Nationality and Borders Bill

Lord Rosser Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Rosser (Lab)]

I have the Clause 15 stand part debate and Amendment 195 in my name. I thank the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton, for their support in opposing this clause, and my noble friend Lord Blunkett for his support on Amendment 195.

Clause 15 puts in the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through a safe country or if they have a connection to a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.

We believe that, as drafted, Clause 15 should not stand part of the Bill. It is just not acceptable or deliverable in practice. We have concerns on the definitions of “safe third state” and “connection” and the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries in which they will be denied rights owed to them under the refugee convention.

Safe returns, as part of an international asylum system, are not new and are accepted under agreed conditions. However, this clause does not provide for safe reciprocal return agreements. Even as it stands, the UK Government do not have return agreements with EU member states—namely the “safe third countries” that refugees are most likely to have passed through.

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[Baroness Williams of Trafford (Con)]

I think it is both. We need to assess people on a case-by-case basis and we need to have return agreements in place. It is not an either/or. I fully acknowledge the need to have return agreements in place. We could not return someone to a country that said it would not accept them; that simply would not be on. That underlines the need to have formal return agreements in place.

[Lord Rosser (Lab)]

Does that mean that the Government accept that Clause 15 is pretty meaningless without such agreements in place? There is no argument about that, then.

[Baroness Williams of Trafford (Con)]

No, I do not accept that Clause 15 is meaningless. I am agreeing that we need to have return agreements in place. I do not think anyone would disagree with that point.

[Lord Rosser (Lab)]

If we do not have return agreements in place by the time this clause comes in, we will end up with a lot of people being here for six months while the Government try to find out if they can send them back to another country. If you have no agreements with any other countries, you know before you start that that is a further six months wasted before the Government seek to do anything meaningful. Clearly the clause is meaningless without those agreements in place.

[Baroness Williams of Trafford (Con)]

I was going to go on to say that if no agreement is possible within a reasonable period, the individual’s asylum claim will be considered in the UK, but I am not disagreeing with the point that return agreements need to be in place. I think I have made that quite clear. Similarly, this is a global challenge, so every nation in the world has to be mindful of the fact that they will be in similar positions as the months and years go on.

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[Baroness Williams of Trafford (Con)]

I do not know if the noble Lord heard my last point, but we do not necessarily need formal return agreements in place. We can do returns without formal agreements. The point about Dublin is that the formal arrangements that were in place did not necessarily work. It is important to try both—formal and informal, diplomatic and otherwise. It works both ways and, as I said, this is a global challenge. It is not that it is not an EU problem either.

[Lord Rosser (Lab)]

Can I just be clear? Will this then work on the basis of some ad hoc arrangements that will be determined through diplomatic channels, in which other countries take people whom we have declared inadmissible? As I understand it, the number of people we are likely to declare inadmissible will be high. Will all that be done by ad hoc arrangements? Will there not be any agreements and will these countries come forward and say, “Yes, that’s fair enough. You declared the claim inadmissible; of course we will take them back”. Is that how it is going to work?

[Baroness Williams of Trafford (Con)]

My Lords, I am saying that there are a number of ways in which we can seek to secure this—formal, informal, diplomatic and otherwise. I am not saying there is a single solution to returns. Therefore, Clause 15 still needs to be in place.

It might not always be appropriate to apply inadmissibility to all claimants who have travelled via or have a connection to a safe country. The provisions that we have drafted already have flexibility that allows us to consider whether an individual has exceptional circumstances to warrant consideration of their asylum claim through the UK asylum system. As I said, this includes best interests. We also have the family reunion provisions that I mentioned earlier so, if individuals have family members in the UK, they should apply under those provisions. The inadmissibility provisions should not be used to circumnavigate those provisions and create a back door to enter the UK by dangerous means.

Furthermore, if an individual has not been recognised as a refugee, but has been provided with a different form of protection from refoulement, that country is safe for them to be removed to. To define a “safe third State” in the way suggested by the amendments ignores the other forms of protection available to individuals, which ensure that these countries are safe for them to be removed to.

Regarding Amendments 74, 73B, 74A and 75B, the UK should not be obliged to assess the substance of an asylum application where the applicant, due to a connection to a safe third country, can reasonably be expected to seek protection in that third country, or where they have already sought protection in a safe country and have moved on before the outcome of that claim, or where a claim has already been granted or considered and refused. This is a necessary part of achieving the policy aim of deterring those unnecessary and dangerous secondary movements. We are not alone in operating this practice. These amendments ignore the other forms of protection available to individuals that ensure that these countries are safe for them to be removed to. Amendments 75, 75A, and 76 would significantly undermine the aim of these provisions. The provisions as drafted send that clear message for those who could and should have claimed asylum in another safe country to do so.

I commend the spirit of Amendment 76, which would introduce a new clause to strengthen our inadmissibility provisions and deter irregular entry to the UK, particularly where that means of entry indicates that individuals have travelled to the UK via a safe country. I agree with the premise of this amendment—that access to the UK’s asylum system should be based on need and not driven by criminal enterprise. The provisions in the Bill send that clear message. However, this proposed new clause probably goes too far, and would breach our international obligations. It could place individuals in indefinite limbo, which would be against the object and purpose of the refugee convention. The provisions as drafted ensure that individuals are not left in limbo, with their asylum claim neither considered in the UK nor another safe third country. If after a reasonable period it has not been possible to agree removal of the individual to a safe third country, as I said earlier, their asylum claim will be considered in the UK. The introduction of Clauses 14 and 15 as they stand aims to strengthen our position on inadmissibility, further disincentivise people from making dangerous journeys, and encourage them to claim asylum in the first safe country.

I will leave it at that. I hope that noble Lords will be happy not to press their amendments.

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[Lord Paddick (LD)]

My Lords, I apologise but, in the war of attrition that this Bill has become, we seem to have lost any contributions other than from the Liberal Democrats and the Labour Front Bench.

Bearing that in mind, I will add to what my noble friend said rather than repeat anything she said. This clause smacks of the Home Office trying to remove or deport people before they have had a reasonable chance to appeal against a removal or deportation decision. No doubt it is embarrassing when repeated stories emerge of government charter flights taking off almost empty because the courts ruled that the majority of those with a seat on the plane should not be deported, but the answer is not to deport them before they have a reasonable chance to put their case before the courts. The answer is to improve the efficiency and effectiveness of the Home Office to ensure that there is a cast-iron case for deportation that cannot be overturned in the courts at the last minute. Yet again, the Bill focuses on the wrong solution to the problem.

I am sure the Minister will agree that as the Home Office becomes better at making its decisions and more and more appeals are turned down, as opposed to the current situation where the majority are accepted by the tribunals, there will be fewer appeals as lawyers say to their clients “Look at what’s happening now. There’s absolutely no point in appealing.” That is the answer to this problem, not Clauses 22 and 23.

[Lord Rosser (Lab)]

My Lords, the Bill’s system of penalisation includes curtailing appeal rights, as set out in Clauses 22 and 23. These clauses create an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of appeal would be limited to the Upper Tribunal. However, where a person provides a good reason for lateness, they will not be subject to this clause.

Clause 23 wraps certain other appeals a person may have into the expedited appeals process, further restricting appeal rights. The Government say the reason this clause is needed is prevent delaying tactics, remove incentives for late claims and protect the system from abuse. It is probably fair to say that in this Bill, where so much of it is driven by the party-political considerations of the Government, they will be part of the so-called lefty-lawyers amendments—we have one or two others—who seem to have become the bête noire as far as this Government are concerned.

As has been said, I have added my name to the clause stand parts to Clauses 22 and 23, to start, at least, to probe concerns that have been raised about these provisions. The Law Society, the Public Law Project and Justice have recommended that these clauses be removed from the Bill. The UNHCR has raised legal concerns. I suggest that these are not concerns the Government should take lightly.

The UNHCR has said the expedited appeals process, as designed under Clause 22, risks “miscarriages of justice”. Its legal observations agree, as do we, that accelerated processes can be appropriate for

“manifestly unfounded or repeat claims, as long as they are sufficiently flexible and contain adequate safeguards to ensure that they can be determined fairly and justly.”

The UNHCR is, though, entirely clear that appeals

“should not be accelerated … for reasons that are unrelated to their merits.”

The widespread expediting of appeals under these sections is, in the words of the UNHCR, “arbitrary” and

“unrelated to considerations of justice or efficiency.”

It risks people having their human rights violated as a result of a truncated appeals process for asylum claims. The incorrect decision can cost an individual their safety, security and livelihood.

Clause 23 is particularly troubling on the “arbitrary” point as it joins certain pre-existing appeals to the expedited process, even where they pre-date the priority removal notice and were made entirely on time. I ask the Government: what in this clause actually targets the expedited process on vexatious and unmerited claims? That is the reason Ministers give for why the clause is needed but, as far as I can see, it is not what the clause as drafted achieves.

I will make a couple of further points. First, the Public Law Project has said that making a system quicker is patently not the same as making it efficient. In order to be efficient, a system must move both more quickly and more accurately.

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[Lord Paddick (LD)]

My Lords, we support the amendments in the name of the noble Lord, Lord Dubs, for the reasons my noble friend Lady Ludford has explained. As my noble friend Lady Hamwee has explained, Amendment 94A is not to replace one arbitrary number with another but to probe how much legal aid should be provided in such cases. The Minister described, in a previous group, how cases are of different complexity and how people will be given more time to secure and collate evidence if they are from a vulnerable background. For example, if they come from an LGBTQIA background, they are less likely to be able to acquire evidence quickly, and therefore, the date on the notice they are given would change even during the process. Surely that points to the fact that each and every case is different and will require a different amount of legal aid, depending on how much aid is needed to advise in each particular circumstance. I understand that people who are in this situation do need legal aid, but surely the number of hours should be as case-specific and flexible as the deadline date of any notice for them to submit their evidence.

[Lord Rosser (Lab)]

We too support the amendments we are debating. I suppose, in a sense, this clause is a rare section of the Bill, in that we welcome it but desire it to go much further, as has already been said. Amendment 94A is a probing amendment, but it is a very valid one, because, clearly, the Government have come to the view that the seven hours of support that will be available will be sufficient.

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[Lord Paddick (LD)]

My Lords, for the reasons I explained in a previous group, accelerating appeals processes is not the solution to the last-minute successful appeals against removal or deportation. Rather, it is improving the efficiency and effectiveness of the Home Office. Clause 26 is another clause with the wrong solution to the problem, and while Amendments 97 to 99 seek to limit the damage that accelerated appeals might cause, it is more lipstick on more pigs.

To my shame, I am struggling to keep my head above water on this Bill and asking that Clause 27 does not stand part of the Bill does not go far enough. Already the Home Secretary can certify that the decision to remove or deport can be appealed against only once the claimant has been removed or deported, which makes such an appeal more difficult. We should have tabled an amendment to remove that power, let alone Clause 27, which proposes to go one step further, allowing the Secretary of State to certify that a claim cannot be appealed against at all if she thinks it is clearly unfounded. That should be a decision for the tribunal and not the Executive.

[Lord Rosser (Lab)]

In this group, I have the Clause 26 stand part amendment, and Clause 26 requires the Tribunal Procedure Committee to create a fast-track route for certain appeals made from detention. The accelerated process would apply where the Secretary of State “considers” that an appeal brought in relation to the decision would

“likely be disposed of expeditiously.”

Of course, that raises the question of the basis on which the Secretary of State will decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously. Will it be done on a whim? Will it be done on the basis that we need to speed things up and this may be the way to do it? Will they be getting legal advice on whether they should consider that it is likely to be disposed of expeditiously? What happens if they do decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously, and they then find that it cannot be disposed of expeditiously? What is the redress in that situation?

The Explanatory Notes state:

“This clause aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.”


As far as the Explanatory Notes are concerned, it is being done for the highest of motives, and nothing to do with simply trying to speed up the process.

The Law Society, Justice, the UNHCR and the Public Law Project have recommended that the clause be removed from the Bill. They raise that the fast-track system largely replicates, as has been said, a system that was already found to be unlawful in 2015 in a Court of Appeal ruling.

We support the amendments and concerns raised in this group, but I intend to speak only to the amendment in my name, which is to oppose Clause 26 standing part of the Bill. The concerns are very clear. As I said, various organisations have recommended that the clause be removed from the Bill. Their basis for saying so is that it amounts to a new detained fast-track procedure that was found to be unlawful in 2015 due to being “structurally unfair”. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It held that the policy did not sufficiently appreciate

“the problems faced by legal representatives of obtaining instructions from individuals who are in detention”,

nor did it

“adequately take account of the complexity and difficulty of many asylum appeals”

and

“the gravity of the issues that are raised by them”.

Since that ruling, the Tribunal Procedure Committee has repeatedly taken the position not to introduce specific rules in relation to cases where an appellant is detained. In its report of March 2019, the TPC concluded that

“a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”

Following the clear and somewhat damning court ruling and the position of the TPC, the Government’s response has been, as we now see, to legislate to reintroduce a fast-track procedure by forcing the TPC’s hand and requiring it to create one.

The questions for the Government are fairly simple. What is it about this scheme that is significantly structurally different from the scheme that was found to be legally unsound? What about this scheme will prevent it having a timetable

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity”?

Why, and on the basis of what evidence, do the Government disagree with the TPC when it says that such rules should not be brought in since they cannot both operate fairly and achieve the desired result of speed?

One wonders whether the Government are risking further judicial proceedings in replicating a scheme that has been found to be unlawful or, indeed, whether they would care too much anyway if there were such future judicial proceedings. I await the Government’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will come to the amendments in a moment but, since we have had a number of references to the old detained fast-track scheme, I will start by saying a word about that.

Obviously we considered carefully the legal challenges to the detained fast-track. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. It is right to say that the courts have been clear, in upholding the principle, that an accelerated process for appeals made in detention, operated within certain safeguards, is entirely legal. We believe that the new accelerated detained appeals route will contribute significantly to the timeliness with which appeals can be decided. We will be able to remove swiftly people found not to be eligible to remain while those people with valid claims can be released from detention more quickly, which is also important.

So far as the Tribunal Procedure Committee is concerned, the Bill sets out a clear policy intent but, as the noble Lord, Lord Rosser, says, changes to tribunal procedure rules are for the TPC to draft and are subject to its statutory consultation requirements and procedures. We have already begun to engage with the TPC on the elements of the Bill that will require tribunal rules to be made or amended and will continue to do so as the Bill progresses and passes into law.

I turn to the amendments before the Committee. I thank the noble Baroness, Lady Ludford, and, in his absence, the noble Lord, Lord Dubs, for Amendment 97. I understand the motivation behind it. It is right that appeals made from detention should be dealt with in a timely way so that, as I have said, people are not deprived of their liberty for longer than necessary, but we recognise that not all appeals made from detention will be suitable for the accelerated detained appeals route. So Clause 26 specifies that if a decision is certified as suitable for an accelerated detained appeal, in those circumstances the Secretary of State must consider that any appeal to the decision is likely to be disposed of expeditiously. Importantly, the tribunal may remove a case from the accelerated detained appeals route if that is the only way to ensure that justice can be done in a particular case.

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For those reasons, I respectfully ask noble Lords in whose names the amendments stand, or on whose behalf they are speaking, not to press their amendments.

[Lord Rosser (Lab)]

I may not have been listening as attentively as I should have been, but if the Minister has already said it I ask him to repeat the criteria under which the Secretary of State will make the decision that he or she considers that the appeal is likely to be disposed of quickly, which was a question I asked. Another point rises from something he said—that the clause now sets an extremely high bar for an appeal to be released from the scheme, and provides that it can be done only where

“it is the only way to secure that justice is done.”

Am I not right in saying that this has been amended by the Government during the Bill’s passage, and that the original language permitted the release of a case if the tribunal

“is satisfied that it is in the interests of justice to do so”?

Why is it no longer the case that “the interests of justice” are a good enough reason to take action?

[Lord Wolfson of Tredegar (Con)]

I shall reply to the second point first, if I may. The language in Clause 26(5) is essentially the same language as in Clause 23(7).

[Lord Rosser (Lab)]

Is it the same or essentially the same? My understanding, and I may be wrong, is that the Bill now says that

“it is the only way to secure that justice is done”,

where previously it said

“that it is in the interests of justice to do so”.

They may be similar but they are not the same words.

[Lord Wolfson of Tredegar]

My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.