems to have come from nowhere with little scrutiny or expert oversight. As with Amendments 40 to 44, Amendment 45 is not radical. It simply asks that the Bill continue to operate with the status quo interpretation of the 1951 convention, which is well understood and used by UK courts. The alternative is an unnecessarily punitive barrier being put in front of vulnerable groups. I beg to move.
My Lords, I am rationing my interventions on Report to facilitate the early and many necessary Divisions. I know that other critics of this Bill are doing the same; I am grateful for that.
Given the events in the last century that led to the creation of the refugee convention, it is particularly distasteful that so much of the Bill seeks to rewrite the convention and its jurisprudence against the interests of the refugee. The Government protest otherwise, of course, but all the world’s leading scholars, practitioners and custodians disagree. I am glad to say that your Lordships’ House gave its own view on that general proposition very clearly earlier this week.
Clause 31 is a case in point. I support the right reverend Prelate’s amendments to it, not least because, among other things, they seek to delete the cross-referencing to Clause 34, which absolutely denies refuge to those who do not currently face a well-founded fear of persecution in part of their country. If one looks at the end of Clause 34, there is no discretion there at all. Although we are grateful for the Minister’s earlier comments about Ukraine, convention protection is based on international law, not exceptional executive largesse. If these clauses are not amended, a Ukrainian refugee might well be denied refuge on the basis that they could return to, for example, a part of their country that is not currently occupied or being bombarded by Russia. There is no discretion in Clause 34 at all, despite Ministers waxing lyrical about discretion and case-by-case analysis being so important. This is discretion that works against the refugee, with convolutions and contortions, when it would be for the courts to protect the refugee.
Another trick that has been used in Ministers’ speeches at various times during the passage of this Bill is talking about Parliament having the right to rewrite and interpret the convention—“Parliament this, Parliament that”. However, they use “Parliament” as a euphemism for “the Home Office”, and it is not. I believe I know what your Lordships’ House of Parliament thinks about that.
My Lords, although I support all these amendments, I will speak only to Amendment 45, to which I have added my name. Once again, I thank Women for Refugee Women for its support with the amendment.
The right reverend Prelate has made the case for returning to Clause 32. I just want to pick up some points made by the Minister in Committee. He argued that it is difficult to attack the definition in Clause 32 as wrong, yet, in effect, that is what the Upper Tribunal did in the 2020 judgment referred to by the right reverend Prelate, when it confirmed that this approach to membership of a particular social group is contrary to the humanitarian objective of the refugee convention. Moreover, in Committee, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, dismissed this approach as a grave mistake that would cause grave injustice. Was he wrong?
Having listened to his less than convincing justification of the definition in Clause 32, I ask the Minister this: does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be accepted, as the UNHCR and myriad civil society groups have warned? His answer in Committee—given loyally, if I may say so—was this:
“What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK.”—[Official Report, 8/2/22; col. 1452.]
I will repeat the question and ask the Minister to give us a clear “yes” or “no” answer, given that clarity is supposed to be what this clause is all about. Does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be accepted—yes or no?
Finally, in response to criticisms made of the equality impact assessment, the Minister promised monitoring of the clause, which is welcome. Could he please give us more information about how it will be monitored? What data will be collected, will the data be published and, if so, how frequently and starting when? Will it include statistics on the number who successfully rely on membership of a particular social group to claim refugee status, and the number of those who fail to secure such status because of their inability to fulfil the criteria? What categories will be used? For example, will survivors of gender-based abuse be included? What will the Government do if the monitoring shows that the clause is having the damaging effect that is feared? I realise that those are again questions for the Home Office, so I should be grateful if the Minister would pass them on and ask the Home Office to write to me.
In conclusion, there is a certain irony that we are debating these clauses the day after the Home Secretary launched a campaign to say “Enough” to violence against women and girls. On Monday, in her summing up on Clause 11, the Minister concluded with the words that the clause was
“fair in its acknowledgement that we absolutely must be sensitive to the vulnerabilities of certain asylum seekers.”—[Official Report, 28/2/22; col. 627.]
I fear that Clauses 31 and 32 make a mockery of such claims.
My Lords, I shall be brief and summarise the position I took in Committee. I support all the amendments in this group, particularly those relating to Clauses 31 and 32. I do so because the amendments will protect the most vulnerable, including women and girls who have been subjected to gender-based violence and abuse and the long-term harm those cause. They will also protect other vulnerable groups with protected characteristics, and recognise the immense and deep trauma such individuals have suffered but often deny because of a deep sense of shame. The amendments also restore the principle of a civilised and humane approach to asylum and ensure that we conform with the UN refugee convention and our international legal obligations. Finally, I have been deeply moved by the letters and some postcards I have received, particularly from women and other vulnerable groups, who express that they have much to fear from the clauses and the effects that they will have on their lives.
I have two amendments in this group, but they are quite distinct from what has been debated so far and distinct from each other. One is concerned with Clause 32(5) and the other concerns Clause 36(1). Because the amendment to Clause 32(5) is a manuscript amendment tabled only today, if I may, I shall start with that to Clause 36(1), because your Lordships will be familiar with the background to that.
Clause 36(1) seeks to define, for the purposes of the convention, the meaning of coming “directly” to the United Kingdom from a country of persecution. The same definition was relevant to Clause 11, because that cross-refers to the provisions of Clause 36, so we have in Clause 36 as a matter of proposed domestic legislation and as a matter of interpretation of Article 31 of the convention the same definition of arriving “directly”. Your Lordships will recall that the issue was whether, as the Government contend, if an asylum seeker passes through an intermediate state on the way to the United Kingdom from the place of persecution—through a place considered to be somewhere they ought reasonably to have applied for refugee status—they have not come “directly”. In fact, the only way they could come directly, if they are surrounded by other countries—Ukraine is a good example—would be to fly.
The House rejected that definition, because it accepted the amendment to remove Clause 11. It expressly rejected that definition of arriving “directly”. Amendment 46 simply takes out the corresponding provision in Clause 36(1), which was incorporated in Clause 11 but would otherwise simply remain at large but, so far as I can see, would have no relevance whatever to anything else in the Bill. If I am wrong on that and there is some purpose in retaining Clause 36(1), although that interpretation of arriving “directly” was rejected by the House when it approved the removal of Clause 11, the House would want to know what it is being retained for: why it is being retained and in relation to what other provisions in the Bill. My amendment would remove Clause 36(1) from the Bill.
This is another of those occasions when saying “From these Benches, we support” and not much more must not be taken as any lack of support for all the amendments in this group, nor any dilution of the points made.
I just want to register concern about Clause 32(2). The noble Baroness, Lady Lister, spoke to this and I record our support, particularly for the amendment that deals with what is meant by “a particular social group”: that you do not qualify unless the group in question is perceived as being different by surrounding society. As has been pointed out to noble Lords in briefings, a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic but that trafficked women as a group are perceived as having a distinct identity in the country of origin. That is very difficult to show. Judged by the perceptions of the society in her country? It would be very challenging to find objective evidence on that, and on that being a distinct group. It is very dangerous to suggest that one can tell those things by looking—or, rather more accurately, perceiving.
My Lords, I spoke at some length on the legal aspects of this group of clauses in Committee and, having had the advantage of being able to indicate an overall view of them in the newspapers earlier in the week, I really do not want to try the patience of the House, and I certainly do not want to weaken rather than strengthen the number of compelling arguments that have already been heard on them in the past few minutes.
However, they are such objectionable clauses that I cannot simply remain silent. I do not criticise the Minister for this, I am a great admirer of his, but on Monday, at 5.49 pm, in the middle of the debate, we finally got a seven-page letter that sought to argue—if only I were still a judge and could deal with the arguments conclusively by rejecting them—the Government’s case for redefining the requirements of the convention.
When we come to Clause 31, the Minister, very fairly, recognises that it would overturn 25 years—a quarter of a century—of settled jurisprudence of the clearest authorities in this country. That is how we have been dealing with it for 25 years. He does not say that it was a wrong approach to the convention; all he argues—as I say, I do not accept it—is that what they are doing provides another possible interpretation of the convention. Is this really the moment at which to reject our established jurisprudence and substitute for it what may or may not—I would say not—be an arguable alternative view of the whole of this.
Clause 31 rejects what has been accepted as the holistic approach: you look at fundamental question arising under Article 1(A) of the convention in the round, you take all circumstances into consideration and you apply the standard of proof of reasonable likelihood—because heaven knows that is the standard which you should be using. You do not carve it up and create endless difficulties, and then say, “Well, actually, part of it has got to be on the balance of probabilities”.
I have quoted this before, and I will end with this: Hugo Storey, a recently retired judge of the Upper Tribunal who has spent his life dealing with these sorts of cases and is the immediate past president of the International Association of Refugee and Migration Judges, said that this clause would produce prodigious litigation and endless problems, and that it is not compliant with the way that the UNHCR wants Clause 31 to be applied. I will not go into the arguments on Clauses 32, 34 and 36—they are all objectionable, for the reasons already given. We really must vote down as many of these as we can.
My Lords, I will be very brief. I wish to say that we agree with the amendments in this group, which seek to address the issue that the Bill is seeking to change existing, long-standing definitions and, frankly, make things worse and harder for many of those who would be involved in, for example, seeking asylum. We support the intention of these amendments, and I will leave it at that.
My Lords, I am grateful to noble Lords who propose these amendments: the right reverend Prelate the Bishop of Gloucester, speaking through the right reverend Prelate the Bishop of Durham, and the noble Baroness, Lady Chakrabarti. I agree of course with the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the refugee convention. However, we do not agree with these amendments which, when taken together, will effectively maintain the current standard of proof for all elements of the well-founded fear test.
There are other undesirable implications of the amendments which I will set out briefly. The House has heard short speeches supporting a number of these amendments. I have obviously got to reply to all of them, so I hope that the House will indulge me. I will try to address them in a comprehensible order, because some of the points are related and some are discrete.
I come first to the point made by the right reverend Prelate the Bishop of Durham, who asked how Clause 31 would produce clarity. Clause 31 is drafted to introduce a step-by-step process for decision-makers, considering whether an asylum seeker has a well-founded fear of persecution. The central point I would make is that currently there is no such clearly structured test.
Amendment 40 would remove the approach set out in Clause 31. What does Clause 31 do? It imposes a requirement for the decision-maker to first consider—this is in subsection (2)—what you might call the subjective element of the well-founded fear test, where a decision-maker will consider whether the asylum seeker in fact has a characteristic often referred to as a “convention reason” as specified in the refugee convention, and whether the asylum seeker in fact has a fear of persecution as a result of that convention reason.
There is then a second stage of the approach under Clause 31(4), where the decision-maker would consider whether there is a reasonable likelihood—not a fact, as in the first part of the approach—that the asylum seeker would be persecuted if returned. The amendment, however, in combination with other amendments, instead maintains the status quo in expecting decision-makers to take a decision in the round, based on all the evidence available, and therefore wraps up what are conceptually quite different parts of the test into one overall question. Having separated out and identified those two elements of the test, Clause 31 raises the standard of proof for the first element of the test to the balance of probabilities. That is because, at that stage of the test, at its core, we are asking claimants to establish on a balance of probabilities that they in fact are who they say are and that they in fact fear what they say they fear.
Reports from non-government organisations, and speeches from noble Lords in Committee and again today, have warned of the effect that this clause may have on those with certain protected characteristics: those, for example, with LGBT+ claims, or women fleeing gender-based violence. I can say that we have obviously considered this very carefully. There are several ways in which we would ensure that such individuals were not disadvantaged by the change. We have already put in place specific asylum policy instructions on considering sexual orientation and gender in asylum claims, and these guidance documents set out in some detail how decision-makers should fully investigate the key issues through a focused, professional and obviously sensitive approach to questioning. As part of putting this guidance into practice, we will update both the guidance and training provided to decision-makers, and we will ensure that interviews are sufficiently detailed to enable claimants to meet the higher standard required, regardless of the nature of the claim. Let me be clear: the proposed test will not prevent LGBT+ or female claimants, or any other cohort for that matter, who are genuine refugees from being recognised as a refugee in the UK.
As I said in Committee, there is international precedent that supports our decision to raise the threshold for assessing the first part of the test, the facts that a claimant presents, on a balance of probabilities. Both Canada and Switzerland have systems which examine to this higher standard at least some elements of a claimant’s claim. Although I heard the right reverend Prelate the Bishop of Durham say that this makes us out of step with the UNHCR and our own courts in their decisions to date, ultimately, as I explained in Committee, interpretation of the refugee convention is not a matter for the UNHCR or the courts, in the sense that the UK, as a signatory to the convention, is entitled under the Vienna Convention to interpret the words of the refugee convention bona fide. Of course, the UK does that through this Parliament—and I am not using the word “Parliament” as some sort of euphemism for “Home Office”. Indeed, I think the results of the votes in this Report stage would indicate that certainly this House is not an extension of the Home Office. I was stating that as a neutral point—noble Lords might think that is good, bad or indifferent.
I will not deal directly with Amendment 42, because I think it is fair to say that it is a consequential amendment on Amendment 41, so my argument on Amendment 41 therefore applies there as well.
Amendment 43 would remove the requirement for decision-makers to consider whether the asylum seeker in fact has a fear of persecution as a result of a convention reason. That link is a vital part of the assessment, which would be removed altogether as a result of these amendments. Refugee status in the UK must not be granted to those who do not have a genuine fear of persecution for a convention reason. I suggest that that ought to be incapable of dispute.
Turning to the second part of the test in Clause 31(4), the standard of proof for the second element of the test—this is whether the claimant would be persecuted if returned to their country of origin or country of former habitual residence—remains at the standard of reasonable degree of likelihood. That is because this element of the test—the future fear of the claimant—is obviously harder for the claimant to demonstrate, and therefore a lower standard of proof is appropriate. It seems that there is no disagreement across the House on that point.
However, while Amendment 43, for the most part, mirrors the closing stages of Clause 31, which would otherwise be removed by Amendment 44, it has one major omission, and I was not sure whether this was accidental or deliberate. From certain of the speeches, it appears to be deliberate, and that is this: the removal of reference to consideration of whether an asylum seeker can internally relocate in their country of origin to a place where they would not have a well-founded fear of persecution. Our interpretation of internal relocation is outlined in Clause 34, and the result of these amendments would, therefore, be a lack of clarity for decision-makers as to whether this factor remains a core part of the well-founded-fear assessment. I suggest that it has to be, considering that internal relocation is a common aspect of the asylum decision-making procedure among our European Union counterparts and other international partners. Therefore, it remains entirely unclear to me why this consideration should be removed if, as I say, it is a deliberate removal.
As I noted in Committee, I set out in the letter, which I heard the noble and learned Lord, Lord Brown, was going to subject to judicial analysis, the concerns of noble Lords regarding the compatibility of this clause with our international obligations, in particular obligations under the refugee convention. I have sought to set out the position, and I apologise twice: first, for the length of the letter—I am afraid that it takes a little time to set out the position—and secondly, for the fact that the letter was sent out later than dated. It was provided to the Whips Office at the end of last week, but it was only circulated, as the noble and learned Lord said, on Monday. I am the person on my feet; I am the person responding to this debate, so it is only right that I make the apology to the House for the lateness of that letter. I am sorry that it was sent out later than it should have been and later than I intended.
I am not going to repeat the contents of the letter, but I will set out the conclusion. Consideration of historic case law, views of authoritative academics, the approach of a number of other jurisdictions and Article 31 of the Vienna convention show that the current policy is not the only possible good-faith interpretation of the convention. We have set out our interpretation in that letter.
Turning to Amendment 45, Article 1(A)(2) of the refugee convention states that a refugee is an individual who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Clause 32 sets out what precisely is meant by each of those characteristics—the “convention reasons”. Focusing on “a particular social group”, the clause sets out that the definition of that term means that a claimant must meet both conditions of the test, in Clauses 31(3) and 31(4), in order to be considered a member of a particular social group.
I remind the House that far from being clear what the position is in law, there has been a degree of confusion in this area for many years. One can cherry-pick Upper Tribunal decisions from here, there or anywhere, but I am afraid the fact is that there is a clear mismatch between how the concept of “particular social group” has been defined in current legislation and government policy in different tribunal judgments and how it has been interpreted in some courts. Therefore, we have set out a clear definition in primary legislation, because at the moment there is no universally agreed definition.
I am afraid that I have been caught rather short on procedure, so I hope the House will indulge me. I did not address Clause 32(5), which is the focus of my manuscript Amendment 45A, but the Minister is now dealing with Clause 32. It would not be appropriate in the circumstances to make a speech on this, but I ask the Minister to respond to two questions.
First, in general terms, what are these acts that are referred to in Clause 32(5) that are criminal and, in some way or other, said to bear upon a quite different issue: sexual orientation, which is an identity? At the moment, it seems as though Clause 32(5) is mixing apples and pears—one on identity, to live a life freely and openly and without fear of persecution, which is what orientation is, and then we have some exclusion or cutting down on acts. I assume that we are not going back 100 years and saying that all those people who are LGBTQI have some inclination to paedophilia: I hope that we are not saying that.
I am sorry to interrupt the noble and learned Lord, but I think my noble friend is able to answer the questions that he is posing. Moreover, this is Report, so although noble Lords can rise for small points of clarification, it should be no more than that.
I was coming to each of those points in my speech. I am not going to do so just yet, because I was, it is fair to say, on a different point, but I will come to those points in due course when I deal with the manuscript amendment.
Before the noble and learned Lord’s intervention, I was setting out the definition of “particular social group.” I was making the point that there is no universally agreed definition and no authoritative definition of that phrase. There is, as I have said, conflicting tribunal-level case law. For example, the right reverend Prelate the Bishop of Durham referred to the Fornah decision of this House in its former judicial capacity. The point there is that it is obiter. That is really important, because that bit is obiter: it is not part of the ratio of the decision. That really underlines my point that we cannot, with great respect, cherry-pick passages of decisions which are obiter, particularly decisions of the Upper Tribunal. Ultimately, it is for the UK, as a member state and signatory, and, for this Parliament—not the Home Office—to interpret the refugee convention. That is what we have sought to do here.
There are two clear conditions, and let me underline the following point: this is not a change in government policy. These conditions do not change the position—they reflect current government policy. The first condition is that members of the group share either an innate characteristic, a common background test that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.
The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. The amendment would mean that a group need meet only one of the characteristics to be considered a particular social group. Obviously, that would significantly widen the scope of people who could qualify as a refugee but, relevantly for this debate, it would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It would broaden the definition to cover potentially transient factors such as an individual’s occupation, and that, we say, is incompatible with very purpose of the refugee convention.
On this point, as I set out in Committee, our proposed definition accords with the widely used and accepted interpretation of “particular social group”. It follows the formulation applied across much of Europe, which is normally something that would commend it to those on the Benches in that corner of the House. Perhaps in this case they take issue with the EU qualification directive which underpins the Common European Asylum System.
There was concern in Committee about the impact this clause would have on vulnerable groups—for example, faith groups.
I want to respond to the concern expressed in Committee about the impact the clause would have on vulnerable groups—particularly, for example, female claimants fleeing gender-based violence—and to respond to the right reverend Prelate the Bishop of Durham. Victims of gender-based violence may still be considered to be members of a particular social group for the purposes of making an asylum claim if they meet the conditions in Clause 32(3) and (4). In response to the noble Baroness, Lady Lister, this clause does not therefore mean that women who are victims of gender-based violence are less likely to be accepted as a member of a particular social group: all cases are assessed on a case-by-case basis.
I cannot say, of course, that all women fleeing gender-based violence will always be found to be refugees, if that was the nature of the point that was being put to me. What I can say with certainty is that the structure of the definition does not preclude it. I think I heard, in the way the noble Baroness put the question, that the example was of a woman with “good grounds”. If she is asking, “Will this application be accepted?” good grounds is not the test and therefore, if good grounds is part of the question, I am afraid that that is why I necessarily gave the answer I did. I think if the noble Baroness looks at Hansard, she will see that I have now, again, answered the question directly.
I turn to Amendment 45A from the noble and learned Lord, Lord Etherton. It is vital that we provide protection to those in the UK who require it as a result of persecution they would face due to sexual orientation, but I suggest that it goes without saying that protection must not be afforded on the basis of one’s sexual orientation where the acts in question are criminal in the United Kingdom. I shall deal with both his points.
First, I note the explanatory statement on the amendment. For those who have not seen it, I shall summarise it. The obviously well-meaning intention of this amendment is to prevent applicants under the age of consent in the UK being excluded from refugee protection—I hope I have understood that correctly. I reassure the noble and learned Lord and the House that line 9 of Clause 32 does no such thing. That is because, although an asylum applicant may be under the age of consent in the UK, they can still be persecuted as a result of their sexual orientation. For example, a 15 year-old homosexual applicant may still be recognised as a member of a particular social group should they meet the requirements of Clause 32, even though they are not legally able to consent to sexual activity in the UK. I distinguish in this regard—I hope this is helpful to the noble and learned Lord—between sexual orientation and sexual activity. In that context, I come to the other point.
Let me say what should not need to be said—of course this is not the noble and learned Lord’s intention—but we are concerned that, as drafted, the amendment could allow convicted paedophiles and other convicted sex offenders to be granted refugee status in the UK, solely on account of their criminal acts relating to their sexual orientation. Of course, that is not the intention of the amendment: we are concerned that it is an unintended consequence of it. I hope that what I have said already deals with the intention behind the amendment and reassures the noble and learned Lord.
Lastly, I come to Amendment 46. Clause 36 provides the interpretive framework for Clause 11, which sets out Parliament’s position on Article 31(1) of the refugee convention. Clause 36 is still relevant in terms of providing the UK’s interpretation of key terms in Article 31 of the convention, such as immunity from penalties, so it is not just there to serve Clause 11, which was the first point made by the noble and learned Lord. The convention does not define what is meant by coming “directly” or “without delay”. Again, we have taken the opportunity to define those terms. We have taken into account that group 2 refugees will still be protected and not refouled, and will receive relevant entitlements so that the object and purpose of the convention are upheld.
Clause 36 is clear that there is discretion not to grant differentiated entitlements where a person could not reasonably be expected to have claimed in another safe country or where a person made a claim as soon as reasonably practicable. I made points earlier as to discretion and individual assessment. So this does not necessarily rule out the position taken by the House of Lords in R v Asfaw; it will all turn on the particular facts of the case.
Finally, I will prevail on the Home Office, I hope, to write to the noble Baroness, Lady Lister, on the point she raised. For these reasons, and with apologies that it has taken a little longer than I anticipated, I respectfully invite the right reverend Prelate to withdraw his amendment.
My Lords, I thank the Minister for his very full and considered response and all noble Lords for their contributions. The strength of feeling is strong and again I make the point that these clauses are overly punitive towards women and victims of gender-based violence. I fear that that concern was not answered in the very full answer we were given. In particular, I still do not think that the responses given take any awareness of the trauma of so many of the women who come forward. I fear that to talk about “sufficiently detailed interviews”, as the Minister did at one point, would raise hackles on that front.
I have no doubt that my right reverend friend the Bishop of Gloucester will read Hansard very carefully and may well write off the back of that. I thank the Minister for making the promise to the noble Baroness, Lady Lister—I was about to ask him to, but he got in there before us. It is rather regrettable that we have not been able to persuade the Government on these points, and the Bill will not now adequately protect those who are subject to gender-based violence. That is the deep concern. That said, with deep regret, I will withdraw the amendment.
Amendment 40 withdrawn.
Amendments 41 to 44 not moved.
Clause 32: Article 1(A)(2): reasons for persecution
Amendments 45 and 45A not moved.
Clause 36: Article 31(1): immunity from penalties
Amendment 46 not moved.
47: After Clause 37, insert the following new Clause—
“Refugee family reunion
(1) The Secretary of State must, within 6 months of the date of the passing of this Act, lay before Parliament a statement of changes in the rules (the “immigration rules”) under section 3(2) of the Immigration Act 1971 (general provisions for regulation and control) to make provision for refugee family reunion, in accordance with this section, to come into effect after 21 days. (2) Before a statement of changes is laid under subsection (1), the Secretary of State must consult with persons he or she deems appropriate.(3) The statement laid under subsection (1) must set out rules providing for leave to enter and remain in the United Kingdom for family members of a person granted refugee status or humanitarian protection.(4) In this section, “refugee status” and “humanitarian protection” have the same meaning as in the immigration rules.(5) In this section, “family members” include—(a) a person’s parent, including adoptive parent;(b) a person’s spouse, civil partner or unmarried partner;(c) a person’s child, including adopted child, who is either—(i) under the age of 18, or(ii) under the age of 25 but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum;(d) a person’s sibling, including adoptive sibling, who is either—(i) under the age of 18, or(ii) under the age of 25, but was either under the age of 18 or unmarried at the time the person granted asylum left their country of residence to seek asylum; and(e) such other persons as the Secretary of State may determine, having regard to—(i) the importance of maintaining family unity,(ii) the best interests of a child,(iii) the physical, emotional, psychological or financial dependency between a person granted refugee status or humanitarian protection and another person,(iv) any risk to the physical, emotional or psychological wellbeing of a person who was granted refugee status or humanitarian protection, including from the circumstances in which the person is living in the United Kingdom, or(v) such other matters as the Secretary of State considers appropriate.(6) For the purpose of subsection (5)—(a) “adopted” and “adoptive” refer to a relationship resulting from adoption, including de facto adoption, as set out in the immigration rules;(b) “best interests” of a child must be read in accordance with Article 3 of the 1989 UN Convention on the Rights of the Child.”Member’s explanatory statement
This new Clause would make provision for leave to enter or remain in the UK to be granted to the family members of refugees and of people granted humanitarian protection.
My Lords, the Ukrainian family scheme drives a welcome coach and horses through the usual Home Office approach to refugee family reunion, which is to oppose anything but a very narrow definition of “family”. The Home Office, in my opinion, seeks to restrict this safe route very considerably. As I understand it, the new scheme would allow children as well as adults to sponsor parents, grandparents, siblings and their immediate families, as well as allowing adults to sponsor their children over 18. It does not go as far as Amendment 48 from the noble Lord, Lord Dubs, in including, for instance, reunion with an aunt or uncle, and I look forward to him speaking to that amendment.
The Ukrainian family scheme is not the normal, routine Home Office approach. That approach was expressed at Second Reading of my Private Member’s Bill on refugee family reunion, and in Committee in response to my amendment, which was essentially the text of that Private Member’s Bill, as is Amendment 47 today.
In Committee on this Bill, the Minister said that the Home Office recognised
“that in some cases there will be exceptional and compassionate circumstances which warrant a grant of leave”
for the purposes of family reunion and that the guidance on exceptional circumstances would be “published in due course”. Can the Minister tell us what progress has been made in publishing that guidance? Yet again, as so often, the basis of the policy is just the exercise of discretion. It does not give certainty.
The Ukrainian family scheme is of course welcome, but in its recognition that, having fled to safety, refugees need their families, it should be a precedent, not an exception. As to allowing children to bring in family members, the Minister said at Committee stage of this Bill that
“noble Lords will at least grant that I have been consistent in opposing that sort of policy, because of its negative consequences”,
which, she claimed would creative incentives for children to be encouraged and forced
“to leave their family and risk extremely dangerous journeys to the UK in order to sponsor relatives.”—[Official Report, 8/2/22; col. 1474.]
In fact, it is the lack of safe routes such as family reunion that force dangerous journeys. Families Together, the coalition of 90 NGOs, talks about how the existing rules mean
“that those family members who have become separated but are not covered by the rules are left with the invidious choice of staying put in insecure and dangerous places or embarking on treacherous, expensive, unregulated journeys.”
I agree with another NGO, the excellent Safe Passage, that:
“Safe routes save lives, reunite families and support refugees to rebuild their lives … welcomed by our communities.”
I hope that the Government will take the precedent of the Ukrainian family scheme and widen it out to their family reunion policies. I beg to move.
My Lords, I wish to speak to Amendment 48 in particular. I say at the outset that I am grateful to the Minister for the trouble she has taken to give me a chance to talk to her and her officials about the clause and the Government’s view of it. Although I do not think that either of us was persuaded by the other as a result of our conversation, nevertheless I am grateful for the trouble she went to.
I want to just say a word or two about the background. Until we left the EU we had the benefit of the Dublin treaty, particularly Dublin III. To summarise, the benefit of that was that a refugee child or a child claiming refugee status could seek to join a relative living in this country. For example, a Syrian boy in France could apply to join an uncle in Birmingham or Manchester. That worked fairly well. The figures show that it was quite successful and it was an important part of reuniting families.
When we were concerned that Brexit would put an end to all this because the Dublin treaty would no longer apply, this House passed an amendment to the 2017 legislation so that the Government would negotiate to continue the family reunion provision after we left the EU. That was passed by this House on a vote, it was eventually accepted by the Government in the Commons and it became the law of the land. Then came the 2019 legislation and the Government took the provision out again, for reasons we never understood. Many of us were alarmed that something that had been passed could just be reversed, as it were, by other legislation.
Partly to conciliate me, I think, the Minister arranged a meeting. I was quite surprised that there were three Government Ministers and seven officials at the meeting, and me: it was sort of 10 to one. The effort was made to persuade me that everything would be all right under the then Immigration Rules. The then Immigration Minister was Brandon Lewis. He looked me in the eye and said, “Don’t you trust me?” I found this quite difficult. I said, first, “There is no guarantee you will stay in your job for very long.” Indeed, within weeks he was promoted to Secretary of State for Northern Ireland. Secondly, I said, “I may trust you personally but I don’t trust the Government.” I am afraid that is still my position on this legislation.
What we have is a less than satisfactory provision for family reunion under the Immigration Rules as they now stand. All the evidence is that it is not working. For example, according to Safe Passage, with which I work very closely, it is clear that since the Dublin III arrangements ceased very few children have managed to join their families here. Although the amendment goes a bit wider than children, essentially the main thrust of it is to enable children to join relatives.
Under the Dublin treaty provisions, 90% of these applications were accepted and in 2020 Safe Passage had 134 successful cases. Since the end of Dublin III and the provision being taken out of the 2019 legislation, Safe Passage has had 24 family reunion cases, and decisions from the Home Office on nine of those. Of those nine, seven were refusals: three from Greece, three from France and one from Belgium. Two cases were accepted, both from Greece.
We have seen a dramatic decline in the ability of young people on the continent to join their relatives here on the basis of refugee status. It has been a very difficult situation and, much as I wish to be brief, I want to give one or two examples. There have been no successful applications from France. I will briefly quote some of the reasons that have been given. The Home Office has argued that a child being alone in France or Greece is not a “serious and compelling circumstance” to warrant entry clearance to the UK. Safe Passage believes that a child being unaccompanied and separated from family should surely be a serious and compelling circumstance.
In the case of one unaccompanied child, the Home Office responded:
“You currently live in a shelter for unaccompanied Minors with psychological support. I note you have provided no evidence why this arrangement cannot continue or any serious and compelling considerations in your case.”
You have to stay there. There is no future; you cannot join your family.
I have one or two more to quote before I finish. In another instance, the Home Office said:
“From the evidence provided it is noted that you are currently receiving ongoing care”
in a shelter for unaccompanied children
“and no evidence has been provided to suggest this care arrangement can no longer continue … you have evidenced no serious or compelling circumstances to show that your life cannot continue how it is now.”
What are we saying? We are saying that a child should stay in some sort of institution and cannot join their family member in this country. For heaven’s sake, what is all this about?
In another instance, the Home Office said:
“Whilst we sympathise with people in difficult situations, we are not bound to consider asylum claims from the very large numbers of people overseas who might like to come here”—
“those who need international protection”—
now we hear it again—
“should claim asylum in the first safe country they reach—that is the fastest route to safety.”
I have met young people in Calais and in Greece who desperately want to join their family, often siblings, here. If they cannot do that, they do what any of us would do in that situation: they find another way of getting here to join their family. If the choice was between staying in some hostel, as the Home Office refers to; staying in the conditions in the camp in Moria, on Lesbos—it burnt down, but the situation there is still similar; sleeping under the trees and tarpaulins near Calais; or finding another way of getting to this country to join your siblings, we would do it. They will do it. It is no wonder.
When we still had the Dublin III arrangement, I went to Calais, and in the Jungle talked to people. They said, “When it gets dark we’ll try to hop on to the back of a lorry on the motorway nearby.” I said, “We are working very hard to find you a safe and legal way, so don’t do that dangerous thing.” But some of them did, because the safe and legal way did not arrive.
I have many more examples, but I shall not take up more time. But there is a clear case for family reunion, and if as a country we cannot support family reunion on the basis in which I have described it—on the basis described in this amendment—then we are a much less worthy country than I thought we were.
Lastly, in discussions on previous amendments there was much talk about public opinion. I believe that the British public are essentially humanitarian, and if they are given these arguments they will say, “Yes, we support that. We support family reunion, particularly for these children. Let’s go for it—we don’t agree with the Government.” Public opinion is on our side, so let us make sure that the Government listen to that public opinion.
My Lords, I support the noble Lord, Lord Dubs, in what he has just said. I was one of the signatories of the original Dubs amendment, as it became known. It is a pleasure to follow him this evening and endorse his remarks, as well as those of the noble Baroness, Lady Ludford. I also support and have signed Amendment 50, which is being proposed by the noble Baroness, Lady Kennedy of The Shaws. My Amendment 51 is an all-party amendment. I declare my interest as a patron of the Coalition for Genocide Response, and my involvement in various relevant all-party parliamentary groups.
Amendment 51 has its origins in northern Iraq, where on 3 August 2014 ISIS attacked Sinjar, killing thousands of Yazidis, abducting thousands of women and girls, and forcing the rest to flee. This attack on the Yazidis was followed by mass atrocities in the Nineveh Plains, from where people were forced to flee or to die. People who were different, including gay people, were thrown from high buildings, prisoners were burnt in metal cages, women were raped, and homes were looted. These atrocities then intensified in their number and scope.
In 2019, I travelled to northern Iraq and met Yazidi leaders and members of other minorities; I took statements and evidence. It was truly shocking to hear first-hand accounts of the terrors to which human beings had been subjected. To hold to account those responsible for atrocity crimes, the 1948 convention on the crime of genocide lays a duty on us to protect, prevent, punish and—since the Bosnian genocide—act from the moment it is believed that this ultimate crime of crimes is being perpetrated.
In 2016, believing a genocide to be under way, the four signatories of this amendment tonight did precisely that and acted. The noble Lord, Lord Forsyth, the noble Baroness, Lady Cox—who is currently in northern Nigeria, collecting evidence on atrocity crimes—the noble Baroness, Lady Kennedy of The Shaws, and I jointly tabled an amendment, calling on the Government to provide a safe and legal route for Yazidis and others dying at the hands of their tormentors. We failed to convince the Government to support it.
However, during that debate, and again in Committee on this Bill, we have again argued that our asylum procedures should create a specific category to help those judged to be at immediate risk of genocide. This amendment would leave the adjudication of whether a genocide was under way to a judge of the High Court of England and Wales, a route suggested to me by my noble and learned friend Lord Hope of Craighead. It was supported as a principle during proceedings on the Trade Bill in 2021 by three-figure majorities of your Lordships’ House and only narrowly defeated in the House of Commons, in what I think was the closest vote of the Parliament on a House of Lords amendment.
Genocide is defined in Article 2 of the 1948 convention on the crime of genocide. Winston Churchill said that the horrific nature of the genocide of the European Jews, the Holocaust, was a crime so unimaginably monstrous that it did not have a name; a Jewish Polish lawyer, who lost over 40 members of his family in the Holocaust, gave it one. Despite the term being named and defined, we nevertheless refused to empower a United Kingdom court to pronounce on it, while knowing that routes to the International Criminal Court are invariably blocked by vetoes.
But the House should note that, as recently as in November 2021, a court—a German one, in Frankfurt—did finally put a name to the crimes committed by ISIS against the Yazidis and others. It convicted a man who had bought a five-year-old Yazidi girl as a slave, and then chained her up in the hot sun where she burnt to death. The court convicted him of genocide. On International Women’s Day next Tuesday, we should recall that little girl and the estimated 5,000 young Yazidi women and girls abducted by ISIS, who suffered horrific and prolific sexual abuse.
Tonight, we have the chance to do something practical, which we have failed to do thus far. Despite all the evidence and a vote in the House of Commons declaring atrocities against the Yazidis to be a genocide, we have still not recognised this as a genocide and we have failed to create a safe or legal route to enable safe passage for those who are so grievously at risk. As I said at Committee:
“Reports suggest that among those resettled to the United Kingdom, there have been no Yazidis whatever and no Christians from northern Iraq—none. I would be most grateful if the Minister could tell us what the numbers are, or, if she does not have them, perhaps she could arrange for us to receive them between now and Report”.—[Official Report, 8/2/22; col. 1484.]
I hope we will be given those figures today.
In January, I asked for a bespoke humanitarian visa scheme for Uighurs and was told:
“While we sympathise with the many people facing difficult situations around the world, we have no plans to introduce a bespoke humanitarian visa scheme for Uyghurs.”
But sympathy alone is not enough. The Foreign Secretary herself has said that there is a genocide under way in Xinjiang; the House of Commons has voted to say there is genocide under way; and American Presidents, present and previous, have said there is a genocide under way. Does that not at least require a bespoke scheme to help some of those affected?
This amendment is modest: it will not be able to help the millions of people caught up in the pestilential nature of persecution, demonisation, scapegoating and hateful prejudice evident in the recent genocides in Iraq and Syria, the razed villages of Rohingyas in Burma/Myanmar, or the concentration camps of Xinjiang. It will not in itself stop the hauntingly cruel elimination of innocent humans being murdered because of their religious, ethnic or other identity. This amendment will also not be able to save every life—but it will save some.
In Committee it was suggested by my noble friend Lord Green that the amendment would potentially open the door to millions of people. The signatories of this amendment have listened to that argument, and we have addressed it. Proposed new subsection (4) in the amendment now gives the Secretary of State the power to use regulations to cap the number of people granted asylum under this scheme in any calendar year. That is not unlike what we are doing over Syrians, Afghans or children. If this amendment had been passed in 2016, it would have saved the lives of some of the Yazidis, Christians, gay people and others who were targeted by ISIS.
In 2016, the noble Lord, Lord Forsyth, said:
“I say to my noble friend the Minister: throw away the brief from the Home Office and go back to the department and tell it what has been said this evening. I am certain that, despite the media coverage and the information that is available, people in this country have no idea of the extent of the horrors that are being perpetrated”.—[Official Report, 3/2/16; col. 1894.]
I therefore hope that tonight the House will send this amendment to the House of Commons, so that an injustice can be put right and a safe and legal route opened for small numbers of people, to be determined by the Home Secretary, who are subject to what we declare to be the crime above all crimes, to which we are treaty-bound to do something about. We are also bound to them by laws of common humanity. I hope we can do rather more than simply express our sympathy and sentiment.
My Lords, again in the absence of my noble friend Lord Kirkhope, who still has Covid, I wish to speak to Amendment 49, tabled in his name, which introduces a global resettlement target of 10,000 people each year.
We have just heard from the Home Secretary that the Government have committed to expanding their family visa scheme and introducing a new community sponsorship scheme for Ukrainians, both of which are significant and welcome steps. I thank my noble friend the Minister for the further policy details that she gave us earlier. But it is difficult to know exactly what is being proposed and, more critically, exactly how many Ukrainians will be able to access these routes and the timeframe in which they will be able to do so.
Community sponsorship, while effective, is typically not a rapid response option and requires considerable planning, resource and buy-in from local community advocates and groups. I have long been an advocate for this kind of policy but it is a solution that requires people to be able to plan and build the infrastructure to support it, as exists in, say, Canada. However, as we are all too aware, the moment of crisis is now. This is the second time in a few short months that a major global refugee crisis has emerged, with Ukraine swift on the heels of Afghanistan. The reality is that on both occasions we have simply not had the infrastructure in place to care for people properly in terms of both civil society’s response and local authority capacity.
With that in mind, I turn to Amendment 49, which offers the Government an effective, carefully planned and responsive solution for refugees as regards not only the protracted crisis that we expect to develop in Ukraine but those seeking protection on these shores from other conflict zones. There are two important reasons for that amendment. The first is that we would be playing our part as a nation in responding to global crises and resettling 10,000 of the world’s most vulnerable each year. Secondly, it would mean that we could plan and build a basic level of infrastructure at a local community level to be resilient to crises like the one playing out before us right now.
One of the greatest challenges for Afghan arrivals has been the fact that we have not had the capacity to take in such a big influx so quickly. That is largely because we have not had the stable infrastructure in place for welcome and integration. The success of the Canadian approach to refugee resettlement lies in its consistency. There is strong integration infrastructure there, well-resourced civil society groups and genuine expertise in the local authorities. That is why the Government setting a baseline target for the number of refugees who will be resettled by safe and legal routes could help to build the infrastructure required. If the response to Afghanistan proves one thing, it is that we need to guarantee consistency to both the local authorities and civil society groups that do so much to ensure the smooth transitions for asylum seekers.
A predictable but flexible global resettlement model in which the Government retain control over how places are allocated enables the Home Office to react swiftly to international refugee crises and in a co-ordinated fashion with local authorities, to scale provision in line with demand. Without this amendment, we will continue to lurch from one major crisis to the next. The best way to avoid that outcome is to ensure that we can plan and prepare the infrastructure and manage the flow of refugees. Amendment 49 does not prescribe the exact manner in which the Government should meet their target but simply seeks to address the underlying and fundamental issue—that at the moment we are unprepared and are not playing our part fully in the emerging international crisis.
The success of the Syrian programme in no small part was due to the political commitment and leadership associated with the 20,000-person commitment, which produced voluntary buy-in from local government and, in turn, enabled the build of a well-functioning and properly resourced system. The baseline of 10,000 people is an appropriate number for the future.
I conclude by taking a step back. If we fail to enshrine safe and legal routes, I fear that the two-tier system that the Government are creating with this legislation will come back to haunt us. Does the Minister imagine that the British public will endorse this legislation when its consequences become clear and we criminalise or remove public fund provisions for Ukrainian and Afghan women and children, who will inevitably in their desperation seek other avenues to reach our shores? War clarifies public opinion. The British public are hugely supportive of those fleeing Vladimir Putin’s war. I urge the Minister to consider whether, in the heat of the most major war and potential refugee crisis in a generation, it is the right moment to introduce a two-tiered refugee system. Surely it would be better to pause this legislative process to allow for reflection and see where the land lies.
However, if the Minister cannot consider that, I commend Amendment 49 to the House as a pragmatic way in which to ensure that we have the community infrastructure needed to support people for the long haul. It will send a signal both at home and abroad that we are a compassionate and fair nation.
I support all the amendments in this group but particularly Amendment 48, which has my name on it, to which the noble Lord, Lord Dubs, spoke. It is a great pity that the Government wound up the Dubs scheme for unaccompanied children, which was doing a great deal of good, and that the Government did not want to stay in Dublin III or try to negotiate on that. We are not part of that agreement, and that removed two safe routes for unaccompanied children.
Under the Immigration Rules, as I understand them, it is not possible for a child to come to stay with a grandparent, sibling—a brother or a sister—uncle or aunt. It has to be a parent. Suppose the parents are lost or the situation is such as that unfolding in Ukraine now. Suppose the child has lost the parents en route. Why can he or she not come and stay with their grandparents in this country? The Immigration Rules seem to be too harsh. I therefore support the language of Amendment 48.
The more worrying point for me is the one made by the noble Lord, Lord Dubs, when he cited the Safe Passage numbers. It is alarming that the number of unaccompanied children coming in by a safe route has dropped steeply now that we are no longer in Dublin, the Dubs scheme has gone and these Immigration Rules are being applied. Where are these children going? Safe Passage tells us that in more than 50% of the cases that it is trying to follow, the children just give up, drop out and disappear off the books. Where do they disappear to? I fear that they disappear down to the beach and into the hands of the crooks.
Safe and legal routes really matter, so Amendment 48, which opens up the possibility again of having a safe and legal route for unaccompanied children, matters in my book. It was in this Chamber that the Dubs scheme was first approved by large majorities. For exactly the reasons that we approved it then, we should approve Amendment 48 now in a world that is, if anything, more dangerous, with more children in such a plight than then. I give my strong support to that amendment.
My Lords, in rising to speak to Amendment 48 tabled by the noble Lord, Lord Dubs, to which I have added my name, and Amendment 49 in the name of the noble Lord, Lord Kirkhope, presented by the noble Baroness, Lady Stroud, I declare my interests in relation to both RAMP and Reset, as set out in the register.
I support Amendment 48 as one of a range of safe routes needed to give people seeking asylum an alternative to using criminal gangs. People will do whatever it takes to reach family. I simply endorse the comments of the noble Lord, Lord Dubs, the case for family reunion made by the noble Baroness, Lady Ludford, and the remarks of the noble Lord, Lord Kerr. I urge the Minister to consider this proposal as a pragmatic response to the need to find durable solutions to desperate people dying on our borders in order to reach their family. This route will prevent some from ending in the traffickers’ hands.
I now turn to Amendment 49. I support it because we need a target for the global resettlement scheme, to ensure that it is operational to a level which provides a real alternative to people forced to use criminal gangs, and that it reaches countries such as Iran, Eritrea and Sudan, from which the majority of those arriving on small boats originate. We had the annual target of 5,000 for the Syrian resettlement scheme, and that is indeed the number who came, in a controlled, predictable and prepared way. We currently do not have a target for the global resettlement scheme, and just 1,587 came in 2021.
A target enables local authorities, charities, faith communities and the wider community, including businesses, to create and maintain the infrastructure needed to provide good welcome and ongoing support. This infrastructure also makes emergency response easier, as we have needed with Afghanistan and now Ukraine. It becomes less a crisis-to-crisis response and rather a strong infrastructure that can scale up when needed.
I note for the Minister that community sponsorship is deliberately not named in subsection (2) of the new clause proposed by this amendment, as there has been an earlier commitment made by Her Majesty’s Government that those coming through community sponsorship should be seen as additional to those in any set target. However, it is named in subsection (3). The Minister has previously spoken of her strong support for community sponsorship, so I hope that she will take this opportunity also to reaffirm Her Majesty’s Government’s commitment to the growth and development of community sponsorship widely, as well as the welcome announcement for it with Ukraine. Further details around that would also be welcomed, particularly by Reset.
It is welcome to see the Home Secretary committing to the humanitarian pathway for Ukrainians. We wait to learn the detail of this and the expected capacity. The point is that over five years, the number coming through on community sponsorship is 700, for the reasons that were named. It takes time. That capacity is growing and building strongly, but it will not answer the Ukrainian question quickly.
Returning to the need for a clear resettlement target, I conclude that without one, I fear that the global resettlement programme will be sidelined, and refugees will have no alternative but to use criminal gangs as what they perceive as their route to safety.
My Lords, since post Brexit, the EU’s Dublin III regulation no longer protects the rights of unaccompanied children. Therefore, along with many of your Lordships, I strongly support this measure, proposed by the noble Lord, Lord Dubs, who has very simply and eloquently indicated that it is a matter of honour that an equivalent to the Dublin regulations should now by us be put in place.
Any ambiguity would thereby be removed and instead we would make sure, as the Dublin regulations used to, that unaccompanied children and certain other people in Europe are able to come here for asylum if a close family member should already be in the United Kingdom.
My Lords, I support all the amendments in this group. I particularly want to mention the amendment tabled by my noble friend Lord Dubs, and spoken to powerfully by the noble Lord, Lord Kerr, about the importance of reunion of families.
As some noble Lords will know, I have recently been involved in the evacuation of women judges from Afghanistan. The first flight that I was involved in getting the women out on had 30 women on it. Unfortunately, I was woken at 5 am by a call from our point man at Mazar-i-Sharif airport, who said that the husband of one of the women judges had an out-of-date passport. It was not long out of date, but it was out of date, so he would not be allowed on the plane. I spoke to the woman judge, who I had got to know through her desperate communications with me. She was weeping, and I could hear her children weeping. I told her to get on the plane with her children and that I would do everything I in my power to get her husband to join her.
She said, “Can you guarantee it?” I said, “That I can’t do, but I promise you I will do everything I can to have him join you”. I did not have the confidence in my heart that I would be able to keep the promise of reuniting her husband with her and her children. I am afraid that the whole family had to be stepped down from the flight, leaving me with seats which had involved a lot of money having to be gathered together for this evacuation, because she could not go on the flight. My heart was heavy, because it was a reflection on what I felt and the confidence that I did not have in our system. I have told that story because reunion of families should be at the forefront of our minds.
My name is on Amendment 51. The noble Lord, Lord Alton, has spoken so powerfully about the importance of keeping to our commitment and duty to act when a genocide is in progress and not wait until it is over, and our duty to be of assistance to those who might flee from such persecution. As he has described, a very important protection is in here, in answering the question, as posed, “Who decides whether a genocide is in progress?” This would come before a senior court here, so it would not be a requirement of politicians to make that decision as to whether there was a genocide in progress. However, we must be prepared to support and help those who are fleeing the kind of persecution that is currently taking place in Xinjiang province. There is no need for anxiety that the whole province will end up on our shores; it is very rare that people can flee and make the journey at all. Therefore, I support Amendment 51, tabled by the noble Lord, Lord Alton.
I want to speak powerfully about the importance of there being rapid responses. The noble Baroness, Lady Stroud, has just mentioned how we can invent all sorts of processes but there must be an opportunity to say, “Take people now” if they are in mortal danger. It is what people are feeling about the situation in Ukraine. If you want to be doing these testing and security checks, bring people here and then do the checking. If someone is really a Soviet spy or former KGB agent, make your decision and deport them—but you have to act quickly to save lives.
There is a particular issue here for journalists. Our own Foreign, Commonwealth and Development Office has run a wonderful project, along with many other nations, on media freedom. Britain was there at the start of this project and now there are 50 countries around the world involved in it. One of the reports by the high-level legal panel that was created under that project contained a commitment made by all those countries to create emergency visas for journalists and other human rights people at the front line whose lives are in mortal danger—as was the case for my women judges. These were people who were dealing with human rights issues, protecting women, protecting people from the Taliban and jailing the Taliban. Not being able to put your hand on emergency visas is a tragedy and puts people’s lives at risk. It should be possible for there to be emergency visas. That is what my Amendment 50, supported by the noble Lord, Lord Alton, is about: creating emergency rapid responses for people who are at risk.
I remember Anna Politkovskaya, a great Russian journalist, who came to Britain to receive an award, that I was asked to give to her, for PEN International—a brave journalist who had gone to Chechnya and covered some of the ghastly things that Putin was doing there. She wrote a book, Putin’s Russia, that really put her in his sights. She came to receive this prize, and I remember sitting with her that night; we were all saying to her: “Stay. Do not go back. Your life is in danger”. She said, “I know it is, but my son is 16 and I have to go back to make sure that he could get out with me”. She went back, and I opened my newspaper two weeks later, and there was the blood on her staircase. She had been shot dead.
What was needed was emergency visas. She could have gone to our embassy, secured a visa for her son and got out within days. Instead, weeks passed and she ended up dead. We must have ways of responding to these situations rapidly. My Amendment 50 allows that kind of visa to exist for those facing imminent risk of death, and it should apply to people who, perhaps for reasons of religion, or reasons to do with their personal characteristics, might be in the same mortal danger. I hope that the House will support this amendment too.
My Lords, we have heard some very moving speeches. Because I have consistently spoken over the years in favour of family reunion, I will say something about Amendments 47 and 48, which I support. I urge the Government to take them away and combine the best points from both of them into something workable, practical and possible to implement.
It is most important that children and young people who are already here should be able to sponsor their close relatives, and, conversely, older people here should be able to sponsor their younger next of kin.
My Lords, I offer just a sentence on some of these amendments.
On Amendment 48, we need to bear in mind the risk that if we set up what is now proposed, children who are not yet in Europe will feel obliged to take quite serious risks to get into Europe to take advantage of it. With regard to Amendment 49, Syria is a good example. We decided that something needed to be done. We chose a target that, if you like, was doable—5,000 a year—and we did it. I take some encouragement from that. However, we need to be careful about the numbers, because we are already taking 40,000 a year, and if the Channel gets any worse that could be 70,000. We need to be careful not to lose the public’s support, which underlies all this.
Lastly, on Amendment 51, I have a good deal of sympathy with the comments of my noble friend Lord Alton on the Yazidis and others in Iraq. It may be that we should aim to do something similar to what was done over Syria, but again with a cap, in case the numbers run out of control. That has, indeed, been included in subsection (4) of the amendment, I think.
I mentioned public opinion, which changes from time to time. There is certainly very strong opposition to what is happening in the Channel; there is widespread public feeling that the Government, having promised to reduce immigration, have in fact lost control of the Channel. That, indeed, is the case. We cannot really expect the public to distinguish very clearly between asylum and other kinds of immigration. They are very uneasy, and in taking policy forward we need to keep that well in mind.