My Lords, I hope that I will not bore you for long. I shall take careful note of the Chief Whip’s remarks but I am
very pleased to introduce Amendments 100, 101 and 102. I thank those Lords spiritual and temporal who have added their names to these amendments and who are supportive of the contents.
These amendments seek to remove amendments to Section 77 of the Nationality, Immigration and Asylum Act 2002 from Schedule 3. The intention is to erase the proposal contained in the Bill to introduce powers to export offshore any person in the UK who is seeking asylum without first considering their claim. Few would disagree that protection and control of our borders, primary responsibilities of any Government, are noble and necessary objectives. A Home Secretary must be able to discharge her duties in this respect, which include expediting deportation swiftly and without delay where illegality has been determined under the rules. This was certainly my approach when I served as Immigration Minister in the 1990s.
Most would agree that the process by which we pursue these objectives matters no less than the solutions on the table. Indeed, solutions need to be effective, but they must also be pragmatic and practical, and enforceable under domestic and international law. They need to be imaginative but also financially viable. They must be firm but also fair. I am afraid that Clause 28 and Schedule 3 fail on these counts. In very literal terms, Clause 28 amends the Nationality, Immigration and Asylum Act 2002, which states that a person seeking asylum cannot be removed from the UK while their asylum claim is being processed—in other words, before a final decision is given on their refugee status, including access to an appeal. However, paragraph 1 of Schedule 3 to the Bill withdraws those rights by allowing the transfer of any asylum seeker to any country which will be listed in Section 77 of the Nationality, Immigration and Asylum Act 2002 as amended by Schedule 3.
Before Brexit, under the Dublin regulations, the UK Government could remove an asylum seeker from the UK while their claim was still pending but only to return them to the EU country of first entry and only after having issued a certificate under Schedule 3 to the Asylum and Immigration Act that permitted them a legal right to do so. With the end of the UK’s involvement in the Dublin regulations this option became inaccessible. However, Clause 28 would provide the Home Secretary with the legal power to forcibly remove any asylum seeker from the UK while their claim is still pending to another country which the Government have deemed safe. Clause 28 would allow them to do this without seeking and issuing a certificate under Schedule 3 to the 2004 Act. This goes against our legal and constitutional principles and surely should be repudiated.
All credible immigration systems must first acknowledge the distinction between immigration and asylum. A person who comes here for economic reasons is definitely not the same as a person who comes here to seek safety. The Bill’s failure to disentangle these definitions is significant because in the Government’s bid to control overall immigration, it will be vulnerable people—those fleeing conflict and persecution—who would be disproportionately and adversely affected.
Many years ago, I oversaw an inquiry that included the viability of offshoring. At the time, the proposal was to create processing centres off the mainland but
within British territorial jurisdiction. We quickly judged that to be deeply flawed as an idea, but the problems we identified around domestic offshoring are almost trivial compared with the problems we would face by offshoring asylum seekers to foreign territory. For one thing, it would be a clear breach of our principles in the 1951 convention on refugees. We may be abrogating our responsibilities for dealing with applications, as well as those to the asylum seekers themselves, who, by international law, should be able to retain control over where and when they submit those requests. Indeed, a person’s physical removal from the UK would effectively terminate their claim for asylum in the UK, transferring it instead to a third country.
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Turning the asylum process on its head in this way draws us on to shaky ground, posing numerous questions that the Government have not yet answered. We still do not know which country might be willing to act as a hub. Albania and Norway have outrightly rejected the offer. Rwanda may or may not be in the running, and there are rumours of Ascension Island—a place with no infrastructure, no means of direct access and no real links to the outside world. We also do not know how the migrants would be treated once they were there. In the Australian centres in Nauru and Papua New Guinea, reports of mistreatment and indefinite detention abounded, with cases of people being left in limbo for as long as eight years. Senior UN officials described the Nauru camp as cruel and inhuman, and many other notable activists similarly decried its record.
The Government claim, and will no doubt continue to claim in relation to Clause 28, that there is an absolute bar on removing an individual from the UK where there is a real risk that they will experience torture or inhuman or degrading treatment, yet some of the countries under consideration can hardly be described as exemplars of rules and rights. The truth is that, once outside the UK’s jurisdiction, people sent offshore will have none of the safeguards of UK law. I cannot see how this would work or how it could be acceptable.
On top of that, we do not know for sure whether those asylum seekers who have had their applications accepted would then be allowed to come into the UK. Existing UK case law holds that an asylum seeker cannot be granted asylum unless they are in the UK at the time of decision, but this Bill provides no power for the UK to readmit them or grant them any form of leave, and neither does it explain what will happen to those who have had their applications rejected. Where, if anywhere, will they be sent? What support, if any, will they receive? People’s lives are then at stake.
The extent of the powers conferred by such legislation necessitate clearly defined and transparent policies. It is not at all clear how this policy would work. We know that the Australian experiment on which this policy was modelled was a failure—one centre has been completely abandoned, and one no longer accepts new refugees, though the latter is still costing the Australians billions of dollars to maintain.
We also know that offshoring is ineffective as a deterrent to boat crossings. More people arrived by boat in Australia in the first year of offshore detention
than in any previous year. The authorities resorted to using maritime interceptions instead, with the Australian navy endangering lives as a result. This is such an appalling prospect here, and I was relieved that border coastguards have ruled themselves out of any such endeavour. The so-called deterrent did not work there and would not work here.
We know that the costs of offshoring would be exorbitant—current conservative estimates put them at £2 million per person per year. We are talking about a bill running into the tens of billions of pounds. It is an astronomical sum of taxpayers’ money to pump into a project so fraught with problems. I pity the Minister who would have to justify this expense to the public at a time of serious economic uncertainty.
Finally, there is no question that we need urgent action and we need to be decisive. But decisive should never mean draconian. Current problems cannot be remedied by harsher policies. Offshoring is an extreme solution that is practically flawed, morally dubious and destined to fail. If the United Kingdom truly wants to be firm and fair, we must not allow this clause on to our statute book. I beg to move.