Amendment 84B

Nationality and Borders Bill - Report (3rd Day) – in the House of Lords at 1:23 am on 8th March 2022.

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Baroness D'Souza:

Moved by Baroness D'Souza

84B: After Clause 78, insert the following new Clause—“Afghan Relocations and Assistance Policy(1) Within 30 days of this Act being passed, the Secretary of State must amend part 7 of the Immigration Rules on the Afghan Relocations and Assistance Policy (“ARAP”) in accordance with subsections (2) to (11).(2) The Secretary of State must amend paragraph 276BB3 to specify that a person falls within that paragraph if—(a) at any time on or after 1 October 2001, the person—(i) was directly employed in Afghanistan by a UK government department, or(ii) provided goods or services in Afghanistan under contract to a UK government department (whether as, or on behalf of, a party to the contract); and(b) because of that employment or provision of goods or services, the person’s life or safety is at real risk.(3) The Secretary of State must revoke paragraph 276BB4.(4) The Secretary of State must amend paragraph 276BB5 to specify that a person falls within that paragraph if the person meets conditions 1 and 2 and one or both of conditions 3 and 4, as set out in subsections (5) to (8). (5) Condition 1 is that at any time on or after 1 October 2001, the person worked in Afghanistan alongside, in partnership with or closely supporting and assisting a UK government department or for a British-based organisation or institution founded by, funded by or otherwise connected to the UK government.(6) Condition 2 is that the person, in the course of that work, made a substantive and positive contribution towards the achievement of—(a) the UK government’s military objectives with respect to Afghanistan,(b) the UK government’s national security objectives with respect to Afghanistan (and for these purposes, the UK government’s national security objectives include counter-terrorism, stabilisation, counter-narcotics and anti-corruption objectives), or(c) the UK government’s human security objectives with respect to Afghanistan (and for these purposes, the UK government’s human security objectives include interventions to reduce violence, ensure basic security and promote human rights and the rule of law).(7) Condition 3 is that because of that work the person is or was at high risk of death or serious injury.(8) Condition 4 is that the person holds information the disclosure of which would give rise to or aggravate a specific threat to the UK government or its interests.(9) The Secretary of State must amend paragraph 276BB2 to reflect subsections (2) to (8) of this section.(10) The Secretary of State must insert into the Immigration Rules a route for additional family members of locally employed staff to apply in exceptional circumstances for relocation, and ensure this route is provided on terms that are no less favourable than those contained in the Home Office’s Additional guidance on the eligibility of additional family members under the Afghan locally employed staff relocation schemes, published on 4 June 2021.(11) The Secretary of State must specify in the Immigration Rules that any decision to exclude a person who would otherwise be eligible for the ARAP scheme must be made in accordance with the exclusion criteria set out in Article 1F of the 1951 Refugee Convention, and provide independent and transparent due process guarantees in relation to any exclusion decision, including impartial decision makers, disclosure of relevant information and evidence and rights of appeal.”Member’s explanatory statementThis new Clause would expand eligibility for ARAP by amending the Immigration Rules. It would insert into the Rules a relocation route for additional family members, which can be no less favourable than the current Home Office guidance, and limit the basis on which persons, who would otherwise be eligible for relocation under ARAP, can be excluded from the scheme.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, I return to the Afghan relocations and assistance policy. This stand-alone amendment seeks to protect and indeed make welcome those Afghan citizens who worked with UK bodies to promote democratic policies and, as a result, are in danger of retaliation from the current Administration in Afghanistan. Most of us will have heard terrifying stories of young women and, by extension, their families hiding in appalling circumstances simply because they are known to have worked with British organisations, including the British Council, the BBC and other non-governmental organisations.

Recent reports by reputable bodies not only indicate public support for Afghan resettlement but cite many distressing case studies of the rejection by ARAP of those who played a central role of advancing the UK’s military and security objectives. This amendment seeks to revise the Immigration Rules in three main ways: by broadening and clarifying the eligible criteria; by narrowing the exclusion criteria; and by inserting into the Immigration Rules a route for the relocation on additional family members. This amendment also brings the Immigration Rules into conformity with the obligations due as a signatory to the 1951 UN refugee convention.

Despite many brave words, the current schemes for rescuing Afghan citizens are limited, in many cases exclusionary and somewhat duplicitous, in that the resettlement offer has been gradually reduced, leaving many hundreds if not thousands at risk, purely because of their association with the UK. We have a moral duty; we chose to go into Afghanistan with many different aims and goals, and often these goals were implemented by Afghans who served us well and courageously. We need to honour our commitment to protect them, as well as our international reputation as a fair and decent country. I might add that, if this amendment is accepted, it will also benefit Ukrainian refugees, who will no doubt continue to seek refuge in the UK for some time to come. I beg to move.

Photo of Baroness Coussins Baroness Coussins Crossbench

My Lords, in supporting Amendment 84B, I declare my interest as a member of the MoD’s former assurance committee on locally employed civilians, set up to monitor the intimidation policy for Afghan interpreters. My concern is that, without this amendment, the relocation possibilities available to former Afghan interpreters will be significantly and unfairly reduced. I acknowledge, of course, that before ARAP our ex gratia redundancy scheme, though not without its problems, nevertheless managed to relocate well in excess of 5,000 interpreters and their families, and I think that number is probably now significantly higher. But ARAP was meant to improve eligibility even further. It now appears that the Government are determined to row back again with new restrictions, even though, at the point of the Taliban’s takeover, there were interpreters who had already obtained security clearance under either the ex gratia scheme or ARAP.

We need—and these people deserve—clarity. This amendment would ensure that they were eligible under category 1 of ARAP. They also deserve transparency of decision-making, but last July the Home Office rejected 21 interpreters on national security grounds for relocation under ARAP, despite the fact that the MoD had already confirmed that they were eligible. Their rejection letters from the Home Office gave no information on why this change of heart was made. Why is there not better alignment between the MoD and the Home Office on this? Nine of them have already had their rejections overturned, following judicial review, and this amendment would ensure that the others could also come to safety in the UK, as well as their family members, as was always the original intention and scope of the pre-ARAP scheme.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 1:30 am, 8th March 2022

My Lords, I will speak briefly. The case has overwhelming been made, and this has broad cross-party support. I want to make one point. A few hours ago—yesterday, now—the Independent reported concern from British staff in our embassy in Kyiv, who have of course been relocated, that Afghanistan part 2 is happening, with local British embassy staff, some of whom have worked there for many years, are being denied visas to the UK and the chance to escape the high risk of Russian retribution and the obvious dangers of Kyiv. This amendment would set the right model for this and future situations. I am interested to hear from the Minister, given the urgency of the situation for the people in Kyiv now, what the Government’s plans are.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence)

My Lords, I support this amendment. The hour is very late and it is customary at this time of night to say that I shall be brief. I am not proposing to say that—which is probably just as well because, normally, if a noble Lord says they are going to be brief, they talk for at least 10 minutes.

This is an incredibly important amendment. In many ways, it is worthy of a debate in its own right—perhaps a Question for Short Debate—which would allow the House to discuss the details and the Minister to give a full answer. Six months ago, we were all talking about Afghanistan and our duties to people who had worked with us, alongside our forces, for the British Council and as security guards. In the last two weeks we have heard little about Afghanistan. When the Secretary of State for Defence was asked on the radio yesterday morning whether the Afghan citizens resettlement scheme had been opened, he was unable or unwilling to answer. He eventually said, “Well, it’s a matter for the Home Office, and by the way we’re very busy with Ukraine.” Yet as the noble Baroness, Lady Bennett of Manor Castle, has pointed out, the issues that we are thinking about here have parallels in Ukraine.

Importantly, the fact that there is a war in Ukraine does absolutely nothing to take away our moral duties to those people in Afghanistan who have been left vulnerable because they worked with us—perhaps for the British Council as contractors. There is a group of people who are petrified now, moving to safehouses on a regular basis and going underground so that we do not know where they are. Their lives are at risk. While the world is looking at Ukraine, we still have a duty to Afghanistan.

This amendment is detailed and specific. As the noble Baroness, Lady D’Souza, made clear when moving it, it is extremely important as a way of delivering on the commitments that we made six months ago. The ARAP scheme, when it was announced by the Secretary of State for Defence in April 2021, was seen as being important; nobody quite thought it would be needed to the extent that it has been. But the rules have changed, and they keep being changed. People who worked for the British Council as contractors and as interpreters—as the noble Baroness, Lady Coussins, said—thought they had a right to come under ARAP but then that has become unclear. The Minister has on previous occasions agreed with me and other noble Lords that it is important that the Home Office, the MoD and the FCDO work together. Could she tell us, at least, that there is going to be some progress on ARAP?

It is now so late and there are so few Peers around that I believe it is unlikely we will take this to a vote, because it would be unfortunate and unhelpful to those who might wish to come under ARAP that a vote be lost. That would look like a kick in the teeth, which I hope is not a message that your Lordships’ House would wish to send.

Even if this amendment is not put to a vote, can the Minister give us some commitments on the ARAP scheme and the ACRS that might give hope to people who are still stuck in Afghanistan? Finally, might people who have been in Ukraine as Afghan refugees and are now seeking refuge yet again be able to come here? Might we deliver on some of our commitments under the Geneva convention on refugees?

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

I will speak briefly in support of the amendment in the name of the noble Baroness, Lady D’Souza; it is a really important amendment, which goes to the heart of the matter. Whichever way you look at it, there are Afghans who helped us who cannot relocate to the UK; that goes to the core of the importance of the noble Baroness’s amendment. The noble Baroness, Lady Coussins, has given us some examples and the noble Baroness, Lady Smith, reminded us of the obligations that we continue to have. What assessment has the Home Office made, with the Ministry of Defence and the Foreign Office, about the number of people they would have expected to help who are still trapped in Afghanistan? What is the current situation there?

The amendment in the name of the noble Baroness, Lady D’Souza, seeks to extend that eligibility to others who may be at risk from the Taliban-controlled Government in Afghanistan. We have a duty to help those who helped us; we all accept that, but what is the current situation? What are the routes available, and why would the Government not accept the amendment? We all agree with the principle but we know that problems still exist. An explanation would be extremely helpful; even at this late hour, this amendment enables us, once again, to ask the Government the extent of the problem and what they are going to do about it.

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

My Lords, I apologise for being slow to rise; I was frantically writing down the points made by the noble Lord, Lord Coaker. I will perhaps answer the last question first on how many are yet to come. That is a very difficult question to answer; I do not think that anyone would pretend to know. I can give an answer the other way round in that ARAP has already seen over 8,000 people relocated to the UK, many as part of the Operation Pitting group who were safely evacuated from Afghanistan last summer. Eligibility has actually been expanded, not reduced. I am not sure which noble Lord said that it had been reduced, but it has been expanded several times since it was launched: first to include people who had resigned from service, then to include people who had been dismissed for all but serious or criminal offences, and then in December last year to include people who had worked alongside rather than directly for HMG, and their non-Afghan family members.

The ACRS opened on 6 January this year; it is up and running. The noble Baroness, Lady Smith of Newnham, spoke earlier of an almost dismissive comment about the ACRS. I do not think that she was referring to me—I hope she was not.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence)

No. The person who was unable to answer the question was the Secretary of State for Defence, on the radio this morning. He basically said, “It is a Home Office matter and, by the way, we are rather too busy with Ukraine.” That was the impression that he gave.

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

It is a Home Office matter, so he was absolutely right on that, but it remains very important. Putting Ukraine into strong focus does not take away from our concern for what is happening to the people of Afghanistan. I doubt that it is getting any better; possibly it is getting worse. They still need our help and support.

On ARAP, the Home Office works with the MoD and the FCDO to ensure people’s safe passage here. I appreciate the sentiment behind the amendment, which seeks to widen further still the eligibility criteria, but it is not necessary to put the suggested changes in primary legislation. The Immigration Rules are designed to be altered where needed, with the approval of Parliament, to enable us to make changes such as those I have just been talking about. Having them prescribed in primary legislation would prevent the Government responding quickly where changes are required.

In any case, the specific changes put forward here are unnecessary. The ARAP rules as drafted, and changed as recently as December, provide us with the requisite flexibility to allow all those who made a substantive and positive contribution to the UK’s objective in Afghanistan, either directly for or alongside a UK government department, and who are now at risk as a result of that, to come to the UK. This has always been the intention of the scheme, and that is what is being delivered.

On additional family members, the ARAP rules reflect the wider immigration system in that principals can be joined by spouses, civil partners, durable partners and children under 18. It is right that they are consistent with other routes to the UK. In June last year we published guidance on how additional family members can join principal ARAP applicants here outside the rules, where there are specific levels of dependence or risk. This option has been widely used, and by definition provides us with greater discretion than having prescriptive criteria set out in the rules.

Security checks are carried out by the Home Office after the MoD has approved them. On JRs, the Home Office overturns MoD grants only ever on serious national security grounds.

The ARAP scheme has been a huge success. It has provided resettlement to more than 8,000 people already, with a similar number yet to come. The rules in place strike the right balance between providing support to those who need and deserve it and protecting the finite capacity of this country to resettle those in need. I hope the noble Baroness will be happy to withdraw her amendment.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, I thank the Minister, as always, for her answer. I think the most recent pronouncement from the Home Office on the ARAP scheme was that it would in future include only Afghan citizens who were explicitly involved in promoting British values and policies, which necessarily excludes an awful lot of people who worked for British companies but without necessarily being seen to be explicit in promoting their values.

Secondly, the Minister said that she did not feel it necessary for this to be in the Bill, but I feel strongly that unless these criteria are in the Bill they will never remotely happen, and therefore it is important that they be included. I feel that the ARAP scheme continues to be somewhat thin, a little confused and confusing and somewhat pusillanimous, but in view of the hour I beg leave to withdraw the amendment.

Amendment 84B withdrawn.