Clause 34 - Article 31(1): immunity from penalties

Nationality and Borders Bill – in a Public Bill Committee at 5:30 pm on 26th October 2021.

Alert me about debates like this

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs) 5:30 pm, 26th October 2021

I beg to move amendment 157, in clause 34, page 33, line 20, at end insert—

“(1A) Subsection (1) shall not apply to any refugee—

(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;

(b) whose claim for asylum is on the basis of gender-based violence;

(c) who has experienced sexual violence;

(d) who is a victim of modern slavery or trafficking;

(e) who is suffering from a mental health condition or impairment;

(f) who has been a victim of torture;

(g) who is suffering from a serious physical disability;

(h) who is suffering from other serious physical health conditions or illnesses.”

This amendment would exempt certain groups from subsection (1).

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to consider amendment 158, in page 33, line 34, at end insert—

“(2A) Subsection (2) shall not apply to any refugee—

(a) whose claim for asylum is on the basis of sexual orientation, gender identity, gender expression or sex characteristics;

(b) whose claim for asylum is on the basis of gender-based violence;

(c) who has experienced sexual violence;

(d) who is a victim of modern slavery or trafficking;

(e) who is suffering from a mental health condition or impairment;

(f) who has been a victim of torture;

(g) who is suffering from a serious physical disability;

(h) who is suffering from other serious physical health conditions or illnesses.”

This amendment would exempt certain groups from subsection (2).

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

The clause relates to article 31 of the convention, which provides refugees with immunity from certain penalties. It is an important protection that the Government are seeking to limit by, in my view, reinterpreting and undermining article 31, and setting out expectations of where and when individuals should claim that go beyond the letter and spirit of the convention.

The amendments take us back to this morning’s discussion about why it was especially inappropriate to place these requirements and expectations on particular groups, including victims of trafficking, sexual violence and torture. They are designed to pose a question to the Minister: why is he seeking to strip such groups of their immunity from penalties that the refugee convention provides?

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

Again, I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East for all their hard work in this area and in producing these amendments. As they will know, the provisions they are seeking to amend are crucial to the Government’s intention to uphold the first safe country of asylum principle. In this respect, these clauses are designed to deter dangerous journeys across Europe by no longer treating migrants who come directly to the UK and claim without delay in the same way as those who do not. I am sure they will agree that we must do everything in our power to stop people putting their lives in the hands of smugglers and making extremely perilous journeys across the channel.

Amendments 157 and 158 would apply to clause 34, which is closely related to clause 10 in that it sets out the UK’s interpretation of certain criteria within article 31(1) of the refugee convention. The criteria in article 31 provide the basis for the legal framework we are using to differentiate within clause 10. The intention of the amendments is to seek statutory carve-outs from differentiation for a wide range of cohorts.

I absolutely understand where this is coming from. I would like to reassure hon. Members that the powers in clause 10 do not compel the Secretary of State to act in a certain way, and leave discretion to impose or not impose conditions as appropriate, depending on the individual circumstances. We will of course set out our policy in immigration rules and guidance in due course. The policy will be exercised with full respect to our international obligations and will most certainly be sensitive to certain types, some of which are referenced in the amendment, such as having been trafficked.

I would note that blanket carve-outs are an attractive option to ensure protection of the most vulnerable, but ultimately I do not believe it would appropriate to do this in the way amendments 157 and 158 seek. In reality, blanket carve-outs would simply encourage people coming by small boat to claim they belonged to an exempted cohort. Most importantly, this would of course prevent us from protecting those people who do genuinely have those characteristics. By creating this perverse incentive, it would also undercut the entire purpose of the policy to serve as a deterrent. Indeed, people could then simply continue to make dangerous journeys to the UK and not claim in the first safe country because they know they can avoid group 2 refugee status simply by saying that they are LGBT+ or have a mental health condition.

For all these reasons, I invite the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Glasgow North East not to press their amendments.

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

Obviously, we maintain a fundamental opposition to the whole scheme proposed by this clause and clause 10. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 50, in clause 34, page 34, line 1, leave out paragraph (b) and insert—

“(b) in subsection (3), after (b), insert—

“(ba) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act”;

(c) in subsection (4), after (c), insert—

“(ca) entry in breach of a deportation order, entry without leave, remaining in the United Kingdom without leave, or arriving in the United Kingdom without entry clearance under section 24 of the 1971 Act””.

This amendment would mean that individuals who committed these offences (and the other offences set out in section 31 of the Immigration and Asylum Act 1999) would be able to use the defence set out in section 31 of that Act, even if the offence was committed in the course of an attempt to leave the UK.

Again, I want to prompt the Government—perhaps optimistically—for their thinking on the compatibility of these provisions with the convention. The amendment would mean that individuals charged with certain offences could still rely on defences provided by the convention, even if the offence was committed in the course of an attempt to leave the UK. It is important that the Government explain clearly why they think that removing that possibility is consistent with the convention. To be honest, I am struggling to understand the Government’s reasoning.

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

Amendment 50 is extensive. I thank the hon. Member for the considerable thought he has put into the amendment, which would list the illegal entry, arrival without clearance and remaining in the UK without leave offences as subject to the statutory defence against prosecution. However, the express statutory defence under section 31 of the Immigration and Asylum Act 1999 has never applied to the existing offences referred to in amendment 50. We do not consider the new arrivals without entry clearance offence needs to be referred to expressly for the same reason. Where relevant in a particular case, the Crown Prosecution Service will take into account the UK’s obligations under article 31 of the refugee convention.

Another effect of amendment 50 would be to reverse our clause 34(4) and reintroduce a defence from prosecution for those transiting through the UK having entered illegally and intending to go and claim asylum elsewhere, such as Canada or the USA. I disagree that the statutory defence should extend to those who have tried to exit the UK without first seeking asylum, but I reassure hon. Members that that does not mean that every asylum seeker who tries to exit the UK will be prosecuted. We are targeting for prosecution those migrants where there are aggravating factors involved—for example, causing danger to themselves or others, including rescuers; causing severe disruption to services such as shipping routes or closure of the channel tunnel; or where they are persons who have previously been removed from the UK as failed asylum seekers.

We have of course been very clear that people seeking protection must claim in the first safe country they reach. That is the fastest route to safety. In the same way that we will not tolerate smugglers exploiting vulnerable people to come to the UK when a claim could easily be made in another safe country, we will also not tolerate those migrants who transit through the UK, having previously travelled through European countries, to reach other places. They must claim in the first safe country they reach. For those reasons, I invite the hon. Member to withdraw his amendment.

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

It is useful to have that on the record. I will go away and give it some further thought. We maintain our fundamental opposition to the whole scheme, but, in the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.