59: After Clause 48, insert the following new Clause—
“Amendment to Section 59 of the Illegal Migration Act 2023(1) Section 59 of the Illegal Migration Act 2023 is amended as follows.(2) In subsection (2), for paragraph (a) substitute—“(a) for subsection (1) substitute—“(1) The Secretary of State may declare an asylum or human rights claim made by a person who is a national of a State listed in section 80AA(1) inadmissible.”;”.(3) In subsection (2), after paragraph (c) insert—“(ca) in subsection (4) after “considered” insert “or if the failure to consider an asylum or human rights claim would contravene the United Kingdom’s obligations under the Human Rights Convention”.”. (4) In subsection (3), after subsection (4) of the inserted section 80AA of the Nationality, Immigration and Asylum Act 2002 insert—“(4A) The Secretary of State must by regulations amend the list in subsection (1) so as to remove a State if the Secretary of State is satisfied that the statements in subsection (3)(a) or (b) are no longer true of a state or territory, or part of a state or territory, in relation to a description of person.(4B) In deciding whether the statements in subsection (3)(a) or (b) are no longer true of a state or territory, the Secretary of State must have regard to the circumstances and information listed in subsection (4)(a) and (b).(4C) A description for the purposes of subsection (4A) may refer to—(a) sex,(b) language,(c) race,(d) religion,(e) nationality,(f) membership of social or other group,(g) political opinion, or(h) any other attribute or circumstance that the Secretary of State thinks appropriate.”.”Member’s explanatory statement
This amendment alters the amendments made by section 59 of the Illegal Migration Act 2023 to sections 80A and section 80AA of the Nationality, Immigration and Asylum Act 2002. It turns the duty into a power, to declare as inadmissible a human rights or asylum claim, which may not be exercised if the failure to consider a claim would contravene the UK’s obligations under the ECHR. It also creates a duty to remove States from the Safe States list, if they are no longer safe.
My Lords, Amendment 59 is in my name and those of the noble Lord, Lord Cashman, and the noble Baroness, Lady Hamwee, whom I thank for their support. I also thank the noble and learned Lord, Lord Hope of Craighead, and the noble and right reverend Lord, Lord Sentamu, again for their support in Committee, during which I proposed a repeal of Section 59 of the Illegal Migration Act 2023.
I proposed that we bring to an end the proposition that states may be declared safe despite the objective evidence that they are not. I explained why there should be no blanket ban on considering human rights claims when such claims have nothing to do with a state’s safety and everything to do with family unity, ties of dependency and the best interests of children. I have no doubt that banning all family claims of European wives seeking to live with their British husbands and children—when American wives, for example, would face no such impediment—will make us no friends in Europe. However, Section 59 of the Illegal Migration Act 2023 does precisely that. It extends what was a minimal pre-existing duty to declare asylum claims from EU nationals inadmissible to also cover human rights claims from EU nationals and a much wider list of states that the former UK Government called safe.
Despite these anomalies, noble Lords will recollect that I did not push my amendment to repeal Section 59 to a vote. Instead, I promised to return to the issue. From my noble friend the Minister’s response, I understand the Government’s position to be that the retention of Section 59 is worthwhile, given the flexibility it offers in ensuring that unmeritorious claims do not unnecessarily absorb limited resources. However, in my noble friend the Minister’s response to the debate on this amendment he said, in particular to the noble Lords, Lord Cameron and Lord Davies, that the Government are wary of inadmissibility duties that could result in,
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Also, I urge the Government, if they resist legislative amendment to the status quo, to consider how future Governments might behave and whether they might share in the Government’s commitment continuously to review safety. If future Governments wish to act as if unsafe states are safe because they were added to a list once upon a time, we must be able to have a proper debate in this House. I need not remind noble Lords of the tortuous fiction that followed Rwanda being added to a list of safe states. No state should be legislated as perpetually safe. I know that this Government recognise that fact. Therefore, in Section 59 it is only logical for there to be a clear safety valve, a reviewing mechanism, to avoid repetition of the idea of a state once designated as safe being for ever deemed safe.
I urge my noble friend the Minister to consider these three practical recommendations. This Government need not retain and be haunted by unworkable and performative provisions by past Governments if their intentions are operational flexibility, upholding our obligations under the human rights convention and balancing efficiency against the need for fairness, I beg to move.
My Lords, I will speak in support of Amendment 59—to which I have added my name, along with the noble Baroness, Lady Hamwee —which was moved so effectively and powerfully by my noble friend Lord Browne of Ladyton. In Committee, I spoke about the importance of our amendment then, and the amendment before your Lordships today reflects changes which we believe will make it attractive to the Government, as well as being a balanced and effective approach; I hope the Government will agree with that opinion.
As has been said, once fully commenced, Section 59 of the Illegal Migration Act would make far-reaching amendments to the general inadmissibility of asylum and human rights protection claims from EU and other nationals introduced by the Nationality and Borders Act 2022. We believe this will likely result in violations of the United Kingdom’s international human rights obligations.
As my noble friend said, in Committee our Amendment 104 sought to repeal Section 59 of the IMA in full. It was widely supported and I was particularly pleased by the intervention of the noble and learned Lord, Lord Hope of Craighead, following my recognition of the importance of the 2010 Supreme Court judgment in HJ (Iran) v Secretary of State for the Home Department. As noble Lords will know, he was one of the justices in that case. The concern in Committee and the concern now is about the efficacy and legality of Section 59 of the Illegal Migration Act as currently drafted. The Government have made it quite clear that they believe that Section 59 of the IMA must be retained, hence why we have tabled this new amendment which looks to make changes to Section 59 with the intention of ensuring that it can provide the flexibility that the Government may require, but in an effective and legal manner that has as few unintended consequences as possible.
To put it briefly, the amendment would turn the duty of the Secretary of State into a power. It clarifies the exceptional circumstances test and provides an effective mechanism for the management of the safe states list and the removal of states which are no longer safe. Importantly, it would enable the United Kingdom to uphold the Human Rights Act and the European Convention on Human Rights and would therefore be less likely to be challenged within the courts.
My Lords, I supported this amendment in Committee. It has been quite improved and I therefore agree with the comments of the noble Lords, Lord Browne and Lord Cashman. I do not want to go over what they have said because they put the case clearly.
It must be welcome that this amendment would turn
“the duty into a power, to declare as inadmissible a human rights or asylum claim, which may not”
in the end
“be exercised if the failure to consider a claim would contravene the UK’s obligations under the ECHR”.
That to me is the nub of it and, therefore, the Secretary of State, instead of simply having a duty, would actually have a power to do something about it. There is an ability, under the Human Rights Act sometimes, for people to know that this has been breached—but who should then put it right? It seems that this Bill gives the opportunity to turn a duty into a power.
The amendment would also do another thing. It would create
“a duty to remove States from the Safe States list, if they are no longer safe”.
To have a list over which you cannot have the power or duty to do that can really prolong a misnomer. When people may have come from some places that were safe yesterday, but tomorrow are no longer safe, it seems to me that the Secretary of State needs to be given the duty to do so, because we are living in a world that is so changeable.
When South Sudan became independent everybody was full of rejoicing. I was involved with a lot of asylum people coming to Uganda, because I was hearing cases as a judge up in the north. After the sheer carnage that went on in South Sudan, where people’s lives were ruined and destroyed for so many years, peace came and everybody rejoiced. Who would have believed that it would not be long before warring factions were tearing that country apart? The carnage in Darfur was quite unbelievable.
My Lords, I will be very brief. First, I apologise on behalf of the noble Baroness, Lady Hamwee, who is still not well. I know that she would have intended to support this amendment as it is now. The noble Lord, Lord Browne, has presented us with a very neat solution to a problem that the Minister espoused in Committee. He has also sought—and I think this is the whole purpose of the amendment—to make sure that previously unworkable and satisfactory legislation is converted into something that has a sense of purpose and direction, and which is understandable and has clarity and definition within it.
In reply to my question in Committee as to why the Government are retaining Section 59 of the Illegal Migration Act, the Minister said that it would be right
“to retain the flexibility to expand the use of inadmissibility in the event that we see asylum claims from individuals from countries that we would generally consider safe”.—[Official Report, 3/9/25; col. 825.]
That was the reason given for retaining that particular section.
I think the noble Lord, Lord Cashman, has just expressed the issue with the words “generally safe”. There are many countries that may be safe for some people but not for all people. The one that currently sticks out an absolute mile is Georgia. If someone has any political thought that has nothing to do with Georgian Dream, they will be imprisoned. I have lost count of the number of politicians who I—and, I know, other noble Lords in this House—have met, who said that the day after we met them they would be going back to go to prison because they were going to be arrested, simply because they were politicians who were elected by the people but who did not speak on behalf of the Government, and who were speaking out against the Government. While “generally considered safe” means that it is generally safe to send people to Georgia, we would be absolutely wrong to send somebody who had a political opinion, because we know the disgraceful ways in which politicians have been treated in that country.
My Lords, I thank the noble Lord, Lord Browne of Ladyton, for his amendment and for his submission today, which I listened to carefully, on the case for this change. I have a great deal of respect for him and I acknowledge the intentions behind this amendment, the general issues of which we explored in Committee. That said, I regret that we cannot support his amendment—I do not think that will come as a massive surprise to him—because it would, in our view, weaken the Nationality, Immigration and Asylum Act 2002, which was amended under the previous Government. We are clear that those who come from safe countries should not be able to make asylum or human rights claims. Consequently, we cannot agree with the noble Lord’s attempt to downgrade the duty under Section 80A to a power that “may”, rather than “must”, be exercised by the Secretary of State.
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Despite that, his amendment rightly draws the attention of your Lordships’ House to the list of safe countries under Section 80AA, and that is an important part of the Act. To conclude, I simply ask the Minister a couple of questions about that list. Do the Government have plans to expand the list to better reflect the number of safe countries there are across the world? Will he set out the process of engagement that exists between the Foreign Office and the Home Office to ensure that that list is kept up to date?
I am grateful to my noble friends Lord Browne of Ladyton and Lord Cashman for the amendment today, and to the noble and right reverend Lord, Lord Sentamu, for his support. I was pleased to have the opportunity to meet my noble friend outside the House to hear his concerns at first hand. I again wish the noble Baroness, Lady Hamwee, all the best for a speedy recovery and return to this place.
Amendment 59 seeks to change the way in which Section 59—that is confusing, I know—of the Illegal Migration Act 2023 would, if fully commenced, amend the inadmissibility provisions of Sections 80A and 80AA(1) of the Nationality, Immigration and Asylum Act 2002. I am grateful to my noble friends for the consideration they have given to this matter and I acknowledge the importance of the issues raised.
As my noble friend has said, Section 59 of the Illegal Migration Act has not been fully commenced. The Government have been clear that we are retaining it to allow for flexibility—that goes to the point that the noble Lord, Lord German, made—in its future implementation in a way that best assists us to address the significant challenges brought by asylum and migration.
Section 59 itself will, if commenced, amend Section 80A of the Nationality, Immigration and Asylum Act 2002, with the effect that the existing inadmissibility provisions in respect of asylum claims made by EU nationals will extend to human rights claims made by nationals from a wider list of countries set out in Section 80AA(1) of that Act. The first part of the amendment in my noble friend’s name seeks to change the duty at Section 80A to a power, and to add an explicit provision allowing the power to be exercised only where it would not result in a person’s human rights being breached. I understand why my noble friends Lord Cashman and Lord Browne of Ladyton put forward this amendment, but, as I hope to explain, it is not necessary and could prevent us implementing Section 59 in a different, more robust way.
I thank noble Lords who have participated in this short debate. I am particularly grateful to my noble friend Lord Cashman for his contribution to the debate and his continued support on these matters. I thank the noble and right reverend Lord, Lord Sentamu, for repeating the points he made when we debated this in Committee very powerfully. I thank the noble Lord, Lord German, on behalf of the noble Baroness, Lady Hamwee. I would be grateful if he would wish her well in these circumstances and thank her for her unstinting support.
I thank the noble Lord, Lord Cameron of Lochiel, for his personal comments. I am disappointed, as he expected I would be, but not surprised at his contribution to the debate. I recollect that, in Committee, although there were numerous contributions from the Conservative Benches behind him, not one speaker supported the provision in Section 59 of the IMA. Today, there are no speakers at all from his party on the Benches behind him even to support it by their presence, if not by their contribution to the debate.
Behind these amendments is not my legal brain—which has been relaxed for many years—but advice that I got from an expert in the Immigration Law Practitioners’ Association. I thank them very much for their support.
I am disappointed by my noble friend’s response. I have no intention of dividing the House on this issue, but I reserve the right to keep it open for the next stage of deliberation. I ask my noble friend, who is generous with his time and support, whether he will reflect on—I think that is the phrase used—the implications of the provisions that I have put before the House and why they are a better resolution to the challenges of Section 59 than the view of those who support him.
I should have thanked my noble friend for his willingness to meet me and others to discuss this. We did our level best to find the time on a very busy day last Wednesday to have that meeting. It probably lasted for about three or four minutes, while I was out of the room—if I remember correctly, I was voting, but then I was voting almost every minute of every day last week. Would it be possible between now and the next stage of deliberation on this Bill to have a meeting at a time when those who have been advising me and those advising him can sit in the same room for a reasonable period of time to go through the implications of the differing approaches?
Amendment 59 withdrawn.
Amendment 60
20 of 183 shown
“a rapidly growing number of people whose claims would be inadmissible”,
who then
“would be in a holding position, unable to be removed, including those with genuine claims”. —[Official Report, 3/9/25; col. 825.]
For the reasons my noble friend set out, Section 59 inevitably will gather in its net fish we do not intend to catch, including those with meritorious human rights claims whom we cannot lawfully remove. Therefore, although I appreciate that there must be a mechanism to manage claims fairly and efficiently, that mechanism, given the Minister’s own words, is clearly not Section 59 in its current form.
Amendment 59—I assure noble Lords that the numbering is an unintentional coincidence—is an attempt to helpfully suggest to the Government how they might turn Section 59 of the Illegal Migration Act 2023 into something workable and operationally useful. It would alter rather than repeal Section 59. It would further the Government’s objective of keeping a mechanism on the statute book that might be used to increase efficiency while ensuring that it can be operated lawfully and in a manner that does not breach fundamental human rights should the Government ever wish to implement it.
To this end, the amendment would do three simple and minimal things. First, it would turn what would be an unworkable duty to declare claims inadmissible into a workable power so to do. Interestingly, by coincidence, such a change is in harmony with Clause 38, which scraps other unworkable duties in the Illegal Migration Act. In creating a workable power, our amendment would free the hands of the Secretary of State to give her true flexibility over when and in relation to whom the power is exercised. If the Minister disagrees with our amendment, I should be grateful if he would clarify when and why a statutory duty gives greater operational flexibility than a statutory power. If the Minister is able to give an example, that would be greatly helpful to noble Lords.
Secondly, our amendment would provide the simplest and most minimal of safeguards. By “inadmissibility”, the Government are saying, “We do not wish to even consider this claim”. All this amendment would do is say, “You need not consider it if to fail so to do would not result in the UK breaching its obligations under the human rights convention”, a convention to which our Government have committed to remaining a party. Undoubtedly, the courts will not presume that it is the Government’s intention to breach their international law obligations. Rather than leaving the murkiness of exceptional circumstances to save the Government from illegality, it would be much simpler if we—and by “we” I mean Parliament—were to write what we mean in the statute book, rather than hoping that what we mean will be read by the courts into the legal uncertainties of a non-exhaustive list of exceptional circumstances.
I appreciate that if Section 59 were ever fully commenced, the Government would have to issue guidance giving their interpretation of exceptional circumstances, but such guidance is not an aid to statutory interpretation. As this Government intend to comply with their human rights convention obligations, a proposed minimal safeguard should not pose any obstacle to them. However, it would provide guardrails should future Governments have different intentions—and that may be a possibility that is nearer than we would like to think.
If this Government do not intend to implement Section 59, they should amend it if they will not repeal it. If they intend to implement it, they must be prepared for litigation and to be tied up in the courts for the rest of this Parliament trying to explain whether it is compliant with human rights and what they mean by exceptional circumstances. Woolly exceptional circumstances should not be made to do all the hard work and be interpreted expansively to comply with human rights. That will only bring unnecessary criticism down upon our human rights framework and overcomplicate the matter for our courts. I suggest that a matter as important as this should not be left to guidance to be interpreted by the Government of the day. It is our job, it is Parliament’s job, to set the appropriate boundaries. If the Minister disagrees with me on this point, I should be grateful if he would clarify how the exceptional circumstances test would apply to EU nationals making private life claims or even seeking entry to live here with their families. Would they really be considered only exceptionally or would they be considered as a matter of course? How about Georgia? Would protection claims from Georgian nationals be considered only exceptionally? What further exceptional circumstances would the Government need simply to admit the two above claims?
Thirdly, and finally, the amendment would create a simple mechanism for a state to be removed from the safe state list. If the Secretary of State considers that it is no longer safe in general or safe for a recognisable section of the community, in this amendment we have listed the descriptions of persons who may be unsafe because of their sex, language, race, religion, nationality, membership of a social or other group, political opinion or any other appropriate attribute or circumstance. Only truly safe states should be on the list at all. This again would further operational efficiency as it would ensure that caseworkers need not make hard case-by-case decisions about whether to declare a claim inadmissible when the Government already consider that the state generally is unsafe or ordinarily unsafe for minorities. Fortuitously, the Government have already agreed to undertake a continuous review of the safety of the states on the list and to remove from the list states that are no longer safe. Therefore, this amendment is wholly in line with their commitment.
To be safe, a state must be a place
“where its citizens are free from any serious risk of systematic persecution, either by the state itself or by non-state agents which the state is unable or unwilling to control”,
and free from a serious risk of persecution in general. That is from the 2015 Supreme Court judgment in R (on the application of Jamar Brown (Jamaica)) v Secretary of State for the Home Department.
As I said in Committee:
“There can be no general safety presumption if there is a risk of persecution to even one recognisable section of a community”.—[Official Report, 3/9/25; col. 802.]
In relation to the HJ (Iran) Supreme Court judgment, the hard-won legal rights for LGBTQI+ refugees are meaningless if the safety of states does not account for their safety. Such refugees will have to hide fundamental parts of their identity if they cannot leap over the “exceptional circumstances” test currently in place, and are sent back home in contravention of that judgment. But, surely, even if their claims are declared inadmissible this Government will not send them home, forcing them to live in hiding in a state that the UK has called safe but is not in reality safe for them. I therefore look to the Minister to reassure me on that point.
If there is a real risk that a person would suffer inhuman and degrading treatment upon return to their home country, it would be a breach of their human rights to fail to rigorously scrutinise their claim. I believe that such claims must therefore be considered. This means that if the wider inadmissibility test is to be kept, it must be altered. Similarly, hard-won gay marriage rights will mean little if we must still show exceptional circumstances before a national of a safe country may be permitted to live here with their British or settled partner.
These are some of the reasons that we have added to the exceptional circumstances test the requirement for the Government to consider these claims if a failure to consider them would breach the human rights convention—arguably, a minimal safeguard to ask for. I hope the Government will have the courage to do the right thing: accept their human rights obligations and adopt this amendment or, at the very least, further reflect upon it and our submissions. I look forward to the Minister’s response.
Then what happened? Sudan was being ruled by a real dictator, but then that Government were overthrown, and overnight law and order began to collapse. It was not very long before two warring factions were tearing that country apart. Yes, we hold the pen on behalf of the United Nations, but, my friends, we almost do not have the wherewithal to deal with such brutality.
Therefore, a country that was safe a few months ago could suddenly end up in a real mess. We created a list of safe countries under that Act, so the Secretary of State should have the duty to remove such a country when it is judged to no longer be a safe country. This amendment is in keeping with that. I am very grateful to the Government for saying how much they are going to be ruled and governed by the rule of law. There is nothing here that is not supported by the rule of law, so I support this amendment.
In conclusion, this amendment is a worthy solution to a problem that has been identified. In the context of the Government wanting to retain Section 59 of the Illegal Migration Act, they have before them a workable solution to make sense of it and convert it from an unworkable, unsatisfactory position into something that is exactly the opposite. We on these Benches commend it.
Those bringing this amendment are aware of the provision currently set out in Section 80A of the 2002 Act which displaces the duty to declare an EU asylum claim inadmissible in the event that exceptional circumstances are identified. Although Section 80A(5) sets out some examples of when an exceptional circumstance will arise—currently in respect only to certain EU claims—these examples are not exhaustive or indeed rigid. Exceptional circumstances can already be applied more broadly, on a case-by-case basis, to ensure fairness and lawfulness in all EU asylum claims, and well-established case law already sets this out very clearly.
If Section 59 is commenced in its current form, updated policy guidance will be published to set out clearly how the exceptional circumstances safeguard should be applied for all claim types, taking account of the different considerations due in asylum and human rights claims. This will allow us to robustly and promptly process unmeritorious asylum and human rights claims at the earliest juncture, but—and this is the important point that goes to my noble friend Lord Cashman’s point—whenever necessary, it will allow us to divert claims from inadmissibility action and instead consider them substantively, ensuring that individuals’ rights under the refugee convention and the European Convention on Human Rights are maintained. It is not our objective to not have those rights upheld.
This amendment seeks to impose a duty for the Secretary of State to remove a country from the list at Section 80AA(1) of the Nationality, Immigration and Asylum Act if that country no longer satisfies the rules in that section. I say to my noble friend that the intent of this amendment is clear and commendable. It is well understood—this goes to the point made by the noble and right reverend Lord, Lord Sentamu—that countries’ conditions may change, and that may mean that a country previously assessed as safe can no longer be regarded as such. It is for that reason—the noble Lord, Lord Cameron of Lochiel, was seeking further clarification on the power in Section 80AA(6)(b), under which regulations to remove countries from the list can be made—that if Section 59 of the Illegal Migration Act is commenced in its current form, and the list at Section 80AA(1) has effect, it is unquestionable that a country assessed to be unsafe would be removed from the list by the Secretary of State under regulation. In the short term, however, ahead of regulations being made in such cases, the exceptional circumstances safeguard would apply, displacing that inadmissibility duty and allowing the claim to be considered substantially.
Noble Lords have asked why we are keeping inadmissibility under Section 80A of the Nationality and Immigration Act as a duty, rather than a power. While the exceptional circumstance provision does admit a measure of discretion, allowing for individual risks or changes in circumstance to be taken into account, the overall duty provides for greater consistency and focus in processing such claims.
I hope that, following the meeting I have had with my noble friend on the issues that he has raised and the debate that we have had today, I have reassured him that although his points are valid, they are covered by the discretion in the legislation currently in place. I hope he will withdraw his amendment.
As I say, I do not intend to divide the House on this matter and therefore withdraw this amendment.