Contribution
My Lords, I will speak in support of Amendment 59—to which I have added my name, along with the noble Baroness, Lady Hamwee —which was moved so effectively and powerfully by my noble friend Lord Browne of Ladyton. In Committee, I spoke about the importance of our amendment then, and the amendment before your Lordships today reflects changes which we believe will make it attractive to the Government, as well as being a balanced and effective approach; I hope the Government will agree with that opinion.
As has been said, once fully commenced, Section 59 of the Illegal Migration Act would make far-reaching amendments to the general inadmissibility of asylum and human rights protection claims from EU and other nationals introduced by the Nationality and Borders Act 2022. We believe this will likely result in violations of the United Kingdom’s international human rights obligations.
As my noble friend said, in Committee our Amendment 104 sought to repeal Section 59 of the IMA in full. It was widely supported and I was particularly pleased by the intervention of the noble and learned Lord, Lord Hope of Craighead, following my recognition of the importance of the 2010 Supreme Court judgment in HJ (Iran) v Secretary of State for the Home Department. As noble Lords will know, he was one of the justices in that case. The concern in Committee and the concern now is about the efficacy and legality of Section 59 of the Illegal Migration Act as currently drafted. The Government have made it quite clear that they believe that Section 59 of the IMA must be retained, hence why we have tabled this new amendment which looks to make changes to Section 59 with the intention of ensuring that it can provide the flexibility that the Government may require, but in an effective and legal manner that has as few unintended consequences as possible.
To put it briefly, the amendment would turn the duty of the Secretary of State into a power. It clarifies the exceptional circumstances test and provides an effective mechanism for the management of the safe states list and the removal of states which are no longer safe. Importantly, it would enable the United Kingdom to uphold the Human Rights Act and the European Convention on Human Rights and would therefore be less likely to be challenged within the courts.
To be safe, a state must be a place
“where its citizens are free from any serious risk of systematic persecution, either by the state itself or by non-state agents which the state is unable or unwilling to control”,
and free from a serious risk of persecution in general. That is from the 2015 Supreme Court judgment in R (on the application of Jamar Brown (Jamaica)) v Secretary of State for the Home Department.
As I said in Committee:
“There can be no general safety presumption if there is a risk of persecution to even one recognisable section of a community”.—[Official Report, 3/9/25; col. 802.]
In relation to the HJ (Iran) Supreme Court judgment, the hard-won legal rights for LGBTQI+ refugees are meaningless if the safety of states does not account for their safety. Such refugees will have to hide fundamental parts of their identity if they cannot leap over the “exceptional circumstances” test currently in place, and are sent back home in contravention of that judgment. But, surely, even if their claims are declared inadmissible this Government will not send them home, forcing them to live in hiding in a state that the UK has called safe but is not in reality safe for them. I therefore look to the Minister to reassure me on that point.
If there is a real risk that a person would suffer inhuman and degrading treatment upon return to their home country, it would be a breach of their human rights to fail to rigorously scrutinise their claim. I believe that such claims must therefore be considered. This means that if the wider inadmissibility test is to be kept, it must be altered. Similarly, hard-won gay marriage rights will mean little if we must still show exceptional circumstances before a national of a safe country may be permitted to live here with their British or settled partner.
These are some of the reasons that we have added to the exceptional circumstances test the requirement for the Government to consider these claims if a failure to consider them would breach the human rights convention—arguably, a minimal safeguard to ask for. I hope the Government will have the courage to do the right thing: accept their human rights obligations and adopt this amendment or, at the very least, further reflect upon it and our submissions. I look forward to the Minister’s response.