My Lords, Clause 11 is the most objectionable clause in this whole objectionable Bill. It has to go, and not just because of what the convention says, our having signed and supported it and so on. It is not just because there is a convention but because the convention is right. However, we have to pick at the Bill. We will have the debate that the noble Lord, Lord Kerr, has started us off on so well on Report, but this is our opportunity to see whether there is any give in the Government’s position and whether there is anything we can, quite bluntly, take apart on Report in a way we have not yet thought of.
My noble friend Lord Paddick, the noble Lords, Lord Rosser and Lord Blunkett, and the right reverend Prelate the Bishop of Durham have indicated their objection to the clause standing part. Had we been able, under the procedures of this House, to add more than four names, I think there would have been a very long list.
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We have a number of amendments in this group that are picking at this clause. Some of what I had planned to say—and probably will say because I cannot edit my notes as I go as quickly as I should—was covered in the previous group when we debated smuggling. The legislation’s objective, as it has been explained to us, is to disrupt the criminals who smuggle people. No one in their right mind supports that “trade”, but it is based on a premise about what prompts people to seek asylum with which we completely disagree.
I said at Second Reading that the Government have not attempted to walk in the shoes of refugees. I do not resile from that at all. Most asylum seekers would want to travel by a safe and legal route—they must be desperate to—but other than in a few narrow circumstances these are not available. The policy rests on deterrence, which is misconceived, because, as has been said, you do not stop to think about whether you will be in group 1 or group 2 when you get here. You do not even think about the chances of being criminalised. I am advised that Clause 11, if enforced, could mean that of those fleeing conflict and/or persecution in Iran, Iraq, Sudan, Syria and Afghanistan—the top five countries from which people arrive here, the last stage of the journey by a small boat—an estimated 9,000 to 21,000 people currently accepted as refugees would be denied protection under the convention. It will be the most vulnerable and women and children who will be affected. The noble Baroness, Lady Lister, was the first to refer to that.
I do not think there are any amendments in this group with which we disagree; we just want to get rid of the clause. However, on Amendment 39, Clause 11(2) requires that one presents oneself
“without delay to the authorities.”
It is not the only instance in the Bill where there is a failure to recognise the difficulties for many asylum seekers who simply cannot tell their story instantly and coherently. The Bill is simply not trauma-informed. I suspect this might in fact be the least troublesome example, because most asylum seekers want to get into the system and to have their application approved as soon as possible, but the difficulties still need to be recognised.
Amendments 43 and 50 are to the subsections that give examples of the different treatment proposed for the two groups. The differentiation of treatment, if it should happen, should be completely clear and in primary legislation. We should not just have examples. It should not be variable or vulnerable to being changed or made worse through the Immigration Rules, which are a matter of the Secretary of State’s fiat without touching either House of Parliament. I am very pleased that the noble Lord, Lord Blunkett, added his name to most of our amendments. I understand why he has had to leave, but it is significant that he did so.
Amendments 44 and 45, and similarly Amendments 52 and 53, would challenge the differentiation regarding leave to enter and remain, because how long you are able to remain has considerable consequences for the “undeserving” asylum seeker. That is on top of all the insecurity inherent in the reduction of the length of leave and increasingly frequent reassessment processes. We cannot expect people’s well-being and mental health, or their ability to integrate into the community where they have found themselves, not to suffer in the absence of certainty; nor can we expect landlords or employers to be keen to take on quite short-term tenants and employees.
Currently, a refugee can apply for ILR—that is, indefinite leave to remain, or, in other words, settlement after five years. What are the criteria for group 2 refugees? What will they have to meet to achieve ILR? Will they have to wait 10 years, like people who have been here on a work visa, and make substantial payments periodically through that period? Quite apart from the impact on the individuals, is this not extra bureaucracy and workload for the Home Office? What is the estimate of the cost to the Home Office? Will that be reflected in the full economic impact assessment that I believe we are promised?
Amendments 47, 48, 51 and 53 are there because, however you travel, family is of the utmost importance. I do not think I need to spell it out; I will just say “common humanity” and “integration”. Family reunion is recognised as important by the Home Office, even if it is not as extensive as we argue it should be. Perhaps the Minister can explain which family member refugees will be able to reunite with, whether that will be an automatic right and whether there will be a fee attached to this route.
Amendment 55 is different but the theme is familiar. It would require the Immigration Rules into which these appalling provisions will be incorporated at any rate to be approved by a resolution in each House of
Parliament before coming into force. As I have said, I think all these things should be in the Bill, but we have a provision in here for the rules and that point needs to be taken up. I am pleased to see that the Delegated Powers and Regulatory Reform Committee takes the same view of the need for an affirmative resolution and even more pleased to note its report, which says:
“Given the clause’s significance and the controversy surrounding it, we consider that, where it is proposed to amend the immigration rules to make different provision for different groups of refugees, the amendment should be subject to the draft affirmative procedure so that it cannot come into force until approved by both Houses.”
However, the short point, which others will make too, is that Clause 11 needs to go.