Our new Patron, Baroness Lister of Burtersett, shares her views on the new Illegal Migration Bill.
From the frying pan to the fire
When I spoke to your AGM at the end of last year in my new role as patron, my main focus was the Nationality and Borders Act, dubbed the Anti-Refugee Bill by the refugee and asylum sector when it was introduced to parliament. I talked about the unprecedented level of opposition from across the Lords demonstrated in the number of amendments sent to the House of Commons. All of those relating to asylum were overturned.
Our overriding concern was that the Bill was fundamentally at odds with the UK’s international obligations under the Refugee Convention, as made clear by the United Nations High Commissioner for Refugees (UNHCR), the agency responsible for the international protection of refugees. It in effect criminalised those trying to enter the UK other than by safe and legal routes (which are very limited) and treated as ‘inadmissable’ any claim from an asylum-seeker who had reached the UK via a ‘third safe country’. It created two classes of refugees, with the great majority likely to be in group two with only temporary protection status, renewable 30 months at a time. Many of the rights accorded to refugees in the Refugee Convention would not apply. The likely effect on the integration of refugees was treated as unimportant. There were particular concerns relating to proposed changes to the age assessment of unaccompanied children and to the implications for women fleeing gender based violence – challenging ministerial claims that the legislation was in the interests of women and children because the majority of those crossing the Channel in small boats were single men.
In addition, the Act included provision for the ‘offshoring’ of the assessment of asylum claims. The Minister refused to say whether someone whose claim was successful would be returned to the UK. But we soon had our answer after the Bill became law in April when the Government announced its new agreement with Rwanda – asylum seekers would be sent there like parcels marked do not return to sender.
Less than a year on from the Act coming into force on 28 June, asylum seekers have been thrown from the frying pan into the fire with the introduction of the even more punitive and inhumane Illegal Migration Bill aimed at deterring the small boats (although its impact is not confined to those arriving in this way). It’s as if the previous legislation, which had the same aim, had been forgotten in the Government’s desire to appear tough in the name of ‘deterrence’. Ministers have been deliberately stoking up public antipathy and fear with talk of an ‘invasion’ and suggestions that ‘astronomical’ numbers want to ‘break in’ to the UK and ‘cannibalise’ the British public’s compassion and culture. Asylum seekers are represented as criminals on the basis of anecdotal evidence. The title of the Bill itself carries the message that asylum seekers are all illegal economic migrants, yet Refugee Council analysis of official data indicates that six out of ten of those who crossed the Channel in small boats in 2022 would be recognised as refugees.
This is the atmosphere in which the House of Lords will be scrutinising the Bill, which at the time of writing has just completed its rushed passage through the Commons. In essence, the Bill treats as permanently inadmissible any asylum claim from someone who had passed through a third ‘safe’ country, even just in transit, which means no right to have a claim heard. It then places a duty on the Home Secretary to arrange their removal to their country of origin, if safe (though it’s not clear how that can be assessed without first hearing and refusing a claim), or to a safe country with which the UK has a removals agreement, notably Rwanda. This will be backed up by extensive indefinite detention powers. In practice the Refugee Council warns that this could mean tens of thousands of people stuck in limbo and potentially facing destitution.
In effect the Bill constitutes an ‘asylum ban’ to quote the UNHCR. Its effect will be both retrospective, affecting anyone who has arrived since 7 March when the Bill was introduced, and permanent in that any future attempt to enter the country or gain citizenship will also be banned.
Once again, there is widespread concern about the implications for children, who have made up roughly a fifth of those claiming asylum over the past decade, this time voiced strongly by the Children’s Commissioner (as well as by the Refugee and Migrant Children’s Consortium who were active in briefing on the previous Bill). Although the duty to remove inadmissible asylum seekers does not apply to those aged under 18, there will be a power to remove them, which turns into a duty when they reach 18. This will leave unaccompanied children many of whom will already have been traumatised, living a life of insecurity with likely damaging effects on their mental health. A ministerial promise to mitigate the Bill’s impact on children, made to fend off a Conservative backbench rebellion, has not it would seem satisfied the Children’s Commissioner.
The likely increased detention of children overturns an earlier commitment from the Conservative-led Government, enshrined in the 2014 Immigration Act to limit child detention. Similarly, a concession achieved in the Lords during the passage of the 2016 Immigration Act, to limit the detention of pregnant women to 72 hours (extendable to a week with ministerial agreement) will not apply under this Bill. In both cases the mental and physical health implications are likely to be serious.
The UNHCR, in a devastating legal critique, warns that the treatment of children in the Bill is inconsistent with the UK’s obligations under the UN Convention on the Rights of the Child as well as with a number of other international conventions and human rights law. The Home Secretary, it should be noted, has dismissed such claims as ‘fatuous’.
The UNHCR also points out that the government’s acknowledgement of the importance of safe and legal routes is not underpinned by the Bill itself which on the contrary would place an annual inflexible cap on the numbers admitted through such routes. In response to pressure from some of its own MPs the Government have added a clause which requires the Home Secretary to lay a report before parliament within six months of the Bill receiving Royal Assent setting out current and any proposed additional safe and legal routes for those in need of protection. But that offers scant reassurance and, as the UNHCR makes clear, such routes can never substitute for the right to claim asylum.
Many in the Lords probably agree with me that this Bill does not deserve to become law. But, as the unelected House, we are not in a position to throw it out completely. Our role will be to give it the kind of scrutiny that was not possible in the Commons, given the way it was rushed through, and to amend it as far as we can. Given the reservations held by some Conservative MPs we can then only hope that we can make at least some of the amendments stick in some form during what is called ‘ping pong’ as amendments are batted between the Lords and the Commons. Support from constituents who believe that the UK should meet its obligations towards asylum seekers could be particularly helpful at that stage.
Member of the House of Lords and NNRF patron.