Government Defeats during Report Stage of the Nationality and Borders Bill in the House of Lords

Statement

Report stage of the Nationality and Borders Bill in the House of Lords concluded on Tuesday 8 March 2022, after two previous days of debate on 28 February and 2 March 2022. The government suffered a number of defeats as peers voted against the government to amend the Bill on 19 counts. Each of these changes is noted below.

The Bill had its Third Reading in the House of Lords on 14 March 2022, during which the House agreed to various tidying up, consequential, and drafting amendments. When the Bill returns to the House of Commons on 22 March 2022, we would urge the government to rethink all provisions in this Bill which adversely affect British nationals, refugees and other vulnerable groups, and accordingly, to accept each of the amendments listed below. 

On 28 February 2022, the House of Lords voted to defeat the government in order to:

  1. Insert a new clause, after Clause 4, to allow descendants of Chagos Islanders to be registered as British overseas territories citizens and British citizens (237:154)
  2. Omit Clause 9 (read our briefing) which would have given the Home Secretary sweeping powers to deprive people of British citizenship without giving them notice (209:173)
  3. Insert a new Clause, before Clause 11, to ensure Part 2 of the Bill does not authorise policies and decisions that fail to comply with the Refugee Convention (218:140)
  4. Omit Clause 11, which would allow for differential treatment of refugees depending on how they arrive in the UK (204:126)
  5. Allow people seeking asylum, and their adult dependants, the right to work after waiting for a decision on their claim for 6 months (112:89)

On 2 March 2022, the House of Lords voted to defeat the government in order to:

  1. Insert a new clause, after Clause 15, providing that the Home Secretary may only bring into force section 15 (Clause 15 of the Bill provides that the Home Secretary may declare an asylum claim made by a person who “has a connection to a safe third State” inadmissible) where the UK has agreed formal returns agreements with one or more third States. The new clause defines “formal returns agreement” as “an agreement which provides for the safe return of a person making an asylum claim (a “claimant”) to a State which is party to the agreement, where the claimant has a connection to that State” (221:172)
  2. Remove Clause 28(a) which would have introduced amendments to the Nationality, Immigration and Asylum Act 2002 through Schedule 3 to facilitate the removal of  people with a pending asylum claim from the UK and the processing of asylum claims in another country (208:155)
  3. Remove parts of Clause 39 (read our briefing) which would criminalise people knowingly ‘arriving’ in the UK without valid entry clearance where it is required under the Immigration Rules (101:96)
  4. Remove subsection (3) of Clause 40 (read our briefing) to maintain the current position that the offence of helping an asylum seeker to enter the United Kingdom can only be committed if it is carried out “for gain” (86:84)
  5. Insert a requirement in Schedule 6 that the maritime enforcement powers in that schedule (read our briefing) must not be used in a manner or in circumstances that could endanger life at sea (83:76)
  6. Insert a new “family reunion” clause (read our joint briefing) to require provision to be made in the Immigration Rules for certain people in Europe to join a family member in the UK for the purposes of seeking asylum (178:130)
  7. Insert a new resettlement clause that will commit the Home Secretary to arranging for the resettlement of a minimum of 10,000 refugees in the UK each year (169:122)
  8. Insert a new clause which provides that persons seeking asylum in the UK who belong to a national, ethnical, racial or religious group which meets the criteria in Article II of the Genocide Convention (which defines genocide) must be presumed to meet the conditions for asylum in the UK following an application to the Court, that applicants for asylum from such groups may submit their applications and have them assessed at British missions overseas, and that the adjudication of whether a group meets the criteria must be determined by a judge of the High Court of England and Wales (172:120)

On 8 March 2022, the House of Lords voted to defeat the government in order to:

  1. Ensure age assessments under section 49 or 50 of persons who require leave to enter or remain in the UK are conducted by a local authority social worker, and only undertaken if there is significant reason to doubt the person’s age (232:162)
  2. Leave out Clause 58, which would have required the competent authority making a reasonable grounds decision or a conclusive grounds decision in relation to a person who had been served with a slavery or trafficking information notice to take account as damaging the person’s credibility the late provision of the relevant status information, unless there were good reasons why the information was provided late (213:142)
  3. Replace Clause 62 (which made provision for disqualifying certain individuals from protection given to potential victims of modern slavery) with an alternative clause ensuring compliance with Article 13 of the Trafficking Convention (210:128)
  4. Replace Clause 64 (setting out circumstances in which the Home Secretary must grant limited leave to remain to victims of modern slavery) with a clause to ‘provide new statutory support for victims in England and Wales after a conclusive grounds decision for at least 12 months. It would also provide temporary leave to remain for all victims receiving support after a positive conclusive grounds decision and for victims meeting the requirements of Article 14 of the Trafficking Convention. It specifies decisions for children should be made on the basis of their best interests’ (207:123)
  5. Insert a new clause providing, inter alia, that where a competent authority is making a decision in relation to a person who is aged under 18 years, the best interests of the child must be a primary consideration, and that the Home Secretary must grant leave to remain in the UK where a positive conclusive grounds decision is made in respect of persons who are under 18, or were under 18 at the time of the relevant incident(s) (194:128)
  6. Ensure people who are not British or Irish can make local journeys from the Republic of Ireland to Northern Ireland without Electronic Travel Authorisation (141:107)

Visa Penalties

We also highlight that the House of Lords agreed to government amendments to the Bill at Report stage introducing concerning new clauses to allow visa penalties in relation to entry clearance applications for nationals of countries whose government has taken action that is likely to (or does): give rise to a threat to international peace and security, result in armed conflict, or give rise to a breach of humanitarian law.

We note the Government has stated that it is ‘minded to use these powers in respect of Russia. 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.’

The Government has also amended the Bill to ensure that ‘these powers can be deployed in relation to the invasion of Ukraine as soon as the Bill receives Royal Assent, rather than waiting two months after commencement’. 

We oppose blanket visa penalties on principle. We are also concerned that they fail to provide sufficient parliamentary oversight and note that there is no promise of exceptions or exemptions for all dissidents, critics, and protestors in countries against which these penalties are employed.