Wednesday 10 May 2023 saw a few developments with the Illegal Migration Bill, as the second reading took place in the House of Lords, and the Equality Impact Assessment was published. We’ve summarised the key points below.

House of Lords

The most interesting part of of the reading in the House of Lords on Wednesday was that Lord Paddick of the Liberal Democrats moved an amendment to decline to give the Bill a Second Reading, i.e. for the House of Lords to refuse to allow the Bill to pass. He concluded his speech with the following:

“I studied moral philosophy at university. One of the acid tests of whether something was morally right was the question: “What would happen if everyone did the same thing?” Can the Minister say what would happen if every country adopted the approach outlined in the Bill?

This Bill is a low point in the history of this Government and we should not allow it to proceed any further.”

Lord Coaker, for Labour, made it clear from the outset that they would not support that vote on the basis that the government would then use the Parliament Act to make the Bill a reality and no amendments in the Lords would be possible. However, Baroness Hamwee, for the Liberal Democrats, later pointed out that if the Bill was rejected by Peers at the second reading, and the government subsequently used the Parliament Act, there would be timing issues before the next election both in relation to the necessary legislative processes that would still need to be followed, but also for implementation of the Bill. Most of the Labour Peers abstained from the vote, which was defeated with 76 voting in favour, and 179 against. The Lib Dem Peers are not, however, giving up.

No other votes took place, but there were several hours of speeches. The day ran from 11:06 am to 10:21 pm, with most of that time spent on this Bill. The importance of collective responsibility was reiterated, as well as the potential damage to the UK’s international reputation and the knock on implications of that. The list of alleged “safe countries” was pointed out to be unsafe for both LGBT+ people and atheists/apostates. The unworkability of the proposals was another recurring theme, including the lack of returns agreements and the lack of safe routes. You can read more about safe and legal routes in the context of the Bill here.

Concerns around the language used by the government to speak about people seeking safety in the UK were also mentioned, including a powerful speech from Baroness Kramer who spoke about her refugee mother. Many spoke about the effect on people who are victims of modern slavery. And concerns were also raised around the effect of the Bill on children, perhaps most poignantly by Bishop of Durham who quoted Jesus as saying “it would be better to have a millstone around the neck and be cast into the sea than to cause a little one to stumble”.

Several Peers raised the lack of published impact assessments as an issue.

Equality Impact Assessment

Just prior to the start of the second reading, the government published its Equality Impact Assessment, though the document is actually dated 26 April 2023, the day that the report stage and third reading took place in the House of Commons. This is over two months after the Bill was introduced on 7 March 2023, and after it had already passed through the Commons. By comparison, the Nationality and Borders Bill was introduced on 6 July 2021, and the Equality Impact Assessment only published on 16 September 2021, just before the committee stage in the House of Commons.

As far as the contents are concerned, page 5 sets out the list of sources consulted, and no pretence is made this time of engagement with stakeholders. In contrast to the Nationality and Borders Bill, at 15d, the closest it comes to inclusion is a reference to NGO literature on the National Referral Mechanism.

The assessment concludes that there is no direct discrimination because the provisions apply to all people equally. However, there is an acknowledged risk of indirect discrimination against certain groups. For example, in relation to age, of the 45,755 people who arrived via the Channel last year, 17,678 (38.6%) were aged 25 to 39, and 15,786 (34.5%) were aged 18 to 24. Yet the assessment concludes that any differential impact will be the result of the person’s conduct, and is justified and proportionate to achieve the legitimate aims.

On age assessment, the document states “there is no single technique, or combination of techniques, that can determine someone’s age with precision” and that “genuine children who are closer to the age of 18 are more likely to be affected”. However, the Home Office justifies this risk by saying that the Bill should have a deterrent effect. No evidence has been produced to support this, and the effectiveness of deterrence measures is disputed.

It is worth re-reading the Home Office’s report from September 2020 on drivers for migration journeys, which states:

“many asylum seekers have little to no understanding of current asylum policies” and “Restrictive migration policies may increase the number of applicants that fall into irregularity, displacing them into more dangerous and exploitative routes (such as trafficking).” Despite this, in relation to the risk of indirect discrimination on the grounds of the characteristic of sex, the assessment states that “The net effect of this will be a reduction in risks of sexual exploitation in the UK, since the individuals will no longer be brought into the UK.”

The sections on race, sex and sexual orientation are particularly troubling, as they focus on the risks of these groups being exploited and trafficked, yet the blame for this is placed very firmly on the victims as the conclusion is that “[a]ny differential impact is as a result of a person’s conduct and is justified and proportionate in order to achieve the legitimate aim of controlling migration and reducing crime”.

The risk of indirect discrimination is also accepted in relation to religion and belief and disability but the assessment states that this will be mitigated through various measures, including training of staff and making interpretation available, or otherwise dismissed on the basis that any differential impact is justified and proportionate.

In relation to pregnancy and maternity, the Home Office states that “[d]ata on pregnancy and maternity in relation to people who enter the UK illegally is not available”. They then rely on this lack of evidence to conclude that “[i]n the absence of evidence to the contrary and taking into account the mitigation above, the Department does not consider the Bill will indirectly discriminate against people based on pregnancy or maternity”.

That may sound quite bad, but fear not, there is a plan: “[t]he Home Office will closely monitor data available to us to identify any impacts of the Bill on women to ensure appropriate support measures can be put in place” (my emphasis). So the Home Office does not have any evidence and has used that lack of evidence to conclude that there is no risk of indirect discrimination, but they plan to use the evidence they don’t have to monitor the impact. This is of course in the context of the Bill removing a time limit on the detention of pregnant women, amongst other proposals.

It should also be noted that similar assertions regarding monitoring impact on affected groups were made in relation to the Nationality and Border Bill despite an acknowledged lack of data (see for example 17c and 21). But no changes seem to have been made to the existing collection and reporting of data for these groups (see for example this non-answer by the Immigration Minister Robert Jenrick to a question from Olivia Blake MP). 

Where is the Economic Impact Assessment?

As far as an Economic Impact Assessment is concerned, again it is instructive to look at what happened with the Nationality and Borders Bill. On 14 January 2022, then Home Office Minister Tom Pursglove said in response to a written question from Stuart McDonald MP that “[a]s previously stated, an economic impact assessment of the Nationality and Borders Bill will be published in due course, to complement the Equality Impact Assessment, which was published on 16 September.” On 1 March 2023, the Home Office responded to a Freedom of Information request asking for the economic impact assessment, as follows:

I am advised that the Home Office holds the Impact Assessment on the Nationality and Borders Act 2022, which contains the information relevant to your request.

Section 22(1) of the FOI Act provides that information can be withheld if it is intended for future publication and it is reasonable to withhold until the planned publication. I am advised that there is an intention to publish the Impact Assessment on the Nationality and Borders Act 2022. The Home Office must ensure that the information intended for publication meets the standards and requirements set for departmental publications. It would not be in the public interest for the Home Office to release this information prior to meeting such standards. Although the exact publication is not yet known, I am satisfied there is an intention to publish this information and the public interest falls in favour of withholding the information until the planned publication.

Parliamentarians should therefore not hold their collective breath for publication of the Economic Impact Assessment. Whether they are prepared to vote it through regardless is a matter for their conscience, although the financial implications are of course not the most concerning element of the Bill.

Next stages

The Bill next proceeds to report stage in the House of Lords, the dates for that are expected to be 24 May, and 5, 7, 12 and 14 June 2023. A comprehensive briefing prepared by the sector can be found here.