My Lords, the British people are generous and welcoming to those in need fleeing persecution, war and humanitarian crisis abroad. They also know that uncontrolled illegal migration makes us less safe, is unfair on taxpayers, puts lives into the hands of people smugglers and is unfair on would-be immigrants who play by the rules.
More than 45,000 people came here by small boat last year. The overwhelming majority of arrivals were adult males under the age of 40. These journeys are extremely dangerous; people have lost their lives attempting to cross one of the world’s busiest shipping lanes in flimsy boats. These journeys are also unnecessary. Those making the crossings are coming from safe countries, such as France, where they could have claimed asylum.
Our broken asylum system is costing the country some £3 billion a year, and taxpayers are now spending more than £6 million a day on hotels alone. We cannot continue, year on year, with this relentless rise in the number of illegal arrivals adding unacceptable pressures not just on our capacity to house new arrivals but on our ability to provide health, educational, children’s and welfare services.
My right honourable friend the Prime Minister is right: we have to stop the boats. I welcome the fact that this objective is shared across the political spectrum. The issue before your Lordships’ House today is how best to achieve this shared objective.
There is no one single solution. We need to address this complex issue across a broad front, and the Bill needs to be seen in its wider context. The Government have already delivered: the largest-ever small boats deal with France; a new agreement with Albania; a new, unified small boats operational command; tougher immigration enforcement; new, more robust measures for identifying potential victims of modern slavery; and a plan to clear the legacy initial decision asylum backlog by the end of the year and move migrants out of expensive hotels.
But we also need new legislation to make it unambiguously clear that if you enter the UK illegally, you will not be allowed to stay here. Instead, you will be liable to be detained and will be swiftly returned, either back to your home country or to a safe third country. It is only by removing the incentive to come to the United Kingdom that we will stop people taking
these dangerous journeys and deter the people smugglers from profiting off people’s suffering. This is what the Bill seeks to deliver.
Crucially, the Bill places a legal duty on the Home Secretary to make arrangements for the removal of illegal entrants who meet the four conditions set out in Clause 2. This is critical to the operation of the scheme. It will send a clear message about Parliament’s intent in enacting this legislation. Save in the very limited circumstances provided for in the Bill, it will be crystal clear to illegal migrants, the courts and the British people that the Home Secretary is legally bound to remove all those who meet the conditions set out in Clause 2 as soon as it is reasonably practical to do so.
As I have indicated, the exceptions to this duty will be limited and, in most cases, only temporary. In particular, we recognise the sensitivities in relation to unaccompanied children. That is why the Bill provides that the duty to make arrangements for removal does not apply until they reach adulthood, which in some 70% of cases is within two years of their arrival. Reflecting our current policy, the Bill confers a discretionary power to remove unaccompanied children in limited circumstances. The Bill now expressly sets out those limited circumstances in which the power to remove unaccompanied children may be exercised; that is, for the purpose of reuniting a child with a parent, where the child is to be returned to a safe country of origin or where the child has made no protection claim.
The Bill also suspends the duty to make arrangements for removal, again on a temporary basis, in the case of those persons who make a factual suspensive claim or a serious harm suspensive claim. It is vital to the effective operation of the scheme provided for in the Bill that we address head-on the cycle of repeated and late legal challenges by those seeking to frustrate the Home Secretary’s existing removal powers. The suspensive claims provided for in the Bill will be the only claims that will be heard in country and will therefore be the only route by which someone can challenge removal. Legal challenges by way of judicial review are, of course, still available, but they will not suspend removal, and Clause 4 makes this clear. These claims can continue remotely. It follows from this that the courts are not able to grant any form of interim relief that would have the effect of holding up removal pending consideration of the substantive judicial review. Clause 52 now makes this clear in the Bill.
As I have indicated, the Bill itself makes provision for two kinds of suspensive claims that provide sufficient legal remedies to those seeking to challenge their removal. Where a person seeks to challenge their removal on the basis that the Home Secretary has made a mistake of fact in deciding that they met the removal conditions, they can lodge a factual suspensive claim. Where such a claim is successful, the duty to make arrangements for removal would no longer apply, although the claimant may be subject to enforcement action under existing law if they have no legal basis to remain in the United Kingdom.
The second type of suspensive claim is a serious harm suspensive claim. Under the provisions of the Bill, a person who has made a protection or rights-based claim in respect of their home country will not be returned to that country unless it is one of the safe
countries listed in new Section 80AA of the Nationality, Immigration and Asylum Act 2002 and only if there are no exceptional circumstances militating against their return. But such a person can and will be removed to a safe third country.
Serious harm suspensive claims recognise that, exceptionally, there may be a well-founded reason why a person cannot be removed to the third country specified in the removal notice. Such a claim must be based on the fact that the person would face a real, imminent and foreseeable risk of serious and irreversible harm if they were removed. This is purposefully a high bar that reflects the terms on which the European Court of Human Rights may decide to indicate interim measures under rule 39 of its rules of court. Where a serious harm suspensive claim is upheld, it would be open to the Home Secretary to remove the person to another country or to revisit their removal to the original third country following a change of circumstances—for example, should the medical condition that previously prevented removal subsequently improve.
I have already alluded to the fact that the test for serious harm suspensive claims reflects the approach taken by the Strasbourg court when deciding the grant of interim measures. I have also explained the provisions in the Bill placing limitations on the grant of interim remedies by our domestic courts. In this context, it is entirely right that we address the impact of any interim measures indicated by the Strasbourg court.
Clause 53 of the Bill provides a discretion for a Minister of the Crown to suspend the duty to remove a person where an interim measure has been indicated. That discretion must be exercised personally by a Minister. This means that the Minister may suspend removal in response to a rule 39 interim measure but is not required to as a matter of UK law. The clause provides a broad discretion for the Minister to have regard to any factors when considering whether to disapply the duty and provides a non-exhaustive list of considerations that the Minister may have regard to when considering the exercise of that discretion. As my right honourable friend the Immigration Minister indicated in the House of Commons, this Government take our international treaty obligations incredibly seriously, and I can assure noble Lords that this discretion would be exercised judiciously and on the basis of the facts of an individual case.
The Bill provides for bespoke powers of detention for the purpose of the scheme. It is vital that we have the power to detain to establish whether a person falls within the scheme, and pending their removal, if the Bill is to be effective both as a deterrent and as a means of ensuring that the Home Secretary can comply with the duty on her to make arrangements for removal. That said, I again acknowledge the particular vulnerability of unaccompanied children. That is why the Government have brought forward amendments to provide that unaccompanied children may be detained only in circumstances prescribed in regulations. In addition, in line with the commitment given by the Immigration Minister, later in the Bill’s passage through this House we will set out the new timescale under which children may be detained for the purposes of removal without judicial oversight.
It is a central tenet of the Bill that a person who satisfies the conditions in Clause 2 will not have their asylum, human rights or modern slavery claims considered in the United Kingdom. It is a sad but incontrovertible fact that our modern slavery protections are susceptible to abuse by illegal migrants seeking to frustrate their removal from the United Kingdom. Whereas in 2019 just 6% of people arriving in the UK on a small boat and detained for return involved a modern slavery referral, the figure in 2021 was 73%.
The Bill therefore applies the public order disqualification, as provided for in the Council of Europe convention against trafficking, to those who meet the conditions in Clause 2. This means that they will not benefit from the protections otherwise afforded to potential victims of modern slavery. The Bill provides for an exception where a person’s presence in the UK is necessary for the purposes of their co-operation with a law enforcement agency in the investigation of an offence linked to their exploitation.
We recognise that the application of the public order disqualification to this cohort is a significant step and justified only during such time as the exceptional circumstances relating to the illegal entry into the UK, including arising from the channel crossings in small boats, continue to apply. For this reason, the modern slavery provisions are subject to a sunsetting clause such that, unless renewed by affirmative regulations agreed by both Houses, they will cease to apply after two years.
As I have set out, the whole point of the Bill is deterrence. As well as being clear that illegal entry into the UK may simply result in your detention and swift removal, the Bill underlines that you will have no ability to build a life in the UK. Save in very limited circumstances, Clauses 29 to 36 provide that a person will have no right to secure settlement, acquire British citizenship or, once removed, lawfully re-enter the UK.
Finally, I return to the theme I began with. Ours is a welcoming, compassionate and generous nation. We have offered our homes and communities to nearly half a million people seeking protection since 2015. We have safe and legal routes available to people from any country in the world, such as the refugee family reunion scheme and the UK resettlement scheme, as well as in recent years country-specific routes for people from Syria, Hong Kong, Afghanistan and Ukraine. We stand ready to do more. But our ability to do more must be directly linked to our capacity to house and support new arrivals.
We recognise the calls for early progress on this front, so within three months of Royal Assent we will begin the consultation with local authorities and communities themselves to understand their capacity to accommodate and support persons to be admitted to the UK each year through safe and legal routes. Within six months of Royal Assent we will set out, in a report to be laid before Parliament, the existing and proposed additional safe and legal routes. We will seek to open the proposed new routes as soon as practicable and, in any event, by the end of 2024.
We simply cannot continue with a situation whereby, year on year, tens of thousands of people make the dangerous, illegal and unnecessary journey across the channel in circumvention of our immigration controls.
Illegal migration is not fair and not right. It is not fair on the British communities whose public services and housing are under pressure. It is not fair on those who work hard and obey the law to come to the UK through established routes. It is also not fair on the people travelling in the small boats themselves, who are placed in peril at the hands of people smugglers.
We must stop the boats. The Bill, in conjunction with the other steps the Government are taking, is a necessary, urgent and indeed compassionate response to the daily challenge posed to the integrity of our immigration system. We must act now and, on that basis, I beg to move.
11.24 am
Amendment to the Motion