Amendment 35

Nationality and Borders Bill - Report (2nd Day) – in the House of Lords at 5:15 pm on 2nd March 2022.

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Baroness Stroud:

Moved by Baroness Stroud

35: Clause 28, page 33, line 20, leave out paragraph (a)Member’s explanatory statementThis amendment is linked to the amendment to leave out paragraphs 1 and 2 of Schedule 3.

Photo of Baroness Stroud Baroness Stroud Conservative

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.

Photo of The Bishop of Durham The Bishop of Durham Bishop

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.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

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?

Photo of Lord Horam Lord Horam Conservative 5:30 pm, 2nd March 2022

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.

Photo of Lord Cashman Lord Cashman Non-affiliated

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.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

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.

Photo of Lord Etherton Lord Etherton Crossbench

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.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

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.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

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.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 5:45 pm, 2nd March 2022

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—

Photo of The Bishop of Durham The Bishop of Durham Bishop

I say to the Minister that 3 pm today is far too late for this debate, and we have not received it.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I do not deny that 3 pm is too late, but that was my understanding. I will chase it, if indeed it did not go. I am glad I did not assert that comment, because I have been proved—

Photo of Baroness Stowell of Beeston Baroness Stowell of Beeston Chair, Communications and Digital Committee, Chair, Communications and Digital Committee

My Lords, it may assist my noble friend to know that I have received the letter.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

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.”—[Nationality and Borders Bill Committee, 23/9/21; cols. 76-78.]">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—

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 6:00 pm, 2nd March 2022

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.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

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?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I thought that I had made it clear that unaccompanied asylum-seeking children would not be offshored.

Photo of The Bishop of Durham The Bishop of Durham Bishop

Can we be absolutely clear: the Minister is not saying that children could not be offshored if they are members of a family?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I have gone as far as I am willing to go by confirming that unaccompanied asylum-seeking children would not be subject to offshoring, but on some of the wider vulnerabilities it would be wrong to be drawn at this point.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

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?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, it would depend on the circumstances of the case.

Photo of Baroness Stroud Baroness Stroud Conservative

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.

Ayes 208, Noes 155.

Division number 2 Nationality and Borders Bill - Report (2nd Day) — Amendment 35

Aye: 208 Members of the House of Lords

No: 155 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 35 agreed.

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