MPs set to debate Lords' latest amendments next Wednesday with end of current parliamentary session looming
The House of Commons Library last week published an update to its comprehensive briefing paper on the progress of the Nationality and Borders Bill.
You can download the 68-page briefing here or you can read it in full online below.
The Bill is in its final stages and is currently being batted back and forth between the Houses of Commons and Lords. Each House is considering, and so far rejecting, the other's amendments.
The Bill is set to return to the House of Commons next Wednesday, 20 April for MPs to consider the new amendments by the Lords voted through last Monday.
Previously on 22 March, the Commons rejected the Lords' original amendments, with the Government winning every vote.
Time is running out for the Bill to be agreed by both Houses before the current 2021-22 parliamentary session is prorogued ahead of the State Opening of Parliament on Tuesday, 10 May and the start of the 2022-23 session.
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Nationality and Borders Bill: Progress of the Bill
By Melanie Gower
5 April 2022
Summary
1 Background
2 Committee stage
3 Remaining Commons stages
5 Remaining stages
Annex: Public Bill Committee details
commonslibrary.parliament.uk
Number 9386
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Contents
Summary
1 Background
1.1 Overview of the Bill
1.2 Summary of debate at second reading stage
1.3 Relevant documents published since second reading
2 Committee stage
2.1 Summary of changes made in Committee
2.2 Part 1: Nationality
2.3 Part 2: Asylum
2.4 Part 3: Immigration control
2.5 Part 4: Age assessments (Government new clauses)
2.6 Part 5: Modern Slavery
2.7 Part 6: Miscellaneous
3 Remaining Commons stages
3.1 Non-government amendments
3.2 Government amendments
3.3 Report and third reading
4 Lords amendments
4.1 Government amendments
4.2 Non-government amendments (government defeats)
4.3 Unsuccessful amendments
4.4 Legislative consent
5 Remaining stages
5.1 Consideration of Lords amendments: 22 March
5.2 Consideration of Commons amendments: 4 April
5.3 Consideration of Lords amendments: 20 April
Annex: Public Bill Committee details
The Nationality and Borders Bill is in the final stage of the legislative process. There were 12 government defeats at Lords consideration of Commons amendments stage on 4 April. The Bill is scheduled to be considered again in the Commons on 20 April.
Legislative consent
The Scottish Parliament and Senedd Cymru/Welsh Parliament have both refused to give legislative consent to the Bill. The Government considers that the UK-wide measures relate to reserved matters and therefore none of the Bill's provisions engage the legislative consent process.
A few clauses only apply to England and Wales (civil legal aid services; arrangements for removal of foreign national prisoners; and some measures relating to support for potential victims of modern slavery).
Changes made in the Lords
Government amendments to three measures in the Bill were approved at report stage. They include new powers to apply visa penalties to applicants from countries considered to pose a threat to international peace and security. Those powers would come into effect upon Royal Assent. Ministers have confirmed that the Government intends to apply them to Russians, further to the military invasion of Ukraine.
19 non-government amendments were approved at report stage. Peers voted to remove various clauses from the Bill:
• Powers to make no-notice deprivation of citizenship decisions (clause 9).
• Powers to apply differential treatment to refugees depending on the lawful nature of their entry or presence in the UK (clause 11).
• Requirements to treat as damaging to credibility late compliance with a slavery or trafficking information notice (clause 58).
Peers voted to substantially amend several other key provisions in the Bill, including:
• Powers to declare as inadmissible asylum claims made by people with a connection to a safe third State (clause 15).
• Powers to remove asylum seekers to a safe third country whilst their claim is pending (clause 28 and Schedule 3).
• Proposed changes to the offence of illegal "arrival" in the UK (clause 39).
• Proposed changes to the offence of assisting unlawful immigration (clause 40).
• Various measures concerning victims of modern slavery or trafficking (Part 5).
• Proposed requirements for Electronic Travel Authorisation (clause 71).
In addition, Peers approved several new clauses which would:
• Provide a route for Chagos Islanders to acquire British nationality.
• Ensure Part 2 of the bill is applied in compliance with obligations in the 1951 Refugee Convention.
• Give asylum seekers a right to work after six months.
• Provide unaccompanied children and other asylum seekers in Europe a legal route of entry to the UK to seek asylum and join family.
• Set an annual refugee resettlement target of at least 10,000 people.
• Provide a route for people belonging to a group deemed to be fleeing genocide to apply for asylum from overseas.
• Specify certain restrictions on the conduct of age assessments and approval of scientific methods.
Several tidying up amendments were approved at third reading on 14 March. They mostly relate to non-government amendments.
The Bill's passage in the Commons
The Bill was considered in Public Bill Committee over 16 sittings between September – November 2021.
The six "placeholder" clauses in the original version of the Bill were replaced by substantive clauses, tabled as government amendments at Committee stage. Several other entirely new government clauses were added, alongside other government amendments making minor and technical changes. No non-government amendments or new clauses were added to the Bill.
Almost 80 government amendments were approved at report stage, affecting all parts of the Bill. Many made minor drafting or technical changes or were consequential to other proposed amendments, but a significant number made more substantive changes to the Bill.
The Bill was given a third reading by 298 votes to 231. Opposition parties voted against it.
This briefing was updated to include sections 3.3 and 4 on 17 March 2022. Section 5 was added on 5 April. Earlier sections were written prior to the Bill's report stage in the Commons and have not been updated since.
The Nationality and Borders Bill was published on 6 July 2021. [1] Most of its provisions apply across the UK.
The Bill would implement many of the measures outlined in the Government's New Plan for Immigration policy statement (March 2021). The Plan was open to public consultation for six weeks.
The three main objectives of the Bill, and the underlying policy statement, are:
• To increase the fairness of the system to better protect and support those in need of asylum.
• To deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger.
• To remove those with no right to be in the UK more easily.
The Bill also makes some changes to nationality law and to processes for identifying and protecting victims of trafficking or modern slavery.
1.2 Summary of debate at second reading stage
Second reading took place over 19 and 20 July 2021. [2] Introducing the Bill, the Home Secretary, Priti Patel, said:
For the first time in decades, we will determine who comes in and out of our country. Our plans will increase the fairness of our system. [3]
Labour and the SNP both opposed the Bill at second reading. Their frontbench teams variously described the Bill as "as wrong as it is ineffective" and "an abysmal and, indeed, shameful Bill." [4]
Labour proposed an amendment to the motion, declining to give the Bill a second reading
...because the Bill breaches the 1951 Refugee Convention, does not address the Government's failure since 2010 to competently process asylum applications which has resulted in a backlog of cases and increased costs to the taxpayer, fails to deal with the serious and organised crime groups who are profiteering from human trafficking and modern slavery, does not address the failure to replace the Dublin III regulations to return refugees to safe countries, fails to re-establish safe routes and help unaccompanied child refugees, and fails to deliver a workable agreement with France to address the issue of boat crossings.
It was negatived by 265 votes to 359. [5]
The Bill was granted a second reading by 366 votes to 265. [6]
1.3 Relevant documents published since second reading
The Government published its response to the public consultation on the New Plan for Immigration on 22 July 2021. [7] The Government's Overarching equality impact assessment for the Bill was published on 16 September 2021.
The Joint Committee on Human Rights is publishing a series of legislative scrutiny reports on the Bill to accompany its passage through Parliament.
The UN Refugee Agency (UNHCR) issued a Detailed legal opinion on the Bill in October 2021. This includes commentary on individual clauses. In UNHCR's view, the Bill is "fundamentally at odds with the Government's avowed commitment to upholding the United Kingdom's international obligations under the Refugee Convention and with the country's long-standing role as a global champion for the refugee cause." [8]
The Independent Anti-Slavery Commissioner wrote to the Home Secretary in September 2021 with comments on the Bill, particularly the clauses in Part 5. [9] She expressed a general concern that the Bill "will make the identification of victims of modern slavery harder and will create additional vulnerabilities".
The following recent inspection/oversight reports are relevant to the Bill:
• Independent Chief Inspector of Borders and Immigration, Report of an inspection of asylum casework and Home Office response, 18 November 2021
• Independent Family Returns Panel, Annual Report 2019-2020 and Home Office response, 19 November 2021
The Bill was considered in Public Bill Committee over 16 sittings between September - November. The first four sittings took evidence from expert witnesses. Home Office Ministers and officials did not provide evidence.
References to clause numbers in this briefing reflect the version of the Bill as amended in Committee (Bill 187 of 2021-22).
2.1 Summary of changes made in Committee
The Bill as introduced included six "placeholder" clauses. These have now been replaced by substantive clauses, tabled as government amendments/new clauses/schedules at Committee stage. They cover:
• Authorisation to work in UK waters (now clause 42 and Schedule 5)
• Prisoners liable to removal (now clause 46 and Schedule 7)
• New processes for conducting age assessments (now clauses 48 – 56)
• New powers to impose visa penalties (now clauses 69 and 70)
• Introduction of an electronic travel authorisation requirement (now clause 71). [10] This is supported by an extension of the carriers' liability scheme (now clause 72, considered in Public Bill Committee as new clause 22). [11]
• Expanding the remit of the Special Immigration Appeals Commission (now clause 73) [12]
Other new clauses tabled by the Government were added to the Bill in Committee: [13]
• Notice of decision to deprive a person of citizenship (now clause 9)
• Expedited appeals: joining of related appeals (now clause 23)
• Removals: notice requirements (now clause 45)
• Counter-terrorism questioning of detained entrants (now clause 74)
The Committee also approved all government amendments. Broadly, these were to clarify the drafting of clauses and make minor and technical changes.
No non-government amendments or new clauses were added to the Bill.
Many non-government proposals for new clauses were considered during the Committee's 15th and 16th sittings. [14] Some were pressed to divisions. They covered a wide range of issues, including:
• Safe and legal routes of entry for asylum seekers, family reunion rules and refugee resettlement schemes.
• Dispersal policy and asylum accommodation arrangements.
• Introducing time limits for immigration detention.
• Extending the 'move-on' period for people granted asylum.
• Asylum seekers' rights to work in the UK.
• The provision of independent child trafficking guardians.
• Minimum income requirement for partner visas.
• The 10-year route to settlement for children and young people raised in the UK.
The Joint Committee on Human Rights published a report assessing the human rights implications of Part 1 of the Bill (excluding clause 9) on 9 November. [15] It broadly welcomes the provisions to address areas of historical unfairness but raises significant concerns about the provisions affecting stateless children (clause 10).
Government new clause: Notice of decision to deprive a person of citizenship (clause 9) [16]
This clause would amend the deprivation of citizenship powers in the British Nationality Act 1981. Currently, s40(5) of the 1981 Act requires the Secretary of State to give a person written notice of their deprivation order, the reasons for the order, and the person's right of appeal.
Clause 9(2) specifies circumstances in which the Secretary of State would be able to deprive a person of their British citizenship without giving them notice. Briefly, these are if the Secretary of State does not have the information needed to give notice; it would "not be reasonably practicable" to give notice, "for any other reason"; or if giving notice would not be in the interests of national security, relations with another country, or otherwise in the public interest.
Explaining the rationale for the clause, Craig Whittaker (Government Whip, standing in for the Minister) argued that "it cannot be right that the proper functioning of the immigration and nationality system grinds to a halt" due to an inability to contact an affected person or because knowledge of their whereabouts derives from sensitive intelligence sources. [17]
The clause would have a retrospective effect on deprivation orders made before some of its provisions come into effect. Clause 9(5) (which would come into force the day the Bill received Royal Assent) provides that the validity of deprivation orders made before the provisions in clause 9(2-4) come into effect would not be affected by a failure to comply with the duty in s40(5) of the 1981 Act. As per clause 82 (as amended in Committee), clause 9(2-4) would come into force two months after Royal Assent.
Stateless minors (clause 10)
The Government has said that clause 10 is intended to prevent abuse of processes for registering as British citizens stateless children born in the UK.
Some external stakeholders have criticised clause 10 for being "unethical and put[ting] children's rights in jeopardy." [18] Echoing those concerns, the Opposition and SNP frontbench teams expressed strong objections to the Government's proposals in Committee. [19]
The Joint Committee on Human Rights has called for clause 10 to be removed from the Bill, or at least substantially amended. It doubts whether the clause complies with the UK's obligations under the 1961 UN Stateless Convention and UN Convention on the Rights of the Child. [20]
Issues raised during debate in Committee were:
• That the Home Office is unable to indicate the extent of suspected abuse of the existing registration process.
• That the Bill's proposed approach is not in line with international law (specifically, the 1961 UN Convention on the Reduction of Statelessness) and UNHCR guidelines on statelessness.
• That the changes will do more harm than good: existing obstacles to acquiring British citizenship will be exacerbated, and the Government has not assessed the likely impact on statelessness or set out how it has assessed the best interests of the child.
Tom Pursglove (Minister for Justice and Tackling Illegal Migration) acknowledged that whilst the Home Office "know[s] this is happening", it cannot confirm the number of cases where it believes the process is being misused. [21] He committed to writing to the Committee setting out as much information as he could about the Government's justification for its proposed new approach. [22] A related "will write" letter had not been published at the time of writing this briefing, although the Home Office did provide some data from internal Home Office reports to the Joint Committee on Human Rights. [23]
Clause 10 was ordered to stand part of the Bill upon division, by 8 votes to 7. [24]
Differential treatment of refugees (clause 11)
Briefly, clause 11 allows for people granted protection in the UK to be given different rights and entitlements, depending on the nature of their arrival to the UK.
Labour and SNP Committee members condemned the clause. Criticisms included:
• That it is drafted too broadly, and that the nature of differential treatment should be specified in the Bill rather than in future immigration rules and policy guidance, which are subjected to limited parliamentary oversight.
• That differential treatment will undermine refugees' mental health and integration prospects, have cost implications for the Devolved Administrations and Local Authorities, and impose an additional workload burden on the Home Office.
• That the clause will not achieve its stated objective of deterring irregular journeys to the UK.
• That the Government is failing to provide 'safe and legal' alternative routes to the UK.
• That the clause is contrary to the 1951 Refugee Convention and other pieces of international law, and the Government has not provided evidence to support its contention that the clause is in line with the UK's international obligations.
Tom Pursglove confirmed that clause 11 would not have retrospective effect; rather it would only apply to people who claim asylum after commencement. [25]
A "will write" letter, dated 26 October, provides some further detail on how the Government anticipates applying differentiation powers in practice. [26] It confirms that "Group 2" refugees may be granted a shorter period of leave to remain (but no less than 30 months) with a 10-year route to settlement, and will only be eligible for family reunion if refusal would breach their Article 8 rights. It also confirms that there is "no intention" to impose a no recourse to public funds condition on anyone who was previously in receipt of s95 asylum support.
In terms of the clause's compatibility with international obligations, the Minister said:
I do not agree with the assessment expressed by various Opposition Members: I argue that the differentiation policy is in line with our international obligations, including the refugee convention and the European convention on human rights. Of course, it is for Parliament to determine precisely what is meant by our international obligations, subject only to the principles of treaty interpretation in the Vienna convention. That is precisely what we are doing in the Bill. [27]
During a later stage in Committee, Stuart McDonald (SNP Shadow Home Affairs Spokesperson) proposed some amendments to clause 36 (concerning interpretation of Article 31 of the Refugee Convention), [28] which would have had the effect of exempting asylum seekers and claims with certain characteristics from differential treatment. [29] In response, the Minister said:
I would like to reassure hon. Members that the powers ... do not compel the Secretary of State to act in a certain way, and leave discretion to impose or not impose conditions as appropriate, depending on the individual circumstances. We will of course set out our policy in immigration rules and guidance in due course. The policy will be exercised with full respect to our international obligations and will most certainly be sensitive to certain types, some of which are referenced in the amendment, such as having been trafficked. [30]
He rejected the idea of specifying blanket exemptions for certain types of case on the face of the Bill, however, reasoning that "In reality, blanket carve-outs would simply encourage people coming by small boat to claim they belonged to an exempted cohort." [31]
Clause 11 was ordered to stand part of the Bill by 9 votes to 7. [32]
Accommodation centres (clause 12)
Tom Pursglove confirmed that the Government intends to break from the community-based asylum accommodation model pursued by successive governments over the past twenty years or so under the dispersal policy. [33]
The Minister said that the current model, which is based on procuring flats, houses, hotels and hostels through the private rental market, has been under "considerable strain". [34]
In the Government's view, establishing a network of full-board accommodation centres would increase capacity and flexibility, and support faster processing of cases. [35] The Minister confirmed that people would be allocated to accommodation centres under the asylum support powers in section 95 and section 98 of the Immigration and Asylum Act 1999. [36]
The Labour and SNP frontbench teams argued in favour of retaining community-based accommodation. They contended that this better supports people's future integration, and that delays in asylum decision-making are unrelated to the type of accommodation used. [37]
The Minister confirmed that asylum seekers with children will not be placed in accommodation centres at any stage of the asylum process. [38] He also noted that unaccompanied asylum-seeking children are supported by local authorities under different arrangements.
He was unwilling to identify any other cohorts or characteristics that would, as a matter of policy, preclude a person from being accommodated in an accommodation centre. The Minister said that decisions on whether a person was suitable for an accommodation centre would depend on several factors, including "their personal circumstances and vulnerabilities, and the facilities available at the particular site or in the particular area." [39]
A probing amendment tabled by the SNP had suggested that accommodation centres should not be used for cases involving children, women, people with a disability, potential trafficking/modern slavery cases, survivors of torture, or LGBTQ+ individuals. [40] But in the Minister's view, "It is not sensible to rule out large cohorts of cases from ever being placed in an accommodated centre in any circumstance, especially if their asylum case is more likely to be resolved quickly in a centre, which of course is in their best interests." [41]
Further amendments tabled by SNP and Labour members sought to impose various other restrictions on the use of accommodation centres, including maximum limits on their capacity and limits on the length of a person's stay, a prohibition on requiring unrelated residents to share rooms; and various guarantees of residents' rights and freedom of movement. These were rejected by the Minister, who cited the need to retain flexibility. He was keen to distinguish the accommodation centre model from immigration detention facilities, and the "contingency accommodation" in use at Napier (and, previously, Penally) former military barracks.
Only Labour's amendment 104, which sought to guarantee various rights to people in accommodation centres, was pressed to a division. It was rejected by 7 votes to 9. [42]
On capacity and oversight, Bambos Charalambous (Labour Shadow Immigration Minister) noted that a prior information notice for the procurement of new accommodation centres, published in August 2021, stated that it is for housing for up to 8,000 people for periods of up to six months. He queried how the pace of the procurement timetable could keep in step with the Bill's passage through Parliament and noted that the details of the tender are not in the public domain. Mr Charalambous expressed "clear concerns about how accountability and standards can be maintained ... when there is no public access to these contracts." [43]
Tom Pursglove said that "advisory groups" would be established for each accommodation centre and undertook to provide Committee members with more detailed information about how they would be established. [44] His subsequent "will write" letter set out details of oversight arrangements at Napier barracks, but did not provide additional information about responsibilities and duties to establish advisory groups for the new accommodation centres. [45]
Asylum claims from people with connections to a safe third country: inadmissibility (clause 15)
The SNP tabled a string of amendments it said were designed to encourage the Government to think about safeguards that could make the clause compatible with the 1951 Refugee Convention. Bambos Charalambous gave Labour's support to these and both Labour and the SNP opposed the clause standing part of the Bill. [46]
The SNP and Labour frontbench teams' criticisms focused on legal, moral and practical problems with the clause as drafted. Both suggested that the "inadmissibility" policy, as currently provided for in the Immigration Rules, was proving to be unworkable in the absence of a post-Brexit return agreement with EU Member States and was simply exacerbating costs and delays in the asylum system. [47]
Stuart McDonald queried various aspects of the drafting of the clause, including its reference to "a person" rather than "the individual". [48] At a later stage in the debate, Tom Pursglove said "Of course we would look at cases on an individual basis and at the concerns that have been raised." [49]
Paul Blomfield (Labour) pressed the Minister on the implications for the international protection system if other countries applied a similar "first safe country" principle. In response, the Minister said: "It is not about this country refusing to participate in the global effort, but about establishing clear expectations around how we intend to do that." [50]
Stuart McDonald pressed amendment 56 (modifying the definition of a "safe third state") to a vote, saying that he was dissatisfied with the Minister's responses to the concerns expressed about the clause's wording. It was rejected by 7 votes to 9. [51] The clause was ordered to stand part of the Bill upon division, by 9 votes to 7. [52]
In a subsequent sitting, the SNP and Labour proposed amendments to clause 38 (clause 36 as considered in Public Bill Committee), which would have defined "protection in accordance with the Refugee Convention" (as referred to in clause 15) with reference to all the rights and obligations specified in the Refugee Convention. [53] Mr McDonald explained: "The amendment poses the question to the Government of whether they are a champion of the full range of rights in the convention, or are requiring people to claim asylum in countries where little more than lip service is paid to it, and nothing more than a protection against refoulement is provided." [54] Tom Pursglove responded that clause 15 as drafted already ensures that the principles of the Convention should be met. Dissatisfied with the Minister's response, Mr McDonald pressed his amendment to a vote. It was rejected by 6 votes to 7. [55]
Supporting evidence, priority removal notices and late compliance (clauses 17-22; 25)
Labour and SNP frontbench teams had significant concerns that these clauses would have a particular impact on people with protected characteristics and vulnerable applicants, including LGBTQI+ asylum seekers, children, survivors of torture, gender-based violence or trafficking.
Tom Pursglove said that these provisions would contribute to the swift resolution of asylum and human rights claims. [56] He repeatedly pointed to the safeguard that if a person had "good reasons" for providing evidence late there would be no adverse consequences for their credibility. But he rejected calls to exempt people with certain characteristics from the clauses, or to provide examples of "good reasons" in the Bill (as suggested by some opposition amendments). He suggested that exempting specific groups could have "perverse outcomes" and argued that providing a definition of "good reasons" in the Bill would be impractical and is a task more suited to policy guidance. He also cited concerns about restricting decision-makers' flexibility to consider factors on a case-by-case basis. [57] He identified some circumstances which might be considered to amount to "good reasons", specifically objective factors, such as practical difficulties in obtaining evidence at an earlier stage, and subjective factors such as a person's particular vulnerabilities. [58]
Labour and the SNP also objected to the provisions in clauses 21 and 25 (clauses 20 and 23 as considered in Committee), which direct decision- makers to take certain considerations into account when assessing late evidence and late compliance with a priority removal notice. Stuart McDonald argued that "Parliament cannot tell decision makers what weight to give to evidence that we cannot know anything about." [59]
The Minister stressed that decision-makers would still have discretion over who to serve evidence notices on, and the extent to which credibility is damaged by late evidence. He emphasised that "there is nothing automatic about this" and that "credibility is also not determinative". [60] He made a similar point during debate on clause 25 (clause 23 as considered in Committee), reiterating that the clause "does not create a provision whereby decision makers are required to give late evidence minimal weight; they are required only to have regard to the principle, which they can choose to disregard." [61]
Labour and SNP Members remained unconvinced by the provisions, with Stuart McDonald countering that "the problem is that [the Minister] sounds reassuring when he says, essentially, "This clause will not have any effect". [62]
They pressed various amendments to divisions but none succeeded. [63]
Minor government amendments to clause 19 (clause 18 as considered in Committee), and clause 20 (19 in Committee) were approved without divisions. [64]
Government amendments were also made to the drafting of clause 22 (clause 21 as considered in Committee). [65] The clause is now complemented by clause 23, which originated as a new clause tabled by the Government in Committee. [66] It provides that if a person who is subject to a priority removal notice and expedited appeal has another appeal outstanding, that appeal would also be subject to the same expedited appeal procedure. Labour and the SNP spoke against the clause in Committee, but it was agreed to without division. [67]
Clauses 17, 18, 19, 20, 21, 22 and 25 were all ordered to stand part of the Bill after divisions. [68]
Accelerated detained appeals (clause 26)
The clause as per the original version of the Bill (clause 24) was replaced in Committee by a new clause proposed by the Government. [69] The new wording of the clause allows for a broader range of appeals to be subject to the proposed new accelerated detained appeals process. The new clause was agreed to upon division by 9 votes to 2.
Removal of asylum seeker to safe country (clause 28)
This clause (and Schedule 3) would enable the UK to send people overseas to have their asylum claims determined by another state. The Labour and SNP frontbench teams emphasised their parties' fundamental objections to the practice of 'offshoring' asylum claims, highlighting ethical, legal, practical and financial concerns, and drawing heavily on findings about Australia's use of such practices. [70] UNHCR has taken the view that "the very limited safeguards set out in the Bill would mean that any extraterritorial processing established on these terms would be in breach of the UK's international obligations, not in line with them." [71]
Tom Pursglove put the clause and Schedule 3 within the context of the Government's broader policy objectives, saying that they are intended to form part of a "whole system deterrent effect to prevent illegal migration" and encourage people to claim asylum in the first safe country they reach. [72] This, in the Government's view, is the fastest route to safety. [73]
Stuart McDonald proposed an amendment which would have exempted various categories of vulnerable people from offshore processing. [74]
Tom Pursglove confirmed that children would not be transferred overseas. [75] But he described the SNP amendment as "overly restrictive", arguing by way of example that it would prevent the removal of an LGBT person to France or Italy. The Minister said, "we simply cannot support any amendment that seeks to limit our ability to remove individuals to safe third countries." He also emphasised to the Committee "we would only ever send individuals to countries where we know that their removal will be compliant with the UK's legal obligations". [76]
Stuart McDonald strongly disagreed, commenting that "The Minister keeps referring to safeguards in the Bill and consideration of individual applicants' safety, but none of that is in schedule 3". [77] He similarly questioned the Minister's assertions that measures in the Bill would protect people in genuine need, commenting that people could be removed to a third country before the substance of their claim had been considered. [78]
A new clause and schedule proposed by Mr McDonald specified certain conditions which would have to be satisfied for a person to have their asylum claim considered in a third country. These included that the removal would be pursuant to a formal readmission agreement; that the third country meets the definition of a safe country; that the person has a connection with the third country; and that it is reasonable, in the person's personal circumstances, for them to go to that country. Mr McDonald said that his proposal had been informed by UNHCR's legal analysis of the Bill. [79]
Neil Coyle (Labour) repeatedly pressed the Minister for an indication of which countries the Government has considered making an agreement with, arguing that "it is only right and proper that the Committee has an idea of the costs involved, because they will vary massively depending on the country – or indeed the continent". [80] He criticised the absence of information provided by the Minister as a "dereliction of duty", commenting that "we are supposed to be going through a very costly and controversial set of plans in line-by-line scrutiny". [81]
Tom Pursglove refused to "get into a running commentary ...about discussions that may or may not be taking place with countries around the world in relation to this policy." [82] However he did confirm that the Government is not working with Denmark to open an offshore detention centre. [83]
Bambos Charalambous queried whether people granted asylum in an offshore centre would subsequently be returned to the UK. Tom Pursglove clarified that this would not be the case, saying that asylum claims would be processed under the third country's asylum system, rather than by the UK. [84]
The clause was ordered to stand part of the Bill by 8 votes to 6. [85]
Interpretation of Refugee Convention (clauses 29-37)
The SNP and Labour proposed amendments to clause 31 (clause 29 as considered in Public Bill Committee), which would have removed the balance of probabilities standard for whether a person's fear of persecution relates to one of the characteristics specified in the Refugee Convention ('a convention reason').
Speaking to the amendments, Stuart McDonald described the Government's proposed new two-stage approach to assessing a well-founded fear of persecution as "hugely dangerous and possibly very confusing". [86]
He illustrated his concerns about the proposed balance of probabilities threshold with a hypothetical example, contending that "The decision maker could be 49% certain that the applicant is LGBT and 100% certain that an LGBT person returned to a particular country will be tortured and killed, but that 1%—that tiny little bit of doubt—means that the balance of probabilities threshold will not be met, and that case will be rejected." [87]
Tom Pursglove argued that the approach specified in the Bill would lead to "clearer and more consistent decisions." He agreed to write to Stuart McDonald to confirm how asylum claims based on imputed characteristics would be affected by the clause. [88] This was covered in his "will write" letter of 27 October. [89]
In the Minister's view, adopting a higher standard of proof for the convention reason element of the well-founded fear of persecution test is justified, because "that is the ordinary civil standard for establishing facts." He said that "reasonable degree of likelihood" would remain the appropriate standard for the other part of the assessment (whether the person would face persecution if returned), because "The subjective element – the future fear – is naturally harder for the claimant to demonstrate." [90] He sought to reassure the Committee that the Home Office is mindful of the need to ensure that people with certain protected characteristics, including LGBT+ people, are not disadvantaged by the clause. [91]
The clause was ordered to stand part of the Bill upon division by 7 votes to 6. [92]
Tom Pursglove similarly argued that clause 32 (clause 30 as considered in Committee) would provide clarity on how "particular social group" should be interpreted. He said that the conditions specified in the clause reflect government policy but that currently "there is no established case law on the point". He referred to "conflicting tribunal-level case law and obiter comments by the House of Lords in the case of Fornah." [93]
The clause was ordered to stand part by 6 votes to 7. [94]
Justifying the move in clause 37 (clause 35 as considered in Public Bill Committee) to redefine "particularly serious crime" as ones where a person has been sentenced to 12 months' custody or more, the Minister said that the Home Office "had looked carefully at the type of offending that may be caught by a new lower threshold" and was satisfied that it was appropriate. [95]
2.4 Part 3: Immigration control
Illegal entry and similar offences (clause 39)
Labour and the SNP expressed grave concerns about the potential scope and likely impact of the overhauled illegal entry offences as provided for in clause 39 of the Bill (clause 37 as considered in Committee). They highlighted that most people who claim asylum in the UK would come within the scope of the proposed offences. Objections raised included that the clause would breach various aspects of the 1951 Refugee Convention, would be costly and difficult to implement, and was undermined by the absence of alternative provision for safe and lawful routes of entry to the UK.
Tom Pursglove confirmed that the offences could apply to a person who had obtained a visit visa to be able to travel to the UK to claim asylum. [96] But he also emphasised that the Government envisaged that prosecutions of the new offences would be targeted towards certain types of case, saying:
It is worth repeating that we are not seeking to criminalise those who come to the UK genuinely to seek asylum, and who use safe and legal routes to do so. We will be targeting for prosecution those migrants in 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. [97]
He continued:
of course, the decision on whether prosecution is in the public interest rests with the Crown Prosecution Service in England and Wales, the Crown Office and Procurator Fiscal Service in Scotland and the Public Prosecution Service in Northern Ireland. In many cases, we will continue to seek the illegal migrant's removal, rather than their prosecution. [98]
Pressed on why aggravating factors could not be specified in primary legislation, Mr Pursglove argued that this would be "too restrictive", further commenting that "the factors for prosecution...may change depending on the circumstances." [99]
A government amendment to clause 39 introduced an additional new offence of knowingly arriving in the UK without an electronic travel authorisation (ETA) where an ETA is required and made consequential amendments. [100]
The amendments were approved upon division by 8 votes to 7. [101] The clause, as amended, was ordered to stand part of the Bill without division. [102]
Assisting unlawful immigration or asylum seeker (clause 40) [103]
Tom Pursglove confirmed to the Committee (and subsequently in his "will write" letter of 2 November) that the Government intends to bring an amendment at Report stage to address the concerns raised about the potential effect of the clause as currently worded. [104] He said in Committee:
I will set out my intention to amend this clause on Report to ensure that organisations such as the RNLI, those directed by Her Majesty's Coastguard, and individuals who fulfil their obligations in rescuing those in distress at sea may continue as they do now. We also intend to ensure that this provision does not prevent those responsible for vessels from complying with their obligations if they discover stowaways on board as they journey to the UK. [105]
Rejecting a proposed amendment by the Shadow Minister for Immigration, Tom Pursglove explained why, in the Government's view, it is necessary to remove the reference in the existing offence to acting "for gain". He said, "Gain can be obtained in many ways, but cannot always be proved to the evidential standard required for a successful prosecution: for example, money transfers made by other family members abroad or made cash in hand, promises of servitude by the asylum seeker or others, or the provision of assistance in the facilitation act, such as by avoiding paying a fee by agreeing to steer a small boat". [106]
Bambos Charalambous pressed his amendment to a vote, arguing that "Second Reading was back in July and there has been plenty of time to table an amendment." It was rejected by 7 votes to 8. [107]
An amendment proposed by Neil Coyle was also pressed to a vote, for similar reasons. It was also rejected by 7 votes to 8. [108]
The clause was ordered to stand part of the Bill upon division, by 8 votes to 7. [109]
Maritime enforcement (clause 44)
Government amendment 82 changed what is now Schedule 6 of the Bill. It removed the limitation on authorising the use of maritime enforcement powers to circumstances where the Secretary of State considers that their exercise is permitted by the UN Convention on the Law of the Sea.
Tom Pursglove said that the UK is fully committed to upholding the Convention and it is unnecessary to restate that in the clause. [110] For similar reasons, government amendment 83 removed the limitation that authority to require a ship be taken to another State or territory can only be given if it is willing to receive the ship. The Minister said: "It is ...unnecessary to state in legislation, where it is already beyond doubt, that Border Force would seek permission from a foreign country before taking a migrant boat back to that country."
Explaining why, in the Government's view, the amendments were desirable, he said: "We want to make it explicit that operating these maritime enforcement powers in UK waters or international waters to simply divert a migrant vessel from UK territorial seas does not require the permission of a foreign state where that vessel may then enter their waters." [111]
Bambos Charalambous detailed broader concerns about the clause's compatibility with international maritime law, human rights and refugee law, including the duty of non-refoulement. [112]
Various amendments proposed by Paul Blomfield would have imposed some restrictions and safeguards on the exercise of maritime powers, including that officers assess welfare risk before stopping or boarding a ship, and that the powers can only be exercised by staff who have passed relevant training. The Minister said that these were unnecessary, since all immigration officers already receive such training, and staff exercising maritime powers would undergo further specialist training. [113] In terms of welfare risk assessments, Tom Pursglove said that a requirement to carry out risk assessments before and during any exercise of the powers would be specified in operational procedures. [114]
Amendment 145, also proposed by Paul Blomfield, would have required the Government to publish a list of states or territories it had secured returns agreements with. Mr Blomfield cast doubt on the Government's prospects for securing any such agreements, suggesting that the clause reflected a wider problem with the Bill, whereby "The Government are trying to talk tough and grab headlines but with proposals that are actually undeliverable and that will not solve the problem of people smuggling". [115]
Bambos Charalambous made a similar point about the proposed new powers to stop, board, and divert vessels, contending that "Ultimately, these proposals are extremely dangerous, and, if attempts were made to exercise the powers, lives at sea will surely be endangered. If attempts are not made to exercise them, then what is the point of passing them into law?" [116]
Addressing opposition Members' concerns about provisions in the Bill giving officials immunity from criminal and court proceedings, Tom Pursglove said that "these protections are nothing new." [117]
The clause was ordered to stand part of the Bill by 8 votes 7. [118]
Authorisation to work in UK waters (clause 42)
The Government's new clause 20 (and related amendments) replaced the previous placeholder clause on authorisation to work in the territorial sea with a new clause and schedule (clause 42 and Schedule 5). [119] The Minister said that the new clause "will clarify the legal framework but will not change the existing position that migrant workers need permission to work in UK waters." [120] He also confirmed that it would not affect people engaging in innocent passage or crew who are covered by section 8 of the Immigration Act 1971.
Removals and immigration bail (clauses 45-47)
Clauses 45 and 46 (previously clauses 43 and 44) reflect changes made by the Government's new clause 28 and new clause 8 and related schedule. The changes did not affect the clauses' underlying principles.
Clause 46 and Schedule 7 make changes to the early removal scheme for foreign national offenders. Tom Pursglove said that the clause was part of a package of changes which would provide "greater opportunity to remove as many foreign national offenders from the UK as early as possible". [121]
The Labour and SNP frontbenchers both spoke against what became clauses 45-47, emphasising various concerns about access to justice for people affected. There was a division on clause 47 standing part of the Bill. [122]
Bambos Charalambous pressed Labour's proposed amendment to clause 45 (leaving out subclauses allowing for no notice removals) to a division. [123]
Paul Blomfield had tabled an amendment which would have prevented the deportation of foreign national offenders who had arrived in the UK before their tenth birthday. [124] Tom Pursglove agreed to write to Committee members providing information about agreements made by the Government with other countries about the deportation of people who moved to the UK before the age of 12. [125] His "will write" letter of 2 November confirmed that an "operational agreement" had been made with the Jamaican High Commission in relation to the 2 December 2020 charter flight and that no similar arrangements have been made with other countries. [126]
2.5 Part 4: Age assessments (Government new clauses)
Clauses 48 – 56, considered in Public Bill Committee as new clauses 29 – 37, form a new Part 4 to the Bill. They replace the placeholder provisions in clause 58 of the Bill as originally introduced.
Very briefly, the new clauses:
• Introduce new processes for conducting age assessments in respect of people who require leave to enter/remain and for whom there is "insufficient evidence to be sure of their age" and establish the "balance of probabilities" as the standard of proof for such assessments.
• Specify powers and responsibilities of the Secretary of State, local authorities and "designated persons" (in practice, officials of the proposed National Age Assessment Board (NAAB)) to require and conduct age assessments (clauses 49, 50).
• Allow for the use of scientific methods in age assessments (clause 51) and for more detailed provisions about the conduct of age assessments to be specified in regulations subject to the affirmative procedure (clause 52).
• Provide for a right of appeal to the First-Tier Tribunal against an age assessment conducted by the NAAB or a local authority (clauses 53, 54) and allow for civil legal aid to be available for such appeals (clause 56).
• Outline the scope for conducting a further age assessment if significant new information about a person's age comes to light after an assessment or appeal has taken place (clause 55).
Criticisms and concerns raised by Labour and SNP Members in debates in Committee on the new clauses included:
• That the Government has failed to provide compelling evidence to demonstrate why its proposed new approach is necessary, and that there had been limited opportunity for scrutiny of the new clauses.
• That the wide threshold for coming within the proposed definition of an age-disputed person will result in a significant increase in the number of people subjected to age assessments.
• That the proposed standard of proof is inappropriately high considering the difficulties of assessing age accurately and the risks arising from children being wrongly identified as adults.
• That the proposed role and responsibilities of the Home Secretary and NAAB will undermine local authority expertise and autonomy.
• That there is an absence of detail in the Bill about how the NAAB will be established and resourced, and what mechanisms will be in place to ensure its accountability, transparency and independence from the Home Office.
• Doubts about the ethics and validity of scientific methods for age assessments, and whether it is appropriate to potentially draw adverse credibility findings if a person refuses to consent to a specified scientific method.
Craig Whittaker (Government Whip) responded on behalf of the Government. He described the NAAB as "a decision-making function in the Home Office" which would mostly consist of qualified social workers. [127]
As per clause 51, regulations may specify scientific methods for conducting age assessments. Scientific methods may only be specified in regulations if the Secretary of State has sought scientific advice and determined that the method is appropriate for assessing age. Craig Whittaker said that this is a safeguard which responded to ethical concerns which had been raised about the use of scientific methods. [128]
Labour and SNP members of the Committee were concerned, however, that under clause 51(9), it would remain possible to use a scientific method which had not been specified for age assessment purposes, "if the decision-maker considers it appropriate to do so and, where necessary, the appropriate consent is given." [129] Craig Whittaker responded by emphasising that failure to consent to those methods would not affect a person's credibility. The "will write" letter of 4 November provided some further commentary on clause 51(9).
Responding to comments about the use of scientific age assessment methods, Mr Whittaker contended that allowing for the use of scientific methods would enable the UK "to emulate best practice across Europe and to ensure that unaccompanied asylum-seeking children are provided with the care they are entitled to in a safe environment." He noted that such methods are not new and highlighted some examples of how they are used in other European countries. [130] A February 2021 European Migration Network ad hoc query is a source of more detailed information about age assessment techniques used in over 20 EU Member States. [131]
Referring to the potential impact on a person's credibility if they failed to consent to a specified scientific age assessment method without reasonable grounds, Mr Whittaker argued that the introduction of scientific age assessment methods would be "entirely undermined" if a person could simply refuse to co-operate. [132]
Clauses 48 – 52 were each approved upon division by 10 votes to 6. [133] Clauses 53 – 56 were added to the Bill without division. [134]
The Labour and SNP frontbench teams argued that it is inappropriate for a Bill focused on immigration and enforcement to include measures relating to modern slavery and trafficking. They also shared a general concern that various provisions in the Bill would undermine protections previously provided for in the Modern Slavery Act 2015. [135]
There were stand part divisions on clauses 57 – 64 and 67. [136] Labour pressed various amendments to divisions. Broadly, these aimed to provide certain protections/exemptions for child victims of trafficking/slavery, and to enshrine certain existing practices in primary legislation. [137]
The Minister sent two "will write" letters relevant to Part 5, dated 2 November 2021 (in relation to clauses 57 and 58) and 4 November 2021 (in relation to clause 67 and the EU Trafficking Directive).
Slavery or trafficking information notices (clauses 57 and 58)
Discussions about clauses 57 and 58 (clauses 46 and 47 as considered in Committee) and related non-government amendments covered much of the same ground as the debates on evidence and priority removal notices provided for in Part 2 of the Bill. [138] As with the provisions in Part 2, the Minister said that many of the issues identified by Labour and the SNP would be best dealt with in policy guidance. He emphasised a desire to work with stakeholders to develop that guidance. [139]
Holly Lynch (Shadow Minister for Crime Reduction and the Courts) highlighted concerns about Part 4's effect on children, as expressed by NGO stakeholders and the Independent Anti-Slavery Commissioner. [140] The Independent Anti- Slavery Commissioner wrote to the Home Secretary in September 2021 with detailed comments on the Bill and particular areas of concern in Part 5. [141]
Labour proposed some amendments to exclude people who were exploited as children from the scope of the provisions, noting that statutory guidance on the Modern Slavery Act requires child protection measures to be followed in such cases. [142]
Neil Coyle spoke to a string of amendments tabled in the name of Dame Diana Johnson, which would have protected victims of trafficking for sexual exploitation from some of the Bill's effects. [143] These included a proposed new clause creating a new offence of trafficking a person to the UK for sexual exploitation. [144] Tom Pursglove argued that this is not necessary in light of existing provisions in the Modern Slavery Act 2015 and comparable legislation in Scotland and Northern Ireland. [145] Dame Diana has tabled a similar amendment for Report stage (NC3).
Labour and the SNP frontbenches suggested that, contrary to the Government's stated intentions, the issuing of information notices could significantly delay victims' access to support . [146] In response to probing questions about how the process for serving information notices would impact on the timing of a person entering the National Referral Mechanism and the issuing of reasonable grounds decisions, Tom Pursglove agreed to write to the Committee with some additional commentary. [147] The clauses are referred to in his "will write" letter of 2 November. [148] As an additional follow-up to issues raised in Committee, the letter also provides some information about the Government's assessment of the scale of abuse which the clauses are intended to address. [149]
Identification of potential victims (clause 59)
Labour's amendment 183 sought to retain the existing reasonable grounds threshold specified in the Modern Slavery Act 2015 (that a person "may be" a potential victim). Holly Lynch questioned why the Government consider change necessary. She highlighted Home Office data showing that around nine in 10 of all reasonable and conclusive grounds decisions are positive, arguing that the success rates indicate that the threshold is already set at an appropriate level. [150]
Tom Pursglove described the clause as making a "minor change" which would provide clarity by bringing the reasonable grounds threshold into closer alignment with the Council of Europe Convention on Action Against Trafficking (ECAT) and the approach taken by the devolved Administrations. [151]
Labour also proposed an amendment to introduce Multi-Agency Assurance Panels at the reasonable grounds stage and enable them to overturn decisions made by a competent authority. [152] Holly Lynch expressed concern that the introduction of trafficking information notices could affect the speed of reasonable grounds decision-making. Extending the Panel's role, she suggested, could improve confidence in and scrutiny of reasonable grounds decisions, which she characterised as "effectively the gateway to all anti- trafficking support". [153]
Responding for the Government, Craig Whittaker said that it would consider the conclusions of the recent evaluation of the panels "in due course", and that primary legislation would not be needed if it subsequently decides to make changes to the panels' remit. [154]
Recovery periods for potential victims (clauses 60-61)
Labour and the SNP questioned, on various grounds, the rationale for legislating to shorten the recovery period for victims of trafficking to 30 days. [155] Labour's proposed amendment would have specified a minimum recovery period of 45 days. [156] In response, Craig Whittaker argued that the amendment was not necessary, noting that 45 days is already provided for in the statutory guidance issued under the Modern Slavery Act 2015. He also acknowledged that the average time for conclusive grounds decisions is currently significantly longer than 30 or 45 days (339 days in 2020) but said that the Government is working to reduce this. [157] Pressing the amendment to a vote, Holly Lynch contended that "the fact that it is 45 days in the statutory guidance shows why the Bill is an absolute nonsense and does not make the first bit of sense." [158]
Clause 61 (clause 50 as considered in Committee) allows for a person not to be granted an additional recovery period in the event of receiving a further positive reasonable grounds decision. Labour and the SNP questioned what evidence of abusive additional trafficking claims exists. [159] Holly Lynch highlighted concerns about the clause's potential impact, including on child victims (both migrant and British children).
Craig Whittaker clarified that the clause "is focused on removing the presumption for multiple recovery periods where the period of exploitation happened before the original recovery period was provided." He emphasised that it does not prevent individuals who have been re-trafficked from receiving a further recovery period, and nor is it intended to act as a "blanket disqualification" from multiple recovery periods. As with many other of the provisions in the Bill, he pointed to the fact that decision makers would retain discretion, underpinned by guidance, to grant more than one recovery period on a case-by-case basis. [160]
Disqualification from protection (clause 62)
Holly Lynch and Stuart McDonald expressed similar concerns about clause 62. This allows for a person in receipt of a positive reasonable grounds decision to be disqualified from the protections given to trafficking or slavery victims if they are deemed to be a threat to public order or to have claimed to be a victim in bad faith.
Specific concerns highlighted by Labour and the SNP were the clause's broad scope, impact on children who are victims of child criminal exploitation and people who were targeted by traffickers because they already have minor convictions, and potential conflicts with statutory safeguarding duties under the Children Act 2004, protections in the Modern Slavery Act 2015, and provisions in the ECAT. [161]
Stuart McDonald argued that guidance on implementing ECAT already provides a remedy for dealing with improper claims or cases that raise public order concerns. [162]
Various external stakeholders, including the Independent Anti-Slavery Commissioner, have warned that the clause will make it harder to convict perpetrators and target organised crime groups. Holly Lynch echoed those concerns, contending that the clause would "drive more people underground and make it significantly harder for the police and the authorities to investigate". She further commented "It also sends the clear message to those perpetrators that they are free to exploit someone with a criminal record, knowing that they will be exempt from protection." [163]
Leave to remain for victims of slavery or human trafficking (clause 64)
Holly Lynch contested Craig Whittaker's assertion that the clause would provide clarity and certainty over the circumstances when victims might qualify for temporary leave to remain.
A key concern for Labour, shared by the SNP frontbench, was that the clause does not use the same wording ("personal situation") as Article 14 of ECAT, when setting out the grounds for granting immigration leave. Craig Whittaker said that the approach taken in the Bill would support clarity of decision making, by defining for domestic purposes what is meant by "personal situation". [164]
Labour's amendment 189, which was rejected upon division, would have incorporated into primary legislation child victims' entitlement to immigration permission (in accordance with Article 14 of ECAT). [165] Craig Whittaker argued that it was not necessary, emphasising that children's particular vulnerabilities are "built into our consideration of how the clause will be applied", and that the clause's wording already reflects international legal obligations. [166]
Amendments proposed by Labour would have specified that confirmed victims in England and Wales be granted leave for a minimum of 12 months and would have removed subsections (3) and (4) of the clause, which identify circumstances in which a grant of immigration leave is not necessary (e.g., where a person's need for assistance can be met in a country of proposed removal). Craig Whittaker said that decision makers would be able to draw on guidance and country information to assess whether the victim would be able to access the support and recovery they need in the country of return. He also said that decisions on the length of temporary immigration permission granted would reflect the individual's needs, commenting: "If they need six months they will get six months. If they need longer than that – whether for a court case or other circumstances – that is intended to be allowed for the individual." [167]
A government amendment to clause 64 corrected a minor drafting error. [168]
Removal of good faith clause
The Government moved an amendment to remove the good faith requirement (clause 64 of the Bill as originally introduced to the Commons). Craig Whittaker explained that the Government had considered the impact of the clause and what it adds to wider provisions, and views expressed by wider stakeholders. [169]
Visa penalties for uncooperative countries (clauses 69- 70)
Clauses 69 and 70 replace a previous "placeholder" clause. They now include some additional details about how the proposed new powers to use the visa system to penalise countries that do not cooperate with removals of their nationals from the UK would be exercised. [170]
In response to questioning by Paul Blomfield and Anne McLaughlin (SNP), Craig Whittaker gave an assurance that refugee family reunion cases would be exempt from visa penalties. [171]
Referring to the existence of similar powers in the US and EU, Mr Whittaker said that the new powers would "ensure that we are no longer lagging behind our international partners" and described them as "a critical step in taking back control of our borders". [172] Mr Whittaker also emphasised that visa penalties are intended to be used as a "last resort", and for no longer than necessary. He highlighted the provisions in clause 70, which require the ongoing need for a visa penalty to be reviewed on a bimonthly basis. [173]
Clause 69 was added to the Bill upon division, by 10 votes to 2. [174]
Government new clause: Counter-terrorism questioning of detained entrants away from place of arrival (clause 74)
This clause would amend Schedule 7 of the Terrorism Act 2000. [175] It would broaden the definition of "ship" in that Schedule and enable a person who has arrived in the UK by sea within the past five days and is being detained under immigration Act powers to be questioned about involvement in terrorism.
Full text of all amendments and new clauses proposed for consideration at Report stage, with accompanying explanatory statements, can be accessed from the 'publications' tab of the Bill's pages on the Parliament website.
High-profile non-government amendments, which attracted cross-party support in advance of report and third reading, included the following.
Preventing offshore processing of asylum claims (Amendments 9 – 11)
These amendments would amend clause 28 and Schedule 3 of the Bill, to retain the status quo that a person cannot be removed from the UK whilst they have a pending asylum claim. They have been tabled by David Davis (Conservative) and the principal supporters are Caroline Nokes (Conservative, former Immigration Minister), Andrew Mitchell (Conservative, former International Development Secretary and Government Chief Whip), and Alistair Carmichael (Liberal Democrats, Home Affairs spokesperson).
Giving Chagossians an entitlement to registration as British nationals (NC2)
This clause would create an entitlement to registration, free of charge, as a British Overseas Territories citizen and as a British citizen, for anyone who is a direct descendent of a person born before 1983 on the British Indian Ocean Territory.
The long-running campaign to allow descendants of people born on the Chagos Islands to register as British Overseas Territories Citizens has been championed in Parliament by the clause's sponsor, Henry Smith (Conservative). A previous Home Affairs Committee has also expressed support for the Chagossian's cause. [176] The background to the Chagossians' situation was set out in Public Bill Committee during debate on an identical clause, which was supported by Labour and the SNP. [177]
Tom Pursglove confirmed that he was "sympathetic" to the clause's aims, but was unconvinced that the clause as drafted was the correct approach.
Highlighting concerns about its open-ended nature, he observed that it "would offer British citizenship in perpetuity to those born outside the UK". The general approach in British nationality law is that nationality and entitlements can only be passed on to one generation born and settled overseas. The Minister asked for an opportunity "to reflect further on the complex issues faced by Chagossian communities in the UK and those in Mauritius and the Seychelles ... before making any significant changes to nationality law". He emphasised to the Committee that "there is a willingness to look closely at the Chagossian issue." [178]
Right of abode for former British-Hong Kong service personnel (NC 4)
This clause would grant the right of abode to all former British-Hong Kong service personnel, and their spouses and dependents (without age restrictions). The right of abode enables a person to travel to and from, and live and work, freely in the UK without requiring a visa or being subject to immigration time restrictions.
It has been estimated that the proposed new clause would benefit around 300 Hong Kong servicemen (1,000 people in total including family members). [179]
There has been a long campaign to grant the right of abode or British citizenship to locally recruited Hong Kong veterans. [180] It has been supported by Andrew Rosindell (the clause's sponsor) and several other Parliamentarians. [181]
The servicemen had been eligible to apply for British citizenship in the 1990s, under the quota-based British Nationality (Hong Kong) Citizenship Selection Scheme. But campaigners say that only a small number of soldiers in the Hong Kong Military Service Corps benefitted from the Scheme.
Since 2016, successive governments have said that the Home Office is considering representations made on behalf of former Hong Kong servicemen. [182] But Tom Pursglove was not receptive to the proposed new clause when an identical version was considered in Public Bill Committee. [183] In addition to concerns about the impact on public services, he commented that "it might be difficult to justify why this specific cohort should be granted the right of abode when others from former colonial garrisons are not." [184] He also noted that the servicemen would have been eligible to apply for British National (Overseas) status in the run-up to the Hong Kong handover. [185]
Broadening eligibility for British National (Overseas) visa (NC 5)
This clause, tabled by Damian Green, former Immigration Minister, echoes a recommendation made by the Home Affairs Committee in its recent inquiry into the UK's visa offer for residents of Hong Kong. [186]
The proposed new clause would enable people who have a parent with British National (Overseas) - 'BNO' - citizen status to apply for a BNO visa independently of their parent. [187] Currently, non-BNOs can only apply for the visa if they are the dependent family member of a person with BNO citizen status who is also applying.
The change would benefit young adults who do not have BNO status in their own right (for example, because they were born after the cut-off date for applying) and whose BNO parent(s) do not wish to move to the UK.
Mr Green has suggested that, as well as meeting a "moral obligation" to young Hong Kong citizens and rectifying an "unfair" policy, extending the eligibility criteria for the BNO visa would also help to alleviate pressure on the asylum system. [188] Bambos Charalambous made similar points when proposing a related new clause in Committee. [189]
The Government has previously said that it understands concerns about accessibility to the BNO visa route. But it has ruled out broadening the scope of the visa's eligibility criteria. It argues that people ineligible for the BNO visa can make use of other visa routes, such as the Youth Mobility Scheme or as a Skilled Worker visa holder. [190]
Campaigners argue that these routes are inadequate, and that some young Hong Kong activists are overstaying their visas or claiming asylum in the UK due to an absence of alternative options.
On 1 December the Government gave notice of 80 proposed amendments to the Bill. Many of these make minor drafting or technical changes or are consequential to other proposed amendments, but a significant number would make more substantive changes and additions to the Bill.
Proposed changes to Part 1 (nationality)
Amendments 17-18 are drafting and consequential amendments to clause 9.
Proposed changes to Part 2 (asylum)
Amendments 19 – 25 would make technical changes to clause 12, which is concerned with the use of asylum accommodation centres.
Amendment 26 would amend clause 15, which relates to inadmissibility procedures for asylum claims connected to safe third States. It would remove the power to consider an asylum claim previously declared inadmissible in circumstances where the Secretary of State determines that the person's removal to a safe third State within a reasonable period is unlikely to be possible.
Amendment 27 would amend clause 17 so that a person who provides the Tribunal or SIAC with late evidence would also have to provide them with their reasons for the lateness. Amendment 30 makes a similar change to clause 19 in respect of submissions made after a Priority Removal Notice cut-off date.
Amendments 28 – 29 would amend clause 18 (damage to a claimant's credibility). Amendment 29 would introduce a requirement for the Tribunal or SIAC to explicitly address section 8 of the Asylum and Immigration (Treatment of Claimants, Etc.) Act 2004 (behaviours damaging to credibility) in their decisions.
Amendments 31 – 38 would make various changes to clause 21 (late compliance with priority removal notices: damage to credibility) including how it applies to the Tribunal and SIAC.
Amendments 39 – 40 would raise the threshold for an appeal to be removed from the expedited appeal process for priority removal notice cases (provided for in clause 22) from being "in the interests of justice" to if it is "the only way for justice to be done". Amendment 42 makes the same change to the wording of clause 23 and Amendments 46-47 likewise amend clause 26 in relation to removing cases from the accelerated detained appeal route.
Amendments 91 - 93 would change Schedule 2 (introduced by clause 22).
Amendments 44 – 45 specify that clause 25 would not apply to the Upper Tribunal when it is acting in judicial review proceedings.
Amendments 48 – 50 would change the wording of clause 34 (which sets out a definition of the "internal relocation" concept in the 1951 Refugee Convention), to clarify that a person would not qualify as a refugee if there is a part of their country of nationality/habitual residence where they can reasonably be expected to travel to and remain in (regardless of if they have been there previously).
Proposed changes to Part 3 (immigration control)
Amendments 51 - 59 would amend clause 39, to include the offence of knowingly remaining in the UK beyond the length of immigration permission (i.e., overstaying) and increase the maximum penalty for that to up to four years' imprisonment.
Amendments 60 - 63 reflect commitments made by the Government at earlier stages of the Bill to amend clause 40, to provide for exclusions or defences to the offences of facilitating illegal entry or the entry of asylum seekers (see p.21-2 of this briefing for background).
Amendments 94 – 95 would amend Schedule 4 (introduced by clause 41). The changes would include providing discretion for the Secretary of State to reduce the amount of a penalty issued under the clandestine civil penalty regime, where the person can show they took reasonable steps to secure the vehicle (amendment 94), and removing a defence to the related offence of carrying a clandestine entrant (namely, that the driver was unaware of the clandestine entrant and had taken steps to secure their vehicle) (amendment 95).
Proposed changes to Part 5 (modern slavery)
Amendments 64 – 66 would amend clause 60:
• to remove the requirement that there must be at least 30 days between the making of a positive reasonable grounds decision and a conclusive grounds decision (amendment 64);
• to ensure that an identified potential victim would be entitled to a recovery period of at least 30 days even where a conclusive grounds decision is made within 30 days of the positive reasonable grounds decision (amendment 66);
• to clarify that the prohibition on removal during the recovery period does not apply where a person is disqualified from protection under clause 62 (amendment 65).
Amendments 67 – 69 would amend clause 61, which concerns entitlements and protections for people who receive a further positive reasonable grounds decision. Amendment 69 replaces subsections (2) to (4) with alternative provisions.
Amendments 70 - 71 would amend clause 62. Amendment 71 would provide that the requirement to grant leave to remain as a victim of trafficking or modern slavery under clause 64 does not apply to a person disqualified from protection on public order or bad faith grounds.
Amendments 72 – 75 would amend clause 63, which concerns identified potential victims' assistance and support entitlements. Amendment 72 would change the definition of "harm" used to inform whether support is necessary. It would replace the reference to harm to a person's "social well-being" with a reference to their "physical, psychological or social harm". The Government says that this follows the wording of ECAT more closely.
Amendments 76 – 83 would amend clause 64, which is concerned with the granting of immigration permission to victims of slavery of trafficking.
Amendment 76 removes one of the purposes for which leave to remain must be provided (namely, to assist a victim in recovery from harm to their social well-being). Amendment 80 confirms that a trafficking victim may be removed to a country that is not a signatory to ECAT, if the UK has made an agreement with that country.
Proposed changes to Part 7 (general)
Amendment 84 would amend clause 81 (on territorial extent), to allow for provisions to be extended to the Channel Islands and Isle of Man.
Amendments 85 – 90 would change arrangements for commencement as covered by clause 82. Amendment 87 would bring specified regulation- making powers in the Bill into force upon Royal Assent. The regulations would come into force at later dates.
Report stage was on 7 and 8 December 2021. All the government amendments were added to the bill. Several non-government amendments were also pressed to a division, but none were successful. [191]
For an overview of the amendments and related debates and divisions, see section 2.3 of the Lords Library briefing on the bill. [192]
Debate on third reading took place on 8 December 2022. The bill was given a third reading by 298 votes to 231. [193]
The Bill had second reading in the Lords on 5 January 2022. Committee stage took place between 27 January – 10 February. Report stage was held over 28 February, 2 March and 8 March.
Government amendments to three areas of the Bill were approved at report stage without divisions. The Government also gave its backing to Lord Anderson of Ipswich's amendments to clause 9. They were approved without division, but Peers subsequently voted to remove clause 9 from the Bill.
There were 19 government defeats at report stage.
Several tidying up amendments, mostly relating to non-government amendments, were approved at third reading on 14 March.
For a brief overview of debates at each of the Bill's stages in the Lords, see the Lords news story Lords concludes examination of Nationality and Borders Bill, 15 March 2022.
The following section provides an overview of the main Lords amendments to be considered by the Commons on 22 March. References to clause numbers in this section of the briefing relate to HL Bill 82 (the Bill as introduced to the Lords).
Requirements for applications for British nationality (Lords amendments 2, 3, 43-51)
Minor and consequential amendments to clause 8 and Schedule 1 would amend the British Nationality Act 1981. Briefly, they allow the Home Secretary to treat a person who has indefinite leave as meeting lawful residence requirements for certain categories of naturalisation or registration as a British citizen/British overseas territories citizen, without further enquiry.
The amendments respond to concerns raised during the Bill's earlier stages, including by Baroness Ludford (LD), that existing powers to exercise discretion give insufficient certainty to applicants. By way of example, Baroness Ludford had highlighted the position of people granted immigration status under the EU Settlement Scheme despite not having satisfied a requirement to have had comprehensive sickness insurance. [194]
The amendments do not remove the lawful residence requirement but are intended to provide a broader power not to inquire into a person's previous lawful residence. During debate at report stage, Baroness Williams, Home Office Minister, gave several assurances about how the Government anticipated they would be applied in practice. [195]
The amendments (amendments 3 – 13 at report stage) were all agreed without divisions. [196]
Wasted costs orders (Lords amendment 41)
This government amendment makes a technical amendment to clarify the drafting of clause 77(1). It was approved at report stage as amendment 73, agreed without a division. [197]
Visa penalties (Lords amendments 28-39; 42)
Further to Russia's military invasion of Ukraine, the Government tabled three new clauses and some amendments to clause 69. These changes would allow for the visa penalty powers (as outlined in previous versions of clause 69) to be applied to applicants from countries whose governments the Home Secretary considers have taken action that poses a threat to international peace and security or is likely to lead to armed conflict or a breach of humanitarian law. Lords amendment 42 amends clause 83 to provide that the provisions would come into force upon Royal Assent.
Baroness Williams confirmed that the Government intends to use the powers in respect of Russia. She explained:
The ability to suspend the granting of entry clearance for Russian nationals will send a strong signal to the Putin regime that they cannot invade their peaceful neighbour and expect business as usual. Although we do not believe this war is in the name of the Russian people, disadvantaging Russian nationals in this way, as part of our wider package of sanctions, will contribute to the pressure on the Putin regime. [198]
The Lord Bishop of Chelmsford raised concerns about how the powers might impact on people who were critics of their national governments. [199]
Lord Paddick, speaking for the Liberal Democrats, drew attention to the absence of provisions for parliamentary oversight of exercise of the powers. He commented that they "allow the Secretary of State to impose, or not impose, visa restrictions and penalties on countries which, in her opinion, pose a threat. This allows her to exempt whoever she thinks should be exempted, without any parliamentary scrutiny, oversight or involvement in the decision-making." [200]
In response, Baroness Williams argued that it would be disproportionate to adopt processes similar to those in the Sanctions and Anti-Money Laundering Act 2018. She contrasted the "tightly defined" and "limited" visa penalty powers with the breadth and scope of sanctions Act powers. [201]
Labour gave its support to the amendments. They were agreed (as amendments 70B-N and 84E) without division. [202]
4.2 Non-government amendments (government defeats)
Provision for Chagos Islanders to acquire British nationality by registration (Lords amendment 1)
This amendment would insert a clause amending the British Nationality Act 1981 to provide a time-limited entitlement for descendants of Chagos Islanders to be registered as British overseas territories citizens and British citizens, free of charge. It was tabled in the name of Baroness Lister of Burtesett (Lab), Lord Ramsbotham (CB), Baroness Altmann (Con) and Baroness Ludford (LD).
The amendment would benefit second and successive generations of Chagossians born outside of British territory.
Versions of the amendment were considered at previous bill stages. [203] It was redrafted after debate in Committee to include a five-year time limit for applying for registration. This was in response to concerns Ministers had expressed about creating an open-ended entitlement to registration.
The proposed new clause's supporters and detractors continue to disagree about whether it would set a precedent for extending eligibility for British nationality to other overseas-born descendants of British nationals. Currently, British nationality only automatically descends to one generation born overseas.
Successive governments have taken the view that "For [second and successive generations], if they wish to acquire British nationality, it is right that they must establish a close, continuing connection with wither the UK or a British overseas territory by lawfully residing and settling there." [204]
The amendment's supporters argue that Chagossians are in a unique position, because they were forcibly exiled from a British overseas territory. [205]
The amendment was approved at report stage as amendment 1 by 237 votes to 154. [206]
No-notice deprivation of citizenship powers (Lords amendment 4)
The amendment would remove from the Bill clause 9 (powers to make a deprivation of citizenship order without giving notice to the person affected).
Clause 9 was introduced as a government amendment at Commons Committee stage. It has generated significant debate and prompted renewed criticism of deprivation of citizenship powers more generally. A public petition on the UK Government and Parliament website calling for the clause to be removed from the Bill has attracted around 325,000 signatures.
Baroness Williams wrote to all Peers in January 2022 setting out the Government's justification for the clause and how it envisaged it operating in practice. [207] Her letter responded to a series of questions raised by Lord Anderson of Ipswich (CB) during second reading debate. [208]
Briefly, the Government has said that the power to make "no-notice" deprivation decisions would only be used in exceptional circumstances, such as when it is unaware of a person's location, or they are in a warzone where they can't be contacted, or because informing them would reveal sensitive intelligence sources. But critics argue that the drafting of the clause does not specify such limitations and gives the Home Secretary far greater discretion over when no-notice decisions could be made. It also fails to reflect other statements Ministers have made about how the powers would be exercised, such as how no-notice decisions would affect exercise of appeal rights.
At report stage, Peers agreed to a set of amendments to clause 9 (considered as amendments 14 – 19 and amendment 85). These were tabled by Lord Anderson of Ipswich and had government backing. They were agreed to without division. [209] They would have introduced various limitations and safeguards on the exercise of no-notice deprivation decisions. Notably:
• Restricting the circumstances in which notice may be withheld and introducing a stronger test requiring the Secretary of State to "reasonably consider it necessary" that notice should not be given.
• Providing for judicial oversight of decisions to deprive a person of their citizenship without notice on the grounds that deprivation is conducive to the public good.
• Providing for late notice to be given to a person deprived of their citizenship if they subsequently contacted the Home Office
• Providing that time periods for people deprived of citizenship without notice to bring an appeal against the decision would not start to run unless and until the person had subsequently been given notice.
Peers subsequently voted in favour of an amendment to remove clause 9 from the Bill, by 209 votes to 173 (amendment 20). [210] That amendment was tabled by Baroness D'Souza (CB), Lord Rosser (Lab) and Lord Paddick (LD).
Further reading
• HL Deb 28 February 2022 c578-605 (Minister's comments from c597)
• Letter from Baroness Williams to all Peers, 25 January 2022, DEP 2022- 0060
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Twelfth report, HC 1007, 19 January 2022 and Government response, HC 1208, 18 March 2022
• GOV.UK, Nationality and Borders Bill: Deprivation of Citizenship factsheet, 2 March 2022
Compliance with the Refugee Convention (Lords amendment 5)
This amendment would insert a new clause confirming that nothing in Part 2 of the bill authorises policies or decisions which do not comply with obligations under the 1951 Refugee Convention. It was proposed by Baroness Chakrabarti (Lab), Lord Judge (CB), Lord Pannick (CB), and Baroness Hamwee (LD).
Speaking to the amendment at report, Lord Judge said that it would achieve the intention shared by the Government and critics of the bill, that it complies with the UK's obligations under the 1951 Refugee Convention. [211] Section 2 of the Asylum and Immigration Appeals Act 1993 makes a similar provision, in respect of the Immigration Rules.
Lord Wolfson of Tredegar, Justice Minister, summarised the Government's reason's for objecting to the proposed amendment:
To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. [212]
The amendment was agreed at report stage (as amendment 25) by 218 votes to 140. [213]
Further reading
• HL Deb 28 February 2022 c606-612 (Minister's comments from c607)
• Letter from Lord Wolfson of Tredegar to all Peers, 24 February 2022, DEP 2022-0196
Differential treatment (Lords amendment 6)
This amendment would remove from the Bill clause 11 (introducing powers for the differential treatment of refugees according to the nature of their arrival in the UK). It was in the name of Lord Kerr (CB) and sponsored by Lord Paddick (LD), Lord Rosser (Lab) and Lord Etherton (CB).
The clause is one of the most controversial elements of the Bill. The Government has consistently maintained that it is not incompatible with the Refugee Convention, noting that 'Group 2' refugees will still receive protection in the UK. It elaborated its position in a 'will-write' letter to all Peers of 24 February:
Distinguishing between different refugees forms part of the Refugee Convention itself. For example, the entire 'structure of entitlement' under the Refugee Convention rests on different levels of attachment, with physical presence and lawful presence, distinguished for purposes of various entitlements. Article 31 does not contain a blanket prohibition on the imposition of penalties on refugees who enter or are present illegally. (...). We consider that differentiation is not a penalty, taking into account the fact that the Convention does not explicitly define 'penalty' and the fact that there is no unanimity on the definition of penalty. In any event, the Convention does not prohibit differentiation and the clear implication of Article 31 is that states are entitled to impose penalties on refugees who enter their territory illegally when the three conditions are not satisfied. [214]
It has also highlighted that the clause allows for discretion over when to use the differentiation powers. Speaking at report stage, Baroness Williams concluded:
This clause strikes a robust balance between firmness and fairness, with a firm policy response to the evidential picture about secondary movements and upholding the first safe country principle, but fair in its acknowledgement that we absolutely must be sensitive to the vulnerabilities of certain asylum seekers. [215]
Lord Kerr illustrated his concerns about the impact of clause 11 by referring to its potential effect on Ukrainian refugees. Due to currently being unable to travel directly to the UK, they could be categorised as 'Group 2' refugees and therefore given an inferior status and rights in the UK. [216]
The amendment was approved at report stage as Lords amendment 28 by 204 votes to 126. [217]
Further reading
• HL Deb 28 February 2022 c613-630 (Minister's comments from c624)
• Letter from Lord Wolfson of Tredegar to all Peers, 24 February 2022, DEP 2022-0196
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Twelfth report, HC 1007, 19 January 2022 and Government response, HC 1208, 18 March 2022
• GOV.UK, Nationality and Borders Bill: Differentiation factsheet, 2 March 2022
Extending asylum seekers' employment rights (Lords amendment 7)
This new clause would give asylum seekers permission to work if they had been waiting for more than six months for a decision on their asylum claim or fresh claim. It was tabled in the name of Baroness Stroud (Con), Baroness Lister (Lab), Baroness Ludford (LD) and Baroness Meacher (CB).
The arguments about relaxing restrictions on asylum seekers' rights to work in the UK are long-running and well-rehearsed. [218] Baroness Stroud summarised them when pressing her amendment to a vote at report stage: "the right to work for asylum seekers after six months is a policy that is economically, socially and politically advantageous. It confers dignity on those who have sought safety here and, as we have heard, there is little to no evidence that it creates pull factors. It would also help the Home Office with pressure on its claims system." [219]
Successive governments have argued that restrictions are necessary to protect the integrity of the immigration system. They have also argued that employment opportunities act as a pull-factor for asylum claims in the UK. Baroness Williams explained this rationale at report stage:
A more relaxed asylum seeker right to work policy creates a back door into our labour market. We have just set up a world-leading economic migration scheme, which provides ample opportunity for people of varying skill and educational levels to apply to come and work in the UK. In fact, this scheme was a core manifesto commitment; it was not about Brexit. However, we cannot afford to turn around and offer people the opportunity to undercut it through simply lodging an asylum claim. Our policy is a constituent part of a whole; it does not operate in isolation.
Elaborating on pull-factor concerns, she said:
...the French cite the ability to work as a pull for those making channel crossings. Whether that is about the availability of work in the shadow economy or not is actually quite irrelevant. The point that we are being told by senior French Ministers is that these people are motivated to move from one safe country to another because they want to work. This was reiterated in a sobering BBC World Service investigation into the tragedy in the channel last November. Through deep research into the lives and families of the victims, the journalists ultimately found that they were all motivated to come to the UK from France for economic reasons. The solution here is to decide cases more quickly, and that is what we are doing through the wider new plan for immigration. [220]
Baroness Stroud's amendment attracted broad cross-party support, including from several Conservative Peers. It was approved at report stage as amendment 30 by 112 votes to 89. [221]
Safe third state: commencement (Lords amendment 8)
Clause 15 gives powers to declare as inadmissible an asylum claim made by a person with a connection to a safe third country. Lords amendment 8 would insert a new clause preventing clause 15 from coming into force until the UK has agreed formal returns agreements with one or more third states. It was tabled in the name of Lord Rosser (Lab), supported by Lord Paddick (LD).
There had been debate in Committee stage over the importance of securing formal returns agreements with other countries to the effective functioning of the inadmissibility process. [222] Introducing his amendment at report stage, Lord Rosser contended:
The reality is that we need formal return agreements in a situation where the number of people the Government intend to deem inadmissible will be high. In that situation you cannot address this through unstated, unclear, ill-defined, informal ad hoc arrangements, as the Government seek to suggest. [223]
Responding, Baroness Williams rejected the idea that the inadmissibility process is unworkable without formal returns agreements. [224]
Peers also contested whether the clause would be compatible with the Refugee Convention. A 'will-write' letter sent from Lord Wolfson to all Peers on 24 February outlines the Government's reasons for believing that the clause is compatible with the Refugee Convention.
The amendment was approved at report stage by 221 votes to 172. [225]
Further reading
• HL Deb 2 March 2022 c817-826 (Minister's comments from c820)
• Letter from Lord Wolfson of Tredegar to all Peers, 24 February 2022, DEP 2022-0196
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Twelfth report, HC 1007, 19 January 2022 and Government response, HC 1208, 18 March 2022
• GOV.UK, Nationality and Borders Bill: Inadmissibility for those travelling through or with a connection to safe third countries, 25 February 2022 March 2022
Removal of asylum seeker to safe country (Lords amendment 9, 52, 53)
These amendments would delete controversial proposed changes to the Nationality, Immigration and Asylum Act 2002 (as per clause 28 and Schedule 3) which would make it easier to remove a person to a safe third country whilst their asylum claim is pending. The practice is often referred to as "offshoring" and has been described by the Government as "overseas asylum processing".
The related amendment at report was tabled by Lord Kirkhope (Con), a former Minister for Immigration. It was supported by Lord Rosser (Lab), Lord Paddick (LD) and the Lord Bishop of Durham.
As at previous bill stages, the Government's plans for offshoring asylum claims received detailed consideration in Lords Committee. [226]
Speaking on behalf of Lord Kirkhope at report stage, Baroness Stroud (Con) said that many of the practical queries that Parliamentarians had previously raised remained unanswered. In response, Baroness Williams said that the Government "cannot give any particulars on how the process would work or how the costings would pan out" because it is in ongoing discussions with potential partner countries. [227]
The Government has said that unaccompanied children would not be liable to overseas processing. It is unwilling to confirm whether the same would also apply to children in family units, or to provide examples of other vulnerable groups that would be exempt from offshoring. Explaining the Government's reluctance to do so, Baroness Williams said that exemptions would depend on the particular circumstances of the partner countries. She also expressed a concern that "being definitive about exemptions from the policy at this stage is likely to hamper its potential to be effective and would incentivise people smugglers to target the most vulnerable in the hopes of keeping their operations viable." [228]
The amendments were approved at report stage (as amendment 35) by 208 votes to 155. [229] A couple of tidying-up amendments were approved at third reading.
Further reading
• HL Deb 2 March 2022 c838-852 (Minister's comments from c845)
• Letter from Baroness Williams to all Peers, 2 March 2022, DEP 2022-0207
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Twelfth report, HC 1007, 19 January 2022 and Government response, HC 1208, 18 March 2022
• GOV.UK, Nationality and Borders Bill: Removal to a safe third country factsheet, 4 December 2021
Legal route of entry to seek asylum and join family (Lords amendment 10)
This new clause was tabled by Lord Dubs (Lab) and sponsored by the Bishop of Durham, Lord Kerr (CB) and Baroness Ludford (LD). It would insert a new clause requiring the Immigration Rules to provide a route for unaccompanied children and certain other people in Europe to be admitted to the UK to claim asylum, where they have a close family member lawfully resident in the UK. A similar amendment had been discussed in Committee. [230]
Lord Dubs explained that the intention behind the new clause is to reinstate a route for separated children (and some other people) in Europe to join relatives in the UK, in light of the ending of the UK's participation in the Dublin III Regulations and the closure of the 'Dubs scheme' (section 67 of the Immigration Act 2016). [231]
Baroness Williams reiterated the Government's reasons for objecting in principle to the amendment's underlying aims:
I have been very clear that we will not consider a more favourable approach to family reunion in the Immigration Rules for those in the EU, including unaccompanied children, as opposed to those in the rest of the world who want to join family here in the UK. A single global approach to family reunion—as taken by our current refugee family reunion policy—is fair and does not encourage what are often dangerous journeys into Europe, facilitated by smugglers and traffickers. As I have said many times, European member states are safe countries with international obligations towards protecting asylum seekers and children, as we do here in the UK, affording all asylum seekers in Europe an opportunity to access the rights to which they are entitled. [232]
Labour supported the amendment. [233] It was agreed at report stage as Lords amendment 48 by 178 votes to 130. [234]
Setting an annual refugee resettlement quota (Lords amendment 11)
This would insert a new clause obliging the Home Secretary to resettle a combined total of at least 10,000 refugees each year under the UK's various refugee resettlement schemes. The amendment was in the name of Lord Kirkhope (Con), the Lord Bishop of Durham, and Lord Paddick (LD). Speaking in support of the amendment on behalf of Lord Kirkhope, Baroness Stroud (Con) set out its intended outcomes:
... we would be playing our part as a nation in responding to global crises and resettling 10,000 of the world's most vulnerable each year. Secondly, it would mean that we could plan and build a basic level of infrastructure at a local community level to be resilient to crises like the one playing out before us right now. [235]
In response, Baroness Williams referred to the Government's record on refugee resettlement. She noted that thus far, the UK's resettlement schemes have operated on a discretionary basis outside of legislation and the Immigration Rules and have resulted in over 27,000 people being resettled since 2015. [236]
Labour supported the amendment. [237] It was approved as amendment 49 by 169 votes to 122. [238]
Conditions for granting asylum: genocide (Lords amendment 12)
This new clause would provide that people who belong to a national, ethnical, racial or religious group deemed by the High Court to be fleeing genocide should be presumed to be eligible for asylum in the UK. The clause further allows for those people to apply for asylum whilst outside the UK, and for the Government to specify in regulations an annual limit on the number of people eligible for asylum under these provisions.
The new clause was proposed by Lord Alton (CB) and sponsored by Lord Forsyth (Con), Baroness Kennedy of The Shaws (Lab) and Baroness Cox (CB).
Lord Coaker said that Labour had some concerns about the detail of the amendment, but unequivocally supported the principle behind it. [239]
Baroness Williams said the Government could not support the amendment because it would depart from the longstanding policy that people cannot claim asylum in the UK from overseas. She argued "Even with a cap on the number of individuals ultimately recognised as refugees under the route, opening an opportunity to claim asylum could make the operation of these locations impractical and unsafe where large numbers sought to do so." [240]
It was approved at report stage (as amendment 51) by 172 votes to 120. [241]
Removing offence of arrival in the UK (Lords amendment 13; 14-19)
Lords amendment 13, moved at report stage by Lord Coaker (Lab), would amend clause 39 to prevent "arrival" in the UK without valid entry clearance being an offence.
Lord Paddick confirmed the Liberal Democrats' support for the amendment.
The issue had been considered at length at Lords Committee stage. [242] At report stage, Lord Coaker and Lord Paddick reiterated concerns that the clause "criminalises everyone who arrives in the UK to claim asylum" and that the broad drafting of the clause does not reflect the Government's stated intention that the offence would be prosecuted in a subset of cases. [243]
Baroness Williams argued that not having an offence of illegal arrival would erode the ability to prosecute people smugglers. [244]
Lord Coaker pressed the amendment to a vote, commenting that the clause would have wider implications for all asylum seekers rather than only people making irregular Channel crossings. [245] His amendment (amendment 55 at report stage) was approved by 101 votes to 96. [246] Six related tidying up amendments were approved at third reading (reflected by Lords amendments 14-19).
Further reading
• HL Deb 2 March 2022 c915-919 (Minister's comments from c917)
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Ninth Report, HC 885, 1 December 2021 and Government response, HC 1208, 18 March 2022
Assisting unlawful immigration or asylum seeker offence (Lords amendment 20)
Lord Coaker tabled an amendment to clause 40 to maintain the current position that the offence of helping an asylum seeker to enter the UK can only be committed if it is carried out "for gain". The amendment would give effect to a recommendation made by the Joint Committee on Human Rights. [247] It was approved at report as amendment 59 by 86 votes to 84. [248]
Further reading
• Letter from Baroness Williams to all Peers, 25 February 2022, DEP 2022- 0205
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Ninth Report, HC 885, 1 December 2021 and Government response, HC 1208, 18 March 2022
Maritime enforcement powers (Lords amendment 54)
Lord Coaker moved an amendment to ensure that the maritime enforcement powers (as per Schedule 6) could not be used in a manner that would endanger lives. The amendment reflects a recommendation by the Joint Committee on Human Rights. [249]
It was approved at report as Lords amendment 62 by 83 votes to 76. [250]
Further reading
• Letter from Baroness Williams to all Peers, 25 February 2022, DEP 2022- 0205
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Ninth Report, HC 885, 1 December 2021 and Government response, HC 1208, 18 March 2022
Age assessments: restrictions (Lords amendment 22)
This proposed new clause specifies certain restrictions on the conduct of age assessments (as provided for under clauses 49 and 50) and the content of regulations made under clause 51. Specifically:
• Age assessments must only be taken if there is "significant reason" to doubt the person's age.
• Age assessments must be conducted by a local authority social worker, and in accordance with guidance issued by the Association of Directors of Children's Services (or equivalents in devolved nations).
• Age assessment processes must allow for "an impartial multi-agency approach" drawing on a range of expertise.
• Scientific methods cannot be specified in regulations made under clause 51 unless the relevant professional bodies have given written approval that the method is ethical and accurate beyond reasonable doubt for assessing age.
• Any organisation established to oversee age assessments must be independent of the Home Office.
• The standard of proof for an age assessment is 'reasonable degree of likelihood' (rather than the 'balance of probabilities' as provided for in clause 49).
Speaking on behalf of the Government at report stage, Lord Stewart argued that aspects of the amendment were unnecessary. He emphasised that "there is no appetite to start conducting comprehensive age assessments of all, most or even many people", and that the Government intends that the National Age Assessment Board would consist predominantly of qualified social workers. Lord Stewart also questioned whether it would be appropriate to require scientific methods' accuracy to be proven to the highest standard of proof. He acknowledged that scientific methods "are not of themselves accurate" and emphasised that the Government does not intend for them to replace the existing "tried and tested method of assessment by social workers". [251]
Explaining her reasons for pressing the amendment to a vote, Baroness Neuberger (CB) said that the Minister had not provided reassurance on several issues, including ethical concerns. [252]
The amendment was approved as Lords amendment 64A, proposed by Baroness Neuberger (CB), Baroness Lister (Lab), Baroness Hamwee (LD) and the Lord Bishop of Durham. It was agreed by 232 votes to 162. [253]
Further reading
• HL Deb 8 March 2022 c1268-1288 (Minister's comments from c1278)
• Joint Committee on Human Rights, Legislative Scrutiny: Nationality and Borders Bill, Twelfth report, HC 1007, 19 January 2022 and Government response, HC 1208, 18 March 2022
• GOV.UK, Nationality and Borders Bill: safeguarding through age assessment, 25 February 2022 and Nationality and Borders Bill: children, 25 February 2022
Late compliance with slavery or trafficking information notice (Lords amendment 24)
This amendment would remove from the Bill clause 58 (late compliance with a slavery or trafficking information notice causing damage to credibility). It was approved as Lords amendment 66 by 213 votes to 142. [254]
It was put down in the name of Lord Coaker (Lab) and supported by Baroness Hamwee (LD), the Lord Bishop of Bristol and Baroness Meacher (CB).
Further reading
• HL Deb 8 March 2022 c1288-1308 (Minister's comments from c1303)
• Letter from Lord Wolfson to Lord Alton, Lord Coaker and Lord Paddick, 25 February 2022, DEP 2022-0180
• Joint Committee on Human Rights, Legislative Scrutiny: Eleventh Report, HC964, 21 December 2021 and Government response, HC 964, 23 February 2022
• GOV.UK, Nationality and Borders Bill: Abuse of modern slavery protections factsheet, 25 February 2022
Disqualification from protection (Lords amendment 25)
This amendment would replace the wording of clause 62 (power to disqualify a person from the protections given to victims of trafficking or modern slavery) and exempt child victims from disqualification from protection.
The Government argues that, by providing a definition of "public order", the clause supports implementation of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). It has said that the absence of a definition in ECAT has hindered the UK's ability to disqualify dangerous individuals from recovery periods.
Baroness Butler-Sloss (CB) described the amendment as "intended to do what clause 62 requires but without being as vicious". [255]
The Government objects to excluding children from the effect of the clause. It argues that this would create a "two-tier system" and could encourage people to provide false information about their ages, and that statutory guidance already provides for children's specific vulnerabilities to be considered. [256]
The amendment was approved at report stage as amendment 68A by 210 votes to 128. [257] It was in the name of Lord Randall (Con), Baroness Butler-Sloss (CB), Lord Coaker (Lab) and Baroness Hamwee (LD).
Further reading
• HL Deb 8 March 2022 c1288-1308 (Minister's comments from c1303)
• Joint Committee on Human Rights, Legislative Scrutiny: Eleventh Report, HC964, 21 December 2021 and Government response, HC 964, 23 February 2022
• GOV.UK, Nationality and Borders Bill: Abuse of modern slavery protections factsheet, 25 February 2022
Leave to remain for confirmed victims of modern slavery (Lords amendment 26)
This amendment would replace clause 64 of the Bill (circumstances for granting temporary leave to remain to victims of modern slavery). It would provide new statutory support for victims in England and Wales for at least 12 months after a conclusive grounds decision. It would also provide for temporary leave to remain for non-British victims receiving support after a positive conclusive grounds decision and for victims meeting the requirements of Article 14 of ECAT. It also specifies that the best interests of the child must be a primary consideration for decision-making in children's cases.
Lord McColl (Con) briefly outlined the rationale for the amendment at report stage:
Statutory support for at least 12 months has been consistently recommended by organisations as essential for victims. Of course, support and leave to remain go hand in hand: victims who are not British nationals need leave to access that support. Victims also need leave to give them the security to engage with the police. The prosecution rate is unacceptable: prosecution figures are complicated, I agree, but, since 2015, only 88 offenders have been convicted for modern slavery as the principal offence. That tells enough of the story. Why is the prosecution rate so low? It is not the fault of the prosecutors; it is because the victims do not have the security to come forward. Many victims' loved ones are threatened with death at the hands of the traffickers. The Government say that they want the Bill to increase prosecutions, and Amendment 70 will help them to do just that. [258]
Speaking for the Government, Lord Wolfson reiterated the Government's view that support should be based on needs assessments rather than assuming that all victims need the same level of support. He repeated a commitment to provide "where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a 'positive conclusive grounds decision.'" [259] Lord McColl queried why the Government had not acted to reflect its commitment in legislation and why it had argued in Committee that the Bill was not an appropriate vehicle to do so. [260]
The amendment, in the name of Lord McColl (Con), Lord Alton (CB), Lord Paddick (LD) and Lord Coaker (Lab), was approved at report by 207 votes to 123. [261] A related tidying up amendment was agreed at third reading.
Further reading
• HL Deb 8 March 2022 c1288-1308 (Minister's comments from c1303)
• Joint Committee on Human Rights, Legislative Scrutiny: Eleventh Report, HC964, 21 December 2021 and Government response, HC 964, 23 February 2022
• GOV.UK, Nationality and Borders Bill: Modern slavery leave to remain factsheet, 2 March 2022
Child victims of slavery and human trafficking (Lords amendment 27)
This amendment would insert a new clause providing certain protections to child victims of slavery or trafficking. Briefly, these are:
• That competent authorities' decisions must make the child's best interests a primary consideration.
• That slavery or trafficking information notices cannot be served on a person in respect of incidents which occurred when they were under 18.
• That clauses 61 and 61 would not apply in cases where the reasonable grounds decisions were based on incidents that occurred when the person was a child.
• That a person in receipt of a positive conclusive grounds decision must be given leave to remain if they are under 18 or were under 18 at the time of the incident
• That reasonable grounds decisions must be made on the standard of "suspect but not prove" for incidents which occurred when a person was under 18.
Government Ministers have argued against the amendment, arguing that "it would be wrong in principle to create a carve-out for any one group of individuals, and to create a two-tiered system based … on age". [262]
Lord Coaker (Lab) maintained that the Government's position is "nonsensical" and that it is "not normal policy-making" to treat children in the same way as adults. [263]
The amendment was tabled (as amendment 70ZA) by Lord Coaker (Lab) and supported by Baroness Hamwee (LD) and the Lord Bishop of Durham. It was approved by 194 votes to 128. [264]
Further reading
• HL Deb 8 March 2022 c1288-1308 (Minister's comments from c1303)
• Joint Committee on Human Rights, Legislative Scrutiny: Eleventh Report, HC964, 21 December 2021 and Government response, HC 964, 23 February 2022
Electronic Travel Authorisations: travel to Ireland (Lords amendment 40)
This amendment would amend clause 71 to exempt non-British/Irish travellers from the requirement to obtain an Electronic Travel Authorisation (ETA) when making local journeys from the Republic of Ireland to Northern Ireland. It was tabled in the name of Baroness Ritchie (Lab) and supported by Baroness Suttie (LD) and Lord Coaker (Lab).
Supporters of the amendment have argued that ETA requirements for local cross-border journeys will be unworkable and will have a detrimental effect on tourism, business and societal arrangements in Northern Ireland and Ireland. [265]
The Government argues that the amendment "would result in an unacceptable gap in UK border security...undermining the very purpose of the ETA scheme." [266]
Concerns about the impact of the proposed ETA regime in the island of Ireland include the impact on people travelling between Ireland and Northern Ireland, and the broader political, economic and social consequences of introducing an ETA requirement for local journeys. It has been suggested that the ETA requirement would undermine areas of north/south cooperation as set out in the Good Friday agreement (such as tourism and healthcare), and the no diminution of rights provisions in Article 2 of the Northern Ireland Protocol. The Irish Government has raised concerns about the effect of the clause on tourism in Ireland and Northern Ireland.
These concerns were previously explored at Committee stage, and in correspondence between the Lords Protocol on Ireland/Northern Ireland Sub- Committee and Baroness Williams. [267]
In response to concerns about the impact on frequent cross-border travellers, the Government has emphasised that people with a UK immigration status (including frontier workers) will be exempt from the ETA requirement. It has further said that the online ETA application process will be quick and light touch, that ETAs will be valid for multiple journeys over an extended period, and that the application fee will be competitive with similar products.
Anyone without an ETA or other form of immigration permission (where required) would be entering the UK illegally and potentially subject to enforcement action. Under the illegal entry offence in the bill, people who "knowingly" seek to enter the UK without an ETA would be liable to up to four years imprisonment or a fine (or both). Stakeholders have queried how the ETA requirement will be enforced in Northern Ireland and how unwitting breaches of the requirement will be handled.
The Government has said that it does not intend for everyone who arrives without an ETA to be prosecuted. It anticipates a focus on "egregious" cases where there are aggravating factors involved, rather than people who are "simply living their everyday lives." [268] It has confirmed that it will remain the case that there are no immigration controls at the land border, and that a communications strategy is being developed to inform people of the proposed changes to requirements.
The amendment was approved at report stage as amendment 71 by 141 votes to 107. [269]
Further reading
• HL Deb 8 March 2022 c1340 – 1354 (Minister's comments from c1351)
• Lords Protocol on Ireland/Northern Ireland Sub-Committee, Letter to Baroness Williams, 14 January 2022; Response from Baroness Williams, 17 February 2022; Further letter to Baroness Williams, 3 March 2022
• Northern Ireland Affairs Committee, oral evidence, UK immigration policy and the Common Travel Area, 8 December 2021
• GOV.UK, Nationality and Borders Bill: Electronic Travel Authorisation, 25 February 2022
There were four more divisions on non-government amendments at report stage which were unsuccessful:
• Requiring publication of review into Tier 1 (Investor) visas issued June 2008 – April 2015 (amendment 75). [270]
• Reducing indefinite leave to remain fees for Commonwealth, Hong Kong and Gurkha members of armed forces (amendment 77). [271]
• Requiring issuing of physical immigration status documents (amendment 79). [272]
• Fees for registration of British citizenship (amendment 83). [273]
The Scottish Parliament and Senedd Cymru/Welsh Parliament have both refused to give legislative consent to the Bill. [274] The Northern Ireland Executive has not lodged a motion relating to the Bill in the Northern Ireland Assembly.
Baroness Williams set out the Government's position at third reading:
The majority of the Bill's provisions apply across the UK. Some clauses extend only to England and Wales because the relevant policy areas relate to matters that are devolved in Scotland and Northern Ireland. These are: civil legal services; arrangements for prisoners who are liable to removal from the United Kingdom; and some specific measures relating to support for potential victims of modern slavery.
I want to be clear that, in the view of the UK Government, the provisions of the Bill that have UK-wide application relate strictly to reserved matters. This means that none of the Bill's provisions engage the legislative consent process. We have therefore not sought legislative consent from the devolved legislatures.
I advise your Lordships' House that the Scottish Parliament has approved a Motion, lodged by the Scottish Government, to withhold legislative consent in respect of specific measures relating to age assessment and modern slavery. But it is the view of the UK Government that these measures relate strictly to reserved matters and therefore did not engage the legislative consent Motion process and do not require legislative consent.
The Senedd Cymru has also approved a Motion, lodged by the Welsh Government, to withhold legislative consent in respect of specific measures relating to age assessment and to powers to make consequential provisions. Again, in the view of the UK Government, these measures relate to reserved matters and therefore did not engage the legislative consent Motion process and do not require legislative consent.
(...) We look forward to continued engagement with the devolved Administrations as we move to operationalise the Bill and the wider new plan for immigration. [275]
5.1 Consideration of Lords amendments: 22 March
Consideration of Lords amendments took place on 22 March. [276]
The Commons disagreed with all the non-government Lords amendments.
The Government proposed amendments in lieu for Lords amendments 1 and 4 which were all approved.
There were 13 divisions.
See HL Bill 138 for a list of each Lords amendment and the Commons' reasons for disagreement/proposed amendments in lieu.
Amendments in lieu
The Government proposed amendments in lieu in respect of Lords amendment 1 (nationality for Chagos Islanders) and Lords amendment 4 (no- notice deprivation of citizenship powers).
British nationality for Chagossians (Lords amendment 1; Commons amendments in lieu 1A, 1B)
The Government withdrew its opposition to Lords amendment 1 shortly before consideration of Lords amendments on 22 March. But rather than accepting Lords amendment 1, it tabled amendments in lieu (1A, 1B), which it said addressed technical deficiencies with the drafting of Lords amendment 1.
Like the Lords amendment, amendment in lieu 1A gives direct descendants of Chagos Islanders an entitlement to be registered as a British overseas territories citizen, during a five year window. But unlike Lords amendment 1, the Government's proposal does not state that applications must be processed free of charge, and nor does it expressly provide an entitlement to be registered as a British citizen.
During the course of debate on 22 March, Government Ministers confirmed that the Government intends to follow the spirit of the Lords amendment. They confirmed that there will be no fee charged or good character requirement to satisfy. [277] A government factsheet provides some further information about the Government's intentions for implementing the new clause, including confirmation that applicants will be able to apply to be registered as British citizens as well as British overseas territories citizens. [278]
Amendments in lieu 1A and 1B were agreed without division. [279]
No-notice deprivation of citizenship powers (Lords amendment 4, amendments in lieu 4A-F)
Amendments 4A-4F reflect the amendments to clause 9 previously tabled by Lord Anderson of Ipswich with government backing. They insert various safeguards and limitations on the exercise of no-notice deprivation of citizenship powers (discussed on p.44-45 of this briefing). They had been approved at Lords report stage, but Peers subsequently voted to remove clause 9 entirely from the Bill (Lords amendment 4).
On 22 March the Commons disagreed with Lords amendment 4 by 318 votes to 223. Amendments in lieu 4A-4F were agreed to without division. [280]
Divisions on other Lords amendments
The Commons disagreed with all the other non-government Lords amendments. There were divisions on the following:
• Lords amendment 5 (re. compliance with the Refugee Convention): disagreed to by 313 votes to 231 (division 219).
• Lords amendment 6 (re. clause 11, differential treatment): disagreed to by 318 votes to 220 (division 220).
• Lords amendment 7 (re. permission to work for asylum seekers): disagreed to by 291 votes to 232 (division 221).
• Lords amendment 9 (re. clause 28, removal of asylum seeker to safe third country): disagreed by 302 votes to 232 (division 222).
• Lords amendment 10 (re. legal route of entry to join family and claim asylum): disagreed to by 305 votes to 230 (division 223).
• Lords amendment 1 1 (re. refugee resettlement quota): disagreed by 313 votes to 227 (division 224).
• Lords amendment 13 (re. clause 39, offence of arrival in the UK): disagreed to by 317 votes to 220 (division 225).
• Lords amendment 22 (re. additional requirements for age assessments): disagreed by 307 votes to 217 (division 226).
• Lords amendment 24 (re. clause 58, late compliance with slavery or trafficking information notice): disagreed by 300 votes to 221 (division 227).
• Lords amendment 25 (re. clause 62, disqualification from protection): disagreed by 296 votes to 219 (division 228).
• Lords amendment 26 (re. clause 64, leave to remain for victims of modern slavery): disagreed by 291 votes to 214 (division 229).
• Lords amendment 40 (re. clause 71, electronic travel authorisations): disagreed by 298 votes to 216 (division 230).
5.2 Consideration of Commons amendments: 4 April
The Government suffered a string of defeats when the Bill returned to the Lords on 4 April. [281] See the Marshalled List of motions to be moved on 4 April for the text for each motion considered.
There were 13 divisions, of which the Government lost 12.
Motion B1, proposing amendment 4G (re. clause 9, no-notice deprivation of citizenship orders). Amendment 4G would delete retained subsections (5- 7) of clause 9, which enable the clause's provisions to have retrospective effect on no-notice deprivation decisions made before commencement. It was agreed by 209 votes to 165 (division 1).
Motion C1, proposing amendment 5B in lieu of Lords amendment 5 (compliance with the Refugee Convention). The amendment in lieu uses different wording but the intended effect (to ensure compliance with the Refugee Convention) is similar to Lords amendment 5. It was agreed on division by 189 votes to 151 (division 2).
Motion D1, proposing amendment 6B (re. clause 11, differential treatment). Amendment 6B would remove the scope to provide differential rights and entitlements to refugees based on the nature of their arrival in the UK. Specifically, it would require the Home Secretary to make Immigration Rules guaranteeing Group 1 and Group 2 refugees all their rights under the 1951 Refugee Convention and ensuring that classification as a Group 1 or Group 2 refugee does not affect a refugee's ability to maintain family unity. It was greed on division by 191 votes to 148 (division 3).
Motion E1, proposing amendments 7B and 7C in lieu of Lords amendment 7 (re. asylum seekers' rights to work). The proposed amendments in lieu would enable asylum seekers to obtain permission to work after waiting six months for a decision on their asylum claim. They also allow the Government to repeal those arrangements after they have been in place a few years, if it has commissioned and published a review into whether they have acted as a pull-factor for asylum claims in the UK. The motion was agreed on division by 199 votes to 132 (division 4).
Motion F1, proposing amendments 8B and 8C in lieu of Lords amendment 8 (re. commencement of clause 15, removal of inadmissible claimants to a safe third state). The proposed amendments in lieu include a sunset clause, so the clause would cease to have effect five years after coming into force. Agreed on division by 179 votes to 152 (division 5).
Motion G1, proposing amendments 53B, 53C and 53D in lieu of Lords amendment 53 (re. clause 28 and Schedule 3, offshore processing of asylum claims). These amendments in lieu would require the Home Secretary to obtain approval from both Houses before making an order proscribing a state as safe for the purpose of removing asylum seekers. They would also require her first to publish at least two years' estimated costs of arrangements with the state to remove asylum seekers and of any additional aid paid to that state under the arrangements. The motion was agreed on division by 176 votes to 153 (division 6).
Motion H1, proposing amendment 10B in lieu of Lords amendment 10 (re. legal route of entry to the UK to join family and claim asylum). The proposed amendment in lieu is narrower in scope than the previous Lords amendment, by only offering a route of entry to unaccompanied children in Europe who have specified family members lawfully in the UK. It was agreed on division by 181 votes to 144 (division 7).
Motion J1, proposing amendment 11A in lieu of Lords amendment 11 (re. annual refugee resettlement quota). The amendment in lieu requires publication of an annual target for refugee resettlement but does not specify its size (the previous version of the amendment had specified a target of 10,000 refugees). It was agreed on division by 159 votes to 150 (division 8).
Motion L1, insisting on Lords amendment 15 and proposing amendment 13B in lieu of Lords amendment 13 (re. clause 39, offence of illegal arrival in the UK). Proposed amendment 13B would provide a narrower offence of arriving in the UK knowingly in breach of a deportation order. It was agreed on division by 163 votes to 138 (division 9).
Motion M1, proposing amendment 20B (re. clause 40, facilitation of unlawful immigration offence). Amendment 20B would provide that the offence is committed if the defendant acts "without reasonable excuse", rather than "for gain". It was agreed on division by 162 votes to 141 (division 10).
Motion Q1, proposing amendment 25B in lieu of Lords amendment 25 (re. clause 62, disqualification from protection). Amendment 25B defines a person who presents a threat to public order as one who has been convicted of a terrorist offence. It also requires the Home Secretary to consult within a year on whether people convicted of other offences listed in Schedule 4 to the Modern Slavery Act 2015 should also be included in the definition. It was agreed on division by 116 votes to 111 (division 11).
Motion R1, proposing amendment 26B in lieu of Lords amendment 26 (re. clause 64, leave to remain for victims of modern slavery). Amendment 26B provides for 12 months' statutory support to confirmed victims of modern slavery in England and Wales. Unlike Lords amendment 26, it does not also require a grant of temporary leave to remain for confirmed victims who are not British. It was agreed on division by 108 votes to 107 (division 12).
Motion S1, proposing amendment 27B in lieu of Lords amendment 27 (various protections to child victims of slavery or trafficking) was disagreed on division by 101 votes to 110 (division 13).
The remaining motions (A, K, N, P, S, T and U) were agreed to without divisions.
5.3 Consideration of Lords amendments: 20 April
The Bill is scheduled to be considered again in the Commons on 20 April. Amendment papers will be published on the publications tab of the Bill's pages on the Parliament website.
Annex: Public Bill Committee details
Committee membership
Chairs: Sir Roger Gale (Con), Siobhain McDonagh (Lab) Anderson, Stuart (Wolverhampton South West) (Con) Baker, Duncan (North Norfolk) (Con)
Blomfield, Paul (Sheffield Central) (Lab) Charalambous, Bambos (Enfield, Southgate) (Lab) Coyle, Neil (Bermondsey and Old Southwark) (Lab) Goodwill, Mr Robert (Scarborough and Whitby) (Con) Gullis, Jonathan (Stoke-on-Trent North) (Con) Holmes, Paul (Eastleigh) (Con)
Howell, Paul (Sedgefield) (Con) Lynch, Holly (Halifax) (Lab)
McLaughlin, Anne (Glasgow North East) (SNP)
McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) Owatemi, Taiwo (Coventry North West) (Lab)
Pursglove, Tom (Parliamentary Under-Secretary of State for the Home Department)
Richards, Nicola (West Bromwich East) (Con)
Whittaker, Craig (Lord Commissioner of Her Majesty's Treasury) Wood, Mike (Dudley South) (Con)
_________________________
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[1] Bill 141 of 2021-22
[2] HC Deb 19 July c705-778; HC Deb 20 July c827-927
[4] HC Deb 19 July 2021 c726; c733
[5] HC Deb 20 July 2021, division 57
[6] HC Deb 20 July 2021, division 58
[7] HM Government, Consultation on the New Plan for Immigration: Government Response, CP 493, July 2021
[8] UNHCR, Observations on the Nationality and Borders Bill, Bill 141 2021-22, October 2021, para 1
[9] Independent Anti-Slavery Commissioner, Dame Sara responds to the Nationality and Borders Bill, 7 September 2021
[10] Considered in Committee as NC21: PBC Deb 28 October 2021 c420-9; PBC Deb 2 November 2021 c569; PBC Deb 4 November 2021 cc609-11
[11] Considered in Committee as NC22: PBC Deb 28 October 2021 c421; PBC Deb 4 November c612
[12] Considered in Committee as NC11: PBC Deb 2 November 2021 c569-70; PBC Deb 4 November 2021 c605-6
[13] In addition, the drafting of a couple of other clauses in the Bill as introduced was changed by replacing them with new clauses (clause 26 – accelerated detained appeals; clause 45 – removals notice requirements)
[14] PBC Deb 4 November 2021 c625-646; c647-716
[15] Joint Committee on Human Rights, Legislative scrutiny: Nationality and Borders Bill (Part 1) – Nationality, HC 764, 9 November 2021
[16] Considered in Committee as NC19: PBC Deb 2 November 2021 c583-4; PBC Deb 4 November 2021 c607-8
[17] PBC Deb 2 November 2021 c583-4
[19] PBC Deb 19 October 2021, c207-10; c210-212
[20] Joint Committee on Human Rights, Legislative scrutiny: Nationality and Borders Bill (Part 1) – Nationality, HC 764, 9 November 2021, para 57-8
[21] PBC Deb 19 October 2021, c207
[22] PBC Deb 19 October 2021, c214
[23] Joint Committee on Human Rights, Written evidence from the Home Office (NBB0074), 25 October 2021
[24] PBC Deb 19 October 2021, division 7
[25] PBC Deb 21 October 2021 c241
[26] Letter from Tom Pursglove to Sir Roger Gale MP and Siobhain McDonagh MP, 26 October 2021
[27] PBC Deb 21 October 2021 c268
[28] Clause 34 as considered in Committee
[29] Amendments 157 and 158
[30] PBC Deb 26 October 2021 c404
[31] PBC Deb 26 October 2021 c405
[32] PBC Deb 21 October 2021, division 10
[33] PBC Deb 21 October 2021 c293; c298
[34] PBC Deb 21 October 2021 c298
[35] PBC Deb 21 October 2021 c293, c298
[36] PBC Deb 21 October 2021 c296
[37] PBC Deb 21 October 2021 c275, c284; c295
[38] PBC Deb 21 October 2021 c297
[39] PBC Deb 21 October 2021 c295
[40] Amendment 98
[41] PBC Deb 21 October 2021 c295
[42] PBC Deb 21 October 2021, division 11
[43] PBC Deb 21 October 2021 c279-280
[44] PBC Deb 21 October 2021 c292
[45] Letter from Tom Pursglove to Sir Roger Gale MP and Siobhain McDonagh MP, 26 October 2021
[46] PBC Deb 26 October 2021 c311
[47] PBC Deb 26 October 2021 c308; c312
[48] PBC Deb 26 October 2021 c309
[49] PBC Deb 26 October 2021 c320
[50] PBC Deb 26 October 2021 c319
[51] PBC Deb 26 October 2021, division 13
[52] PBC Deb 26 October 2021, division 14
[53] Amendments 55 and 135
[54] PBC Deb 26 October 2021 c410
[55] PBC Deb 26 October 2021, division 30
[56] PBC Deb 26 October 2021 c353
[57] PBC Deb 26 October 2021 c332-3
[58] PBC Deb 26 October 2021 c331
[59] PBC Deb 26 October 2021 c367
[60] PBC Deb 26 October 2021 c333
[61] PBC Deb 26 October 2021 c372
[62] PBC Deb 26 October 2021 c374
[63] PBC Deb 26 October 2021 divisions 15; 20; 22; 24
[64] Amendments 60 – 66
[65] Amendments 67-69
[66] NC6
[67] PBC Deb 4 November 2021 c600
[68] PBC Deb 26 October 2021, divisions 16; 17; 18; 19; 21; 23; 25
[69] NC7: PBC Deb 26 October 2021 c380; PBC Deb 4 November 2021, division 59
[70] PBC Deb 26 October 2021 c390-4; c394-6
[71] UNHCR, Detailed legal opinion, October 2021, para 126
[72] PBC Deb 26 October 2021 388
[73] PBC Deb 26 October 2021 c396
[74] Amendment 159
[75] PBC Deb 26 October 2021 c393
[76] PBC Deb 26 October 2021 c386
[77] PBC Deb 26 October 2021 c387
[78] PBC Deb 26 October 2021 c388
[79] UNHCR, Detailed legal opinion, October 2021, para 129
[80] PBC Deb 26 October 2021 c385
[81] PBC Deb 26 October 2021 c396
[82] PBC Deb 26 October 2021 c385
[83] PBC Deb 26 October 2021 c396
[84] PBC Deb 26 October 2021 c392; c397
[85] PBC Deb 26 October 2021, division 27
[86] PBC Deb 26 October 2021 c399
[87] PBC Deb 26 October 2021 c399
[88] PBC Deb 26 October 2021 c400
[89] Letter from Tom Pursglove to Sir Roger Gale MP and Siobhain McDonagh MP, 27 October 2021
[90] PBC Deb 26 October 2021 c401
[91] PBC Deb 26 October 2021 c401
[92] PBC Deb 26 October 2021, division 28
[93] PBC Deb 26 October 2021 c403
[94] PBC Deb 26 October 2021, division 29
[95] PBC Deb 26 October 2021 c408
[96] PBC Deb 28 October 2021 c428
[97] PBC Deb 28 October 2021 c420
[98] PBC Deb 28 October 2021 c420
[99] PBC Deb 28 October 2021 c422
[100] Amendments 110 and 111-7
[101] PBC Deb 28 October 2021, division 32
[103] Clause 38 as considered in Committee
[104] PBC Deb 28 October 2021 c433
[105] PBC Deb 28 October 2021 c433
[106] PBC Deb 28 October 2021 c432-2
[107] PBC Deb 28 October 2021, division 33
[108] PBC Deb 28 October 2021, division 34
[109] PBC Deb 28 October 2021, division 35
[110] PBC Deb 28 October 2021 c444-5
[111] PBC Deb 28 October 2021 c445
[112] PBC Deb 28 October 2021 c458
[113] PBC Deb 28 October 2021 c446
[114] PBC Deb 28 October 2021 c445
[115] PBC Deb 28 October 2021 c451
[116] PBC Deb 28 October 2021 459
[117] PBC Deb 28 October 2021 c460
[118] PBC Deb 28 October 2021, division 36
[119] PBC Deb 28 October 2021 c450; 460-2; PBC Deb 4 November 2021 c608
[120] PBC Deb 28 October 2021 c450
[121] PBC Deb 28 October 2021 c469
[122] PBC Deb 28 October 2021, division 40
[123] PBC Deb 28 October 2021, division 39
[124] Amendment 143: PBC Deb 28 October 2021 c467-9
[125] PBC Deb 28 October 2021 c469
[126] Letter from Tom Pursglove to Sir Roger Gale MP and Siobhan McDonagh MP, 2 November 2021
[127] PBC Deb 4 November 2021 c561; c563
[128] PBC Deb 4 November 2021 c558-9
[129] PBC Deb 4 November 2021 c560; c549
[130] PBC Deb 4 November 2021 c561
[131] European Commission/EMN, Ad hoc query on 2021.10 Unaccompanied minors – age assessment methods, requested on 18 February 2021
[132] PBC Deb 4 November 2021 c561
[133] Considered in Committee as NC29 – 33: PBC Deb 4 November 2021, divisions 61-65
[134] PBC Deb 4 November 2021 c622-6
[135] PBC Deb 28 October 2021 c474; c479; c483; c500
[136] PBC Deb 28 October 2021, divisions 41-43; 45; 47; 49; 51-2; 54-5
[137] PBC Deb 28 October 2021, divisions 42; 44;46;48; 50; 53
[138] PBC Deb 28 October 2021 c473-500
[139] PBC Deb 28 October 2021 c481
[140] PBC Deb 28 October 2021 c483
[141] Independent Anti-Slavery Commissioner, Dame Sara responds to the Nationality and Borders Bill, 7 September 2021
[142] Amendments 190; 180; 164; 189
[143] Amendments 181, 187, 182: PBC 28 October 2021 c493-498
[144] NC42
[145] PBC Deb 28 October 2021 c497-8
[146] PBC Deb 28 October 2021 c480
[147] PBC Deb 28 October 2021 c482
[148] Letter from Tom Pursglove to Sir Roger Gale MP and Siobhan McDonagh MP, 2 November 2021
[149] PBC Deb 28 October 2021 c498
[150] PBC Deb 28 October 2021 c501
[151] PBC Deb 28 October 2021 c502
[152] Amendment 185
[153] PBC Deb 2 November 2021 c506; 508
[154] PBC Deb 2 November 2021 c507
[155] PBC Deb 2 November 2021 c510-1
[156] Amendment 1
[157] PBC Deb 2 November 2021 c512
[158] PBC Deb 2 November 2021, c512; division 46
[159] PBC Deb 2 November 2021 c515
[160] PBC Deb 2 November 2021 c516
[161] PBC Deb 2 November 2021 c517-523
[162] PBC Deb 2 November 2021 c520-1
[163] PBC Deb 2 November 2021 c520
[164] PBC Deb 2 November 2021 c534
[165] PBC 2 November 2021, division 53
[166] PBC 2 November 2021 c535
[167] PBC Deb 2 November 2021 c539
[168] Amendment 72 to clause 53 as considered in Committee
[169] PBC Deb 2 November 2021 c577
[170] Considered in Committee as NC9 and 10
[171] PBC Deb 2 November 2021 c567
[172] PBC Deb 2 November 2021 c567-8
[173] PBC Deb 2 November 2021 c568
[174] PBC Deb 4 November 2021, division 60
[175] Considered in Committee as NC 12: PBC 2 November 2021 c585-6; PBC Deb 4 November 2021 c606-7
[176] Home Affairs Committee, The Windrush generation, HC 990 of 2017-19, 3 July 2018, p.41
[177] Considered in Public Bill Committee as NC 15: PBC Deb 4 November 2021 c638-644
[178] PBC Deb 4 November 2021 c644
[179] PBC Deb 4 November 2021 c645
[180] For background, see HC Deb 11 March 2015 c87-94WH
[181] E.g., EDM 1521 of 2019-21 session
[182] E.g. PQ UIN HL11870, answered on 18 January 2021; HC Deb 2 June 2020 c691
[183] Considered in Committee as NC 5
[184] PBC Deb 4 November 2021 c649-50
[185] PBC Deb 4 November 2021 c649
[186] Home Affairs Committee, The UK's offer of visa and settlement routes for residents of Hong Kong, HC 191, 7 July 2021, para 57
[187] For background information about the visa, see Commons Library briefing CBP 8939, 6 May 2021
[188] The Independent, 'Senior Tories call on Home Office to stop 'unfairly' excluding young Hong Kong nationals from BNO scheme', 11 November 2021
[189] Considered as NC52; PBC Deb 4 November 2021 c701-4
[190] Home Affairs Committee, Government response to the Committee's Second Report, HC 682, 10 September 2021, paras 2-4
[191] House of Commons, Nationality and Borders Bill, as amended (Report stage decisions), 8 December 2021
[192] Lords Library Briefing, Nationality and Borders Bill, 21 December 2021
[193] HC Deb 8 December 2021, c449-452, Division 143
[194] See also Letter from Baroness Williams to all Peers, 24 February 2022, DEP 2022-0203
[195] HL Deb 28 February 2022 c571-6
[196] HL Deb 28 February 2022 c576; c578
[197] HL Deb 8 March 2022 c1359
[198] HL Deb 8 March 2022 c1334
[199] HL Deb 8 March 2022 c1335-6
[200] HL Deb 8 March 2022 c1335
[201] HL Deb 8 March 2022 c1337
[202] HL Deb 8 March 2022 c1338-1340; c1414
[203] HL Deb 27 January 2022 c488-498
[204] HL Deb 28 February 2022 c557
[205] E.g., HL Deb 28 February 2022 c552, c556-7
[206] HL Deb 28 February 2022, Division 1; discussed at c550-562
[207] Home Office, Letter from Baroness Williams to Peers regarding issues raised during the second reading, 25 January 2022
[208] HL Deb 5 January 2022 c602-3
[209] HL Deb 28 February 2022 c601-2
[210] HL Deb 28 February 2022, Division 2. For related debate, see c584-605
[211] HL Deb 28 February 2022 c606
[212] HL Deb 28 February 2022 c609
[213] HL Deb 28 February 2022, Division 3
[214] Letter from Lord Wolfson of Tredegar to all Peers, 24 February 2022, DEP 2022-0196
[215] HL Deb 28 February 2022 c624-7
[216] HL Deb 28 February 2022 c628
[217] HL Deb 28 February 2022, Division 4
[218] For related debate in Committee, see HL Deb 3 February 2022 c1046-1064
[219] HL Deb 28 February 2022 c667
[220] HL Deb 28 February 2022 c664
[221] HL Deb 28 March 2022, Division 5
[222] HL Deb 3 February 2022 c1098-1109
[223] HL Deb 2 March 2022 c818
[224] HL Deb 2 March 2022 c821-2
[225] HL Deb 2 March 2022, Division 1
[226] HL Deb 8 February 2022 c1400-1421
[227] HL Deb 2 March 2022 c847
[228] HL Deb 2 March 2022 c848
[229] HL Deb 2 March 2022, Division 2
[230] HL Deb 8 February 2022 c1467-8; c1476
[231] HL Deb 2 March 2022 c866-8
[232] HL Deb 2 March 2022 c881
[233] HL Deb 2 March 2022 c879
[234] HL Deb 2 March 2022, Division 3
[235] HL Deb 2 March 2022 c871
[236] HL Deb 2 March 2022 c881
[237] HL Deb 2 March 2022 c878
[238] HL Deb 2 March 2022, Division 4
[239] HL Deb 2 March 2022 c879
[240] HL Deb 2 March 2022 c882
[241] HL Deb 2 March 2022, Division 5
[242] HL Deb 8 February 2022 c1505-1517
[243] HL Deb 2 March 2022 c915-6; c916-7
[244] HL Deb 2 March 2022 c917-8
[245] HL Deb 2 March 2022 c918
[246] HL Deb 2 March 2022, Division 6
[247] Joint Committee on Human Rights, Legislative scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement, HC 885/HL 112, 1 December 2021, Appendix 1
[248] HL Deb 2 March 2022, Division 7
[249] Joint Committee on Human Rights, Legislative scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement, HC 885/HL 112, 1 December 2021, Appendix 1
[250] HL Deb 2 March 2022, Division 8
[251] HL Deb 8 March 2022 c1279-1280
[252] HL Deb 8 March 2022 c1285
[253] HL Deb 8 March 2022, Division 1
[254] HL Deb 8 March 2022, Division 2
[255] HL Deb 8 March 2022 c1297
[256] HL Deb 8 March 2022 c1305-6
[257] HL Deb 8 March 2022, Division 3
[258] HL Deb 8 March 2022 c1299
[259] HL Deb 8 March 2022 c1307
[260] HL Deb 8 March 2022 c1298-9
[261] HL Deb 8 March 2022, Division 4
[262] HL Deb 10 February 2022 c1845
[263] HL Deb 8 March 2022 c1292
[264] HL Deb 8 March 2022, Division 5
[265] HL Deb 10 February 2022 c1937
[266] HL Deb 8 March 2022 c1351
[267] HL Deb 10 February 2022 c1926-1938
[268] Lords Protocol on Ireland/Northern Ireland Sib-Committee, Letter from Baroness Williams 17 February 2022
[269] HL Deb 8 March 2022, Division 6
[270] HL Deb 8 March 2022, Division 7
[271] HL Deb 8 March 2022, Division 8
[272] HL Deb 8 March 2022, Division 9
[273] HL Deb 8 March 2022, Division 10
[274] Letter from Clerk/Chief Executive, Scottish Parliament, 22 February 2022; Letter from Clerk/Chief Executive of the Senedd, 16 February 2022
[275] HL Deb 14 March 2022 c21
[276] HL Deb 22 March 2022 c179-305
[277] HC Deb 22 March 2022 c182; c205
[278] GOV.UK, Nationality and Borders Bill, Chagossian nationality factsheet, 22 March 2022