My Lords, we have had a very interesting, long and good debate, which has had perhaps more than a hint of a Second Reading debate—but, of course, that is unsurprising, given that Clause 1 sets out the purpose of the Bill. We will of course be able to revisit this debate in the second group when we have the “clause stand part” Question.
We have heard thoughtful speeches from many noble Lords, but I particularly valued the insights from the noble Baroness, Lady Fox, my noble friends Lord Hodgson, Lord Horam, Lord Sandhurst and Lady Lawlor, and my noble and learned friend Lord Wolfson.
For now, let me respond to the amendments directly. First, Amendments 1 and 5, tabled by the noble and learned Lord, Lord Hope of Craighead, seek to add into the Bill definitions of “illegal migration” and “unlawful migration”. The noble and learned Lord has suggested that this would be helpful in the interests of legal certainty. As a lawyer myself, I am all in favour of legal certainty but, in this instance, I am not persuaded that adding these definitions helps in this regard.
It is important to incorporate Bill-wide definitions in a Bill where terms are used across the Bill. We have done that in this Bill and, as noble Lords will have noticed, Clause 64 includes an index of defined expressions. But I put it to the noble and learned Lord
that nothing hangs off the terms “unlawful migration” or “illegal migration” and, consequently, there is no need to define them. The term “unlawful migration” is used only once in the Bill, in Clause 1(1), while the term “illegal migration” is used only in the Short Title, as the noble Baroness, Lady Chakrabarti, observed. Moreover, it is clear from Clause 2 that the duty to make arrangements for removal applies to persons who meet the four conditions in that clause. It does not apply to other persons who may be in the country unlawfully—for example, because they have overstayed their limited leave to enter or remain. In short, the Bill is clear without these two terms being defined.
As regards the early intervention in the debate from the noble Baroness, Lady Meacher, a point repeated by both the noble Baronesses, Lady Chakrabarti and Lady Hamwee, as well as my noble friend Lord Kirkhope and the right reverend Prelate the Bishop of Chelmsford, I remind your Lordships that the Immigration Act 1971 was recently amended by the Nationality and Borders Act 2022 with regard to the criminal offences relating to illegal entry and arrival. This includes people who enter the UK without leave or arrive in the UK without permission: for example, without a visa where that is required under the Immigration Rules. This means that such persons are illegal migrants whether or not they go on to claim asylum. This, if I may say, answers the question from the noble Baroness, Lady Hamwee, of what makes a route illegal. The answer is: legislation, passed in the normal way, and scrutinised and passed by this House.
The suggestion by the noble Baroness, Lady Chakrabarti, that anyone making claims under the refugee convention can never be illegal, represents, with respect, a muddled reading of the convention. The convention is clear that states can still operate controls on illegal migration and, under Article 31, it is expressly permitted to disadvantage those who have arrived illegally from safe countries—which is true of all who come from France. This embodies the first safe country principle in the sense that Article 31 protections apply only to those who have come directly from unsafe countries—a point made by my noble friend Lady Lawlor.
The first safe country principle is also widely recognised internationally, including in the Common European Asylum System, a framework of rules and procedures operated by EU countries together, based on the refugee convention. I would add that the noble Baroness, Lady Chakrabarti, may have overlooked the fact that, under Clause 2(4) of this Bill, the “duty to remove” does not apply to those who have come directly from unsafe countries, in line with the refugee convention.
The refugee convention seems to be raised to support statements that are not all borne out by its terms. We must interpret the convention as it is written, not as others would wish it to be written.