My Lords, I shall resist the temptation to offer a view on what public opinion is. What I do remember is that a lot of people expressed a view on what public opinion was over climate protesters and people who threw statues into the water at Bristol, but when cases came up before a jury, they reached some very interesting decisions on guilt or otherwise. That suggests that some of those who profess to know what public opinion is may not necessarily be right when the public have a chance to hear the arguments presented to them and are then asked to make a decision.
Clause 11 is about differential treatment of recognised refugees and its impact and implications. We believe that it contravenes the 1951 refugee convention. It sets a dangerous precedent by creating a two-tier system for refugees, and it is also inhumane. Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim—contrary to the 1951 refugee convention, of which Britain was a founding member.
Under the clause, only those refugees who meet specific additional requirements will be considered group 1 refugees and benefit from the rights currently granted to all refugees by the refugee convention. Other refugees who are not deemed to meet those criteria will be designated as group 2 refugees, and the Secretary of State will be empowered to draft rules discriminating against group 2 refugees with regard to the rights to which they are entitled under the refugee convention, as well as their fundamental right to family unity. The different ways in which those two groups could be treated is not limited in any way by the Bill. Clause 11 does, however, provide examples of ways in which the two groups might be treated differently, even though they are nearly all recognised as genuine refugees. Those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees. The clause goes on to set out how the length of limited leave, access to indefinite leave, family reunion —that is, whether family members, mainly women and children, are entitled to join them—and access to public funds are likely to become areas for discrimination against group 2 refugees.
The government policy paper, the New Plan for Immigration, proposed that instead of fully fledged refugee status, group 2 refugees will be granted “temporary protection” for a period of no longer than 30 months,
“after which individuals will be reassessed for return to their country of origin or removal to”
a safe third country. Temporary protection status
“will not include an automatic right to settle in the UK, family reunion rights will be restricted and there will be no recourse to public funds except in cases of destitution”—
in other words, a state, deliberately created, of complete uncertainty over their future for group 2 refugees.
Clause 11 would therefore make a significant and unprecedented change in the law, resulting in the UK treating accepted refugees less generously, based on the journey they have taken to reach the UK and the timeliness of their asylum claim. This attempt to create two different classes of recognised refugee is surely inconsistent with the refugee convention and has no basis in international law. The refugee convention, which was enshrined in UK law in 1954, contains a single unitary definition of “refugee”. It defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition and is not excluded is a refugee and entitled to the protection of the refugee convention.
The Commons committee considering the Bill heard in evidence from the United Nations High Commissioner for Refugees’ representative to the UK that this clause and the Bill were inconsistent with the UN convention and international law. If the Government disagree with that—an issue raised by my noble friend Lady Lister —no doubt they will spell out in some detail in their reply their legal argument for saying that the clause does comply with the convention and international law.
This is, however, not just a matter of law but of fairness and humanity. By penalising refugees for how they were able to get to the UK, the Bill builds walls against people in need of protection and shuts the door on many seeking a safe haven. Most refugees have absolutely no choice about how they travel. Is it really this Government’s intention and desire to penalise refugees who may, for example, as a matter of urgency, have had to find an irregular route out of Afghanistan? Are the Government saying that people are less deserving if they have had to take a dangerous route to our shores? Is an interpreter from Afghanistan who took a dangerous journey to our shores less deserving than a refugee who was lucky enough to make it here on one of the flights out of the country?
The Government acknowledge that such journeys are very dangerous and sometimes fatal, yet they do not seem to appreciate the compulsion—that the alternative of not doing so is even worse—which drives people to make such journeys. If people truly had a reason to believe that they would be safe where they are, they would not make the journey. Simply making the journey more dangerous or the asylum system more unwelcoming will not change that. Of the first 5,000 people who came in 2020 by boat, well over 90% were deemed by the Home Office to be eligible to apply for asylum: they were genuine asylum seekers. They were not here illegally—but they will become illegal if the Bill is enacted.
Penalising people for how they arrived in the UK has particular implications for already vulnerable groups of refugees such as women and those from LGBT communities. Women are often compelled to take
irregular routes to reach safety, as we see only too clearly in Afghanistan. There are simply no safe and legal routes. Under the proposed changes, however, women who arrive irregularly, including through a safe third country, will be penalised and could be prosecuted, criminalised and imprisoned. The same obstacles will apply to those from LGBT communities.
Unless the Government can provide safe routes, penalising people for making unsafe journeys is simply inhumane, although, even then, not everyone would have the time or ability to access a safe route, even if one existed. By not providing safe routes, the Government are also fuelling the business model of the people smugglers they claim their proposals will destroy, and then penalising the victims they have had a responsibility for creating. The Conservative-led Foreign Affairs Committee, of which the Home Secretary was then a member, warned in 2019:
“A policy that focuses exclusively on closing borders will drive migrants to take more dangerous routes, and push them into the hands of criminal groups”.
The Government’s impact assessment warns that increased deterrence in this manner
“could encourage these cohorts to attempt riskier means of entering the UK.”
As has been said, Clause 11 also says that group 1 refugees must have
“come to the United Kingdom directly from a country or territory where their life or freedom was threatened”.
In other words, the Government are setting an expectation that, to be recognised as a refugee supposedly deserving of the support usually afforded, the UK must be the first safe country in which they have sought asylum. Commenting on the Bill, the United Nations High Commissioner for Refugees said:
“Requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian, and cooperative principles on which the refugee system is founded.”
It was pointed out in oral evidence to the Joint Committee on Human Rights that it was unlikely that
“any country close to the main countries of origin of refugees would have ever considered signing a convention if that meant that they would assume total and entire responsibility for all the refugees.”
In addition, when the refugee convention came into being in the early 1950s, there was little or no commercial air travel, so any refugee reaching this country would have to have crossed land borders from safe states. Yet there was no view then that such a refugee should be seen—as under this Bill and the Government’s interpretation of the refugee convention in international law—as a criminal liable to up to four years in prison and to being sent back to France, and with any claim for asylum being regarded as inadmissible.
Even within Europe, most of the countries that refugees pass through on their way to the UK already host significantly more refugees and asylum seekers per population than the UK does. According to the Home Office’s own statistics, the UK is 17th in terms of the numbers it takes, measured per head of population. Unless safe routes are developed, all that will happen is that there will be an increase in dangerous crossings, because that will be the only way in which people can reach the United Kingdom.
As it is, France takes three times more asylum seekers than the UK, as does Germany. Global provision for refugees could not function if all refugees claimed asylum in the first safe country they came to. As my noble friends Lord Griffiths of Burry Port and Lord Coaker have pointed out, most refugees are hosted in developing countries and the UK receives fewer asylum applications than most other European countries. Under international law, the primary responsibility for identifying refugees and affording international protection rests with the state in which an asylum seeker arrives and seeks that protection.
Clause 11 sets out a non-exhaustive list of the ways in which refugees who arrive irregularly and become group 2 refugees may be treated differently. The Explanatory Notes to the Bill state that the purpose of this is
“to discourage asylum seekers from travelling to the UK”,
and to encourage
“individuals to seek asylum in the first safe country they reach after fleeing persecution.”
It is not clear, since the Government have provided no explanation, how the stated aim will result from the policy; perhaps the Government in their response will provide that explanation.
Evidence from many refugee organisations suggests that refugees seek asylum in the UK for a range of reasons, such as proficiency in English, family links or a common heritage based on past colonial histories. In addition, refugees do not cite the level of leave granted or other elements of the asylum system as decisive factors. The Home Office’s own study from 2002—I do not think there has been one since then—noted that there was little evidence that respondents seeking to come to the UK had a detailed knowledge of UK asylum procedures, benefit entitlements or the availability of work in the UK. There was even less evidence that the respondents had a comparative knowledge of how these conditions varied between different European destination countries.
Given that individuals have little knowledge of the asylum systems of the countries they end up in, it is not clear that differential treatment will dissuade individuals from coming to the UK via safe countries. However, what the Government are proposing will certainly result in a refugee population that is less secure, and it will punish those who have been recognised through the legal system as needing international protection, such as women and girls fleeing the Taliban or Uighurs fleeing genocide in China.
The Explanatory Notes also state that 62% of asylum claims in the UK up to September 2019 were from people who entered irregularly. This means that the policy intention is to impose strictures on the rights and entitlements of the majority of refugees coming to the UK, even though we take fewer than comparable countries. Those penalties would target not just those who have entered the UK irregularly or have made dangerous journeys but all those who have not come directly to the UK, regularly or irregularly, from a country or territory where their life or freedom was threatened, those who have delayed claiming asylum or overstayed, and even those who arrive in the UK without entry clearance and who claim asylum immediately.
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I repeat that Clause 11 envisages that group 2 status will be imposed on recognised refugees and will stigmatise them as unworthy and unwelcome, maintain them in a precarious status for many years, deny them access to public funds unless they are destitute and restrict their access to family reunion. We are talking here about recognised refugees. A number of studies have shown that that precarious status itself is a barrier to integration and employment Yet, despite these challenges, the Bill will specifically empower the Secretary of State to attach a no recourse to public funds condition to the granting of leave to group 2 refugees. The adverse consequences of no recourse to public funds conditions will fall not only on the refugees themselves but on their families, including children who travel with them, who are able to join them later, or who are born in the UK.
Those consequences have been documented in numerous studies. They include difficulty accessing shelters for victims of domestic violence, denial of free school meals where those are linked to the parents’ benefit entitlement and de facto exclusion from the job market for single parents who have limited access to government-subsidised childcare, as well as significant risk of food poverty, severe debt, substandard accommodation and homelessness. Yet the Home Office’s own indicators of integration framework identifies secured immigration status as a key outcome indicator for stability, which is
“necessary for sustainable engagement with employment or education and other services.”
On that issue, in paragraph 58 of its report relating to secured immigration status and the idea of safe routes, the JCHR said:
“The Government’s New Plan for Immigration contains a commitment to provide an unspecified number of refugee resettlement places, review support for eligible refugees to come to the UK through the points-based system and consider a new process to enable people in urgent need of protection to travel directly to the UK from their country of origin.”
While we welcome the commitment to safe and legal routes, we were disappointed that, in his evidence to us on 1 December 2021, the Minister was unable to give any update or detail on how the Government will fulfil those commitments. In their response tonight, can the Government now tell us how they will fulfil those commitments, as the Minister was unable to do on 1 December 2021?
There must, frankly, be a suspicion that, more than any other consideration, Clause 11 is about saving the political skin of a Home Secretary and Government who have previously promised their supporters that they would stop people crossing the channel irregularly, only to see the numbers subsequently increase. As a result, Clause 11 is largely silent on addressing the continuing and apparently expanding horrendous activities of the people smugglers and instead concentrates on hitting their victims, nearly all of whom are recognised as genuine asylum seekers.
There appears to be little in this Bill that addresses reducing or stopping this awful traffic of people smugglers and in that way reducing or stopping the level of trafficking. That would surely be one of the best ways to address the issue of people crossing the channel in the unsafe way that they currently do.
As my noble friend Lord Coaker pointed out, we now find that the Government apparently intend to arrest and lock up all single males crossing the channel. This casts even more doubts on this Government’s true intentions and motives as far as these proposals are concerned. I hope that the Minister will be able to tell us in her reply that what appeared in the Times today —to which my noble friend Lord Coaker referred—is just not true and is not what the Government intend to do. Frankly, if we do not have this clear statement, this really will be a very sorry reflection on the motives behind the Bill.
We now have a clause and a Bill under which individuals who have been recognised as refugees would be given inferior treatment, based on the way in which they came to the UK. This is contrary to the UK’s obligations under the refugee convention and inconsistent with the right to private and family life and the prohibition against discrimination under the ECHR. That is why Clause 11 should be removed from the Bill.