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Border Security, Asylum and Immigration Bill

My Lords, Amendment 59 is in my name and those of the noble Lord, Lord Cashman, and the noble Baroness, Lady Hamwee, whom I thank for their support. I also thank the noble and learned Lord, Lord Hope of Craighead, and the noble and right reverend Lord, Lord Sentamu, again for their support in Committee, during which I proposed a repeal of Section 59 of the Illegal Migration Act 2023.

I proposed that we bring to an end the proposition that states may be declared safe despite the objective evidence that they are not. I explained why there should be no blanket ban on considering human rights claims when such claims have nothing to do with a state’s safety and everything to do with family unity, ties of dependency and the best interests of children. I have no doubt that banning all family claims of European wives seeking to live with their British husbands and children—when American wives, for example, would face no such impediment—will make us no friends in Europe. However, Section 59 of the Illegal Migration Act 2023 does precisely that. It extends what was a minimal pre-existing duty to declare asylum claims from EU nationals inadmissible to also cover human rights claims from EU nationals and a much wider list of states that the former UK Government called safe.

Despite these anomalies, noble Lords will recollect that I did not push my amendment to repeal Section 59 to a vote. Instead, I promised to return to the issue. From my noble friend the Minister’s response, I understand the Government’s position to be that the retention of Section 59 is worthwhile, given the flexibility it offers

in ensuring that unmeritorious claims do not unnecessarily absorb limited resources. However, in my noble friend the Minister’s response to the debate on this amendment he said, in particular to the noble Lords, Lord Cameron and Lord Davies, that the Government are wary of inadmissibility duties that could result in,

“a rapidly growing number of people whose claims would be inadmissible”,

who then

“would be in a holding position, unable to be removed, including those with genuine claims”.

—[Official Report, 3/9/25; col. 825.]

For the reasons my noble friend set out, Section 59 inevitably will gather in its net fish we do not intend to catch, including those with meritorious human rights claims whom we cannot lawfully remove. Therefore, although I appreciate that there must be a mechanism to manage claims fairly and efficiently, that mechanism, given the Minister’s own words, is clearly not Section 59 in its current form.

Amendment 59—I assure noble Lords that the numbering is an unintentional coincidence—is an attempt to helpfully suggest to the Government how they might turn Section 59 of the Illegal Migration Act 2023 into something workable and operationally useful. It would alter rather than repeal Section 59. It would further the Government’s objective of keeping a mechanism on the statute book that might be used to increase efficiency while ensuring that it can be operated lawfully and in a manner that does not breach fundamental human rights should the Government ever wish to implement it.

To this end, the amendment would do three simple and minimal things. First, it would turn what would be an unworkable duty to declare claims inadmissible into a workable power so to do. Interestingly, by coincidence, such a change is in harmony with Clause 38, which scraps other unworkable duties in the Illegal Migration Act. In creating a workable power, our amendment would free the hands of the Secretary of State to give her true flexibility over when and in relation to whom the power is exercised. If the Minister disagrees with our amendment, I should be grateful if he would clarify when and why a statutory duty gives greater operational flexibility than a statutory power. If the Minister is able to give an example, that would be greatly helpful to noble Lords.

Secondly, our amendment would provide the simplest and most minimal of safeguards. By “inadmissibility”, the Government are saying, “We do not wish to even consider this claim”. All this amendment would do is say, “You need not consider it if to fail so to do would not result in the UK breaching its obligations under the human rights convention”, a convention to which our Government have committed to remaining a party. Undoubtedly, the courts will not presume that it is the Government’s intention to breach their international law obligations. Rather than leaving the murkiness of exceptional circumstances to save the Government from illegality, it would be much simpler if we—and by “we” I mean Parliament—were to write what we mean in the statute book, rather than hoping that what we mean will be read by the courts into the legal uncertainties of a non-exhaustive list of exceptional circumstances.

I appreciate that if Section 59 were ever fully commenced, the Government would have to issue guidance giving their interpretation of exceptional circumstances, but such guidance is not an aid to statutory interpretation. As this Government intend to comply with their human rights convention obligations, a proposed minimal safeguard should not pose any obstacle to them. However, it would provide guardrails should future Governments have different intentions—and that may be a possibility that is nearer than we would like to think.

If this Government do not intend to implement Section 59, they should amend it if they will not repeal it. If they intend to implement it, they must be prepared for litigation and to be tied up in the courts for the rest of this Parliament trying to explain whether it is compliant with human rights and what they mean by exceptional circumstances. Woolly exceptional circumstances should not be made to do all the hard work and be interpreted expansively to comply with human rights. That will only bring unnecessary criticism down upon our human rights framework and overcomplicate the matter for our courts. I suggest that a matter as important as this should not be left to guidance to be interpreted by the Government of the day. It is our job, it is Parliament’s job, to set the appropriate boundaries. If the Minister disagrees with me on this point, I should be grateful if he would clarify how the exceptional circumstances test would apply to EU nationals making private life claims or even seeking entry to live here with their families. Would they really be considered only exceptionally or would they be considered as a matter of course? How about Georgia? Would protection claims from Georgian nationals be considered only exceptionally? What further exceptional circumstances would the Government need simply to admit the two above claims?

Thirdly, and finally, the amendment would create a simple mechanism for a state to be removed from the safe state list. If the Secretary of State considers that it is no longer safe in general or safe for a recognisable section of the community, in this amendment we have listed the descriptions of persons who may be unsafe because of their sex, language, race, religion, nationality, membership of a social or other group, political opinion or any other appropriate attribute or circumstance. Only truly safe states should be on the list at all. This again would further operational efficiency as it would ensure that caseworkers need not make hard case-by-case decisions about whether to declare a claim inadmissible when the Government already consider that the state generally is unsafe or ordinarily unsafe for minorities. Fortuitously, the Government have already agreed to undertake a continuous review of the safety of the states on the list and to remove from the list states that are no longer safe. Therefore, this amendment is wholly in line with their commitment.

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Also, I urge the Government, if they resist legislative amendment to the status quo, to consider how future Governments might behave and whether they might share in the Government’s commitment continuously to review safety. If future Governments wish to act as if unsafe states are safe because they were added to a list once upon a time, we must be able to have a proper debate in this House. I need not remind noble Lords of

the tortuous fiction that followed Rwanda being added to a list of safe states. No state should be legislated as perpetually safe. I know that this Government recognise that fact. Therefore, in Section 59 it is only logical for there to be a clear safety valve, a reviewing mechanism, to avoid repetition of the idea of a state once designated as safe being for ever deemed safe.

I urge my noble friend the Minister to consider these three practical recommendations. This Government need not retain and be haunted by unworkable and performative provisions by past Governments if their intentions are operational flexibility, upholding our obligations under the human rights convention and balancing efficiency against the need for fairness, I beg to move.