Nationality and Borders Bill on 4 April 2022

ILPA documents | Refugee

As the Nationality and Borders Bill continues its ping pong between the House of Commons and House of Lords, we have continued to brief parliamentarians on several important amendments to the Bill. On 22 March 2022, all previous Lords amendments to the Bill to which the Government disagreed and which were put to a vote on that date were defeated in the House of Commons. Read our summary of the concessions and assurances made by the government during this debate on 22 March 2022 here.

Ahead of the Bill’s return to the House of Lords, along with several partners, including Reprieve, Public Law Project, JUSTICE and the Bingham Centre for the Rule of Law, ILPA briefed peers on several key amendments.

1) Read our joint briefing with Reprieve, JUSTICE and Public Law Project on Clause 9(5)-(7), which permit retrospective validation of prior invalid orders, unlawfully made by the Home Secretary, to deprive people of their citizenship without notice.

2) We also supported the analysis of Commons amendments put forward by the Bingham Centre for the Rule of Law in their published report Nationality and Borders Bill (Lords Consideration of Commons Amendments): A Rule of Law Analysis (1 April 2022) regarding deprivation of citizenship without notice, differential treatment of refugees, and compliance with the Refugee Convention.

On 4th April, there were 13 votes in the House of Lords on amendments to the Nationality and Borders Bill. 

The Government was defeated on the following counts:

1) Deprivation of Citizenship: Peers voted to leave out subsections 5 -7 in Clause 9 of the Nationality and Borders Bill regarding the retrospective validation of prior invalid orders, unlawfully made by the Home Secretary, to deprive people of their citizenship without notice. (209:165) (Motion B1)

2) Refugee Convention Compliance: Peers voted to include a clause stating that the provisions of Part 2 of the Bill are compliant with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, and must be read and given effect as such. (189:151) (Motion C1)

3) Differential Treatment of Refugees: Peers voted to require the Secretary of State to make provision within the Immigration Rules to guarantee refugees – whether classified as a Group 1 or Group 2 refugee – all of their rights under the Refugee Convention and to ensure that  their classification does not affect their ability to maintain family unity, as well as to remove subsections 5 to 8 of Clause 11 relating to differential treatment. (191:148) (Motion D1)

4) Right to Work: Peers voted to allow persons applying for asylum, and their adult dependants, to work after their asylum claim has been pending for 6 months, until their claim is determined and all appeal rights have been exhausted. The Secretary of State could repeal this having commissioned and published a review into whether the provisions inserted in the Immigration Act 1971 have encouraged people applying for asylum, and their adult dependants, to travel to the UK, which must be done within four years of the section coming into force, provided a draft of the necessary regulations was laid before, and approved by a resolution of, each House of Parliament. (199:132) (Motion E1)

5) Inadmissibility: Peers voted to include a condition (lasting for five years) that proposed section 15 (currently clause 15, which seeks to stipulate in primary legislation that the Home Secretary may declare an asylum claim made by a person who “has a connection to a safe third State” inadmissible) may only be brought into force if the UK has agreed formal returns agreements – defined as agreements which provide 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 – with one or more third States. (179:152) (Motion F1)

6) Offshore processing: Peers voted to require restrictions on how to designate ‘safe third states’ including a condition that both Houses of Parliament must approve by resolution an order prescribing a State as a ‘safe third state’, after being presented with a costed proposal of any arrangements by the Home Secretary with that State in respect of the removal of people seeking asylum to it from the United Kingdom and estimated costs of any additional aid being provided to that State as a result of such arrangements for at least the first two years after the order is to come into effect. (176:153) (Motion G1)

7) Family reunion for unaccompanied asylum-seeking children: Peers voted for Lord Dubs’ amendment to require provision to be made for unaccompanied children in Europe who have a family member who is ordinarily and lawfully resident in the UK to be admitted to the UK for the purpose of  seeking asylum. (181:144) (Motion H1)

8) Resettlement: Peers voted to require the Home Secretary to publish a numerical target for the resettlement of refugees to the UK every year and to put in place appropriate resourcing and infrastructure to support local authorities to deliver the target. (159:150) (Motion J1

9) Crime of arrival: Peers voted to remove provisions in the Bill making it a criminal offence to knowingly arrive in the UK without valid entry clearance under the immigration rules where such entry clearance is required and instead insert a provision making it a criminal offence to arrive in contravention of a deportation order. (163:138) (Motion L1)

10) Crime of facilitating arrival: Peers voted to stipulate that a person only commits the offence of assisting arrival or entry, or attempted arrival or entry, of an ‘asylum-seeker’ under section 25A of the Immigration Act 1971 where they do so ‘without reasonable excuse’, but without requiring the assistance to be ‘for gain’. (162:141) (Motion M1)

11) Disqualification from protection: Peers voted to replace Clause 62 with different conditions for disqualifying a person from protection. A competent authority may determine that it is not bound to observe the minimum recovery period in respect of an adult in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that it is prevented from doing so (a) as a result of an immediate, genuine, present and serious threat to public order, because the person has been convicted of a terrorist offence or (b) because the person is claiming to be a victim of modern slavery improperly, i.e. the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves. Such a determination must not be made where it would breach the UK’s obligations under the ECHR, Refugee Convention or Trafficking Convention, and must only be made in exceptional circumstances, where necessary and proportionate to the threat posed, and following an assessment of all the circumstances of the case. (116:111) (Motion Q1)

12) 12 months’ support: Peers voted to require that confirmed victims of slavery or human trafficking, i.e. with a ​​positive conclusive grounds decision, who received support under the proposed new section 50A of the Modern Slavery Act 2015, must be given tailored assistance and support at the end of the recovery period for at least 12 months. The duty ceases if a determination is made to disqualify the person from protection under clause 62 of the Bill. (108:107) (Motion R1)

The following motion was defeated by the Government:

1) Victims of slavery and trafficking under 18: Lords voted against adding a new clause to ensure that the ‘best interests of the child’ must be a primary consideration and to ensure further protection is in place when a competent authority is making a decision about a child. (101:110) (Motion S1)

The Bill returns to the House of Commons for consideration of Lords amendments on Tuesday, 20 April 2022.