That this House do not insist on its Amendment 4G, to which the Commons have disagreed for their Reason 4H.
4H: Because the Commons consider that it is appropriate to provide that a failure to comply with the requirements of section 40(5) of the British Nationality Act 1981 does not affect the validity of a deprivation of citizenship order made before the coming into force of clause 9.
My Lords, the world is facing a crisis of migration. An estimated 80 million people are displaced by conflicts and instability around the world. Others seek to move in search of improved economic opportunities. Challenges need solutions, not just complaints about what is proposed.
Managing migration—welcoming and effectively supporting those most in need, while protecting borders and closing down the dangerous business of people-smuggling—is one of the most difficult public policy challenges faced by any Government. Breaking the business model of the people smugglers and managing the flow of people entering this country is one of the most humane things that we can do. The measures in the Bill will allow us to save lives and ensure that we can effectively provide support and care for those who need it most.
I therefore beg to move this House does not insist on your Lordships’ Amendment 4, does agree with the other place in their Amendments 4A to 4F and does not agree to your Lordships’ Amendment 4G.
I start by addressing Amendments 4J and 4K. As I have said to this House, it is very important that in cases where we have already made a decision to deprive, the subsequent deprivation order remains valid and effective to protect the UK from high-harm individuals and to preserve the integrity of the immigration system; that is the purpose of this clause. With respect to the noble Baroness, the Government do not accept that deprivation orders made prior to commencement of the Bill are invalid. We have repeatedly said that we will always try to give notice of deprivation, but in some cases that simply is not possible, for good reasons, which I have outlined during the course of the Bill. Amendment 4J also suggests that we can just make a new order, but that may not always be possible, as, of course, the circumstances in an individual case may have changed.
At end insert “and do propose Amendments 4J and 4K in lieu—
4J: Clause 9, page 12, line 13, leave out subsection (5) and insert—
“(5) Where a pre-commencement deprivation order is invalid due to a failure to comply with the duty under section 40(5) of the 1981 Act, and the Secretary of State seeks to make a new deprivation order in respect of the person affected by the invalid order—
(a) the Secretary of State shall comply with the provisions set out in Schedule 4A to the 1981 Act, and
(b) subsections 40(5D) and 40A(2A) of the 1981 Act apply.”
4K: Clause 9, page 12, line 20, leave out subsection (7)”
My Lords, needless to say, I along with many others am deeply disappointed with the Commons’ decision to reject the amendment that we tabled on Clause 9. In effect, the Government now seek to maintain the legal fiction that previous deprivation orders without notice continue to be valid. This immediately puts many who are suspected of having been trafficked, including women, at risk of return to countries where they may be subjected to torture and/or other inhumane and degrading treatment.
The amendment simply sought to remove the Government’s power to hold to decisions and actions to deprive, without notice, citizenship orders subsequently declared unlawful by the courts. It remains unclear to me why, if the Government accept that safeguards are necessary—as evidenced by the amendments tabled by the noble Lord, Lord Anderson, and accepted by the Government—these same safeguards do not apply to all deprivation orders.
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At earlier stages of the Bill, in particular in discussions on Clause 9, it was suggested that the rule of law was being challenged by the Government, given the previous court rulings. This remains the case by means of the creation of two tiers of citizens: those who will benefit from the Anderson safeguards and those under the pre-commencement orders who will not benefit from these safeguards. This appears unjust, unlawful and petty given the relatively small number who fall into the latter category.
Given the advisory role of this House and the need to focus attention on further egregious clauses, I will not seek the opinion of the House on this Motion.
My Lords, I have Motion K1 in this group but I will speak to each of the other Motions. I will say very little on the individual Motions, but I remind the House of what I said at Second Reading. If British people, as we are constantly told, are concerned about immigration, this Bill, which targets asylum seekers and victims of modern slavery, is not focused on their primary concern.
In an article in the Telegraph yesterday, Nick Timothy, Theresa May’s former chief of staff, wrote about his concerns about mass immigration. Nowhere in that article does he mention asylum seekers, victims of modern slavery or the Nationality and Borders Bill. He points to the real causes of mass immigration: 240,000 work visas, up 25% compared with 2019, which was a big year for immigration; 280,000 family visas, up 49%; and 430,000 student visas, up 52%. These numbers dwarf the numbers claiming asylum.
Work permits have become unlimited; the definition of a skilled worker has been watered down; the shortage occupation list has been extended; employers no longer have to prove that they could not recruit from the resident population; and foreign students are allowed to stay on after their studies no matter what their qualification. An Australian-style points-based system, designed to increase immigration into Australia, is having the same effect here, despite the end of free movement. Yet this Government, and this Bill, address none of these issues but instead focus on the small minority fleeing war, persecution and modern slavery, who desperately need sanctuary.
On Motions A and A1, we believe that the safeguards the noble Lord, Lord Anderson of Ipswich, has secured in relation to deprivation of British citizenship without notice will ensure that further abuse of the system is prevented. While we have sympathy with the position of the noble Baroness, Lady D’Souza, we are pleased that she is not going to divide the House on this occasion.
My Lords, I will start by saying a couple of words about a couple of the Motions and will then concentrate my remarks on Motion L1, in my name, on modern slavery.
On Motion A1, and the amendment in the name of the noble Baroness, Lady D’Souza, I pay tribute to the noble Baroness and the work she and many others in this House have done on this particular issue. As she knows, we originally wanted the whole clause to be removed, but we recognise that the Government have changed the clause significantly by accepting the safeguards tabled by the noble Lord, Lord Anderson. The Minister is to be congratulated on moving as far as she did on that issue. On that basis, and that of other safeguards, as the noble Lord, Lord Paddick, has mentioned, there is nothing further we can do with respect to this clause. As I said, we all note the work which the Minister has done. Certainly, the amendment moved by the noble Lord, Lord Anderson, would not have been as well accepted as it was by the Government without the work she has done.
On Motion K1, and the amendment in the name of the noble Lord, Lord Paddick, we agree entirely with the problems which the removal of the words “for gain” creates. He knows that I have supported him all the way through the Bill. But we are left with difficult decisions and, although the Government have removed rescue efforts co-ordinated by the coastguard from the scope of the offence, a captain who takes a split-second decision to rescue lives at sea will officially commit an offence. This is addressed, as the noble Lord, Lord Paddick, said, only by the fact that they will have an exceptionally strong defence for doing so. I note that the Minister has said on a number of occasions that she does not believe that someone would be prosecuted in those circumstances, and it would helpful if she reiterated that again from the Dispatch Box as a further safeguard and reassurance to people who may be put in that position. We would have liked to see this remaining problem fixed but, as I said, as the Government have already significantly amended this clause, we are doubtful that there is anything more to be achieved in this respect and there are other issues we wish to focus on—one of which I will turn to now.
My Lords, I thank all noble Lords who have spoken succinctly to these groups of amendments. Before concluding, I will directly address the point from the noble Lord, Lord Coaker, about the facilitation offence. I can confirm that we do not intend to refer people for prosecution except in egregious cases. We will assume that they are telling the truth and acting in good faith, unless we can disprove it beyond reasonable doubt.
The noble Lord also asked about modern slavery, public order and those forced into criminality. As I said in my opening speech, we recognise that individuals who have prior convictions may be more frequently targeted by exploiters. That is why we are taking a proportionate approach to identifying those who are of public order concern. Trained decision-makers will then carefully consider each individual case and take into account mitigating factors. These will include the nature and seriousness of any offence, the time that has elapsed since the person committed such an offence, whether the offence was committed as part of an individual’s exploitation and therefore the level of culpability attached, and whether an individual is assisting or co-operating with a relevant investigation or prosecution effort.
I think I have addressed the points that noble Lords have made. Without further ado, I hope that noble Lords will not press their amendments.
My Lords, I beg to move Motion B that this House do not insist on its Amendment 5B, to which the Commons have disagreed for their Reason 5C. With the leave of the House, I shall also speak to Motions C, D, E, F, G, H and J.
I turn first to Amendment 5D. The Government’s position remains that the provisions of this Bill are compliant with the refugee convention, but I cannot support the amendment, as it strikes at the heart of the constitutional relationship between Parliament and the courts. The convention leaves certain terms and concepts open to a degree of interpretation, which ensures that it can stand the test of time and be applied across many jurisdictions with different legal systems.
There is therefore a need to define and apply such terms in domestic legislation in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language of the convention. The provisions in Part 2 are in line with this. It is not, therefore, appropriate to require the courts to consider whether the Bill is compatible with our international obligations where Parliament has passed clear and unambiguous provisions. These provisions are clear and unambiguous and are a good faith interpretation of the refugee convention.
The new amendment is not only unnecessary because the contents of Part 2 are fully compliant with our international obligation; it is also contrary to the fundamental purpose of this Bill, which is, where possible, to tightly define the nature of our obligations under the refugee convention while remaining complaint with those obligations to support consistent and accurate decision-making.
Amendments 6D, 6E and 6F are another attempt to alter the effectiveness of the differentiation policy. As we have discussed in great detail during the course of debate on the Bill, to do so would go against one of its fundamental aims, which is to deter people from making dangerous and unnecessary journeys. I am sure that I speak for all Members of the House in saying that we want to see a stop to all such journeys to the UK. These journeys endanger lives and line the pockets of dangerous criminals, both here and abroad.
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Amendment 4K seeks to remove one of the safeguards that the Government introduced into Clause 9 in response to earlier concerns raised in your Lordships’ House about the right of redress. Subsection (7) specifically provides the clarity that the right of appeal remains for deprivation decisions made where notice was not given prior to commencement of the Bill, and on the same terms as appeals where notice is given. Deleting this subsection, as Amendment 4K suggests, would therefore remove this safeguard.
I turn to Amendment 20D. I very much welcome the spirit of this amendment, but unfortunately it could still compromise our ability to prosecute people smugglers because it is still open to exploitation from organised crime gangs involved in people-smuggling, who could very easily manipulate circumstances to deliberately endanger migrants’ lives, as they do now, by providing inadequate craft in which to cross the Channel, and then provide their own rescue as a means to avoid prosecution. The clause already provides protections for persons undertaking rescues, which we put in place after listening to the concerns raised in both Houses about rescues undertaken by the RNLI and other independent rescuers. This new amendment would simply add a barrier to successful prosecutions.
I move next to Amendment 25D, which relates to modern slavery. It is too narrow and does not fulfil the aims of the original clause. The amended definition of “public order” does not include all individuals who have been involved in terrorism-related activity or who otherwise pose a risk to national security, or those who have been convicted of serious criminal offences, such as manslaughter, murder, violent acts and sexual offences. I have listened to concerns raised previously and I want to be clear that offences included in the original drafting of Clause 62 are not minor offences, as Parliament agreed back in 2015 when passing Schedule 4 to the Modern Slavery Act. Even where an individual meets the public order definition, the Government have been clear that our approach to the disqualification is discretionary. It is not our intention to carry out a full public order consideration of every individual who enters the NRM, but rather where a specific concern or threat has been identified. I understand the wish to have determining language such as “exceptional” and “genuine” threat in the Bill, but this would no doubt—albeit unintentionally—mean that the public order disqualification would be unworkable in the UK and would continue to leave us unable to remove dangerous individuals, despite there being cases where it is lawful, appropriate and in line with our international obligations to do so. That is why we have previously provided further detail in this House about the proportionate approach that we will take to implement this measure, and clarity on the mitigating factors that will be taken into account as part of a case-by-case approach.
I further reassure noble Lords that although it is right that the Government are able to withhold protections where an individual is a threat to public order regardless of age, as envisioned in our international obligations under ECAT, children’s vulnerabilities are always an essential consideration. We will take particular consideration of the age and maturity of those who are under 18, and of course children have separate protections anyway under the Children Act.
I note the concerns of the noble Lord, Lord Coaker, about how the public order disqualification measure might impact the number of “duty to notify” reports—that is, suspected adult victims of modern slavery who do not consent to enter into the NRM—as the NRM is a consent-based system. Foreign nationals who choose not to be referred into the NRM and are therefore subject to a duty to notify are likely to be already engaged in parallel with the immigration system. Reasonable grounds decisions, conclusive grounds decisions and, in future, public order disqualification decisions will continue to be taken separately from any consideration of an individual’s immigration status.
I want to be clear that first responders should always refer victims into the NRM, in line with modern slavery statutory guidance, using the online form, even when the individual may meet the public order definition. Decisions will then be taken on a case-by-case basis. We are committed to improving the training of first responders to increase awareness of the NRM and ensure that potential victims can make informed decisions about whether to enter the system, and we are supporting that with an improved legal aid offer for victims of trafficking within the Bill.
We recognise that those individuals who have prior convictions may be more frequently targeted by the exploiters. That is why we are taking a proportionate approach to identifying those who are of public order concern. Trained decision-makers will then carefully consider each individual case and take into account mitigating factors, including the nature and seriousness of any offence; the time that has elapsed since the person committed any such offence; whether that offence was committed as part of an individual’s exploitation and the level of culpability attached; and whether an individual is assisting or co-operating with a relevant investigation or prosecution effort. For those reasons, I cannot support the amendment.
I turn briefly to Amendment 26B. The Government’s unshakeable position is that support should be provided on the basis of need, tailored to the individual and their personal circumstances. During the passage of the Bill we have committed that, where necessary, all those who receive a positive conclusive grounds decision and are in need of specific support will receive appropriate tailored support for a minimum of 12 months. What still concerns us about the amendment is that it would move us away from taking an individualised needs-based approach to the provision of support, and we therefore cannot support the amendment.
I hope that, for the reasons I have set out, noble Lords will feel happy not to press their amendments.
Motion A1 (as an amendment to Motion A)
On Motions K and K1, I understand the Government’s determination to prosecute people smugglers but the unintended consequences of removing the “for gain” element of the offence of facilitating the entry of an asylum seeker into the United Kingdom are to subject individuals, most importantly those seeking to rescue migrants drowning in the channel, to prosecution.
The first amendment approved by this House to reinstate “for gain” was a Labour amendment. The second, a Liberal Democrat amendment, provided that those with a reasonable excuse for facilitating entry would not commit an offence. Both were rejected by the other place. This third attempt would mean that individuals engaged in genuine humanitarian activity, including the preservation of life, would not commit an offence.
This is about removing doubt from the minds of those who come across drowning migrants in the channel that they may be prosecuted if they effect an immediate rescue. The Bill, as drafted, says that they commit a criminal offence. The only current defence is that, once charged, they may present a defence in court—once they have been arrested and prosecuted. Whatever the Government might say, that could cause people to hesitate when decisive, life-saving action is needed. We believe that lives depend on Motion K1 being agreed by this House, and I urge noble Lords around the House to support it.
We support Motion L1, and do not believe that modern slavery should be part of this Bill at all. These victims are extremely vulnerable and should be supported, apart from in very exceptional circumstances. The current “public order” concern is far too broad. We believe that Motion L1 provides a solution to that issue, as I am sure the noble Lord, Lord Coaker, will explain.
On Motion M, it is with great regret that the efforts of the noble Lord, Lord McColl, over many years, to protect and properly support victims of modern slavery, have come to a point where his own party, the Conservative Party, refuse to support him in his attempts to make appropriate provision for such victims.
I first thank the Minister, who tried to address many of the issues which have been raised around Clause 62. I remind noble Lords that, as my amendment points to, this clause deals with disqualifying potential victims of modern slavery from protection. As the Minister confirmed, this includes children. We are genuinely trying to be helpful on this issue. As the Minister outlined, the Government clearly recognise the real problem here. The clause, as originally drafted, was too broad, and it remains too broad. It will actually capture victims who have a criminal record only as a consequence of their slavery—because they have been exploited and forced into crime by their traffickers. This legislation, even as amended, and even with the reassurances from the Minister, will still capture victims of modern slavery and disqualify them from protection. This is the reality of the legislation before us: it will prevent victims entering the NRM; it will tighten traffickers’ hold on their victims; and it will stop us being able to find, stop and prosecute the vile people traffickers.
The Government have been generous with their time; they have met me and trafficking organisations on numerous occasions. But the problem remains in the way that this clause is drafted. The amendment that I have put before the House seeks to give the Government time to sort out the issue, which they recognise as a problem, of defining “public order”. As it is in the Bill at the moment, victims of trafficking who commit minor offences are potentially disqualified from protection. That cannot be what the Government, this House or anyone would wish, but it is the consequence of the Bill—it is the consequence of the legislation as it is drafted. Whatever the warm words and intentions of the Minister—who would not want that to happen and says that it will be all right on a case-by-case basis—you cannot legislate on the basis that it will be all right on the night. That is not the right way of doing it. The legislation creates the problem. We also tried to address concerns around terrorism, and that is why we added TPIMs to the amendment.
I want to refer to the Government’s latest statistics to conclude my remarks on modern slavery. According to the Government’s own document, published a couple of weeks ago, 43% of those who claimed asylum last year because of exploitation were children. This means that 43% will potentially be impacted—I am not saying that they will be—by this clause as it is currently drafted. That is the reality of what is before your Lordships this afternoon and why I am so insistent on my amendment, in Motion L1.
The Minister referred to the number of adults who are not officially referred—if you are an adult, you have to give consent—and where instead the first responders act on their duty to notify. In the past year, this number has increased by 47%—47% of adults are refusing to consent to be referred to the national referral mechanism. The Minister will say that it is up to them whether or not they consent, but let me say why I think they do not consent. I think that an increasing number of victims or potential victims of trafficking do not consent to be referred to the national referral mechanism because they are scared. They do not see authority in the way that we do. They do not see police officers in the way that we do. They do not see immigration officials in the way that we do. They do not see civil servants in the way that we do. They are frightened. They are victims. They may have been forced into criminality and, as such, they do not want to have it imposed on them that they must be referred to an official system. That there has been a 47% increase in victims or potential victims refusing to consent to being referred to the system should ring alarm bells with everyone.
My amendment says that, because of an increased emphasis on things such as public order, there is a failure to recognise the reality for victims of slavery and their lives. Many noble Lords here, including me, have met victim after victim and potential victim after potential victim—people who are terrified, mortified and scarred for ever by their experience. Yet the way this Bill is drafted, it will penalise them for that experience and any forced criminality. This is not the Government’s intention—I accept that—but it is the reality of the legislation before them. I ask your Lordships this: why, either in this place or the other place, would you pass a piece of legislation that flies directly in the face of the policy objectives that you have? It is nonsense. The Government do not want to exclude potential victims of modern slavery from referring themselves or being referred, but that will be the consequence of this legislation if it is unamended.
We will divide the House on this. We want the Commons once again to think whether they really want to pass legislation that will potentially lead to victims of modern slavery not coming forward or having the help and support they deserve. I do not believe they do. That is why we should support Motion L1 in my name.
Turning first to Amendment 6D, it is important to note that Clause 36, which is relevant to the criteria used to differentiate under Clause 11, already provides that an individual may still be treated as having “come directly” even if they stopped in another country outside the United Kingdom, provided they can show that they could not reasonably have been expected to claim asylum in that country. Clause 36 also allows discretion to be exercised in determining whether someone claimed “without delay”, whether that person claimed as soon as it was “reasonably practicable” being a key factor to be considered when assessing these criteria and therefore again being relevant in determining a refugee’s grouping. These provisions already achieve what the amendment is trying to effect, and as such I do not support Amendment 6D, which is not required.
I cannot support Amendment 6E, which seeks to shift the burden of proof in applying Clause 11 on to the Secretary of State. First, I assure noble Lords that my officials are developing detailed guidance for decision-makers to assess the credibility of a person making an asylum claim and, where a claimant qualifies for refugee status, whether they are in group 1 or group 2. The guidance will outline that all claimants will be afforded the opportunity to rebut a provisional decision to identify an individual as a group 2 refugee. As is currently the case, we will continue to support claimants throughout the process to ensure that they are able to present the evidence substantiating their asylum claim, and this includes in relation to whether they are a group 1 or group 2 refugee. Although Home Office officials will continue to provide this support, it is not for the Secretary of State, but instead for the claimant, to demonstrate whether they are a group 1 or group 2 refugee. Therefore, I cannot accept this amendment.
I now turn to amendment 6F, which, I need to be clear, is completely unnecessary. Changes to the Immigration Rules will be made in order to operationalise the differentiated asylum system, as well as other provisions within the Bill. Section 2 of the Asylum and Immigration Appeals Act 1993 already sets out the primacy of the refugee convention in the Immigration Rules. It states:
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
I must remind noble Lords that it is our unwavering position that all provisions in Part 2, including Clause 11, are compliant with our obligations under the refugee convention, but Section 2 of the 1993 Act will continue to act as an additional safeguard for policies covered in the Immigration Rules, and as such it does not need to be referenced within the Bill.
The amendment is also unnecessary as the best interests of child already are and will continue to be considered as part of the asylum decision-making process. This is clearly stated throughout our current decision-making guidance and will continue to be clear in upcoming publications. In addition, access to family reunion will be available to all group 1 refugees and group 2 refugees where a refusal would be in breach of their Article 8 ECHR rights, in line with our international obligations.
I turn next to Amendments 7F and 7G. These are nearly identical to previous Amendments 7B and 7C and, like those previous amendments, they would not only reward people who have in many cases arrived illegally in an attempt to undermine our economic migration system but would create enormous operational burdens for the Home Office to implement, very likely—as per the findings of the Government’s review into the policy—leading to a net yearly loss to the department in running costs. I once again reassure noble Lords that the Government want all claims to be settled within six months, so that people can get on with rebuilding their lives, including working. We are making every effort to ensure this is a reality under the wider new plan for immigration. I therefore advise the House that we cannot accept those amendments.
Turning briefly to Amendments 8B and 8C, as I have said many times before and the leader of the Opposition said on Sunday on television, those in need of protection should claim in the first safe country they reach. The first safe country principle is widely recognised internationally and is a fundamental feature of the common European asylum system. By enforcing this part of the Bill, we are taking the battle to the people smugglers, showing them that their horrible business will be made unviable. For this very important reason, we cannot agree to these amendments.
I turn to Amendments 53H to 53L and begin by addressing the announcement made by the Prime Minister recently. As noble Lords are aware—in fact, we discussed it yesterday—we have now entered into the UK and Rwanda migration and economic development partnership. This ground-breaking partnership addresses the international challenge of irregular migration by disrupting the business model of organised crime gangs and deterring migrants from putting their lives at risk. Those making dangerous, illegal or unnecessary journeys to claim asylum in the UK may now be relocated to Rwanda, where their claims will then be processed.
I should be clear that the objective of the UK-Rwanda partnership is to create a mechanism for the relocation of individuals whose claims are not being considered by the UK—the inadmissible—to Rwanda. In future, we may want to extend eligibility for overseas processing to those who have otherwise abused the UK’s asylum system, beyond undertaking dangerous or unnecessary journeys. That is the intention of this measure, which will make it easier for us to remove those who have pending asylum claims to another country for their claims to be processed.
At this point, I should say something about the partnership agreement. It is in full compliance with domestic and international law. Rwanda is a state party to the 1951 UN refugee convention and the seven core UN human rights conventions, with a strong history of supporting refugees. I would encourage noble Lords, if they have not already done so, to read the memorandum of understanding underpinning the UK-Rwanda partnership, which contains many of the assurances that they are looking to receive through these amendments. Not only that, but the MoU makes clear that these assurances will be monitored by a monitoring committee independent of the Governments of both the UK and Rwanda. This committee will have unfettered and unannounced access to relevant records, locations, officials and whatever else it needs to complete its assessments.
Much has been made, and was made in your Lordships’ House yesterday, of how this arrangement is underpinned by an MoU rather than a treaty. An MoU is a standard arrangement between states. By way of example, in 2019, the UNHCR and the African Union signed an MoU with Rwanda to establish an emergency transit mechanism; this partnership facilitates the relocation of refugees and asylum seekers from the conflict zones in Libya to the safety of Rwanda. The UNHCR recently extended this MoU, which will now run until 31 December next year. There is nothing novel, unusual or untoward about underpinning this arrangement with an MoU, the terms and monitoring mechanism of which give us the assurances we need to operate this arrangement safely and in line with our international obligations.
Outside the partnership, noble Lords need look no further than the safety criteria set out in these measures to be assured that we will only ever remove someone whose asylum claim is pending to a safe third country where it is in accordance with the refugee convention and the European Convention on Human Rights. Everyone considered for relocation will be screened, interviewed and have access to legal advice. Decisions will be taken on a case-by-case basis, and nobody will be removed if it is unsafe or inappropriate for them.