My Lords, it is late but this is an incredibly important clause and set of amendments, so we need to spend some time discussing them—the same goes for some of the amendments that are still to come. We strongly oppose the clause and support the amendments and all the noble Lords who have spoken so far.
The clause criminalises people for seeking asylum. It will impact on modern slavery victims. It is unenforceable—indeed, the Government’s defence in the Commons was that it would not be used a lot. It criminalises people who have a right to protection for pursuing the only option available to them. As noble Lords have pointed out, the JCHR concluded that the effect of the clause is to criminalise the act of seeking asylum in the UK. Indeed, the Select Committee on the Constitution, another important body of this House, says:
“Compliance with the United Kingdom’s international obligations is a constitutional issue. We endorse the Joint Committee on Human Rights’ recommendations”
on this clause. These are serious points being made by bodies of this House, made up of Lords from across the House who are questioning the Government’s compliance with the constitution with respect to the JCHR’s findings that Clause 39 as it stands criminalises people seeking asylum. I cannot believe that that is what the Government intend. As my noble friend Lady Lister asked, are they saying, “We’re right and everyone else is wrong”? Are they saying that the JCHR, the Select Committee on the Constitution and all noble Lords who have tabled amendments are wrong and that this does not criminalise people seeking asylum? If that is the case, we as a House need to hear the Government’s justification so that we can compare their arguments with those being put forward by these various bodies and noble Lords.
The Minister may not have this information, but it would be interesting to know what percentage of people granted asylum in the UK in the past five years would have been criminalised under this provision so that we can understand the difference it would have made. I appreciate that the Minister may not have those figures available but it would be useful for the House to understand what the impact of this change to the law would have been in the past so that we can make some judgment about how it may go in future.
Criminalising a person who is trafficked to our shores will not break the business model of traffickers; it will tighten the control that traffickers have on their victims. We heard in earlier debates that the Government have lowered the threshold for what is deemed a “particularly serious” offence in order to allow the protections of the convention to be disapplied to a refugee, as we see in Clause 37. How does that interact with Clause 39? Will the effect be that arriving in the UK to seek asylum, despite having a totally valid claim, is a serious enough offence to be sent back again? I do not know.
The Government have failed to answer the question that has been asked again and again: how does an asylum seeker arrive in the UK? If the Government’s presumption is that you have to stop in the first country where you can get protection, how on earth do you get here? As the noble Lord, Lord Paddick, says, presumably the only way is to fly, but under this offence it may well be that you will be criminalised even if you fly into this country with a visa. So how does anyone claim asylum? I am going to ask this again: how on earth do you claim asylum if you have to stop in the first safe country where you can get protection? How does anyone then get here? Because we are an island, you cannot get here by land without passing through a safe country unless you fly—and Clause 39 will apparently criminalise even those who fly. So how does an asylum seeker arrive here?
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The Minister in the other place, Tom Pursglove, defended the clause largely by saying that it would not get used. He said:
“We are not seeking to criminalise those who come to the UK genuinely to seek asylum”—
although he does not explain how they get here—
“We will be targeting for prosecution those migrants and cases where there are aggravating factors—where they caused danger to themselves or others, including rescuers; where they caused severe disruption to services, such as shipping routes, or the closure of the channel tunnel; or where they are criminals who have previously been deported from the UK or persons who have been repeatedly removed as failed asylum seekers”.—[Official Report, Commons, Nationality and Borders Bill Committee, 28/10/2021; col. 419.]
But that is not what the clause does. If the Government want the power to prosecute people for these aggravating factors, why is that not the power that they have drafted? They are asking us to pass a law on the basis of saying that they will not use it for most of the people it applies to. Is that right or wrong? If I am wrong, why am I wrong? It will be interesting to hear the Minister’s response.
The Minister in the other place also sought to reassure the Commons that the power would not be often used because it would be for the prosecuting authorities to decide whether it was in the public interest to pursue a particular case. In July, the CPS, the Home Office, Immigration Enforcement and Border Force, the National Crime Agency and policing came to a joint agreement that they will not prosecute illegal entry in the case of asylum seekers. I have the press release here. In this clause, the Government are extending
powers that their own Border Force and CPS will not say in a press release that they will use. It beggars belief. I will read one sentence:
“The guidance therefore advises that passengers of boats and other vehicles should not be prosecuted”.
We are passing a clause that will not be used for the people that the Government want to prosecute. Again, am I wrong? Am I misreading a press release issued by these prosecuting authorities, or not?
The clause extends powers that its own Border Force and CPS say they will not use and have publicly said are not in the public interest. Does the Minister say that is true—are they wrong?—and what discussions has she had with them about it? As drafted, the clause is widely drawn and criminalises something that should not be a criminal act, namely the seeking of help while fleeing danger and persecution. It is also demonstrably, as we have seen, unenforceable. What are the Government seeking to achieve in this clause and how will it be used?