Nationality and Borders Bill (Tenth sitting)

Robert Goodwill Excerpts

Committee stage
Tuesday 26th October 2021 Public Bill Committees

The number of children—this will be of interest to my hon. Friend the Member for Bermondsey and Old Southwark—awaiting an initial decision for more than a year increased more than twelvefold between 2010 and 2020, from 563 to 6,887. The idea has been created, and heightened by the appalling images we have all seen of channel crossings, that that is due to rising numbers, but the number of asylum applications actually fell.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Does the hon. Gentleman accept that not all the delays are down to the Home Office? In many people’s view, the thousands of judicial reviews that are done, the vast majority of which fail, are there to buy more time for the applicant possibly to come up with a reason for an article 8 application.

[Paul Blomfield]

There is an exception to every rule, so I am prepared to accept that not all the problems are down to the Home Office. We discussed that issue earlier. The fact that some people may seek to abuse the system does not mean that the system should be changed to focus on those cases. We should operate on the basis that everybody has a right to access and utilise the judicial processes that are available.

As I was saying, the backlog has risen at a time when the number of asylum applications for the year ending June 2021 fell. We know that is reflected across the system; it is not just a problem with asylum. In the relatively straightforward area of EU settled status, recent data from the Home Office in response to a freedom of information request showed that, in June, more than 26,000 EU citizens had been waiting for more than a year for a decision; more than 216,000 had been waiting for more than six months; and more than 680,000 had been waiting for more than three months.

The problem of delays is endemic in the Home Office, and there were no JRs involved in those numbers. In the asylum process, delay is not only seriously detrimental to the individuals, but—we have returned to this point a number of times, and will again—hugely costly to the taxpayer, so any measure that will exacerbate rather than correct the issue is unconscionable.

The assumption behind the measures in clause 20 and related causes is that those trapped in the system are to blame, as was echoed in the exchange we just had. Blaming others is a common approach of the Government on a wide range of issues such as covid, where GPs are the lightning rod for discontent, and Brexit, where we blame everybody going other than those who negotiated the deal. That ignores the reality that those trapped in the system want decisions to be expedited as soon as they can. They want to move on with their lives. Those who are successful want to take the opportunity to work and contribute to our society.

We need more resources from the Home Office to tackle the backlog. It is welcome that there has been some acknowledgement of that. I saw that the permanent secretary said at the Home Affairs Committee last month that the Home Office is planning to almost double the number of caseworkers, which is extremely positive. It is delayed recognition of where the problem might lie, but they should not be seeking to undermine applicants, which subsection (3) of clause 20 does by specifying that the Secretary of State or the competent authority must consider evidence being brought late as damaging to a claimant’s credibility unless there are good reasons why it was brought late. We come again to this issue, which we debated in relation to an earlier clause, of good reasons.

As there is no explanation before us, either in the legislation or in the explanatory notes, of what might constitute good reasons, amendment 139 seeks to help the Government, in a collegial spirit, by inviting the Secretary of State to publish a framework that allows the consideration of the effect of post-traumatic stress and potential endangerment on the provision of evidence. I do not think that any of us could object to the idea that post-traumatic stress and potential endangerment would be good reasons, so I will be interested to hear the Minister explain, if in fact he does not embrace the amendment, why that is the case, because we go on to suggest that he might also publish the other factors that would be seen to be good reasons.

The clause serves to shift from a presumption of guilty until proven innocent, again echoing an earlier discussion, back to our legal system’s norm of innocent until proven guilty. As it stands, unamended, it is not in the spirit of the law or of British values, and it should not be in the Bill.

[Bambos Charalambous]

Clause 20 introduces the concept of a priority removal notice and, under subsection (3), specifies that the Secretary of State or the competent authority must consider evidence being brought late as damaging to a claimant’s credibility, unless there are good reasons why it was brought late.

As we have made clear during the course of the Bill’s passage, the Government are trying to make it harder for refugees and asylum seekers to gain protection here in the UK. That is undeniable. The priority removal notices regime is part of a package of measures and provisions to achieve that end, both in deterring refugees from seeking protection and in making it more difficult for refugees admitted to the UK to be recognised as such.

One of those measures is directing decision makers, including judges, to doubt an applicant’s credibility if they fail to provide evidence under the strict conditions described in clauses 18 and 19. It is worth noting that the Home Office and the courts have always been able to consider the timing of a claim as a factor in determining credibility, and that might determine an appeal. None the less, clause 20 seeks to reduce the weight that is given to any evidence that is submitted after the cut-off period stipulated by the PRN.

According to the Immigration Law Practitioners’ Association:

“Rather than allowing decision-makers to sensibly consider whether the late provision of evidence is a reason to doubt its credibility, weighing all the evidence on the whole, the government proposes to strait-jacket decision-makers with a series of presumptions. The caveat that decision-makers will be allowed to use their own judgment if there is a ‘good reason’ why evidence was provided late does not mitigate these concerns.”

Indeed, there are many so-called bad reasons that evidence might be provided late that do not indicate dishonesty, and many more reasons that it may not be possible for someone to present all relevant information in support of their claim at the earliest opportunity. We have already heard in detail the problems felt by certain groups and individuals with this approach, such as LGBTQ asylum seekers and victims of torture, sexual or gender-based violence, or trafficking.

One long-standing concern for the sector, which we have yet to cover in detail, is failings within the asylum process itself, particularly poor-quality, shortened or inadequate interviews. The consequences of poor interviews conducted with an individual can be devastating in the moment and potentially have grave long-term effects, including the risk of being returned to persecution because the Home Office did not have the information it needed to make a fair and informed decision.

For the Home Office, asylum appeals have been rising steadily over the last decade, which points to the importance of protecting asylum appeals as a vital safeguard for the most vulnerable and to the fact that the Home Office often gets decisions wrong first time. More widely, a system that relies on the appeal process to correct its errors is inefficient, costly and inhumane. For that reason, we can describe the asylum system in the UK as broken, and we can point to the last 11 years of Conservative government as a reason for us having that broken system.

[Mr Goodwill]

Would the hon. Gentleman include foreign national offenders who are being removed, who may have committed crimes including rape and murder or been involved in the drugs trade, among the people who should be given the sort of latitude he is talking about?

[Bambos Charalambous]

Priority removal notices will apply to all people to whom they apply. If they qualify, they will qualify under that regime. I do not think people can be distinguished on the basis on their offences.

Clause 20 and the wider proposals around priority removal notices will penalise the most vulnerable and those who have been failed by the system by reducing the significance of any evidence submitted after the applicant has been through the one-stop process. That could include independent expert medical evidence, such as medico-legal reports, which often prove determinative in asylum appeals.

Ultimately, the provision around late compliance risks people not being given protection even though they deserve it and are in need of it. For the reasons I have specified, we will oppose clause 20 standing part of the Bill.

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[Mr Goodwill]

I am sure the Opposition understand that when someone is given a police caution when they are about to be arrested they are told, “It may harm your defence if you do not mention when questioned something you later rely on.” Is the clause not basically about the same principle being applied to immigration cases?

[Paul Blomfield]

rose—

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[Bambos Charalambous]

We will oppose clause stand part.

[Mr Goodwill]

When we discussed the previous clause, there were a lot of complaints about the time it took to process people whose claims were rejected and who were removed, and those who had genuine claims. Should the hon. Gentleman not welcome the expedited process because it will enable people to get their decisions more quickly and stop those whose vexatious use of the law delays things?

[Bambos Charalambous]

There is such welcome generosity from Conservative Members. The measures will do no such thing; all they will do is clog up the upper tribunal system, which I will address later.

The Bill’s system of penalisation includes curtailing appeal rights, as set out in clause 21. The clause creates 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 the appeal will be limited to the upper tribunal.

According to the Law Society, the proposals would essentially result in single-tier appeals with increased pressure on judges and more appeals to the Court of Appeal, as well as undermining access to justice, which is crucial in asylum cases. The Government’s proposals on priority removal notices and expedited appeals risk impinging on people’s rights and access to justice. In many instances, asylum seekers are highly vulnerable and may experience difficulties when it comes to the legal intricacies of the asylum process—studying legal determinations, gathering evidence and preparing submissions for appeals, for instance.

It is also worth clarifying that when unfounded or repeat claims are made, accelerated procedures as part of the asylum process are necessary and important safeguards. The difficulty is that more complex cases—where there are legitimate reasons for evidence being provided at a later date, for example—may be included in those accelerated processes, with devastating consequences. The Committee has heard some of examples of that today.

The Committee heard from Adrian Berry of the Immigration Law Practitioners Association about clause 21 during our evidence session. It is worth revisiting his evidence and the severe concerns that he raised on 23 September. First, he spoke about the expedited appeal, which begins in the upper tribunal. Therefore those who introduce a claim for asylum and provide evidence after the cut-off date in a priority removal notice receive an expedited appeal and lose their right of appeal and a hearing in the first-tier tribunal. Secondly, he raised concerns that the upper tribunal hearing is final. There is no onward appeal to the Court of Appeal. That is wrong for a number of reasons.

Mistakes, unfortunately, do happen in asylum claims, but under the current provision, individuals would be left, in the words of Adrian Berry, “one shot” to appeal and correct the mistakes. The fact that the first instance tribunal decisions cannot be reviewed has serious implications for the rule of law. It also creates a wider time-pressured, accelerated decision-making process operating on the tribunal system, which is likely to have a negative effect on the quality of decisions made. That is well documented and an issue that we have touched on previously, but it is worth repeating for the benefit of the Committee.

Appeals have been rising for many years. Between 2016 and 2018, 57% of first-tier tribunal asylum appeals were dismissed. It was only 52% in 2019-20. The right of appeal is fundamental in protecting individuals’ rights and preventing potential miscarriages of justice.

I should like to cite an example to illustrate that point and wider concerns about the priority removal notices regime introduced in part 2. I will call my example AT, a Gambian national who unsuccessfully sought asylum in the UK. He was married to a Gambian woman who had been granted indefinite leave to remain in July 2016 as she was unable to return to Gambia. His wife was heavily pregnant with their child but their relationship had not been raised or considered by the Home Office as part of his asylum claim. He was given a “notice of liability to removal” and was detained after the notice period had ended. Before his detention, he was unsuccessful in securing an appointment with his solicitors.

During AT’s detention, his wife gave birth to their son—a British citizen. The Home Office refused AT’s human rights claim based on his family life, focusing on the late stage at which he raised it. He was removed from the UK before he could access legal advice and challenge that decision. His subsequent judicial review proceedings were successful and he was allowed to return to the UK to exercise his right of appeal to the first-tier tribunal against that decision. The Home Office subsequently conceded his article 8 family life claim, and granted him leave to stay in the UK with his wife and son. If the priority removal notice provisions of the Bill had been in force in this case, AT’s right of appeal, even after he had succeeded in a judicial review, would have been severely circumscribed. He would only have been able to appeal directly to the upper tribunal. The appeal would have been decided on an expedited basis and the tribunal would have been required to treat AT’s claim to a family life as lacking credibility. If the upper tribunal had found against him, he would have had no right of appeal to the Court of Appeal.

That case highlights some of the severe consequences of clause 21. Are Committee members, on all sides of the debate, happy to put speed over justice? That is what the Bill’s attempts to expedite appeals seeks to do, and without acknowledging the harm that that will cause. It risks people having their human rights violated as a result of a truncated appeals process for asylum claims.

Clause 21 has serious consequences for the rule of law, procedural fairness and the rights of individuals. It will inevitably lead to the wrong being decisions made that will then go unchallenged. Closing off avenues for appeals risks closing off access to justice. An incorrect decision can cost an individual their safety, security and livelihood. Therefore the clause presents an unacceptable risk of breaching the UK’s non-refoulement obligations under the refugee convention and the European convention on human rights. As such, the Opposition will oppose that clause 21 stand part of the Bill.

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[Tom Pursglove]

This Government have been clear that claiming asylum in the first safe country reached is the fastest route to safety. We must dissuade all those considering making dangerous journeys to the UK in order to claim asylum. We are working closely with international partners to fix our broken asylum system and discussing how we could work together in the future.

Clause 26 introduces schedule 3, which aims to reduce the draw of the UK by working to make it easier to remove someone to a safe country, where their claim will then be processed. It amends existing legal frameworks in order to support our future objective to transfer some asylum claims to a safe third country for processing.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

What my hon. Friend the Minister is saying about deterring these dangerous journeys is even more poignant given the rescue operation that took place today off Harwich, where I understand five Somalis were in a small inflatable boat. As I understand it, two have been rescued, but three are feared drowned. That brings starkly into all our minds the need to deter these dangerous journeys and the desperate people who face these terrible things. I am sure the condolences of the whole Committee go to all those involved—not only those actually in the boat, but the rescue services, which must have had a fairly tough time.

[Tom Pursglove]

I am grateful to my right hon. Friend for his intervention. It is fair to say that I am very mindful of the enormous risks that we are finding people taking in trying to cross the channel at the moment. We have debated the matter extensively in this Committee up to this point, and no doubt that debate will continue. I am very concerned to hear about the situation that he has described. I have asked to be updated, and to be kept updated as to the progress of the operation to try to find the individuals who, it would seem, have been lost at sea. Of course, we send our thoughts and best wishes to those who are caught up in that terrible tragedy, and we hope for the best for them. This absolutely and without question underlines the gravity of the risks that people are taking by getting into small boats and trying to cross the English channel to get to the United Kingdom.

The Bill contains a suite of measures designed to protect those in genuine need while breaking the business model of criminal gangs who profit from people trafficking and exploit vulnerable people for their own gain. Our aim is to disincentivise people from seeking to enter the UK by dangerous means, facilitated by those criminal smugglers, with a clear message that those who arrive via an irregular route may be eligible to be transferred to and processed in another safe country not of their choosing.

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[Tom Pursglove]

I am actually meeting the UNHCR tomorrow, and I am obviously looking forward to that meeting. No doubt we will cover a range of topics during that discussion and engagement, which I most certainly value. I repeat to the hon. Gentleman the point that I have now made several times in relation to the provisions in the Bill: we believe that they are compliant with our international obligations. I have made that point previously and will continue to make it.

[Mr Goodwill]

Does my hon. Friend agree that the principle of a safe country is well established? When we were members of the European Union, removals to EU countries were permitted because of that particular situation. Does he further agree that countries that seek to be candidates to join the European Union will have to bring their standards up to those equivalent to the European Union, so there is a list of countries, particularly in the Balkans and elsewhere, that may well meet those criteria before they join the European Union?

[Tom Pursglove]

My right hon. Friend raises various points on the back of his experience covering at least part of the role that I now cover. I would build on that by making the point that we do not remove people to countries where they would be unsafe. Of course, we are also talking here about countries that are compliant with the obligations set out under the refugee convention. That is an important point to re-make.

I thank those who drafted amendment 159 for their contribution to the debate thus far. Let me begin by being clear that this Government are wholly committed to ensuring that removals of individuals are done in accordance with our international obligations, and that the safety of those transferred is at the forefront of our actions. However, we simply cannot support any amendment that seeks to limit our ability to remove individuals to safe third countries. I assure the Committee again that we would only ever remove an individual to a country that we are satisfied is safe for them. However, the amendment is overly restrictive and therefore could not be used flexibly to consider the circumstances in the country in question. By way of illustration, the amendment would mean that we could not remove someone who is gay, lesbian or bisexual to France or Italy.

Committee members can be assured that the amendment is superfluous given the safeguards already in the Bill. Indeed, we will only ever send individuals to countries where we know that their removal will be compliant with the UK’s international legal obligations, including those that pertain to potential victims of modern slavery. Even where we are assured that a particular state is safe, changes made by the Bill make it clear that every individual in scope for removal to that state will be able to rely on the protection of article 3 of the ECHR to demonstrate why that state may not be safe in their unique circumstances. That is to prevent any individual from being transferred to a country where they would genuinely be at risk of inhumane and degrading treatment.

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[Stuart C. McDonald]

The clause makes fundamental changes to important aspects of what it means to be a refugee under the convention. It seeks to require that important elements of the claim are to be established on the balance of probabilities before the decision maker goes on to make an overall assessment of real risk. Previously an overall assessment of the reasonable degree of likelihood of persecution was applied.

We regard this as a hugely dangerous and possibly very confusing clause. It fails to take into account the challenge of evidence and facts that arise many thousands of miles away, or facts to which only the claimant’s testimony can speak to. If, for example, a claim is made on the grounds that a person is LGBT, it can be hugely challenging to prove that to the standard of the balance of probabilities. As the UNHCR has explained:

“Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared.”

Similar issues will arise with many other groups that we have already spoken about this morning.

What is proposed is really dangerous. If a decision maker is certain, for example, that LGBT people in general are at risk of persecution on return to a particular country, and even if that decision maker thinks that there is a reasonable likelihood that this particular applicant is LGBT, that would no longer be enough to justify an award of refugee status.

[Mr Goodwill]

The hon. Gentleman is absolutely right that it is very difficult to prove some of these things. It is also difficult to disprove them. Is he aware that asylum seekers from places such as Uganda may well claim to be gay when they are not because they see that as the route to getting a good result quickly?

[Stuart C. McDonald]

I am not aware of the evidence of that, so I cannot comment. At the end of the day we are talking about people who are at risk. We are not talking about a road traffic case, a minor bump or the small claims court. We are talking about people whose lives are at risk, or they are at risk of serious harm and persecution. That is why we have to be very, very careful about requiring evidence beyond the standard that is internationally accepted.

Let us say that a decision maker is certain that LGBT people in general are at risk of persecution on return to a particular country. Even though the decision maker thinks there is a reasonable likelihood that a particular applicant is LGBT, that will not be enough to secure refugee status. The decision maker could be 49% certain that the applicant is LGBT and 100% certain that an LGBT person returned to a particular country will be tortured and killed, but that 1%—that tiny little bit of doubt—means that the balance of probabilities threshold will not be met, and that case will be rejected. The implications are huge.

Amendment 152 seeks to maintain the status quo. Let us not mess with a long-established principle, and let us be very, very careful that we are not denying refugee status to people who we know should be awarded it.

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Amendments 53 and 54 seek to redefine a particularly serious crime in section 72(2) and (3) of the Nationality, Immigration and Asylum Act 2002 as one that is punished by four years or more imprisonment, in comparison with the 12 months or more imprisonment proposed by the Government in clause 35. As I have outlined, the Government have identified 12 months or more imprisonment as an appropriate definition for a particularly serious crime.

[Mr Goodwill]

Is the Minister aware that in the Representation of the People Act 1981 the same 12-month sentence would disqualify a Member of Parliament—so what is sauce for the goose, I guess?

[Tom Pursglove]

My right hon. Friend puts the matter in a way that only he can. To raise the definition to a level that captures only crimes that have resulted in a sentence of four years or more imprisonment would be reckless, and would undermine the aims of the new plan for immigration to build a fair but firm immigration system. It would clearly send the wrong, and dangerous, message that the UK welcomes and rewards serious offenders. I do not believe that the people of the UK want that. The amendments would mean that individuals who commit some of the most serious crimes would continue to receive the generous benefits of refugee status in the United Kingdom. Their continued presence in the UK could also lead to avoidable reoffending. The Government would not be upholding their responsibility to protect the public of the United Kingdom by supporting the amendments.

The hon. Member for Enfield, Southgate queried the process for a person who has been trafficked. I can confirm that such a person will be tested under the second limb for whether they amount to a danger to the community. With regard to offences committed overseas, section 72(3)(c) of the Nationality, Immigration and Asylum Act 2002 contains a provision to ensure that any convictions abroad would result in a sentence of 12 months or above in the UK for a similar offence.

In the light of those points, I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw the amendment, and that the Committee agree that the clause stand part of the Bill.