Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024 Debate

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Department: Home Office

Nationality, Immigration and Asylum Act 2002 (Amendment of List of Safe States) Regulations 2024

Lord German Excerpts
Tuesday 19th March 2024

(3 months ago)

Lords Chamber
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Moved by
Lord German Portrait Lord German
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At end insert “but this House regrets that His Majesty’s Government have not provided a clear explanation of why or how they have determined that India and Georgia are safe states for the purposes of the Nationality, Immigration and Asylum Act 2002; and that it is unclear how this policy change will work in practice.”

Lord German Portrait Lord German (LD)
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My Lords, I declare my interest in the register—I am supported by the RAMP Project. This regret amendment is not about whether Georgia and India are safe countries for trade or tourism, but safe from a serious risk of persecution of nationals of these countries, and where removal to India or Georgia of nationals of those countries would contravene the United Kingdom’s obligations under the human rights convention. It may well be that, for certain groups of people, a return to these countries would fail these tests.

There are two main issues at fault with this legislation: one of process and one of policy. I will deal with process first. Currently, as the Minister said, the list of safe countries is all those in the EEA—the European Economic Area—plus Switzerland and Albania. Being included in the list of safe states means that an asylum or human rights claim from an Indian or Georgian national must not be considered unless exceptional circumstances apply.

It is very unusual for the Secondary Legislation Scrutiny Committee of this House to lay such an extensive report before us, but its conclusion is:

“These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

My supposition is that the Government are adding some countries to the safe list because more people can be returned to their home countries without their asylum claim being even considered; and that this legislation was produced in haste, without the necessary conditions for scrutiny being fully considered.

The Secondary Legislation Scrutiny Committee states that consideration of

“the operation of ‘exceptional circumstances’ is critical to understanding and scrutinising the policy”.

In reply, the Government said they would issue guidance in—those famous words—“due course”. Given that this statutory instrument was laid on 8 November 2023, and that we are now discussing it more than four months later, I submit that “due course” has run out, as no such document has appeared.

In response, the Secondary Legislation Scrutiny Committee said:

“At a minimum”—

I use that word carefully—

“the guidance describing how it will operate in practice should have been published alongside the instrument. However, we have also consistently taken the view that factors that will influence critical decisions about a person’s life or benefits should be included in the legislation considered by Parliament, not left to guidance”.

It adds that

“proper scrutiny is not possible if the guidance is not published before the debate on these Regulations takes place”.

No such document has been produced and, as a result, the Government have failed to meet the appropriate parliamentary standards required for processing this statutory instrument.

I now turn to the policy issues raised by this. As the Minister said, the criteria for deeming a country to be safe are set out in Section 80AA of the Nationality, Immigration and Asylum Act 2002, as amended by the Illegal Migration Act 2023. The rules by which the Secretary of State may add a state are that they must be satisfied that

“there is in general in that State no serious risk of persecution of nationals of that State, and … removal to that State of nationals of that State will not in general contravene the United Kingdom’s obligations under the Human Rights Convention”.

Those are the two reasons why it can be put forward. But, in deciding that they are substantially true, the Secretary of State

“must have regard to all the circumstances”—

not just some—

“of the State (including its laws and how they are applied), and … must have regard to information from any appropriate source (including member States and international organisations)”.

We have just heard two things from the Minister: first, “exceptional circumstances” was repeated and, secondly, we heard that the information has been taken from many sources. But, crucially, we got no detail—because, of course, we are discussing this after it has been to the committee that would look at this detail—about exactly where these sources of information are, where they have come from and how balanced they are. So, this House can draw only on conclusions that we think would be appropriate for judging whether these countries are safe.

I will draw only on the United States of America and the Home Office—the very department that makes this decision. The SLSC quoted the United States Government’s 2022 country report on human rights practices in Georgia:

“Significant human rights issues included credible reports of: torture or inhuman, cruel, or degrading treatment; arbitrary arrest or incarcerations … substantial interference with the freedom of peaceful assembly and freedom of association; refoulement … crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, and intersex persons and activists”;

crimes involving violence or threats of violence targeting members of national, racial, ethnic and minority groups based on religious affiliation, social status or sexual orientation; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer and intersex persons; and the existence of forced and compulsory labour.

The Home Office’s country policy and information note on Georgia says:

“High-profile government opponents and managers of media channels opposed to the government may be subjected to politically-motivated prosecution and detention with a politically-biased judiciary”.

That is from the United States and our Home Office. There are plenty more examples. You must add to that the position of South Ossetia in Georgia, which is under Russian control, and the considerable interchange of information between the Russian secret services and Georgian officials.

The Home Office’s country note on India says:

“Human rights abuses, including rape, torture, and deaths in custody are reported to be widespread and conducted with impunity. Excessive force by security forces in areas of conflict are also reported, including extra-judicial killings, rape, torture, arbitrary detention, kidnappings and destruction of homes”.

Finally, there were the comments and responses from Members and Ministers representing the Foreign, Commonwealth and Development Office here last Thursday about concerns over Muslims, Dalits and other groups in India.

These facts demonstrate that, for some groups of people, there will be a risk of persecution or a failure to provide them with human rights security under our international obligations. Since the Illegal Migration Act was passed, we do not give people the sort of interview we would need to work out whether they are subject to that persecution. In response, the Government say that these are all “isolated incidents”, not general matters of concern—“isolated” and “general” are two important words here.

Just look at the contradictions within the Home Office, let alone between government departments, on this response. Home Office view A is that human rights abuses, including rape, torture and deaths in custody, are reported to be widespread and conducted with impunity; contrast that with Home Office view B that “isolated incidents” may have been reported but the “scale and extent” of concerns were not such that the test under the Act was failed. There you have it —the Home Office looking in both directions at the same time. Widespread or isolated—both cannot be right.

I have some questions for the Minister. Are the “widespread” and “significant” human rights abuses reported by the Home Office and the US Department of State consistent with the requirements of the 2002 Act, as amended? Why has the promised guidance not been produced in the four months between the laying of this SI and this debate? Given that a significant proportion of recently processed claims from Georgia were accepted, can the Government’s description of applications from Georgian nationals as “unfounded” be justified? Given the backlog of claims from these two countries, will existing claims continue to be processed as previously or will they be deemed inadmissible retrospectively, whenever these regulations come into practical effect? Finally, why are the regulations being introduced now, when they will have no practical effect until the relevant provisions in the Illegal Migration Act 2023 are brought into force? Unless the Minister can answer these questions satisfactorily, this statutory instrument has surely stepped over the line in terms of both parliamentary process and policy. I beg to move.

Baroness D'Souza Portrait Baroness D’Souza (CB)
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My Lords, India is indeed a safe country if you are a straight male Hindu citizen. It is far less safe if you happen to be female—women from religious and cultural minorities face the most gender-based violence—Muslim, Dalit, Adivasis, Sikh, Christian or a member of the LGBT community. These sectors of the population constitute about 280 million people. More than 10,000 people have been arrested under the Unlawful Activities (Prevention) Act, the majority from minority groups.

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Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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I was just about to get to that.

These regulations seeks to add India and Georgia to the list of countries in Section 80AA(1) of the Nationality, Immigration and Asylum Act 2002, as I have already said. They are not about the inadmissibility provisions, which already rely on the exceptional circumstances safeguard.

Section 80A already applies to EU nationals. Only when Section 59 of the Illegal Migration Act is commenced will the safe country of origin list be actionable in terms of its application to the revised inadmissibility provisions at Section 80A of the 2002 Act and to the removal provisions at Sections 4 and 6 of the Illegal Migration Act.

Section 80A(4) of the Nationality, Immigration and Asylum Act 2002 sets out some examples of what may constitute exceptional circumstances in that context. Section 6(5) of the Illegal Migration Act sets out the same examples, but these are not exhaustive, nor do they purport to be. They will not be relevant in some cases. Exceptional circumstances are not defined nor limited in legislation, but will be considered and applied on a case by case basis where appropriate. When we commence and implement the wider Section 59 measures, we will provide updated guidance to assist caseworkers in their consideration of exceptional circumstances and the wider provisions.

The noble Lord, Lord Ponsonby, asked me to go into a bit more detail on Georgian asylum applications and grant rates. I am happy to do so. In 2023, there were 1,071 applications—23% fewer than in the year before, but more than four times higher than in 2019. For cases where decisions were made, the grant rate at initial decision was 12%—based on 24 grant decisions out of a total of 205. That was lower than the grant rate of 23% the year before, but higher than the 8% in 2019. Where withdrawals, which numbered 621, were included as part of the decision total, the grant rate was only 3%, compared to 5% the year before and 2% in 2019. The grant rate for Georgians is far below the average grant rate across all asylum claims. We should note that the number of Georgian applications with an outcome in each year before 2023 was low—120 cases in 2022 and 88 in 2019. I apologise for that blizzard of statistics, but I hope it answers noble Lords’ questions.

I hope that I have satisfactorily explained the Government’s position on the inclusion of both Georgia and India in the Section 80AA(1) list of safe countries of origin. I beg to move.

Lord German Portrait Lord German (LD)
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My Lords, if I were to ask the House to consider whether the five questions I posed have been answered in sufficient detail, I would probably have a negative answer. It is my view that we have tried to find a rationale for a workable procedure. We do not have the sort of information we would need in order to make a proper judgment. That was what the Select Committee advising this House decided. We were asked to test this out because they did not have the information to do so. I do not think we are much wiser.

It was pretty fundamental for us to know the sources of information on which the Government made their decision. If I were asked what a reasonable, workable system might be, I would say that there are people who could be safely returned. I am in favour of returning those who have no right to be here. Equally, as we have heard from the noble Baroness, Lady D’Souza, there are people who would definitely be in trouble if they were returned. These are not just individuals but groups of people. We would like to understand and know where people who, because of the group they are in, would be unsafe in going back to India and Georgia. This would aid the balance of decision-making. All the time we have talked about it being for the individual to make it clear that they believe they have exceptional circumstances, not for the Government to understand it. The danger is that people get used to what these circumstances are. If, for example, you are a Dalit and know that you are likely to be persecuted, or if you were politically active in Georgia and caused some uproar, you will soon be testing this out as an individual within a group of people. It strikes me as being unhelpful to put all those individuals who are in that circumstance through costly court and other procedures one at a time to make sure that it works.

Guidance was fundamental to the view of the Select Committee that advised us. All we know from this discussion so far is that the guidance is to be updated, but we do not know what it is. I and the noble Lord, Lord Ponsonby, asked about retrospection. Will this apply to people who have the right to have their case heard, or will it apply only to people who have come in subsequently? We did not get an answer to that question either. I would put it down as an all bar one answer to the queries that we have put so far. We are having this discussion in the Rwanda Bill and these discussions will be ongoing. If this House continues to be without the information upon which we can judge whether the procedure that the Government are adopting is correct, then the Government are in for a bumpy ride for the very few months they may have left to make these decisions.

This is a matter which we will return to and one with unanswered questions. I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.