Lord Murray of Blidworth:

Moved by Lord Murray of Blidworth

158: Clause 48, page 45, line 11, at end insert—“(1A) After subsection (4) insert—“(4A) A person is convicted by a final judgement of a particularly serious crime if—(a) the person is convicted of an offence under—(i) Part III of the Immigration Act 1971, or(ii) sections 13, 14, or 18 of the Border Security, Asylum and Immigration Act 2025, and(b) the person is not, by virtue of the conviction, a person falling within subsection (2).(4B) A person is convicted by a final judgement of a particularly serious crime if—(a) the person is convicted outside the United Kingdom of an offence,(b) the act constituting the offence would have constituted an offence under— (i) sections 24 or 24A of the Immigration Act 1971, or(ii) sections 13, 14, or 18 of the Border Security, Asylum and Immigration Act 2025, had it been done in any part of the United Kingdom, and(c) the person is not, by virtue of the conviction, a person falling within subsection (3).””Member's explanatory statementThis Amendment would ensure that illegal entrants and those who commit immigration crimes are included in the definition of particularly serious crime for the purposes of the interpretation of Article 33 of the Refugee Convention, meaning that they would be able to be removed from the United Kingdom.

My Lords, I declare my interest as a barrister, specialising in public law, including in immigration cases. I will speak to my Amendment 158—and I hope my amendment is not what has caused the Minister to vacate the front bench.

The amendment would expand the UK’s interpretation of Article 33(2) of the refugee convention and includes an offence under Part III of the Immigration Act 1971 as a “particularly serious crime”. As noble Lords who are present in the Committee this evening will be well aware, Article 33 of the refugee convention is the provision which prohibits the expulsion or return of refugees or, in the lex specialis of refugee law, the refoulement provision.

For the benefit of the record, Article 33(2) itself provides that:

“The benefit of the present provision”— by that it means the provision of the benefits of the convention—

“may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country”.

In that provision, the drafters of the refugee convention envisaged a situation where a refugee could, as it were, avoid the benefit of the refugee convention by their own criminal action.

What this amendment seeks to do is to insert the offences in Part III of the Immigration Act 1971 into the statutory definition of a “particularly serious crime”. The concept of a particularly serious crime is contained within Section 72 of the Nationality, Immigration and Asylum Act 2002, which was legislation brought forward by the previous Labour Government. That Act defined what a serious criminal offence was, and Section 72(1) begins:

“This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return)”.

It then goes on to set out what those exclusions are.

This amendment seeks to amend subsequent legislation but ultimately impacts on the meaning of Section 72 of that Act. In so doing, it adopts the same model as the Government have provided in Clause 48 of the Bill, which provides that it amends Section 72 of the Nationality, Immigration and Asylum Act 2002 by including various categories of offences as “particularly serious crimes”. The Committee will see—those who have a copy to hand—that at line 15 on page 45 of the Bill, that includes a person convicted of an offence

“listed in Schedule 3 to the Sexual Offences Act 2003”,

and so on.

My amendment is very much in the same vein, and would insert:

“A person is convicted by a final judgement of a particularly serious crime … if … convicted of an offence under … Part III of the Immigration Act 1971, or … sections 13, 14, or 18” of this Bill once it is enacted.

Part III of the Immigration Act includes almost all immigration offences, including the offence of illegal entry into the United Kingdom. As the Committee will recall, that includes the offence, under Section 24, of being:

“A person who knowingly enters the United Kingdom in breach of a deportation order … A person who … requires leave to enter the United Kingdom … and … knowingly enters the United Kingdom without such leave … A person who … has … limited leave to enter … and knowingly remains beyond the time limited by the leave … A person who … requires entry clearance … and knowingly arrives in the United Kingdom without a valid entry clearance”.

It is a large list of offences, and would include illegal working, assisting unlawful immigration to a member state of the United Kingdom, helping an asylum seeker to enter the United Kingdom, assisting entry to the United Kingdom in breach of a deportation or exclusion order, facilitation offences, and general offences in connection with immigration including possession of a fraudulent registration card or immigration stamp.

The purpose of the amendment is therefore to ensure that a person who is convicted of those offences is to be treated as having committed a “particularly serious crime” for the purposes of the refugee convention, in that they would therefore constitute a danger to the community. They would therefore be able to be removed or returned in a convention-compliant way.

This amendment probes the Government’s intentions and the general approach they will adopt to perform a toughening up—as we have heard over recent days—of their immigration policy in as far as they are able in line with their international obligations. I have laid this amendment to explore what the Government suggest in this regard. It is clear, given the message we have heard in recent days about the willingness to adopt a fresh or tighter interpretation of Article 8 of the ECHR, that it may well be that the Government share my view on the proper interpretation of Article 33(2) of the refugee convention.

It is consistent with the amendment I laid on the previous day of Committee on the need to come directly and the approach that can be taken on a clean review of the obligations and commitments made when we signed the refugee convention, without the barnacles of subsequent decisions. The proposed change in this amendment would permit the United Kingdom to return and deport anyone who enters illegally, regardless of whether they are a refugee or not.

All this ties into a much overlooked provision of the refugee convention, one I am sure the Minister will be very interested to hear about: namely, the obligations in Article 2 of the refugee convention, which requires that every refugee has duties to the country in which he find himself, and that, in particular, he conform to its Laws and regulations, as well as to measures taken for the maintenance of public order. One aspect of the refugee convention is that refugees are expected to conform to our law, and if they break our law then they cannot expect to have the protection of the convention. I beg to move Amendment 158.

My Lords, I will say a few words in favour of the Amendment in the names of the noble Lords, Lord Murray of Blidworth and Lord Jackson of Peterborough. It seems to me that this is a perfectly proportionate amendment, in that it seeks to build on the Government’s own Clause 48, to amend Article 33(2) of the refugee convention, by including there offenders against the Sexual Offences Act 2003, explaining further how this would operate and be extended.

My noble friend Lord Murray’s amendment develops that further by proposing that those who commit immigration offences as now defined in the 1971 Act will be deemed to have committed a serious offence and will therefore fall under the provisions of this measure. It is a perfectly proportionate amendment and, although noble Lords may be concerned that there are loopholes which mean that some applicants will rightly be here because of their claims, they can take comfort in the refugee convention saying that they need to come directly to the UK from a country where their life or liberty is in danger. So that part of their immigration—entering the country without leave to remain—would also be deemed an offence. Therefore I support the amendment.

My Lords, I will speak to Amendments 159, 160 and 161 in my name before speaking in support of Amendment 158 tabled by my noble friends Lord Murray of Blidworth and Lord Jackson of Peterborough. My amendments here are more technical in nature and simply seek to standardise the language used in Clause 48 with the language used in Section 72 of the Nationality, Immigration and Asylum Act 2002.

Section 72 of the 2002 Act, as has already been mentioned, provides for the application and interpretation of Article 33 of the Refugee Convention. Specifically, it provides a definition in UK law of what is to be considered a particularly serious crime. This permits the refoulement of refugees and asylum seekers who commit such particularly serious crimes and therefore constitute a danger to the community of the United Kingdom.

Section 72 of the 2002 Act was amended by Section 38 of the Nationality and Borders Act 2022. The 2022 Act substituted the words “shall be presumed to have been” for “is” in subsections (2), (3) and (4). Consequently, rather than saying:

“A person shall be presumed to have been convicted by a final judgment of a particularly serious crime if”,

which was the original language used, those subsections in the 2002 Act now read:

“A person is convicted by a final judgment of a particularly serious crime if”.

That was introduced to end ambiguity regarding which presumption in Section 72 is rebuttable in court. The changes in the 2022 Act therefore alter the language such that the rebuttable presumption applies only in one instance.

However, in Clause 48 of this Bill, new subsections state that:

“A person is to be presumed to have been convicted by a final judgment of a particularly serious crime if”,

thereby using the old phrasing of the originally enacted 2002 Act rather than the phrasing currently in force. If this clause were to pass as it is, the language in Section 72 of the 2002 Act would not be uniform and would reintroduce the ambiguity regarding the rebuttable presumptions that was removed by the 2022 Act.

I apologise for that lengthy exposition of the technical context of the amendments, but I simply seek clarification from the Government and the Minister on why this is the case. Have the Government chosen to reintroduce another rebuttable presumption in Clause 48? Given that the Government have not stated their intent to reverse the changes made by the 2022 Act to Section 72, why is there mismatching phrasing? I do not think those changes were controversial at the time; I have checked Hansard and not a single Member of your Lordships’ House challenged those changes in the Bill in Committee or on Report. So I simply seek to understand whether the Government support the language in Section 72 of the 2002 Act, as amended by the 2022 Act, and whether there was an intention to reintroduce that ambiguity.

Amendment 158, from my noble friends Lord Murray of Blidworth and Lord Jackson of Peterborough, has been amply covered. My noble friend Lord Murray made a compelling argument for seeking to include immigration offences in the definition of particularly serious crime for the purposes of Article 33(2) of the convention. As things stand, the definition of a particularly serious crime includes any offence for which a person has been sentenced to imprisonment of at least 12 months. As my noble friend has just said, his amendment would expand that definition further to encompass immigration offences.

I look forward to the Minister’s response.

My Lords, I thank all noble Lords for a short but legally quite forensic debate. It was probably almost too forensic for gone 10 pm on a Monday night. I shall do my best to address their concerns.

I shall start by talking a bit about Clause 48 and then move on to the amendments. The Government are committed to complying with their international obligations, including those set out under the Refugee Convention. As noble Lords will be aware, a key principle of the Refugee Convention is the non-refoulement of refugees to a place or territory where there is a real risk they would be subject to persecution. The noble Lord, Lord Murray of Blidworth, clearly and ably set this out.

The convention recognises that there must be limited exceptions to this principle. Article 33(2) of the convention allows refugees to be refouled where they are a danger to the security of the UK or have committed a particularly serious crime and, as a result, constitute a danger to the community. Clause 48 goes further than the previous amendments made by the Nationality and Borders Act by redefining the term “particularly serious crime” for exclusion purposes to now include individuals who have received a conviction for a sexual offence included in Schedule 3 to the Sexual Offences Act 2003. This is because this Government recognise the devastating impact of sexual violence on victims and our communities. We are fully committed to tackling sexual offences and halving violence against women and girls within a decade. Importantly, as it stands, Clause 48 allows the individual to rebut the presumptions both that they have committed a particularly serious crime and that, as a result, they constitute a danger to the community.

Amendment 159, tabled by the noble Lords, Lord Cameron and Lord Davies, seeks to remove the particularly serious rebuttable presumption. This would mean that asylum seekers or refugees who receive convictions for Schedule 3 sex offences would be considered for exclusion from the Refugee Convention with no ability to rebut the presumption that they have committed a particularly serious crime.

Similarly, Amendment 160, in the names of the noble Lords, Lord Cameron and Lord Davies, seeks to remove the same rebuttable presumption for sexual offences committed outside the United Kingdom, where that offence would have also constituted a Schedule 3 sexual offence had it been committed in the United Kingdom. Their Amendments 161A to 161E seek to make a number of changes to the provision, including removing the presumption that, where an individual is considered to have committed a particularly serious crime in relation to a Schedule 3 sex offence, they constitute a danger to the community of the United Kingdom as a result.

There is no definition of a particularly serious crime in the Refugee Convention and no direct uniformity in the interpretation adopted by other states parties. It is open to the UK to interpret the term in good faith, and that is what we are seeking to adjust with Clause 48. A good faith interpretation requires consideration of the ordinary meaning of the words and maintaining respect for the guarantees provided by the convention as a whole.

The rebuttable presumption mechanism provides a safeguard for individual offenders to rebut based on their individual circumstances. At the same time, it is important to note that Parliament has presumed that such offences will be considered particularly serious crimes for these purposes. Not only have those who receive convictions for Schedule 3 sex offences failed to respect the Laws of the UK by committing these heinous acts, they have also undermined public confidence in the ability of the state to protect the public. This measure is limited by our obligations under the convention. Both the rebuttable presumptions must remain as a practical measure to ensure that we adopt a lawful approach.

In speaking to his amendments, the noble Lord, Lord Cameron, spoke at length and in quite technical detail about the alignment of the language of the 2002 Act. Rather than trying to go into detail now, I will undertake to write to the noble Lord about the issues of language alignment that he raised, so that we can get a properly considered and more legally watertight response than I can give at this hour.

Amendment 158 in the names of the noble Lords, Lord Murray and Lord Jackson of Peterborough, spoken to by the noble Baroness, Lady Lawlor, seeks to expand the definition of a “particularly serious crime” to immigration offences. We consider this amendment to be incompatible with the refugee convention. We understand the seriousness of individuals seeking to arrive in the UK through dangerous and unsafe means, which is why we are taking robust action to prevent it. That is what this Bill is all about. The noble Lord, Lord Murray, raised Article 2 of the refugee convention. Our view is that the Bill is utterly consistent with the principle that those coming here have responsibilities to obey the host nation’s laws. That is something that we feel runs through the Bill.

In terms of the actions that we are taking, Border Security Command is strengthening global partnerships to enhance our efforts to investigate, arrest and prosecute these criminals. We recruited an extra 100 specialist NCA investigators and intelligence officers, including staff stationed across Europe and in Europol, to drive closer working with international law enforcement partners to target smuggling gangs. This Bill will give the NCA new powers to tackle organised immigration crime and protect the UK’s border. As stated previously, it is open to the UK to interpret the convention in good faith, and it is considered that immigration offences that do not carry a custodial sentence of more than 12 months cannot in good faith be interpreted as a particularly serious crime. Given that explanation and the undertaking to write to the noble Lord, Lord Cameron, on the technical point of language alignment, I ask the noble Lord, Lord Murray of Blidworth, to withdraw his amendment.

I thank the Minister for that considered reply, and I am glad to say that I agreed with at least part of what he said. There is much to welcome in Clause 48. I concur that it is appropriate for a person who is convicted of an offence listed in Schedule 3 to the Sexual Offences Act to fall within the definition, so the Minister and I agree on that point at least. He said that, in the view of the Government, our Amendment is not consistent with the refugee convention, but I did not discern particularly clearly why. No doubt, the Minister and I can explore that in correspondence prior to Report. With that, I beg leave to withdraw my amendment.

Amendment 158 withdrawn.

Amendments 159 and 160 not moved.

Amendment 161 had been withdrawn from the Marshalled List.

Amendments 161A to 161E not moved.

Clause 48 agreed.