Amendment 6

Illegal Migration Bill - Report (1st Day) – in the House of Lords at 4:42 pm on 28 June 2023.

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Lord Carlile of Berriew:

Moved by Lord Carlile of Berriew

6: Clause 2, page 3, line 26, leave out “7 March 2023” and insert “the date on which this section comes into force”Member's explanatory statementThis amendment ensures the duty to deport in Clause 2 does not apply retrospectively to those who entered or arrived in the United Kingdom before the Bill comes into force.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, five of the amendments in this group have my name and the names of noble and noble and learned friends on them. They are designed to remove retrospectivity in relation to the duty to deport. I, and certainly two of my noble friends, have had the advantage of a meeting with the Attorney-General and officials in recent days to discuss this, and I hope I am not being too optimistic in hoping that we will hear something at least partly welcome from the Minister at the end of this debate. I shall be very disappointed if that does not happen.

Retrospectivity is the enemy of legal certainty. Legal certainty is a basic tenet of common law and of our statutory law. In order to save time, I am not going to cite various very eminent judges who have spoken on this subject. I will simply give the names of Lord Bingham, the noble and learned Lord, Lord Mance, and the great public lawyer the late Sir John Laws. I remind your Lordships that the House of Lords Constitution Committee has emphasised that retrospective legislation should be passed in very exceptional circumstances only. The proof of very exceptional circumstances should require more than mere assertion: it should require clear evidence. The fact that the retrospectivity asked for, as in this situation, may affect a relatively small cohort of people is no mitigation for the wrong of unnecessary retrospectivity.

The Government are not offering evidence. They are offering a refrain, and the refrain is: “Stop the boats”. But they have failed to offer any convincing evidence at all as to how the present circumstances are so exceptional as to justify the Bill’s wide-ranging retrospective powers. This is wholly unacceptable, given that the proposals represent a widespread retroactive overhaul of our asylum law, founded simply on a deterrent effect—“Stop the boats”—which is unproved.

Again, for the purposes of brevity, I will not deliver the whole speech I would have wished to—and will break the habits of a lifetime thereby. But I remind your Lordships that the deterrent effect is hardly borne out by the Government’s own figures for migrants detected crossing the channel in June 2023, the very month we are in. I was surprised they did not appear in the impact statement, because they were available before it. According to those figures, up to that point, 3,506 migrants were detected crossing the channel in June this year, compared with 3,139 in June last year—some 400 more, and 1,500 more than in June 2021. If one looks at the figures for April, May and June 2023 together, the evidence that this retrospective element is stopping the boats is a fairy tale, but one of those nasty fairy tales that keeps the victims of it awake at night because of the uncertainty of what will happen to them.

Furthermore, the Nationality and Borders Act 2022 addressed the same public policy issue and was not retrospective. As Dame Priti Patel MP, the then Home Secretary, said in the Second Reading debate on that legislation, the intention was that:

“Anyone who arrives in the UK via a safe third country may have their claim declined and be returned to a country they arrived from or a third safe country”. [Official Report, Commons, 19/7/21; col. 717.]

In other words, the policy intention was the same, but although there was a little bit of retrospectivity in that legislation, the vast majority of its provisions were not retrospective.

At the conclusion of Committee on this Bill, the Minister admitted that announcing that it applied from 7 March 2023

“may not have had a decisive impact”. [Official Report, 24/5/23; col. 967.]

Well, the evidence suggests that it has not had a decisive effect at all. At best it is equivocal, which cannot be a basis for proper retrospectivity. The evidence does not justify such broad and sweeping legislation, which seeks to apply penalties to those who cross the channel to claim asylum, being retrospective in its entirety. It would set a dangerous precedent whereby the Government could legislate retrospectively, based on no more than conjecture and anecdote.

I respectfully suggest, even at this stage of the Bill, that a dangerous precedent is being set, that we should be deadly serious about the fact that we are dealing with the law and with sound and historic legal practice, and that this is not a situation in which the case for retrospectivity is anywhere near made out.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, as the noble Lord has said, brevity does not mean half-heartedness today and these Benches whole-heartedly support the noble Lord’s amendments to which my name has been added. It is not only an academic, philosophical, juris- prudential matter; retrospectivity applied to this Bill will be cited as a precedent for the future and would have an impact in the real world for individuals.

As we have heard, the Nationality and Borders Act is not retrospective. Indeed, the two classes of asylum seekers for which it provided have not even been brought into effect. Ironically, the situation and the figures that have been cited have supported our points that it will not have the deterrent effect that has been claimed. It is a very thin claim. The weather in the case of the channel crossings, and TikTok’s policy in the case of Albania, did have an effect. That puts all of us in our place.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I will speak briefly to Amendment 10 and draw attention to my entry in the register with regard to support from RAMP for this and other groups of amendments.

I have lost count of the number of times I have asked where the child rights impact assessment is, only to be told that we will receive it “in due course”. It should have been available from the outset to help develop policy, and yet here we are at Report stage with no sign of it still. Without it, how are we supposed to assess ministerial claims that their policies are in the best interest of the child and that there is no incompatibility with the UN Convention on the Rights of the Child? Yesterday in Oral Questions I asked the Minister. All he could say was that:

“I am sure that it will be provided”.—[Official Report, 27/6/23; col. 574.]

When? After the Bill has gone through?

Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Conservative

My Lords, I have looked through these amendments but not put my name to any of them. I have to say that they—in particular Amendment 8—drive a coach and horses through much of what this Bill stands for. Therefore, I am going to ask my noble friend to make sure he resists them.

This is important because we face some very serious challenges in our society as a result of the rapid growth in our population. I will go over this issue only briefly because we are time-constrained, but I just remind your Lordships that this is already a relatively overcrowded island. Last year, we admitted permanently 600,000; the year before last, we admitted 500,000. Stoke-on-Trent has a population of 250,000, Milton Keynes 288,000 and Derby 259,000. If we are going to house those people properly—and we certainly should —we will have to build four Milton Keynes or four Derbies over just two years. On dwellings, we all know how fiercely fought this is. In 2001, there were 21 million dwellings in this country; there are now 25 million—in 20 years, we have built 4 million dwellings.

It is not just at that very high level. The fact that we are introducing hosepipe bans in the south-east of England now is because the population is rising so fast we are running short of water. When we debated this in Committee, I took a certain amount of incoming from the most reverend Primate the Archbishop of Canterbury. He said:

“everyone who has spoken so far has agreed, that we have to control migration. I do not think there is any argument about that, but does the noble Lord accept that of that 700,000 last year, or whatever the number turns out to be exactly, the Bill will cover only 45,000? The Bill is not about overall immigration”.—[Official Report, 24/5/23; col. 897.]

That is a fair point. However, the figure turned out to be 600,000 and it may well be that that 45,000 is 60,000, in which case it is 10%, not a sufficiently significant number, but the real challenge to us is that everybody thinks it is not their challenge. Everybody thinks it is somebody else’s challenge.

We have heard persuasive, dreadful, heart-rending speeches about the positions that people find themselves in—on behalf of interest groups of various sorts—and no doubt we shall hear them again. However, one group has essentially not been heard during our debates, and that is the 67.3 million people who live in this country, 18% of whom are from minority communities.

When I undertook my polling—which, as I have said to Members of the House, is freely available to anyone—I did not want it to be said that it was going to be old white Brexiteers living in the country, as opposed to young trendy hipsters living in the towns. In response to the question “The UK is overcrowded”, between 60% and 70% of people polled, across all social classes, all regions of the country and all age groups, felt that was the case. Every interest group, including those that are seeking to blunt the effect of the legislation before us, has to play its part in reducing the number. Unless we are seen to be responding to between 60% and 70% of our fellow citizens, uglier and nastier voices will emerge to capture that. We need to be conscious of that.

In my view, the amendments would punch holes in the bucket. How much water would flow out I do not know, but I hope the Minister will think very carefully before allowing the bucket to lose too much water because that way difficulties lie for us, for our communities and for generations ahead.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, in Committee I tabled a similar amendment to Amendment 10, so I will not say much now because I said it then. I listened with interest to what the noble Lord has just said, and I recognise that we do not want illegal migration. However, there are broader and more important issues.

Children have rights. A child who is unaccompanied comes to this country, sometimes quite young, and is settled here in local authority care, placed perhaps in a foster family or a residential home. They go to an English school and become fluent in English but then, at the age of 18, are then removed either to Rwanda—the only country with which there is an agreement apart from Albania, and Albanian children are unlikely to be in this group—or to some other country or home that they have fled. Quite simply, to uproot children at 18 is, as I said in Committee, cruel.

Photo of Lord Hacking Lord Hacking Labour

My Lords, I am afraid I have dropped my notes.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I strongly support Amendment 10, tabled by my noble and learned friend Lady Butler-Sloss. The sole objective of the amendment is to ensure that the Government fulfil their clear responsibility to protect the best interests of children under the UN Convention on the Rights of the Child. Article 3 of the convention provides explicitly that in all actions the child’s best interests must be a primary consideration, and that is what the amendment says. Article 20 requires that children separated from their parents be given special protection and assistance. Unaccompanied children seeking asylum in this country, as noble Lords know, will have escaped from the most appalling persecution, trafficking, modern slavery and other abominable experiences. The current Government are putting the reputation of this country at risk for years to come if they insist on rejecting Amendment 10 and others that seek only to ensure that this country respects our international obligations.

Photo of Lord Hacking Lord Hacking Labour 5:00, 28 June 2023

My Lords, I have found my notes—they were at my feet—and so will intervene now, if I may.

I support Amendments 6 and 10, and I hope all other noble Lords will similarly support them. I am responsible for Amendment 8. It has been suggested that this is a busting amendment. I do not intend to put it to a vote but I intend to tell your Lordships the importance of my amendment.

It is a little difficult for me to make this intervention because I greatly respect my Front Bench and do not like being in fundamental disagreement with them. However, I am making this intervention because I believe we should all be aware of the gross injustice that this Bill will impose, when enacted, on thousands of refugees arriving in this country. Noble Lords should also be aware that we have the power, under the Parliament Acts, to delay this process as far as to May or June of next year, thereby allowing the Government to have a big rethink.

I wish to be cognisant of the wishes of your Lordships’ House and not to speak at length, and I certainly do not want to upset my Front Bench and Chief Whip by going on too long, but this will affect thousands and thousands of refugees, and we should be aware of what we are doing. That is why I have tabled an amendment to remove Clause 2. In Committee, this amendment was supported by the noble Lord, Lord German, and my noble friends Lady Chakrabarti and Lord Coaker. I am now being left to table it on my own.

What is the injustice? Let me trace it through one set of refugees: the Afghan refugees. The information relating to them is contained in the official government statistics for 2022. I do not have the figures for 2023 to bring it up to date—I do not think they have even been issued. In 2022, 8,633 Afghan refugees sought asylum in this country. Most significantly, 97% of them were granted asylum or other status so that they could remain in the United Kingdom. Compare that with the Albanian refugees—there are rather more of them, at around 12,000—76% of whom were refused entry.

It can be assumed that, in 2023, the same number of Afghans, or possibly more, will arrive in this country. We can also assume that there will be the same proportion of genuine refugees, and that all of them will have come to this land in the genuine belief that there is the availability of asylum for them—the people smugglers are hardly going to tell them otherwise. This point was supported by paragraph 33 on page 13 of the impact assessment.

The further point I ask your Lordships to note is that, under the Taliban, there is a lot of evidence of mistreatment of Afghans, particularly women, and particularly relating to education. I also ask noble Lords to take note that, in Afghanistan, there is terrorism, persecution, false imprisonment and torture, hence the very large number of Afghans who got asylum. I remind noble Lords that that figure is 97%.

We should also look at their long journey to this country. The measured distance between Kabul and Calais is 4,168 miles—nearly twice the journey of crossing the United States of America. We do not know precisely how they carried out that journey but, inevitably, it must have been through Iran and Iraq—two countries which are not friendly to passengers—and possibly on through war-torn Syria. Somehow or other, they managed to reach the Mediterranean and Europe, via Greece or Italy. Their mode of transport must have been fairly limited. If they had the money, they might have been able to take a bus, but, in the main, they must have had to get the indulgence of lorry drivers and accept lifts from them. In my view, one has to be left with an admiration of the Afghans who made it to Calais. The Government make much of the illegal entry of the boat people, but how else could they have got here? Should they have obtained UK visa forms in the depths of the mountainous country of Afghanistan? How on earth could they have made the journey here, except in the circumstances they have?

The consequences of the provisions of the Bill will simply be dire for all refugees. Let us briefly look at them. First, without any investigation about their asylum or other status, they are to be shipped immediately, under Clause 2, to Rwanda—it could hardly be back to their home state, which is the other alternative. Rwanda carries a capacity of about 30,000 refugees. Secondly, once they get to Rwanda, for example, they will be barred from UK asylum status and left with Rwanda asylum status, if that does them any good. Thirdly, they will be branded as illegal immigrants and barred for ever from entering the UK. Their only sin has been that they travelled here from Afghanistan without the necessary paperwork and crossed the channel in a rubber dinghy, yet on arriving here they were seeking to escape the terrors—this is the important point—of the Taliban Government, probably in large numbers.

I will not detain your Lordships further, except to make it plain that, if we allow the Bill through in its present form, it will impose terrible consequences on a lot of refugees who have no opportunity to establish their asylum status. I could go through the mechanism of the Parliament Acts—I have my notes for it—but it suffices to say that, under them, we have the power to stop this, and we should at least consider it.

Photo of Lord Clarke of Nottingham Lord Clarke of Nottingham Conservative

My Lords, I will be brief because my timetable has not allowed me to take a significant part in the Bill hitherto. However, I have attended quite a lot of the debate, which I started attending in a very troubled state of mind, completely uncertain about what I would do about this startling proposal. I sat through quite a bit of the Committee debate, and have listened today to the debate on the two amendments we have had, and I think that the underlying problem is being missed. We all agree that there is a huge problem with illegal migration and that, if we cannot find a solution, people will die in the channel in considerable numbers—they go up each year—by taking risks as they come here. We all admit that it is a global problem, so, if we suddenly become an easier country than others, we are likely to find significant pressures.

We all want to retain our excellent reputation—it is not unblemished, but better than those of most other European countries—for good race relations and an integrated community. During my lifetime, Britain has become a multicultural, multiracial society, and I am glad to say that I think the majority of my fellow citizens feel that the contribution that has been made, and the improvements to our society, are quite substantial as a result. As my noble friend said a moment ago, concern about the dinghies and old fishing boats bobbing on the ocean will, if we are not careful, rearouse all the bad feelings that we used to know, which we remember only too well from 20 or 30 years ago. That is why more than 60% of our population wish to stop illegal immigration.

I have tried to listen for a solution during the debates on the two groups of amendments but, sadly, the only solution being put forward is the rather extraordinary one by the Government that we simply cease to entertain illegal immigration and deport to safe places. I have not heard a single alternative policy put forward. I am not sure that it will work—I think I said that at an earlier stage—but I am still to hear anybody else offer anything but the possibility of litigation or huge numbers of people coming here as the practice of trying to get over the channel grows. We have to face up to our responsibilities. I am a lawyer and have a huge respect for law—abiding by the rule of law is one of the most important underlying principles of our constitution—but we cannot simply produce a lot of legalisms to shoot down the proposal without making any suggestion whatever of a practical kind that is likely to impact a great national problem, which we share as part of a global problem.

Finally—I am sorry that I have spoken for longer than I intended—I give this Government credit, not for coming up with the extraordinary idea of Rwanda but for making our contribution. We have done well with Ukrainian and Hong Kong refugees and admitted a lot of people from Afghanistan, although we could have made a better job of that. We are making our contribution to the global problem and taking a huge net increase to our population each year; we are getting some benefit, as it is helping our workforce. We are not becoming a walled-in, closed country. That is a good British contribution to a tremendous problem for the whole of the western world.

With no alternative policy in sight at all, this latest legal argument, which lies behind the key amendments here, is simply not a good enough reason for rejecting this policy. I do not know whether the policy will work, but we can no longer simply do nothing. To retreat into hours and hours of legalistic debate—which is very interesting, if you are interested in that kind of thing—is not rising to the occasion. Therefore, with a certain reluctance, I will yet again support the Government, which is not always my habit in this House.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I did not intend to speak, but I cannot let this opportunity to refute what has just been said by the noble Lord, Lord Clarke, go unanswered. There are alternatives. One of the real alternatives is that you have a proper process, and I am disappointed to hear the noble Lord—someone I admire and have great affection for—speak about the rule of law while forgetting what it means. It means that people must have a process to decide on whether their rights will be recognised. On asylum seekers, we have written our names at the bottom of—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

Let me complete a sentence. We put our names at the bottom of the refugee convention saying that we would provide asylum to people, but you need a decision-making process to decide those who are legitimate and those who might purely be economic migrants. We will deny people that due process and the rule of law. That is where I disagree so sincerely with the noble Lord, and where I say that a process has to be put in place that is speedy and effective, and that it should be allowed for.

Photo of Lord Howard of Lympne Lord Howard of Lympne Conservative

I am grateful to the noble Baroness for giving way. Does she not recognise that those who apply through the legal, safe processes, and whose applications are rejected, will not still try to get to this country and will not be able to pay the people smugglers to put them on boats that cross the channel?

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

We had a very good asylum process. Over the years of austerity, it was cut to the bone, including cuts to the number of people with the skills to assess those asylum applications. Now, the way to reverse that is to put in place, once again, good people making those assessments on the applications being made by people seeking asylum in this country and immediately, promptly, making decisions. Then, if the applications are not properly made, people can be deported to other places—but we cannot deny them due process, and that is what we are doing in this business of not letting people make an application and treating everybody the same. That is an affront to the rule of law.

I am amazed to hear lawyers such as the noble Lord, Lord Howard, and my noble friend Lord Clarke saying that this is abiding by the rule of law. You are not abiding by the rule of law if you do not give people the opportunity of asserting their rights. In international law, asylum seekers have rights. We signed up to that proudly and are admired around the world for doing so. We are diminishing the respect we have by doing this kind of thing. It amazes me that the impact statement makes no mention of what this is going to do to our reputation around the world. As someone who now practises with the International Bar Association in countries around the world, I know that this is what we are respected for. How do we speak to China about its breach of the treaty we made with it over Hong Kong? How do we speak with any authority when we are behaving in this way with regard to international law now?

Photo of Baroness Lawlor Baroness Lawlor Conservative 5:15, 28 June 2023

My Lords, I am concerned that the amendments in this group would, in their different ways, undermine the purpose of the Bill, which is to deter people and prevent them using unsafe and illegal routes. The date from which it will apply is 7 March 2023. I disagree with the noble Lord who has tabled Amendment 6 and others to change that date: 7 March is very clear and not subject to the time your Lordships’ House devotes to scrutinising the Bill, often until the late hours of the day or the early hours of the next morning. Tackling this sort of migration is an urgent matter. People are losing their lives. It is to be dealt with now, not delayed or put off to another date.

On Amendment 10, on unaccompanied children who reach the age of 18 in this country, removal at 18 will in some way deter this sort of illegal immigration for those not removed before the age of 18. The problem of unaccompanied children is one I take very seriously. These are very unsafe routes. It is wrong to tolerate and, in effect, encourage them. If unaccompanied children are allowed to remain, there will be an incentive to send them here, despite the risks on these routes. The assumption will be that the children will be housed, fed and educated in the UK, and that this may bring them advantages in life even if they are removed at 18, perhaps providing grounds for their families to join them.

There is a further complication in that Amendment 10 introduces the idea of judging the best interests of the person at the age of 18. Though I accept that the measure of “best interests” has been adopted in this country in many cases, it can and does give rise to subjective judgments that raise more questions than they resolve, and I am not sure it will not do so in this Bill. More to the point, we do not owe it to anyone who enters the country in defiance of immigration controls to act in their best interests, when doing so has financial costs that must be borne by others. I therefore have grave reservations about these amendments, given that they would remove the clarity about when the measure comes into force and when and to whom it applies.

Photo of Baroness Altmann Baroness Altmann Conservative

My Lords, I had not intended to speak but I ask noble Lords to indulge me for a moment. I have great sympathy with my noble friend Lord Clarke and, indeed, with the words of my noble friend Lord Hodgson. However, for me, a resolution is available, but it would require this country, if necessary, to show global leadership and co-ordinate across the globe the actions that we can all take; all countries have the same problem. Rather than sitting here as an island and saying, “You’ve got to go somewhere else”—where else?—I would hope that we can find a way to show global leadership and organise safe and controlled measures that will deal with this international problem without needing, as the noble Baroness, Lady Kennedy, said, to break international commitments we have made.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, the second group of amendments centres on the major changes this Bill creates, particularly the duty to remove. We tabled Amendment 9, in the name of my noble friend Lord Coaker, in Committee and hoped to hear from the Government, but since we last discussed this issue significant progress has been made on putting in place returns agreements. That is the answer to the issues raised by the noble Lord, Lord Clarke, and the noble Baroness, Lady Altmann: putting in place returns agreements and negotiating them vigorously, so that people can be deported as they are now. Nobody on this side of the House has said that should not happen, but greater effort needs to be made to put them in place.

Turning to Amendment, 6 on retrospection, which the noble Lord, Lord Carlile, spoke to, I hope he will get the response he is looking for from the Minister; we are behind him in seeking that response. As he said, retrospectivity is the enemy of legal certainty. He quoted some powerful figures showing that the threat of stopping the boats is not having any effect on the number of people crossing the channel. I agree with the noble Baroness, Lady Hamwee, that brevity does not mean half-heartedness, and I will carry on being brief in addressing the points raised.

My noble friend Lady Lister challenged the Minister again on the child rights impact assessment; I look forward to discovering whether he can give a more convincing answer than he managed yesterday. The noble Lord, Lord Hodgson, who I would count as a friend outside this Chamber, gave a speech he has given on a number of occasions, concerning the overall figures, which are indeed very serious. As he fairly pointed out, illegal migrants, who are the subject of the Bill before us, account for roughly 10% of the overall figures. Everyone on this side of the Chamber—indeed, throughout the House—acknowledges that there is a very serious issue. The focus right now is illegal migration, although I acknowledge the point he made about the wider context.

The noble and learned Baroness, Lady Butler-Sloss, spoke compellingly, as ever, about the rights of the child. I find it mind-boggling that she was having breakfast with my noble friend Lord Coaker this morning in Warsaw. Both gave compelling speeches this afternoon. My noble friend Lord Hacking also spoke with passion, and I am glad that he will not be putting his amendment to the vote today.

This has been a relatively brief debate and I look forward to hearing the Minister’s response.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth The Parliamentary Under-Secretary of State for the Home Department

My Lords, Clause 2 is the centrepiece of the scheme provided for in this Bill. Without it, the Bill as a whole would be fundamentally undermined. It therefore follows that I cannot entertain Amendment 8 proposed by the noble Lord, Lord Hacking, who frankly conceded its wrecking effect in his speech. At its heart, this Bill seeks to change the existing legal framework so that those who arrive in the UK illegally can be detained and then promptly removed, either to their home country or to a safe third country. As my noble friends Lord Clarke and Lord Howard, both fellow lawyers, so powerfully put it, we cannot sit by and do nothing.

As the noble Lord, Lord Carlile, has set out, Amendments 6, 17, 22, 23 and 88 address the retrospective effect of the Bill. The second condition set out in Clause 2 is that the individual must have entered the UK on or after 7 March 2023—the day of this Bill’s introduction in the House of Commons. In effect, the noble Lord’s amendments seek to do away with the backdating of the duty to remove, as well as of other provisions in the Bill, so that they apply only to those who illegally enter the country from the date of commencement rather than from 7 March.

As I set out in response to the same amendments in Committee, the retrospective nature of these provisions is critical. Without it, we risk organised criminals and people smugglers seeking to exploit this, with an increase in the number of illegal arrivals ahead of commencement of the Bill. This would likely lead to an increase in these unnecessary and dangerous small boat crossings and could place even more pressure on not only our asylum system but our health, housing, education and welfare services. This risk will only grow as we get closer to Royal Assent and implementation. We must take action to prioritise support for those who are most in need and not encourage people smugglers to change their tactics to circumvent the intent of this Bill. I recognise that the retrospective application of legislation is not the norm and should be embarked upon only when there is good reason. I submit to the House that there is very good reason in this instance, given the scale of the challenge we face in stopping the boats.

Amendment 7 in the name of the noble Baroness, Lady Ritchie, deals with entry into the United Kingdom via the Irish land border. As is currently the case, tourists from countries which require visas for them to come to the UK as visitors should obtain these before they travel. That said, I recognise the issue and accept that some individuals may inadvertently enter the UK without leave via the Irish land border. We are examining this issue further. I point the noble Baroness to the regulation-making power in Clause 3, which would enable us to provide for exceptions to the duty to remove where it would be appropriate to do so.

Amendment 10, spoken to by the noble and learned Baroness, Lady Butler-Sloss, relates to the removal of an unaccompanied child once they reach the age of 18. To permit their removal only if it was in their best interests, even when they reach 18, would undermine the intent of this Bill. The Government must take action to undercut the routes that smuggling gangs are exploiting by facilitating children’s dangerous and illegal entry into the United Kingdom. As my noble friend Lady Lawlor indicated, this amendment would increase the incentive for an adult to claim to be a child and encourage people smugglers to pivot and focus on bringing over more unaccompanied children via dangerous journeys. The effect would be to put more young lives at risk. That said, where a person enters the UK illegally as a young child, Clause 29 affords discretion to grant them limited or indefinite leave to remain if a failure to do so would contravene the UK’s obligations under the ECHR, which would, among other things, take in any Article 8 claims. I hope that provides some reassurance to the noble and learned Baroness.

With regard to Amendment 9, as I indicated in Committee, formal returns agreements are not required to carry out removals, although I agree with the noble Lord, Lord Ponsonby, that returns agreements can be useful to improve returns co-operation. We will seek to negotiate these where appropriate.

As of May 2023, the Home Office has 16 returns agreements in place. Recent additions to the list include Albania, India, Nigeria and Pakistan. In addition, we have our world-leading migration and economic development partnership with Rwanda. The Government carefully evaluate the advantages of engaging in negotiations to formalise and establish a returns agreement, taking into account the potential requests that the other party would seek to include in the agreement. The Government must retain ultimate discretion over the amount and detail shared, and it would not help the UK’s negotiating position to be setting out its negotiating strategy in public.

I have some sympathy for the spirit, if not the letter, of this amendment. Of course, returns agreements have an important role to play, but legislating in this way will not help progress negotiations with other countries—quite the opposite. I therefore invite the noble Lord, Lord Carlile, to withdraw his amendment. If he is minded to test the opinion of the House, I would urge noble Lords to reject the amendment.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development), Liberal Democrat Lords Spokesperson (Foreign and Commonwealth Affairs) 5:30, 28 June 2023

Perhaps I might ask the Minister for clarification. He referred to the 16 agreements, and he knows I asked him specifically for the list of those 16 countries, because the House of Lords Library could not find them for me. The Minister obviously did not think it necessary to write to me between Committee and Report, so can he list those 16 countries now?

Photo of Lord Murray of Blidworth Lord Murray of Blidworth The Parliamentary Under-Secretary of State for the Home Department

As the noble Lord will recall, during our exchange I made clear that not all of those 16 agreements are in the public domain, so I am not going to provide him with the list he seeks.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Crossbench

My Lords, I am very disappointed at the Minister’s response, for two reasons. First, despite being asked to produce evidence to show that retrospectivity has some factual basis for its inclusion, he has failed to answer that challenge, and he must have done so deliberately. I am afraid that leads me to be very suspicious about whether there is any such evidence whatever of a credible nature.

The second reason I am very disappointed in the Minister is that he knows perfectly well that it would be open to him to suggest a date other than the date of the commencement of the Act: for example, the day when this Bill does pass, which could be within days, or even today. That would, of course, be an element of retrospectivity, but it would be a considerable mitigation of what is provided in the Bill.

Given that discussions have taken place on these issues, I am very surprised that he has simply remained his intransigent self on this issue. The notion that a glut of small boats will be crossing the channel if the period between March and, say, now is not the subject of retrospectivity, is, frankly, absurd, ridiculous and completely lacking in any kind of credibility. I ask him to think about that; I am perfectly prepared not to press the amendment if he stands up and says he is prepared to consider that issue seriously and enter into discussions with other Ministers. Otherwise, I will test the opinion of the House.

Ayes 219, Noes 177.

Division number 2 Illegal Migration Bill - Report (1st Day) — Amendment 6

Aye: 217 Members of the House of Lords

No: 175 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment 6 agreed.

Amendments 7 and 8 not moved.

Amendment 9 not moved.

Clause 3: Unaccompanied children and power to provide for exceptions