Clause 26 - Removal of asylum seeker to safe country

Nationality and Borders Bill – in a Public Bill Committee at 4:00 pm on 26th October 2021.

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Question proposed, That the clause stand part of the Bill.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss the following:

Amendment 159, in schedule 3, page 62, line 39, at end insert—

“(2D) Notwithstanding subsection (2A), a person who is particularly vulnerable to harm must not be removed to, or required to leave to go to, a State falling within subsection (2B) or any state to which Part 2, 3 or 4 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for the time being applies.

(2E) For the purposes of subsection (2D), a person is particularly vulnerable to harm if they—

(a) are suffering from a mental health condition or impairment;

(b) have been a victim of torture;

(c) have been a victim of sexual or gender-based violence;

(d) have been a victim of human trafficking or modern slavery;

(e) are pregnant;

(f) are suffering from a serious physical disability;

(g) are suffering from other serious physical health conditions or illnesses;

(h) are aged under 18 or 70 or over;

(i) are gay, lesbian or bisexual;

(j) are a trans or intersex person.”

This amendment would prevent persons who are particularly vulnerable to harm from being removed to, or required to leave to go to, a state falling within subsection (2B).

That schedule 3 be the Third schedule to the Bill.

New clause 18—Removal of asylum seeker to safe country—

“Schedule N makes amendments to section 77 of the Nationality, Immigration and Asylum Act 2002 (no removal while claim for asylum pending).”

This new clause introduces the proposed NS2.

New schedule 2—Removal of asylum seeker to safe country—

“In section 77 of the Nationality, Immigration and Asylum Act 2002 (no removal while claim for asylum pending), after subsection (2) insert—

‘(2A) This section does not prevent a person being removed to, or being required to leave to go to, a third State if all of the following conditions are met—

(a) the removal is pursuant to a formal, legally binding and public readmission agreement between the United Kingdom and the third State;

(b) the State meets the definition of a safe third State set out at section 14 of the Nationality and Borders Act 2021, as shown by reliable, objective and up-to-date information;

(c) the person has been found inadmissible under section 80B of the Nationality, Immigration and Asylum Act 2002;

(d) the third State in question is the State with which the person was found to have a connection under Section 80B of the Nationality, Immigration and Asylum Act 2002;

(e) taking into account the person’s individual circumstances, it is reasonable for them to go to that State; and

(f) the person is not a national of that State.’”

This new schedule modifies the circumstances in which a person can be removed to, or required to leave to go to, a safe third State.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

This Government have been clear that claiming asylum in the first safe country reached is the fastest route to safety. We must dissuade all those considering making dangerous journeys to the UK in order to claim asylum. We are working closely with international partners to fix our broken asylum system and discussing how we could work together in the future.

Clause 26 introduces schedule 3, which aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country, where their claim will then be processed. It amends existing legal frameworks in order to support our future objective to transfer some asylum claims to a safe third country for processing.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

What my hon. Friend the Minister is saying about deterring these dangerous journeys is even more poignant given the rescue operation that took place today off Harwich, where I understand five Somalis were in a small inflatable boat. As I understand it, two have been rescued, but three are feared drowned. That brings starkly into all our minds the need to deter these dangerous journeys and the desperate people who face these terrible things. I am sure the condolences of the whole Committee go to all those involved—not only those actually in the boat, but the rescue services, which must have had a fairly tough time.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am grateful to my right hon. Friend for his intervention. It is fair to say that I am very mindful of the enormous risks that we are finding people taking in trying to cross the channel at the moment. We have debated the matter extensively in this Committee up to this point, and no doubt that debate will continue. I am very concerned to hear about the situation that he has described. I have asked to be updated, and to be kept updated as to the progress of the operation to try to find the individuals who, it would seem, have been lost at sea. Of course, we send our thoughts and best wishes to those who are caught up in that terrible tragedy, and we hope for the best for them. This absolutely and without question underlines the gravity of the risks that people are taking by getting into small boats and trying to cross the English channel to get to the United Kingdom.

The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. Our aim is to disincentivise people from seeking to enter the UK by dangerous means, facilitated by those criminal smugglers, with a clear message that those who arrive via an irregular route may be eligible to be transferred to and processed in another safe country not of their choosing.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Is schedule 3 confined to applicants who arrive via irregular and dangerous routes, or could it be applied, in theory, to pretty much anyone who is claiming asylum?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

If I may, I will set out the detail that underpins schedule 3 in the course of my remarks.

Clause 26 is designed to be part of a whole-system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative and, in some cases, unfounded article 3 human rights claims.

Consequently, schedule 3 will also introduce a presumption that specified countries are safe, because of their compliance with obligations under article 3 of the European convention of human rights.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Earlier today, the Minister mentioned that Albania, from where we accept many asylum cases, could be considered a safe country. Can he tell us about other safe countries? Gibraltar, which was touted by the Government, has said categorically that it will not be a safe country for these purposes. Ghana and Rwanda have ruled themselves out, despite being touted by the Government. Morocco and Moldova have appeared in the press as potential examples, but the FCDO has said:

“No north African country, Morocco included, has a fully functioning asylum system”.

The Foreign Office stated that Moldova has “endemic” corruption, and that

“If an asylum centre depended on reliable, transparent, credible cooperation from the host country justice system we would not be able to rely on this” in Moldova. Can the Minister tell us which safe country he is talking about?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

One thing I will say is that the measures are not about opening camps on overseas territories. I will not get into a running commentary about the negotiations or discussions that may or may not be taking place with individual countries.

Claimants will be required to present strong evidence to overturn this presumption to prevent removal. That will support the aim of swiftly removing individuals who have no basis to remain in the UK by preventing unnecessary delays where speculative article 3 claims are made prior to removal to safe countries. Adding to the existing removal power, schedule 3 will also provide the Secretary of State with a power to add countries to the safe list. That will ensure that the list of safe countries remains accurate.

Schedule 3 also ensures that rights of appeal are not afforded either to asylum seekers on the basis of removal to safe countries, or to clearly unfounded human rights claims, thus preventing unnecessary appeals for unsubstantiated claims.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

The Minister says that he does not want to get into a running dialogue—that is fine—but can we have just a rough idea of how many countries are currently in bilateral negotiations with the Home Office? That may be useful. I think it is only right and proper that the Committee has an idea of the costs involved, because they will vary massively depending on the country—or indeed the continent, given some of the ludicrous examples that have been touted by people as high up as the Home Secretary. How many countries are in those negotiations, and how much can the public expect to pay for this particular part of this ridiculous Bill?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

The hon. Gentleman is a crafty parliamentarian who will, I have no doubt, try to elicit that information from me, but I am afraid that he will be unsuccessful in that endeavour, however hard he tries. The bottom line is that I am not going to get into a running commentary in this Committee about discussions that may or may not be taking place with countries around the world in relation to this policy.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 4:15 pm, 26th October 2021

I will give way, but the hon. Lady will get the same response if she is trying to extract the same information from me.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I am grateful to the Minister for giving way. He might remember that I asked previously whether he had any examples of returns to third countries. He responded in writing with an update this morning. He updates Committee members that

“4,561 ‘notices of intent’ were served to individuals, informing them that inadmissibility action was being considered in their cases.”

So we are not discussing hypotheticals here. The wheels are in motion for individuals. Can he understand that we have got to do our due diligence in pushing for the details, because the consequences for these people who have had notices of intent are very real? That is why we need to put those questions to him.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I would make a few points in response. Obviously, removals and deportations generally have been much more difficult to organise during the last 18 months, as a direct consequence of covid-19. That is not unsurprising, and of course it is reflected in the fact that we have seen fewer removals and deportations than we would have expected. It is not the Government’s intention to apply retrospectively the inadmissability measures we are talking about. That is an important point in providing clarity for the Committee.

We are committed to upholding our international obligations including under the 1951 refugee convention, and that will not change. While people are endangering lives making perilous journeys, we must fix the system to prevent abuse of that system and the criminality associated with it. Our aim is that the suite of measures in the Bill, including those in clause 26 and schedule 3, will disincentivise people from making dangerous journeys across Europe to the UK, and encourage people to claim asylum in the first safe country they reach.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

The Minister has scuttled over the idea that the Government are keen to abide by their international obligations. The UNHCR is absolutely clear that the clause rides a coach and horses—I paraphrase slightly—through the convention. Can he say a little bit more about how he possibly believes that this is consistent with what the refugee convention provides?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am actually meeting the UNHCR tomorrow, and I am obviously looking forward to that meeting. No doubt we will cover a range of topics during that discussion and engagement, which I most certainly value. I repeat to the hon. Gentleman the point that I have now made several times in relation to the provisions in the Bill: we believe that they are compliant with our international obligations. I have made that point previously and will continue to make it.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Does my hon. Friend agree that the principle of a safe country is well established? When we were members of the European Union, removals to EU countries were permitted because of that particular situation. Does he further agree that countries that seek to be candidates to join the European Union will have to bring their standards up to those equivalent to the European Union, so there is a list of countries, particularly in the Balkans and elsewhere, that may well meet those criteria before they join the European Union?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

My right hon. Friend raises various points on the back of his experience covering at least part of the role that I now cover. I would build on that by making the point that we do not remove people to countries where they would be unsafe. Of course, we are also talking here about countries that are compliant with the obligations set out under the refugee convention. That is an important point to re-make.

I thank those who drafted amendment 159 for their contribution to the debate thus far. Let me begin by being clear that this Government are wholly committed to ensuring that removals of individuals are done in accordance with our international obligations, and that the safety of those transferred is at the forefront of our actions. However, we simply cannot support any amendment that seeks to limit our ability to remove individuals to safe third countries. I assure the Committee again that we would only ever remove an individual to a country that we are satisfied is safe for them. However, the amendment is overly restrictive and therefore could not be used flexibly to consider the circumstances in the country in question. By way of illustration, the amendment would mean that we could not remove someone who is gay, lesbian or bisexual to France or Italy.

Committee members can be assured that the amendment is superfluous given the safeguards already in the Bill. Indeed, we will only ever send individuals to countries where we know that their removal will be compliant with the UK’s international legal obligations, including those that pertain to potential victims of modern slavery. Even where we are assured that a particular state is safe, changes made by the Bill make it clear that every individual in scope for removal to that state will be able to rely on the protection of article 3 of the ECHR to demonstrate why that state may not be safe in their unique circumstances. That is to prevent any individual from being transferred to a country where they would genuinely be at risk of inhumane and degrading treatment.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

The Minister keeps referring to safeguards in the Bill and consideration of individual applicants’ safety, but none of that is in schedule 3, which does not require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention or offer refugee protection or the chance to secure the full rights that refugees are entitled to. Will he talk us through the safeguards?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I would argue that I have already set out those safeguards.

The Government are clear that we must consider all options to break the business model of people smugglers and prevent people from putting their lives at risk by making perilous journeys from safe countries. Changes in schedule 3 are a key component of the wholescale system reform that we are committed to undertaking to prevent irregular migration. For those reasons, I ask hon. Members not to press amendment 159.

On schedule 3, the Government have been clear that the fastest route to safety is to claim asylum in the first safe country reached. We must dissuade all those considering making dangerous journeys to the UK to claim asylum. We are working closely with international partners to fix our broken asylum system and are discussing how we could work together in the future.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I have been generous to the hon. Gentleman, but I will give way one more time.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I thank the Minister—he is being generous. On the first safe country, the Government might have more standing and the public more confidence in them had they not abandoned their obligations. Pakistan, for example, is seeing a cut of £62 million in aid from the UK to help manage the refugee crisis spilling over the border from the Taliban. Turkey is seeing a cut of £16 million in aid from the UK, Lebanon is seeing a cut of £71.5 million and Syria is seeing a drop of £105 million. If the Government were serious about people being able to stay nearer to their home country, those cuts, which certainly were not in their manifesto at the last election, would not be happening.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

In recent years, UK aid in crisis circumstances has made a significant difference in relation to properly caring for and ensuring—

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Let me finish the point. We have regularly made additional aid available in crisis circumstances to help relieve particular pressures that have arisen, and UK aid has been essential as part of the global effort. I have been proud of the crisis measures we have put in place in relation to those circumstances as they have arisen. No doubt we will continue to have a commitment to that going forward.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

No, I am going to make some progress because I am conscious that we have still got some way to go.

Schedule 3 aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country where their claim will be processed. It amends existing legal frameworks to support our future objective to transfer some asylum claims to a safe third country for processing. The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. We aim to disincentivise people from seeking to enter the UK by dangerous means facilitated by these criminal smugglers with a clear message that those arriving via an irregular route may be eligible to be transferred to another safe country not of their choosing to be processed.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I just do not understand why the Minister tries to suggest that the provision will apply only to people who are not in genuine need. The Government do not know that because they are not looking at the cases before removing them to a third country. How is he circumscribing those who will be subject to this procedure, which we utterly oppose? How can he keep on saying that it will apply only to those who do not have genuine need?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

Schedule 3 is designed to be part of a whole system deterrent effect to prevent illegal migration. Access to the UK’s asylum system should be based on need, and not driven by the actions of criminal enterprise. Under current policy, it is too easy for removals of individuals with no right to remain in the UK to be delayed as a result of speculative, and in some cases unfounded, article 3 human rights claims. Consequently, schedule 3 will also introduce a presumption that specified countries are safe, due to them being compliant with their obligations under article 3 of the ECHR. Claimants will be required to present strong evidence to overturn that presumption to prevent removal. This will support the aim to swiftly remove individuals who have no basis to remain in the UK by preventing unnecessary delays where speculative article 3 claims are made prior to removal to safe countries.

Schedule 3 will also provide the Secretary of State with a power to add countries to the safe list—that is in addition to the already held removal power. This will ensure that the list of safe countries remains accurate. The schedule also ensures that rights of appeal are not afforded to asylum seekers on the basis of removal to safe countries nor to clearly unfounded human rights claims, thus preventing unnecessary appeals for unsubstantiated claims.

We are committed to upholding our international obligations, including under the 1951 refugee convention. That will not change. While people are endangering lives making perilous journeys, we must fix the system to prevent abuse of the asylum system and the criminality associated with it. Our aim is that the suite of measures contained within this Bill, including those within schedule 3, will disincentivise people from making dangerous journeys across Europe to the UK and encourage people to claim asylum in the first safe country they reach.

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for proposing new clause 18, which introduces new schedule 2. I agree wholeheartedly with the importance of ensuring the safety of those who are removed from the UK to third countries. However, we cannot support the proposals, which seek to limit our ability to remove individuals to a safe country. This Government have made our position clear throughout today’s debate: people should claim asylum in the first safe country that they reach. That is the fastest route to safety. I would like the Committee to consider each of the conditions in new schedule 2 in turn.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

This comes back to the first safe country. The Minister makes the point that we both agree on—we are proud of the UK’s contribution to humanitarian support and of military interventions that prevented refugees from being created in the past. The Conservative manifesto said that the Army would not be cut and aid would not cut, but voters have been betrayed by the Government’s actions since. They have reneged on those manifesto promises. And asylum seekers have been betrayed by those same cuts. The Bill does nothing but compound that betrayal.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

On 3 September, we announced £30 million of life-saving aid to Afghanistan’s neighbouring countries to help those who choose to leave Afghanistan. That is part of the Government’s efforts to support regional stability. The hon. Gentleman spoke earlier about resources being made available to help in-region. Yet again, this country has demonstrated that commitment to try to help provide stability as far as possible, and to help to ensure that as much support as possible can be provided in the vicinity of where crises arise. I think that—

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I have been very generous to the hon. Gentleman. I think that aside was a little bit unfair on his part, given the number of interventions that I have taken. I know that it was not meant in an unpleasant spirit, so I will move on.

I invite the Committee to consider each of the conditions in new schedule 2. Regarding the form of a transfer arrangement, we are currently in discussions with our international partners to consider the shared challenge of irregular migration. I do not wish to pre-empt the form or content of future arrangements as that could tie the hands of our negotiators, but I can assure the Committee that the Government will act in accordance with our international obligations, considering both the content and form of any arrangement reached. Furthermore, that condition would have the perhaps unintended consequence of preventing the removal of individuals in ad hoc cases, which has been a long-standing process within our asylum system to which I have alluded in response to earlier questions.

We do not consider the additional definition of a safe third state to be necessary, as the provision already clearly outlines that. Similarly, we do not believe the new conditions (c) and (d) would have the intended effect, as an individual who had been found to be inadmissible would not be impacted by section 77 of the Nationality, Immigration and Asylum Act 2002 in any event. Section 77 applies only to those whose asylum claims are pending. Those who have received a declaration of inadmissibility do not have a pending asylum claim. Furthermore, the measure already allows for the individual to be able to demonstrate why the state may not be safe in their particular circumstances. Finally, changes under the provision already clearly prevent the removal of a person to a state to which they are a national.

I am sympathetic to the intention behind new clause 18, which introduces the proposed new schedule, as I believe the aim is to ensure the safety of those removed under the provisions. I assure the Committee that the Government will act in accordance with our international obligations, including those under the European convention on human rights, which critically insure against inhumane and degrading treatment.

I highlight to the Committee that the proposed new schedule would remove all references in clause 26 to the proposed changes to schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Those changes ensure that we will continue to adhere to our obligations under the European convention on human rights, particularly article 3, while preventing unnecessary delays to removal. The introduction of a rebuttable presumption of article 3 compliance will prevent speculative and unfounded human rights claims from delaying removals of individuals with no right to remain in the UK. Individuals will be able to present evidence to overturn the presumption and prevent removal, however.

People smugglers are profiting from the misery of those who endanger their lives by undertaking dangerous and unnecessary journeys. We must act to fix our broken system and reduce the draw of the UK. The changes in clause 26 and schedule 3 are key components of the system-wide efforts that we are making to prevent irregular migration. For those reasons, I ask hon. Members not to press the proposed new clause and schedule.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office) 4:30 pm, 26th October 2021

The Labour party will oppose clause stand part. Clause 26 opens the door to offshoring by permitting the removal of asylum seekers from the UK while their claim is being determined or while the UK decides whether to take responsibility for the claim.

The clause introduces schedule 3, which allows the Government to remove people who are seeking asylum to countries outside the UK, and hold them in detention there while their asylum claims are being processed—in other words, offshoring. It is our strong belief that the clause should be deleted, and we will vote against clause stand part and against schedule 3. We believe that, through the clause, the Government are seeking to emulate the Australian system as a model. It has been reported that the Home Office is in talks with Denmark to share costs on an offshore detention centre in Rwanda, and a number of other places have also been mentioned.

It is worth examining the available empirical evidence on the ideas underpinning the clause. In 2015, a United Nations report found that Australia’s offshore detention regime was systematically violating the international convention against torture. In addition, in 2020, the prosecutor of the International Criminal Court said the regime was “cruel, inhuman or degrading”, and unlawful under international law.

We are deeply concerned that the Government’s plan appears to emulate a failed system that has been widely condemned for its human rights abuses. When we look in more detail at the Australian model that the Government seem to want to emulate, we find more causes for concern. In 1992, the Australian Government introduced mandatory indefinite detention for asylum seekers who arrive by boat—that policy remains in place. In 2001, they introduced the Pacific solution, whereby boats were intercepted by the navy and taken to processing centres on Manus and Nauru. In 2008, the Australian Labour Government ended that practice, branding it an “abject policy failure”, only to reintroduce offshore detention in the early 2010s. Approximately 4,180 people were transferred offshore between 2012 and 2014, at which point the transfers stopped.

Conditions and events inside the centres were secretive; journalists and legal representatives were generally banned from entering. That created the conditions for the systematic abuse of asylum seekers by those running the facilities. In 2016, The Guardian released records of more than 2,000 incident reports from Nauru—known as the Nauru files—documenting widespread abuse and neglect in offshore detention. That included systematic physical and sexual assault on children and adults, the use of blackmail by guards, and attacks and harassment by people on Nauru or Manus Island. At least 12 people are reported to have died in the camps, with the causes of death including medical neglect, suicide and murder by centre guards.

Aside from the immeasurable human cost, this failed system has been dismantled by its own architects. A recent research report by the Kaldor Centre found that there is no evidence that the policy achieved the stated aim of “stopping the boats” and that since 2014 the Government have been trying to distance themselves from the policy. Thanks to the powerful stories of the people affected, it has been increasingly rejected by the Australian public. It has cost billions of Australian dollars. The policy has clearly failed disastrously, and we are deeply concerned that this Government are seeking in this clause to bring the policy to the UK.

The impact of offshore detention on mental health cannot be overstated. In the Australian example, conditions in offshore detention centres have been inhumane and unfit for human habitation. The mental and physical health impact of offshore detention has been colossal. In 2014, the Australian Human Rights Commission found that 34% of children in detention suffered from mental health disorders of a seriousness that would require psychiatric referral if the children were in the Australian population, and paediatricians reported that the children transferred to Nauru were among the most traumatised they had ever seen. Medical experts working with the UNHCR found rates of mental illness in people in offshore detention to be among the highest recorded in any surveyed population. Médecins Sans Frontières reported that the suffering on Nauru was some of the worst that it had ever encountered. There is absolutely no way, in our view, that the UK Government should be risking huge harm against children in terms of their mental health by emulating that failed policy.

Furthermore, the financial cost of the Australian system is astronomical and regularly more than $1 billion a year. The Refugee Council of Australia compiled a detailed breakdown of offshoring costs and found that it had cost the Australian Government $8.3 billion between 2014 and 2020. The annual cost per person of holding someone offshore in Nauru or Papua New Guinea has been estimated to be $3.4 million—per person. Again, we are deeply concerned that the UK Government are seeking to emulate a policy that is extremely likely to have extortionate costs in financial terms. The financial impact of this policy will be huge. That all these increased costs go simply to stopping boats, as a deterrent, which the Minister alluded to, shows that it is a failed policy. This is fiscal incompetence from the Government: in their own prediction of what the policy costs, they have estimated exceeding that every year. It will be a budget impossible to predict, based on the number of people whom they propose to offshore. We have the Budget tomorrow, so I will be interested to see what provision the Chancellor of the Exchequer has made in relation to that and the comprehensive spending review.

Let us look in more detail at what the Government are risking with this policy in terms of the human cost. There are countless stories of the lives destroyed by the policy of offshoring. Loghman Sawari, whose story was covered by The Guardian, is still detained, despite having been accepted by Australia as a refugee in 2014. Eight years after the initial detention, he told The Guardian that the days have begun to run one into another and his memory is failing. The Maghames family arrived in Australia by boat in 2013 and were detained on Christmas Island before being transferred to Nauru in March 2014. Hajar Maghames, along with her parents and younger brother, has been in detention ever since, despite being granted refugee status in 2019. In 2020, they were transferred to Australia so that her father could receive medical care, and they are now in cabins at the back of Darwin airport. They are now the only people held there.

I would be grateful if the Minister clarified whether people being processed wherever they are offshored will, if their claim is successful, be brought back to the UK, and what estimate he has made of the cost of that.

To continue with my examples, Reza Barati, who, like the family to whom I just referred, had fled Iran, is one of the 18 people to have died in offshore detention. He was beaten to death by guards and other workers on Manus Island after a protest turned violent and the centre was attacked. He died four days after his 24th birthday. His family are suing the Australian Government and G4S for negligence. During the same incident over two days in February 2014, 70 refugees and asylum seekers were injured. One lost his right eye. Another was shot in the buttocks. One man was attacked from behind by a G4S guard who slashed his neck, causing a 10 to 12 cm horizontal slit across his throat. There have been many others, including the high-profile cases of author Behrouz Boochani or the Tamil family from Biloela, whose harrowing stories have ultimately helped to turn public opinion against this policy.

Offshoring in large accommodation centres poses particular risks to LGBT+ people seeking asylum because of their particular vulnerability. Organisations such as Rainbow Migration and Stonewall have raised concerns that housing people in such centres outside the UK will result in systemic verbal, violent and sexual abuse of LGBT+ people who are in need of protection and who have higher rates of self-harm and suicide.

There is much evidence that LGBT+ people already experience systemic abuse and harassment in the UK’s current accommodation and detention system, led by staff and others with whom they are housed or detained alongside. The problems tend to continue, even when people are moved to a new property. Documented examples provided by organisations that deal with victims have included unwanted sexual advances, threats, invasions of privacy, verbal abuse, being prevented from sleeping, pranks and sexual assault.

It is therefore deeply worrying that offshore processing centres are likely to escalate the homophobic, biphobic and transphobic abuse that LGBT+ people experience in existing asylum accommodation and detention centres. It is even more shocking when one considers that many refugees in the LGBT+ community have fled their home countries specifically because of abuses and persecution that they have experienced there.

Offshoring also presents a significant risk of harm to women who have survived rape and sexual exploitation. It is difficult to see how women who have survived such atrocities would be exempt from offshoring because it is clear that the Government’s key objective for offshore detention is deterrence. According to the Government’s logic, there can be no exceptions to this policy, because otherwise the objective of deterrence is undermined.

This was seen when offshore detention was reintroduced by the Australian Government in 2012. All people seeking asylum who arrived by boat were liable for removal to the islands of Nauru or Manus

“even if they...had characteristics warranting special consideration, such as being an unaccompanied minor, a survivor of torture and trauma, or a victim of trafficking”.

It is clear that the UK Government, by introducing such provision for offshoring, must be willing to subject children, pregnant women, survivors of trafficking and other vulnerable people to offshore detention.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I hope that I can help the hon. Gentleman somewhat by making it very clear that children will not be transferred overseas for their claims to be processed.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

I am grateful to the Minister for clarifying that point, but there are still others with vulnerable characteristics, including pregnant women and survivors of trafficking who will be subject to offshore detention.

I hardly need to outline the inhumanity of this policy as it applies to women victims of rape and sexual violence. I am deeply concerned about the conditions in which women will be held, and particularly the risk to them of further sexual violence and abuse. In detention centres in the UK, where there are a range of safeguarding mechanisms in place, it has not been enough to protect people in detention from abuse. The 2015 Lampard report on Yarl’s Wood, which until last year was the main detention centre for women in the UK, highlighted that between 2007 and 2015, 10 members of staff had been dismissed for incidents involving “sexual impropriety” towards women held there. Such “impropriety” included the repeated sexual harassment and abuse of a 29-year-old woman by a male healthcare worker.

When it comes to offshoring, the UK Government will have even less control over the treatment of detainees in offshore detention centres. The risk to women of sexual violence and abuse in such centres will be increased. The sexual harassment and violence to which women detained offshore by the Australian Government were subjected has been well documented.

There is no empirical evidence to support the effectiveness of offshoring as a deterrent strategy in respect of those fleeing persecution. A recent report by the Kaldor Centre for International Refugee Law highlights that in the year following the Australian Government’s reintroduction of offshore detention

“more than 24,000 asylum seekers arrived in Australia by boat. This number was considerably more than at any other time since the 1970s, when boats of asylum seekers were first recorded in Australia. Moreover, as the months passed, and news of the policy presumably reached some of those who were contemplating travelling by sea to Australia, there was no noticeable change in the rate of arrivals, with boats of varying numbers of people (from two to more than 200) continuing to arrive on average several times per week.”

That brings us back to the fundamental fact, discussed earlier in reference to other clauses, such as clauses 10 and 11, that policy measures that rely on deterrence assume that people have a choice in the decisions they make. People who are forced to flee their countries because of violence and persecution have no such choice. Therefore, deterrent measures will not stop them making the journey to find safety. The likelihood is that offshoring will be completely ineffective in its aims, as well as deeply inhumane.

Mandating indefinite detention prevents any exercise of sensible discretion, and detaining children is designed only to create despair. This highlights the sheer callousness of the policy and goes back to one of the key driving points: it is designed specifically to create despair and to break people. It is inhumane and degrading treatment. There are huge health and wellbeing risks, with potential harmful impacts on individuals that will only worsen their prospects of integration.

This is an absolutist policy, but there are loopholes. For a policy to work effectively, there must be no exceptions. There is also no end point. Where do the Government plan to end their deterrent policy? As there is no end point, we may get so far down the policy of offshoring that we cannot unwind it, creating a deeply unfair and inefficient system. If there is any chink in its armour, the whole thing will collapse. If it collapses, it will be a political embarrassment for the Government and the legislation will not achieve its aims and objectives. For those reasons, we oppose clause 26.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 4:45 pm, 26th October 2021

I will speak briefly in support of amendment 159, new clause 18 and new schedule 2.

I echo everything the shadow Minister said. This is a terrible clause. I echo in particular all that he said about Australia. I take a tiny crumb of comfort from the fact that the Minister, despite the Home Office’s having adduced evidence in relation to the Australian example, did not mention it during his speech. Perhaps the Home Office is learning that it should run a million miles from the Australian offshoring scheme, because it was awful.

I did not recognise the clause from what the Minister said. He kept referring to safeguards and asserting that it was absolutely consistent with our international obligations. My reading of schedule 3 and clause 26 is the polar opposite. Schedule 3 drives a coach and horses through the principle that people cannot be removed while they have a claim outstanding. It allows removal to anywhere if some very basic safeguards are met. The person might have no link to the country to which they are removed—they might have been nowhere near it. It is clearly nothing to do with responsibility sharing between states. Like clause 14, it is just about offloading responsibility.

We are not saying that no one can ever be removed to have a decision made on their claim elsewhere. While not perfect, the Dublin scheme allowed for the transfer of a claim and the removal of a claimant in appropriate circumstances and with appropriate safeguards. We have set out the criteria that would put in place similar safeguards in new clause 18 and new schedule 2. They include a formal, legally binding and public readmission agreement with the state; a requirement that the person has a connection with the country in question; that it is reasonable in the circumstances for the person’s case to be considered there; and that all the requirements and safeguards that we said should have been in place around clause 14 are present, such as the proper implementation of the full refugee convention, protection against harm, access to fair and efficient asylum processes, and so on.

Again, all those protections are informed by the UNHCR’s public commentary on and critique of the Bill. I appreciate that the Minister expressed sympathy for what we are trying to achieve, but I suspect that when he has his discussions with the UNHCR, it will urge him to go further and to adopt some of these safeguards.

There are huge differences between what we propose in new schedule 2 and what appears in schedule 3. The absence of so many crucial safeguards in the latter shows why the clause should not form part of the Bill. Schedule 3 does not even require a finding of inadmissibility or a connection with the state. There is no consideration of the reasonableness of the transfer. The country might not even be a signatory to the refugee convention, offer refugee protection, or offer the chance to secure the full rights to which refugees are entitled under the convention.

To use the UNHCR’s own words:

“Transferring asylum-seekers or recognised refugees to territories with which they have no prior connection and without an individualised consideration of safety, access to fair and efficient asylum procedures and to international protection, or reasonableness is at odds with international practice and risks denying them the right to seek and enjoy asylum, exposing them to human rights abuses and other harm, delaying durable solutions to forced displacement, and encouraging onward movement. To transfer asylum-seekers and refugees to countries that are not parties to the Refugee Convention, and without any expectation, let alone commitment, that they will provide a fair asylum procedure and treatment in line with the Refugee Convention would be an abdication of the United Kingdom’s responsibilities under international law towards refugees and asylum-seekers under its jurisdiction.”

That is the UNHCR’s commentary on schedule 3. That is why we have tabled our new schedule, new clause and amendment, and I hope that the Minister will—not today, obviously—give that further thought.

We know that this is essentially about offshoring. We oppose the clause and the schedule because we are completely and utterly opposed to that concept. It is unlawful, unethical and, as the experience in Australia shows, it does not work. As the shadow Minister highlighted, it did not discourage arrivals by boat. The Kaldor Centre for International Refugee Law went into great detail on that in its submission to the Committee, which is absolutely spot on. It highlighted the humongous cost and, more than anything else, the humanitarian disgrace that those camps represent. Doctors Without Borders has talked about

“some of the worst mental health suffering we have ever encountered in our 50 years of existence, including in projects that provide care for torture survivors.”

Finally, on amendment 159, it is good that the Minister has said that children would not be subject to that procedure. However, as the shadow Minister said, there are still various categories of vulnerable people who must be removed from the scope of the clause and schedule. If the Home Office insists on taking that terrible step, surely to goodness it will not subject pregnant women, disabled or sick people, torture victims, victims of trafficking or gender-based violence, LGBT people or the young and old to that procedure. Perhaps the Minister could accept that amendment, just to give us a tiny crumb of comfort.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I will briefly pick up on a few points that have been raised during the debate on clause 26. The Government argue that the suite of measures are intended to have a deterrent effect. The measures under the clause are just one part of system-wide reforms that make clear our position that individuals must claim asylum in the first safe country they reach. I recognise that there are fundamental differences of opinion in the Committee about some matters, but we argue that that is the fastest route to safety.

I want to clarify the situation. Although we are, of course, working with our international partners to meet our joint challenges, I assure Committee members that we are not working with Denmark to open an offshore detention centre. It is important to be clear on that point.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I will give way, although I gave quite a bit of clarity in what I just said.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

The Minister has given some clarity by saying that the Government are not working with Denmark, but, as he has already said today, he cannot tell us which countries the Government are working with. We know that Albania, Ghana, Rwanda and Gibraltar have all said, “No, thanks”, and that, frankly, we look like we have fewer friends than North Korea on this issue. However, the Minister cannot tell us which countries the Government are negotiating with or how much the measures will cost. When we are supposed to be going through a very costly and controversial set of plans in line- by-line scrutiny, I think that is a dereliction of duty.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I reject the hon. Gentleman’s characterisation of the situation. The truth is that a very particular point was raised about the United Kingdom establishing an offshore detention centre with Denmark, which is not the case. It is important to be clear about that on the record.

A number of issues were raised about vulnerabilities. Again, I want to make it very clear that we will only ever act in line with our international commitments and legal obligations, including the ECHR. Any particular vulnerabilities will be taken into account. Flexibility is already built into the system to ensure that individual circumstances are properly taken into account, and that will continue to be the case.

To conclude, the shadow Minister sought further clarification on the Government’s intentions on clause 26. Changes in the Bill are not about housing people offshore while their asylum claims are considered under the UK’s asylum system. The measures in the Bill support our future objective of removing someone to a safe third country where we intend their claims to be admitted and processed under the third country’s asylum system. I am very happy to provide the clarification he sought.

Question put, That the clause stand part of the Bill.

Division number 26 Nationality and Borders Bill — Clause 26 - Removal of asylum seeker to safe country

Aye: 8 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 6.

Question accordingly agreed to.

Clause 26 ordered to stand part of the Bill.

Question put, That the schedule be the Third schedule to the Bill.

Division number 27 Nationality and Borders Bill — Clause 26 - Removal of asylum seeker to safe country

Aye: 8 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 6.

Question accordingly agreed to.

Schedule 3 agreed to.

Sitting suspended.

On resuming—

[Sir Roger Gale in the Chair]

Clauses 27 and 28 ordered to stand part of the Bill.