My Lords, I think we have been having this debate all my adult life and probably all my life, but I am certainly happy to keep having it; there is nothing wrong with that. However, I do think that it is very important in the context of
Clause 11 to make a distinction in Committee between immigration and asylum. If I may say so, I do not think that Brexit is terribly helpful to an analysis of Clause 11. It used to be said that for the French, a meal without wine is like a day without sunshine. Clearly, for some people the equivalent is a discussion without Brexit, but I am not one of them.
It is important to make this distinction between immigration and asylum, which are both big and important debates, but they are too often conflated—not just in our discussions in this Committee but to some extent in Clause 11 itself. The noble Lord, Lord Horam, did not have the opportunity to reply to my question—all sorts of people intervened in his speech, to be fair—but if somebody is a convention refugee, they are not and never were an illegal migrant. That is incredibly important.
I congratulate the right reverend Prelate, who I think gave the speech of this Committee, and not just because I agree with him. I do agree with him, and also the noble and learned Lord, Brown of Eaton-under-Heywood, and, of course, the noble Lord, Lord Kerr. What was so important about the right reverend Prelate’s speech was its specificity to the refugees’ journey and the way that that would be affected by this differentiation. I congratulate him on that, because it is a very good way to analyse Clause 11: whether it works and whether it complies with the refugee convention.
Why is compliance with the refugee convention so important? It is not like choosing to vote in or out of something that began as a trading bloc but was always a particular grouping of countries rather than the whole civilised world. The reason why the refugee convention is so important is because, after two world wars, it was literally the world’s apology for the Holocaust. That is the best way that I can sum up why the refugee convention is so important. While Britain did wonderful things, not least standing up to Hitler with lots of Americans and Russians and people from the Commonwealth too, and there are very good things to be said about Britain’s contribution, there were also less noble things that have to be remembered—about the people who did not manage to get out, who did not escape the Holocaust, including people who were not allowed into this country and other countries around the world.
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It was through learning from that experience that we, led by Winston Churchill, decided to have a refugee convention so that in future people would be able to escape, including by clandestine means, with false documents, on little boats or whatever. That has not yet been said. I know it is a sensitive thing to say but, much as I would love to, I am afraid you cannot discuss the intentions of the drafters of the refugee convention without remembering how it came to be. The right reverend Prelate’s speech was perfect in looking at somebody in that situation today, but it is not a bad idea to look at people who did not make it then either. By the way, we in this country refused refuge to none other than Albert Einstein—something I occasionally remind myself of.
Subsequent to the war, the word “refugee” became quite a noble concept, particularly during the Cold War, when refugees made us feel really good about ourselves.
They were defecting spies; sometimes they were great athletes and ballet dancers, and so on. The numbers seemed relatively small, but they made us feel good about ourselves, because they were defecting—escaping totalitarianism—and this was the place to be instead. We thought that was great. But then the numbers increased because of airline travel, and we were no longer just talking about people escaping across a land border. Particularly post-colonisation, it was open to people to get on planes and come to a country that was not across a land border but with which they had some association—maybe the language, family, the common law—and suddenly, the Home Department got a little more concerned about the numbers of refugees.
By the way, this is not a partisan issue: if one looks at the history of the refugee convention and its application, Governments of both persuasions have been good and bad in their treatment of both migrants and refugees. Once the first aircraft of, I think, Tamil refugees landed at Heathrow Airport and people claimed asylum, suddenly the Home Department decided to move into territory such as “carrier’s liability”, and not just visas but “transit visas” and, in subsequent years, applying the transit visa regime even to countries that we knew to be either war-torn or producing genuine refugees. This happened some years ago and is something that people in both parties do not like to talk about, because it is a slightly dirty little secret that we have been closing this door on genuine refugees for some years. It did not just happen with this Bill, but the Bill is taking it to a pretty horrific conclusion.
We have the current proposals in Clause 11 for the two-track differentiation and, thanks to the announcement in the Times mentioned by my noble friend Lord Coaker, we have further proposals to differentiate against all men in boats. On Clause 11, to talk about “differential treatment” is horrendous in itself when you think about persecution. At the heart of all persecution is discrimination and differentiation; it is about people in a particular country who are being picked on and persecuted on some ground of difference. To then repeat that discrimination and bake it into a system supposedly of refugee protection is not just in violation of the convention—it is particularly obscene.
The way that Clause 11 mashes and contorts Articles 1 and 31 is really quite perverse. Article 31 was designed to give extra protection to the most desperate refugees and to ensure that they were not penalised for coming via clandestine means. The travaux demonstrate this. The drafters of the convention understood that some of the most genuine refugees of all—the most desperate, the most persecuted—are, by definition, those who have to come by clandestine means. Article 31 was designed to ensure that we did not refuse or penalise them automatically because of that. In Clause 11, we have almost flipped Articles 1 and 31 over, as the noble Lord, Lord Kerr, said, so that coming by clandestine means now puts you into the worst category. The noble Lord has to be right that when the UNHCR—the custodians and guardians of the refugee convention—is as concerned as it is, we are really in trouble, let alone all our domestic NGOs and other international ones.
As to the Times report, referred to by my noble friend Lord Coaker, the idea that all these young men are automatically, as a class, to be detained is not just
obvious discrimination and obviously contrary to the refugee convention—and, by the way, Articles 5 and 14 of the European Convention on Human Rights and the Human Rights Act—it also seems slightly odd from a Government who do not like people banging on about misogyny, but have no problem with a bit of misandry. Young men are now going to be discriminated against by the Government for being, perhaps, the fittest and, therefore, the ones most able to escape via these unsafe routes. It does not make them less worthy. It just means that the young women and elderly people back home did not have the means of escape; it does not make their escape any less worthy. Desperation looks like that and sometimes it is the fittest who get away.
The noble Lord, Lord Horam, talked about the views of people, as did the noble Baroness. I, like the right reverend Prelate, have worked with lots of refugees over the years. I have also conducted polling and talked to people about their attitudes to refugees. I believe in the best of people. People want fair play; people want a sense of control over their lives and, if you like, their borders. However, this is not free movement; this is not immigration policy. This is about saying to people, “These are desperate people. These are people who want to make a contribution, as so many before them did. Give people decent jobs and services and a decent quality of life and do not divide and conquer or turn people against their neighbours. Let refugees and asylum seekers work and live as neighbours in the community.” When that happens, people feel positive about refugees and asylum seekers and conduct community campaigns to stop them being deported. I have seen this happen all over this country.
In conclusion, I agree with the right reverend Prelate; I am on his team and those who spoke with him. The way forward is family reunion, humanitarian visas and improving the first-tier administration in the Home Office. I once worked there, and the first-tier decision-making is appalling. By the way, seeking to avoid wars over there is quite a good idea if you are worried about the obligation under the international rule of law to give refuge over here. Noble Lords should think about the consequences. If every country—particularly every developed country—around the world adopted the approach in this Bill, would there even be a refugee convention left?