My Lords, as a former Immigration Minister in this country, I have always been of the view that a primary responsibility of our Government should be to keep the people safe from internal and external threats. This includes maintaining our borders and dealing with immigration with policies that are firm but fair. That is certainly what we strived to achieve under my watch. That included rules that were clear and enforced without bias for immigration, including exercising the powers of removal or deportation in cases of illegality or failure under the rules. The need to improve our rates of removals is something I have always supported. But I never conflated the issues of immigration and asylum; they are wholly distinct and require different considerations. I am therefore a little surprised and disappointed that the Bill has blurred the lines between these things. It has proposed a number of controversial ideas that we need to examine carefully.


The first is Clause 28 and Schedule 3, which give the Home Office powers to send asylum applicants to offshore processing centres outside the UK. About 20 years ago, I chaired two party commissions set up to consider, in turn, the UK’s policies towards asylum and immigration. One of our asylum proposals was to consider applications in an offshore location, isolated from the mainland. I soon realised that this was a highly defective idea and it caused much unnecessary concern to certain islanders around our shores, but at least it did not suggest moving people outside of our territorial jurisdiction. These new proposals do, and in my opinion would be a clear breach of the principles of the 1951 convention on refugees, as well as providing substantial legal concerns as to the responsibility for dealing with applications. An asylum application is under the control of an applicant. Until and unless an application is made there is no status of asylum seeker, and the applicant can decide where to make their application. Therefore, deporting an applicant to another state and jurisdiction and asking them to determine the case for us is an abrogation of our responsibilities and an abuse of the applicant’s rights.


Who would agree to this without themselves breaking the rules? Not the Albanians, not the Norwegians and surely not the Rwandans. The Australians tried a similar idea, referred to by a number of noble Lords, and it was a total failure. Surely it is a totally unacceptable process for us and one where we would end up with different legal and human rights standards. It would be a nightmare and simply would not work.


My second concern relates to Clause 9, which would allow the Home Office to strip people of UK citizenship unilaterally, secretly and without right of appeal. That would be an appalling prospect and is against all our legal and constitutional principles, when notification to an individual of their rights and decisions taken about them is inherent in both our criminal and our civil law. The Bill term “public interest” is similar to that used to justify such an approach in some countries that would not be regarded as being as democratic and free as our own.


Finally, I return to the 1951 UN Convention on Refugees. I was proud to follow British values and the rule of law in our approach to those in need of humanitarian assistance. I was responsible for implementing the Bosnian refugee resettlement programme in the 1990s, which was of great credit to all those involved in its delivery. It was a good and legal route for many to escape persecution, complying with the necessary criteria as determined by UN and UK officials.


Why is this Bill attempting to create two categories of asylum seekers, and how can the arrival of an asylum seeker be determined as being either legal or illegal? As I stated earlier, there are no asylum seekers until asylum is requested, so a pre-application is difficult to define. There are legal and illegal immigrants, but this term cannot be easily transported to asylum seekers. Essentially, according to this Bill, all asylum seekers are therefore to be deemed illegal and we would not hear their claims at all. I think we are obliged to hear those claims. Of course, since we left the EU we can no longer return failed applicants to the states that are subject to the Dublin agreement, an agreement which I was partly responsible for drafting. Our international opportunities for using programmes or, as the Government suggest, legal routes have diminished.


Ultimately, we must recognise the ever-increasing prospect of people being forced to leave their countries of origin. The challenge requires an international effort through the UN or other recognised agencies, with renewed co-operation on both sides between the UK and the EU. This is not helped with these provisions, which are likely to be unenforceable and will perhaps even look a little inhumane. I call upon the Government to think again and try to make sure that the reputation of this country, which is a proud one, is something that we can continue. I am sure that, with the help of your Lordships, this Bill will be returned to the other place in a much better form and order than its current state.


Lord Kirkhope's speech during Second Reading of the Nationality and Borders Bill
5th January 2022