Moved by Lord Hunt of Kings Heath
19A: Clause 4, page 6, line 3, leave out paragraph (c)Member’s explanatory statementThis amendment, with others in the name of Lord Hunt of Kings Heath, seek to amend the Bill so that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered.
My Lords, Amendment 19A is on modern slavery. I will speak to a series of my other amendments relating to Clauses 4 and 21. I am grateful to the noble Baroness, Lady Hamwee, and my noble friend Lord Bach for their support.
I think we are all aware that modern slavery is a brutal crime involving sophisticated criminal networks buying and selling people for profit. Victims of this appalling crime may be forced to enter the UK illegally, coerced, deceived and forced against their will, with their identity and decision-making powers stripped away. If left unamended, the Bill would see victims punished for crimes committed by the perpetrators, deported or held in detention centres, exacerbating pre-existing traumas.
In the past 12 years, organisations such as Hestia—the leading modern slavery charity in the UK—to which I pay great tribute, have supported victims via the modern slavery victim care contract. In that time, these organisations have supported over 18,000 victims of modern slavery. Survivors have been exploited for profit by criminals often operating as part of organised networks, both in the UK and internationally. The Bill will do incredible damage to those efforts.
Clause 4 applies the Bill’s provisions to people who claim to be victims of slavery or human trafficking, or those who have made an application for judicial review in relation to their removal from the UK under the Bill. Clause 21 relates to the Council of Europe Convention on Action against Trafficking in Human Beings, which provides that, once there are reasonable grounds to believe that a person is a victim of trafficking, states have certain obligations to that person. Under the Bill’s provisions, where a protection or human rights claim falls within subsection (5), it will be declared inadmissible by the Secretary of State and will not be considered in the UK.
Were the Bill to come into effect without any provisions to protect victims from the duty to remove that is set out in Clause 4, many of these survivors would be denied the opportunity to rebuild their lives and reclaim their autonomy, based purely on their route of entry. This would also apply in circumstances of trafficking, where individuals have been forced to enter the country illegally. The Bill will do nothing to break cycles of exploitation or help people to break free of modern slavery. Instead, it will feed the criminal networks that profit from the lives of vulnerable people, and it will undo the great work of the Modern Slavery Act.
Noble Lords will have received a briefing from Justice about its significant concerns that proposals to deport potential victims of modern slavery and human trafficking, without properly considering their claim, are incompatible with Article 4 of the ECHR and the ECAT. The Government say that there will be protections for those supporting criminal investigations and proceedings, but even those limited protections have been watered down in late-stage government amendments in the Commons. Clauses 21(5) and 28 require the Home Secretary to assume that an individual can co-operate with criminal proceedings from abroad, unless there are “compelling circumstances”. But, as Justice says, this is troubling because individuals with vulnerabilities are likely to struggle to co-operate with criminal proceedings from abroad. It faces a further presumption in favour of deporting potential victims of trafficking and modern slavery.
As the previous Independent Anti-Slavery Commissioner said during the Nationality and Borders Act 2022 debate, providing a sufficient recovery and reflection period is often essential to enable potential witnesses to co-operate with criminal proceedings—therefore, limiting such support
“will severely limit our ability to convict perpetrators and dismantle organised crime groups”.
“The modern slavery clauses are fundamentally about preventing dangerous and illegal crossings that pose a threat to public order … the national referral mechanism offers world-leading protections to victims of modern slavery, and we must be alert to the risk that these protections will be used to frustrate removal action. Last year, 17,000 referrals took on average 543 days to reach a conclusive-grounds decision, making modern slavery protections susceptible to misuse”.
“The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions ending in 2019—that is, 50 people—to 73% in 2021 … Modern slavery laws are, therefore, an inextricable part of an immigration system that is open to being misused in order to block removals”.—[Official Report, 10/5/23; col. 1923.]
That is surely flawed logic. As Justice says, it is the Home Office-approved first responders who refer individuals to the competent authority if there are suspicions that someone is a victim of trafficking or modern slavery. Some 90% of the competent authority’s decisions last year were positive—in other words, decisions that there were reasonable grounds that someone was a victim of trafficking and modern slavery. Some 91% of conclusive grounds decisions were also positive, so where is the evidence that the system is being abused? Surely the Home Office’s own data highlights the overwhelming majority of credible victims of trafficking and modern slavery. As Theresa May made clear at Second Reading in the other place:
“The Home Office knows that the Bill means that genuine victims of modern slavery will be denied support”.—[Official Report, Commons, 13/3/23; col. 593.]
Furthermore, by closing the route to safety and support, the Bill risks strengthening the hands of trafficking networks. Traffickers keep people under their control with threats that they will not receive help if they reach out to the authorities. The Bill will substantiate that claim and further dissuade survivors from coming forward. We know that successful prosecutions of traffickers rely on the testimony and co-operation of those whom they exploit. As it stands, the Bill would have a devastating impact on survivors of modern slavery and human trafficking, offering them no recourse for support or protection, removing them from the country, leaving them entirely unsupported and leaving criminal gangs and traffickers unchecked.
My amendments first seek to remove the inclusion of people who claim to be victims of slavery or human trafficking from the provision in Clause 4 under which the Secretary of State must declare the claim inadmissible. My amendments to Clause 21 seek to amend the Bill so that a person who is in the process of being referred by a first responder to a competent authority, who awaits its reasonable grounds decision, who receives a positive reasonable grounds decision, who has a positive conclusive grounds decision or who is challenging a negative reasonable grounds or conclusive grounds decision may remain within the main referral system in the UK and subsequently receive modern slavery support, subject to Section 50A of the Modern Slavery Act, which includes protections from being removed.
These amendments essentially seek to ensure that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the NRM and have it duly considered. I beg to move.
My Lords, I sat out the Second Reading debate in favour of a meeting of the Constitution Committee, in which we discussed our draft report on the Bill. That report is no substitute for the report of the Joint Committee on Human Rights—which I, for one, await with impatience—although I hope that it does deserve study. It discusses, in particular, the remarkable variety in the Bill of what might be called ouster clauses. Among them is Clause 4(2), which is the subject of Amendment 21, in the name of my noble and learned friend Lord Hope of Craighead, who cannot be here today, and to which I have added my name.
Some ouster clauses are aimed at restricting appeals or reviews from the decisions of a legally qualified tribunal. Examples include Clauses 49 and 51, which appear to be modelled on Section 2 of the Judicial Review and Courts Act 2022. The Supreme Court’s decision in the Privacy International case concerned an ouster of that nature.
More fundamental in their scope are the ousters in Clauses 4, 12 and 55. They bite not on claims that have already been adjudicated by tribunals but on claims that have never been adjudicated by any court or tribunal—and, in the case of Clause 4, any claim to the effect that removal from this country would be contrary not only to our laws against slavery and human trafficking, as we have just heard, but to the refugee convention, the Human Rights Act and the principles applied by the courts on judicial review. Such claims can be pursued, if at all—I am mindful of the jurisdictional limitations on the Human Rights Act—only after removal from the United Kingdom.
Through the kind offices of the Bar Council, I spoke this morning to a number of immigration law practitioners. They told me that so-called bring-backs, historically, have been vanishingly rare. Indeed, they are measurable in single figures. These are people who win their cases from abroad and then see those judgments implemented in the sense that they are brought back. Pursuing such a claim from out of country seems, for most people, to be a remedy which, in the time-honoured phrase, is not practical and effective but theoretical and illusory.
Clause 4 is supported by two buttresses: Clause 52, which prevents our courts issuing interim measures to prevent or delay removal; and Clause 53, which, if passed into law, will give parliamentary authority to Ministers to disregard interim measures issued by the European Court of Human Rights. A final nail is hammered into the coffin of judicial review by government Amendment 25A, which was debated in the previous group.
The Minister will no doubt say that the effect of the Clause 4 ouster is mitigated by the new suspensive claims provided for by Clauses 37 to 51 to deal with cases of serious harm and factual error. That is right, but only up to a point. The problem with those clauses is not only the punishing time limits and evidential requirements proposed in the Bill but their limited scope of application. For example, they afford no scope to challenge removal on slavery and human trafficking grounds, on private and family life grounds, or for the breach of elementary legal principles, such as prejudging and procedural error.
As my noble and learned friend Lord Brown of Eaton-under-Heywood referred to at Second Reading, the difficulty we face as a revising Chamber is that this degradation of existing judicial powers to keep the Executive in check is a feature of this legislation and not a bug. The Government’s theory of deterrence is based, in significant part, on the neutering of the courts. No doubt we will have to decide on Report whether we think that the objectives of the Bill, and the likelihood of achieving them, are enough to justify such a significant rebalancing of powers. If we think that they are not, we will have to decide whether to try to reverse the ousters in Clause 4 or to work with the grain of the Bill, however unpalatable we may find it, and seek to increase the range and feasibility of the new suspensive claims. In any event, it may not be controversial, but, in the words of a unanimous Constitution Committee:
“The cumulative impact of the ouster and partial ouster provisions in the Bill gives rise to very considerable constitutional implications”.
I wonder whether the Minister agrees.
Finally, I have a question for the Minister of a probing and, I am afraid, slightly technical nature. Clause 4 does not itself render protection claims or human rights claims inadmissible, when brought by a person who meets the four removal conditions in Clause 2. Rather, Clause 4(2) requires the Secretary of State to declare such claims inadmissible, and Clause 4(4) exempts such declarations from any right of appeal. The Constitution Committee described that provision as having
“significant rule of law implications”, and as relating
“to decisions hitherto reserved to the courts”.
That is indeed so, but my question is of a more prosaic nature: what happens when a declaration of inadmissibility is made under Clause 4, and a court subsequently determines, after hearing a factual suspensive claim under Clause 42, that a mistake of fact was made in determining that the person in question met the removal conditions? Justice surely requires that the declaration of inadmissibility, having been made on a false premise, should be rescinded and the protection claim or human rights claim allowed to proceed. I hope that the Minister will agree, but I do not see any mechanism to that effect in the Bill. Can the Minister, either orally or in writing, show me where that is? If there is nothing there, will he undertake to look at whether this point could usefully be clarified in the Bill?
My Lords, it is a pleasure to follow the noble Lord. I will endeavour not to repeat some of the arguments that have already been put forward; it is a challenge that most of us have failed, and I will probably fail it too.
In the Bill, there is an unprecedented step that it would make any asylum application made by someone who arrives irregularly in the UK permanently inadmissible. If declared inadmissible, they cannot subsequently enter the UK’s asylum process. That means that they are out of the system for ever, simply because of the method by which they have arrived in this country. The United Nations High Commissioner for Refugees said that the Bill
“would amount to an asylum ban”, as it would the extinguish
“the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how compelling their claim may be”.
The UNHCR goes on to say that, if other countries followed suit, we would see an end to refugee protection. That is a pretty dismal comment, but I have no reason to doubt that the UNHCR is accurate in its assessment. I repeat something which should be beyond argument: the UNHCR knows about the 1951 convention, and surely the UNHCR must be seen as the guardian of that convention. So if the Government are going to disagree with the UNHCR, they have to be on pretty firm grounds before they do so.
I will not repeat the conditions stated in Clause 2—we are familiar with them—but I will note that, even if people cannot be removed from the UK, their claims will still be permanently inadmissible. That is a significant change from the current inadmissibility scheme put in place after the UK’s exit from the EU as it also left the Dublin system. Under this scheme, if the UK Government believe that somebody did claim or could or should have claimed asylum in another country, their asylum claim could be potentially deemed inadmissible. However, the current scheme requires another country to have agreed to take the person before the inadmissibility decision can be made. The Home Office guidance on the inadmissibility procedures says that getting an agreement should take a maximum of six months in most cases. We are in a situation where there can be no progress for those individuals, except in this very negative sense.
The Home Office’s own statistics—I rely on the Refugee Council for some of this information—show how rare an occurrence this is. Between January 2021 and the end of December 2022
“of 18,494 applications that were potentially inadmissible only 83 inadmissibility decisions have been served”, with only 21 removals. As a result, nearly 10,000 people have had their claims subsequently admitted into the UK’s asylum system following an unnecessary delay.
This Bill changes the current inadmissibility system by removing the requirement to have a removal agreement in place with another country before an inadmissibility decision can be reached. Instead, it makes any claim automatically and permanently inadmissible. It does not give the Home Secretary any discretion to consider the claim, and indeed the noble Lord in the previous speech challenged the Home Secretary’s lack of discretion in these procedures.
The Bill does very little to make it likely that more people will be able to be removed. Clause 5 allows people from 32 countries designated as safe countries whose asylum applications have been ruled inadmissible to be returned to their home country. Nationals of all other countries outside this list cannot be returned to their home country. This includes someone whose claim is highly likely to be successful, such as an Afghan or a Syrian, or someone whose claim could potentially be refused if it was actually processed. Instead, they can be removed only to one of the 57 third countries listed in Schedule 1 to the Bill. However, the agreement with Rwanda is the only removal agreement that the UK has in place that includes third country nationals, and the legal and tactical challenges faced by that scheme are well documented. Even if it becomes operational, it will not be possible to remove the thousands of people whose claims are deemed inadmissible to Rwanda.
We are in a real difficulty with this situation. The Home Office has yet to set out how many people it believes will be impacted by the Bill, as we have already discussed. However, given the current 0.7% success rate of removing people under the inadmissibility process, the Refugee Council estimates that at the end of the third year of the Bill between 161,000 and 192,000 people will have had their asylum claims deemed inadmissible but not yet have been removed. They will be unable to have their asylum claims processed, and therefore unable to work, and will be reliant on Home Office support and accommodation indefinitely, which is predicted to cost between £5 billion and £6 billion in the first three years. They will be stuck in a permanent limbo. I hope the Minister can explain how they can get out of that limbo, unless the Government suddenly produce a range of countries with which return agreements have been agreed.
This is a pretty miserable clause in a miserable Bill. I believe that this amendment could go some little way towards making the Bill somewhat less bad than it is.
My Lords, I have signed some amendments which were tabled by my noble and learned friend Lord Etherton, who has asked me to apologise for his absence today. I am not going to speak to those in any detail because, as is typical of my noble and learned friend, the explanatory statements which he has added to those amendments say it all, and make them very easy to understand.
What concerns me about this debate is that it has a degree of abstraction which perhaps conceals what really lies in front of the debates we are having. Recently, I went to a meeting to discuss asylum and refugee status in one of our cities. Present at that meeting was a woman in her 30s, with three children, who is living in a hostel in that city. She has now been waiting for 10 years—with her children, some born after her arrival here—to know the result of her wish to be treated as an asylum seeker.
The Minister earlier today—it seems like many hours ago but it is probably only about two and a half—referred, when he was answering an intervention, to an emergency having occurred. If that is an emergency—because this Government have been in place for well over 10 years—then it makes the creation of a baby elephant seem like the speed of sound. It has happened on their watch. Why? In truth—and it is long before the Minister became involved in these issues and became a valued Member of your Lordships’ House—they did not do what they needed to do to anticipate what was going to happen. That is why cases such as that of the woman I referred to took place.
In another city, I met a young man, now in his mid-20s, who had arrived in the United Kingdom illegally in the back of a lorry. He climbed out of the lorry and had nowhere to go. He slept in a doorway and the next day he did what he was told was a good thing to do and went to the local police station and asked the police for help. As it happens, they were very sympathetically disposed to him. He was then about 17 and a half. He was refused permission to remain in this country and he was refused asylum. He appealed and his appeal was allowed. I am delighted to say that the reason he came to see me was that he is about to start a career as a barrister. This is obviously a very good thing for anyone to do, as I would say, and I know a number of noble and learned friends, including the Minister, will agree with me when I say that. I am trying to discourage him, as a sort of mentor, from doing only asylum work because there is so much more to do as a barrister. I may be winning that battle. That is the actuality we are dealing with in these cases.
What we are facing here, to use the Minister’s words, is apparently an emergency to oust the use of judicial review. Before I got up to speak, we heard three really superb speeches. I do not want to repeat everything that was said but I agree with it all. All those speeches demonstrated, I suggest, that the ouster of judicial review, as has been the approach of the courts and indeed of Parliament over the decades, should happen only very rarely. It is not unheard of, but it should happen only very rarely when the necessity to oust judicial review is demonstrated and, above all, when it is fair and proportional to do so. Surely the ouster of judicial review is neither fair nor proportional in a situation in which we find many cases coming before the courts but it is not the fault of the real people who want to go to those courts. Let us not forget that a very large number of that cohort are allowed asylum and refugee status when they go to the courts. This is not an unworthy cohort going to court for the sake of it; people often win their cases. Do we in your Lordships’ House, with so many experienced people, particularly those who have seen the courts in action, really want to oust that activity of the courts?
Let us look at the figures for a moment. I know that there are many cases in tribunals. I have never had the advantage of serving as a member of the asylum et cetera tribunal or Upper Tribunal but I have had the privilege of serving as a deputy judge in the Administrative Court for many years, dealing with many asylum cases. I think everybody imagines—I wish to disabuse the non-lawyers in the Committee—that these cases are all run into the ground by long-winded lawyers such as myself who try to make the cases run for ever and ever in order to enhance our fees; the sort of Daily Mail “sidebar of shame” view of what lawyers do.
Let me tell your Lordships what happens in the Administrative Court. A judge turns up for a day’s sitting and often starts with paper applications. About 11% of the cases have already been filtered out as being totally without merit and do not even come before the judge doing the paper applications—the paper apps, as they are called. The judge then spends the day in his or her judge’s room dealing with the paper apps, usually dealing with about 12 in a day—maybe a few less, maybe a few more. They take therefore very little time at all.
If we look at the Government’s own civil justice statistics for 2023, which I have been checking out during our sitting on my iPad, because it is important these things right, we find, if we go through the figures very carefully, that in calendar year 2022 only about 90 real asylum and refugee cases came before the administrative court. Let us compare the baby elephant of government administration with the speed with which these judicial review cases are done, and proportionately the same happens in the tribunals: they have to work fast and they do.
From application, the date when the piece of paper reaches the court office, to final decision—that is not the final hearing but the final decision given by the judge, and hard-pressed judges often take a little time to produce their decisions and their judgments—takes an average of 193 days: that is not very much over six months. Compare that with the 10 years of the woman I referred to, or the five years of waiting by the young man I referred to, who would have been sent back to a country where he quite likely would have been killed as a political dissident if he had not been able to take advantage of judicial review. Do we really want to be the country that does that to people when the evidence against using judicial review is so weak?
My Lords, we have heard some very good speeches on this group already. I want to revert to the speech of my noble friend Lord Hunt of Kings Heath and the points he made about trafficking and slavery. I have to say that the last speech and the speech of the noble Lord, Lord Anderson, impressed me immensely. I was on the same review of the Bar Council earlier this morning and I can confirm, for what it is worth, exactly what the noble Lord, Lord Anderson, said about the dangers of ouster in the Bill. I am not going to speak about that.
I should say that I have not spoken on the Bill before: I was down to speak at Second Reading but I decided that 84 or 85 speakers was probably just about enough. My view, I am afraid to tell the Minister, like those of so many who are taking part in this Committee, is that it is an absolutely disgraceful Bill and I cannot believe that any British Government of any complexion are bringing it forward.
I put my name down in support of my noble friend Lord Hunt’s amendment. I have little to add to his speech except that it appears to me that it is an area where the Government can and should give ground pretty easily. It is surely beyond ridiculous that important legislation brought in with practically universal support as recently as 2015 should be undermined so fundamentally by a Government of the same party; so much so that, as has been mentioned, the Prime Minister at the time, responsible in many ways for the bringing in of the Act, has expressed her opinion in another place that the Bill’s provisions
“will drive a coach and horses through the Modern Slavery Act”.—[
I was a police and crime commissioner at the time the Act was effectively coming into force—I started a year after 2015—and police support for the assistance that the Act gave in this very difficult area of law, particularly difficult in prosecuting and convicting very clever and very bad criminals, was absolutely evident. The police, certainly where I was and I suspect more widely, were pleased with the Act. They knew it meant harder work, but the chance of actually locking up dangerous men—and women, no doubt—was added to appreciably. Enthusiastic and positive meetings and arrangements were held and, while it is never going to be easy to catch the wicked criminals behind trafficking, little did any of us involved in those discussions think that, only a few years later, the difficult task facing the police and others in arresting, prosecuting and convicting these villains would be made more difficult—I would say much more difficult—by proposed government legislation.
Make no mistake—this is my final point—that the Government will not easily be forgiven, it seems to me, by a very large portion of society if the improvements so recently given are effectively removed, with the result that fewer victims are helped and fewer criminals are punished.
My Lords, the noble Lord, Lord Bach, referred to the effects on the modern slavery legislation. In a sense, just as the noble Lord, Lord Carlile, talked about this being an ouster of judicial review, so, in some respects, it is an ouster of the Modern Slavery Act 2018 as well. Why is this necessary? The Home Secretary says that the system is being abused, to justify removal of the protections for victims of trafficking and modern slavery. In response to that, both Sir Iain Duncan Smith MP, former leader of the Conservative Party, and Theresa May, former Prime Minister, have said in terms that there is no evidence to justify that claim. That is why it is right that the noble Lord, Lord Hunt of Kings Heath, has moved this amendment. He made a terrific speech and I fully endorse and support everything he said.
The amendment seeks to amend the Bill so that potential and recognised victims of trafficking will not be detained or removed before they get the opportunity to submit an application to the national referral mechanism and have it considered. I ask the Minister for one potential exception: if he cannot accept the amendment that has been moved by the noble Lord then, reverting to the previous group of amendments, what about the situation of children in those circumstances? Are they going to be included in a catch-all, or will the Minister accept that there should at least be an exemption for them?
My noble friend Lord Anderson talked about the anticipated report of the Joint Committee on Human Rights. I do not think he will have long to wait for that, but what are already available are the statements given to that committee in public evidence sessions. I was very struck by one, and there is an echo here of something that my noble friend Lord Carlile referred to earlier, which is the personal effects on individuals. We heard in camera from a young woman who had been trafficked into this country and used by a family from the Middle East literally as a modern-day slave. She escaped and managed, dressed just in nightclothes, to find her way to central London where, in Piccadilly Circus, she was helped by a volunteer who introduced her to other members of the Filipino community. I am happy to say that she has been able to make a life for herself as a result of a referral to the national referral mechanism. Take that away from people and what opportunity will they have to make good lives for themselves or to have any kind of safety? At least let us have a disapplication for children and give them the opportunity to be referred through the national referral mechanism.
Finally, since I said I would try to be brief and concise, I would be interested to hear whether the Minister has had a careful look at the Council of Europe Convention on Action against Trafficking and the obligations we are signed up to. Does he recognise the view that has been expressed by many who know far more about this than I do that we will be in breach of ECAT if this goes through in its present form, and also that we are likely to be in breach of Article 4 of the ECHR in its prohibition on slavery? Are those questions that the Minister and his officials are looking at seriously? Have they attached sufficient weight to them? What is his view about the exemption of children?
“It has always been important to separate modern slavery from immigration status”.—[Official Report, Commons, 26/4/23; col. 809.]
I said that the Bill was
“using a sledgehammer to crack a nut”—[
We know that genuine victims will be penalised through the Bill. There are many amendments tabled, either to mitigate the harm, or to seek much more analysis before Clauses 21 to 28 can come into effect. Those will be debated in a later group, and I hope to speak then too. However, Amendment 19A gets straight to the heart of the matter. Clause 4(1)(c) says that the duties to remove people who have arrived by irregular means should apply regardless of whether a person claims to be a victim of modern slavery. Amendment 19A would remove that presumption.
We should be debating whether modern slavery victims should be within the scope of the Bill because that question speaks to our values and our international obligations. Our long-held values have said that these individuals need safeguarding, not penalising. The UK has been seen as a leading light in how it has responded to human trafficking. This Bill would take us significantly down the league table. Overnight, our world-leading reputation has been tarnished because we have decided that to stop the few, our obligations to the majority should cease.
I am sure the Minister will tell us that the Government recognise that these are exceptional circumstances and for that reason have included a sunset clause. Lest we should be reassured by that, let us consider, first, that the sunset clause can be extended. Secondly, in the meantime, thousands of victims will not get support, and will be detained and removed. One of the Council of Europe’s committees said that the Bill endangered victims. We are endorsing that as acceptable. Thirdly, our Article 4 obligations under the European Convention on Human Rights include
“a legislative and administrative framework to prevent and punish trafficking and to protect victims”.
Article 15 makes it clear there is no derogation from this requirement in a time of emergency. But that is what the Government are arguing—that “exceptional circumstances” allow us to wipe away the protections that are in place across the UK for these exploited individuals.
It is no wonder that there are serious doubts about the UK meeting its international obligations. I urge the Government to heed the warnings and rethink, and I commend the amendment of noble Lord, Lord Hunt, to the Committee.
My Lords, I am co-chairman of the APPG on Human Trafficking and Modern Slavery and I am the vice-chairman of the Human Trafficking Foundation. I bitterly regret not putting my name to the amendment of the noble Lord, Lord Hunt of Kings Heath, which I was a bit slow to read.
I want to make three points. I entirely agree with what has been said already by noble Lords. First, on the point that the noble Lord, Lord Morrow, makes about the Act and the reputation, as it happens, Frank Field MP—now the noble Lord, Lord Field of Birkenhead—chaired a small group of two MPs and myself who advised Theresa May as Home Secretary on whether there should be a modern slavery Bill. More recently, the noble Lord, Lord Field, another MP and I wrote a report on how the Modern Slavery Act had managed over the years. It has already been said that this Bill drives a coach and horses through the Act. It is tragic that it is the same Conservative Government—a different Prime Minister, but the same Conservative Government—who, having put through one of the greatest and most innovative of Acts of Parliament, which was applauded around the world, now choose to behave like this. Of course, it will very adversely affect our reputation, as the noble Lord, Lord Morrow, has just said. That is really very sad.
Secondly, it will have a disastrous effect, as has been said, on the people who are genuinely victims of slavery. They will be told by their traffickers that they will not have any recourse to any help if they try to escape—and, quite shortly, that is true. So there will be no exit, even if they could escape, from the fact that they either are in the state of slavery or they are removed to somewhere such as Rwanda, where they will never have been and will know no one.
Thirdly, there is the naivety of the Government in suggesting that people could assist the prosecutions by doing it from another country. We do not have enough prosecutions. The main way to deal with modern slavery is to prosecute the traffickers—those abroad who come here or can be found, and those who are in this country. There has been some success—but a limited success because you have to have witnesses to give the evidence. Even today there is not enough evidence given by witnesses, who are slow to come forward. I have to ask the Government: do they really think that if somebody is sent to another country against their will, having been already traumatised by being a victim of slavery, they are going to help the Government who deported them to deal with their traffickers? It seems extremely unlikely. On those three points, I strongly support what is going on now.
My Lords, whenever there is a reference to the ouster of the courts and tribunals in the context of this Bill, I think how ironic it is that we heard from the Government that they cannot give a certificate of compatibility with the Human Rights Act because it has not been tested by the courts.
Here again, it seems to me that we are conflating modern slavery and trafficking with immigration. That is misconceived and it is immoral. My name is on a number of the amendments of the noble Lord, Lord Hunt—not all of them, but this was due to the nature of the process, not any disregard of those amendments. An awful lot of organisations were continuing to suggest amendments pretty much as we walked into the Chamber.
The concern about this is very widespread. The amendments in this group are going in the same direction. Everyone who has spoken shares a concern about victims being scapegoated and their positions not understood. I have so much admiration for people such as the Filipino—I assume a domestic servant—the young man mentioned by the noble Lord, Lord Carlile. What people manage to do with their lives after the experiences they have gone through leaves me almost lost for words and feeling huge responsibility to try to do my best for them, even if it is not a very good best. We heard earlier today about the arrangements that the Government have for returns. The very fact that the Government have recently been negotiating with Moldova, Bulgaria and I do not know who else, about co-operation to prevent trafficking—I think it is trafficking and not just, if you can use the word “just”, smuggling—indicates the Government’s clear awareness that this is all happening. But negotiation is not a result.
The Government must not ignore that asylum seekers smuggled in are very vulnerable to exploitation as a result of the Government’s own policies. I may, at some other time, if I can and if she will allow me, quote the very apt and succinct description by the noble and learned Baroness, “escape does not mean exit”. People have said this at greater lengths during proceedings on this Bill, but that really does sum it up.
Not for the first time, those of us who have added our names to the amendment in the name of the noble Lord, Lord Dubs, seem to be a little band who work together. I will not repeat everything that has been said, but the Secretary of State sets rules for other people—in this case, very vulnerable people—so there must be consequences if the Secretary of State does not observe or fails the rules she has set.
The British Red Cross and others have been very clear about the effect of limbo on physical and mental health. It is not surprising that people now disappear into the black economy, exploitation and destitution. They must feel that they are being treated as if they are not human. Limbo should not be indefinite. I do not know how the provisions fit with the Home Office’s own guidance that the inadmissibility process, which currently does apply in some circumstances, must not create a lengthy limbo where delaying means the claimant cannot advance his or her protection claim.
Clause 4(3) deals with claims which are declared inadmissible. I ask again: what data will be published about claims which have been declared to be inadmissible? Can the Minister confirm that the Home Office will publish details, particularly the numbers, of declarations of inadmissibility? I cannot see that they will be regarded as claims which are refused because they never get to the stage of being considered. It is essential that we know how this Bill is working—if that is the right way to describe how the Bill, and maybe an Act, will proceed.
My Lords, I signed the intention to oppose the Question that Clause 4 stand part of the Bill.
I do not often say anything good about this Government but they do, at times, think outside the box. They really do think up novel practices and novel moves in all sorts of areas. I admire massively the people who have gone through this Bill and put amendments forward. Sometimes I have time to do that myself on Bills. This particular clause is so bad—how can we improve it? There are two particularly dangerous proposals, which we have already heard. The first is that the courts will not be able to pause or prevent a deportation, even where that deportation will be clearly unlawful. Secondly, the Government can, by diktat, declare a person’s human rights as inadmissible. Where does that come from? Who thought that up? It is just incredibly creative. As it is novel practice, it is also dangerous. A precedent is being set that the Government can simply rule that some people do not have any human rights and that a Government can act unlawfully without any intervention from the courts. Human rights are for everyone—which is something this Government seem to forget—or they are not human rights. The courts must be allowed to protect those rights against the Government.
We have to stop this illegal Bill. I see no option but to start voting out chunks of it. If we can possibly intervene at the end, we should vote all of it down.
My Lords, I have given notice of my intention to oppose this clause standing part. I was also able to meet the Bar Council this morning, and it was very interesting to hear its views about current practices and the difficulties following through from this law that might arise.
I want to address two or three issues in this clause which set it apart. I of course support wholeheartedly the human trafficking amendment. I talked at Second Reading about a case involving a young person who, if the current Bill were to become an Act, would be placed in perpetual slavery or alternatively deported to somewhere she has no knowledge of and no friends or people she could communicate with.
The two issues I will look at are the impact this will have upon this country and whether the Minister is going to be able to tell us whether or not the fears that people have expressed are actually true. One of the first ones is the fear of people living in limbo for years and years. The second one is about whether it is disgraceful lawyers and traffickers who have caused the problems we are now facing. I am very grateful to the noble Lord, Lord Carlile, for debunking the issue of lawyers having that responsibility put upon them by what he called the Daily Mail sidebars.
It is important to realise that there are a significant number of issues sitting behind this clause which will affect people profoundly. Essentially, this clause is the Government’s trump card upon which it can play: there is no way you can come to this country if you are one of the vast and overwhelming majority of people seeking asylum from the fear of living in countries which are under siege or war, or where people’s reputations are at risk.
We hear today that government papers which have been put aside—unless some people have spotted them—say that in the first two years between £3 billion and £6 billion extra will be required to make sure that they can cope with the number of people living in limbo. These sorts of government papers do not just fall into hands, because somebody else outside of government has written them. The figures themselves must have some credibility. They hold truth and light for those who believe that there is no way that people can be sent elsewhere under this Bill, given the limited circumstances.
I ask the Minister to repeat his claim that there is no limit on the number of people who can be sent from this country to Rwanda. No limit, he said—does that mean 150,000 or 170,000? Is that the case? We heard this morning from the lawyers who were dealing with the very small number of cases attempting to bring people back from Rwanda who had had their claims misheard that the Government did not tell them about the circumstances surrounding their existence in that country. One of the barristers concerned found out that it is an offence in Rwanda to speak out against the Government. That issue was the one that played a big hand in them being able to work around the legislation to be able to bring back incredibly small numbers of people to our country.
The third issue is the assertion by the Minister earlier that this is an emergency. If it is an emergency then obviously it is an emergency that has been going on for many years. The claim by the Prime Minister this morning that the policy we are talking about is already working is not borne out by the figures that the Government themselves provided on
The figures are these. In the six months up to the end of March—and those were the latest figures provided by the Government on
In order to answer the question about retrospection that came up on the previous day in Committee, I want to know from the Minister—I asked him in writing and got no answer, so I am now about to ask him again—what the figures are for May and June. We know the figures for the six months up to the end of March. If we know what May’s and June’s figures are, and we add them all together and we can see the differences, then we will have the evidence upon which we can say, “Well, the Government have a case to make about retrospection” or not. Despite the fact that we might oppose retrospection, we need to know those figures.
The answer will give us an opportunity to understand whether that assertion is correct, but one thing it proves for certain is that, if this is an emergency, it has gone on for more than a decade. What we are faced with is the position that most of the people who would therefore have had a right to remain here because they were genuine asylum seekers will now find themselves in limbo or deported to a country where you cannot speak out against the Government.
My Lords, sensing an overwhelming desire in the House to discuss the National Health Service (Dental Charges) (Amendment) Regulations, I shall be very brief. I do not know whether we still do it, but we used to send some people to jail on conviction at His Majesty’s pleasure. They had, of course, their day in court. They had access to legal support. Had they been convicted, they could have appealed. What Amendment 23 is trying to do—the amendment from the noble Lord, Lord Dubs, to which I have added my name—is ensure that we are not sending asylum seekers whose cases we are refusing to consider into detention at His Majesty’s pleasure; that is, an indeterminate sentence. That is how I read the Bill and how the noble Lord, Lord Dubs, reads the Bill. That is what the Government have in mind. I cannot believe that it is right to send people into limbo of that kind.
I do not know whether the right answer to the question is the one in the amendment: a six- month time limit. If the Government have not found somewhere to send them and if they have not found someone to take them, they must consider the case under the Immigration Rules after six months have passed. It seems to me a reasonable proposition, but perhaps the Government have another one. One way or another, one has to avoid creating the situation where people are in limbo outside our systems—in effect, stateless because they cannot go back to their own home for fear, and we are keeping them locked up, so they cannot take part in our society. We cannot let that run for ever. We cannot pass that into the law of the land as a desirable, or even a permissible, situation. The Government must come up with some answer if they do not agree with the noble Lord’s amendment, as I do.
My Lords, before we move on to the interesting dinnertime discussion, I just want to raise a point as a non-lawyer about Amendment 20, in the names of the noble and learned Lord, Lord Etherton, the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti. Its purpose is to
“enable an application for judicial review to be made while the applicant is in the UK”.
We had a very interesting point from the noble Lord, Lord German, about what he described, fairly accurately, as Daily Mail sidebar accusations about the nature of judicial review. It was very helpful to have that short seminar from the noble Lord, Lord Carlile, on what actually happens in the Administrative Courts and how it is not a question of lawyers making lots of money out of rather dodgy cases. I think he is right. Although I have never been to the Administrative Court, but I am sure he reflected that very faithfully.
Surely, however, if this amendment is passed, it will drive a coach and horses through the main purpose of this Bill, which is to deter people from crossing the channel in small boats. If you then give them the opportunity when arriving in this country in a small boat of immediately seeking judicial review, and that is in the Bill designed to stop them coming across the channel, will that not destroy the whole purpose of the Bill? I merely put that question as a non-lawyer; it seems to me inimical to the very heart of the Bill, whatever one’s view.
I am grateful to the noble Lord for giving way, but I just want to ask him this question. Would he be happy about legislation being passed that meant that people who had a justifiable claim to asylum were never allowed to pursue that claim to asylum—that is, a justifiable claim under international and existing United Kingdom law?
My Lords, I think, to some extent, that that is the point of the amendment. I am scared of dentists, so I have no desire to rush into a debate about dentistry, but I was waiting because at least from the Conservative Benches we heard a speech. I was counting how many. Every one had voted for this Bill, but it is amazing how many are coy when it comes to defending what is going to be the reality: that if a young woman is trafficked from a war zone, is raped on the way and arrives in the UK having been lied to, the response is no longer what had been the case; namely, that a first responder in assessing her needs would refer her to protection—the British way. Now, the first responder will say, “You have no rights under modern slavery or trafficking legislation in the UK at all. Not only that but you will be detained and you will be deported”. So, please, can we have some defence of this from the Conservative Benches? If they are not going to defend it, please do not vote for it. Only vote for something that you are willing to defend. It might just be that if the whole purpose of the Bill, as the noble Lord, Lord Horam, said, is deterrence, why stop here? If it is going to be deterrence for an emergency, why stop at this measure? If the Government act in an emergency on a situation of great importance and it is to deter, should it not be on the basis of evidence?
We heard earlier from the Minister saying that one person’s evidence is another person’s assertion. He did not say exactly that; I am putting words into his mouth so that I can disagree with them, but he basically said, “Well, it’s our view that this is the case”.
It was in 2019 that the Government promoted with fanfare a £10 million policy centre. The government press release said:
“Efforts to uncover the true scale of modern slavery, expose more trafficking networks and better inform our action to stamp out these crimes have been boosted today following the government’s investment of £10 million to create a cutting-edge Policy and Evidence Centre for Modern Slavery and Human Rights”.
That was universally welcomed. The Government said that our response to this crisis would be evidence-led and that we would then act on it. There was universal support for that.
That centre—the Modern Slavery and Human Rights Policy and Evidence Centre—which is still receiving Home Office funds in 2023-24 to do this job and inform the Government, says of the Bill:
“Thousands of potential victims of modern slavery may be denied protections by the modern slavery provisions in the Bill. This will include people for whom their entry to the UK is an integral element of the criminal offence of trafficking committed against them”.
It goes on to say:
“The need for these provisions is predicated on the UK Government’s assumption that people are ‘abusing’ the modern slavery system, and that the system is an incentive for illegal migration to the UK. The available evidence questions both of these assumptions”.
Finally, it says:
“The modern slavery measures in the Bill are incompatible with the UK’s obligations”.
I would rather drive a coach and horses through proposals from the Government that are not based on evidence and put in their place evidence-based policies that are likely to work. I declare an interest: I have supported schemes in the Horn of Africa through to the Gulf which are trying to support victims of human trafficking and forced labour.
The Bill will not only not work; it will undermine our reputation around the world. That is shameful. It is not only shameful for our global reputation—I hope we can rebuild that—but it is even more shameful for that young woman who was lied to, trafficked to the UK and would now effectively be a double victim.
My Lords, we support all the amendments in this group. As many noble Lords have said, victims of slavery or human trafficking should not be further victimised by the provisions of the Bill. As many briefings with which noble Lords have been provided—for which I personally am very grateful—have pointed out, these provisions play into the hands of traffickers and perpetrators of modern slavery. Victims will face the dilemma of further exploitation or deportation, and the criminals will use the provisions in the Bill to enforce their hold on their victims, as the noble and learned Baroness, Lady Butler-Sloss, said. Speaking as a former police officer, I say that it is difficult enough to get victims to give evidence in court, let alone victims of modern slavery or trafficking who have been deported to another country.
As the noble Lord, Lord Hunt of Kings Heath, said, referrals to the national referral mechanism are made by officials, making abuse of the system unlikely. That is reinforced by the fact that a very high proportion of the claims are actually supported.
For the reasons the noble Lord, Lord Anderson of Ipswich, gave, we agree with the conclusions of the Constitution Committee that the cumulative impact of the ouster and partial ouster provisions in the Bill give rise to very considerable and, I argue, dangerous constitutional implications. As the noble Lord, Lord Carlile of Berriew, has said, this could have potentially fatal consequences for individuals.
The effects on physical and mental health of the Home Office’s policies of placing people in limbo are well documented. We support the amendment in the name of the noble Lord, Lord Dubs, to limit the damage by placing a six-month limit on refusal to consider a protection claim or human rights claim. In doing so, we agree very strongly with the comments of the noble Lord, Lord Kerr of Kinlochard. For the reasons my noble friend Lord German has explained, we believe that this clause should also not be part of the Bill.
So far as emergencies are concerned, is it not the case that the only emergency is the huge backlog of undecided asylum claims—and that it is an emergency which is entirely the responsibility of the Home Office?
My Lords, I apologise for not being able to speak previously on the Bill, but I support Amendment 23 in the name of the noble Lord, Lord Dubs, on behalf of the right reverend Prelate the Bishop of Durham, who has added his name to this little band, as the noble Baroness, Lady Hamwee, referred to them. I have been holding back in the hope that he would land, but his aircraft has been delayed.
Of course, it is right that every nation should have jurisdiction over its own borders and the ability to decide who may or may not have a credible claim to reside in the country, but Clause 4 ends any such due process which would consider the merits of an asylum application. By denying those who are deemed inadmissible from ever claiming asylum, as we have heard, thousands of men, women and children will simply not have their case heard, let alone assessed, regardless of how grave their protection needs might be—and regardless of the fact that there is no way to travel to the UK with prior authorisation in order to claim asylum in many cases. That point is made regularly in your Lordships’ House.
Preventing people from exercising their right under international law to even claim asylum is neither workable nor, as others have said, a morally credible position. It takes away a tool we have at present to manage asylum requests in an effective manner. It perversely abandons any efforts to return people home if they are found to be unsuccessful in their claim. In so many cases, under the provisions of the Bill we shall—I use the term with care—be warehousing people in this country rather than assessing claims and, where not well founded, returning them to their home country.
The right reverend Prelate the Bishop of Durham asked the Government through a Written Question what will happen to the thousands who are to be excluded from the asylum system but are unremovable. In response, the Minister stated that the Home Secretary will be duty bound to make arrangements for the removal of a person who meets the conditions in Clause 2 as soon as is reasonably practicable. Again, one must ask: what happens to those people deemed inadmissible who are unable to be removed? Of the 55,000 considered on the existing inadmissibility grounds between the start of January 2021 and March this year, 27,644 were subsequently admitted into the UK asylum system. Why would the situation be materially different after the passage of the Bill given that there are still no return arrangements in place to remove people under this purported arrangement?
As we have heard, the mental health impacts of hopelessness are well documented and have led the Government to previously exempt children from such processes to
“mitigate the risk of adverse impacts”.
After a period of enforced detention, we cannot confine asylum seekers to further limbo, where they are unable to rebuild their lives and contribute to society and are living without the hope that is necessary to life.
The Home Office Minister Robert Jenrick recently referred to the lifestyle and values of those seeking to cross the English Channel as inimical to social cohesion. To indefinitely corral migrants under these proposals without access to a resolution of a claim, to the job market or to the means to integrate into society will itself do damage to social cohesion.
The amendment in the name of the noble Lord, Lord Dubs, granting re-entry to the asylum system for those whom the Secretary of State is unable to remove is thus a pragmatic measure that would go some way in ensuring we do not disqualify all individuals from claiming asylum. It would bring us closer in line with the basic rationale of the refugee convention. It does not completely overturn that which the other place has sent to us, but neither does it leave us, nor the people to whom it is directed, with insoluble problems.
My Lords, this group focuses on the disregarding of protection claims, trafficking claims, human rights claims and judicial review, as outlined first in Clause 4. This is quite a large group, with different strategies to remove or edit Clause 4 to remove the duty on the Secretary of State to declare human rights claims and other claims inadmissible if the person arrives into the UK illegally.
My noble friend Lord Dubs has tabled Amendment 23, which would mean that a protection or human rights claim must be considered if the person has not been removed within six months. In his very eloquent speech he said that it would have the effect of trying to reduce the number of people who are effectively in a permanent limbo—he gave the figure of 160,000 who are stuck in this status. As he said, the amendment goes a little way to ameliorating this position. I am glad that the right reverend Prelate the Bishop of Coventry supports my noble friend.
My other noble friend Lord Hunt’s series of amendments beginning with Amendment 19A would ensure that potential and recognised victims of trafficking would not be removed before they got the opportunity to submit an application to the national referral mechanism and have it considered. His amendments would remove trafficking from the list of claims that the Secretary of State can ignore, so although they would help trafficking victims, they would not help others making claims under different legislation, which would remain on the list. In my noble friend’s speech he referred to the Liberty brief, which I also found extremely helpful, and to the statistics there about the increase in the NRM claims we have seen over recent years, to which the Home Office makes particular reference. My noble friend made the point that the Bill as currently drafted would dissuade victims of modern slavery from coming forward.
As a youth magistrate, I very much recognise the point about the modern slavery system and the national referral system getting completely overwhelmed by the number of referrals into that method of checking for modern slavery. Certainly, in my experience as a youth magistrate, it almost logjammed the system of reviewing what I might call normal criminal cases referred into the NRM, which were sometimes stuck in that system for literally one or two years.
The noble Lord, Lord Carlile, gave a couple of very appropriate anecdotes. He did not particularly explain the amendments in the name of the noble and learned Lord, Lord Etherton, but, as he said, they were fully explained by the noble and learned Lord himself. I think the central point that the noble Lord, Lord Carlile, was making was that the people who find themselves making appeals are not an unworthy cohort. They very often win their claims, so surely we should be reinforcing and backing up the systems we have signed up to in international law for protecting claims of legitimate claimants.
I think all other noble Lords supported my noble friend Lord Hunt’s amendments; in fact, most noble Lords supported all the amendments in this group. I just want to make a particular aside to the noble Lord, Lord Morrow, who also supported my noble friend Lord Hunt. As he will know, he facilitated a trip for me to Ballymena district court, where I sat in on a youth court. I found it very interesting that the Modern Slavery Act has not been enacted in Northern Ireland. I have tried to get an explanation for that but, as far as I know, I have not received one. Although I am sure that the noble Lord supports the Modern Slavery Act, I find it surprising that the Act has not been enacted for young people in Northern Ireland.
As I said, I think all noble Lords who have spoken on this group of amendments have supported them. In many ways they go to the heart of the Bill, because it is where the Government are seeking to step away from some of the commitments they have made in a number of treaties and in a number of different forums over many decades. It is for the Government to justify why they should take such a radical step.
My Lords, Clause 4 provides that if a person meets any of the four conditions set out in Clause 2, regardless of any claim made by an individual, including a protection claim, a human rights claim against their country of nationality or citizenship, a claim as a victim of modern slavery or human trafficking, or an application for judicial review in relation to their removal, they will still fall under the duty to remove.
As such, if a protection or human rights claim is made, this will be declared as inadmissible. Inadmissibility is a long-standing process and is explicitly provided for in UK law, most recently in the strengthened provisions in the Nationality and Borders Act. So although the noble Baroness, Lady Jones, was praising the innovation of the Home Office, the concept of inadmissibility is indeed a long-standing one that appeared in immigration legislation from the turn of the millennium.
As the noble Lord, Lord Ponsonby, correctly identified, Clause 4 is critical to the Bill. By expanding the scope of existing inadmissibility provisions to apply to anyone who has arrived illegally to the UK, the Government’s intention is made clear: namely, that those who fear persecution should claim asylum in the first safe country they reach and not put their lives at risk by making unnecessary and dangerous journeys to the UK.
We know that some people make spurious claims in a conscious attempt to frustrate their removal. Provisions in Clause 4 will restrict the right to challenge the decision to remove those who enter the UK illegally. In doing so, it will put a stop to the endless merry-go-round of legal challenges that those with no right to be here use to thwart their removal. In 2022 there were 60% more small boat arrivals—45,755—than in 2021, when there were 28,526. Our asylum system is consequently under significant pressure, and with this inexorable rise in the number of illegal arrivals adding more pressures to our health, housing, educational and welfare services, the Government must take action and prioritise support for those who are most in need.
We remain committed to working with the United Nations High Commissioner for Refugees to identify those who are most in need so that the UK remains a safe haven for the most vulnerable. Once illegal migration is under control, we will create more safe and legal routes following consultation with local authorities, and that will be subject to an annual cap set by Parliament—we will come on to debate those provisions later in Committee.
The Bill will send an unequivocal message that if you come to the UK on a small boat or via another illegal route, you will never be able to return to the UK or build a life here. It is only right that we prioritise people who come here safely and legally, and it is unfair that those who enter illegally should benefit over those who play by the rules. If people know that there is no way for them to stay in the UK, they will not risk their lives and pay criminals thousands of pounds to get here.
Having set out the purpose of Clause 4, I turn to the specific amendments. First, Amendment 19A and the other amendments in the name of the noble Lord, Lord Hunt of Kings Heath, effectively seek to exclude all potential victims of modern slavery from the duty to remove and the associated detention powers until a conclusive grounds decision has been made following a referral to the national referral mechanism, or NRM.
There is no escaping that, regrettably, the NRM affords opportunities for those who enter the UK unlawfully to frustrate their removal. In 2022, there were around 17,000 referrals to the NRM—the highest annual number to date and a 33% increase on 2021, when there were 12,706, and a 625% increase on 2014, when there were 2,337. The average time taken from referral to conclusive grounds decisions made in 2022 across the competent authorities was 543 days. Given these decision times, it is self-evident that, were the noble Lord’s amendments to be made, the intentions of this Bill—namely, to deter illegal entry and to allow for the swift removal of those who do enter illegally—would be undermined.
The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from just 6% of detentions ending in 2019 to 73% in 2021. In contrast, where people are not detained for return, less than 3% of people who arrived in 2021 were referred to the NRM within three months of entering the UK. These are telling figures.
As I have said, it is a sad fact that the protections that the NRM provides are open to misuse and could act as an incentive for those making dangerous journeys and offer a loophole for human traffickers. I should stress that these measures are of course time-limited, lapsing automatically after two years, subject to an assessment of their continued necessity, to reflect the exceptional nature of the crisis.
I am grateful to the Minister. I am listening very carefully to what he is saying regarding the loophole. My understanding is that a referral to the NRM can be made only by a first responder authorised by the Home Office; that first responders have to be certified for their professionalism by the Home Office; and that the referral mechanism goes to a dedicated individual within the Home Office. Why is the Home Office so incompetent that it is allowing this system to abuse itself, given the fact that only the Home Office and first responders can refer?
It is not the Home Office abusing itself—to use the noble Lord’s phrase. The reality is that it is the large number of claims made by people advised to make claims, often at the last minute, in order to delay removal. When people are referred to the national referral mechanism, they give an account of slavery that then requires investigation. A threshold is applied that means that the allegations are looked into, and the number of people making applications now has given rise to the length of time to determine those claims.
If I may, I will respond to points raised by the noble Lords, Lord Alton and Lord Morrow.
I will come back to the noble Lord, Lord Purvis, at the end. I can confirm that removing this incentive is compliant with our international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. Indeed, ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order. There is a clear and unprecedented threat to public order through the loss of lives and the pressure on public services that illegal entry to the UK is causing. I again remind noble Lords that the number of small boat crossings has risen from 8,500 in 2020 to over 45,000 last year. We will have a fuller debate in respect of the modern slavery provisions when we reach Clauses 21 to 28 in Committee, but I cannot agree to the noble Lord’s proposition that the foundation of those provisions in subsection (1)(c) be removed from the Bill.
Amendment 20, spoken to by the noble Lord, Lord Carlile, seeks to strike out subsection (1)(d), the effect of which would be to enable any judicial review to put a block on removal until the legal proceedings had been concluded. It seems to me that the key words—and perhaps I could invite the noble Lord to refer to the Bill—are in Clause 4(1)(d), which relates to an application for judicial review in relation to their removal. As my noble friend Lord Horam indicated, such an amendment would again undermine a key feature of the scheme provided for in the Bill. We must stop the endless cycle of late and repeated challenges that frustrate removal under the current law. Of course, it is right to say, too, that there is no general block on non-suspensive judicial review provided for in the Bill.
The Bill provides for two types of claims that would suspend removal, and we will come on to those in due course in Committee. Those provisions provide sufficient remedies to challenge a removal notice and afford the necessary protection to a person suffering serious and irreversible harm were they to be removed to the specified third country. All other legal challenges, whether on ECHR grounds or otherwise, should be non-suspensive. Therefore, Clause 4(1)(d), read with Clause 52, does not oust judicial reviews; those provisions are simply making it clear that any judicial review cannot block removal.
As regards Amendment 21, tabled by the noble and learned Lord, Lord Hope of Craighead, and spoken to by the noble Lord, Lord Anderson, I have already indicated that inadmissibility is not a new concept. It has been a feature of the UK asylum system for some time and is already enshrined in the Nationality and Borders Act 2022. While I welcome the Constitution Committee’s scrutiny of the Bill, I cannot accept its characterisation of the provisions as having significant rule of law implications. What does have significant implications for the rule of law, I suggest, is tens of thousands of people arriving on our shores each year in defiance of immigration laws. These individuals should be claiming asylum in the first safe country they reach, and, in these circumstances, it is legitimate to declare any protection claims inadmissible to the UK system.
The noble Lord, Lord Anderson, asked what would happen to an asylum or human rights claim that had been declared inadmissible, but where the person had had their factual or suspensive claim accepted. In such a case, the person’s claim would be considered under the existing law. That might include existing inadmissibility provisions. I again remind the Committee that inadmissibility is a long-standing process intended to support the first safe country principle. It is an established part of the international asylum procedures applied across the EU and specifically provided for in UK law, most recently in the strengthened provisions introduced in the Nationality and Borders Act 2022.
The provisions of the Bill in relation to that are a little involved, and I will write to the noble Lord.
Amendment 23 in the name of the noble Lord, Lord Dubs, also deals with inadmissibility. It seeks to provide for asylum and human rights claims from those who have not been removed within six months to continue to be admissible within the UK. In effect, the amendment seeks to perpetuate our current broken asylum system. Again, it seeks to chip away at and put holes into the scheme provided for in the Bill, undermining its coherence and effectiveness. This amendment would regrettably again encourage illegal migrants to use every tactic to frustrate their removal, in the knowledge that after six months their asylum claim would be processed. Moreover, the amendments would unfairly result in individuals who have arrived illegally in the UK being prioritised alongside those who have availed themselves of our safe and legal routes—something which, I suggest to the Committee, is manifestly unfair.
The Bill must send a clear message that if you come to the UK via an illegal route, you will never be able to return to the UK or build a life here. The benefits of settlement should be open only to those who abide by our rules. The whole construct of the scheme is to enable illegal migrants to be removed within days and weeks, not months and years. There is no prospect of someone being left in perpetual limbo, as suggested by a number of noble Lords, including the noble Lord, Lord Dubs, and the right reverend Prelate the Bishop of Coventry. Amendment 23 is therefore redundant. I therefore invite the noble and learned Lord, or his proxy, not to press Amendment 20.
My Lords, can the Minister answer the question that I put to him about the disapplication of a national referral mechanism in the case of children, a point which has been raised by the Children’s Commissioner? If he does not have the answer now, can he write to me?
Forgive me; I intended to address the noble Lord’s point in relation to that. Obviously, the provisions in Clause 4 make specific reference to the power to remove children, which is contained in Clause 3. That in itself is a safeguard to protect the welfare of children. It operates in a way that promotes the interests of children, I suggest, but I am happy to look further at that point and will take it away.
Can I clarify the point that I was making? The Minister alluded to maybe coming back to me. He implied that the problem arose with those who claim, when arriving here under what the Government say is an illegal route, that they are victims of trafficking. The review of that happens only after a referral is made, and there cannot be a self-referral. He seemed to blame the threshold on which that assessment is made as to whether a first responder then submits that person to the NRM. That threshold is the Home Office threshold and the first responders are Home Office- licensed. Why does the Minister think that the Home Office is getting it so wrong?
I am afraid that I disagree. The Home Office is not getting it wrong. As I already set out in my remarks, the numbers of people claiming to have been modern slaves in this scenario indicates that there is extensive abuse. I do not think that the noble Lord could say anything else, looking at the very persuasive statistics of people in detention. I simply do not agree with him on that point.
If we have found that there is no loophole in the system, that is good—so it is just the numbers. Therefore if the number of those who are trafficked goes up, that is the problem. It is not that there is a loophole in the system meaning that a higher proportion are falsely claiming that they are being trafficked. What message does that say around the world? The UK is now blind to the individual merit of a young woman being trafficked if there are many young women being trafficked—that is when we close our doors.
That is not the case. Much as we might wish it to be, the simple reality, I am afraid, is that our modern slavery protections are being abused. The measures in the Bill directly address that.
The noble Lord will be aware that there are two stages to the process—a reasonable grounds decision and a conclusive grounds decision—and different statistics. A light touch has hitherto been applied in relation to reasonable grounds. I will need to look into the precise statistics and revert to him on that. I am afraid I do not recognise those statistics immediately, so they will require further research.
I cannot remember the exact numbers, but if the noble Lord looks at it the conclusive grounds is the number which matters, and that is extremely high.
My Lords, I was going to wind up, if I may. Other noble Lords may contain their enthusiasm for dental charges, but I am keen to move on to that important issue. I will not give a long speech, although I was profoundly depressed by the Minister’s response. I will make three points.
First, the noble and learned Baroness, Lady Butler-Sloss, is right that we were so proud of the Modern Slavery Act and the credibility that it gave to our country. This Bill undermines it fatally in so many ways. Secondly, the noble Lords, Lord Purvis and Lord Scriven, are also surely right. The Minister has essentially said that there is nothing wrong with the robustness of the system. My evidence is that 90% of the competent authorities’ decisions last year were positive decisions, while 91% of conclusive grounds decisions were also positive. This is a system that the Home Office itself oversees. It seems that the cases coming before it are proven to be positive. I do not see how the Minister can possibly then say that there is evidence that the system is open to abuse. To say that it is a question of numbers wholly undermines the Home Office’s case for this.
The third point is that, in passing this Bill unamended, we are strengthening the hands of the trafficking networks. As has been pointed out a number of times, traffickers keep people under control with threats that they will not receive help if they reach out to the authorities. That is what this Bill is doing. It is saying that the UK Government will not give help to desperate people. To answer the question of the noble Lord, Lord Anderson, about our role as an advising Chamber, I know what we should do with this clause and this Bill.
I am very grateful to all noble Lords who have spoken. It has been a profoundly interesting and saddening debate, and I am sure we will come back to it on Report. Having said that, I beg leave to withdraw my amendment.
Amendment 19A withdrawn.
Amendments 20 to 23 not moved.