Lord German:

Moved by Lord German

116: After Clause 39, insert the following new Clause—“Repeal of certain provisions of the Nationality and Borders Act 2022The following provisions of the Nationality and Borders Act 2022 are repealed—(a) sections 12 to 65;(b) sections 68 and 69.”Member’s explanatory statementThis new clause would repeal specified provisions of the Nationality and Borders Act 2022.

My Lords, I will speak to Amendments 116 and 118 in my name. This is a bit of a reversal, because it is looking not at what is happening but at what is left behind. I am asking the Government to consider this in some detail, so I am worried that the Minister may have some difficulty answering all the questions. If it is not possible, I am hopeful that we will get the answers in writing later.

The position is this. We support the repeal of the provisions in the Illegal Migration Act. What I am concerned about is what policy is left behind when you take those out. As it stands, in several places the Nationality and Borders Act 2022 will become the default directive, even though this was not regarded as being something of satisfaction when that Bill went through this House, so there are concerns about what is left in that area. This Amendment brings together a range of issues, presenting the Government with the opportunity to explain the continuing concerns about the aspects of the Nationality and Borders Act that they have chosen to not repeal in this Bill but to rely on in sections where the IMA has been taken out from it.

There are sections of the Nationality and Borders Act which worsen the risk of violations of human rights, build further delays into the asylum system and increase the likelihood of legal challenges and judicial reviews in the future. I will dwell on several sections, but there are more than I am speaking about in the whole of this area. Section 12 of the Nationality and Borders Act is officially paused, but it allows for differential treatment between different groups of refugees, dependent on how they arrived in the United Kingdom. Can the Minister explain why the Government wish to retain that ability, even though it has not been brought in yet? Why are the Government retaining this section? If it is for operational benefit again, it would be useful to know what the operational benefit is.

The main issue of concern with Section 13 of the Nationality and Borders Act is that subsection (9) could lead to people being held in accommodation centres, including at such large sites as Wethersfield, for lengthy periods of time. Before the Nationality and Borders Act, there was a limit of a continuous period of six months, which could be extended to nine months by the Secretary of State. This section of the NaBA enables the Secretary of State to increase the time. There are ongoing concerns about the conditions of asylum accommodation, particularly the large sites such as Napier and Wethersfield, and there seems to be a pattern of repeating mistakes rather than learning from them. Safeguards are therefore important and it is concerning that this section, which we will fall back on, would enable people to be accommodated at such sites with no indication of how long they will be there for. My personal experience when I visited Wethersfield was that it was quite clear that, when people understood that they were going to be there for a maximum of nine months, it reduced the concerns and increased the well-being of residents. So, having a time limit is very important.

Section 14 is about safe countries, but we have already debated that. Section 18, which is not in force, creates a requirement to provide evidence. The argument about this is that it can only lead to additional bureaucracy for the Home Office. Providing evidence is part of the existing process for applying for asylum. If evidence is provided at appeal which could have been provided at the initial decision stage, the immigration judge will seek an explanation for this, and that could impact an individual’s credibility. With very tight deadlines, it could be a short window of time to provide the evidence. Also, it might be difficult, if not impossible, for individuals to provide the necessary evidence if they are unrepresented, and more than half of asylum claimants are currently without legal representation owing to the legal aid shortage.

Section 19, which is not in force, amends the assessment of whether to treat a person as truthful. That may be a straightforward assessment, but I do not know how it might work. Sections 20 to 25—also not in force, but the Government are retaining them—relate to priority removal notices, which warn people that they are being prioritised for removal. The person then needs to respond in the cut-off period. If they respond late, it will damage their credibility unless they have a good reason.

The concern about this is that a late claim is not necessarily without merit. It can take time for people to make a claim, because they are suffering from trauma relating to torture or sexual violence. It is unclear whether these reasons could be included in the good reason element of the priority removal notice, but it builds on a culture of disbelief in a decision-making process that already exists and is widely relied on. The inference is that not providing responses in time indicates the poor credibility of a person, which could result in improper refusal of protection claims.

Section 27 creates, although it has not yet happened, an accelerated detained appeal system in the First-tier Tribunal, which can be used for any detained appeal if it is considered that the appeal is likely to be disposed of expeditiously using the fast-track procedure. At the time, of course, it was an attempt by the Government to revive the detained fast-track scheme, but the Court of Appeal ruled it unlawful in 2015, and it described the timetable for such appeals as so tight that it was inevitable that a significant number of appellants would be denied a fair opportunity to present their cases. So what is the operational reason for retaining the ability to have an accelerated detained appeals system? If there is an operational reason for it, perhaps the Minister could tell us.

Section 29 makes it possible to move someone to a safe third country when their asylum claim is pending—not when it has been determined but when it is pending. In other words, while there is an appeal going on or a claim is being determined by the Home Office, you could deport someone in that process. That removes important rights of appeal. Members of this Committee will remember that, when we discussed the difficulty with the Rwanda scheme, people were going to have to make appeals from another country, and it would have been very difficult to maintain any means of correct procedure in that respect.

I am sorry this speech is quite long, but these are very important issues. Each one of them is about what the Bill does in making this the fall-back position that we are falling on.

Sections 30 to 38 require decision-makers to interpret the refugee convention in ways that do not accord with the long-settled meaning of that convention. We may already have had that discussion earlier today, and most of the interpretations concern Article 1A(2), which of course we have talked about, and we will further exhaust that when I talk about Amendment 118 in a moment.

Sections 40 to 41 relate to the criminalisation of asylum seekers. Those who arrive outside official routes in the UK, and people who facilitate arrivals, are committing an offence under this Act and are liable to prosecution. I understand the difficulties that there are with that one, but it is one that the Government need to describe so we have it on the record as to why that is important.

Sections 42 to 47 significantly expand maritime enforcement powers for pushbacks in international waters, removing the requirement to consider the duty of rescue. That is a fundamental in international maritime law; although it may not have been used yet, this is what the law will now say and it is important to understand why the Government want to retain that.

Sections 49 to 57 deal with age assessments, which we have just dealt with in the previous group, and Sections 58 to 63 exclude people, including children, from modern slavery protections if they have received a prison sentence of 12 months or more, even if the offence was committed as a result of their exploitation. The Government have distanced themselves in that respect from some, or indeed many, of these issues, so the question is why they are being kept.

I turn to Amendment 118, which is really an exploration of changes in the rates of refusal of asylum, which is particularly marked in in relation to Afghans, Iranians and Eritrean people claiming asylum. There has been a dramatic decline in the initial grant rate of asylum applications from those three countries. In the last two years of the previous Government, the grant rate of Afghan asylum claims stood at 98%. In the first year of this Government, that grant rate more than halved to 44%; the average grant rate for Afghans across the EU as a whole was 72% in Q1 of 2025. Eritrean grant rates are down by 13%; those of Iranians reduced by 26%. I do not observe any positive changes inside those countries during the relevant periods—certainly no change in Eritrea. The Taliban rule has been more oppressive and the human rights situation in Iran remains dire.

In Section 32 of the Nationality and Borders Act, a more complex and higher standard of proof was introduced, such that refugees are now required to establish their status in the UK. Section 33 requires a refugee whose fear of persecution is on account of their membership of a particular social group—such as refugees persecuted because they are women or LGBT—to establish their membership of such a group to a more exacting standard in the UK.

We need to understand, and perhaps the Minister can confirm, to what extent this increase in refusals is a result of the interpretation of the refugee convention in Sections 30 and 38 of the Nationality and Borders Act. We do not yet know how people are going to deal with appeals under the new arrangements, but it seems unrealistic that the UK will be able to return Afghans or Eritreans in large numbers, even if the system upholds any of the refusals.

There will be a sizeable number of people who cannot be returned. This amendment probes the impact of the changes brought in by the Nationality and Borders Act. Have the Government assessed the number of asylum seekers from Iran, Eritrea and Afghanistan who have exhausted their rights of appeal? Will the Government be seeking to return these people? If so, are they seriously intending to return them to those countries? If it is not safe to do so, what will the Government do? That is the series of questions we have to ask on this matter. It is about looking at what is left behind by the actions of this Bill, and we have to examine the legislation we now fall back on. That is the reason for these probing amendments. I am sorry it has taken such a long time. I beg to move.

The amendments in this group do not require a great deal of commentary from this side of the House. It will not come as any great surprise to the noble Lord, Lord German, given that his Amendment 116 proposes removing the Majority of the 2022 Act, and we have spent the last few hours trying to reinsert the Illegal Migration Act, that we do not agree with the amendment.

I look forward to hearing what the Minister has to say in reply. We have made this point many times. We believe that the number of people coming into this country illegally is far too high and we must take urgent steps now to stop this happening, with a strengthened legal regime, not a weakened regime, to tackle this issue. The noble Lord’s amendment would weaken and undermine our efforts to remove those who have no right to remain in the United Kingdom. I cannot say more than that.

Amendment 118 relates to the impact assessment. We on these Benches are not opposed to the principle of reviewing the impact of government policy, but we do not recognise the justification given for this; nor do we believe that this amendment is necessary. Therefore, with those brief remarks, I look forward to hearing from the Minister.

I am grateful to the noble Lord for his detailed questions. At 10.19 pm, it is a great test of stamina to examine those issues in some detail. The noble Lord is proposing that numerous sections of the 2022 Act be repealed. I should start by making it very clear that we are determined to restore order to the asylum system, as I have mentioned before. We want it to operate swiftly, fairly and firmly, and to ensure that the rules are properly enforced. That means we need to deal with the backlog of issues that are before the House as a whole.

The noble Lord raised a number of particular issues. I am very happy to go through the detail I have on inadmissibility of asylum claims, the UK’s interpretation of key concepts of the refugee convention, and Sections 30 to 39. If he wants me to do that now, I can. If he wants me to write to him so he can reflect on it more slowly, before Report, I can do that. I am happy to take his advice on how he wishes me to respond.

I thank the Minister. As I said at the beginning, it would be very helpful to have it in writing so that, as he rightly says, we can reflect on it in the greater time we will have available to us.

I have before me in my notes a full encyclopaedia of responses to the many points the noble Lord made, and I am very happy to go through them. However, it may be more sensible—given the hour and the fact that the noble Lord will not, I suspect, be pushing these amendments to a Division this evening—if I reflect on what he said in Hansard and respond to those points with clarity, using this document. I will place a copy of that letter in the Library, so that other Members can see the detail. In my view, this would speed up the response and give some clarity to the noble Lord, so he can reflect on whether he wishes to return to these matters on Report. If that is satisfactory, it would seem to be a useful way of progressing.

With that assurance, I urge the noble Lord to withdraw the Amendment, pending any discussion and response to the letter I will send him.

I thank the Minister for that. That is exactly what we were hoping for from this Amendment: to understand the Government’s intention in these various areas. I am grateful for his response, and I therefore withdraw my amendment.

Amendment 116 withdrawn.

Amendments 117 and 118 not moved.

Clause 40 agreed.