My Lords, I acknowledge at the outset the great assistance that I have received in discussions with Dr S Chelvan, a barrister with particular expertise and experience in immigration law.
It is important to appreciate where we are going with UK legislation on refugees. There are four resettlement schemes operated by the United Kingdom: Syria, Afghanistan, Ukraine and Hong Kong. Critically, under the Immigration Rules, there is no asylum visa route for an individual refugee to enter the United Kingdom and claim asylum. This means that, unless a person is within one of the four resettlement schemes or asylum is sought by someone already lawfully present in the United Kingdom, the refugee’s arrival in and entry to the United Kingdom will inevitably be illegal.
That means that they will fall within category 2 refugee status under the Nationality and Borders Act 2022. They will therefore be subject to accelerated and punitive procedures and, even if they fulfil the refugee definition, they will not have the benefits of settlement and nationality afforded to group 1 refugees. They would, however, be able to make a human rights claim or a protection claim, albeit under strict constraints, including very short time limits. If they have arrived after 7 March 2023, they will almost inevitably be caught by the four conditions for mandatory removal under Clause 2 of the Bill. It is obvious and must be emphasised that this is not a small boats Bill. The provisions of the Bill would affect all who seek refugee status in this country and are entitled to the protection of the 1951 convention.
In a move away from even the limited rights of category 2 refugees under the 2022 Act, the duty under Clause 2 to make arrangements for their removal is unaffected by the making of a protection claim or a human rights claim or an application for judicial review. Any protection claim or human rights claim is by statute inadmissible and carries no right of appeal.
Removal must be to one of the countries specified in Schedule 1, but the only country there specified with which the United Kingdom has an arrangement for taking such asylum seekers is Rwanda. Such asylum seekers will be detained, as provided in Clause 10, and, under Clause 11, that will be for
“such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the … removal to be carried out”.
There is no statutory time limit on such detention. An asylum seeker who is subject to removal under Clause 2 has the ability to make a suspensive claim—either a serious harm suspensive claim or a factual suspensive claim—but that does not affect the legality and finality of the obligation of the Secretary of State to make arrangements for removal.
Can it get any worse for a refugee seeking asylum in the United Kingdom? It can, because even in relation to safe and legal routes—the four resettlement routes—Clause 58 says:
“The Secretary of State must make regulations specifying the maximum number of persons who may enter the United Kingdom annually using safe and legal routes”.
Even in the case of refugees from war or armed conflict, the Government have failed to provide a safe route in relation to Sudan. We appear to be witnessing the playing out of a policy continuum under which increasing barriers for refugees to the United Kingdom are being imposed with an ultimate goal of preventing all refugees save those who have already applied under the four resettlement schemes.
It is against that background that I wish to illustrate the operation of the current and proposed legislation by reference to LGBT refugees. It is well established that LGBT refugees are within the protection of the refugee convention. Not only is that the view of the UNHCR but it has been decided by our own courts at the highest level. Unless an LGBT person is already legitimately in the United Kingdom and claims refugee status while here or happens to be within one of the four resettlement schemes, they will, as I said, almost inevitably be caught by the four conditions in Clause 2, so the Secretary of State will be under a statutory duty to make arrangements for their removal. They cannot make a protection claim, a human rights claim or an application for judicial review to prevent the operation of that duty. They will be detained for as long as the Secretary of State considers “reasonably necessary” to enable the removal to take place, without any statutory time limit. None of that is affected by the ability to make a serious harm suspensive claim.
They have to be sent to one of the countries in Schedule 1. Here, however, is a difficulty. There are many countries on that list in Schedule 1 that have anti- LGBT laws or where, even if such laws are not actively enforced or there are no express laws, there exists a social environment where there is anti-LGBT persecution with impunity and a climate of fear for LGBT people. This is particularly true of those Commonwealth countries, of which there are many, where our colonial history has had the civilising consequence of bequeathing brutal anti-LGBT laws and prejudices. Such laws or prejudices exist in the following countries specified in Schedule 1: Albania, Brazil—particularly in relation to trans people—Gambia, Ghana, Hungary, Jamaica, Kenya, Liberia, Malawi, Mali, Mauritius, Nigeria, Poland, Rwanda, Sierra Leone and, in some respects, South Africa. The only country with which the United Kingdom has reached agreement is Rwanda.