Baroness Lister of Burtersett:

Moved by Baroness Lister of Burtersett

At end insert “, and do propose Amendment 7B in lieu—

7B: After Clause 4, insert the following new Clause—“Age assessment of unaccompanied childrenIn section 57 of the Illegal Migration Act 2023 (Decisions relating to a person’s age), insert after subsection (6)—“(6A) If a person is to be removed to the Republic of Rwanda, subsection (6) does not apply and in this section “relevant authority” means a local authority, within the meaning of Part 4 (age assessments) of the Nationality and Borders Act 2022, which has conducted an age assessment of the person under section 50(3)(b) of that Act.”””

My Lords, my starting point is the treaty, which makes it clear that it does not cover unaccompanied children, as emphasised by the Minister for Countering Illegal Migration on Monday. My sole purpose has been to ensure that, in so far as it is possible, this treaty intention is upheld: that no unaccompanied child is removed to Rwanda because they have been mistakenly assessed as an adult. Wrongful age assessment happens all too frequently, given that the only safeguard, referred to repeatedly by the Minister, is that two immigration officers independently determine age on the basis of a brief assessment of physical appearance and demeanour, which the Home Office itself concedes is notoriously unreliable.

The original amendment would have ensured the status quo ante: that no age-disputed child would be removed to Rwanda until any legal challenge through domestic courts and tribunals was exhausted, and it would have enabled such a challenge to be made on the basis of the facts, not just the law. This amendment in lieu is much more modest and in effect meets the Commons’ formal objection to the original amendment. It would permit an age-disputed child to be removed to Rwanda with a pending challenge on a limited basis, but only if a proper age assessment has first been carried out by a local authority. This would ensure that a Merton-compliant assessment is undertaken, and it is only at this point that so-called scientific methods would come into play.

It was clear that MPs including Dame Priti Patel and Mrs Elphicke, who argued against the original amendment by lauding scientific methods, did not understand that age-disputed children would be sent to Rwanda without any use of scientific methods, never mind the existing Merton-compliant methods. Yet as the Minister in the other place himself acknowledged on Monday,

“assessing age is inherently difficult”.—[Official Report, Commons, 18/3/24; col. 666.]

In this House, the Minister stated on Report that this is “a challenging task”, and that a

“combination … of … methods will deliver more accurate age assessments”.—[Official Report, 6/3/24; col. 1584.]

However, without this amendment, there could be no combination of methods, just a brief, visual assessment that belies the challenging and difficult nature of the task.

I will not repeat all the arguments—they were addressed on Report to the satisfaction of noble Lords, who voted in support of the original amendment by a majority of 84 from all Benches—but I point out that, if an adult pretends to be a child, as feared by some Conservative MPs and Ministers, they will still be sent to Rwanda, but following a proper assessment of their age. This is not an opening of the floodgates, as the Minister put it.

On the new argument—that it would be wrong to treat differently those to be removed to Rwanda from those to be removed elsewhere—I simply quote back the official response to the Constitution Committee:

“It is legitimate to treat people differently in different circumstances”.

The different circumstances here are that there is a treaty that makes clear that unaccompanied children are not covered by it.

This boils down to a simple choice that we face: either we can risk unaccompanied children being sent to Rwanda on the basis of unreliable, quick, visual assessments—despite the treaty making it clear that they should not be—or we can introduce a minimum safeguard to ensure that, at the very least, there is a proper age-assessment process that reduces the risk of such children being removed erroneously to Rwanda. If we believe in safeguarding the best interests and welfare of children, surely the least that we can do is pass this compromise amendment. I beg to move.

My Lords, I warmly support Motion E1 moved by my noble friend Lady Lister. I will be very brief. This House has consistently supported the rights of children in relation to asylum. These are the most vulnerable people in the whole of the asylum system. If a mistake is made, the consequences would be out of all proportion to the damage done if a mistake is made in the other direction. That is to say, to send a child who is wrongly assessed as being an adult to Rwanda would be an appalling dereliction of our responsibilities to vulnerable young people. If the mistake is made the other way and one more person stays here, I honestly do not think that it will make much difference, because, in any case, the majority of asylum seekers will not be sent to Rwanda even if this legislation were to go through. It is such a modest proposal—almost too modest, if I may say that to my noble friend—but it would be in keeping with the traditions of this House to take a stand in supporting unaccompanied child refugees.

I support the noble Baroness, Lady Lister, and the noble Lord, Lord Dubs. It would be something of a disgrace if we did not take these measures to protect, to a very limited extent, unaccompanied asylum-seeking children.

My Lords, I will speak to Motion G1. I declare an interest as co-chair of the parliamentary group on modern slavery and vice-chair of the Human Trafficking Foundation.

It is compassion that leads me to insist on the amendment that I put down on Report and bring back again now. We are talking about a group of people who are wholly different from any other group about which the Minister and others have spoken. They do not come here voluntarily, in the normal sense; they are brought here. Some of them are compelled to be here. They may think that they will not be victims, but that is why they are on a boat or in the back of a lorry. This group has no choice. It is not an issue of incentive—which the Minister speaks about—and how on earth can it be an issue of deterrence, since they are not in control?

In the past, the Government have offered evidence that the system of the national referral mechanism is subject to abuse. So far, I think that we have heard of only two cases of abuse out of the thousands of people who have gone through the national referral mechanism. The proposed arrangements in the Illegal Migration Act and the Nationality and Borders Act are absolutely inadequate. How on earth is it fair that someone in this group of people, many of whom will have gone through the traumatic experience of already being a victim, should be re-victimised by being sent to Rwanda? I ask the Members of this House to look at this most disadvantaged and vulnerable group of people, who are compelled to this country, and support my Motion.

My Lords, I will speak to Motion H1 and Amendment 10B in lieu. Having done so previously, I do not intend to rehearse the moral imperatives that underpin this amendment. In responding to the Minister, I will focus on the chasm that yawns between what the Minister in the other place said about what the Government might do post the current reviews of ARAP decisions of ineligibility and their unwillingness to accept this amendment that accomplishes their stated goal: to meet the debt of honour we owe to those who risked their lives in assisting the UK forces.

We are, once again, in a position where we are asked to deny the fruits of our reason and accept that black is white. First, we are asked to accept that, simply by legislative assertion, the Government can turn Rwanda into a safe country for all time, regardless of the facts. Secondly, having followed the somewhat convoluted logic-chopping of the Minister in the other place, we are told that men who braved death, courted injury and are forced into exile as a result of assisting our Armed Forces in fighting the Taliban are to be punished for arriving here by irregular routes—even where, owing to wrongful refusals on our part or possible malfeasance on the part of the Special Forces, they have been compelled to take these routes in the first place.

I will point out the inconsistencies in the reasoning of the Minister for Countering Illegal Migration, when he addressed the predecessor of my Amendment 10B on Monday. In outlining why he wished to refuse it, he said:

“Anyone who arrives here illegally should not be able to make the United Kingdom their home and eventually settle here. A person who chooses to come here illegally, particularly if they have a safe and legal route available to them, should be liable for removal to a safe country”.

What do the words “chooses” and “particularly” mean in that statement, when you are fleeing for your life, having endangered it because of service to this country, and then having been wrongly refused a relocation visa? What sort of choices are available? “Particularly” tacitly concedes the existence of such scenarios in which safe and legal routes are not available and have been wrongly closed off, but the statement determines that we will punish the victims of our own incompetence regardless.

There are two classes of person to whom this amendment applies. First, there are those in Afghanistan and Pakistan whom we are told are awaiting review of their previously determined applications. They should be determined as eligible and granted a visa, and will have no reason to take an irregular route. Secondly, and more importantly, a much smaller number whom this amendment seeks to protect are already here. These people, far from being deterred by this Government’s action, were compelled by it to seek irregular routes or face certain death or torture.

For the last year, the Independent, Lighthouse Reports and Sky have been exposing cases where, owing to the Home Office’s bureaucratic sclerosis and errors—in fact, I think that it is mostly the MoD’s sclerosis and errors—and alleged interference on the part of the Special Forces, Afghans who served either in the Triples or otherwise alongside our Armed Forces were wrongfully denied the ability to relocate and were forced to arrive here by other means. In Monday’s debate in the other place, the Minister for Countering Illegal Migration suggested—not promised—that regulations may be made under Section 4 of the Illegal Migration Act to ensure that these

“people receive the attention that they deserve”.—[Official Report, Commons, 18/3/24; cols. 667-68.]

If that is the intention, what has stopped the promulgation of these regulations before now? The Government have known for at least a year that these people existed and have been on notice for a year that the promulgation of these regulations would be necessary to accompany the Bill, if they had intended to use them to solve this problem.

Effectively, these people are being asked to trust the Ministry of Defence, the Home Office and, more broadly, the British Government—the same bodies that wrongfully refused their relocation visas in the first place, failed to protect them and have, in many cases, repeatedly threatened them with deportation to Rwanda. The idea that they would now repose their faith in the Home Office is absurd. In this context, trust is a currency whose value is now completely debased. Rather than wait for these regulations, why not, as the former Lord Chancellor, Sir Robert Buckland, suggested in Monday’s proceedings, simply accept this amendment, which precludes the need for their development?

Which offence do we believe to be more egregious? That of fleeing to a country that asked you to serve alongside its troops via an illegal route, having already been let down by that country’s administrative incompetence? Or having the power and means to pay a debt of honour to those we have exhorted to serve alongside us in our interests but refusing so to do? I believe the latter is shaming, and it is why I will be seeking, in moving my revised amendment, to test the opinion of this House and have the other place examine it, and the consciences of its Members, again.

My Lords, I support all the amendments in this group, but I would like to underline how important it is to support Amendment H1 in the name of the noble Lord, Lord Browne of Ladyton. I remind noble Lords of the critical difference it would make, by applying an exemption to those who have been employed indirectly in support of the UK Government in Afghanistan, as well as those employed directly.

To illustrate, very briefly, how this makes a difference, I can tell noble Lords that, for the past few weeks, I have been in correspondence with a former Afghan interpreter who was employed by an international agency that had a contract to provide interpreting and translation services to DfID, other government departments and the Armed Forces. His application under ARAP for relocation to the UK was rejected, as was his appeal. My understanding is that this was because he was employed not directly by HMG but through a third party—the agency. In his words:

“I endangered my life and future working for the UK Government in Afghanistan. Everyone in Afghanistan knew I worked for the UK Government. Being rejected by ARAP is an insult to my faithful services to the UK Government”.

This individual has already faced so many threats in Afghanistan that he has fled to a third country, where sadly he still lives in hiding and in fear. Having had his ARAP appeal rejected, he has told me that his situation is now so urgent and unsafe that he feels he has no alternative but

“to take the dangerous route to the UK by land, and if I get killed on my way to the UK it will be better than the problems I am faced with right now”.

If he manages to get here in one piece, despite having no alternative but to come via an unofficial route, he really does not deserve to have his loyalty to the UK rewarded by being sent to Rwanda. This amendment would protect him and, potentially, others like him. I implore noble Lords on all sides of the House to support this amendment, which would acknowledge his faithful service and his willingness to risk his life for us in Afghanistan, by doing what morally is just the right thing to do.

My Lords, the amendments in this group highlight the cruel reality of this policy for some of the most vulnerable people in the world. What we need is an asylum process that identifies risks and vulnerabilities and then makes a decision on them when people are here.

We know very well that there are people in this country, including Afghans, who are on a waiting list to have their cases heard. People whose age has yet to be determined should not be sent to Rwanda while they are yet to be confirmed as a child. The Government have agreed that it is wrong to send unaccompanied children to Rwanda. So, if that is the case, they need to be extremely careful that they do not do that inadvertently. Children are not cargo that can be shipped from one country to another if the Government later decide they have made a mistake and someone is in fact a child after all.

Data collected by the Helen Bamber Foundation in 2022 found that, of 1,386 children who were initially assessed as adults by the Home Office, 867—that is, 63%—ended up being assessed as children by local authorities. That is the size of the error range that we have to be careful about. The key here is not adults being wrongly assessed as children, but children being wrongly treated as adults and therefore not being safe- guarded appropriately.

The prospect of victims of modern slavery being sent to Rwanda is again deeply disturbing. These are people who often had no choice about coming to the UK. It follows, therefore, that any level of deterrent directed at them, rather than the criminals who brought them here, is wrong. Reducing the rights and protections of victims of modern slavery increases the power the criminals have over them. The amendment we are discussing now shows that the Bill was never about saving lives; it is about trying to save the Government’s policy, which it never will. That is why these amendments are so crucial.

I ask the Minister: what information do the Government find and get from people who have been coming to this country since 20 July 2023, after the Illegal Migration Act received Royal Assent? What information is provided and sought by the Home Office? There are some, we hear, who think that their case for having an asylum hearing is being progressed. There are people who are asked the sorts of questions that would lead them to believe that their asylum process is being progressed. Could the Minister tell us precisely what the Home Office finds out in order to be able to determine whether people are young people—children—or whether they are victims of modern slavery or Afghans seeking our support?

We do not know what we are asking of these people and how questions are being put to them, whether they are given long interviews, whether they have access to a lawyer—all that sort of information. It means that we do not understand, at the same time as we are being told that all this policy will be put in place by the Bill—and I fear that we will still be waiting. In terms of the Afghans, having a promise to look at something in a few months’ time is not the sort of immediacy we need to deal with this problem, which we need to deal with right now.

So these amendments are critical for these three groups of very vulnerable people, and we would be mistaken if we did not agree them if noble Lords press them to a vote.

My Lords, it is a pleasure to follow the noble Lord, Lord German, and I very much agree with the remarks he made. The Government has got themselves into a right mess with respect to this flagship Bill—partly caused by the fact that they have simply not been listening to the very serious and constructive amendments that noble Lords have tabled to it.

I ask again, because I did not get an answer from the noble and learned Lord, Lord Stewart: what happened to the Government’s plan to discuss this Bill next Monday in the other place and then bring it back on a further round of ping-pong next Tuesday? What happened to that particular plan? The Government are delaying their own legislation and people keep asking me why they are doing it. I do not know, so I am asking the Minister. Why are the Government delaying it until after Easter, when they could have brought it back next Tuesday? Were the noble Lord, Lord Sharpe, and the noble and learned Lord, Lord Stewart, asked about it? Did they put their views forward or is it simply something that came out of the blue? I know that government Members were asked to be here next Tuesday and then it was stopped. I do not know the answer and people keep asking me. So, I am asking the Government again: what has happened with this flagship, emergency piece of legislation, such that the Government have delayed it themselves? The only defence they have is to turn around and blame us for blocking it, when we have said all along that we will not block it.

I ask again because I need to know the answer, since Conservative Members keep asking me and I say, “Well, ask your own Front Bench”—mind you, those here will not know the answer either. Somewhere along the line, there is a serious point to be made on why the Government are delaying their own Bill by not providing time next week.

I support the remarks of my noble friend Lady Lister on Motion E1 and her very serious points about age assessment. I welcome the anti-slavery amendment tabled by the noble and learned Baroness, Lady Butler-Sloss, in her Motion G1. I make no apologies for saying again that I am astonished that Conservative Members of Parliament in the other place, Conservative Peers and others are driving a coach and horses through the Modern Slavery Act, an Act that as a proud Labour Minister I call one of the proudest achievements of a Government who happened to be a Conservative Government. It was flagship legislation that has been copied all over the world, but, in Bill after Bill over the last couple of years, we have seen a gradual erosion of some of the fundamental principles that drive it. I will not repeat the points made by the noble and learned Baroness, Lady Butler-Sloss—I should say that I am a trustee of the Human Trafficking Foundation, as mentioned in the register of interests—but I find that incredible. I hope that noble Lords will take account of the further amendment that the noble and learned Baroness has tabled.

I congratulate my noble friend Lord Browne on his Motion H1. I am incredulous that the Government could not accept his amendment in the other place. I think it astonished not just this side of the House but all sides of the House that, even if they did not accept his amendment, they could not find a way when considering it a few days ago of ensuring that this country met its debt to those people who had fought with us when we needed them to. Many of them have been excluded from that support. That is a stain on our country and should have been resolved as soon as possible. The Government had it within their power to do that last week but, as with the other nine amendments, they turned it down. I simply do not understand that.

I accept the words of the Minister, which he will have said in good faith, that this will be revised, looked at and brought forward in due course, and that regulations and secondary legislation will be used. However, there is absolutely no excuse for the Government of the day not standing up in here—they did not do it in the other place—and saying, “We will honour those who honoured us by ensuring that they are protected, and to do that we will accept Lord Browne’s amendment”. They could have done that today, and it would have meant that we had it in the Bill.

Notwithstanding that the Government clearly will not do that, I hope that noble Lords in vast numbers will support my noble friend’s amendment so that when it goes back to the other place to be considered—whenever that will be—Members there will have the opportunity to honour the debt that we owe to those who fought with us in our time of need in the war in Afghanistan. We owe it to them. As the noble and gallant Lord, Lord Stirrup, who is not in his place, said, in other conflicts to come, when we need support and help, what are we to say to translators, lorry drivers, interpreters and those who are fighting with us? Do we say, “Don’t worry, this country will support you in the aftermath of it?” They will look back at what we have done in Afghanistan and wonder whether we can be true to our word. We should resolve this and support the amendment. I hope that we do so in vast numbers.

My Lords, I am very grateful once again to noble Lords for their contributions and acknowledge the points that have been made. However, the Government are unable to accept these amendments.

It is worth me starting by again reading into the record Article 3(4) of the treaty for the avoidance of further doubt. It states that:

“The Agreement does not cover unaccompanied children and the United Kingdom confirms that it shall not seek to relocate unaccompanied individuals who are deemed to be under the age of 18. Any unaccompanied individual who, subsequent to relocation, is deemed by a court or tribunal in the United Kingdom to either be under the age of 18 or to be treated temporarily as being under the age of 18, shall be returned to the United Kingdom in accordance with Article 11 of this Agreement”.

The noble Baroness, Lady Lister, acknowledged, as I have from this Dispatch Box, that assessing age is challenging. That is why the National Age Assessment Board, which I went into in some detail in my opening remarks, was launched in March 2023. I will repeat some of those remarks.

The board was launched to achieve greater consistency in quality of age assessments, to reduce the incentives for adults to claim to be children and to reduce the financial and administrative burden of undertaking assessment on local authorities. The aim of achieving accurate age assessment is its primary consideration. The NAAB consists of expert social workers whose task is to conduct full Merton-compliant age assessments upon referral from a local authority or the Home Office. Local authorities also retain the ability to conduct age assessments. This is not some perfunctory nod in the direction of those who are obviously in a difficult position; it is a very comprehensive age assessment process. Let me make it clear that if an age-disputed individual requires a Merton assessment, they will be relocated to Rwanda only if determined to be an adult after that Merton assessment.

In terms of numbers of people, it was suggested that there were not very many. I will go through those again as well. Between 2016 and September 2023, there were 11,977 asylum cases where age was disputed. Of those, 5,651 were found to be adults. That is over 800 per year. I argue to the noble Lord, Lord Dubs, that it would be a mistake to put those people into a system that is designed for children. I was quite surprised to hear the noble Lord, Lord German, suggesting the opposite. Those are the statistics that I recognise.

As I have previously set out, we cannot allow legislation to pass that would enable those who are to be removed to Rwanda to be treated differently from those removed to another country. The purpose of the IMA and this Bill is to ensure that anyone arriving illegally in the UK will be promptly removed to their home country or a safe third country to have any asylum or human rights claims processed. I will of course make sure that the comments of the noble Lords, Lord Browne and Lord Coaker, are carefully scrutinised over the coming weeks. I apologise to the noble Baroness, Lady Coussins, for being unable to comment on the individual case that she cited.

The Government of Rwanda have systems in place to safeguard relocated individuals with a range of vulnerabilities, including those concerning mental health and gender-based violence. Rwanda has a proven track record of working constructively with domestic and international partners including the UNHCR, the International Organization for Migration and other non-government organisations to process and support the asylum seeker and refugee population. By temporarily accommodating some of the most vulnerable refugee populations who have faced trauma, detentions and violence, Rwanda has showcased its willingness and ability to work collaboratively to provide solutions to refugee situations and crises.

We need to focus on getting flights off the ground to Rwanda to create the reality that everyone who enters the UK via a small boat will not be able to stay but will be swiftly removed. This will help us to continue to stop illegal immigrants from taking dangerous journeys across the channel and to save lives at sea.

Can the Minister answer the question that I put to him and to the noble and learned Lord, Lord Stewart? What happened to the Government’s plans to do this next week? It was due to go to the other place on Monday and come back here on Tuesday. What happened to those plans and why have they been ditched?

My Lords, the noble Lord will not like my answer, but the scheduling of business is a matter for business managers.

Noble Lords:

Oh!

My Lords, I do not wish to intervene in this little local argument. I thank noble Lords who have supported my Motion E1 with very strong arguments. I thank the Minister for reading into the record Article 3(4). I did not do that because I wanted to save time, but he makes my case for me: the treaty makes it clear that we should not send underage or age-disputed unaccompanied children to Rwanda. That is what this amendment is about.

However, the Minister has shifted his ground, because in previous iterations, he talked just about the two independent immigration officers who were going to provide the assessment based on appearance and demeanour. Now, he is talking about social workers, but how many of those poor children get that far? I do not know whether he can answer that question; I suspect that he cannot. I have not heard anything from the Minister that undermines the case that I and others have made on behalf of these children. I therefore wish to press my Motion and seek the opinion of the House.

Ayes 249, Noes 219.

Motion E1 agreed.